In re 15-17 Weston St. NOV

Decision Date29 October 2021
Docket NumberNo. 21-040,21-040
Citation266 A.3d 770
Parties IN RE 15-17 WESTON STREET NOV (Keith S. Aaron, Weston Street Trust, Appellant)
CourtVermont Supreme Court

John L. Franco, Jr., Burlington, for Appellant.

Kimberlee J. Sturtevant, Office of City Attorney & Corporation Counsel, Burlington, for Appellee City of Burlington.

Michael and Caryn Long, Burlington, Pro Ses, Interested Parties.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

ROBINSON, J.

¶ 1. Appellants Keith Aaron and Weston Street Trust1 appeal the trial court's summary judgment upholding a Notice of Violation (NOV) concerning the Trust's property on the basis that it was occupied by more than four unrelated adults in violation of applicable zoning restrictions. We conclude that the City is not precluded from enforcing the zoning violation on account of 24 V.S.A. § 4454 because a valid municipal ordinance establishes that if an unlawful use is discontinued for more than sixty days, resumption of the unlawful use constitutes a new violation, and we reject the Trust's alternate argument that its use was a lawful preexisting nonconforming use based on the preclusive effect of permitting proceedings in 1972 and 1994. We thus affirm.

¶ 2. The property at issue is an individual unit (unit #1) within a three-unit building (the property) located in the City of Burlington's Residential Low Density Zoning District (RL District). In October 2018, the City issued a NOV to the Trust, alleging that unit #1 was in violation of § 5.3.2 of the Burlington Comprehensive Development Ordinance (CDO), because more than four unrelated adults were occupying the unit. The Burlington Development Review Board upheld the NOV, and the Trust appealed to the Environmental Division of the Superior Court. Two neighbors intervened in support of the NOV. In the context of cross-motions for summary judgment, the Trust did not deny that more than four unrelated adults lived in unit #1, and did not contest that the applicable zoning ordinance prohibited such a use in the RL District. The Trust argued that the violation is unenforceable because it first occurred more than fifteen years ago or, in the alternative, that this enforcement action is barred by claim preclusion. The Environmental Division granted summary judgment to the City, upholding the NOV. The Trust appealed.

I. Undisputed Facts

¶ 3. The undisputed facts bearing on these arguments are as follows.2 In 1972, the owner of the property applied for and received an exemption for an "apartment house" so the property could continue operating as a three-unit apartment house in a residential district. "Apartment house" was defined as "a building or portion thereof used or designed to be used as a residence for three or more families living as units independently of one another." At the time, "family" was defined as "one or more persons occupying a dwelling unit and living as a single nonprofit housekeeping unit, but not including group quarters such as dormitories, sororities, fraternities, convents, and communes." The exemption granted to allow the owners to operate the property as an apartment house did not recite who could lawfully occupy the individual dwelling units at the property. In 1994, the owner of the property applied for conditional use approval for a fourth dwelling unit. The zoning board denied the application.

¶ 4. Keith S. Aaron acquired the property in December 1995 and transferred it to the Trust in October 2000.

¶ 5. The Trust began leasing unit #1 in October 2000. Since that time, unit #1 has been leased to and occupied by five unrelated adults, mostly college students. There have been two interruptions of unit #1's occupancy by five individuals during that period. First, during the summer of 2013, only two tenants occupied unit #1 until mid-August. Second, after all the unit #1 tenants abandoned the lease and left the property in January 2014, unit #1 remained unoccupied until June 2014. All parties agree that each of these interruptions in occupancy exceeded sixty days.

¶ 6. Effective November 2000, the applicable zoning ordinance was amended to add language defining family as "no more than four unrelated adults and their minor children" unless a property owner secured from the City "functional family unit" designation as defined by the ordinance. At no time during the Trust's ownership did the Trust request or obtain a "functional family unit" designation from the City with respect to the occupants of unit #1.

II. Analysis

¶ 7. On appeal, the Trust argues that because the first violation of the use restriction occurred more than fifteen years before the NOV, the fifteen-year statute of limitations provided by 24 V.S.A. § 4454(a) has run. The Trust contends that the City's ordinance limiting the safe harbor provided by the statute when a violation is discontinued for more than sixty days is unenforceable because the City has no authority to pass such an ordinance. Alternatively, the Trust argues that the City is precluded from pursuing this NOV because the lawfulness of the current use of unit #1 was established by operation of claim preclusion as a result of the 1972 and 1994 permitting proceedings. The Trust contends that because of this preclusion, the present use of unit #1 is a lawful, preexisting nonconforming use.

¶ 8. We review summary judgment rulings without deference to the trial court. Tanzer v. MyWebGrocer, Inc., 2018 VT 124, ¶ 17, 209 Vt. 244, 203 A.3d 1186. Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a).

A. Discontinuance of the Zoning Violations

¶ 9. The Trust argues that the City cannot enforce the ordinance prohibiting more than four unrelated adults from occupying a unit in the RL District because the use violation first arose more than fifteen years before the City issued the NOV. It points to 24 V.S.A. § 4454(a), which provides that enforcement proceedings "relating to the failure to obtain or comply with the terms and conditions of any required municipal land use permit" must be instituted within fifteen years from the date the alleged violation first occurred, and our decision in In re 204 North Avenue NOV, which held that this statutory limitation on enforcement actions applies to use violations. 2019 VT 52, ¶ 7, 210 Vt. 572, 218 A.3d 24. The Trust does not contest that § 5.3.2 of Burlington's CDO purports to remove from this statutory safe harbor violations that have resumed after a discontinuance of more than sixty days, and that if valid, the ordinance would defeat the Trust's reliance on § 4454(a). Rather, the Trust contends that the ordinance is invalid because the City had no authority to enact such an ordinance absent express legislative authorization; the Legislature has not adopted any standards to guide municipalities with respect to discontinuances of zoning violations; and the ordinance conflicts with § 4454(a) as we interpreted that provision in our 204 North Avenue NOV decision. Therefore, the Trust contends that it is entitled to the benefit of § 4454(a) and the City cannot enforce the zoning violation.

¶ 10. There is no real dispute that absent a valid municipal ordinance impacting its application in this case, the fifteen-year limitation in 24 V.S.A. § 4454(a) would preclude the City's enforcement action, and that if CDO § 5.3.2 is valid, then the Trust cannot take advantage of the fifteen-year statute of limitations because the challenged use was discontinued for more than sixty days within the fifteen years prior to the NOV. We conclude that the City is authorized to adopt § 5.3.2 pursuant to its general authority to regulate zoning; that the Legislature's enactment of a specific statute relating to discontinuances of preexisting nonconforming uses does not suggest that the Legislature intended to restrict municipalities from adopting provisions relating to discontinuances of zoning violations; that the Legislature's delegation of authority to municipalities to adopt ordinances like § 5.3.2 does not fail for lack of guiding standards; that § 5.3.2 does not conflict with our application of § 4454(a) in the 204 North Avenue NOV case; and that § 5.3.2 is consistent with and promotes the goals of zoning. For these reasons, we conclude that § 5.3.2 is valid and thus § 4454(a) does not bar the City from pursuing the NOV at issue.

¶ 11. Section 4454(a) of Title 24 provides that "[a]n action, injunction, or other enforcement proceeding relating to the failure to obtain or comply with the terms and conditions of any required municipal land use permit may be instituted ... within 15 years from the date the alleged violation first occurred and not thereafter." In 204 North Avenue NOV we rejected the contention that this statutory restriction applies only to structural violations as opposed to "use" violations. 2019 VT 52, ¶ 6, 210 Vt. 572, 218 A.3d 24. We based our conclusion on the plain language of the statute, which does not distinguish between structural and use violations; the statute's reference to the date an alleged violation "first occurred," which was consistent with the statute's application to ongoing use violations; and the purpose of the statute, which was to "streamline title searches and increase confidence in property ownership by limiting the time to enforce all zoning violations." Id. ¶¶ 6-8. Accordingly, because the parties in this case stipulated that since October 2000 unit #1 has been leased to and occupied by five unrelated adults, at the time of the 2018 NOV, § 4454(a) precluded the City from prosecuting the ongoing zoning violation unless one or both of the periods of discontinuance of the violation in 2013 and 2014 restarted the limitations clock.

¶ 12. The Trust concedes, and we agree, that if CDO § 5.3.2 is valid, it did effectively restart the clock, and § 4454(a) does not pose an obstacle to the City's...

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2 cases
  • Sutton v. Purzycki
    • United States
    • Vermont Supreme Court
    • 10 Noviembre 2022
    ... ... insufficient to establish that they are part of the same ... transaction or series of transactions. See In re 15-17 ... Weston Street NOV, 2021 VT 85, ¶ 25, ___Vt.___, 266 ... A.3d 770 (concluding that claim preclusion did not bar ... city's enforcement ... ...
  • In re Burns 12 Weston Street NOV
    • United States
    • Vermont Supreme Court
    • 19 Agosto 2022
    ...must be one "that was or should have been litigated in the prior proceeding." In re 15-17 Weston Street NOV, 2021 VT 85, ¶ 23, ––– Vt. ––––, 266 A.3d 770 (quotation omitted). Claim preclusion applies in zoning cases just "as in other areas of the law." In re McGrew, 2009 VT 44, ¶ 10, 186 Vt......

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