- First, the “building permit plus construction” rule provides protection to property owners who have received a building permit and have made substantial expenditures or commitments prior to a change in the zoning rules. Oftentimes, vesting occurs under this rule where the builder has commenced “substantial” construction in good faith reliance on the building permit. The battle in the courts frequently revolves around what constitutes “substantial” construction.
- Second, vested rights status can be achieved where a property owner has received preliminary or site plan approval, for example, in advance of the building permit stage. Under this rule, the focus is clearly on the development application approval process, which has the effect of “vesting” a project earlier than the “building permit plus construction” rule. Where “vested” under this rule, a property owner can proceed under the zoning rules in effect at the time of the relevant government approval.
- Third, under what is often referred to as the “early vesting rule,” a property owner can obtain vested rights upon the filing of a complete application for a preliminary or site plan, or a building permit. As with the other rules, once vested, a property owner is protected from any subsequent changes to the zoning regulations.
Because of the broad array of state statutes and cases, you should consult with your local attorney to determine to what degree your state recognizes vested development rights.
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There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.
This information is provided as a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.
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