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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
POTALAVILLAGE KIRKLAND, LLC, a Washington limited liabilitycompany, and LOBSANG DARGEY and TAMARA AGASSI DARGEY, a married couple, Respondents,

CITY OF KIRKLAND, a Washington municipal corporation, Appellant. No. 70542-3- DIVISION ONE

PUBLISHED FILED: August 25. 2014



### Cox, J. —Washington's vested rights doctrine originated at common law 

### but is now statutory.1 Under RCW 19.27.095(1), vesting occurs on the filing of a "validand fullycomplete building permit application." Insuch an event, the 

### "zoning or other land use control ordinances ineffecton the date of the application" shall control.2 Here, Lobsang Dargey, Tamara Agassi Dargey, and PotalaVillage Kirkland, LLC (collectively "PotalaVillage") soughtto develop certain real
1 Town ofWoodwavv. Snohomish County, 180 Wn.2d 165, 173, 322 P.3d 1219(2014). RCW 19.27.095(1).No. 70542-3-1/2 

### property inthe City of Kirkland. Potala Village filed a complete application for a shoreline substantial development permit on February 23, 2011. But it did notfile
an application for a building permit before the City imposed a moratorium on the issuance ofcertain permits. The filing ofthe application for the shoreline substantial development permit is not a building permit application. Thus, it did not vest on February 23, 2011 rights to then-existing zoning or other land use control ordinances. We reverse the grant ofsummaryjudgmentto PotalaVillage and remand with directions to grant summaryjudgmentto the City. The material facts are undisputed, as all parties expressly acknowledge in 

### their appellate briefing.3 Potala Village soughtto construct a large mixed-use project inthe 

### Neighborhood Business ("BN") Zone ofthe City. The project is to include residential, retail, and commercial space. 

### Potala Village had two meetings with the City in 2009 and 2010. These meetings resulted in a determination that multiple permits for the projectwould 

### be required. Because a small portion ofthe project is to be located within an
area subjectto state and local shoreline laws, Potala Village was required to file
an application with the City for a shoreline substantial development permit. 

### On February 23, 2011, Potala Village filed an application for a shoreline substantial development permitfor the portion ofthe proposed development

3Appellant City of Kirkland's Opening Briefat 5-6; Respondents' Opening Briefat 3.No. 70542-3-1/3 

### withinthe shoreline area.4 It did not file an application for a building permitfor the entire proposed development, although no law prohibited it from doing so. On May 11, 2011, the City issued a letter ofcompleteness for the shoreline substantial development permit application. An organized group of neighbors publicly voiced objections to the proposed development. The group particularly objected to the proposed residential density for Potala Village. Itappears that surrounding residential properties are zoned for a maximum density of 12 units per acre. On November 15, 2011, the City enacted an ordinance imposing an emergency development moratorium on the BNzone. The moratorium temporarily precluded the issuance ofpermits inthe BN zone. As ofthe date of the moratorium, Potala Village still had notfiled an application for a building permit.

### On May 1, 2012, the City Council extended the moratorium for six months. 

### Shortly thereafter, PotalaVillagecommenced this action againstthe City, alleging multiple causes ofaction and seeking declaratory and otherrelief. Potala Village attempted to file a building permit application on October 16, 2012. The City declined to accept itbecause ofthe existing moratorium. 

### Later that same day, the Cityextended the moratorium forthe final time. On December 11, 2012, the City Council amended the city zoning code in
a number ofways. For purposes of this action, the code changes to the BNzone placed a limit on residential density of 48 units per acre. As amended, the code Respondents' Opening Briefat 6.No. 70542-3-1/4 

### limitsPotala Village's projectto 60 units instead ofthe 143 units that itsoughtto

construct. 

### The City approved Potala Village's shoreline substantial development permit application on January 17, 2013. 

### All parties to this litigation moved for summaryjudgment. The City argued 

### that Potala Village's failure to file a completed building permit application before the building permit moratorium ofNovember 15, 2011 precluded vesting of rights to zoning or other land use control ordinances ineffectprior to that date. It 

### argued thatthe filing ofthe shoreline substantial development permit application
on February 23, 2011 did not vest such rights. 

### Potala Village disagreed. It took the position thatthe filing of its completed shoreline substantial development permit application on February 23, 2011 for a 

### portion ofthe projectwas sufficient to vest rights to the zoning or other land use control ordinances ineffect on that date forthe entire project. Itsought a writ of 

### mandamus directing the City to accept and process a building permit application for the project. 

### The trial court granted summaryjudgmentto PotalaVillage and issued a writ ofmandamus. The courtdenied the City's motion for reconsideration. The City appeals. VESTED RIGHTS DOCTRINE 

### The Cityargues that PotalaVillage did notfile an application for a building 

### permit and, thus, it had no right tovestto the zoning orother land use controlNo. 70542-3-1/5 

### ordinances that existed atthe time it filed its shoreline substantial development permit application on February 23, 2011. We agree. 

### This court reviews the grant ofsummaryjudgmentde novo.5 Summary judgment is appropriate only where there is no genuine issue ofmaterial fact and 

### the moving party is entitled to ajudgment as a matter oflaw.6 This case presents
a question of law, which this court reviews de novo.7 Background 

### The vested rights doctrine "originated at common law."8 "Washington's vested rights doctrine strongly protects the right to develop property."9 This doctrine uses a "date certain" standard.10 "Underthe date certain standard, developers are entitled 'to have a land development proposal processed under the regulations in effect at the time a complete building permit application is filed, 

### regardless ofsubsequent changes in zoning orother land use regulations.'"11 A date certain standard "ensures that 'new land-use ordinances do not 

### unduly oppress development rights, thereby denying a property owner's right to
5Snohomish County v. Ruqg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002).

### 6CR 56(c). 7 Town ofWoodwav, 180 Wn.2d at 172. 

### 8jd, at 173. 9Id at 172. 

### 10 id 11 Id at 172-73 (quoting Abbey Road Group. LLC v. City ofBonnev Lake, 167 Wn.2d 242, 250, 218 P.3d 180 (2009)).No. 70542-3-1/6 

### due process under the law.'"12 This is the minority approach within the United States, and "'itoffers [greater] protection of[developers'] rights than the rule generally applied inotherjurisdictions.'"13 Inthe 1950s, the supreme courtfirst adopted the common law vested 

### rights doctrine. InOgden v. City ofBellevue14 and Hull v. Hunt.15 the supreme court explained thatthe right to construct inaccordance withthe "zoning ordinances and building codes inforce at the time ofapplication forthe permit" vests when a party applies for a "buildingpermit"TM 

### Incases thatfollowed, Washington courts applied the vested rights 

### doctrine to permit applications otherthan building permit applications.17 They included conditional use permit applications,18 grading permit applications,19



### 12Abbey Road. 167 Wn.2d at 251 (quoting Valley ViewIndus. Park v. City of Redmond. 107 Wn.2d 621, 637, 733 P.2d 182 (1987)). 

### 13 Town of Woodway, 180Wn.2d at 173 (alterations inoriginal) (quoting Abbey Road. 167 Wn.2d at 250). 

### 1445 Wn.2d 492, 496, 275 P.2d 899 (1954). 

### 15 53 Wn.2d 125, 130, 331 P.2d 856 (1958). 16 Id.; see also Ogden. 45 Wn.2d at 496 ("The rightaccrues at the time an application for a buildingpermitis made." (emphasis added)). 

### 17 See Roger D. Wynne, Washington's Vested Rights Doctrine: How We have Muddled a Simple Concept and How We Can Reclaim It. 24 Seattle U. L. Rev. 851,866-67(2001). 18 Beach v. Bd. ofAdjustment of Snohomish County. 73 Wn.2d 343, 347, 438 P.2d 617 (1968). 19 Juanita BayValley Cmtv. Ass'n v. City of Kirkland. 9 Wn. App. 59, 84, 510P.2d 1140(1973).No. 70542-3-1/7 

### shoreline substantial development permit applications,20 and septic permit applications.21 In 1987, the legislature enacted legislation regarding the vested rights doctrine. The session laws added two new sections to chapter 19.27 RCW and chapter 58.17 RCW, which were later codified at RCW 19.27.095(1) and RCW 

### 58.17.033(1) respectively.22 The session laws provide inrelevant part as follows: NEW SECTION. Sec. 1. A new section is added to chapter 19.27 RCW to read as follows: 

### (1) A valid and fullycomplete buildingpermitapplication for a structure, that is permitted underthe zoning or other land use control ordinances ineffect on the date ofthe application shall be considered underthe building permit ordinance in effect atthe time of application, and the zoning or other land use control ordinances in effect on the date of application.

NEW SECTION. Sec. 2. A new section is added to chapter 58.17 RCW to read as follows: 

### (1) Aproposed division of land, as defined in RCW 58.17.020, shall be considered underthe subdivision or short subdivision ordinance, and zoning or other land use control ordinances, ineffect on the land at the time a fullycompleted 

### applicationforpreliminaryplatapprovalofthe subdivision, or shortplatapprovalofthe shortsubdivision, has been submitted 

### to the appropriate county,city, or townofficial.[23]

20 Talbot v. Gray. 11 Wn. App. 807, 811, 525 P.2d 801 (1974). 21 Ford v. Bellingham-Whatcom County Dist. Bd. ofHealth. 16 Wn. App. 

### 709, 715, 558 P.2d 821 (1977); Thurston County Rental Owners Ass'n v. Thurston County. 85 Wn. App. 171, 182, 931 P.2d 208 (1997). 22 Laws of 1987, ch. 104, §§ 1-2. 

### 23 Id. (emphasis added).No. 70542-3-1/8 

### As shown by the emphasized language, these statutory sections only referto 

### building permit applications and subdivision applications.24 In 1994, the supreme court considered whether the vested rights doctrine 

### applied to master use permit (MUP) applications.25 InErickson &Associates. Inc. v. McLerran. a developerfiled a completed MUP application.26 Afterthe application filing, a city ordinance became effective, which adversely impacted 

### the proposed project that was the subjectof the application.27 The developer argued thatthe vested rights doctrine applied to the MUP application.28 The supreme court disagreed, holding that the doctrine did not apply to the filing of 

### MUPapplications.29 In its analysis, the court referred to the 1987 legislation that codified the


### common lawdoctrine, at leastto the extent specified inthe statutes.30 The developer argued thatthe doctrine was not limited to building permit 

### applications.31 In support, the developer cited a 1974 case from this court, Talbot

24 Id. 25 Erickson &Assocs.. Inc. v. McLerran. 123 Wn.2d 864, 867, 872 P.2d 1090(1994). 

### 26 123 Wn.2d 864, 866, 872 P.2d 1090 (1994). 27 ]d at 866-67. 28jd at 867. 29 Id at 877. 30 Id at 868. 31 Id at 871-72.

8No. 70542-3-1/9 

### v. Gray, which applied the doctrine to a shoreline permit.32 The developeralso cited othercase authority applying the doctrine to othertypes ofpermit 

### applications.33 Notably, all of the cited cases preceded the 1987 legislation codifying the doctrine to the extent specified inthe statutes.34 The supreme court agreed with the developer in Erickson that prior cases 

### applied the doctrine inothercontexts besides building permits.35 But it concluded thatthe vested rights doctrine was not a "blanket rule" requiring municipalities to process all permit applications according to the rules in place at 

### the outset.36 Rather, this doctrine was designed to place limits on the municipalities' discretion to allow developers to plan with "'reasonable 

### certainty.'"37 Years later, in Abbey Road Group. LLC v. City of Bonnev Lake, the supreme courtfurther developed what itsaid in Erickson concerning the effect of 

### the 1987 legislation.38 There, the issue was whetherthe filing of a site plan

32 Id at 871 (citing Talbot v. Gray. 11 Wn. App. 807, 811, 525 P.2d 801 (1974), review denied. 85 Wn.2d 1001 (1975)). 

### 33 ]d at 871-72 (citingJuanita Bay Valley Cmtv. Ass'n. 9 Wn. App. at 83- 84; Ford. 16 Wn. App. at 715; Norco Constr., Inc. v. King County. 97 Wn.2d 680, 649 P.2d 103 (1982)). 34See id. 35 Id at 872-73. 

### 36 id at 873. 

### 37 id, (quoting West MainAssocs. v. City ofBellevue. 106 Wn.2d 47, 51, 720 P.2d 782 (1986)). 

### 38 167 Wn.2d 242, 251, 218 P.3d 180 (2009) (citing RCW 19.27.095(1)). 9No. 70542-3-1/10 

### without also filing a building permit application vested Abbey Road's 

### development rights.39 The supreme court affirmed the court ofappeals' decision, 

### which held that filing a building permit application was necessary.40 In reaching that result, the supreme court stated that Erickson largely controlled its decision.41 The court confirmed that in the absence ofa local vesting ordinance specifying an earliervesting date, "RCW 19.27.095(1) is the 

### applicable vesting rule."42 Noting Abbey Road's failure to address this statute, the court rejected the requestto overrule its decision inErickson.43 And the court expressly rejected the invitation to extend the vested rights doctrine to other situations, stating in a footnote: Abbey Road also argues thatwe should expand the vested rights doctrine based on case law, contending thatthere is no "rational 

### reason" for refusing to expand the doctrine to site plan applications when the courts have done so in other contexts. . . . See Juanita Bay Valley Cmtv. Ass'n v. City of Kirkland. 9 Wn. App. 59, 510 P.2d 1140 (1973) (grading permit applications); Talbot v. Gray. 11 Wn. 

### App. 807, 525 P.2d 801 (1974) (shoreline permit applications); Ford v. Bellingham-Whatcom County Dist. Bd. of Health. 16Wn. App. 

### 709, 558 P.2d 821 (1977) (septic tank permit application); Beach v. Bd. ofAdjustment. 73 Wn.2d 343, 438 P.2d 617 (1968) (conditional 

### use permit applications); Weyerhaeuserv. Pierce County, 95 Wn. App. 883, 976 P.2d 1279 (1999) (conditional use permit 

### applications). Again, in Erickson, we consideredandrejected

39 id at 249. 40 id at 248, 261. 41 id at 252. 42 Jd 43 Id. 252-53.

10No. 70542-3-1/11 

### similararguments, andwe are notpersuadedto overrule our 

### analysis orholdingin Erickson.[44] The courtthen stated that itcould not ignore the legislative directive set 

### forth in RCW 19.27.095(1).45 And italso said thatthis 1987 statute and the 

### analysis in Erickson superseded a priorcase to the contrary.46 Importantly, the Abbey Road court stated thatthe legislature, not the judiciary, is best suited to reform the vested rights doctrine: Abbey Road urges this courtto establish a uniform vesting point "forevery land use permit application regardless ofthe permit's name or what it does or does not do." We find thatsuch a rule wouldeviscerate the balance struck in the vestingstatute. While some ofAbbey Road's arguments could support a change in the law, institutingsuch broadreforms in landuse law is ajob 

### bettersuitedto the legislature.^ Most recently, in Town ofWoodwav v. Snohomish County, the supreme court reiterated that "[w]hile itoriginated at common law, the vestedrights 

### doctrine is nowstatutory."48 This statement is fully consistentwiththe case law and statutes that we have discussed intracing the development ofthe vested rights doctrine.


### 44 id at 253 n.8 (emphasis added). 45 id at 253. 

### 46 id at 254 (citing VictoriaTower P'ship v. City ofSeattle. 49 Wn. App. 755, 745P.2d 1328(1987)). 

### 47 ]d at 260-61 (emphasis added) (citations omitted) (citing Wynne, supra, at 916-17). 

### 48180 Wn.2d 165, 173, 322 P.3d 1219 (2014) (emphasis added) (citing Erickson, 123 Wn.2d at 867-68; RCW 19.27.095(1) (building permits); RCW 58.17.033(1) (subdivision applications); RCW 36.70B.180 (development agreements)).

11No. 70542-3-1/12 Application Here, the issue is whether, inthe absence of filing a building permit 

### application, the vested rights doctrine applies to vest rights to zoning or land use control ordinances for the projectthat existed atthe time Potala Village filed its shoreline substantial development permit application on February 23, 2011. The validity ofthe moratorium on the issuance ofpermits thatthe City imposed before Potala Village attempted to file its building permit application is not at issue inthis appeal. To resolve the issue on appeal, we are guided by the supreme court's decisions in Erickson and Abbey Road and its most recent statement in Town of Woodway: "While itoriginated at common law, the vested rights doctrine is now 

### statutory."49 With these points in mind, we hold thatthe filing ofthe application forthe shoreline substantial development permit, withoutfiling an application for a building permit, did not vest rights to zoning or other land use control ordinances. We turn first to RCW 19.27.095(1), which states: 

### A valid and fullycomplete buildingpermitapplication for a structure, that is permitted underthe zoning or other land use control ordinances in effect on the date ofthe application shall be considered underthe building permit ordinance ineffect at the time 

### ofapplication, and the zoning or other land use control ordinances 

### in effect on the date ofapplication.1501

49 id 

### 50 (Emphasis added.)

12No. 70542-3-1/13 As previously noted, the plain words ofthis statute include "building permits" but do not include shoreline substantial development permits. We must presume that the legislature was aware ofthe then-existing common law regarding the 

### vested rights doctrine when itpassed this legislation.51 Yet the legislature only codified the vested rights doctrine to the extent of building permits inthis section ofthe session laws.52 Thus, we further conclude from the exclusion of shoreline substantial development permits thatthe legislature intended that the vested 

### rights doctrine would notextend to such permits.53 The Final Bill Report for enactment ofthis legislation in 1987 reinforces

our conclusion. It states as follows: FINAL BILL REPORT SSB5519

SYNOPSIS AS ENACTED BACKGROUND: 

### Washington State has adhered to the currentvested rights doctrine since the Supreme Court case on State ex rel. Ogden v. Bellevue, 45 Wn.2d 492 (1954). The doctrine provides that a party filing a
51 Woodson v. State. 95 Wn.2d 257, 262, 623 P.2d 683 (1980) ("[T]he 

### legislature is presumed to know the existing state ofthe case law inthose areas inwhich it is legislating."). 

### 52 Laws of 1987, ch. 104, §1. 53 Ellensburg Cement Prods.. Inc. v. Kittitas County. 179 Wn.2d 737, 750, 

### 317 P.3d 1037 (2014) ("Where a statute specifically designates the things or 

### classes ofthings upon which itoperates, an inference arises in lawthat all things or classes ofthings omitted from itwere intentionally omitted by the legislature underthe maxim expressio unius estexclusion alterius—specific inclusions exclude implication." (internal quotations marks omitted)).

13No. 70542-3-1/14 

### timely and sufficiently complete building permit application obtains a vested right to have that application processed according to zoning, land use and building ordinances in effect atthe time ofthe application. The doctrine is applicable ifthe permit application is sufficiently complete, complies with existing zoning ordinances and building codes, and is filed during the period the zoning ordinances underwhich the developer seeks to develop are in effect. If a developer complies with these requirements, a project cannot be obstructed by enacting new zoning ordinances or building codes. West Main Associates v. Bellevue, 106Wn.2d 47 (1986).

SUMMARY: The vested rights doctrine established by case law is made statutory, with the additional requirement that a permit application be fully completed for the doctrine to apply. The vesting of rights doctrine is extended to applications for preliminary or short plat approval. The requirements for a fully completed building permit application or preliminary on short plat application shall be 

### defined by localordinance.1541 The background statement shows that the legislature was aware ofthe


### common law origins of this doctrine, citing Ogden. Notably, thatwas a case that 

### applied the doctrine to a building permit.55 Thus, the legislature choseto codify the vested rights doctrine, butonly to the extent of building permits, as the plain language ofthe statute specifies. 

### We also note thatthe legislature also chose to extend the vested rights doctrine to completed applications for preliminary plat approval ofsubdivisions or 

### short plat approval for short subdivisions at the same time it codified the doctrine to the extent of building permits. We conclude from this thatthe legislature considered a wider scope ofpermittypes to which the doctrine might apply

54 Final B. Rep. on S.S.B. 5519, 50th Leg., Reg. Sess. (Wash. 1987). 55 Ogden. 45 Wn.2d at493, 496.

14No. 70542-3-1/15 

### beyond building permits. Yet, the legislature chose not to include applications for shoreline substantial development permits within its 1987 codification ofthe vested rights doctrine. Because these statutes are essentially the same now as when first enacted, we conclude the extent ofcodification ofthe vested rights doctrine remains the same. Potala Village ignores RCW 19.27.095(1). Italso fails to persuasively address Town ofWoodway. Abbey Road, and Erickson, all ofwhich trace the supreme court's evolving views on whether and to what extentthe vested rights doctrine applies. 

### The trial court granted Potala Village's motion for summaryjudgment and issued a writ of mandamus directing the City to accept and process Potala 

### Village's building permitapplication.56 In doing so, the trial court cited in itsorder this court's 2013 decision that preceded the supreme court's decision in Town of 

### Woodway.57 We view this citation as likely a reference to language in this court's opinion that cited Talbot inthe discussion ofthe development ofthe vested rights doctrine overtime.58 Accordingly, we turn to this court's 1974 decision inTalbot to consider its effect on the question before us.



### 56 Clerk's Papers at 992-95. 

### 57jd at 995 (providingthe citation, "Town ofWoodway v. Snohomish County. 172 Wn. App. 643 (2013)"). 58 Town ofWoodway v. Snohomish County. 172 Wn. App. 643, 652, 291 

### P.3d 278 (2013), affd, 180Wn.2d 165, 322 P.3d 1219 (2014) (citing Talbot, 11 Wn. App. at 811).

15No. 70542-3-1/16 

### There, the City ofSeattle granted the Grays "a permit" authorizing them to 

### construct a dock.59 The Grays' neighbors, the Talbots and the Hartmans, brought an action to permanently enjoin the City from authorizing the 

### construction of a dock in the shoreline area along Lake Washington.60 Primarily at issue was whetherthe City had correctly applied the provisions of its zoning ordinance in issuing the permitfor construction ofthe 

### dock.61 This court construed the Cityzoning ordinance and rejected the 

### contention that the dock was not permitted as an "accessory use."62 The court then considered the contention that the owners ofthe property where the dock was to be built had not given proper notice underthe Shoreline 

### Management Act of 1971, as implemented bySeattle's ordinance.63 Specifically, the notice was given as required bythe state statute and before the effective 

### date ofthe Seattle implementing ordinance.64 Thus, the question was which 

### notice provision prevailed.65 This court answered the question as follows:



### 59 Talbot, 11 Wn. App. at 808-09. 

### 60 id 61 id 62 id at 811. 63 id 64 id 65 Id.

16No. 70542-3-1/17 

### [The permit applicant's] obligations and rights to develop vested on November 18, 1971, when they applied for a substantial 

### developmentpermit. The applicable rule adopted by the court in Hull v. Hunt. 53 Wn.2d 125, 331 P.2d 856 (1958) and recently approved in Eastlake Community Council v. Roanoke Assoc. Inc.. 82 Wn.2d 475, 481, 513 P.2d 36 (1973) is "[T]he right vests when the party . . . applies for his building permit, ifthat permit is thereafter issued. This rule, of course, assumes that the permit applied for and granted be consistentwith 

### the zoning ordinances and building codes inforce atthe time of 

### application forthe permit."1661 Potala Village argues that we should read Talbotto require applying the vested rights doctrine to this case, despite its failure to file an application for a building permit before passage ofthe moratorium. We decline to do so. First, inthat case, the property owners who soughtto construct a dock in the shoreline area applied for and received what can properly be described as a 

### building permit underthe City's zoning ordinances.67 Here, unlike that case, Potala Village failed to file any application for a building permit before the moratorium went into effect. Second, as the above excerptfrom Talbot shows, this court applied the


### common law rule regarding vested rights for buildingpermitapplications to the shoreline substantial development permit application underthe facts ofthat 

### case.68 But we do not read that 1974 decision to support Potala Village's 

### argument in this case—thatthe February 23, 2011 filing of an application for a

66 id (emphasis added) (quoting Eastlake Cmty. Council v. Roanoke Assocs.. Inc., 82 Wn.2d 475, 481, 513 P.2d 36 (1973)). 67 See id at 809. 

### 68 id at 811. 17No. 70542-3-1/18 

### shoreline substantial developmentpermitfor a portion of this project vests rights to the zoning or land use control ordinances forthe entire projectthatexisted as 

### of that date. We simplycannot agree with this argument because it directly contradicts the development ofthe law in Erickson. Abbey Road, and Town of Woodway.69 

### Potala Village makes a number ofarguments to support its assertion that 

### the vested rights doctrine applies to shoreline substantial development permits. None are persuasive. First, Potala Village cites a number ofcases to support its assertion. Two ofthese cases on which it relies were decided before the 1987 

### legislation thatwe discussed previously in this opinion.70 Thus, they are not persuasive. Potala Village also relies on the supreme court case, Buechel v. State 

### DepartmentofEcology, which was decided after 1987.71 Butthat case did not expressly considerthe issue present in this case because the landowner applied 

### for a building permit and a variance.72 Thus, that case is unlike this case where there is no building permit application.

69Town ofWoodway. 180 Wn.2d at 173. 

### 70 Respondents' Opening Brief at 27 (citing Norco Constr.. Inc.. 97 Wn.2d at 684; Carlson v. Town of Beaux Arts Vill.. 41 Wn. App. 402, 405, 704 P.2d 663 (1985)). 

### 71 id (citing Buechel v. State Dep't of Ecology. 125 Wn.2d 196, 884 P.2d 910(1994)). 72Buechel. 125 Wn.2d at 199 n.2.

18No. 70542-3-1/19 Two other cases that Potala Village cites are not supreme court cases and


### were decided before Abbey Road and Town ofWoodway.73 Thus, they are not persuasive. 

### Second, Potala Village contends thatAbbey Road and Erickson recognize 

### that statutes "supplement[] common lawvesting."74 It points to language inthese opinions that itclaims supports recognizing the common law vested rights 

### doctrine.75 Abbey Road points to Erickson, which stated, Erickson contends the Court ofAppeals decision inthis case conflicts with prior decisions applying the vested rights doctrine in other contexts. See, e.g.. Talbot v. Gray. 11 Wn. App. 807, 811, 525 P.2d 801 (1974) (shoreline permit) We agree with Erickson that our prior cases apply the vested rights doctrine in 

### othercontexts besides building permits.1761 But, as previously discussed, the supreme court also explained inthose


### cases thatthe legislature "codified thesejudicially recognized principles" in 1987.77 And most recently the supreme courtexpressly stated that "the vested 

### rights doctrine is nowstatutory,"78 Giventhe supreme court's statements in these cases, we reject Potala Village's arguments to the contrary.



### 73 Respondents' Opening Brief at 27 (citingWeyerhaeuserv. Pierce County. 95 Wn. App. 883, 893 n.12, 976 P.2d 1279 (1999); Westside Bus. Park. LLC v. Pierce County. 100Wn. App. 599, 603, 5 P.3d 713 (2000)). 

### 74 id at 35-36. 75 See Abbey Road. 167 Wn.2d at 253 n.8; Erickson. 123 Wn.2d at 871- 73. 76Erickson. 123 Wn.2d at 871-73. 77 Abbey Road. 167 Wn.2d at 251: see also Erickson, 123 Wn.2d at 868. 78 Town ofWoodway. 180 Wn.2d at 173 (emphasis added). 19No. 70542-3-1/20 

### Third, Potala Village argues that "Abbey Road and Erickson are substantively irrelevant because both cases addressed permits which were 

### exclusively created by cities, unlikethe state's shoreline permitrequirement."79 It also asserts thatthe shoreline permit review process is rigorous and much like 

### the building permit review process.80 Whetheror notthese assertions are true, the legislature has not extended vested rights principles to shoreline permits. PotalaVillage points to no authoritythat allows this courtto "ignore the legislative directive" thatvested rights principles applies inspecified circumstances, which 

### do not include shoreline permits.81 Thus, these arguments are not persuasive. Fourth, Potala Village cites Noble Manor Co. v. Pierce County to assert 

### thatthe "vested rights doctrine was originallyestablished through common law, but now is based on both common law and statutory authority, depending on the 

### type of permit applicationinvolved."82 There, the supreme court was concerned withthe filing of a short plat application.83 Itexplained the developmentofvested rights: At common law, this state's doctrine ofvested rights entitled 

### developers to have a land development proposal processed under the regulations in effect at the time a complete buildingpermit
79 Respondents' Opening Brief at 39-42. 80 id at 23-27, 39-42. 81 Abbey Road. 167 Wn.2d at 253; see also Town ofWoodway. 180 Wn.2dat173. 

### 82 Respondents' Opening Briefat 29 (citing Noble Manor Co. v. Pierce County. 133 Wn.2d 269, 943 P.2d 1378 (1997)). 83 Noble Manor. 133 Wn.2d at 272, 274.

20No. 70542-3-1/21 application was filed. Erickson &Assocs.. Inc. v. McLerran. 123 Wn.2d 864, 867-68, 872 P.2d 1090 (1994). The doctrine at 

### common law was extended to a number ofdifferenttypes of permits, but itwas neverextended to applications for preliminary plat approval or short plat approval. In 1987, the Legislature (1) codified the traditional commonlaw vested rights doctrine regarding vesting upon application of building permits, and (2) enlarged the vesting doctrine to also apply to subdivision and short subdivision applications. The two parts of that statute were codified at RCW 19.27.095 (in the state building code statute) and RCW 58.17.033 (in the plats and subdivision 

### statute).'841 Importantly, the supreme court did not considerwhether these statutes replaced 

### the common lawdoctrine for "differenttypes ofpermits."85 The court did not need to address this issue because the short plat permit application was 

### addressed bythe statutes.86 However, Noble Manor contains language that supports Potala Village's 

### argumentthatthe vested rights doctrine is now "based on both common law and 

### statutory authority, depending on the type of permit application involved."87 There, the Noble Manor court explained why Erickson did not extend the vested rights doctrine to master use permit applications: There was no case law orstatutoryauthorityto support 

### extending the vested rights doctrine to MUP applications. This is in contrastto the present case where the Legislature has extended 

### the doctrine to plat applications. The Erickson decision stands for the proposition thatthis Courtwill not extend the vested rights
84 ]d at 275 (some emphasis added) (some citations omitted). 85 id 

### 86 id 87 Respondents' Opening Briefat 29.

21No. 70542-3-1/22 doctrine byjudicial expansion. However, the Court ofAppeals decision in the present case is based not on common-law extension ofthe doctrine but on the legislative extension ofthe doctrine to 

### subdivision applications in RCW 58.17.033J881 While this language from Noble Manor supports Potala Village's argument, this case came before Abbey Road and Town ofWoodway. where the supreme court appears to have rejected the notion that the vested rights doctrine is based on both common law and statutes. 

### Similarly, PotalaVillage cites Weyerhaeuserv. Pierce County to assert thatthe "vested rights doctrine, and the protections itaffords, are the same protections irrespective ofwhetherthe doctrine applies as a result ofcommon 

### law or statute."89 But, asjustdiscussed, that Division Two case also came before Abbey Road and Town ofWoodway. Moreover, the Abbey Road court 

### expressly rejected a similar argumentregarding Weyerhaeuser.90 Thus, that

case is also not helpful. 

### Fifth, Potala Village contends thatthe City "improperlyfrustrated the 

### building permit application process byasserting it could require a new building permit application in the event it required any changes to the project after shoreline review."91 Potala Village asserts thatthis case is likeWest Main

88 Noble Manor. 133 Wn.2d at 279-80 (emphasis added). 

### 89 Respondents' Opening Brief at 29 (citingWeyerhaeuser. 95 Wn. App. 883). 90 See Abbey Road. 167 Wn.2d at 253 n.8. 

### 91 Respondents' Opening Briefat47-50.

22No. 70542-3-1/23 

### Associates v. City ofBellevue.92 But that case is distinguishable. There, the supreme court explained that a person's right to develop 

### property is "beyond question a valuable right inproperty."93 And this right is partly protected bythe vested rights doctrine.94 The court then considered whether a Bellevue ordinance met the due 

### process standards of the Fourteenth Amendment.95 That ordinance required a person to take a number of steps before filing a building permit application, which 

### would givethe person the ability to vest rights in the existing laws.96 The court concluded that the ordinance violated due process: The City denies a developerthe ability to vest rights until after a 

### series ofpermits is obtained. The ordinance thus is unduly oppressive upon individuals. As the trial court noted, the preapplication procedures established by the ordinance are vague and discretionary. The City delays the vesting point until well after a developerfirst applies for City approval of a project, and reserves for itselfthe almost unfettered ability to change its ordinances in response to a developer's proposal. The ordinance completely upsets our vesting doctrine's protection of a citizen's constitutional right to develop property free ofthe "fluctuating policy" of legislative bodiesJ971



### 92 id at 49 (citingWest MainAssocs.. 106 Wn.2d 47). 93West Main Assocs.. 106 Wn.2d at 50. 

### 94 id 95 id at 52. 96 id at49, 52-53. 97 id at 52-53.

23No. 70542-3-1/24 

### Here, PotalaVillage fails to cite any law that prevented itfrom filing a building permit application before the November 2011 moratorium. Thus, West 

### MainAssociates does not supportthe argument. The parties have expressly agreed thatthere are no genuine issues of 

### material fact. Thus, we do notconsiderarguments to the extentthey are based
on alleged factual disputes over communications between Potala Village and the Cityregarding the possible filing of a building permit prior to the time Potala Village actually applied for one. And, as we stated previously in this opinion, the validity ofthe moratorium is not at issue inthis appeal. Thus, there is no reason to apply the principles ofWest Main Associates to this case. To summarize, Potala Village's failure to file a completed application for a 

### building permit before enactment ofthe City's moratorium on certain permits bars the vesting ofrights to zoning or other land use control ordinances forthe entire project. The filing of Potala Village's completed application for a shoreline substantial development permitfor a portion ofthe project on February 23, 2011 did not vest rights to the zoning or other land use control ordinances for the entire projectthat existed on that date. The City states in its briefing that Talbot, the 1974 decision ofthis court, 

### may support permit vesting to the "shoreline regulations in effect" at the time of 

### its application for the shoreline substantial development permit.98 Becausethat question is not before us, we express no opinion on it.



### 98 Appellant City of Kirkland's Opening Brief at 39.

24No. 70542-3-1/25 

### Finally, we express no opinion on whether or to what extentthe vested 

### rights doctrine applies to permits otherthan shoreline substantial development permits. These questions are not before us. DECLARATORYJUDGMENT 

### The Cityargues, inthe alternative, thateven ifPotala Village's rights vested to zoning or other land use control ordinances for the project upon filing of the completed application for the shoreline substantial development permit 

### application, it is not entitled to relief underthe Uniform Declaratory Judgments 

### Act.99 Because the vested rights doctrine does not apply to shoreline substantial development permits permit, we need not address that argument. 

### We reverse the ordergranting Potala Village's motion for summary judgment. We remand with directions to the trial courtto grantthe City's crossmotion for summaryjudgment and dismissal. 

# ln<,3~

WE CONCUR: 

# T7-./U»nj 4 L^Jl^j

99 Id. at 41-43.

25