deemed approval doctrine in Vermont

2009It has “cautioned [trial courts] against using the deemed approval remedy beyond its purpose ‘to remedy [zoning board] indecision and protracted deliberations.’” In re Newton Enters., 167 Vt. 459, 465 (1998) (quoting In re Fish, 150 Vt. 462, 464 (1988)) (second alteration in original). 6 Acknowledging that the deemed approval doctrine has the potential “to transform a ‘negative decision [of the board] into a positive one,’” the Court advises trial courts to reserve the remedy for cases where it “clearly implements the statutory purpose.” McEwing, 2004 VT 53 ¶ 21 (quoting Newton, 167 Vt. at 465

2009It has “cautioned [trial courts] against using the deemed approval remedy beyond its purpose ‘to remedy [zoning board] indecision and protracted deliberations.’” In re Newton Enters., 167 Vt. 459, 465 (1998) (quoting In re Fish, 150 Vt. 462, 464 (1988)) (second alteration in original). 6 Acknowledging that the deemed approval doctrine has the potential “to transform a ‘negative decision [of the board] into a positive one,’” the Court advises trial courts to reserve the remedy for cases where it “clearly implements the statutory purpose.” McEwing, 2004 VT 53 ¶ 21 (quoting Newton, 167 Vt. at 465

2010Trial courts are directed to take a “conservative approach” to the doctrine of deemed approval, since when applied more liberally, “the deemed approval remedy can operate to grant permits wholly at odds with the zoning ordinance.” In re McEwing Servs., LLC, 2004 VT 53 , ¶ 21 177 Vt. 38 .

2010Trial courts are directed to take a “conservative approach” to the doctrine of deemed approval, since when applied more liberally, “the deemed approval remedy can operate to grant permits wholly at odds with the zoning ordinance.” In re McEwing Servs., LLC, 2004 VT 53 , ¶ 21 177 Vt. 38 .

2010The crux of the deemed approval doctrine involves whether a decision was reached in a timely manner, not whether timely notice was provided to the applicant.3 The remedy does not apply to instances that “involve timely rendered, but technically deficient or insufficiently noticed decisions.” In re McEwing Servs., LLC, 2004 VT 53, ¶ 21 ; see also In re Trahan, 2008 VT 90, ¶ 15 , 184 Vt. 262 (refusing to extend the remedy to “technical defects in the notice provided” (quoting In re Fish, 150 Vt. at 465 )).

2009It has “cautioned [trial courts] against using the deemed approval remedy beyond its purpose ‘to remedy [zoning board] indecision and protracted deliberations.’” In re Newton Enters., 167 Vt. 459, 465 (1998) (quoting In re Fish, 150 Vt. 462, 464 (1988)) (second alteration in original). 6 Acknowledging that the deemed approval doctrine has the potential “to transform a ‘negative decision [of the board] into a positive one,’” the Court advises trial courts to reserve the remedy for cases where it “clearly implements the statutory purpose.” McEwing, 2004 VT 53 ¶ 21 (quoting Newton, 167 Vt. at 465

2019See V.R.E.C.P. 5(f) (limiting this Court’s jurisdiction to those issues contained within the Statement of Questions); In re Garen, 174 Vt. 151, 156 (2002).

2010See Kapusta v. Dep’t of Health/Risk Mgmt, 2009 VT 81 , ¶ 15, 186 Vt. 276 (“[W]e presume that the Legislature is familiar with our interpretation of statutes and does not overrule this interpretation unless it does so explicitly.”); see also Whitcomb v. Rood, 20 Vt. 49 (1847) (“[W]hen terms or modes of expression are employed in a new statute which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and, in settling the construction of such new statute, regard should be had t

2010See Kapusta v. Dep’t of Health/Risk Mgmt, 2009 VT 81 , ¶ 15, 186 Vt. 276 (“[W]e presume that the Legislature is familiar with our interpretation of statutes and does not overrule this interpretation unless it does so explicitly.”); see also Whitcomb v. Rood, 20 Vt. 49 (1847) (“[W]hen terms or modes of expression are employed in a new statute which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and, in settling the construction of such new statute, regard should be had t

2010The crux of the deemed approval doctrine involves whether a decision was reached in a timely manner, not whether timely notice was provided to the applicant.3 The remedy does not apply to instances that “involve timely rendered, but technically deficient or insufficiently noticed decisions.” In re McEwing Servs., LLC, 2004 VT 53, ¶ 21 ; see also In re Trahan, 2008 VT 90, ¶ 15 , 184 Vt. 262 (refusing to extend the remedy to “technical defects in the notice provided” (quoting In re Fish, 150 Vt. at 465 )).

2010The crux of the deemed approval doctrine involves whether a decision was reached in a timely manner, not whether timely notice was provided to the applicant.3 The remedy does not apply to instances that “involve timely rendered, but technically deficient or insufficiently noticed decisions.” In re McEwing Servs., LLC, 2004 VT 53, ¶ 21 ; see also In re Trahan, 2008 VT 90, ¶ 15 , 184 Vt. 262 (refusing to extend the remedy to “technical defects in the notice provided” (quoting In re Fish, 150 Vt. at 465 )).

2010See Kapusta v. Dep’t of Health/Risk Mgmt, 2009 VT 81 , ¶ 15, 186 Vt. 276 (“[W]e presume that the Legislature is familiar with our interpretation of statutes and does not overrule this interpretation unless it does so explicitly.”); see also Whitcomb v. Rood, 20 Vt. 49 (1847) (“[W]hen terms or modes of expression are employed in a new statute which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and, in settling the construction of such new statute, regard should be had t

2009In that context, the Supreme Court has held that “a ZBA considering a conditional use application normally will be determined to have acted within the statutory time period so long as the ‘decision is finally made before the expiration of the [sixty] day period, regardless of when, or if, the decision is reduced to writing or made in writing.’” In re Griffin, 2006 VT 75, ¶ 15 , 180 Vt. 589 (emphasis added) (quoting Leo’s Motors, Inc. v. Town of Manchester, 158 Vt. 561, 565 (1992)).