▪ Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii

To obtain a copy of the article "Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii' (published by the U. Hawaii Law Review in Feb. 2006), drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

From the article's Introduction —

The modern land regulation and development process – particularly in Hawai`i where both the state or the local government may be involved in excruciating detail – is a complex, lengthy, expensive, and very often uncertain undertaking for any property owner desiring to exercise the fundamental right to make reasonable use of its property.  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.  Operating within a system that is rightly or wrongly perceived as arbitrary or subject to change at whim or for political reasons only magnifies owner uncertainty and regulatory risk.  On the other hand, the government understandably seeks to retain maximum flexibility in the application of its police power and have the ability to respond to changing situations by amending land use regulations.

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 unconstitutional or unfair to prevent it from completion.  These often judicially overlapped doctrines have roots in constitutional law, the law of variances and non-conforming uses, and equitable principles of detrimental reliance.

Once an owner’s rights have “vested,” it possesses a development right, and these development rights are property rights that “cannot be taken away by government regulation.”  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 and ability to regulate land uses and provide some insulation of the land use process from shifting political winds.

. . . .

This Article explains the doctrinal differences between vested rights and zoning estoppel in Section I.  Section II discusses the application of the doctrines in other jurisdictions and the potential choices the Hawai`i Supreme Court had before it when it first formulated its own rules, while Section III details the development of the doctrines by the Hawai`i courts.  Section IV discusses the application of vested rights and zoning estoppel in Hawai`i land use litigation.  Section V discusses remedies, and Section VI analyzes alternatives to vested rights and zoning estoppel litigation such as development agreements, land swaps, and transferred development rights.