In re Taft Corners Assocs.
In re Taft Corners Assocs. (99-431); 171 Vt. 135; 758 A.2d 804
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In re Appeal of Taft Corners Associates, Inc. Supreme Court
On Appeal from
March Term, 2000
Merideth Wright, J.
Stewart H. McConaughy and Norman Williams of Gravel and Shea, Burlington,
Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. Taft Corners Associates (TCA) appeals from a decision of
the environmental court holding that its subdivision permit from the Town
of Williston does not give it a vested right to develop its subdivided
lots under the provisions of a zoning ordinance in effect when the
subdivision permit was issued. The issue arises because the Town has made
retail uses conditional uses under interim zoning rules adopted in 1997,
and, pursuant to the interim zoning rules, has denied TCA a permit to
construct a retail store on one of the lots. We concur with the
environmental court that TCA does not have a vested right to develop the
lots under the pre-1997 zoning ordinance, and affirm its grant of partial
summary judgment to the Town.
In 1983, TCA purchased two adjoining parcels, comprising 223 acres, in
the Town of
Williston and, thereafter, applied to the Williston Planning Commission to
subdivide them into thirty-seven (now thirty-eight) lots. When asked what
uses would be placed on the subdivided lots, TCA's principal answered that
they would be mixed uses,"retail and light industrial that would
compl[e]ment each other." The subdivision permit was granted in 1987. The
TCA land was in districts in which mixed uses were permitted at the time.
Thereafter, in accordance with the permit, TCA invested approximately 4.1
million dollars in infrastructure and impact fees, and over 1.5 million
dollars more for professional services and related costs.
By 1991, seven commercial buildings were permitted and built in the
subdivision. These had a total square footage of 250,000 feet, with
153,756 square feet devoted to industrial uses, 68,163 square feet devoted
to office uses, and 29,185 square feet devoted to retail uses. From 1995
through 1998, the development activity was exclusively for retail uses.
Seven more buildings were added, with a square footage in excess of
460,000 feet, to house stores for Hannaford (super market), Wal-Mart, Home
Depot, Toys R Us, PetsMart, Circuit City and an "anchor" store. Each
building is separate and of "box design," that is, with one story and a
parking lot in front.
TCA's development plans generated opposition in the Town of Williston,
and by 1990 the Town modified its town plan and was considering zoning
amendments that would restrict retail development in the districts
encompassing the TCA subdivision. In July, 1990, TCA and the Town entered
into an agreement, which for five years thereafter allowed TCA to develop
eleven of its lots, totaling fewer than forty acres, for retail
establishments of at least 25,000 square feet per building, and 10,000
square feet per tenant. The agreement was a compromise to accommodate
TCA's position that it desired "a vested right to develop the lots in
Tafts Corner Commercial Park for those uses which were permitted at the
time of the subdivision approval" and the Town's position that it
desired "to have the lots in Taft Corners Commercial Park developed for
those uses contemplated under the new plan and proposed new zoning
regulations." The agreement expired, and no further agreement replaced
In November 1997, the Town selectboard adopted an interim zoning
amendment making retail uses conditional uses in the districts in which
the TCA subdivision is located. Under the amendment, retail uses can be
permitted only by vote of the Town Selectboard, based on conditional-use
criteria contained in the amendment. According to the selectboard, the
interim zoning amendment was adopted "to allow breathing room to address
the enormous impacts the scope and pace of this retail development was
having on Williston."
Although TCA took the position it was not bound by the interim zoning
regulation because it had a vested right to develop under the zoning
regime in place when it received its subdivision permit, it sought
conditional-use approval from the selectboard for a 31,940 square foot
retail building that would fill in the space between two existing
buildings on lots 27 and 29, and for a 30,020 square foot retail building
on lot 26. The selectboard denied conditional-use approval for both
buildings, finding that they "would only exacerbate the very problems
sought to be addressed [by the interim zoning amendment]" and were
inconsistent with the town plan and with the capacity of town services,
particularly the police and fire departments.
TCA appealed to the environmental court which, on the parties'
cross-motions for partial summary judgment, ruled that TCA does not have a
vested right to develop its lots under the zoning ordinance in effect at
the time the subdivision permit was granted. Thus, the court ruled that
TCA was properly subject to the conditional-use regulation contained in
the interim zoning amendment, and did not have a right to consideration of
its new retail buildings as permitted uses. We granted
interlocutory review of this ruling with respect to lot 26. (FN1) We have
before us the single issue of whether TCA has a vested right to develop
the lots in its subdivision under the zoning ordinance as it existed in
1987, when the subdivision permit was issued.
We start with the statutory scheme. The Vermont Planning and
Development Act authorizes two major types of bylaws to regulate land
development within a municipality: zoning regulations and subdivision
regulations. See 24 V.S.A. § 4401(b)(1) & (2). Subdivision regulations
set forth the "procedures, requirements and specifications" for the
subdivision of land and the filing of plats displaying the subdivided
land. Id. § 4401(b)(2). In this context, the subdivision of land means
the division of a parcel of land into two or more parcels. See In re
Lowe, 164 Vt. 168, 169, 666 A.2d 1178, 1179 (1995). The municipality can
authorize its planning commission to "approve, modify or disapprove all
plats of land." (FN2) 24 V.S.A. § 4401(b)(2). In addition to procedures
and requirements for submission and processing of plats, subdivision
regulations must provide "[s]tandards for the design and layout of
streets, curbs, gutters, street lights, fire hydrants, shade trees, water,
sewage and drainage facilities, public utilities and other necessary public
improvements." Id. § 4413(a)(2). They may also provide "development
standards to promote the conservation of energy or to permit the
utilization of renewable energy resources or both." Id. § 4413(c). The
planning commission has considerable discretion in acting on proposed
plats. It can
waive or vary standards which, in its judgment, are not requisite to the
public health, safety or general welfare for a particular plat or plats or
"are inappropriate because of inadequacy or lack of connecting
facilities." Id. § 4413(b). The statute also allows the planning
commission to condition approval of a plat on any of six conditions. For
purposes of this decision only one condition is significant: "where zoning
regulations are in effect, the plots shown on said plat will at least
comply with the requirements thereof." Id. § 4417(2).
The purpose of zoning regulations is to "permit, prohibit, restrict,
regulate, and determine land development." Id. § 4401(b)(1). Land
development includes "the division of a parcel into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation or enlargement of any building or other structure or . . . any
change in the use of any building or other structure, or land, or
extension of use of land." Id. § 4303(3). Zoning regulations may
regulate: "specific uses of land;" "[d]imensions, location, erection,
construction, repair, maintenance, alteration, razing, removal and use of
structures;" "[a]reas and dimensions of land . . . to be occupied by uses
and structures, as well as areas . . . to be left unoccupied by uses and
structures;" and "[d]ensity of population and intensity of use." Id. §
There is some overlap between zoning and subdivision regulation
because the definition of "land development" for purposes of zoning
regulation includes the division of parcels, the trigger for subdivision
regulation. (FN3) See In re Lowe, 164 Vt. at 168, 666 A.2d at 1179;
Drumheller v. Shelburne Zoning Bd., 155 Vt. 524, 528-29, 586 A.2d 1150,
1152 (1990). A municipality may use
zoning regulations to perform at least some of the functions of subdivision
In any case where a landowner is both dividing a parcel into smaller
ones and developing those smaller parcels, he or she will need both a
subdivision permit and a zoning permit. The subdivision permit will allow
the owner to divide the land and create the infrastructure. The zoning
permit will allow the landowner to develop the parcels by placing one or
more structures on them. It is undisputed that TCA needed a subdivision
permit to create the Tafts Corner Commercial Park. It is also undisputed
that TCA needs a zoning permit for each lot it develops in the park.
With this background in mind, we look to our jurisprudence on vested
rights. Our leading case is Smith v. Winhall Planning Comm'n, 140 Vt.
178, 436 A.2d 760 (1981), in which a developer proposed to subdivide a
tract of land into nine residential lots, each larger than one acre, but
smaller than five acres. At the time, the town was proposing to adopt an
amendment to its zoning ordinance to require that all residential lots be
at least five acres in size. In anticipation of the amendment, the
planning commission denied the subdivision permit, and the developer
appealed to the trial court. In the meantime, the town adopted the zoning
amendment and asserted that the new ordinance prohibited the development.
This Court disagreed, adopting the minority rule "vesting rights under the
then existing regulations as of the time when proper application is filed."
Id. at 181-82, 436 A.2d at 761.
TCA argues that this case fits the holding and rationale of Smith.
Because the holding of Smith was that the landowner's subdivision permit
must be governed by the zoning ordinance in effect when the subdivision
application was submitted, TCA argues that it also has a vested right to
be governed by the zoning ordinance in effect in 1987, when it received its
subdivision permit. Only this rule, it argues, protects its investment in
the subdivision and produces the regulatory certainty
that Smith sought to accomplish.
This is, however, a very different case than Smith. In Smith, the
issue was whether the landowner could obtain a subdivision permit despite
an adverse change in the regulatory law between the date of application
and the date of decision. Here, the permit in issue is a zoning permit,
not a subdivision permit, and the landowner applied for this permit after
the adverse regulatory change. Although the landowner did receive a
subdivision permit, no issue of conformance with the zoning regulation
arose in that process, and the landowner was never denied the subdivision
permit at any stage of the process.
We have no doubt that a subdivision application creates a vested right
that the subdivision permit be evaluated under the regulatory law in
effect at the time of the application. That is the holding of Smith, and
it is not under debate in this case. What TCA seeks, however, is a vested
right that a separate zoning permit will be evaluated under the regulatory
law in effect at the time of the application for the subdivision permit,
(FN4) and not that in effect at the time of the zoning permit application.
We can understand this position if the legality of the act of dividing the
parcel of land necessarily depends upon a specific provision of the zoning
ordinance, and that zoning ordinance provision was amended before the
zoning permit was sought. Thus, if the developer in Smith had been
awarded a subdivision permit despite the fact that his lots were
undersized, but had been denied a zoning permit because of the size of the
lots, he should have had a vested right to the zoning permit provided he
met all other zoning requirements. See Stucker v. Summit County, 870 P.2d
(Utah Ct. App. 1994) ("Some courts have recognized that the filing of a
subdivision plat gives a vested right to individual lot owners as to the
lots' size."). Beyond this narrow circumstance, however, we believe TCA's
position represents an unwarranted and unprecedented expansion of our
vested rights jurisprudence. See L.M. Everhart Constr. Co. v. Jefferson
County Planning Comm'n, 2 F.3d 48, 52 (4th Cir. 1993) ("no court . . . has
adopted such a broad conception of vested rights").
TCA argues that vested rights jurisprudence should extend to the
zoning permit process because subdivision review necessarily addressed
compliance of the subdivision with the zoning ordinance and TCA disclosed
how it would use the land during subdivision review. The latter assertion
is, at best, an exaggeration; the former is not an accurate statement of
Vermont's land use regulatory process.
The only evidence during subdivision review of expected uses within
the TCA subdivision was the statement of its principal that he would "like
a mixed use in there with retail and industrial that would complement each
other." Since these uses were allowed by the zoning ordinance, this was
little more than a statement that TCA would like to comply with the
ordinance. It did not limit the uses, and no subdivision permit condition
mentioned the uses to which any lot in the property would be put. See In
re Stowe Club Highlands, 164 Vt. 272, 276, 668 A.2d 1271, 1274-75 (1995)
(representations made in subdivision review not legally binding unless
placed in permit conditions).
For the proposition that vested-rights jurisprudence should extend to
the zoning-permit process, TCA cites the statute authorizing the planning
commission to require that the plat comply with zoning requirements. See
24 V.S.A. § 4417(2). Consistent with that argument, TCA submitted to the
environmental court an affidavit of the former chair of the Williston
Planning Commission to the effect that, during subdivision review, a
commission must look at compliance with a town plan
and zoning regulations so that:
The Planning Commission would not have approved TCA's
subdivision application if TCA had proposed uses which were not in
conformance with the Comprehensive plan or were not permitted by
the zoning regulations in effect at the time.
We do not have to decide whether a planning commission ever has the power
to deny a subdivision permit because the uses proposed for it are not
authorized by the zoning ordinance. It is sufficient to say that
subdivision review is not intended to police prospective uses of the
subdivided lots. No subdivider is required to specify what uses will be
placed on the subdivided lots, and the act of subdivision does not
restrict those uses. Indeed, there is no requirement that the subdivider
know what uses will be placed on those lots. Consistent with the proper
role of subdivision review, TCA's principal spoke only of what he would
"like" for uses, and then only in the broadest and vaguest terms.
By describing a limited role for subdivision review, we do not render
nugatory the power of the planning commission to require compliance with
the zoning ordinance. For example, a planning commission might deny a
subdivision permit because the subdivided lots would be too small to be
lawfully developed within the zoning district in which they lie.
Similarly, it might decide that no realistic development could comply with
setback requirements or lot coverage limits in the zoning ordinance. In
rendering these rulings, it would rely on its power to ensure compliance
with the zoning ordinance as set out in § 4417(2).
TCA also argues that we decided vesting can extend to other permits in
In re Molgano, 163 Vt. 25, 653 A.2d 772 (1994), an Act 250 state land-use
permit case. In Molgano, we decided that conformance with a town plan, an
Act 250 requirement, should be measured as of the start of the
development process in the town for consistency of local zoning or
subdivision review with Act 250 review. Id. at 33, 653 A.2d at 776-77;
see also In re Tafts Corners Assocs., 160 Vt. 583, 593-94, 632 A.2d 649,
654 (1993) (once developer obtains umbrella Act 250 permit, Environmental
Board may not deny amendments on basis that development does not comply
with town plan at time amendment sought, as long as it complied with town
plan when umbrella permit was issued). Molgano was decided as a matter of
construction of Act 250 with respect to conformance with the town plan. We
reasoned that since on this criteria Act 250 was reviewing conformance with
local requirements, it should be in sync with local regulatory review by
using the same version of the plan under which such local review was
conducted. Molgano, 163 Vt. at 32, 653 A.2d at 776. We do not believe
that the policy that must apply to parallel state (Act 250) and local
(subdivision) review should necessarily govern the distinct and separate
local review processes of subdivision permitting and zoning permitting.
Indeed, if there is an analogous situation in Act 250 review, it is
shown by In re Ross, 151 Vt. 54, 557 A.2d 490 (1989), in which the
landowner submitted a general and sketchy Act 250 application solely to
protect itself against an amendment to the town plan that would set limits
on the density of development below those acceptable to the landowner.
When the original application was denied as incomplete and the town
amended its plan to reduce the allowable development density, the
landowner submitted a complete application at a higher density claiming a
vested right because of the earlier application. We upheld the
Environmental Board's denial of the application holding that no rights
vested under a proposal to develop with "inadequate specificity." Id. at
56, 557 A.2d at 491.
Here, TCA seeks a vested right to develop under the zoning ordinance
in force when it began
subdivision review, based only on a general statement that it wanted to
have mixed retail and light industrial uses. As we noted earlier, this
lack of specificity was sufficient for subdivision review because that
step in the development process is not intended to look at proposed uses.
We do not believe it can or should be sufficient to control the regulatory
process when it does reach the stage of evaluating the uses proposed by
Finally, TCA argues that it should have a vested right created by the
subdivision permit because it invested millions of dollars in the
infrastructure required by the subdivision and in professional services.
We expressly adopted the "minority rule" in Smith to create a bright line,
allowing identification of when rights vest without having to consider the
extent to which the landowner has made investments and taken actions in
reliance on the permit. See Smith, 140 Vt. at 181-82, 436 A.2d at 761.
For this reason, we find irrelevant to our decision the extent to which TCA
has invested in its subdivision relying on its right to develop its lots
for retail uses. Even if we were to consider such evidence, we do not
believe we have a sufficient showing of it here. TCA has offered evidence
of its expenses, but no evidence of the profits that it has made from the
existing developed lots or a comparison of its ability to earn profits if
the remaining lots are developed with industrial uses.
In the absence of specific legislative direction, our vested rights
principles must be based on a balance of the competing interests. The
landowner's interests are not so strong that they mandate a vesting rule
allowing a subdivision application or permit to vest rights with respect to
a separate zoning permit. On the other hand, we find interests of the
municipality and its citizens weigh heavily against such a vesting rule.
TCA's subdivision application began in 1984, the year in which its
principal made the statement about intended uses in the subdivision. It
applied for the zoning permit at issue here in 1998, some fourteen years
later. At that time, less than half of the subdivided lots had been
developed. Its legal theory would give it the right to develop the
remainder of those lots at any time in the future, but under 1984 zoning
rules suited to the Town's land-use goals and realities at that time. To
adopt TCA's vested rights theory would strip the Town of the ability to
modify its land-use policies in response to population growth and
We agree with the analysis of the California Supreme Court in Avco
Community Developers, Inc. v. South Coast Reg'l Comm'n, 553 P.2d 546, 554
If we were to accept the premise that the construction of
subdivision improvements or the zoning of the land for a planned
community are sufficient to afford a developer a vested right to
construct buildings on the land in accordance with the laws in
effect at the time the improvements are made or the zoning
enacted, there could be serious impairment of the government's
right to control land use policy. . . . Thus tracts or lots in
tracts which had been subdivided decades ago . . . could be free
of all zoning laws enacted subsequent to the time of the
We believe that the situation created by the rule TCA seeks would be
unworkable. As Vermont has gone from a rural state, with large tracts of
land devoted to farming, forestry or like uses, to a more urbanized state,
much of its land has been subdivided to accommodate residential, commercial
and industrial development. Under TCA's theory, every subdivision is
subject only to the zoning laws applicable when the subdivision was
sought, and not to any subsequent amendment or modification of those laws.
The result would be an uncontrollable patchwork of land use rules that
would defy rational policy-making or implementation.
Thus, even in the absence of Smith's bright-line rule, the balance of
competing policy interests would be against giving holders of subdivision
permits vested rights to zoning permits under the zoning ordinance
applicable when the subdivision permit was sought or obtained.
FOR THE COURT:
FN1. TCA also appealed the ruling with respect to lots 27 and 29, but
settled their dispute over these lots with the Town and obtained a remand
for entry of an order implementing the settlement in the environmental
FN2. By a 1995 amendment to the Vermont Planning and Development Act, a
municipality may merge its zoning and planning functions into one
development review board. See 24 V.S.A. § 4461. In the text, we have
described the functions of the more familiar planning commissions and
zoning boards of adjustment, which continue to exist in most communities.
FN3. There is greater overlap in planned residential and planned unit
developments, in which the planning commission may vary requirements of
the zoning ordinance. See 24 V.S.A. §§ 4407(3), (12). We do not consider
the application of vested rights in such developments.
FN4. TCA has framed its argument claiming the issuance of, and not the
application for, the subdivision permit creates the vested rights. Under
Smith, the point of vesting for purposes of the subdivision permit is the
date of application. We see no reason why a different point in the process
would be adopted for purposes of the zoning permit.