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BUILDING CODE AND CONSTRUCTION CONTRACT INTERACTION

 

As outlined in previous posts (found HERE, HERE, and HERE) on the subject, developing and completing a construction project can be a daunting task.   In the modern world, seeing a construction project through to completion often requires dozens of people, government regulations, construction personnel, an architect, and other professionals with permits, licenses, designs, and contracts.  All of the parties involved need to be informed of the intricacies in building codes, city ordinances, and zoning laws with their applicable regulations.  These guidelines often vary from community to community.

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Danish Proverb

The definition provided in the International Building Code (“IBC”), identifies that the purpose of the building code is to establish the minimum requirements necessary to ensure public health, safety and general welfare through structural strength, means of egress, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards.[1]  However, these minimum requirements can lead to conflict and confusion between differing building codes, contract specifications, and significant differences in the directives of the owner, architect and engineer.   In addition, these conflicts lead to questions of who is responsible when a code violation occurs.  The following will discuss these issues in greater detail.

Conflicts Between the Construction Contract and Building Codes

Often the requirements outlined in a contract between the owner/developer and contractor may differ from the guidelines found in a building code.  In addition, conflicts between building codes may occasionally occur.  A contractor must be aware of how these contractual requirements differ from the code and what specifications will apply during construction.  In addition, the contractor will need to be aware of the importance of interpretation when building or other codes may interfere with or even contradict each other.

            A contractor’s fundamental obligation is to follow the plans and specifications provided by the owner of the property and their architect.[2]  In addition, compliance with the specifications contract may also provide protection for the contractor if allegations arise in the future concerning the design or construction of the project.

            To the extent a particular construction method or material outlined in contract specifications is not covered in the Code, it is still permissible to build utilizing these materials or methods.[3]  In order to protect the contractor and other parties involved, the alternative method or material must be approved by the applicable agency or governing board.[4]  The International Building Code provides for this option when it directs that an alternative material design or method of construction “shall be approved where the building official finds that the proposed design is satisfactory and complies with the intent of the provisions of the code” and the material, method, or work offered is for the purpose intended (or at least the equivalent to) the material or method prescribed in the building code in quality, strength, effectiveness, fire resistance, durability, and safety.[5]

The contractor should keep in mind that adherence to the contract terms, plans, and specifications provided by the owner and its representatives provides protection to the contractor both from allegations of breach of contract, defective work, and the negative impact of Code violations.  The architect has a duty and is required to make certain in his/her design that the construction specifications and materials, at a minimum, comply with the applicable codes and regulations.[6]  Reliance by the contractor on these designs and specifications provides defenses against future allegations brought by an owner for a failure by the contractor to comply with the specific building code.

This approach may not only protect the contractor from future breach of contract allegations by an owner, but also from the potential of sanctions imposed by the Arizona Registrar of Contractors.  Although not a perfect defense (and entirely within the prosecutorial discretion of the agency) the Arizona Registrar of Contractors may choose not to impose discipline on a contractor for building in violation of a building code as long as it can be demonstrated by the contractor that the owner consented to the deviation.[7]   At a minimum, the fact that owner knowingly consented to a deviation may be utilized by the contractor as a mitigating factor to minimize the potential punishment imposed by the Registrar of Contractors.

Conflicts Between Code Provisions

Often, a builder faces code provisions and other regulations which are in conflict with one another.  This situation typically occurs among the interplay between local, state, and federal rules/regulations which govern similar areas of building and construction.  When a conflict of provisions occurs, as outlined by the IBC, the most restrictive code provision will govern.[8]  This issue becomes particularly relevant when individual jurisdictions incorporate specialty codes that are not part of the uniform code.  One common example of a specialty code in use in Arizona is the Pima County code for construction of adobe structures.[9]  This specialty building code was added to the Pima County building code to address the prevalence of adobe structures in Pima County and to give heed to the special considerations required in order to successfully build with this material.[10]  Hence, the requirements of the adobe portion of the code conflict with or vary from the traditional requirements in the masonry portion of the building code.  The contractor, and its representatives, will need to pay close attention to what portions of the code govern and where deviation is permitted for each project. 

            To the extent a building code conflicts with a federal, state, or local law, the state or local law will typically control.[11]  Remember that conflicting federal, state, or local laws can effectively evolve into an independent and unique building code.  For example, the accessibility requirements within the federal Americans with Disabilities Act may create obligations to the owner/developer and the contractor that are not necessarily reflected in the applicable municipal building code.[12]  However, the owner/developer or its representatives and the contractor must keep these requirements in mind while designing and constructing a structure.  Failure to do so, could lead to substantial damages for the parties.[13] 

No matter what scenarios and interplay between code provisions that might be in play, it is essential that an owner, contractor, and design professional be familiar with the potential conflicts between separate statutes, codes, and regulations which impact the design and/or construction of structures in Arizona. 

[1] IBC § 101.3.

[2] See, e.g., Hammond v. Lowes’ Home Centers, Inc., 316 F. Supp. 2d 975 (D. Kan. 2004) (contracting parties are free to provide more contractual protection than the law requires).

[3] IBC § 104.11.

[4] Id.

[5] Id.

[6] The duty of an Architect will be discussed in greater detail in Section V below.

[7] A.R.S. § 32-1154.

[8] IBC § 102.1.

[9] See Generally, §§ 7101.01 to 7106.4 Uniform Administrative Code Amendment Tucson/Pinal County

[10] Id.

[11] IBC § 102.2.

[12] 42 U.S.C. § 12101.

[13] For a local example, many jurisdictions in Arizona utilize the Maricopa Association of Governments Specifications (often referred to as the “MAG Specs”).  Provisions of the MAG Specs may conflict with the applicable building codes. 

© 2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

THE DUNNING-KRUGER EFFECT ON BUSINESS DECISIONS: WHAT YOU DON’T KNOW (OR THINK YOU ACTUALLY KNOW) WILL HURT YOU

 

An issue I often encounter with prospective business clients is that they have made a decision/choice, which appeared to be insignificant from their perspective at the time, but it actually was not.   Instead, this decision or action is the catalyst that led to significant legal issues, loss of business revenue, and disputes with other parties.   What started out from their perspective as a minor matter evolved into their business facing significant financial losses, litigation, legal fees and costs, and even the potential closure of their business.

When I inquire of these individuals concerning the linchpin decision/choice that led to this outcome, they have a difficult time explaining their decision or understanding why it led to the legal issues that occurred.  When faced with the decision/choice, they have often said to themselves words to the effect of “no, I’ve got this . . .” or state “really, how difficult can this be.”   Oftentimes, they have taken self-help steps to answer their question (or confirm their decision), but they actually have located incomplete or incorrect information.   Consequently, problems develop.

“How does a company, its leadership, and ownership not see these landmines and issues before they occur?” has often been a question I have asked.   While researching another issue, I came across a research study that may explain this mental roadblock.   It is called the Dunning-Kruger Effect.

The Dunning-Kruger Effect is named after two psychologists who chose to examine why individuals make obviously bad decisions believing they are correct.   Their initial question originated as a result of a news article of a local man who decided to rob a bank.   Having learned that lemon juice can be used as an invisible ink, the robber smeared his face with the substance believing that it would make his facial features unrecognizable or invisible.   Because of this assumption, he made no effort to disguise his face beyond the lemon juice and was quickly caught by law enforcement.   The robber expressed sincere surprise and a complete lack of understanding as to why his plan did not work.

Dunning-Kruger decided to research why individuals make obviously bad decisions, but are completely unaware that they are doing so.   They concluded that individuals who are unskilled, not fully educated, or ignorant of certain matters often suffer from an illusion of superiority believing that their abilities are much greater than in reality.  In basic terms, a little bit of knowledge can be bad because individuals have the tendency (with a little bit of information) to extrapolate that they have more knowledge than they actually possess and, as a result, make bad decisions of which they are completely unaware with disastrous results.

Dunning-Kruger proposed that, for a certain skill or knowledge set, “incompetent” people will:

  1. Fail to recognize their own lack of knowledge or skill;
  2. Fail to recognize the extent of their inadequacy;
  3. Fail to recognize the genuine knowledge or skill in others;
  4. Only recognize and acknowledge their own lack of knowledge or skill when educated otherwise.

This is often the perspective that business leadership and ownership will display.   Business leaders, corporate owners and entrepreneurs have a sense of independence, which sometimes serves them well.   However, this independent streak can lead to an overconfidence in areas where they lack the appropriate skills or knowledge to make an informed decision.   This overconfidence leads to decisions and directions that should have never been taken.

In addition, this overconfidence and lack of complete or accurate information results in their failure to take the advice of others, such as legal counsel, who would be able to properly inform them of their situation and provide advice to avoid the problem.  Instead, the “I’ve got this” or “why should we pay for an attorney for advice when we already know our answer” attitude occurs.    Unfortunately, these businesses only realize their own lack of knowledge after the fact, when a problem has occurred, damage is already done, and they are embroiled in serious legal issues.

In order to prevent the Dunning-Krueger Effect from taking hold of a company’s decision process, businesspeople need to have a team of trusted individuals in place in order to keep them properly educated and informed.   Finding these key individuals, whose only purpose is to help you succeed, are essential for the long-term success of a business.   From my observations and experience, I would recommend four key individuals to become part of the success of your business.   They are:

  1. A Business Attorney or Law Firm
  2. A Business Accountant
  3. A Financial Planner with Business Clients
  4. An Experienced Mentor or Business Coach

Locating and utilizing these individuals who are able to provide answers, advice, and assistance with knowledge, practical experience, and different perspectives will help avoid bad decisions caused by lack of knowledge and overconfidence.    These are also individuals whose purpose is to help a business succeed and have no ulterior motives to the contrary.

Those who own and lead businesses need to accept that they do not know everything.   A quote by philosopher Bertrand Russell highlights this approach.  “One of the painful things about our time is that those who feel certainty are stupid and those with any imagination and understanding are filled with doubt and indecision.”  Every successful business owner/leader acknowledges that they are not omniscient and that they need to utilize the wisdom of others to supply critical knowledge and advice.   Understanding the areas where a business owner or leader has a genuine lack of knowledge or skill and has in place those who can provide this knowledge and skill with which they lack, can lead to a more successful and sustainable business.

©2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website has been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Just Keep Pedaling

 

Recently my wife and I purchased bicycles for our two young children.   If you can recall your own experience with learning to use a bicycle, or remember attempting to teach your own children, this can be a very daunting task for everyone involved.   The fear of falling and being injured is ever-present in the children’s young minds. It is hard to combat a sometimes instinctual desire not to peddle and the want to move forward when your feet are not actually touching the ground.   Instead, young children want to stop, drop the bike onto the ground and walk away in frustration.   After several attempts to coax a child to learn, some parents can feel the same way.

With my past experience with bicycles, I was tasked with the responsibility of teaching my children. As I went through the recent experience with them, the primary statement I kept repeating to them as they learned to ride was “don’t worry, just keep pedaling.” Most issues with learning to ride a bicycle can be resolved by following this simple first rule.

The first concept that new bicycle riders need to discover is how to balance.   You will notice that it is difficult, even as an adult, to balance a bicycle on two wheels without any movement.   It usually takes an adult practicing for a significant period of time, standing on top of the pedals, in order to accomplish this goal. For a child, balancing without any movement is almost impossible.   Instead, the ability to balance on two wheels is achieved by the bike utilizing its forward momentum. In basic terms, forward momentum (even at a low rate of speed) allows the rider to maintain balance on a bicycle with little effort.   In fact, you will notice experienced bicyclists can maintain their balance, and even turn wide corners, without their hands on the handlebars because they are pedaling at a steady rate and moving forward.

This is where my mantra of “just keep pedaling” comes into play.   Most issues and the concerns of falling down can be resolved by forward momentum.   In fact, the odds decrease that you will lose your balance and fall down. Essentially, forward momentum allows a rider to have more control—not less.

Once children internalize this concept and overcome their initial fear of moving forward, it becomes instinctual to them. It becomes so instinctual, that once someone learns to ride a bicycle, no matter how many years have passed between experiences on a bicycle, they can still operate one. You then often hear the term “it is like riding a bike” to describe how easy an action is to repeat once it is learned.

Creating, running, and maintaining a successful business are similar concepts to learning to ride a bicycle. At first, it is a daunting proposition. As such, some businesspeople will hesitate to move forward. Nevertheless, your and the business’s ability to succeed now (and to continue to succeed) will be based on forward momentum. A business, its owners, and those others responsible for its success need to “just keep pedaling.”

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Failure to provide forward momentum (even in small increments) leads a business to essentially lose its balance and “fall.”   A loss of balance leads to a decrease in competitiveness and the overall ability for a business to succeed. As often stated by business or success coaches “if you are not moving forward, you are moving backward.” A business that does not “just keep pedaling” is allowing competitors to overtake them as they sit on the side of the road.

Just as a young child learning to ride a bicycle can become paralyzed with a fear of falling, a business can become paralyzed as well.   As outlined in a previous post, found HERE, the fear of failure can lead to a business culture of paralysis where decisions are slowly, if ever, made.   As an alternative, a “just keep pedaling” culture allows for continued movement toward a destination or goal.   Mistakes may happen, but forward momentum provides a better opportunity to quickly recover to continue moving forward.

At the beginning of a new year, begin it with a “just keep pedaling” attitude. This mindset will certainly propel a business closer to success and nearer to reaching its goals than sitting at the side of the road waiting for the optimal conditions and the ability to balance without movement.

©2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website has been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Building Codes: A Primer for Contractors and Owners in Arizona

Part 3. The Defense or use of Estoppel

And Requirement to Exhaust Administrative Remedies

In the second blog post on this subject found HERE, I highlighted the vested rights doctrine and its utilization by Arizona courts when a dispute occurs.   The vested rights doctrine is based on the concept of estoppel, which will be discussed in greater detail in this post. You can find part one of my series on Building codes HERE.

In order to avoid the overuse of both the vested rights doctrine and estoppel, the courts often require the claimant to be able to prove that it has fully complied with the all of the potential administrative remedies before allowing their claim(s) to proceed.   These procedural requirements must be complied with before the claimant can argue whether these claims and defenses are viable.

The Doctrine of Estoppel

  • Estoppel is an equitable doctrine used as a defense in contract disputes. It is a legal term that is unique in its wording, but the definition is relatively easy to explain. Estoppel occurs in circumstances where one party detrimentally relied upon a misrepresentation by the other party to the contract or its representative, which led to damages.   In addition, Estoppel also refers to conduct inconsistent with a later adopted position, and which conduct induces somebody to act to their detriment.[1]
  • Estoppel, in the context of building codes, often occurs when an owner or developer is provided assurances by a government entity that it then relies upon to its detriment. If estoppel is found, the government entity which provided these assurances is prevented from taking action contradictory to the original assurances given. For example, a property owner, who had been provided approval for its zoning or other variances for expansion of his residence and detrimentally relies on these approvals, which are later revoked, may be able to rely on estoppel to stop revocation of these approvals because the owner relied on a statement by the government to his or her detriment.

However, it should be remembered that a municipality generally cannot be estopped from enforcing its building code.[2] Estoppel is generally not applicable against a state or government entity except in circumstances where the legal system has determined “the government’s wrong conduct threatens to work a serious injustice and if the public interest would be duly damaged by the imposition of estoppel.” A municipality may be estopped only “when its ‘wrongful conduct threatens to work a serious injustice and … the public interest would not be unduly damaged.’”[3] Therefore, courts will often allow municipalities substantial leeway in how its employees conduct business.[4]

In addition, the government will generally not be estopped by “the casual acts, advice or instructions issued by nonsupervisory employees.”[5] Instead, a party asserting estoppel must show that supervisory employees articulated a position, acted contrary to that position, and that a serious injustice would occur if the government is not held to the assertions made. Essentially, estoppel can be invoked successfully only when the government’s actions constitute “affirmative misconduct.”[6]

  • In order to find estoppel, Arizona courts will examine the administrative decision by the government entity and determine whether the decision made was arbitrary, capricious, or an abuse of discretion.[7] Often, estoppel has been recognized as the foundation of the vested right doctrine and inferred under most circumstances when it is invoked.[8]
  • An example of this analysis is seen in Rivera v. City of Phoenix discussed in a prior post on this subject. In Rivera, the homeowners had also argued that estoppel was triggered because the City revoked the permit even though the homeowners had relied upon the prior approval to their detriment, construction had already begun, the project had been mostly completed, and the homeowners would be damaged by a permit revocation at this time. The Rivera Court rejected the homeowner’s argument emphasizing that there was no proof by the homeowner that there was any arbitrary and capricious conduct by the City.[9] In addition, the homeowners could not invoke estoppel when the basis for the “wrongful conduct” alleged was because of the erroneous plan submitted by them.[10]

Exhaustion of Administrative Remedies

No matter what circumstances may occur and whether or not the owner/developer may have several potential defenses and vested rights, it is important to make certain that all appropriate administrative remedies have been exhausted before proceeding with litigation.   An exhaustion of administrative remedies is a well-known principal of law that states that a party must exhaust its administrative remedies before appealing to the legal system. Courts have established their authority to limit the cases for which they take jurisdiction by rules of ripeness, mootness, and standing. Similar is the rule that requires an exhaustion of all available administrative remedies prior to seeking judicial review of an administrative order.[11] Arizona has long recognized this doctrine and a rule of judicial administration.[12] It often becomes apparent in a circumstance where the party must first go through various zoning boards, committees, or even to the city council before it can file a court proceeding.

Exhaustion of Administrative Remedies is often seen when an owner or developer may have significant evidence of vested rights, but fails to submit this issue directly to the appropriate government agencies before litigation is initiated. The doctrine of exhaustion of administrative remedies applies where a claim is recognizable in the first instance by the administrative agency alone; in such cases the judicial interpretation is withheld until the administrative process has run its course.[13] One of the best sources of whether this doctrine may apply to your situation is to investigate if the legislature, city council, or other governing body, through statute, ordinance or regulation, has established an administrative review process and provides criteria as to when a judicial review becomes available.[14] When an administrative entity is empowered to act by the State Legislature or city ordinance, the administrative procedure and hearings should be completed before a judicial review can occur. Failure to follow the appropriate guidelines could lead to the court declining jurisdiction and preventing a review of a decision—even if a valid claim or defense may exist.

The Gulf Leisure opinion discussed in a previous post also addressed this issue and illustrates possible exceptions to this rule. One of the arguments presented by the Town of Paradise Valley was that the trial court had erred in even deciding the case for the developers because the developers had not exhausted all the administrative remedies at their disposal before filing suit.[15] The Gulf Leisure Court recognized the long-settled Arizona rule of exhaustion of administrative remedies, but it also highlighted that the goal of exhaustion of administrative remedies was only to provide an administrative body a full opportunity to reexamine and restudy the matter.[16] Therefore, an exception to this rule is granted when the administrative review procedure is nonexistent or where it would be futile or useless to invoke the administrative process. The Gulf Leisure Court determined that the facts indicated that there was no established review procedure for final council matters involving the Town of Paradise Valley. What is more important, the Court emphasized is that the exhaustion of administrative remedies did not require re-application to the same council multiple times for alternative forms of relief in order to cover every possible scenario that may involve administrative review. Therefore, the Court rejected the Town’s argument.

Conclusion

  • The modern system that governs the rules and procedures through which permits are issued for building and other property improvement projects can be a challenging web of intersecting rules, codes, guidelines, and requirements. Seeing a project through to completion is a challenging and sometimes lengthy process. An owner, developer, contractor, and architect should be mindful of the following considerations to help keep a project on track and avoid potential legal pitfalls.
  • Complete all permit requests and other paperwork with truthful and accurate information.
  • If a variance from a code or other regulation is necessary, make sure that the variance request is adequately descriptive to ensure that the governmental authorities can reach a proper determination from the information provided to them.
  • Avoid situations which would open the door for the government entity to readdress a given variance and possibly revoke a previously approved exception.
  • Keep all documentation showing that the owner or developer has established vested rights, and utilize this doctrine as a defense against behavior by a government or administrative agency that may be deemed arbitrary and capricious.
  • Examine whether the government entity and its representatives provided assurances that were to the detriment of your client.
    • Always remember to claim vested rights early in the administrative process. Do not give the ability to the opposing party to argue that vested rights have been waived.
    • Make certain that you exhaust all appropriate administrative remedies before engaging the court system.
    • Do not become caught in the minutia of government decision-making by producing duplicate requests to address an issue that has already been adjudicated on the administrative level.
  • These guidelines will help to make the process of completing a building or other property improvement project reach completion with fewer setbacks.   In addition, it will provide the information and evidence necessary if you must navigate the administrative and legal process in order to achieve the desired outcome for your project.

[1] Thomas and King, Inc., v. City of Phoenix, 208 Ariz. 203, 210, 92 P.3d 429, 436 (Ariz. App. 2004).

[2] National Advertising Co. v. Arizona Department of Transportation, 126 Ariz. 542, 617 P.2d 50 (Ariz. App. 1980).

[3] Valencia Energy Co. v. Arizona Department of Revenue, 191 Ariz. 565, 959 P.2d 1256 (1998).

[4] Id.

[5] Id. The argument that an individual on the telephone or at the front counter provided the information relied upon will not be enough to find estoppel occurred.

[6] Rivera v. City of Phoenix, 186 Ariz. at 604.

[7] See generally, Blake v. City of Phoenix, 157 Ariz. 93, 96, 754 P.2d 1368, 1371 (Ariz. Ct. App. 1988); citing Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 678 P.2d 517 (Ariz. Ct. App. 1983).

[8] Town of Paradise Valley v. Gulf Leisure Corporation, 557 P.2d at 540.

[9] Id.; citing Freightways, Inc. v. Arizona Corp. Commission, 129 Ariz. 245, 248, 630 P.2d 541, 544 (1981); Carlson v. Arizona Department of Economic Security, 184 Ariz. 4, 6, 906 P.2d 61, 63 (Ariz. Ct. App. 1995).

[10] Id.

[11] Minor v. Cochise County, 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980).

[12] Id.

[13] Id. at 173; citing United States v. Western Pacific R.R. Co., 352 U.S. 59, 63-64 (1956).

[14] See Southwest Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442, 36 P.3d 1208, 1212 (Ariz. Ct. App. 2001); citing Minor, 125 Ariz. at 172, 608 P.2d at 311.

[15] 557 P.2d at 541.

[16] Id. at 542; citing Pima Mining Co. v. Industrial Commission, 11 Ariz. App. 480, 482, 466 P.2d 31, 33 (Ariz. Ct. App. 1970).

© 2015 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website has been prepared by Harrison Law, PLLC. for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Building Codes: A Primer for Contractors and Owners in Arizona

Part 2. The Vested Rights Doctrine

In the first blog post, found HERE, I highlighted that errors in judgment are bound to happen.   The question for owners and builders then becomes who is responsible when these errors occur?     Who is ultimately responsible may involve whether a construction project is financially viable or not. As usually happens in disputes where a government entity revoked a permit issued in error, Arizona Courts will heavily rely on the vested rights doctrine, which will be discussed in detail in this post.

The Vested Rights Doctrine

The vested rights doctrine is often utilized by a developer or owner of improvements as the primary defense against a government entity revoking a permit or not permitting a variance in the code. As a basic definition, vested rights are triggered when a building or special use permit is legitimately issued by the appropriate government entity and the permittee (i.e., an owner or developer), in reliance on that permit, incurs considerable expenses. The right to continue construction becomes a vested property right that a government entity cannot revoke without good cause or proof that a public necessity exists that justifies a revocation.[1]

Although the idea of vested rights has been used to protect property owners, one should remember that it is not a guarantee of success. Courts have been reluctant to extend this doctrine Per court opinions, vested rights are evaluated on a case-by-case, fact-intensive basis, each taking into account what would be the appropriate decision in light of the facts while balancing what the Court considers to be the will of the public on the issue. Since the vested rights doctrine is examined in almost every court case involving building codes, permits, and actions by government entities, additional examination of this doctrine with individual case examples will help to explain this doctrine in greater detail.

The Arizona opinion often cited by the courts involving vested rights doctrine and other property rights is Town of Paradise Valley v. Gulf Leisure Corporation.[2] In Gulf Leisure, an investment group obtained and was issued a special use permit authorizing development of a property as a resort.[3] The investment group then spent considerable amounts of money both planning and developing the resort. However, because of a downturn in the economy and issues between members of the investment group, construction proceeded more slowly than expected, and extensions in the permits were pursued in order to complete the project.[4] After legal and political wrangling between the Town and other individuals, the Town of Paradise Valley decided not to extend the development group’s permits, essentially halting the project.

The Gulf Leisure Court examined the Town’s decision and initially determined that the actions taken by the Town were both arbitrary and capricious.[5] In addition to this determination of the actions by the Town, the Court also examined whether or not vested rights had accrued. The Court concluded that they had.[6] The Gulf Leisure Court highlighted that there was definitive proof that the company had spent considerable funds in order to prepare the property for the development. The Court emphasized that the general rule concerning vested rights is that any substantial change of position, expenditures, or occurrences of obligations under a building permit entitles the permittee to complete the construction and use the premises for the purpose it was originally authorized–irrespective of the subsequent changes in zoning.[7] Since these changes were consistent with the initial permits issued and had only been revoked after the time had expired, the Gulf Leisure Court ruled that vested rights had occurred and the developers could continue developing their project.[8]

The Gulf Leisure opinion became the foundation for subsequent court decisions illustrating a few of the nuances within the vested rights doctrine. Some examples of these distinctions are summarized below.

Burroughs v. Town of Paradise Valley.[9] A landowner inherited a parcel of land that, at the time of purchase in the 1950’s, was located in an unincorporated area by the Town of Paradise Valley. The new owner wished to use the also inherited plans designed by Frank Lloyd Wright, created shortly before the architect’s death, to build a home on the property. However, in the decades since the property and home design were obtained, various Town zoning, planning, and other ordinances prevented the landowner from completing the Frank Lloyd Wright design. Several years later, the proposed design was also rejected by the Town’s Board of Adjustment for code violations and subsequently enacted building regulations.[10] The landowner claimed, citing Gulf Leisure, a vested right to build on the property as originally designed by Frank Lloyd Wright.

The Burroughs Court determined that the landowner did not have a vested right to build as originally designed. The original landowners who had acquired the Frank Lloyd Wright design had never taken the crucial step of obtaining a building permit (nor was an application for one ever filed) during the years the property was on unincorporated land before the new government regulations were enacted. Since a key prerequisite of establishing a vested right is proof of prior issuance of a permit, the landowners could not claim that protection.[11] In addition, the landowner could not prove that she had expended money on the reliance of a building permit. The improvements of the property (leveling of a hill and adding basic utilities) were expended by the previous owner, along with the money paid for the Frank Lloyd Wright design, had not been incurred in reliance of receiving a building permit.[12]

Neil v. City of Kingman.[13] In Neil, the Zoning Administrator for the City of Kingman found that a highway sign advertising a McDonald’s restaurant did not comply with local codes and ordinances and ordered the sign removed. The owner appealed the decision to the Kingman Board of Adjustment, which affirmed the original determination. The owner filed a special action with the Mohave County Superior Court, which determined that the sign did not comply with the local codes, but also independently held that the owner had a vested right to maintain the sign as erected. The Court of Appeals affirmed the trial court’s decision, which was appealed to the Arizona Supreme Court.[14]

In its review of the dispute, the Arizona Supreme Court focused its attention on the establishment of a vested right for the owner to keep the sign and noted that the issue of vested rights was never raised by the owner before the City of Kingman Board of Adjustments.[15] The Neil Court emphasized the legal concept of waiver and the previous precedent that a failure to raise an issue at an administrative hearing that the administrative tribunal is competent to hear waives that issue.[16] Since the owner had failed to assert a vested rights issue in his notice of appeal to the Board or Superior Court, the owner had waived the issue, the trial court should have solely examined the questions of abuse of discretion of the Board, and did not have the authority to raise the vested rights issue.[17]

It should also be remembered that a municipality is free to enact an ordinance that terminates a vested right if the rights are abandoned or there is a cessation of the nonconforming use for a specified period of time. Often times, the building code contains provisions whereby building permits expire if construction ceases or is abandoned for more than 180 days absent an extension by the municipality. In these circumstances, the code often makes it possible for a vested right to be lost over time.

      As an example, loss of vested rights situation arose in City of Glendale v. Aldabbagh,[18] In that case, a business owner lost a preexisting right to a nonconforming use because the business had been shut down by court order for more than one year as a result of separate liquor law violations. The City had an ordinance stating that if a nonconforming use terminated for one year, the vested right to the nonconforming use was lost. The Aldabbagh court held that abandonment of a nonconforming use requires a subjective intent by the owner to give up the nonconforming use.[19] However, the court ruled that an ordinance stating that a “cessation” of use did not require an intent to abandon. The Court ruled that:

[a] nonconforming use may be lost through negligence or inadvertence. A use may also be lost if a person engages in civil or criminal misconduct that the property owner knows or should know could lead to involuntary closure and indeed does lead to closure.[20]

Therefore, in order to preserve a right to a non-conforming use, the owner/developer will want to make certain that other actions do not either interfere with the right or act as a waiver.

            As outlined in the cases above, the use of the vested rights doctrine may be the best course of action when loss of a permit stops construction prior to project completion.   However, it will involve a fact intensive analysis.   As such, the owner, contractor or developer will want to constantly document what has occurred during the construction and permitting process and, if a dispute develops, make certain that no actions are taken that may waive the right to assert this doctrine.   The foundation of the vested rights doctrine, the concept of estoppel, will be discussed in a future post.

[1] Rivera, 186 Ariz. at 602; citing Town of Paradise Valley v. Gulf Leisure Corp., 27 Ariz. App. 600, 608, 557 P.2d 532, 540 (Ariz. Ct. App. 1976); Phoenix City Counsel v. Canyon Ford, Inc., 12 Ariz. App. 595, 599-600, 473 P.2d 797, 801-02 (Ariz. Ct. App. 1970).

[2] 27 Ariz. App. 600, 557 P.2d 532 (1976).

[3] Id. at 535.

[4] Id. at 536-38.

[5] Id. at 539-40.

[6] Id. at 540.

[7] Id. at 540-41.

[8] Id. at 541-43.

[9] 150 Ariz. 570, 724 P.2d 1239 (Ariz. Ct. App. 1986).

[10] Id. at 571.

[11] Id. at 571.

[12] Id. at 572.

[13] 169 Ariz. 133, 817 P.2d 937 (Ariz. 1991).

[14] Id. at 133-34.

[15] Id. at 136.

[16] Id. at 136-37; citing Rouse v. Scottsdale Unified School Dist., 156 Ariz. 369, 371, 752 P.2d 22, 24 (Ariz. Ct. App. 1987); De Groot v. Arizona Racing Commission, 141 Ariz. 331, 340, 686 P.2d 22, 24 (Ariz. Ct. App. 1987); Calixto v. Industrial Commission, 126 Ariz. 400, 402, 616 P.2d 75, 77 (Ariz. Ct. App. 1980).

[17] Id. at 137; citing, City of Phoenix v. Superior Court, 110 Ariz. 155, 158, 515 P.2d 1175, 1178 (1973); Sevilla v. Sweat, 9 Ariz. App. 183, 185-86, 450 P.2d 424, 426-27 (Ariz. Ct. App. 1969).

[18] 189 Ariz. 140, 939 P.2d 418 (1997).

[19] Id. at 142, 189 Ariz. At 420.

[20] Id. at 144, 939 P.2d at 422.

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