Vested Rights
NOTE: This summary is very simplified, and is provided for informational purposes. Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.
The “Vested Rights Rule” means that an applicant for a land use or a development is entitled to consideration and approval if the application is complete, and if it complies with all zoning requirements in place at the time of the application. Put another way, the right to develop “vests” when a complete application that complies with zoning ordinances is submitted.
An applicant cannot claim vested rights if the process to change a zoning ordinance that would affect the application had been initiated before the application was submitted, and the ordinance change is ultimately approved.
An applicant may not gain vested rights if the local government can show that there is a “compelling, countervailing” public interest that would be jeopardized if the proposed development were carried out.
The Utah Code provides that the validity of an approved application is conditioned upon proceeding with reasonable diligence. Several jurisdictions have ordinances which cancel land use approvals after a period of time with no development activity.
The Vested Rights Rule provides that an applicant is entitled to approval if the development application complies with the zoning ordinances in place when the application becomes complete.
The Utah Code also provides that an application must receive substantive review under the ordinances that were in place when the application became complete, even if there were subsequent changes to the ordinance. This provision recognizes that some development applications require a lengthy review process. If an applicant relied upon the language in a zoning ordinance, it would be unfair to deny that applicant vested rights simply because the ordinance language was changed before the application could be fully reviewed. See Utah Code §§ 10-20-902(1)(a)(i) (for municipalities) and 17-79-803(1)(a)(i) (for counties).
Zoning estoppel is a rule established by Utah Courts to address situations where it would not be fair to strictly enforce a zoning ordinance, because a property owner relied upon representations made by a local government. Zoning estoppel is somewhat similar to the vested rights rule, but no development application needs to be submitted.
Zoning estoppel is usually difficult to establish. To claim a development right under a zoning estoppel theory, a property owner must show that:
- the local government made representations regarding allowable uses on property;
- the property owner made a substantial change in economic position based on those representations, and
- it would not be fair for the local government to recant its earlier representation.
State law provides specific standards for vested rights of commercial critical infrastructure materials uses, which means the extraction, excavation, processing or reprocessing of sand, gravel, or rock aggregate (in other words, gravel pits).
Existing gravel pits that have operated by an issued permit by a local government, or have otherwise not been abandoned for 24 months, are presumed to be a vested use under state law, and a person claiming that a vested use has not been established bears the burden proof, whereas in any other instance of nonconforming rights, it is typically the burden of the person claiming the vested right.
Another unique aspect of vested rights for gravel pits comes from the doctrine of diminishing assets found in Utah caselaw. Normally, legal nonconforming uses cannot expand beyond the historical boundaries of the use, meaning the use must generally remain within the confines existing when the use became nonconforming, unless expansion or extension is specifically allowed by local ordinance. However, unlike these other uses, gravel pit operations are acknowledged to be different in that the very use consumes the asset. Because of this, the law has allowed vested gravel pits to continue to extract its diminishing assets by expanding the operations up to the entire parcel. Moreover, state statute also allows vested gravel pits to increase production or volume, and even expand to new land as long as contiguous to the parcel in which the vested right was established.
Before expanding a vested gravel pit use onto new land, the operator must first give notice to the applicable legislative body. If after a public meeting or hearing, the legislative body makes findings that the expansion on new land will endanger the public health, safety, and welfare, it may impose certain reasonable mitigation measures.
Gibbons & Reed Co. v. North Salt Lake City (1967) - doctrine of diminishing assets allows nonconforming gravel pits to expand and use the entire property, not merely the existing area of operations.
The Office of the Property Rights Ombudsman can help property owners understand the vested rights rule, and how it would apply to development proposals. In addition, the Office may issue an Advisory Opinion analyzing a specific situation involving a property owner’s vested rights.
