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In re 204 North Avenue NOV

Supreme Court of Vermont

August 30, 2019

In re 204 North Avenue NOV Pierre Gingue, Appellant

          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.

          REIBER, C.J.

         ¶ 1. 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 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 /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%20 sjo.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 court." Jadallah v. Town of Fairfax, 2018 VT 34, ¶ 14, ___ Vt.___, 186 A.3d 1111. "The court shall grant summary judgment 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). "[W]e regard as true all allegations of the nonmoving party supported by admissible evidence and give the nonmoving party the benefit of all reasonable doubts and inferences." Jadallah, 2018 VT 34, ¶ 14 (quotation omitted). We review statutory interpretation without deference to the trial court. State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129.

         ¶ 5. Our goal in interpreting a statute is "to give effect to the intent of the Legislature." Id. "In determining that intent, we begin by looking to the plain language of the statute." Flint v. Dep't of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. "If the plain language is clear and unambiguous, we enforce the statute according to its terms." Therrien, 2011 VT 120, ¶ 9. "As a corollary of this principle, we resort to other tools of statutory construction-such as legislative history-only if the plain language of the statute is unclear or ambiguous." Flint, 2017 VT 89, ¶ 5.

         ¶ 6. Section 4544(a) states:

An 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 under section 1974a, 4451, or 4452 of this title against the alleged offender if the action, injunction, or other enforcement proceeding is instituted within 15 years from the date the alleged violation first occurred and not thereafter . . . .

         The statute's plain language does not distinguish between "use" and structural violations. It clearly applies to "the failure to obtain . . . any required municipal land use permit," with no exception for use violations. Id. (emphasis added). "In general, we will not read something into a statute that is not there unless it is necessary to make the statute ...


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