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Supreme Court Prevents New Development in Rural Area, Despite Act 250 Permit Challenge

In In re B&M Realty, LLC, 2016 VT 114 (Oct. 21, 2016), the Supreme Court denied applicant developer a permit, finding that proposed large mixed-use business park in rural area did not conform to valid regional plan, which limited development to settlement centers.

Issue: Developer planned a 115,000-square-foot, mixed-used business park to be located in an undeveloped area in Hartford. In 2005, developer successfully petitioned Hartford to rezone the relevant area. At the time, the 2003 Two Rivers-Ottauquechee (TRO) Regional Plan, then in effect, did not address Hartford, as the town only joined the TRO Regional Commission in 2004. In 2012, developer sought an Act 250 permit, when the 2007 TRO Regional Plan (which did include Hartford) was in effect. The district environmental commission denied the request, finding that the proposed development did not conform to the 2007 TRO Regional Plan. Developer appealed to the Environmental Division of the superior court. The superior court granted the Act 250 permit, finding the relevant language in the ostensibly binding 2007 TRO Regional Plan to be aspirational, too vague, or inapplicable. A cross-appeal followed.

Holding: The Supreme Court reversed the superior court, denying applicant developer’s request for an Act 250 permit. The Court held that a party obtains a vested right in existing regulations at the time a proper application is filed; the 2007 Regional Plan was the relevant one, even though development—and reliance—began in 2005, when the 2003 Plan was in effect. Applicant’s large development, which would require a new traffic signal and additional turning lanes, would have a “substantial regional impact,” triggering jurisdiction of the relevant regional (as opposed to municipal) plan. Relevant language in the 2007 TRO Regional Plan, which purported to limit major growth to settlement centers, was sufficiently clear, especially in light of its context and intent. The delegation to regional commissions of defining “substantial regional impact” (which then determines their jurisdiction) was not unlawful.

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