HomeMy WebLinkAbout47 2017-12-15
APPELLANT’S SUPPLEMENTAL BRIEF - 1
999 THIRD AVENUE, SUITE 2525
SEATTLE, WASHINGTON 98104-4089
(206) 382-2600 FAX: (206) 223-3929
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BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY In Re: Appeal of BDN Shine Road Geoduck Aquaculture Farm of Jefferson County Code Interpretation
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No. MLA17-0011 APPELLANT’S SUPPLEMENTAL BRIEF
INTRODUCTION
At the end of the November 21st hearing, the Examiner left the record open for
submission of additional materials until December 15, 2017. Accordingly, appellant submits
this additional brief, in light of arguments made by the County at the hearing.
ARGUMENT
1. The Statutes relating to vested rights for building permits and subdivision
applications do not abrogate the common law concerning vested rights. The County
insists that “no vestige of common law vesting rights survived the codification”. (Jefferson
County Concluding Statement – Section IV.) It cites Potala Village, 183 Wn. App at 205, for
this proposition, asserting that the Court of Appeals concluded in that case that the common
law vested rights doctrine had been entirely abrogated by the vesting statutes enacted in 1987.
The county derides BDN’s contrary argument as BDN “hanging on by its fingernails” because
it is based solely on footnote 2 in the Snohomish case. This is not the situation at all.
APPELLANT’S SUPPLEMENTAL BRIEF - 2
999 THIRD AVENUE, SUITE 2525
SEATTLE, WASHINGTON 98104-4089
(206) 382-2600 FAX: (206) 223-3929
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2. The Washington Supreme Court has recognized the common law basis for the
vested rights doctrine, and has continue to apply it after the 1987 vested rights statutes
were enacted. Long after the enactment of RCW 19.27.095 and RCW 58.17.033, the
Washington courts have continued to recognize the common law and constitutional basis for
the Washington vested rights doctrine, and have continued to apply it to cases involving other
types of land use regulation apart from the traditional building permit situation. (East County
Reclamation Company v. Bjornsen, 125 Wash.App. 432 (2005): “The vested rights doctrine is
‘based on constitutional principles of fundamental fairness, reflecting an acknowledgement
that development rights are valuable and protectable property rights.’”)
Specifically, in Department of Ecology v. Theodoratus, 135 Wash.2d 582 (1998), the
Washington Supreme Court held that vested rights applied to a water right application to the
DOE, which was very clearly not a building permit:
George Theodoratus had a water right application approved by Ecology
for a development he planned to build. Id. Ecology's “Report of
Examination” approving his application had language purporting to create
a vested water right based on his development's capacity for water so long
as it was built by a particular date. …[We] held that the relevant statutes
and our common law left no doubt that Theodoratus's vested water rights
must be based on beneficial use—not system capacity. Id. at 590, 957 P.2d
1241. (emphasis supplied.)
The Potala Village panel of the Court of Appeals did indeed opine that it believed the
common law vested rights doctrine had been entirely abrogated by the statutes enacted for
building permits and subdivisions. To reach that conclusion, it examined the legislative
history of the vested rights statutes, and although the legislature did not explicitly state that
the statutes abrogated the common low doctrine, the Potala court concluded that because “the
legislature was aware of the common law origins of this doctrine, …[and] chose to codify the
vested rights doctrine, but only to the extent of building permits…”, the legislature must have
intended to entirely abrogate the prior common law. (Potala at 205.) This conclusion,
APPELLANT’S SUPPLEMENTAL BRIEF - 3
999 THIRD AVENUE, SUITE 2525
SEATTLE, WASHINGTON 98104-4089
(206) 382-2600 FAX: (206) 223-3929
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however, is directly contrary to the standards for statutory derogation of the common law as
applied by the Washington Supreme Court.
In Potter v. Washington State Patrol, 165 Wash 2d, 68 (2008), the Washington
Supreme Court gave a very succinct description of the very limited circumstances in which a
statute will completely abrogate the common law on which is may be based:
In general, our state is governed by the common law to the extent the common
law is not inconsistent with constitutional, federal, or state law. RCW
4.04.010.7. The legislature has the power to supersede, abrogate, or modify
the common law. See State v. Estill, 50 Wash.2d 331, 334–35, 311 P.2d 667
(1957); State v. Mays, 57 Wash. 540, 542, 107 P. 363 (1910). However, we
are hesitant to recognize an abrogation or derogation from the common law
absent clear evidence of the legislature's intent to deviate from the common
law. “It is a well-established principle of statutory construction that ‘[t]he
common law ... ought not to be deemed repealed, unless the language of a
statute be clear and explicit for this purpose.’ ” Norfolk Redevelopment &
Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Virginia, 464 U.S. 30, 35–
36, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (alterations in original) (quoting
Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 623, 3 L.Ed.
453 (1812) (emphasis supplied.)
In the Snohomish case, Division II of the Court of Appeals addressed the “purely statutory”
argument, and noted that:
The vested rights doctrine originated at common law, but the legislature has
codified the doctrine with regard to building permits (RCW 19.27.095(1)),
subdivision applications (RCW 58.17.033(1)), and development agreements
*329 (RCW 36.70B.180).7 A question exists as to whether the vested rights
doctrine now is purely statutory or continues to evolve in the common law.
The Supreme Court in Town of Woodway stated without discussion that “the
vested rights doctrine is now statutory.” 180 Wash.2d at 173, 322 P.3d 1219.
Division One of this court also has held that the vested rights doctrine is
purely statutory. Potala Vill. Kirkland, LLC v. City of Kirkland, 183
Wash.App. 191, 203–214, 334 P.3d 1143 (2014) (discussing the evolution
of the vested rights doctrine and applying its holding that the doctrine is
purely statutory). The appellants limit their arguments to the vested rights
statutes, and none of the parties argue that we should address any common
law vested rights doctrine. Therefore, we analyze only the vested rights
statutes.
Thus, the Court of Appeals stated that the statutes codified the vested rights doctrine only
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999 THIRD AVENUE, SUITE 2525
SEATTLE, WASHINGTON 98104-4089
(206) 382-2600 FAX: (206) 223-3929
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with respect to building permits and subdivision applications, and specifically declined to
address whether or not the entire doctrine was now purely statutory. Thus, when the
Snohomish case came to the Washington Supreme Court, it provided the perfect opportunity
for the Court to hold that the common law had been abrogated, if that was what the Court
concluded. But the Court specifically declined to so hold.
We contend that this was a very conscious decision by the Court not to foreclose the
application of the vested rights doctrine to situations, such as ours, that are clearly land-use
decisions, but do not fall within the traditional building permit or subdivision realm. The
Snohomish Court clearly stated that it viewed the key issue in vested rights analysis as
whether or not the matter was a land use decision that would be altered ex-post-facto by
changes in the applicable law. We contend the Court intended that such cases not be
foreclosed by the “purely statutory” argument, but rather that they be considered on their
merits on a case-by-case basis.
If our case is so considered, we contend it should be held to be subject to the vested
rights doctrine.
3. RCW 36.70B applies to this situation, and binds the County. This statute
applies to “any land use or environmental permit or license required from a local government
for a project action, including but not limited to building permits, subdivisions, binding site
plans, planned unit developments, conditional uses, shoreline substantial development
permits, site plan review, permits or approvals required by critical area ordinances, site-
specific rezones authorized by a comprehensive plan or subarea plan, but excluding the
adoption or amendment of a comprehensive plan, subarea plan, or development regulations
except as otherwise specifically included in this subsection.” RCW 36B.202 (4).
RCW 36.70B.070 requires that within 28 days after receiving an application, the
County must determine whether or not an application is complete, and to so notify the
applicant. If further provides at .070(4)(a) that “An application shall be deemed complete
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SEATTLE, WASHINGTON 98104-4089
(206) 382-2600 FAX: (206) 223-3929
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under this section if the local government does not provide a written determination to the
applicant that the application is incomplete as provided in subsection (1)(b) of this section.”
No such notice was ever provided by the County. Thus, it cannot now argue that the
JARPA it received was somehow incomplete.
Moreover, RCW 36.70B.180 is noted by the Snohomish Court as applying vested
rights to such applications, and such vested rights should be applied to BDN’s situation.
CONCLUSION
Yet again, a fair and accurate reading of Snohomish, and all of the cases cited by the
County, leads to the inescapable conclusion that the Snohomish Court would conclude that
vested rights apply to the BDN JARPA’s, such that no County Permit is, or can be required in
this case.
DATED this 15th day of December, 2017.
SIMBURG, KETTER, SHEPPARD & PURDY,
LLP
By: _____________________________________
Kenneth A. Sheppard, WSBA # 5899
Attorneys for Appellant BDN