Check this out, a new (to us, at least) article from lawprof Adam J. MacLeod, “Vested Rights and the Presumption of Lawful Use,” 2 Tex. A & M J. of Law & Civil Governance (2026). See if reading the Abstract doesn’t make you want to read the entire piece:
Presumptions matter in cases and controversies about private rights. A party who bears the burden of proof or persuasion and who cannot meet that burden will lose. But private law presumptions are not as well under- stood as the presumption of innocence in criminal prosecutions. This article explains a number of presumptions governing property, especially land use, by reference to the concept of vested private rights. A person may enjoy the presumption that his use of property is lawful when he has a right to make the use prior to a legal challenge or change in the law, and his right is vested in the sense that it cannot be terminated until someone proves that the use is unlawful. The right may be defeasible, but someone other than the right holder bears the burden of proving that it should be defeated. A survey of land use decisions from federal and state courts over the last century demonstrates that the existence or non-existence of a vested land use explains legal and factual presumptions better than more formal explanations, such as courts’ use of so-called “rational basis” review. This suggests the existence of a general, standing presumption that existing land use rights are vested as long as they are not contrary to fundamental law.
We’ve been down this path before. Of course, a property right that is “vested” under state law, is “private property” for purposes of the Fifth and Fourteenth Amendments that cannot be taken away except by the exercise of the condemnation power. See, e.g., John J. Delaney & Emily J. Vaias, “Recognizing Vested Development Rights As Protected Property in Fifth Amendment Due Process and Takings Claims,” 49 J. Urb. & Contemp. L. 27 (1996). We’ve used that approach in the past, to successfully argue that a development right that has vested under state law is a separate and distinct “stick,” and that if the government bars the owner from completing a development as allowed, it doesn’t matter what uses or value the land itself may have, compensation is owed for the taking of the development right.
But the danger in that approach is assuming that only vested development rights count as property, meaning that unless the owner has vested under state law, it has no property rights at all. Some courts accept that view, while other cases (such as this one from our shop) say otherwise:
There is threshold disagreement as to the specific property interest alleged in the complaint. Defendants read the complaint as asserting a right to the issuance of a variance. See Dkt. 12 at 6– 8. Plaintiff looks, instead, to his general interest in the land. See Dkt. 26 at 10–12. The difference matters because Plaintiff has no vested interest in the zoning board’s discretionary decision, see Dkt. 12 at 7 (citing, inter alia, Roslindale Motor Sales, Inc. v. Police Com’r of Bos., 405 Mass. 79, 82 (1989)), whereas Plaintiff does have an interest in property owned in fee simple, see Dkt. 26 at 5–6. Plaintiff has the better argument. See Barth v. City of Peabody, 2017 WL 114403, at *3– 4 (D. Mass. Jan. 11, 2017) (construing denial of variance as potential taking of land, rather than of the variance itself); Smyth v. Conservation Comm’n of Falmouth, 94 Mass. App. Ct. 790, 797 (2019) (analyzing “regulatory scheme” which generated the alleged taking, rather than just the decision to deny a variance). To frame the issue otherwise would give the government a perennial loophole—any regulation on land could escape constitutional review, so long as it is subject to a discretionary variance scheme.
Haney v. Town of Mashpee, No. 24-12562-BEM, slip op. at 4-5 (D. Mass. Apr. 17, 2025 (footnote omitted).
A definite “must read” for all of you.