1

STATE OF VERMONT 

ENVIRONMENTAL COURT 

 } 

City of Burlington, } 

 Plaintiff, } 

} 

v. } Docket No. 155-8-09 Vtec 

} 

Diana L. and Ronald N. Charboneau, } 

 Defendants. } 

 } 

Decision and Order on Cross-Motions for Summary Judgment

This case is an enforcement proceeding brought under 24 V.S.A. §§ 4451 and 

4452 by Plaintiff City of Burlington against Defendants Diana L. and Ronald N. 

Charboneau (Defendants) for alleged violations of the City of Burlington 

Comprehensive Development Ordinance (Ordinance) at property located at 66 Village 

Green. Plaintiff City is represented by Kimberlee J. Sturtevant, Esq.; Defendants are 

now represented by Marc E. Weiner, Esq. 

The complaint that instituted this enforcement action was served on Defendants 

on August 11, 2009. Defendants did not answer the complaint within twenty days of 

service, as required by V.R.C.P. 12(a)(1)(A), and therefore the City moved for default. 

On November 5, 2009, this Court granted the City’s motion for default judgment.1

 The 

Court’s November 5 order stated that “[i]f Defendants have transferred the property, 

they may move to vacate this order and should be prepared to file proof that the 

 

1

 An affidavit submitted in connection with the motion for default judgment revealed 

that Defendants had been represented in prior property transactions related to 66 

Village Green property by Attorney Weiner. Although no answer had been filed and no 

appearance was entered on behalf of Defendants at that time by, the Court provided 

Attorney Weiner with a courtesy copy of the default order. 
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property is owned by others.” After Defendants filed proof that a contract and deed 

had been executed in 1996, which purportedly transferred ownership of the 66 Village 

Green property to a Mr. John C. Kirby, the Court granted Defendants’ motion to set 

aside the entry of default and reopened this enforcement proceeding. 

The parties have now each moved for summary judgment. When “both parties 

move for summary judgment, each is entitled to the benefit of all reasonable doubts and 

inferences when the opposing party's motion is being judged.” City of Burlington v. 

Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5 (citing Toys, Inc. v. F.M. Burlington Co., 155 

Vt. 44, 48, 582 A.2d 123, 125 (1990)). 

In its motion, Plaintiff City asks the Court to establish the existence of the 

violations, arguing that Defendants were the “record owners” of the 66 Village Green 

property at the time of the violations and that because they did not appeal the Notices 

of Violation the violations became final. Defendants counter by asking the Court to 

dismiss the enforcement proceeding, arguing that they are not responsible for the 

violations as they “did not control the property, occupy the property, [or] permit[] or 

authorize anyone to use the property.” Defendants’ Motion for Summary Judgment, at 

2–3 (Feb. 8, 2010). Defendants also request that John C. Kirby be joined as a necessary 

party, although they have not sought to interplead him under V.R.C.P. 22 and 

V.R.E.C.P. 3. 

Facts stated in this decision are undisputed unless otherwise noted. In 

responding to Defendants’ Statement of Undisputed Material Facts, the City agreed that 

facts 1, 2, 3, 6, and 7 were “undisputed,” but qualified its response regarding facts 4, 5, 

8, and 9. As to facts 4, 5, 8, and 9, the City stated that those facts were undisputed “[f]or 

purposes of responding to the pending motions [for summary judgment] in this matter 

only and without prejudice to the City’s ability to dispute this purported fact at trial.” 

See City’s Response to Defendants’ Statement of Undisputed Material Facts (City’s 
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Response to Defendants’ SOF), ¶¶ 4, 5, 8, 9. The “undisputed” facts subject to this 

disclaimer are specifically noted in this decision.

Despite the City’s disclaimer, under V.R.C.P. 56, in response to Defendants’ 

statement of undisputed material facts, the City was required to file “a separate, short, 

and concise statement of the material facts as to which it is contended that there exists a 

genuine issue to be tried.” V.R.C.P. 56(c)(2). Rule 56(c)(2) provides that all of the facts 

in the moving party’s statement “will be deemed to be admitted unless controverted by 

the statement required to be served by the opposing party.” Id. Thus, Rule 56 does not 

provide for a party to state that certain facts are “undisputed” for purposes of summary 

judgment while still reserving the right to “dispute” them at trial. Rather, the City must 

either admit that the stated fact is “undisputed,” or it must dispute the fact and 

“contend[] that there exists a genuine issue to be tried” as to those facts. If the City does 

contend that such facts are in dispute, it “may not rest upon mere allegations or denials 

of the adverse party's pleading, but must set forth specific facts showing there is a 

genuine issue through affidavits.” Nature Conservancy v. Cantin, No. 2007-323, slip op. 

at 3 (Vt. Apr. 2009) (unpublished mem.) (quoting V.R.C.P. 56(e)). Rule 56 requires such 

supporting affidavits to “set forth such facts as would be admissible in evidence.” 

V.R.C.P. 56(e). 

Factual and Procedural History

Defendants are the former owners of a parcel of property located at 66 Village 

Green in the City of Burlington. Defendant Ronald Charboneau acquired an ownership 

interest in the property in 1983, and in 1993 conveyed the property to the joint 

ownership of himself and his wife Diane. See Warranty Deed, at 1 (Apr. 5, 1996). 

On April 5, 1996, Defendants entered into a “Contract for Deed” with John C. 

Kirby, in which Defendants “agree[d] to sell, convey, transfer, assign, and deliver” the 

66 Village Green property to John C. Kirby. Contract for Deed, at 1, ¶ 1. Under the 
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Contract for Deed, title to the property remained in Defendants’ names until the full 

purchase price was paid and the contract was fully complied with. Despite this delay in 

the transfer of title, the contract provided that John C. Kirby was immediately “entitled 

to exclusive use and possession of the [property] in the same manner, and to the same 

extent, as he would have had he received title” on the day on which the Contract for 

Deed was executed. Id. at 4, ¶ 5. 

On the same day, April 5, 1996, Defendants also executed a Warranty Deed 

conveying the property to John C. Kirby.2 Under the terms of the Contract for Deed, the 

Warranty Deed was to be held in escrow until “proof of payment in full” was delivered 

to the escrow agent, at which time the Warranty Deed was to be delivered by the 

escrow agent to John C. Kirby. Id. at 2, 4, ¶¶ 3, 8. The contract appointed Attorney 

Marc E. Weiner, who is representing Defendants in the present proceeding, as escrow 

agent for the transaction. Id. at 4, ¶ 8. 

After the parties entered into the Contract for Deed, Defendants state that John 

C. Kirby “took possession of the property,” but that “[t]itle remained in [their] names 

until John Kirby was able to refinance the property in his own name.” Charboneau Aff. 

¶ 4. For the purposes of the pending motions, the City does not dispute that, pursuant 

to the terms of the Contract for Deed, John C. Kirby took control of the property on 

April 5, 1996, nor does the City dispute that, from April 5, 1996, to the present, 

“Defendants were not in control of the [66 Village Green] property” and have not 

“exercised any ownership rights in the property whatsoever.” Defendants’ Statement 

of Undisputed Material Facts, at ¶¶ 4, 5 [hereinafter Defendants’ SOF]. 

 

2

 Defendants also executed a Mortgage Deed on April 5, 1996, naming Defendants as 

mortgagors and John C. Kirby as mortgagee, as provided in ¶ 15 of the Contract for 

Deed, to “secure [John C. Kirby]’s interest” in the property. Contract for Deed, at 6, 

¶ 16. 
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As of April 18, 2003, John C. Kirby had complied with all conditions of the 

Contract for Deed, when he was able to pay off the mortgage given by Defendants in 

1996. Charboneau Aff. ¶ 5; see also Mortgage Deed and Discharge Document, at 4 

(Apr. 18, 2003) (stating that John C. Kirby “does hereby release and discharge in full a 

certain mortgage from [Defendants] to John C. Kirby dated April 5, 1996”). Material 

facts are in dispute, or at least have not been provided to the Court, regarding the 

location of the original Warranty Deed after it was executed in 1996, including the 

circumstances of delivery of the original Warranty Deed to the escrow agent, its location 

as of 2003, or where and by whom the original deed was eventually located in 

November of 2009, prior to its recording by John C. Kirby’s mother, Leah Racine, who is 

also Diana L. Charboneau’s cousin. Charboneau Aff. ¶ 6 (Nov. 12, 2009). 

In May of 2007, more than eleven years after the Warranty Deed was signed, a 

City of Burlington Code Enforcement Officer inspected the property and discovered 

several Ordinance violations, including the existence of an unpermitted canvas storage 

structure and illegal parking and outdoor storage on the property. Francis Aff. ¶ 2 

(Aug. 4, 2009); see also City’s Complaint and Motion for Preliminary and Permanent 

Injunctive Relief, ¶ 6 (Aug. 4, 2009) [hereinafter Complaint]. During the inspection, the 

Code Enforcement Officer spoke to the tenant of the property, Jay Kirby, who said he 

would cure the violations within seven days. Francis Aff. ¶ 2; Complaint, ¶ 2. The 

Code Enforcement Officer conducted two follow-up visits on May 31 and June 19, 2007; 

during both visits, the Officer observed that the Ordinance violations had not been 

cured. Francis Aff. ¶¶ 3, 4; Complaint, ¶¶ 7–8. 

On June 19, 2007, a formal Notice of Violation was sent both by certified mail and 

by first class mail to Jay Kirby and to Defendant Diana Charboneau. Francis Aff. ¶ 5; 

Complaint, ¶ 9. The City has not provided a copy of this Notice of Violation or of the 

certified mail receipts, and has not stated to what address the Notice of Violation was 

mailed to the Charboneaus. The certified mail copy of the Notice of Violation mailed to 
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Jay Kirby was received by him on June 26, 2007. Material facts are in dispute as to 

whether the first-class mail copy of the Notice of Violation mailed to Defendant Diana 

Charboneau was received by her; however, the certified mail copy was not claimed by 

her. Francis Aff. ¶ 5; Complaint, ¶ 9. No appeal was filed from the 2007 Notice of 

Violation, and it became final at least as to Jay Kirby. 24 V.S.A. §4472(d). 

A second Notice of Violation was sent both by certified mail and by first class 

mail to Defendants on August 5, 2008. The City has not provided a copy of this Notice 

of Violation or of the certified mail receipt, and has not stated to what address this 

Notice of Violation was mailed. The certified mail copy was claimed on August 27, 

2008, but material facts have not been provided to show who signed for the certified 

mail. Id. ¶ 11. No appeal was filed from the 2008 Notice of Violation, and it may have 

become final as to the existence of the violations, depending on the circumstances of 

notice of it to Defendants. 24 V.S.A. §4472(d); see also, e.g, Town of Randolph v. Estate 

of White, 166 Vt. 280, 283 (1997) (stating that “[a]n elementary and fundamental 

requirement of due process in any proceeding which is to be accorded finality is notice 

reasonably calculated, under all the circumstances, to apprise interested parties of the 

pendency of the action and afford them an opportunity to present their objections” 

(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))). 

Defendants’ answer suggests that Defendants became aware of both Notices of 

Violation at some time, as they admit as to both Notices of Violation that they “ignored 

the notices of violation as they had conveyed this property to John Kirby years before 

and[,] to the best of their knowledge, had no legal interest in the premises, including the 

right to enter [onto the property] or abate any violations.” Defendants’ Answer to 

Complaint, at 2, ¶¶ 3 (Nov. 9, 2009) [hereinafter Answer]. For the purposes of the 

pending motions, the City does not dispute the fact that “[t]here is no evidence that 

Defendants participated in or contributed to any of the violations set forth in Plaintiff’s 

complaint.” Defendants’ SOF, at ¶ 8. 
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As of August 4, 2009, the date on which the most recent inspection of the 

property occurred, the Ordinance violations regarding the canvas storage structure and 

the exterior storage remained in existence on the property. Francis Aff. ¶ 19; 

Complaint, ¶ 13. On August 4, 2009, Plaintiff City filed the complaint in this 

enforcement proceeding, asking the Court to order the violations to be corrected, 

pursuant to 24 V.S.A. § 4452, and asking for a fine to be imposed on 

Defendants, pursuant to 24 V.S.A. § 4451.3

 

After their motion to vacate the entry of default had been granted, Defendants 

filed their answer to the complaint on November 9, 2009. As one of their affirmative 

defenses, Defendants stated that “[b]ecause [they] did not create the zoning 

violations . . . and because [they] have no legal right to enter upon the lands and 

premises . . . they cannot abate, remove or correct the violations which are set forth in 

Plaintiff’s complaint.” Answer, at 2, ¶ 10. Also on November 9, 2009, the 1996 

Warranty Deed was recorded in the City’s land records by John C. Kirby’s mother. 

Charboneau Aff. ¶ 7. 

Effect of Defendants’ Execution of the 1996 Deed and Failure to Record

In its motion for summary judgment, Plaintiff City asks the Court to establish the 

existence of the Ordinance violations, arguing that Defendants were the “record 

owners” of the 66 Village Green property until November 9, 2009, and that, because 

they did not appeal the Notices of Violation, the existence of the violations has become 

final and cannot be contested in this enforcement action. In their cross-motion, 

Defendants ask this Court to dismiss the enforcement proceeding because they “did not 

 

3

 See 24 V.S.A. § 4451 (authorizing the imposition of up to $100 per violation of a zoning 

bylaw, and establishing that each day that such a violation continues is a separate 

offense); id. § 4452 (authorizing municipalities to bring an enforcement action in 

environmental court “to prevent, restrain, correct, or abate” a violation of a zoning 

ordinance). 
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control the property, occupy the property, permit, or authorize anyone to use the 

property” after April 5, 1996, and therefore cannot be held liable for violations that 

occurred on the property after that date. 

Although Plaintiff City acknowledges that Defendants executed both the 

Contract for Deed and the Warranty Deed in 1996, which purportedly transferred the 

property to John C. Kirby, it argues that Defendants are nevertheless liable because they 

were the “owners of record” of the property until the Warranty Deed was actually 

recorded in November 2009. In effect, the City is asking the Court to hold that if the 

purchaser of property fails to record a deed, the sellers remain responsible as “owners” 

of the property for any zoning violations that took place on the property prior to 

recordation. 

Contrary to the City’s theory, however, an unrecorded deed still operates to 

transfer the seller’s ownership in the property to the buyer. See, e.g., In re Galvin, 120 

B.R. 767, 770 (Bankr. D. Vt. 1990) (stating that the “failure to record under [the recording 

statute] still operates to pass the assignor's interest to the assignee”); Duhamel v. 

Donnelly, No. 207-227, slip op. at 2 (Vt. Dec. 2007) (unpublished mem.) (holding that a 

failure to record, in and of itself, did not affect the transfer of ownership from the seller 

to the buyer); Spaulding v. H. E. Fletcher Co., 124 Vt. 318, 323 (1964) (“Even if not 

recorded an assignment operates to pass the assignor's interest to the assignee.”).4

Therefore, if and when Defendants transferred ownership of the property to John 

C. Kirby through a validly executed (albeit unrecorded) deed, they no longer had an 

 

4

 See also In re Estate of Deschenes, 818 A.2d 1026, 1030 (Me. 2003) (“The want of record 

of a deed does not render the instrument void.” (quoting Gatchell v. Gatchell, 143 A. 

169, 170 (1928))); 66 Am. Jur. 2d Records and Recording Laws § 136 (2010) (stating that 

“[s]ince recording is required for the protection of third persons, the recording statutes 

do not change the rule that an unrecorded deed, mortgage, lease, or other instrument 

affecting the title to land is valid as between the parties thereto”); id. § 82 (stating that 

recording statutes “give no substantive rights in themselves”). 
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interest in the property and they cannot be held liable for zoning violations that 

occurred after the transfer of ownership. See, e.g., Smith v. Monmaney, 127 Vt. 585, 

592–93 (1969) (“Following a transfer of ownership and possession of real estate to a 

vendee without reservation, a vendor of realty is in no position to control the use 

thereof” and the “vendor divests himself of title and all right of possession or of reentry 

for repairs or for any other purpose.”). If ownership was transferred from Defendants 

to John C. Kirby when the deed was signed in 1996, or when the contract was fulfilled 

in 2003, or at any time prior to the Notices of Violation, then Defendants cannot be held 

responsible for the violations under the Ordinance unless they “knowingly” 

participated in the violations, as provided in § 2.7.6 of the Ordinance, discussed further 

below. 

However, the materials submitted in connection with the parties’ motions fail to 

establish the material fact of when ownership of the property was considered to be 

transferred from Defendants to John C. Kirby through actual or imputed “delivery” of a 

validly executed deed. It is well-settled under Vermont law that a “deed does not take 

effect until it is delivered.” Spero v. Bove, 116 Vt. 76, 86 (1950).5 In order “[t]o 

constitute a delivery of a deed the grantor must part with the custody and control of the 

instrument, permanently, with the intention of having it take effect as a transfer of the 

title, and must part with his right to the instrument as well as with the possession.” 

Rich v. Wry, 110 Vt. 307, 307 (1939) (citing Elmore v. Marks, 39 Vt. 538, 541 (1867); 

Walsh's Adm'x v. Vt. Mutual Fire Ins. Co., 54 Vt. 351, 360 (1882)). 

But although “delivery is essential to the validity of a deed, it is not necessary 

that there should be an actual manual delivery” from seller to buyer. Id. Delivery is 

 

5

 See also Fisher v. Poole, 142 Vt. 162, 167 (1982) (stating that a deed does not take effect 

until it has been delivered to the grantee); 23 Am. Jur. 2d Deeds § 103 (2010) (“[I]t is the 

universal rule . . . that a deed, to be operative as a transfer of the ownership of land or 

an interest or estate therein, must be delivered; it is delivery that gives the instrument 

force and effect.”). 
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sufficient, absent a manual delivery from seller to buyer, if the deed “is so disposed of 

as to evince clearly the intention of the parties that it should take effect as a 

conveyance.” Id. (citing Orr v. Clark, 62 Vt. 136, 146 (1890); Gorham's Adm'r v. 

Meacham's Adm'r, 63 Vt. 231, 233 (1891)); see also Dwinell v. Bliss, 58 Vt. 353, 254 (1886) 

(“Delivery may either be actual,—that is, by doing something and saying nothing; or 

verbal,—that is, by saying something and doing nothing; or it may be both.” (citation 

and quotations omitted)). 

For example, delivery of the deed by the seller to a third party in escrow, who 

will then deliver the deed to the buyer, can constitute delivery as long as the seller 

intended for that action to operate as a conveyance. See, e.g., 23 Am. Jur. 2d Deeds

§ 119 (“The delivery of a deed to a third person with instructions to pass it on to the 

grantee, and without any reservation by the grantor of a right to recall it, is sufficient in 

law and effects a complete transfer of the title to the property.”). However, if a deed is 

deposited with a third person in escrow to be delivered only after the satisfaction or 

performance of certain conditions, then the deed will not take effect until such 

conditions have been fulfilled. See Dunlevy v. Fenton, 80 Vt. 505, 505 (1908) (“When a 

deed is deposited with a third person, to be delivered to the grantee only upon the 

performance of some condition precedent, and the depositary delivers it without the 

performance of the condition, there is no delivery in law, and the deed is without 

effect.” (citation omitted)); 23 Am. Jur. 2d Deeds § 119 (“When a deed is placed in the 

hands of a third person to hold until a certain act is performed, no title passes until that 

act is performed.”). 

Upon the fulfillment of all conditions, however, it remains unsettled under 

Vermont law whether such a deed becomes operative only upon actual delivery by the 

escrow agent to the grantee, or whether it automatically takes effect upon the 

fulfillment of all conditions. See 28 Am. Jur. 2d Escrow § 119 (“Although some 

authorities hold that an instrument held in escrow, such as a deed, does not take effect 
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and transfer title until it is delivered to the grantee or obligee, others hold that upon . . . 

performance of the condition upon which the delivery must be made by the depositary 

to the grantee or obligee, the title to the instrument ipso facto vests in the grantee or 

obligee without an actual delivery.”). 

In the present case, the 1996 Contract for Deed states that “[u]pon payment of the 

purchase price . . . and upon the full and complete performance of all of the terms and 

conditions herein, SELLER shall, pursuant to the terms of paragraph 8 herein, deliver to 

the BUYER a good and sufficient Warranty Deed conveying the [property] . . . .” 

Contract for Deed, at 2, ¶ 3. Paragraph 8 of the contract, which spells out the precise 

terms for delivery of the deed, states that the warranty deed “shall be held in escrow by 

Marc E. Weiner, as escrow agent, until such time as proof of payment in full . . . has 

been delivered to said escrow agent,” at which time he was to deliver the deed to John 

C. Kirby. Id. at 4, ¶ 8. According to the terms of the Contract for Deed, therefore, the 

method of delivery was established. However, material facts have not been provided 

regarding whether the original warranty deed was relinquished by Defendants and 

held by the escrow agent as of its signing in 1996, or regarding what, if anything, 

occurred as of 2003 when the contract’s conditions were fulfilled, or where the original 

warranty deed was located at that time. The parties do not dispute the fact that, as of 

2003, the original deed was not recorded. Charboneau Aff. ¶ 5; see also Answer, at 2, 

¶ 5 (“In connection with a refinance by John Kirby, the title was searched and Mr. 

Kirby’s attorney found the original deed was never recorded.”). It was not until after 

the current enforcement action was instituted that the original deed was “located and 

delivered to John Kirby’s mother Leah Racine,” who recorded the deed on November 9, 

2009. Charboneau Aff. ¶¶ 6, 7. 

Therefore, as to the issue of when the 1996 deed took effect, summary judgment 

must be denied at the present time as material facts are in dispute, or at least have not 

been provided to the Court, as to when the “delivery” of the deed was accomplished. 
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The parties will be given an opportunity to present further affidavits and legal 

memoranda on this issue. 

Whether Charboneaus are Proper Defendants under the Ordinance 

Regardless of when the deed to the 66 Village Green property was in fact 

transferred to John C. Kirby, the City may only maintain this action against Defendants 

if they are proper defendants under the Ordinance. 

Two sections of the ordinance are relevant to the task of determining those who 

may be held responsible for violations of the Ordinance. First, the “General Provisions” 

section of the Ordinance states: 

Except as otherwise provided in this ordinance, no person may use or 

occupy any land or buildings or authorize or permit the use or occupancy 

of land or buildings under his or her control except in accordance with the 

applicable provisions of this ordinance. For purposes of this section, the 

“use” or “occupancy” of a building or land relates to anything and 

everything that is done to, on, or in that building or land. 

Ordinance § 1.1.7 (emphasis added). Under this section, persons who control land or 

buildings must comply with the Ordinance. 

However, control of land or buildings is not necessarily required to hold a 

person responsible for an Ordinance violation. Rather, § 2.7.6 of the Ordinance, which 

falls under the “Enforcement” chapter, delineates those persons who can be held 

responsible for violations of the provisions of the Ordinance: 

The owner, tenant, or occupant of any structure or land or part thereof 

who participates in, assists, directs, creates, or maintains any situation that 

is contrary to the requirements of this ordinance, and any architect, 

builder, contractor, agent, or other person who knowingly participates in, 

assists, directs, creates, or maintains any situation that is contrary to the 

requirements of this ordinance, may be held responsible for the violation 

and suffer the penalties and be subject to the remedies herein provided. 
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Ordinance § 2.7.6.6 Under this section, an owner (or tenant or occupant) of property 

cannot be held responsible for a violation of the Ordinance unless that person 

“participates in, assists, directs, creates, or maintains” a situation that violates the 

Ordinance. In addition, any person other than an owner (or tenant or occupant) must 

“knowingly” participate in, assist, direct, create or maintain a violation in order to be 

held responsible for that violation. If the City cannot show that Defendants fall within 

either portion of § 2.7.6, Defendants cannot be held responsible for the violations. 

For the purposes of the present motions, the City does not dispute that, from 

April 5, 1996, to the present, “Defendants were not in control of the [66 Village Green] 

property” and have not “exercised any ownership rights in the property whatsoever.” 

Defendants’ SOF, at ¶¶ 4, 5. The City also does not dispute, for the purposes of the 

present motions, that “[t]here is no evidence that Defendants participated in or 

contributed to any of the violations set forth in Plaintiff’s complaint.” Defendants’ SOF, 

at ¶ 8. 

Because each party is “entitled to the benefit of all reasonable doubts and 

inferences when the opposing party's motion [for summary judgment] is being judged,” 

Fairpoint Commc’ns, 2009 VT 59, ¶ 5, and because the City has attempted to “reserve 

the right to contest these purported facts at trial,” the Court will give the City ten days 

to comply with V.R.C.P. 56(c) and (e) by either coming forward with affidavits or other 

evidence to dispute those facts, or by stating that such facts are indeed undisputed. If it 

is undisputed that Defendants did not participate in, assist, direct, create, or maintain 

any violation on the property, which is required under the first portion of § 2.7.6 to hold 

them responsible for a violation even if they still had an ownership interest in the 

 

6

 Although the parties provided the Court with § 1.1.7 of the Ordinance, they only 

provided a portion of § 2.7.6. The complete text of § 2.7.6 is found at: 

http://www.ci.burlington.vt.us/planning/zoning/zn_ordinance/burlington_vermont_zo

ning_ordinance_20090421.pdf. The parties have not suggested that any earlier version 

of the zoning ordinance is applicable to the present case. 
14

property, then summary judgment will be entered in favor of Defendants. Similarly, 

under the second portion of § 2.7.6, if it is undisputed that the deed was “delivered” in 

2003 when the contract conditions were fulfilled by John C. Kirby, or was “delivered” at 

any time prior to the Notices of Violation, then Defendants were no longer even the 

record owners of the property. As the City does not assert that they “knowingly” 

participated in, assisted, directed, created, or maintained any violation on the property, 

which is required to hold them responsible for a violation under the second portion of 

§ 2.7.6, then summary judgment will be entered in favor of Defendants. 

Accordingly, on or before April 23, 2010, the City may provide affidavits or 

evidence in support of its contesting of any of Defendants’ undisputed facts; otherwise, 

summary judgment will be entered in favor of Defendants effective on April 26, 2010. If 

this matter is not concluded on that basis, then on or before May 3, 2010, Defendants 

may provide any additional affidavits or evidence pertaining to the issue of “delivery” 

of the deed, and may submit any additional memorandum regarding actual or imputed 

delivery of the deed, and on or before May 13, 2010, the City may submit any reply 

memorandum on that issue. 

Done at Berlin, Vermont, this 13th day of April, 2010. 

 _________________________________________________ 

 Merideth Wright 

 Environmental Judge