Vesting

III. VESTING

A. Legislative Changes and Vesting

Legislative changes that occur after a zoning decision is issued may render that decision void if the petitioner did not vest its zoning rights prior to the legislative change. This is consistent with decisions in other areas of administrative law, including the "special rule of statutory construction that rights which are of purely statutory origin and have no basis at common law are wiped out when the statutory provision creating them is repealed, regardless of the time of their accrual, unless the rights concerned are vested."⁷⁴ In zoning matters, "legislated change of pertinent law, which occurs during the ongoing litigation of a land use or zoning case, generally, shall be retrospectively applied."⁷⁵ In practical application, a change in the law after a decision below and before final decision by the appellate court will be applied by that court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent.⁷⁶ As a result, a lower court or administrative body may have correctly applied the law as it existed at the time, but due to a change in law the decision will be overturned or remanded by an appellate court for a decision consistent with the most recent substantive change.

In order to obtain a vested right in a zoning designation that will be protected against a subsequent change in a zoning ordinance, the owner must:

(1) Obtain a valid permit; and,

(2) In reliance on the valid permit, make a substantial beginning in construction and in committing the land to the permitted use before the change in the zoning ordinance has occurred.⁷⁷

Stated another way, vested rights are acquired when (1) there is actual physical commencement of some "significant and visi ble construction," (2) the construction was commenced in "good faith," with the intention to complete the construction, and (3) the construction was commenced "pursuant to a validly issued building permit."⁷⁸

The Supreme Court of Maryland has explained the rationale for such a rule to be premised in public recognition that the law is being observed or enforced.⁷⁹ If the public could have seen that construction had started before the zoning change, the public can appreciate that the new law is not being violated, but if construction had not started before the zoning change, the public will expect the new law to be enforced.⁸⁰ Accordingly, in addition to the requirement that the work be completed...