So this
guy wanted to fix up a house he owns. He
applied for a zoning permit and outlined what he planned to do: raise the
roofline, replace some porticos with canopies, and replace some windows. But it’s an old building.
Five days
after he applied, a city planner emailed him and said she didn’t think it was
going to pass muster due to the building being on the National Register of
Historic Places, but she could put it on the Design Advisory Board’s (DAB) agenda
if he wants. He wants. So it goes on the DAB agenda; the DAB holds a
meeting, which owner attends; and ultimately, the DAB tables the issue. Apparently the windows and porticos were
acceptable to the board, but the board asked for a new drawing that clearly
showed the difference between the proposed roofline changes and the original
structure.
Owner
brought a new drawing to the city planner.
She told him she didn’t think it was what the DAB was looking for, so he
didn’t submit it. He didn’t say whether
he wanted to go forward with his application or submit a revision.
Some time
passed. Then owner met with the city
zoning administrator. At that point,
because the DAB hadn’t acted on the permit application within thirty days,
owner wanted the permit deemed approved.
The zoning administrator said, more or less, “Oh no, no—the DAB tabled
that—it’s not approved.”
So owner
appealed to the Development Review Board (DRB).
The DRB found that the zoning administrator had in fact acted on the
application within the statutorily prescribed time and referred it to
the DAB, which tabled it. Owner didn’t
appeal that decision, but met with the city twice to try to work out the
issues. Finally, owner just submitted
his original application, without any changes, which the zoning administrator
denied. Go figure.
Owner
appealed to the DRB, which affirmed the denial.
Owner then appealed to the environmental court. The environmental court denied owner’s motion
for summary judgment on the 30-days-or-deemed-approved issue and held a merits
hearing. The environmental court ultimately
“concluded that applicant’s permit application failed to comply with the
historic preservation standards in § 5.4.8 of the City’s zoning ordinance.”
And with
that, boys and girls, we end up at the SCOV.
Owner’s
first argument is that the permit should’ve been deemed approved when the
zoning administrator failed to act upon it within thirty days. Now, it’s important to note that the
applicable statute has an “escape clause” that reads, in pertinent part: “whether
by issuing a decision or by making a referral to the appropriate municipal
panel.” If neither of those things
happens within thirty days, then there’s an automatic-approval provision in the
statute.
The
SCOV’s review of summary judgment (or as one of my law-school buddies calls it sumjay) in the environmental court is de
novo. That just means the SCOV can go
any way it wants.
But the
SCOV goes the same way as the environmental court. There’s a somewhat lengthy discussion about
the purpose of the statutory auto-approval provision at issue (to prevent
indecision and delay) and a review of a somewhat similar case. To make a long story short, the SCOV doesn’t
see this as a situation where auto approval applies: owner was almost
immediately informed that his application probably wouldn’t fly, people worked
on it, and the DAB asked for revisions.
The SCOV concludes that sumjay was properly denied.
Owner’s
second argument is that a copy of the city’s zoning ordinance was improperly
admitted at trial. There’s a bit of a
snafu here it seems, as one copy (missing a few pages) was admitted over
owner’s objection at the trial; then the city followed up with a letter
indicating the same. So the court
reopens the evidence for limited purposes and a complete copy gets admitted.
The SCOV
essentially says “don’t be silly” regarding this argument. Trial courts have wide discretion in
evidentiary matters and the judge needed the ordinance to make a decision. The SCOV has a similar reaction to the judge
noting that he knew the city had a zoning ordinance.
Next
owner argues that the environmental court improperly placed the burden on him
to prove there was an ordinance and his compliance with it. The SCOV notes that the city bears the burden
of showing that there is an ordinance, but beyond that, as the person seeking
to overturn the city’s determination of noncompliance, then owner indeed does bear the burden of showing
compliance.
Finally,
owner argues that the environmental division’s application of the ordinance was
mandatory and unreasonable. The
SCOV—despite the fact that the one bathroom in the residential apartment
currently has such a low ceiling that a person cannot stand up fully in the
shower area—concludes that the historical-preservation sections of the zoning
ordinance are more directed toward external appearance than internal
functionality. In this sense, the
environmental court’s application of the zoning provisions was not
unreasonable.
That’s a
wrap, folks. Speaking of “wrap”—what
about that TYVEK wrap? Is that
historically compliant and zoning friendly?
What about as a standalone exterior . . . . My neighbor’s had it as facing on his house
for a historically substantial amount of time.
Maybe I should call the Department of the Interior.
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