Zoning Estoppel

“Estoppel” is a legal term that simply means “to stop.” It is used in a variety of contexts to “estop” (or stop) an action when it would be unfair to allow the action to continue. The purpose of Zoning Estoppel is to stop government agencies from taking actions affecting land use when it would be unfair or unjust to allow the action to continue.

“Zoning Estoppel” stops local government from changing its position concerning a land development decision when a property owner has relied upon the government’s position, and if it would be unfair to allow the government to change its position.

The zoning authority must commit an act that a property owner relies upon to make a substantial change in position or incur extensive expenses. The zoning authority may be estopped from enforcing its zoning ordinances if doing so would be unjust or unfair, because the property owner relied upon the act.

The “action” by a zoning authority may be representation made by the authority that a particular development or land use is allowed. The representation must be clear and definite, and made on behalf of the authority itself, not by an employee or even an official within the authority.

Failure to act (or an “omission”) is considered a representation only when the authority had a duty to act, but failed to do so. Silence or inaction alone will not suffice.

In general, statements by employees, zoning officials, or members of planning boards, particularly personal opinions, are not sufficient to constitute an “action” or “representation” by a zoning authority. The representation must be that of the authority, not individuals associated with it.

The action by the zoning authority and the reliance by the property owner are interrelated. The property owner’s reliance must be reasonable, considering the nature of the action or representation made. If it is reasonable for a person to rely upon the representation, then estoppel may be possible. On the other hand, if the representation does not clearly indicate that a land use or development is allowed, then reliance is not reasonable.

It is also necessary that the reliance be “in good faith,” meaning that a property owner has an obligation to inquire about a proposed land development or use. Also, if the property owner knows that the representation is wrong or incomplete, reliance is not in good faith. Finally, if the use or development requires specific approval (like a conditional use permit or a subdivision plat), making substantial changes without obtaining those approvals would not be good faith reliance.

A significant investment towards establishing a use or beginning a development would be a substantial change. However, simply purchasing property is not sufficient, nor is work that is “general” to property use (such as clearing vegetation), because those investments, even if substantial, could lead to any use. Thus, the “substantial” change must directly relate to establishing the particular land use that the zoning authority represents as allowable.

No. Estoppel occurs only under “extraordinary circumstances,” when necessary to prevent injustice. Government employees and officials can make mistakes, but those mistakes rarely lead to a successful estoppel claim. Property owners are obligated to inquire about land use regulations, and to follow the development approval process, which helps eliminate mistakes and oversights.

The attorneys at the Office of the Property Rights Ombudsman can assist property owners facing this issue. Zoning Estoppel is a very complicated subject, involving many legal nuances depending upon each specific situation. Please contact us at (801) 530-6391.

Morrison v. Horne (1961) - Mistaken characterization does not establish zoning estoppel.

Salt Lake County v. Kartchner (1976) - Failure to enforce zoning for a time does not forfeit the power to enforce.

Utah County v. Young (1980) - Mere silence or inaction will not operate to work an estoppel.

Utah County v. Baxter (1981) - Zoning estoppel only available in extraordinary circumstances, such as the intentional discriminatory application of the ordinance.

Xanthos v. Salt Lake City Board of Adjustment (1984) - Estoppel may not be used as a defense by a person who has acted in bad faith, fraudulently or with knowledge.

Stucker v. Summit County (1994) - Something beyond mere ownership of the land is required before estoppel will apply.

Grand County v. Rogers (2002) - The mere act of accepting conveyance instruments for recording purposes does not reasonably justify a belief by a developer that the county intends to forego its right to enforce the land use code.