Legal Definitions - pending-ordinance doctrine

The pending-ordinance doctrine is a legal principle that allows a local government, such as a city or county, to deny an application for a property use or development permit even if the proposed use complies with existing laws. This denial is permissible if the local government is actively considering and is close to adopting a new law (an ordinance) that would make the proposed use illegal. The main purpose of this doctrine is to prevent individuals from rushing to submit applications to "beat" a new law that is clearly on its way to being approved.

Here are a few examples to illustrate how the pending-ordinance doctrine might apply:

• Scenario: New Drive-Through Restaurant Ban
  A city council is in the final stages of approving a new zoning ordinance that would prohibit any new drive-through restaurants in a specific commercial district, aiming to reduce traffic congestion and encourage walkability. The day before the ordinance is scheduled for its final vote, a developer submits an application for a permit to build a new fast-food restaurant with a drive-through in that very district. At the time of application, drive-throughs are still technically permitted.
  Explanation: Under the pending-ordinance doctrine, the city could deny the developer's application. Even though the drive-through is currently allowed, the city can refuse the permit because a new ordinance is imminent that would make the proposed use illegal, preventing the developer from circumventing the upcoming law.
• Scenario: Eco-Friendly Building Material Mandate
  A county planning board is preparing to enact an ordinance requiring all new industrial buildings to incorporate a minimum percentage of recycled materials in their construction, a measure intended to promote sustainability. A construction company applies for a permit to build a new warehouse, specifying conventional, non-recycled materials that are currently permissible. The application is submitted just as the new ordinance is undergoing its final public review before adoption.
  Explanation: The county could invoke the pending-ordinance doctrine to deny the permit. Despite the current legality of the chosen materials, the county can deny the application because the soon-to-be-approved ordinance would mandate the use of recycled materials, making the proposed construction non-compliant.
• Scenario: Height Restriction for Residential Buildings
  A neighborhood association successfully lobbied its town council to consider an ordinance that would reduce the maximum allowable height for new residential buildings from 40 feet to 25 feet in their historic district, aiming to preserve the area's architectural character. While the ordinance is awaiting its final reading and vote, a developer submits plans for a 35-foot tall apartment building in the district.
  Explanation: The town council could deny the permit application based on the pending-ordinance doctrine. Although a 35-foot building is currently within the 40-foot limit, the town can deny the permit because the new ordinance, which is close to being adopted, would make a building of that height illegal in the historic district.