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must be in the form of "substantial" or "extensive" expenditures
<br /> or actual construction, but these terms are rarely defined,
<br /> instead being left to a case-by-case analysis. Also decided on an
<br /> ad hoc basis is the more fundamental issue of what sort of
<br /> government statement, action, or decision could be the basis of
<br /> estoppel. Is a statement by au official that a builder will receive
<br /> approval sufficient? Preliminary approval ora site plan? Final
<br /> approval ora site plan? Issuance ora building permit? A number
<br /> of states have enacted vesting statutes to clarify issues raised in
<br /> case law by specifying what sort of government decision and
<br /> what subsequent landowner actions will trigger estoppel.
<br />
<br /> Common Elements of the Stc~tutes
<br /> Several states have statutes governing or creating vested rights
<br /> (see page 1). The key issue in such statutes is what triggers the
<br /> vested right. The approaches used may be divided into two
<br /> main groups. The first is the "bright line" approach, which
<br /> states that a specific development permit or permit application
<br /> creates a vested right. The second approach is to reiterate, in
<br /> whole or in part, the estoppel rule.
<br /> Arizona, Colorado, and North Carolina create a vested right
<br /> upon the approval ora development plan that is "site specific."
<br /> In these states, the local government must, through ordinance,
<br /> designate what existing plan, plat, or permit constitutes a site-
<br /> specific development plan. A site-specific development plan
<br /> must have sufficient specific detail on the proposed development
<br /> of the property and potentially include subdivision plats, site
<br /> plans, planned unit developments, and development
<br /> agreements. Thc sire-specific development plan must be filed
<br /> earlier in the development approval process than a building
<br /> permit, and a variance is expressly not a site-specific
<br /> dcvelopment plan. Except for phased development plans, where
<br /> thc vested right is timed to thc stages of development, the
<br /> duration of thc vested right is typically two or three years.
<br /> Ir should bc noted that the Colorado and North Carolina
<br />statutes provide tha~ a vested right to develop shall be created by
<br />the approval of a sire-specific development plan, while'the'
<br />Arizona statute merely authorizes local governments to enact a
<br />vesting ordinance. However, because there is no requirement
<br />that local governments make the designation of site-specific
<br />development plans, and l~o penalty or default provision if no
<br />designation is made, vesting is effectively at local option in all
<br />three states.
<br /> California creates a vested right from a "vesting tentative
<br />map" within the subdivision plat approval process. A developer
<br />may file a vesting tentative map in any situation where a
<br />tentative subdivision map must be filed, and thus vesting is
<br />mandatory. Massachusetts similar]y creates a mandatory vested
<br />right from approval of % definitive plan or a preliminary plan
<br />followed within seven months by a definitive plan," under the
<br />subdivision control law. The vested right to develop in
<br />Massachusetts is of unusuall), long duration: up to eight )'ears,
<br />which must be extended for thc duration of any applicable
<br />moratorium.
<br /> In Pennsylvania, an application for subdivision plat approval
<br />creates a vested right to be free from subsequent amendments to
<br />applicable land development regulations. Subdivision plat
<br />approval vests, for up to five years, the right to develop pursuant
<br />to the approved plat. Prior to its repeal, the Texas law created
<br />
<br />John Bredin is senior research fellow with APA's G~owI~va SM,~aIs3~
<br />p~Oct.
<br />
<br />right to develop pursuant to the local regulations in place at the
<br />time of the first application for a development permit or
<br />approval, even if multiple permits or approvals were required.
<br />Therefore, the Pennsylvania and Texas statutes not only vested
<br />the right to develop according to an approved plat or plan, but
<br />also created a right to have the application for approval reviewed
<br />according to the development regulations at the time of
<br />application. Such a right protects developers--and the public--
<br />from regulations enacted on the spur of the moment with the
<br /> intent of preventing or forbidding a particular development
<br />'project that is in the review process.
<br /> Virginia's vesting statute applies the estoppel standard by
<br />granting a vested right when there is a "significant affirmative
<br />governmental act" and the landowner, in good faith reliance on
<br />that affirmative act, makes significant expenditures or incurs
<br />significant obligations. The statute includes examples ora
<br />"significant affirmative governmental act," such as a rezoning,
<br />special use permit, variance, or plat or site plan approval, but
<br />this list is expressly not exhaustive. Florida uses a hybrid of
<br />estoppel and a "bright line" rule by creating a right to complete
<br />a development of regional impact pursuant to a final
<br />development order if development is proceeding in good faith.
<br />Kansas also takes a hybrid approach by vesting upon the
<br />recording of a plat for single-family residential development
<br />(construction must commence within five years of recordation
<br />or the right expires), and for al} other development upon the
<br />issuance of all necessary permits if and so long as "substantial
<br />amounts of work have been completed" pursuant to the
<br />permits.
<br />
<br />There is no vested right from a permit,
<br />permission, or approval issued in reliance
<br />on an intentional material
<br />misrepresentation. The equitable
<br />principle is that no person should derive
<br />a benefit from their own wrong.
<br />
<br /> Several common elements run through the vesting statutes..
<br />Generally, the vested development right does nor bar the
<br />application of subsequent amendments to generally appl!cable
<br />regulations, such as building, fire safer),, plumbing, electrical,
<br />and mechanical codes. Similarly, tile vested right does not cover
<br />state and federal laws and regulations. Tile notable exception to
<br />this ru}e was the repealed law in Texas, under which rbe right to
<br />have applications reviewed under thc law o~ the da), of
<br />application and thc right to develop applied to all state and local
<br />permits with the exception ora specific list olVexcepted permits.
<br /> There is no vested right from a permit, permission, or
<br />approval issued in reliance on an intentional material
<br />misrepresentation. Thc equitable principle is thac no person
<br />should derive a benefit from their own wrong. If development of
<br />the property pursuant to the vested right is found to create a
<br />hazard to the public health, safety, or wclfare, or when the
<br />subsequent regulation is intended "to prevent imminent
<br />destruction of property or injury" (Texas), the vested right may
<br />be terminated or inapplicable.
<br /> The owner typically can opt into amendments that are favorable
<br />to development. Some states allow the owner t'o do this by
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