Agenda - Planning Commission - 09/03/1996

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Z~B. August 15, 1996. L i-'age Thking -- Building owner says delay in variance issuance denied him economic benefit Chioffi v. City of Winooski, 676 A.2d 786 (Vermont) 1996 A building in a residential district of the city of Wknooski, Vt., had three residential units. The property occupied less than one-twentieth of an acre. ~ In 1981, a new zoning ordinance went into effect. It allowed two-unit build- ings (and no other multiunit dwellings) as conditional uses. The three-unit build- lng became a nonconforming use. In 1983, the building was destroyed when its owner intentionally set fire to it. (He was convicted of arson.) The owner had a year to reconstruct the building complying with the new ordinance -- before the building lost its legal stares. He did not. : Chioffi bought the property at a foreclosure sale in 1985. He applied to 'ih'e Winooski Zoning Board for a permit to remove the building's thkd floor and remodel the remaining two units. The board ~lenied his r~quest,' exPlaining that the building lost its nonconforming stares. The board said Chioffi'S proposal did not comply with the current zoning requirements. Chioffi asked a court to review the board's decision. The court refused but Was then ordered by a higher court to hold a trial..In 1990, the trial court granted Chioffi a variance to reconstruct the building as a duplex. After Chioffi got'the Variance, the board issued him a permit, · Chioffi sued the city, claiming he was. deprived Of the use of his property between the board's initial denial of .the permit and the later granting of the Permit. He said the permit process violated the Fifth Amendment because it was a regulatory taking for public use. He requested $2001000 .in lost· rent, increased :cost of construction, miscellaneous, costs and attorney's fees. - Both Chioffi and the city asked for judgment without a trial. The cour~ granted !the city j.udgment.. Chioffi appealed. He specifically challenged the provision of the ordinance ~that prohibited restoration of a nonconforming use after it had been abandoned }for one year. He said the taking made his proposal "economically unfeasible," and that the ordinance denied him all economically beneficial use of his property. DECISION: Affirmed. , The permit process was not a taking. The ordinance's provisions advanced a ~legitimate governmental interest that did not deny Chioffi all economically ben~ eficiat use of his property. - A taking couldn't begin to occur until after the court issued it~ ruling on Chioffi'S variance request. Then, after it were determined how much economic benefit Chioffi could derive from his land, Chioffi might be able to claim a tak- : ing. Before a final decision, any delay in getting zoning approval was simply "one of the incidents of ownership." Contrary to Chioffi's claim, the provision prohibiting restoration of noncon- forming 'uses after one year was not unconstitutional, Nonconforming uses were inconsistent'with the current Zoning laws, so the city was entitled to discou~, age their c~ontinuation.'For'this cas~ in particular, the board's initial permit denial advanced a legitimate govemmehtal interest: It prevented Chioffi from building