Agenda - Planning Commission - 11/06/2014

Home

Zoning Bulletin October 10, 2014 I Volume 8 I Issue 19 Citation: Potala Village Kirkland, LLC v. City of Kirkland, 2014 WL 4187807 (Wash. Ct. App. Div. 1 2014) WASHINGTON (08/25/14)—This case addressed the issue of whether, in the absence of filing a building permit application, the vested rights doctrine applies to vest rights to zoning or land use control ordinances that exist at the time a developer files a shoreline development permit application. The Background/Facts: Lobsang Dargey, Tamara Agassi Dargey, and Potala Village Kirkland, LLC (collectively "Potala Village") sought to develop certain real property in the Neighborhood Business ("BN") Zone in the City of Kirkland, Washington (the "City"). The project was to include residential, retail, and com- mercial space. Potala Village filed a complete application for a shoreline substantial develop- ment 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 all permits in the BN Zone on November 15, 2011. That moratorium was extended and ultimately was in effect until December 2012. In December 2012, the City amended the City Zoning Code placing a limit on residential density of 48 units per acre in the BN. As amended, the Code limited Potala Village's project to 60 units instead of the 143 units that it had sought to construct. Potala Village filed a legal action against the City. Potala Village sought a writ of mandamus directing the City to accept and process its building permit applica- tion for the proposed project. Potala Village argued that the filing of its completed shoreline substantial development permit application in February 2011 for a por- tion 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. The City argued that Potala Village's failure to file a completed building permit application before the building permit moratorium precluded vesting of rights to zoning or other land use control ordinances in effect prior to that date. It maintained that the filing of the shoreline substantial development permit applica- tion did not vest such rights. Both parties sought summary judgment, asking the court to find there were no material issues of fact in dispute and to issue judgment in their favor on the law alone. The trial court agreed with Potala Village's argument. It granted summary judgment to Potala Village and issued a writ of mandamus. The City motioned for reconsideration, which the trial court denied. The City appealed. DECISION: Judgment of superior court reversed, and matter remanded with directions. The Court of Appeals of Washington, Division 1, held that the filing of the ap- plication for the shoreline development permit, without filing an application for a building permit, did not vest rights to zoning or other land use control ordinances. In so holding, the court explained that the vested rights doctrine, which "originated at common law," "strongly protects the right to develop property." The court noted that Washington State recognizes the minority approach to vested rights, which offers greater protection of developers' rights than the rule gener- ally applied in other jurisdictions. The law in Washington recognizes a vested rights doctrine that uses a "date certain" standard. "Under the date certain stan- © 2014 Thomson Reuters 3