Vested Rights and Nonconforming Uses

Presentation given by Frank Jenkins during the Summer 2008 conference.

 

Nonconforming uses are uses or structures existing prior to the enactment of an ordinance which renders them nonconforming. A use which is merely contemplated for the future, but not yet realized as of the effective date of an amended ordinance, is not a nonconforming use. A vested right is one which cannot be divested without the consent of the person to whom it belongs. Vested rights are personal to the owner and not transferable with the land. The choice by the owner to sell the property is voluntary, but if it chooses to sell, then it sells with the knowledge that the vested right is not transferable to a purchaser. See BBC Land and Development Inc. v. Butts County, 281 Ga. 472, 640 S.E. 2d 33 (2007).

 

If a local government issues a permit which is in violation of an existing ordinance, even if issued under a mistake of face, the permit is void and the holder does not acquire any vested rights. This is true even if substantial expenditures were made in reliance on the void permit. A local government is not prohibited from revoking an improperly issued permit.  See Cafe Risque / We Bare All Exit 10 Inc. v. Camden County, 273 Ga. 451, 542 S.E. 2d 108 (2001).

 

The mere reliance on a variance without showing substantial change in position by expenditures or other obligations, does not vest a right in the land owner to develop in accordance with the earlier variance which would no longer be valid by virtue of a subsequently adopted zoning ordinance. See Meeks v. City of Buford, 275 Ga. 585, 571 S.E. 2d 369 (2002).

 

A governing authority can require a nonconforming use to be terminated in a reasonable time. Georgia law permits municipalities to terminate, over time, pre-existing nonconforming uses. Moreover, courts have consistently held that ordinances prohibiting the expansion of a nonconforming use to new lands are enforceable. See Flippen Alliance for Community Empowerment Inc. v. Brannan, 267 Ga. App. 134, 601 S.E. 2d 106 (2004).

 

Nonconforming uses run with the land and benefit a subsequent purchaser of the property. But expanding a nonconforming use on the same lot may be prohibited, depending on the language of the nonconforming use ordinance. If it is intended that a nonconforming use may not be expanded on the same lot, the ordinance should state, "no such nonconforming use of land shall be extended, either on the same or adjoining property." Absent this language, a property owner may be allowed to expand a nonconforming use on the same lot. See Henry v. Cherokee County, 290 Ga. App. 355, 659 S.E. 2d 393 (2008).