VT Supreme Court Reverses and Remands Fine Calculation of Over Use of Property as Parking Lot

This post was authored by Gabriella Mickel, JD Candidate 2024, Elisabeth Haub School of Law at Pace University.

Defendant-landowner Sisters & Brothers Investment Group, LLP (SBIG) appealed an environmental-division enforcement order that prohibited them from using a property in the City of Burlington as a parking lot, requiring them to address site-improvement deficiencies as per an agreement with the prior owner and the City, and imposing fines of $66,759.22.

SBIG purchased the property, a gas and service station (a preexisting, nonconforming use), in 2004, which had existing violations. An agreement was signed between the prior owner and the City, specifying requirements to address those violations. SBIG began renting out parking spaces to private individuals and the gas and service station closed in 2017. The City contacted SBIG in 2018 regarding zoning compliance, but SBIG took no action. The City issued a notice of violation (NOV) in 2019, and SBIG appealed it to the Development Review Board (DRB) but did not cure the violations. In 2020, the City filed a complaint to enforce the decision.

The environmental division found that the zoning violations outlined in the 2019 NOV were still present during trial, lasting a total of 892 days. The court determined that SBIG’s failure to appeal the DRB decision prevented them from challenging the violation of changing the use of a private parking lot. The court rejected SBIG’s argument regarding the statute of limitations and concluded that the limitations period had not expired. The court also imposed fines based on the Uniform Environmental Law Enforcement Act factors, considering SBIG’s non-compliance with the 2004 agreement. SBIG appealed, arguing that (1) there could be no change-of-use violation because “private parking lot” was not defined in the City’s ordinance, (2) the court was errored in finding continuing violations because the City’s enforcement action was time- barred under the statute of limitations for zoning violations, (3) that the court could not properly rely on the 2004 agreement because there was no evidence SBIG knew or should have known about the agreement, and (4) the fine amount was excessive, making it is punitive rather than remedial.

Here, the appellate court applied a “non-deferential, on-the-record review” of legal conclusions and a clearly erroneous standard of review for factual findings. The appellate court upheld the DRB decision, stating that collateral attacks on unappealed DRB orders were impermissible. They concluded that SBIG had committed a change-of-use violation and could not challenge the legal bases for the decision. The court disagreed with SBIG’s argument about the “transient” nature of parking and found that there was sufficient evidence to infer a pattern of violations for 892 days. However, the court agreed with SBIG that the use of the 2004 agreement as an aggravating factor in determining the fine was an error.

Overall, the appellate court reversed and remanded the case, directing the trial court to recalculate the fine without considering the agreement and to strike the conditions requiring SBIG to address site-improvement deficiencies in the 2004 agreement.

City of Burlington v Sisters & Brothers Investment Group, LLP, 2023 WL 3262648 (VT 5/5/2023)

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