Posted by: Patricia Salkin | September 25, 2009

Applicant Entitled to Project Review Under Conditional Use Permit and Site Plan Regulations in Effect at Time of Application

In 2002, Sisters and Brothers Investment Group (“SBI”) applied for a conditional use permit with the Colchester Development Review Board to operate a convenience store with gasoline pumps on its property.  The board denied the application, and the Environmental Court affirmed.  The Supreme Court of Vermont reversed the lower court, concluding that SBI did not need to apply for a conditional use permit because its proposed use was a permitted use under the plain meaning of the zoning regulations in effect at the time.  Although the town amended the zoning regulations to prohibit SBI’s proposed use while SBI’s conditional use permit application was pending, the Supreme Court concluded that the earlier regulations governed.  Pursuant to the high court’s decision, SBI submitted a site plan application that was “materially identical to the project proposed in the [previous] conditional use application.”  Cumberland Farms, a competitor of SBI, opposed the application, claiming that the site plan application was separate from the earlier conditional use application and must be considered under the new, prohibitive regulations.  The board concluded that the previous regulations applied to the entire application.  Cumberland Farms appealed to the Environmental Court, which reasoned that the site plan application was governed by the new regulations.  The court held, however, that SBI had a vested right to operate a convenience store with gas pumps due to its earlier conditional use application.  Cumberland Farms again appealed to the Supreme Court.

The Supreme Court of Vermont affirmed.  Emphasizing that its holding was a “narrow one,” the court iterated: “When a town erroneously informs a landowner that a proposed use is not permitted, the landowner then submits a conditional-use application rather than a site-plan application in reliance on that representation, and the town then amends its regulations to explicitly bar the use it maintained was not permitted, the applicant has a right to apply for site-plan approval with the benefit of the original use determination.  Interested parties [such as Cumberland Farms] who received notice of the conditional use determination and subsequent appeal of that determination but chose not to participate may not later contest issues necessarily decided therein, such as the determination that a convenience store with gas pumps is a permitted use at SBI’s [] property.”

In re Sisters & Brothers Inv. Group, L.L.P., 2009 Vt. 58, 2009 Vt. LEXIS 49 (Vt. 5/29/2009)

The opinion can be accessed at:

Note: This summary was presented by Maryland Judge Glenn T. Harrell, Jr. at the ALI-ABA Land Use Institute in August 2009.

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