Posted by: Patricia Salkin | August 12, 2011

VT Supreme Court Holds No Vested Rights to Change in the Law After Application Filed

The applicant first sought approval to construct a gift shop and deli project under Act 250.  Both the District Commission and the former Environmental Board denied the application since the Board found that the application failed to satisfy Act 250 criteria 8, 9(B), and 10.  At the time criterion 9(B) required that the project would “not significantly reduce the agricultural potential of the primary agricultural soils,” or, if a significant reduction existed, that four sub-criteria were satisfied.  The board subsequently found that the agricultural potential would significantly be reduced and that the applicant did not meet its burden of proof as to the four sub-criteria. 

Applicant appealed the decision and the court affirmed and reversed in part.  The court reversed the Board’s determination as to criterion 10, but held that the Board did not err in that the project application failed to comply with criterion 8 or 9(B) and thus properly denied the permit.  Applicant’s motion for re-argument was denied as well.  A few months later applicant filed a reconsideration request since there had been a statutory amendment to the law in question.  While the amendment now allowed the applicant to comply with criterion 8 it still lacked compliance with criterion 9(B) since it had not changed the project. 

The court noted that the vested rights doctrine followed is the minority rule which permits applicants to gain a vested right in the governing laws and regulations in existence when a complete permit application is filed.  This means that the applicant has a vested right to the laws in effect at the time of its original permit application.  The only way applicant would be able to take advantage to the new change in law would be to restart the Act 250 permit process from the beginning. The Court rejected the argument that the submission of an application for reconsideration is a “vesting event” entitling the applicant to all law in effect at that time. 

In re Times and Seasons, 2011 WL 2652471 (VT 7/8/2011) 

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2010-154.html


Responses

  1. When I read the end result of this case I wonder at how complicated it all was and how many hours of lawyering had to be suffered by the applicants. Why does anyone try to develop anything in Vermont? Do you really own your property? When does common sense, not nonsense prevail? Thanks to Law of the Land for this great post!


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