Vested Rights and the Hirst Decision

This is the fifth post of a five-part series discussing the Washington Supreme Court’s decision in Whatcom County v. Hirst.

Whatcom County v. Hirst raises a number of questions, many of which I addressed in my earlier posts. One outstanding question, however, relates to the application of Washington’s vested rights doctrine. Specifically, whether one can have a vested right to use a permit-exempt well as the water source for development (subdivision or building permit)?

The answer: it depends. If the regulation provides that a permit-exempt well will no longer be acceptable as an adequate provision of water for development, there could be vesting against that regulation. However, if the regulation provides that permit-exempt wells will need to be backed by mitigation certificates from water banks, all applications would be subject to that regulation.

Washington’s Vested Rights Doctrine

Our state’s vested rights doctrine provides that an application is subject to, and reviewed under, the land use controls in effect at the time of submittal of a complete application for a subdivision or building permit. If the regulation is a land use control and it changes during the review of a vested application, then that application is subject to the regulations in effect at the time of complete application submittal, not to subsequent changes. If the regulation is not a land use control and it changes during the review of the vested application, then that application is subject to the regulation in effect at the time of approval/denial.

What is a “Land Use Control”?

So the question becomes “what is a land use control?” A land use control is, not surprisingly, a regulation that controls the use of land. In other words, it affects what occurs on the ground.  This is a regulation that affects, for example, lot count, access, road standards, or water system.  It is not a regulation that would increase the cost of the project (such as imposition of impact fees) or that provides for an additional permit before a storm water system is implemented. If it limits what can occur on the ground, it is a land use control and one can vest against it. If it allows the same thing to occur on the ground, but requires additional fees, permits, or review, it is not a land use control and everyone will be subject to the new regulation. Additionally, it has recently been clarified in Snohomish County v. Pollution Control Hearings Board that a “land use control” to which an application would vest is only a local regulation, not a state or federal regulation.

Are Local Regulations Related to Permit-Exempt Wells “Land Use Controls”?

It could be argued that a local regulation that is imposed to deal with issues of water quality and quantity that prohibits permit-exempt wells as a means of providing adequate water for development is a “land use control” (it affects what water system is physically put on the ground) and so can be vested against. However, one could also argue that, because legal availability of water is mandated by state law (RCW 58.17.110, 19.27.097), a regulation prohibiting permit-exempt wells is not something against which one could vest.

I think that if the local regulation merely requires permit-exempt wells to be backed by a mitigation certificate from a water bank (regardless of cost or availability), then that regulation is not a land use control and every application will be subject to it. The regulation does not affect what occurs on the ground, it just increases the cost and requirements for such.

Even if mitigation is not available and so a de facto effect on the ground occurs, I would argue that it is not the regulation that is causing the effect, but rather the unavailability. Hence, the regulation, I would argue, is not a land use control. What would be keeping projects from getting mitigation is the reluctance of water right owners to create banks, not the municipal regulation requiring mitigation.

Kittitas County’s Approach

As a ”belt and suspenders” approach to making sure local regulations of water provision were not considered development regulations or land use controls, Kittitas County, for example, codified its water availability requirements in the Health Department code chapters rather than the development code. Additionally, Kittitas County, pursuant to the authority in RCW 58.17.170(3), declared (in both its comprehensive plan and county code) that new unmitigated ground water use constituted a public health and safety threat and eliminated any vested rights to such. This is another means of being clear that there are no vested rights to new permit-exempt wells.

For more information on the implications of the Hirst decision, see the four prior posts in this five-part series.