In re 204 North Avenue NOV (Pierre Gingue, Appellant)
218 A.3d 24
Vt.2019Background
- Owner Conant converted 204 North Avenue from a duplex (assessed 1985) to a triplex in 1992, rented three units beginning in 1993, obtained a building permit but never a certificate of occupancy.
- City assessors inspected in 1993 and noted three units; Conant sold the property in 2002; the current owner continues to rent the three units.
- In July 2017 the City issued a Notice of Violation (NOV) under 24 V.S.A. § 4451 for changing use from duplex to triplex without zoning approval; owner does not dispute the violation.
- Owner appealed to the Development Review Board and then to the Environmental Division; cross-motions for summary judgment addressed whether the 15-year statute of limitations in 24 V.S.A. § 4454(a) barred the NOV.
- The Environmental Division followed its precedent distinguishing "use" vs. structural violations and held use violations are continuing and not time-barred; it granted the City summary judgment.
- The Supreme Court reviewed statutory interpretation de novo to determine whether § 4454(a)’s plain language bars enforcement of long-standing use violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 24 V.S.A. § 4454(a) bars the City from issuing an NOV for a long-standing use violation first occurring more than 15 years earlier | The statute of limitations bars enforcement after 15 years from when the violation first occurred | Use violations are continuing/recurring and therefore not subject to the 15-year bar | The statute’s plain language covers "failure to obtain any required municipal land use permit," including use violations; § 4454(a) bars the NOV |
Key Cases Cited
- Bianchi v. Lorenz, 701 A.2d 1037 (Vt. 1997) (zoning violation can encumber title; legislative response motivated limitations change)
- Pollander, 706 A.2d 1359 (Vt. 1997) (statutory interpretation must consider legislative purpose)
- McMurphy v. State, 757 A.2d 1043 (Vt. 2000) (statutory language should not be treated as surplusage)
- Weale v. Lund, 904 A.2d 1191 (Vt. 2006) (court will not read into a statute what is not there)
- Therrien, 38 A.3d 1129 (Vt. 2011) (statutory interpretation review without deference)
- Flint v. Dep’t of Labor, 177 A.3d 1080 (Vt. 2017) (begin statutory interpretation with plain language)