Editor’s note: This piece by Jeffrey Thomson first appeared on the SCOV Law Blog.
In re Times and Seasons, 2011 VT 76
The sensible side of me takes great consolation in Vermont’s Act 250 and its role as a barrier (often the only barrier) to some of the more baroque development proposals in many of Vermont’s zoning-free towns. Yet, the part of me that relishes the “schemes of folly” has always wanted to go and see the Joseph Smith Theme Park & Gift Shop! At least, the gift shop portion that is—welcoming me to the commercially friendly park of Latter Day Saints!
If you are still confused by my ironic enthusiasm, consider this: the Joseph Smith Memorial—the birth place of the founder of Mormonism—is located on a little traveled and less improved road on the far-side of a remote mountain at the outskirts of South Royalton. Marked only by few innocuous direction signs. The Memorial is a tasteful, hidden treasure situated on a hilltop that inspires awe, wonder, and bit of reverence that no doubt inspired the young Smith during his formative years. If sticking an enormous South-of-the-Border on this pristine site still sounds like a perfectly sensible idea to you, then I apologize for my sarcasm.
The Time and Seasons deli and gift shop is an idea that has been around since my Vermont Law School days. Having lived in Royalton and hiked the sublime lands around the Joseph Smith Memorial, I believe that if Act 250 is designed to prevent foolish land use ideas, then this is perfect test case. This is why during my time at VLS, my friends and I joked about the “Joseph Smith Memorial Theme Park” venture as the embodiment of what was wrong with unregulated development.
In all fairness, though, Time and Seasons, LLC is a serious venture that has been fighting hard to get its Act 250 permit despite denials from the District Commission, the Environmental Board, the Natural Resources Board, and Environmental Court.
The main sticking point in litigation for the Time and Seasons’ plan has been its reduction of “primary agricultural soils.” At the time of its initial Act 250 application, criterion 9(B) of the act required projects to “not significantly reduce the agricultural potential of the primary agricultural soils.” In the alternative, if a significant reduction existed, then Applicant needed to prove through four sub-criteria that this use was essentially unavoidable, the only reasonable use for the land, a minimum impact, and would not impact adjoining agriculture or forest lands. The old Environmental Board found that there were 2.8 acres of primary agricultural soils on the 7.3-acre project site and that the project would significantly reduce the agricultural potential of 1.9 acres of these primary agricultural soils. Finding this loss of two-thirds of the primary agricultural soils on the site to be a significant reduction under the statute, the Board concluded that applicant failed to carry its burden to comply with Act 250.
Applicants originally appealed this decision to the SCOV in 2008. The SCOV affirmed the Board’s determination and concluded that the project did not meet the criteria for the reduction of primary agricultural soils.
However, during the course of that litigation, a statutory amendment to Act 250 changed the definition of “primary agricultural soils” in such a way that could arguably be beneficial to the Time and Seasons’ application. In 2008, Time and Seasons filed a reconsideration request with the District Commission pursuant to 10 V.S.A. § 6087(c), which allows an applicant to apply for reconsideration within six months of a final Act 250 permit application denial, if the applicant certifies that the deficiencies causing the denial have been corrected. The District Commission applied the amended definition and found that applicant’s project still failed to satisfy criterion 9(B) and denied the application. On appeal to the Environmental Court, the court found that the applicant could not rely on the amended definition of “primary agriculture soils,” and again denied the application.
In today’s case, the SCOV tackles the issue of whether or not Time and Seasons could rely on the amended definition of “primary agricultural soils” on appeal. The issue takes us into an interesting area of law, the vested rights doctrine, in which the SCOV has adopted the minority view. In Vermont, an applicant gains a vested right in the governing laws and regulations in existence when a complete permit application is filed. Therefore, Time and Seasons has a vested right to the laws in effect at the time of its original Act 250 permit application for the deli and gift shop project.
The SCOV explains that it adopted its interpretation on which regulation applies—which most states do not apply—because it was easier to administer, was likely to avoid protracted litigation and maneuvering, and gave the parties a degree of certainty.
The SCOV finds that the submission of an Act 250 reconsideration application is not a “separate vesting event,” but simply a continuation of the initial application process. The SCOV sheds further light of the vesting rights doctrine, stating that “an applicant on reconsideration may not simultaneously take advantage of the laws in effect at the time of the initial application and those in effect at the time of the reconsideration application—it is not a two-way street.” To allow Applicant or anyone else to take advantage of new regulations by filing a motion for reconsideration would violate the spirit and principles behind these purposes.
In the end, Time and Seasons could not even prove that a favorable change in the law brought their plan into compliance with Act 250. They still had the burden of showing that changes to the project itself corrected the deficiencies within the initial plan. However, this does not prevent them from submitting a new Act 250 application and relying on the new statutory language. I have a feeling that we haven’t heard the last from The Joseph Smith Memorial Theme Park! The line for tickets starts here.