Daily Development for Thursday, November 18, 1999

Daily Development for Wednesday, November 24, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND PLANNING; VESTED RIGHTS: Washington developers filing a conditional use application obtain a vested right to develop land in accordance with the land use laws and regulations in effect at the time the application was filed, regardless of any investment or reliance upon the existing regulations.

Weyerhaeuser v. Pierce County, 976 P.2d 1279 (Wash. Ct. App. 1999).

In 1989, Land Recovery, Inc. ("LRI") applied to Pierce County for a conditional use permit to use the land adjacent to property owned by the Weyerhaeusers as a solid waste landfill site. Because the site lay in a floodplain and in wetlands, LRI submitted a plan to provide for the creation, restoration, and enhancement of wetlands elsewhere on the site.

The County issued an Environmental Impact Statement, to which the Weyerhaeusers objected. A hearing was held by the County, and the hearing examiner issued the conditional use permit to LRI, which the Weyerhaeusers appealed. The Supreme Court of Washington remanded the case for additional hearings, and the hearing examiner issued a new decision requiring LRI to obtain a wetlands permit under County regulations enacted three years after LRI's initial application was filed. LRI appealed to the trial court, which denied them any relief. LRI appealed the decision of the trial court.

The Court of Appeals of Washington held that the vested rights doctrine applied to LRI's application for a conditional land use permit, and thus it was error for the hearing examiner to determine LRI was subject to the wetlands regulations enacted after LRI's application was filed. The Court reasoned that, under the vested rights doctrine, LRI had a vested interest in development in accordance with the laws and regulations that were in effect at the time the application was filed.

The court noted that Washington's vested rights doctrine is a "minority position." It provides that the simple filing of a land use application vests the landowners rights, and the landowner is entitled to be governed by land use rules in effect at the time of the application even if these rules change during its pendency. The doctrine is codified only as to building permits and subdivision permits, but Washington courts have applied it to numerous other land use issues. The court cites no other conditional use permit cases, however.

A 1994 case, Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 86768, 872 P.2d 1090 (1994), upheld a City of Seattle ordinance that specifically withheld vested status for applications for building permits or "master use permits," stating that the developer's rights vested only when the permits were granted.

Notwithstanding Erickson, the appeals court concludes here, when a local government has not specifically provided otherwise, the public policy of the state clearly supports the recognition of a developer's rights as of the time the developer applies for a land use permit. Indeed, at one point the court appears to conclude that the right is one of Constitutional stature:

LRI had a due process right to expect that its project would be subject to fixed rules, as opposed to fluctuating legislative policy, so it could plan its project with reasonable certainty. See Valley View Indus. Park v. City of Redmond, 107 Wash.2d 621, 733 P.2d 182 (1987) (because property development rights constitute a valuable property right, due process requires that developers be able to plan projects under fixed rules governing development of land). Without vesting as to the wetland regulations, there would be no "date certain" by which LRI could have fixed its rights to develop the land in an efficient manner. See Erickson, 123 Wash.2d at 870, 872 P.2d 1090 (application of "date certain vesting point" ensures that development rights are not duly oppressed by enactment of new land use ordinances). We realize that protecting LRI's rights unfortunately will come at the public's expense because part of the project may not be in compliance with the later enacted wetland regulations. But neither can we disregard the vested rights doctrine, which is wellrooted in Washington case law, and cast aside LRI's due process rights in fairness and certainty.

Notwithstanding this language, it seems apparent that the right, at least to this degree, is not one of Constitutional due process or the City of Seattle could not have avoided it in the Erickson case.

Comment 1: Many, if not all, states recognize some sort of vested rights concept. But the generous standard used by Washington, vesting rights upon application, is one that developer's lawyers can only dream about (on a very good night). In other states, developers at least some level of reliance on the existing zoning laws and in most of them they must also actually have received the relevant permit. If the laws are changed thereafter, before construction commences, then courts will view rights as vested. But no sooner.

This case is a prime example of the differences in approach. The application was filed in 1989, and now, ten years later, no landfill has been built. Standards likely have changed quite a bit. And this is a substantial landfillion tens of millions of cubic yards of solid waste on 168 acres. The property is wetlands. But the state of the art in 1989 will define the developer's rights, as well as that of the neighbors.

Comment 2: The balance is not easy here, as the court admits. It does seem incongruous to ignore new information concerning environmental and ecological issues. On the other hand, there are many cases where "nimbies" have been aroused by the filing of an application and run to the legislative bodies to promote new laws designed specifically to stop the project after the developer has invested years of effort in planning for the project and collecting the parcels on which to build it. Decent economic planning requires some certainty.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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