Before Effective Dates of Amendments

Application before notice of hearing.  Where the developer applies for a permit before the town gives the notice required by 24 V.S.A. § 4449(d), a narrower version of the Winhall approach may apply.  In Winhall, discussed above, a subdivision application was filed before zoning amendments that would have increased the minimum lot size well beyond that proposed, were officially proposed or heard.  The planning commission had denied the application on the basis of an interpretation of the existing zoning ordinance that the Supreme Court rejected. In In re Taft Corners Associates, Inc. (2000), the Court rejected the developer’s argument—based on Winhall—that prior approval of a subdivision under then existing zoning vested the developer’s right to consideration of an application for a zoning permit under the earlier zoning provisions rather than a subsequent amendment.  Separate permits were to be treated as separate applications unless, as in Winhall, the zoning provisions were integral to the subdivision.7   Following Taft Corners on this point, the Court in In re Champlain Oil Co. 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.8 Application after notice of hearing and before adoption.  The provisions of 24 V.S.A., § 4449(d) will apply when an application for a local land use permit is filed after the town has given notice of a hearing by the legislative body on proposed amendments. If the statute is not applicable, however, common-law rules will be applied.  Thus, in In re Handy, 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 in good faith” standard of Winhall, so as to create a vested right in the former bylaws.9    The statute does not apply to Act 250 cases like In re Ross.  In that case, the Act 250 permit application was filed after a planning commission hearing to consider amendments to the town plan that would reduce density. The District Commission dismissed the developer’s application for a limited review under Criteria 9 and 10 on the ground that the supporting information was inadequate and stated that any further review would be based on the town plan in force at the time of the review. The plan was amended while an appeal to the Environmental Board was pending. Noting that Winhall required a “proper” application “validly brought and pursued in good faith” to trigger vesting, the Supreme Court concluded that the application for partial review failed that test and was inconsistent with Winhall’s certainty purpose, and that the town’s interest in its plan outweighed the developer’s virtually nonexistent investment in the project.10Application after adoption and before effective date.   When the application is filed between adoption of amendments by the town and their effective date, if 24 V.S.A. §4449(d) applies, it will determine whether the application will be reviewed under the former or amended bylaws. In re Handy, discussed above, 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 Winhall “validly brought in 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 Winhall 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.11  In re Champlain Oil Co., as noted above, involved the application of what is now 24 V.S.A. § 4449(d). 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.7 171 Vt. 335, 758 A.2d 804 (2000).
8 2004 VT 44, 176 Vt. 458, 852 A.2d 622 (2004).
9 171 Vt. 336, 764 A.2d 1226 (2000).
10 151 Vt. 54, 557 A.2d 490 (1989).
11 In re Jolley Associates, 2006 VT 132, 181 Vt. 190, 915 A.2d 282 (2006).