Maille Case Dismissed: Supreme Court Decision Allows Demolition of Vacant Homes

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Thursday August 14, 2014

In 2012, resident George Maille appealed the South Burlington Development Review Board’s decision to issue permits to the Burlington International Airport (BIA) for the demolition or removal of 54 homes near the airport, arguing that the decision needed to undergo stricter scrutiny, or site plan review. Two years later, July 25, 2014, the Vermont Supreme Court mirrored a previous Environmental Court decision: in a 3-2 vote, the court gave BIA approval to demolish or remove the vacant homes it purchased with federal grant money.

The Background

Even before Maille challenged the Zoning Administrative Officer’s decision to issue the permits, the Logwood Road resident of 38 years had conducted personal research to measure the effects the airport has on its neighbors. He felt the effects firsthand in November 2008, when two homes bordering his backyard were demolished under the Federal Aviation Administration (FAA) home buyout program, one of which revealed asbestos during the demolition process.

In that same year, BIA introduced South Burlington to the Noise Exposure Map, its Noise Compatibility Program, and its Land Acquisition Program. Shortly thereafter, in 2009, BIA agreed to conduct a noise-monitoring plan and share the results with the South Burlington City Council to determine next steps for noise mitigation, and, in return, BIA would be allowed to accelerate the number of houses it buys out per year (from 10/year to 20/year), using FAA funding.

In the fall of 2010, the noise assessment took place in ten, 24-hour studies. The baseline study of noise levels was completed in front of and behind existing houses in order to assess standing-structure noise abatement levels. A 150 ft. “living wall” was constructed as a noise buffer on Airport Drive behind Maille’s residence.

Years later, Maille appealed the administrative officer’s decision to grant the 54 permits for demolition, based on the city’s Land Development Regulations (LDRs), stating that demolishing private residences would constitute a change in use. Maille lost the appeal case in Environmental Court and further appealed to the Vermont Supreme Court.

The Decision

“In conclusion, BTV’s proposal to demolish or remove the structures on each of the fifty-four lots at issue in this case does not constitute a change in use, and thus does not require site plan review,” Justice Marilyn S. Skoglund wrote for the court after the July 25 discussion.

“Additionally, BTV’s proposal to place fill into the cellar holes of those structures--an activity that is incidental to the removal of the structures--is exempt from site plan review under the LDR,” she added. “Although there may be legitimate concern over the noise increase without the buffer provided by the former structures, we cannot require site plan review when the LDR does not require it.”

Associate Justice Beth Robinson and retired Associate Justice James Morse, who filled in for Associate Justice John Dooley, were the voices of dissent.

“That conclusion is squarely at odds with the plain language of the South Burlington Development Regulations (LDRs), as well as the purposes of the regulations, and could have unintended consequences for the land use planning in South Burlington and beyond,” Robinson wrote.

The Response

“Am I disappointed? Of course, I am. Will I be asking the court for reconsideration? If I had the money,” Maille said in response to the turnout of the decision.

Even so, Maille has taken the opportunity to spin it as a learning experience.

“I did the best I could in retrospect,” he said. “You learn from your mistakes. I’m not an attorney; my background’s in engineering and computer science, but I most certainly learned from my DRB appeal to the Environmental Court just as I have learned from working with a great attorney. One of the areas where we probably could have done a better job was arguing some of the points to the Supreme Court.”

Maille has expended thousands of hours researching and reviewing his own sound measurements as well as studying FAA documents and federal and local law.

Paul Conner, the director of Planning and Zoning, said the department is pleased with the court’s affirmation of the city’s zoning decision and that the issue can finally be resolved.

“We recognize how challenging this has been for everyone involved,” he said.

“On a related, but separate note, last year, the City Council recommended and approved the submission of a grant application to undertake a planning project for the neighborhoods adjacent to the airport,” Conner continued. “ We are looking forward to a kick-off of this project in the very near future and everyone having an opportunity to explore and develop ideas for the future of the neighborhoods.”

City Manager Kevin Dorn is also in agreement with the Supreme Court’s decision to uphold “what was fundamentally at stake,” he said. Dorn and BIA Director of Aviation Gene Richards have been in touch regarding future actions and an expected timeline.

“We’re looking forward to moving on with the program and finishing it as it was supposed to be. It was supposed to be much quicker,” Richards said, “We also have already met with our engineers and we have a draft of the timeline. We’re continuing to work with and reach out to City Manager Kevin Dorn and the City Council and review it with them once it’s no longer in draft and see if there’s anything we can do differently.”
“I’m really hoping we can turn the corner and make the majority of the people happy,” he added.

SOURCE: Miranda Jonswold, Correspondent