Posted by: Patricia Salkin | October 2, 2008

Equitable Estoppel Does Not Prevent Governmental Entity From Enforcing Zoning Where it Previously Improperly Permitted Development

The Kentucky Supreme Court held that although the planning commission previously improperly permitted development of a subdivision in a manner not consistent with the then applicable zoning statutes and regulations, this prior act does not equitably estop the government from denying further development. 


The development at issue began in the 1960s with a preliminary subdivision approval for 122 one-acre lots.  At the time, the regulations in effect required that the final subdivision plat be filed within 18 months.  Although final plats were timely submitted for 40 of the lots, the preliminary approval on the remaining 82 expired 18 months after the preliminary approval, but the commission re-approved the preliminary plat and another 19 lots were approved.  Over the course of the next 29 years, and well after the second 18 month expiration, 34 additional lots were approved absent a re-approved preliminary plat. In 2002, the owner applied for a preliminary subdivision for the remaining 59 acres, none of which had been improved. The commission denied the request on the following grounds: the original preliminary plan, re-approved in 1966 had long expired and was not eligible for re-approval or extension; the property has since been rezoned and now instead of one-acre minimum lots the law requires 40-acre minimum lots; the lots failed to meet the setback requirements now in effect; and the lots did not qualify for septic tanks which require a minimum of 10-acres per lot.  


On appeal, the owner argued that the commission was estopped from denying the request for re-approval of the preliminary subdivision plan because of prior approvals given in the last 39 years, and because these prior approvals amounted to a vesting of property rights. Both the Circuit Court and the Court of Appeals denied the property owner’s claims.


The Supreme Court affirmed, providing a good explanation of the difference between preliminary plat approval and final plat approval.  The Court explained “a preliminary plat is a tentative plan which the developer submits to the planning commission for review and acceptance…When both parties agree on all the specifications, reservations, conditions, etc., then there exists a blueprint for a final plat.” Further, the Court noted, “Only when the plat becomes final are the parties’ rights and expectations fixed.  Until a plat becomes final, it cannot be recorded and lots cannot be sold.”  The Court continued that today, since the owner’s proposed development of one-acre lots does not conform to the current zoning, the commission cannot approve it. 


With respect to the argument that prior approvals that did not comply with the law amount to equitable estoppel against the government from so enforcing the new regulations now, the Court said that this doctrine can only be employed in exceptional and extraordinary circumstances not present here. Specifically, the Court reviewed the trial court’s findings that the nearly four-decade delay in developing portions of the development “created a foreseeable possibility that zoning regulations, applicable government personnel and the attitudes of same would change.” The trial court also noted that the owner did not suffer a detrimental reliance because the slow pace of development was directly attributable to his (in)actions. Lastly, the Court commented that the trial court had correctly concluded that “past improper approval of lots cannot bind the current Commission to ratify an unauthorized act.” Therefore, in upholding the decisions below, the Supreme Court said that the decision to deny the remaining subdivision plan was not arbitrary and it was supported by substantial evidence. Further, the Court agreed “that a current government official is not duty bound to continue improper acts of predecessors.”


Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government, 2008 WL 4286502 (KY 9/18/2008).








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