In re 15-17 Weston Street NOV (Keith S. Aaron, Weston Street Trust, Appellant)

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 85

No. 2021-040

In re 15-17 Weston Street NOV Supreme Court
(Keith S. Aaron, Weston Street Trust, Appellant)
On Appeal from
Superior Court,
Environmental Division

September Term, 2021

Thomas S. Durkin, J.

John L. Franco, Jr., Burlington, for Appellant.

Kimberlee J. Sturtevant, Office of City Attorney & Corporation Counsel, Burlington, for
Appellee City of Burlington.

Michael and Caryn Long, Burlington, Pro Ses, Interested Parties.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. ROBINSON, J. Appellants Keith Aaron and Weston Street Trust1 appeal the trial

court’s summary judgment upholding a Notice of Violation (NOV) concerning the Trust’s

property on the basis that it was occupied by more than four unrelated adults in violation of

applicable zoning restrictions. We conclude that the City is not precluded from enforcing the

zoning violation on account of 24 V.S.A. § 4454 because a valid municipal ordinance establishes

that if an unlawful use is discontinued for more than sixty days, resumption of the unlawful use

1
Keith Aaron is the sole trustee of the Trust, and we refer to appellants collectively as “the
Trust” in this opinion.
constitutes a new violation, and we reject the Trust’s alternate argument that its use was a lawful

preexisting nonconforming use based on the preclusive effect of permitting proceedings in 1972

and 1994. We thus affirm.

¶ 2. The property at issue is an individual unit (unit #1) within a three-unit building (the

property) located in the City of Burlington’s Residential Low Density Zoning District (RL

District). In October 2018, the City issued a NOV to the Trust, alleging that unit #1 was in

violation of § 5.3.2 of the Burlington Comprehensive Development Ordinance (CDO), because

more than four unrelated adults were occupying the unit. The Burlington Development Review

Board upheld the NOV, and the Trust appealed to the Environmental Division of the Superior

Court. Two neighbors intervened in support of the NOV. In the context of cross motions for

summary judgment, the Trust did not deny that more than four unrelated adults lived in unit #1,

and did not contest that the applicable zoning ordinance prohibited such a use in the RL District.

The Trust argued that the violation is unenforceable because it first occurred more than fifteen

years ago or, in the alternative, that this enforcement action is barred by claim preclusion. The

Environmental Division granted summary judgment to the City, upholding the NOV. The Trust

appealed.

I. Undisputed Facts

¶ 3. The undisputed facts bearing on these arguments are as follows.2 In 1972, the

owner of the property applied for and received an exemption for an “apartment house” so the

2
Although the relevant facts are not in dispute, the state of the record is somewhat
confused. The City and the Trust entered into a Stipulated Statement of Uncontroverted Material
Facts, which are essentially undisputed by intervenor-neighbors. The Trust’s principal appeal brief
indicates that, in connection with the Trust’s summary judgment motion, the Trust filed a statement
of undisputed facts in addition to the stipulated facts, but there is no evidence of any such statement
in the record. In addition, the trial court noted that its understanding of permitting proceedings in
1972 and 1994 relating to the property was informed by the parties’ uncontested but undocumented
representations to the trial court; the court was not provided with the applications, supporting
materials, or Zoning Board of Adjustment or Development Review Board determinations in those

2
property could continue operating as a three-unit apartment house in a residential district.

“Apartment house” was defined as “a building or portion thereof used or designed to be used as a

residence for three or more families living as units independently of one another.” At the time,

“family” was defined as “one or more persons occupying a dwelling unit and living as a single

nonprofit housekeeping unit, but not including group quarters such as dormitories, sororities,

fraternities, convents, and communes.” The exemption granted to allow the owners to operate the

property as an apartment house did not recite who could lawfully occupy the individual dwelling

units at the property. In 1994, the owner of the property applied for conditional use approval for

a fourth dwelling unit. The zoning board denied the application.

¶ 4. Keith S. Aaron acquired the property in December 1995 and transferred it to the

Trust in October 2000.

¶ 5. The Trust began leasing unit #1 in October 2000. Since that time, unit #1 has been

leased to and occupied by five unrelated adults, mostly college students. There have been two

interruptions of unit #1’s occupancy by five individuals during that period. First, during the

summer of 2013, only two tenants occupied unit #1 until mid-August. Second, after all the unit

#1 tenants abandoned the lease and left the property in January 2014, unit #1 remained unoccupied

until June 2014. All parties agree that each of these interruptions in occupancy exceeded sixty

days.

¶ 6. Effective November 2000, the applicable zoning ordinance was amended to add

language defining family as “no more than four unrelated adults and their minor children” unless

a property owner secured from the City “functional family unit” designation as defined by the

prior proceedings. Because no party has disputed the trial court’s recitation of the facts that are
outside of the record, we include some of those facts in our own description.

3
ordinance. At no time during the Trust’s ownership did the Trust request or obtain a “functional

family unit” designation from the City with respect to the occupants of unit #1.

II. Analysis

¶ 7. On appeal, the Trust argues that because the first violation of the use restriction

occurred more than fifteen years before the NOV, the fifteen-year statute of limitations provided

by 24 V.S.A. § 4454(a) has run. The Trust contends that the City’s ordinance limiting the safe

harbor provided by the statute when a violation is discontinued for more than sixty days is

unenforceable because the City has no authority to pass such an ordinance. Alternatively, the Trust

argues that the City is precluded from pursuing this NOV because the lawfulness of the current

use of unit #1 was established by operation of claim preclusion as a result of the 1972 and 1994

permitting proceedings. The Trust contends that because of this preclusion, the present use of unit

#1 is a lawful, preexisting nonconforming use.

¶ 8. We review summary judgment rulings without deference to the trial court. Tanzer

v. MyWebGrocer, Inc., 2018 VT 124, ¶ 17, 209 Vt. 244, 203 A.3d 1186. Summary judgment is

warranted “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).

A. Discontinuance of the Zoning Violations

¶ 9. The Trust argues that the City cannot enforce the ordinance prohibiting more than

four unrelated adults from occupying a unit in the RL District because the use violation first arose

more than fifteen years before the City issued the NOV. It points to 24 V.S.A. § 4454(a), which

provides that enforcement proceedings “relating to the failure to obtain or comply with the terms

and conditions of any required municipal land use permit” must be instituted within fifteen years

from the date the alleged violation first occurred, and our decision in In re 204 North Avenue

NOV, which held that this statutory limitation on enforcement actions applies to use violations.

2019 VT 52, ¶ 7, 210 Vt. 572, 218 A.3d 24. The Trust does not contest that § 5.3.2 of Burlington’s

4
CDO purports to remove from this statutory safe harbor violations that have resumed after a

discontinuance of more than sixty days, and that if valid, the ordinance would defeat the Trust’s

reliance on § 4454(a). Rather, the Trust contends that the ordinance is invalid because the City

had no authority to enact such an ordinance absent express legislative authorization; the

Legislature has not adopted any standards to guide municipalities with respect to discontinuances

of zoning violations; and the ordinance conflicts with § 4454(a) as we interpreted that provision in

our 204 North Avenue NOV decision. Therefore, the Trust contends that it is entitled to the benefit

of § 4454(a) and the City cannot enforce the zoning violation.

¶ 10. There is no real dispute that absent a valid municipal ordinance impacting its

application in this case, the fifteen-year limitation in 24 V.S.A. § 4454(a) would preclude the

City’s enforcement action, and that if CDO § 5.3.2 is valid, then the Trust cannot take advantage

of the fifteen-year statute of limitations because the challenged use was discontinued for more than

sixty days within the fifteen years prior to the NOV. We conclude that the City is authorized to

adopt § 5.3.2 pursuant to its general authority to regulate zoning; that the Legislature’s enactment

of a specific statute relating to discontinuances of preexisting nonconforming uses does not suggest

that the Legislature intended to restrict municipalities from adopting provisions relating to

discontinuances of zoning violations; that the Legislature’s delegation of authority to

municipalities to adopt ordinances like § 5.3.2 does not fail for lack of guiding standards; that

§ 5.3.2 does not conflict with our application of § 4454(a) in the 204 North Avenue NOV case;

and that § 5.3.2 is consistent with and promotes the goals of zoning. For these reasons, we

conclude that § 5.3.2 is valid and thus § 4454(a) does not bar the City from pursuing the NOV at

issue.

¶ 11. Section 4454(a) of Title 24 provides that “[a]n 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 . . . within 15 years from the date the

5
alleged violation first occurred and not thereafter.” In 204 North Avenue NOV we rejected the

contention that this statutory restriction applies only to structural violations as opposed to “use”

violations. 2019 VT 52, ¶ 6. We based our conclusion on the plain language of the statute, which

does not distinguish between structural and use violations; the statute’s reference to the date an

alleged violation “first occurred,” which was consistent with the statute’s application to ongoing

use violations; and the purpose of the statute, which was to “streamline title searches and increase

confidence in property ownership by limiting the time to enforce all zoning violations.” Id. ¶¶ 6-

8. Accordingly, because the parties in this case stipulated that since October 2000 unit #1 has been

leased to and occupied by five unrelated adults, at the time of the 2018 NOV, § 4454(a) precluded

the City from prosecuting the ongoing zoning violation unless one or both of the periods of

discontinuance of the violation in 2013 and 2014 restarted the limitations clock.

¶ 12. The Trust concedes, and we agree, that if CDO § 5.3.2 is valid, it did effectively

restart the clock, and § 4454(a) does not pose an obstacle to the City’s enforcement action. That

ordinance provides:

Although not subject to enforcement action . . . uses, structures,
and lots which are deemed to be controlled by . . . 24 VSA
Sec. 4454, shall be considered violations that are not considered
legal to any extent and shall in no event be granted the consideration
or allowances of nonconforming structures, uses, and lots. Thus, no
change, alteration, enlargement, and reestablishment after
discontinuance for more than sixty (60) days or reconstruction after
an occurrence or event which destroys at least 50% of the structure
in the judgment of the city’s building inspector shall be permitted,
except to conforming use, structure, or lot.

CDO § 5.3.2. Unit #1’s occupancy violation has been discontinued twice for more than sixty days

within six years of the NOV in this case. Thus, this ordinance, if valid, would defeat the Trust’s

reliance on the limitation in § 4454(a).

¶ 13. The City’s authority to enact § 5.3.2 derives from the authority the Legislature has

conferred on municipalities to regulate land development. The Legislature has given

6
municipalities that have adopted a plan through their bylaws the authority to “define and regulate

land development in any manner that the municipality establishes in its bylaws, provided those

bylaws are in conformance with the plan and are adopted for the purposes set forth in [24 V.S.A.

§ 4302]. 24 V.S.A. § 4410; see also 24 V.S.A. § 4411 (providing that municipalities “may regulate

land development in conformance with [their] adopted municipal plan” and specifically stating

that zoning bylaws may “permit, prohibit, restrict, regulate, and determine land development,

including . . . specific uses of land”). This broad municipal power may be exercised only within

the scope of the delegation by the State, and not in a manner that conflicts with state law governing

zoning. State v. Sanguinetti, 141 Vt. 349, 353, 449 A.2d 922, 925 (1982). The Trust has not

identified any express limitation on municipal authority to adopt such a provision regulating

discontinuances of zoning violations.

¶ 14. Nor are we persuaded that the statutory scheme reflects an implicit restriction on

municipal authority to adopt such an ordinance. The Trust notes that the Legislature has expressly

authorized municipalities to regulate and prohibit expansion and undue perpetuation of lawful

preexisting nonconformities by specifying “a time period that shall constitute abandonment or

discontinuance of [a] nonconforming use, provided the time period is not less than six months.”

See 24 V.S.A. § 4412(7)(A)(i). The Trust suggests that because the statutes include no comparable

express authorization for municipalities to specify a time period that constitutes discontinuance of

a zoning violation that is otherwise shielded from enforcement action by § 4454(a), we should

infer that the Legislature did not intend to authorize ordinances like § 5.3.2.

¶ 15. We reject this argument for two reasons. First, the provision relating to municipal

ordinances regulating discontinuances of nonconforming uses is found within a statutory

subsection that requires municipal bylaws to define how nonconformities will be addressed. See

24 V.S.A. § 4412(7) (“All bylaws shall define how nonconformities will be addressed, including

standards for nonconforming uses . . . .”). In this context, we do not infer that the Legislature

7
viewed the provision relating to discontinuances of preexisting nonconformities as a necessary

grant of authority rather than a means to comply with the mandate of the subsection. Second, the

provision relating to nonconformities authorizes municipalities to specify a time period that will

constitute a discontinuance of a nonconforming use, “provided the time period is not less than six

months.” Id. § 4412(7)(A)(i) (emphasis added). Given the six-month minimum, this provision

may readily be viewed as a limitation on municipal authority to adopt an ordinance determining a

time period that constitutes a discontinuance of a nonconforming use rather than a grant of such

authority. Cf. Badger v. Town of Ferrisburgh, 168 Vt. 37, 41 n.1, 712 A.2d 911, 914 n.1 (1998)

(describing six-month minimum in predecessor statute to § 4412(7)(A)(i) as “a floor that restricts

the municipality from adopting a policy less favorable to the landowner, but allows a more

favorable policy”).

¶ 16. We also disagree with the Trust’s suggestion that because there is no comparable

statutory minimum period to qualify as a discontinuance of a zoning violation, any purported

delegation of authority to municipalities to define discontinuances in the zoning-violation context

is unacceptably standardless and therefore unenforceable. Even in the context of preexisting

nonconforming uses, municipalities have broad authority, subject to the six-month minimum, to

establish the period of time that gives rise to a discontinuance. See 24 V.S.A. § 4412(7)(A)(i)

(providing that minimum time period to constitute discontinuance of preexisting nonconforming

use is six months, but establishing no other constraints on municipal authority to choose their own

period). See also Badger, 168 Vt. at 41 n.1, 712 A.2d at 914 n.1 (recognizing that predecessor

statute allowed municipalities to adopt policies defining discontinuance of preexisting

nonconforming uses in way that is more favorable to landowners than six-month minimum).

Nothing in the statutory provision relating to discontinuances of preexisting nonconforming uses

compels a uniform temporal definition of discontinuance, and the only guidance in that statute as

8
to the policies that should shape a municipality’s exercise of its discretion is a reference to the

broad purposes of zoning regulation set forth in 24 V.S.A. § 4302.

¶ 17. There is nothing incongruous about a statutory structure that provides even greater

flexibility to municipalities to set a shorter minimum period that constitutes discontinuance in the

context of zoning violations. In contrast to lawful preexisting nonconforming uses, which were

by definition legal at some time before a statutory or zoning law change, zoning violations were

never permitted. See 24 V.S.A. § 4303(15) (defining “nonconforming use” as “use of land that

does not conform to the present bylaws but did conform to all applicable laws, ordinances, and

regulations prior to the enactment of the present bylaws”). For this reason, it is not surprising that

the Legislature has not restricted municipal authority by establishing a statutory minimum period

to constitute a discontinuance of a zoning violation. We need not determine in this case whether

a reasonable application of § 4454(a) requires municipalities to wait some minimum period of time

before treating the cessation of a violation as a discontinuance; in this case the sixty-day minimum

reflects a reasonable exercise of the City’s authority.

¶ 18. Moreover, we reject the suggestion that § 5.3.2 conflicts with § 4454(a) as we

construed that statute in 204 North Avenue NOV. The Trust points to our reliance in that decision

on the statute’s reference to the date an alleged violation “first occurred,” and argues that the

implication of our decision in 204 North Avenue NOV is that once a use violation “first” occurs,

a municipality cannot enforce subsequent violations after a period of fifteen years elapses,

regardless of whether the violation persisted continuously throughout that period, or even whether

it continued or recurred at all following an initial violation. Nothing in our 204 North Avenue

NOV decision reads out of the law a requirement that a violation be continuous to qualify for the

safe harbor established by § 4454(a). To the contrary, our analysis in that case assumed that a use

violation subject to § 4454(a) would be an ongoing use violation. In considering the significance

of the statutory reference to the date a violation “first occurred,” we said, “ ‘[f]irst occurred’ only

9
makes sense for ongoing violations—such as use violations.” In re 204 N. Ave. NOV, 2019 VT

52, ¶ 7 (emphasis added). And we noted that treating use violations as exempt from the limitation

in § 4454(a) would “result in a statute of limitations that authorizes the City to pursue use violations

for so long as they continue.” Id. ¶ 8 (emphasis added). We need not decide in this case whether

a discontinuance in unlawful use of some period of time may sever the applicability of § 4454(a)

even in the absence of a municipal ordinance such as § 5.3.2; in this case, § 5.3.2 establishes the

time period that constitutes a discontinuance.

¶ 19. Finally, we note that our understanding of the statutory scheme is consistent with

the general policy in zoning law that favors gradual elimination of nonconforming uses that are

inconsistent with the orderly development that zoning laws are designed to promote. See Badger,

168 Vt. at 39-40, 712 A.2d at 913 (“The prime purpose behind zoning is to bring about the orderly

physical development of a community by confining particular uses to defined areas. A goal of

zoning is to gradually eliminate nonconforming uses because they are inconsistent with this

purpose.” (citing Vt. Brick & Block, Inc. v. Vill. of Essex Junction, 135 Vt. 481, 483, 380 A.2d

67, 69 (1977))). By contrast, the Trust’s interpretation would lead to extremely incongruous

outcomes. If a landlord rented a unit to five unrelated individuals for two months and subsequently

returned to a lawful use of the unit thereafter, then, in the absence of an enforcement action, after

fifteen years, any subsequent owner of the property would be free to resume the unlawful use of

the unit with no exposure to an enforcement action. Zoning violations would be treated far more

favorably than lawful preexisting nonconforming uses, and on the basis of long ago unidentified

or unenforced violations, the City would be powerless to bring a property that was once in violation

of use restrictions into conformity with the applicable zoning laws. We do not believe the

Legislature intended such a result. See Schlansky v. City of Burlington, 2010 VT 90, ¶ 8, 188 Vt.

470, 13 A.3d 1075 (“In looking to the statutory language as an expression of legislative intent, we

10
presume the Legislature intended an interpretation that furthers fair and rational consequences, and

not one that would lead to absurd or irrational consequences.”) (citations omitted).

¶ 20. For all of these reasons, we conclude that CDO § 5.3.2 is valid, and that § 4454(a)

therefore poses no obstacle to the City’s enforcement action.

B. Claim Preclusion and the 1972 and 1994 Permitting Proceedings

¶ 21. The Trust argues that the lawfulness of occupancy of unit #1 by more than four

unrelated individuals was established on the basis of claim preclusion by virtue of the 1972 and

1994 permitting proceedings.3 In particular, the Trust contends that the City was party to

permitting proceedings involving the property that includes unit #1 in 1972 and 1994, and that the

City’s failure in the context of those cases to impose conditions expressly limiting the occupancy

of unit #1, or to seek to enforce any limit on the number of unrelated individuals occupying unit

#1, precludes the City from now seeking to enforce a zoning violation based on such occupancy.

The Trust contends that the City’s inaction in 1972 and 1994 essentially renders occupancy by

more than four adults a legal, preexisting nonconforming use.

¶ 22. Claim preclusion applies generally in zoning cases as in other areas of the law. In

re Carrier, 155 Vt. 152, 157-58, 582 A.2d 110, 113 (1990) (citation omitted). Thus, for example,

“a zoning board or planning commission may not entertain a second application concerning the

same property after a previous application has been denied, unless a substantial change of

conditions had occurred or other considerations materially affecting the merits of the request have

intervened.” Id. (quotation omitted). Even assuming, without deciding, that this principle extends

3
The Trust does not contest on appeal that absent claim preclusion based on one or both
of these proceedings, occupancy of unit #1 by five unrelated adults, mostly students, was not a
permitted use even prior to the November 2000 amendment. See In re John Mentes, No. 132-6-
00 Vtec (Vt. Envtl. Ct. Oct. 22, 2001), https://www.vermontjudiciary.org/sites/default/files/
documents/ecrt132600docmsj.pdf [https://perma.cc/XKA2-Q65N](holding that housing unit
occupied by seven college students fell outside of definition of “family” because it constituted
“group quarters” under pre-2000 ordinance).
11
to enforcement actions and could preclude a zoning administrator from enforcing a zoning

violation that the administrator could have but failed to raise in a prior enforcement proceeding,

the Trust has not met its burden of establishing that either the 1972 or the 1994 proceeding

precluded this enforcement action or rendered the use of unit #1 lawful.

¶ 23. For a party to successfully preclude a claim based on previous litigation, the

“parties, subject matter, and causes(s) of action in both matters [must be] the same or substantially

identical,” and the claim must be one that was or “should have been litigated in the prior

proceeding.” Faulkner v. Caledonia Cnty. Fair Ass'n, 2004 VT 123, ¶ 8, 178 Vt. 51, 869 A.2d 103

(citation omitted). The Trust’s argument that the City is precluded from pursuing this enforcement

action based on claim preclusion from one or both of the pre-2000 proceedings fails for at least

two reasons.

¶ 24. First, there is no record evidence or clear agreement among the parties that

occupancy of unit #1 was at issue, or “substantially identical” to a claim that was at issue, in either

of the prior permitting proceedings. The parties have represented that the issue in the 1972

permitting proceeding was whether the owner should receive an exemption to allow them to

operate the property with an already existing third dwelling unit. Likewise, the parties have

represented that the 1994 proceeding involved an application for a conditional use application to

use a fourth dwelling unit on the property. There is no record evidence, or even representation by

the parties, that any substantive matter relating to unit #1’s occupancy was raised or addressed in

either proceeding.

¶ 25. Second, we have no basis for concluding that the City should have raised issues

relating to the occupancy of unit #1 in either proceeding. Both proceedings involved the number

of dwelling units that could exist on the property; neither purported to deal with the occupancy of

any units. Both were permitting proceedings, not enforcement proceedings. Neither related to

unit #1 in any way. Because the claim at issue in this case was not one that was, or should have

12
been litigated in a prior proceeding, claim preclusion does not apply here, and use of the property

to house more than four unrelated adults is not a preexisting nonconforming use.

Affirmed.

FOR THE COURT:

Associate Justice

13