Technical Bulletin
VESTED RIGHTS
2004 Act No. 287 (H. 3858, R. 411)
The purpose of the 2004 Act No. 287, as stated in its legislative findings, was to provide for the establishment of vested rights in certain development projects in order to help insure that developers who expend significant funds in planning and development costs to meet existing standards will not have their ability to proceed altered by a change in regulations. Most major developments (those over 25 acres) are covered by development agreements. This legislation is designed to provide protection to approved site development plans of a smaller scale.
SCAC, in response to its policy position, protected the ability of local governments to make the final decision as to whether a project becomes vested by defining approval as a final action by the governing body or the exhausting of all administrative remedies which would result in final local approval. In other words, the local governing body will determine what approvals must be obtained prior to vesting. This is in concert with SCAC policy which declares that local governments reserve the right to define vested rights in applicable ordinances.
The Act allows local governments to pass land development ordinances and regulations on or before July 1, 2005, which will meet the requirements contained in Sections 6-29-1530 and 6-29-1540 of the Act. The most notable are:
a) provide for a 2 year vesting with up to 5 annual extensions unless there is a change in development standards;
b) designate a vesting point earlier than the issuance of a building permit but not later than approval of the governing body of the site specific development plan;
c) any amendments to an approved plan must receive governmental approval;
d) may provide additional terms or conditions which are necessary for the implementation of determination of vested rights. This provides an avenue to address the issues that have been raised concerning the zoning board of appeals.
Any local government which does not have land development ordinances in effect or which chooses not to adopt the time of vesting ordinance allowed by the Act will fall into a default category. Under that scenario a landowner will receive a 2 year vested right to proceed after approval by a local government. Automatic annual renewals will be granted up to 5 years. A landowner is considered vested if he relies in good faith on a significant affirmative governmental act allowing his project. Significant acts are:
a) acceptance of conditions that specify that a use related to zoning.
b) approval of an application for zoning or density.
c) granting of a special exception, special use or variance.
d) preliminary approval of a site plan and follow up on that approval by a developer.
e) final approval of a plan.