Bianchi II

Frequently Asked Questions and Answers

Can the town still enforce violations of its land use permits?   Yes, but only for fifteen years after the violation first occurred. Under Bianchi II, landowners must still abide by any applicable permit. This means that if a house has a deck built in 1997 that is non-compliant with a permit, the deck remains non-compliant and is still subject to enforcement until 2012. If the town discovers the violation after that date, it may enforce, and the landowner can only benefit from the statute of limitations if he or she can prove that the violation is over 15 years old. Note that under Bianchi II the non-compliant deck is not a cloud on the title.

What does Bianchi II mean to planning and zoning administrative officers? Bianchi II continues to require zoning administrators to record notices of Municipal Land Use Permits in the Town Clerk’s Office. The new law clarifies that only final permit decisions must be recorded, and a clear definition of Municipal Land Use Permit will help the administrator determine what must be filed. The two most important changes for administrators, however, are as follows:

• Bianchi II completely separates issues of marketability of title from permit violations. This means that banks and attorneys searching title, will not press you as much for written statements that no violations exist on a parcel. Note that attorneys and purchasers will still be interested in ensuring that the property conforms to the bylaws and permits because lack of compliance is now cause to terminate a purchase and sales contract and lack of a permit may still subject the owner to an enforcement action.
• Bianchi II provides that any time after July 15, 1998, if a land use permit or notice of violation is not recorded as required by Bianchi II within thirty days after it is issued, later enforcement of the permit or violation will be prohibited.

If a Notice Of Municipal Land Use Permit is filed after the required thirty days, will the municipality be prevented from later enforcing the permit conditions? While the statutory language seems to say that failure to record a notice of municipal land use permit within thirty days after the final permit is issued will preclude a later enforcement action, a court might find that a late recording (after the thirty days) will not prevent a town from enforcing, so long as the enforcement action is against the landowner who received the permit, or another individual that has actual notice of the permit. In the event that a permit is not recorded within the requisite time period, the town should consult with its attorney to determine what course of action to take to preserve the town’s enforcement rights.

Does the statute of limitations apply to failure to obtain the required permit? The newly amended section 4496 applies the 15-year statute of limitations to "an action, injunction or other enforcement proceeding relating to any municipal land use permit [enforced] under section 1974a, 4444, or 4445 of this title." Introductory portions of the legislation,(see footnote 1) and legislative history, indicate that the intent was to create a statute of limitations that covered all violations, including failure to obtain required permits. However, the language of the statute is ambiguous and some municipal attorneys have been advising their clients that the statutory language extends the limitation of actions only to "enforcement proceedings relating to any municipal land use permit," and not to violations of the bylaws, including the failure to obtain a permit. Accordingly, until the legislature clarifies the language of section 4496, or a court considers this issue, towns, prospective purchasers and landowners should consult their attorneys before proceeding in reliance on this provision.

What does Bianchi II mean for clerks? The clerk's function continues to be ministerial. The clerk must still record whatever is presented to the office by the "appropriate municipal official." The indexing requirements of the law have not changed, however a tighter definition of what must be filed should provide some relief to clerks by resulting in fewer duplicative recordings. The old law set a laundry list of permits and approvals (and disapprovals and denials) that had to be recorded. The new law provides that only a municipal land use permit, or notice of such permit, or notice of violation must be recorded. Municipal land use permit is defined as:

(A) a zoning, subdivision, site plan, or building permit or approval, any of which relate to "land development" as defined in this section, which has received final approval from the applicable board, commission or officer of the municipality; or

(B) a septic or sewage system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title; or

(C) final official minutes of meetings which relate to the permits or approvals described in subdivision (24)(A) or (B) of this section which serve as the sole evidence of such permit or approval; or

(D) a certificate of occupancy, certificate of compliance or similar certificate which relates to the permits or approvals described in subdivision (24)(A) or (B) of this section; or

(E) an amendment of any of the documents listed in subdivisions (24)(A) through (D) of this section.

Land development is defined in 24 V.S.A. § 4303 as " the division of a parcel into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining, excavation or landfill, and any change in the use of any building or other structure, or land, or extension of use of land."

Note that if a notice of denial of municipal land use permit is presented to the clerk, it too, must be recorded.

What should a notice of municipal land use permit contain? Bianchi II does not change what is required to be included in a notice of municipal land use permit. The law continues to require that the memorandum list:

• as grantor, the owner of record title to the property at the time the permit, certificate or notice is issued;
• as grantee, the municipality issuing the permit, certificate or notice;
• the municipal or village office where the original, or a true, legible copy of the permit, certificate, statement or notice may be examined;
• whether an appeal of such permit, certificate or notice has been taken;
• tax map lot number or other description identifying the lot.

 A permit may be recorded instead of a notice of municipal land use permit. As with the prior law, a town may decide to record a copy of the municipal land use permit instead of a notice of permit. The disadvantage in many towns with multiple permits or lengthy permits is that recording each permit in the land records would quickly become very expensive and would consume valuable vault space.

May multiple permits be included in a single notice of municipal land use permit? Yes, the town clerk may choose to allow more than one permit to be listed on a single notice of municipal land use permit, so long as the notice covers one grantor or set of grantors. Note that if the clerk chooses to allow one notice to contain a number of permits, the clerk should also make it clear whether he or she will charge for this recording as though each notice was recorded individually, or will just charge as though it were a single notice of permit.

How should memoranda and similar documents be indexed? Bianchi II has not changed the law of indexing. With respect to bound volumes, the law continues to require each book to have its own index. It also specifies:

• Each owner of record title to a property at the time of a defined "transaction(s) affecting title to real estate" including deeds and memoranda shall be listed as the grantor.
• Instruments regarding hazardous waste site information, hazardous waste storage, treatment and disposal certifications shall be recorded in the land records and the State of Vermont shall be listed as the grantee.
• Underground storage tank information shall likewise be recorded in the land records and the State of Vermont listed as the grantee.
• In the case of municipal permits, certificates of occupancy and similar instruments, the municipality issuing the instrument shall be listed as the grantee.

Who pays for recording permits and notices of permits? Bianchi II still requires that the property owner pay the recording fees. Note that the fee for recording a notice of violation could probably be added to and collected without any fine involved. Where there is no fine, the municipality, and not the landowner, is probably responsible for those fees.