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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.
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