At a zoning hearing Wednesday afternoon, attorneys for AAA argued that the group, formerly known as the American Automobile Association, has vested rights in a property at Columbus Boulevard and Tasker Street in Pennsport, where it plans to build a small-office and light-auto-repair facility. The 1.15-acre property lies on the east side of Columbus, within the Central Delaware Overlay, a set of zoning rules meant to guide the development of the waterfront.
What are vested rights, and why did it come to this?
The doctrine of vested rights prevents the law from taking away someone's right to their property after they've invested in it legally. So if City Council were suddenly to decide to reinstate and codify the old gentleman's agreement that prevented buildings from rising above William Penn's hat at City Hall, the doctrine of vested rights would protect Comcast from having to tear down its headquarters. Similarly, old buildings that don't conform to current zoning standards are "grandfathered in" as nonconforming uses.
AAA's case is a bit more complicated, and it hinges on the legality of the zoning permit issued to the group by the Deptartment of Licenses & Inspections.
On June 4, 2013, AAA applied for a zoning permit to develop its project on the property at 1601 S. Christopher Columbus Boulevard, which is owned by a separate entity. On June 5, a new zoning overlay went into effect that prevents auto-related uses from being built on the Central Delaware.
Then, in January of this year, L&I issued the zoning permit. But it turns out that AAA hadn't met all the requirements for the permit even under the old zoning overlay. (Under the old overlay, the plan would have required a Plan of Development (POD) review by the full Planning Commission.) On Jan. 31, Pennsport Civic Association filed an appeal of the permit. On Feb. 28, L&I sent AAA a letter saying it intended to revoke the permit, which it did shortly thereafter.
In the meantime, the owner of the property had already demolished the existing buildings, and AAA had begun construction, its representatives testified, on Feb. 2. Subsequently, AAA did go through the Plan of Development process at the Planning Commission, and the case may have been moot if the Commission had approved it; they did not.
So now the question is: Were those weeks of work between the beginning of January and the end of February enough to give AAA vested rights in the property?
Andrew Ross, representing L&I and the Planning Commission, argued that AAA failed to meet a few of the legal standards, established through case law, for acquiring vested rights. One of those requirements is spending money on the property — no one argues that they did that.
But Ross said that the group hadn't done its due diligence in understanding the requirements of the code — particularly the Plan of Development review — prior to submitting the zoning application. He also argued that AAA was acting at its own risk by starting the demolition work before the 30-day appeal period from the issuance of the permit had expired. (Technically, it was the owners of the property who did the demolition work, but there was a requirement in the 10-year lease with AAA that they complete the demolition after the zoning permits were issued.)
Carl Primavera, representing AAA, said that a series of mistakes had been made but that AAA's investment in the property, and its 10-year ground lease with the owner, represent clear, vested rights. He likened the whole affair to a comedy of errors that had turned tragic.
"There are no villains here," Primavera said. "Only good people. Only God is perfect."
The bigger question: Now what? Hard to say. The Zoning Board didn't make a ruling on Wednesday, and AAA has appealed the Planning Commission's denial of its POD in May to the Court of Common Pleas.