Published
Phasing a subdivision, and the clause that voids your vested rights.
You can sell lots before the improvements are built — conditionally
Anyone dividing corridor acreage runs into the same cash-flow problem. The improvements have to be built, they are expensive, and the money to build them is in the lots that cannot be sold until they are built. Fremont County's code provides a way out of that circle, and it is worth understanding before a scheme is designed around either assumption.
The code offers two routes, and the second is the useful one.
- Install all required improvements before a final plat is recorded or the project is offered for lease or sale, leased, sold, or occupied.
- Or record final plats in phases, and offer phases for lease, sale or occupancy before all improvements are installed — under an improvement agreement.
The second route is a genuine permission, not a loophole. But it comes with conditions, and one of them can undo the whole thing.
“Applicants may elect to record final plats of the Application project in phases and/or offer phases of the application for lease, sale, or occupancy before all required improvements are installed. Phasing shall be permitted pursuant to an improvement agreement…”
— Fremont County Development Code, 2011 Edition (Ordinance 2011-04), section 8.07.020, Time of Installation/Improvement Agreements. Consolidated through Ordinance 2026-03. Retrieved 1 September 2026
What counts as a required improvement
The definition is broader than most people assume. A required improvement is any improvement required for compliance with any absolute performance standard of the ordinance, and the code lists examples.
| Category | What it takes in |
|---|---|
| Erosion and runoff | Any runoff and erosion control measures, including plantings, required in an approved control plan |
| Open space | Any open space or recreational area or facilities required of a large scale application |
| Mitigation | Landscaped buffers and any other improvements required to mitigate a nuisance |
| Utilities | Water, sewer and other utilities, including any extension of lines required to serve the application |
| Parking | Off-street parking and loading areas |
| Roads | Roads, including bridges, culverts, and street identification and traffic control signs |
| Conditions | Any conditions of approval required by the Administrator, Commission, or Board |
Two of those are commonly underestimated. Plantings are improvements, which means landscaping is inside the guarantee rather than a finishing touch outside it. And street signs are improvements — a small cost, but one that has to be identified and guaranteed like everything else.
The agreement has to do eight things
Phasing is permitted only under an improvement agreement satisfying a specific list. The eight requirements are worth reading as a group, because together they describe a document that is considerably more than a promise to finish.
- Incorporate a conceptual site plan of the entire application, plus a detailed site plan and construction drawings of the initial phase or phases.
- Identify all required improvements in the initial phases and establish their estimated cost.
- Set a schedule for completing those improvements, and an anticipated schedule for future phases.
- Guarantee completion, repair, and one year's maintenance of all required improvements in the initial phases, and provide a process for guaranteeing future phases.
- Provide a process by which the County may complete required improvements using the guarantee if necessary.
- Provide a process by which either party may request re-negotiation.
- Provide a process by which the agreement may be transferred, with county approval, to the applicant's successors.
- Provide that the agreement and any vested rights it confers are void in the circumstances described below.
Item four is the one that changes a budget. The guarantee is not merely for completion — it covers completion, repair, and one year's maintenance. A guarantee sized only to finish the work is undersized.
The clause that can void your vested rights
This is the provision that deserves to be read twice, because its consequence is severe and its trigger is ordinary.
The agreement must provide that it, and any vested rights it confers, shall be void if the County is required to call a guarantee to complete required improvements, or if the anticipated schedule is not met or re-negotiated.
Falling behind schedule is not, by itself, a mere delay. Left alone, it voids the agreement and the vested rights with it. There is a remedy, and it has its own clock:
- The applicant has the right to re-negotiate the anticipated schedule without losing vested rights.
- That is conditional on negotiations being initiated by the applicant.
- And on their being initiated within 90 days after failure to initiate or complete a phase as scheduled.
Ninety days, and the applicant has to start it. Waiting for the County to raise the problem is the way this goes wrong, because the obligation to open the conversation sits on the other side.
How phases are defined, and how loose a schedule may be
The code is more flexible about timing than the voiding clause suggests, provided the flexibility is written in at the start.
An initial phase is any phase anticipated to begin within 18 months. That definition matters because the heavier requirements — detailed site plans, construction drawings, established costs, a guarantee — attach to initial phases. Work anticipated beyond 18 months is handled at a conceptual level for now.
And the anticipated schedule may set times for the initiation or completion of a phase in terms of reasonable ranges of no more than 12 months. A schedule does not have to name a date; it can name a twelve-month window. Given that missing the schedule is what voids the agreement, expressing later phases as ranges rather than dates is straightforwardly prudent.
What to do with this on a corridor subdivision
- Decide early whether to build everything first or to phase, because the two produce different documents and different cash requirements.
- Build the improvement list from the code's own categories, and include plantings and street signs rather than treating them as incidentals.
- Size the guarantee for completion, repair and one year's maintenance, not for construction alone.
- Define initial phases deliberately. Anything anticipated within 18 months pulls the full detail requirement toward it.
- Express later phases as twelve-month ranges rather than fixed dates, since the code expressly permits it and a missed date is not a harmless slip.
- Diary a 90-day trigger against every scheduled phase start, and treat it as the applicant's own obligation to open re-negotiation.
- Check the transfer process before selling the project on, because transfer requires county approval and a buyer will want to know the agreement travels.
None of this is unusual for a subdivision anywhere. What is specific here is the sharpness of the voiding clause and the shortness of the cure period, both of which reward attention at the drafting stage — well before the first of the questions in what differs lot to lot along the corridor becomes a construction problem. Utilities are on the improvement list too, which is why getting power to a corridor lot belongs in the cost estimate rather than in the assumptions.
Common questions
Can I sell lots before the roads and utilities are built?
Yes, under an improvement agreement. The code allows applicants to record final plats in phases and offer phases for lease, sale or occupancy before all required improvements are installed, provided the agreement satisfies eight specific requirements.
What counts as a required improvement?
Any improvement required for compliance with an absolute performance standard. The code lists runoff and erosion measures including plantings, open space, landscaped buffers, water and sewer including line extensions, off-street parking, roads including bridges, culverts and street signs, and any conditions of approval.
What does the guarantee have to cover?
Completion, repair, and one year's maintenance of all required improvements in the initial phases. A guarantee sized only for construction is undersized, because maintenance and repair are inside it.
What is an initial phase?
Any phase anticipated to begin within 18 months. Initial phases carry the heavier requirements — detailed site plans, construction drawings, established costs and a guarantee — while later work is handled conceptually.
What happens if I fall behind schedule?
The agreement and any vested rights it confers are void if the anticipated schedule is not met or re-negotiated. Falling behind is not treated as a simple delay unless re-negotiation is initiated.
How long do I have to fix a missed schedule?
The applicant has the right to re-negotiate the anticipated schedule without losing vested rights, provided negotiations are initiated by the applicant within 90 days after failure to initiate or complete a phase as scheduled.
Does the county have to tell me I am behind?
The code places the obligation to initiate re-negotiation on the applicant. Waiting for the County to raise it is how the 90-day window gets consumed, because opening the conversation is the applicant's responsibility.
Do I have to name exact dates in the schedule?
No. The anticipated schedule may set times for the initiation or completion of a phase in terms of reasonable ranges of no more than 12 months, which is a sensible way to handle later phases.
Can the improvement agreement be sold with the project?
The agreement must provide a process by which it may be transferred, with county approval, to the applicant's successors. Transfer is contemplated but is not automatic.