Friday, June 8, 2012

Vested Rights and the Mosque

Another interesting twist on the Murfreesboro Mosque case is the potential applicability of the so-called vested rights/equitable estoppel doctrine here in Tennessee. I summarize this doctrine as requiring a building permit and substantial construction. Howe Realty Company v City of Nashville, 176 Tenn. 405, 141 S.W. 2d 904 (Tenn. 1940). Technically, a building permit may not be necessary but some substantial change of position by the applicant based on assurances from the city/County is certainly necessary.

Of course, under the circumstances presented in the Mosque case, there is no doubt that substantial construction is taking place. The real question is whether or not the building permit could be relied upon for purposes of the doctrine. The building permit was issued based upon the approval of the site plan by the County planning commission. And of course, the site plan has now been declared void ab initio as a result of the inadequacy of the public notice.

However, this doctrine of equitable estoppel or vested rights is based on fairness, not strict observance of the legal rules. Under the circumstances presented here, a strong argument could be made that the Mosque relied to its detriment on the issuance of that building permit, no one knowing that the court would invalidate the site plan eventually, and that since the plaintiffs never named the Mosque as a defendant, they weren’t really even when actual notice of any problem. This argument is made all the stronger when you consider that the site plan was approved by the planning commission and met all of the requirements for site plan approval in the County. Under those circumstances, to penalize the applicant seems extremely foolhardy.

Of course, as I have mentioned previously, there is also the potential applicability of the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. When you add together both of these legal doctrines, revocation of the building permit seems unwarranted.

No comments:

Post a Comment