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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