REFORMING WASHINGTON’S VESTING LAWS

Vesting is when development laws “freeze” in relation to a particular permit to build. Vesting laws are aimed at assuring developers and other land owners a reasonable level of certainty in the rules they will have to abide by when they build.

Washington’s vesting law says that development laws “freeze” when an application for a development permit is filed, rather than when it’s approved or construction starts – meaning that laws can be “frozen” months and even years before a project is approved, let alone built.

While developers and other land owners should be assured a reasonable level of certainty in the rules after investing substantial sums in the development process, Washington’s exceptionally liberal vesting rules mean that updated laws developed by local governments, with citizen participation, can be sidestepped.

Laws change for a reason, and local governments are currently hamstrung from applying new and improved laws to permit applications because of Washington’s vesting laws.  Washington’s vesting law means that once a permit application is filed, no changes can be made to the laws applying to that project – even though there are mandatory public comment periods during which objections are often raised by the public relating to traffic, safety, and other issues.
 
To protect development interests, local governments and citizens, we must reform Washington’s vesting law to make it fair for all. To that end we should continue to allow projects to vest upon filing of a permit application except for at certain times such as:

•    when a local government is in the process of updating a zoning or development law;
•    when an appeal is ongoing;
•    when the project being considered is a large project on which the public should have an opportunity to meaningfully comment. 

In these situations, a project would vest at the time of permit issuance rather than at the time the permit application is completed. 

This solution strikes a fair balance between certainty and the public’s interest by having new and improved laws apply to permits up to the point the permit is granted.  Under any circumstance, development can still proceed and binding permits can be granted at any point.  Land owners and developers will be able to anticipate when the laws will change, and plan their projects accordingly.  Local government will be able to make changes in the law and know that permits will be granted following the new rules during the period of time the new law was considered, enacted, and appealed.  Citizens will have the ability to comment on and meaningfully affect large projects to ensure that they fit their community. 

Washington’s Vesting Rules Adversely Affect Communities Across the State

Thurston County
In November 2004, Wal-Mart approached the Tumwater City Council requesting they vacate a road to turn it into a 1000 space parking lot.  Citizens organized in protest to the additional traffic on the already clogged roads and impacts on local business.  The City Council responded with a moratorium enacted to prevent the creation of any retail store larger than 125,000 square feet, until the region could resolve its traffic issues.  Three hours before the vote, Wal-Mart submitted its application to build a 207,000 square foot super center, meaning that the City Council could do nothing to stop them.   

Spokane County
Spokane County approved the expansion of its Urban Growth Area to include the Five Mile Prairie neighborhood.  Citizens’ groups appealed to the Growth Board because the neighborhood contains extensive critical areas, including landslide prone areas and aquatic sensitive areas, and because there are inadequate police, roads, and schools to serve an urban expansion.  The Board later not only found the expansion noncompliant with the law, but also issued an order of invalidity, meaning that from the date of the order no further development could occur.  However, the permits applied for prior to the invalidity order will be built, even if they are in dangerous areas and underserved by police, schools, and adequate road access.

King County
A real estate developer sought to create a new urban community in a rural area.  Due to protracted litigation, urban dwellings had vested in the area over the course of years. The Supreme Court held that those vested rights meant that the entire area could be developed into a Fully Contained Community by the developer, even though the original basis for the vesting had been unlawful.  In this case, vesting meant that the appeals process could not protect an area from unlawful development.

Kitsap County
The County’s Urban Growth Areas were invalidated by the Growth Board, meaning that no development can proceed until they are fixed.  However, the Growth Board takes 6 months to decide a case, and during that time several subdivision applications in rural areas vested.  Washington’s vesting rules thus meant that developers could take advantage of the appeal process to build illegally.