Vested Rights and Zoning: Avoiding All-or-Nothing Results

Abstract

In real estate development, courts and legislatures use the vested rights doctrine to determine whether local government should be allowed to enforce newly enacted zoning ordinances against landowners. As real estate development projects continue to increase in scope and expense, and as zoning regulations become more complex and sensitive to environmental awareness, the vested rights debate will remain a contentious issue in land use law. The three dominant vested rights rules in use today generally assume that vested rights protection requires an all-or-nothing result, forcing the debate to revolve almost solely around tuning: should vested rights protection be granted now or later? This outcome affords no compromise; either developers get all the protection from new regulations they want and local governments get no flexibility to adapt projects to evolving public interests, or local governments get all the flexibility they want, and developers risk losing their projects altogether. This Note critiques the three major approaches and suggests that one way to add more flexibility to the current vesting scheme is to expand or contract the scope of protection granted based on the breadth of developers' disclosure.