Insight into “deemed approval” as it pertains to delays in zoning permits.

Landowners are frequently frustrated by the length of time it takes to secure a zoning permit. Indeed, months can often pass between the submission of an application and the receipt of a municipal zoning permit – in addition to the time that might be required to separately secure an Act 250 land use permit. Anxious for a decision, landowners typically ask if anything can be done to expedite the process, or if they have any recourse for the length of delay. The statutory remedy known as “deemed approval” is a common topic of discussion.

Under 24 V.S.A. § 4464(b)(1), a municipal zoning board’s failure to timely act on a pending permit application results in the application being approved as a matter of law – or “deemed approved.” The act states that the zoning board or development review board “shall adjourn the hearing and issue a decision within 45 days after the adjournment of the hearing, and failure of the panel to issue a decision within this period shall be deemed approval and shall be effective on the 46th day.”24 V.S.A.§ 4464(b)(1).Unfortunately, the remedy of deemed approval is not commonly granted.

The remedy is not applied in a “wooden fashion” in the absence of a decision on the 46th day, but is instead reserved for cases where it “clearly implements the statutory purpose.” In re McEwing Servs., LLC, 2004 VT 53 ¶ 21. The purpose of deemed approval is “to remedy indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate or negligent inaction by public officials.” In re Fish, 150 Vt. 462, 464 (1988). The remedy is applied conservatively because its improper application “can operate to grant permits wholly at odds with the zoning ordinance.” In re Newton Enterprises, 167 Vt. 459, 465 (1998). It has the potential to “turn a negative decision into a positive one with no finding that the landowner meets the requirements of the zoning ordinance.” Id. at 465–66.

To that end, the Vermont Supreme Court has consistently held that technical defects in the decision-making process do not warrant the application of deemed approval. In In re Newton Enterprises, for example, the Court rejected deemed approval even though the zoning board’s decision was defective and rendered by an insufficient number of participants.167 Vt. 459, 465–66 (1998); see also In re Losier Variance Application, 189 Vt. 649 (2011) (mem.) (denying deemed approval notwithstanding an improperly constituted zoning board). In In re Fish, the Court similarly rejected deemed approval despite the Town providing defective notice of the hearing during which the zoning board issued its decision.150 Vt. at 465.

The Court has even refused to deem an application approved where the Town fails to provide notice of the decision, so long as the decision was actually made within the statutory period. In Leo’s Motors, Inc. v. Town of Manchester, for example, the Court refused to apply the remedy after the Town inadvertently failed to notify the applicant either orally or in writing.158 Vt. 561, 564–65 (1992). There, the municipal board timely decided to deny the application but, due to due to the inattention of a Town clerk, failed to mail the applicants the written decision until after the period had expired. Id. at 564.The Court confirmed that “negligence or inadvertence of a municipal employee unrelated to the timeliness of the decisional process” does not result in deemed approval. Id.; see also In re Griffin, 2006 VT 75, ¶¶ 13-15 (refusing to apply deemed approval absent any policy of delay when notice of a timely decision is provided after the period expires); In re Morrill House LLC, 2011 VT 117, ¶¶ 9–10 (same).

While a zoning board’s failure to timely act on a permit application may result in the application being deemed approved, the law is clear that timely rendered, but technically deficient or insufficiently noticed decision will not result in deemed approval. Before undertaking an appeal to the Environmental Court on the grounds that a pending application should be deemed approved, landowners must thoughtfully consider the merit to such a claim and consider whether other options are available. To prevail, the landowner has the burden of proving that indecision and protracted deliberations delayed a timely decision. See, e.g., In re McEwing, 2004 VT 53 ¶¶ 14-16 (finding deemed approval in light of successive non-public deliberative sessions after the close of the public hearing). It is a heavy burden.