Washington was the first state in the country to adopt what has become the benchmark for leniency in laws allowing developers to lock in building rights early in the development process. Under Washington case law and statutes, changes that tighten land-use regulations do not apply once a developer has submitted a preliminary plan sketching out how he or she intends to develop a piece of property. In most states, a developer doesn’t get a break from stricter rules until construction starts.
Years can go by before construction starts, but the old rules will still apply. This "vesting" doctrine in Washington has played out for years in ways critics contend are overrunning the countryside with subdivisions and asphalt.
Here are some examples of how the concept translates into a controversial reality in counties with sizeable populations:
King County: One of the earlier and bigger vesting plays involves Redmond Ridge, east of Redmond, where Quadrant Homes filed applications to build 1,876 lots, and filed them in such a way as to keep the building rights intact indefinitely. This bargaining power allowed the company to get county approval for development far from the urban core, even after 1990 passage of the Growth Management Act. More here.
King County: A developer wants to transform the small rural town of Black Diamond, boosting the number of homes by 400 percent and nearly quadrupling the population. An ordinance passed by the city grants the developer vested status when it comes to stormwater regulations. Residents fighting the development far east of Auburn say the city can’t do that. More here.
Whatcom County: Under pressure from a state growth-management board’s ruling, county council members in late 2009 pulled authorization for urban-style development from a large area near the Canadian border and west of Blaine, reducing the allowed density twentyfold. But just 25 days before the commission’s vote, Trillium Corp., developers of the existing 800-home Semiahmoo resort, filed an application to lock in building rights for more than 1,250 homes and 60,000 square feet of commercial space on 624 acres west of the existing resort. Attorneys for the developer wrote in an Oct. 30, 2009 cover letter submitting the plans that they intended to lock in the building rights. Neighbors downhill at Birch Bay Village are nervous that the new development will hamper their existing efforts to deal with stormwater before it enters Birch Bay. Plans submitted by the developer assure county officials that stormwater will be controlled. “Stormwater is a big issue that will be checked out,” said Tyler Schroeder of the Whatcom County Planning Services Division. Trillium notes that the land was considered suitable for urban-style growth for decades, and says it had been actively working on expanding the resort all along.
Whatcom County: Based in part on a 1971 county approval of plans for a subdivision, and the city of Bellingham’s agreement 39 years ago to provide water to it, the Governor’s Point Development Company is moving ahead with plans to develop a 141-lot subdivision on 125 acres in the Chuckanut Drive area. The plans have been frustrated by the refusal of the nearby city of Bellingham to provide water. The 1971 subdivision approval was never used, but the landowners came back in 1992 with a second plan that also was approved — but after the city says it had made it clear it would not provide water service. The current zoning, the developer’s lawyers have said in court papers, would allow as many as 375 homes on the 125-acre development, nearly three times the development being proposed now. “Cases like this are why we have a statute of limitations,” attorney Dean Brett, representing nearby homeowners, argued in court documents regarding the water dispute. But the same could be said of how the development would run afoul of the Growth Management Act and other modern environmental laws, Brett said in an interview. Already the Chuckanut area is plagued by some failing septic tanks, the developer’s lawyers wrote in court papers. The developers have sought to penalize Bellingham $2.8 million in damages for failing to provide water. An attorney for the developers declined to comment on the case.
Whatcom County: Strader Place was the name of a 47-lot development proposed by Lake Samish in 1992. That never got off the ground, but in 2000 developer Derek Stebner purchased the land and began to market it under the name Sleepy Hollow. Neighbors concerned about traffic and pollution of the lake appealed, noting that the project had been redesigned, renamed, and was under different ownership. But a hearing examiner ruled in 2001 that the neighbors couldn’t prove that either the first set of developers or the second had ever abandoned the project. The county council affirmed that decision. Stebner in 2004 postponed a subsequent hearing on the development, didn’t re-schedule it and then neighbors heard nothing for about five years. But then Stebner resurrected the project in 2009. Neighbors, thinking a 17-year-old subdivision application by another developer surely didn’t entitle Stebner to proceed, appealed. But a hearing examiner disagreed, opening the way for the developer to build up to 47 homes on 25 acres. Current zoning would allow just five homes on the property. The developer also doesn’t have to follow rules passed in 1997 to help fish by leaving 100-foot forested buffers alongside waterways. He can leave the 50-foot buffers required in the early 1990s.
Snohomish County: As the county’s Critical Areas Ordinance to protect wetlands, streams and other environmentally sensitive features was debated, developers filed large numbers of building proposals to lock in their right to ignore the law’s protections. In the two years leading up to the effective date of the ordinance, the number of development applications was 616. Over the next two years, just 128 developments were proposed. (The current economic decline is clearly a factor in the decline. But the land rush was apparent simply by examining the number of permits applied for in the two months before the ordinance went into effect and the two months after: 51 applications to 14.)
Snohomish County: The Edmonds-based McNaughton Group development company is pressing ahead with plans to build 600 new homes to the forested Lake Goodwin area northwest of Marysville, based on “rural cluster” zoning that has since been tightened significantly. Neighbors in the woodsy area are fighting the developments. Ellen Hiatt Watson of the non-profit group 7 Lakes, who grew up in the area and learned to swim in Lake Goodwin beside her childhood home, says the subdivisions are changing the character from rural to suburban. More here.
Pierce County: Orcas, Rainier, Baker, Adams, Alder, Cascade. Those are the names of floor plans offered in Grand Firs, a subdivision near Graham in Pierce County that is pretty clearly not what the authors of the Growth Management Act had in mind. The plan for 402 homes on 206 acres was filed after the state’s Growth Management Act passed in 1990 but before Pierce County passed a comprehensive growth plan required by the state law. Only about 15 homes would have been allowed on the land between Joint Base Lewis McChord and Mount Rainier under the law in effect when the subdivision was built. The development went in right next to a facility that bred endangered red wolves in a project to rescue the species being conducted for the U.S. Fish and Wildlife Service by the Point Defiance Zoo. Zoo spokeswoman Whitney DalBalcon said the development moving into the neighborhood was “a major factor” in the decision to move the captive-breeding facility.
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