2017-07-21 CA vesting memo.pdfDate: July 21, 2017
To: Mike Clugston
From: JeffTaraday
Re: Caspers short plat vesting
This memo briefly summarizes our analysis of whether the Caspers short
plat owned by Echelbarger Investments is vested to the CAO that was in
effect when the short plat application was submitted for the purposes of
the pending building permit applications.
We discussed this matter in March 2017 and how the Alliance Investment
Group case would seem to suggest that Echelbarger Investments was not
necessarily vested to the earlier CAO for the purposes of obtaining
building permits. At the time, I advised you that we should apply the
current CAO, at least to the extent of requiring the applicant to obtain a
variance, but that the city wouldn't likely be able to enforce the current
CAO to an extent that would render any of the lots unusable for single
family residential purposes.
Echelbarger Investments resisted our vesting analysis and caused me to
take a closer look at the matter. Upon further review, I realized that the
buffer width reduction that was approved as part of the short plat was not
necessary to obtain the fourth lot. I found this fact to be significant
because it demonstrated an intent by the developer to obtain the buffer
width reduction for the purposes of later home construction. Had the
buffer width reduction been necessary to obtain a fourth lot and had the
fourth lot been approved accordingly, it would have been easier to make
the argument that the applicant wouldn't necessarily be vested for the
purposes of determining building footprints.
But because that wasn't the case, it stands to reason that the primary
purpose of obtaining the buffer width reduction at the plat stage was to
create some certainty with regard to future allowable building footprints.
R1100 Dexter Ave N Suite 100 Seattle WA98109 P 20&273.7440 F 206.273.7401 1 www.lighthouselawgroup.com
The Noble Manner and Alliance Investment Group cases both emphasized
this language:
If a landowner requests only a division of land without any
specified use revealed, then the county, city or town may
consider the application to see if any legal use can be made of
the land so divided, and no particular development rights
would vest at that time.
However, when an application is made for division of land
for a specified use, then the applicant has the right to have
that application for that use considered under the land use
laws in effect on the date of the application.
Here, the buffer width reduction that was sought by Echelbarger
Investments and ultimately approved by the City as part of the short plat
process would likely be considered the kind of "specified use" that would
allow this short plat to vest to the previous CAO for the purposes of
determining building footprints at the building permit stage. For that
reason, I now believe that the city should treat this short plat as vested to
the earlier CAO.
Please feel free to contact me if you have any follow up questions.