§ 8.11 - Protections Against Changes in Zoning

• Jurisdiction: Washington

§8.11 PROTECTIONS AGAINST CHANGES IN ZONING

A variety of safeguards exist to protect developers and landowners from changes in zoning, as discussed below.

(1) Vested rights

Washington's vested rights doctrine affords the holder of or applicant for certain permits the right to develop their property in accordance with zoning controls in effect at the time a complete application is submitted. See Fredrick D. Huebner, Washington's Zoning Vested Rights Doctrine, 57 Wash. L. Rev. 139 (1981). "[A] vested right does not guarantee a developer the ability to build. A vested right merely establishes the ordinances with which a building permit and subsequent development must comply." Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 642, 733 P.2d 182 (1987); Heller Bldg., LLC v. City of Bellevue , 147 Wn.App. 46, 60, 194 P.3d 264 (2008).

The purpose of the vesting doctrine is to allow developers

to determine, or "fix," the rules that will govern their land development. The doctrine is supported by notions of fundamental fairness. As James Madison stressed, citizens should be protected from the "fluctuating policy" of the legislature. Persons should be able to plan their conduct with reasonable certainty of the legal consequences. Society suffers if property owners cannot plan developments with reasonable certainty, and cannot carry out the developments they begin.

W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986) (internal citations omitted); Valley View, 107 Wn.2d at 636-38; see also Abbey Rd. Group, LLC v. City of Bonney Lake, 141 Wn.App. 184, 197, 167 P.3d 1213 (2007) (vesting doctrine is rooted in constitutional principles of fundamental fairness), aff'd, 167 Wn.2d 242, 247, 218 P.3d 180 (2009).

Courts recognize that rights protected by the vesting doctrine come at a cost to the public interest.

The practical effect of recognizing a vested right is to sanction the creation of a nonconforming use. A proposed development [that] does not conform to newly adopted laws is, by definition, inimical to the public interest embodied in those laws. If a vested right is too easily granted, the public interest is subverted.

Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864, 873-74, 872 P.2d 1090 (1994). But see Gregory Overstreet & Diana M. Kirchheim, The Quest for the Best Test to Vest: Washington's Vested Rights Doctrine Beats the Rest, 23 Seattle U. L. Rev. 1043, 1058 (2000) (discussing limits on vested rights intended to ensure that the public interest can be carried out).

Although Washington's vested rights doctrine is, from a developer's perspective, among the most protective in the nation, it is limited to particular types of permits and to certain preconditions set forth in the judicial rules, statutes, or local ordinances from which the vested right is derived. See generally Roger D. Wynne, Washington's Vested Rights Doctrine: How We Have Muddled a Simple Concept and How We Can Reclaim It, 24 Seattle U. L. Rev. 851 (2001) (discussing origins and scope of Washington's vested rights doctrine).

(a) Court-created vested rights

Washington courts have adopted a minority rule that developers who file a timely and complete building permit application obtain a vested right to have their application processed according to the zoning and building ordinances in effect at the time of application. Allenbach v. City of Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984). This bright-line, date-certain rule contrasts with the position adopted by the majority of states, which allows for vesting only after a development has substantially proceeded in reliance on a governmental act that approved or endorsed the particular development concept. See generally Charles L. Siemon et al., Vested Rights: Balancing the Public and Private Development Expectations (1982). Although a few other states now provide for vesting on the date of application, Washington is somewhat unique in having developed this rule in case law and only later codifying it. Note, Vested Rights and Zoning: Avoiding All-or-Nothing Results, 43 B.C. L. Rev. 935, 949-50 (2002).

Comment: Washington's position on vested rights does not appear to have evolved out of any unique state constitutional framework See Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958) (citing State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492 275 P.2d 899 (1954), as authority for position that building permit vests on application); Ogden, 45 Wn.2d 492 (citing State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 P. 93 (1930), as authority for position that building permit vests on application); Hardy, 155 Wash. 244 (building permit review not governed by adopted zoning laws that have yet to take effect).

Under Washington's court-created rule, the vesting of rights depends only on a showing that the application is complete and complies with the zoning ordinances and applicable codes in force at the time of application. Valley View, 107 Wn.2d at 638; Allenbach, 101 Wn.2d at 200.

Although originally applicable only to building permits, courts have subsequently extended such application-based vesting to grading permits, Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 Wn.App. 59, 84-85, 510 P.2d 1140 (1973), review denied, 83 Wn.2d 1001 (1973); shoreline substantial development permits, Talbot v. Gray, 11 Wn.App. 807, 811-12, 525 P.2d 801 (1974), review denied, 85 Wn.2d 1001 (1975); septic tank permits, Ford v. Bellingham-Whatcom Cnty. Dist. Bd. of Health, 16 Wn.App. 709, 715, 558 P.2d 821 (1977); and conditional use permits, Beach v. Bd. of Adjustment, 73 Wn.2d 343, 347, 438 P.2d 617 (1968).

Instances in which courts have refused to apply vesting include the following: rezone applications, Teed v. King Cnty., 36 Wn.App. 635, 644, 677 P.2d 179 (1984); applications for water main extensions, Lincoln Shiloh Assocs., Ltd. v. Mukilteo Water Dist., 45 Wn.App. 123, 128-29, 724 P.2d 1083, amended by 742 P.2d 177 (1986), review denied, 107 Wn.2d 1014 (1986); applications for preliminary site plan approval, Burley Lagoon Improvement Ass'n v. Pierce Cnty., 38 Wn.App. 534, 540, 686 P.2d 503 (1984), review denied, 103 Wn.2d 1011 (1985); site plan review, Valley View, 107 Wn.2d at 639-42; master use permits, Erickson, 123 Wn.2d at 876-77 (vested rights not applied to master use permit submitted without associated building permit); Abbey Road Group, 167 Wn.2d at 253; and impact fees, Belleau Woods II, LLC v. City of Bellingham, 150 Wn.App. 228, 238-39, 208 P.3d 5 (2009), review denied, 167 Wn.2d 1014 (2009).

Vesting notions were, to a limited extent, also extended to subdivision applications even prior to the 1987 enactment of a statutory vested rights doctrine for subdivisions in RCW 58.17.033. In Norco Construction, Inc. v. King County, the court held that, because a subdivision applicant has a right under RCW 58.17.140 to have a municipality act on its application within 90 days of filing, local government is required to render its decision "based on factors relevant [during that period]." 97 Wn.2d 680, 684, 649 P.2d 103 (1982). As such, the jurisdiction's ability to apply later-adopted laws to application review freezes when the statutory time period for rendering a decision runs. See also Carlson v. Town of Beaux Arts Village, 41 Wn.App. 402, 406, 704 P.2d 663 (1985) (applying Norco quasi-vesting analysis to short subdivision application), review denied, 104 Wn.2d 1020 (1985).

(b) Statutory vested rights

In 1987, the legislature codified the court-created vesting approach to building permits. RCW 19.27.095 provides that a

valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.

RCW 19.27.095(1).

As part of this same Act, the legislature extended vested rights to subdivision and short plat applications.

A proposed division of land...shall be considered under the subdivision or short subdivision ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official.

RCW 58.17.033. The building permit and subdivision vesting statutes both indicate that relevant complete application requirements are to be defined by local ordinance. RCW 19.27.095(2); RCW 58.17.033(2) . RCW 36.70B.070 further specifies that applications are deemed complete for vesting purposes unless the local government otherwise provides written notice to the applicant stating that the application is incomplete and identifying what is necessary to make the application complete. RCW 36.70B.070(4)(a). The vested rights afforded by these statutes extend beyond "zoning-type laws" and include other ordinances that restrain and direct the use of land, such as storm water regulations. Snohomish Cnty. v. Pollution Control Hearings Bd., 192 Wn.App. 316, 368 P.3d 194 (2016).

Comment: Building and subdivision vesting statutes each indicate that their vesting provisions shall not restrict conditions imposed under the State Environmental Policy Act (SEPA). RCW 19.27.095(6); RCW 58.17.033(3). SEPA rules, however, independently limit the exercise of substantive SEPA authority to the time that a Determination of Nonsignificance (DNS) is issued or, in cases in which a Determination of Significance (DS) is issued, to the time that a draft Environmental Impact Statement (EIS) is published. WAC 197-11-660(1)(a).

These vesting statutes have potential impact beyond...