Posted by: Patricia Salkin | October 6, 2014

WA Appeals Court Holds that Developers’ Filing of Application for Shoreline Substantial Development Permit did not Entitle Applicant to Vested Rights for Entire Project from Oridnance that Existed on Date of Application

Lobsang Dargey, Tamara Agassi Dargey, and Potala Village Kirkland, LLC (collectively “Potala Village”) sought to develop certain real property in the City of Kirkland. Potala Village filed a complete application for a shoreline substantial development permit on February 23, 2011, but it did not file an application for a building permit before the City imposed a moratorium on the issuance of certain permits.  On November 15, 2011, the City enacted an ordinance imposing an emergency development moratorium on the BN zone, which temporarily precluded the issuance of permits in the BN zone. As of the date of the moratorium, Potala Village still had not filed an application for a building permit.  The City Council then extended the moratorium for six months, and Potala Village commenced this action against the City, alleging multiple causes of action and seeking declaratory and other relief.

Potala argued that the filing of its completed shoreline substantial development permit application on February 23, 2011 for a portion of the project was sufficient to vest rights to the zoning or other land use control ordinances in effect on that date for the entire project. It sought a writ of mandamus directing the City to accept and process a building permit application for the project. In analyzing this claim, the court noted that under common law, Washington’s doctrine of vested rights entitled developers to have a land development proposal processed under the regulations in effect at the time a complete building permit application was filed.  The doctrine at common law was extended to a number of different types of permits, but it was never extended to applications for preliminary plat approval or short plat approval. The court therefore found that Potala Village’s failure to file a completed application for a building permit before enactment of the City’s moratorium on certain permits bars the vesting of rights to zoning or other land use control ordinances for the entire project. The filing of Potala Village’s completed application for a shoreline substantial development permit for a portion of the project on February 23, 2011 did not vest rights to the zoning or other land use control ordinances for the entire project that existed on that date.

Accordingly, the court reversed the order granting Potala Village’s motion for summary judgment.

Potala Village Kirkland, LLC v City of Kirkland, 334 P. 3d 1143 (Wash. App. 8/25/2014)

The opinion can be accessed at:

http://www.courts.wa.gov/opinions/pdf/705423.pdf


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: