Summary of Vermont Supreme Court Decisions
In re Champlain Oil Co. 2004 VT 44, 176 Vt. 458, 852 A.2d 622 (2004). The Supreme Court held that a subdivision sketch plan application filed before notice of hearing of zoning amendments under an earlier—but constitutional—version of what is now 24 V.S.A. § 4449(d) did not vest the developer’s right to site plan review under prior zoning provisions. The Supreme Court treated the application for site plan review, filed between the adoption of bylaw amendments and their effective date, as a new application and held that, in the absence of vesting prior to the notice date, the statute required the application to be reviewed under the amended bylaws.
In re Handy. 171 Vt. 336, 764 A.2d 1226 (2000). The Supreme Court found the original version of what is now 24 V.S.A. § 4449(d) unconstitutional because it lacked standards. A revised application for a project earlier rejected by the Planning Commission had been filed between the date of notice of a public hearing on proposed amendments to the bylaws and the date of the hearing at which they were adopted. The Court remanded the case to the zoning board to determine whether the application satisfied the “validly brought-good faith” standard so as to create a vested right in the former bylaws. In re Handy, also involved applications by another developer for conditional use permits previously discussed with the town that were filed between the adoption of the amended bylaws and their effective date. With the statute out of the case, the Court remanded for determination whether the validly brought-good faith standard was met, noting only that the applicant’s burden of showing good faith was higher in this case because of the later filing of the application. In a subsequent appeal, the Environmental Court held that the good faith standard was met and allowed the second applicant review under the former bylaws. The court denied the application under those bylaws, but allowed the applicant to submit a revised conditional use permit application under the former bylaws and a site plan review application under the amended bylaws then in effect. Distinguishing Ross, discussed above, because the application there was incomplete, the Supreme Court affirmed the decision.
In re Appeal of Jolley Associates, 2006 VT 132, 181 Vt. 190, 915 A.2d 282 (2006). Here, the Supreme Court considered whether an applicant, who, after remand, reapplied for a conditional use application and site plan review, was entitled to do so under old bylaws or, alternatively, had to apply under the bylaws as subsequently adopted. The Court concluded that the landowner in that case did retain a right to refile his conditional use application under the old bylaws because the original application he had submitted had been complete and the revisions required upon remand were not substantial. Based on this determination, the Court further held that the right to conditional use included a right to site plan review under the bylaws in effect at the time the initial site plan application was filed.
In re McCormick Management Co., Inc., 149 Vt. 585, 547 A.2d 1319 (1988). Although the Supreme Court explicitly limited its holding to cases in which the asserted vested right precedes the adoption of zoning by a town, it merits attention nonetheless. The Court rejected the claims of a successor landowner who asserted that he had vested rights in a small residential subdivision based on the previous landowner’s filing for a subdivision plat 15 years prior, before the town had enacted a zoning ordinance. In reaching this decision, the court noted first that 1 V.S.A. § 213 did not apply to the case because no zoning permit application had been filed and no zoning permit was in litigation at the time of the zoning ordinance enactment. The court then applied the Preseault v. Wheel balancing test to weigh the town’s interest in control against the successor permittee’s interest. Because the permittee had done little in reliance on the initial development scheme, the court found the town’s interest to be more compelling. It also noted that the substantial lapse between the predecessor’s filing for the plat and successor’s application for the zoning permit was not caused by external factors beyond the control of either landowner; in addition, the Court reasoned that substantial changes may have occurred in land use in the town over the same period, making the proposed use incompatible with other surrounding uses.
Town of Mendon v. Ezzo, 129 Vt. 351, 278 A.2d 726 (1971). The Supreme Court considered whether a landowner, who had begun work on a construction project one month prior to the adoption of an interim zoning ordinance that required a permit for his intended use, had performed enough work on his project that he should not be subject to the more constraining restrictions of the interim ordinance. Focusing chiefly on the landowner’s work before the adoption of the interim ordinance, the Court held that he had not, and further observed that “preparation for a forbidden use is not enough to relieve the property from regulation. Zoning restrictions may attach, even though a substantial investment had been committed to the project.”
In re Molgano, 163 Vt. 25, 653 A.2d 772 (1994). This case explores the consequences of an amended zoning ordinance. The landowner in this case had applied for and received a municipal zoning permit. Within a year, the town amended its zoning ordinance such as to prohibit the landowner’s intended use. After the amendment was adopted, the landowner then applied for an Act 250 permit. Although the use proposed in the Act 250 application did not comply with the amended zoning ordinance, and therefore did not conform to the town plan, the Court concluded nevertheless that the activity was in conformance for the purposes of Act 250 review. The Court reached this conclusion by applying the rule from Preseault, above. The Court reasoned that conformance with the town plan should, in light of the purposes of Act 250 Criterion 10, be measured at the “beginning of the development process at the town level,” in other words, when at the time the landowner first made “proper application for the local zoning permit.”
In re Preseault, 132 Vt. 471, 321 A.2d 65 (1974). In this case, the Supreme Court reviewed the validity of an Act 250 permit issued to a landowner despite the proposed project’s nonconformance with an amended town plan. The town had amended its plan well after the initial permit application had been made, and during the course of other litigation involving the project. The Court upheld the permit, however, satisfied that the project had complied with the plan in effect at the time of the initial application. In reaching this conclusion, the Court relied on 1 V.S.A. § 213, which provided that acts of the general assembly shall not affect suits begun or pending at the time of passage. The Court extended this provision to the town ordinance, reasoning that towns’ authority to adopt such ordinances derives from the State. By way of conclusion, the Court noted that “the intervening adoption of a master plan is, by itself, ineffective to derail proceedings validly brought and pursued in good faith to implement rights available under previous law.”
Preseault v. Wheel, 132 Vt. 247, 315 A.2d 244 (1974). The Supreme Court considered whether a landowner who had received a valid permit that expired after a certain period of time, was entitled to reissuance of that permit, despite intervening changes to the zoning ordinance that resulted in the nonconformance of the proposed activity. The Court found for the landowner in this case, after having determined that he had not voluntarily delayed or abandoned his efforts under the initial permit bu
t rather was impeded “by forces or events which opposed his good faith [and] expeditious effort,” here, litigation. The court reached this decision in Preseault v. Wheel after weighing competing policy considerations. On one hand, it considered the implications, for a municipality’s ability to control land use, of a permitted landowner or developer being subject to no time limitations for performance. On the other hand, the Court considered whether it would be equitable for a permittee who had diligently performed to have his efforts be for naught after the municipality amends its zoning ordinances so that his project becomes non-conforming.
In re Ross, 151 Vt. 54, 557 A.2d 490 (1989). In this case the Supreme Court declined to find vested rights. The landowner in Ross had hastily filed an incomplete Act 250 application while an amendment to the town plan was pending. Although the landowner’s proposed project conformed with the previous plan, it would be inconsistent with the amended version, when enacted. The Court recognized the landowner’s incomplete application as a ploy to secure his rights under the more favorable plan. The Court thwarted this endeavor by concluding that the filing had not met the “proper application” standard under Winhall and therefore the landowner’s rights had not vested.
Smith v. Winhall Planning Commission,140 Vt. 178, 436 A.2d 760 (Vt. 1981). In this case, the Supreme Court considered whether a landowner’s application for approval of a subdivision should be governed by zoning regulations in effect at the time of the application, or, alternatively, by subsequent amendments that were enacted during the course of litigation. The Court held that the applicant’s rights vested under the “then existing regulations as of the time when proper application is filed.” On that logic, Smith prevailed, his proposed subdivision permissible under the prior zoning scheme.The Court explained its preference for the early vesting rule through discussion of, first, important policy considerations, and, second, an applicable state statute. With respect to policy, the Court observed:
“The minority rule is, we feel, the more practical one to administer. It serves to avoid a great deal, at least, of extended litigation. It makes for greater certainly in the law and its administration. It avoids much of the protracted maneuvering which too often characterizes zoning controversies in our communities. It is, we feel, the more equitable rule in long run application, especially where no amendment is pending at the time of the application.”
The Court further supported this choice of rule by invoking In re Preseault, 321 A.2d 65 (1974), in which the Court had decided a factually similar case by applying the principles of 1 V.S.A. §213, which provided that “…acts of the general assembly…shall not affect a suit begun or pending at the time of their passage.” The Preseault Court reasoned that the intervening adoption of an ordinance is “ineffective to derail proceedings validly brought and pursued in good faith to implement rights available under previous law.”
In re Appeal of Taft Corners Associates, Inc., 171 Vt. 135, 758 A.2d 804 (Vt. 2000). In this case, a landowner tried, unsuccessfully, to apply the Winhall holding to a case in which he claimed that his receipt of a subdivision permit created a vested right that a separate, subsequent zoning permit be evaluated according to the zoning ordinance in place when the landowner applied for his subdivision permit. Although the Supreme Court conceded, consistent with Winhall, that a subdivision application creates a vested right that the subdivision permit be evaluated under the regulations in effect at the time of the application, it rejected the landowner’s argument that vested-rights jurisprudence should extend to the zoning-permit process. In so doing, the Court distinguished between zoning and subdivision regulation, noting that subdivision review requires substantially less evidence of proposed use than does the zoning permit process, and, therefore, should not be held to control the regulatory process. The Court recognized that subjecting subdivisions only to those zoning regulations applicable at the time when a subdivision is sought could result in “an uncontrollable patchwork of land use rules that would defy rational policy-making or implementation.”
In re Taft Corners Associates, Inc., 160 Vt. 583, 632 A.2d 649 (1993). Here, the landowner had applied for and received an Act 250 “umbrella” permit. The landowner subsequently filed an application to amend that umbrella permit, but not before the town had amended its town plan in such away to preclude conformance. The Supreme Court found for the landowner, concluding that its rights had vested in the initial plan when the period for appealing the umbrella permit had expired.
In re Van Nostrand, 2008 VT 77, 957 A.2d 399 (2008). In this case, the town used its zoning bylaws as subdivision regulations. The present landowners’ predecessors in interest obtained a subdivision permit at a time when the zoning bylaws required a 20-foot right of way to lots without road frontage. The present landowners applied for a permit to construct a house on an interior lot after the bylaws were amended to require a 50-foot right of way. The Court held that even though there were no separate subdivision regulations, the bylaws did not require that a subdivision meet requirements like the right of way requirement, and there was no evidence that the requirement had been considered in the grant of the subdivision permit. Accordingly, the subdivision permit did not vest rights in the prior bylaw provision.