Written by Elizabeth Filosa and A.J. LaRosa – Vermont law establishes a 15-year statute of limitations for municipalities to issue zoning violations. 24 V.S.A. § 4454. The Vermont Supreme Court recently ruled that this statute of limitations applies both to uses of property and structures or improvements that violate municipal zoning regulations. In re 204 North Ave. NOV, 2019 VT 52.
Because of this, municipalities must issue a notice of violation or bring a municipal enforcement action within the 15-year time period. This time period begins to be measured on the date that the violation first occurred.
The primary rationale for the statute of limitations is to ensure reasonableness and fairness. By imposing a limitation, a municipality cannot decide to enforce its zoning regulations against a property owner too many years after the violation first occurred. To permit a municipality to do otherwise would be unfair to the property owner, who has a reasonable expectation that something that has continued for 15 years has become the status quo, and that they won’t be dragged into court for long-standing violations.
The reasoning behind this policy makes practical sense. If a municipality knew of a use violation but decided not to enforce its regulations for more than 15 years, a property owner would by then believe that the use violation had become a non-issue and that the municipality was not interested in pursuing enforcement. The same is true if a structure or improvement violated a zoning regulation; because of the open and obvious nature of most structural violations, the municipality cannot often claim to be unaware of these violations. That said, it is unclear whether a municipality would be barred from pursuing an enforcement action against a hidden use violation that it was wholly unaware of.
It should be noted that a violation that is unenforceable because it has been in existence for more than 15 years is different from a preexisting non-conforming use, frequently referred to as a “grandfathered” use. Unenforceable zoning violations were non-compliant with the zoning regulations when they were constructed or when the use began, whereas preexisting non-conforming uses were lawful at their inception. While both would not be subject to a municipal zoning enforcement action, each carry with it different rights and liabilities. This is particularly true with respect to how a property owner can lose the protected status of the use or structure, and what actions the property owner can take to alter, expand, or improve on the structure or use.
MSK Attorneys has extensive experience representing property owners in enforcement and municipal zoning actions. Contact us online or call us at 1-802-861-7000 for experienced support in Vermont zoning cases.