Vested Rights in Practice
This section provides suggestions on how to establish or resist a claim of vested rights.
Invoking Vesting. A Vermont landowner or developer who wants to complete a development project under zoning regulations in effect at the time the project was undertaken increases his chances of successfully invoking the vesting doctrine by:
• Applying for permits early. Since Vermont follows the “early-vesting” rule, landowners and developers acquire vested rights when they apply for their permit, provided that notice of a hearing on a new or amended plan or bylaw has not been given and the application is otherwise in good faith.
• Submitting permit applications that are complete and proper. Vermont courts have held that rights do not vest with an incomplete application.
• Diligently carrying out efforts under their permits. A landowner who voluntarily delays or abandons efforts under a permit may not be entitled to its reissuance if the controlling zoning ordinance was changed so as to result in the nonconformance of the proposed activity.
Avoiding Vesting. By proving certain facts and circumstances, municipal zoning authorities in Vermont may resist a landowner’s or developer’s vested right claim. For instance, municipal authorities might:
• Demonstrate that the landowner or developer submitted an incomplete application that did not rise to the standard of a “proper application.”
• Present evidence that a landowner or developer, who seeks reissuance of an expired permit after a zoning ordinance amendment rendered the proposed activity nonconforming, did not in good faith pursue work under his initial permit.
• Demonstrate, when a successor landowner is trying to claim a vested right based on a previous landowner’s filing for a plat, that the predecessor landowner had done little in reliance on the initial development scheme. Municipal authorities might also, in this situation, present evidence that the lapse between the predecessor’s filing and the successor’s application was within the control of the landowners. Finally, authorities under these circumstances might demonstrate that substantial changes have occurred in land use in the town, making the proposed used incompatible with other surrounding uses.