Burlington Zoning Ordinance

Article 17: Appeals, Conditional Uses, and Variances

Sec. 17.1.1 Intent. It is the purpose of this article to provide for review of all questions arising out of or with respect to the implementation of this ordinance. Except as specifically provided herein, no development review board may amend, alter, invalidate or affect any development plan or bylaw or the implementation or enforcement thereof, or allow any use not permitted by any zoning regulations or other bylaw.

Sec. 17.1.2 Authority. These regulations are enacted under the provisions of 24 V.S.A. Section 4464, 4465, 4407(2), 4468, 4471-4473, and 4475.

Sec. 17.1.3 Appeals to Development Review Board.

1. Any interested person may take an appeal from any final order or decision of the administrative officer to the development review board. An appeal is taken by filing with the administrative officer and the development review board a written notice of appeal. Such notice of appeal shall include the name and address of the appellant, a brief description of the property with respect to which the appeal is taken, a reference to the regulatory provisions applicable to that appeal, the relief requested by the appellant and the alleged grounds why such requested relief is believed proper under the circumstances. A notice of appeal shall be considered filed with the administrative officer and the development review board when delivered to the planning department, and the date and time of filing shall be entered on the notice by the planning staff;
   
   
2. An appeal must be taken within fifteen (15) days after the date of decision or act appealed from;
   
   
3. Whenever an appeal is filed, the administrative officer shall forthwith transmit to the development review board all the papers constituting the record relating to the action appeal from; and
   
   
4. When an appeal is taken to the development review board in accordance with this section, the administrative officer shall have the initial burden of presenting to the development review board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.

Sec. 17.1.4 Interested Persons. For the purposes of this article, an interested person means any one of the following:

1. A person owning title to property affected by a bylaw who alleges that such regulation imposes on such property unreasonable or inappropriate restrictions of present or potential use under the particular circumstances of the case;
   
   
2. The City of Burlington or any municipality which adjoins the city;
   
   
3. A person owning or occupying property in the immediate neighborhood of a property which is the subject of any decision or act taken under the ordinance, who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes or terms of the plan or bylaw of that municipality;
   
   
4. Any ten (10) persons owning real property within the city or an adjoining municipality who, by signed petition to the development review board, the plan or bylaw of which is at issue in any appeal brought under this article, allege that any relief requested by a person under this article, if granted, will not be in accord with the policies, purposes or terms of the plan or bylaw of the city;
   
   
5. Any department and administrative subdivision of the State of Vermont owning property or any interested therein, the city or an adjoining municipality, and the Vermont Agency of Development and Community Affairs; and
   
   
6. The Burlington Conservation Board.

Sec. 17.1.5 Conditional Uses.

1. Approval shall be granted only if the development review board, after public notice and public hearing, determines that the proposed conditional use shall not adversely affect the following general standards:
   1. The capacity of existing or planned community facilities;
   2. The character of the area affected;
   3. Traffic on roads and highways in the vicinity;
   4. Bylaws then in effect; or
   5. Utilization of renewable energy resources.
      
      
2. In granting a conditional use, the board may attach such additional reasonable conditions and safeguards, as it may deem necessary to implement the purposes of this chapter and the zoning regulations. The development review board shall act to approve or disapprove any such requested conditional use within sixty (60) days after the date of the final public hearing held under this section, and failure to so act within such period shall be deemed approval. The development review board in applying the general and applicable specific standards shall consider the cumulative impact of the proposed use;
   
   
3. Conditional use permits are issued with a zoning permit under this chapter after a zoning permit request form is completed and submitted and only when a review of the application and supporting documentation submitted, including the plans contained therein, indicates that the development will comply with the provisions of this chapter and any conditions attached by the development review board in approving a conditional use if completed as proposed. Such plans and applications, as approved, and conditions imposed by the development review board, are incorporated into any permit issued, and except as otherwise provided, all development shall occur strictly in accordance with such approved plans, applications and conditions.
   
   
4. In considering a request for a conditional use permit relating to a greater number of unrelated individuals residing in a dwelling unit within the RL, WRL, RM and WRM districts than is allowed as a permitted use, in addition to the criteria set forth in Subsection (a) hereof, no conditional use permit may be granted unless all facilities within the dwelling unit, including bathroom and kitchen facilities are accessible to the occupants without passing through any bedroom. Additionally, each room proposed to be occupied as a bedroom must contain at least one hundred twenty (120) square feet. There must also be a parking area located on the premises at a location other than the front yard containing a minimum of one hundred eighty (180) square feet for each proposed adult of the dwelling unit in excess of the number of occupants allowed as a permitted use. All other green space standards must be observed.

Sec. 17.1.6 Variances.

1. A variance from the provisions of a zoning regulation may be granted by the development review board and a decision rendered in favor of the request for a structure that is not primarily a renewable energy resource structure, if all of the following facts are found and the finding is specified in its decision:
   1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning regulation in the neighborhood or district in which the property is located;
   2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation and that the authorization of a variance is, therefore, necessary to enable the reasonable use of property;
   3. That the appellant and the hardship have not created the unnecessary hardship relates to the applicant's land, rather than personal circumstances;
   4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare;
   5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation possible from the zoning regulation and from the plan; and that
   6. The variance, if granted, will not result in either the extension of a non-complying situation or allow the initiation of a nonconforming use of land.
      
      
2. In granting variances, the development review board may impose such reasonable conditions as will ensure that the use of the property to which the variance applies, will be a compatible as practicable with the surrounding properties;
   
   
3. A variance may be issued for an indefinite duration or for a specified duration only;
   
   
4. The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirements of this chapter.
   
   
5. The burden of presenting evidence sufficient to allow the development review board to reach the conclusions set forth in this section, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance;
   
   
6. Wherein a variance from the provisions of a zoning regulation is requested for a structure that is primarily a renewable energy resource structure, the development review board may grant such variances, and render a decision in favor of the request if all the following facts are found and the finding is specified in its decision:
   1. It is usually difficult or unduly expensive for the appellant to build a suitable renewable energy resource structure in conformance with the regulations; and
   2. That the hardship was not created by the appellant; and
   3. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare; and
   4. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the lease deviation possible from the zoning regulation and from the municipal development plan.
      
      
7. In rendering a decision in favor of a variance of zoning provisions or renewable energy resource structure, the development review board may attach such conditions to such variances as it may consider necessary and appropriate under the circumstances to implement the purposes of this ordinance and the municipal development plan.

Sec. 17.1.7 Appeals Of Development Review Board Decisions. An interested person may appeal a decision of the development review board to the Vermont Environmental Court. The appeal shall be taken in such manner as the environmental court may by rule provide for appeals from state agencies governed by Sections 801 through 816 of Title 3. Notice of the appeal shall be sent by mail to every interested person appearing and having been heard at the hearing before the development review board, and, if any one or more of those persons are not then parties to the appeal, upon motion they shall be granted leave by the court to intervene.

Sec. 17.1.8 Exclusivity of Remedy. Except as otherwise provided by state statue, the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this ordinance or any one or more of its provisions shall be the appeal to the development review board, and the appeal to Vermont Environmental Court from an adverse decision upon such appeal.

Sec. 17.1.9 Finality. Upon the failure of any interested person to appeal to the development review board or to Vermont Environmental Court, all interested persons affected shall be bound by such decision or act of such administrative officer, such provisions or such decisions of the development review board, as the case may be, and shall not thereafter contest, either directly or indirectly, such decision or act, such provision, or such decision in any proceeding, including without limitation, any proceeding brought to enforce this ordinance.

End of Article 17: Appeals, Conditional Uses, and Variances