When a zoning ordinance is enacted, it cannot outlaw previously existing non-conforming uses. This right to continue a non-conforming use is a vested property right, protected by statute, and by both federal and state constitutions. Wyoming's county and municipal zoning statutes both protect vested property rights, although in different ways. Wyo. Stat. Ann. § 18-5-207 (LexisNexis 2001) simply forbids counties from enacting zoning regulations that prohibit existing uses. Wyo. Stat. Ann. § 15-1-601(d)(iv) (LexisNexis 2001), on the other hand, renders invalid any municipal zoning regulation that constitutes an unconstitutional taking without compensation.
In 1993, defendant brewery obtained from plaintiff town a building permit for a restaurant and micro-brewery. The zoning ordinances in effect at the time allowed defendant to choose from three methods of providing patron parking: on-site, off-site, and fee in-lieu-of parking. Defendant chose a combination of on-site parking and off-site leased parking. Plaintiff approved that arrangement. In 1995, plaintiff amended its zoning ordinances so that defendant's property was no longer in the area approved for payment of a fee in-lieu-of parking. In 1998, defendant's parking lease became, in its opinion, cost-prohibitive, so it searched for other alternatives, including paying the fee in-lieu-of parking. Plaintiff took the position that defendant abandoned the fee in-lieu-of parking choice by not adopting it initially in 1993, or within twelve months of issuance of the building permit, and that defendant abandoned the off-site choice by not renewing its parking lease for twelve months. The district court granted summary judgment to plaintiff. The state supreme court decision was reversed, and the case was remanded with instructions to enter summary judgment in favor of defendant.
Did defendant brewery, as part of a non-conforming use, have a vested right to pay a fee in-lieu-of providing off street parking for its restaurant and micro-brewery?
The only reasonable interpretation of the zoning ordinances was that all the choices under the parking option remained available to the brewery as part of its non-conforming use. It would have violated Wyo. Stat. Ann. § 15-1-601(d)(iv) (LexisNexis 2001) to declare that the parking options were no longer available to the brewery; such a result would have rendered valueless its substantial business investment.