Featured Inquiry (07/14/08)
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Question:
Would a land use application submitted just prior to the adoption of a traffic impact fee ordinance vest to the current no-fee regulations or would such fees apply regardless of when a completed land use application was submitted?
Answer:
An applicant does not vest to traffic or transportation impact fees as the applicant would with respect to the land use regulations in effect at the time of submittal of a complete land use application. The vesting doctrine does not apply to traffic or transportation impact fees. As summarized well by the state court of appeals in Pavlina v. City of Vancouver, 122 Wn. App. 520, 529-530 (2004):
Vested Rights
Pavlina argues that the superior court erroneously applied New Castle [New Castle Invs. v. City of LaCenter, 98 Wn. App. 224 (1999), rev. den., 140 Wn.2d 1019 (2000)] in deciding this case. He asserts that New Castle does not apply to this case because there was no preliminary approval in New Castle like in the present case. We disagree.
Pavlina appears to argue that he has vested rights and thus the City cannot impose impact fees. But as we noted in New Castle, an impact fee is not a land use ordinance that vests with the application. New Castle, 98 Wn. App. at 232-33.
In New Castle, we held that TIFs [traffic impact fees] do not affect any physical aspects of development or the types of uses allowed. New Castle, 98 Wn. App. at 237. If the fees did, a TIF would be subject to the vested rights doctrine. New Castle, 98 Wn. App. at 237. We further noted that a TIF is a fee charged on new development. New Castle, 98 Wn. App. at 232. Since traffic impact fees do not limit land use, the City can impose them on a development at the building permit application stage.
Pavlina attempts to distinguish New Castle by contending that unlike in New Castle, he had obtained preliminary approval of his development. But we addressed this issue, noting:
Thus, the fee calculated by LaCenter at the time of preliminary plat approval would bear little relationship to the actual impact of growth at the time the permit is issued.
… If the fee were frozen, then new growth could take place without the developer paying its fair share for improving public facilities.
New Castle, 98 Wn. App. at 237. RCW 82.02.050 clearly intended for developers to pay for their share of system improvements. In order to accomplish this goal, impact fees must be imposed at the time of building permit application. It was irrelevant in New Castle that the developer had previously obtained preliminary plat approval and it is irrelevant here.