In the land use setting, vested rights are valuable property rights. The vested rights doctrine means that applicants for certain land use and building permits are subject only to the land use regulations in effect at the time the applicant files a complete application with a county or city. If, for instance, the county or city adopts stricter land use regulations after an applicant files a complete application, then those new regulations will not apply to the project. This is the case even if the new regulations prohibit the proposed use. Washington courts have repeatedly recognized that Washington’s vested rights doctrine provides a measure of certainty to developers and protects their expectations against fluctuating land use policy.
In a recent decision, however, the Washington State Court of Appeals, Division I, recognized the competing policy that vested rights are inimical to the public interest because the practical effect of the doctrine is to sanction the creation of a new nonconforming use. Thus the court in Graham Neighborhood Association v. Pierce County decided May 31, 2011, analyzed whether the vested rights doctrine should extend to the situation before the court. In Graham, the land use applicant filed a preliminary plat application that did vest, but later Pierce County adopted an ordinance allowing the County to nullify an application if it did not approve it within one year. The County applied the rule in this case. The applicant argued this “divesting” ordinance itself did not apply because its application vested before the County adopted that ordinance. The court disagreed finding that since the divesting ordinance was not a land use control ordinance or zoning regulation, but rather a procedural ordinance, the vested rights doctrine did not apply to it. The County could enforce the one year rule even though this rule was adopted after the application vested. This case offers a reminder for land use applicants to diligently monitor permit expiration dates, and since each county and city have their own codes and can adopt their own vesting schemes, it is important for applicants to be aware of the rules in the jurisdictions the applicants work in. Click here to read the full case.