Agenda - Planning Commission - 10/02/2008

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i i I I I I I I ! I I I 1 i I ! i I 1 j I I i I ( --') ) ......--... September 25,20081 Volume 21 No. 18 /"\ cupancy (" CO") as required by the zoning ordinance in effect at the time (J of the application (the "Ordinance"). Significantly, the Ordinance required Terra Nova to submit both an application for an ILP and an application for a CO, while under the pre- 2002 Ordinance, Terra Nova would not have been required to submit either the ILP application or the CO application. Terra Nova appealed the BZA's denial. It argued that because How- ard gave Terra Nova the pre-2002 Ordinance, the BZA should have been equitably estopped (i.e., prohibited because it-the BZA-had not acted fairly) from imposing the requirement that Terra Nova file an application for a CO. Terra Nova also argued that it was denied due process of law because its failure to file an application for a CO was not at issue before or during the BZA hearing. The trial court affirmed the BZA's . denial of Terra Nova's, ILP application. Terra Nova appealed. DECISION: M6rmed. The court concluded that the BZA's denial of Terra Nova's ILP appli- cation was proper. In reaching its conclusion, the court held that the BZA was not eq- uitably estopped from imposing the Ordinance requirement that Terra Nova file an application for a CO as part of its ILP application. The court explained that equitable estoppel applied "if one party, through its representations or course of conduct, knowingly misleads or induces an- other party to believe and act upon his or her conduct in good faith and without knowledge of the facts." Theparty claiming equitable estoppel, the court said, had to show: (1) lack of knowledge and lack of means of knowledge as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) "action based thereon of such a character as to change his position prejudicially." The' court also noted that: where each party had equal knowledge, or means of knowledge, of all the facts, there was no estoppel; and generally, equitable estoppel was not applied against governmental authorities. The court concluded that Terra Nova failed to carry its burden nec- essary to obtain equitable estoppel. Specifically, the court found Terra Nova: (1) as a property owner was charged with knowledge of the zon- ing ordinance that affected its property; (2) had the means of determin- ing that the pre-2002 Ordinance had been amended to require an ap- . plication for a CO; (3) could not show that it relied on the pre-2002 Ordinance because if it had it would not have filed an ILP application in the first place; and (4) had access to the Ordinance. The court also noted that the BZA was a governmental authority. @ 2008 Thomson ReuterslWest 7 79