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No. 35532 - B. A. & Cheryl McClure v. City of Hurricane and City of Hurricane Sanitary
Ketchum, J., dissenting:
I dissent because this Court should adopt the vested rights doctrine as it applies
to property developers. My reasons, in the context of this case, are as follows:
RELEVANT UNDISPUTED FACTS
1) In 2001, the City of Hurricane (City) approved the appellee's (the
developer's) subdivision plat. After approval, the plat was recorded in the office of the Clerk
of the Putnam County Commission. The approval of the City and the recordation with the
Clerk complied with W.Va. Code, 39-1-13 (1923) and W.Va. Code, 39-1-16 (1923), which
concern the approval and recordation of subdivision plats.
2) The developer then spent substantial sums of money developing the
subdivision's lots, roads and infrastructure which totaled more than $150,000.00. After
obtaining building permits from the City, the developer built 41 houses in the subdivision.
3) Four years later, on June 6, 2005, the City enacted a stormwater management
4) After the storm water management ordinance was enacted, the City refused
to issue any more building permits to the developer, even though the developer has 30
remaining vacant lots in the previously approved subdivision plat. The City refused to issue
building permits unless the developer agreed to build a $25,000.00 stormwater retention pond
on three of the subdivision's vacant lots. The developer's pro-rata vacant lot cost was
approximately $22,000.00, or a cost of $66,000.00 for the three lots that would be taken for
5) The developer refused to build the stormwater retention pond because the
subdivision plan was approved before the new stormwater ordinance was adopted. More
than 50% of the subdivision development was completed at substantial cost when the
stormwater ordinance was adopted.
6) The City's refusal to issue the building permits on any of the developer's 30
remaining vacant lots has prevented the developer from completing the subdivision.
THE DEVELOPER'S VESTED RIGHT IN THE
The parties argued in the circuit court and in this Court about whether the
subdivision was a nonconforming use and, therefore, grandfathered into the June 6, 2005
stormwater management ordinance. The developer should have argued that land-use law
gives it a vested right to complete the subdivision without complying with the new
stormwater management ordinance. Had this argument been developed, it could very well
have lead the majority to the correct conclusion that the developer does have a vested right
to finish his subdivision without complying with the new stormwater management
regulations. (See footnote 1)
Despite the parties' lapse in developing what I believe is the controlling issue,
the majority should have adopted the vested rights doctrine.
Vested rights in land-use law deal with a developer's right to continue with
development of a proposed - but not yet final - use of land in the face of subsequent changes
of law. John J. Delaney, Vested Rights and the Development Chronology 2000 Update,
SF08 ALI-ABA 379 (2000). See also, John J. Delaney, Vesting Verities and the
Development Chronology: A Gaping Disconnect? 3 Wash. U. Journal of Law & Policy, 603
(2000); Daniel R. Mandelker, Vested Rights and Nonconforming Uses, SK002 ALI-ABA
1103 (2004); Christopher Serkin, Existing Uses and the Limits of Land Use Regulations, 84
NYU Law Rev. 1222 (2009).
Simply stated, vested rights of a subdivision developer deal with the right to
complete a development despite changes in land development regulations[.] Daniel R.
Mandelker, Vested Rights & Nonconforming Uses, supra.
The controlling issue is when does the developer's use of the subdivision
property vest or what does it take for the development right to vest? There are no West
Virginia cases dealing with the vested rights doctrine. However, land-use law, where
developed, generally holds:
A landowner obtains a vested right to complete construction on a specific
development project when the landowner
(1) obtains or is the beneficiary of an affirmative governmental act allowing
development of a specific project, and
(2) relying in good faith upon the affirmative governmental act,
(3) makes a substantial change in position or incurs extensive obligations or
expenses in the furtherance of the specific project in accordance with the
affirmative governmental act.
Grayson P. Haynes and J. Randall Minchew, On Vested Rights to Land Use and
Development, 46 Wash. & Lee L.R. 373, 386 (1989). See also, J. Spencer Hall, State
Vested Rights Statutes: Developing Certainty and Equity and Protecting the Public
Interest, 40 The Urban Lawyer 451 (2008).
John J. Delaney, a leading commentator on land-use law, notes that vested
rights law in the United States can be confusing due to a hodge-podge of case-by-case
judicial decisions. However, Delaney agrees that the general black letter rule for the
acquisition of a vested right in a development (subdivision) occurs when (1) the landowner
relies in good faith on an act or omission of the government, and (2) the landowner makes
substantial expenditures prior to the land regulation changes. John J. Delaney and William
Komines, He Who Rests Less, Vests Best: Acquisition of Vested Rights in Land
Development, 23 St. Louis Univ. Law Journal 219 (1979). See also, John J. Delaney,
Vested Rights and The Development Chronology 2000 Update, SF08 ALI-ABA 379 (2000).
In 2004, our Legislature passed land-use legislation that specifically recognizes
the vested rights doctrine. See, W.Va. Code, 8A-5-12 (2004). This new law does not apply
to the City in this case. Nevertheless, it spells out the West Virginia Legislature's thoughts
on the vested rights of subdivision developers.
Specifically, W.Va. Code, 8A-5-12 (2004), provides:
(a) A vested property right is a right to undertake and complete the
land development. * * *
(d) Without limiting the time when rights might otherwise vest,
a landowner's rights vest in a land use or development plan and
cannot be affected by a subsequent amendment to a zoning
ordinance or action by the planning commission when the land-
(1) Obtains or is the beneficiary of a significant affirmative
governmental act which remains in effect allowing development
of a specific project;
(2) Relies in good faith on the significant affirmative govern-
(3) Incurs extensive obligations or substantial expenses in
diligent pursuit of the specific project in reliance on the
significant affirmative governmental act.
Land-use law is rapidly developing because of urban sprawl. Our courts have
had very few cases dealing with land-use law because we have been a rural state. However,
land use is rapidly changing in this State. Lawyers dealing with these cases need to educate
themselves, the trial courts, and any appellate court. Lawyers can no longer rely only on
West Virginia precedent. They must consult decisions from other jurisdictions as well as the
numerous articles and treatises on the subject. A good starting point is Daniel R. Mandelker,
Land Use Law (5th ed. Matthew Bender 2003); Delaney, Abrams and Schnidman, Handling
the Land Use Case (Thomson Reuters / West 3rd ed. 2010); and James A. Kushner,
Subdivision Law and Growth Management (2nd ed. Thomson Reuters / West 2010).
I respectfully dissent. We should have taken this opportunity to examine and
adopt the vested rights doctrine. I am convinced that the vested rights doctrine governs the
developer's right to complete the subdivision.
Justices Cleckley and Davis teach that this Court has authority to address an issue not
properly presented at the trial court level.
[A]lthough the rule requiring all appellate issues be [properly]
raised first in the circuit court is important, it is not
immutable: Our cases have made clear that the failure to
[properly] raise issues below is not a jurisdictional
prerequisite to an appeal but, rather, is a gatekeeper provision
rooted in the concept of judicial economy, fairness, expediency,
respect, and practical wisdom. Requiring issues to be
[properly] raised at the trial level is a juridical tool, embodying
appellate respect for the circuit court's advantage and capability
to adjudicate the rights of our citizens.
Louk v. Cormier, 218 W.Va. 81, 86, 622 S.E.2d 788, 793 (2005), citing State v. Greene, 196
W.Va. 500, 505, 473 S.E.2d 921, 926 (1996).