Also known as: vested rights
Written by attorneys — see sources below.
A constitutionally protected property interest that arises when a landowner has made substantial expenditures in good-faith reliance on existing zoning or a permit. The interest entitles the owner to complete the development or, in the case of a nonconforming use, to continue the use despite later regulatory changes. The right may be lost through abandonment, statutory discontinuance, or reasonable amortization ordinances.
Violet Vidal operated a neighborhood grocery store on land she owned for decades before the city rezoned the area exclusively residential. When the city attempted immediate shutdown, Violet pointed to her long-standing lawful operation and the physical improvements already in place. The court recognized her vested right to continue the nonconforming use, preventing the city from forcing relocation without first satisfying abandonment or amortization rules.
Virgil Volpe obtained a valid building permit under existing zoning and spent over $800,000 installing plumbing, electrical upgrades, and structural framing for new residential units. After the city rezoned the area and revoked the permit, Virgil sued to complete the work. The court held that his good-faith reliance and concrete expenditures created a vested right that equity would not allow the city to destroy.
Victor Vargas held a vested interest in property rights established under prior state law. A later statute attempted to alter those rights retroactively in a manner that would have divested him without compensation. The court invoked the principle that legislatures may not divest citizens of vested rights except for public benefit with just compensation, protecting Vargas from the retroactive change.
The grandson Normand Morrison executed his will on August 21, 1779. On March 21, 1793, the Court of Probate for Hartford County disapproved the will and refused to record it. More than eighteen months elapsed from this decree, during which the right of appeal was lost under Connecticut law. There was no law in Connecticut allowing a new hearing before the court of probate except through special legislative action. On the second Thursday of May 1795, the Legislature of Connecticut passed a resolution setting aside the March 1793 decree of the Court of Probate. The resolution granted a new hearing before the same court of probate with liberty of appeal in six months. This resolution was passed after the time for appeal from the original decree had expired. A new hearing occurred on July 27, 1795, resulting in the court of probate approving the will and ordering it recorded. An appeal followed in August 1795 to the Superior Court at Hartford, which affirmed the decree in February 1796. The Supreme Court of Errors of Connecticut then reviewed the case and in June 1796 confirmed the judgment of the Superior Court. Calder and his wife asserted a claim to the premises as the heiress of Normand Morrison the physician. Bull and his wife asserted their claim under the will of Normand Morrison the grandson. The matter came before the United States Supreme Court for review of the state court proceedings.
Vivian Vaughn purchased coastal property and began development under then-existing rules that permitted the intended use. A subsequent state coastal council regulation barred all development, leaving the land economically idle. The court examined whether the regulation deprived her of a vested right in the prior permissible use, analyzing whether the restriction constituted a taking requiring compensation.
In 1986, petitioner David H. Lucas purchased two residential lots on the Isle of Palms in Charleston County, South Carolina, for $975,000. He intended to construct single-family homes on the parcels, which at the time were zoned for such use and required no building permit for development. No portion of the lots qualified as a critical area under then-existing coastal zone legislation. Subsequently, in 1988, the South Carolina Legislature enacted the Beachfront Management Act. The legislation established a baseline and prohibited construction of occupable improvements seaward of a line drawn 20 feet landward of that baseline, directly affecting Lucas's parcels by barring any permanent habitable structures. Lucas filed an action in the Court of Common Pleas alleging that the Act's restrictions effected a taking of his property without just compensation. Following a bench trial, the court determined that the prohibition rendered the lots valueless and ordered the state to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court's judgment. It accepted the legislature's findings that new construction threatened public resources and concluded that a regulation designed to prevent serious public harm could not constitute a taking. The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's decision.
Vivid Media held mortgages secured by real property under terms that allowed foreclosure upon default. A state law enacted during an economic emergency temporarily extended redemption periods and limited deficiency judgments. The court assessed whether the legislation impaired the mortgagees' vested contractual rights in a manner forbidden by the Contracts Clause.
The Blaisdells executed a mortgage on their property in Minneapolis to the Home Building & Loan Association on August 1, 1928. The mortgage contained a valid power of sale by advertisement. After default, the mortgage was foreclosed and the property sold to the Association on May 2, 1932, for $3700.98. The period of redemption under the law then in effect was set to expire on May 2, 1933. On April 18, 1933, Minnesota enacted Chapter 339 of the Laws of 1933, known as the Mortgage Moratorium Law. The statute authorized district courts to extend the period of redemption from foreclosure sales for such additional time as the court deemed just and equitable, not beyond May 1, 1935, upon condition that the mortgagor pay a reasonable part of the income or rental value toward taxes, insurance, interest, and principal. The Blaisdells applied to the District Court of Hennepin County for an extension of the redemption period. The district court found that the reasonable rental value of the property was $40 per month and the present market value was $6000. It extended the redemption period to May 1, 1935, requiring the Blaisdells to pay $40 per month to the Association. The Supreme Court of Minnesota affirmed the order. The Home Building & Loan Association appealed to the United States Supreme Court, which reviewed the judgment sustaining the statute as applied to the preexisting mortgage.
Valerie Voss and other heirs claimed interests derived from their decedents' ability to control disposition of allotted Indian lands at death. A federal statute eliminated that power of testamentary disposition without providing compensation. The court considered whether the decedents possessed a vested right to direct property at death that the statute could not abolish without violating the Fifth Amendment.
In the late 19th century, Congress enacted a series of land acts that divided communal Indian reservations into individual allotments for Indians and unallotted lands for non-Indian settlement. The Act of March 2, 1889, allotted 320 acres to each male Sioux head of household and 160 acres to most other individuals on the Great Reservation of the Sioux Nation, with the allotted lands held in trust by the United States. Ownership of these allotted lands fragmented over successive generations into numerous undivided interests, with some parcels having hundreds of owners. Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew over time. This created administrative difficulties and economic waste. A 1928 report and comprehensive 1960 House and Senate studies indicated that one-half of approximately 12 million acres of allotted trust lands were held in fractionated ownership. In 1983, Congress enacted the Indian Land Consolidation Act. Section 207 provided that no undivided fractional interest in any tract of trust or restricted land within a tribe's reservation shall descend by intestacy or devise but shall escheat to the tribe if such interest represents 2 per centum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat. The provision was signed into law on January 12, 1983, and became effective immediately, with no compensation provided to owners of escheated interests. Four enrolled members of the Oglala Sioux Tribe died in 1983 while owning fractional interests subject to the escheat provision. Chester Irving died on March 18, Mary Poor Bear-Little Hoop Cross died on March 23, Charles Leroy Pumpkin Seed died on April 2, and Edgar Pumpkin Seed died on June 23. Collectively the four decedents owned 41 such interests whose values included approximately $100 for the two interests lost by the Irving estate, approximately $2,700 for the 26 interests in the Cross estate, and approximately $1,816 for the 13 interests in the Pumpkin Seed estates. The three appellees are enrolled members of the Oglala Sioux Tribe who are or represent heirs or devisees of the decedents. Mary Irving is the daughter of Chester Irving, Eileen Bissonette is the guardian for the five minor children of Mary Poor Bear-Little Hoop Cross, and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed and nephew of Edgar Pumpkin Seed. But for the escheat provision the fractional interests would have passed to the appellees or those they represent. Appellees filed suit in the United States District Court for the District of South Dakota claiming that the escheat provision resulted in a taking of property without just compensation in violation of the Fifth Amendment. The District Court granted summary judgment for the Government. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
A landowner must show good-faith reliance on a valid permit or existing zoning together with substantial expenditures or other detrimental change of position. Some jurisdictions require actual construction progress while others apply a balancing test that weighs the owner's investment against the public interest. Once these elements are met, equity prevents the municipality from applying the new zoning to defeat the owner's reasonable expectations.
Supporting sources
…particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public. In the Coates cases, for example, the Supreme Court of New York found no taking in New York's ban on the interment of the dead within the city, although…
…then all choses in action, lands by devise, and personal property by bequest might be unprotected from legislative power and vested rights might be divested at the will of state legislatures. It is not to be presumed legislatures will divest citizens of vested rights
…of Appeals for the Eighth Circuit reversed. Irving v. Clark , 758 F. 2d 1260 (1985). Although it agreed that appellees had no vested rights in the decedents' property, it concluded that their decedents had a right
…on the States which would put an end to statutes enacting laws for special individuals, setting aside Court judgments, repealing vested rights
…the Legislature did not express an intent for the law to operate retrospectively and because to do otherwise would trench on vested rights or result in manifest injustice. Specifically, the State Bar contends that the retroactive application of the statute would violate the express language of Article IV, Section 7, Paragraph…
A nonconforming use arises when land was lawfully used before a zoning change that now prohibits it, giving the owner a vested right to continue the existing use. In contrast, a permit-based vested right protects the right to complete a new development that has not yet begun or finished. Both doctrines protect pre-existing expectations, but the nonconforming-use right focuses on continuation while the permit right focuses on completion.
Supporting sources
Yes, in some jurisdictions an amortization ordinance may require termination of a nonconforming use after a reasonable period. Reasonableness turns on the nature of the use, the owner's investment, and the length of the phase-out period. The ordinance must still afford the owner a fair opportunity to recoup the investment or relocate before the right is lost.
Supporting sources
No. Mere ownership, a general plan, or preliminary expenses such as market studies or permit applications are insufficient. The owner must have engaged in substantial work or made concrete expenditures that change position in reliance on the prior zoning or permit. Courts distinguish preparatory steps from tangible progress toward the protected use.