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24 St. & Loc. L. News 1 (2000-2001)

handle is hein.journals/stlolane8 and id is 1 raw text is: /M Section of State and Local Government Law LOCAL LAW H1b WWa The Section serves as a collegialforumfor its members, the profession and the public to provide leadership and educational resources in urban, state and local government law andpolicy. Vested Rights - Property Development Agreements in an Era of Smart Growth Legislation By Danidj. Curtin, Jr. In the business of land development, one of the most important goals a developer must achieve is to protect its ability to complete the project once all land-use and discre- tionary approvals have been obtained from a city or coun- ty. For example, after the developer has received a general plan amendment, rezoning, tentative and final map, and then has obtained all other various discretionary land-use permits in order to develop over a period of time, the devel- oper should try to guarantee its rights to complete the pro- ject as approved. Land-use laws affecting the project might change while the project is underway either because of a switch in local government legislative policy or by revisions made by the people through the initiative process. This is becoming more common in very recent years because city, county, state, and national governmental leaders have jumped on the anti-sprawl bandwagon. Today, many local agencies have adopted strict land-use regulations under banners of Smart Growth, Sustainable Growth, Livable Communities, New Urbanism, and Stopping Sprawl. When this occurs, a developer many times cannot rely on common law vested rights and, therefore, must secure the protection of a development agreement to ensure vested rights to develop. On occasion, at planning commission and/or city coun- cil meetings, a property owner will speak in opposition to a proposed general plan and/or zoning change and claim that the city (when the word city is used, it also means county'; city council also means board of supervisors) has no right to change the law that could affect his already- DanielJ Curtin, Jr., is Chair-Elect of the Section andpractices law with McCutchen, Doyle, Brown & Enersen, LLP in Walnut Creek, California. approved project because he has done significant planning and construction work on the project. The property owner raises the issue of vested rights. Vested rights as that term is commonly used by land-use and developer professionals is the right to build on a particular piece of property under existing land-use and zoning laws. Basically, until those rights are vested, the city can change land-use and zoning regulations and apply the new laws through the develop- ment of the property. States vary as to point in time in the development process as to which rights vest. California generally vests property rights later in the development process, whereas there is a more liberal vesting rule in other states, such as Florida, Georgia, and Illinois. In those states, the rules are based on estoppel; that is, once the developer has detrimentally relied on some governmental action the local government is estopped from denying the permit. In general, see Thomas G. Pelham, Adam U. Lindgren & Lisa D. Weil, What Do You Mean I Can't Build!? A ComparativeAnalysis of When Property Rights Vest, 31 URm. Law. 901 (Fall 1999). To address this problem, in recent years the legislatures in ten states have enacted laws wherein the local agency and the developer (property owner) can enter into a devel- (continued on page 14) Chair's Message, page 2 Section News, pao c 3 Fall Council \ rctiig-FIersey, paei 4 The Ethics 200 Comissiob; Where Ittands on Issues Affecting G I g 5 Environm tal (Riles Impose New Ri Supreme Court c ; ') Recent Development , page 11 Washington's Labyrinthi ne ;ays, page 12 Vol. 24, No. 1, Fall 2000

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