The Washington Vested Rights Doctrine

“The Vested Rights Doctrine Applies Even Where Permit Applications are Later Found to be Noncompliant with the State Environmental Policy Act.”

The Washington State Supreme Court held Washington’s vested rights doctrine applies to permit applications filed under plans and regulations later found to be noncompliant with the State Environmental Protection Act (or SEPA). Town of Woodway v. Snohomish Cnty., 322 P.3d 1219, 1221 (Wash. 2014).

In Washington, developers have a vested right to have their development proposals processed under land use plans and development regulations in effect at the time a complete permit application is filed. Various forms of the so-called “vested rights” doctrine exist throughout the country, but Washington’s rule has a reputation for being particularly favorable to property developers.

In the case of Town of Woodway v. Snohomish County, the property developer owned a large strip of waterfront in unincorporated Snohomish County. The strip of land was initially zoned Urban Industrial by Snohomish County. The property developer asked the County to amend its comprehensive plan to allow for Mixed Use/Urban Center zoning. The property developer wanted to build 3,000 housing units and a massive commercial/retail space. The Town of Woodway and a citizens group opposed the project. The objectors claimed the area lacked the infrastructure to support an urban center.

Snohomish County granted the property developer’s requests and prepared a supplemental environmental impact statement (or EIS) for the project. The County made a determination of nonsignificance (or DNS) under SEPA for the new development regulations. The Town of Woodway and the citizens group petitioned the Growth Management Hearings Board to review the land use decisions. Before the Growth Board issued its final order, the property developer filed two permit applications to redevelop its waterfront property.

The Growth Board found the Snohomish County ordinances were noncompliant with SEPA because it found the County did not consider alternatives to the Urban Center zoning designation. The Growth Board invalidated the comprehensive plan amendments but did not invalidate the development regulations (i.e., amending the building code to accommodate the project).

Following the Growth Board order, the Town of Woodway and the citizens group filed a complaint in superior court seeking an order that the property developer’s permits had not vested because the underlying ordinances were found to be invalid by the Growth Board. They also asked the superior court to keep Snohomish County from processing the permits. The superior court ruled that the property developer’s rights did not vest to the ordinance later found to be noncompliant with SEPA. The Court of Appeals reversed, and the Washington Supreme Court accepted discretionary review.

The Washington State Supreme Court affirmed the Court of Appeals and held that a later finding of SEPA noncompliance does not divest the property developers of having their permits processed according to the law in effect at the time they submitted their complete applications. “But, like a finding of noncompliance, a finding of invalidity [under the Growth Management Act] does not apply retroactively to rights that have already vested.” The Growth Management Act is prospective in the sense that a determination of invalidity does not apply to the complete development permit application. The Supreme Court analogized the authority allocated to the Growth Board under the Growth Management Act to the authority granted to the superior court. The Supreme Court found “no reason to believe that a superior court could exceed the remedies provided by the statute as they relate to GMA ordinances.” The superior court’s remedies (like the Growth Board’s) are limited to finding noncompliance or invalidity, but do not affect development rights that have already vested.

The Supreme Court also rejected the Town of Woodway’s argument that government actions in contravention of SEPA are void and outside the scope of governmental authority. The Supreme Court held that because the Growth Management Act statutes purposely integrated SEPA review with GMA review, the GMA review did not impact rights that had already vested.

The decision by the Supreme Court in Town of Woodway v. Snohomish County confirmed Washington’s vested rights doctrine is among the most strictly enforced in the United States (referred to as the “date certain standard” by Washington courts).  The case makes clear that local governments should not rely on subsequent action by the Growth Board to prevent an application of Washington’s vested rights doctrine for pending property development. One of the most significant exceptions to the vested rights doctrine is that the application must be complete. Local governments should consider whether an application is fully complete in order to decide whether changes to their land use codes will apply to current projects.