Old law lets developers use old rules, thwarting Puget Sound protection, critics charge

On a forested parcel of land in Burien, above streams, wetlands and steep slopes, a new condo development is being built.

When it's done, the Westmark Development Company's Emerald Pointe condos, planned just above Seahurst Park on Puget Sound, will boast as many as 200 units divided among seven buildings on less than 10 acres, plus a recreation facility.

But under land-use laws meant to protect the environment, the whole project would be illegal.

City zoning would typically allow only about three single-family homes per acre here. And those homes would have to be set back as much as 100 feet from wetlands. Trouble is, the developer filed the permits in 1990. So the developer doesn't have to follow rules imposed since then.

Now neighbors are concerned the project will disrupt the natural flow of water across the land, harming the park below and Puget Sound beyond. But the project also highlights a much larger issue: a state law that allows the company to follow the 18-year-old rules.

Called "vesting," the law, which dates to a 1950s court case, allows developers to build projects under whatever rules are in place when they file a complete development application.

Builders and their attorneys have long argued that the rules are a fair way to provide certainty in a region that frequently changes land-use and building regulations. But critics disagree.

"This is a totally urban environment, and that is why it is so important to protect these places," said Kevin Alexander, of Burien, who regularly walks the trails in Seahurst Park. "If you want an example of what's wrong with vesting, this is it."

Some concessions

The Emerald Pointe project has become a marquee example of the state's vesting law.

After years of controversy over the development, Westmark finally agreed to some concessions: It proposes to voluntarily use current stormwater rules, and increase the size of its buffers to at least 65 feet from 1990 standards that required no specific buffers. But neighbors are worried the development will still damage the park, where the public has spent at least $1 million removing bulkheads to help restore Puget Sound health.

And while Emerald Pointe is considered an extreme example of the vesting controversy, it's not the only one.

When King County adopted its tougher critical-areas ordinance in January 2005, the number of building-permit applications jumped nearly 30 percent in the two months before the law took effect compared with the same period in the previous year.

Clearing and grading permit applications nearly doubled; subdivision applications more than doubled, and applications for single-family home permits nearly quadrupled.

The reason: to get in under the wire to avoid the controversial new rules.

And in an analysis for the Puget Sound Regional Council, the overwhelming majority of new subdivision permits in 2003 approved in rural areas of Kitsap and Snohomish counties — 92 and 86 percent respectively — were granted under vested development rights.

That was one reason, the analysis found, why so much growth was occurring in those counties where, according to current planning policies, it was not supposed to.

Some say it's time for change. In 46 other states, the rules don't lock in until later in the permitting process, such as when a developer attains approved plans, or even after they complete substantial construction.

"Washington is extreme," said John Lombard, of Seattle, author of a book, "Saving Puget Sound," that calls for reforming the state vesting law. "If you can't reform this, nothing else can go forward, because it is always going to be fragmented and undercut by what's been vested."

State Sen. Adam Kline, D-Seattle, calls vesting one of the larger barriers to making Puget Sound healthier and managing growth.

"We can't do anything while we are stuck with yesterday's rules," said Kline, who has tried for at least three legislative sessions to change the law. "And that is essentially what this vesting rule does — it binds us to when these applications were first made."

David Dicks, executive director of the state Puget Sound Partnership, said the issue is "something we have to take a look at."

"We are trying to figure out an equitable way for society to deal with these issues in a way that is fair to the property owner, and protects Puget Sound," he said.

Insurance policy

But the way developers see it, vesting is their only insurance policy against fickle rule changes that can seem to come virtually overnight in response to community outrage.

Aaron Laing, a Seattle land-use attorney for some of the area's largest homebuilders, said the vesting law was the only reason a moratorium enacted by Tacoma to block one of his clients' 860-unit development project in North Tacoma didn't completely derail the project.

"Community displeasure can be used to kill off unpopular projects, and that is not fair," Laing said. "I am not a very popular person in North Tacoma, but this illustrates why the vested-rights doctrine is so crucial. That project would have been killed by neighborhood displeasure and political whim."

As it is, developers face a costly and time-consuming gantlet to file a completed building application, said Jodi Slavik, attorney for the Building Industry Association of Washington in Olympia.

She teaches classes in development regulations to builders, who are appalled to learn what's in store for them, Slavik said. "Their eyes glaze over; it's 'You've got to be kidding, I can't do any more,' " Slavik said. "They are coming right off the site, they have dusty pants, they can't believe it."

Jerry Hillis, a Seattle land-use lawyer, doubts there are many other Emerald Pointe situations out there. But he still sees a problem that needs fixing, "because of the perception of the problem."

"Everybody ought to have to abide by the same laws at the time you are developing," he said. "It is not fair you get to do something the others can't." But he sees a difficult road toward reform. "Is it worth the fight? That would be the question."

Lynda V. Mapes: 206-464-2736 or lmapes@seattletimes.com