▪ Law Review Article on Vested Rights and Development Agreements

The University of Hawaii Law Review has published an article on vested rights and development agreements, authored by me and my Damon Key colleagues Ken Kupchak and Greg Kugle.

"Vested rights" is a body of law designed to protect property owners who rely upon government assurances -- often in the form of development permits -- if the government subsequently attempts to change its mind, or revoke the issued permits.

The title of the article is Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, and the citation is 27 U. Haw. L. Rev. 17 (2004).

Although the article carries a date of 2004, it was published in February 2006, since the U.H. Law Review was a tad behind schedule.

Here's a summary of the article, from its Introduction:

The modern land regulation and development process is a complex, lengthy, expensive, and very often uncertain undertaking.  The uncertainty is compounded by the ability of the government to change the regulations applicable to property after the owner has begun planning or building but has not completed construction.

Attempting to balance these competing interests, the courts have responded by creating the doctrines of vested rights and zoning estoppel. These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would be unconstitutional or unfair to prevent it from completion.

Once an owner's rights have "vested," the owner possesses development rights...if the government is estopped, it is prevented from applying any future incompatible, albeit legal, regulations to the property.  Vested rights and zoning estoppel thus counterbalance the government's unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds.

This Article details the development of the doctrines by the Hawai'i courts and the application of vested rights and zoning estoppel in Hawai'i land use litigation. It also discusses remedies, and analyzes alternatives to vested rights and zoning estoppel litigation such as development agreements, land swaps, and transferred development rights.

It is a fairly comprehensive treatment of vested rights and zoning estoppel law in Hawaii, and compares our courts' approach with that of fellow jurisdictions.  It also suggests some areas where the law can be filled out more fully in Hawaii. 

Finally, it deals with the interplay between development agreements and vested rights.  You can't understand one without understanding the other.   

If you'd like a reprint of the complete article, drop me an e-mail.