IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WESTRIDGE-ISSAQUAH II LP and 

POLYGON WLH LLC, Washington 

companies,

Respondents,

v.

CITY OF ISSAQUAH, a municipal 

corporation,

Appellant.

DIVISION ONE

No. 82025-7-I

PUBLISHED OPINION

DWYER, J. — The City of Issaquah (the City) appeals from the superior 

court’s order granting the petition filed pursuant to the Land Use Petition Act 

(LUPA)1 by Westridge-Issaquah II LP and Polygon WLH LLC (collectively 

Polygon). In its petition, Polygon claimed that the City illegally imposed certain

general facility charges (GFCs) on several of its properties. Polygon contends

that it had a vested right to have lower GFCs imposed on its properties pursuant 

to an expired development agreement. Additionally, Polygon asserts that the 

City’s imposition of the higher GFCs violated RCW 35.92.025—a statute 

requiring utility connection charges to be reasonable such that they are based on 

property owners’ equitable shares in the cost of the city utility systems. 

Both because Washington’s vesting doctrine does not apply to fees and 

because Polygon did not adduce any evidence challenging the basis on which 

 

1 Ch. 36.70C RCW.
No. 82025-7-I/2

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the City’s ordinances established the disputed GFCs, we reverse the trial court’s 

order insofar as it requires the City to refund the GFCs that were imposed on 

Polygon’s properties and to assess GFCs for future building permits submitted by 

Polygon according to the development agreement. In an order that is not the 

subject of an assignment of error, the trial court varied the amount that the City is 

authorized to charge Polygon for side-sewer fees and water-meter installation 

fees. We leave that order undisturbed, thereby affirming it.

I

Polygon owns land in an area of the City known as the Issaquah 

Highlands. Polygon intends to construct numerous single-family residential units 

and townhomes in the Issaquah Highlands. One of Polygon’s development 

projects is known as the Westridge Single-Family North development, which is a 

73-unit single-family subdivision located within the northern portion of Polygon’s 

property. 

In June 1996, the City entered into a development agreement with Grand 

Ridge LP and Glacier Ridge LP (the Partnership). Under this agreement, the 

Partnership designated Port Blakely Communities, Inc. as their “agent with 

authority to give notices, approvals and otherwise act pursuant to [the] 

Agreement.” The parties agree that Port Blakely was Polygon’s predecessor in 

interest.

The development agreement contained various “development standards,” 

which controlled aspects of development in the Issaquah Highlands. Under the 

development agreement, the Partnership was to construct water and sewer 
No. 82025-7-I/3

3

facilities to serve development in the Issaquah Highlands.2 According to a 

memorandum dated December 16, 2013, and authored by a city official, Port 

Blakely constructed water, sewer, and stormwater systems in the Issaquah 

Highlands that were “designed to support the planned development needs in the 

project.” 

In exchange for Port Blakely’s construction of these facilities, the City 

agreed to consider to amend its ordinances imposing water and sewer GFCs on 

properties that fell within the scope of the agreement.3 The development 

agreement did not contain any such provisions with regard to stormwater GFCs.

Notably, the development agreement provided that “[t]he parties agree to 

take further actions and execute further documents, either jointly or within their 

 

2 With regard to water facilities, section 3.12 of the development agreement stated, in 

part:

The Partnership shall provide at its cost water facilities and incorporate 

water conservation measures to serve the [urban growth area] consistent with 

the “Grand Ridge Water Service” document, which is set forth in Appendix F. 

The City shall provide water to the [urban growth area] Portion of the Project 

sufficient for the Allowable Development.

With regard to sewer facilities, section 3.13 of the development agreement stated, in part:

The Partnership shall provide at its cost sewer facilities to serve the 

[urban growth area] consistent with the “Grand Ridge Sewer Service” document, 

which is set forth in Appendix G.

3 Under Appendix F, the City agreed to consider to amend its ordinance imposing a water 

GFC on the Highlands:

In recognition of the Partnership’s obligation to provide the Grand Ridge 

water system through a series of water main extensions, pump stations and 

water reservoirs, the City agrees to consider adoption of amendments no later 

than August 4, 1996, to its current ordinance(s) which would authorize the City’s 

normal connection (hook-up) fee to be adjusted so the Partnership pays its fair 

share of the portion of the water supply system attributable to Grand Ridge.

Under Appendix G, the City also agreed to consider to amend its ordinance imposing a 

sewer GFC on the Highlands: 

The sewer system shall be designed and constructed to city standards 

and become part of the City’s system upon completion. In recognition that the 

Grand Ridge sewer system will be installed at the Partnership’s cost . . . and will 

connect directly to the existing METRO GILMAN Interceptor, the City agrees to 

consider adoption of amendments, no later than August 4, 1996, to its current 

ordinances to authorize the Partnership to not pay any connection (hook-up) fee 

to the City.
No. 82025-7-I/4

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respective powers and authority, to implement the intent of this Agreement.” 

During the term of the agreement, Port Blakely and the City executed several 

documents which waived or lowered the GFCs that applied to the developments 

in the Issaquah Highlands. Ultimately, the City agreed to (1) waive the GFCs 

imposed on single-family residences seeking to connect to the City’s water and 

stormwater systems, and (2) impose a GFC of $165.06 on single-family 

residences seeking to connect to the City’s sewer system. 

The development agreement also set forth a build-out period of 20 years, 

during which the development standards contained within the agreement 

governed all development:

All development within the [urban growth area] shall be 

governed by the Development Standards and shall be implemented 

through plats, short plats, binding site plans, site development 

permits, building permits and other permits and approvals 

(“Implementing Approvals”) issued by the City. A “Buildout Period” 

of twenty (20) years following first final plat approval is established 

for the development and construction of uses for the Grand Ridge 

Project. During the Buildout Period, the City shall not modify or 

impose new or additional Development Standards beyond those set 

forth in this Agreement.

The development agreement further stated that “[t]he term of this 

Agreement shall continue at a minimum through the Buildout Period, and shall 

continue after the Buildout Period unless and until either the City or the 

Partnership . . . gives notice of termination.” 

On November 1, 2016, Port Blakely sent a letter to the City’s mayor, land 

development manager, and economic development director in which it provided

notice to terminate the development agreement. 
No. 82025-7-I/5

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After receiving the notice of termination from Port Blakely, the City was 

required, under the development agreement, to adopt replacement zoning and 

related development standards that would govern development in the area that 

was subject to the agreement:

No sooner than six (6) months after the notice of termination, the 

City shall hold public hearings and shall adopt zoning and related 

development standards for the [urban growth area] portion of the 

Property, or portions thereof as determined appropriate by the City. 

Upon such adoption, this Agreement shall terminate and thereafter 

the [urban growth area] portion of the Property shall be governed 

by the adopted City zoning and related development regulations.

On March 19, 2018, the Issaquah city council passed ordinance 2830, 

which, among other things, terminated the development agreement and required 

single-family residences in the Issaquah Highlands to pay the $6,029 city-wide 

GFC to connect to the City’s water utility system. Issaquah Ordinance 2830 

(Mar. 19, 2018). Ordinance 2830 also provided that “all property formerly 

governed by [the] Development Agreement shall . . . be governed by the Urban 

Village Replacement Regulations adopted by this ordinance and other applicable 

City zoning and related development regulations.” Issaquah Ordinance 2830 

(Mar. 19, 2018).

On July 14, 2017, before the City terminated the development agreement, 

Polygon submitted a preliminary plat application to subdivide the Westridge 

Single Family North development into 73 single-family lots. On May 4, 2018, the 

chair of the City’s Urban Village Development Commission sent a letter to the city 
No. 82025-7-I/6

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council recommending that it approve the preliminary plat application. The city

council subsequently approved the preliminary plat application.4

After the development agreement was terminated, Polygon submitted 

building permit applications in which it sought to connect several single-family 

properties to the City’s utility systems.5 In September 2019, the City issued 

several invoices for development fees and charges associated with building 

permits for these properties. For each building permit, these invoices imposed 

various fees and charges, including a water GFC of $6,029, a sewer GFC of 

$2,024, and a stormwater GFC of $1,256.6 Polygon paid these fees and charges 

under protest. 

 

4 The record does not contain the city council’s approval of the preliminary plat 

application. However, in its opening brief, the City states that “[t]he Issaquah City Council 

approved Westridge’s preliminary plat on July 16, 2018.” Br. of Appellant at 17. Additionally, in 

its response brief, Polygon states that “[t]he City approved the Westridge North preliminary plat.” 

Br. of Resp’t at 13. 

5 The record does not contain Polygon’s building permit applications. However, the 

parties agree that Polygon submitted its building permit applications after the development 

agreement was terminated. In its opening brief, the City states that “Polygon applied for its utility 

connections (via building permits) after termination of the Development Agreement.” Br. of 

Appellant at 28. Likewise, in its response brief, Polygon states that “the building permits for plats 

approved under the Development Agreement were not all applied for prior to the Agreement’s 

termination.” Br. of Resp’t at 38. 

Moreover, the record indicates that Polygon sought to connect to the City’s utility systems 

in its building permit applications. The Issaquah Municipal Code requires utility system 

connection charges to be assessed when the City issues the permit to connect to the utility 

system. IMC 13.24.090E; IMC 13.70.020B; IMC 13.30.055A. Here, the City assessed the utility 

connection charges upon issuance of Polygon’s building permits. 

6 Approximately two years before the Issaquah city council terminated the development 

agreement, the city council passed two ordinances that established the sewer and stormwater

GFCs that were ultimately imposed on Polygon’s properties. The first, ordinance 2748, required 

a GFC of $2,024 to connect to the City’s sewer system. Issaquah Ordinance 2748 (Nov. 2, 

2015). The second, ordinance 2749, required a GFC of $1,256 to connect to the City’s 

stormwater system. Issaquah Ordinance 2749 (Nov. 2, 2015). These ordinances specified that 

the effective date for these GFCs was January 1, 2016. Issaquah Ordinance 2748, 2749. 

Neither party cites to these ordinances, and they are not contained within the record on appeal. 

However, these ordinances may be found at 

https://issaquah.civicweb.net/filepro/documents/3338 [https://perma.cc/M978-5ZWA (2748); 

https://perma.cc/TAL3-W4TL (2749)].
No. 82025-7-I/7

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Polygon then appealed the City’s imposition of the fees and charges 

associated with three building permits to the Issaquah hearing examiner. The 

hearing examiner dismissed Polygon’s appeal, reasoning that the Issaquah 

Municipal Code did not provide a procedural mechanism to appeal the fees and 

charges that were imposed on Polygon’s properties. 

In October and November 2019, the City issued several additional 

invoices for development fees and charges associated with building permits for 

properties located within the Westridge Single-Family North development. As 

with the previous invoices, these invoices assessed the GFCs according to the 

City’s ordinances rather than the development agreement.

On October 17, 2019, Polygon filed a LUPA petition in the King County 

Superior Court. Polygon asserted that the City lacked the authority to impose 

various fees and charges, including (1) the water, sewer, and stormwater GFCs, 

and (2) a water-meter installation fee and side-sewer fee. In response, the City 

conceded that it improperly assessed the water-meter installation fee and sidesewer fee. However, the City maintained that it properly assessed the water, 

sewer, and stormwater GFCs that were imposed on Polygon’s properties. 

On October 2, 2020, the superior court entered an order granting 

Polygon’s LUPA petition. The order required the City to “refund the water, and 

stormwater general facilities charges assessed against the Westridge North 

single family building permits” and “refund the sewer general facility charge 

except for $165.06.” Additionally, the order required the City to “assess fees for 

all future single-family home building permits in the Westridge North subdivision 
No. 82025-7-I/8

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based on the Development Agreement GFCs.” Finally, the order required the 

City to refund the water-meter installation fee and the side-sewer fee, as agreed 

to by the parties.

The City appeals. 

II

A party seeking relief from a land use decision must file a petition in the 

superior court pursuant to LUPA. RCW 36.70C.040(1). “A petition for review by 

the superior court constitutes appellate review on the administrative record 

before the local jurisdiction’s body or officer with the highest level of authority to 

make the final determination.”7 HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 

467, 61 P.3d 1141 (2003).

“‘When reviewing a superior court’s decision on a land use petition, the 

appellate court stands in the shoes of the superior court.’” HJS Dev., 148 Wn.2d 

at 468 (quoting Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 

Wn. App. 461, 470, 24 P.3d 1079 (2001)). Moreover, “[o]n appeal, the party who 

filed the LUPA petition bears the burden of establishing one of the errors set forth 

in RCW 36.70C.130(1), even if that party prevailed on its LUPA claim at the 

superior court.” Quality Rock Prods., Inc. v. Thurston County, 139 Wn. App. 125, 

134, 159 P.3d 1 (2007). 

Under RCW 36.70C.130(1), a challenged decision violates LUPA if:

 

7 Polygon contends that the City’s building official was the officer with the highest level of 

authority to make the final determination regarding the GFCs that were imposed on Polygon’s 

properties. The building official is “[t]he officer or other designated authority charged with the 

administration and enforcement of the Uniform Building Code and assigned provisions of this

[Land Use] Code.” IMC 18.02.040. However, under the Issaquah Municipal Code, it is the city 

engineer, not the building official, who is authorized to administer the sections of the code 

regarding water, sewer, and stormwater GFCs. IMC 13.04.010A; IMC 13.32.010.
No. 82025-7-I/9

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(a) The body or officer that made the land use decision 

engaged in unlawful procedure or failed to follow a prescribed 

process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of 

the law, after allowing for such deference as is due the construction 

of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that 

is substantial when viewed in light of the whole record before the 

court;

(d) The land use decision is a clearly erroneous application 

of the law to the facts;

(e) The land use decision is outside the authority or 

jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of 

the party seeking relief.

Polygon asserts that the City violated RCW 36.70C.130(1)(b) and (d) by 

imposing the higher GFCs on its properties.

8

 We review de novo whether a 

decision is based on an erroneous interpretation of the law under subsection (b). 

Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 

(2011). Additionally, “[a] finding is clearly erroneous under subsection (d) when, 

although there is evidence to support it, the reviewing court on the record is left 

with the definite and firm conviction that a mistake has been committed.” 

Phoenix Dev., 171 Wn.2d at 829.

III

Polygon contends that it had a vested right to have the GFCs imposed on 

its properties assessed according to the development agreement. This is so, 

Polygon avers, because it submitted its preliminary plat application before the 

development agreement was terminated. We disagree.

 

8 Polygon also states that RCW 36.70C.130(1)(c) is “applicable” to this case. Br. of 

Resp’t at 18. However, Polygon concedes that, because the City’s assessment of the disputed 

GFCs did not involve findings of fact, “there are no factual findings for this Court to review under 

the substantial evidence standard.” Br. of Resp’t at 19-20. 
No. 82025-7-I/10

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A

“In Washington, ‘vesting’ refers generally to the notion that a land use 

application, under the proper conditions, will be considered only under the land 

use statutes and ordinances in effect at the time of the application’s submission.” 

Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 275, 943 P.2d 1378 (1997). 

“At common law, this state’s doctrine of vested rights entitled developers to have 

a land development proposal processed under the regulations in effect at the 

time a complete building permit application was filed.” Noble Manor, 133 Wn.2d 

at 275. “In 1987, the Legislature (1) codified the traditional common law vested 

rights doctrine regarding vesting upon application of building permits [in RCW 

19.27.095], and (2) enlarged the vesting doctrine to also apply to subdivision and 

short subdivision applications [in RCW 58.17.033].” Noble Manor, 133 Wn.2d at 

275 (citing LAWS OF 1987, ch. 104; Friends of the Law v. King County, 123 Wn.2d 

518, 522, 869 P.2d 1056 (1994)).

“The purpose of the vested rights doctrine is to provide a measure of 

certainty to developers and to protect their expectations against fluctuating land 

use policy.” Noble Manor, 133 Wn.2d at 278. However, “[i]f a vested right is too 

easily granted, the public interest is subverted.” Noble Manor, 133 Wn.2d at 280. 

This is because “development interests protected by the vested rights doctrine 

come at a cost to the public interest because the practical effect of recognizing a 

vested right is to sanction the creation of a new nonconforming use.” Noble 

Manor, 133 Wn.2d at 280.
No. 82025-7-I/11

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B

A developer may also have a right to have certain standards imposed on 

its development pursuant to a development agreement. Under RCW 

36.70B.170(1), “[a] local government may enter into a development agreement 

with a person having ownership or control of real property within its jurisdiction.” 

Significantly, the development standards contained within a development 

agreement govern only during the term or build-out period specified in the 

agreement:

Unless amended or terminated, a development agreement is 

enforceable during its term by a party to the agreement. A 

development agreement and the development standards in the 

agreement govern during the term of the agreement, or for all or 

that part of the build-out period specified in the agreement, and 

may not be subject to an amendment to a zoning ordinance or 

development standard or regulation or a new zoning ordinance or 

development standard or regulation adopted after the effective date 

of the agreement. A permit or approval issued by the county or city 

after the execution of the development agreement must be 

consistent with the development agreement.

RCW 36.70B.180 (emphasis added).

The development agreement herein, which was entered into in June 1996, 

established a build-out period of 20 years:

A “Buildout Period” of twenty (20) years following first final plat 

approval is established for the development and construction of 

uses for the Grand Ridge Project. During the Buildout Period, the 

City shall not modify or impose new or additional Development 

Standards beyond those set forth in this Agreement.

This agreement specified that, upon expiration of the build-out period, 

either party could give notice to terminate the agreement. On November 1, 2016, 
No. 82025-7-I/12

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Port Blakely sent a letter to City officials in which it provided notice to terminate 

the development agreement. 

Upon receiving the notice of termination from Port Blakely, the City was 

required, under the development agreement, to adopt zoning and related 

development standards that would govern development in the area that was

subject to the agreement:

No sooner than six (6) months after the notice of termination, the 

City shall hold public hearings and shall adopt zoning and related 

development standards for the [urban growth area] portion of the 

Property, or portions thereof as determined appropriate by the City. 

Upon such adoption, this Agreement shall terminate and thereafter 

the [urban growth area] portion of the Property shall be governed 

by the adopted City zoning and related development regulations.

On March 19, 2018, the City passed ordinance 2830, which, among other 

things, terminated the development agreement and required properties that were 

subject to the agreement to be “governed by the Urban Village Replacement 

Regulations adopted by this ordinance and other applicable City zoning and 

related development regulations.” Issaquah Ordinance 2830 (Mar. 19, 2018). 

C

Polygon asserts that, because it submitted a preliminary plat application 

before the development agreement was terminated, it had a vested right to have

the GFCs provided in the agreement imposed on its development until approval 

of its preliminary plat expires.9 This is so, Polygon avers, because the 

preliminary plat application specified that the development was for single-family 

 

9 Under the Issaquah Municipal Code, “[a]pproval of any preliminary plat shall expire and 

the preliminary plat shall be considered withdrawn seven (7) years from the date of such 

preliminary plat approval.” IMC 18.13.170A.
No. 82025-7-I/13

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use. Therefore, according to Polygon, the GFCs agreed to under the 

development agreement—which applied to properties for single-family use—

governed the processing of its building permit applications, which were submitted

after the development agreement was terminated. Polygon’s argument fails for 

three reasons.

1

First, the vesting statute for preliminary plat applications, RCW 58.17.033, 

does not apply to fees. This statute provides:

A proposed division of land, as defined in RCW 58.17.020, shall be 

considered under the subdivision or short subdivision ordinance, 

and zoning or other land use control ordinances, in effect on the 

land at the time a fully completed application for preliminary plat 

approval of the subdivision, or short plat approval of the short 

subdivision, has been submitted to the appropriate county, city, or 

town official.

RCW 58.17.033(1).

In New Castle Investments v. City of LaCenter, 98 Wn. App. 224, 226, 989 

P.2d 569 (1999), the court held that RCW 58.17.033 “does not apply to 

transportation impact fees (TIFs) because they do not fall within the definition of 

‘land use control ordinances.’” The court therein reasoned that a transportation 

impact fee did not qualify as a “land use control ordinance” because it neither

limited the use of land nor resembled a zoning law:

The right that vests, according to Noble Manor, is “the right 

to have the uses disclosed in [the applicant’s] application 

considered by the county or local government under the laws in 

existence at the time of the application.” 133 Wn.2d at 283. 

According to legal commentators, “[t]he vested rights rule is 

generally limited to those laws which can loosely be considered 

‘zoning’ laws.” WASH. STATE BAR ASS’N, WASHINGTON REAL 

PROPERTY DESK BOOK, § 97.8(2)(d) (3rd ed. 1996). A TIF does not 
No. 82025-7-I/14

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limit the use of land, nor does it resemble a zoning law. Instead, a 

TIF merely affects the ultimate cost of the development. Thus, it 

is not the type of right that vests under the vested rights doctrine.

New Castle Invs., 98 Wn. App. at 232.

Similarly, in Lincoln Shiloh Associates, Ltd. v. Mukilteo Water District, 45 

Wn. App. 123, 128, 724 P.2d 1083, 742 P.2d 177 (1986), we explained that “it is 

inappropriate to apply the vesting doctrine to fees.” A property owner therein

“submitted to the [Mukilteo Water] District an application for permission to extend 

[a] water main.” Lincoln Shiloh Assocs., 45 Wn. App. at 126. After the district 

approved the application, it adopted a resolution that imposed a GFC for 

connecting to the district’s water facility and increased the property owner’s cost 

to connect from $6,400 to $95,680. Lincoln Shiloh Assocs., 45 Wn. App. at 126. 

After the connection charge was increased, the property owner applied to 

connect to the district’s water facility and paid the increased connection charge 

under protest. Lincoln Shiloh Assocs., 45 Wn. App. at 126. We rejected the 

property owner’s argument that it had a vested right to the connection charge in 

effect when its application to extend the water main was approved:

[The property owner] is not being forced to use its land or build 

differently from that which [the property owner] was able to do at 

the time its plans were approved by the District. Instead, the cost is 

increased. [The property owner] had no more than an expectation 

that the connecting charges would remain $6,400. There is no 

vested right here to the connection fee remaining $6,400.

Lincoln Shiloh Assocs., 45 Wn. App. at 128-29.

The water, sewer, and stormwater GFCs imposed on Polygon’s properties

did not limit Polygon’s use of the properties or the development thereon. In other 

words, the water, sewer, and stormwater GFCs were not “land use control 
No. 82025-7-I/15

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ordinances” under RCW 58.17.033(1). Accordingly, Polygon did not have a 

vested right to have the GFCs that were imposed on its properties assessed 

pursuant to the development agreement.

2

Polygon’s argument fails for another reason, as well. Despite its claim to 

the contrary, Polygon did not have a right to have its building permit applications 

vest to the land use laws in effect when it submitted its preliminary plat 

application. Our Supreme Court has clarified which rights vest upon the 

submission of a complete preliminary plat application:

Not all conceivable uses allowed by the laws in effect at the time of 

a short plat application are vested development rights of the 

applicant. However, when a developer makes an application for a 

specific use, then the applicant has a right to have that application

considered under the zoning and land use laws existing at the time 

the completed plat application is submitted. 

Noble Manor, 133 Wn.2d at 285 (emphasis added).

Stated differently, upon submission of a preliminary plat application, an 

applicant has a right to have the specific uses sought in the application 

considered under the land use laws in effect when the application was submitted. 

Additionally, an applicant has the right to have only the preliminary plat 

application—not a subsequently filed building permit application—considered 

under the land use laws in effect when the preliminary plat application was 

submitted. 

Polygon did not seek to connect to the City’s water, sewer, or stormwater 

systems in its preliminary plat application. Rather, Polygon sought to connect to 

these utility systems in its building permit applications, which were filed after the 
No. 82025-7-I/16

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development agreement was terminated. It is of no significance that Polygon 

specified in its preliminary plat application that it sought to develop single-family 

residences—Polygon had a vested right to have only its preliminary plat 

application considered under the land use laws in effect when that application 

was submitted. 

Polygon cites to Association of Rural Residents v. Kitsap County, 141 

Wn.2d 185, 4 P.3d 115 (2000), and Schneider Homes, Inc. v. City of Kent, 87 

Wn. App. 774, 942 P.2d 1096, 971 P.2d 56 (1997), in support of its argument 

that, because its preliminary plat application specified that the development was 

for single-family use, its subsequently-filed building permit applications vested to 

the development standards contained within the development agreement. 

However, these cases do not support Polygon’s argument. 

In Schneider Homes, we held that a developer had a right to have both its 

preliminary plat application and a “companion” planned unit development permit 

application vest to the ordinances in effect when those applications were 

submitted. 87 Wn. App. at 779. We reasoned that the preliminary plat 

application was “inextricably linked” to the planned unit development application 

such that the preliminary plat application could not “go forward without” the 

planned unit development application. Schneider Homes, 87 Wn. App. at 778. 

In Association of Rural Residents, our Supreme Court relied on our reasoning in 

Schneider Homes and held that, “when a preliminary plat application is coupled 

with a [planned unit development] proposal, the [planned unit development] 
No. 82025-7-I/17

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ordinance is one of the laws in effect at the time of application to which the 

vested rights doctrine applies.” 141 Wn.2d at 195. 

Polygon’s building permit applications were not “inextricably linked” to its 

preliminary plat application such that the preliminary plat application could not be 

approved unless the building permit application was also approved. Indeed, the 

Issaquah Municipal Code generally requires preliminary plat applications to be 

approved before a party may submit a building permit application: “All 

development proposals . . . are subject to Project Permit[10] approval prior to 

Building Permit application unless otherwise allowed by the Building Official.” 

IMC 18.04.090. Thus, Polygon did not have a right to have its building permit 

applications vest to the land use laws in effect when it submitted its preliminary 

plat application.11

 

10 The term “Project Permit” is defined to include “subdivisions.” IMC 18.02.180.

11 Polygon also asserts that various assurances made by the City demonstrate that it had 

a vested right to the GFCs agreed to under the development agreement. However, mere 

assurances from city officials do not grant a party vested rights. Deer Creek Developers, LLC v. 

Spokane County, 157 Wn. App. 1, 12-13, 236 P.3d 906 (2010). In any event, none of the 

documents cited by Polygon indicate that the City assured Polygon that it had a vested right to 

the GFCs agreed to under the development agreement. 

First, Polygon cites to an e-mail message from a City official explaining that the GFCs 

imposed on single-family residences seeking to connect to the City’s (1) water and stormwater 

systems would amount to $0, and (2) sewer system would amount to $165.06. However, this email message was sent to Polygon on March 10, 2017—approximately one year before the city 

council terminated the development agreement. Additionally, this e-mail message was a 

response to an e-mail message sent by an employee of Polygon that requested the City to 

“confirm what we will pay . . . under the Developer Agreement.” Plainly, in this message, the City 

did not assure Polygon that these GFCs would apply after the development agreement was 

terminated.

Second, Polygon cites to a March 2017 letter from the City’s director of the Department of 

Development Services which merely explained that, when a complete “application” is submitted, 

that application vests to the zoning and development regulations in effect at that time:

Requirements for a complete application necessary to vest are set forth by 

municipal code. IMC 18.01.050(C)(1) sets forth the requirements for a complete 

application. When an application is submitted meeting those requirements, the 

application is vested and would be unaffected by any future changes in zoning or 

development regulations so long at the application remains active 

(IMC.18.04.220.D.2). This would, [sic] include any changes as a result of 

termination of the Issaquah Highlands Development Agreement.
No. 82025-7-I/18

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3

Finally, Polygon’s argument fails for a third reason. Polygon did not have 

a vested right to have the GFCs assessed at any particular amount until it both 

applied to connect to the City’s utility systems and paid the applicable fees. In 

Irvin Water Dist. No. 6 v. Jackson Partnership, 109 Wn. App. 113, 122, 34 P.3d 

840 (2001), the court concluded that the developers therein “did not have a 

vested right in any particular fee schedule, at least before application and 

payment of the applicable connection fees.” This was so because application to 

connect to the district’s utility system and payment of the applicable connection 

fees were both “required by District regulations and bylaws to secure service.” 

Irvin Water Dist., 109 Wn. App. at 118. Likewise, the Issaquah Municipal Code 

requires property owners to both apply to connect to the City’s utility systems and 

pay the applicable connection charges in order to secure service.12 And here, 

 

(Emphasis added.)

This letter did not provide that Polygon had a vested right to have the GFCs agreed to 

under the development agreement imposed on its properties.

Finally, Polygon cites to a November 2017 memorandum which regarded a proposal to 

extend vesting rights to administrative site development permits and site development permits 

following the termination of the development agreement. However, the memorandum did not 

state that building permit applications submitted after the development agreement was terminated 

would be processed according to the development agreement.

12 With regard to applications for water service, the Issaquah Municipal Code provides: 

“The owner of any property who desires to connect to the City Water System shall make 

application for the connection on the standard form for water service and at that time, he shall pay 

all connection charges, fees, or assessments required by the Water System Code.” IMC

13.04.020. Additionally, the code provides that “there is imposed upon the owners of property 

seeking to provide water service to their property by connecting to the City’s water system a 

general facility charge.” IMC 13.24.090. Next, with regard to the City’s sewer system, the code 

provides: “The general facility charge shall be paid and collected at the time of permit issuance 

for a sewer connection and prior to actual connection.” IMC 13.70.020B. Finally, with regard to

City’s stormwater system, the code provides: “[T]here is imposed upon the owner of property 

seeking to connect to the City’s stormwater system a general facility charge,” and that “[t]he 

general facility charge shall be paid and collected at the time of permit issuance for development 

and prior to actual development.” IMC 13.30.055A-B.
No. 82025-7-I/19

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Polygon applied to connect to the City’s utility systems and paid the connection 

charges after the development agreement was terminated. 

Accordingly, Polygon did not have a vested right to have the GFCs

imposed on its properties assessed pursuant to the development agreement.

IV

Polygon next contends that the City’s imposition of the higher water, 

sewer, and stormwater GFCs violated RCW 35.92.025.13 Specifically, Polygon 

asserts that these charges were not reasonable because the impacts of the 

Westridge Single-Family North development on the City’s utility systems were 

already “fully mitigated” under the development agreement. Because RCW 

35.92.025 does not permit the sort of individualized challenge advanced by 

Polygon, this claim also fails.

RCW 35.92.025 authorizes cities to assess charges to property owners 

seeking to connect to city utility systems. This statute provides, in pertinent part:

Cities and towns are authorized to charge property owners seeking 

to connect to the water or sewerage[14] system of the city or town as 

a condition to granting the right to so connect, in addition to the cost 

of such connection, such reasonable connection charge as the 

legislative body of the city or town shall determine proper in order 

 

13 Under the Issaquah Municipal Code, the City of Issaquah elected to be classified as a 

noncharter code city: “The classification of ‘non-charter code city’ is adopted for the City of 

Issaquah in lieu of its present classification as a municipal corporation of the third class.” IMC 

1.08.010. Cities that elect to be classified as noncharter code cities are “governed according to 

the provisions of [Title 35A] under one of the optional forms of government provided for 

noncharter code cities.” RCW 35A.01.020. Under Title 35A, “[a] code city may protect and 

operate utility services as authorized by chapters 35.88, 35.91, 35.92, and 35.94 RCW.” RCW 

35A.80.010. “The term ‘code city’ means any noncharter code city or charter code city.” RCW 

35A.01.035. Accordingly, as a noncharter code city, the City was authorized to impose GFCs

pursuant to RCW 35.92.025.

14 Under chapter 35.92 RCW, “[a] city or town may . . . operate systems, plants, sites, or 

other facilities of sewerage as defined in RCW 35.67.010.” RCW 35.92.020(1). The cited statute 

defines “system of sewerage” to include, among other things, “[c]ombined sanitary sewage 

disposal and storm or surface water sewers,” “[s]torm or surface water sewers,” and “[o]utfalls for 

storm drainage . . . and facilities for storm drainage.” RCW 35.67.010(2)-(4). 
No. 82025-7-I/20

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that such property owners shall bear their equitable share of the 

cost of such system. 

RCW 35.92.025.

The connection charges imposed on Polygon’s properties were 

established pursuant to three city ordinances. First, ordinance 2748, which was 

passed in November 2015, stated with regard to the city-wide sewer GFC that 

“the general facility charge currently of $2,039 has not been evaluated since 

2006 and it is determined the rate should decrease to $2,024.” Issaquah 

Ordinance 2748 (Nov. 2, 2015). Next, ordinance 2749, which was also passed in 

November 2015, stated with regard to the city-wide stormwater GFC that “the 

current general facilities charge of $789.00 per equivalent service units (ESU) is 

increased to $1,256 to reflect the cost of service.” Issaquah Ordinance 2749 

(Nov. 2, 2015). Lastly, in March 2018, the city council passed ordinance 2830, 

which terminated the development agreement and required single-family 

residences in the Issaquah Highlands to be charged the city-wide water GFC of 

$6,029. Issaquah Ordinance 2830 (Mar. 18, 2018).

“We presume the validity of ordinances, but this presumption no longer 

exists when evidence discloses that the basis on which the ordinance establishes 

the fee is not the proper basis the statute authorized.” Palermo at Lakeland, LLC

v. City of Bonney Lake, 147 Wn. App. 64, 76, 193 P.3d 168 (2008) (citing Boe v. 

City of Seattle, 66 Wn.2d 152, 155, 401 P.2d 648 (1965)); accord Prisk v. City of 

Poulsbo, 46 Wn. App. 793, 804, 732 P.2d 1013 (1987) (“Connection fees 

established by ordinance are presumptively valid, and one who challenges them 

has the burden of proving that the charges are unreasonable.” (citing Boe, 66 
No. 82025-7-I/21

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Wn.2d at 155)). Additionally, “[w]e will sustain a legislative determination if we 

can conceive of any state of facts that justify the determination.” Palermo, 147 

Wn. App. at 76.

Under RCW 35.92.025, “the only requirements placed on [cities] are that 

the charge is reasonable and that [cities] base[] these charges on the equitable 

cost of their [utility] system.” Palermo, 147 Wn. App. at 79. Additionally, “‘the 

fundamental basis on which the fee is to be calculated . . . is not that of the 

benefit received but merely an equitable sharing of the cost of the system.’” Boe, 

66 Wn.2d at 156. 

Polygon contends that the water, sewer, and stormwater GFCs imposed 

on its properties located within the Westridge Single-Family North development 

were not reasonable under RCW 35.92.025. This is so, Polygon argues, 

because the impacts of the Westridge Single-Family North development were 

“fully mitigated” under the development agreement.15 However, Polygon does 

 

15 In support of its argument that the impacts of the Westridge Single-Family North 

development on the City’s utility systems were “fully mitigated,” Polygon cites to various 

documents. However, none of these documents demonstrate that Polygon had paid an equitable 

share in the cost of the city-wide utility systems. Rather, these documents provide merely that (1) 

the infrastructure in the Issaquah Highlands was adequate to support the needs of the 

development, and (2) the City utility systems had the capacity to support the needs of the 

development. 

First, Polygon quotes the development agreement, which provides that “[t]he 

Partnership’s compliance with the Development Standards and performance of its obligations 

contained in this Agreement . . . shall constitute the adequacy and sufficiency of public facilities 

and services for the Project.” This language indicates only that Port Blakely’s performance under 

the development agreement would allow the Issaquah Highlands to be adequately supported by 

public facilities. It does not indicate that Port Blakely had paid an equitable share of the cost of 

the city-wide utility systems.

Second, Polygon cites to two City memoranda, dated December 16, 2013, and February 

26, 2015, which provided that adequate capacity existed in the City’s water, sewer, and 

stormwater systems to support further development in the Issaquah Highlands. These 

memoranda did not provide that the Westridge Single-Family North development’s impacts on the 

water, sewer, and stormwater systems were “fully mitigated” such that Polygon had paid an 

equitable share of the cost of these city-wide utility systems.
No. 82025-7-I/22

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not attempt to demonstrate that the GFCs enacted pursuant to ordinances 2748, 

2749, and 2830 were established on an improper basis.

Yet to successfully challenge GFCs enacted pursuant to RCW 35.92.025, 

a party must adduce “‘evidence disclos[ing] that the basis on which the ordinance

establishes the fee is not the proper basis authorized by the statue.’” Boe, 66 

Wn.2d at 155 (emphasis added). The statute requires connection charges 

established by ordinance to be “reasonable” such that “property owners shall 

bear their equitable share of the cost of” the city’s utility system. RCW 35.92.025 

(emphasis added). This language contemplates the equitable share of property 

owners as a class, not what is equitable to charge an individual property owner 

based on that particular owner’s impact on the city utility system. 

This reading of the statute is supported by the fact that “adopting a fee 

ordinance for [connection charges] is a purely legislative function under RCW 

35.92.025.” Palermo, 147 Wn. App. at 84-85. Indeed, “area-wide actions, such 

as the adoption of comprehensive plans and zoning ordinances, involving the 

 

Third, Polygon cites to a letter from the chair of the City’s Urban Village Development 

Commission recommending approval of Polygon’s preliminary plat application. This letter 

provided that “[t]he development standards for storm water management and groundwater 

protection as set forth in Appendix D of the Development Agreement were used to evaluate the 

proposal. Appropriate measures for storm water management and groundwater will be provided.” 

This letter also stated that “[t]he development standards for utilities as set forth in City standards 

were used to evaluate the proposal. The proposal, with the recommended conditions of approval, 

complies with the applicable standards.” This letter does not provide that Polygon had already 

paid an equitable share of the cost of the city-wide utility systems.

Finally, Polygon cites to a letter from a City official commemorating Polygon’s purchase 

of “storm water capacity” from the City for a fee of $181,095. According to a staff report from the 

City’s Development Services Department, Polygon’s payment of this fee “allow[ed] [Polygon] to 

contribute additional stormwater to the City’s facilities.” In its response brief, Polygon states that, 

“[w]ith respect to stormwater, the City assessed the adequacy of the facilities built by Port Blakely 

specifically for the Westridge North subdivision and found those sufficient once Polygon paid a 

supplemental $181,095 fee.” Br. of Resp’t at 26-27. Thus, Polygon’s payment of this fee 

ensured that the facilities constructed by Port Blakely adequately served Polygon’s development. 

It did not ensure that Polygon paid an equitable share of the cost of the city-wide stormwater 

system.
No. 82025-7-I/23

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exercise of the legislative body’s policy-making role, are generally considered 

legislative.” Holbrook, Inc. v. Clark County, 112 Wn. App. 354, 365, 49 P.3d 142 

(2002). Notably, “such actions are not made quasijudicial simply because they 

affect specific individuals.” Holbrook, 112 Wn. App. at 365. “Although legislative 

decisions may appear adjudicatory when groups focus on how the particular 

decisions will affect their individual rights, all policy decisions begin with the 

consideration and balancing of individual rights.” Raynes v. City of Leavenworth, 

118 Wn.2d 237, 249, 821 P.2d 1204 (1992). 

Because the City’s adoption of the GFCs at issue was legislative, rather 

than adjudicatory, in nature, Polygon cannot challenge these GFCs under RCW 

35.92.025 solely as they apply to its particular properties. After all, “‘the 

fundamental basis on which the fee is to be calculated . . . is not that of the 

benefit received but merely an equitable sharing of the cost of the system.’” Boe, 

66 Wn.2d at 156. Furthermore, the remedy when a party has established that 

connection charges enacted pursuant to RCW 35.92.025 are not reasonable is to 

invalidate the ordinance that enacted the connection charges, not to simply

invalidate the charges as they apply to an individual property. See Boe, 66 

Wn.2d at 156 (“‘Under the evidence in this case, Ordinance No. 90233 Seattle 

Code No. 7.20.025 is unreasonable and therefore void.’”); Palermo, 147 Wn. 

App. at 68-69 (“We hold that the City arbitrarily adopted ordinance 1192 under 

which it assessed Palermo for connecting to the City’s water system; thus, the 

ordinance was void, leaving the prior ordinance in effect.”).
No. 82025-7-I/24

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Polygon cites to RCW 82.02.020 in support of its argument that cities are 

limited in “charg[ing] a project only to the extent reasonably related to the impacts 

a project will have on the larger system.”16 Under that statute, utility charges 

imposed by cities must generally be proportionate to a property’s share of the 

utility system’s cost:

Nothing in this section prohibits counties, cities, or towns 

from imposing or permits counties, cities, or towns to impose water, 

sewer, natural gas, drainage utility, and drainage system charges. 

However, no such charge shall exceed the proportionate share of 

such utility or system’s capital costs which the county, city, or town 

can demonstrate are attributable to the property being charged. 

Furthermore, these provisions may not be interpreted to expand or 

contract any existing authority of counties, cities, or towns to 

impose such charges.

RCW 82.02.020.

However, RCW 82.02.020 does not apply to connection charges 

established pursuant to RCW 35.92.025. We say this because RCW 35.92.025 

was enacted in 1965 and the language quoted above was amended to RCW 

82.02.020 in 1982. See LAWS OF 1965, ch. 7; LAWS OF 1982, 1st Ex. Sess., ch. 

49, § 5. In Prisk, for instance, two property owners asserted that connection 

charges enacted by the Poulsbo city council pursuant to RCW 35.92.025 violated 

the requirement set forth in RCW 82.02.020 that utility charges must be 

proportionate to a property’s share of the utility system’s cost. 46 Wn. App. at 

803. Division Two disagreed:

[W]e hold that RCW 82.02.020 does not limit the City’s authority to 

impose these connection charges. That statute would require that 

utility charges be proportionate to the share of the utility’s costs 

“attributable to the property being charged.” However, the statute 

has no application here as it specifically states that the existing 

 

16 Br. of Resp’t at 23.
No. 82025-7-I/25

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authority of cities to impose such charges remains unaffected by 

the statute. The City’s existing authority is derived from RCW 

35.92.025, which was enacted prior to RCW 82.02.020.

Prisk, 46 Wn. App. at 803.

Therefore, the City’s water, sewer, and stormwater GFCs were not 

required, under RCW 82.02.020, to be proportionate to the share of the utility 

systems’ costs attributable to Polygon’s properties.

Polygon asserts that the City bore the burden to prove that the GFCs 

imposed on its properties were reasonable. In support of this argument, Polygon 

cites to Palermo, 147 Wn. App. 64. However, that opinion provides that the 

burden of proof shifts to a city only when a property owner adduces evidence

demonstrating that the ordinance in dispute established a connection charge on 

an improper basis. See Palermo, 147 Wn. App. at 75, 84.

Indeed, a property owner in the Palermo dispute demonstrated that “the 

City adopted the ordinances based on outdated and incorrect numbers.” 147 

Wn. App. at 81. The city therein did not adduce any evidence based on data that 

was actually considered by the city when it adopted the charges at issue. 

Palermo, 147 Wn. App. at 83. Because the evidence that was adduced by the 

city was not based on data that was before the city when it adopted the 

ordinances at issue, the court held that the evidence that was presented by the 

city was “not relevant to [the] court’s consideration.” Palermo, 147 Wn. App. at 

84. In light of the evidence that was adduced at trial, the court clarified that “the 

City still bears the burden of satisfying RCW 35.92.025 by providing reasonable 
No. 82025-7-I/26

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[charges] based on equitable shares of the cost of the system.” Palermo, 147 

Wn. App. at 84. 

Polygon did not adduce any evidence challenging the method by which 

the City’s ordinances established the GFCs at issue. For example, Polygon did 

not demonstrate that, in adopting these GFCs, the City excluded from its 

calculations properties that fell within the scope of the development agreement

and that such exclusion unreasonably impacted the rate at which the GFCs were 

assessed against property owners city-wide. Because Polygon failed to satisfy 

its initial burden of proof, the burden never shifted to the City to prove that the 

GFCs were calculated on a proper basis. 

Accordingly, Polygon fails to meet its burden to prove that the GFCs 

imposed by the City violate RCW 35.92.025. Additionally, under LUPA, the City’s 

imposition of the disputed GFCs do not constitute an erroneous interpretation of 

law or a clearly erroneous application of law to the facts.

V

The superior court’s order is reversed insofar as it requires the City to (1) 

refund the water, sewer, and stormwater GFCs that were imposed on Polygon’s 

properties located within the Westridge Single-Family North development, and 

(2) assess GFCs for future building permits submitted by Polygon according to 

the development agreement. The order is affirmed insofar as it varies the 

amount that the City is authorized to charge Polygon for the side-sewer fees and 

water-meter installations fees that were imposed on its properties.
No. 82025-7-I/27

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Affirmed in part, reversed in part.

WE CONCUR: