December 1, 2014

The erosion of traditional fair play

By Ethan W. Blevins Attorney

Charlie Brown always fell for Lucy’s trick of whipping the football away just as he approached for a kick. One Thanksgiving, Charlie Brown hesitated, but Lucy insisted that football was a Thanksgiving tradition. As Charlie Brown lay on his back after being duped again, Lucy smiled down and said, “Isn’t it peculiar, Charlie Brown, how some traditions just slowly fade away?”

The City of Kirkland, Washington, recently played a similar trick. Potala Village, a residential developer, planned to build an apartment complex near a lake shore. After Potala Village trudged through the long process of applying for a shoreline development permit, the City whisked the ball away just before the kick by changing the rules. Under new zoning regulations that only affected Potala Village, the planned development became impossible.

Traditionally, Washington courts protect developers from such dashed expectations. If you file a permit application to build a house, for instance, changes to local regulations after you submit your application will not apply to you. This rule, created by Washington state courts, is called the vested rights doctrine. Courts had applied the rule to folks who file for shoreline development permits, like Potala Village. The trial court that heard Potala Village’s case honored this rule by holding that the City could not apply new zoning to Potala Village. However, the court of appeals upended this traditional rule and held that the state legislature had erased this entire body of vested rights law when it made a few of its own vested rights rules. With this protection gone, Potala Village cannot continue with its development plans.

Today, PLF and the Building Industry Association of Washington filed an amicus brief to support Potala Village’s petition for review before the Supreme Court of Washington. Our brief argues that the common law vested rights rule remains alive and well. Contrary to Lucy’s belief that “some traditions just slowly fade away,” traditional legal rules made by the courts, called the common law, don’t decay. A state legislature can undo the common law, but only by making it very clear that it intends to do so. Here, the legislature never demonstrated any intention to trash sixty years worth of case law.

The Supreme Court of Washington has said this storied doctrine “is rooted in constitutional principles of fundamental fairness.”  Lucy didn’t care much for tradition or fair play, but we expect that the Washington Supreme Court will.

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