1 STATE OF VERMONT

ENVIRONMENTAL COURT
} In re: Wesco, Inc. (211–219 Main St., Burlington) } Notice of Violation } Docket No.106-5-07 Vtec (Appeal of Wesco, Inc.) } }
} City of Burlington, Plaintiff, } } v. } Docket No. 177-8-07 Vtec } Wesco, Inc., Defendant. } }
} In re: Wesco, Inc. (211-219 Main St., Burlington) } Parking Permit Application } Docket No. 197-9-07 Vt ec (Appeal of Wesco, Inc.) } }

Decision and Order on Cross-Motions for Partial Sum mary Judgment In Docket No. 106-5-07 Vtec, Appellant Wesco, Inc. appealed from a decision of the Development Review Board (DRB) of the City of Burli ngton, upholding the Zoning
Administrator’s issuance of a Notice of Violation f or operating a “private parking lot” use on the property. In Docket No. 177-8-07 Vtec, the Ci ty brought an enforcement action against Defendant Wesco, Inc. for that asserted vio lation. In Docket No. 197-9-07 Vtec, Appellant Wesco, Inc. appealed from a decision of the DRB upholding the Zoning Administrator’s denial of a subsequent permit appli cation for a 15-space private parking lot use on the property. These three matters have been consolidated by agreement of the parties; the present motions were filed in Docket N os. 106-5-07 Vtec and 197-9-07 Vtec.1 In 1955, Gulf Oil obtained a long, thin triangle o f additional property along the

South Winooski Avenue frontage, measuring 5.65 feetalong Main Street and 63.35 feet

2 Appellant-Defendant (Appellant) Wesco, Inc., is repre sented by Jon T. Anderson, Esq., David W. Rugh, Esq., and William E. Simendinger; th e City is represented by Kimberlee J. Sturtevant, Esq.
As of the issuance of the Notice of Violation in Ma rch of 2007, the parties agree that it was the 2005 Zoning Ordinance that was in effectand is applicable, at least to the Notice
of Violation and enforcement actions which are the subject of the present motions. If any aspects of the subsequently proposed and adopted Zo ning Ordinance may be applicable to the permit application, the parties have not bro ught such provisions to the attention of the Court; please be prepared to discuss that issue in the conference scheduled in the final paragraph of this decision. In the two appeals: Docket Nos. 106-5-07 Vtec and 1 79-9-07 Vtec, Appellant Wesco, Inc. has moved for summary judgment, seeking dismis sal of the notice of violation and grant of the application to rent out available park ing spaces on the site. The following facts are undisputed unless otherwise noted.

Facts The property at issue in these cases is a corner lo t located at 211–219 Main Street on
the south side of Main Street and the east side of South Winooski Avenue, within the city block bounded by King Street to the south and by So uth Union Street to the east, in what is now a residential high-density zoning district. Prior to zoning, and under the 1947 and 1962 Ordinan ces Appellant’s predecessor, the Gulf Oil Corporation (Gulf Oil) acquired the property in 1944 (except for a boundary adjustment at the So uth Winooski Avenue frontage acquired
in 1955 1 ). As of the first adoption of zoning in the City of Burlington in 1947, Gulf Oilalong South Winooski Avenue.

3

operated on the property an automobile service stat ion for the repair of vehicles and the sale of gasoline. Under the 1947 Zoning Ordinance, the property was i n the “Commercial” zoning district, in which the use category of “gasoline fi lling station” and the use category of “public garage or stable” were both conditionally p ermitted uses, that is, requiring approval by the Zoning Board of Adjustment. 1947 Z oning Ordinance, § 8(2),(4). The term “public garage” was defined as an other-than-privat e garage used for more than three vehicles “where any such vehicles are . . . stored, repaired, [or] serviced . . . .” 1947 Zoning Ordinance, § 16(7). The 1947 Zoning Ordinance also provided for the continuation of existing non-conforming uses, and their enlargement and alteration, in §§ 10 and 11. The 1947 Zoning Ordinance did not require any parti cular amount of off-street parking for any of its uses, and therefore the prop erty was not non-conforming with regards to off-street parking. The gasoline fillin g station and repair garage uses, as well as any unrelated parking that may have been occurring at that time, were all allowed uses in the district, and were non-conforming only to the e xtent that they had not obtained conditional approval from the ZBA. Under the 1962 Zoning Ordinance, the use category o f “parking lot” was defined within the category of “personal service establishm ents” as an allowed use in the Commercial zoning district. 1962 Zoning Ordinance, T.27 § 6512(5). The use category including “service or repair shops for automobiles” and “gasoline filling stations” required approval of the then-ZBA as a so-called “special ex ception.” 1962 Zoning Ordinance, T.27 § 6512(15)(A). Section 6214 prohibited gasoline fi lling stations within an area including the location of the subject property, except as provide d in § 6217 as a continuation of a nonconforming use. Thus, as of the adoption of the 1962 Zoning Ordinance, the use of the2 Bounded southerly by King Street, westerly by Pine Street (extended), northerly

by Grant Street (extended) and easterly by North an d South Union Streets.

4 property as a gasoline filling station became a non conforming use; the repair garage use remained an allowed use in the district, nonconform ing only to the extent that it did not hold a “special exception” approval from the ZBA fo r the use. Any “parking lot” use of the property, unrelated to the repair garage or gas oline filling station uses, that may have been occurring at that time appears to have become a permitted use under the 1962 Zoning Ordinance, and was nonconforming only to the extentthat it had not obtained a zoning permit under §6502 for that use. Material facts ma y be in dispute, or at least have not been provided in connection with these motions, as to th e hours of operation of the service station use at that time; as to whether Gulf Oil re nted out any parking spaces on the property unrelated to the service station use, and, if so, the number of spaces; and as to whether they were rented out during daytime or over night hours, and/or on an ad hoc basis during downtown events. The 1962 Zoning Ordinance contained minimum off-str eet parking requirements for buildings and structures “erected, enlarged, or reb uilt” or “of which the use is changed.” 1962 Zoning Ordinance, T.27 § 6522(g). However, und er the 1962 Zoning Ordinance, the property was in the “Inner Business District” area 2 within the Commercial zoning district, in which the minimum parking area requirements did not apply. 1962 Zoning Ordinance, T.27 § 6522(g)(8). The 1962 Zoning Ordinance also contained a requirem ent for “availability” of the parking spaces required in the ordinance. 1962 Zon ing Ordinance, T.27 § 6522(g)(10). This section did not create a parking “super use,” as arg ued by Appellant. Rather, this section addressed the times during which the required parki ng must be available. Section 6522(g)(10) distinguished among the times during wh ich the parking spaces required in the ordinance “shall be available for use,” depending onthe type of use. Parking spaces3 The parties appear to agree that Appellant’s 1983 applications were submitted

under the 1973 ordinance, as amended. Appellant’s zoning permit application #83-336 referred to the ZBA for conditional use approval st ates the zoning district as R[esidential]-

5 accessory to dwellings were required to be availabl e “for use at all times” by the occupants of the dwellings; that is, they could never be rent ed out to other users. Parking spaces required for use by patrons, customers, employees, guests and visitors of commercial and industrial establishments were required to be avail able for use “during the business hours of such establishments.” Parking spaces required f or use by employees and persons in attendance at places of assembly, such as a school, public auditorium, assembly or meeting room, or stadium (T.27 § 6522(g)(3)(A) and (B)), we re required to be available “during the hours when such places are in use.” Presumably, own ers of properties in the latter two categories could rent out such spaces to other user s as a “parking lot” use when those spaces were not required to be available for the pr imary use. (Compare this concept with the later ordinances’ parking waiver provision refe rences to “unique use times,” “overlap coverage,” or “shared or dual use.” 1973 Zoning Ordinance, §6523(E); 2005 Zoning Ordinance, §10.1.19.) In 1968, Gulf Oil applied for and obtained zoning a pproval in the form of a “special exception” from the then-ZBA to “demolish existing gas station at 219 Main St. and erect a new three bay – 30’ x 64’ gas station.” 1962 Zon ing Ordinance, T.27 § 6512(15)(A). The Zoning Administrator’s letter informing the Gulf Oi l representative of the ZBA’s vote stated that the ZBA had granted the special excepti on with the condition “that any further expansion and alterations would require[] Zoning Bo ard approval.” Under the 1973 Zoning Ordinance The 1973 Zoning Ordinance created new zoning distri cts, with reference to the Comprehensive Master Plan for the City. The partie s appear to assume that it was the 1973 Zoning Ordinance that placed the property in the Hi gh-Density Residential 3 zoning district,40, while the application for COA#83-077 to the Pla nning Commission states the zoning

district as R[esidential]-6.

4Within § 6523 relating to off-street parking, subs ection G stated in full that: “Innerfire District Provisions to Remain in Effect. ” Neither party has addressed this reference or provided any evidence from City personnel as to the “Innerfire” district or whether it relates in any way to the former exempti on for the Inner Business District discussed in the text at footnote 2, above, with rega rd to the 1962 Zoning Ordinance.

5 Mr. Walter Simendinger’s testimony at the 1983 ZB A hearing reflected that “twenty-five to thirty cars” parked on the site tenyears later, in 1983. There is no indication as to whether those numbers included the spaces at the pump islands or the area inside the three service bays.

6 but they have not provided the associated zoning ma p. Under the 1973 Zoning Ordinance, in the High-Densit y Residential zoning district, parking facilities themselves were allowed as a per mitted use. § 6510(A)(3). In addition, off-street parking as required in § 6523 was allowe d as an accessory use. The required number of off-street parking spaces for the use cat egory of “gas stations and service stations” was ten spaces for each service bay. 197 3 Zoning Ordinance, § 6523. The area exempted from providing off-street parking was defined in the 1973 Zoning Ordinance, § 6523(F), 4as the area bounded by Winooski Avenue, Main Stree t, Pine Street, and Pearl Street; that is, notincluding the subject property. Thus, as of the a doption of the 1973 ordinance, the property was required to provide thirty spaces for the gasoline service station use. Material facts may be in disp ute, or at least have not been provided in connection with these motions, as to the total numb er of parking spaces on the property in 1973; 5 the hours of operation of the service station use at that time; whether Gulf Oil rented out any parking spaces on the property unrel ated to the service station use; and, if so, the number of spaces, and whether they were ren ted out during daytime or overnight hours, or on an ad hoc basis during downtown events . The property may have become nonconforming as of the adoption of the 1973 ordina nce unless it provided thirty parking7

spaces. Even if there were thirty spaces, and if so me of them were also being separately rented out as a “parking facility,” which was a perm itted use in the district under § 6510(A)(3), the property may also have become nonco nforming for lack of a zoning permit for the parking facility permitted use, as well as lack of approval of the reduction or waiver provided under § 6523(E). In 1975 Gulf Oil obtained zoning approval for the r eplacement of a conduit line and for new paving, as shown on the list of prior zonin g actions for the property in the 2007 parking permit denial. No site plan or other indic ation of the then-existing parking has been provided to the Court. Wesco, Inc., acquired the property from Gulf Oil in t wo quitclaim deeds in March of 1983, subject to a covenant preserving the then- current operator of the gas station as the franchisee. The affidavit of Mr. David Simendinger , who is familiar with Appellant’s operation of the property, asserts that Appellant c ontinued Gulf Oil’s practice of leasing and renting parking spaces on the site and that par king on the site was “always sufficient” to accommodate the gas station’s customers. The h ours of operation of the service station use were 6 a.m. to 11 p.m. Material facts may be i n dispute, or at least have not been provided in connection with these motions, as to th e hours and days of the week that the repair service station was in operation (as opposed to the hours of the gasoline filling station); as to the number of parking spaces rented out on the property unrelated to the repair service station or gasoline filling station uses, and whether they were rented out during daytime and/or overnight hours, and/or on anad hoc basis during downtown

events. Later in 1983, Appellant’s related principal Mr. Wa lter Simendinger applied to the ZBA for a conditional use permit “to convert the ex isting gas station/service station use to a combination gas station/mini-mart. No additional lot coverage. No exterior modifications.” The “existing use” of the property was described in the application as “gas6 The existing use required thirty spaces under the edition of the 1973 Zoning

Ordinance provided to the Court. As the spaces wer e not striped, material facts remain in dispute as to whether this was an estimate or wheth er the additional required spaces were in fact provided on site including the areas inside the garage and at the pump islands.

8 station.” Appellant also applied in 1983 to the Pl anning Commission for site plan approval (Certificate of Appropriateness) for “Interior and exterior renovations to establish a new retail use. No additional lot coverage.” On this application, the “existing use” of the property was described as “Automobile Service Stati on.” Prior to this proposal, the parking areas on the pr operty appear to have been undefined by painted lines (as the minutes show tha t the City Traffic Engineer suggested that Applicant paint or “line the parking spaces.”) . The 1983 site plan application states that at that time there were twenty existing parkin g spaces 6 on the property, that fifteen spaces were required for the proposed use, and thatfifteen were proposed to be provided. The initial version of the associated site plan sho ws a total of fifteen marked spaces, not including at least four additional spaces at the pu mp islands. As of a 1975 zoning ordinance amendment, site plan approval by the then -Planning Commission required a determination of, among other things, the adequacy of parking. Section 6523 of the 1973 Zoning Ordinance required one parking space for each one hundred square feet of “retail floor area.” Wesco argues that the retail floor space of the proposed convenience store at that time was only ab out nine hundred square feet, and that therefore only nine spaces were required under the ordinance for the new convenience store use. The site plan associated with the 1983 applications showed the total building area as 1920 square feet, of which 1136 square feetis the area shown under the category of “patrons” for the delicatessen and the ‘mart’ takentogether. An additional 174 square feet
is allocated to the toilet rooms. Material facts a re in dispute as to whether the “retail floor space,” as that term is used in the 1973 ordinance, is the equivalent of the “patron” space7The 2007 DRB decision on the private parking lot use application states that “there

are only 15 parking spaces on[]site, including 4 for the gasoline pump islands.” (Emphasis added.) The 2002 site diagram had shown fifteen p arking spaces as well as the space at the gasoline pump islands.

9 as shown on the site plan, which would require some thing between eleven and fourteen parking spaces, depending on how the floor area with in the coolers and the floor area in the public restrooms is or is not counted, as well as on the method used for rounding off
numbers in such calculations. Material facts are therefore in dispute as to the derivation of fifteen spaces as being “required” or as being “ provided” in the 1983 site plan application. The materials related to the 1983 pro ceedings that have been provided to the Court do not reflect that any waiver of any then-re quired parking spaces was required, was applied for, or was ruled on. After providing the additional landscaping shown by the third of the 1983 site plans, that site plan reflected that Appellant proposed to provide fourteen marked parking spaces (numbered 2 through 15), plus 7at least four spaces at the pump islands. The thi rd site plan showed five marked spaces located along the westernside of the property, five marked spaces located along the eastern side of the proper ty, and four marked spaces located to the west of the building along the southern side of the property. There is no dispute that neither 1983 application mentioned the use of any o f those parking spaces to be rented out separately from their use for the convenience-store -with-gasoline-sales. The hours of operation for the convenience store were proposed t o be from 6 a.m. to midnight. The ZBA minutes from July 19, 1983 reflect that Appe llant’s principal Mr. Walter Simendinger testified on behalf of the applicant th at “the proposal will lessen the demand for on-site parking,” and that prior to the proposal “between twenty-five and thirty cars park on the site.” The architect for the project s tated that “the site will be better organized. The parking requirements have been met . . . .” Atthe July 19, 1983 hearing, the ZBA voted10

to grant the change-of-use conditional use permit, finding the standards to have been met, including that “all bylaws have been addressed.” After receiving the change-of-use conditional use a pproval from the ZBA, Appellant’s application was referred to the then-Pl anning Commission for site plan approval. No Planning Commission minutes or decisi on from 1983 have been provided to the Court in connection with the present motions . After approval by the Planning Commission, Appellant’s zoning permit was approved o n September 22, 1983. Zoning applications for the property between 1988 a nd 2002 (listed in the DRB decision on appeal in Docket No. 197-9-07 Vtec) inv olved applications for a canopy and for signs or changes to the signs at the site. Materia l facts are in dispute or at least have not been provided to the Court as to whether any of the se proceedings involved site plans showing the configuration of the parking spaces at the site, and as to whether any zoning ordinance amendments were adopted during this time period. None of the applications or the minutes of the proceedings has been provided to the Court in connection with the present motions. Neither party asserts that these applications or proceedings mentioned the issue of parking spaces, either in the context of the spaces required for the conveniencestore-with-gasoline-sales use of the site or in the context of the spaces’ use as rental parking
spaces. 2002 Application In 2002, Appellant applied for DRB approval of a cha nge in the convenience store to add a 4-table (16-seat) seating area within the building. The application included a site diagram showing fifteen existing parking spaces in a somewhat different configuration than those shown on the 1983 site plans: four space s located along the western side of the property, five spaces located along the eastern sid e of the property, and six marked spaces located to the west of the building along the south ern side of the property. No changes in the configuration of parking spaces w ere proposed in connection with8 The parties have not provided facts to the Court to establish what ordinance

amendment made the convenience-store-with-gasoline- sales use a nonconforming use in this location, or to establish what ordinance was i n effect as of the 2002 application. The 2002 DRB decision on the seating simply states that“the convenience store/deli is not permitted in the DH district and constitutes a non- conforming use.” It does not state that the amount of parking allocated to it was nonconfor ming under the ordinance applicable in 2002..

11 the application to add the seating area. The appli cation was analyzed as a change from one non-conforming use to another, 8 described in Paragraph I of the 2002 DRB decision as requiring conditional use approval and an additiona l finding that the new use is “less harmful or detrimental to the neighborhood than the existing non-conforming use.” In the section of its analysis regarding parking, th e DRB determined that the 153 square feet attributed to the new seating area woul d be deducted from the square footage attributed to the convenience store use. As the pr oposed sixteen seats area would require an additional four parking spaces, but the convenie nce store use would require two fewer spaces, the DRB determined that the proposal would require a net increase of two parking spaces. As no additional parking was proposed, the DRB assumed that a waiver of these two parking spaces would be needed in order to appr ove the application. It proceeded to grant the two-space parking waiver because of the s tore’s close proximity to the pedestrianoriented central business district and Church Stree t Marketplace, as well as the dual use by customers using the gas pumps and the convenienc e store in the same trip as their use of the deli seating. Under the 2005 Zoning Ordinance In 2006, Appellant again sought approval of a canop y over the existing gas pumps. The 2006 application states both the existing numbe r of parking spaces and the proposed number of parking spaces as twelve. Material facts are in dispute, or at least have not been provided to the Court in connection with the presen t motion, as to what zoning ordinance12

was applicable to this application, as to whether a site plan was prepared for this application, as to whether the twelve existing or p roposed spaces for the convenience-storewith-gas-pumps included any of the spaces at the pu mp islands, and as to whether (by reducing the reported number of “existing” spaces f rom fifteen to twelve) Appellant was attempting to reserve any other existing spaces for the rental parking space use. During the July 18, 2006 DRB hearing on the canopy application, a representative of the City’s Department of Public Works stated the department’s concern to protect the public from vehicles cutting through the site (pres umably from South Winooski Avenue, to avoid waiting at the Main Street light). The de partment’s representative mentioned that “on the west side there are leased parking spaces a nd maybe more of these spaces could be used,” which prompted a discussion of leased park ing spaces on the site. Appellant’s representative stated that four spaces on the west side of the property are leased, and also that “[p]eople can come to our lot and rent spaces. ” Appellant’s practice of leasing parking spaces and of offering spaces on an as-available ba sis during downtown evening events
was also mentioned in the course of an Environmenta l Court hearing on the canopy application, although no findings were made by the Court as the case was resolved by agreement. On March 8, 2007, the Code Enforcement Officer of the City of Burlington issued a Notice of Violation to Appellant for “operating a p rivate parking lot without zoning approval” at 211-219 Main Street. The description of the violation in the Notice of Violation referred to attached photographs, which showed cars parked on the property and showed a sign in the window of the building advertising “P ARKING $5.00 Until Midnight – Please Pay Inside – Violators will be towed.” The details provided in the Notice of Violation also stated that vehicles found on the site bore a “park ing sticker,” but did not include any further description or photograph of the parking st icker connecting it with this site.
The Notice of Violation advised that the violation could be remedied by either9 If a use was not lawful prior to the change in z oning regulations, a nonconforming

use is merely an illegality that may be subject to enforcement proceedings. Huntington NOV Appeal, Docket Nos. 204-8-06 Vtec and 209-9-06 Vtec, slip op. at 6 (Vt. Envtl. Ct. Apr. 25, 2007).

13 “removing the violation, [and] restoring the premise s to its prior state,” or “applying for a zoning permit,” or “entering into a Stipulation Ag reement with the City to extend deadlines in which to come into compliance.” The N otice of Violation also informed Appellant of its appeal rights. Appellant appealed the Notice of Violation to the D RB and appealed the DRB’s decision to this Court in Docket No. 106-5-07 Vtec; Appellant also applied for a zoning permit for the “private parking” use and appealed t he denial of that application to this Court in Docket No. 197-9-07 Vtec. In addition, th e City filed an enforcement complaint under 24 V.S.A. §§ 4451 and 4452 seeking injunctiv e relief and monetary penalties in Docket No. 177-8-07 Vtec; the materials filed with the complaint included photographs of parking stickers affixed to the windows of cars par ked on the site at specified times.

Preexisting Nonconforming Parking Uses Appellant has moved for summary judgment that the p rivate parking use that is the basis of the Notice of Violation is a preexisting n onconforming use not subject to the requirements of the 2005 Ordinance, and for which a permit is either not required or should be issued as a matter of law. Appellant argues tha t it has simply continued a practice of renting out private parking spaces begun prior to the adoption of zoning by Gulf Oil, the
former owner.
In order to determine whether a landowner has the r ight to continue a nonconforming use, it is necessary first to determin e when the use was lawful, 9 and then to determine which amendment to the zoning ordinanc e made the use nonconforming and10 The pages of the applications provided to the Cou rt in connection with these

motions do not contain any statement certifying the ir correctness or providing that misrepresentations will void the application.

14 what was the extent or level of the use at that tim e. Franklin County v. City of St. Albans , 154 Vt. 327, 331 (1990); In re Appeal of Smith, Docket No. 263-12-02 Vtec (Vt. Envtl. Ct. Dec. 20, 2004), aff’d 2006 VT 33. As shown in the sequence of ordinances, activities on the property, and permit applications described above, material facts are indispute as to the level and extent of the parking space rental use, if any, on the property at various points in the history of the property, and are also in dispute as to the number of spaces provided for all the uses on the property at the time of the 1983 application to con vert the building to convenience store use. Without being able to determine when or wheth er the property ever became nonconforming as to the number of parking spaces re quired for the convenience-store-anddeli-with-gasoline-service uses, and whether any wai vers have been granted in the past, the Court cannot make any determinations about whether any parking capacity remains on the lot for rental parking, with or without a wa iver. Accordingly, summary judgment must be DENIED as to Docket No. 197-9-07 Vtec, as ma terial facts are in dispute. The City is correct that the use of some of the par king spaces on the lot for rental parking should have been disclosed 10 as an additional use on the site, even if it was c laimed to be a preexisting nonconforming use, as of the ti me of the 1983 application for the minimart and the 2002 application for the deli, as bothof those applications were required to analyze the amount of parking provided on the site for the uses on the site. In re Appeal
of Smith, supra . The analysis of the adequacy of parking on the s ite for the proposed uses cannot be done without understanding all the demand s on the parking at the site. The
Court cannot determine from the materials whether the fifteen spaces proposed for the mini-mart use or the twelve spaces proposed at the time of the canopy application left any11 The Court has not been informed as to the parking space requirements or the

parking waiver provisions, if any, available under the more recent zoning amendments; this reference is to the 2005 Zoning Ordinance.

15 other spaces on the property available for the rent al parking use. Appellant is entitled to apply for a permit to use some of the parking on the property for rental parking, and/or to apply for up to a total waiver 11 of up to 50% of the spaces otherwise allocated to all the uses on the p roperty. But even though the rental of parking spaces (a “private parking lot” use) is a p ermitted use in this zoning district, it still requires a zoning permit and a demonstration that the use will not cause the property to become nonconforming as to the number of parking sp aces required to be provided for the other uses on the property. After the 1983 applic ation, however, and certainly as of the 2002 application, Appellant was not entitled to con tinue to rent out such spaces without obtaining a zoning permit for that additional use. To that extent, summary judgment is GRANTED in favor of the City as to the existence of the violation (rental parking use without a permit).

Notice of Violation Appellant challenges the Notice of Violation on due process grounds, arguing that the Notice failed to sufficiently notify Appellant of the alleged violations. To comport with due process requirements, notices of violation must“state the facts that support the finding of a violation, the action that the [zoning authori ty] intends to take, and information on how to challenge the notice [of violation.]” Town of Randolph v. Estate of White , 166 Vt. 280, 285 (1997). In the present case, the Notice of Violation contai ns a statement entitled “Notice of Violation Details” that outlines the discovery of c ars parked on the property bearing a “parking sticker,” and photographs of the signs and parked cars alleged to constitute the16

violation. The Notice also explains that Appellantmay be subject to fines and includes a statement of how to challenge the violation, as well as reference to the applicable zoning regulations. Despite the fact that the “remedies” section is general, the Notice taken together with its attachments provided Appellant su fficient notice to satisfy due process. Accordingly, summary judgment is DENIED to Appellan t and is GRANTED to the City as to the adequacy of the Notice of Violation.

Statute of Limitations Appellant argues that the fifteen-year statute of l imitations contained within 24 V.S.A. § 4454(a) prohibits the issuance of the Noti ce of Violation. As this Court explained in City of Burlington v. R ichardson, Docket No. 188-10-03 Vtec, slip op. at 11–12 (Vt. Envtl. Ct. June 27, 20 06), the statute of limitations was adopted in response to the Vermont Supreme Court’s decisionin Bianchi v. Lorenz , 166 Vt. 555 (1997). It provides a fifteen-year statute of limi tations “from the date the alleged violation first occurred,” for enforcement proceedings broughtunder 24 V.S.A. §§ 4451 and 4452 “relating to the failure to obtain or comply with the terms and conditions of any required municipal land use permit.” As the complaint in Do cket No. 177-8-07 Vtec is brought under 24 V.S.A. §§ 4451 and 4452 , this statute of limitations operates to bar the assessment of fines and the imposition of injunctive relief fo r construction violations that were built or installed more than fifteen years earlier than the filing of the complaint in August of 2007, that is, earlier than August of 1992, and for use v iolations during any period earlier than August of 1992. This distinction between use viola tions and construction violations is rooted in sound public policy, as explained in City of Burlington v. Richardson, supra : [The statute of limitations] would not operate to b ar enforcement under those sections for use violations during the [fifteen-yea r period] to the present, even if they began earlier than [the fifteen-year p eriod], because use violations are analyzed as continuing or recurring violations. See City of St.12 In any event, an enforcement action to enforce dec isions of a municipal panel in

issuing conditional use or site plan approval broug ht under 24 V.S.A. § 4470(b) would not be subject to the 24 V.S.A. § 4454(a) statute of li mitations.

17 Albans v. Hayford , Docket No. 161-9-03 Vtec (Vt. Env[tl]Ct., June 1, 2 004), and cases cited therein. Property owners cannot in itiate a new nonconforming use in violation of the municipal zon ing ordinance and acquire a vested right to its continuation, as one goal of zoning is to phase out nonconforming uses. In re Gregoire , 170 Vt. 556, 558 (1999); and see In re Appeal of Richards , 2005 VT 23, ¶6. To rule otherwise would create an incentive for property owners to make clandestine c hanges from an approved use to an illegal use, in hopes of obtaini ng the right to continue the clandestine illegal use by the passage of time. 24 V.S.A. §4496 (now §4454) limits the period for searching for defects in titl e due to hidden zoning violations to the same period applicable to searchi ng for other title defects; it does not authorize the creation of new nonconfor ming uses. Appellant argues that parking is treated as a struc tural or dimensional attribute of development proposals, and therefore should be trea ted as a construction violation rather than as a use violation for the purposes of the sta tute of limitations in the present case, citing In re Appeal of McGrew, Docket No. 199-10-04 Vtec (Vt. Envtl. Ct. Mar. 3, 2 006); Appeal of Bone Mountain, Docket No. 114-6-04 Vtec (Vt. Envtl. Ct. May 11, 2 005), and In re Appeal of Hehir , 130-6-00 Vtec (Vt. Envtl. Ct. Dec. 28, 2001, aff’ d Docket No. 2002-064 (Vt. Sept. 25, 2002) (unpublished three-justice deci sion). It is true that the number of parking spaces requir ed for a particular development proposal, like required setbacks or height, is a st ructural or dimensional attribute of that development proposal. But the violation asserted i n the notice of violation and the complaint in the present case does not allege a fai lure to maintain on the site the number of parking spaces required for either of the uses o n the property conducted under properly issued permits: 12 the convenience-store-with-gasoline-sales use, or the deli-seating use. Rather, the asserted violation is the failure to ob tain a permit to conduct a third use on the18

property: the rental of parking spaces. Its filing is not barred by 24 V.S.A. § 4454(a), although that section limits penalties to that attr ibutable to the fifteen-year period. Therefore, with respect to the applicability and effect of the statute of limitations, summary judgment is DENIED to Appellant and is GRA NTED to the City.

Accordingly, it is hereby ORDERED and ADJUDGED thatSummary Judgment is GRANTED in PART as described in more detail above, and is otherwise DENIED as material facts are in dispute. An in-person conference has been scheduled for Marc h 21, 2008 (see enclosed notice) at the Costello Courthouse in Burlington, to enable the parties to bring any documents they may wish to discuss with the Court, including, if n ecessary, the new zoning ordinance. Please be prepared to discuss the extent to which the material facts identified in this decision as not having been provided are in fact di sputed, and to discuss the scheduling of the remaining issues for trial (including the pa rties and witnesses’ unavailable dates for July, August and September). With respect to the a pplication for the rental parking use, also please be prepared to discuss whether Appellan t’s application for fifteen spaces of rental parking puts before the Court the potential for approval of fewer than fifteen spaces, or whether any such lesser-included request would r equire remand to the DRB.

Done at Berlin, Vermont, this 6 thday of March, 2008.

_________________________________________________ Merideth Wright Environmental Judge