Check this out. A new cert petition on an issue we think is a good one.
Let’s just cut to the chase (you can read the petition for the background). Here are the Questions Presented:
Whether an approved vesting tentative map which conferred a statutory vested right to finalize a subdivision upon substantial compliance with the conditions of approval is property protected by the Takings Clause?
Whether a claim of taking of rights under an approved vesting tentative map is tested with regard to the vesting tentative map in and of itself or with regard to the overall property encompassing the subdivision?
Is a vested right a separate stick? We think so. Many years ago, John J. Delaney and Emily J. Vaias laid out the theory and the support in their important law review article, “Recognizing Vested Development Rights As Protected Property in Fifth Amendment Due Process and Takings Claims,” 49 J. Urb. & Contemp. L. 27 (1996). The title says it all, but here’s the Abstract:
The purpose of this Article is to demonstrate that a landowner possessing vested development rights under state law has a property interest and reasonable expectations which are entitled to great weight when determining the viability of the landowner’s Fifth Amendment takings claim or substantive due process claim.
A vested right to develop is a property “stick” that is separate from the ownership sticks. Yes, courts often conclude that in the absence “vesting” of a right to develop under state law vested rights or zoning estoppel principles the right to develop is a mere “expectation” and not a private property right protected by the Fifth Amendment (more on that in this law review article we authored back in the day: Arrow of Time – Vested Rights, Zoning Estoppel and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (2004)). But where development rights have vested, that’s another story.
We put that theory to great use in our own practice, where one case stands out prominently in our memory. That one involved two parcels where the city council had granted the last discretionary permit and permitted development consistent with the parcels’ residential zoning, and the owner had relied on the permit. The permit rights were as a consequence vested under state law. After a public outcry, the city downzoned the property in an attempt to stop the previously-approved development, after which the developer and the owner jointly brought a takings claim.
The private property alleged to have been taken included the owner’s fee simple interest, and the developer separately claimed that the vested development rights, embodies in the granted permit, was the Fifth Amendment “private property” that the downzoning had wiped out. In short, the downzoning worked a Lucas taking (even though we didn’t use that language because this case was a few years before Lucas).
We never went to trial in that case because the trial court granted us summary judgment, concluding that the vested permit was a separate private property stick, and that it had been rendered of no use or value by the downzoning. After that ruling, the parties ended up settling the case.
Good issue, and one that makes a lot of sense to us. So let’s see if this petition has legs.
Follow along with its progress on the Court’s docket here.