Posted by: Patricia Salkin | July 29, 2016

VT Supreme Court Finds Landowner Did Not Have Constitutionally Protected Due Process Property Interest in Town’s Strict Compliance with Statute Concerning Adoption of Zoning Ordinances

In February 2011, the Monkton planning commission held its final public hearing on a new set of zoning regulations, which it called the Unified Planning Document (UPD). After approving the UPD, the planning commission presented it to the Monkton Select Board. After approving the UPD, the Select Board submitted it to the Monkton town clerk to be voted on at a special election by town residents, where it was approved. A landowner alleged that the new zoning regulations under the UPD interfered with his long-held development plans and reduced the potential economic return on his property in Monkton. Specifically, the landowner alleged that by increasing the minimum lot size from one acre to two and by increasing the lot frontage minimum, the UPD reduced the number of lots into which landowner can subdivide his property.

The court found that Monkton’s adoption of the UPD was a legislative enactment since: the UPD affected the entire Monkton community by generally detailing how the Town’s land may be developed, and it did not pertain specifically to landowner’s property; and the adoption of the UPD was not concerned with determining underlying facts. Because Monkton’s adoption of the UPD was a legislative enactment, the landowner could not assert a constitutionally protected property interest in the Town’s strict compliance with the statute concerning the adoption of zoning ordinances.

Finally, the landowner argued that he personally had a vested, constitutionally protected property interest in the 1978 regulations. The landowner argued that he “took substantial action in developing his property and preparing for subdivision, in reliance on the 1978 Regulations” and also “relied on the statutory requirement that he would be provided sufficient notice before adoption of any amendment to the 1978 Regulation.” However, the existing regulations at the time of the permit application were the UPD, and the court held that a permit application could not retroactively vest a right in prior regulations.

Gould v Town of Monkton, 2016 WL 4061878 (VT 7/29/2016)

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