ASK SIMON BLOOM
Stormy Regulations
The information contained in this column: (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Readers of this newsletter should contact their attorney to obtain advice with respect to any particular or specific legal matter. No reader of this newsletter should act or refrain from acting on the basis of information contained herein without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney, with full and complete knowledge of the relevant facts, can provide assurances that the information contained herein -and your interpretation of it -is applicable to your particular situation.

A founding partner at his own Atlanta firm—Bloom Sugarman— Simon has extensive experience handling legal challenges involving eminent domain, zoning and land use, building codes, sewer and water run-off issues, contract disputes, partnership disputes, and construction litigation. He also understands the nuances involved when dealing with multiple levels of government, associations, and the sometimes tenuous relationships with sub-contractors and suppliers.

Q: A developer buys property and obtains approval of a subdivision from County. However, when the developer submits construction plans several months later to County, County advises that storm water regulations have changed and plans will have to comply with new regulations, and not those that were in place at the time of the subdivision approval. What should he do?

A: This is a close call. The real question is whether developer’s rights to develop his subdivision according to the rules and regulations in place at the time of the subdivision approval vested at that time. We need to focus on what is meant in that particular county by “subdivision approval.” Is that an LDP? Zoning certification? Preliminary plat approval? Or just an informal approval by someone in the planning department. If the subdivision approval smells more like a permit than an informal sign-off, we have a better argument for vesting. The Supreme Court of Georgia has consistently held that the issuance of a valid permit is sufficient to bestow a vested right to build upon the landowner. E. g., Barker v. Forsyth County, 248 Ga. 73, 76 (1981).

The next thing to look at is what submissions are included in the application for subdivision approval. If the plans and specifications submitted at that time speak to storm water facilities or otherwise touch on storm water issues, there is a stronger argument for vesting. Ideally to vest, I would like to see a signed set of plans, even if only preliminary or conceptual, that speaks to storm water issues that are stamped approved by the County.

Without a real permit, and without a reference in the subdivision approval to storm water issues, the analysis is more complicated and fact-intensive. Essentially, if this matter were ultimately before a judge, the court would look at whether the developer “has made a substantial change of position in relation to the land, has made substantial expenditures, or has incurred substantial obligations” based on assurances that that a permit would issue. BBC Land & Development v. Butts County, 281 Ga. 472, 473 (2007). If you think that you’ve taken significant action or spent a lot of money in reliance on the old storm water regulations, then you should absolutely sit down with your attorney to evaluate your options.

As a future note to you and everyone else reading, please keep in mind that any vested rights a builder obtains cannot be transferred to a subsequent owner. BBC Land, 281 Ga. at 474. If you buy property that was permitted under old zoning rules, don’t expect a judge to let you depend upon the prior permit. This is an important distinction between a property that has been allowed to continue a nonconforming use versus a builder who has a vested right to build in accordance with old zoning rules.

What’s on your mind? Please send your “Ask Simon” questions to kmurphy@hbag.org.o