20071184 Ver 1_Vested Rights Inquiry_20080820

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State of North Carolina
ROY COOPER
ATTORNEY GENERAL
Department of Justice
PO Box 629
Raleigh, North Carolina
27602
August 20, 2008
Ms. Cyndi Karoly
Division of Water Quality
Wetlands/401 Certification Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Re: Pieper Property 105 Symphony Court, Cary NC
DWQ # 07-0105
07-1184 V2
Neuse Riparian Buffer Rule,
Vested Rights Inquiry
Dear Cyndi:
Reply to:
Donald W. Laton
Environmental Division
Tel: [phone]
Fax: [phone]
I have completed reviewing the materials that you provided along with your request for
advice on the existence of vested rights by Mr. & Mrs. Chris M. Pieper. The project reviewed
involves the property at 105 Symphony Court, Cary North Carolina. As you know the concept
of common law vested rights has been extended to regulations such as the Neuse River Buffer
Rule, 15A NCAC 2B.0233. (See 1998 N.C. Sess. Laws 221.) The common law criteria for
vested rights are:(1) Substantial expenditures or contractual obligations incidental to the project
incurred prior to the change in the law;(2)Expenditures or obligations incurred in good faith;
(3)Expenditures or obligations made in reasonable reliance upon governmental permits or
approvals; and,(4) Detriment as a result of the amendment to the law. Browning-Ferris
Industries v. Guilford County Board of Adjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997).
Although the cited case and others defining vested rights are usually zoning ordinance cases, the
factors can be applied to consideration of the applicability of an agency's rules.
The information submitted by the Piepers indicates that their property is within a
residential development according to a plat recorded on June 2, 1989 - - before the effective
date of the Neuse Buffer Rule (July 22, 1997). The information submitted also indicates that the
Department of Environment, Health and Natural Resources (DEHNR) issued a Wastewater
Collection Permit (No. WQ0002432) to the Town of Cary on October 25, 1989 to serve the
residential subdivision which includes the Piepers' property. Although the Piepers purchased the
Pieper Property
August 20, 2008
Page 2
property on or about June 10, 2002, their information indicates that they paid the fair market
value for a residential lot and acted in good faith to acquire a buildable residential lot as
previously platted and approved.
In my opinion, the four common law vested rights requirements. have been met
by the Piepers. The development of the subdivision presumably involved substantial
expenditures and contractual obligations by the developer, a predecessor in title of the Piepers.
The issuance of the above-referenced permit by DEHNR is a type of government permitting
decision upon which expenditures or obligations were reasonably made. Imposition of the
Neuse Buffer Rule in this situation would amount to a detriment to the Piepers. My advice to
you is that a vested right exists in this circumstance and that imposition of the Neuse Buffer Rule
may be waived. This letter is not an opinion as to whether or not the current proposal is within
the conditions of any existing 404 Certification issued by the U.S. Army Corps of Engineers or
whether a further certification by it would be required.
Thank you for your attention to this matter.
Sincerely,
Do ald . Laton
Assistant Attorney General
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