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 behind the residence at his property at 164 

North Willard Street in the City of Burlington (“City”). 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 Comprehensive Development Ordinance 

(“CDO”) that attempts to establish that a zoning violation will be deemed abandoned after a 

sixty-day period of non-use is (1) unconstitutionally 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 Killoran, 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 motions, we recite the following facts, 

which we understand to be undisputed unless otherwise noted. Some of the facts listed below 

were drawn from the Court’s examination of materials 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 ingress 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 notification letter that advised 

Appellant that a complaint had been received that he had expanded the parking occurring in 

the rear of his property. In this letter, the zoning specialist invited Appellant to refute the 

complaint and provide evidence in support of his position. 

5. The zoning specialist then made physical inspections of Appellant’s property on several 

occasions over the months of September, October, and 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 whether parking was or had been occurring or 

had been expanded. The zoning specialist discovered “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 portion of his driveway was attached as page 2 of Exhibit 

5 to Appellant’s pending motion. 

2

 The facts currently before the Court make it unclear whether this initial complaint alleged that 

Appellant expanded parking onto the easement area or 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 adjacent 

property . . . .” In subsequent language that appears to reference a different portion of Appellant’s land, a motion 

was made that the DRB “highly recommend that the owner 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 determination of no violation by the Code Enforcement 

Officer,” passed on a vote of 5-0-0. The legal issues raised in this motion do not require us to determine where 

Appellant’s alleged parking expansion occurred. 

3

 This July 22, 2014 letter, a copy of which was attached to Appellant’s motion for summary judgment as 

Exhibit 4, is incorrectly referenced as a “September 22, 2014 notification letter” in the subsequent letter from the 

zoning specialist dated January 29, 2015, a copy of which was attached to Appellant’s motion as Exhibit 5. 
3 

the evidence submitted, including affidavits that Appellant submitted in response to the 

complaint, was “found inconclusive to determine that the 15-year enforcement statute of 

limitations is applicable to” Appellant’s property. 

7. The zoning specialist also included the following directive in her January 28, 2015 letter: 

“All disturbed areas, as a result of previous parking, 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 limitations 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 and the southern boundary of his property, 

not the triangular easement on Mr. Cleary’s property.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 Questions, respectively). The City opposes the 

pending motion, asserting that Appellant misconstrues 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 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).5 Because we find that 

 

4

 The City has objected to the use of the phrase “Southern Parking Area” to refer to this strip of land 

between the driveway and the southern boundary of Appellants’ property, since the city “does not recognize this 

as a parking area.” See Appellee’s Opp. to Mot. for Summ. J. at 6 (filed Sept. 23, 3015). However, we do not 

understand the City to dispute that it is only this strip of land that is the subject of the DRB’s determination. 

5

 Because the two questions at issue in this motion are pure questions of law, only the second prong of 

this test is at issue in this motion. In his motion for summary judgment, Appellant included a statement of 

additional facts in an effort to substantiate his argument (which he makes for the first time on appeal) that his 

parking is a lawful, preexisting nonconforming use dating back to 1966. See Appellant’s Additional Statement of 

Face in Support of Mot. for Summ. J. on Questions 1 & 3 (filed Aug. 18, 2015). The City objected to the inclusion of 

these facts because the questions at issue in the motion were purely legal and did not require substantiating facts 

(note—all facts included in the background section of this decision were drawn from a stipulated statement of 

facts). The City also asked that, if we did consider these additional facts relevant to the disposition of this motion, 

we afford the City an opportunity to present evidence on the zoning ordinance in place in 1962. In Appellant’s 
4 

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 unconstitutionally vague, both on its 

face7 and as-applied, because it “forbids or requires the doing of an act in terms so vague that 

persons of common intelligence must guess at its meaning and differ as to its application.” See 

Appellant’s Mot. for Summ. J. (citing In re James GHIA, No. 31-2-03 Vtec, slip op. at 8 (Vt. Envtl. 

Ct. Nov. 19, 2003) (Wright, J.)). 

The Due Process Clause United States Constitution imposes 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 either because it is so vague that it fails to 

give landowners notice of what is prohibited, or because it imposes so few limits on a decisionmaker’s discretion that it will lead to arbitrary decision-making. See In re Beliveau NOV, 2013 

VT 41, ¶ 15, 194 Vt. 1. 

When a party challenges a law for failing to provide adequate notice, we must 

determine whether a person of common intelligence has fair warning of what is prohibited, 

considering the plain text of the challenged provision, the ordinance as a whole, the legislative 

history, relevant case law, and other extrinsic aids. 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 (not 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 “hypothetical” facts for the review of this motion. See Appellant’s 

Reply in Support of Mot. for Summ. J. at 3 (filed Oct. 14, 2015). We agree that the current motion involves pure 

issues of law, and that we need not consider the additional 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 available where a statute or ordinance threatens First 

Amendment rights, Maynard v. Cartwright, 486 U.S. 356, 361 (1988); see also State v. Cantrell, 151 Vt. 130, 133 

(1989), and because Appellant makes no claim that Section 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 Village 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, and 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 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 a conforming use, structure, or lot. 

In the Bianchi decision, the Vermont Supreme Court held that a zoning violation could 

constitute an encumbrance on title that violates the covenant against encumbrances in a 

warranty deed where the violation would have been obvious from an examination of municipal 

records and “the violation substantially impairs the purchaser’s use and enjoyment of the 

property.” Bianchi v. Lorenz, 166 Vt. 555, 558, 561 (1997). The Bianchi decision had no bearing 

on a municipality’s ability to enforce zoning violations. 

Afraid that Bianchi would hinder real estate transactions, the Vermont Legislature 

passed legislation in 1998 that implemented a number 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 obtain or comply with the terms or conditions of 

any required municipal land use permit as defined in 24 V.S.A. § 4303(11).”). The statute also 

attempted to modernize and standardize municipal recording, 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 zoning violations. See id. § 2. 

Unsatisfied with the effects of the 1998 Act, the Legislature passed Act 25 in 1999 in an 

attempt to further clarify the law surrounding zoning violations and title transfer. See 1999, 

No. 46, § 1. The 1999 Act maintained the provisions superseding Bianchi, enhanced the 
6 

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 decision 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 obvious relevance to ordinary zoning 

enforcement. Read literally, uses “controlled by the Bianchi decision,” might mean “uses, 

structures, or lots with zoning violations that would constitute encumbrances on title under 

Bianchi and that are currently subject to pending breach-of-covenant litigation.” Read slightly 

less literally, it might mean “uses, structures, and lots with zoning violations that ‘substantially 

impair[] the purchaser’s use and enjoyment of the property’” or “uses, structures, and lots with 

zoning violations that would be discoverable through a search of the municipal records.” See id. 

at 558, 560–61. 

However, in considering a vagueness challenge, we do not consider the challenged 

provisions in isolation; we will consider the statute 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 reference. 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 the drafters considered “Bianchi” to be a kind 

of shorthand for the entire statutory body of law that 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 violations 
7 

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 Bianchi 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 average landowner sufficient notice that Section 

5.3.2 might impose a sixty-day period of abandonment for all zoning violations subject to the 

statute of limitations in 24 V.S.A. § 4454. This is sufficient “definite fair warning as to 

proscribed conduct” in the less-stringent context of a land use regulation. See In re Rusty Nail 

Acquisition, Inc., 2009 VT 68, ¶ 16, 186 Vt. 195 (quoting Brody v. Barasch, 155 Vt. 103, 111 

(1990)). 

We agree with Appellant that the Burlington ordinance 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 violations 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 reference to Bianchi in Section 5.3.2 of the CDO 

means that Section 5.3.2 arguably applies to nonconformities 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 time 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 we 

avoid interpretations that render statutory provisions mere surplusage. See State v. Kreth, 150 Vt. 406, 409 

(1988). However, we will ignore portions of a statute or ordinance that have been used inadvertently if necessary 

to effect legislative intent. See id. (citing State 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 it 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 interpreted 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 nonconforming use is a use that was legal when it 

began, but that does not conform to land use regulations 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, which is why we often refer to 

these uses as “lawful preexisting nonconforming uses.” See, e.g., In re Bay Harbor Marina, Inc., 

No. 118-8-13 Vtec, slip op. at 5 (Vt. Envtl. Div. Apr. 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 distinction9 and argues that the reference to Bianchi in 

Section 5.3.2 can be said to implicate nonconforming uses. We do not agree. The Bianchi case 

dealt only with zoning violations, not nonconforming uses; it held that, when a zoning violation

substantially impairs the use or enjoyment of property, 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). Nonconforming 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 that 

they were sold with a pre-existing zoning violation that pre-dated the applicable ordinance.” See Appellant’s Mot. 

for Summ. J. at 7 (filed Aug. 18, 2015) (emphasis added). These “violations,” Appellant argues, could arguably be 

subject to Bianchi. 

10 We also note that, even if Bianchi were somehow to 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 nonconforming uses are 

fully lawful and do not require the protection from an enforcement action that a statute of limitations affords. 

Thus, even if Bianchi applied to nonconforming uses, Section 5.3.2 still would not, and would therefore not be 

preempted by the statutory nonconforming use abandonment period in 24 V.S.A. § 4412(7)(A). 
9 

Because Section 5.3.2 plainly does not apply to nonconforming uses, we see no conflict 

between Section 5.3.2 and the nonconforming use statute, 24 V.S.A. § 4412(7)(A). The 

nonconforming use statute forbids municipalities from establishing a period of abandonment 

for nonconforming uses that is shorter than six months. § 4412(70(A)(i). Burlington has not 

done this. Rather, the City has established a sixty-day period of abandonment for zoning 

violations that are protected from enforcement by the 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 Comprehensive Development 

Ordinance is not unconstitutionally vague. We also conclude that, because it does not apply to 

nonconforming uses, it is not preempted by the nonconforming use statute, 24 V.S.A. 

§ 4412(7). We therefore DENY Appellant’s motion for summary judgment. 

Electronically signed on January 27, 2016 at Newfane, 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—Appellant did not argue that the statute of limitations itself 

preempts municipalities from establishing periods of abandonment for protected zoning violations.