25. If a lot was merged under the old existing small lot statute, does the new law "un-merge" those lots (i.e., is it retroactive)?
     Answer

26. What happens if a landowner tries to develop a lot that the municipality considered to be merged?
     Answer

27. How should a municipality ratify the small lots provision? Does this have to be done prior to September 1, 2005?
     Answer

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No, the law is not retroactive. Lots that were merged under the previous law will need to undergo the subdivision review process to subdivide the parcels. 24 V.S.A. § 4412(2).

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Municipalities may be forced to take enforcement action to enjoin the development of lots that have been treated as merged under the existing small lot provisions of their bylaws. If this becomes an issue in your municipality, be sure to have your municipal attorney review the matter prior to taking any enforcement action.

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The new default rule is that merger is no longer automatic. However, existing bylaw provisions that require automatic merger and were adopted under the prior enabling statute may be challenged on the grounds that bylaws that are inconsistent with state law were superceded by state law on September 1, 2005. 24 V.S.A. §§ 4412(2), 4480, 4481. If municipalities wish to continue to require merger, we recommend ratifying the small lot provision as part of these revisions since many municipalities will be revising their bylaws anyway and to help avoid legal challenges to the bylaws. This process must be done according to the amendment process prescribed in 24 V.S.A. § 4442, as there is no way to simply ratify an existing bylaw provision.

Municipalities should also be aware that they can adopt different merger requirements for different districts. For example, a bylaw could require merger of small lots along a shoreline where there is an environmental interest in reducing the amount of development adjacent to a natural resource. The same bylaw could be less restrictive of small lots, and permit their development in a village area to promote the use of available land in the village. 24 V.S.A. §§ 4414 (2)(B), (C).

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