Washington Supreme Court Decision Bad for Developers
In a far-reaching opinion, the Supreme Court of Washington upheld a county hearing examiner’s revocation of a preliminary plat of subdivision based on alleged violations of permit conditions, including unauthorized tree clearing.

At issue in the case, HJS Development, Inc. v. Pierce County, 61 P.3d 1141 (Wash. 2003), was the asserted authority of the county hearing examiner to use revocation of the preliminary plat to remedy the developer’s purported failure to comply with conditions of preliminary plat approval. In reversing a lower court’s ruling for the developer, the Washington Supreme Court found that the hearing examiner, under provisions of the Pierce County Code, was authorized to revoke the preliminary plat and that the Pierce County Code was not preempted by, nor did it conflict with, state platting laws. Of particular note, the Washington Supreme Court found that the hearing examiner “correctly decided revocation was the only remedy.”

Based on this very expansive — bordering on creative — reading of the Pierce County Code, the Washington Supreme Court upheld the hearing examiner’s authority to revoke HJS Development’s preliminary plat approval. However, Pierce County was imbued with other available enforcement mechanisms where the developer could have been enjoined from further tree clearing, or otherwise penalized. Invalidation of the preliminary plat appears to have been an extreme reaction to the alleged violations of the plat conditions.

If not remedied, the Washington Supreme Court’s opinion could have chilling effects on principles governing vested development rights and could disturb a level of finality in the land use approval process so valued by the development industry.

The Building Industry Association of Washington, which decries the decision, is considering possible legislative avenues to repair the harm caused by the decision. [ return to top ]