The Washington Supreme Court visited the vested rights doctrine again recently, narrowing once again the applicability of Washington’s developer-friendly “vested rights doctrine.”
In Snohomish County v. Pollution Control Hearings Board, filed in late 2016, the Court held that environmental regulations do not constitute a “land use control ordinance” to which rights can vest. In other words, developers must comply with changes to stormwater or shoreline development laws made at the state level and flowing to counties and cities, even if they already have submitted a complete building permit application.
Vested rights protect a developer’s investment-backed expectations
The doctrine of vested rights protects a developer’s right to have a project reviewed under the laws in effect at the time he or she submits a complete building permit application.
The goal is to balance a permitting authority’s ability to control land use with a developer’s reasonable expectations in using and developing his or her land. If a particular land use is legal at the time a developer submits a complete building permit application, the county or city cannot change the rules to make it illegal simply because it does not like the use.
Washington has what is considered a developer-friendly interpretation of the vested rights doctrine, but it is not without susceptibility to political vagaries.
The vested rights doctrine has ping-ponged through our state’s property rights jurisprudence from the 1960s until 2014, when the Supreme Court handed down the Town of Woodway and Potala Village decisions, which many viewed as eviscerating the doctrine’s applicability to all but two types of land use applications.
With some developers still reeling from the fallout of those decisions and the 2008 crash, the Court held in Snohomish County v. Pollution Control Hearings Board that an environmental regulation is not a “land use control ordinance,” and that vesting only protects developers from later-enacted rules imposed by counties or cities, not the state.
Developers’ rights not protected when it comes to state-mandated environmental regulations
In Snohomish County v. PCHB, the Court ultimately held that vesting statues were intended to restrict municipal discretion with respect to local zoning and land use ordinances. Where state and federal laws direct permittees to implement stormwater regulations, those regulations are not the sort that vesting protects.
Critically, vesting statutes do not trump application of stormwater regulations, which are required under the state Growth Management Act. Because stormwater regulations are mandatory state regulations, not discretionary local actions, the vested rights doctrine does not apply.
Practically speaking, changes in stormwater permiting requirements can have enormous impacts on a project’s costs and timeline. If you need help permitting a land use project, contact me to set up a consultation. Call (206) 371-4720 or email email@example.com