Town of Woodway v. Snohomish County

Fl LE
This opinion was flied for record

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IRe nctld r-t Carpenter
Supr~::~1ne Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

TOWN OF WOODWAY and SAVE )
RICHMOND BEACH, INC., a Washington
) No. 88405-6
non-profit corporation, )
) EnBanc
Petitioners, )
)
v. )
)
SNOHOMISH COUNTY and BSRE POINT )
WELLS, LP, )
) Filed _ _A_PR_1_0_20_14__
Respondents. )
___________________________)

OWENS, J. -- In Washington, developers have a vested right to have their

development proposals processed under land use plans and development regulations

in effect at the time a complete permit application is filed. In this case, we are asked

whether our vested rights doctrine applies to permit applications filed under plans and

regulations that were later found to be noncompliant with the State Environmental

Policy Act (SEPA), chapter 43.21C RCW. We hold that it does. Local land use plans

and development regulations enacted under the Growth Management Act (GMA),

chapter 36.70A RCW, are presumed valid upon adoption. Should a valid plan or
Town of Woodway v. Snohomish County
No. 88405-6

regulation later be found to violate SEP A, the exclusive remedies provided by the

GMA affect only future applications for development-not development rights that

have already vested.

In this case, BSRE Point Wells LP (BSRE) submitted complete applications for

development permits before the local land use ordinances were found to be

noncompliant with SEPA. BSRE's rights vested when it submitted its applications.

A later finding of noncompliance does not affect BSRE's already vested rights. We

affirm the Court of Appeals and hold that BSRE's development rights vested.

· FACTS

The parties do not dispute the facts of this case. BSRE owns a 61-acre strip of

waterfront land in unincorporated Snohomish County known as "Point Wells." For

approximately 100 years, the property has been used for petroleum storage and other

industrial purposes. Prior to 2009, Snohomish County designated the area "Urban

Industrial."

In 2006, BSRE 1 asked Snohomish County to amend its comprehensive plan and

zoning regulations to allow for a mixed use/urban center designation and

redevelopment of the Point Wells site. BSRE wants to redevelop the property by

adding over 3,000 housing units and over 100,000 square feet of commercial and

1
In 2006, the property was owned by Paramount of Washington LLC. Both Paramount
and BSRE are owned by the same parent company.

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No. 88405-6

retail space. The petitioners-Town of Woodway (Woodway) and Save Richmond

Beach Inc. (Richmond Beach)-oppose the project. They fear that the area lacks the

infrastructure needed to support an urban center, namely sufficient roads and public

transit. These nearby communities do not want to "bear the burden of providing

urban services to the site." Pet. for Discretionary Review (Richmond Beach) at 3.

Snohomish County granted BSRE's request in two separate actions. First, in

2009, the county adopted two ordinances amending its comprehensive plan to allow

the redesignation of Point Wells from "Urban Industrial" to "Urban Center." Second,

in 2010, it adopted two ordinances amending its building regulations to accommodate

Point Wells as an Urban Center. The county prepared a draft supplemental

environmental impact statement (EIS), took comments, and finalized the EIS for the

comprehensive plan amendments in 2009. It made a determination of nonsignificance

for the latter two ordinances (i.e., the development regulations) based on the 2009

EIS. Woodway and Richmond Beach petitioned the growth management hearings

board (growth board) to review the four ordinances. A hearing took place before the

growth board on March 2, 20 11.

Before the growth board issued its final order, BSRE filed two permit

applications to redevelop Point Wells. It filed the first permit application on February

14, 2011, two weeks before the hearing before the growth board. BSRE filed the

second permit application on March 4, 2011, two days after the hearing before the

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Town of Woodway v. Snohomish County
No. 88405-6

growth board. The county published notices of both permits shortly after they were

filed. The notices stated that the applications were complete.

On Apri125, 2011, the growth board issued its final order. It found that all four

ordinances were noncompliant with SEPA. The growth board found that the county's

EIS was faulty because it did not consider multiple alternatives to the Urban Center

designation-the only alternative it considered was no change at all. The growth

board found that the development regulations were noncompliant because they relied

on the same faulty EIS as the comprehensive plan amendments. The growth board

remanded the four ordinances with instructions to cure them of their SEPA flaws.

The growth board also invalidated the comprehensive plan amendments-but not the

development regulations-finding that their continued validity would substantially

interfere with the goals of the GMA.

Following the growth board's order, the petitioners filed a complaint in

superior court seeking a declaration that BSRE's permits had not vested because the

ordinances were "void" under SEP A and the GMA. The petitioners also asked for an

injunction against the county to stop it from processing BSRE's permits. The parties

moved for summary judgment, and the court found for the petitioners. The court

ruled that BSRE's rights did not vest to the ordinances later found to be noncompliant

with SEPA, and it enjoined the country from processing their permits until the county

complied with the growth board's order of remand.

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No. 88405-6

The Court of Appeals reversed. It concluded that the invalidity provision of the

GMA, RCW 36.70A.302(2), controlled the dispute and that "complete and filed

applications vest to those challenged plan provisions and regulations, regardless of the

Growth Board's subsequent ruling in the administrative appeal." Town of Woodway

v. Snohomish County, 172 Wn. App. 643, 660,291 P.3d 278 (2013). We granted

rev1ew. Town of Woodway v. Snohomish County, 177 Wn.2d 1008, 302 P.3d 181

(2013).

ISSUE

Did BSRE's development rights vest to comprehensive plans and development

regulations that were later found to be flawed under SEPA?

ANALYSIS

I. The Standard ofReview

This case presents questions of pure law. We review questions of law de novo.

Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295 P.3d 1179 (2013).

II. Washington's Vested Rights Doctrine and the Plain Language of the GMA
Make It Clear That BSRE 's Development Rights Vested

Washington's vested rights doctrine strongly protects the right to develop

property. Our state employs a "date certain" standard for vesting. Abbey Rd. Grp.,

LLC v. City ofBonney Lake, 167 Wn.2d 242, 251, 218 P .3d 180 (2009); Hull v. Hunt,

53 Wn.2d 125, 130, 331 P.2d 856 (1958). Under the date certain standard, developers

are entitled "to have a land development proposal processed under the regulations in

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No. 88405-6

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., 167

Wn.2d at 250. "Washington's rule is the minority rule, and it offers [greater]

protection of [developers'] rights than the rule generally applied in other

jurisdictions." !d.

Washington adopted this rule because we recognize that development rights are

valuable property interests, and 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."' !d. at 251 (quoting Valley View Indus. Parkv. City of

Redmond, 107 Wn.2d 621, 637, 733 P.2d 182 (1987)). While it originated at common

law, the vested rights doctrine is now statutory. Erickson & Assocs. v. McLerran, 123

Wn.2d 864, 867-68, 872 P.2d 1090 (1994); RCW 19.27.095(1) (building permits);

RCW 58.17.033(1) (subdivision applications); RCW 36.70B.180 (development

agreements).

The plans and regulations to which development rights vest are a product of the

GMA. The GMA aims to curtail "uncoordinated and unplanned growth" that "pose[ s]

a threat to the environment, sustainable economic development, and the health, safety,

and high quality of life enjoyed by residents of this state." RCW 36.70A.010. Under

the GMA, communities must create comprehensive plans to express general land use

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Town of Woodway v. Snohomish County
No. 88405-6

policies in the community and development regulations to implement those plans.

RCW 36.70A.040(3), (4).

The GMA contains a review process that allows parties to challenge

comprehensive plans and building regulations, and it provides remedies for plans or

regulations that prove to be flawed. In this case, we must interpret those statutory

remedies. "The purpose of statutory interpretation is to determine and give effect to

legislative intent." Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997). "The

legislative intent should be derived primarily from the statutory language." !d.

"When the words in a statute are clear and unequivocal, this court is required to

assume the Legislature meant exactly what it said and apply the statute as written."

!d.

The language in the GMA is clear and unequivocal. Comprehensive plans and

development regulations, including their amendments, are presumed valid upon

adoption. RCW 36.70A.320(1). Should a party wish to challenge adopted plans or

regulations, it must petition the growth board for review. RCW 36.70A.280(1). The

growth board has exclusive jurisdiction to determine whether a comprehensive plan or

building regulation violates the GMA. Stcifne v. Snohomish County, 174 Wn.2d 24,

34, 271 P.3d 868 (2012) ("[A] party challenging a decision related to a comprehensive

plan must seek review before the growth board first."); see Woods v. Kittitas County,

162 Wn.2d 597, 614-16, 174 P.3d 25 (2007) (noting that a superior court lacks

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Town of Woodway v. Snohomish County
No. 88405-6

jurisdiction over challenges to plans or regulations based on the GMA). As a part of

its exclusive jurisdiction to hear GMA challenges to plans and regulations, the growth

board also hears SEPA challenges to those plans and regulations. RCW

36.70A.280(l)(a); Davidson Serles & Assocs. v. City a/Kirkland, 159 Wn. App. 616,

628, 246 P.3d 822 (2011) ("The [growth board] has exclusive jurisdiction to review

SEPA challenges to comprehensive plans and development regulations."). Ifthe

growth board finds that the plan or regulation is flawed, it has two options: (1) it may

enter a finding of noncompliance or (2) it may enter a finding of invalidity. RCW

36.70A.300(3)(b), .302.

If the growth board finds noncompliance, it remands the matter to the county

with instructions to comply within a certain time period. RCW 36.70A.300(3)(b).

"County plans and regulations ... remain valid during the remand period following a

finding of noncompliance." King County v. Cent. Puget Sound Growth Mgmt.

Hearings Bd., 138 Wn.2d 161, 181, 979 P.2d 374 (1999) (emphasis added); RCW

36.70A.300(4).

If the flaw in the plan or regulation represents a major violation of the GMA,

the growth board has the option of determining that the plan or regulation is invalid.

To do so, the growth board must first find noncompliance and remand the matter back

to the county. RCW 36.70A.302(1)(a). Additionally, the growth board must enter a

determination-supported by findings of fact and conclusions of law-that the

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Town of Woodway v. Snohomish County
No. 88405-6

continued validity of the provision would substantially interfere with the goals of the

GMA. RCW 36.70A.302(1 )(b). "Upon a finding of invalidity, the underlying

provision would be rendered void." King County, 138 Wn.2d at 181.

But, like a finding of noncompliance, a finding of invalidity does not apply

retroactively to rights that have already vested. The GMA plainly states:

A determination of invalidity is prospective in effect and does not
extinguish rights that vested under state or local law before receipt of the
[growth] board's order by the city or county. The determination of
invalidity does not apply to a completed development permit application
for a project that vested under state or local law before receipt of the
[growth] board's order by the county or city or to related construction
permits for that project.

RCW 36.70A.302(2) (emphasis added). Thus, whether or not a challenged plan or

regulation is found to be noncompliant or invalid, any rights that vested before the

growth board's final order remain vested after the order is issued.

We have considered the remedial powers under the GMA before. In Skagit

Surveyors & Engineers, LLC v. Friends ofSkagit County, 135 Wn.2d 542, 958 P.2d

962 (1998), we addressed whether the GMA authorized the growth board to invalidate

pre-GMA ordinances. We relied on the plain language of the statute and held that it

did not. Id. at 568. We made clear that our duty "is to interpret the statute as enacted

by the Legislature, after the Legislature's determination of what remedy best serves

the public interest of this state; we will not rewrite the statute." Id. at 567.

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Town of Woodway v. Snohomish County
No. 88405-6

The reasoning in Skagit Surveyors applies here. Though that case dealt with

remedial powers of the growth board-and here we review a remedy fashioned by a

superior court-there is no reason to believe that a superior court could exceed the

remedies provided by the statute as they relate to GMA ordinances. As noted above,

the growth board has exclusive jurisdiction to hear SEPA challenges as they relate "to

plans, development regulations, or amendments, adopted under [the GMA]." RCW

36.70A.280(1)(a). Its remedies are limited to finding noncompliance or invalidity,

and neither finding affects development rights that have already vested.

Here, the growth board reviewed SEPA challenges to the plans and regulations

and found a violation. The remedies for such a violation are exclusively provided by

the GMA and do not affect rights that have already vested. The superior court erred

when it exceeded these exclusive remedies. We affirm the Court of Appeals because

of the plain language of the GMA as described above.

III. Petitioners Argue That Our SEPA Precedent Controls, but the GMA and Its
Amendments Have Changed the Law with Respect to SEPA Violations in
GMA Plans and Regulations

Despite the language of the GMA, the petitioners argue that "[g]overnrnent

actions taken in violation of SEP A's procedural requirements are void ab initio and

ultra vires." Suppl. Br. ofPet'r (Woodway) at 6-7. They argue that prior to the

GMA, it was well established that a void ordinance did not create vested rights. The

petitioners argue that this precedent has not been overruled by the GMA and that no

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Town of Woodway v. Snohomish County
No. 88405-6

development rights can vest if they rely on ordinances that do not comply with

SEPA's procedural requirements. We disagree.

The petitioners cite a list of cases that are distinguishable: Eastlake Cmty.

Council v. Roanoke Assocs., 82 Wn.2d 475, 481, 487, 513 P.2d 36 (1973) (pre-GMA

case holding that rights did not vest when permit renewal did not conform to zoning

or building regulations and when no EIS was made); Juanita Bay Valley Cmty. Ass 'n

v. City ofKirkland, 9 Wn. App. 59,73-74,510 P.2d 1140 (1973) (pre-GMA case

remanding a grading permit for failure to make an initial determination of

environmental significance under SEP A); Lassila v. City of Wenatchee, 89 Wn.2d

804, 816-17, 576 P.2d 54 (1978) (pre-GMA case vacating a comprehensive plan

amendment when the city failed to determine whether the amendment would have a

significant impact on the environment); Noel v. Cole, 98 Wn.2d 375, 380-81, 655 P.2d

245 (1982) (pre-GMA case holding that a timber contract was void and ultra vires

where the Department of Natural Resources did not prepare an EIS); Responsible

Urban Growth Grp. v. City ofKent, 123 Wn.2d 376, 381, 389-90, 868 P.2d 861

(1994) (non-GMA and non-SEPA case invalidating a rezone and voiding a building

permit issued under that rezone when the rezone failed to meet statutory and due

process notice requirements); S. Tacoma Way, LLC v. State, 169 Wn.2d 118, 124-26,

233 P.3d 871 (2010) (non-GMA and non-SEPA case where procedural error did not

render the sale of state land ultra vires).

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No. 88405-6

These cases are off point-none of them deal with plans or regulations

reviewed by the growth board under the GMA. The GMA fundamentally changed the

review process for local land use plans and building regulations. Under the current

statute, the growth board hears petitions alleging that local planning is not in

compliance with the requirements of the GMA "or [SEPA] as it relates to plans,

development regulations, or amendments, adopted under RCW 36.70A.040." RCW

36.70A.280(1)(a). As noted above, the growth board's power to review these

petitions is exclusive and the growth board's remedies are limited by statute. The

growth board can find noncompliance or invalidity, but neither finding retroactively

affects vested rights. RCW 36.70A.300(4), .302(2). Thus, any pre-GMA case or case

that dealt with SEP A outside the context of GMA plans or development regulations

has no bearing on this case.

This area of law is entirely statutory, and we have recognized that amendments

to statutes will supersede judicial precedent. In Dioxin/Organochlorine Center v.

Pollution Control Hearings Board, 131 Wn.2d 345,356-61,932 P.2d 158 (1997), we

held that Noel-one of the cases cited by the petitioners-was no longer authoritative

for the proposition that a superior court could review certain forest practices for

violations of SEPA. We found that the legislature had amended SEP A to clarify that

the superior court could not review the issue. !d. at 362. Here too, amendments to the

GMA and SEPA have superseded prior cases. The Court of Appeals discussed the

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Town of Woodway v. Snohomish County
No. 88405-6

amendments to the GMA at length, but a short summary shows that the legislature

fundamentally altered review of GMA plans and regulations.

In 1991, the legislature amended the GMA to establish a process for reviewing

comprehensive plans and regulations. LAWS OF 1991, 1st Sp. Sess., ch. 32, § 9. It

gave the newly created growth board the power to review plans and regulations not

only for GMA violations but also for SEPA violations. Id. (now codified as RCW

36.70A.280(1)). In 1995, the legislature amended the GMA and SEPA, simplifying

the growth board's review process by giving it the two remedies discussed above-

noncompliance or invalidity. LAWS OF 1995, ch. 347, § 110. Importantly, the

legislature made it clear that the GMA "should serve as the integrating framework for

all other land-use related laws." LAWS OF 1995, ch. 347, § 1. While the 1995

amendment included the provision that a fmding of invalidity applies only

prospectively and does not affect rights that vested before the growth board's order,

the legislature clarified this point even further with an amendment in 1997. That

amendment recodified the GMA's invalidity provision in a stand-alone section and

added a second sentence emphasizing the point further. LAws OF 1997, ch. 429, §

16(2) ("The determination of invalidity does not apply to a completed development

permit application for a project that vested under state or local law before receipt of

the [growth] board's order by the county or city or to related construction permits for

that project.").

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Town of Woodway v. Snohomish County
No. 88405-6

As the Court of Appeals noted, the legislature was well informed when it made

the amendments. The legislature relied on several government reports that examined

the continuing validity of noncompliant plans and regulations and vested rights issues.

See Woodway, 172 Wn. App. at 654-60 (discussing the amendments in detail); WASH.

STATE OFFICE OF FIN. MGMT., GOVERNOR'S TASK FORCE ON REGULATORY REFORM:

FINAL REPORT 52 (Dec. 20, 1994) (recommending that a plan or regulation should

remain in effect unless later found invalid); WASH. LAND USE STUDY COMM'N, 1996

ANNUAL REPORT EXEC. SUMMARY 20 (Jan. 29, 1997) (recommending an amendment

clarifying that projects that vested prior to a growth board order are not affected by an

order of invalidity).

This history shows that the legislature thoughtfully considered the review

process for comprehensive plans and regulations under the GMA. It purposefully

integrated SEPA review with GMA review and outlined the remedies for faulty plans

and regulations. It considered the impact that GMA review would have on vested

rights and chose not to disturb this state's strong vested rights doctrine. Our decision

reflects the clear intent of the legislature, and we apply the statute as written.

IV. Richmond Beach's Argument That the Court Should Not Allow the Vested
Rights Doctrine "To Be Used As a Sword" Is Not Persuasive

Richmond Beach argues that the Court of Appeals erred by allowing the vested

rights doctrine to be used as a "'sword' to push through an otherwise-illegal

development, rather than as a 'shield' to protect the property owner from fluctuating

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Town of Woodway v. Snohomish County
No. 88405-6

land use policies." Suppl. Br. ofPet'r (Richmond Beach) at 4. Richmond Beach

evokes this court's warning in Erickson that if rights vest too easily, the public interest

can be subverted. Richmond Beach criticizes the decision below for failing to

"uphold important principles such as protection of property rights, certainty,

predictability, due process, good faith, or fairness." ld. These arguments miss the

mark.

Our vested rights doctrine protects due process and property interests by setting

a clear date for vesting development rights, and we have expressly rejected a bad faith

exception to that rule. Allenbach v. City of Tukwila, 101 Wn.2d 193, 676 P.2d 473

(1984). InAllenbach, the city of Tukwila passed an ordinance that downzoned the

developer's property from multifamily to single-family residential. I d. at 194-95.

Nearly two months later-one day before the ordinance took effect-a developer

submitted a permit application for a multifamily development. I d. at 195. The city

argued that the developer acted in bad faith and that it did not have to process the

permit applications under the old zoning laws. I d.

We rejected the city's argument. We reiterated that the court applies a date

certain standard and "avoids the morass and uncertainties" of determining bad faith.

!d. at 198. Contrary to Richmond Beach's argument, the date certain rule creates

certainty and predictability for all parties and protects property rights. There is no bad

faith exception to that rule. ld. at 199-200. Only one bad faith consideration applies

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Town of Woodway v. Snohomish County
No. 88405-6

to developers-they must not make knowing misrepresentations in their permit

applications. Lauer v. Pierce County, 173 Wn.2d 242, 262, 267 P.3d 988 (2011). No

party alleges that BSRE made knowing misrepresentations in this case. Richmond

Beach's arguments are unpersuasive, and we affirm.

CONCLUSION

BSRE's development rights vested to the plans and regulations in place at the

time it submitted its permit applications. Developers' rights vest to the ordinances in

effect when a complete permit application is submitted. The plain language of the

GMA indicates that a later finding of noncompliance under SEPA does not affect

rights that have already vested. The petitioners cite cases that have been largely

superseded by the GMA and its amendments. Additionally, we do not consider the

good or bad faith of a developer, other than their duty not to make knowing

misrepresentations on permit applications. For these reasons, we affirm the Court of

Appeals.

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Town of Woodway v. Snohomish County
No. 88405-6

WE CONCUR:

17
Town of Woodway v. Snohomish County
Dissent by C. Johnson, J.

No. 88405-6

C. JOHNSON, J. (dissenting)-The vested rights doctrine is a judicially

created doctrine originally anchored in due process principles of fundamental

fairness. The doctrine operates to protect citizens and developers from the

government changing the conditions and requirements that existed and were relied

on when a completed building permit or development proposal was submitted. In

other words, under the doctrine, except under limited circumstances, the

government could not change the rules of the game after it had already been

played. But no laws changed that affected the development in this case. It was

illegal under the Growth Management Act (GMA), chapter 36.70A RCW, and the

State Environmental Policy Act (SEP A), chapter 43.21 C RCW, at all times. The

majority's decision erroneously creates a troubling erosion of the requirements

under the GMA and, more disturbing, SEPA.
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

The vested rights doctrine has never been applied to circumvent and

eliminate statutory requirements existing at the time a development proposal is

submitted. The GMA controls the development of land and guides a county's

options in planning for growth, development, and expansion. Similarly, SEP A

exists to condition development in order to protect our environment and minimize

the environmental impact caused by development. The majority embraces a radical

departure from our cases and uses the vested rights doctrine as a sword to disregard

the mandates of both the GMA and SEP A. The record in this case establishes that

both the county and developer likely knew their plan would not survive a challenge

unless the anticipated Growth Management Hearings Board's decision to

invalidate their proposal could be cleverly circumvented. No principle of

fundamental fairness applies where the actions of the county and developer are

designed to circumvent the existing requirements of the GMA and SEP A. The

majority allows "vesting" of essentially an illegal development.

Point Wells is an isolated 61-acre site of a century's worth ofpetroleum-

based industrial use on the southwest corner of Snohomish County. It is largely

inaccessible from Snohomish County. Instead, the only access is from the south

through King County and the city of Shoreline along Richmond Beach Drive, a

2
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

narrow two-lane neighborhood street that dead-ends at Point Wells. This road

cannot provide adequate road access, let alone highway access, but is the only

present or anticipated vehicle access to Point Wells, where BSRE Point Wells, LP

plans to build at least 3,000 housing units as well as commercial and retail space,

with traffic estimated to add 12,860 car trips per day. There are no express or high-

capacity transit routes within 2.5 miles of Point Wells, and although the Sound

Transit light rail line runs through Point Wells, it does not stop in Point Wells, nor

is there a plan to provide a stop. Reasonable access to this type of development is,

and always has been, a requirement, but such access does not exist here and

probably never will.

Point Wells was originally designated as "urban industrial," but upon

BSRE's request, Snohomish County (County) amended its comprehensive plan to

designate Point Wells as "urban center"--the county's most dense mixed-use

designation-·-:·and then amended its development regulations to accommodate Point

Wells as an urban center. Under the County's own comprehensive plan, urban

centers must be "located along an existing or planned high capacity transit route."

Clerk's Papers (CP) at 214. The comprehensive plan also required that urban

centers be "located adjacent to a freeway/highway and a principal arterial road ...

3
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

or be located on a regional high capacitytransit route." CP at 197. The County was

well aware of such urban center requirements, not only because these requirements

are in its own code but also because the County already had five designated urban

centers, each identified and named by a highway intersection. 1

The town of Woodway and Save Richmond Beach, Inc. petitioned the

Growth Management Hearings Board (Board) to challenge the comprehensive plan

amendments and development regulations, and in August 2010, a hearing was set

before the Board. On February 14, 2011, BSRE submitted a subdivision and land-

disturbing aQtivity permit application with the county. On March 2, 2011, the

hearing before the Board took place. Two days later, BSRE filed a development

permit application with the County.

On April25, 2011, the Board invalidated the county's comprehensive plan

amendments and found the development regulations noncompliant with SEP A. In

its order, the Board stated that it was left with "'a firm and definite conviction that

a mistake ha[ d] been committed.'" CP at 113.

The Board noted that Point Wells was the County's only urban center

without either transit access or the existing road infrastructure to support high-

·-----·---------
1
CP at 107.

4
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

capacity vehicle access. The County had argued that Point Wells was "'located on

a regional high capacity transit route'" notwithstanding the "lack of existing or

planned access to that route." CP at 108. Understandably, the Board rejected this

argument. .Such an interpretation, the Board reasoned, "le[ d] to an absurd result: an

urban center with limited transportation access." CP at 108. Despite the fact that

;adequate urban services including transit, water, sewer, police, fire, emergency,

and trash collection for Point Wells were neither available nor clearly planned, as

noted by the Board, BSRE had argued that its promise to fund the building of a

transit center, on-site police and fire stations, and a commuter rail station was the

equivalent of the actual governmental commitment required by the GMA. The

Board also rejected this argument, noting that "'Trust Us' is not a GMA Plan." CP

at 137. As a result, the Board invalidated the County's comprehensive plan

amendments. CP at 166.

Finally, the final supplemental environmental impact statement (FSEIS)

submitted by the County, as required by SEPA, considered only two alternatives:

(1) the land use and zoning requested by BSRE or (2) no action. The Board found

the FSEIS inadequate because there were other land use designations the County

could have considered that would have been less dense, generated fewer vehicle

5
 Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

trips, and been less of a strain on public facilities and services. CP at 148. As a

result, the Board held that all four ordinances did not comply with SEP A and

remanded them back to the County to take legislative action to comply with SEP A.

CP at 166-67.

According to the majority, however, because BSRE filed two permit

. :• ~ttpplications before the Board could invalidate the proposal, it now has a vested

right to develop Point Wells as an urban center notwithstanding the development's

illegality and clear deficiencies. To the majority, BSRE would have a vested right

regardless of whether it plans to build 3,000 or 30,000 new housing units in Point

Wells. This is not the situation envisioned by the vested rights doctrine or what the

statute provides.

The purpose of the vested rights doctrine is to allow developers to determine

the rules that govern their land development. Once a developer files a complete

permit application, "a city cannot frustrate the development by enacting new

zoning regulations." W Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51,720

P.2d 782 (1986). The doctrine is supported by notions of fundamental fairness

because "citizens should be protected from the 'fluctuating policy' of the

legislature." W. Main, 106 Wn.2d at 51 (quoting THE FEDERALIST No. 44, at 301

6
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

(James Madison) (Jacob E. Cooke ed., 1961)). The doctrine is meant to protect the

land owner/developer from the municipality. See Noble Manor Co. v. Pierce

County, 133. Wn.2d 269, 943 P.2d 1378 (1997) (right vested when city changed

zoning .ordinance after r.eceiying short plat subdivision qut before plat was

approved); Parkridge v. City ofSeattle, 89 Wn.2d 454, 573 P.2d 359 (1978)

(developer had vested right, despite incomplete application, because of diligent

efforts to complete application, which were frustrated by the city); Hull v. Hunt, 53

Wn.2d 125,331 P.2d 856 (1958) (right vested day before city's amended zoning

ordinance went into effect); State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492,

275 P.2d 899 (1954) (right vested when the city attempted to rezone upon

receiving building permit). The majority and legislature fail to see this nuance.

In this case, BSRE needed no such protection from the County because there

was no fluctuation of county legislation during the pendency ofBSRE's permit

applications; the rules and requirements remained unchanged throughout. There

was not even a threat of fluctuating legislation during this time as Snohomish

County was in fact defending to the Board the very legislation requested by BSRE

and under which BSRE claims its development rights vested. No case exists in

which this court has held that a developer has a vested right to build under invalid,

7
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

site-specific legislation that it specifically requested and subsequently defended on

appeal and of which it is the sole beneficiary.

The majority finds that BSRE has a development right under RCW

36.70A.302(2), which provides:

A determination of invalidity is prospective in effect and does not
extinguish rights that vested under state or local law before receipt of
the board's order by the city or county. The determination of invalidity
does not apply to a completed development permit application for a
project that vested under state or local law before receipt of the
board's order by the county or city or to related construction permits
for that project.

This provision must be read consistent with the vested rights doctrine and not, as

the majority reasons, as an independent, free-standing vesting provision. The

statute is written in the past tense: invalidity does not apply to applications for a

project that vested. It does not create rights. Rather, it protects only rights that

already existed by way of vesting and assumes a separate mechanism by which

those rights are created in the first place, namely our vested rights doctrine.

Because BSRE should not have an illegal development right under our vested

rights doctrine, it cannot use RCW 36.70A.302(2) as a shield to protect its illegal

use.

8
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

Finally, the majority minimizes the environmental impact ofBSRE's vested

right by noting only that Woodway and Save Richmond Beach "fear that the area

lacks the infrastructure." Majority at 3. As noted by the Board, however, the area

in fact lacks all of the necessary infrastructure to support an urban center. Point

Wells lies on the County's southern border and is not accessible from anywhere

within its own boundaries. The task of providing transportation, utilities, and

police and fire protection, to name a few, in fact fully burdens King County; the

city of Shoreline; and a narrow, inadequate residential road. Such an absurd result

cannot be what the vested rights doctrine was intended to protect.

The GMA was enacted to fight "uncoordinated and unplanned growth,"

RCW 36.70A.010, but in finding that BSRE has a vested right to develop Point

Wells as an urban center, the majority has facilitated such uncoordinated,

unplanned, and in fact illegal growth. The GMA and SEP A should be read in

harmony and given effect, and not, as the majority holds, written out of existence.

The vesting rights doctrine cannot be used as a sword to eviscerate the purpose and

function of the GMA and SEP A.

9
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)

Respectfully, I dissent.

10