Reposted from Flagpole.com

The law of land use-zoning and planning-operates obscurely in the background most of the time. However, occasionally a controversy drives a land use issue into the headlines. Selig Enterprises’ plan to put a mixed-use development on the Armstrong & Dobbs site, possibly anchored by a large Walmart, is generating lots of media coverage. That makes for a great teachable moment for a land use law teacher like me.

The concept of “vested rights” plays a significant role in the media coverage of this controversy. Opponents of a Walmart on the site would like the county commission to stop this development, possibly by changing the zoning, but apparently commissioners have said it’s too late. According to media reports, the commissioners say the renderings they’ve seen of the development apparently comport with the existing zoning, so there is nothing they can ultimately do. The county attorney has apparently told the Athens Banner-Herald that because Selig has reported spending $250,000 on site preparation, the company has acquired a vested right to build this development, despite the fact that they have not actually received approval to build.

“Vested rights” is a normally obscure legal doctrine based in underlying notions of fairness and due process. This doctrine reflects a tendency to protect people who have acted in reliance on the law as it currently exists, and to protect against retroactive legislation. However, a property owner’s right to develop land is not absolute, and is always balanced against potential harm to the community.

In many states, vested rights attach only when a building permit has been issued. Georgia has a more permissive-and sometimes more confusing-version of the doctrine. In the 1981 case of Barker v. Forsyth County, the Georgia Supreme Court adopted the rule that “Where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing zoning ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit.”

Adoption of this rule was affirmed in W.M.M. Properties v. Cobb County. However, the law is not entirely clear about what types of “assurances by zoning officials” are sufficient to meet this test. In the Barker case, it was the zoning administrator who gave the assurances. In the W.M.M. case, the property owner was approached by the chair of the county commission to buy and develop the property. However, the plaintiff in that case also obtained a “certificate of zoning” from the Cobb County Planning Commission before purchasing the property. Also, the Supreme Court has not found vested rights in cases where a permit was improperly issued.

In the current situation, we know through media reports that Selig has applied for a demolition permit, but not a building permit. If Selig has spent $250,000 in reliance on assurances from ACC zoning officials that a permit would issue, its rights to develop the property may have vested. However, simply spending money in reliance on the current zoning ordinance is not sufficient. This would put local governments in the untenable position of having their hands tied by developers who spend lots of money on site preparation, regardless of whether there was a reasonable expectation of being able to develop. Therefore, the official assurances are key to whether a right vests or not.

In order to determine whether Selig’s rights have truly vested in this situation, we need answers to the following questions:

1.) Is it accurate to say that Selig has made substantial expenditures? Are we willing to rely on Selig’s reports of what they have spent?

2.) Have they made those expenditures in reliance on official assurances?

3.) If assurances were made, were they validly made by officials with authority to make such assurances, and made on the basis of sufficient information to determine whether Selig’s plan is, in fact, eligible for a building permit?

If all those conditions have, in fact, been met, then it would be appropriate to consider Selig’s rights to be vested. If not, however, there may yet be a chance to find a solution for the site that is both more palatable to the community and sufficiently respectful of Selig’s development rights.

For those who want to learn more about this area of law, there is an excellent summary of vested rights, non-conforming uses and grandfathering by attorney Peter R. Olsen available on this website: www.ga-lawyers.pro/Zoning/Vested-Rights-Nonconforming-Uses-and-Grandfathering.pdf.

- Jamie Baker Roskie

Jamie Baker Roskie is the managing attorney of the University of Georgia School of Law’s Land Use Clinic.

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