Nonconformities & Vested Rights

1. Nonconformities &Vested Rights T’aint Fair!

2. Nonconformities • Non-Conformities • Certain uses of land are allowed to continue, as NONCONFORMING USES, even though that use is no longer permitted. • The most common causes of non-conformities are rezonings and comp plan changes.

3. A existing non-conforming use must have been a conforming use at one time • Then when the rules are changed, a determination is made that it would be “unfair” to terminate the existing use; • Forever, or • For a defined amortization period, or • Until the property changes hands, or • As long as the structure lasts.

4. Billboards . . . • Many billboards have been made non-conforming uses by local government prohibition of billboards in most if not all zoning districts. • Courts have upheld such prohibitions if; • The was a valid public purpose and • If there was a reasonable amortization period. • In 2002, the Florida Legislature passed and the Governor signed into law a prohibition against the amortization of billboards, thereby effectively stopping local government prohibition of billboards.

5. A nonconforming use • A retail store in a residentially zoned neighborhood.

6. Most jurisdictions place many restrictions on non-conforming uses: • The use cannot be expanded – • what about the “café” in front of Wilbert’s? • Improvements cannot be made – • which is why Wilbert's parking lot is not paved; • But, the structure can be maintained • What’s the difference between improvement and maintenance? • If the structure is damaged beyond a certain degree – commonly between 40 and 60% – it cannot be rebuilt. • There is some very interesting “creative accounting” in regard to the extent of damage to non-conforming structures.

7. Would you believe that this is 50% damaged?

8. Jones v Los Angeles, 295 P.14, 19 (Cal.1930) • California Supreme Court laid out a line of reasoning when Los Angeles prohibited sanatoriums in residential areas . . . • “The exercise of power in this instance is, on the whole, far more drastic than in those in which a mere right to engage in a particular business is restricted. • We are asked to uphold a municipal ordinance which destroys valuable businesses, built up over a period of years. . .”

9. “The approval of such a doctrine would be a blow to rights in private property such as this court has never before witnessed. • Only a paramount and compelling public necessity could sanction so extraordinary an interference with useful business.”

10. Los Angeles v. Gage,274 P.2d 34 (Cal appl 1954) • Jones and Gage are almost the same issue, but with different outcomes. • Another difference between Jones and Gage is amortization; • With Jones, Los Angeles required immediate cessation of the activity • With Gage, Los Angeles allowed 5 years for compliance.

11. Gage had operated the plumbing business on Cochran Avenue for 16 years.

12. Cochran Avenue

14. Gage had operated the plumbing business on Cochran Avenue for 16 years • Gage would suffer economic losses – • Loss of revenue of $125k - $350k a year • Relocation cost, maybe $5,000 or so • Trial court held for Gage on the basis of hardship.

15. Three significant points . . . • Gage was given 5 years to relocate the business, • While Gage’s damages would be great if the business was lost, the cost of relocation was relatively modest, and

16. Los Angeles was able to identify the “paramount and compelling public necessit[ies]” that call for this regulation, [Jones] “[T]he noise and disturbance caused by the loading and unloading of supplies, trucking, and the coming and going of workmen in connection with the operation of a plumbing business with an open storage yard . . ..”

17. A reaction . . .

18. Vested Rights • Non-conforming uses deals with properties in current uses that are no longer allowed, i.e., developed. • Vested rights deal with properties that are not in a current use that is no longer allowed, i.e., undeveloped. • Both doctrines deal with issues of equity and fundamental fairness.

19. Vested rights exist where a property owner/developer has proceed sufficiently far with a project. • Of course, the major issue is “how far is sufficiently far?” • Many of the cases involve whether the owner knew (or should have known) of the restrictions – • “Red Flag” and • “zoning in progress.” • This is why zoning matters are advertised.

20. Progress towards vesting

21. Many cases turn on whether the restrictions were for the general welfare – a legitimate state interest – or whether they were directed toward some less lofty goal. • The doctrine of vested rights has undergone a tremendous evolution. • Traditionally, beginning a project -- making substantial expenditures in reliance on a governmental approval -- was sufficient to substantiate a claim for vesting. • But, the trend has been to invoke more stringent tests.

22. Avco Community Developers v South Coast Regional Commission, 553 P.2d 546 (Cal 1976) • Question – should Avco have to comply with recently enacted legislation for its ongoing development – Laguna Nigel in Orange County? • What did they have to do? • apply to the California Coastal Commission for permits to construct buildings within the defined coastal area of California.

23. How would applying to the California Coastal Commission for permits be injurious to Avco? • They might not get the permits! • But, how are we to know that?

24. “It has long been recognized . . . that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance on a permit . . , he acquires a vested right to complete construction in accordance with the terms of that permit.” • Avco, with approval from Orange County, CA, had: • Subdivided the property; • Graded the property and installed utilities. • Avco had spent over $2 million on the project.

25. But . . . • Avco had not applied for building permits. • So, would Avco be exempt from the requirement to first receive a permit from the California Coastal Commission? • No! • No vested rights exist because the regulation does not strip this land of all value.

26. A difficulty presented to the court in Avco is that the court is being asked to rule on the application of public safety regulations in the abstract. • Avco did not put forward any injury that would or could occur. • The court was very concerned about the broader implications of this case. • Avco would have done better to have presented damages and then call for balancing of equities.

27. Kauai v. Pacific Standard Life Insurance Company,653 P.2d 766 (Haw. 1982). NOT ASSIGNED • A 60 acre oceanfront property. • After necessary zoning was granted, a civic group circulated a petition to repeal the zoning. • The matter was put to a referendum and the zoning was repealed. • During the petition/referendum process, the developer proceeded with development and applied for and received some building permits.

28. The developer had: • Spent $158,797.64 for planning & design [between the time the zoning was passed and the referendum was certified]. • Spent $286,356 on development after the referendum was certified.

29. The court found for the developer and awarded damages • Of $158,798 for good faith expenditures incurred before the referendum was certified • Did not consider the “bad faith” $286,346 expenditures incurred after certification. • The developer saw it coming and could have mitigated damages, but chose not to.

30. Vested Rights in Florida • As a general rule, in Florida, • Vesting occurs at plat or site plan approval

32. Vested Rights in Florida • As a general rule, in Florida, • Vesting occurs at plat or site plan approval • This is NOT an absolute • There is no absolute point of vesting in Florida • See Pinecrest Lakes v Shidel

33. In vested rights litigation . . . • Florida courts have been known to balance the . . . • The harm to the property owner with • The public purpose sought. • When the property retained a beneficial use, the Florida courts have been open to actions that modified the “vested” development, provided there was a clear and compelling public purpose.

34. City of Parkland and Broward Countyv. Norman Septimus, 428 So.2d 681 • Property downgraded from • 5.49 units per acre • To less than 1 unit per acre • Fourth DCA . . . • “[P]laintiffs . . . did not substantially change their position in reliance upon governmental act in question.”