                                   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 Vtec
       (Appeal of Wesco, Inc.)                            }
                                                          }

            Decision and Order on Cross-Motions for Partial Summary 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 Burlington, upholding the Zoning

Administrator’s issuance of a Notice of Violation for operating a “private parking lot” use

on the property. In Docket No. 177-8-07 Vtec, the City brought an enforcement action

against Defendant Wesco, Inc. for that asserted violation. 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 application 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 Nos. 106-5-07 Vtec and 197-9-07 Vtec.


                                              1
Appellant-Defendant (Appellant) Wesco, Inc., is represented by Jon T. Anderson, Esq.,

David W. Rugh, Esq., and William E. Simendinger; the City is represented by Kimberlee

J. Sturtevant, Esq.

        As of the issuance of the Notice of Violation in March of 2007, the parties agree that

it was the 2005 Zoning Ordinance that was in effect and 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 Zoning Ordinance may be applicable

to the permit application, the parties have not brought 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 179-9-07 Vtec, Appellant Wesco,

Inc. has moved for summary judgment, seeking dismissal of the notice of violation and

grant of the application to rent out available parking spaces on the site. The following facts

are undisputed unless otherwise noted.



Facts

        The property at issue in these cases is a corner lot 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 South Union Street to the east, in what

is now a residential high-density zoning district.

        Prior to zoning, and under the 1947 and 1962 Ordinances

        Appellant’s predecessor, the Gulf Oil Corporation (Gulf Oil) acquired the property

in 1944 (except for a boundary adjustment at the South Winooski Avenue frontage acquired

in 19551). As of the first adoption of zoning in the City of Burlington in 1947, Gulf Oil


        1
       In 1955, Gulf Oil obtained a long, thin triangle of additional property along the
South Winooski Avenue frontage, measuring 5.65 feet along Main Street and 63.35 feet

                                              2
operated on the property an automobile service station for the repair of vehicles and the

sale of gasoline.

       Under the 1947 Zoning Ordinance, the property was in the “Commercial” zoning

district, in which the use category of “gasoline filling station” and the use category of

“public garage or stable” were both conditionally permitted uses, that is, requiring

approval by the Zoning Board of Adjustment. 1947 Zoning Ordinance, § 8(2),(4). The term

“public garage” was defined as an other-than-private 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 particular amount of off-street

parking for any of its uses, and therefore the property was not non-conforming with

regards to off-street parking. The gasoline filling 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 extent that they had not obtained

conditional approval from the ZBA.

       Under the 1962 Zoning Ordinance, the use category of “parking lot” was defined

within the category of “personal service establishments” 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 exception.” 1962 Zoning Ordinance, T.27

§ 6512(15)(A). Section 6214 prohibited gasoline filling stations within an area including the

location of the subject property, except as provided in § 6217 as a continuation of a

nonconforming use. Thus, as of the adoption of the 1962 Zoning Ordinance, the use of the




along South Winooski Avenue.

                                               3
property as a gasoline filling station became a nonconforming use; the repair garage use

remained an allowed use in the district, nonconforming only to the extent that it did not

hold a “special exception” approval from the ZBA for the use. Any “parking lot” use of

the property, unrelated to the repair garage or gasoline 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 extent that it had not obtained a zoning

permit under §6502 for that use. Material facts may be in dispute, or at least have not been

provided in connection with these motions, as to the hours of operation of the service

station use at that time; as to whether Gulf Oil rented 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 overnight hours, and/or on an ad hoc

basis during downtown events.

       The 1962 Zoning Ordinance contained minimum off-street parking requirements for

buildings and structures “erected, enlarged, or rebuilt” or “of which the use is changed.”

1962 Zoning Ordinance, T.27 § 6522(g). However, under the 1962 Zoning Ordinance, the

property was in the “Inner Business District” area2 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 requirement for “availability” of the

parking spaces required in the ordinance. 1962 Zoning Ordinance, T.27 § 6522(g)(10). This

section did not create a parking “super use,” as argued by Appellant. Rather, this section

addressed the times during which the required parking must be available. Section

6522(g)(10) distinguished among the times during which the parking spaces required in the

ordinance “shall be available for use,” depending on the type of use. Parking spaces


       2
       Bounded southerly by King Street, westerly by Pine Street (extended), northerly
by Grant Street (extended) and easterly by North and South Union Streets.

                                             4
accessory to dwellings were required to be available “for use at all times” by the occupants

of the dwellings; that is, they could never be rented 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 available for use “during the business hours

of such establishments.” Parking spaces required for 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)), were required to be available “during the

hours when such places are in use.” Presumably, owners of properties in the latter two

categories could rent out such spaces to other users as a “parking lot” use when those

spaces were not required to be available for the primary use. (Compare this concept with

the later ordinances’ parking waiver provision references 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 approval 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 Zoning Ordinance, T.27 § 6512(15)(A). The

Zoning Administrator’s letter informing the Gulf Oil representative of the ZBA’s vote

stated that the ZBA had granted the special exception with the condition “that any further

expansion and alterations would require[] Zoning Board approval.”

       Under the 1973 Zoning Ordinance

       The 1973 Zoning Ordinance created new zoning districts, with reference to the

Comprehensive Master Plan for the City. The parties appear to assume that it was the 1973

Zoning Ordinance that placed the property in the High-Density Residential3 zoning district,



       3
         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 states the zoning district as R[esidential]-

                                             5
but they have not provided the associated zoning map.

       Under the 1973 Zoning Ordinance, in the High-Density Residential zoning district,

parking facilities themselves were allowed as a permitted use. § 6510(A)(3). In addition,

off-street parking as required in § 6523 was allowed as an accessory use. The required

number of off-street parking spaces for the use category of “gas stations and service

stations” was ten spaces for each service bay. 1973 Zoning Ordinance, § 6523.

       The area exempted from providing off-street parking was defined in the 1973

Zoning Ordinance, § 6523(F),4 as the area bounded by Winooski Avenue, Main Street, Pine

Street, and Pearl Street; that is, not including the subject property. Thus, as of the adoption

of the 1973 ordinance, the property was required to provide thirty spaces for the gasoline

service station use. Material facts may be in dispute, or at least have not been provided in

connection with these motions, as to the total number 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 unrelated to the service station use; and, if

so, the number of spaces, and whether they were rented 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 ordinance unless it provided thirty parking


40, while the application for COA#83-077 to the Planning Commission states the zoning
district as R[esidential]-6.
       4
         Within § 6523 relating to off-street parking, subsection 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 exemption for the Inner Business District
discussed in the text at footnote 2, above, with regard to the 1962 Zoning Ordinance.
       5
          Mr. Walter Simendinger’s testimony at the 1983 ZBA hearing reflected that
“twenty-five to thirty cars” parked on the site ten years 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
spaces. Even if there were thirty spaces, and if some of them were also being separately

rented out as a “parking facility,” which was a permitted use in the district under §

6510(A)(3), the property may also have become nonconforming 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 replacement of a conduit line and

for new paving, as shown on the list of prior zoning actions for the property in the 2007

parking permit denial. No site plan or other indication of the then-existing parking has

been provided to the Court.

       Wesco, Inc., acquired the property from Gulf Oil in two 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 continued Gulf Oil’s practice of leasing

and renting parking spaces on the site and that parking on the site was “always sufficient”

to accommodate the gas station’s customers. The hours of operation of the service station

use were 6 a.m. to 11 p.m. Material facts may be in dispute, or at least have not been

provided in connection with these motions, as to the 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 an ad hoc basis during downtown

events.

       Later in 1983, Appellant’s related principal Mr. Walter Simendinger applied to the

ZBA for a conditional use permit “to convert the existing 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 “gas


                                              7
station.” Appellant also applied in 1983 to the Planning 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 Station.”

       Prior to this proposal, the parking areas on the property appear to have been

undefined by painted lines (as the minutes show that 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 parking spaces6 on the property, that fifteen

spaces were required for the proposed use, and that fifteen were proposed to be provided.

The initial version of the associated site plan shows a total of fifteen marked spaces, not

including at least four additional spaces at the pump 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 about 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 feet is the area shown under the category of

“patrons” for the delicatessen and the ‘mart’ taken together. An additional 174 square feet

is allocated to the toilet rooms. Material facts are in dispute as to whether the “retail floor

space,” as that term is used in the 1973 ordinance, is the equivalent of the “patron” space



       6
          The existing use required thirty spaces under the edition of the 1973 Zoning
Ordinance provided to the Court. As the spaces were not striped, material facts remain in
dispute as to whether this was an estimate or whether the additional required spaces were
in fact provided on site including the areas inside the garage and at the pump islands.

                                              8
as shown on the site plan, which would require something between eleven and fourteen

parking spaces, depending on how the floor area within 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 proceedings that have been provided to the

Court do not reflect that any waiver of any then-required 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), plus7 at least four spaces at the pump islands. The third site plan

showed five marked spaces located along the western side of the property, five marked

spaces located along the eastern side of the property, 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 of 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 to be from 6 a.m. to midnight.

       The ZBA minutes from July 19, 1983 reflect that Appellant’s principal Mr. Walter

Simendinger testified on behalf of the applicant that “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 stated that “the site will be better organized.

The parking requirements have been met . . . .” At the July 19, 1983 hearing, the ZBA voted



       7
         The 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 parking spaces as well as the space at the
gasoline pump islands.

                                               9
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 approval from the ZBA,

Appellant’s application was referred to the then-Planning Commission for site plan

approval. No Planning Commission minutes or decision 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 on September 22, 1983.

       Zoning applications for the property between 1988 and 2002 (listed in the DRB

decision on appeal in Docket No. 197-9-07 Vtec) involved applications for a canopy and for

signs or changes to the signs at the site. Material facts are in dispute or at least have not

been provided to the Court as to whether any of these 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 convenience-

store-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 change 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 spaces located along the western side of the

property, five spaces located along the eastern side of the property, and six marked spaces

located to the west of the building along the southern side of the property.

       No changes in the configuration of parking spaces were proposed in connection with


                                              10
the application to add the seating area. The application 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 additional 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, the DRB determined that the 153

square feet attributed to the new seating area would be deducted from the square footage

attributed to the convenience store use. As the proposed sixteen seats area would require

an additional four parking spaces, but the convenience 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 approve the application. It proceeded to

grant the two-space parking waiver because of the store’s close proximity to the pedestrian-

oriented central business district and Church Street Marketplace, as well as the dual use

by customers using the gas pumps and the convenience 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 canopy over the existing gas pumps.

The 2006 application states both the existing number 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 present motion, as to what zoning ordinance


       8
          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 in 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 nonconforming under the ordinance applicable
in 2002..


                                            11
was applicable to this application, as to whether a site plan was prepared for this

application, as to whether the twelve existing or proposed spaces for the convenience-store-

with-gas-pumps included any of the spaces at the pump islands, and as to whether (by

reducing the reported number of “existing” spaces from 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 (presumably from South Winooski Avenue,

to avoid waiting at the Main Street light). The department’s representative mentioned that

“on the west side there are leased parking spaces and maybe more of these spaces could

be used,” which prompted a discussion of leased parking 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 basis during downtown evening events

was also mentioned in the course of an Environmental 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 private 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 “PARKING $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 “parking sticker,” but did not include any

further description or photograph of the parking sticker connecting it with this site.

       The Notice of Violation advised that the violation could be remedied by either


                                             12
“removing the violation, [and] restoring the premises to its prior state,” or “applying for

a zoning permit,” or “entering into a Stipulation Agreement with the City to extend

deadlines in which to come into compliance.” The Notice of Violation also informed

Appellant of its appeal rights.

       Appellant appealed the Notice of Violation to the DRB 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 the denial of that application to this

Court in Docket No. 197-9-07 Vtec. In addition, the City filed an enforcement complaint

under 24 V.S.A. §§ 4451 and 4452 seeking injunctive 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 parked on the site at specified times.



Preexisting Nonconforming Parking Uses

       Appellant has moved for summary judgment that the private parking use that is the

basis of the Notice of Violation is a preexisting nonconforming 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 that 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 right to continue a

nonconforming use, it is necessary first to determine when the use was lawful,9 and then

to determine which amendment to the zoning ordinance made the use nonconforming and



       9
         If a use was not lawful prior to the change in zoning 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
what was the extent or level of the use at that time. 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 in dispute 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 convert the building to convenience store

use. Without being able to determine when or whether the property ever became

nonconforming as to the number of parking spaces required for the convenience-store-and-

deli-with-gasoline-service uses, and whether any waivers 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 waiver. Accordingly, summary judgment

must be DENIED as to Docket No. 197-9-07 Vtec, as material facts are in dispute.

       The City is correct that the use of some of the parking spaces on the lot for rental

parking should have been disclosed10 as an additional use on the site, even if it was claimed

to be a preexisting nonconforming use, as of the time of the 1983 application for the mini-

mart and the 2002 application for the deli, as both of 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 site for the proposed uses

cannot be done without understanding all the demands 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 any



       10
         The pages of the applications provided to the Court in connection with these
motions do not contain any statement certifying their correctness or providing that
misrepresentations will void the application.

                                             14
other spaces on the property available for the rental 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 waiver11 of up to 50% of the

spaces otherwise allocated to all the uses on the property. But even though the rental of

parking spaces (a “private parking lot” use) is a permitted 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 spaces required to be provided for the

other uses on the property. After the 1983 application, however, and certainly as of the

2002 application, Appellant was not entitled to continue 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 authority] 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 contains a statement entitled “Notice of

Violation Details” that outlines the discovery of cars parked on the property bearing a

“parking sticker,” and photographs of the signs and parked cars alleged to constitute the



       11
           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
violation. The Notice also explains that Appellant may 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 sufficient notice to satisfy due process.

       Accordingly, summary judgment is DENIED to Appellant 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 limitations contained within 24

V.S.A. § 4454(a) prohibits the issuance of the Notice of Violation.

       As this Court explained in City of Burlington v. Richardson, Docket No. 188-10-03

Vtec, slip op. at 11–12 (Vt. Envtl. Ct. June 27, 2006), the statute of limitations was adopted

in response to the Vermont Supreme Court’s decision in Bianchi v. Lorenz, 166 Vt. 555

(1997). It provides a fifteen-year statute of limitations “from the date the alleged violation

first occurred,” for enforcement proceedings brought under 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 Docket 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 for 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 violations during any period earlier than

August of 1992. This distinction between use violations 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 bar enforcement under those
       sections for use violations during the [fifteen-year period] to the present,
       even if they began earlier than [the fifteen-year period], because use
       violations are analyzed as continuing or recurring violations. See City of St.

                                              16
       Albans v. Hayford, Docket No. 161-9-03 Vtec (Vt. Env[tl]Ct., June 1, 2004),
       and cases cited therein.        Property 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. 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 changes from an
       approved use to an illegal use, in hopes of obtaining 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 title due to hidden zoning
       violations to the same period applicable to searching for other title defects;
       it does not authorize the creation of new nonconforming uses.

       Appellant argues that parking is treated as a structural or dimensional attribute of

development proposals, and therefore should be treated as a construction violation rather

than as a use violation for the purposes of the statute of limitations in the present case,

citing In re Appeal of McGrew, Docket No. 199-10-04 Vtec (Vt. Envtl. Ct. Mar. 3, 2006);

Appeal of Bone Mountain, Docket No. 114-6-04 Vtec (Vt. Envtl. Ct. May 11, 2005), 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 decision).

       It is true that the number of parking spaces required for a particular development

proposal, like required setbacks or height, is a structural or dimensional attribute of that

development proposal. But the violation asserted in the notice of violation and the

complaint in the present case does not allege a failure to maintain on the site the number

of parking spaces required for either of the uses on 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 obtain a permit to conduct a third use on the




       12
          In any event, an enforcement action to enforce decisions of a municipal panel in
issuing conditional use or site plan approval brought under 24 V.S.A. § 4470(b) would not
be subject to the 24 V.S.A. § 4454(a) statute of limitations.

                                             17
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 attributable 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 GRANTED to the City.



       Accordingly, it is hereby ORDERED and ADJUDGED that Summary 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 March 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 necessary, 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 disputed, and to discuss the scheduling

of the remaining issues for trial (including the parties and witnesses’ unavailable dates for

July, August and September). With respect to the application for the rental parking use,

also please be prepared to discuss whether Appellant’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 require remand to the DRB.


       Done at Berlin, Vermont, this 6th day of March, 2008.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




                                             18
