Daily Development for
Tuesday, August 19, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND PLANNING; PROCEDURE; VESTED RIGHTS: Although a local ordinance may establish vested rights that are greater than those existing under state law generally, a local agency is not estopped from changing its zoning laws to frustrate such rights if justified by reasons of public health and safety, *or possibly if the degree of impact does not overbalance other public welfare concerns.*

Davidson v. County of San Diego, 56 Cal. Rptr. 617 (Cal. App. 1996).

An applicable San Diego County ordinance provided as follows:

"Any application for a permit or other approval regulated in any manner by the provisions of this Zoning Ordinance shall only be required to meet the provisions of this Ordinance that were in effect on the date that application is filed."

Landowner, prior to acquiring his property, established that the then applicable zoning ordinance permitted him to build a crematorium in the zoning classification applied to his property. He then invested in architectural and other preliminary plan development work and applied for a waiver of plan approval to commence the building permit process. The waiver, in his case, was available under the existing ordinance as a matter of right.

When notified of his plan by the County, neighborhood groups went crazy and made a strong showing in opposition to the crematorium. The County then issued a moratorium to study the issue and ultimately established a rule requiring a 650 foot setback. Landowner could not meet the setback.

Landowner somehow managed to challenge properly the County's refusal to grant his initial permit request, and a trial court issued a writ of mandate ordering the County to grant the permit. The County argued to the trial court that its restrictions were based upon concerns about health and safety (relating to complaints about smoke inhalation around crematoriums), and that such concerns preempted any vested right arguments. The trial court rejected this argument in light of the specific language of the San Diego ordinance.

On appeal, held: Reversed. Although the ordinance did establish a vested right in the landowner at an earlier time than might otherwise have been the case under California law, vested rights in any event do not control over the police power to protect the health and safety of the county's citizens.

The court noted that in general the vested rights concept was rooted in governmental estoppel, and should not control over significant public interests. The court quoted from a 1978 appeals court decision: "The constitutional question, on principle, therefore, would seem to be, not whether a vested right is impaired [by a change in the law]. But whether such change reasonably could be believed to be sufficiently necessary to the public welfare as to justify the impairment."

It then went on to develop the theme of what constitutes "necessary to the public welfare." First, it suggested that the regulatory change may be used to impair or revoke a use that "constitutes a menace to the public health, safety or welfare." Interestingly, however, the court then turned to another question - the question of whether the public welfare should be balanced against the degree of impairment of the landowner's interest. The court holds that this balance should occur: "The appropriate inquiry is whether the new regulations . . . were 'sufficiently necessary to the public welfare as to justify impairment'. . .

Probably the single most important factor to be considered in determiniing whether a particular impairment is constitutionally permissible is the nature and extent of the impoairment. The severity of the impairment measures the height of the hurdle the legislation must clear. Other important factors to be considered are the nature, importance and urgency of the interest to be served by the challenged legislation; and whether th elegislation was appropriately tailored and limited to the situation necessitating its enactment."

Comment: The court does remand for a determination of whether the regulation on the crematorium was justified by its being a "danger or nuisance to the public." But other language in the opinion, cited above, does suggest a test that would permit public interests of a lesser standard to be balanced against the degree of impairment of the landowner's interests. This measuring device seems a bit out of kilter with the editor's understanding of the "vested rights doctrine" that once a person has shown reliance on existing regulatory rules, the government (except in the case of traditional health and safety regulations) must honor that reliance or pay damages for destruction of property interests.

The editor is willing to be educated by other DIRTers. Do we balance public interest against landowner impairment individually in each vested rights case?

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 Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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