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COMMITTEE REPORT
February 18, 2004
H. 3858
Introduced by Reps. Edge, Harrison, Herbkersman, Duncan and Clemmons
S. Printed 2/18/04--H. [SEC 2/19/04 4:26 PM]
Read the first time March 26, 2003.
To whom was referred a Bill (H. 3858) to amend the Code of Laws of South Carolina, 1976, by adding Article 9 to Chapter 29 of Title 6 so as to enact the "Vested Rights Act" by, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting clause and inserting:
/ SECTION 1. The General Assembly finds that:
(1) it is desirable to provide for the establishment of vested rights in certain land developments to secure the reasonable expectations of landowners who make significant investment in site evaluation, planning, development costs, consultant fees, and engineering or architectural expenses to meet land development standards for site plan approval under existing local government ordinances; and
(2) there is a need to provide for vested rights in developments that are not covered by development agreements with local governments; and
(3) the public interest and private expectations can be balanced by a procedure which involves public participation and protection of public health, safety, and welfare.
SECTION 2. Chapter 29, Title 6 of the 1976 Code is amended by adding:
Section 6-29-1310. This article may be cited as the 'Vested Rights Act'.
Section 6-29-1320. As used in this article:
(A) 'Landowner' means an owner of a legal or equitable interest in real property including the heirs, devisees, successors, assigns, and personal representatives of the owner. 'Landowner' may include a person holding a valid option to purchase real property if authorized pursuant to a contract with the landowner to act as his agent or representative for purposes of submitting a proposed site specific development plan or a phased development plan pursuant to this article.
(B) 'Local governing body' means the governing body of a county or municipality or other body of the county or municipality authorized by statute or the governing body to make land use decisions.
(C) 'Person' means an individual, corporation, business or land trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any legal entity.
(D) 'Phased development plan' means a development plan submitted to a local governing body by a landowner which shows the types and density or intensity of uses for a specific parcel or parcels to be developed in phases, but which may not satisfy the requirements for a site specific development plan as defined by the local governing body.
(E) 'Real property' or 'property' means all real property that is subject to the land use and development regulations of a local governing body, and includes the earth, water, and air, above, below, or on the surface, and includes improvements or structures customarily regarded as a part of real property.
(F) 'Site specific development plan' means a development plan submitted to a local governing body by a landowner describing with reasonable certainty the types and density or intensity of uses for a specific parcel or parcels of property. The plan may be in the form of, but is not limited to, the following plans or approvals: planned unit development; subdivision plat; preliminary or general development plan; variance; conditional use or special use permit plan; conditional or special use district zoning plan; or other land-use approval designation as may be utilized by a county or municipality.
(G) 'Vested right' means the right to undertake and complete the development and use of property under the terms and conditions of an approved site specific development plan or an approved phased development plan.
Section 6-29-1330. On or before July 1, 2005 a local government body:
(1) shall amend its local land development regulations and ordinances adopted pursuant to this chapter to provide for the establishment of a vested right in an approved site specific development plan; and
(2) may amend its local land development regulations and ordinances to provide for establishment of a vested right in an approved phased development plan.
Section 6-29-1340. A vested right may be established upon the approval, or conditional approval, of a site specific development plan or a phased development plan in accordance with standards and procedures in the land development ordinances and regulations adopted pursuant to this chapter, subject to the following conditions and limitations:
(1) the form and contents of a site specific development plan must be prescribed in the land development ordinance or regulations;
(2) the factors that constitute a site specific development plan sufficient to trigger a vested right must be included in the land development ordinance or regulations;
(3) a local governing body also may amend its land development ordinance or regulations to provide for the establishment of a vested right upon approval or conditional approval of a phased development plan;
(4) if a vested right is established for a phased development plan, a site specific plan may be required for approval with respect to each phase in accordance with regulations in effect at the time of vesting;
(5) a vested right established under a conditional approval of a development plan may be terminated by the local governing body upon its determination, following notice and public hearing, that the landowner has failed to meet the terms of the conditional approval;
(6) the land development ordinance or regulations amended pursuant to this chapter must designate a vesting point earlier than the issuance of a building permit but not later than formal approval by the local governing body of the final plan specified in the land development ordinance or regulations that authorize the developer or landowner to proceed with investment in grading, installation of utilities, streets, and other infrastructure, and to undertake other significant expenditures necessary to prepare for application for a building permit;
(7) A site specific development plan or phased development plan for which a variance, regulation, or special exception is necessary does not confer a vested right until the variance, regulation, or special exception is obtained;
(8) a vested right for a site specific development plan expires two years after vesting. The land development ordinance or regulations may authorize the planning commission to set a time of vesting for a phased development plan not to exceed five years. The land development ordinance or regulation may authorize the planning commission to extend the time for a vested site specific development for up to a total of five years, upon a determination that there is just cause for extension and that the public interest is not adversely affected. Upon expiration of a vested right, a building permit may be issued for development only in accordance with applicable land development regulations;
(9) a vested site specific development plan or phased development plan may be amended if approved by the planning commission pursuant to the provisions of the land development ordinance or regulations;
(10) a validly issued building permit does not expire or is not revoked upon expiration of a vested right, except for public safety reasons or as prescribed by the applicable building code;
(11) a vested right to a site specific development plan or phase development plan is subject to revocation by the local governing body upon its determination, after notice and public hearing, that there was a material misrepresentation by the landowner or substantial noncompliance with the terms and conditions of original or amended approval;
(12) a vested development plan is subject to later federal, state, or local laws adopted to protect public health, safety, and welfare including, but not limited to, building, fire, plumbing, electrical, and mechanical codes and nonconforming structure and use regulations not affecting grandfathering of the vested right. The issuance of a building permit vests the specific construction project authorized by the building permit to the building, fire, plumbing, electrical, and mechanical codes in force at the time of the issuance of the building permit;
(13) a vested site specific development plan or phased development plan is subject to later local government overlay zoning that imposes site plan-related requirements but does not affect allowable types, height as it affects density or intensity of uses, or density or intensity of uses;
(14) a later change in the zoning district designation or land use regulations affecting a parcel including a change in the designation and regulations resulting from annexation of it, does not operate to affect, prevent, or delay development of the parcel under a vested site specific development plan or phased development plan without consent of the landowner;
(15) a local governing body may not require a landowner to waive his vested rights as a condition of development approval;
(16) the land development regulations adopted pursuant to this section may provide additional terms or phrases, consistent with the conditions and limitations of this section, as are necessary for the implementation or determination of vested rights; and
(17) a plan is considered approved only after final action by the local government including the exhaustion of all administrative remedies.
Section 6-29-1350. A vested right pursuant to this section is not a personal right, but attaches to and runs with the applicable real property. All successors to the landowner who secured a vested right pursuant to this section may rely upon and exercise the vested right. This section does not preclude judicial determination that a vested right exists pursuant to other statutory provisions. This section does not affect the provisions of a development agreement executed pursuant to the South Carolina Local Government Development Agreement Act, Chapter 31, Title 6 of the 1976 Code.
Section 6-29-1360. (A) If a local governing body fails to adopt an amendment to its land development ordinance or regulations as required by this section, a landowner has a vested right to proceed in accordance with a validly approved development plan for a period of two years. For purposes of this section, the landowner's rights are considered vested in the types of land use and density or intensity of uses defined in the development plan and the vesting is not affected by later amendment to a zoning ordinance or land use or development regulation if the landowner:
(1) obtains, or is the beneficiary of, a significant affirmative government act that remains in effect allowing development of a specific project;
(2) relies in good faith on the significant affirmative government act; and
(3) incurs significant obligations and expenses in diligent pursuit of the specific project in reliance on the significant affirmative government act.
(B) For the purposes of this section, and without limitation, the following are significant affirmative governmental acts allowing development of a specific project:
(1) the local governing body has accepted fees and exactions or issued conditions which specify a use related to a zoning amendment.
(2) the local governing body has approved an application for a rezoning for a specific use;
(3) the local governing body has approved an application for a density or intensity of use;
(4) the local governing body or board of appeals has granted a special exception or use permit with conditions;
(5) the local board of appeals has approved a variance;
(6) the local governing body or its designated agent has approved a preliminary subdivision plat, site plan, or plan of phased development for the landowner's property and the applicant diligently pursues approval of the final plat or plan within a reasonable period of time under the circumstances; and
(7) the local governing body or its designated agent has approved a final subdivision plat, site plan, or plan of phased development for the landowner's property.
SECTION 3. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
EXPLANATION OF IMPACT:
This bill would have no fiscal impact on the General Fund of the State or on federal and/or other funds.
LOCAL GOVERNMENT IMPACT:
Two local governments responded concerning the fiscal impact of this bill. One indicated there would be no impact associated with enactment. The other indicated there would be an impact but could not estimate the potential costs involved.
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 9 TO CHAPTER 29 OF TITLE 6 SO AS TO ENACT THE "VESTED RIGHTS ACT" BY PROVIDING FOR THE ESTABLISHMENT OF VESTED PROPERTY RIGHTS ALLOWING THE COMMENCEMENT AND COMPLETION OF DEVELOPMENT AND USE OF PROPERTY PURSUANT TO A SITE SPECIFIC DEVELOPMENT PLAN OR AN APPROVED PHASE DEVELOPMENT PLAN, TO PROVIDE FOR THE LOCAL GOVERNMENT ACTS AND FACTORS TRIGGERING A VESTED RIGHT, TO LIMIT THE VESTING FOR A TERM OF YEARS, TO PROTECT THE HOLDER OF VESTED RIGHTS FROM ZONING CHANGES UNLESS CERTAIN CONDITIONS ARE MET AND TO PROVIDE THAT A VESTED RIGHT ATTACHES TO AND RUNS WITH THE PROPERTY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that:
(1)it is necessary and desirable, as a matter of public policy, to provide for the establishment of certain vested property rights to ensure reasonable certainty, stability, and fairness in the land use planning process, secure the reasonable expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning;
(2) local governing body approval of land use development typically follows significant landowner investment in site evaluation, planning, development costs, consultant fees, and related expenses;
(3) the ability of a landowner to obtain a vested right after local governing body approval of a site specific development plan or a phased development plan preserves the prerogatives and authority of local elected officials with respect to land use matters; and
(4) opportunities for public participation serve the public interest and strike an appropriate balance between private expectations and the public interest, while scrupulously protecting the public health, safety, and welfare.
SECTION 2. Chapter 29, Title 6 of the 1976 Code is amended by adding:
Section 6-29-1310. This article may be cited as the 'Vested Rights Act'.
Section 6-29-1320. As used in this article:
(1) 'Landowner' means an owner of a legal or equitable interest in real property including the heirs, devisees, successors, assigns, and personal representative of the owner. 'Landowner' may include a person holding a valid option to purchase if authorized by the landowner to act as his agent or representative for purposes of submitting a proposed site specific development plan or a phased development plan pursuant to this article, in the manner allowed by ordinance.
(2) 'Local governing body' means the governing body of a county, municipality, or special purpose district.
(3) 'Phased development plan' means a plan submitted to a local governing body by a landowner for phased development which shows the type and intensity of use for a specific parcel or parcels with a lesser degree of certainty than the plan determined by the local governing body to be a site specific development plan.
(4) 'Property' means all real property subject to zoning regulations and restrictions and zone boundaries by a local governing body.
(5) 'Site specific development plan' means a plan submitted to a local governing body by a landowner describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property.
(a) The plan may be in the form of, but not be limited to, the following plans or approvals:
(i) planned unit development plan;
(ii) subdivision plat;
(iii) preliminary or general development plan;
(iv) conditional or special use permit;
(v) conditional or special use district zoning plan; or
(vi) another land-use approval designation as may be utilized by a city or county.
(b) Unless otherwise expressly provided by the local governing body, the plan must include:
(i) the approximate boundaries of the site;
(ii) significant topographical and other natural features affecting development of the site;
(iii) the approximate location on the site of the proposed buildings, structures, and other improvements; and
(iv) the approximate dimensions, including height, of the proposed buildings and other structures; and
(v) the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways.
(c) Neither a sketch plan nor another document that fails to describe with reasonable certainty the type and intensity of use for a specified parcel is a site specific development plan.
(6) 'Vested right' means the right to undertake and complete the development and use of property under the terms and conditions of an approved site specific development plan or an approved phased development plan.
Section 6-29-1330. The factors that constitute a site specific development plan pursuant to this article triggering a vested right must be determined finally by the local governing body pursuant to an ordinance, and the document that triggers the vesting must be so identified at the time of its approval. At a minimum, the ordinance adopted by the local governing body must designate a vesting point earlier than the issuance of a building permit. A variance is not a site specific development plan, and approval of a site specific development plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained.
Section 6-29-1340. A vested right is established with respect to real property upon the valid approval, or conditional approval, of a site specific development plan or a phased development plan, following notice and public hearing by the local governing body with jurisdiction over the property. The vested right confers upon the landowner the right to undertake and complete the development and use of the property pursuant to the terms and conditions of the site specific development plan, or the phased development plan, including amendments to it. A local governing body may approve a site specific development plan or a phased development plan upon the terms and conditions reasonably necessary to protect the public health, safety, and welfare. Conditional approval results in a vested right, although failure to abide by the terms and conditions results in a forfeiture of vested rights. A local governing body may not require a landowner to waive his vested rights as a condition of developmental approval. A site specific development plan or a phase development plan is approved upon the effective date of the local governing body's action or ordinance relating to it.
Section 6-29-1350. (A) A right that has vested as provided in this article remains vested for two years. This vesting must not be extended by any amendments or modifications to a site specific development plan unless expressly provided by the local governing body.
(B) Notwithstanding subsection (A), a local governing body may provide that rights be vested for a period exceeding two years but not exceeding five years if warranted in light of all relevant circumstances including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions. These determinations must be in the sound discretion of the local governing body.
(C) Notwithstanding the provisions of subsections (A) and (B), approval by a local governing body of a phased development plan vests the zoning classification or classifications so approved for not more than five years. The document that triggers the vesting must be identified at the time of its approval. The local governing body still may require the landowner to submit a site specific development plan for its approval with respect to each phase or phases in order to obtain final approval to develop within the restrictions of the vested zoning classification or classifications. This subsection does not require a local governing body to adopt an ordinance providing for vesting of rights upon approval of a phased development plan.
(D) Following approval or conditional approval of a site specific development plan or a phased development plan, the plan is subject to subsequent reviews and approvals by the local governing body to ensure compliance with the terms and conditions of the original approval, except that the reviews and approvals must be consistent with said original approval. This subsection does not prohibit the local governing body from revoking the original approval for failure to comply with applicable terms and conditions of the approval or the zoning ordinance.
Section 6-29-1360. (A) Once a building permit is issued, the permit may not expire or must not be revoked because of the running of time while a vested right under this article is outstanding.
(B) A right that has vested as provided in this article terminates at the end of the applicable vesting period with respect to buildings and uses for which a valid building permit application has not been filed.
Section 6-29-1370. (A) A vested right, once established as provided in this article, precludes zoning action by a local governing body that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as described in an approved site specific development plan or an approved phased development plan, unless:
(1) the affected landowner gives written consent;
(2) the local governing body makes findings, by ordinance after notice and a public hearing, that natural or manmade hazards on or in the immediate vicinity of the property, if uncorrected, pose a serious threat to the public health, safety, and welfare if the project proceeds as contemplated in the site specific development plan or the phased development plan;
(3) the affected landowner receives compensation for all costs, expenses, and other losses he incurred including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant's fees incurred after approval by the local governing body, together with interest at the legal rate until paid. Compensation does not include diminution in the value of the property caused by the action;
(4) the local governing body makes findings, by ordinance after notice and a hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the local governing body of the site specific development plan or the phased development plan; or
(5) a state or federal law is enacted or regulation promulgated that precludes development as contemplated in the site specific development plan or the phased development plan, in which case the local governing body may modify the affected provisions, upon a finding, by ordinance after notice and a hearing, that the change in state or federal law has a fundamental effect on the plan.
(B) The establishment of a vested right does not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to land use regulation by a local governing body including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations are effective with respect to property subject to a site specific development plan or a phased development plan upon the expiration or termination of the vesting rights period provided for in this article.
(C) The establishment of a vested right does not preclude, change, or impair the authority of a local governing body to adopt and enforce zoning ordinance provisions governing nonconforming situations or uses.
Section 6-29-1380. (A) A vested right pursuant to this section is not a personal right, but attaches to and runs with the applicable real property. After approval of a site specific development plan or a phased development plan, all successors to the original landowner may exercise the vested rights.
(B) Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided, this article does not alter the existing common law.
(C) If a local governing body fails to adopt an ordinance setting forth the factors in a site specific development plan that trigger a vested right, a landowner may establish a vested right with respect to real property upon the approval of a zoning permit, or otherwise may seek appropriate relief."
SECTION 3. This act takes effect upon approval by the Governor.
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