Agenda - Planning Commission - 03/03/2016

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January 10, 2016 ( Volume 10 I Issue 1 Zoning Bulletin had a vested right to continue construction of their restaurant under the 2003 zoning permit after their property was downzoned in 2004. The court explained that rights to continue construction after a change in the zoning law vest when: (1) the work done is recognizable by a "reasonable member of the public;" and (2) construction commenced pursuant to a building permit for a use then permitted under the zoning law. Stated another way, said the court, vested rights are acquired when: "(1) there is actual physical commencement of some `significant and visible construction[;]' (2) the construction was commenced in 'good faith,' with the intention to complete the construction[;] and (3) the construction was commenced `pursuant to a validly issued building permit.' " Once acquired, a vested right in the permit protects the permit holder from changes to the zoning ordinance that would otherwise disallow the use being constructed, said the court. Next, as a matter of first impression (i.e., the first time the court had ad- dressed the issue), the court held that "a vested right to proceed with construc- tion under an existing zoning use may be abandoned pursuant to a statutory provision that establishes reasonable prerequisites for abandonment, or where there is ample evidence of an intent to abandon or relinquish the vested zoning right." In so holding, the court looked at case law from other jurisdictions, and agreed with those "sister states" that "a vested right to continue construction under an existing zoning or building permit is sufficiently analogous to a nonconforming use to warrant similar treatment." "A vested right to continue construction under a zoning permit presupposes a change in zoning and, thus, renders the permitted use analogous to a nonconforming use under the new zoning," said the court. Thus, reasoned the court, just as a nonconforming use is disfavored, "an abandoned construction site that does not comport with cur- rent zoning ordinances would be similarly disfavored." The court reiterated that a vested right in a zoning permit may be abandoned where the zoning ordinance (or statute) itself reasonably establishes the cir- cumstances that amount to abandonment and the permit holder's failure to act indicates that they no longer retain an interest in the subject -matter of the zon- ing permit. The court said that "[c]ertainly, municipalities have the power to regulate zoning and property rights when those regulations are established for the health, safety, and welfare of the public." Here, the court found that § 290- 27(E)'s prerequisites for abandonment were reasonable because failure to comply with its requirements—of project completion in two years or satisfac- tory proceeding of work—"because even those projects that require more than two years to complete, are able to proceed without a cutoff date, so long as work is proceeding on the project." Next, the court explained that "[e]vidence of an intent to abandon must include some overt act or failure to act indicating that 'the owner neither claims nor retains any interest in the subject -matter' of the vested zoning permit." Here, the court found that the Sizemores had abandoned their vested right to proceed with their restaurant construction by failing to comply with those rea- sonable requirements of § 290-27(E)—namely failing to satisfactorily proceed with the work on the construction. The court found that the Sizemores' failure to comply with the Town Code § 290-27(E) correctly resulted in the expiration of their permit and the abandonment of both their zoning permit and their vested right in that permit. As a result, now that the property was zoned resi- 4 © 2016 Thomson Reuters