In re 204 North Avenue NOV Pierre Gingue, Appellant
Appeal from Superior Court, Environmental Division Thomas S.
L. Franco, Jr., Burlington, for Appellant.
Kimberlee J. Sturtevant, Assistant City Attorney, Burlington,
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,
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
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. 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. 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
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://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)
sjo.pdf [https://perma.cc/5PC2-KLPS])). Property owner timely
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
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 . . . .
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 ...