VESTED RIGHTS [Planning and Zoning] - Ask Extension
Thinking ahead – Large Scale Alternative Energy (or any other large scale project) – VESTED property rights: Many zoning ordinances have a stateme...
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VESTED RIGHTS [Planning and Zoning] #879876
Asked August 02, 2024, 10:53 AM EDT
Thinking ahead – Large Scale Alternative Energy (or any other large scale project) – VESTED property rights: Many zoning ordinances have a statement that usually says if construction is NOT started within X amount of time, then the issued permit expires or becomes void. There have been several training classes on this topic and they always focus on tangible / physical investments. Let’s say that a permit is issued for a large-scale project such as a solar / wind farm – or even a large carbon capture facility –
QUESTION:. The period of time to ‘begin construction’ or ‘start the use’ as stated in the ordinance passes – the municipality sends notice that the permit has expired: Would it be reasonable for the applicant to claim that because they have already invested hundreds of thousands (maybe millions) of dollars upon reliance on the permit, that they have a vested right, even though there has been no physical sign or evidence of 'construction'?
Wexford County Michigan
Expert Response
Greetings,
This is certainly a legal question that a judge will likely have to answer to be definitive! Consult your own attorney who is well-versed in this area of law. While not a legal opinion, we can offer the following given current case law...
There is no vested right until a building permit has been issued AND there has been construction work of a substantial character that has effected a tangible change in the land.
Such work has made apparent the actual use of the premises asserted as nonconforming (Dingeman Advertising, Inc. v. Algoma Township, Michigan Supreme Court (1974)).
There are no vested rights in a zoning district or classification (Heath Township v. Sall, Michigan Supreme Court (1993)).
Also note, regarding renewable energy projects, Public Act 234 of 2023 amended the Michigan Zoning Enabling Act adding a new section 205(7): "A renewable energy project that received special land use approval under section 502 on or after January 1, 2021 is considered to be a prior nonconforming use and the special land use approval shall not be revoked or modified if substantial construction has occurred or if an expenditure equal to 10% of the project construction costs or $10,000.00, whichever is less, has been made."
This is certainly a legal question that a judge will likely have to answer to be definitive! Consult your own attorney who is well-versed in this area of law. While not a legal opinion, we can offer the following given current case law...
There is no vested right until a building permit has been issued AND there has been construction work of a substantial character that has effected a tangible change in the land.
Such work has made apparent the actual use of the premises asserted as nonconforming (Dingeman Advertising, Inc. v. Algoma Township, Michigan Supreme Court (1974)).
There are no vested rights in a zoning district or classification (Heath Township v. Sall, Michigan Supreme Court (1993)).
Also note, regarding renewable energy projects, Public Act 234 of 2023 amended the Michigan Zoning Enabling Act adding a new section 205(7): "A renewable energy project that received special land use approval under section 502 on or after January 1, 2021 is considered to be a prior nonconforming use and the special land use approval shall not be revoked or modified if substantial construction has occurred or if an expenditure equal to 10% of the project construction costs or $10,000.00, whichever is less, has been made."
