In re 204 N. Ave. NOV, No. 2018-340

Docket NºNo. 2018-340
Citation2019 VT 52
Case DateAugust 30, 2019
CourtUnited States State Supreme Court of Vermont

2019 VT 52

In re 204 North Avenue NOV (Pierre Gingue, Appellant)

No. 2018-340

Supreme Court of Vermont

April Term, 2019
August 30, 2019


NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas S. Durkin, J.

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

Kimberlee J. Sturtevant, Assistant City Attorney, Burlington, for Appellee.

Liam L. Murphy of MSK Attorneys, Burlington, for Amici Curiae Handy Investment Group, LLP and J & S, LLC.

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

¶ 1. REIBER, C.J. Property owner Pierre Gingue appeals the trial court's decision that a Notice of Violation (NOV) issued by the City of Burlington against property owner is not barred by the applicable statute of limitations, 24 V.S.A. § 4454(a). Based on the plain language of the statute, we hold that the statute of limitations does bar the NOV and reverse the trial court's decision.

¶ 2. The following facts are undisputed. Sam Conant owned 204 North Avenue from 1979 to 2002, prior to the current property owner. The City assessed the property as a duplex in 1985. Conant converted the structure on the property from a duplex to a triplex in 1992 and began

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renting its three units in 1993. He obtained a building permit prior to construction, but he never obtained the required certificate of occupancy.1 In October 1993, City assessors inspected the property and found that the building contained three units. Property owner purchased 204 North Avenue from Conant in 2002 and continues to rent out the three apartments.2 The City issued an NOV to property owner pursuant to 24 V.S.A. § 4551 in July 2017 for "a change of use from a duplex to a triplex without zoning approval," which the City stated was in violation of the City's Comprehensive Development Ordinance. Property owner does not dispute that the property is in violation of the ordinance.3

¶ 3. Property owner appealed the NOV to the Burlington Development Review Board, which denied his request, and then appealed again to the Environmental Division of the Superior Court. He and the City filed cross-motions for summary judgment to determine whether the applicable statute of limitations, 24 V.S.A. § 4454(a), barred the NOV. The Environmental Division granted the City's cross-motion for summary judgment and denied property owner's motion. In keeping with a longstanding Environmental Division interpretation of § 4454(a), the court distinguished between "use" and structural violations and determined the "change of use from a duplex to a triplex [was] a use violation" and "use violations . . . are not time-barred by the statute of limitations." See In re Budget Inn NOV, No. 50-4-13 Vtec, 2013 WL 6570739, at *3 (Vt. Super. Ct. Envtl. Div. Nov. 19, 2013), https://www.vermontjudiciary.org/sites/default/files

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/documents/Budget%20Inn%20NOV%20%2050-4-13%20Vtec.pdf [https://perma.cc/B94U-JPNH] (holding § 4454(a) "does not operate as an absolute bar to long-standing use violations because 'use violations are analyzed as continuing or recurring violations' " (quoting City of Burlington v. Richardson, No. 188-10-03 Vtec, 2006 WL 4088224 (Vt. Envtl. Ct. June 27, 2006) https://www.vermontjudiciary.org/sites/default/files/documents/03-188z%20BurlRichardson%20sjo.pdf [https://perma.cc/5PC2-KLPS])). Property owner timely appeals.

¶ 4. On appeal, the parties do not dispute the material facts, including whether the violation here was a use violation. Rather, they dispute whether, as a matter of law, § 4454(a) bars the City from issuing an NOV against property owner for that violation. "This Court reviews summary judgment rulings de novo, applying the same standard as the trial...

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21 practice notes
  • In re Mountain Top Inn & Resort, No. 19-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...Standard of Review ¶ 18. This Court reviews summary-judgment decisions from the Environmental Division de novo. In re 204 N. Ave. NOV, 2019 VT 52, ¶ 4, 210 Vt. ––––, 218 A.3d 24. We do so "applying the same standard as the environmental court; hence, we will uphold a decision granting summa......
  • In re Mountain Top Inn & Resort, No. 2019-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...Standard of Review ¶ 18. This Court reviews summary-judgment decisions from the Environmental Division de novo. In re 204 N. Ave. NOV, 2019 VT 52, ¶ 4, ___ Vt. ___, 218 A.3d 24. We do so "applying the same standard as the environmental court; hence, we will uphold a decision granting summar......
  • Civetti v. Turner, No. 19-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 3, 2020
    ...can be imposed against the municipality.¶ 39. The majority has rewritten § 901(a) rather than construing it. See In re 204 N. Ave. NOV, 2019 VT 52, ¶ 6, ––– Vt. ––––, 218 A.3d 24 ("In general, we will not read something into a statute that is not there unless it is necessary to make the sta......
  • Civetti v. Turner, No. 2019-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 3, 2020
    ...can be imposed against the municipality. ¶ 39. The majority has rewritten § 901(a) rather than construing it. See In re 204 N. Ave. NOV, 2019 VT 52, ¶ 6, ___ Vt. ___, 218 A.3d 24 ("In general, we will not read something into a statute that is not there unless it is necessary to make the sta......
  • Request a trial to view additional results
21 cases
  • In re Mountain Top Inn & Resort, No. 19-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...Standard of Review ¶ 18. This Court reviews summary-judgment decisions from the Environmental Division de novo. In re 204 N. Ave. NOV, 2019 VT 52, ¶ 4, 210 Vt. ––––, 218 A.3d 24. We do so "applying the same standard as the environmental court; hence, we will uphold a decision granting summa......
  • In re Mountain Top Inn & Resort, No. 2019-082
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 24, 2020
    ...Standard of Review ¶ 18. This Court reviews summary-judgment decisions from the Environmental Division de novo. In re 204 N. Ave. NOV, 2019 VT 52, ¶ 4, ___ Vt. ___, 218 A.3d 24. We do so "applying the same standard as the environmental court; hence, we will uphold a decision granting summar......
  • Civetti v. Turner, No. 19-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 3, 2020
    ...can be imposed against the municipality.¶ 39. The majority has rewritten § 901(a) rather than construing it. See In re 204 N. Ave. NOV, 2019 VT 52, ¶ 6, ––– Vt. ––––, 218 A.3d 24 ("In general, we will not read something into a statute that is not there unless it is necessary to make the sta......
  • Civetti v. Turner, No. 2019-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 3, 2020
    ...can be imposed against the municipality. ¶ 39. The majority has rewritten § 901(a) rather than construing it. See In re 204 N. Ave. NOV, 2019 VT 52, ¶ 6, ___ Vt. ___, 218 A.3d 24 ("In general, we will not read something into a statute that is not there unless it is necessary to make the sta......
  • Request a trial to view additional results

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