Vested Rights & Proposition 6
Vested Rights & Proposition 6 by Kevin S. Thurman, City Attorney
The City Council has taken the position that properties with vested rights are not subject to recent General Plan amendments passed by Proposition 6. This was the intent of the sponsors1 of Proposition 6 and is consistent with Utah law. These properties will be allowed to develop under the prior version of the General Plan and will not be affected by Proposition 6.
This article explains what a vested right is, whether a vested right can be taken away, and what the consequences are for taking away a vested right.
1. What is a Vested Right?
A vested right is a right that a property owner has to approval for his or her land use or development application, which cannot legally be taken away until the right expires.2 The vested right includes the right to have the land use allowed or the application approved by the City.3
2. What is a Land Use?
A land use is any use of land, including homes, town-homes, apartments, businesses, farms, schools, churches, etc.4 Allowed land uses are listed in the Land Development Code (“LDC”) as permitted or conditional uses.5 Anything not listed as a permitted or conditional use is not permitted and is illegal unless it has been grandfathered in.6
3. What is an application?
A development application includes an application for approval of a development agreement, annexation agreement, preliminary or final plat, conditional use, site plan, district area plan, community plan, village plan, etc.7
4. When Does a Vested Right Occur?
A property owner has a vested right beginning when a complete application is filed—if the application meets City ordinances at the time the application was filed—lasting all the way through application approval and until the approval expires.8 If the City approves the application, the property owner still has a vested right even if the application did not meet the City ordinances at the time the application was filed if the time limit to appeal has expired, which is either 10 days or 30 days after a decision.9 For example, if the City approved an application and mistakenly believed it met the zoning requirements, and in fact it did not, the vested right would occur if an appeal or lawsuit was not filed before the time period to appeal expires.10
5. When Does a Vested Right Expire?
If a land use is already established, the vested right lasts forever, except for a few exceptions in Utah law.11 In the case of development agreements, annexation agreements, district area plans, community plans, and village plans, the vested right and approval lasts until the agreement expires or until the time specified in the approval.12 For site plans, conditional uses, and plat approvals, the vested right expires at the time specified by City ordinances.13
6. Can the City, or the Citizens Through an Initiative or Referendum, Take Away a Vested Right?
The City Council, or the citizens through the referendum or initiative power, cannot legally take away a vested right, or change the law for a property with a vested right, until the approval expires.14 However, the law may be changed for a property that does not have a vested right.
7. What Are the Consequences for Taking Away a Vested Right?
If the City chooses not to honor a vested right, the City will be responsible for a takings claim under the Utah and United States Constitution.15 This means the City will have to pay the difference in market value of the property before the taking as compared to after the taking.16 The City currently has a large number of properties with vested rights. As a result, not honoring these vested rights will likely result in a loss of hundreds of millions of dollars to landowners, and the City will be responsible to compensate these landowners for their loss. This is why the City Council has taken the position that Proposition 6 does not affect properties with vested rights.
8. Which Properties in the City of Saratoga Springs Have Vested Rights?
A current list of properties with vested rights is available online. Please contact the City Planning Department at (801) 766-9793 with additional questions.
The information in this article is provided for informational purposes only and does not constitute legal advice. You should not take action based upon this information without consulting legal counsel. This article is not intended to create an attorney-client relationship. The City encourages you to review other sources of information related to the contents of this article and to consult an attorney of your own choosing. Although this information has been produced and processed from sources believed to be reliable, no warranty, expressed or implied, is being made regarding its accuracy, adequacy, completeness, legality, reliability, or usefulness. The City of Saratoga Springs makes no representations about the accuracy, completeness, or suitability of the information contained in this article for any purpose. The information in this article is being provided “as is” without warranty of any kind.
(1) September 9, 2013 City Council Minutes at Page 4, Lines 210-212
(2) Western Land Equities, Inc. v. City of Logan, 617 P.2d 388, 396 (1980)
(3) Western Land Equities, 617 P.2d at 391 (holding that an applicant is entitled to favorable action if the application conforms to the zoning ordinance in effect at the time of the application)
(4) Chapter 19.04, Saratoga Springs Land Development Code (“LDC”)
(5) LDC § 19.04.07
(6) LDC § 19.04.04(2)
(7) LDC §19.13.04 and Chapter 19.26
(8) Western Land Equities, 617 P.2d at 391
(9) Utah Code Annotated § 10-9a-801(2); LDC § 19.03.20(1); see Fox v. Park City, 200 P.3d 182 (Utah 2008) (holding that upon discovering that a building permit was issued despite not being in accordance with City Code, no appeal can be granted after the appeal period ends); see also Lund v. Cottonwood Meadows Co., 392 P.2d 40 (Utah 1964)
(10) Utah Code Annotated § 10-9a-801(2); LDC § 19.03.20(1); see Fox v. Park City, 200 P.3d 182 (Utah 2008) (holding that upon discovering that a building permit was issued despite not being in accordance with the city code, no appeal can be granted after the appeal period ends); see also Lund v. Cottonwood Meadows Co., 392 P.2d 40 (Utah 1964)
(11) Utah Code Annotated § 10-9a-510(2)
(12) See Tooele Associates Ltd. Partnership v. Tooele City, 2012 UT App 214. The Tooele court held that a City has a contractual obligation to uphold a development agreement and treat the developer fairly and in good faith. A City cannot hinder the developer’s performance of the contract or withhold additional approvals needed for the developer to proceed in accordance with the development agreement. The City cannot breach their own contractual obligations, despite any minor breaches of the other party
(13) Judkins v. Fronk, 234 P.2d 849 (Utah 1951). In this case, the property owner was issued a building permit for a gas station; thus, he had a vested right to build despite the fact that the zoning changed shortly thereafter. However, the court held that upon the expiration of that permit, no vested right existed
(14) Western Land Equities, 617 P.2d at 391
(15) U.S Const. Amend. V. (“nor shall private property be taken for public use, without just compensation”); U.C.A. 1953, Constitution Art 1, § 22
(16) City of Hildale v. Cooke, 28 P.3d 697, 703 (2001); see also Kelo v. City of New London, 545 U.S 469 (2005) (for a more thorough discussion on requirements for a takings claim)