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Real Property & Development Review

Washington Supreme Court: Vested Development Rights Not Triggered by Site Plan Application

Posted in Land Use

The scope of Washington’s vested rights doctrine—which has constitutional, common law, and statutory underpinnings—has been the subject of a longstanding debate. Under this doctrine, certain development projects may be subject to the land development laws in effect on the date that a complete building permit application is submitted, despite later changes in the law. Whether other types of project applications should vest, and in what circumstances, has been the subject of a longstanding debate, which has been chronicled in a long line of appellate court cases. Today, the Washington Supreme Court has added another landmark opinion to Washington’s body of case law on vested rights. This opinion, issued in the case of Abbey Road Group v. City of Bonney Lake, answers some questions, but still leaves developers with a great deal of uncertainty. (Click on the following hyperlinks to access the text of the three separate portions of the opinion: the lead opinion, authored by Justice Johnson and joined by two others; the concurrence authored by Madsen and joined by one other; and the dissent authored by Justice Sanders and joined by three others.)

In this case, a developer (Abbey Road) submitted a site plan for a multifamily development to the City of Bonney Lake, apparently under the belief that it could not apply for a building permit until the City approved the site plan. On that same day, the City passed an ordinance rezoning the subject property to a zoning category in which the proposed project was prohibited. The Supreme Court held that Abbey Road’s project was not vested against the rezone because it had not submitted a complete building application for the development. According to the Court, the site plan approval could not vest the project, because the applicable vesting statute (RCW 19.27.095) does not address site plans, and because the City’s code does not address vesting. The Court declined the invitation to expand the vested rights doctrine to include applications not specifically addressed in the statute.

The majority and the dissent disagreed about whether the City’s regulations required site plan approval before a building permit application could be submitted. If this were the case, the City’s process may violate developers’ due process rights under West Main Associates. However, despite the concurring justices’ "concerns" about the City’s process, a majority of the Court found that there was no due process violation because the developer could have submitted a building permit application at any time. The dissent found that this was not the case, and that the City’s procedures violated due process because they deprived the developer of the right to "unilaterally control the date th[e] project vested." The due process aspect of the vested rights doctrine is sure to be the subject of future vested rights disputes.