In re Burns 12 Weston St. NOV, 2021-131

Docket Nº2021-131
Citation2022 VT 37
Case DateAugust 19, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 37

In re Burns 12 Weston Street NOV (Neighbors, Appellants)

No. 2021-131

Supreme Court of Vermont

August 19, 2022

On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

Michael Long, Pro Se and Representative, Burlington, for Neighbors, Appellants.

Brian P. Hehir of Hehir Law Office, PLLC, Burlington, for Appellees.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Grearson, Supr. J. (Ret.), Specially Assigned


¶ 1. Neighbors appeal an Environmental Division order vacating a municipal notice of violation (NOV) alleging owners were using a two-unit building as an unpermitted duplex. The Environmental Division concluded that a 2006 amendment to the City of Burlington's zoning ordinance did not automatically reclassify the status or use of the building from a duplex to a single-family home with an accessory dwelling. It also held that a 2014 interior reconfiguration by owners did not change the property's use, and the zoning statute of limitations, 24 V.S.A. § 4454(a), barred the City's enforcement action in any case. We affirm.


I. Background

¶ 2. The following material facts are undisputed. A residential property located at 12 Weston Street in the City of Burlington was constructed in 1940 as a single-family home. The previous owners, the Gadues, acquired the property in 1969. Sometime before 1969 the building had been converted into a four-unit apartment building. From 1969 to 1977, the Gadues rented each of the building's four units to tenants. In 1977, they converted three units into one residence and moved in. They continued to rent the fourth unit on the third floor to a tenant until 2014. The Gadues never possessed a zoning permit for either a four-unit apartment building or reconfiguring the building into two units in 1977.

¶ 3. Prior to 2006, the property was best characterized as an unpermitted duplex. The City, despite inspections in 1987, 1991, and 2005, never prosecuted this unpermitted use from 1977 to 2006. In 2006, the City amended its Comprehensive Development Ordinance (CDO). The relevant amendment provided that "[w]here there is a primary structure on a lot which exists as an owner-occupied single[-]family dwelling, one accessory dwelling unit, that is located within or appurtenant to such single-family dwelling, shall be allowed as a permitted use." The amendment further required that any accessory dwelling unit must meet several additional criteria, including the number of inhabitants per unit, maximum floor area, setback requirements, and maintaining off-street parking spaces. Elsewhere, the CDO provided that, "[f]or purposes of this ordinance a single-family detached structure with an accessory apartment shall not be considered a duplex." CDO art. 13, [].[1]


¶ 4. In early 2014, owners Charles and Cynthia Burns signed a purchase-and-sale agreement with Elizabeth Gadue. Sometime thereafter, owners began reconstructing the interior. A neighbor, who is not a party in the present appeal, filed a complaint with the City's Code Enforcement Office alleging that owners were reconstructing the building into a duplex without a required permit. See In re Burns Two-Unit Residential Bldg., 2016 VT 63, ¶ 3, 202 Vt. 234, 148 A.3d 568. In May 2014, a "zoning specialist" in the Code Enforcement Office responded by letter to the complainant stating that after an investigation, no permit was required for the reconstruction because the building had been "used as a duplex from at least 1969" and that uses that preceded the adoption of the City's 1973 zoning ordinance were presumed valid because of the loss of records of that time.

¶ 5. Owners purchased the property in early June 2014. Around the same time, owners applied for a "Certificate of Non-Applicability of Zoning Permit Requirements" with the City's Department of Planning and Zoning. The Department approved owners' application. Neighbors appealed the City's approval. However, the Environmental Division concluded that neighbors' suit was barred because they did not timely appeal the zoning specialist's May 2014 determination. We reversed that decision, holding that neighbors were not precluded from appealing the City's non-applicability determination under 24 V.S.A. § 4472(d), because the statute applies only to zoning-administrator decisions, not decisions by zoning specialists. In re Burns, 2016 VT 63, ¶ 16.

¶ 6. On remand, owners voluntarily withdrew their application, and the Environmental Division dismissed the matter with prejudice. The dismissal order read in part, "the nature of the dismissal with prejudice in this matter is limited to preventing the Burnses from re-applying for the Certificate of Non-Applicability which is specifically at issue in this appeal. This order does not affect the status or use of the property which is the subject of this appeal."

¶ 7. At this point, we arrive at the events directly related to the present dispute. In March 2018, the City zoning administrator issued an NOV to owners, alleging that the building was an


unpermitted duplex in violation of the CDO. Owners appealed to the Development Review Board and neighbors again intervened. This time owners raised two claims. First, the City was estopped from enforcing the violation because it had deemed the duplex use lawful in 2014 by virtue of the zoning specialist's letter. Second, Vermont's statute of limitations for zoning violations, 24 V.S.A. § 4454(a), barred the enforcement action because more than fifteen years had elapsed since the unpermitted duplex use began. Owners did not challenge the NOV's findings that the building's use had changed several times after it was first constructed in 1940, and the City had never issued a zoning permit for any of those changes. The Board denied owners' claims, and owners appealed to the Environmental Division.

¶ 8. Owners filed a summary judgment motion on their claim that the City was estopped from pursuing the enforcement action after it had previously "confirmed, ratified and constructively approved the duplex use" in 2014. Neighbors cross-moved for summary judgment arguing that owners were barred from litigating their claims under the doctrine of claim preclusion. The Environmental Division denied both motions. The court found that material facts were in dispute as to owners' equitable estoppel claim. It also concluded that its order dismissing owners' certificate of non-applicability expressly did not apply to the building's "status and use." Therefore, owners were not precluded from raising the defense for the first time in this action because the final judgment in the previous action did not apply to enforcement actions relating to use violations.

¶ 9. Both parties filed subsequent summary judgment motions after this Court decided In re 204 North Avenue NOV, 2019 VT 52, 210 Vt. 572, 218 A.3d 24. In 204 North Avenue, we concluded that the statute of limitations for zoning violations, 24 V.S.A. § 4544(a), applies equally to "use" and "structural" violations. Id. ¶¶ 6-7. Owners argued that under 204 North Avenue, the NOV was unenforceable because it was issued forty-one years after the unpermitted duplex use began in 1977, long after the fifteen-year statute of limitations had run. Neighbors maintained that


the 2006 amendment to the CDO automatically changed the building's use from an illegal duplex to an unpermitted owner-occupied dwelling with an accessory dwelling unit, and that the 2014 reconstruction was therefore a violation of the CDO. The thrust of neighbors' position was that after 2006, the City could no longer prosecute the building as an illegal duplex because it was no longer a duplex at all. Instead, the property's status had changed to an owner-occupied residence with an accessory dwelling unit. As a result, they maintained, the 2018 NOV was issued well within the fifteen-year statute of limitations, given owners' 2014 reconstruction.

¶ 10. The Environmental Division granted owners' motion. It concluded that "pursuant to 24 V.S.A. § 4454(a) and the precedent of 204 North Ave[nue], the City was barred from prosecuting the [the illegal duplex use] because the [fifteen]-year statute of limitations had run." The court reasoned that the 2006 CDO amendment did not change the building's use from a duplex to a single-family residence with an accessory apartment because "there was no demonstration of compliance with the applicable use regulations or any change in use by the Gadues." The Environmental Division explained that it could find no reason preventing the City from prosecuting the illegal use before and after the 2006 CDO amendment. The court found that the City had inspected the property for various reasons on different occasions and had never found it to be anything other than either a multiple-unit dwelling or a duplex. Moreover, the court concluded that the 2014 reconstruction did not "materially" change the property's use or status. The building was a duplex before the reconstruction and remained a duplex afterward. This appeal followed.

II. Discussion

A. Standard of Review

¶ 11. We review the summary judgment decisions of the Environmental Division de novo. West v. N. Branch Fire Dist. #1, 2021 VT 44, ¶ 13, ___Vt.___, 257 A.3d 856. To prevail, the moving party must demonstrate that there is no genuine dispute of any material fact and that it


is entitled to judgment as a matter of law. V.R.C.P. 56(a). We give the nonmoving party "the benefit of all reasonable doubts and inferences." Gauthier v. Keurig Green Mtn., Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129 A.3d 108 (quotation omitted).

B. Claim Preclusion

¶ 12. We begin with neighbors' argument that claim preclusion, also called res judicata,[2]precludes owners' statute-of-limitations claim because owners...

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