Agenda - Planning Commission - 09/07/1999

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JULY 1999 AMERICAN PLANNING ' ASSOCIATION Vesting of Development Rights: A Primer By John Bredin Suppose that a landowner receives the necessary zoning and subdivision approvals and begins construction eta 50-house subdivision on 10 acres. The developer is in the midst of building, with several houses in various stages of construction from grading open land all the way to indoor plumbing and electrical work, when the county board enacts a new zoning ordinance, zoning the land for only one house per acre. What is the effect on tile owner's investment? Can the owner proceed with the development as approved? Must he or she tear down tile excess houses? These issues are.vital to both the local government and landowners. This issue of Zoning News explores the ways in which states have sought to answer tile question of when owners acquire an irrevocable, or vested, right to develop their property. While thc doctrine of estoppel is most commonly applied in private disputes, some courts have used it in land-use cases to create a vested right to develop that is protected by the federal and state constitutions, What Is a Vested Right? Ifa new regulation applies to pending development projects, owners and developers of such projects will be compelled either to destroy pa,'t or all of their development or face the consequences of violatiug the new regulation. Therefore, several states have statures or case law that establish, un~'~r certain criteria, a right to proceed that cannot be abolished or restricted by regulations enacted after development begins. This is called a vested right because it is a right that has become fixed ("vested") and cannot be eliminated or amended. Typically, for the development right to be vested, the landowner must have relied in good faith to his or bet detriment on a governmental decision by making improvements to the land or some other commitment of resources. It is not surprising that these elements are found so frequently, either expressly or implicitly. The common law has for hundreds of years included the doctrine of estoppel. This means that, when someone does something with the intent that you will rely on their action or statement--and you indeed rely in good faith on that action or statement and demonstrate that reliance by some action to your detriment--the original party is legally bound by the action or statement. While the doctrine of estoppel is most commonly applied in private disputes, some courts have used it in land-use cases to create a vested right to develop that is protected by the federal and state constitutions. Why a Vested Rights Statute? It would seem at first glance that the courts have addressed the issue of vested rights with the doctrine of estoppel, thus eliminating the need for adopting vesting statutes. However, some state courts have restricted or denied the applicability of the estoppel doctrine to land-use cases. In some cases, these courts stated that granting vested rights at all would be an improper restriction on the police power. In other cases, they ruled that the landowner must demonstrate that the local official upon whose statement or decision he relied was within her authority to make the statement or decision, as the government is not bound by an official's unauthorized acts. Even when estoppel is applied to land-use decisions and a vested right is recognized, there is a difference of opinion on what sort of government acts and what level of reliance triggers estoppel. It is almost universal across case law that the reliance State Vested Rights Statutes Arizona: Ariz. Rev. Stat. ~ 9-120I to 9-1205 (1998) California: Cal. Gov't Code 5~c~ 66498.1 - 66498.9 (1998) Col6rado:'Colo. Rev. Stat. ~§ 24-68-102 to 24-68-106 (1999) Florida: Fla. Stat. § 163.3167(8) (1998)' Kansas: Kan. Stat. ~ 12-764 (1999) Massachusetts: Mass. Gen. Laws ch. 40A, ~ 6 (1998) North Carolina: N.C. Gen. Stat. ~ 160A-385.1 (1998) Pennsylvania: Pa. Stat. tit 53, ~ 10508 (1998) Texas: Tex. Gov't Code §§ 481.141 - 481.143 (1996) (repealed) Virginia: Va. Code ~ 15.2-2307 (1999)