Chapter 20.08
VESTING
Sections:
20.08.020 Approved applications.
20.08.030 Duration of approvals.
20.08.040 Modifications to approvals.
20.08.005 Generally.
This chapter is intended to provide property owners, permit applicants, and the public assurance that regulations for project development will remain consistent during the lifetime of the application. Vesting of certain building and development applications is governed by the rules of RCW 19.27.095 and 58.17.033 as they exist or may be amended. The vested rights doctrine as codified in the RCW shall not be applied more broadly than its intended scope. (Ord. 019-17 § 18 (Exh. 1)).
20.08.010 Applicability.
(1) This chapter applies to, and vesting occurs with, the filing of a counter-complete application and permit approvals required by the city of Port Orchard pursuant to this title, including and limited to:
(a) Building permit applications (RCW 19.27.095);
(b) Preliminary plat, final plat, short plat, and binding site plan applications (RCW 58.17.033);
(c) Development agreements (RCW 36.70B.180); and
(d) Any other land use permit application that is specifically identified by the Washington State legislature as being covered by the statutory vested rights doctrine.
(2) Vesting does not apply to the following:
(a) Incomplete, invalid, inaccurate, or defective applications eligible for vesting pursuant to this chapter;
(b) Uses not specifically disclosed in an application eligible for vesting pursuant to this chapter;
(c) Any other application or permit not specifically identified in this chapter, as it exists or may be amended;
(d) Fees or taxes, including, but not limited to, impact fees;
(e) Preapplication plans; or
(f) Any application or permit that may reasonably result in a threat to the public health, safety, or welfare of the community. The city’s exercise of police power to protect the public health and safety, and/or general welfare immediately extinguishes any “vested right.” (Ord. 019-17 § 18 (Exh. 1)).
20.08.020 Approved applications.
(1) Allowed Use. A building, land use, or development application must be allowed under the zoning or other land use control ordinances in effect on the date of the application to be deemed a valid counter-complete building application eligible for vesting pursuant to this chapter.
(2) Supplemental Information. Supplemental information required after an application is deemed counter-complete shall not affect the validity of the vesting for the application.
(3) Substantial Revisions. Substantial revisions requested or required by an applicant to a vested, but not yet approved, application pursuant to POMC 20.24.070 shall be deemed a new application when such revisions would result in a substantial change in the basic site design plan, intensity, density, or similar factors, involving a change of 10 percent or more. Vesting for the new application shall occur upon the date of submission of a valid and counter-complete building application for the changed project.
(4) Vesting of Land Use and Development Approval Applications. The following applies to all applications described in POMC 20.08.010, excluding building permits:
(a) Consistency Review. Applications shall be reviewed for consistency with the applicable zoning or land use control ordinances in effect on the date the application is deemed counter-complete.
(b) Construction, Public Works, Stormwater Drainage Standards. An application shall be reviewed for consistency with the construction, public works, and stormwater standards in effect on the date a separate application for a construction, utility, or stormwater drainage permit is deemed counter-complete. An applicant may submit a separate construction, utility, or stormwater drainage permit application simultaneously with any application described in POMC 20.08.010 to vest for construction or public works standards.
(c) Effective Regulations. An application shall be subject to all land use, building, and land use control ordinances in effect on the vesting date.1
(d) Identified Development. An application that is deemed complete is vested for the specific use, density, and physical development identified in the application.
(e) Applicable Standards. Applications submitted that are not listed in POMC 20.08.010 shall be governed by the standards applicable to the specific application type. These applications shall not vest for any additional zoning or land use control ordinances.
(f) Owner Solely Responsible. The property owner is responsible for monitoring the time limitations and review deadlines for the application. The city shall not be responsible for maintaining a valid application. If the application expires, a new application may be filed, but shall be subject to the zoning or land use control ordinances in effect on the date the new application is deemed counter-complete.
(g) The applications do not vest to processes and procedures. (Ord. 019-17 § 18 (Exh. 1)).
20.08.030 Duration of approvals.
(1) Building Permits. Development of a building shall be based on the controls contained in the approved permit application. Vesting rights applicable to building permit applications expire pursuant to permit expiration periods identified in the International Building Code (IBC) as adopted in Chapter 20.200 POMC.
(2) Preliminary Plat. Development of an approved preliminary plat shall be based on the controls contained in the hearing examiner’s decision. A final plat meeting all of the requirements of the preliminary plat approval shall be submitted within five years of the effective date of the hearing examiner’s decision, unless a different time limitation was specifically authorized in the final approval. Any extension of time beyond this five years’ limitation may contain additional or altered conditions and requirements based on current zoning or land use control ordinances.
(3) Final Plat. The lots in a final plat may be developed by the terms of approval of the final plat and the zoning or land use control ordinances in effect at the time the preliminary plat application was deemed complete for a period of five years from the recording date unless the city finds that a change in conditions creates a serious threat to the public health, safety, or welfare.
(4) Permits Associated with a Preliminary Plat. Permit applications, such as planned residential developments (PRD) applications, that are approved as a companion to a preliminary plat application shall remain valid for the duration of the preliminary and final plat.
(5) Short Plat. The lots in a short plat may be developed by the terms and conditions of approval and the zoning or land use control ordinances in effect at the time the application is deemed counter-complete for a period of five years from the recording date unless the city finds that a change in conditions creates a serious threat to the public health, safety, or welfare.
(6) Development Agreements. Projects governed by an approved development agreement may develop by the agreed terms and conditions of said agreement for the term of the agreement.
(7) All approvals described in this chapter shall be vested for the specific use, density, and physical development identified in the permit approval. (Ord. 019-17 § 18 (Exh. 1)).
20.08.040 Modifications to approvals.
Proposed modifications to an application listed in POMC 20.08.010, excluding building permits, which have been deemed to be counter-complete shall be subject to the requirements below:
(1) Modifications proposed by the department to an application shall not be considered a new application.
(2) Modifications proposed by the applicant to an application that meets or exceeds any of the criteria for a major revision and/or amendment, pursuant to the criteria in POMC 20.24.070, shall require a new application. The new application shall conform to the zoning or land use control ordinances in effect at the time the new application is deemed counter-complete.
(3) Proposed modifications to applications that do not exceed the major revision criteria pursuant to POMC 20.24.070 shall be reviewed for the zoning or land use control ordinances in effect on the date of the original counter-complete application. (Ord. 019-17 § 18 (Exh. 1)).
20.08.050 Waiver.
(1) Voluntary Waiver. A property owner may voluntarily waive vested rights at any time during the processing of an application by delivering a written and signed waiver to the director stating that the property owner agrees to comply with all zoning or land use control ordinances in effect on the date of delivery of the waiver. Any change to the application is subject to the modification criteria described in this chapter and may require revised public notice and/or additional review time.
(2) Major Plat Amendments. Major plat amendments shall constitute a voluntary waiver of vested rights at the time of the submittal of the major plat amendment, unless otherwise approved by the director. (Ord. 019-17 § 18 (Exh. 1)).
As a result of a recent Washington State Supreme Court decision, Snohomish County et al v. Pollution Control Hearings Board, No. 92805-3 (December 29, 2016) stormwater regulations implemented under the National Pollution Discharge System (NPDES) do not vest. In that decision, the court determined that the vested rights doctrine does not apply to stormwater regulations because stormwater permits are not “land use control ordinances” subject to vesting rules.