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SUSAN L. CARLSON 

SUPREME COURT CLERK 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

SNOHOMISH COUNTY, KING COUNTY, 

and BUILDING INDUSTRY 

ASSOCIATION OF CLARK COUNTY, 

Respondents, 

v. 

POLLUTION CONTROL HEARINGS 

BOARD, and WASHINGTON STATE 

DEPARTMENT OF ECOLOGY, and 

PUGET SOUND KEEPER ALLIANCE, 

WASHINGTON ENVIRONMENTAL 

COUNCIL, and ROSEMERE 

NEIGHBORHOOD ASSOCIATION, 

Petitioners. 

NO. 92805-3 

ENBANC 

Filed DEC 2 9 2016 

STEPHENS, I.-This case asks us to decide whether Washington's vested 

rights doctrine excuses compliance with the requirements of a municipal storm water 

permit. The Washington State Department of Ecology issued the third iteration of a 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

municipal storm water permit pursuant to the Federal Water Pollution Control Act 

(also known as the Clean Water Act), 25 U.S.C. §§ 1251-1388, and the National 

Pollutant Discharge Elimination System permitting program established by the act. 

The permit requires the owners or operators oflarge and medium municipal separate 

storm sewer systems to adopt and make effective a local storm water management 

program by June 30, 2015. The program may include local ordinances and "shall 

apply to all [development] applications submitted after July 1, 2015 and shall apply 

to [development] projects approved prior [to] July 1, 2015, which have not started 

construction by June 30, 2020." Certified Record (CR) at 26-27. Various permittees 

appealed this portion ofthe permit to the Pollution Control Hearings Board, claiming 

that it violated the vested rights doctrine because it compelled them to retroactively 

apply new storm water regulations to completed development applications. 

The Pollution Control Hearings Board held that the vested rights doctrine does 

not apply to storm water regulations permittees must implement as part of the 

National Pollutant Discharge Elimination System permitting program. The Court of 

Appeals reversed, finding that the vested rights doctrine excuses compliance with 

the storm water regulations because they are "land use control ordinances." 

Snohomish County v. Pollution Control Hr'gs Bd., 192 Wn. App. 316,323, 368 P.3d 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

194 (2016). We reverse the Court of Appeals and reinstate the Pollution Control 

Hearings Board's order. 

BACKGROUND FACTS AND PROCEDURAL HISTORY 

Federal Clean Water Act and State Water Pollution Control Act 

The Clean Water Act's (CWA) purpose is to "restore and maintain the chemical, 

physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To 

achieve that purpose, the CW A prohibits the discharge of pollutants from a point source 

absent a National Pollutant Discharge Elimination System (NPDES) permit. Id. §§ 

1311(a), 1342(a). Large and medium municipal separate storm sewer systems 

(MS4s) are '"point source[ s ]'" and therefore require an NPDES permit. I d. § 1362(14). 

Congress authorized the Environmental Protection Agency (EPA) to delegate the 

NPDES permitting program to the States. I d. § 1342(b ). The EPA delegated authority 

to the Washington State Department of Ecology to implement the NPDES permitting 

program in Washington. RCW 90.48.260(1). The legislature has recognized that 

Ecology has "[ c ]omplete authority to establish and administer" the program. Id. at 

(l)(a). 

The permits Ecology issues must comply with the federal CWA standard and the 

state water pollution control act (WPCA), chapter 90.48 RCW, standard. 33 U.S.C. 

§ 1342(p)(3)(B)(iii); CR at 3996-97. The federal standard provides that "[p]ermits for 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

discharges from municipal storm sewers . . . shall require controls to reduce the 

discharge of pollutants to the maximum extent practicable [(MEP)]." 33 U.S. C. § 

1342(p)(3)(B)(iii). The state standard provides that Ecology "shall ... incorporate 

permit conditions which require all known, available, and reasonable [treahnent] 

methods to control toxicants [(AKART)]." RCW 90.48.520. Ecology issued the first 

iteration of the municipal storm water permits in 1995, and the second iteration in 2007. 

CRat4057. 

The 2013 Municipal Storm Water Permits 

In order to give context to the primary issue in this case, it is helpful to briefly 

review the history of the third iteration of the permits (20 13 Permits), which include 

two phases ("2013 Phase I Permit" and "2013 Phase II Permit"). Id. at 10. The 

development of those permits was partly in response to a Pollution Control Hearings 

Board (Board) decision regarding the second iteration of the permits (2007 Permits). 

Several pennittees appealed the 2007 Permits to the Board. The Board found that the 

2007 Permits "failed to reduce pollutants to the federal [MEP] standard, and without 

greater reliance on [low impact development (LID)], did not represent [AKART]" 

under state law. I d. at 4058. The Board directed Ecology to modify the 2007 Permits 

accordingly. Ecology did not amend and reissue the 2007 Pennits, but instead 

conducted studies to develop appropriate LID techniques for the next iteration of the 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

permits, i.e., the 2013 Permits. The legislature subsequently amended RCW 90.48.260, 

acknowledging the requirements and timelines for Ecology's implementation of LID 

techniques in the next iteration of the permits. 

Ecology issued the third iteration of the permits on August 1, 2012. The 2013 

Phase I Permit became effective on August 1, 2013 and is set to expire July 31, 2018. 

!d. at 12. That permit covers discharges from MS4s, including the cities ofT acoma and 

Seattle, as well as Snohomish, Clark, King, and Pierce Counties (collectively 

permittees). "Special Condition S5" requires permittees to implement a storm water 

management program. Condition S5(C)(5) requires the storm water management 

program to include minimum performance measures to prevent and control storm water 

runoff from new development, redevelopment, and construction activities. The 

minimum performance measures include mandatory LID techniques for development 

projects that meet certain thresholds and "shall be included in ordinances or other 

enforceable documents adopted by the local government." !d. at 26. 

Condition S5(C)(5)(a)(iii) (Condition) provides that permittees must adopt and 

make effective a storm water management program that meets the 2013 Phase I 

Permit's requirements by June 30, 2015. !d. at 27. The second sentence of that 

Condition is at issue in this case and provides: "The local program ... shall apply to 

all applications submitted after July 1, 2015 and shall apply to projects approved 

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Snohomish County, et al. v. Pollution Control Hearings Ed., eta!., 92805-3 

prior [to] July 1, 2015, which have not started construction by June 30, 2020." I d. 

(emphasis added). 1 

Appeal of the 2013 Phase! Municipal Storm Water Permit 

Pierce Cmmty, Snohomish County, King County, and the Building Industry 

Association (BIA) of Clark County separately appealed portions of the 2013 Phase I 

Permit to the Board (Phase I appeal). The cities of Seattle and Tacoma and the 

Washington State Department of Transportation (WSDOT) intervened as appellants. 

Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere 

Neighborhood Association (collectively Alliance) intervened as respondents. The 

WSDOT withdrew from the Phase I appeal, and other parties separately appealed the 

2013 Phase II Permit (Phase II appeal), which is not at issue in this case. The Board 

consolidated the appeals in November 2012, and subsequently consolidated certain 

issues from the Phase I and Phase II appeals in January 2013. Various parties moved 

for summary judgment on the Phase I and Phase II appeals issues. The Board issued 

three orders on summary judgment, but only its October 2, 2013 order is at issue in this 

case. Clerk's Papers (CP) at 23, 258, 424. 

1 This is the original language of the Condition. In its October 2, 2013 order on 

sununary judgment, however, the Board directed Ecology to replace the phrase "projects 

approved" with "application[ s] submitted" because otherwise the Condition failed to address 

the situation where an application was submitted before, but approved after, July 1, 2015. 

CR at 4011-12. 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

In its order, the Board concluded that storm water regulations required under the 

2013 Phase I Permit are not "land use control ordinances" governed by Washington's 

vesting statutes. CR at 3998. It offered four reasons for this conclusion. First, the 2013 

Phase I Permit implements state and federal laws to address water quality, not to control 

land use. !d. at 3998-99. Second, it is the province of the legislature to define what 

constitutes a "land use control ordinance," and the legislature has never defined 

environmental regulations administered by Ecology as such. !d. at 4002. Third, the 

legislature acknowledged the use of mandatory LID techniques in the 2013 Permits 

when it amended RCW 90.48.260 and directed Ecology to implement the use of LID 

techniques in the 2013 Phase II Permit. !d. at 4003. Lastly, mLmicipalities must 

comply with state water quality laws and public policy counsels against allowing 

development projects to operate out of compliance with such laws. !d. at 3999, 4005. 

The Board held a trial on the remaining issues and entered its final decision in 

March 2014. Snohomish County, King Cmmty, and BIA of Clark Cmmty separately 

appealed the Board's order on summary judgment to Thurston County Superior Court. 

Each filed an application for direct review and request for a certificate of appealability 

with the Board. The Thurston County Superior Court consolidated the appeals, and the 

Board issued a certificate of appealability. Snohomish County, King County, and BIA 

of Clark County then jointly sought direct review by Division Two of the Court of 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

Appeals. That court accepted direct review of the Board's order on summary judgment. 

Ruling Accepting Direct Review, Snohomish County v. Pollution Control Hr 'gs Bd., 

No. 46378-4-II, at 3 (Wash. Ct. App. Sept. 5, 2014). 

The Court of Appeals Opinion 

In a divided opinion, the Court of Appeals reversed the Board's order. 

Snohomish County, 192 Wn. App. at 323. The majority held that storm water 

regulations are "'land use control ordinances"' because they "restrain[]" or "direct[]" 

the use ofland. Id. at 332-33. In determining what constitutes a "land use control 

ordinance," the majority relied on New Castle Investments v. City of LaCenter, 98 

Wn. App. 224, 989 P.2d 569 (1999), Westside Business Park, LLC v. Pierce County, 

100 Wn. App. 599,5 P.3d 713 (2000), and Phillips v. King County, 136 Wn.2d 946, 

968 P.2d 871 (1998). Snohomish County, 192 Wn. App. at 331-32. From these 

cases, the majority derived the rule that a state-mandated environmental regulation 

is a "land use control ordinance[]" so long as it exerts a restraining or directing 

influence over land use. Id. at 336, 338. The majority then rejected all six of 

Ecology's arguments regarding the vested rights doctrine, as well as its argument 

regarding federal preemption. On the latter issue, the majority held that the federal 

CWA does not preempt the vesting statutes because Congress provided states 

flexibility in adopting storm water regulations. Id. at 343. That Congress used the 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

word "practicable" in the federal MEP standard, did not mandate Ecology's time line 

for reducing the discharge of pollutants to the MEP, and delegated the NPDES 

program to approved state agencies suggested that it intended "implementation of 

CWA objectives [to] occur within the framework of state law." Id. at 343-44. 

Reading the vesting statutes as part of this framework, the majority held that the 

CWA and the vesting statutes exist in harmony. Id. at 345. 

Judge Thomas Bjorgen dissented, concluding that the CWA preempts the vested 

rights doctrine, and that the vesting statutes and the state WPCA stand in conflict. Id. 

at 345, 350. As to the first point, the dissent noted that no party had appealed the 

Board's conclusion that LID techniques constitute the reduction of pollutants to the 

MEP, as required by the CWA. Id. at 348-49. Applying the vested rights doctrine 

would thus frustrate the purposes of the CWA by allowing developers to evade 

compliance with the federal MEP standard. Id. at 349. As to the second point, the 

dissent argued that the vesting statutes must yield to the WPCA because the vesting 

statutes are general rules, while the WPCA is aimed at protecting a specific resource 

(state waters) from a specific threat (pollution). Id. at 352. 

Ecology and Alliance filed separate petitions for review by this court, both of 

which we granted. Snohomish County v. Pollution Control Hr 'gs Ed., 185 Wn.2d 1026, 

377 P.3d 712 (2016). 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

ANALYSIS 

This court reviews the Board's orders under the Washington Administrative 

Procedure Act, chapter 34.05 RCW. See RCW 34.05.570(l)(b), .518(1); Cornelius 

v. Dep 't of Ecology, 182 Wn.2d 574, 584-85, 344 P.3d 199 (2015). Review is 

confined to the record before the Board. RCW 34.05.558; Port of Seattle v. Pollution 

Control Hr'gs Bd., 151 Wn.2d 568, 587, 90 P.3d 659 (2004). "The burden of 

demonstrating the invalidity of agency action is on the party asserting invalidity." 

RCW 34.05.570(1)(a). 

This court will grant relief "where the agency has erroneously interpreted or 

applied the law, the agency's order is not supported by substantial evidence, or the 

agency's decision is arbitrary and capricious." Postema v. Pollution Control Hr'gs 

Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000) (citing RCW 34.05.570(3)). We review 

questions oflaw and an agency's application of the law de novo, but we accord an 

agency's interpretation of the law great weight where the statute is ambiguous and 

is within the agency's special expertise. Cornelius, 182 Wn.2d at 585; Port of 

Seattle, 151 Wn.2d at 587. Here, the Board's rulings were made on summary 

judgment, which we also review de novo. Cornelius, 182 Wn.2d at 585. 

The Board issued a summary judgment order ruling that the stonn water 

regulations mandated under the 2013 Phase I Permit are environmental regulations, 

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Snohomish County, eta!. v. Pollution Control Hearings Bd., eta!., 92805-3 

rather than "land use control ordinances," and are thus not subject to the vesting 

statutes. CR at 3998-99. This case therefore asks us to determine whether our vested 

rights doctrine precludes implementation of the 2013 Phase I Permit's storm water 

management program. 

Washington's Vested Rights Doctrine 

Washington's vested rights doctrine employs a '"date certain'" standard for 

vesting. Town of Woodway v. Snohomish County, 180 Wn.2d 165, 172, 322 P.3d 

1219 (2014). That standard "entitles developers to have a land development 

proposal processed under the regulations in effect at the time a complete building 

permit application is filed, regardless of subsequent changes in zoning or other land 

use regulations." Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wn.2d 242, 250, 

218 P.3d 180 (2009) (plurality opinion). "Washington's rule is the minority rule," 

and it offers greater protection to developers than the rule applied in other states. !d. 

Washington's vested rights doctrine originated at common law, but "is now 

statutory."2 Town of Woodway, 180 Wn.2d at 173. The legislature codified the 

doctrine with regard to building permits and subdivision applications in 1987 and 

2 Amicus BIA of Washington asks thls court to affinn "the constitutional foundation 

of the vested rights doctrine" and clarify that "the nature of the [doctrine] has not become 

purely statutory." Br. of Amicus Curiae BIA of Wash. at 4. Given that the parties to this 

case rely solely on the vesting statutes, we confine our review to determining the scope of 

the statutes and do not address thls broader issue. 

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development agreements in 1995. RCW 19.27.095 (building permits); RCW 

58.17.033 (subdivision applications); RCW 36.70B.l80 (development agreements). 

RCW 19.27.095(1) reads: 

A valid and fully complete building pennit application for a structure, that is 

permitted under the zoning or other land use control ordinances in effect on 

the date of the application shall be considered under the building permit 

ordinance in effect at the time of the application, and the zoning or other land 

use control ordinances in effect on the date of application. 

RCW 58.17 .033(1) is substantially the same, but provides: 

A proposed division of land ... 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. 

What constitutes a "land use control ordinance" under RCW 19.27.095 and 

RCW 58.17.033 is the main inquiry in this case. Although RCW 36.70B.l80 is also 

a vesting statute, the parties do not heavily rely on it because it does not utilize the 

same language as RCW 19.27.095 and RCW 58.17.033.3 We thus limit our 

discussion to RCW 19.27.095 and RCW 58.17.033. 

3 RCW 36.70B.180 provides in relevant part: 

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 buildout 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. 

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Snohomish County, eta!. v. Pollution Control Hearings Bd., eta!., 92805-3 

The Parties' Contentions 

Ecology and Alliance both argue that the vested rights doctrine does not apply 

to the development applications in this case, but for slightly different reasons. Both 

argue that the storm water regulations are focused on environmental outcomes, not 

particular land uses. Suppl. Br. of Pet'r Ecology at 11; Pet'rs Puget Soundkeeper 

All., Wash. Envtl. Council & Rosemere Neigh. Ass'n's Suppl. Br. at 10 (hereinafter 

Suppl. Br. of Pet'rs All.). Both note that while the vested rights doctrine favors 

development interests, it is limited in scope. Ecology's Pet. for Review at 1-2; Puget 

Soundkeeper All., Wash. Envtl. Council & Rosemere Neigh. Ass'n's Pet. for Discr. 

Review at 10 (hereinafter All.' s Pet. for Review). The vesting statutes apply only to 

"'land use control ordinances."'4 Ecology's Pet. for Review at 14 (quoting RCW 

19.27.095(1); RCW 58.17.033(1)). To detennine whether a regulation is a "land use 

control ordinance," Alliance suggests looking to the regulation's purpose. Suppl. 

Br. ofPet'rs All. at 10. Alliance concludes that storm water regulations adopted to 

comply with the NPDES permitting program are not '"land use control ordinances'" 

because they do '"not dictate particular uses ofland but require[] only that, however 

the land is used, damage to the environment is kept within prescribed limits."' All.' s 

4 As discussed above, the vesting statutes also apply to "development standard[s] or 

regulation[s]." RCW 36.70B.l80. Because the parties did not analyze this statute in their 

briefs, we refer only to "land use control ordinances" as used in RCW 19.27.095 and RCW 

58.17.033. 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

Pet. for Review at 12 (quoting Rosemere Neigh. Ass'n v. Wash. State Dep't of 

Ecology, No. 10-013, 2010 WL 3420570, at *8 (Wash. Pollution Control Hr'gs Bd. 

Aug. 26, 2010)). 

Ecology's argument is similar, but it focuses more on legislative intent. 

Ecology contends that "the vesting statutes are intended to limit the exercise of 

municipal discretion." Ecology's Answer to Amici Curiae Brs. of Master Builders 

Ass'n of King & Snohomish Counties, Pac. Legal Found., Wash. Realtors & BIA of 

Wash. at 6 (hereinafter Ecology's Answer to Amici Curiae Brs.). Because this case 

involves state, rather than municipal, action, Ecology argues that the vesting statutes 

do not apply. Id. at 8. To support this argument, Ecology emphasizes that the 

legislature gave Ecology "'[c]omplete authority to establish' timing requirements" 

for the NPDES permits. Ecology's Pet. for Review at 16 (alteration in original) 

(quoting RCW 90.48.260(l)(a)). This case is thus unique because "[t]he [S]tate has 

created the framework the local programs must comply with, and Ecology must 

review and approve the local programs." Ecology's Answer to Amici Curiae Brs. at 

8. Accordingly, developers do not have "a vested right to discharge polluted 

stormwater in violation of state and federal water pollution laws." I d. at 1. 

Ecology also contends that the legislature tacitly approved Ecology's methods 

in the 2013 Phase I Permit when it amended RCW 90.48.260. Ecology's Pet. for 

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Snohomish County, eta!. v. Pollution Control Hearings Ed., eta!., 92805-3 

Review at 15. In RCW 90.48.260(3)(b)(i), the legislature directed Ecology to 

implement the use of LID techniques in the 2013 Phase II Permit. Ecology posits 

that although this provision concerns the 2013 Phase II Permit, it is relevant because 

the legislature could have directed Ecology to implement the storm water regulations 

according to the vesting statutes, but it chose not to. !d. 

Snohomish County, King County, and BIA of Clark County each filed 

supplemental briefs in this court. Master Builders Association of King and 

Snohomish Counties, Pacific Legal Foundation, BIA of Washington, and 

Washington Realtors each filed amicus briefs in this court. While some nuances 

exist, these entities essentially make the same argument: the 2013 Phase I Permit 

directs permittees to act in a manner contrary to state law, as it mandates permittees 

to retroactively apply storm water regulations to development projects for which a 

completed application has been submitted. Suppl. Br. ofResp't Snohomish County 

at 1; Suppl. Br. ofResp't King County at 4-5; BIA of Clark County's Suppl. Br. at 

4-5. These entities contend that Washington courts have set forth the proper test for 

determining what constitutes a "land use control ordinance." Suppl. Br. of Resp't 

Snohomish County at 5; Suppl. Br. of Resp't King County at 7-8; BIA of Clark 

County's Suppl. Br. at 5. That test determines whether a regulation exerts a 

'"restraining or directing influence of land use"' and affects '"the physical aspects 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

of development."' Suppl. Br. ofResp't Snohomish County at 5 (quoting Westside, 

100 Wn. App. at 607; New Castle, 98 Wn. App. at 237; Suppl. Br. ofResp't King 

County at 7-8; BIA of Clark County's Suppl. Br. at 5. 

These entities dispute Alliance's argument that the underlying purpose of the 

regulation is controlling. Suppl. Br. ofResp't Snohomish County at 4; Suppl. Br. of 

Resp't King County at 6; BIA of Clark County's Suppl. Br. at 4. Rather, the relevant 

consideration is the practical effect the regulation has on a developer's permit 

application. Suppl. Br. ofResp't Snohomish County at 4; Suppl. Br. ofResp't King 

County at 6; BIA of Clark County's Suppl. Br. at 4. Accordingly, environmental 

regulations are not exempt from the definition of "land use control ordinance." 

Suppl. Br. ofResp't Snohomish County at 5 n.5; Suppl. Br. ofResp't King County 

at 7-8; BIA of Clark County's Suppl. Br. at 5. Despite their environmental 

justification, the storm water regulations are "land use control ordinances" because 

complying with them will compel developers to modify their site plans. Suppl. Br. 

of Resp't Snohomish County at 5; Suppl. Br. of Resp't King County at 9; BIA of 

Clark County's Suppl. Br. at 4. 

The legislative history and purpose of the vesting statutes, as well as our 

precedent, favor Ecology's argument and the Board's ruling. Those sources indicate 

that the vested rights doctrine grew out of a concern that municipalities were abusing 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

their discretion with respect to land use and zoning rules. That concern is not present 

in the 2013 Phase I Permit, as the State has mandated local governments to 

implement a storm water management program that may take the form of storm 

water regulations. Accordingly, we reverse the Court of Appeals and reinstate the 

Board's order finding that the storm water regulations permittees must implement as 

part of the larger NPDES permitting program are not "land use control ordinances" 

under the vesting statutes. 

Textual Analysis of the Vested Rights Statutes 

Both RCW 19.27.095 and RCW 58.17.033 contain three relevant sections. 

The first section, quoted above, states that a "valid and fully complete" application 

vests to the "zoning or other land use control ordinances" in effect on the date of 

application. RCW 19.27.095(1); RCW 58.17.033(1). The second section indicates 

that "[t]he requirements for a fully completed application shall be defined by local 

ordinance." RCW 19.27.095(2); RCW 58.17.033(2). The last section states that 

"[t]he limitations imposed by th[ ese] section[s] shall not restrict conditions imposed 

under chapter 43.21C RCW [State Environmental Policy Act (SEPA)]." RCW 

19.27.095(6); RCW 58.17.033(3). The structure of the vesting statutes suggests that 

a developer's rights vest with respect to the requirements for a complete application. 

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Snohomish County, eta!. v. Pollution Control Hearings Bd., eta!., 92805-3 

See also Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 284, 943 P.2d 1378 

(1997) (concluding that "what is vested is what is sought in the application"). 

The legislature has never defined the term at issue in this case: "land use control 

ordinance." Without a clear meaning of this term, the vesting statutes are ambiguous, 

and we look to legislative history and interpretive case law to discern legislative intent. 

Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014). Our rule favoring an 

agency's interpretation of its own regulations, as well as the legislature's actions 

regarding implementation of LID techniques, also guide us. See Postema, 142 Wn.2d 

at 86; Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 

778,789,719 P.2d 531 (1986). 

Legislative History 

The legislative history of the vesting statutes is limited, but telling. The Final 

Bill Report on the bill enacting RCW 19.27.095 and RCW 58.17.033 states: 

Washington State has adhered to the current vested rights doctrine since the 

Supreme Court case of State ex rei. [City oj] Ogden v. Bellevue, 45 Wn.2d 

492[, 275 P .2d 899] (1954). The doctrine provides that a party filing a 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 at the time of the application. The doctrine is applicable 

if the permit application is sufficiently complete, complies with existing 

zoning ordinances and building codes, and is filed during the period the 

zoning ordinances under which 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. [Ciry oj] Bellevue, 106 Wn.2d 47[, 720 P.2d 782] (1986). 

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Snohomish County, eta!. v. Pollution Control Hearings Ed., eta!., 92805-3 

FINAL B. REP. ON SUBSTITUTE S.B. 5519, 50th Leg., Reg. Sess. (Wash. 1987). 

The references to Ogden and West Main suggest that in codifying the vested 

rights doctrine, the legislature was concerned with protecting developers' expectations 

under municipal zoning and land use ordinances. In Ogden, a developer brought a 

mandamus action to compel the city to issue a building permit after the city "exercised 

[its] discretion" to deny the application "notwithstanding [the application] met the 

requirements of [the city] ordinance." 45 Wn.2d at 494. This court reasoned that the 

developer's rights vested when she submitted a complete building permit application, 

and that "[t]he acts of administering a zoning ordinance do not go back to the questions 

of policy and discretion which were settled at the time of the adoption of the ordinance." 

Id. at 495. The legislature's reliance on this case is important for two reasons. First, 

Ogden involved an action in mandamus, which "compels perfonnance of a duty." In 

re Pers. Restraint of Dyer, 143 Wn.2d 384, 398, 20 P.3d 907 (2001). Second, it 

referenced administrative acts by local authorities according to the terms of local 

ordinances. Ogden suggests that once a developer's rights vest, local ordinances must 

apply to all developers alike. Our more recent precedent supports this proposition, 

noting that the vested rights doctrine is "rooted in notions of fundamental fairness." 

Abbey Rd. Grp., 167 Wn.2d at 250. The legislature's reliance on Ogden thus suggests 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

that the legislature understood the vested rights doctrine as curbing local discretion 

where none was warranted. 

Similarly, the legislature's reference to West Main indicates that the vesting 

statutes pertain to local discretion involving zoning and land use ordinances. In West 

Main, this court held that a city ordinance improperly interfered with the vesting 

doctrine because the city went beyond merely establishing guidelines, instead 

denying developers the ability to vest rights until after a series of pennits was 

obtained. 106 Wn.2d at 52. Notably, the city inappropriately reserved for itself"the 

almost unfettered ability to change its ordinances." !d. at 53. This concern regarding 

local discretion can also be found in Erickson & Associates, Inc. v. McLerran, where 

we stated "the [vested rights] doctrine places limits on municipal discretion." 123 

Wn.2d 864, 873, 872 P.2d 1090 (1994) (emphasis added). 

A key way the vesting statutes protect developers' interests against abuses of 

local discretion is by requiring that all the conditions for a complete application be 

set out by local ordinance. See RCW 19.27.095(2); RCW 58.17.033(2). Notably, 

the originally proposed vesting statutes did not allow SEP A requirements to be 

reiterated in a local ordinance, underscoring that these requirements are not part of 

the local requirements for submitting a complete application. 5 The separate 

5 The Senate Bill Report on the bill enacting RCW 19.27.095 and RCW 58.17.033 

states that "[t]he sections preventing local governments from including SEPA conditions 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

identification of SEP A conditions underscores that the legislature understood them 

to be distinct from the sort oflocal zoning and land use rules required to be set forth 

by ordinance, but ultimately did not want to prohibit counties from including them 

in the interest of providing notice to permit applicants. There is no suggestion that 

the mandates of federal and state environmental laws are "local" in the sense that 

municipalities have the discretion to decide whether applicants must comply. The 

only local discretion is to include these mandates in a local ordinance. 

The express carve out of "conditions imposed under chapter 43.21C RCW" 

further indicates that the legislature did not intend vesting to preclude enforcement of 

federal and state environmental laws. RCW 19.27.095(6); RCW 58.17.033(3); see also 

FINAL B. REP. ON SUBSTITUTE S.B. 5519 (noting inclusion of this provision). There are 

two possible ways to view this limitation on vesting. On the one hand, it could 

suggest the legislature intended not to allow vesting to restrict an array of statedirected environmental regulations. On the other hand, it could suggest that only 

SEPA-mandated regulations are exempted. We believe the former interpretation is 

accurate when the carve out provision is considered in context. At the time the 

vesting statutes were enacted, SEP A was the statutory scheme containing relevant 

environmental regulations; the NPDES permitting program did not yet exist. 

in ordinances that define the requirements for a fully completed application are stricken." 

S.B. REP. ON SUBSTITUTE S.B. 5519, 50th Leg., Reg. Sess. (Wash. 1987). 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

Ecology issued the first NPDES permits in 1995, while the legislature codified the 

vesting statutes in 1987. CR at 4057; RCW 19.27.095; RCW 58.17.033. In any 

event, SEP A enumerates "[ w ]ater/stormwater" as one of its categories, which 

suggests that state actions pertaining to storm water were intended to be exempt from 

the vesting statutes. WAC l97-ll-444(2)(d)(vii).6 

Development of the Vested Rights Doctrine in Case Law 

Case law discussing the vesting statutes supports the statutory interpretation 

discussed above. The parties primarily rely on New Castle, Westside, and Phillips. 

In New Castle, the court held that a city ordinance imposing a transportation 

impact fee was not a "land use control ordinance" under the vesting statutes because 

the ordinance "merely affect[ed] the ultimate cost of the development." 98 Wn. App. 

at 232. The court suggested that a "land use control ordinance" was an ordinance that 

exerts a "restraining or directing influence" over land use. Id. at 229. Had the fee 

"affect[ ed] the physical aspects of development (i.e., building height, setbacks, or 

sidewalk widths) or the type of uses allowed (i.e., residential, commercial, or 

industrial)," it would have been "subject to the vested rights doctrine." Id. at 237. 

6 We do not entertain Ecology's argument that it could use SEPA directly to enforce 

the requirements at issue here. Ecology did not raise this argument below, and the Court 

of Appeals refused to address it. We acknowledge the connection between SEP A and the 

permit-based storm water regulations only because it informs our interpretation of the 

scope of the exemption in the vesting statutes. 

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The court in Westside adopted the definition of"land use control ordinance" from 

New Castle. 100 Wn. App. at 607. There, the court held that the developer's '"bare 

bones"' application vested to the county's storm water drainage ordinances in effect 

when the developer submitted the application. !d. at 602, 609. Because the storm water 

drainage ordinances were a "mandatory prerequisite" to permit approval, the court 

concluded that the ordinances were "land use control ordinances." !d. at 607. In so 

holding, the court also relied on this court's decision in Phillips. !d. 

In Phillips, this court rejected landowners' inverse condemnation claim against 

the county for property damage resulting from the county's approval of a developer's 

permit under regulations existing at the time ofthe developer's application. 136 Wn.2d 

at 969. This court stated: 

Our conclusion on this issue comports with the practical realities of 

the vested rights doctrine .... Under current law, as required by the 

subdivision statute, RCW 58.17.033, a subdivision application is reviewed 

under the codes, ordinances and regulations in effect at the time a complete 

application for preliminary approval is filed. Since the application for the 

Autumn Wind project was submitted in 1988, the plans for the development 

were reviewed pursuant to the 1979 Surface Water Design Manual. As noted 

above, a new surface water drainage code was adopted by King County in 

1990, but it did not apply to the Autunm Wind project because the project 

was vested to the prior code under RCW 58.17.033. 

Id. at 963 (citations omitted). Given this language, the court in Westside concluded that 

"even if dicta, because the Phillips court plainly considered whether surface water 

drainage ordinances are within the ambit of the vested rights doctrine ... we are not 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

prepared to say that storm water drainage ordinances are not subject to the vesting rule." 

100 Wn. App. at 607-08. 

These cases do not stand for the proposition that the vesting statutes trump 

application of all storm water regulations. As Ecology correctly notes, the present case 

is distinguishable because the storm water regulations in the 2013 Phase I Permit are 

the result of state, not local, action. In New Castle, Westside, and Phillips, the 

ordinances at issue had been adopted by a city or county as a matter oflocal regulation. 

See also Lauer v. Pierce County, 173 Wn.2d 242, 248, 263, 267 P.3d 988 (2011) 

(building permit applicants' rights did not vest to the county's ordinance requiring 

riparian buffer because the applicants submitted knowing misrepresentations of 

fact); Julian v. City of Vancouver, 161 Wn. App. 614,626-28,255 P.3d 763 (2011) 

(landowners' rights vested when they submitted their preliminary short subdivision 

application, and thus a former version of the city's municipal code concerning 

riparian buffer areas applied). While the permittees in the present case include various 

cities and counties, the storm water regulations are not truly local because the State has 

directed local governments to implement the regulations in order to comply with the 

NPDES permitting program. The storm water regulations are mandatory state 

regulations, rather than discretionary local regulations. The vesting doctrine therefore 

does not excuse compliance with the requirements of the 2013 Phase I Permit. 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

Admittedly, Westside involved storm water drainage requirements the county 

adopted "in part as a response to the federal [CWA]." 100 Wn. App. at 601. The 

county, however, developed the requirements on its own rather than as a requirement 

imposed by the State through a municipal storm water permit. Westside is thus 

distinguishable from the present case. 

We do not find Phil/ips particularly helpful, as the case did not turn on the vested 

rights doctrine. See State v. Carneh, 153 Wn.2d 274, 286 n.3, 103 P.3d 743 (2004) 

(noting that because the court in a prior case mentioned a statute only in passing and 

did not specifically analyze it, the case could not be relied on for its conclusions 

regarding the statute). Nor has this court described Phillips as involving the 

interpretation of the vested rights doctrine, save one instance. In Lakey v. Puget Sound 

Energy, Inc., we stated that "[ w ]e did use the 'then existing' language, but only 

because [Phillips] involved the vested rights doctrine." 176 Wn.2d 909, 930,296 

P.3d 860 (2013) (citing Phillips, 136 Wn.2d at 961). This seems a passing remark, 

as Lakey involved an entirely different issue. See Carneh, 153 Wn.2d at 286 n.3. 

We do not rely on Lakey to guide our interpretation of the vesting statutes. 

Though the parties do not discuss them at length, we believe it is important to 

distinguish three other cases involving the interaction between SEP A and the vesting 

statutes. In Town of Woodway, this court held that the "vested rights doctrine applies 

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Snohomish County, eta!. v. Pollution Control Hearings Ed., et al., 92805-3 

to permit applications filed under [Growth Management Act (GMA), chapter 36.70A 

RCW,] plans and regulations ... later found to be noncompliant with the [SEPA]." 180 

Wn.2d at 169. In that case, we relied on the plain language ofthe GMA, which stated 

that '"[a] detennination of invalidity is prospective in effect and ... does not apply to a 

completed development permit application."' Id. at 175 (quoting RCW 

36.70A.302(2)). In contrast to the GMA, the 2013 Phase I Permit at issue does not 

contain similar language regarding the application of vesting and the exclusive 

remedies for SEP A violations. 

In Adams v. Thurston County, the Court of Appeals stated that "[t]he County 

must base any condition or denial on SEP A policies adopted prior to the application 

or submittal date, because vesting applies to those policies as well." 70 Wn. App. 

471, 481 n.ll, 855 P.2d 284 (1993). For this proposition, Adams cited Victoria 

Tower Partnership v. City of Seattle, 49 Wn. App. 755,761,745 P.2d 1328 (1987) 

("[T]he vested rights doctrine is equally appropriate for SEPA ordinances."). We 

conclude Adams and Victoria Tower are mistaken and must be disapproved for two 

reasons. First, as this court in Phillips noted, "[t]he vesting statute does not abrogate 

the requirements of SEPA." 136 Wn.2d at 963 n.5. Second, Victoria Tower was 

decided in 1987, the same year the legislature enacted the vesting statutes. 

Accordingly, "[e]ven if Victoria Tower can be read to expand the common law 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

vesting doctrine to [master use permit] applications, it has been superseded by RCW 

19.27.095(1)." Abbey Rd. Grp., 167 Wn.2d at 254. 

Deference to the Board and to Ecology 

We accord an agency's interpretation of the law great weight where the statute 

is ambiguous and is within the agency's special expertise. Cornelius, 182 Wn.2d at 

585; Port of Seattle, 151 Wn.2d at 587. We also defer to an agency's interpretation 

of its own regulations. Postema, 142 Wn.2d at 86. Given that the legislature 

designated Ecology as the agency to regulate the State's water resources, RCW 

43.21A.020, "Ecology's interpretation of relevant statutes ... is entitled to great 

weight." Port of Seattle, 151 Wn.2d at 593. The Board's review of Ecology's 

actions is also entitled to deference. See id. at 592-93. 

The Board has ruled that requirements imposed by NPDES storm water 

permits are not "land use control ordinances" subject to state vesting laws. CR at 

3999; Cox v. Dep't of Ecology, No. 08-077, 2009 WL 542494, at *5, *4 (Wash. 

Pollution Control Hr'gs Bd. Feb. 26, 2009) (finding that a "Construction Stonn 

water General Permit" (CSGP) was not a "land use control ordinance" because 

"local governments are not required to review and approve (nor do they have any 

authority to do so) the conditions or application of the CSGP prior to approval of the 

subdivision or plat" (emphasis added)). Similarly, the Board has rejected application 

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Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3 

of Westside, noting that it "is not a water pollution control permit case; it involved a 

local government's storm drainage ordinance." Rosemere Neigh. Ass 'n v. Dep 't of 

Ecology, No. 10-013, 2010 WL 3420570, at *7 (Wash. Pollution Control Hr'gs Bd. 

Aug. 26, 2010) (emphasis added). In rejecting reliance on Westside, the Board has 

noted "the better analysis for purposes of the vesting issue entails an examination of 

the source of authority for the requirement as well as its purpose." Jd. at *8 

(emphasis added). The Board's analysis aligns with our holding in the present case. 

Legislative Action Surrounding the 2013 Permits 

The legislature's actions with regard to implementation of Ecology's LID 

requirements also support our holding. "We presume the legislature is 'familiar with 

judicial interpretations of statutes."' State v. Ervin, 169 Wn.2d 815, 825, 239 P.3d 

354 (2010) (quoting State v. Babic, 140 Wn.2d 250,264, 996 P.2d 610 (2000)). We 

also presume amendments are consistent with previous judicial decisions, and we 

may conclude inaction indicates legislative approval of them. Id.; Hangman, 105 

Wn.2d at 789. 

The legislah1re directly addressed the inclusion of LID requirements in the 

2013 Permits in three separate instances. First, the legislah1re amended RCW 

90.48.260 to direct Ecology to implement the use of LID techniques in the 2013 

Phase II Permit. RCW 90.48.260(3)(b)(i). Second, the Final Bill Report on the bill 

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enacting the amendment to RCW 90.48.260 states that "[t]imeframes for the effect 

of certain requirements within the updated permit are specified, including for [LID] 

requirements." FlNALB. REP. ON SECOND ENGROSSED SUBSTITUTE S.B. 6406, at 4, 62d 

Leg., 1st Spec. Sess. (Wash. 2012). Third, in 2012 and 2013, the legislature 

appropriated funds for Ecology to provide LID training to 2013 Phase II Permittees. 

THIRD ENGROSSED SUBSTITUTE S.B. 5034, § 302(3), at 118-19, 63d Leg., 2d Spec. 

Sess. (Wash. 2013); THIRD ENGROSSED SUBSTITUTEH.B. 2127, 62d Leg., 2d Spec. 

Sess. (Wash. 2012). It is thus apparent that the 2013 Phase I Permit's requirements, 

including the Condition at issue in this case, were known to the legislature. The 

legislature's amendment to RCW 90.48.260 is consistent with the Board's 

interpretation of the 2013 Phase I Permit, and it appears the legislature has approved 

of this interpretation. See Ervin, 169 Wn.2d at 825; Hangman, 105 Wn.2d at 789. 

Doctrine of Finality of Land Use Decisions 

Snohomish County urges us to consider the doctrine of finality, describing this 

as an alternative issue the Court of Appeals did not reach. Suppl. Br. of Resp't 

Snohomish County at 13; Snohomish County's Answer to Ecology's & AlL's Pets. 

for Review (hereinafter Snohomish County's Answer to Pets. for Review) at 16. 

Snohomish County argues that building and development permits are "irrefutably 

valid" if not challenged under the Land Use Petition Act (LUPA), chapter 36.70C 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

RCW, within 21 days of being issued. Snohomish County's Answer to Pets. for 

Review at 16-17. Alliance responds that permittees "should have conditioned 

[development] permits issued after [August 1, 2012] to ensure that applicants were 

on notice of the timing restriction." Puget Soundkeeper All., Wash. Envtl. Council 

& Rosemere Neigh. Ass'n's Reply in Support of Pet. for Discr. Review (hereinafter 

AlL's Reply in Support ofPet. for Review) at 3; see also Dep't of Ecology's Reply 

to Snohomish County's Answer to Pet. for Review (hereinafter Ecology's Reply in 

Support of Pet. for Review) at 2-3. That way, permittees would not have to amend 

or withdraw a development permit that was already issued. AlL's Reply in Support 

of Pet. for Review at 3; Ecology's Reply in Support of Pet. for Review at 2. We 

conclude that the Condition does not violate the doctrine of finality of land use 

decisions given the Board's findings and the statutory language ofLUPA. 

The Board has "consistently rejected arguments that state law doctrines of 

vested rights and finality of land use decisions control and limit the application of 

water quality requirements developed under both state and federal law." CR at 4000 

(emphasis added). In its summary judgment order, the Board concluded that the 

2013 Phase I Pennit does not violate the doctrine of finality of land use decisions. 

I d. at 4007. It correctly noted that the vested rights doctrine and the doctrine of 

finality of land use decisions are "closely related," and that a developer does "not 

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Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3 

have a legitimate expectation that pollution control measures will be frozen in time 

to outdated or ineffective measures." !d. 

LUPA's purpose is "timely judicial review." RCW 36.70C.010. It provides 

a 21-day deadline to appeal1and use decisions ofloca1 jurisdictions. Habitat Watch 

v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005). Snohomish County's 

argument is misplaced because no party is challenging any land use decision. 

Rather, the parties are challenging the application of storm water regulations to 

development permits. 

Having rejected Snohomish County's vested rights argument, we find its 

finality argument unavailing. Indeed, it is not even clear that Snohomish County is 

offering a separate argument, as its briefing "circle[s] back to its vesting argument." 

Ecology's Reply in Support of Pet. for Review at 3; Resp't Ecology's Response Br. 

at 30.7 And at oral argument, counsel for the County did not seem to distinguish 

between the vesting statutes and the doctrine of finality ofland use decisions. Wash. 

Supreme Court oral argument, Snohomish County v. Pollution Control Hearings Ed., 

No. 92805-3 (Oct. 13, 2016), at 21 min., 17 sec., audio recording by TVW, 

7 At the Court of Appeals, Snohomish County stated simply, "It is no more lawful 

for the County to truncate vested property rights by imposing a permit condition on a 

project approval than it is for the County to truncate vested property rights by enacting new 

development regulations and applying them to vested applications." Snohomish County's 

Opening Br. at 37. 

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Washington State's Public Affairs Network, http://www.tvw.org (simultaneously 

mentioning application of new storm water regulations to "pending permit 

applications," which refers to the vesting statutes, and "projects that already have 

permits issued," which refers to the doctrine of finality). As noted above, the Board 

found that the vested rights doctrine and the doctrine of finality ofland use decisions 

are "closely related." CR at 4007. We agree and adopt the Board's findings on this 

rssue. See Port of Seattle, 151 Wn.2d at 592-93.8 

CONCLUSION 

We reverse the Court of Appeals and reinstate the Board's order. The legislative 

history and our precedent demonstrate that the vesting statutes were intended to restrict 

municipal discretion with respect to local zoning and land use ordinances. Because 

state and federal law direct the permittees to implement the storm water regulations at 

issue in this case, the regulations are not the sort oflocal mlrnicipalland use and zoning 

ordinances the legislature was concerned with. Indeed, the legislature's actions with 

regard to implementation of Ecology's LID techniques make it clear that the vesting 

statutes do not preclude compliance with the 2013 Phase I Permit. 

8 The parties also ask us to consider the use of police powers and federal preemption. 

Suppl. Br. of Pet'r Ecology at 15, 17; Suppl. Br. of Pet'rs All. at 16. We do not address 

these arguments in light of our resolution of this case. 

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WE CONCUR: 

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