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STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 160-11-17 Vtec

204 North Avenue NOV 

Decision on Cross-Motions for Summary Judgment 

 The present appeal is of a notice of violation (“NOV”) issued by the City of Burlington 

(“City”) to Mr. Pierre Gingue regarding his property located at 204 North Avenue, Burlington, 

Vermont. The NOV alleges that the property underwent a change of use from a duplex to a triplex 

in violation of the City of Burlington Comprehensive Development Ordinance (“Ordinance”). 

Presently before the Court are the parties’ cross-motions for summary judgment. 

 Mr. Gingue is represented by John L. Franco, Esq. The City is represented by Kimberlee J. 

Sturtevant, Esq. 

Standard of Review 

 Pursuant to V.R.C.P. 56(a), we will 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), applicable here through V.R.E.C.P. 5(a)(2). In 

determining whether there is any dispute over a material fact, “we accept as true [all] allegations 

made in opposition to the motion for summary judgment, so long as they are supported by 

affidavits or other evidentiary material.” White v. Quechee Lakes Landowners’ Ass’n, Inc., 170 

Vt. 25, 28 (1999) (citation omitted). When considering cross-motions for summary judgment, the 

Court considers each motion individually and gives the opposing party the benefit of all 

reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, 

¶ 5, 186 Vt. 332. 

Factual Background 

 We recite the following facts solely for the purpose of deciding the pending motions for 

summary judgment. 
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1. Mr. Gingue owns the property located at 204 North Avenue, Burlington, Vermont. 

2. Mr. Gingue purchased the property from its prior owner in 2002. The prior owner 

purchased the property 1979. 

3. In 1985, the City assessed the property as a duplex. City records indicate that the property 

was converted from a duplex to a triplex in 1992. 

4. On October 21, 1993, the City Assessor’s staff inspected the property. During this 

inspection, the City found that the structure had three units. 

5. The prior owner rented out the three units beginning in early 1993. 

6. A Certificate of Occupancy was not received for this change of use as required by the 

Ordinance. City of Burlington Comprehensive Development Ordinance, § 80(B)(2). Therefore, 

the use of the property as a triplex is in violation of the Ordinance. 

7. On July 7, 2017, the City issued NOV # 18-0072AP. The NOV alleges that the property 

underwent a “Change of use from a duplex (2 units) to a triplex (3 units) without zoning 

approval.” 

Discussion 

 The pending motions address the only issue before the Court. The only Question 

contained in Mr. Gingue’s Statement of Questions asks whether “[t]he enforcement action is 

barred by the Statute of Limitations, 24 V.S.A. § 4454(a).”1 Mr. Gingue and the City ask the Court 

to answer the Question in the affirmative and negative, respectively. 

 24 V.S.A § 4454(a) states that: 

An 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 under section 1974a, 4451, or 4452 of [Title 24] against the alleged offender 

if the action, injunction, or other enforcement proceeding is instituted within 15 years 

from the date the alleged violation first occurred and not thereafter. 

24 V.S.A. § 4454(a). 

 The City asserts that use violations, such as those that it alleges concerning Mr. Gingue’s 

property, are not subject to the statute of limitations. It asserts that the change of use from a 

duplex to a triplex is a use violation which is not subject to the statute of limitations. 

 

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 The Court interprets this Question to ask whether the NOV is barred by the statute of limitations, as the 

present matter is not an enforcement action. 
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 Mr. Gingue notes that the change in use occurred approximately 24 years prior to the 

issuance of the NOV. Therefore, he asserts the NOV is beyond the statute of limitations. He 

asserts that the statute of limitations is based on when the violation first occurred, not on the 

last occurrence.2 Mr. Gingue argues that the City’s interpretation, which relies on case law from 

this Court, is in error. Specifically, he asserts that the City’s interpretation rewrites the statute of 

limitations out of existence. We disagree. 

This Court has consistently held that use violations, like the one at issue here, are not 

time-barred by the statute of limitations because use violations are analyzed as continuing or 

recurring violations; each day the use violation allegedly occurs is a separate offense. See City of 

Burlington v. Richardson, No. 188-10-03 Vtec, slip op. at 12 (Vt. Envtl. Ct. Jun. 27, 2006) (Wright, 

J.) (citing City of St. Albans v. Hayford, No. 161-9-03 Vtec (Vt. Envtl. Ct. Jun. 1, 2004) (Wright, J.) 

aff’d 2008 VT 36, 183 Vt. 596.). Violations that are continuing are considered to recur each day 

anew. Hayford, No. 161-9-03 Vtec, slip op. at 5 (Jun. 1, 2004) (citations omitted). 

This interpretation is further supported by the general policy that “[p]roperty owners 

cannot initiate a new nonconforming use in violation of the municipal zoning ordinance and 

acquire a vested right to its continuation, as one goal of zoning is to phase out nonconforming 

uses.” Richardson, No. 188-10-03 Vtec, slip op. at 12 (Jun. 27, 2006) (citing In re Gregoire, 170 

Vt. 556, 558 (1998); In re Appeal of Richards, 2005 VT 23, ¶ 6, 178 Vt. 478). We have concluded 

that to rule otherwise would incentivize property owners to surreptitiously make unpermitted 

changes in use on their properties in the hopes of continuing the use through the statute of 

limitations. Id. 

 We conclude that this interpretation is not at odds with 24 V.S.A. § 4454(a). Instead, this 

interpretation recognizes the nature of the use violations. Use violations tend to be ongoing and 

daily violations, as opposed to other violations, including structural violations, which may occur 

once, upon which a limitation period could run. Hayford, No. 161-9-03 Vtec, slip op. at 5 (Jun. 1, 

2004) (citation omitted). Further, “[t]he right to bar action by use of a statute of limitation . . . 

 

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 Mr. Gingue interprets § 4454(a) as a statute of repose rather than a statute of limitations. We note that 

this Court, and the Vermont Supreme Court on appeal, has interpreted 24 V.S.A. § 4454(a) as a statute of limitations. 

This is supported by the plain language of the statute itself, which describes the period as a “limitation.” 24 V.S.A. 

§ 4454(a). 
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only accrues once the time limit has lapsed.” Sanz v. Douglas Collins Const., 2006 VT 102, ¶ 9, 

180 Vt. 619 (citation omitted). Therefore, as each day results in a new violation, since the use 

continues each day, the statute of limitations effectively begins to run anew each day. As such, 

a vested right may not be acquired by a use violation. 

It is uncontested that the alleged violation at the property is a use violation. It is also 

uncontested that the use in this appeal is unpermitted. Because this is a use violation, we 

conclude that the present NOV is not time-barred by the statute of limitations as set forth in 24 

V.S.A § 4454(a). Therefore, we DENY Mr. Gingue’s motion for summary judgment and GRANT

the City’s motion for summary judgment. 

Conclusion 

 For the foregoing reasons, we conclude that the NOV at issue in this appeal is not barred 

by the statute of limitations as set forth in 24 V.S.A. § 4454(a) because the underlying violation is 

a use violation. We therefore answer the sole question before the Court, asking whether the 

NOV is time-barred by § 4454(a), in the negative. As such, we DENY Mr. Gingue’s motion for 

summary judgment and GRANT the City’s cross-motion. 

 This concludes the matter before the Court. A Judgement Order accompanies this 

decision. 

Electronically signed on September 26, 2018 at St. Albans, Vermont, pursuant to V.R.E.F. 7(d). 

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Thomas S. Durkin, Superior Judge 

Environmental Division