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Property Owner Entitled to Rely on Zoning Administrator Advice

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Former Counsel
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By:  Kevin J. Parker

In the recent case of In Re Langlois/Novicki Variance Denial, 175 A.3d 1222, 2017 VT 76 (2017), the Vermont court addressed the question of whether a property owner could enforce – by equitable estoppel principles – a representation by a town zoning administrator that no permit or variance was needed for the property owner’s proposed construction.  In that case, a landowner wanted to add a pergola to an existing concrete patio on his land.  During a social visit at the property, the property owner asked the town zoning administrator if he needed a permit.  The town zoning administrator told the property owner that no permit was needed.  The property owner thereafter showed the zoning administrator a sketch of the planned construction, and again asked if a permit was required.  The town zoning administrator looked at the sketch and repeated his prior advice that no permit was needed.  The property owner then spent $33,000 to build the pergola.  After incurring the expense, the property owner was advised that the structure violated zoning regulations.  The property owner requested a variance, which the zoning board denied.  The Court held that the town was estopped from requiring removal of the pergola.

In reaching this conclusion, the Court acknowledged that the doctrine of estoppel must be applied with great caution when the party against whom estoppel is sought is the government. When seeking to apply estoppel against the government, the Court added an additional requirement to the traditional elements of estoppel, namely:  the party asserting estoppel against the government must also demonstrate that the injustice that would result from denying estoppel outweighs the negative impact on public policy that would result from applying estoppel.