Adams v. Thurston County

• Citation: 70 Wn.App. 471,855 P.2d 284
• Decision Date: 30 June 1993
• Docket Number: 15753-5-II,Nos. 14936-2-I,s. 14936-2-I
• Parties: Virgil L. ADAMS and Katherine A. Adams, husband and wife; and Dennis Adams, dealing with his separate property, Respondents, v. THURSTON COUNTY, a municipal corporation, Appellant. Lyle ANDERSON; Lyle Anderson Associates, Inc.; Cascade Administrative Services, Inc.; Marvin Road-297, Ltd.; and Scotch Pine-116, Ltd., Respondents, v. THURSTON COUNTY, Appellant. Division 2
• Court: Court of Appeals of Washington

Page 471

70 Wn.App. 471

855 P.2d 284

Virgil L. ADAMS and Katherine A. Adams, husband and wife;

and Dennis Adams, dealing with his separate

property, Respondents, v. THURSTON COUNTY, a municipal corporation, Appellant.

Lyle ANDERSON; Lyle Anderson Associates, Inc.; Cascade

Administrative Services, Inc.; Marvin Road-297, Ltd.; and Scotch Pine-116, Ltd., Respondents, v. THURSTON COUNTY, Appellant.

Nos. 14936-2-II, 15753-5-II.

Court of Appeals of Washington,

Division 2.

June 30, 1993.

Patrick D. Sutherland, Pros. Atty., and Thomas R. Bjorgen, Deputy Pros. Atty., Olympia, for appellant

George R. Hill, Roger Pearce, Foster Pepper & Shefelman, Seattle, amici curiae.

Ernest L. Meyer, Meyer Law Office, Olympia; Larry J. Smith, Graham & Dunn, Seattle, for respondents.

SEINFELD, Judge.

Thurston County appeals two separate summary judgments in favor of two property owners. In each

                case, the trial court held that development rights vested on the date the property owners filed their preliminary plat applications.   The County, relying on Thurston County Code (TCC) 18.12.030, contends that the date of vesting should be the date the final environmental impact statement is filed.   It further urges that its ordinance does not conflict with state statutes and is constitutional.   We consolidated the appeals and affirm
                

ADAMS

Virgil Adams ¹ owned property he intended to develop into two subdivisions in Thurston County: McAllister Park and Lacey Estates. On June 22, 1987, Adams filed with the Thurston County Planning Department a preliminary plat application for a residential development of 600 lots called McAllister Park. On November 30, 1987, Adams's predecessors filed a preliminary plat application for Lacey Estates; they have assigned their interest and rights in the application to Adams.

The Planning Department issued a determination of significance requiring preparation of an environmental impact statement (EIS) for McAllister Park. Adams has not yet submitted the EIS. At the applicants' request, the County has not yet issued its threshold determination of environmental significance or non-significance for Lacey Estates.

In September, 1988, the Thurston County Board of Health ² adopted a resolution creating a geologically sensitive area in the vicinity of the McAllister Springs aquifer and imposing a 2 year suspension of building site approvals within the area. Both of Adams's proposed plats were within the area. By August of 1990, the Board of Health had determined that Adams's property did not lie over the sensitive aquifer.

In July 1990 the Board of County Commissioners rezoned the area in which the Adams property is situated, changing the density requirements from two to four dwelling units per acre to one dwelling unit per 5 acres. The rezone was pursuant to the Thurston County Comprehensive Plan and the Urban Growth Management Agreement. ³

Adams brought a declaratory judgment action, seeking a ruling that his development rights were vested in 1987 when he filed his preliminary plat application and that the zoning standards in effect on that date controlled the density of McAllister Park and Lacey Estates. The trial court granted summary judgment to Adams. Thurston County appeals.

ANDERSON

Lyle Anderson ⁴ filed an application for preliminary plat approval of a proposed subdivision to be known as Silver Hawk Country Club Estates (Silver Hawk) on April 5, 1990. The rezone of July 31, 1990, limiting development to one unit per 5 acres, included the Silver Hawk property. Anderson also sought a declaratory judgment that his development rights vested on the date of his application. Anderson and Thurston County agreed that, pending appeal, the Adams decision governed Anderson's action. The parties entered into a stipulated summary judgment, ordering that Anderson's development rights vested on April 5, 1990. Thurston County appeals.

STANDARD OF REVIEW

We review the order of summary judgment de novo, performing the same inquiry as the trial court. Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash.2d 640, 646, 835 P.2d 1030 (1992). We affirm a summary judgment if the parties have failed to present to the trial court evidence

                of a genuine issue of material fact and, further, if the moving party is entitled to judgment as a matter of law.   CR 56(c)
                

VESTING AND SEPA

In 1987, the Legislature codified the previous common law vesting doctrine and extended it to plat applications. Laws 1987, ch. 104, pp. 317-18. ⁵ Under Washington law, property development rights vest at the time a developer files a complete and legally sufficient building permit or preliminary plat application. RCW 19.27.095(1), 58.17.033(1); See Valley View Indus. Park v. Redmond, 107 Wash.2d 621, 638, 733 P.2d 182 (1987). The date on which development rights vest determines which land use laws, rules, and policies will apply to that development. The development is controlled by the law in effect at the time of vesting, not laws enacted later. West Main Assocs. v. Bellevue, 106 Wash.2d 47, 50-51, 720 P.2d 782 (1986) (West Main I ); Victoria Tower Partnership v. Seattle, 49 Wash.App. 755, 761-62, 745 P.2d 1328 (1987) (Victoria Tower I ). The purpose of the rule is to allow developers to fix the rules that will govern their land development. West Main I, 106 Wash.2d at 51, 720 P.2d 782.

The State Environmental Policy Act of 1971 (SEPA) directs local governmental authorities to develop local SEPA policies and to adopt rules, consistent with state rules, integrating SEPA into "the various programs under their jurisdiction for implementation." RCW 43.21C.120(3), .060; Victoria Tower I, 49 Wash.App. at 758, 745 P.2d 1328. SEPA overlays and supplements all other state laws, RCW 43.21C.030, .060; Victoria Tower Partnership v. Seattle, 59 Wash.App. 592, 599, 800 P.2d 380 (1990), review denied, 116 Wash.2d 1012, 807 P.2d 884 (1991) (Victoria Tower II ), and "mandates governmental bodies to consider the total environmental and ecological factors to the fullest in deciding major matters." Eastlake Comm'ty Coun., Inc. v. Roanoke Assocs., Inc., 82 Wash.2d 475, 490, 513 P.2d 36, 76 A.L.R.3d 360 (1973).

Before a local government takes any major action with a probable significant and adverse environmental impact (e.g., approval of a building permit or plat application), it must prepare an EIS. RCW 43.21C.030(2)(c), .031. An EIS must analyze a proposal in light of its significant adverse impacts and consistency with local environmental policies and discuss alternatives to the proposal, mitigation measures, and unavoidable impacts. RCW 43.21C.030(2)(c), .030(2)(d), .031; WAC 197-11-440; Victoria Tower I, 49 Wash.App. at 758, 745 P.2d 1328.

A local government may condition or deny a proposal based on adverse environmental impacts which make the action inconsistent with previously adopted local SEPA policies, even if the project complies with local zoning and building codes. RCW 43.21C.060; Polygon Corp. v. Seattle, 90 Wash.2d 59, 64-66, 578 P.2d 1309 (1978); Victoria Tower II, 59 Wash.App. at 597, 800 P.2d 380; West Main I, 106 Wash.2d at 53, 720 P.2d 782; West Main Assocs. v. Bellevue, 49 Wash.App. 513, 525-26, 742 P.2d 1266 (1987), review denied, 112 Wash.2d 1009 (1989) (West Main II ). However, under vesting law local government "cannot frustrate the development by enacting new zoning regulations" once a development is vested. West Main I, 106 Wash.2d at 51, 720 P.2d 782.

Procedurally, when presented with a proposal (application), the County must make a threshold determination of environmental significance or non-significance, usually based on an environmental checklist prepared by the applicant. WAC 197-11-100, -315, -330. If it issues a determination of significance, the County must determine the scope of the required EIS. RCW 43.21C.031; WAC 197-11-360, -408, -410. It does so by consulting with a variety of interested persons and organizations. RCW 43.21C.031; WAC 197-11-408(2)(a).

Although the local government or agency "may have an EIS prepared by agency staff, an applicant or its agent, or by an outside consultant," the local government, here Thurston County, remains responsible for the EIS. WAC 197-11-420(2), (1),-100(3),- 050. Following circulation of a draft EIS to federal and state agencies, other political subdivisions, tribes,

                and the public for comment, WAC 197-11-455, -502(5), the County may conduct a public hearing on the proposed action's environmental impacts.   WAC 197-11-502(6), -535.   It then prepares and issues a final EIS, WAC 197-11-460, -560, in which it responds to the comments to the draft EIS.   WAC 197-11-560.   As Adams noted in a deposition, preparation of an EIS can be a time-consuming and expensive process
                

CONFLICT WITH STATE STATUTES

RCW 58.17.033(1) declares that a proposed subdivision of land "shall be considered under the ... zoning or other land use control ordinances, in effect ... at the time a fully completed application for preliminary plat approval ... has been submitted to the appropriate county ... official." (Italics our.) ⁶ The statute also grants local government the authority to define the requirements for a fully completed application. RCW 58.17.033(2).

At the time of the plat application, Thurston County had not adopted an ordinance defining a "fully completed application." However, two then effective Thurston County ordinances outlined requirements for preliminary plat applications. We look to these ordinances to determine local requirements for a fully completed plat application. See Friends of the Law v. King Cy., 63 Wash.App. 650, 655, 821 P.2d 539 (1991), review denied, 119 Wash.2d 1006, 832 P.2d 488 (1992). ⁷ TCC 18.12.020 states that "[i]nformation Nonetheless, the County, looking to TCC 18.12.030, contends that while the developers may have filed complete applications, they have not yet officially submitted those applications. TCC 18.12.030 provides, in part:

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