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A. Applicability

1. This section applies to any Nonconforming Project. A "Nonconforming Project" is any structure, development or undertaking that is incomplete on the effective date of this ordinance, and would be inconsistent with one (1) or more of the regulations applicable to the zoning district in which it is located if completed as proposed or planned.

2. This section implements KSA 12-764 and the common law on vested rights. To the extent that the caselaw or the version of KSA 12-764 in effect on the date of any application, construction or development activity is inconsistent with this section, the provisions of the caselaw or KSA 12-764 apply.

B. Generally

1. All nonconforming projects (except as provided in subsections H and G of this section) on which construction was begun, may be completed in accordance with the terms of their permits if:

a. The nonconforming project –

(1) Is authorized by a building permit that was issued at least one hundred eighty (180) days before the effective date of this ordinance, or

(2) the nonconforming projects is at least ten (10) percent completed in terms of the total expected cost of the project on the effective date of this ordinance, and

b. the permits under which the nonconforming project is proceeding were:

(1) validly issued and

(2) remain unrevoked and unexpired, and

c. The Planning Official issues a vested rights permit.

2. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

C. Vested Rights Permit

1. Except as provided in subsection H, all work on any nonconforming projects shall cease on the effective date of this ordinance, and all permits previously issued for work on nonconforming projects may begin or may be continued only pursuant to a vested rights permit issued in accordance with this section by the Planning Official.

2. The Planning Official shall approve a vested rights permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his or her position in some substantial way in reasonable reliance on the development regulations as they existed before the effective date of this ordinance and thereby would be unreasonably prejudiced if not allowed to complete its project as proposed. In considering whether these findings may be made, the Planning Official shall be guided by the following, as well as other relevant considerations:

a. All expenditures made to obtain a validly issued and unrevoked building, land use or sign permit shall be considered as evidence of reasonable reliance on the development regulations that existed before the effective date of this ordinance.

b. Except as otherwise provided in subsection “a.” above, no expenditures made more than one hundred eighty (180) days before the effective date of this ordinance may be considered as evidence of reasonable reliance on the development regulations that existed before the effective date of this ordinance. An expenditure is made at the time a person incurs a binding obligation to make that expenditure.

c. To the extent that expenditures are recoverable with a reasonable effort, a person shall not be considered prejudiced by having made those expenditures. For example, a person shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

d. To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a person shall not be considered prejudiced by having made such expenditures.

e. An expenditure is considered “substantial” if it is significant in dollar amount in terms of the total estimated cost of the proposed project and the ordinary business practices of the developer.

f. A person is considered to have acted in “good faith” if actual knowledge of a proposed change in the development regulations affecting the proposed development site could not be attributed to such person.

(1) Even though a person had actual knowledge of a proposed change in the development regulations affecting a development site, the Planning Official may still find that the person acted in good faith if the person did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance.

(2) For example, the Planning Official may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development, and the developer had legitimate business reasons for making expenditures.

D. Phasing

When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments or other discrete units, the developer may complete only those phases or segments with respect to which the developer can make the showing required under subsection C. In addition to the matters and subject to the guidelines set forth in subsection B.2, the Planning Official shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

1. Whether any plans prepared or approved regarding uncompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural or engineering work.

2. Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

3. Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or to such a scale, in anticipation of connection to or interrelationship with approved but uncompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but uncompleted phases are constructed in conformity with existing regulations.

E. Timing of Vested Rights Permit

1. The Planning Official shall not consider any application for a vested rights permit authorized by subsection B that is submitted more than sixty (60) days after the effective date of this ordinance.

2. The Planning Official may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one (1) year from the effective date of this ordinance.

F. Abandonment

1. For development rights that vest on or after July 1, 2009 (except for residential development subject to subsection H, below), if substantial amounts of the work are not completed within 10 years of the issuance of the permits that established the development rights, the development rights shall expire.

2. For development rights that vested before July 1, 2009, abandonment occurs in accordance with the provisions of the Olathe Unified Development Ordinance, Kansas Statutes and caselaw, and all development permits and conditions of those permits in effect when the development rights vested.

G. Expedited Procedures

The Planning Official shall establish expedited procedures for hearing applications for permits under this section.

H. Residential Development

1. If a final plat is duly recorded in the office of the Register of Deeds of Johnson County for a Single-Family Residential Development before July 1, 2009 –

a. This section does not prevent the developer from developing in accordance with the terms of the final plat.

b. If construction is not commenced on any such land within five (5) years of the recording of the plat, the development rights shall expire.

c. If construction has commenced on any such project but is thereafter abandoned for a period in excess of five (5) years, the project may only be completed in accordance with a vested rights permit issued under this section.

2. If a final plat is duly recorded in the office of the Register of Deeds of Johnson County for a Residential development (including single family housing; multiple family housing such as apartments, duplexes, townhomes and similar configurations; condominiums; and manufactured and modular homes) on or after July 1, 2009 –

a. This section does not prevent the developer from developing in accordance with the terms of the final plat.

b. If construction is not commenced on any such land within ten (10) years of the recording of the plat, the development rights shall expire.

c. If construction has commenced on any such project but is thereafter abandoned for a period in excess of five (5) years, the project may only be completed in accordance with a vested rights permit issued under this section.

I. Planned Development

1. All PUDs or Planned Development applications that were approved and are still current may continue to be developed in accordance with the stipulations, waivers, special conditions, uses, etc., if they are comply with time requirements, and other requirements.

2. Final PUD plans shall follow the procedures for final developments for planned districts. (Ord. 02-54 § 2, 2002)