No Applicable Land Use Plan or Regulation

If there is no applicable land use plan or regulation requiring a permit when a developer begins a project, the question will be whether the developer is subject to a plan or regulations adopted before the project is completed.  In Town of Mendon v. Ezzo,4  decided before Smith v. Winhall, the Supreme Court determined that the work completed on the project before adoption of zoning regulations requiring a permit was not sufficient to vest a right in the developer to continue on the project without a permit.  In re McCormick shows that, even after Winhall, the Court may incorporate this approach in a case where there is no permit requirement when a project is begun.  In McCormick, a subdivision plat was filed for recording several hours before the selectboard adopted the town’s first interim zoning regulations, with minimum lot sizes larger than some of those on the plat. In denying a proposal to build on the undersized lots 15 years after the filing, the Court distinguished Winhall, because there was no zoning scheme in effect here and because the policy considerations were very different. Drawing on the balancing approach of Presault v. Wheel, discussed below, the Court noted the town’s strong interest in not being committed to a 15-year-old decision and the low level of the developer’s interest in light of his lack of investment in the project. Before enactment of a zoning ordinance, the developer’s only vested rights were those conveyed by statutory provisions concerning approval of previously filed plats, limited approval of undersized lots, and elimination of nonconforming uses.54 129 Vt. 351, 278 A.2d 726 (1971).
5 149 Vt. 585, 547 A.2d 1319 (1988).