Washington's Vested Rights Doctrine Does Not Allow Developer to Selectively Benefit from Old and New Laws

[February 2005]

In a decision handed down on Jan. 25, 2005, the Division II Court of Appeals for the state of Washington held that the vested rights doctrine does not allow a developer to selectively waive its vested rights in order to benefit from newly-enacted regulations. East County Reclamation Company v. Bjornsen, ___P.3d.____, 2005 WL 148769 (Jan. 25, 2005). The case involved a developer who had applied for permits to construct a landfill in Clark County in 1989 and 1991. At the time the applications were deemed complete, the 1985 Solid Waste Management Plan governed landfill development. That plan was amended in 1994. The developer finalized its environmental impact statement (EIS) in June 2001. The adequacy of the EIS was challenged, forcing the examiner to address the threshold question of which law applied to the project: the 1985 solid waste management plan in effect at the time the application was filed, or the amended version of 1994. In reviewing a challenge to the adequacy of the EIS, a hearing examiner held that the developer could waive its vested right to have the proposal reviewed under the 1985 Solid Waste Management Plan in effect at the time of the application, and instead elect to have it reviewed under the 1994 amended plan. At the same time, the examiner held that the developer could avoid compliance with concurrency and critical area requirements of the amended plan by claiming vested rights under the 1985 plan. The examiner then proceeded to evaluate the EIS accordingly.

The Superior Court reversed the examiner's decision, finding that inappropriately allowed a selective waiver of land use regulations. The Court of Appeals affirmed the Superior Court, holding that the vested rights doctrine does not allow a developer to selectively waive its vested rights so it can benefit from parts of newly-enacted regulations without having to comply with other parts of those same regulations. The Court of Appeals acknowledged that the vested rights doctrine exists for the benefit of developers, and, like other due process rights, can be waived. It held, however, that allowing a selective waiver of applicable laws would actually run contrary to the purpose of the vesting doctrine—to fix the land use statutes and ordinances that govern an application. Once a developer files a complete application, they vest to the land use laws in effect at such time and cannot have their application considered under subsequently enacted laws without having to comply with all other parts of the new regulations. According to the East County decision, if an applicant wishes to take advantage of a change in the law, the applicant must withdraw its original application and submit another. In reaching this decision, the Court of Appeals affirmed that the land use regulations that govern a land use permit application are those in effect at the date of complete application, not those regulations enacted subsequently—regardless of whether subsequently enacted regulations are more or less favorable to the applicant.

This Advisory is a publication of the Real Property Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in real estate, land use and construction law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2005, Davis Wright Tremaine LLP.

return to Advisory Bulletins main page