New Vested Rights Legislation Is Aimed At Adding Greater Certainty To The Development Process
By Tom Larson
While local communities have broad authority to create and change development regulations and permitting requirements, property owners also have the right use and develop their property in a manner that is consistent with current zoning and development regulations. However, problems sometimes arise when a property owner applies for a permit to use a property for a particular use and a community attempts to stop that particular use of property by changing the development regulations or permitting requirements. Unfortunately, current law does not clearly address this issue with respect to all types of development regulations.
To add greater certainty to the permit process and added protections for property owners, NAIOP-WI is working with state lawmakers and other interest groups on legislation that will more clearly define when new regulations and permit requirements cannot be applied to property owners.
The concept of “vested rights” recognizes that, at some point in time, it is unfair to change the rules and regulations affecting a property owner’s ability to use or develop his or her property. More specifically, “vested rights” refers to the point in time when a property owner’s right to develop his or her property is protected from further changes to land-use regulations, such as subdivision regulations, zoning changes, or other requirements.
Wisconsin law currently establishes “vested rights” for changes to both zoning and subdivision regulations upon submitting an application or permit to the government entity responsible for approving such application or permit.
- Zoning – A property owner’s right to use his or her property consistent with the allowable uses authorized under a particular zoning classification vests when the property owner applies for a building permit which complies with the applicable regulations. See Lake Bluff Housing Partners v. City of South Milwaukee, 197Wis. 2d 157 (1995).
- Subdivision plats – A property owner’s right to have a proposed subdivision plat evaluated based upon current subdivision regulations vests at the time the property owner submits a preliminary plat (or final plat, if a preliminary plat is required). SeeWis. Stat. § 236.11(1)(b).
However, two problems exist with current law. First, a property owner’s vested right related to zoning changes is found in case law, not the state statutes. This is a problem because not all local officials are attorneys and thus they are often unaware of legal standards established in case law. Second, while current the law addresses changes to zoning and subdivision regulations, it is silent as to when a property owner’s rights vest with respect to future changes in other types of development regulations and permit requirements at the local level. Many different types of permits can be required for new development at the local level including permits for building, plumbing, mechanical, driveways, sewer hookup, and stormwater.
Within the next few weeks, Rep. Dave Murphy (R- Greenville) and Sen. Frank Lasee (R-DePere) will be introducing legislation that will establish vested rights for property owners from changes to all development regulations at the time a permit application is submitted. In doing so, this legislation will create more certainty in the permit-approval process, which will hopefully lead to greater investment in new construction and development projects.
In addition, this legislation will help ensure that the permit –approval process is more fair and predictable. Whether building an addition to a home, a commercial building or a new subdivision, property owners spend a lot of time and money planning and preparing for a new construction or development project. Because changes to ordinances and regulations can impact the design, cost and the viability of the project, property owners need certainty that such changes will not be made after they have submitted an application for a building permit.
Creating a more fair and predictable permitting process for commercial development at both the state and local levels has been one of the top legislative priorities of NAIOP-WI over the last several years. NAIOP-WI greatly appreciates the assistance and leadership from Rep. Murphy and Sen. Lasee on this issue and we look forward to working with them and other lawmakers to get this legislation enacted into law during the upcoming months.