Court backs BIA of Clark County’s stormwater appeal

A court of appeals has sided with the BIA of Clark County and other interested parties on a key stormwater ruling.

On Tuesday, the Washington State Court of Appeals Division II confirmed that stormwater regulations have the same vesting protection as other land use regulations. Vesting refers to the concept that local governments must evaluate applications under the statutes and ordinances in effect at the time of the application submittal.

The appeal was filed last spring by BIA Clark County, King County and Snohomish County after a state board determined that under the 2013-18 NPDES Phase 1 Municipal Permit, stormwater regulations should be vested differently than land use regulations.

James Howsley, a shareholder at Jordan Ramis PC specializing in land use, explained why the board’s determination was problematic.

“We basically said [to the court] that these (stormwater regulations) are land use controls because they touch and concern the physical attributes of development,” he said. “Furthermore, from the home-builder side, we said you can’t just pull out one aspect of development without it having a cascading affect on everything else.”

Howsley said the court of appeals ruling is a win for both the private and public sector benefit because local government won’t have to re-review approved plans when they update their stormwater ordinances. Additionally, he said private landowners can assure themselves that they can move forward with their project as planned, rather than having to go through an expensive redesign and approval process.

Eric Golemo, owner of Vancouver-based SGA Engineering, echoed Howsley’s take.

“When a developer or a business submits a proposal to build a new project they need certainty,” he said. “Stormwater is typically one of the most significant items driving the site design. If those rules change, the entire site layout could change and require the design team to essentially start over. This also affects construction lending and the cost of a project. Lending is based on a very specific proposal and a tight budget. Without the certainty that vesting provides, the design and construction cost is an unknown. In extreme cases, a rule change could make a project unfeasible or not cost effective.”

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