Argued October 24, 2013.
Wayne D. Tanaka and Kristin N. Eick (of Ogden Murphy Wallace ); and Aimee K. Decker (of Graham & Dunn PC ), for petitioners.
Mark K. Roe, Prosecuting Attorney, and John R. Moffat, Martin D. Rollins, and Matthew A. Otten, Deputies, for respondent Snohomish County.
Mark R. Johnsen, Douglas A. Luetjen, and Gary D. Huff (of Karr Tuttle Campbell ), for respondent BSRE Point Wells, LP.
Keith P. Scully on behalf of Futurewise, amicus curiae.
Michele Lynn Earl-Hubbard on behalf of Shoreline Coalition for Open Government, amicus curiae.
AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud. AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice Debra L. Stephens, Justice Steven C. González.
[180 Wn.2d 169] ¶ 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 [180 Wn.2d 170] 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.
¶ 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  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 [180 Wn.2d 171] 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 [180 Wn.2d 172] later found to be noncompliant with SEPA, and it enjoined the county 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 Wn.App. 643, 660, 291 P.3d 278 (2013). We granted review. Town of Woodway v. Snohomish County, 177 Wn.2d 1008, 302 P.3d 181 (2013).
¶ 10 Did BSRE's development rights vest to comprehensive plans and development regulations that were later found to be flawed under SEPA?
The Standard of Review