Damon Key attorneys Kenneth R. Kupchak, Gregory W. Kugle, and
Robert H. Thomas have published a major article on the land use
and development process in the latest edition of the University
of Hawaii Law Review.
The article, "Arrow of Time: Vested Rights, Zoning Estoppel, and
Development Agreements in Hawaii," 27 U. Haw. L. Rev. 17
(2004) (published February 2006), analyzes when in the
development process a property owner's rights have "vested" and
the government must allow a permitted development to be
completed.
From the 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.
To receive a copy of the article, contact Robert Thomas.
