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." Noble Manor v. Pierce County, 133 Wn.2d 269, 275 (1997). 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, 53 Wn.2d 125, 128-30 (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. West Main Assocs. Inc. v. City of Bellevue, 106 Wn.2d 47, 51 (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." Weyerhaeuser v. Pierce County, 95 Wn. App. 883, 891 (1999).
In a major new decision clarifying the scope of the vested rights doctrine, Division I of the state court of appeals, in Potala Village Kirkland, Llc, v. City of Kirkland, 183 Wn. App. 191 (2014), held 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.
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. Rhod-A-Zalea v. Snohomish County, 136 Wn.2d 1, 6 (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.
Common Law Application of Doctrine
(See discussion in Introduction of Potala Village Kirkland, Llc, v. City of Kirkland (2014), where the court held that the statutory doctrine replaces the common law doctrine.) The courts have applied the doctrine to the following:
- Conditional use or special use permit application - Beach v. Board of Adjustment, 73 Wn.2d 343, 347 (1968); Weyerhaeuser v. Pierce County, 95 Wn. App. 883 (1999)
- Stormwater drainage ordinances - Phillips v. King County, 136 Wn.2d 946, 963 (1998)
- Planned unit development application, if combined with a preliminary plat application - Schneider Homes v. City of Kent, 87 Wn. App. 774, 779-80 (1997), review denied, 134 Wn.2d 1021 (1998)
- SEPA policies - Victoria Tower P'ship v. City of Seattle, 49 Wn. App. 755, 761-62 (1987)
- Shoreline substantial development permit application - Talbot v. Gray, 11 Wn. App. 807, 811 (1974)
- Grading permit - Juanita Bay Valley Comm'ty Ass'n v. Kirkland, 9 Wn. App. 59, 84, review denied, 83 Wn.2d 1002 (1973)
The courts have held that vested rights do not apply to:
- Application for site development plan review, absent a building permit application - Abbey Rd. Group, LLC v. City of Bonney Lake, 167 Wn.2d 242 (2009)
- Impact fees - New Castle Invs. v. City of La Center, 98 Wn. App. 224 (1999), review denied, 140 Wn.2d 1019 (2000)
- Master use permit application - Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864, 876-77 (1994)
- Connection fees - Lincoln Shiloh Assoc., Ltd. v. Mukilteo Water Dist., 45 Wn. App. 123, 128, review denied, 107 Wn.2d 1014 (1986)
- Rezones - Hale v. Island County, 88 Wn. App. 764 (1997); Teed v. King County, 36 Wash. App. 635 (1984)
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 - East County Reclamation Co. v. Bjornsen, 125 Wn. App. 432, review denied, 155 Wn.2d 1005 (2005).
- Vested rights survive annexation - Schneider Homes v. City of Kent, 87 Wn. App. 774, 781 (1997), review denied, 134 Wn.2d 1021 (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 - Noble Manor v. Pierce County, 133 Wn.2d 269 (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 - West Main Assocs. v. Bellevue, 106 Wn.2d 47 (1986).
- Vested rights apply regardless of the existence of an enacted but not yet effective zoning change - Allenbach v. City of Tukwila, 101 Wn.2d 193, 197 (1984).
Significant Court Decisions
The following links to state supreme court and court of appeals decisions address vested rights in various land use contexts.
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.
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.
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.
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.
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.
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.
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.
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 storm water drainage ordinance in effect at the time of its short plat application apply to that application.
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."
A developer's submission of an application for a conditional use permit vests the developer with the right to use and 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.
Although a new surface water drainage code was adopted by King County in 1990, it did not apply to the challenged project because the project was vested to the prior code pursuant to RCW 58.17.033.
While nonconforming uses cannot be prohibited under new zoning ordinances, they are still subject to reasonable regulations under a local government's police power to protect the public health, safety, and welfare.
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.
The county had established a two-step rezone process, and the developer obtained preliminary approval (the first step) for a rezone. Before final approval, the growth management hearings board invalidated the zoning provisions under which preliminary approval had been granted. The court held that when local regulations provide that a rezone may be granted under a two-step procedure involving (1) preliminary use approval and (2) final site plan approval, a rezone applicant's rights vest upon preliminary use approval if preliminary use approval binds the local jurisdiction to the rezone decision. Under RCW 36.70A.250, a growth management hearings board may invalidate land use regulations prospectively only.
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.
A construction permit to build a new septic system does not allow an owner to use the system where the board of health also requires septic system owners to obtain operation permits in order to use their systems. Because a construction permit alone does not authorize the use of a septic system, requiring an operation permit does not deprive owners of a vested right.
The adoption of interim zoning controls and moratoriums under RCW 35.63.200 does not violate the vested rights doctrine. Although the county may not change the rules applicable to an already submitted application, it may enact a moratorium on new applications; and, in changing zoning rules, the county may enact emergency rules without a public hearing to prevent subsequent development applications from rendering the changes moot.
The court held that, "[w]ithin 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." The city's master use permit process, which allows vesting either when the developer submits a complete building permit application or when the City earlier issues a master use permit without a building permit application, comports with the vested rights doctrine.
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.
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.
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.
The court held that the vested rights doctrine applies to SEPA policies.
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.
Vested rights that follow upon the filing of a building permit application do not apply to a utility's connection charge.
An applicant for a building permit has a vested right to have the application considered under the zoning regulations in effect at the time the application is filed, regardless of the existence of an enacted but not yet effective zoning change that makes the development a nonconforming use.
The vested rights doctrine is not applicable to a rezone request.
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.
A property owner has a right to obtain a septic tank permit under existing septic tank regulations when the owner makes a valid application for a septic tank permit.
Vested rights apply after the filing of an application for a substantial development permit under the Shoreline Management Act.
As with a building permit application, the vested rights doctrine extends to grading permits.
Vested rights apply after the filing of an application for a conditional use permit.
- Hull v. Hunt, 53 Wn.2d 125 (1958) - building permit application
Deviating from the majority rule, the state supreme court stated: "we prefer to have a date certain upon which the right vests to construct in accordance with the building permit. " The court determined that vested rights are established upon the filing of a building permit application if it is consistent with the zoning ordinances and building codes in force at the time of application The permit applicant does not have to be the property owner for this rule to apply.
"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, 123 Wn.2d 864, 873 (1984).
Vested Rights Rules
Defining "Complete Application" for Vesting Purposes
- Burlington Municipal Code Sec. 15.16.010 - Building permit application - Consideration - Requirements
- Edmonds Municipal Code Sec. 19.00.025 (G) - Fully complete application