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Preseault v. Wheel – Case Brief Summary (Vermont)

In Preseault v. Wheel, 132 Vt. 247, 315 A.2d 244 (Vt. 1974), the permit was issued to a developer to construct family houses, but the permit was only valid for a year.

The developer did not start construction within a year because of several "legal battles" with adjoining landowners. 315 A.2d at 245.

Meanwhile, the city had changed its zoning ordinance so that the development no longer complied with the new law, and the builder was unable to renew the permit because of the change in the zoning law and the failure to commence construction. Moreover, there was no "specific process" for renewal. Id.

The developer sued for declaratory and equitable relief, alleging that he had acquired a vested right to the permit. The court agreed.

The court recognized the right of a municipality to establish a "limit to the duration of a building permit" in order to "control the use and development of land in the face of changing conditions." Id. at 247.

Indeed, the court was mindful that some developers would "do nothing," and then belatedly "commence construction distasteful to, and long proscribed by, the municipality." Id.

But, even though the builder in question had not begun construction, he had expended substantial sums for architectural, surveying, and legal fees, and the court believed that his efforts should not be rendered "worthless" by the conduct of a municipality that subsequently deemed the project "nonconforming." Id. The court explained:

Rather than sitting on his permit the plaintiff, through counsel, has spent a substantial amount of time sitting and standing in courtrooms . . ., trying to maintain the foothold he obtained during the short period of time when the City . . . approved of his development project. The first decision below in the case of In re Preseault, supra, occurred on June 8, 1971. That decision followed hearings held prior to that date. This Court remanded when that controversy reached us, and the plaintiff asserts that litigation since that remand continues. The petition to enjoin the plaintiff from building the duplexes was brought by the adjacent landowners on June 21, 1971. This Court's decision in plaintiff's favor came on July 11, 1973, when it denied motion for reargument . . . . 315 A.2d at 247.

Moreover, the court added:

We conclude that the more soundly reasoned cases from other jurisdictions support the proposition that where a valid permit is issued for a specified period, and where actual construction is delayed by litigation, involving parties who have standing to oppose construction, past that time, a permittee otherwise proceeding in good faith is entitled to reissuance of that permit, even where the zoning was meanwhile changed so that the project is nonconforming.

For this jurisdiction to employ a test under which a permittee must begin actual construction within one year and, at the same time, to not allow delay caused by litigation to serve as a modifying or exculpatory factor would produce greater inequity . . . .Id. at 247, 248.