What are “Land Use Control Ordinances” for Purposes of Subdivision Application Vesting?
Photo courtesy of Ann Walsh.
Note: In December 2016, the Washington Supreme Court issued a significant decision interpreting the statutory vested rights doctrine and further clarifying the term “land use control ordinance” in the vesting statutes. For more information, see Washington Supreme Court Issues Significant Vesting Decision.
RCW 58.17.033, the vesting statute that applies to subdivision and short subdivision applications, states that a complete application for preliminary plat or short plat approval is to be considered under the subdivision/short subdivision ordinance and “zoning or other land use control ordinances” in effect at the time that application is submitted. A city planning director recently asked me about how, if at all, “land use control ordinances” is defined, and whether that would include things such as permit applications fees.
So, what is a “land use control ordinance” in this context? The phrase is not defined in the subdivision statutes in chapter 58.17 RCW. But the Washington State Court of Appeals has on a few occasions defined "land use control ordinances” basically as those that impose “a restraining or directing influence over land use.” See, e.g., New Castle Invs. v. City of La Center, 98 Wn. App. 224, 229 (1999), review denied, 140 Wn.2d 1019 (2000).
So are fees covered by the subdivision vesting statute?
The courts have concluded that impact fees, for example, do not have a restraining or directing influence over land use, and, consequently, do not fall under the definition of “land use control ordinance” for purposes of the subdivision vesting statute. Impact fees simply increase the cost of a project, and the vested rights doctrine does not protect against such increased costs. Belleau Woods II, LLC v. City of Bellingham, 150 Wn. App. 228, 239 (2009), review denied, 167 Wn.2d 1014 (2012).
That reasoning would apply, by extension, to other types of fees in the context of the subdivision vesting statute, whether they be permit fees, utility connection fees, or any other type of fee. Such fees do not affect any physical aspects of development.
If a developer pays the permit fee as part of a complete application for a preliminary plat and the city or county later increases that fee, does the developer owe the difference?
No, not in my opinion. Although permit application fees are not subject to vesting, if a developer pays the fee when it is due, any subsequent increase in that fee would not apply. That is because the fee has already been paid, and so there is no point at which the increased fee could be applied. Impact fees or connection fees, on the other hand, are not paid at the time of preliminary plat or short plat application. Any subsequent increase in those fees prior to the point at which they are due would apply to the plat or short plat.
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