This page provides an overview of the application of the vested rights doctrine in Washington State, including significant court decisions and examples of codes.
Application of Doctrine
In Washington State, the vested rights doctrine "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." See Noble Manor v. Pierce County (1997).
Vested Rights Apply Upon Permit Application
The doctrine was originally applied by the state supreme court and in a different manner than is applied in a majority of states, where it is invoked only when substantial development has occurred in reliance on an issued permit. See Hull v. Hunt (1958).
The rationale for the Washington courts rejecting the majority approach and applying the doctrine upon permit application is to provide certainty and predictability in land use regulations. See West Main Assocs. Inc. v. City of Bellevue (1986).
Society suffers if property owners cannot plan developments with reasonable certainty, and cannot carry out the developments they begin.
The Washington approach is, according to the courts, based on "constitutional principles of fairness and due process, acknowledging that development rights are valuable and protected property interests." See Weyerhaeuser v. Pierce County (1999).
Vested Rights Apply Only when Required by Statute
Potala Village Kirkland, Llc, v. City of Kirkland (2014) clarifies the scope of the vested rights doctrine by citing prior state supreme court decisions and holding that the statutory vested rights doctrine replaced, rather than supplemented, the common law (court-made) vested rights doctrine.
Thus, under this decision, vested rights apply only in the context of building permit applications (RCW 19.27.095), short subdivision and subdivision applications (RCW 58.17.033), and development agreements (RCW 36.70B.180), although city or county policies may grant broader vested rights.
For further details, see Statutory Application of Doctrine below.
Vested Rights in the Context of a Nonconforming Use
The right to continue a nonconforming use despite a zoning ordinance that prohibits that use in that zone is sometimes referred to as a vested right. See Rhod-A-Zalea v. Snohomish County (1998). Though, this right in the context of a nonconforming use refers only to the right not to have the use immediately terminated in the face of a zoning ordinance that prohibits it. Id.
Statutory Application of Doctrine
The legislature has codified the vested rights doctrine as applied to:
- Building permit applications (RCW 19.27.095):
A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
- Subdivision applications (RCW 58.17.033):
A proposed division of land, as defined in RCW 58.17.020, shall be considered under the subdivision or short subdivision ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official.
- Development agreements (RCW 36.70B.180):
A development agreement and the development standards in the agreement govern during the term of the agreement, or for all or that part of the build-out period specified in the agreement, and may not be subject to an amendment to a zoning ordinance or development standard or regulation or a new zoning ordinance or development standard or regulation adopted after the effective date of the agreement.
When Vested Rights Apply, What Is Subject to Being Vested?
If vested rights apply to an application for a building permit or preliminary subdivision/short subdivision approval, they vest to "zoning or other land use control ordinances." Departing from appellate court interpretations that “land use control ordinances” are ones that have a restraining or directing influence on the use of the land regardless of whether adopted pursuant to State directive or local discretion, the Supreme Court in Snohomish County v. Pollution Control Hearings Board (2016) concluded that “land use control ordinances” mean only those ordinances adopted as a matter of local discretion, not those implementing a State mandate. “[T]he vested rights doctrine grew out of a concern that municipalities were abusing their discretion with respect to land use and zoning rules. That concern is not present in the [stormwater] Permit, as the State has mandated local governments to implement a stormwater management program that may take the form of stormwater regulations.” (See Slip. Op. at 16-17). With this interpretation, it is possible that courts will conclude other state-mandated regulations (e.g., shoreline, critical areas, etc.) will not be subject to vesting, as well.
The courts have held "zoning or other land use control ordinances" not to include:
Other Considerations Regarding Vested Rights
In addition, the courts have held with respect to the vested rights doctrine:
- Vested rights are not waivable; developer cannot selectively benefit from old and new regulations. See East County Reclamation Co. v. Bjornsen (2005).
- Vested rights survive annexation. See Schneider Homes v. City of Kent (1998).
- Submission of a completed plat/short plat application vests the developer with the right to both divide the property and to develop it in the manner disclosed in the application in accordance with the land use and zoning laws in effect on the date of submission of the application. See Noble Manor v. Pierce County (1997).
- Preapplication procedures that delay the vesting point until well after a developer first applies for project approval and that reserve almost unfettered ability to change ordinances in response to a developer's proposals violate the vested rights doctrine. See West Main Assocs. v. Bellevue (1986).
- Vested rights apply regardless of the existence of an enacted but not yet effective zoning change. See Allenbach v. City of Tukwila (1984).
Examples of Codes
"Within the parameters of the doctrine established by statutory and case law, municipalities are free to develop vesting schemes best suited to the needs of a particular locality." Erickson & Assocs., Inc. v. McLerran (1984).
Vested Rights Rules
Defining "Complete Application" for Vesting Purposes
Summaries of Significant Court Decisions
The following links to significant State Supreme Court and Court of Appeals decisions address vested rights in various land use contexts. The list is in chronological order.
Any stormwater management program adopted pursuant to the state-issued NPDES permit is not a “land use control ordinance” and therefore vesting principles do not apply.
See Snohomish County v. Pollution Control Hearings Board, ___ Wn. App. ___(12/29/2016) – The 2013-2018 Phase I municipal stormwater permit issued by the Washington Department of Ecology requires that certain cities and counties adopt regulations for controlling stormwater drainage and runoff to municipal stormwater sewer systems for new development, redevelopment, and construction activities. At issue in this case was a provision in the permit requiring local jurisdictions to adopt regulations that “shall apply to all [development] applications submitted after July 1, 2015, which have not started construction by June 30, 2020.” Several local jurisdictions, permittees, and a building industry group appealed this portion of the permit to the Pollution Control Hearings Board (PCHB), claiming it violated the statutory vested rights doctrine forcing them to retroactively apply new stormwater regulations to completed development applications. The PCHB upheld the provision in the 2013 permit, but the Court of Appeals reversed, holding that stormwater regulations adopted pursuant to the permit are “land use control ordinances” within the meaning of the vested rights statutes. The Supreme Court, in a unanimous decision, reversed the Court of Appeals. The court held that local ordinances adopted to implement the permit requirements are not “land use control ordinances” within the meaning of the vesting statutes and therefore not among the laws subject to the statutes’ protections. The court rejected arguments that the proper analysis was whether a regulation had a restraining or directing influence on the use of the land. Instead, the court concluded that “land use control ordinances” mean only those adopted as a matter of local discretion, not ordinances implementing a State mandate: “[T]he vested rights doctrine grew out of a concern that municipalities were abusing their discretion with respect to land use and zoning rules. That concern is not present in the [stormwater] Permit, as the State has mandated local governments to implement a stormwater management program that may take the form of stormwater regulations.” Slip. Op. at 16-17.
Critical areas ordinance amended after short plat approval
See Alliance Investment Group of Ellensburg, LLC v. City of Ellensburg, 189 Wn. App. 763 (2015) – Approval of a short plat or subdivision application that is not accompanied with a building permit application does not vest a right to have future development of the property considered under a critical areas ordinance that existed at the time of the short plat or subdivision approval. This right does not vest even if the existing ordinance was considered for purposes of granting the short plat or subdivision. Any specific project or proposed development of the land must meet the development standards in effect at the time a completed application for a building permit is filed.
Shoreline substantial development permit
See Potala Village Kirkland, Llc, v. City of Kirkland, 183 Wn. App. 191 (2014) – The court held that that the filing of an application for a shoreline substantial development permit, without filing an application for a building permit, does not vest rights to zoning or other land use control ordinances. The court held that, since RCW 19.27.095(1) does not include shoreline substantial development permits, the legislature intended that the vested rights doctrine would not extend to such permits. The court relied on the state supreme court's recent statement in Town of Woodway v. Snohomish County, 180 Wn.2d 165 (2014), "While it originated at common law, the vested rights doctrine is now statutory." The court rejected the argument that the vested rights statutes - RCW 19.27.095 (building permits), RCW 58.17.033 (subdivisions), and RCW 36.70B.180 (development agreements) - supplement common law vesting, concluding rather that they replaced the common law doctrine.
Vesting despite SEPA noncompliance
See Town of Woodway v. Snohomish County, 180 Wn.2d 165 (2014) – The vested rights doctrine applies to permit applications filed under plans and regulations that were later found to be noncompliant with SEPA. Local land use plans and development regulations enacted under the Growth Management Act are presumed valid upon adoption. Should a valid plan or regulation later be found to violate SEPA, the exclusive remedies provided by the GMA affect only future applications for development - not development rights that have already vested.
Building permit application containing misrepresentations does not vest
See Lauer v. Pierce County, 173 Wn.2d 242 (2011), overruling Lauer v. Pierce County, 157 Wn. App. 693 (2010) – The court concluded that the applicant's 2004 building permit application, which contained knowing misrepresentations and omissions of material fact, did not vest because it was not valid and did not comply with the regulations in place at the time it was submitted. The fact that the application was deemed complete as under RCW 36.70B.070(4)(a), because the county did not provide a written determination of incompleteness to the applicant within 28 days of submission, does not mean the application vests under RCW 19.27.095. To vest under that statute, a building permit application must be "valid and fully complete," which this application was not.
Application incompatible with the comp plan does not vest
See Kelly v. Chelan County, 157 Wn. App. 417 (2010) – Where a local jurisdiction's code authorizes the issuance of a conditional use permit only if the proposed development is compatible with the jurisdiction's comprehensive plan, an application for a conditional use permit does not vest the developer with the right to develop the property in the manner disclosed in the application according to the land use laws and regulations in effect on the date the application was filed if the proposed development is incompatible with the comprehensive plan.
Site plan review and vesting
See Deer Creek Developers, LLC v. Spokane County, 157 Wn. App. 1 (2010) – A developer does not have a due process right to the vesting of development rights under existing land use laws and regulations upon the filing of an application for site plan review if, under applicable laws and regulations, site plan review approval is not a prerequisite to the submission of a building permit application and the developer is not prohibited from filing a building permit application at the same time the site plan application is filed.
Site plan review and vesting
See Abbey Rd. Group, LLC v. City of Bonney Lake, 167 Wn.2d 242 (2009) – After the developer applied for site development plan review but before applying for a building permit, the city council passed an ordinance rezoning the subject property to a zoning category that precluded the sort of multifamily development the developer sought to construct. Concluding that Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864 (1994), was controlling and upholding a prior court of appeals decision, the state supreme court held that the developer, having failed to file a building permit application, did not have vested rights in the prior zoning. The court determined that the developer was not prohibited by the city code from submitting a building permit application at the same time as applying for site development plan review.
Can't waive vested rights
See East County Reclamation Co. v. Bjornsen, 125 Wn. App. 432, review denied, 155 Wn.2d 1005 (2005) – Vested rights are not waivable; a developer cannot selectively benefit from old and new regulations. If an applicant wishes to take advantage of a change in the law allowing a previously prohibited use, it may do so by withdrawing its original application and submitting another, but it may not select which laws will govern its application.
Short plat application vesting
See Westside Bus. Park, LLC v. Pierce County, 100 Wn. App. 599, review denied, 141 Wn.2d 1023 (2000) – Because the county accepted the developer's short plat application as complete and knew of the developer's intended use for the plat, RCW 58.17.033 vested the developer's right to have the stormwater drainage ordinance in effect at the time of its short plat application apply to that application.
No vesting for impact fees
See New Castle Investments v. City of La Center, 98 Wn. App. 224 (1999), review denied, 140 Wn.2d 1019 (2000) – RCW 58.17.033 does not apply to transportation impact fees of a city because they do not fall within the definition of "land use control ordinances."
See Noble Manor v. Pierce County, 133 Wn.2d 269 (1997) – Under RCW 58.17.033, a developer's submission of a completed short plat application vests the developer with the right to divide the property and develop it in the manner disclosed in the application according to the land use and zoning laws in effect on the date of submission.
Vested rights survive annexation
See Schneider Homes v. City of Kent, 87 Wn. App. 774 (1997), review denied, 134 Wn.2d 1021 (1998) – When the developer submitted its preliminary plat application to the county, it became entitled to have not only that application, but also its companion PUD application, considered under the county ordinances then in effect, and even though the land was annexed by a city in the interim.
Ambiguous vesting ordinance
See Friends of the Law v. King County, 123 Wn.2d 518 (1994) – In the absence of an ordinance specifying the requirements for a "fully completed" preliminary plat application, a developer's good faith attempt to comply with the ambiguous terms of existing ordinances may be sufficient to vest the application upon its submission under RCW 58.17.033.
EIS and vesting
See Adams v. Thurston County, 70 Wn. App. 471 (1993) – A municipal ordinance requiring that a final environmental impact statement (EIS) be completed before a previously submitted preliminary plat application is deemed a fully completed application for purposes of determining when development rights vest conflicts with RCW 58.17.033(1), which vests development rights on the date a complete and legally sufficient preliminary plat application is submitted, and is invalid. The inclusion of an EIS as a contingent requirement for a fully completed plat application would violate the intent of RCW 58.17.033 and frustrate the purpose of the vesting rule.
Exception to vesting requirement
See Valley View Indus. Park v. Redmond, 107 Wn.2d 621 (1987) – The state supreme court applied the exception to the vested rights rule that was developed in Parkridge v. Seattle, 89 Wn.2d 454 (1978). The court determined that the exception applied because: (1) the developer diligently and in good faith attempted to obtain building permits; (2) city officials explicitly frustrated the developer's attempts; and (3) as a result, the developer's building permit applications were incomplete.
Delaying point of vesting
See West Main Assocs. Inc. v. City of Bellevue, 106 Wn.2d 47 (1986) – The city's ordinance prohibited the filing of a building permit application for any proposed project until after several approvals are obtained. The court held that the ordinance upsets the vesting doctrine's protection of a citizen's constitutional right to develop property free of the "fluctuating policy" of legislative bodies by delaying the vesting point until well after a developer first applies for project, thus reserving for the city an almost unfettered ability to change its ordinances in response to a developer's proposals.
No vesting of connection charge
See Lincoln Shiloh Assoc., Ltd. v. Mukilteo Water Dist., 45 Wn. App. 123, review denied, 107 Wn.2d 1014 (1986) – Vested rights that follow upon the filing of a building permit application do not apply to a utility's connection charge.
See Parkridge v. Seattle, 89 Wn.2d 454 (1978) – The court created in this decision a limited exception to the requirement of completeness of building permit applications for vesting purposes, where the developer makes diligent attempts to complete the application prior to the zoning change but is obstructed by the local government.