Vested Rights

In the case I mentioned yesterday, Ready Mix v Jefferson County,  2012 WL 3757025,  the court briefly discusses the vested rights doctrine in a way which I think simply and accurately describes the doctrine. Justice Wade drops a lengthy footnote (#18) discussing the doctrine indicating that "in general, the vested rights doctrine provides the zoning ordinance may not retroactively deprive a property owner's use of property. According to one authority, two conditions must be met in order to claim protection under the doctrine: (1) prior approval by the governmental authority; and (2) a substantial change in position by the property owner in reliance on the prior approval." The court cites the well-known McQuillin on Municipal Corporations as authority.

I have always found this formulation of the vested rights doctrine to be the easiest and simplest understand. When I speak about this topic, in fact I simplify it further: the developer must have (1) a building permit, and (2) substantial construction must've taken place. Of course, the governmental authorization does not necessarily have to be a building permit, but that is generally the type of approval given; and in addition although a substantial change in position is the actual legal formulation of the doctrine, generally speaking, it takes substantial construction on the property in order to best the rights. Simply expending monies in preparing the property, doing architectural or engineering work, or other kinds of activities, is usually insufficient.

The court recognizes that the vested rights doctrine does not technically apply in this case inasmuch as the County did not give prior approval to the quarry operation. but it is interesting that the court discusses the vested rights doctrine and uses it as an additional consideration in concluding that the newly adopted zoning regulations do not prevent the operation of the quarry.

It is worthwhile keeping in mind the simple formulation of the vested rights doctrine which the Tennessee Supreme Court now has approved: "In sum, reliance on the vested rights doctrine requires issuance of the building permit, plus substantial construction and/or expenditures." Citing CK Development LLC v Town of Nolensville, 2012 WL 38287 at *11. I don't think that there is anything particularly new about this, but it just serves to emphasize the simplicity of the vested rights doctrine and the importance of obtaining a building or other permit in order for the doctrine to apply.