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Fl LE 

This opinion was flied for record 

at&~~~ 

IRe nctld r-t Carpenter 

Supr~::~1ne Court Clerk 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

TOWN OF WOODWAY and SAVE ) 

RICHMOND BEACH, INC., a Washington ) 

non-profit corporation, ) 

Petitioners, 

v. 

SNOHOMISH COUNTY and BSRE POINT 

WELLS, LP, 

Respondents. 

) 

) 

) 

) 

) 

) 

) 

) 

) ___________________________) 

No. 88405-6 

EnBanc 

Filed __ A_PR_1_0_20_14 __ 

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

development proposals processed under land use plans and development regulations 

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

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

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

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

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

chapter 36.70A RCW, are presumed valid upon adoption. Should a valid plan or 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

have already vested. 

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

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

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

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

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

· FACTS 

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

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

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

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

Industrial." 

In 2006, BSRE1 asked Snohomish County to amend its comprehensive plan and 

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

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

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

1 In 2006, the property was owned by Paramount of Washington LLC. Both Paramount 

and BSRE are owned by the same parent company. 

2 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

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

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

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

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

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

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

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

EIS. Woodway and Richmond Beach petitioned the growth management hearings 

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

growth board on March 2, 20 11. 

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

filed. The notices stated that the applications were complete. 

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

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

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

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

board found that the development regulations were noncompliant because they relied 

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

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

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

development regulations-finding that their continued validity would substantially 

interfere with the goals of the GMA. 

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

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

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

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

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

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

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

complied with the growth board's order of remand. 

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

(2013). 

ISSUE 

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

regulations that were later found to be flawed under SEP A? 

ANALYSIS 

I. The Standard of Review 

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

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

II. Washington's Vested Rights Doctrine and the Plain Language of the GMA 

Make It Clear That BSRE 's Development Rights Vested 

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

effect at the time a complete building permit application is filed, regardless of 

subsequent changes in zoning or other land use regulations." Abbey Rd. Grp., 167 

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

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

jurisdictions." !d. 

Washington adopted this rule because we recognize that development rights are 

valuable property interests, and our doctrine ensures that '"new land-use ordinances 

do not unduly oppress development rights, thereby denying a property owner's right to 

due process under the law."' !d. at 251 (quoting Valley View Indus. Parkv. City of 

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

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

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

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

agreements). 

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

The GMA contains a review process that allows parties to challenge 

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

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

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

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

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

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

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

!d. 

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

development regulations, including their amendments, are presumed valid upon 

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

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

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

36.70A.300( 4). 

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

A determination of invalidity is prospective in effect and does not 

extinguish rights that vested under state or local law before receipt of the 

[growth] board's order by the city or county. The determination of 

invalidity does not apply to a completed development permit application 

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

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

permits for that project. 

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

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

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

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

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

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

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

and neither finding affects development rights that have already vested. 

Here, the growth board reviewed SEP A challenges to the plans and regulations 

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

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

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

of the plain language of the GMA as described above. 

III. Petitioners Argue That Our SEP A Precedent Controls, but the GMA and Its 

Amendments Have Changed the Law with Respect to SEPA Violations in 

GMA Plans and Regulations 

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

SEPA's procedural requirements. We disagree. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

render the sale of state land ultra vires). 

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

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

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

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

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

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

has no bearing on this case. 

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

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

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

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

fundamentally altered review of GMA plans and regulations. 

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

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

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

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

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

the growth board's review process by giving it the two remedies discussed abovenoncompliance or invalidity. LAWS OF 1995, ch. 347, § 110. Importantly, the 

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

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

amendment included the provision that a fmding of invalidity applies only 

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

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

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

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

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

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

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

that project."). 

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

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

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

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

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

order of invalidity). 

This history shows that the legislature thoughtfully considered the review 

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

integrated SEP A review with GMA review and outlined the remedies for faulty plans 

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

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

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

IV. Richmond Beach's Argument That the Court Should Not Allow the Vested 

Rights Doctrine "To Be Used As a Sword" Is Not Persuasive 

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

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

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

mark. 

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

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

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

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

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

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

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

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

permit applications under the old zoning laws. I d. 

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

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

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

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

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

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Town of Woodway v. Snohomish County 

No. 88405-6 

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

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

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

Beach's arguments are unpersuasive, and we affirm. 

CONCLUSION 

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

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

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

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

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

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

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

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

Appeals. 

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Town of Woodway v. Snohomish County 

No. 88405-6 

WE CONCUR: 

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Town of Woodway v. Snohomish County 

Dissent by C. Johnson, J. 

No. 88405-6 

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

created doctrine originally anchored in due process principles of fundamental 

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

government changing the conditions and requirements that existed and were relied 

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

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

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

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

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

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

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

under the GMA and, more disturbing, SEP A. 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

The vested rights doctrine has never been applied to circumvent and 

eliminate statutory requirements existing at the time a development proposal is 

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

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

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

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

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

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

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

unless the anticipated Growth Management Hearings Board's decision to 

invalidate their proposal could be cleverly circumvented. No principle of 

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

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

majority allows "vesting" of essentially an illegal development. 

Point Wells is an isolated 61-acre site of a century's worth ofpetroleumbased industrial use on the southwest corner of Snohomish County. It is largely 

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

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

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Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

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

with traffic estimated to add 12,860 car trips per day. There are no express or highcapacity transit routes within 2.5 miles of Point Wells, and although the Sound 

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

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

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

probably never will. 

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

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

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

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

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

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

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

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

3 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

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

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

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

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

before the Board. On February 14, 2011, BSRE submitted a subdivision and landdisturbing aQtivity permit application with the county. On March 2, 2011, the 

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

permit application with the County. 

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

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

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

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

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

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

·-----·--------- 1 CP at 107. 

4 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

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

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

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

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

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

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

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

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

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

amendments. CP at 166. 

Finally, the final supplemental environmental impact statement (FSEIS) 

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

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

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

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

5 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

CP at 166-67. 

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

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

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

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

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

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

statute provides. 

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

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

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

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

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

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

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

6 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

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

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

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

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

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

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

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

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

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

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

applications; the rules and requirements remained unchanged throughout. There 

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

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

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

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

7 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

appeal and of which it is the sole beneficiary. 

The majority finds that BSRE has a development right under RCW 

36.70A.302(2), which provides: 

A determination of invalidity is prospective in effect and does not 

extinguish rights that vested under state or local law before receipt of 

the board's order by the city or county. The determination of invalidity 

does not apply to a completed development permit application for a 

project that vested under state or local law before receipt of the 

board's order by the county or city or to related construction permits 

for that project. 

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

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

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

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

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

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

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

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

use. 

8 

 	 
	 
   
		

		

Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

function of the GMA and SEP A. 

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Town of Woodway v. Snohomish County 

(C. Johnson, J., dissenting) 

Respectfully, I dissent. 

10