|You know what this place needs?
A parking lot.
In re Purvis Nonconforming Use, 2019 VT 60
Back in 2014, the City of Burlington found out that Mr. Purvis had paved paradise and put up a parking lot. To be fair, I don’t know anything about whether Mr. Purvis’s property is or is not paradise and whether the expansion of his parking area was with pavement or something else, but I wasn’t going to pass up an easy opportunity to quote some song lyrics in a summary.
Code enforcement ordered Mr. Purvis to turn the parking area back into green space. So, Mr. Purvis appealed to the Development Review Board (DRB). He argued that code enforcement had missed the boat because the first expansion happened over fifteen years ago (see this statute). After reviewing materials, the DRB reasoned that because parking in the area had stopped for more than sixty days, Mr. Purvis lost the statute-of-limitation benefit and his potential claim to reestablish the right to expanded parking.
Mr. Purvis then appealed to the Environmental Division. The parties settled the case without prejudice and filed a stipulated order. I probably should explain the difference between “with prejudice” and “without prejudice” here because I didn’t really understand it until I was studying for the bar. “With prejudice” means that things are done. There’s no takesies-backsies and if a party to a lawsuit tries to rehash something that could’ve been hashed before, that doesn’t fly. The case is done. “Without prejudice” means the opposite. Parties are free to drag things up from the past. Almost every argument with your spouse that you think you’ve “won” is “without prejudice.”
Back to the case. There was an agreement in the stipulated order to mediate the case and work everything out. There was also a provision that said if nobody filed anything within a year to change anything, then the DRB order became final and the appeal period would be deemed expired. Neither the mediation nor any motion to modify (or reopen or extend the period for filing motion) happened within the timeframes in the stipulated order.
Roughly seven months after the stipulated order expired on its terms, Mr. Purvis filed a motion for relief (pursuant to Vermont Rule of Civil Procedure 60(b)(6)). He argued that his lawyer had a conflict when he entered the stipulated order, and the City had indicated it was willing to mediate after the order’s deadline. So, he asked the court to exercise its equitable powers and extend the filing-something-to-change-the-order deadline.
In response to the City’s opposition to his motion, Mr. Purvis argued that the City negligently failed to hand over to the DRB a 1968 zoning permit obtained by his predecessor-in-interest to do work on cars on the property. He argued that while not conclusive, it might give grounds to reasonably conclude that the parking was a permitted use.
The court was not convinced. It reasoned that the motion was unwarranted because Mr. Purvis didn’t file before the stipulated order’s deadline and to the extent he was making the (Rule 60(b)(2) or (3)) motion based on newly discovered evidence and negligence by the City, it was late because it was filed more than a year after the stipulated order.
Mr. Purvis moved to reconsider. He argued that because the stipulated order allowed reopening until almost a year after the order was filed, the order itself didn’t become final until that date, and he should be granted relief under the subsections of the rule that allow a motion to be filed within a year of a final order based on mistake or neglect or newly discovered evidence (Rule 60(b)(1) and (2)).
The court also denied that motion on the basis that the deadline was a settled term from the time the stipulated order was filed. In the court’s view, the year to file ran from the date of the order’s filing, not the drop-dead date in the order.
Mr. Purvis appeals to SCOV. His sole argument on appeal is that the trial court screwed up in calculating the date that the stipulated order became a final order for purposes of appeal. He doesn’t appeal the first motion (60(b)(6)); he appeals the motion to reconsider (60(b)(1) & 60(b)(2)). Basically, he argues that the 1968 permit makes the extended parking lot a grandfathered use (which takes a year or two to be considered abandoned) rather than a noncompliant structure that’s been there more than 15 years (which can be abandoned over 60 days).
SCOV notes that when the stipulated order became final is a question SCOV reviews without deference to the trial court. “Rule 60(b)(1) authorizes relief from judgment for ‘mistake, inadvertence, surprise, or excusable neglect,’ and 60(b)(2) allows relief from judgment on account of ‘newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.’” A motion under those subparts must be filed within a year of the judgment appealed from.
SCOV explains that an order is final when there’s nothing else, really, for the trial court to do. It explains that the stipulated order “disposed of the issues in the case, leaving none outstanding to be decided.” Though there was a window for the parties to move to reopen, there wasn’t anything for the environmental division to do. In fact, SCOV notes, the stipulated order explicitly dismissed the action if nobody did anything before the deadline. And so, SCOV reasons that when the stipulated order was entered, it became a final order.
SCOV seemingly sympathizes with Mr. Purvis and agrees that some of the provisions in the stipulated order are a bit illogical. And SCOV opines that the order was: “procedurally unorthodox, and litigants and courts would be well advised not to follow its model.”
But because SCOV’s job here is to determine when the order became final, it reasons that the better course is to hold the parties to their stipulation and deems the stipulated order final as of the date of its entry.