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Washington Appeals Court Decides Vesting Case

 Town of Woodway v. Snohomish County, 2013 WL ______, January 8, 2013 (Wash. App., 2013) involved an application filed while a controversy over the validity of the new plan and zoning designations conformity with the State Environmental Policy Act (“SEPA”) was pending.

The subject site had a series of industrial uses.  The Applicant desired to change the plan and zoning designations for the site to accommodate commercial and residential uses.  The county ultimately approved the applications and plaintiff town and others sought review of the Plan and Zoning amendments through Washington Growth Management Act (“GMA”) before the Washington Growth Management Board (“GMB”).  After the matter was heard, but before the decision, the applicant filed a development permit applicant.  The GMB subsequently found the Plan Amendment violated procedural provisions of SEPA.  Plaintiffs then brought a trial court proceeding for Declaratory Judgment and injunction to determine the validity of the permit and seeking a halt to the development.  Both sides moved for summary judgment.  The trial court granted summary judgment to plaintiff and defendant appealed.

The court of appeals found the dispositive issue to be whether the development permits vested, notwithstanding the pending appeal which ultimately overturned the comprehensive plan and designation.  Under Washington law, a complete development permit application vests those regulations in place at the time of filing.  In 1995, Washington land use legislation was amended to allow the GMB to declare a plan or regulation either to be non-compliant with the GMA or to be invalid.  Following further study, the 1997 Washington legislature provided that a declaration of invalidity did not necessarily affect vested rights.  The court found that this provision controlled and the permit had vested, notwithstanding the subsequent invalidity of the underlying Plan provisions unless, under the 1997 legislation, the challenged Plan provision “interferes with the fulfillment of the GMA’s goals.”  A SEPA procedural violation thus is not sufficient, according to the court, to defeat the vesting of the permit.  The trial court judgment was thus reversed.

The outcome that a permit may vest notwithstanding noncompliance with the underlying Plan and land use regulations is a peculiar result of Washington statutory law and that state’s liberal views on vested rights.

The Washington Supreme Court affirmed this decision by a divided vote on April 10, 2014.

Town of Woodway v. Snohomish County, 2013 WL ______, January 8, 2013 (Wash. App., 2013).

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