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Real Property & Development Review

Court of Appeals Denies Vesting for Shoreline Permits

Posted in Environmental, Land Use

Last week Washington’s Court of Appeals decided Potala Village Kirkland, LLC v. City of Kirkland (Div. I, August 25, 2014), which addressed whether the filing of an application for a shoreline substantial development permit, without filing an application for a building permit, vested a development project against later changes to zoning and other land use control ordinances.  The Court of Appeals held it did not.  But the opinion the court issued in Potala goes much further, and casts doubt on whether the doctrine should apply to many other types of development permits.

Under the vested rights 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.  Early cases showed a willingness to extend the doctrine to a variety of permit types, including conditional use permits, grading permit applications, septic permits, and even shoreline permit applications (at least in some circumstances).  Washington’s legislature later enacted statutes that codified the vested rights doctrine for building permits and plat applications (RCW 19.27.095(1) and RCW 57.17.033(1), respectively).  Due in part to these legislative developments, Washington courts have generally been retreating from their initial, broad application of the vested rights doctrine to a variety of permit types.

In Potala, after a developer submitted an application for a shoreline permit for a portion of its multifamily project, the City of Kirkland enacted a moratorium and then downzoned the property, thereby reducing the allowable density of the project from 143 units to 60.  The developer sought and obtained a writ of mandamus from the Superior Court, which required the City to accept and process a building permit application under the regulations in effect at the time the shoreline permit application was submitted to the City.

The Court of Appeals overturned the Superior Court’s ruling, holding “that the filing of the application for the shoreline substantial development permit, without filing an application for a building permit, did not vest rights to zoning or other land use control ordinances.”  The Court relied heavily on the statutes that permit vesting of plat and building permit applications, pointing out that a shoreline permit does not fit into either category.  The Court relied on language in more recent Supreme Court vesting cases that refused to extend the common law vested rights doctrine to other types of land use approvals, such as site plan approvals.  The Court acknowledged that the vested rights doctrine has been recognized as a “common law” doctrine, but seemed to conclude that the vesting statutes supplanted (as opposed to supplemented) this common law doctrine.  As noted in the decision, “Washington’s vested rights doctrine originated at common law but is now statutory.”  The decision casts doubt on whether the common law vesting doctrine still exists independently of the vesting statutes.  Earlier court decisions suggested this was the case, and went as far as suggesting that the vesting doctrine had constitutional underpinnings.  But if vested development rights are constitutional in nature, the vesting statutes should not limit their application.

This is an issue that the Washington Supreme Court may have an opportunity to resolve soon.  In the meantime, developers are faced with continuing uncertainty regarding which of their permits may vest against current development regulations.  While it is clear that a complete building permit application will trigger vesting, this is not always helpful to developers who may need other land use approvals (such as design review, shoreline permits, SEPA determinations, etc.) before they know what to show in their building permit applications.

Related Posts – Vested Development Rights Not Triggered by Site Plan Application