Agenda - Planning Commission - 09/07/1999

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While a permit or approval that creates a vested right can be conditional, it is not a valid condition to require the owner to waive the vested right, consenting to submit to the new regulation or amendment, while others require that the owner specifically apply for amendment of the instrument creating the vested right, thus necessitating approval by the local planning agency or commission. In the statutes that address the question, government can terminate the vested right by paying just compensauon. While a permit or approval that creates a vested right can be conditional, it is not a valid condition to require the owner to waive the vested right. This provision is common because such a condition would effectively allow local governments to "opt out" of vesting, eve,~ where vesting is a statutory requirement, by routinely including such a condition of waiver in all development permits. Conclusion The fact that so few states have a vested rights statute would seem to indicate the controversia] nature of whether such a righ? should exist and, if so, what the scope of that right should be. This controversy was demonstrated earlier by the fact that some state courts do not apply estoppel-based vesting while others do. There are several approaches to the creation of the vested right, but the common threads in these statutes show that there are some commonly held positions regarding the balance that must be struck between the vested right to develop and the right and duty of local governmeuts to enact necessary development regulations. When safety or lives are at stake or when the development permit was issued based on false or misleading statements, the public's rights outweigh the owner's right to develop his or her property. Conversely, the government's power to regulate development does slot authorize local governments to strip owners of their vested right to develop by requiring a waiver of that right as a condiriou of development approval. Such balancing is both typical and necessary in the American system of land development regulation. Signs Draw Fines in Atlanta Suburbs A grocery store owner in Norcross, Georgia, a suburb of Aria, nra, filed a suit in federal district court claiming that the city s sign ordinance violates the First Amendment. The owner of Super Mercado Jalisco, a Hispanic food market, was fined $l 15 for violating a 1995 law that required 75 percent of the words on business signs to be in English. Since the lawsuit was filed, Norcross has refunded the money to the supermarket owner and rescinded the restrictive section of its sign ordinance. It is considering possible revisions to the ordinance. Critics claim the ordinance demonstrates an exclusionary intent toward minority businesses. They maintain that businesses like Super Mercado Jalisco are targeted for fines while neighboring businesses with signs bearing foreign words such as ~Toyota" are not. Planning directors in Norcross and cities with similar ordinances disagree. They claim the issue is not about restricting specific businesses, but ensuring public safety. These officials maintain that requiring signs to be partially in English makes it easier for police, firefighters, and rescue workers to recognize an address in an emergency. Norcross administrators are considering ordinance revisions that require business names and street addresses to be displayed in English letters (not necessarily in English words) and Arabic numbers. All other sign characters may be in any language so long as the business owner provides the city with a notarized translation ensuring that the sign does not contain obscenities. Jerome R. Cleland Home Businesses Get a Break By Kevin Duguay Peterborough, Ontario, a city of 70,000 about 60 miles northeast of Toronto, recently loosened its regulations for home-based businesses. It addressed the issue through a comprehensive public consultation and zoning bylaw amendment process. The city's zoning bylaw has recognized home-based businesses (home occupations) since 1972. In the fall of 1997, the city council approved a "refreshed" zoning regulatory approach permitting home-based businesses on an as-of-right basis for all residential dwelling types throughout all areas of the community. Home occupations are defined as an accessory use ora residential dwelling and are subject to specific regulations, the principles of which include: · The use may not disturb and/or disrupt adjacent properties. · The business must be resident-operated (no nonresident staff permitted). · Small fascia ~igns are allowed, primarily for business identification purposes. · The size of all home-based businesses in a dwelling may not exceed 500 square feet. · Certain uses are prohibited, including restaurants, dog kennels, and salvage yards. Generally, a home-based business use is not subject to municipal licensing and seldom, if ever, results in an increase of the market value assessment applied to the property. The public consultation process included a working committee having representation from the Chamber of Commerce, the local bank, the city council, and staff. The project was brought directly to over 15 community groups, and involved over 650 persons throughout the consultation process. Peterborough is no different than other urban communities in facing the challenges of changes in the workplace and workforcc. The home-based business regulations are viewed as a successful and productive planning response to this community reality. For specific project information, contact: Kevin Duguay, e-mail: kduguay@city.peterborough.on.ca; 705-748-8880; fax: 705-742-5218. Kevin Duguay is a planner for the City of Peterborough, Ontario. /Cci