After Effective Dates of Amendments
When an application is filed after the effective date of amendments that affect the project, the question is whether some previous action of the parties gave the developer a vested right to have the application reviewed under the prior law. In re Ross, discussed above, illustrates that when a prior application is not sufficient to invoke vesting, a later application submitted after amendment of a town plan, must be reviewed under Criterion 10 of Act 250 in accordance with the amended plan. In In re Taft Corners Associates (1993), however, the Supreme Court ruled that even though the developer’s rights to consideration under a 1987 town plan had vested with the grant of a permit based on it, if a subsequent application does not comply with the 1987 plan and involves a substantial change in the previously approved project, it may be considered a new application and reviewed under the current town plan.12
In In re Molgano, after the developer had obtained local zoning and other state permits and before he applied for an Act 250 permit, the town plan was amended to prohibit such projects. The Supreme Court reasoned that conformance with the town plan should, in light of the purposes of Act 250, Criterion 10, to attain consistency between state and local permitting processes, be measured at the “beginning of the development process at the town level,” in other words, at the time the landowner first made “proper application for the local zoning permit.”13 The Court distinguished Molgano in its 2000 decision in In re Taft Corners Associates, discussed above, applying the later-enacted bylaw because that case involved the relationship between two local regulatory processes. Ross, discussed above, was considered the applicable Act 250 precedent.1412 160 Vt. 583, 632 A.2d 649 (1993).
13 163 Vt. 25, 653 A.2d 772 (1994).
14 See also In re Van Nostrand, 2008 VT 77, 957 A.2d 399 (2008) (where no separate subdivision regulations, grant of subdivision permit does not vest rights in then-existing zoning regulations).