Odd provision in state law severely undercuts growth management
From a huge development planned near Black Diamond in King County to Spokane, citizens find that developers' rights trump growth laws and environmental concerns.
Washington State Department of Ecology
First of a two-part series
An unusual provision of Washington law has repeatedly authorized major real-estate developments to go forward even after they’ve been declared urban sprawl that violates the state’s landmark Growth Management Act.
In 2007, nearly 1,000 homes were given the green light in Clark County in Southwest Washington where 10 would have been allowed otherwise, and 514 lakeside acres previously set aside for farming were designated instead as industrial and office park land, InvestigateWest’s reporting reveals. In 2005 in Spokane County, the practice authorized more than 1,500 homes to be built where 22 or fewer would otherwise have been allowed in the Five Mile Prairie neighborhood, and up to 480 homes where eight would otherwise be permitted near the Spokane airport.
Last year, this practice allowed one Whatcom County developer to lock in the right to build 1,246 homes near the Canadian border 25 days before passage of a law that allowed only one-tenth that number.
The Growth Management Act — passed in 1990 to rein in runaway development that chokes roads, spurs water pollution and carpets the countryside in concrete — is only one of a number of environmental and land-use laws to be undercut by a feature of Washington law that gives developers unusually favorable treatment compared to most other states.
Known as “vesting” and dating back more than half a century, the legal provision means that if a developer learns a new law is coming that would restrict building, he or she can draw up preliminary plans for a subdivision, file the paperwork with the county — and avoid the new, more restrictive rules. Even if construction doesn’t start for years.
This system contributes to urban sprawl that eats up undeveloped rural land and increases pollution of waterways from tainted water running off roofs, streets, and parking lots.
“It’s maddening! Savvy developers with high-paid consultants come in and game the system,” said David Bricklin, a Seattle attorney who has represented neighborhood and environmental groups fighting such developments. “It undermines the democratic process.”
But developers say they invest many thousands of dollars in preparing development proposals and count on Washington’s vesting law to preserve their investments.
They argue that already-high housing costs will rise even more if there are restrictions on vesting. And they call the practice a “lifeline” for a struggling industry.
“For us it’s like the last life preserver we have out in the choppy seas, and we’re hanging onto it for dear life,” said Jodi Slavik, an attorney and lobbyist with the Building Industry Association of Washington. Apart from the vesting laws, she said, “We have one of the most restrictive states in terms of the regulatory climate on the building industry.”
State Growth Management Hearings Board member Joyce Mulliken of Moses Lake said that although only a small number of local governments have purposely allowed developers to skirt the state’s law, the system has been abused in some cases.
“That’s not the way it’s intended to be,” she said. “That’s not honoring the intent of the law.”
In many cases, the end result is development built to older environmental and construction standards long after new standards are in place. Hearings Board member Margaret Pageler of Seattle acknowledges the problem, but says any fixes are in the Legislature’s hands.
Even developers building on lots not affected by the Growth Management Act have long benefited from Washington’s generous vesting provisions. These measures allow lots to be developed under rules that are sometimes decades old. As a result, property owners avoid new environmental regulations and lot size rules.
In King County, citizens living in and around the small rural town of Black Diamond on Oct. 11 petitioned King County Superior Court to halt a developer who is trying to lock in rights to nearly quadruple the town’s population and build 1 million square feet of big-box stores and other retailers. Opponents claim the Yarrow Bay developments’ plans to bring 6,000 new homes to a town that has about 1,500 people would also cause pollution of nearby Lake Sawyer because the town passed an ordinance that seeks to freeze in time restrictions on polluted runoff. The developer and town deny that the development would pollute the lake.
In Pierce County, a developer filed an application in 1993, giving him the right halfway through this decade to break ground on 402 homes on a 206-acre property. Today’s rules would allow just 15 homes on the land. The development went in right next to a facility that bred endangered wolves, which had to move.
In Snohomish County, developers who learned in 2005 the county council was considering protecting wetlands, streams, and other environmentally sensitive areas hustled to the permit counter, beating the clock to build more homes. While 616 development applications came in during the two years before the law went into effect, only about one-fifth that many came in during the two years afterward.
In Whatcom County, a builder with land by Lake Samish near Bellingham, citing a 1992 development application, says he is entitled to build 47 homes on 25 acres, where five would be allowed under today’s rules. This project was hard-fought by protesting neighbors of the Sleepy Hollow development, but a 2009 hearing examiner ruling went in developer Derek Stebner’s favor. He will also benefit from a 2001 ruling allowing him to leave 50-foot stream buffers to protect fish instead of the currently required 100-foot buffers.
Washington's vesting provisions came into sharp relief in a recent case before the Washington Pollution Control Hearings Board, the court where folks unhappy with state environmental rules often land. Part of an enormously complicated case out of Clark County in southwest Washington posed this question: Does Washington's half-century-old practice of locking in developers' rights apply even if it runs afoul of newer state and federal laws? In a ruling last week, the pollution board said vesting does not trump the Clean Water Act. But developers and county officials are expected to appeal to Superior Court.
Meanwhile, in Olympia, Sen. Adam Kline has tried several times to make Washington’s vesting law more like those in most other states, where building rights aren’t locked in until construction starts. He says he’ll try again this year and he has a new game plan.
“Washington has literally the earliest possible date” for locking in developers’ rights to build, said Kline, D-Seattle. “It’s the least sexy but probably one of the most important aspects of environmental law.”
Back when Seattle had no Space Needle and kids were digging a new form of music called rock ‘n’ roll, the would-be developer of a 12-story apartment house on Queen Anne got the city to issue him a building permit — one day before restrictions on apartment-house heights went into effect. There was just one problem: Developer A.A. Hunt didn’t yet own the property not far from the modern-day Space Needle.
Neighbors, angry that they were about to lose their stunning views of Elliott Bay and downtown, went to court. They lost. In one of the crucial first few cases to establish Washington’s vesting laws, the Supreme Court decided that the most “practical” way to decide when building rights are guaranteed is to pick the very earliest contact the developer has with the government — when he or she submits an application for a building permit. Later court cases and ultimately the state Legislature in the 1980s expanded this concept to include applications to subdivide land for development.
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Comments:
Posted Wed, Jan 12, 5:40 a.m. Inappropriate
With the state and country littered with McMansions that nobody wants, who will be buying all this sprawl development? It seems this land is so overbuilt with single family housing that half the country could move in with the other half and hardly be inconvenienced.
I suppose the very last of the oil will go to build yet more roads and sprawl. It's hard to see any fate for the McMansions other than "salvage, slums and ruins." Sadly they will not be very charming ruins. Will there someday be people who wonder about strange slabs of granite laying about, perhaps accompanied by a bit of gypsum dust? Will they have any idea that these were once the last word in countertops?
Posted Wed, Jan 12, 7 a.m. Inappropriate
King County introduced it's illegal CAO regualtions, a taking without compensation, all of the Seattle -centric County Councilman were for it. Of course they were more than happy to ignore there own CWPP's when they could line their pockets in the Maple Valley donut hole deal. The County mis-used the TDR program to make the Development more attractive to Yarrow Bay. Now through programs like PSRC's 2040 plan and the Transit Task Force, they will be steering all future transit to the urban core. Tying all metrics to Job centers, social equity, transit dependant populations and density requirments who by definition can only be found in the West sub area ( Seattle).
Posted Wed, Jan 12, 10:38 a.m. Inappropriate
I certainly appreciate the issue, but the tone of the article seems to imply something untoward is going on, & I don't think it's right to make Master Builders wear that responsibility. Bricklin & others certainly know that the legal principle of vesting predated the GMA, & the GMA itself affirms the (state) constitutional provision on private property takings. How would you propose to cure the regulatory takings claims that ensue if cities/counties or the state enacts legislation somehow undoing vested subdvisions? Reimbursement to property owners for their lost value in such a situation as well as legal costs will come from the public coffers.
Posted Wed, Jan 12, 11:33 a.m. Inappropriate
Allowed developer sprawl will create costs to be passed on to taxpayers regardless, for schools, roads and sewers. The issue isn’t whether the developers should be allowed to build; it is whether they should be able to vest in certain laws and regulations at the very earliest moment possible, with only conceptually designs. The King County project is (3) times the size of Snoqualmie Ridge and it has over a million square feet of commercial space out in the rural fringe. Our vesting doctrine grew out of case law recognizing that vesting rights is rooted in notions of fundamental fairness. A good case to read regarding this (the Appeals Courts sided with the City) is ABBEY ROAD GROUP LLC v. CITY OF BONNEY LAKE.
The Vesting doctrine reflects the recognition that development rights can represent a valuable and protectable property interest. Erickson, 123 Wn.2d at 870. Washington's rule is the minority rule, and it offers more protection of development rights than the rule generally applied in other jurisdictions. However, development interests can often come at a cost to public interest. The practical effect of recognizing a vested right is to potentially sanction a new nonconforming use. “A proposed development which does not conform to newly adopted laws is, by definition, inimical to the public interest embodied in those laws.” Erickson, 123 Wn.2d at 873-74. If a vested right is too easily granted, the public interest could be subverted. Erickson, 123 Wn.2d at 874. The conversation is more complex than can be discussed in this forum, but it is something we must recognize as rampant development for profit continues in these last areas.
"Our generation's challenge is learning to live peacefully and sustainably in an extraordinarily crowded world." — Tuomas Toivonen - Finnish composer "Masterplan" Lyrics
Posted Wed, Jan 12, 11:46 a.m. Inappropriate
Our growth management is certainly half-assed. A lot of counties are too lax. We need better State mandates.
Posted Wed, Jan 12, 1:01 p.m. Inappropriate
Thank you Crosscut and Robert McClure! The abuse of the "vesting doctrine" has been ruining our rural areas, farms and forests, and overwhelming our urban neighborhoods with irresponsible development for many years. Despite our efforts, the so-called "mainstream" press has ignored this problem.
The Legislature needs to undo the developer agenda that was passed by the Legislature in 1995. That Legislature weakened the State Environmental Policy Act, created a special developer friendly court procedure (LUPA), and allowed "contracts" with developers that can last decades and shield them from new laws to protect the public interest. That infamous Legislature made our vesting laws even worse.
Make no mistake about it, the Master Builders Association and their developer lobbyist allies promoted these loopholes and got their elected dupes to pass them under the guise of "regulatory reform". Their gain is the public's loss as the negative consequences of irresponsible development come home in the form of higher taxes, crowded schools and roads, degraded environments.....and in the current economy, vacant buildings and subdivisions.
The people express their will about land use and growth management by electing their local Councilmembers. Developer-friendly vesting laws negate the people's will by tying the hands of elected officials to do the people's work. Just one developer-friendly Council can accept a mere application, and then no future Council can change any condition for decades!
Thanks for including the horrible Yarrow Bay Development proposal in Black Diamond. Readers might go to www.saveblackdiamond.org for more information about this monstrous abuse of our land use policies.
Brian Derdowski
Public Interest Associates
King County Councilman 1990-2000
briand2008@comcast.net
Posted Wed, Jan 12, 5:34 p.m. Inappropriate
How would you propose to cure the regulatory takings claims that ensue if cities/counties or the state enacts legislation somehow undoing vested subdvisions? Reimbursement to property owners for their lost value in such a situation as well as legal costs will come from the public coffers.
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As the article described, Washington's vested rights doctrine is extreme compared to almost all other states. Were the legislature to adopt vesting rules that were in line with most other states, the logical approach would be to carry over applications that meet those new requirements - those where there has been actual substantive work towards implementing the development. Those that didn't are the worst sort of speculative application filing without any real substantive work towards actual development. Unless these "worst of the worst" could demonstrate a real regulatory takings, e.g. no development potential remaining under current regulations, they are unlikely to get far in federal court with a takings claim. "You filed a vague proposal when? And you didn't do anything with it for how long?"
Posted Thu, Jan 13, 7:08 a.m. Inappropriate
If you want to see some of Mr. Derdowski's handywork, take a walk down memory lane and remember the mess he left on the Sammamish Plateau.
Posted Thu, Jan 13, 12:59 p.m. Inappropriate
An often overlooked aspect of vesting is its interrelationship with laws specifically designed to protect public safety.
For example, a model Critical Areas Ordinance (CAO) for King County’s Snoqualmie Watershed cities is available on the state’s Dept of Commerce website (see link below). Subsections A and B under Section 20.05.111 declare that the purpose of the ordinance is to:
A. Protect the public health, safety and welfare by preventing adverse impacts of development; and
B. Protect the public and public resources and facilities from injury, loss of life, property damage or financial loss due to flooding, erosion, landslides, soils subsidence or steep slope failure.
Clearly, the model CAO is designed to protect public safety and is specifically designed to protect against injury, loss of life and property damage from certain environmental disasters.
In Hass v. Kirkland (78 Wn.2d 929), the Washington Supreme Court found that a vested right to a building permit, insofar as zoning or land use regulations are concerned, may be extinguished by an ordinance enacted pursuant to the police power of a municipality in furtherance of the public health or safety. This finding was based in part on a related finding by the same court in Seattle v. Hinckley:
“There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But, to be protected against such impairment or imperilment, is the universally recognized right of the community in all civilized governments; a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power.”
In West Main Assocs. v. City of Bellevue (106 Wash. 2d 47), the Supreme Court relied on Hass when concluding that “municipalities can regulate or even extinguish vested rights by exercising the police power reasonably and in furtherance of a legitimate public goal."
There is no doubt Washington’s vested rights doctrine favors developers; however, the doctrine is not designed to allow development to violate ordinances adopted to protect public health safety pursuant to a municipality’s police power. It is time for cities and counties to enforce their own laws designed to protect the health and safety of their citizens.
Related Link:
See “King County, Model Ordinance for Snoqualmie Watershed Cities” @
http://www.commerce.wa.gov/portal/alias__CTED/lang__en/tabID__746/DesktopDefault.aspx
Posted Wed, Jan 19, 11:06 p.m. Inappropriate
Protecting the publice health, safety...injury, loss of life seems like a pathetic ordinance: then I-5 and 405 would never have been built.
14 years ago, the feeder arterial to my neighborhood was a 2 lane country road lined with 2ft diameter fir and pine, and it didn't 'connect' to anything on either end. Across the way was a landscape nursery with chickens and a rooster that hailed the dawn. It was a mixed use suburban community--a passel of 1 acre homesteads, a 100 dwelling R-6 PUD (planned urban development is my idea of high density residential area) that gave me ownership of my own turf and management of my own roof/exterior, narrower streets, 3 acre open lawn as well as lawn buffers big enough to accommodate a volleyball court without scrimping and extensive pathways. Beyond, an elementary school with cinder track, football field, 2 baseball diamonds and another big field. Open, clean, cultivated.
When the county wanted to add sidewalks and a bicycle lane, well, sure, it's for the neighborhood...but they surely hired highway designers who regraded the country lane, obliterating the curves, bumps, hummocks under up to 8 feet of gravel. It can only be for a "constant arch" that they raised the pavement 5 or more feet so that brick fences lining neighborhood entry ways were now below road grade. PSE neede to upgrade telephone/electric. But not underground. They doubled the height of poles, toppled the trees, and added mercury lighting. After all the chickens were run over by folks going 40 on the 25 mph tarmac, the nursery was replaced with 100 R-8 dwellings (smaller lots, bigger houses than the PUD), all street with windows 5 feet from the sidewalk. Property taxes went up. The 1 acre homesteads couldn't afford them. Developers replaced them with with R-6 3300sf McMansions. No trees remain, lawns the size of my dining room. That is urban planning built on making money, not quality of life. Not safe. Not accessible. Not healthy-I drive my car to a gym 3 miles away. Coming soon to a neighborhood near you!
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