Yesterday, the Washington Court of Appeals ruled that the state’s stormwater regulations were not exempt from the principle that a land use application must be considered under the land use ordinances in effect when the application was submitted. In Washington that is the “vested rights doctrine” and in Oregon it is known as the “stationary goal post rule.” The idea is that a government agency has no authority to change the rules in the middle of the game, a fundamental concept that most people learn in kindergarten.
The Washington Deptartment of Ecology declared that its stormwater rules were exempt from the vested rights doctrine because they are not land use regulations, notwithstanding that the rules require major site planning changes to accommodate new types of stormwater facilities. They also insisted that because the rules implemented the federal Clean Water Act, they were not subject to state land use law.
Jordan Ramis attorney Jamie Howsley’s client, the Building Industry Association of Clark County, was joined in the case by 25 counties and cities, who also argued that the Department of Ecology’s rules were an illegal overreach. The court agreed that the rules are land use ordinances subject to the vested rights doctrine, and that the Clean Water Act does not trump vested rights.
Most governments – like the 25 counties and cities in the case – respect the fundamental land use laws (at least when guided by competent counsel), but a few outliers continue to divine creative excuses about why they are exempt. This ruling is huge because it confirms the primacy of those fundamental laws, which benefit everyone, including developers, governments, and the kids on the playground.
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