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In re Purvis Nonconforming Use

Supreme Court of Vermont

August 30, 2019

In re Purvis Nonconforming Use Luke Purvis, Appellant

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

          Hans G. Huessy of MSK Attorneys, Burlington, for Appellant.

          Kimberlee J. Sturtevant and Nicholas J. Lopez, City Attorneys, Burlington, for Appellee City of Burlington.

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

          ROBINSON, J.

         ¶ 1. Luke Purvis appeals the Environmental Division's denial of his motion for relief under Vermont Rule of Civil Procedure 60(b)(1) and (2). He argues that his motion is not time-barred because the order from which he seeks relief was not actually a final judgment entered more than a year before he filed his motion. We affirm.

         ¶ 2. In September 2014, the City of Burlington Code Enforcement Office notified Purvis that it had received a complaint regarding unpermitted expansion of the parking area on his property. It ordered Purvis to restore the area to green space.

         ¶ 3. Purvis appealed to the Development Review Board, arguing that the expansion of the parking area was an unenforceable permit violation under 24 V.S.A. § 4454, as the expansion first occurred over fifteen years ago. After reviewing various affidavits, drawings, photos, and other exhibits submitted by the City and Purvis, the Board found no violation because it concluded that parking in the area had stopped. Because it found that parking in the area had ceased for a period in excess of sixty days, it held that Purvis had lost the benefit of the fifteen-year limitation on enforcement actions under § 4454 and any potential claim to reestablish the right to expanded parking.

         ¶ 4. Purvis appealed that determination to the Environmental Division in May of 2015. In August 2016, the parties entered into a settlement agreement.[1] That agreement provided that the parties would "dismiss the Lawsuit WITHOUT prejudice; all arguments and contentions of the Parties are preserved in the event of subsequent litigation concerning permits for and/or alleged violations or non-conformance of the Purvis property." It also provided that "[t]he City and Purvis will meet in another mediation no later than January 15, 2017, to attempt to resolve all disputes related to the compliance of the Purvis property with the City's zoning ordinance."

         ¶ 5. The parties also filed a Stipulated Order, which the court entered on September 26, 2016, dismissing the matter "WITHOUT PREJUDICE to the rights of either [Purvis] or the City to request that the Court reopen [it], pursuant to the terms of the Agreement." The Order said that if either party moved to reopen the matter, "the Court shall grant such motion with no need to file a new appeal or pay a new appeal filing fee; the Docket Number shall remain the same and the legal issues to be addressed shall be controlled by the Statement of Questions filed in this matter." Finally, the Order gave the parties "until August 1, 2017 to file a Motion to Re-open, or a Motion to extend the period for filing such a Motion. If no such filing is made, the underlying Burlington Development Review Board decision shall become enforceable and the appeal period for said decision shall be deemed to have expired."

         ¶ 6. The parties never engaged in the mediation contemplated in the settlement agreement. No party filed a motion to reopen or extend before August 1, 2017.

         ¶ 7. In March of 2018, Purvis moved for relief from the Stipulated Order pursuant to Vermont Rule of Civil Procedure 60(b)(6), arguing that he should be granted relief because he had been represented by conflicted counsel at the time he entered into the Settlement Agreement and submitted the Stipulated Order, and because he had relied on the City's expressed willingness to mediate after the August 2017 deadline. He requested "that the Court exercise its equitable powers and extend the August 1, 2017 deadline [for filing a motion to extend the time to reopen the matter] to August 1, 2018." On June 8, 2018, he filed a response to the City's opposition to his motion in which he argued that the discovery of new evidence provided further grounds for extending the August deadline. He claimed that the City had negligently failed to produce a 1968 zoning permit obtained by his predecessor-in-interest to do work on cars on the property. He said the City's failure to produce this permit had led the Development Review Board to conclude there were no zoning permits for the property. He "concede[d] that the existence of this permit does not conclusively establish that the parking on the . . . lot is a permitted use," but argued "it does provide a basis on which one could reasonably conclude that it was."

         ¶ 8. The Environmental Division held that the motion for relief was unwarranted because Purvis did not file a motion to reopen or extend the time for such a motion before the August 1, 2017 deadline contemplated in the Stipulated Order. The court ruled that Purvis's Rule 60(b)(6) motion was not filed within a reasonable time, and to the extent that he was making a Rule 60(b)(2) or (3) motion based on newly discovered evidence and negligence by the City, it was untimely because it was filed over a year after the court entered the Stipulated Order in September 2016.

         ¶ 9. Purvis moved to reconsider, arguing that because the Stipulated Order allowed the parties to reopen the case until August 1, 2017, the Order did not become final until that date, and he should be granted relief under Rule 60(b)(1) and (2).[2] The Environmental Division also denied that motion, holding that Purvis's Rule 60(b)(1) and (2) motion was untimely because the August 2017 deadline in the Stipulated Order was ...


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