On December 29, the Washington State Supreme Court issued its ruling in Snohomish County, et. al. v. Pollution Control Hearings Board, et al., holding that the vested rights doctrine does not apply to storm water control ordinances. This ruling represents a further narrowing of the vested rights doctrine in Washington State. You may be asking how does this pertain to marijuana businesses?
Pursuant to Washington State’s vested rights doctrine, a land use application is to be considered under the land use laws in effect at the time a complete application is submitted to the local jurisdiction Vested rights are meant to protect land owners from future changes in zoning and other land use development ordinances.
In recent years, however, The Washington State Supreme Court and its Courts of Appeal have narrowed the applicability of the vested rights doctrine. Unless a local jurisdiction effectuates its own vesting ordinance, the State’s vested rights doctrine will now most likely only apply to complete building permit applications and subdivision applications.
This can be a significant issue for marijuana licensees. In many jurisdictions, marijuana licensees are first required to obtain a conditional use permit or other discretionary permit before they can even apply for a building permit. In Whatcom County, for instance, marijuana producers and processors must first obtain an administrative approval permit before they can apply for a building permit; and obtaining administrative approval can often take nine months to a year.
Because vesting may not occur until a building permit is applied for, there may be no ability for the marijuana licensee to vest to existing land use regulations while the administrative approval is pending. Thus, if during the administrative approval process and prior to the marijuana licensee applying for a building permit, a county changes any of its land use ordinances (i.e. in regard to water, septic requirements, critical areas, etc.) the marijuana licensee may be subject to these new regulations when the licensee goes to apply for a building permit and these new regulations may make the build out of the project impossible or infeasible. Even worse, if a jurisdiction imposes a moratorium on marijuana facilities while an administrative use or conditional use application is pending, the jurisdiction could argue that the new moratorium prohibits the marijuana business with the pending permit from moving forward.
Marijuana business owners in Whatcom County are encountering this issue in regard to use of exempt wells. Last year, Whatcom County imposed a moratorium on the issuance of new building permits reliant on exempt wells as a result of the Supreme Court’s decision in Whatcom County v. WWGMHB. Because of the narrowing of the vesting doctrine, any marijuana business, which had not yet applied for a building permit prior to Whatcom County’s moratorium, may now be precluded from using an exempt well despite having listed the exempt well as its water source in its administrative use permit application.
Depending on where your project site is located and where you are in the land use permitting process, the limiting of the vested rights doctrine could impact the development of your marijuana business. Thus, it is important to consult with your local planning department as well as legal counsel before commencing the project permit process.
For more information on the regulation of marijuana businesses in Washington State, please contact Heather Wolf.