The 1995 legislation granting the Growth Management Hearings Boards the authority to invalidate GMA comprehensive plans and development regulations also directed the Commission to study the impact on the goals of the GMA of allowing non-compliant plans to remain in effect during appeals. This raised several issues about Washington's vesting laws. The study the Commission was directed to undertake only addressed a small subset of the larger issues involving vesting. Vesting in Washington "refers generally to the notion that a land use application, under the proper conditions, will be considered only under the land use statutes and ordinances in effect at the time of the application's submission." Noble Manor v. Pierce County, 133 Wn.2d 269, 275 (1997). The vested rights doctrine has been the subject of numerous decisions by the Washington Supreme Court.
The Washington Supreme Court has stated that:
West Main Assocs. v. Bellevue, 106 Wn.2d 47,50-51, 720 P.2d 782 (1986). The court has recognized that the Washington rule, which allows for vesting at the time a complete application is submitted, is not the rule applied in most other states.
The Supreme Court has also recognized that the vesting doctrine does have other impacts.
Erickson & Associates v. McLerran, 123 Wn.2d 864,874 (1994).
It's enabling statute directs the Commission to:
RCW 90.61.040(4). The direction to conduct the study was in response to the provision in ESHB 1724 providing that county and city comprehensive plans on appeal to a Growth Management Hearings Board would remain valid, and that projects could vest under those plans and development regulations, unless a Growth Management Hearings Board entered an order to invalidate the plan or development regulation. The study was intended to determine to what extent vesting to those plans and development regulations that did not comply with the GMA interfered with meeting the GMA's goals and policies.
In order to conduct the study required RCW 90.61.040(4), the Commission contracted with David Evans and Associates to collect the information needed to make the analysis. The Commission concluded that to understand the significance of vesting during a period of non-compliance or invalidity, it is also important to know the amount of permit activity at other significant times during the comprehensive planning process, including the period prior to plan adoption. The contractor was asked to collect the following information:
The study limited its review to ten counties that had comprehensive plans or development regulations held invalid or not in compliance with the GMA. Counties were selected because issues involving vesting and GMA goals and policies were more likely to occur in rural areas than in urban areas.42 The study examined a limited number of permit types, including formal subdivisions, short subdivisions, planned unit developments, master planned communities, master planned resorts, and major industrial developments. The following is the summary and conclusions from the report submitted to the Commission by David Evans:
Report on Permits Vested During Periods of Invalidity or Non-Compliance Under the Growth Management Act, Report to the Land Use Study Commission, David Evans and Associates, pp. 24-25 (September 1998) Based on the limited information available from a study prepared for the Commission, no changes to Washington's vesting statutes are recommended at this time to address the specific issue the Commission was asked to consider: whether vesting during a period of time a comprehensive plan is on appeal results in the approval of projects that are inconsistent with a comprehensive plan that is found in compliance with the GMA.
Some Commission members and environmental community representatives expressed disappointment with the data collected. They suggest a further general study of the vesting issue should be considered. The environmental community believes there is anecdotal evidence that Washington's vesting law, which grants vesting at the time a complete application is submitted, creates problems for implementation of the GMA. However, there has been no systematic study to indicate whether vesting in general is a problem.
Since many comprehensive plans have now been adopted, the impact of vesting during the adoption and appeal of comprehensive plans may be less of an issue in the future. Also local governments do have authority to adopt moratoria to limit vesting during plan adoption if a problem arises. Some advocate, however, that the option of a moratorium is not sufficient, and that more direct legislative changes to the vesting laws are appropriate.
There are equally strong views that property rights and vested rights must be strengthened in any future consolidated land use code. Advocates of property rights view the GMA and other environmental laws as infringements of their constitutional rights.
Any legislative change to the current rules on vesting would be a very controversial issue and would need further legal analysis, given the doctrine's judicial roots.The Washington doctrine protects developers who file a building permit application that (1) is sufficiently complete, (2) complies with existing zoning ordinances and building codes, and (3) is filed during the effective period of the zoning ordinances under which the developer seeks to develop. See, e.g., Allenbach v. Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984). Once a developer complies with these requirements a city cannot frustrate the development by enacting new zoning regulations.
The purpose of the vesting doctrine is to allow developers to determine, or "fix," the rules that will govern their land development. See Comment, Washington's Zoning Vested Rights Doctrine, 57 Wash. L. Rev. 139, 147-50 (1981). The doctrine is supported by notions of fundamental fairness. As James Madison stressed, citizens should be protected from the "fluctuating policy" of the legislature. The Federalist No. 44, at 301 (J. Madison) (J. Cooke ed. 1961). Persons should be able to plan their conduct with reasonable certainty of the legal consequences. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692 (1960). Society suffers if property owners cannot plan developments with reasonable certainty, and cannot carry out the developments they begin.
Development interests and due process rights protected by the vested rights doctrine come at a cost to the public interest. The practical effect of recognizing a vested right is to sanction the creation of a new nonconforming use. A proposed development which does not conform to newly adopted laws is, by definition, inimical to the public interest embodied in those laws. If a vested right is too easily granted, the public interest is subverted.
Monitor instances state-wide of the vesting of project permit applications during the period that an appeal is pending before a growth management hearings board, as authorized under RCW 36.70A.300. The commission shall also review the extent to which such vesting results in the approval of projects that are inconsistent with a comprehensive plan or development regulation provision ultimately found to be in compliance with a board's order or remand. The commission shall analyze the impact of such approvals on ensuring the attainment of the goals and policies of chapter 36.70A RCW, and make recommendations to the governor and the legislature on statutory changes to address any adverse impacts from the provisions of RCW 36.70A.300. The commission shall provide an initial report on its findings and recommendations by November 1, 1995, and submit its further findings and recommendations subsequently in the reports required under RCW 90.61.030.
There were two major issues which prevented the complete collection of data.
7.1 Data Availability
Timing. Tight time constraints of the study prevented the examination of individual permit files to determine the projects' compliance with the goals of GMA. Additional complications arose with the individual stages of the counties in planning under GMA. In addition to several cases which are still pending before the Boards, some counties (e.g. Skagit and Jefferson) were adopting revised comprehensive plans within the time frame of this study. Staff members involved with those tasks were understandably unavailable to assist in permit data collection. Compliance hearings in these instances have yet to occur.
Databases. Few, if any, jurisdictions have compiled databases of permit information with the intent of tracking the impacts of vested permits. Many of the issues examined by this study require the ability to search using geographical parameters which was not possible. Other technical difficulties arising from the incompatibility of database versions used within some individual jurisdictions which temporarily prevented the use of pre-existing electronic data.
7.2 Suggestions for Further Study
To more specifically address questions on issues which have the potential to frustrate the goals of GMA requires that individual permit application files be scrutinized by either the Commission, its contractor(s), or county employees. Some questions include:
How many new developments will be built at higher densities than would have been permitted by the plan or regulation deemed compliant by the Board?
How many acres of resource lands will be lost to inappropriate development due to vesting?
The number of hours required for this intensity of data collection is outside the scope of this initial study. Should the Commission or others decide to pursue the issue of vesting further, this appears to be the next logical step.
7.3 General Observations
While the lack of permit data prevented specific, detailed conclusions, general observations on the impact of vesting were made based on the reseachers [sic] collective experiences. Two observations are pertinent. First, none of the jurisdictions contacted expressed an opinion that vesting was a major land use issue. Second, to the extent that vesting occurs it appears more often as a local issue and does not have widespread impacts across the jurisdiction.
The normal response of a local government to a land use issue with widespread impacts is to allocate additional resources, draft new land use regulations, or both. The additional resources could be the provision of new staff through the budget process or the reassignment of existing staff. New regulations are often also drafted to provide the legal basis for regulating the subject land use. Sometimes the regulations take the form of a moratorium on permit applications.
With one exception, local governments responding to the survey were not using these tools to respond to vesting. None of the jurisdictions communicated that they had hired new staff or reassigned existing staff to deal with vested permits despite repeated conversations with their staff on the issue from the director level on down. It is our belief that, if vested permits were a considered to be a major land use issue for these jurisdictions, they would have responded to the problem in some fashion and would have informed the researchers. From the researchers inquiries, this was not the case. The only exception was the development moratoria enacted by Jefferson County in response to a potential rush to the permit counter. But the general observation stands that the jurisdictions did not perceive there was a major land use issue or controversy associated with vested permits and therefore were not responding as expected.
Nonetheless, based on anecdotal and documented evidence, vested permits can create land use issues on a case-by-case basis. Generally, these cases are localized in their impact. They do not usually set precedent for other applications because of the requirement for submitting the permit within a relatively narrow window of opportunity. Also the cost of preparing complete land use applications sufficient to meet the vesting requirements is not insignificant. These time and cost constraints inhibit decisions by local land owners to act on short notice, thus dampening most potential rushes to the permit counter to take advantage of a window.
Vested permits can impact local land use issues because they may be inconsistent with the existing or proposed land uses. Neighbors and other local residents may be sufficiently upset by the vested permit to file an appeal. But the impacts of the vested permit are usually confined to the immediate surroundings. While these impacts are of importance to the local residents, they are less important to the overall land use plan because of their limited number and scope of impact.
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