Agenda - Planning Commission - 10/06/2016

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I August 25 2016 1 Volume 10 1 Issue 16 Zoning Bulletin In so holding, the court explained that a party may acquire a vested right: (1) under the judicial vested-rights doctrine by performing substantial work and incurring substantial liabilities in good faith reliance upon a permit issued by the government; (2) under certain state statues that confer vested rights based on development agreements and vesting tentative maps; and (3) through local ordinances that confer vested rights. The court fur- ther explained that governmental agencies may apply new laws retroactively, but such retroactive application may be unconstitu- tional if it deprives a party of a vested right. The vested right could be constitutionally impaired by the retroactive application of a new ordinance only if the new regulations were "sufficiently nec- essary to the public welfare as to justify the impairment." Here, the court found that the local permit-vesting ordinance, under its plain terms, had conveyed a vested right to Stewart. Again, that ordinance "shielded the holder of a lawfully issued building permit" (such as Stewart) "from having to comply with any subsequently adopted zoning regulations." The court con- cluded that, even if, as the City had argued, the emergency ordinance was lawfully passed and intended to override the permit-vesting ordinance, the permit-vesting ordinance had conferred a vested right on Stewart when Stewart obtained the building permit. The City had argued that even if Stewart had a vested right in the building permit, the application of the emergency ordinance to Stewart's crematorium project did not impair that right "because requiring a CUP did not amount to `prohibiting'the crematorium's construction" but only "require[d] further discretionary review." The court disagreed. It found that the emergency ordinance did "prohibit"the construction of a crematorium as authorized by Ste- wart's building permit. The court found that "[o]nce the emer- gency ordinance was applied to the project, Stewart was no longer allowed to build the crematorium because it did not have a CUP. The possibility that Stewart could regain the right to build the crematorium if it applied for and was granted a CUP [did] not change [that] fact: a project can be `prohibited' even if the fulfill- ment of certain contingencies might at some later date reauthorize it."Therefore,the court concluded that the application of the emer- gency ordinance impaired Stewart's vested right under the permit- vesting ordinance to build the crematorium. Nevertheless, the City had argued that any such impairment of Stewart's vested right was justified because the impairment was 10 ©2016 Thomson Reuters