Town of Woodway & Save Richmond Beach, Inc. v. Snohomish Cnty. & Bsre Point Wells, LP

180 Wash.2d 165

322 P.3d 1219

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.

Supreme Court of Washington, En Banc.

April 10, 2014.

Wayne Douglas Tanaka, Ogden Murphy Wallace, Kristin Nicole Eick, Attorney at Law, Aimee Kim Decker, Graham & Dunn PC, Seattle, WA, for Petitioners.

John Roberts Moffat, Martin Dominic Rollins, Matthew A. Otten, Civil Div Snohomish County Prosecutor's, Everett, WA, Mark Robert Johnsen, Douglas Alan Luetjen, Gary Dennis Huff, Karr Tuttle Campbell, Seattle, WA, for Respondents.

Keith Patrick Scully, Newman Du Wors LLP, Seattle, WA, Amicus Curiae on behalf of Futurewise.

Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, Amicus Curiae on behalf of Shoreline COAlition for Open Government.

OWENS, J.

¶ 1 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 regulation later be found to violate SEPA, the exclusive remedies provided by the GMA affect only future applications for development—not development rights that have already vested.

¶ 2 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

¶ 3 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.”

¶ 4 In 2006, BSRE ¹ 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 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.

¶ 5 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, 2011.

¶ 6 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 growth board. The county published notices of both permits shortly after they were filed. The notices stated that the applications were complete.

¶ 7 On April 25, 2011, the growth board issued its final order. It found that all four ordinances were noncompliant with SEPA. 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 SEPA 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.

¶ 8 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 SEPA 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.

¶ 9 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 Wash.App. 643, 660, 291 P.3d 278 (2013). We granted review. Town of Woodway v. BSRE Point Wells, LP, 177 Wash.2d 1008, 302 P.3d 181 (2013).

ISSUE

¶ 10 Did BSRE's development rights vest to comprehensive plans and development regulations that were later found to be flawed under SEPA?

ANALYSIS

I. The Standard of Review

¶ 11 This case presents questions of pure law. We review questions of law de novo. Klem v. Wash. Mut. Bank, 176 Wash.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

¶ 12 Washington's vested rights doctrine strongly protects the right to developproperty. Our state employs a “date certain” standard for vesting. Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wash.2d 242, 251, 218 P.3d 180 (2009); Hull v. Hunt, 53 Wash.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 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 Wash.2d at 250, 218 P.3d 180. “Washington's rule is the minority rule, and it offers [greater] protection of [developers'] rights than the rule generally applied in other jurisdictions.” Id.

¶ 13 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.’ ” Id. at 251, 218 P.3d 180 (quoting Valley View Indus. Park v. City of Redmond, 107 Wash.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 Wash.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).

¶ 14 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 policies in the community and development regulations to implement those plans. RCW 36.70A.040(3), (4).

¶ 15 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 Wash.2d 80, 87, 942 P.2d 351 (1997). “The legislative intent should be derived primarily from the statutory language.” Id. “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.” Id.

¶ 16 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. Stafne v. Snohomish County, 174 Wash.2d 24, 34, 271 P.3d 868 (2012) (“[A] party challenging a decision...