Erickson & Associates, Inc. v. McLerran
| Decision Date | 19 May 1994 |
| Docket Number | No. 60623-4,60623-4 |
| Citation | 872 P.2d 1090,123 Wn.2d 864 |
| Court | Washington Supreme Court |
| Parties | ERICKSON & ASSOCIATES, INC., and Ron Danz, Petitioners, v. Dennis J. McLERRAN, Director of the Department of Construction and Land Use of the City of Seattle, and the City of Seattle, a municipality, Respondents. |
Oles, Morrison & Rinker, David H. Karlen, Seattle, for petitioners.
Mark H. Sidran, Seattle City Atty., Robert D. Tobin, Asst., Seattle, for respondents.
Stephen M. Rummage, Thomas A. Goeltz, Marco de Sa e Silva, Seattle, amicus curiae for petitioners on behalf of Building Industry Ass'n of Washington.
Patrick D. Sutherland, Thurston County Pros., Thomas R. Bjorgen, Sr. Deputy, Olympia, amicus curiae for respondents on behalf of the Ass'n of Washington Cities, Washington Ass'n of Prosecuting Attorneys, and Washington Ass'n of Counties.
David A. Bricklin, Seattle and Michael W. Gendler, amicus curiae for respondents on behalf of Washington Environmental Council.
This appeal involves the application of Washington's vested rights doctrine to master use permit applications. Petitioners, Erickson & Associates and Ron Danz (Erickson), challenge a City of Seattle ordinance that sets the vesting date for development projects. Under the city ordinance, Seattle Municipal Code (SMC) 23.76.026, a development project vests (1) when the developer submits a complete building permit application, or (2) when the City earlier issues a master use permit without a building permit application. Erickson contends the ordinance is unconstitutional, arguing Washington's vested rights doctrine requires the City to vest development rights when a master use permit application is submitted rather than when it is issued. The trial court denied Erickson's summary judgment motion on this issue and the Court of Appeals affirmed. We agree.
Master Use Permits (MUP's) are site plan approval permits employed by the City of Seattle to streamline the regulatory review process. MUP's are "umbrella" or "master" permits, which actually represent a number of independent regulatory components, including environmental impact review, comprehensive plan review, and other use inquiries. MUP's are mandatory for development in Seattle; however, MUP review is an iterative process. Developers may have general concepts in mind for development of property, and want to explore various scenarios with the municipality. In response to municipal feedback, project plans change and evolve. As plans develop, the specific requirements of a particular MUP may change. The MUP process makes it easier for developers and citizens to get through the land use regulatory review process by having one employee designated as the applicant's "contact" person.
On July 5, 1990, Erickson submitted a MUP application to the City of Seattle's Department of Construction and Land Use (DCLU). Erickson sought "use approval" for a commercial and residential project it proposed to build in the city. The proposed project consisted of residential units, approximately 4,500 square feet of commercial space, and 43 parking stalls. Erickson did not submit a building permit application for this project.
During the permitting process, the Seattle City Council passed an interim ordinance, SMC 25.09, in response to the Growth Management Act's requirement that local governments adopt critical areas ordinances. RCW 36.70A.060(2). The ordinance applies to properties with steep slopes or other sensitive features such as wetlands, and prohibits more than 40 percent of applicable properties to be covered with impermeable surfaces such as parking lots, driveways, or roofs. SMC 25.09.
During the review of Erickson's MUP application, DCLU determined part of Erickson's project was located on slopes steep enough to qualify as a "critical area" under the new ordinance. After finding Erickson proposed to cover approximately 80 percent of the property with impervious surfaces, DCLU sent written notice that Erickson would have to revise the project, conform it to the ordinance, or obtain a reasonable use exception from the requirements of the ordinance.
Instead, Erickson filed a petition for a writ of certiorari to challenge the application of the critical areas ordinance to its project. Erickson claimed that, like a building permit, the MUP application vested on the date it was filed. The trial court quashed the writ of review because Erickson did not first seek a reasonable use exception. Erickson then sought and was denied the exception.
Having exhausted administrative remedies, Erickson moved for partial summary judgment on the vested rights issue. The trial court denied Erickson's summary judgment motion. Erickson appealed to Division One of the Court of Appeals. The Court of Appeals affirmed the trial court, upholding the constitutionality of SMC 23.76.026. Erickson & Assocs., Inc. v. McLerran, 69 Wash.App. 564, 570, 849 P.2d 688 (1993). Erickson now appeals that judgment.
At issue in this case is whether Washington's vested rights doctrine applies to the filing of a completed MUP application as it does to the filing of a building permit application.
Washington's doctrine of vested rights entitles developers to have a land development proposal processed under the regulations in effect at the time a complete building permit application is filed, regardless of subsequent changes in zoning or other land use regulations. West Main Assocs. v. Bellevue, 106 Wash.2d 47, 720 P.2d 782 (1986); Hull v. Hunt, 53 Wash.2d 125, 331 P.2d 856 (1958); State ex rel. Ogden v. Bellevue, 45 Wash.2d 492, 275 P.2d 899 (1954); Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.7 (1983). The building permit application must (1) be sufficiently complete, (2) comply with existing zoning ordinances and building codes, and (3) be filed during the effective period of the zoning ordinances under which the developer seeks to develop. Valley View Indus. Park v. Redmond, 107 Wash.2d 621, 638, 733 P.2d 182 (1987).
In 1987, the Legislature codified these principles. Laws of 1987, ch. 104, pp. 317-18 (codified at RCW 19.27.095(1)). RCW 19.27.095(1) provides:
A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
Washington's vesting rule runs counter to the overwhelming majority rule that "development is not immune from subsequently adopted regulations until a building permit has been obtained and substantial development has occurred in reliance on the permit." Settle, supra, at 40. This court rejected the reliance-based majority rule, instead embracing a vesting principle which places great emphasis on certainty and predictability in land use regulations. West Main Assocs., 106 Wash.2d at 51, 720 P.2d 782. "The purpose of the vesting doctrine is to allow developers to determine, or 'fix,' the rules that will govern their land development." West Main Assocs., 106 Wash.2d at 51, 720 P.2d 782.
At issue here is an ordinance that regulates the vesting date for Seattle master use permits. Seattle Municipal Code 23.76.026, "Vesting of development rights", reads in pertinent part Applications for all master use permit components except subdivisions and short subdivisions shall be considered under the Land Use Code and other land use control ordinances in effect on the date a fully complete building permit application, meeting the requirements of Section 302 of the Seattle Building Code, is filed. Until a complete building permit application is filed, such Master Use Permit applications shall be reviewed subject to any zoning or other land use control ordinances that become effective prior to the date that notice of the Director's decision on the application is published, if the decision can be appealed to the Hearing Examiner, or prior to the date of the Director's decision if no Hearing Examiner appeal is available.
(Footnote omitted.) SMC 23.76.026. Under the Seattle ordinance, vesting occurs either (1) when a developer files a complete building permit application at any point in the MUP permitting process (known as a "combined MUP"), or (2) when the MUP is issued by the City, even if no building permit has been submitted (known as a straight MUP).
Erickson challenges the constitutionality of SMC 23.76.026, arguing the ordinance infringes upon development interests and violates Erickson's due process right to be treated in a fair manner by the City. Erickson contends the vested rights doctrine is not limited to building permit applications and the doctrine requires the City to process MUP applications according to the land use regulations in effect at the time a MUP is filed. Erickson further argues land development in Washington has become increasingly complex, discretionary, and expensive and the vested rights doctrine will afford property owners little protection if its scope is limited to building permit applications.
Erickson first argues SMC 23.76.026 is constitutionally defective. When reviewing a constitutional challenge to a legislative enactment we presume the enactment is constitutional, and the party challenging the enactment bears the burden of proving it unconstitutional beyond a reasonable doubt. State v. Brayman, 110 Wash.2d 183, 193, 751 P.2d 294 (1988); Tekoa Constr., Inc. v. Seattle, 56 Wash.App. 28, 34, 781 P.2d 1324 (1989), review denied, 114 Wash.2d 1005, 788 P.2d 1079 (1990).
Erickson correctly asserts our vesting doctrine is rooted in constitutional principles of fundamental fairness. The doctrine reflects a recognition that development rights represent a valuable and protectable property right. West Main Assocs., 106 Wash.2d...
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