HomeMy WebLinkAboutC.054.93011_1509David Gish (advocate) spoke about safety and the "golden hour"
when the critically injured and sick needed medical assistance. He
said traffic should not be a factor when a medical situation
necessitated timely assistance.
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Commissioner Tice requested Attorney Pope to advise on whether or not the property
owned by Crescent Resources was vested.
Attorney Pope said the concept of vested rights was one used by the courts, and it was a
shorthand phrase to describe the situation where there was a balancing of the private property
interest and the public right's interest. He said vested rights described a situation where a person
had sufficient "skin in the game," or stake in the process, that would make it unfair to stop the
individual from progressing any further. Pope said these persons were said to have vested rights,
and the law was clear. He said there was a four-part vested rights test (government approval,
substantial expenditure of money, good faith, and detriment) and Crescent's property had not
been reviewed to determine if the test had been met. Pope said he suspected, however, that all of
Crescent's lots were vested. He said in addition, this vesting would not only apply to Crescent,
but to most of the 1,100 lots.
Commissioner Tice said she wanted to make it clear, that should the ordinance be
amended, it wasn't to assist Crescent.
Commissioner Johnson asked for a distinction between statutory and common-law
vesting. He said that if the county had approved a preliminary subdivision, that from a statutory
standpoint, the developer was vested. Johnson said, however, this didn't create a common-law
vesting for the individual building permit in the subdivision. He asked if this were correct.
Pope said the interpretation was correct. He said for statutory -vested rights, that an
approval for the subdivision would make it vested.
Johnson said common law vesting had the four-part test. He said that if the four parts of
the test were met, the building permit was vested under common law. Johnson said that as far as
"substantial" it became somewhat subjective on what constituted a "substantial investment" He
said Iredell County had generally held that if a person had a building, health, and zoning permit,
or a considerable expenditure toward preparation of the lot -- that if they met two or more of the
criteria, they were considered vested. Johnson said the difficulty came up when a person had to
determine if the subdivision vesting transferred with the ownership of the property, and whether
the vesting of that individual's right to build went along with the property. Mr. Johnson said it
was Institute of Government Law Professor Richard Ducker's contention that it did, and that in
case law, only one example could be found, and it upheld Mr. Ducker's opinion.
Pope said this was substantially accurate. He said with statutory vested rights, the statute
specifically said they ran with the land. Pope said a specific case wasn't found that common law
vested rights ran with the land; however, it was scholarly opinion (those who have written on this
matter), that the logic of the statute was compelling, and the courts would likely rule the same
way with regard to common law vested rights as they did for statutory vested rights.
Commissioner Robertson read a portion of G.S. 153A that stated a statutory vested right
was not a personal right but it attached and ran with the applicable property. He continued by
saying that once a plan was approved, all successors to the original landowner were entitled to
such rights. He asked the mechanism where this statute would not be used, but common-law
vested rights with the four-part test could be used.
Pope said there were four or five ways were vested rights could be obtained. He said one
would be the ownership of a building permit, another would be under 153A-344 and common
law vested rights. He said these were all concepts to "balance the equities." Mr. Pope said as
far as he could ascertain, no one on Brawley had statutory vested rights. He said at one time
Crescent did when the county entered into a development agreement stating the rules wouldn't
change for a certain period; however, these statutory rights had now expired.
Commissioner Robertson asked Planner William Allison how many lots had been
approved for the Brawley peninsula.
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