One of the 54 houses near the airport scheduled to be demolished.

Appeal of Decision to Demolish Homes

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Thursday May 10, 2012

At the meeting of the Development Review Board on May 1, one agenda item held sway. Chair Mark Behr got right down to business by reading aloud the appeal of the Administrative Officer’s decision to approve zoning permits for the demolition of 54 residences near the airport, #AO-12-01. He stressed that the issue to be discussed would focus on the appeal of the demolition permits; if people had come to the meeting to discuss the topic of the F-35s, this matter would be discussed separately at a public hearing on May 14 at 5 p.m. in South Burlington High School.

Behr invited attendees to register for “interested person” status if they wanted to make comments as part of official testimony during the evening’s appeal hearing. This status would also grant them the right to appeal any decisions made relating to this matter. Eight attendees immediately applied for interested person status and, later in the evening, two others joined the ranks. The Board granted interested person status to all these applicants based on their ownership, occupancy or power of attorney relating to property within the area affected by the demolition decision. All of these people were sworn in by Behr.

The first testimony was given by Ray Belair, the City’s Administrative Officer. He stated that his decision to grant the Burlington International Airport (BIA) zoning permits for demolition was based on the City’s Land Development Regulations (LDRs). Since the structures to be demolished were all single-family homes and since the LDRs exempt single-family homes from Site Plan review (according to LDR 14.03(B)(1), Belair authorized the permits.

The appellant, Georg Maille, a 34-year resident of Logwood Street, then presented his testimony contesting the decision. Maille contended that Belair had made his decision to grant the zoning permits to BIA without having all the facts. The key factor, said Maille, according to the City’s Land Development Regulations, for determining if a project requires Site Plan review, is whether or not there will be a change in use of the property. Maille argued that the demolition of a private residence automatically changes the use of the land on which it sits.

To build his case, Maille cited sections 14.03(A) and (B) of the City’s LDRs which make distinctions among various actions taken to properties. Section 14.03(A) lists actions that are subject to Site Plan approval and 14.03(B) lists actions which are not subject to Site Plan approval. He pointed out that categories A and B were intended to be mutually exclusive; however, he reasoned that if any structure listed in category B has an action taken upon it that creates a new usage, that would put it into category A, therefore requiring Site Plan approval. Specifically, section 14.03(B) lists “one family dwelling on a single lot, its accessory structures, and related features such as decks, pools, sheds and detached garages” as being excluded from Site Plan review, while section 14.03(A) requires Site Plan review for “any new use, change in use, or expansion of use in any district.” This ambiguity in the LDRs, said Maille, may have contributed to the decision made by Belair.

Maille reinforced his contention that the zoning permits were issued erroneously by pointing to LDR 14.03(A)(5), which includes in its list of actions requiring Site Plan review “any structure formerly used as a residence proposed for conversion to nonresidential use.”

Maille expressed concerns about further considerations stemming from the demolition of structures. Hazardous materials can be released during demolition; in the case of these residences built in the 1950s and 60s, asbestos is an issue. The City’s LDRs state that a “permit is required prior to initiation of salvaging and or demolition,” for the purpose of determining whether hazardous materials will be released in the process of demolition. Lead paint and fuel oil are other hazardous materials that could be released.

Ray Belair responded to Maille’s point about land usage by saying that a vacant lot results from the demolition of these homes, and that a vacant lot has “no use.” In his opinion, “no use” did not constitute a non-residential use, and therefore did not require Site Plan review. Maille countered that “no use” does in fact change the use of property that was formerly used as a residence.

Chair Behr then opened up the hearing to questions by DRB members. In answer to a query from member Michael Sirotkin, Maille made it clear that what he was seeking was adherence to regulations that required the new property owners, BIA, to give prior notice of demolition to owners of neighboring properties in order to allow the required amount of time for property owners to appeal, as per law. He also wanted to keep the homes in place until valid data could be established as a baseline for noise abatement studies.

During testimony from interested persons, it came to light that several of the homes purchased by BIA and slated for demolition continued to have people living in them. DRB members expressed concerns about this, since homes due for demolition cannot, by federal law, continue to be residences.

Maille concluded his testimony by summing up his assertions: The demolition of a residential structure inherently changes its use; federal law precludes the usage of a property scheduled for demolition as a residence; there is ambiguity in the LDRs, sections 14.03(A) and (B); LDR section 14.03 (A)(5) clearly requires Site Plan review when a residential structure is converted to non-residential use; BIA had not provided complete information to the Administrative Officer at the time he made his decision.

At this point in the hearing, all interested persons were invited to give testimony. There followed a string of statements that reflected the impact of the purchase and demolition of neighborhood homes on residents currently living there. (See “Neighborhood in Limbo” on page 1).

SOURCE: Lois Price, Correspondent