Redstone Building
26 Terrace Street, Drawer 09
Montpelier, VT  05609-1101
1-802-828-2363

The Opinions Zoning Page

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In 1997, the Vermont Supreme Court made a decision in a case entitled Bianchi v. Lorentz. This case established that violations of local land use regulations are a cloud on the title of property. The result of this decision was that, before any real estate could be sold, the attorneys involved in the transaction had to determine whether the property was in compliance with local zoning and subdivision regulations and permit conditions. This was not a bad result for municipalities since, when problems were discovered, the landowners were highly motivated to cure the violation so that clear title could be transferred. However, this ruling made it costly and time consuming to search title, and prevented many land transactions. This is because in some towns, municipal zoning record keeping was spotty, at best, so it was difficult to determine whether a property had received required permits.

In the 1997,legislative session, a fix was adopted that required municipal land use permits, or memoranda of those actions, to be recorded with the town clerk. It also created a statute of limitations on enforcement of certain municipal permit violations. Unfortunately, because of some exceptions to this law, the legislative fix created more confusion. Consequently, this year the legislature passed Senate Bill 144 which tries again to amend the law to create a permanent fix to the Bianchi decision. Note that the language of this bill was crafted and brought to the legislature by a committee comprised of representatives of many of the parties interested in the law, including VLCT, municipal attorneys, the Vermont Bar Association and attorneys who represent developers, realtors and banks.

Highlights of the new law are:

I. Definition of Municipal Land Use Permit. In order to clarify when the zoning office must record permits with the town clerk, the law adds definition of a "municipal land use permit" to 24 V.S.A. § 4303(24). Under the definition, a "municipal land use permit":

• a zoning, subdivision, site plan, or building permit or approval which has received final approval; or

• a septic or sewage system permit; or

• final official minutes of meetings which relate to permits or approvals; or

• a certificate of occupancy, certificate of compliance or similar certificate which relate to permits or approvals; oran amendment of any of any of the above.

*Note that the town may still choose to record a notice of a municipal land use permit instead of recording the entire permit. The requirements of what must be included in the memorandum or notice of permit have not changed. See 24 V.S.A. § 1154(c). With the definition of municipal land use permit, and the flexibility to use a notice of permit, there should be far less confusion over what should be recorded in the land records.

II. Record or Waive Enforcement. Note that there is no requirement in the law to record a municipal land use permits, or a notice of a permit. However towns that fail to record a permit or a notice of permit will not be allowed to enforce violations of that permit. This law relates back to July 1, 1998.

• This means that a town cannot enforce a violation of a municipal land use permit which received final approval after July 1, 1998, unless the permit or a notice of the permit was recorded in the land records of the municipality within 30 days after the permit had been issued.

III. Statute of Limitations. Under the new law, there is an absolute statute of limitation of 15 years in which to bring an enforcement action. It also means that once a person has owned a property for 15 years and 1 day, that person cannot be subjected to an enforcement action for something done by the prior owner. Note that statute of limitations does not apply to the person who created the violation.

• If a landowner builds without a permit, that violation can be enforced twenty years later, so long as the landowner has not sold the property.

IV. Summer Study Committee. The new law requires the Secretary of State’s office to convene a summer study committee. We need your help! The committee is to study the maintenance of, location of, indexing of, costs relating to, and access to the municipal land use permits issued by municipalities, and to develop and recommend a simplified and standardized process for recording permits in Vermont's land records so that those permits may be more easily, more reliably, and less expensively searched. As part of the committee’s charge, we will also investigate the use of technology to expand access, and obtain information on how to maintain, index, and make available land use permits. We would appreciate your thoughts and comments! Please contact Gregory Sanford at 828-2363.

• In the next month we will be sending out a more in depth discussion of the Bianchi law and what it means for your town.

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