Title 18 - Unified Development Ordinance

18.410.090 Completion of Nonconforming Projects -- Vested Rights

1. A.
   All nonconforming projects on which construction was begun at least 180 days before the effective date of this ordinance as well as all nonconforming projects that are at least 10% completed in terms of the total expected cost of the project on the effective date of this ordinance may be completed in accordance with the terms of their permits, so long as those permits were validly issued and remain unrevoked and unexpired, and a vested rights permit is obtained from the Director of Planning and Development Services. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.
2. B.
   Except as provided in subsection A, all work on any nonconforming projects shall cease on the effective date of this ordinance, and all permits previously issued for work on nonconforming projects may begin or may be continued only pursuant to a vested rights permit issued in accordance with this section by the Planning Commission. The Planning Commission shall approve such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his or her position in some substantial way in reasonable reliance on the development regulations as they existed before the effective date of this ordinance and thereby would be unreasonably prejudiced if not allowed to complete its project as proposed. In considering whether these findings may be made, the Planning Commission shall be guided by the following, as well as other relevant considerations:

   1. 1.
      All expenditures made to obtain, or pursuant to, a validly issued and unrevoked building, land disturbance, site development or sign permit shall be considered as evidence of reasonable reliance on the development regulations that existed before the effective date of this ordinance.
   2. 2.
      Except as otherwise provided in subsection B-1, no expenditures made more than 180 days before the effective date of this ordinance may be considered as evidence of reasonable reliance on the development regulations that existed before the effective date of this ordinance. An expenditure is made at the time a person incurs a binding obligation to make that expenditure.
   3. 3.
      To the extent that expenditures are recoverable with a reasonable effort, a person shall not be considered prejudiced by having made those expenditures. For example, a person shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.
   4. 4.
      To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a person shall not be considered prejudiced by having made such expenditures.
   5. 5.
      An expenditure shall be considered substantial if it is significant in dollar amount and in terms of the total estimated cost of the proposed project and the ordinary business practices of the developer.
   6. 6.
      A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the development regulations affecting the proposed development site could not be attributed to such person.
   7. 7.
      Even though a person had actual knowledge of a proposed change in the development regulations affecting a development site, the Planning Commission may still find that such person acted in good faith if such person did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. For example, the Planning Commission may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development, and the developer had legitimate business reasons for making expenditures.
3. C.
   When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under subsection B. In addition to the matters and subject to the guidelines set forth in subsection 1 through 6 of subsection B, the permit-issuing authority shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

   1. 1.
      Whether any plans prepared or approved regarding uncompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural or engineering work.
   2. 2.
      Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.
   3. 3.
      Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or to such a scale, in anticipation of connection to or interrelationship with approved but uncompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but uncompleted phases are constructed in conformity with existing regulations.
4. D.
   The Planning Commission shall not consider any application for a vested rights permit authorized by subsection B that is submitted more than 60 days after the effective date of this ordinance. The Planning Commission may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year from the effective date of this ordinance.
5. E.
   The Planning Commission shall establish expedited procedures for hearing applications for permits under this section.
6. F.
   Notwithstanding the provisions of subsections A and B above, development rights for a single-family residential development shall vest upon the recording of a plat of such land. If construction is not commenced on such land within five years of recording a plat, then the development rights in the project shall expire.

(History: Ord. ZRR-2420 §23, 2003; ZRR-2343 §51, 2002; ZRR-1725; ZRR-1637)

Effective on: 1/1/1901