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Can A Developer Acquire a Vested Right to Regulations in Effect
(by Guest Column by Zachary Griefen, Environmental Lawyer - June 17, 2009)
Sisters and Brothers Investment Group, LLP (“SBI”) wanted to build a convenience store with gasoline pumps in the Town of Colchester. The Town told SBI to seek conditional use approval, which SBI did in 2002. The Town denied SBI’s conditional use application; SBI appealed to the Environmental Court and lost again.
SBI appealed to the Supreme Court arguing that its project was permitted under the 2002 regulations. In 2005 the Court ruled that SBI’s proposed use was permitted under the 2002 regulations and that no conditional use approval was required. Also in 2005, the Town amended its zoning regulations to expressly prohibit SBI’s proposed use. SBI applied for site plan approval in November of 2005, after the change in the regulations.
The Town approved SBI’s site plan application under the 2002 regulations, but with a condition limiting the store’s floor area that SBI objected to. SBI and Cumberland Farms, Inc., a neighboring competitor, appealed to the Environmental Court. Cumberland argued that because the conditional use application filed by SBI in 2002 was not required and therefore not “proper,” SBI had not acquired a vested right in the 2002 regulations. The Environmental Court disagreed, holding that SBI had, by filing its unnecessary conditional use application in 2002, acquired a vested right to its proposed use under the 2002 regulations, while evaluating other aspects of SBI’s site plan application under the 2005 regulations.
Cumberland Farms then appealed to the Supreme Court making the same arguments it did in the Environmental Court. Eight years after SBI’s original application, the Supreme Court affirmed, rejecting Cumberland’s “heads-I-win-tails-you-lose” approach. The Court stressed that its decision does not create an open-ended vested right of unlimited duration and indicated that it might have decided differently if SBI had waited longer to file its site plan application or acted in bad faith.
The case illustrates that the Supreme Court will not allow towns to point an applicant down the wrong path and then change the rules while the applicant seeks legal redress through the Environmental Court and the Supreme Court—a time consuming process. Developers, it said, can acquire a vested right with even an improper application, if that application was made in good faith reliance on erroneous information from the Town.
In re Sisters and Brothers Investment Group, LLP (Colchester Site Plan Application), 2009 VT 58, available at http://info.libraries.vermont.gov/supct/current/op2008-273.html
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