### STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Environmental Division Unit Docket No. 45

- 5

- 15 Vtec

Purvis Nonconforming Use 

### DECISION ON MOTION

Appellant Luke Purvis appeals a determination from the City of Burlington Development Review Board (“DRB”) concerning the parking area be hind the residence at his property at 164 North Willard Street in the City of Burlington (“Ci ty”). Appellant argues that his parking is protected by 24 V.S.A. § 4454, which establishes a fifteen-year statute of limitations upon the enforcement of zoning violations, and also that his parking is a nonconforming use. He also argues that a provision in the City of Burlington C omprehensive Development Ordinance (“CDO”) that attempts to establish that a zoning vi olation will be deemed abandoned after a sixty-day period of non-use is (1) unconstitutional ly vague and (2) preempted by the state nonconforming use statute, see 24 V.S.A. § 4412(7), which establishes a six-month period of abandonment for nonconforming uses. Appellant has moved for partial summary judgment on his vagueness and preemption arguments. Appellant is represented by Attorney Nicole Killora n, and the City is represented by Attorney Kimberlee Sturtevant. Joseph and Theresa Cleary, who are Interested Persons in this appeal, are self-represented.
Factual Background For the sole purpose of deciding the pending motion s, we recite the following facts, which we understand to be undisputed unless otherwi se noted. Some of the facts listed below were drawn from the Court’s examination of material s submitted in support of the motions, rather than the parties’ statements of facts. See V.R.C.P. 56(c)(3) (allowing a court to consider materials cited in the parties’ statements of facts and other materials in the record). We do not understand the facts drawn from these materials to be disputed.2

1. Appellant Luke Purvis owns a parcel of land at 164 North Willard Street in Burlington that has two buildings on site: the front building has two or more residential apartments and the rear building is a two-car garage. 1

2. Appellant’s parcel benefits from an easement for in gress and egress over a triangular portion of a neighboring parcel to the south, owned by Joseph Cleary.
3. In June of 2014, Mr. Cleary complained to the City that Appellant had expanded the parking to the rear of Appellant’s building without first receiving a zoning permit. 2

4. On July 22 2014, 3 the zoning specialist sent Appellant a notificatio n letter that advised Appellant that a complaint had been received that h e had expanded the parking occurring in the rear of his property. In this letter, the zoni ng specialist invited Appellant to refute the complaint and provide evidence in support of his po sition.
5. The zoning specialist then made physical inspection s of Appellant’s property on several occasions over the months of September, October, an d November, 2014. On January 28, 2015, the zoning specialist inspected the property again, while visiting with Appellant, to inspect the rear portion of his property and to determine wheth er parking was or had been occurring or had been expanded. The zoning specialist discovere d “disturbed areas” on the property (or properties), but no parking was observed during any of these visits.
6. As a follow up to these visits to the property, the zoning specialist wrote to Appellant on January 29, 2015, advising that a determination had been made that no parking had occurred on Appellant’s property during the months visited. The zoning specialist further advised that

1 A copy of a photo of Appellant’s garage and a por tion of his driveway was attached as page 2 of Exhi bit 5 to Appellant’s pending motion.

2 The facts currently before the Court make it uncl ear whether this initial complaint alleged that Appellant expanded parking onto the easement area o r onto some other portion of Appellant’s property. The February 13, 2015 decision from the DRB references an “expansion of parking . . . [on] a strip of land , approximately 2’ (w) x 60’ (l) on the south side of the driveway and north of the easement on the adja cent property . . . .” In subsequent language that appe ars to reference a different portion of Appellant’s land, a motion was made that the DRB “highly recommend that the ow ner of 164 North Willard submit a parking plan with lot coverage as it appears an expansion of parking has occurred on the north side of the driveway.” That motion, which also recommended that the DRB “uphold the det ermination of no violation by the Code Enforcement Officer,” passed on a vote of 5-0-0. The legal iss ues raised in this motion do not require us to dete rmine where Appellant’s alleged parking expansion occurred.

3 This July 22, 2014 letter, a copy of which was at tached to Appellant’s motion for summary judgment a s Exhibit 4, is incorrectly referenced as a “Septembe r 22, 2014 notification letter” in the subsequent l etter from the zoning specialist dated January 29, 2015, a copy of which was attached to Appellant’s motion as Exhibi t 5.3

the evidence submitted, including affidavits that A ppellant submitted in response to the complaint, was “found inconclusive to determine tha t the 15-year enforcement statute of limitations is applicable to” Appellant’s property.
7. The zoning specialist also included the following d irective in her January 28, 2015 letter: “All disturbed areas, as a result of previous parki ng, must be restored to green space by May 1, 2015; to conform to coverage allowances and respect of the setback.”
8. Appellant appealed these determinations to the DRB on the ground that his parking was protected under the fifteen-year statute of limitat ions in 24 V.S.A. § 4454(a).
9. In its decision, the DRB clarified that the zoning specialist’s determination only applied to the strip of land between Appellant’s driveway a nd the southern boundary of his property, not the triangular easement on Mr. Cleary’s propert y. 4 The DRB concluded that Appellant had abandoned parking on this area for more than sixty days.

Discussion Appellant has moved for partial summary judgment on his arguments that Section 5.3.2 of the CDO is unconstitutionally vague and that it is preempted by the state nonconforming use statute (Questions 1 and 3 of his Statement of Ques tions, respectively). The City opposes the pending motion, asserting that Appellant misconstru es both the statute of limitations and the concept of lawful, pre-existing nonconformities. We begin our analysis by noting that this Court is directed to grant summary judgment to a party “if the movant shows that there is no ge nuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). 5 Because we find that

4 The City has objected to the use of the phrase “S outhern Parking Area” to refer to this strip of lan d between the driveway and the southern boundary of A ppellants’ property, since the city “does not recog nize this as a parking area.” See Appellee’s Opp. to Mot. fo r Summ. J. at 6 (filed Sept. 23, 3015). However, w e do not understand the City to dispute that it is only this strip of land that is the subject of the DRB’s det ermination.

5 Because the two questions at issue in this motion are pure questions of law, only the second prong o f this test is at issue in this motion. In his motio n for summary judgment, Appellant included a statem ent of additional facts in an effort to substantiate his a rgument (which he makes for the first time on appea l) that his parking is a lawful, preexisting nonconforming use dating back to 1966. See Appellant’s Additional St atement of Face in Support of Mot. for Summ. J. on Questions 1 & 3 (filed Aug. 18, 2015). The City objected to t he inclusion of these facts because the questions at issue in the m otion were purely legal and did not require substan tiating facts (note—all facts included in the background section of this decision were drawn from a stipulated state ment of facts). The City also asked that, if we did consid er these additional facts relevant to the dispositi on of this motion, we afford the City an opportunity to present eviden ce on the zoning ordinance in place in 1962. In Ap pellant’s4

Section 5.3.2 of the CDO is not unconstitutionally vague and that it is not preempted by the state nonconforming use statute, we deny Appellant’ s motion for summary judgment on both questions. 6

I. Vagueness Appellant argues that Section 5.3.2 of the CDO is u nconstitutionally vague, both on its face 7 and as-applied, because it “forbids or requires th e doing of an act in terms so vague that persons of common intelligence must guess at its me aning and differ as to its application.” See Appellant’s Mot. for Summ. J. (citing In re James G HIA, No. 31-2-03 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 19, 2003) (Wright, J.)). The Due Process Clause United States Constitution i mposes minimum clarity requirements for all statutes and ordinances. See In re Handy, 171 Vt. 336, 345 (2000). A vague statute or ordinance can offend due process e ither because it is so vague that it fails to give landowners notice of what is prohibited, or be cause it imposes so few limits on a decisionmaker’s discretion that it will lead to arbitrary d ecision-making. See In re Beliveau NOV, 2013 VT 41, ¶ 15, 194 Vt. 1. When a party challenges a law for failing to provid e adequate notice, we must determine whether a person of common intelligence h as fair warning of what is prohibited, considering the plain text of the challenged provis ion, the ordinance as a whole, the legislative history, relevant case law, and other extrinsic aid s. In re Highlands Development Co., No. 194- 10-03 Vtec, slip op. at 15 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.). Where a civil ordinance implicates only economic (n ot constitutional) rights, the bar for finding the ordinance void-for-vagueness is high. See id. (quoting In re Rusty Nail Acquisition,

reply, he conceded that the Court needs only “hypot hetical” facts for the review of this motion. See Appellant’s Reply in Support of Mot. for Summ. J. at 3 (filed O ct. 14, 2015). We agree that the current motion in volves pure issues of law, and that we need not consider the ad ditional facts regarding Appellant’s nonconforming use status for the purposes of deciding this motion.

6 The City has not cross-moved for summary judgment

. 7 Because facial vagueness challenges are only avai lable where a statute or ordinance threatens First Amendment rights, Maynard v. Cartwright, 486 U.S. 3 56, 361 (1988); see also State v. Cantrell, 151 Vt. 130, 133 (1989), and because Appellant makes no claim that S ection 5.3.1 threatens his First Amendment rights, we only consider Appellant’s as-applied challenge.5

Inc., 2009 VT 68, ¶ 12, 186 Vt. 195); see also Vill age of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99 (1982). Section 5.3.2 of the CDO reads: Sec. 5.3.2 “Bianchi” controlled uses, structures, a nd lots. Although not subject to enforcement under Article 2 , uses, structures, and lots which are deemed to be controlled by the Bianchi decision, and the subsequent enactment of 24 VSA Sec. 4454, shall be considered violations that are not considered legal to any extent and shall in no even t be granted the consideration or allowances of nonconforming structures, uses, an d lots. Thus, no change, alteration, enlargement, and reestablishment after discontinuance for more than sixty (60) days or reconstruction after an occurren ce or event which destroys at least 50% of the structure in the judgment of the c ity’s building inspector shall be permitted, except to a conforming use, structure, o r lot. In the Bianchi decision, the Vermont Supreme Court held that a zoning violation could constitute an encumbrance on title that violates th e covenant against encumbrances in a warranty deed where the violation would have been o bvious from an examination of municipal records and “the violation substantially impairs th e purchaser’s use and enjoyment of the property.” Bianchi v. Lorenz, 166 Vt. 555, 558, 56 1 (1997). The Bianchi decision had no bearing on a municipality’s ability to enforce zoning viola tions. Afraid that Bianchi would hinder real estate transa ctions, the Vermont Legislature passed legislation in 1998 that implemented a numbe r of reforms. 1999, No. 125. First, this statute explicitly superseded the Bianchi holding. See id. § 2, codified at 27 V.S.A. § 612(a) (“Notwithstanding the majority decision in Bianchi v. Lorenz (1997), for land development, as defined in 24 V.S.A. § 4303(10), no encumbrance on record title to real estate or effect on marketability shall be created by the failure to ob tain or comply with the terms or conditions of any required municipal land use permit as defined i n 24 V.S.A. § 4303(11).”). The statute also attempted to modernize and standardize municipal re cording, both for deeds and for zoning violations. See id. § 2, codified at 24 V.S.A. §§ 1154, 1161. Finally, the Act established a tenyear statute of limitations for enforcement of zoni ng violations. See id. § 2. Unsatisfied with the effects of the 1998 Act, the L egislature passed Act 25 in 1999 in an attempt to further clarify the law surrounding zoni ng violations and title transfer. See 1999, No. 46, § 1. The 1999 Act maintained the provision s superseding Bianchi, enhanced the6

provisions standardizing municipal record-keeping, and extended the statute of limitations for enforcement of zoning violations to fifteen years. See 1999, No. 46, § 2, codified at 24 V.S.A. §§ 1154, 1161; 27 V.S.A. § 612(a); 24 V.S.A. § 4454

. Given this history, the reference to the Bianchi de cision in Section 5.3.2 is confusing for two reasons. First, Bianchi is no longer good law, so nothing is “controlled by the Bianchi decision.” Second, even if Bianchi were still good law, Bianchi dealt with the covenant against encumbrances in a warranty deed, and it has no obvi ous relevance to ordinary zoning enforcement. Read literally, uses “controlled by t he Bianchi decision,” might mean “uses, structures, or lots with zoning violations that wou ld constitute encumbrances on title under Bianchi and that are currently subject to pending b reach-of-covenant litigation.” Read slightly less literally, it might mean “uses, structures, an d lots with zoning violations that ‘substantially impair[] the purchaser’s use and enjoyment of the p roperty’” or “uses, structures, and lots with zoning violations that would be discoverable throug h a search of the municipal records.” See id. at 558, 560–61. However, in considering a vagueness challenge, we d o not consider the challenged provisions in isolation; we will consider the statu te or ordinance as a whole, in light of relevant case law and legislative history. In re Highlands Development Co., No. 194-10-03 Vtec, slip op. at 15 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.). The section that precedes Section 5.3.2 sheds some light on the intended meaning of the Bianchi r eference. Section 5.3.1 reads, “This Part will also address ‘Bianchi-controlled situations’, in which a zoning violation may not [be] subject to enforcement under the standards set forth by the Vermont Supreme Court in the case entitled Bianchi v. Lorentz [sic] and later codified in 24 V.S.A. Sec. 4454.” CDO § 5.3.1. Section 5.3.1 mischaracterizes Bianchi because Bianchi did not render zoning violations unenforceable. From Section 5.3.1, however, we can discern that th e drafters considered “Bianchi” to be a kind of shorthand for the entire statutory body of law t hat the case prompted, including the fifteenyear statute of limitations on zoning violations in Section 4454. From this, we conclude that the reference to Bianchi in Section 5.3.2 was not meant to limit or expand the scope of violations7

controlled by Section 5.3.2. Rather, Section 5.3.2 applies to all violations claiming the protection of the statute of limitations. 8 We believe an ordinary reader informed about Bianch i and the ensuing legislation could likewise discern this meaning. At the very least, Section 5.3.1, which explains the ordinance drafters’ understanding of Bianchi, gives the avera ge landowner sufficient notice that Section 5.3.2 might impose a sixty-day period of abandonmen t for all zoning violations subject to the statute of limitations in 24 V.S.A. § 4454. This i s sufficient “definite fair warning as to proscribed conduct” in the less-stringent context o f a land use regulation. See In re Rusty Nail Acquisition, Inc., 2009 VT 68, ¶ 16, 186 Vt. 195 (q uoting Brody v. Barasch, 155 Vt. 103, 111 (1990)). We agree with Appellant that the Burlington ordinan ce at issue here is not a model of clarity. But we cannot agree that the ordinance is constitutionally infirm. Using ordinary tools of statutory interpretation, including surrounding provisions and legislative history, the ordinary landowner has sufficient warning that any claim to the protection of the statute of limitations concerning enforcement of zoning violat ions may be subject to a sixty-day period of abandonment.

II. Preemption Appellant next challenges the sixty-day abandonment period in Section 5.3.2 on preemption grounds. Appellant argues that the refe rence to Bianchi in Section 5.3.2 of the CDO means that Section 5.3.2 arguably applies to noncon formities and not merely to violations protected by the statute of limitations in 24 V.S.A . § 4454. If this is so, Appellant argues, the sixty-day period of abandonment in Section 5.3.2 is preempted by 24 V.S.A. § 4412(7)(A)(i), which provides that municipalities may “specify a t ime period that shall constitute abandonment or discontinuance of [a] nonconforming use, provided the time period is not less than six months.”

8 We recognize that this interpretation essentially ignores portions of the statutory text, and that w e avoid interpretations that render statutory provisi ons mere surplusage. See State v. Kreth, 150 Vt. 40 6, 409 (1988). However, we will ignore portions of a stat ute or ordinance that have been used inadvertently if necessary to effect legislative intent. See id. (citing Stat e v. Stevens, 137 Vt. 473, 481 (1942)).8

If Section 5.3.2 of the Burlington CDO attempted to establish a sixty-day period of abandonment for nonconforming uses, we agree that i t would be preempted by the six-month floor in the state nonconforming use statute, 24 V. S.A. § 4412(7)(A)(i). However, we cannot agree that Section 5.3.2 could be plausibly interpr eted to apply to nonconforming uses. “Nonconforming use” is a term of art. It does not mean “any use that does not conform to present land use regulations.” Rather, a noncon forming use is a use that was legal when it began, but that does not conform to land use regula tions established since its inception. 24 V.S.A. § 4303 (defining nonconforming use). See 24 V.S.A. § 4412(13)–(15). A nonconforming use is therefore not

a zoning violation. It is a fully legal use, whic h is why we often refer to these uses as “lawful preexisting nonconforming use s.” See, e.g., In re Bay Harbor Marina, Inc., No. 118-8-13 Vtec, slip op. at 5 (Vt. Envtl. Div. A pr. 4, 2014) (Durkin, J.). Conversely, a lot or structure that was illegal when it began, but which is unenforceable because it has been ongoing for more than fifteen years, see 24 V.S.A. § 4454, is not a nonconforming use: no use can qualify for nonconforming use status if it was illegal when it began. See City of St. Albans v. Hayford, 2008 VT 36, ¶ 11, 183 Vt. 596. Appellant misunderstands this distinction 9 and argues that the reference to Bianchi in Section 5.3.2 can be said to implicate nonconformin g uses. We do not agree. The Bianchi case dealt only with zoning violations , not nonconforming uses; it held that, when a zoni ng violation substantially impairs the use or enjoyment of prope rty, and when the violation would be evident from examining municipal records, the violation can be an “encumbrance” on title. Bianchi v. Lorenz, 166 Vt. 555, 558, 561 (1997). N onconforming uses are not violations—they are fully lawful uses. Bianchi therefore does not implicate nonconforming uses. 10

9 Appellant has characterized nonconforming uses as “properties that are in fact non-conforming in tha t they were sold with a pre-existing zoning violation that pre-dated the applicable ordinance.” See App ellant’s Mot. for Summ. J. at 7 (filed Aug. 18, 2015) (emphasis a dded). These “violations,” Appellant argues, could arguably be subject to Bianchi.

10 We also note that, even if Bianchi were somehow t o apply to nonconforming uses, we have interpreted the statute to essentially govern only those zoning violations claiming the protection of the statute of limitations. See Part I, supra. The statute of limitations does not apply to nonconforming uses, since nonconformi ng uses are fully lawful and do not require the protection from an enforcement action that a statute of limitation s affords. Thus, even if Bianchi applied to nonconforming uses , Section 5.3.2 still would not, and would therefor e not be preempted by the statutory nonconforming use abando nment period in 24 V.S.A. § 4412(7)(A).9

Because Section 5.3.2 plainly does not apply to non conforming uses, we see no conflict between Section 5.3.2 and the nonconforming use sta tute, 24 V.S.A. § 4412(7)(A). The nonconforming use statute forbids municipalities fr om establishing a period of abandonment for nonconforming uses that is shorter than six mon ths. § 4412(70(A)(i). Burlington has not done this. Rather, the City has established a sixt y-day period of abandonment for zoning violations that are protected from enforcement by t he statute of limitations in 24 V.S.A. § 4454. Since zoning violations protected by the statute of limitations are distinct from nonconforming uses, Burlington’s sixty-day period of abandonment in Section 5.3.2 is not preempted by the nonconforming use statute. 11

Conclusion We conclude that Section 5.3.2 of the Burlington Co mprehensive Development Ordinance is not unconstitutionally vague. We also conclude that, because it does not apply to nonconforming uses, it is not preempted by the nonc onforming use statute, 24 V.S.A. § 4412(7). We therefore DENY Appellant’s motion for summary judgment.

Electronically signed on January 27, 2016 at Newfan e, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Environmental Division

11 We note that this is the only preemption argument Appellant presented in both his Statement of Questions and his motion for summary judgment—Appel lant did not argue that the statute of limitations itself preempts municipalities from establishing periods o f abandonment for protected zoning violations.