Vested Rights

Site Plan Approval, Conditional Use Permits, and Statutory Vested Rights

Today, we take a look at the land use case Jubilee Carolina, LLC v. Town of Carolina Beach, decided October 15, 2019.

In April 2017, the Town approved a site plan and conditional use permit that provided interconnectivity for vehicular traffic between the applicant’s property (the Harris Teeter property) and an adjacent parcel (the Publix property).  At the time the site plan and conditional use permit were approved with as to the Harris Teeter property, the Publix property was not yet known to be possible for a Publix.  That’s key.

Then, in November 2017, the owner of the Publix property applied for site plan approval and a conditional use permit, excluding interconnectivity to the Harris Teeter property.  Yes, the owner of the Publix property sought through its entitlement process to exclude the interconnectivity that the Harris Teeter property had obtained thought its entitlement process.  The owners of the Harris Teeter property appeared at the entitlement process in support of the entitlement of the Publix property on the express condition that interconnectivity between the two properties is required; on the other hand, the applicant/owner of the Publix property threatened to withdraw its application if interconnectivity was required, stating, quite simply, that Harris Teeter and Publix are grocery store competitors.

The Town approved the entitlement of the Publix property as applied, meaning interconnectivity was not required.  In an interesting twist, then, the owners of the Harris Teeter property appealed the Town’s approval of the Publix property.

On appeal from the Town’s decision, before the trial, the owners of the Harris Teeter property argued (1) that the Harris Teeter possessed a vested right for interconnectivity to the Publix property and (2) the Town’s decision to refuse interconnectivity as to the Publix property was not supported by the record.  The trial court refused both arguments and affirmed the Town’s approval of the Publix property without interconnectivity.

The owners of the Harris Teeter property took the matter to the Court of Appeals.  As to the first argument, the Court of Appeals held that the “vested right” argument cannot be raised in the first instance at the trial court; rather, it must have been raised before the Town, at the entitlement level; therefore, the argument was waived.  The Court did state in a footnote, however, that the vested rights argument would have been denied, anyway, because a site plan alone (as opposed to a “site specific development plan”, which is what the law requires) was not sufficient to establish a vested right.  A “site specific development plan” is defined in State law (N.C.G.S. 160A-385.1(a)(5)), but that law defers to the local practice, basically.  As the Court’s footnote states, basically, Town law requires only that the site plan provide as follows to be a “site specific development plan” sufficient to establish a vested right:  “approval of this site-specific development plan establishes a vested right under G.S. 160A-385.1.”

As to the second argument, the Court was deferential to the trial court’s review of the “whole record”.  This probably says more about the arguments of the owners of the Harris Teeter property than it does about anything else, but the Court was left unpersuaded that the entitlement without interconnectivity was without support in the evidentiary record.

We cannot tell from the opinion whether the owners of the Harris Teeter property knew about the intention of the owners of the Publix property as to interconnectivity (and, if so, at what point), or why interconnectivity was preferred by one competitor while disfavored by the other, but we think there is much more to the story than we can glean from the opinion, alone.

Whatever the case, applicants need take care when entitling their property on a contingency involving neighboring property outside the entitlement process, applicants need understand the nuances between common law and statutory vested rights (and how to establish each), and litigants need take care when litigating in the niche space that is the zoning world.

Categories: Vested Rights

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s