In Re Times and Seasons, LLC
27 A.3d 323
Vt.2011Background
- Times and Seasons, LLC sought Act 250 approval to build a gift shop and deli on Dairy Hill Road in Royalton.
- In 2004 the District Environmental Commission and the Environmental Board denied the permit, finding failures under criteria 8, 9(B), and 10.
- Criterion 9(B) required no significant reduction of primary agricultural soils’ potential; the site had 2.8 acres of such soils and 1.9 acres would be significantly reduced.
- The Vermont Supreme Court, in 2008, affirmed in part and reversed in part, concluding the project failed 9(B) and 8, while reversing the Board on criterion 10.
- During litigation, 2005 amendments changed the definition of primary agricultural soils; in 2008 applicant sought reconsideration under § 6087(c).
- District Commission applied the amended definition on reconsideration and again found the project failed criterion 9(B); applicant argued the amended law should apply on reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amended 10 V.S.A. § 6001(15) applies on reconsideration | Times and Seasons contends amended definition governs reconsideration. | State/Board argues vested rights attach; law in effect at initial filing governs. | No; amended definition cannot be used on reconsideration. |
| Whether vested rights permit applying new law to reconsideration | Applicant has a vested right to the favorable change in law. | Reconsideration is a continuation of the original application and cannot rely on new law. | Applicant may not rely on changed law on reconsideration. |
| Proper scope of § 6087(c) reconsideration | Reconsideration should cure deficiencies under amended law. | Reconsideration targets only deficiencies identified in the denial and cannot incorporate new definitions. | Reconsideration must address deficiencies; cannot exploit new law. |
| What law governs initial versus reconsideration applications for vesting purposes | Law at time of reconsideration should govern. | Law at time of initial complete application governs for vested rights. | Governing law is that at the time of the initial application. |
Key Cases Cited
- In re Paynter 2-Lot Subdivision, 2010 VT 28 (Vt. 2010) (vested rights doctrine; preserves laws at filing)
- Smith v. Winhall Planning Comm'n, 140 Vt. 178 (1981) (laws in effect at time of application govern)
- Molgano, 163 Vt. 25 (1994) (vested rights in zoning laws at application time)
- Taft Corners Assocs., 160 Vt. 583 (1993) (vested rights in town plan at application time)
- In re Ross, 151 Vt. 54 (1989) (timing of amendments relative to permits)
- In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42A (Vt. 2010) (limits on relying on post-application changes)
- Smith v. Winhall Planning Comm'n, 140 Vt. 178 (1981) (see above (duplicate entry kept for completeness))