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# Fl LE
This opinion

### was flied 

### for record

# at&~~~ IRenctld

### 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. Inthis 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 withthe State Environmental PolicyAct (SEPA), chapter 43.21C RCW. We holdthat itdoes. Local land use plans and development regulations enacted under the GrowthManagementAct (GMA), chapter 36.70A RCW, are presumed valid upon adoption. Should a validplan orTown ofWoodway v. Snohomish County No. 88405-6 regulation laterbe found to violate SEPA, the exclusive remedies provided by the GMA affect only future applications for development-not development rights that have already vested. Inthis case, BSRE PointWells LP (BSRE) submitted complete applications for developmentpermits before the local land use ordinances were found to be noncompliant with SEPA. BSRE'srights vested when it submitted its applications. A later finding ofnoncompliance does not affect BSRE's already vested rights. We affirm the Court ofAppeals and hold that BSRE's developmentrights vested.

· FACTS Theparties do not dispute the facts ofthis case. BSRE owns a 61-acre strip of waterfront land inunincorporated Snohomish Countyknown as "PointWells." 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, BSRE1asked Snohomish County to amend its comprehensive plan and zoning regulations to allow for a mixed use/urban center designation and redevelopment ofthe Point Wells site. BSRE wants to redevelop the property by adding over 3,000 housing units and over 100,000 square feet ofcommercial and

1In 2006, the property was owned by Paramount ofWashington LLC. Both Paramount and BSRE are owned by the same parent company. 2Town ofWoodway v. Snohomish County No. 88405-6 retail space. The petitioners-TownofWoodway (Woodway) and Save Richmond Beach Inc. (Richmond Beach)-opposethe 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 "bearthe burden ofproviding urban services to the site." Pet. for Discretionary Review (Richmond Beach) at 3. Snohomish County granted BSRE'srequest in two separate actions. First, in 2009, the county adopted two ordinances amending its comprehensive planto allow the redesignation ofPoint Wells from "UrbanIndustrial" to "Urban Center." Second, in 2010, it adopted two ordinances amending its building regulations to accommodate PointWells 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. Itmade a determination ofnonsignificance for the latter two ordinances (i.e., the development regulations) based onthe 2009 EIS. Woodway and Richmond Beachpetitioned the growth managementhearings board (growth board) to review the four ordinances. A hearing tookplace before the growthboard on March 2, 20 11. Before the growthboard issued its final order, BSRE filed two permit applications to redevelop Point Wells. Itfiled the first permit application on February 14, 2011, two weeks before the hearing before the growth board. BSRE filed the secondpermit application on March 4, 2011, two days after the hearing before the

3Town ofWoodway v. Snohomish County No. 88405-6 growthboard. The county published notices ofbothpermits shortly after they were filed. The notices stated that the applications were complete. OnApri125, 2011, the growth board issued its final order. Itfound that all four ordinances were noncompliant with SEPA. The growthboard found thatthe 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 developmentregulations were noncompliant because they relied
onthe same faulty EIS as the comprehensive plan amendments. The growth board remanded the four ordinances with instructions to cure them oftheir SEPA flaws. The growth board also invalidated the comprehensive plan amendments-butnot the development regulations-findingthat their continued validity would substantially interfere withthe goals ofthe GMA. Following the growth board's order, thepetitioners filed a complaint in superior court seeking a declaration that BSRE'spermits had not vested because the ordinances were "void" under SEPA and the GMA. The petitioners also asked for an injunction against the county to stop it from processing BSRE'spermits. Theparties moved for summaryjudgment, and the court found for the petitioners. The court ruled that BSRE'srights did not vest to the ordinances later found to be noncompliant with SEPA, and it enjoined the country from processing theirpermits until the county complied with the growthboard's order ofremand.

4Town ofWoodway v. Snohomish County No. 88405-6 The Court ofAppeals reversed. Itconcluded that the invalidity provision ofthe GMA, RCW 36.70A.302(2), controlled the dispute and that "complete and filed applications vest to those challenged plan provisions and regulations, regardless ofthe Growth Board's subsequent ruling in the administrative appeal." Town ofWoodway
v. Snohomish County, 172 Wn. App. 643, 660,291 P.3d 278 (2013). We granted rev1ew. Town ofWoodway v. Snohomish County, 177 Wn.2d 1008, 302 P.3d 181 (2013). ISSUE Did BSRE's development rights vest to comprehensive plans and development regulations that were later found to be flawed under SEPA? ANALYSIS I. The Standardof Review This case presents questions ofpure law. We review questions oflaw de novo. Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295 P.3d 1179 (2013). II. Washington's VestedRightsDoctrine andthe Plain Language of the GMA MakeIt Clear ThatBSRE's DevelopmentRights Vested Washington's vested rights doctrine stronglyprotects the right to develop property. Our state employs a "date certain" standard for vesting. AbbeyRd. Grp., LLCv. City of BonneyLake, 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 developmentproposal processed under the regulations in
5Town ofWoodway 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." AbbeyRd. 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 '"newland-use ordinances do not unduly oppress developmentrights, 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 ofthe 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 oflife enjoyed by residents ofthis state." RCW 36.70A.010. Under the GMA, communities must create comprehensive plans to express general land use

6Town ofWoodway v. Snohomish County No. 88405-6 policies in the community and developmentregulations to implement those plans. RCW 36.70A.040(3), (4). The GMA contains a review process that allows parties to challenge comprehensive plans and buildingregulations, and it provides remedies for plans or regulations that prove to be flawed. In this case, we must interpretthose statutory remedies. "Thepurpose ofstatutory interpretation is to determine and give effect to legislative intent." Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997). "The legislativeintent should be derived primarily from the statutory language." 

### !d. "Whenthe 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 aparty wishto challenge adopted plans or regulations, it mustpetitionthe growth board for review. RCW 36.70A.280(1). The growthboard has exclusivejurisdictionto 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

7Town ofWoodway v. Snohomish County No. 88405-6 jurisdiction over challenges to plans or regulations based onthe GMA). As a part of its exclusivejurisdictionto 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 exclusivejurisdictionto review SEPA challenges to comprehensive plans and development regulations."). Ifthe growthboard finds that the plan or regulation is flawed, it has two options: (1) it may enter a finding ofnoncompliance or (2) it may enter a finding ofinvalidity. RCW 36.70A.300(3)(b), .302. Ifthe growth board finds noncompliance, it remands the matterto the county with instructions to comply within a certaintime period. RCW 36.70A.300(3)(b). "Countyplans and regulations
... remain validduring the remandperiod following a finding ofnoncompliance." King County v. Cent. PugetSound Growth Mgmt. Hearings Bd., 138 Wn.2d 161, 181, 979 P.2d 374 (1999) (emphasis added); RCW 36.70A.300(4). Ifthe flaw in the plan or regulation represents a major violation ofthe GMA, the growth board has the option ofdetermining that the plan or regulation is invalid. To do so, the growth board must first find noncompliance and remandthe matter back to the county. RCW 36.70A.302(1)(a). Additionally, the growth board must enter a determination-supportedby findings offact and conclusions oflaw-thatthe

8Town ofWoodway v. Snohomish County No. 88405-6 continued validity ofthe provision would substantially interfere with the goals ofthe GMA. RCW 36.70A.302(1)(b). "Upon a finding ofinvalidity, the underlying provision would be rendered void." King County, 138 Wn.2d at 181. But, like a finding ofnoncompliance, a finding ofinvalidity does not apply retroactively to rights that have already vested. The GMA plainly states: A determination ofinvalidity isprospective in effect and does not extinguishrights that vested under state or local law before receipt ofthe [growth] board's order bythe city or county. The determination of invalidity does notapply to a completeddevelopmentpermitapplication for a projectthat vested under state or local law before receipt ofthe [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 growthboard's final order remain vested after the order is issued. We have considered the remedial powers under the GMAbefore. In Skagit Surveyors & Engineers, LLCv. 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 onthe plain language ofthe statute and heldthat it did not. Id. at 568. We made clearthat our duty "is to interpretthe statute as enacted by the Legislature, after the Legislature's determination ofwhat remedy best serves the public interest ofthis state; we will notrewrite the statute." Id. at 567.

9Town ofWoodway v. Snohomish County No. 88405-6 The reasoning in SkagitSurveyors applies here. Though that case dealt with remedial powers ofthe growth board-andhere 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 exclusivejurisdictionto hear SEPA challenges as they relate "to plans, developmentregulations, or amendments, adopted under [the GMA]." RCW 36.70A.280(1)(a). Its remedies are limitedto finding noncompliance or invalidity, and neither finding affects development rights that have already vested. Here, the growth boardreviewed SEPA challenges to the plans and regulations and found a violation. The remedies for such a violation are exclusively provided by the GMA and do not affect rights that have already vested. The superior court erred when it exceeded these exclusive remedies. We affirm the Court ofAppeals because ofthe plain language ofthe GMA as described above. III. PetitionersArgue That Our SEP A Precedent Controls, but the GMA andIts AmendmentsHave Changedthe Law with Respect to SEPA Violations in GMA Plans andRegulations Despite the language ofthe GMA, the petitioners argue that "[g]overnrnent actions taken in violation ofSEPA'sprocedural requirements are void ab initio and ultra vires." Suppl. Br. ofPet'r (Woodway) at 6-7. They argue thatpriorto 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

10Town ofWoodway v. Snohomish County No. 88405-6 development rights can vest ifthey rely on ordinances that do not comply with SEPA's procedural requirements. We disagree. The petitioners cite a list ofcases that are distinguishable: Eastlake Cmty. Council v. RoanokeAssocs., 82 Wn.2d 475, 481, 487, 513 P.2d 36 (1973) (pre-GMA
case holding that rights did not vest whenpermit renewal did not conform to zoning
orbuildingregulations and whenno 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 SEPA); Lassila v. City ofWenatchee, 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 onthe 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 ofNatural Resources did notprepare 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 underthat rezone when the rezone failed to meet statutory and due process notice requirements); 

### S. Tacoma Way, LLCv. 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 ofstate land ultra vires).

11Town ofWoodway v. Snohomish County No. 88405-6 These cases are offpoint-none ofthem deal withplans orregulations 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 withthe requirements ofthe GMA "or [SEPA] as it relates to plans, development regulations, or amendments, adopted underRCW 36.70A.040." RCW 36.70A.280(1)(a). As noted above, the growth board's power to reviewthese petitions is exclusive and the growthboard's remedies are limited by statute. The growthboard 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 SEPA outside the context ofGMA plans or development regulations has no bearing on this case. This area oflaw is entirely statutory, and we have recognized that amendments to statutes will supersedejudicialprecedent. InDioxin/Organochlorine Center v. Pollution ControlHearings Board, 131 Wn.2d 345,356-61,932 P.2d 158 (1997), we held thatNoel-one ofthe cases cited bythe petitioners-wasno longer authoritative for the propositionthat a superior court could review certain forest practices for violations ofSEPA. We found that the legislature had amended SEPA to clarify that the superior court could not review the issue. 

### !d. at 362. Here too, amendments to the GMA and SEPA have superseded prior cases. The Court ofAppeals discussed the

12Town ofWoodway v. Snohomish County No. 88405-6
amendments to the GMA at length, but a short summary shows thatthe legislature fundamentally alteredreview ofGMAplans andregulations. In 1991, the legislature amended the GMAto establish a process for reviewing comprehensiveplans and regulations. LAWS OF 1991, 1st Sp. Sess., ch. 32, § 9. It gave the newly created growth boardthe powerto reviewplans 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 clearthatthe 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 provisionthat a fmding ofinvalidity applies only prospectively and does not affect rights thatvested before the growthboard's order, the legislature clarified this point evenfurther with an amendmentin 1997. That amendmentrecodified the GMA's invalidityprovision in a stand-alone section and added a second sentence emphasizing the point further. LAws OF 1997, ch. 429, § 16(2) ("The determination ofinvalidity does not apply to a completed development permit application for a projectthat vestedunder state or local lawbefore receipt of the [growth] board's orderbythe county or city or to related constructionpermits for thatproject.").

13Town ofWoodway v. Snohomish County No. 88405-6
As the Court ofAppeals noted, the legislature was well informed when it made the amendments. The legislature relied on several government reports that examined the continuing validity ofnoncompliant 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 TASKFORCE ON REGULATORY REFORM: FINAL REPORT 52 (Dec. 20, 1994) (recommendingthat a plan orregulation should remain in effect unless later found invalid); WASH. LAND USE STUDY COMM'N, 1996 ANNUALREPORT EXEC. SUMMARY 20 (Jan. 29, 1997) (recommending an amendment clarifying thatprojects that vested priorto a growth board order are not affected by an order ofinvalidity). This history shows thatthe legislature thoughtfully considered the review process for comprehensiveplans and regulations under the GMA. Itpurposefully integrated SEPA review with GMAreview and outlined the remedies for faulty plans and regulations. Itconsidered the impactthat GMAreview would have on vested rights and chose notto disturb this state's strong vested rights doctrine. Our decision reflects the clear intent ofthe legislature, and we apply the statute as written. 

### IV. RichmondBeach'sArgument That the CourtShouldNotAllow the Vested Rights Doctrine "To Be UsedAs a Sword"Is NotPersuasive Richmond Beach argues thatthe Court ofAppeals erred by allowing the vested rights doctrine to beused as a "'sword' to pushthrough an otherwise-illegal development, rather than as a 'shield' to protectthe property ownerfrom fluctuating
14Town ofWoodway v. Snohomish County No. 88405-6 land use policies." Suppl. Br. ofPet'r (Richmond Beach) at 4. Richmond Beach evokes this court's warning inErickson that ifrights vesttoo easily, the public interest
canbe subverted. Richmond Beach criticizes the decision below for failing to "uphold important principles such as protection ofproperty rights, certainty, predictability, due process, good faith, or fairness." 

### ld. These arguments miss the mark. Our vestedrights 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 thatrule. Allenbach v. City of Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984). InAllenbach, the city ofTukwilapassed an ordinance that downzoned the developer's property from multifamily to single-family residential. 

### Id. at 194-95. Nearly two months later-one day before the ordinance took effect-adeveloper submitted a permit application for a multifamily development. 

### Id. 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. 

### Id. We rejected the city's argument. We reiterated that the court applies a date certain standard and "avoids the morass and uncertainties" ofdetermining 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 exceptionto thatrule. 

### ld. at 199-200. Only one bad faith consideration applies

15Town ofWoodway v. Snohomish County No. 88405-6
to developers-theymust 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 developmentrights 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 ofthe GMA indicates that a later finding ofnoncompliance under SEPA does not affect rights that have already vested. The petitioners cite cases thathave been largely superseded by the GMA and its amendments. Additionally, we do not considerthe good or bad faith ofa developer, other than their duty notto make knowing misrepresentations onpermit applications. Forthese reasons, we affirm the Court of Appeals.

16Town ofWoodway v. Snohomish County No. 88405-6



### WE CONCUR:

17

### Town ofWoodway v. Snohomish County Dissent by C. Johnson, J.

No. 88405-6 C. JOHNSON, J. (dissenting)-The vested rights doctrine is ajudicially created doctrine originally anchored in due process principles offundamental 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, exceptunder limited circumstances, the government could not change the rules ofthe game after it had already been played. Butno laws changed that affected the development in this case. Itwas illegal under the Growth ManagementAct (GMA), chapter 36.70A RCW, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW, at all times. The majority's decision erroneously creates a troubling erosion ofthe requirements under the GMA and, more disturbing, SEPA.Town ofWoodway 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 developmentproposal is submitted. The GMA controls the development ofland and guides a county's options in planning for growth, development, and expansion. Similarly, SEPA exists to condition development in orderto protect our environment and minimize the environmental impact causedby development. The majority embraces a radical departure from our cases and uses the vested rights doctrine as a sword to disregard the mandates ofboth the GMA and SEPA. The record in this case establishes that boththe county and developer likely knew theirplan 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 ofthe county and developer are designed to circumventthe existingrequirements ofthe GMA and SEPA. The majority allows "vesting" ofessentially an illegal development. Point Wells is an isolated 61-acre site ofa century's worth ofpetroleumbased industrial use on the southwest corner ofSnohomish County. It

### is largely inaccessible from Snohomish County. Instead, the only access is from the south through King County and the city ofShoreline along Richmond Beach Drive, a

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



### narrow two-lane neighborhood streetthat 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 ofPoint Wells, and although the Sound Transit light rail line runs through Point Wells, it does not stop in Point Wells, nor is there aplanto provide a stop. Reasonable access to this type ofdevelopment is, and always has been, arequirement, but such access does not exist here and probably never will. Point Wells was originally designated as "urbanindustrial," butupon BSRE'srequest, 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
...

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



### or be located on a regional high capacitytransitroute." CP at 197. The County was well aware ofsuch 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 andnamed by a highway intersection. 1 

### The town ofWoodway and Save Richmond Beach, Inc. petitionedthe 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. OnFebruary 14, 2011, BSRE submitted a subdivision and landdisturbing aQtivity permit application with the county. On March 2, 2011, the hearing before the Boardtookplace. Two days later, BSRE filed a development permit applicationwith the County. On April25, 2011, the Board invalidated the county's comprehensiveplan amendments and found the development regulations noncompliant with SEPA. In its order, the Board stated that it was left with "'afirm and definite conviction that
a mistake ha[d] been committed.'" CP at 113. The Boardnoted that Point Wells was the County's only urban center without either transit access or the existing road infrastructure to support high-

·-----·--------- 1CP at 107. 4Town ofWoodway 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 ofexisting or planned access to thatroute." CP at 108. Understandably, the Boardrejectedthis 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 bythe Board, BSRE had argued that its promise to fund the building ofa transit center, on-site police and fire stations, and a commuterrail station was the equivalent ofthe actual governmental commitment required by the GMA. The Board also rejected this argument, noting that "'TrustUs' 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

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

### trips, and been less ofa strain on public facilities and services. CP at 148. As a result, the Boardheld that all four ordinances did not comply with SEPA and remanded them backto the County to take legislative actionto comply with SEPA. CP at 166-67. According to the majority, however, because BSRE filed two permit

..:•**~ttpplications** 

### before the Board could invalidate the proposal, it nowhas a vested right to develop Point Wells as an urban center notwithstanding the development's illegality and clear deficiencies. To the majority, BSRE wouldhave a vestedright regardless ofwhether it plans to build 3,000 or 30,000 new housing units in Point Wells. This is not the situation envisionedby the vestedrights doctrine or whatthe statute provides. The purpose ofthe 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 developmentby 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 offundamental fairness because "citizens should be protected from the 'fluctuatingpolicy' ofthe legislature." W. 

### Main, 106 Wn.2d at 51 (quoting THEFEDERALIST No. 44, at 301

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

### (James Madison) (Jacob E. Cooke ed., 1961)). The doctrine is meantto protect the land owner/developer from the municipality. 

### SeeNoble Manor Co. v. Pierce County, 133. Wn.2d 269, 943 P.2d 1378 (1997) (right vested when city changed zoning.ordinance afterr.eceiying shortplat subdivision 

### qutbefore platwas approved);

### Parkridge v. City ofSeattle, 89 Wn.2d 454, 573 P.2d 359 (1978) (developer had vested right, despite incomplete application, because ofdiligent 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 ofcounty legislation during the pendency ofBSRE's permit applications; the rules and requirements remained unchanged throughout. There
was not even a threat offluctuating legislation during this time as Snohomish County was in fact defending to the Boardthe very legislation 

### requestedby BSRE and under which BSRE claims its development rights vested. No case exists in which this court has held that a developer has a vestedright to build under invalid,

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

### site-specific legislation that it specifically requested and subsequently defended on appeal and ofwhich it is the sole beneficiary. The majority finds that BSREhas a development right under RCW 36.70A.302(2), which provides: A determination ofinvalidity 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 ofinvalidity does not apply to a completed development permit application for a project that vested under state or local lawbefore receipt ofthe board's order by the county or city orto related constructionpermits for that project. This provision must be read consistent with the vestedrights doctrine and not, as the majority reasons, as an independent, free-standing vesting provision. The statute is written in the pasttense: invalidity does not apply to applications for a project 

### that vested. It

### does not create rights. Rather, itprotects only rights that already existed by way ofvesting and assumes a separate mechanism by which those rights are created in the first place, namely ourvestedrights doctrine. Because BSRE should nothave an illegal developmentright under our vested rights doctrine, it cannot use RCW 36.70A.302(2) as a shield to protect its illegal
use.

8Town ofWoodway 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 "fearthat the area lacks the infrastructure." Majority at 3. As noted by the Board, however, the area in fact lacks all ofthe 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 ofproviding transportation, utilities, and police and fire protection, to name a few, in fact fully burdens King County; the city ofShoreline; 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 rightto develop Point Wells as an urban center, the majority has facilitated such uncoordinated, unplanned, and in fact illegal growth. The GMA and SEPA should be read in harmony and given effect, and not, as the majority holds, written out ofexistence. The vesting rights doctrine cannotbe used as a sword to eviscerate the purpose and function ofthe GMA and SEPA.

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

### Respectfully, I dissent.

10