Daily Development for Wednesday, March 28, 2001

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE: Landowner can have a vested property right following a zoning change even if that person was not in conformance with various standards of zoning ordinance prior to the rezoning, so long as landowner has reasonable prospect of promptly bringing property into compliance with those standards.

Balough v. Fairbanks North Star Borough, 995 P.2d 245 (Alaska 2000).

Junkyard owner sought nonconforming use status after the borough rezoned the property. The Board of Adjustments denied owner the nonconforming status based mainly on the fact that the junkyard was not in compliance under the zoning restrictions prior to the rezoning. The owner appealed the decision alleging in part that she had a vested property right in the junkyard.

The Supreme Court held among other things that: 1) procedural due process required that the Board of Adjustments assess the immediate prospect of owner's compliance with the land use requirements for a junkyard before denying the nonconforming use status and 2) the denial of the nonconforming use, if ultimately carried out, would not be a taking because the landowner had failed to demonstrate substantial investment backed expectations that would be destroyed.

The Supreme Court engaged in a lengthy analysis of the applicable provision for determining pre-existing nonconforming use status, analyzing whether there was a distinction between the concept of whether a use was "lawful" and whether it was "permitted." The editor admits to becoming lost somewhere in the midst of this analysis, but notes its presence for parties more perspicacious or patient than the editor. In any event, the court reached a bottom line that appears to render whatever distinctions existed somewhat moot.

The Supreme Court concluded that a vested right exists where the property use in question exists at the time of the rezoning even if there is a lack of strict compliance with regulations at that time if the non-compliance with the regulations can be remedied by the property owner. The junkyard owner had taken steps to comply with the regulations prior to the rezoning and only learned that her compliance attempts were not successful when the Board of Adjustments denied her request to be granted grandfather rights.

Note that the court specifically did not find an estoppel on these facts (since the landowner had not relied upon reports from zoning staff that her property was in compliance). It apparently would have found a right to cure any licensing defects even if the landowner had been aware of them prior to the rezoning hearing, so long as the defects were readily remediable.

The specific problem in this case was that the landowner's junkyard was supposed to be obscured from view outside the property. There was also a fencing requirement. The landowner had mostly built a fence that hid the junkyard (landowner preferred to call it a "recycling center," but the fence was not complete.

Comment: Note that several decisions around the country have held that there is no Constitutional property right to a given zoning status, and that consequently there are no Due Process Clause guarantees. The editor has railed against such decisions.

Here the Alaska court held specifically that there is at least a protectable Constitutional interest in a vested rights claim.

Further, in addition to the due process rights upon which it based its opinion, the court held that the landowner was entitled to a due process hearing, including impartial decision makers. The landowner did not prevail on this aspect of its claim because the court held that it had waived its objections to an alleged bias on the part of one of the commissioners by not raising it at the time of the hearing.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To cancel your subscription to Dirt, send an e-mail to:

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To cancel your subscription to Brokerdirt, send an e-mail to:

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.