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.
Items in the Daily Development section
generally are extracted from the Quarterly Report on Developments in Real
Estate Law, published by the ABA Section on Real Property, Probate & Trust
Law. Subscriptions to the Quarterly Report are available to Section members
only. The cost is nominal. For the last six years, these Reports have been
collated, updated, indexed and bound into an Annual Survey of Developments in
Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual
Survey volumes are available for sale to the public. For the Report or the
Survey, contact Maria Tabor at the ABA. (312) 988 5590 or
mtabor@staff.abanet.org
Items reported here and in the ABA
publications are for general information purposes only and should not be relied
upon in the course of representation or in the forming of decisions in legal
matters. The same is true of all commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed are the sole responsibility of
the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting
to a source that is readily accessible by members of the general public, and
should take that fact into account in evaluating confidentiality issues.
ABOUT DIRT:
DIRT is an Internet discussion group for
serious real estate professionals. Message volume varies, but commonly runs 5 ‑
10 messages per workday.
Daily Developments are posted every workday.
To subscribe to Dirt, send an e-mail to:
To: |
ListServ@listserv.umkc.edu |
Subject: |
[Does not matter] |
Text in body of message |
Subscribe Dirt [your name] |
To cancel your subscription to Dirt, send an
e-mail to:
To: |
ListServ@listserv.umkc.edu |
Subject: |
[Does not matter] |
Text in body of message |
Signoff Dirt |
For information on other commands, send the
message Help to the listserv address.
DIRT has an alternate, more extensive
coverage that includes not only commercial and general real estate matters but
also focuses specifically upon residential real estate matters. Because real
estate brokers generally find this service more valuable, it is named
“Brokerdirt.” But residential specialist attorneys, title insurers, lenders and
others interested in the residential market will want to subscribe to this
alternative list. If you subscribe to Brokerdirt, it is not necessary also to
subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the
residential discussions.
To subscribe to Brokerdirt, send an e-mail
to:
To: |
ListServ@listserv.umkc.edu |
Subject: |
[Does not matter] |
Text in body of message |
Subscribe Brokerdirt [your name] |
To cancel your subscription to Brokerdirt,
send an e-mail to:
To: |
ListServ@listserv.umkc.edu |
Subject: |
[Does not matter] |
Text in body of message |
Signoff Brokerdirt |
DIRT is a service of the American Bar
Association Section on Real Property, Probate & Trust Law and the
University of Missouri, Kansas City, School of Law. Daily Developments are
copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law,
but Professor Randolph grants permission for copying or distribution of Daily
Developments for educational purposes, including professional continuing
education, provided that no charge is imposed for such distribution and that
appropriate credit is given to Professor Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
http://www.umkc.edu/dirt/