Town of Woodway v. Snohomish Cnty., s. 68048–0–I, 68049–8–I.

• Citation: 172 Wash.App. 643,291 P.3d 278
• Decision Date: 07 January 2013
• Docket Number: Nos. 68048–0–I, 68049–8–I.,s. 68048–0–I, 68049–8–I.
• Court: Court of Appeals of Washington
• Parties: TOWN OF WOODWAY and Save Richmond Beach, Inc., a Washington non-profit corporation, Respondents, v. SNOHOMISH COUNTY and BSRE Point Wells, LP, Appellants.

172 Wash.App. 643

291 P.3d 278

TOWN OF WOODWAY and Save Richmond Beach, Inc., a Washington non-profit corporation, Respondents,

v.SNOHOMISH COUNTY and BSRE Point Wells, LP, Appellants.

Nos. 68048–0–I, 68049–8–I.

Court of Appeals of Washington,

Division 1.

Jan. 7, 2013.

Mark Johnsen, Attorney at Law, Douglas Luetjen, Karr Tuttle Campbell, Gary Huff, Seattle, WA, for Appellant.

Zachary Hiatt, Graham & Dunn PC, Wayne Tanaka, Seattle, WA, for Respondent.

LAU, J.

¶ 1 Under the Growth Management Act (GMA), a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Management Hearings Board's (Growth Board) later determination that the local jurisdiction did not fully comply with the State Environmental Policy Act's (SEPA) procedural requirements in its enactment of those plan provisions and regulations. Because BSRE Point Wells, LP filed complete development permit applications before the Growth Board issued its final decision and order, those applications vested to Snohomish County's urban center ordinances. We reverse the trial court's summary judgment order granting declaratory and injunctive relief in favor of Town of Woodway and Save Richmond Beach, Inc. (SRB) and remand for entry of an order dismissing this lawsuit on Snohomish County's and BSRE's summary judgment motions.

FACTS AND PROCEDURAL HISTORY

¶ 2 The parties agree this appeal raises questions of law and not fact. ¹ BSRE owns a 61–acre site on Puget Sound known as Point Wells. The site is located in unincorporated Snohomish County, just north of the King County–Snohomish County border. Because Puget Sound lies to the west and steep bluffs rise to the east, ingress is limited to a two-lane road running through the city of Shoreline's Richmond Beach neighborhood in King County and then through Woodway in Snohomish County. The road dead-ends at Point Wells. The nearest highway, State Route 99, lies approximately two and one-half miles to the east.

¶ 3 During the last century, Point Wells accommodated a petroleum terminal, a tank farm, and an asphalt plant. In 2007, BSRE sought a redesignation of the Point Wells site on the Snohomish County (County) comprehensive plan map from an industrial designation to one that would allow it to redevelop the site with residential and commercial uses. The county council granted that request in two separate actions in 2009 and 2010. Under the authority of the GMA, it adopted ordinances redesignating the Point Wells site as an “urban center” on the County's comprehensive plan map in 2009. Neighboring jurisdictions Woodway and the city of Shoreline, together with neighborhood group SRB, petitioned for review of the comprehensive plan amendments and the adequacy of the County's SEPA review before the Growth Board.²

¶ 4 Meanwhile, the county council in 2010 rezoned Point Wells to an “urban center” zone and adopted development regulations accommodating mixed-use development at the site.³ Environmental review of the development regulations consisted of a determination of nonsignificance based on the final supplemental environmental impact statement used to support the 2009 comprehensive plan amendments. Woodway, Shoreline, and SRB also petitioned for review of the development regulations.⁴ The Growth Board consolidated the petitions, and BSRE intervened. All parties appeared at a hearing on the merits.

¶ 5 Following the Growth Board hearing, but before it issued its final decision and order, BSRE applied to the County for several development permits. On February 14, 2011, it filed a master permit application for a preliminary short plat (subdivision) and a land disturbing activity permit. On February 20, 2011, the County published a notice indicating that BSRE had filed a completed subdivision application. In addition, on March 4, 2011, BSRE filed a master permit application for a shoreline management substantial development permit, an urban center development permit, a site (development) plan, a land disturbing activity permit, and a commercial building permit. On March 13, 2011, the County published a second notice indicating BSRE had filed completed applications for the shoreline substantial development permit, the urban center development permit, the site plan, and the commercial building permit.

¶ 6 On April 25, 2011, the Growth Board issued a final decision and order, ⁵ ruling that the County's challenged enactments were adopted partly in violation of the GMA and partly in violation of SEPA. The Growth Board also found the challenged comprehensive plan provisions, but not the development regulations, invalid under the GMA.⁶ The Growth Board remanded to the County, directing it to bring its comprehensive plan amendments into compliance with the GMA and SEPA. As to the regulations, the Growth Board found them noncompliant with SEPA and remanded for remedial action.

¶ 7 On September 12, 2011, Woodway and SRB ⁷ filed a complaint in superior court seeking (1) a declaration that BSRE's development permit applications had not vested to the County's urban center designation or development regulations in effect at the time of filing and (2) an injunction barring the County from processing BSRE's development permit applications until the County achieved GMA and/or SEPA compliance on all remanded ordinances, as directed by the Growth Board's final decision and order. Woodway and SRB moved for summary judgment, seeking the relief requested in the complaint. The County and BSRE separately moved for summary judgment, requesting dismissal of the complaint.

¶ 8 After oral argument, the trial court granted Woodway and SRB's summary judgment motion and denied the County's and BSRE's motions. The court concluded that “BSRE is not vested to the Snohomish County ordinances in effect at the time BSRE made application for the urban center permits.” It also issued an injunction preventing the County from processing BSRE's development permit applications until the County complied with the Growth Board's final decision and order. We consolidated appeals by the County and BSRE.

ANALYSIS

¶ 9 The dispositive question is whether, under the GMA, a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Board's subsequent determination that the jurisdiction did not fully comply with SEPA's procedural requirements in its enactment of those plan provisions and regulations. ⁸

¶ 10 The County and BSRE argue that BSRE had a vested right to have its development permit applications processed under the urban center designation and development regulations in effect at the time of filing. Woodway and SRB argue BSRE acquired no vested rights because SEPA noncompliance renders the County's urban center ordinances ultra vires and/or void and thereby incapable of supporting vested rights. To fully understand the parties' various claims, we first discuss the vested rights doctrine and the development of the GMA.

Vested Rights Doctrine

¶ 11 “Washington's vested rights doctrine, as it was originally judicially recognized, 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.” Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wash.2d 242, 250, 218 P.3d 180 (2009) (citing Hull v. Hunt, 53 Wash.2d 125, 130, 331 P.2d 856 (1958)). “Vesting ‘fixes' the rules that will govern the land development regardless of later changes in zoning or other land use regulations.” Weyerhaeuser v. Pierce County, 95 Wash.App. 883, 891, 976 P.2d 1279 (1999).

Washington's rule is the minority rule, and it offers more protection of development rights than the rule generally applied in other jurisdictions. The majority rule provides 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. Our cases rejected this reliance-based rule, instead embracing a vesting principle which places greater emphasis on certainty and predictability in land use regulations. By promoting a date certain vesting point, our doctrine ensures that “new land-use ordinances do not unduly oppress development rights, thereby denying a property owner's right to due process under the law.” Valley View Indus. Park v. City of Redmond, 107 Wash.2d 621, 637, 733 P.2d 182 (1987). Our vested rights cases thus recognize a “date certain” standard that satisfies due process requirements.

Abbey Rd. Grp., 167 Wash.2d at 250–51, 218 P.3d 180.

¶ 12 Naturally, our “liberal” vesting rule comes at a price. Graham Neighborhood Ass'n v. F.G. Assocs., 162 Wash.App. 98, 115, 252 P.3d 898 (2011). Our Supreme Court has acknowledged that vesting implicates a delicate balancing of interests. Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 873–74, 872 P.2d 1090 (1994) (“The practical effect of recognizing a vested right is to sanction the creation of a new nonconforming use.... If a vested right is too easily granted, the public interest is subverted.”).

¶ 13 By statute, development rights vest upon the filing of a “valid and fully complete building permit application.” RCW 19.27.095(1); Abbey Rd. Grp., 167 Wash.2d at 246, 218 P.3d 180. The vested rights doctrine also applies to subdivision applications ⁹ and shoreline substantial development permit applications.¹⁰ The parties agree that before the Growth Board issued its final decision and order, BSRE had filed complete development permit applications.¹¹

Development of the GMA¹²

¶ 14 The GMA is Washington's fundamental land use planning law. Before its enactment, local land use planning was...