The Washington Supreme Court recently issued a new decision on vesting of development rights in, Snohomish County v. Pollution Control Hearings Board, et al., case no. 92805-3. Vesting development rights generally means that the applicant has the right to have its proposal considered under the land use regulations in effect at the time a complete building permit application or preliminary plat application is filed even though land use regulations may change by the time the applicant receives approval.
The Court found that mandatory stormwater regulations adopted by local governments under the state’s National Pollution Discharge Elimination Program (NPDES) permit (particularly the 2013 Phase I Permit), are not land use controls. Therefore, development projects cannot automatically vest to these stormwater regulations. In finding that these regulations are not land use controls, the Court focused on the source of authority for the regulations. The Court determined that the vesting doctrine originated from the desire to limit the discretion of local governments. There, the stormwater regulations were state mandated and were not adopted at the discretion of local government.
Even though the decision focused on the 2013 Phase I permittees, the decision also affects Phase II permittees. It’s important to note that these permits contain deadlines for jurisdictions to adopt stormwater regulations. And, not all jurisdictions have yet adopted regulations under these permits. This leaves vesting to stormwater regulations in flux.
Since the Court did not opine on whether local jurisdictions are prohibited from addressing stormwater regulations in development agreements, it appears these agreements may still be a useful tool on this issue. Local jurisdictions and developers that wish to secure predictability for projects which may take many years to complete may still wish to negotiate a development agreement that addresses the stormwater regulations which will apply to a project. Also, it’s possible the WA Legislature will attempt to adopt a new vesting regulation to address state mandated regulations.
Simi Jain, Attorney
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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