City of St. Albans v. Hayford - Decision on Motion ( 2021 )

VERMONT SUPERIOR Environmental Division
COURT
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
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In re Benoit Conversion Application │ Docket No. 143-7-08 Vtec
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In re Appeal of Benoit & Kane │ Docket No. 148-8-04 Vtec
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City of St. Albans │
v. │ Docket No. 126-7-04 Vtec
Hayford, et. al. │
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DECISION ON MOTION TO RECONSIDER
This matter originally came to this Court on a stipulated motion for relief from judgment,
filed by the Town of Saint Albans and Deborah and Gregory Benoit (collectively “the parties.”).
The parties sought to modify a 2007 decision, City of St. Albans v. Hayford & Benoit, No. 126-7-
04 Vtec, slip op. (Vt. Envtl. Ct. Feb. 17, 2007) (Wright, J.) (“Hayford I”), affirmed by the Vermont
Supreme Court in 2008, City of St. Albans v. Hayford, 2008 VT 36, 183 Vt. 596 (2008) (“Hayford
II”) that enjoined the use of the Benoits’ property for more residential units than the zoning laws
permitted at the time. In Hayford I, the Benoits and their co-defendants from whom they bought
the property, the Hayfords, argued that the City’s enforcement action was barred by the relevant
statute of limitations. While both the Environmental Court and the Supreme Court held against
them on this legal issue, they revived this argument through their motion for relief. They claimed
that allegedly relevant new law established by the Supreme Court in In re 204 North Avenue NOV,
2019 VT 52, 210 Vt. 572 (“204 North Ave”) warranted relief from the earlier judgment.
We first note that our Supreme Court has consistently directed that Rule 60(b) should be
“applied guardedly and only in extraordinary circumstances, . . . [given] the important interest in
finality of judgments.” Miller v. Miller, 2008 VT 86 ¶27, 184 Vt. 464 (2008) (internal citations
omitted). Mindful of this caution and concluding that the parties misapprehended the relevance
of 204 North Ave to the decisions in Hayford I and II, we denied the original motion for relief. In
re Benoit Conversion Application, Nos. 143-7-08 Vtec, 148-8-04 Vtec, 126-7-04 Vtec, slip op. at
11 (Vt. Super. Ct. Envtl. Div. Apr. 20, 2021) (Durkin, J.). The Benoits have now moved unopposed
for relief from that order under V.R.C.P. 60(b)(1), which we construe as a motion to reconsider
since the order was not itself a final judgment and, in any event, was issued within the 28 days
prior to the motion being filed.
We remain concerned about the propriety of revisiting a fourteen-year-old judgment,
particularly on a motion to reconsider and particularly after the 2007 judgment was affirmed by
the Vermont Supreme Court. We initially expressed that concern during the initial conference
on the reopening of this matter, held on February 8, 2021, and repeated this concern in our April
2021 Entry Order addressing the parties’ Stipulated motion for relief. In re Benoit Conversion
Application, Nos. 143-7-08 Vtec, 148-8-04 Vtec, 126-7-04 Vtec, slip op. at 8 (“At a status
conference conducted on February 8, 2021, this Court directed the parties to address the Court’s
authority to modify a judgment when the trial court decision was previously affirmed by the
Vermont Supreme Court.”). Neither the parties, nor this Court, directly addressed this concern,
which may well be insurmountable. Nonetheless, so as to provide the parties with guidance on
the Court’s analysis of the presented legal issues, we move to a consideration of whether the
Benoits’ motion for reconsideration should be granted.
We first acknowledge that reconsideration is generally within a trial court’s discretion.
We therefore have reviewed the additional arguments in the Benoits’ supplemental
memorandum and motion for reconsideration closely. We conclude, however, that the Benoits
have not presented a sufficient basis for amending or reversing our April decision, and thus their
motion must be denied. However, we take this opportunity to clarify a few potential points of
confusion regarding this Court’s 2007 holdings in Hayford I and the cases leading up to it and to
elaborate upon our understanding of what the Supreme Court did—and, equally importantly, did
not—change in the interpretation of municipal zoning laws through its decision in the 204 North
Ave appeal.
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Background
Hayford I itself had a complex set of facts and a convoluted procedural history. We
surveyed both at length in our April order. However, both for convenience, and to clarify several
remaining points of understandable confusion, we review them again here: first, the history of
the property (as found in Hayford I and II); the relevant zoning laws; and the municipal
proceedings and appeals that pre-dated Hayford I. Then we review the legal conclusions in
Hayford I and in our April decision. In both instances, we review only the facts and conclusions
most pertinent to the currently pending motion.
i. History of the property and enforcement.
The Hayfords purchased the property at 53 High Street (“the property”) in 1976, when it
consisted of a main apartment building with four units and a rear building used as a print shop
and subsequently a nursery school. Hayford II, 2008 VT 36, ¶ 2. At that time, the City of St.
Albans (“the City”) had not yet adopted a zoning ordinance. In 1977, the City adopted its first
zoning ordinance, which required a zoning permit from the Zoning Administrator for any
permitted uses, and site-plan approval from the planning commission for any uses other than a
single-family or two-family residence. Id. at ¶¶ 2-3; see also 1977 City of St. Albans Zoning
Ordinance §§ 205, 401 (“1977 Ordinance”). The 1977 Ordinance made multi-family use a
permitted use in the district containing the property and established minimum lot-size and lot
area-per-unit requirements for residential properties. Hayford I, No. 126-7-04 Vtec at 3–4 (Feb.
17, 2007)
In 1986 the Hayfords converted the four residential rental units in the apartment building
to five units and in 1987 they converted the rear building from a nursery school into a sixth
residential unit. In both instances they failed to obtain a zoning permit and site-plan approval
for the changes in use. Hayford II, 2008 VT 36, ¶4.
In 1998 the City adopted its Land Development Regulations (“1998 Regulations”) that
changed the relevant standards for the property in several respects. Most notably, the 1998
Regulations made multi-family use a conditional use in the property’s zoning district and
increased the minimum area per-unit requirements for residential uses. Under these new area-
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per-unit, or density requirements, the property could legally support only four residential units.
Hayford I, No. 126-7-04 Vtec at 2, 5-7 (Feb. 12, 2007).
Soon thereafter in 1998, the Hayfords applied to the Zoning Administrator for a Certificate
of Occupancy for the six units, which was denied for failure to comply with the zoning
regulations.1 This action was not timely appealed and therefore became final. Id. at 7; City of St.
Albans v. Alan Hayford et al., No. 161-9-03 Vtec, slip op. at 3 (Vt. Envtl. Ct. June 1, 2004). The
Hayfords then applied to the City’s Zoning Board of Adjustment (“ZBA”) for a variance to convert
the Property from 4 dwelling units to 6. In May of 1998, the ZBA denied the Hayfords’ request
for a variance.2 This decision was also unappealed and became final. Hayford I, No. 126-7-04
Vtec at 7 (Feb. 17, 2007).
On July 11, 2001, the Zoning Administrator issued a Notice of Violation (NOV) for the use
of six dwelling units where only four were approved. The Hayfords timely appealed this NOV to
the City’s Development Review Board (“DRB”). City of St. Albans v. Alan Hayford et al., No. 161-
9-03 Vtec at 3 (Vt. Envtl. Ct. June 1, 2004). In August 2001, the Hayfords also applied to the DRB
for a variance to use the rear building as a dwelling unit and to eliminate one of the 5 dwelling
units in the main building. The DRB upheld the ZA’s new NOV and denied the Hayfords’ variance
request. Id. The Hayfords subsequently appealed both decisions to the Environmental Court.
In 2003, the Environmental Court upheld the variance denial, holding that the ZBA’s 1998
initial denial was final and binding. Appeal of Hayford, No. 154-9-01 Vtec, slip op. at 1 (Vt. Envtl.
Ct. Mar. 6, 2003) (Meaker, J); see Hayford I, No. 126-7-04 Vtec at 8 (Feb. 17, 2007). In the same
decision, the Court also upheld the July 2001 NOV regarding the 6th residential unit in the rear
building and overturned the NOV with respect to the 5th unit in the main building, since the City
had previously granted a permit to allow the Hayfords to repair one of the apartments after a
fire in 1993. Hayford I, No. 126-7-04 Vtec at 8 (Feb. 17, 2007). This decision was not appealed
1
The Zoning Administrator denied the Certificate of Occupancy on the grounds that the Hayfords failed to gain ZBA
approval for: “(1) an expansion of a non-conforming use (due to the two principal buildings); (2) an area variance as
the property is undersized for six residential units; and (3) possible variances for site plan requirements of the
regulations, such as parking; and also due to the lack of a ‘building permit’ for the fifth unit in the main house.” City
of St. Albans v. Alan Hayford et al., No. 161-9-03 Vtec at 3 (June 1, 2004).
2
The ZBA noted that the Property “required five variances: regarding the lot area, the sideline setbacks, the rear
setback for principal buildings, landscaping around the perimeter of a parking lot, and no parking within the required
setbacks.” Id.
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and therefore became final. In violation of the Environmental Court’s 2003 decision, the
Hayfords and subsequently the Benoits continued to rent the 6th unit in the rear building. 3
In June 2003, the Zoning Administrator filed an enforcement action seeking injunctive
relief and penalties against the Hayfords, later amended to include the Benoits. That action was
transferred to the Environmental Court in September 2003, as Docket No. 161-9-03 Vtec. The
defendants moved for summary judgment, arguing that the statute of limitations at 24 V.S.A.
§ 4496 (now § 4454) barred the action. Without deciding that motion, Judge Wright held only
that the statute of limitations in § 4496 did not bar the City from pursuing its enforcement action
under 24 V.S.A. § 4470(b), which allows municipalities and interested persons to enforce final
decisions of municipal panels via complaint to the Environmental Court, but does not provide for
penalties (despite the fact that the City had filed its action under 24 V.S.A. §§ 4444 and 4445, to
which the statute of limitations at § 4496 did apply). City of St. Albans v. Alan Hayford et al., No.
161-9-03 Vtec at 4 (June 1, 2004). The decision set a status conference where the City could
decide whether it wished to amend its complaint to proceed under § 4470(b) instead of, or in
addition to, the other provisions.
This decision also includes seemingly the first appearance in Environmental Court
jurisprudence of the notion that the statute of limitations now contained at 24 V.S.A. § 4454
might not bar enforcement against continuing use violations. The decision did not definitively
state this as a rule, but rather stated in dicta, “In considering their positions in preparation for
that telephone conference, the parties may also wish to examine a distinction that may be made
between a violation due to the occurrence of construction or physical changes to a property or a
building, and a violation due to the use of property.” Id. at 5 (emphasis added) (citing cases from
other jurisdictions drawing this distinction).4 A status conference was subsequently held, at
which the parties agreed to put the case on hold. Thus, the Court never issued any further
3
The Benoits purchased the property from the Hayfords in June 2003. They continued to rent out the rear building
as a residential unit. Hayford II, 2008 VT 36, ¶ 7.
4
Despite the passage distinguishing between use and structural violations being dicta, in City of Burlington v.
Richardson, No. 188-10-03 Vtec at 12 (Vt. Envtl. Ct. June 27, 2006) (Wright, J) the Court did cite to it (albeit with a
“see” cite) when it more firmly adopted the interpretation ultimately overturned in 204 North Ave (although this
too was arguably dicta, as Richardson granted relief under § 4470(b)). We regret any confusion this citation to a
predecessor case in Hayford I may have caused.
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decision on the summary judgment motion and the parties ultimately dismissed the case by
stipulation as redundant to the enforcement action in Docket No. 126-7-04 Vtec (see below).
Immediately after the Court put the case on hold, the Benoits applied to the DRB for an
after-the-fact approval of the conversion of the rear building to residential use under Article 6 of
the St. Albans Land Development Regulations. The DRB denied their application in July 2004, and
they appealed to the Environmental Court as Docket No. 148-8-04 Vtec. Immediately after the
DRB denial, the Zoning Administrator re-filed the enforcement action with the Environmental
Court, Docket No. 126-7-04 Vtec, to add a new basis for its enforcement action under § 4470(b).
In ruling on the appeal of the DRB denial, Judge Wright held that the Land Development
Regulations allowed a non-conforming use to be altered or extended only if doing so did not
result in an additional dwelling unit or additional non-conforming use; Judge Wright therefore
concluded that the rear building could not be approved as a sixth residential unit while the fifth
unit in the main building was maintained, “as such approval would result in one additional
dwelling unit” relative to the situation that the after-the-fact conversion application sought
permission to alter. In Re: Appeal of Benoit and Kane, No. 148-08-04 Vtec, slip op. at 1 (Vt. Envtl.
Ct. Dec. 15, 2005). Judge Wright gave the appellants the opportunity to amend their application
so that it would include converting the main building back from five units to four, which would
have kept the rear building from being an “additional unit” and thus an unlawful expansion of a
nonconforming use. However, they declined to do so at that time. Id. The Court therefore
denied the appeal, although it stayed entry of judgment pending the resolution of the re-filed
enforcement case, per the directive contained in Hayford I.
ii. Hayford I
In Hayford I, the City preserved its claims brought under 24 V.S.A. §§ 4444 and 4445 (now
§§ 4451 and 4452) in City of St. Albans v Alan Hayford et al., Docket No. 161-9-03, while adding
an alternative basis for the action under 24 V.S.A. § 4470(b). Insofar as it sought penalties under
§ 4444 or to enforce a decision of the municipal panel under § 4470(b), the City relied on the final
NOV upheld in Appeal of Hayford, No. 154-9-01 (Mar. 6, 2003). The City sought an injunction
against continued use of the rear building as a dwelling unit and penalties against the Hayfords
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and Benoits. The Environmental Court made the above findings of fact and, inter alia, and the
following legal conclusions.
The Court concluded that, after the 1977 Ordinance was adopted, the property became
non-conforming in its side and rear setbacks and by having two principal buildings rather than
the allowed one. However, these nonconformities were legally allowed to continue, though not
allowed to be expanded, as pre-existing nonconforming uses. In other respects, including
minimum parking, lot-size and area per-unit requirements, the property conformed to the 1977
ordinances. Hayford I, No. 126-7-04 Vtec at 3–4 (Feb. 17, 2007).
Next, the Court concluded that the addition of the fifth unit “did not render the property
more non-conforming” for two reasons: First, multi-family dwellings were a permitted use in the
district and the fifth unit did not change the building’s use as a multi-family dwelling. Second,
the property still met the minimum requirements for parking spaces per unit and lot area per
unit. Hayford I, No. 126-7-04 Vtec at 4 (Feb. 17, 2007). Implied, though not stated, is that the
1986 conversion to five units without site-plan approval or a new permit was not a violation. In
any event, based on the earlier holding in Appeal of Hayford, No. 154-9-01 Vtec (Mar. 6, 2003),
the Court reiterated that, at least by 1998, “having five residential units on the property or in the
main building was not a violation.” Hayford I, No. 126-7-04 Vtec at 5 (Feb. 17, 2007).
The Court found that the change in use of the rear building from a nursery school to a
sixth unit “without first obtaining a zoning permit and without first obtaining site plan approval
was a violation of the Zoning Regulations.” Hayford I, No. 126-7-04 Vtec at 5 (Feb. 17, 2007).
Again, however, the Court noted that even with six units, the property still met the minimum
per-unit parking and area requirements of the 1977 Ordinances, and the addition of another unit
did not change the use of the property as a whole from multi-family residential to another use.
It therefore concluded, admittedly somewhat confusingly, that “[t]the use of the rear building as
a residential unit was not a use violation, in that multi-family residential use was a permitted use
in the district.” Id. (emphasis added).
Things changed according to the Court with the enactment of the 1998 regulations. Those
regulations increased the area-per-unit requirements from 3,000 to 5,000 square feet. At just
under 21,000 square feet, the property could therefore legally support only four units under
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these new regulations. The regulations also changed multi-family use in the property’s district
to a conditional use. Judge Wright determined that the property’s use as a multi-family residence
on the whole was “grandfathered” after 1998 and would not have needed conditional use
approval as long as it was not changed. Hayford I, No. 126-7-04 Vtec at 6-7 (Feb. 17, 2007).
However, Judge Wright also concluded that the property’s lack of conformity with the
new area-per-unit requirements was not grandfathered because residential use of the rear unit
did not comply with all applicable laws before the 1998 regulations took effect, due to the failure
to obtain a permit and site-plan approval in 1987. Id. Because of the previous ruling that the use
of five units in the main building was grandfathered due to the 1993 permit, only the sixth unit
was deemed to be in violation of these density requirements. Id. Importantly, even though the
15-year statute of limitations may have barred enforcement in 2003 or 2004 against the
conversion violation that first occurred in 1987, it did not bar enforcement against the density
violation that first occurred in 1998. Id. at 11. Judge Wright therefore enjoined further use of
the rear building as a residential unit and calculated monetary penalties based only on the use of
this rear building in violation of the 1998 density requirements. Id. at 13.
The saga had one final coda: After Hayford I, the Benoits once again applied to the
Development Review Board, this time for a permit to convert the main apartment building back
to four units and a permit authorizing the use of the rear building as a residential unit. The DRB
denied their application and the Benoits appealed to the Environmental Court, Docket No. 143-
7-08 Vtec. Before trial, however, the City and the Benoits reached a settlement agreement that
allowed the Benoits to use the rear building as a residential unit so long as they only rented four
units in the main building. That agreement was entered as a stipulated judgment and order by
the Environmental Court. In re 53 High Street, City of St. Albans, No. 143-7-08 Vtec, slip op. (Vt.
Envtl. Ct. Feb. 5, 2009) (Wright, J.). As far as this Court is aware, that order has been followed
since 2009.
Standard of Law
The present motion is titled a motion for relief from judgment and purports to seek relief
pursuant to V.R.C.P. 60(b)(1). However, the decision it questions was not a final judgment or
order, but rather the denial of a post-judgment motion. See V.R.C.P. 60 (“On motion and upon
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such terms as are just, the court may relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reason”) (emphasis added). Given this, we will
construe the motion as a motion for reconsideration.
While there is no mandate that we address motions to alter or reconsider our decisions
on either pretrial motions that do not conclude a case or on post-trial motions, we have
historically treated both as motions filed in accordance with V.R.C.P. 59(e). See, e.g., In re
Lathrop Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10 (Vt.
Super. Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J) (rev’d on other grounds) (applying the 59(e)
standards when asked to reconsider a pre-trial motion); In re Purvis Nonconforming Use, No. 45-
5-15 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Jan. 15, 2019) (Durkin, J), aff’d 2019 VT 60(applying the same standards when asked to reconsider a motion for relief from judgment);
V.R.E.C.P. 5(a)(2) (making the Vermont Rules of Civil Procedure applicable to our proceedings).
In any case, even if the April order were viewed as a final judgment or order, we would
still treat the present motion as a motion filed under Rule 59(e), as it was filed within 28 days of
judgment. See Gregory v. Poulin Auto Sales, Inc., 2012 VT 28, 191 Vt. 611 (2012) (mem. op.) (“A
Rule 60(b) motion made within ten days of judgment is treated as a Rule 59(e) motion.” 5); Chet's
Shoes, Inc. v. Kastner, 710 F. Supp. 2d 436, 454 (D. Vt. 2010), aff'd, 449 F. App'x 37 (Fed. Cir. 2011)
(“In the past, motions for reconsideration were considered Rule 59(e) motions if filed within ten
days of the judgment, and Rule 60(b) motions if filed thereafter. Because the deadline for filing
Rule 59(e) motions was recently extended to 28 days, the dividing line for classifying motions for
reconsideration has presumably shifted out to 28 days as well.”) (internal citations omitted).
All roads therefore lead to Rule 59(e). It is ultimately within the Court’s discretion
whether to grant motions under 59(e), and we have identified four basic grounds for doing so:
(1) to “correct manifest errors of law or fact upon which the judgment is based”; (2) to allow a
moving party to “present newly discovered or previously unavailable evidence”; (3) to “prevent
manifest injustice”; and (4) to respond to an “intervening change in the controlling law.” Lathrop
Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec at 10–11 (Apr. 12, 2011)
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At the time Gregory v. Poulin was decided, ten days was the time limit to file a motion to alter or amend under
V.R.C.P. 59(e); it was extended to 28 days in 2018 to match the changes to the Federal Rules of Civil Procedure.
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(quoting 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1); see
Drumheller v. Drumheller, 2009 VT 23, ¶ 29, 185 Vt. 417 (“Vermont Rule 59(e) is substantially
identical to Federal Rule of Civil Procedure 59(e), and we have looked to federal decisions
interpreting the federal rule for guidance in applying the Vermont rule”).
We are also mindful in this instance that if we grant the motion and enter the proposed
stipulation filed by the parties in December, we would ultimately be vacating a final judgment,
which should be done “guardedly and only in extraordinary circumstances,” Miller v. Miller, 2008
VT 86, ¶27 (2008). The fact that this final judgment was then affirmed by the Vermont Supreme
Court does not impact upon our decision to grant or deny the pending motion, but it does
encourage us to conduct this thorough review.
Discussion
In the April order, we discussed the above history and the parties’ contention in their joint
motion that 204 North Ave overturned a holding underlying Hayford I. We concluded they were
mistaken as a matter of law. However, we did agree with the parties’ basic premise that the 204
North Ave precedent did invalidate the long-standing Environmental Court interpretation of 24
V.S.A. § 4454, namely that the 15-year statute of limitations did not bar enforcement of use
violations that first occurred outside the 15-year window but continued within it. And this
interpretation apparently first appeared in inchoate form in the 2004 decision and order in City
of St. Albans v Alan Hayford et al., No. 161-9-03 Vtec (June 1, 2004) and re-appeared in City of
Burlington v. Richardson, No. 188-10-03 Vtec (Vt. Envtl. Ct. June 27, 2006). However, we also
concluded that the overturned interpretation of § 4454 was not the basis for the decision in
Hayford I. Rather, as summarized succinctly by the Supreme Court in Hayford II, the Court in
Hayford I found that even though there was a violation in 1987 when the rear building was
converted to residential use without approval, “a new and independent violation occurred in
1998 when the City adopted its new zoning regulations,” Hayford II, 2008 VT 36, ¶ 9 (emphasis
added).
This “new and independent” violation, as identified in Hayford I and II, was not simply the
ongoing use of the property for more than four (or five) residences without having first obtained
site plan approval (which would be neither new, nor independent). Instead, it was the “density
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violation,” Hayford I, No. 126-7-04 at 5 (Feb. 17, 2007)—the use of the property for six units when
the 1998 Regulations’ area per-unit requirements allowed only four. “Accordingly,” the Supreme
Court concluded, “the Environmental Court did not err in declining to apply the statute of
limitations contained in § 4454(a)” to this new and independent violation. Hayford II, 2008 VT
36, ¶ 11.
Hayford I did consider the possibilities that “even if the violations began earlier,” i.e., in
1987, either enforcement against the violations was not barred under § 4454, or the City could
pursue enforcement of the final NOV under § 4470(b). Hayford I, No. 126-7-04 Vtec at 11-12
(Feb. 17, 2007). Nevertheless, these were merely alternative arguments, and, as we noted in
April, the Supreme Court explicitly treated them as such. See In Re Benoit Conversion
Application, Nos. 143-7-08 Vtec, 148-8-04 Vtec, 126-7-04 Vtec at 10-11 (Apr. 20, 2021); Hayford
II, 2008 VT 36, ¶9 n.1.
We understand the present motion to argue that our April order did not properly
appreciate the factual and procedural similarities between 204 North Ave and Hayford I and
therefore that the order was based on legal error. We have already discussed above the
connection between the Hayford line of cases and the interpretation of § 4454 overturned in 204
North Ave. Based on the arguments raised explicitly or implicitly in the present motion, a couple
of other points warrant further clarification. We therefore will also discuss first our
understanding of what 204 North Ave did not change in the interpretation of land-use laws, and
second, the apparent inconsistency in what is deemed a use violation between Hayford I and 204
North Ave.
In deciding 204 North Ave, the Supreme Court looked to the plain language of the text of
24 V.S.A. § 4454 as well as the legislative purposes enumerated in the pertinent statutory
amendment. See Law 1999 No. 46. This law was passed in response to Bianchi v. Lorenz, 166 Vt.
555 (1997). It both overruled Bianchi’s holding that zoning law violations constituted an
encumbrance on the property that impaired marketable title and amended the statute of
limitations in § 4454 for prosecuting such violations to essentially its present form. 1999 No. 46
§§ 1(b)(3), 7, 8. The Supreme Court concluded that there was no basis to view use violations as
exempt from this statute of limitations due simply to their continuing nature; rather, the statute’s
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plain language, in light of its legislative purpose, supported the opposite conclusion. 204 North
Ave, 2019 VT 52, ¶¶ 6-8.
By one reading, the present motion interprets 204 North Ave to hold that the same or
ongoing use of a property cannot give rise to independent violations of different provisions of
the zoning laws at different points in time. That is clearly an erroneous interpretation. The
enabling statute for municipal zoning laws gives municipalities many tools to regulate land-use.
See 24 V.S.A. § 4410 (“In its bylaws, a municipality may utilize any or all of the tools provided in
this chapter and any other regulatory tools or methods not specifically listed” provided they don’t
conflict with provisions of other sections of the title.); see generally 24 V.S.A. § 4411 (authorizing
municipalities to establish, inter alia, specific permitted uses, dimensions and location of
structures, and density standards) and 24 V.S.A. § 4414 (authorizing zoning districts, performance
standards, incentives, etc.). Some of these tools may overlap in their practical effects. For
example, minimum area per-unit requirements and lists of permitted uses may both operate to
limit the number of residential units on a property. That does not mean a city cannot enforce all
legal provisions of its bylaws as applicable to a given property. Cf. In re Casella Waste Mgmt.,
Inc., 2003 VT 49, ¶ 10, 175 Vt. 335 (“Vermont law does not mandate a specific method for
regulating nonconforming uses; thus, we turn to the municipal zoning regulation to determine
how the municipality regulates nonconforming uses.”) (internal quotation marks omitted).
Nor, as the present motion suggests, does 204 North Ave state that if an ongoing use has
generated multiple independent violations, the later-in-time violation should be adjudged to
have “first occurred” for statute of limitation purposes at the same time as the earliest violation.
Indeed, the plain language of the statute cannot logically support such a reading.
Section 4454 of title 24 sets the start date for the running of the statute of limitations as
“the date the alleged violation first occurred.” A violation is something of a construct: It is a
combination of (at the very least) an action or behavior and a law. A zoning violation, specifically,
is the combination of an instance of land development (commonly separated into the categories
of construction and use or change in use) and a zoning ordinance that land development violates.
See 24 V.S.A. §§ 4449(a)(1) (prohibiting “land development. . . without a permit”) and 4303(10)
(defining “land development”). By its terms, the statute of limitations covers both “the failure to
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obtain…any required municipal land use permit” and the failure to “comply with the terms and
conditions of” any such permit. 24 V.S.A. § 4454(a). It thereby covers errors both of omission
and commission—instances when a citizen violates the zoning laws by not obtaining a required
permit, and instances where a citizen violates the terms and conditions of a permit he or she
previously obtained. In either situation, the statute refers to the date “the alleged violation first
occurred,” not the date the use or construction first occurred. In other instances, however, as
when new regulations are adopted that give rise to additional violations in an already unlawful
structure or use, those dates may be different. In these situations, under a plain meaning
interpretation, the violation does not occur until the law takes effect. Cf. In Re Tekram Partners,
2005 VT 92 ¶ 18, 178 Vt. 628 (mem. op.) (holding that the presence of a dumpster in a particular
site did not become a violation until a site plan was approved that limited the permissible
locations for dumpsters to other areas of the property); In Re Beauregard NOV, No. 3-1-15 Vtec,
slip op. at 9 (Vt. Sup. Ct. Envtl. Div. Feb. 11, 2016) (Durkin, J.) (“Because this violation arises out
of Appellants’ permit, the violation could not have existed before the permit did.”). In Hayford,
the density violation did not arise until the 1998 regulations took effect. Hayford I, No. 126-7-04
Vtec at 11 (Feb. 17, 2007).
Furthermore, by using the definite article (“the date the alleged violation first occurred”),
the statute clearly suggests it is the violation which the city is seeking to enforce that matters for
the statute of limitations, not any previous violations. This, of course, makes sense. A city should
not be prevented from enforcing its zoning laws against a property just because that property
has any previous violations whose enforcement is now time-barred.
It is true that when new zoning laws take effect, a pre-existing use that does not conform
to the new rules is often allowed to continue as a lawful non-conforming use, and this is generally
not treated as a violation. 24 V.S.A. § 4303(15) (defining a non-conforming use as one that “did
conform to all applicable laws, ordinances, and regulations prior to the enactment of the present
bylaws”); 24 V.S.A. § 4412(7) (directing municipalities to define in their bylaws how non-
conforming uses are addressed but leaving it up to them how to do so). However, where, as
here, the existing use was not fully lawful, its continuance in non-conformity with the zoning laws
is a violation. See In re Chamberlin, 134 Vt. 359, 361 (1976); see also Killington Mountain House,
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LLC NOV, No. 138-12-18 Vtec, slip op. at 6-9 (Vt. Super. Ct. Envtl. Div. Nov. 17, 2020) (Durkin, J.)
(discussing at length “unlawful preexisting nonconforming use[s]”). 204 North Ave does not undo
this fundamental logic distinguishing lawful from unlawful pre-existing non-conforming uses or
override the long-standing principle that “[t]he public interest in the regulation and gradual
elimination of nonconforming uses is strong.” In re Gregoire, 170 Vt. 556, 559 (1999) (mem. op.).
Nor does its holding suggest that if the previous violation that prevents a property from becoming
lawfully non-conforming under the new regulations (from being “grandfathered,” in prior
parlance) occurred more than 15 years before an attempt to enforce those regulations, such an
enforcement action must fail.
Finally, 204 North Ave does not state that the 15-year-statute of limitations in § 4454
applies to actions brought under § 4470(b) to enforce a final decision of a municipal panel. As
§ 4470(b) was an alternative basis for the injunctive relief granted in Hayford I, see Hayford I, No.
126-7-04 Vtec at 12-13 (Feb. 17, 2007), this is yet another reason not to vacate the decision.
That said, there are unique facts in Hayford that make the above distinctions hard to
appreciate. In particular, the combination of a vaguely worded Notice of Violation with the
coincidental overlapping effects of two separate zoning provisions could generate confusion. The
relevant NOV described the violation as follows: “Use of this property for six dwelling units. The
property is approved for only four dwelling units.” City of St. Albans Zoning Violation – 53 High
Street (July 11, 2001), admitted as Plaintiff’s Exhibit 19, City of St. Albans v. Hayford, 2008 VT 36.
Coincidentally, the 1998 minimum area per-unit requirements dictated that this property could
only support four units, and four units were also what existed prior to the addition of the fifth
and sixth units in 1986 and 1987 without permits or site plan approval. It is therefore not
apparent simply from reading the NOV whether it refers to one or both of these violations. 6
It would be understandable to read this NOV and think it referred only to the early
conversion of the property to six units. This would be especially understandable without the
context of the preceding decisions of the Zoning Administrator and Zoning Board of Adjustment
denying, respectively, a Certificate of Occupancy and variances on numerous grounds, including
6
If the density requirements had been 6,000 square feet per unit, say (which would have allowed for only three
residential units on the property), rather than 5,000 square feet, this coincidence, and the attendant confusion, likely
would have disappeared.
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a failure to meet the new density requirements. Hayford I, No. 126-7-04 Vtec at 7 (Feb. 17, 2007);
City of St. Albans v. Alan Hayford et al., No. 161-9-03 at 3 (Envtl. Ct. June 1, 2004, Wright, J)
(describing the grounds for denial). However, with that context before us, we cannot say that
the Environmental Court in Hayford I clearly erred by reading the NOV as directed at the density
violation—in whole or in part—and granting remedies against this violation.
Thankfully, the legislature has revised the enabling statute in the years since Hayford I,
and municipalities are now required to state “the bylaw or municipal land use permit alleged to
have been violated” and “the facts giving rise to the alleged violation” in a notice of violation.
See 2013 No. 146 (Adj. Sess.), § 10 (adding these requirements at 24 V.S.A. § 4451(a)(2)(A)-(B)).
It would appear that these present-day statutory requirements should prevent notices of
violation as vaguely worded as in Hayford I. However, as this Court is all too well aware, Vermont
municipalities still issue notices of violation that do not describe the facts underlying a violation
with much detail, or that reference multiple provisions of their zoning ordinances being violated
without specifying how and when each provision was violated. But we must note that such
municipalities do so at their own peril: A court may not always dig deeply to ascertain which
violation(s) a notice of violation or enforcement action relates to, and if one plausible violation is
outside the statute of limitations, the action may be vacated or dismissed. We therefore urge
municipalities to comport with the statutory requirements by specifying, in as much detail as
possible, the bylaws or permit conditions thought to have been transgressed and the facts that
demonstrate a transgression for each alleged violation referenced in a notice of violation.
Lastly, the present motion has correctly noted some inconsistency in the use of the phrase
“use violation” in Environmental Division jurisprudence spanning 13 years. As noted earlier, the
Court in Hayford I deemed that changing the use of the rear building from a nursery school to a
dwelling unit without a permit or site-plan approval was “not a use violation,” as multi-family use
was a permitted use. Insofar as we understand the Benoits’ present motion to point out that in
204 North Ave, a similar fact pattern was deemed to be a use violation, they are correct. 7 In part,
7
In 204 North Ave, the property owner also added a residential unit to a property, converting a duplex to a triplex.
Burlington’s zoning laws at the time made more than two dwelling units a permitted use in the district but one that
required a permit and site plan approval. See City of Burlington Comprehensive Development Ordinance §§ 8(B)(1),
80(B)(2) (1977). The owners did not obtain such a permit or site plan approval or a certificate of occupancy before
beginning to rent out the third unit. 204 North Ave, 2019 VT 52, ¶2. This was treated as a use violation by this Court
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this was because “the parties [did] not dispute...whether the violation here was a use violation,”
204 North Ave, 2019 VT 52, ¶4. In part however, this may reflect a changing use of the term “use
violation” in the years since Hayford I was decided, to encompass even changes from one
permitted use of a property to another where required permits or site plan approval were not
obtained. Of course, 204 North Ave makes the question of what counts as a use violation less
important, as all zoning violations are now subject to the same statute of limitations at 24 V.S.A.
§ 4454 when enforcement is brought under § 4451 or § 4452. Id. at ¶ 7.
However, this does not mean, as the Benoits argue in their motion, that the holding in
204 North Ave demands a reversal in Hayford. The motion emphasizes that Burlington’s zoning
ordinances were also amended between the conversion and the enforcement: “Given the
apparent irrelevancy of the adoption of Burlington’s amended zoning ordinance in 204 North
Avenue, the adoption of the City’s amended zoning ordinance in Hayford should also be
irrelevant.” Motion for Relief from Judgment (2nd) at 5, filed May 12, 2021. This, of course, puts
the cart before the horse. 204 North Ave does not stand for the proposition that a change in
zoning laws can never give rise to a new violation, just as Hayford does not stand for the
proposition that it always must. There was no finding in 204 North Ave that the violation cited
in the City’s notice arose when Burlington’s amended ordinances took effect. There was such a
finding in Hayford. This amply explains why one set of amendments was relevant to a case’s
outcome, and one was not.
Conclusions of Law
For the reasons articulated above, we conclude that we cannot grant the relief sought by
the Benoits in their motion dated May 12th, 2021. Therefore, that motion is DENIED. We again
note that nothing in our determinations here should be read as restricting the Benoits from
seeking new review and approval of their future use of the property, nor should our decision be
read to restrict the parties’ ability to enter into an agreement concerning the future use of the
property that does not need the approval of this Court.
So Ordered.
and the Supreme Court. Id. at ¶4; In Re: 204 North Avenue NOV, No. 160-11-17 Vtec at 3 (Vt. Super. Ct. Envt’l. Div.
Sept. 26, 2018).
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Electronically signed on October 14, 2021, at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
QM...
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
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