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Issue of vested rights surfaces

Housing activity stirring questions

POSTED: September 30, 2012 12:34 a.m.
 

The development of subdivisions has picked up again in Forsyth County, and with it some complications of recovery from the housing boom and bust.

The issue of vested rights arose several times this month as developers have returned to work on properties based on applications that were approved several years ago.

However, the conditions or regulations they received may have since changed.

County Attorney Ken Jarrard said the “signs of life from the residential housing bust” have brought the issue to the forefront.

“We’re doing a whole lot of this, and it’s taking a lot of county attorney time, a lot of [planning and development department] time,” Jarrard said. “It might make a lot of sense if we try to formalize this.”

As the county drafts a policy, the questions of those complicated matters have already emerged.

The concept of law known as vested rights allows property owners “to do various things based on performance standards in parts of our [unified development code] that may in fact not exist anymore,” Jarrard told the county commission Tuesday.

He said the most common example recently has been developers who received a residential-3, or Res-3, zoning prior to 2007, when the minimum lot size required was 9,000 square feet.

That requirement was upped to 14,500 square feet in 2007.

In making a legal determination on vested rights in these situations, Jarrard said he reviews several factors, including whether: a site plan was approved; a zoning condition with the number of lots was specifically written; and a “significant financial expenditure was made.”

In one case with developer Jim King, the commissioners on Tuesday overturned the recommendation of staff to deny rights, citing the financial contributions for sewer taps on the larger number of lots.

The discrepancy in opinions led the county to confirm the need for a policy to guide the difficult decisions.

County commissioners will consider on Thursday whether to review a decision to grant vested rights to a partially completed south Forsyth subdivision.

“They will not hold the hearing that night,” Jarrard said, “but they will decide whether to hold a hearing.”

Jarrard said that practice follows the county code for appeals of zoning board actions.

In July, developer Rocklyn Homes was initially denied the ability to maintain a 35-foot stream buffer approved with the 374-home Champions Run subdivision rezoning in 2004.

Since that time, the county has increased the minimum stream buffer to 50 feet.

The developer appealed the staff’s call to the county zoning board for a hearing at the Sept. 4 meeting,

Just before the start, however, the county agreed that the developer had vested rights and allowed the 35-foot buffer for the phases in question.

The zoning board approved a consent order, and therefore a public hearing was no longer needed.

“If there’s been a consent order resolving the dispute, there’s no need for the developer to go forward with their requested appeal,” Jarrard said. “The neighbors have now appealed the decision of the ZBA to the board of commissioners.”

Those residents were upset at the meeting that they did not get a chance to weigh in on the issue.

Three applications requesting a hearing on the decision were filed by the Grand Cascades Community Association, the Keystone Homeowners Association and Carol Albert of Champions Run.

On behalf of her neighbors, Albert stated that it’s “important that Rocklyn Homes build consistently with our current zoning ordinances and not be allowed ‘special exemption’ based on legal maneuvering.”

The Grand Cascades and Keystone explanations include concerns about the possibility of flooding based on an existing sedimentation problem in Keystone Lake.

Legally, the applications also raise questions as to whether the rights can be transferred to a new owner and whether the seven-year window to keep the buffer distance is appropriate.

 

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