Agenda - Planning Commission - 11/03/2016

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Zoning Bulletin September 25, 2016 1 Volume 10 1 Issue 18 tive decisions.As a general rule, said the court, "a party may not challenge a legislative enactment simply because that enactment particularly or dispropor- tionately affects that party."A three-factor test determines whether an agency action is legislative rather than adjudicative: "(1)whether the inquiry is of a generalized nature,rather than having"a specific, individualized focus"; (2)whether the inquiry"focuses on resolving some sort of policy-type question and not merely resolution of factual disputes"; and (3) whether the result is of"prospective applicability and future effect." Applying those three factors here,the court found that the Town's adoption of the UPD was a legislative enactment. The court found that: (1) the UPD af- fected the entire community of the Town "by generally detailing how the ¢ Town's land may be developed;" it did not pertain specifically to Gould's property; (2) the adoption of the UPD was not concerned with determining j underlying facts,but rather"was a process for developing policy involving the judgment and participation of government bodies and the general public;"and (3) the adoption of the UPD affected future land use in Town, not past land use. I I Because the Town's adoption of the UPD was a legislative enactment, the court concluded that Gould could not assert a constitutionally protected prop- erty interest in the Town's strict compliance with the state statute concerning the adoption of zoning ordinances (24 V.S.A. ch. 117). (The court did not ad- dress Gould's argument that the procedures used by the Town failed to meet the requirements of procedural due process.) The Supreme Court of Vermont also held that Gould's permit application, made after the UPD was adopted, could not serve to retroactively vest constitutionally protected due process property interest in the Town's 1978 Regulations.The court found that Vermont case law was"clear":"only filing a I permit application vests a right in existing regulations, and it does so only in the regulations at the time of filing."Here,because the existing regulations at the time of Gould's permit application were the UPD, the court held that i Gould's permit application could not retroactively vest a right in the 1978 I Regulations.The court concluded, noting that although Gould"may disagree with how the UPD was enacted, . . procedural due process requirements [did] not apply.Therefore,the UPD [was] the existing law, and [Gould] [had] no due process rights in the 1978 [R]egulations." See also:Appeal of Stratton Corp., 157 Vt. 436, 600 A.2d 297(1991). See also: Smith v. Winhall Planning Commission, 140 Vt. 178, 436 A.2d 760(1981). Zoning News from Around the Nation CALIFORNIA The San Francisco Board of Supervisors has reportedly passed"a measure i ©2016 Thomson Reuters 11 I