The issue of which bylaws to apply to a zoning application during the bylaw amendment process can be a confusing topic as evidenced by the controlling law:
If a public notice for a first public hearing … is issued under this chapter by the local legislative body with respect to the adoption or amendment of a bylaw … the administrative officer, for a period of 150 days following that notice, shall review any new application filed after the date of the notice under the proposed bylaw or amendment and applicable existing bylaws … If the new bylaw or amendment has not been adopted by the conclusion of the 150-day period or if the proposed bylaw or amendment is rejected, the permit shall be reviewed under existing bylaws and ordinances. An application that has been denied under a proposed bylaw or amendment that has been rejected or that has not been adopted within the 150-day period shall be reviewed again, at no cost, under the existing bylaws and ordinances, upon request of the applicant. 24 V.S.A. § 4449(d).
Generally, once a selectboard has issued notice of its first public hearing on the proposed bylaw amendment, the administrative officer (ZA) must then apply the proposed bylaws to any application for a period of 150 days.
Generally, once a selectboard has issued notice of its first public hearing on the proposed bylaw amendment, the administrative officer (ZA) must then apply the proposed bylaws to any application for a period of 150 days. If an application received during those 150 days can be approved under the proposed bylaw, then the ZA issues the permit conditioned upon the passage of the proposed bylaw. If the amendment is not adopted by the end of those 150 days, or as soon as a proposed bylaw amendment is rejected, the ZA must review the application again under the existing bylaw at no cost to the applicant. Essentially, this ensures that no application for development review is approved unless there are bylaws in full force and effect that support it. Shatney Home Occupation Denial, Docket No. 43-4-16 Vtec.
A proposed bylaw, however, will not take effect until 21 days after its adoption. 24 V.S.A. § 4442(c)(1). What happens then if the 150 days have elapsed but the bylaw is not yet effective because the 21 days have yet to pass?
In such a case, even though the proposal has been adopted, the ZA would need to apply the pre-existing bylaws because the newly adopted bylaws won’t take effect until the 21st day after adoption. If the application cannot be approved under the pre-existing bylaws, the ZA must – once the 21 days pass – review the application again under the newly adopted bylaw at no cost to the applicant. If this is the first stage of a multi-stage review, it may be better for the applicant to wait to submit their application, as the later stages will be reviewed under the newly adopted bylaws.
This confusing scenario can be avoided altogether by adopting or rejecting proposed bylaw amendments at least 21 days before the end of the 150-day period – or, 129 days from the posting of notice for the initial selectboard hearing on the proposed bylaw amendment. If you do end up in this grey zone, though, the ZA will need to review applications under the pre-existing bylaws, at least until 21 days elapse after adoption.