As most people were stocking up on party favors and champagne, the Supreme Court of the State of Washington issued a decision on December 29, 2016 in the case of Snohomish County, et al v. Pollution Control Hearings Bd., et al, 92805-3 with huge ramifications for the vested rights of those seeking to build new projects of any kind.
In short, the Supreme Court found that the State’s vested rights doctrine does not apply in the case of municipal storm water permits (a/k/a NPDES permits) and the application of storm water regulations for developments because they are not “land use control ordinances.” All development applications submitted after July 1, 2015 and projects approved prior to that that date but not under construction by June 30, 2020 are now subject to being impacted by changing storm water regulations.
For those less familiar with vesting, the vested rights doctrine in Washington generally entitles developers to have a land development proposal processed and considered under the regulations in effect at the time a complete application is filed. This protects the application against subsequent changes to zoning and land use regulations.
And, in Washington’s complex Growth Management Act regulatory system, vested rights have been critical to countering local regulatory efforts to stop or alter growth via development (e.g. moratoria, design standards, zoning overlays, etc.).
All projects, whether they be residential, commercial or industrial, are going to need to review how the new standards may impact them on a project by project and jurisdiction by jurisdiction basis given that the regulations have been phased in starting with the most populous counties.
It may be possible to work individually at the local levels of permitting to limit the impacts of the decision on your project based on how those jurisdictions interpret things such as what constitute local development approval and/or what constitutes a complete application. However, this should be done with caution as there is already been public records requests filed in at least one jurisdiction to identify what projects may be subject to the new rules – a signal that individual appeals of projects may be forthcoming.
Regardless to what approach you might take for your project(s), the strength of your design, engineering and project management team will be critical. And it won’t hurt to be ready to play some politics.
Can This Be Fixed?
Perhaps. For example, the legislature might be able to modify the definition for what are land use regulations, but it will be an uphill battle against likely political headwinds, which is more often than not the case when it comes to business concerns in Washington State.
The End is Not Near
For those looking for relief in the form of a period of certainty and predictability – the end is not near. In fact, appeals to things like Snohomish County’s critical areas regulations (CAR) are soon to be heard in the courts. And, if recent history is an indicator, more challenges lay just ahead in the bumpy road of development.
Disclaimer: we are not attorneys and the information contained herein is not a legal opinion, but a professional opinion based on our experience working on land use projects in Washington State. Before making decisions, you’ll want to consult with you project team (including your legal counsel, engineers and etc.). If you’d like some recommendations on good land use attorneys and consultants, we’re happy to help.