IN RE TAFT CORNERS ASSOC., INC.

• Decision Date: 11 August 2000
• Docket Number: No. 99-431.,99-431.
• Parties: In re Appeal of TAFT CORNERS ASSOCIATES, INC.
• Court: Vermont Supreme Court

758 A.2d 804

In re Appeal of TAFT CORNERS ASSOCIATES, INC.

No. 99-431.

Supreme Court of Vermont.

August 11, 2000.

Stewart H. McConaughy and Norman Williams of Gravel and Shea, Burlington, for Appellant.

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 pre1997 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 it.

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 26.¹ 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. 167, 169, 666 A.2d 1178, 1179 (1995). The municipality can authorize its planning commission to "approve, modify or disapprove all plats of land."² 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. § 4401(b)(1).

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.³ 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 regulations.

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 Commission, 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...