HomeMy WebLinkAboutra2_051010
Xx:xx am Regular Agenda
Monday, May 10, 2010
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
FROM:
Board of County Commissioners
Philip Morley, County Administrator lv
AI Scalf, Director, Department of Community Development (D~
Stacie Hoskins, Planning Manager, DCD ~
Michelle McConnell, Associate Planner, D'CD@
May 10, 2010
TO:
DATE:
SUBJECT:
Comments to WA Dept. of Ecology on Locally Approved SMP re: Shoreline Master
Program (SMP) Comprehensive Update (MLA08-00475)
ATTACHED: Draft comment letter to Ecology with 3 attachments
STATEMENT OF ISSUE: The Board took formal action in December 2009 passing Resolution #77-09
that directs staff to send the 12-7-09 Locally Approved SMP (LA-SMP) to the WA Department of Ecology for
the final review and adoption process. The Jefferson County Department of Community Development
(DCD) sent the complete submittal packet to Ecology on March 1, 2010. Ecology is currently holding a
state-wide public comment period on the LA-SMP that ends May 11, 2010. Resolution #77-09 indicated that
the Board may opt to provide comment to clarify key issues. A draft comment letter addressing such is
presented for Board review and pending approval.
ANAL YSIS/STRATEGIC GOALS: The Locally Approved SMP is the result of significant efforts by the
Board, Planning Commission, DCD staff, consultants and two advisory committees. The public process
supporting local approval of the SMP was extensive including 12 months of formal review that followed
some two years of technical analysis and informal public participation. The Locally Approved SMP meets
state requirements while allowing significant flexibility for property owners in view of local circumstances.
The final review and adoption process includes the following key steps:
1. Complete submittal packet sent to Ecology
2. State comment period
3. County response to public comments
4. Ecology determination regarding consistency with WAC and RCW requirements
5. Possible negotiations on requested changes to LA-SMP
6. Final adoption by State
7. Final adoption by Board via ordinance
In Finding #147 in Resolution #77-09, Jefferson County made clear the issue of vesting was of interest and
noted that further clarification might be sought to ensure Site Plan Approval Advance Determinations
Board Agenda Request
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Xx:rx am Regular Agenda
Monday, May 10, 2010
(SPAADs) would vest to the codes existing at the time of approval. The draft comment letter proposes line-
in/line-out text revisions to address that issue, making clear the County's intention to allow SPAADs to vest
and provided supporting documentation. The draft comment letter also catalogues numerous typographical,
grammatical and other minor edits suggested to make the document more understandable and to aid
eventual implementation.
FISCAL IMPACT: Department of Ecology Grant #G0600343 funds expired June 30, 2009 and the contract
has been completed. QeD staffwork continues on the project is funded by the Departmenfs annual budget
No change is anticipated as a result of submitting comments to Ecology.
RECOMMENDATION: Staff recommends the Board 1) raview and approve the LA-SMP comment letter
and 2) direct staff to submit said comments to Ecology, ensuring they are received before the 5:00 p.m. May
ii, 2010 deadline.
sf6t:o
Date
Board Agenda Request
Page 2 of2
May 10, 2.010
WA Department of Ecology
Attn: Jeffree Stewart, Regional Planner
PO Box 47775
Olympia, WA 98504
SUBJECT:
Comments on Jefferson County Locally Approved Shoreline Master Program
Dear Mr. Stewart,
In light of the current state-wide open public comment period your agency is holding, please accept the comments
presented herein as support for the submittal Jefferson County made to you on March 1 of this year. We wish to
provide further clarity and suggestions for some minor edits to ensure our Shoreline Master Program (5MP) Is both
understandable to public and agency readers, and will be consistently and predictably implemented upon final adoption.
VESTING
The issue of vesting is one that has received significant public interest and is of particular concern to the Board. As
Indicated in Finding #147 of our December 7,2.009 Resolution #77-Q9, It is the intent of Jefferson County to recognize
and honor any issued permit or site plan approval which is vested to any code that precedes the soon-to-be adopted
new SMP. This position Is supported by:
. The state's vested rights doctrine (Hull v. Hunt 1958);
. Various Washington Supreme Court case law examples (list attached);
. The Jefferson County Prosecuting Attorney Office 12.-1-09 memo on vesting and Abbey Road (attached);
. Jefferson County's vesting ordinance found at Title 18.40 Section VII of the Jefferson County Code (JCC 18.40);
. Recent April 14, 2.010 Unified Development Code Interpretation Issued by our Department of Community
Development regarding HB 1653 and the relationship between state shoreline and critical area statutes
(attached);
. The Site Plan Approval Advance Determination (SPAAD) purpose and criteria provisions described at JCC 18.40;
and
. The proposed definitions for 'Site Plan Approval Advance Determination' and 'SPAAD' found at Article 2..S.30
and 2..S.37, respectively, of the Locally Approved SMP (LA-SMP).
To ensure SPAADs are recognized as a vesting approval, we suggest revising the general policy found at Article 6.1.A.3 of
the LA-5MP and the general regulation found at Article 6.1.0.7 of the LA-5MP to read as follows:
. 6.1.A.3. The County should recognize and honor buffers and setbacks established by existing plats. issued
permits and site olan approvals. and by development agreements that are consistent with RCW 36.70B.
. 6.1.0.7. The County shall recognize and apply a buffer or setback established by an existing plat. issued permit,
approved site plan. or a development agreement that is consistent with RCW 36.70B.
MINOR EDITS
As we, our citizens and our Department of Community Development staff have continued to review the LA-SMP, a
number of small typos and errors have been identified that we feel would be best addressed prior to final adoption.
Please consider the following suggested revisions:
Article Paae Line Section Edit
2 2-16 28 5. Fill Delete 'than' .
2-29 27 8. Nonconformina lot Line 27 - chanae 'as' to 'a'
2-29 29 8. Nonconforming lot After 'Program.' add 'Depth of lot is typically
measured from ordinary high water mark to
inside of frontage setback' for consistency with
Article 6.1.E
Revise to read '...means a commercial or
2-35 3-12 9. Recreation, shoreline oublic activitY intended...'
Add 'including single-family, multi-family, and
14. Residential creation of new residential lots by land division.'
2-35 35 deve/ooment after '...occuoancv.'
3. Water-dependent Change asterisk notation to indicate source =
2-44 3 use '**' WAC not '***' RCW
,
E.1.i The depth of the
6 6-6 34 lot... Chanae '6.1.D.5' to read '6.1.D.6'
E.1 Nonconforming
6-7 5 Lots Chanae '6.7.S' to '6.1.E.2'
6.4. Vegetation Revise to read 'Tree topping is prohibited when
6-19 32 conservation main stem/trunk is over 3" diameter.'
Move section to page 6-18 and renumber
6.6 Shoreline Setbacks accordingly to occur alphabetically between
6-22 and Heiaht Public Access and Veaetation Conservation
7 7-6 19 7.2.8.2 Aauatic Add comma between 'Diers floats'
7-11 40 11. Covered mooraae... Delete 'dock'
3.vii. Marinas shall be Revise to read Washington Department of
7-13 31 sited... Health auidelines and National Shellfish...'
H.2. The installation
7-16 6 and use of moorina... Revise to read '(NSSP) standards, and other...'
H.B. The County shall Revise to read 'mooring buoy density exceed
7-16 23 olan for... state... ,
B.4. Land division and Move 'or' to end of 4.iv. and capitalize 'Result'
8 8-25 28 boundarv line... for 4.v.
Revise to read'... or the
expansion/enlargement occurs vertically,
Expansion/enlargement laterally or landward, but not waterward, of the
10 10-B 28 of Nonconformlna structure. '
Aooendix A MaDs 2, 3, and 4 Delete 'Old' to read 'Fort Townsend State Park
We look forward to working further with your agency through the remainder of the final review and approval process.
Sincerely,
David Sullivan, Chair
Attachments (3)
Significant Case Law - Vested Rights
Page 1 of3
R-S
Munidpal Research and Services Center of Washington
Worklng 1bgether for Excellence in Local Government
Updated 10/9/09
Significant Case Law - Vested Rights
. Abbev Rd. GroUD. LtC v. City of Bonnev Lake. _ Wn. 2d _ (2009). After the developer applied
for site development plan review but before applying for a building permit, the city council passed an
ordinance rezoning the subject property to a zoning category that precluded the sort of multifamily
development the developer sought to construct. Concluding that Erickson & Assocs., Inc. v.
McLerran, 123 Wn.2d 864 (1994), was controlling and upholding a prior court of appeals decision,
the state supreme court held that the developer, having failed to file a building permit application,
did not have vested rights In the prior zoning. The court determined that the developer was not
prohibited by the city code from submitting a building permit application at the same time as
applying for site development plan review.
. East County Reclamation Co. v. Blomsen, 125 Wn. App. 432, review denied, 155 Wn.2d 1005
(2005). Vested rights are not walvablei a developer cannot selectively benefit from old and new
regulations. If an applicant wishes to take advantage of a change In the law allowing a previously
prohibited use, It may do so by withdrawing Its original application and submitting another, but It
may not select which laws will govern Its application.
. Westslde Bus. Park. LtC v. Pierce County, 100 Wn. App. 599, review denied, 141 Wn.2d 1023
(2000). Because the county accepted the developer's short plat application as complete and knew of
the developer's Intended use for the plat, RCW 58.17.033 vested the developer's right to have the
storm water drainage ordinance In effect at the time of Its short plat application apply to that
application.
. New Castle Investments v. City of La Center. 98 Wn. App. 224 (1999), review denied, 140 Wn.2d
1019 (2000). RCW 58.17.033 does not apply to transportation Impact fees of a city because they do
not fall within the definition of "land use control ordinances."
. Weverhaeuser v. Pierce County, 95 Wn. App. 883 (1999). A developer'S submission of an application
for a conditional use permit vests the developer with the right to use and develop the property In the
manner dIsclosed In the application according to the land use laws and regulations In effect on the
date the application was filed.
. Phllllas v. Kln>J County. 136 Wn.2d 946 (1998). Although a new surface water drainage code was
adopted by King County In 1990, It did not apply to the Challenged project because the project was
vested to the prior code pursuant to RCW 58.17.033.
. Rhod-A-Zalea v. Snohomlsh County. 136 Wn.2d 1 (1998). While nonconforming uses cannot be
prohIbIted under new zonIng ordInances, they are still subject to reasonable regulations under a
city's police power to protect the public health, safety, and welfare.
. Noble Manor v. Pierce County, 133 Wn.2d 269 (1997). Under RCW 58.17.033, a developer's
submission of a completed short plat appllcatlon vests the developer with the right to divide the
property and develop It In the manner disclosed In the application according to the land use and
zoning laws In effect on the date of submission.
. Hale v. Island County, 88 Wn. App. 764 (1997). The county had established a two-step rezone
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process, and the developer obtained preliminary approval (the first step) for a rezone. Before final
approval, the growth management hearings board Invalidated the zoning provisIons under whIch
prelimInary approval had been granted. The court held that when local regulations provIde that a
rezone may be granted under a two-step procedure Involving (1) preliminary use approval and (2)
final site plan approval, a rezone applicant's rights vest upon preliminary use approval If preliminary
use approval binds the local jurisdiction to the rezone dedslon. Under RCW 36.70A.250, a growth
management hearings board may Invalidate land use regulations prospectively only.
. Schneider Homes v. atv of Kent. 87 Wn. App. 774 (1997), review denied, 134 Wn.2d 1021 (1998).
When the developer submitted Its preliminary plat application to the county, It became entitled to
have not only that application, but also Its companion PUD application, considered under the county
ordinances then In effect, and even though the land was annexed by a dty In the Interim.
. Thurston County Rental Owners Assn. v. Thurston County, 85 Wn. App. 171, review denIed, 132
Wn.2d 1010 (1997). A constructlon permit to build a new septic system does not allow an owner to
use the system where the board of health also requires septic system owners to obtain operation
permits In order to use their systems. Because a construction permit alone does not authorize the
use of a septic system, reqUiring an operation permit does not deprive owners of a vested right.
. Matson v. Clark County Bd. of Comm'rs, 79 Wn. App. 641 (1995). The adoption of Interim zoning
controls and moratoriums under RCW 35.63.200 does not violate the vested rights doctrine.
Although the county may not change the rules applicable to an already submitted application, It may
enact a moratorium on new appllcatlonsj and, In changing zoning rules, the county may enact
emergency rules without a public hearing to prevent subsequent development applications from
rendering the changes moot.
. Erickson & Assocs.. Inc. v. McLerran. 123 Wn.2d 864, 876-77 (1994). The court held that, "[w]lthln
the parameters of the doctrlne established by statutory and case law, municipalities are free to
develop vesting schemes best suited to the needs of a particular locality." The dty's master use
permit process, which allows vesting either when the developer submits a complete building permit
application or when the City earlier Issues a master use permit without a buildIng permit application,
comports with the vested rights doctrine.
. FrIends of the Law v. Kina County, 123 Wn.2d 518 (1994). In the absence of an ordinance specifying
the requirements for a "fully completed" preliminary plat application, a developer's good faith
attempt to comply with the ambiguous terms of existing ordinances may be suffldent to vest the
.appllcatlon upon Its submission under RCW 58.17.033.
. Adams Y. Thurston County. 70 Wn. App. 471 (1993). A munldpal ordinance requiring that a final
environmental Impact statement (ElS) be completed before a previously submitted preliminary plat
application Is deemed a fully completed application for purposes of determining when development
rights vest conflicts with RCW 58.17.033(1), which vests development rights on the date a complete
and legally suffldent preliminary plat application Is submitted, and Is Invalid. The Induslon of an EIS
as a contingent requirement for a fully completed plat application would violate the Intent of RCW
58.17.033 and frustrate the purpose of the vesting rule.
. Valley VIew Indus. Park Y. Redmond, 107 Wn.2d 621 (1987). The state supreme court applied the
exception to the vested rights rule that was developed In Parkrldge Y. Seattle., 89 Wn.2d 454 (1978).
The court determined that the exception applied because: (1) the developer diligently and In good
faith attempted to obtain building permits; (2) dty officials explldtly frustrated the developer'S
attempts; and (3) as a result, the developer's building permit applications were Incomplete.
. Victoria Tower P'shlD v. City of Seattle, 49 Wn. App. 755 (1987). The court held that the vested
rights doctrine applies to SEPA polldes.
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Significant Case Law - Vested Rights
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. West Main Assocs. Inc. v. Cltv of Bellevue. 106 Wn.2d 47 (1986). The dty's ordinance prohibited the
filing of a building permit application for any proposed project until after several approvals are
obtained. The court held that the ordinance upsets the vesting doctrine's protection of a dtlzen's
constitutional right to develop property free of the "fluctuating policy" of legislative bodies by
delaying the vesting point until well after a developer first applies for project, thus reserving for the
dty an almost unfettered ability to change Its ordinances In response to a developer's proposals.
. Uncoln Shiloh Assec.. Ltd. v. Mukilteo Water DIst.. 45 Wn. App. 123, review denied, 107 Wn.2d 1014
(1986). Vested rights that follow upon the filing of a building permit application do not apply to a
utility's connection charge.
. Ailenbach v. Cltv of Tukwila. 101 Wn.2d 193 (1984). An applicant for a building permit has a vested
right to have the application considered under the zoning regulations In effect at the time the
application Is filed, regardless of the existence of an enacted but not yet effective zoning change that
makes the development a nonconforming use.
. Teed v. Kina County. 36 Wn. App. 635 (1984). The vested rlg9ts doctrine Is not applicable to a
rezone request .
. parkridae v. Seattle, 89 Wn.2d 454 (1978). The court created In this dedslon a limited exception to
the requirement of completeness of building permit applications for vesting purposes, where the
developer makes diligent attempts to complete the application prior to the zoning change but Is
obstructed by the local government.
. Ford v. Beliinqham-Whatcom County Dist. &t. of Health. 16 Wn. App. 709 (1977). A property owner
has a right to obtain a septic tank permit under existing septic tank regulations when the owner
makes a valid application for a septic tank permit.
. Talbot v. Gray. 11 Wn. App. 807 (1974). Vested rights apply after the filing of an application for a
substantial development permit under the Shoreline Management Act.
. Juanita Bay Valley Comm'tv Ass'n Y. Kirkland. 9 Wn. App. 59, review denied, 83 Wn.2d 1002 (1973).
As with a building permit application, the vested rights doctrine extends to grading permits.
· Beach v. Board of Adjustment, 73 Wn.2d 343 (1968). Vested rights apply after the filing of an
application for a conditional use permit.
. Hull v. Hunt, 53 Wn.2d 125 (1958). Deviating from the majority rule, the state supreme court
stated: "we prefer to have a date certain upon which the right vests to construct In a=rdance with
the building permit. " The court determined that vested rights are established upon the filing of a
building permit application If It Is consistent with the zoning ordinances and building codes In force at
the time of application The permit applicant does not have to be the property owner for this rule to
apply.
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JUELANNE DALZELL
Jlll'l'tiKSON COUNTY PROSECUTING ATTORNEY
Cwrthouse- P.O. Box 1220
Port Townsend, Washington 98368
Telephone (360) 385-9180 - FAX (360) 385-9186
.........1lCQrJTfA!Nt-Ntt'RlWJllal:\tWo\tftlmQH
David W. Alvarez, Deputy Prosecutor
Rafael E. Urqula, Deputy Prosecutor
Tom Brotherton, Deputy Prosecutor
Scott w. Rosekrans, Dep"o/ Prosecutor
Oleryl POlebnya. Deputy Prosecutor
Christopher R. Ashcraft, Deputy Prosecutor
Lianne Perron-Kossow, Victim Advocate
NOT CONFIDENTIAL
To:
From:
Re:
Date:
County Commissioners, County Administrator, DCD, Citizens
David Alvarez, Chief Civil DP A
Vesting and the Abbey Road, LLC case from the State Supreme Court
December 1, 2009
DISCLAIMERS:
· Provided here are general information and the opinion of one attomey.
. Reliance upon this document and its contents is at the risk of the reader.
· Jefferson County is making no representations through this document and expressly
rejects any assertion to the contrary.
. Nothing in this document shall guarantee a particular land use development proposal or
application or any category ofland use development proposals or applications a particular
result or a particular benefit.
· No attorney-client relationship is created between the reader and the undersigned as a
result of this document.
· This memo is NOT intended to be a comprehensive study of all facets of the vested rights
doctrine and is more narrowly tailored to discuss the Abbey Road, LLC case decided by
the State Supreme Comt on October 8, 2009.'
The undersigned has been asked to describe. for the elected officials, County staff and the
public the significance of the Abbey Road LLC v. City of Bonney Lake (Supreme Ct., 80878-3,
10/8/09) case with respect to the vested rights doctrine in general and with respect to the
J I am aware of one law review article that attempts to cover all facets of the vested rights doctrine. See
"Washington's Vested Rights Doc1rine: How We Have Muddled a Simple Concept and How We Can
Reclaim it" by Roger D. Wynne. (Seattle Vniv. Law Review, Winter 2001,88 p.) Mr. Wynne now
works for the City of Seattle City Attorney's Office. That law _Iew article mentions a 8eQOnd article on
this topic by Greg Overstreet & Diana M. Kirchheim entitled "The Quest for the Best Test to Vest:
Washington's Vested Rights Doctrine Beats the Rest,"23 Seattle U. Law Review 1043 (2000). Atthe
time Overstreet and Kircheim were in the employ of the Building Industry Association of Washington.
VESTING and the Abbey Road, LLC case
December 1.2009
Page 2
County's development regulations found in County Code at Title 18. Since the Beatles recorded
at Abbey Road studios I feel safe in adding that the vested rights doctrine has gone down a
"Long and Winding Road" since it was first made the law of this state by the Sopreme Court in
1954. See SffIte ex reL Ogden v. City 0/ Bellevue,45 Wn. 2d 492. 275 P. 2d 899 (1954).
1. What led the SffIte Supreme Court to fU"8t arliculaJe the vested rights doctrine?
The doctrine arose originally in the context of a building permit when a developer had to
obtain a writ of mandamus from a court, said writ serving to mAntlAte a municipality to issue the
building permit. The Ogden court reasoned that if the building permit application was complete
and if the proposed use or strUCture was lawful when compared to the applicable local codes.
then the local government had a ministerial duty to issue the building permit, i.e., it had no
discretion to not issue the building permit. Not only was the applicant vested to the codes in
effect when the application for its lawful proposal was complete but it was also entitled to
issuance of the building permit
2. Aren't being vested and being grandj'athered synonyms/or one another?
No. Do not confuse the vested rights doctrine with grandfathering, although it is easy to
do so. While both rely on a date certain to create certain legal rights they arise in quite different
contexts and they are, at most, "kissing cousins" of one another. See the chart below:
Grandfathering
,-
Pennlttlng
process-no use yet
in lace.
A lawful use that
already is in place.
, i~~ I, ~~.
Freezes the development regulations applicable to a
particular application.
. A lawful use is made non-conforming
("grandfathered") as to the controlling development
regulations because of a code change adopted into
law after the lawful use began.
. The legal non-confonning use is a property right that
may continue to exist after the subsequent change in
the a llcable code.
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VESTING and the Abbey Road, LLC case
December 1,2009
Page 3
. A legal non-conforming use is not favored in the law
and can be deemed abandoned in certain
circwnstances.
. An expansion of the non-conforming use can be
limited by the aonlicable code.
3. Returning to the vested rights doctrine what public policy rationales support it?
There are two rationales for the doctrine according to attorney Wynne. One, as described
in the Ogden case, is that it reflects nothing other than what a local government is mandated to
do since there is, for example, no authority for a local government to not issue a building permit
based on a complete application seeking to undertake a legal use or development. The other
rationale, according to Wynne, for the vested rights doctrine is what he calls the
certainty/fairness rationale. The lead opinion in tfbbey Road put it this way: "By promoting a
date certain vesting point, our doctrine ensures that 'new land-use ordinances do not unduly
oppress development rights, thereby denying a property owner's rights to due process under the
law.' Citation omitted." (slip op. p. 7-8). There has to be a balance between "the public's
interest in controlling development and the developers' interest in being able to plan their
conduct with reasonable certainty." (slip op. p. 8).
4. What has happened to the vested rights doctrine since 1954?
Well, among other things, it has been extended to cover many more permitting situations
than merely a complete application for a building permit. The doctrine was used to support the
rejection of septic applications made after adoption of a on-site septic code in 1972 when those
same septic applications would have been approved if made before code adoption in 1972.2
Similarly, the vested rights doctrine was extended in 1968 to include conditional use permits
2 "We are persuaded by analogy to the foregoing cases that where a property owner has a right to
obtain a septic tank permit under existirig septic tank regulations, to the extent that such a right can vest, it
does not do so until the owner actually makes a valid application for a septic tank pennit. Since the septic
tank regulations here in issue were adopted in 1972, and the permits were not applied for until 1973, the
owners had no legally cognizable vested right to the issuance of septic tank permits." Ford v.
Be//Jngham-Whatcom County Dlst. Bd. of Health, 16 Wn. App. 709, 715, 5S8 P.2d 821, 826 (1977)
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VESTING and the Abbey Road, LLC case
December I, 2009
Page 4
where the applicant had to go to a second hearing (due to lack of a verbatim record from the first
hearing) but the court was clear that the code in place at the first hearing must be applied to the
decision arising frQl1l the second hearing.3 The same holds true for shoreline permit applications
such that a shoreline substantial development permit that was filed before the effective date of
Seattle's first Shoreline Master Program was deemed valid by the court because it was not
required to comply with the noticing provisions of the city's later-enacted SMP.4 The vested
rights doctrine was also made applicable to subdivision applications through a contorted case
known as Norco Constr., Ine. v. King Cty., 29 Wn. App. 179,627 P. 2d 988 (1981), ajflrmed as
modUkd, 97 Wn. 2d 680,649 P. 2d 103 (1982).
But then the courts retreated from finding the vested rights doctrine applicable in contexts
other than those described above. The Supreme Court ruled in Valley View Indus. Park v. City
01 Redmond, 107 Wn. 2d 621,733 P.2d 182, 193 (1987) that the vested rights doctrine was not
applicable to binding site plans. There the majority opined: "As a general principle, we reject
any attempt to extend the vested rights doctrine to site plan review." Id., 639.
All of this. to say that the courts have, as attomey Wynne points out, muddled this vested
rights doctrine, causing the State Legislature to jump in and attempt to provide some
clarification, without much success. Two legislative "fixes" were enacted into law in 1987.
5. What "j1.XeS"were enacted in 1987 with respect to the vested rights doctrine?
There were two legislative enactments in 1987 that attempted to memorialize the vested
rights doctrine. One, in essence, memorialized precisely the Ogden set of facts:
19.27.095. Building permit applicationuConsideration" Requirements
"(1) A valid and fully complete building permit application for a
structure. that is permitted under the zoning or other land use control
ordinances in effect on the date of the application shall be considered
3 "The order of the trial court is modified with instructions to remand to the Board for a rehearing at
which the zoning code which was in force at the time of the filing of the application shall apply." Bench
v. Board of AdjustmenJ ofSnohom/sh County, 73 Wn.2d 343, 347.438 P.2d 617, 620 (1968).
4 Talbot v. Gray, II Wn. App. 807, 525 P.2d 801 (1974).
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VESTING and the Abbey Road, LLC case
December 1, 2009
Page 5
under the building permit ordinance in effect at the time of
application, and the zoning or other land use control or<JinAJ'l"llS in
effect on the date of application.
(2) The requirements for a fully completed application shall be defined
by local ordinance but for any construction project costing more than
five thousand dollars the application shall include, at a m;njJYIum:
"
.......
The second legislative enactment from 1987 relating to the vested rights doc1rine was an
amendment to the 1969 Subdivision statute, and is codified at RCW 58.17.033:
58.17.033. Proposed division ofland"Consideration ofapplication for
pl'E'Hm;.....ry- plat or short plat approval" Requirements defined by local
ort1;nan~
"(1) A proposed division ofland, as defined in RCW 58.17.020, shall be
considered under the subdivision or short subdivision ordinance, and
zoning or other land use control ordinances, in effect on the land at the
time a fully completed application for preHmin..ry- plat approval of the
subdivision, or short plat approval of the short subdivision, has been
submitted to the appropriate county, city, or town official.
(2) The requiremente for a fully completed application shall be defined
by local ordinance."
Therefore, the applicant and the regulators working for a local govenunent face two essential
questions when determining if and when the vested rights doc1rine applies.
The first is what must be done to make the application complete for purposes of this
doc1rine? One way for an application to gain the status of "complete" is through a default
process: the application is submitted to the county or city and the local govenunent fails to
inform the applicant within 28 days of submission that the application is, in fact, incomplete.
RCW 36.70B.070(4)(a) states that in those circumstances the application must be deemed
complete by the local govenunent and DeD, when such a default occurs, marks the submission
date as the date when the application vested. The other method to get to the status of
"complete" is to file an application that meets all the requirements of the Jefferson County Code,
be it, for example only, JCC ~18.25.s10(1) (shorelines permits), JCC ~18.35.100 (short plats), or
5
VESTING and the Abbey Road, LLC case
December 1, 2009
Page 6
JCC ~18.35.280 (long plats). The reader can note that a "substantially complete'" application
will gain the statUS of vested in accordance with case law not listed here and RCW
36.70B.070(2). This memo will use the shorthand of "complete" to include any application that
earns the statUS ofvested.
The second question is what does the applicant vest to, i.e., what type of subsequent code
changes is the applicant "immunized" against? Courts have had to define the answers to this
question because it is not always clear what is or is not a "zoning or other land use control
ordinance. "
By way of example only, the Supreme Court ruled that an application protected by this
doctrine gives the developer the right to both subdivide its property AND the right to develop the
property as proposed in the vested application. See Noble Manor Co. v. PleI'Ce County, 133
Wn.2d 269, 943 P.2d 1378 (1997). The Supreme Court reasoned that to hold otherwise, i.e., to
rule that while the developer in Noble Manor could subdivide, it also had to comply With the
newer code provision that limited its maximum density would offer the developer no protection
thus rendering the doctrine meaningless. This same principle was applied to a combination
preliminary plat and PUD application to allow development of the PUD in AssocioJion of Rural
Residents v. Kltsap Coanty 141 Wn. 2d 185,4 P.3d 115 (2000) because the dual application was
protected by the doctrine. Conversely, an applicant is not immunized by the doctrine against
impact fees, because impact fees do not affect physical aspects of a development, and. therefore,
they are not "land use control ordinances;" rather, the impact fees simply add to the cost of a
project, and the vested rights doctrine does not protect the developer against such additional cost.
Belleau Woods H, LLC v. CIty ofBelllngham, 150 Wn. App. 228, 208 P.3d 5 (2009).
6, Fusclnating us all of this is, dJdn't you say you would discuss the Abbey Road cuse?
Context, dear reader, is crucial to any analysis of the Abbey Road case which relies
heavily on RCW 19.27.095 in ruling against the developer. Abbey Road, LLC proposed a 575-
unit condominium within the city limits of Bonney Lake, a local government lacking what the
Supreme Court called a "vesting ordinance." The dates of certain events end up being quite
6
VESTING and the Abbey Road, LLC case
December 1, 2009
Page 7
important for any understanding of this case. Hera are those dates laid out graphically for ease
of review.
Sept. 13,2005
Sept. 13,2005
Yes, tbe same
dal
Oct. 12,2005
,.
. Applicant's representatives attended a preapplication meeting with the
City.
. The City warned the applicant "orally and in writing that site development
review would not vest rights in the existing commercial zoning." (slip op.
p.3)
. Presumably this warning was issued in accordance with Valley View
Indus. Park v, City of Redmond, 107 Wn. 2d 621, 733 P.2d 182,
193 (1987), which refused to apply the vested rights doctrine to binding
site lans see 4 above.
Abbey Road, LLC submits a site plan application but does not submit a
buildin 't lication.
Bonney Lake City Council passes "an ordinance rezoning the subject property
to ResidentiallConservation District, a zoning category precluding Abbey
Road's multifamil develo ment." sli .. 3
City's Planning Director notified Abbey Road, LLC that its project had not
vested under the earlier ordinance because the applicant had not submitted a
buil . II lication and the site Ian lication was therefore denied.
"
June 15,2005
From there it began to climb its way up the quasi-judicial and judicial ladder:
Superior Court
Upholds Planning Director finds that in the absence of a building
permit application Abbey Road, LLC is not protected by the
doctrine.
Abbey Road, LLC appeals via LUP A and the tria1 court reverses the
Hearin Examiner, findin for the a licant.
Reverses Superior Court, finds that Abbey Road LLC development
rights did not vest absent a building permit application per the state
law found at RCW 19.27.095.
HearingExanUner
Court of Appeals
And so it reached the State Supreme Court.
7
VESTING and the Abbey Road, LLC case
December I, 2009
Page 8
7. Flnallyl What was the ruling of the State Supreme Com?
By a convoluted (see below) 5-4 decision the Supreme Court agrees with the Court of
Appeals that in the absence of a building permit application by Abbey Road, LLC that applicant
was NOT protected by the vested rights doctrine. But the decision deserves a closer look.
8. Why does the decision require a closer look?
The decision requires a closer look becauSe it contains two propositions lIgleed to by
different majorities of the State Supreme Court. Note well that only three Justices supported the
lead opinion finding against the applicant and that holding achieved a majority of five only
because two other Justices concurred "that development rights do not vest with the fiUng of a site
plan application." (J. Madsen concurring, slip op., p. I). Separately, there were six Justices
who railed against the permit application system that the City of Bonney Lake had in place, the
four dissenters and the two concurring Justices.
9. What dismayed the six Justices a/Jout the pennitting process in Bonney Lake?
The six Justices who scolded the City of Bonney Lake for a possible unconstitutional
permitting system did so because they found that a reasonable reading of the City's code would
lead to the conclusion that the City and not the applicant was in control of when vesting would
occur.s A permitting system where the local government (rather than the applicant) controls
when vesting would occur was struck down in West Main Associates v. CiJy of Be/levue, 106
Wn. 2d 47, 52-53, 720 P. 2d 782 (1986). Under the unconstitutional Bellevue system an
applicant lacked any authority to submit a building permit application (and thus could not vest)
until many other city approvals were in place such as exhaustion of administrative remedies,
design review approval by the planning commission, conditional use approvaI. site plan review
approval and others. In sum, the City of Bellevue could constantly "move the goal posts" or, to
$ Here is how Justice Madsen stated the problem in her concurring opinion at p. 3: "Abbey Road
correctly points out that Bonney Lake's process, according to its checklist, can be read to require approval
of a site development as a prerequisite to filing a buildlng pennit application."
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VESTING and the Abbey Road, LLC case
December 1, 2009
Page 9
continue the football metaphor, not even build the goal posts and by this failure to act prevent an
applicant from ever vesting through submission of a complete building permit application.
10. So if six Justices crlticlzed the Bonney Lake 5YSfem how did Abbey Road LLC lose?
Five Justices (in the lead opinion and the concurrence) came to the conclusion that
nothing in the Bonney Lake code ever prevented Abbey Road LLC from submitting a building
permit application concurrently with its site plan application. The five Justices therefore ruled
that the facts before them in the Abbey Road case were more akin to a different case, Erickson &
Associates,Inc. v. McLerran, 123 Wn. 2d 864, 872 P. 2dl090 (1994), a case which simply
reaffirmed RCW 19.27.095(1), i.e.. vesting occurs no later than when a building permit
application is submitted and not before. The majority and concurrence rejected the request of
Abbey Road, LLC to find that an applicant can vest upon the filing of a site plan application.
Those same five Justices also rejected any argument that because Abbey Road, LLC spent at
least $96,000 (the dissent states the number is $228,000) in preparation of its site plan
application said investment ''represents a level of commitment that entitles it to a vested right
and is sufficient to deter permit speculation." (majority slip op. p. 10). The lead opinion
pointed out that if such a rule was followed, then bigger projects would vest earlier than smaller
ones depending on the costs involved in getting to some stage within the permitting process prior
to building permit applications.
Justice Sanders; writing the dissent, strongly argued that since the Bonney Lake building
permit application form required attaching six copies of an already approved "Type 3 site
development plan," i.e., a City of Bonney Lake approval, the Bonney Lake code was as
unconstitutional as the one rejected in West Main Associates v. City of BeUevue. Why?
Because, according to Justice Sanders, the city and not the applicant had full control of when
vesting might occur. While he got a sympathetic ear from the 2 concurring Justices he could not
get a fifth vote to reverse the Court of Appeals and rule for the applicant, Abbey Road, LLC.
9
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December 1, 2009
Page 10
11. What should we take away from the two holdings in Abbey Road?
The undersigned sees three lessons to be learned from Abbey Road. although the case is
not that radical since the ruling against Abbey Road, LLC merely reaffirms that RCW
19.27.095(1) controls when the local government does not have a "vesting ordinance." That
being said, there are some lessons to be learned:
a) If the local government so chooses, then it can adopt within its
development regulatiollB a system where vesting occurs earlier than
(or via a different triggering event than) the date when a complete
building permit application is submitted;6
b) However. in any event. vesting for the applicant must occur NO
LATER THAN the submission of a complete b'lilrling permit
application; and
c) All local governments, including this County. cannot burden the
building permit application process with any requirements that cannot
be satisfied by the applicant, for example, requiring the applicant to
obtain another permit from the county or city cannot be a mandatory
Prerequisite to later submitting an application for a building permit.
A conversation with the UDC Administrator indicates that Jefferson County does not place
preconditions on applying for a building permit, although proof of potable water and an
approved on-site septic system are prerequisites for obtaininll the buiJdin" nennit. But, most
importantly, proof of an adequate OSS is not a barrier in this County to submitting a building
permit application. Proof of potable water is required at the time of the building permit
application but obtaining same is within the control of the applicant rather than the County.7 In
that regard this county does not have West Main Associates problems with its developznent
regulations.
6 The lead opinion .concluded on p. 2 of the slip opinion that the City of Bonney Lake had not enacted
such a vesting ordinance. The four dissenting Justices implicitly disagreed with that conclusion.
7 See JCC ~ 18.40.1 00(1). Proof of portable water is usually obtained through either a letter from a
water purveyor stating a hook-up is available or through proof that an individual well has suffICient flow.
10
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December 1,2009
Page 11
12. What is a "vesting orditumce?"
As best I can tell the courts have not defined this term. However, after reading Erickson
& Associates, Inc. v. McLerran, 123 Wn. 2d 864, 872 P. 2d 1090 (1994), where Seattle adopted
what appears to be the first "vesting ordinance," I assert the best definition of a vesting ordinance
is any development regulation enacted by a local government that moves the vesting date to a
date or time prior to (or separate from) the date when a complete building permit application is
submitted to the local government. Recall that in Abbey Road all of us were reminded that
vesting must occur no later than the time when a complete buIlding permit application is
submitted and the applicant must have the sole capacity to achieve the status of "vested."
The Seattle vesting ordinance challenged in the Erickson & Associates, Inc. case allowed
for vesting to occur both at the traditional time (upon submission of a complete building permit
application) AND at the time when a "Master Use Permit" (or "M.U.P.") was approved by the
Seattle Hearing Examiner. An applicant could submit a M.U.P. application at any time and it
did not need to be accompanied by a building permit application. Seattle's vesting ordinance
was found to be constitutional and not violative of the due process rights of the applicant
primarl1y because the applicant always controlled when vesting would occur. The applicant
could either go the traditional route and submit a building permit application or they could take
their M.U.P. to a public hearing before the Hearing EJeAmiJ1\lT and upon approval of said M.U.P.
be vested. Erickson's argument that the M.U.P. application vested' upon submission (rather than
at the time it was approved) was rejected by the State Supreme Court presumably because Seatt1e
was offering an optional route and had left control of when vesting would occur through the
M.U.P. process to the applicant. And in no event would vesting occur under the Seattle scheme
any later than the date when the complete building permit application was submitted to that city.
13. Does the Jefferson County Code contain a "vesting ordinance?"
Our Code does contain a "vesting ordinance" as I have defined that concept above. It is
entitled "Site Plan Approval Advance Determination" (or "SPAAD'') and is found at Article VII
of Chapter 18.40 JCC, Sections .410 through .480 inclusive. In JCC ~18.40.460 the reader learns
11
VESTING and the Abbey Road, LLC case
December 1, 2009
Page 12
a SPAAD is good for five years. At JCC ~18.40.470 the Code describes the limits of what the
appliclint with an approved SP AAD is vested to, specifically stating that a SP AAD does not
protect its owner against subsequent changes to state and federal law, nor, in reality, could it.
Furthermore, the SP AAD is not a guarantee that the specific plans of an applicant will work
when they are implen1ented or attempted at the site covered by the SP AAD, i.e., placing an ass
drainfield at a particular location as part of a SP AAD application cannot assure that the location
chosen on the application will work at the site.
In sum, the SPAAD provisions are a constitutionally-valid "vesting ordinance." Why?
Because obtaining an approved SP AAD application is entirely within the control of the applicant
and generally, if not universally, it occurs before a building permit application.
14. Will an approved SPMD be vested to the current SMP, Ch. 18.25 JCC, if it Is
approved before the County enacts the updated SMP?
This question is one of the questions posed of the County Commission by the Jefferson
County Association of Realtors. The answer to the question turns on text found in JCC
~ 18.40.470 entitled "Limitations on approval," In part that County Code section states:
"any proposal granted a [SPAAD] shall not be immune from changes in
state or federal laws which are enacted or have an effective date after
date of the [SPAAD] and which may affect the performance and
implementation of the site plan and associated use or activity."
Since it is clear that the new SMP could "affect the performance and implen1entation" of what an
applicant might propose, the only unanswered question is whether the SMP is a "state or federal
law."
It appears that the SMP of any local government is a state regulation according to a 1987
decision of the State Supren1e Court entitled Orion Corp. v. State, 109 Wn. 2d 621, 747 P.2d
1062 (1987):
"[9] In developing the SCSMMP, the County acted under the direction
and control of the State. State regulations required the County to give
preferences to certain uses. WAC 173-16-040(5). As to estuaries, the
regulations suggested that such lands should be left in their natural
12
VESTING and the Abbey Road, LLC case
December 1,2009
Page 13
state. WAC 173-16-050(5). No one has alleged that SCSMMP
requirements for issuing a conditional use permit differed in any
substantial way from the. WAC guidelines. Moreover, the SCSMMP
became effective only when adopted or~()ved .l>~e. State
~~co.!2lP." RCW 90.58.090.lltr1>l!Bdo_' ~C8fP
.. . ~.egGi~ *644 Harvey v. Board of County Comm?s, 90
Wash.2d 473, 584 P.2d 391 (1978); Friends and Land Owners Opposing
Development v. Department of Ecology, 88 Wash.App. 84, 684 P .2d 765
(1984). Because the County acted at theinstance of and, in some
material degree, under the direction and control of the State, an
, agency relationship developed between the parties. See Hewson
Constr., Inc. v. ReiJJtree Corp., 101 Wash.2d 819,823,685 P.2d 1062
(1984). As the principal of an agent acting within its authority, the
State must take full responsibility if a taking occurred. See, e.g., Tyler
v. Grange Ins. Ass'n, 3 Wash.App. 167, 473. P.2d 193 (1970).
Consequently, we reverse the trial court and dismiss the County from
this action." Id. 643-644. (highlight supplied by this author.>
The reader can note that the acronym "SCSMMP" stands for Skagit COlUlty Shoreline
Management Master Program."
If the SMP is a state regulation because of the Orion case, then it is presumably also a
state law, which is a broad term that in the mind of this author includes state statutes (RCW) and
state regulations (WAC). I reach that conclusion because state regulations fOlUld in ,the WAC
have the effe.ct of law. That is to say WAC provisions control and direct our behavior and
flouting them has consequences, civil and criminal, and therefore I would include state .
regulations under the larger umbrella phrase "state law."
Therefore, my further conclusion could be that an applicant (whose property is within the
shoreline jurisdiction) with an approved SP AAD that does NOT have an accompanying complete
building pennit application would be subject to the updated or new SMP once the updated SMP
is enacted.s BUT, and this is crucial, Jefferson County and DeD have always acted upon and
8 Recall that the proposed SMP goes through a two-step process. Initially, the proposed SMP is locally
approved and sent to the State Dept. of Ecology, who must approve, conditionaJIy approve or reject the
SMP. Upon approval by Ecology the SMP is "returned" to the County and the County enacts the SMP as
a development regulation with regulatory effect. See RCW 90.58.090. That enactment date is when the
new SMP would be potentially applicable to land use development applications.
13
VESTING and the Abbey Road. LLC case
December I, 2009
Page 14
implemented the opposite premise: that an approved SP AAD for an application within the
shoreline jurisdiction is vested to the SMP then in effect, this despite the confusion that a cursory
reading ofOrlon and ICC fiI8.40.470 might create in that regard.9
In light of the possible confusion described above, the proposed SMP makes it clear in
Article 2 (Definitions) that a SPAAD vestS to the current version of the SMP. The County
Commission, although not making a change in the text of Article 6 of the proposed SMP at this
late date, may choose to comment to Ecology that Article 6.1.0.7 (p. 6-5) of the new SMP needs
additional text to reflect the Commission's intent. The additional text would state that an
applicant having a parcel within the shoreline jurisdiction who holds an approved SP AAD vests
to the then-existing SMP, thereby memorializing the County's current policy.
However, there can be no doubt that submitting a complete building permit application
would vest that applicant to the current SMP in accordance with RCW 19.27.095(1). This is true
whether or not the applicant also has an approved SP AAD.
Also note that an approved SP AAD where the subject property is not within the shoreline
jurisdiction is certainly vested to all of the provisions of Title 18 (also known as the Unified
Development Code) then in effect. Such a statement is true because there can be no question that
the applicable ordinances are all local in nature and thus, pet JCC ~18.40.470, vesting is
applicable.
15.1s It constitutional for the County Code to mandate pre-application meetings for
cutain types of applications?
The reader can note that in accordance with JCC ~ 18.40.090(2) an applicant is required to
have a pre-application conference for any permit or land use development that can be categorized
as a Type II or Type III permit as well as Type ( permits if the Type I permit is proposing
impervious surface greater than 10,000 square feet and/or a residence of 5.000 square feet or
more.
9 Nothing would prevent the County Commission from amending ICC ~ 18.40.470 to expressly state that
an approved SPAAD (for an application in the shoreline jurisdiction) would vest to the current SMP
despite the absence of an accompanying complete building permit application.
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Page 15
Such a requirement is pennitted by RCW 36.70B.160(2) which states "[n]othing in this
chapter is intended or sha1l be construed to prevent a local government from requiring a
preapplication (sic) conference or a public meeting by rule, ordinance or resolution. ..
But to the extent the pre-application meeting is a precondition to ever filing a building
pennit application then the JCC may run afoul of the rule laid out in West Main Associates that
there can be no precondition to a building permit application in the control of the local
government rather than the applicant. The attached article from Phil Ohlbrechts, who has served
as this County's Appellate Heming Examiner on occasion, discusses that precise issue and offers
some possible solutions to avoid a challenge based on alleged violation of due process.
The County counters that potential problem by the text of ICC ~18.40.090(3), which
states that the pre-application conference must occur within 15 days of the time when such a
conference is requested and paid for, meaning the County ClIIIDot delay vesting by simply not
holding or, in the alternative, delaying, the pre-application conference.
I believe the requirement that certain types of applications be subject to a pre-application
conference is explicitly authorized by state law and does not violate an applicant's due process
rights since the JCC prevents the County from sitting on its proverbial "hands."
CONCLUSION:
Nothing in the Abbey Road case requires any change to the Jefferson County Code
because that case is conservative in the sense that it simply relies on an existing state law now
found at RCW 19.27.095(1).
The Commissioners may wish to discuss with staff whether the current ''vesting
ordinance" found, in part, at JCC ~18.40.470 and the new SMP make it abundantly clear that it is
the intent of the County to have persons holding approved SPAAD applicants within the
shoreline jurisdiction vest to the then-existing SMP both before and after adoption of the new
SMP. Staff, including the undersigned, awaits instruction.
J)~l
David Alvarez, Chief Civil DP
15
18.40.460 Duration of approvaL
Approval of the site plan shaJI be effective for
five years from the date of original approval by the
administrator. If a building permit has not been is-
sued within the five-year period, the site plan ap-
proval shall expire. An expired site plan approval
advance determination cannot be revived or ex-
tended except by new application that must meet all
lhen-existing criteria and conditions listed in this
article. Knowledge of the expiration date and shaJI
be the responsibility of the applicant The county
will not provide notification prior to expiration.
fOrd. 8-06 ~ II
18.40.470 Umitatlons on approvaL
Approval of the site plan sha11 not guarantee the
performance of specific site features or improve-
ments (e.g., wens, septic systems, stormwater
drainage facilities, etc.) and any proposa1 granted a
site plan approval advance determination sha11 not
be immune from changes in state or federa1laws
which are enacted or have an effective date after
the date of the site plan approval advance determi-
nation and which may affeet the performance and
implementation of the site plan and associated use
or activity. Any subsequent land division or bound-
ary line adjustment of a parcel or lot which has
received site plan approval advance detennination
under this article shall void such site plan approval
and require a new site plan approval advance deter-
mination application. Approval of a site plan under
this section does not constitute authority to com-
mence any development or building activity until
such time as fina1 authorizing permits are issued
(e.g., septic, wens, stormwater management, or
building permits, etc.). fOrd. 8-06 ~ I]
18-238
P]~ng Advisor July 2008
,'f'
Page I of4
'i
R-S
Munidpal Research and Services Center of Washington
WorklflB "Ibgetber for Excellence In Local Government
Planning Advlfor
MRSC has joined with Phil Olbrechts, Attorney, Qg!!M Murphy WallaCEl, Pat Dugan, .Qugan Consulting
~s, and Arthur Sullivan, Program Manager of ABC!:! (A Regional Coalition for Housing), to bring
you the 'Plannlng Advisor" article series on planning and growth management Issue affecting
Washington Local Governments. 1l1e 'Plannlng Advisor" will feature a new article each month with
timely Information and advice you can use. *
Can't Always Trust those RCW's: The Problems with Mandatory Pre-Application
Conferences
July 2008
Phil Olbrechts, Attorney
.Qgden Murphy Wallace. PLLC
"But the RCW (1) allows mandatory pre-appllcatlon meetlngslR - That's what I always hear when I
point out the problems of mandatory pre-appllcatlon conferences. B&W 36.70B.060(2) does state that
nothing In the Regulatory Refonn Act prevents a local government from requIring a pre-appllcatlon
conference. Well It should. pre-application conferences gIVe both the applicant and staff an opportunity
to roadmap a hassle-free permitting process (one can always hope). However, there Is a constitutional
doctrine, the vested rights doctrine, that trumps the wisdom of the state legislature In Its adoption of
BCW 36.708.160(2).. That doctrine could very welllnvalldate your pre-application ordinance or move
vesting of the permit to the date of the conference or even before. Fear notl The Planning Advisor, I.e.,
this article, has some suggestions for addressing the situation.
The Problem
The "problemR here Is that vested rights doctrine. .For the uninitiated, this Is the "bright llne rule"
establlshed by our state supreme court In 1958 (2) designed to give a break to appllcants "In order to
provide a measure of CElrtalnty to developers, and to protect their expectations against fluctuating land
use pollcles." (3) Once an applicant files a complete building pennlt application that Is consistent with
applicable development regulations, any new development standards SUbsequently adopted by the city
or county generally don't apply - the developer has "vested" his appllcatlon under the regulations In
place at the time the complete appllcatlon was submitted. In layperson's parlance, the developer
"grandfathersR a complete appllcatlon upon submission.
Since the 1958 decision, the appellate courts have extended the vested rights doctrine beyond bulldln9
permits to conditional use permits, gradIng permits, septic tank permits, and shoreline permits. The
legal authority used by the state supreme court In formulating the vested rights doctrine Is the
Fourteenth Amendment, the due process clause. The court has detennlned that the vested rights
. doctrine Is supported by "notions of fundamental falrnessR and wllllnvalJdate on the basis of due
process ordinances that attempt to preempt the doctrine. (4) The constitutional basis of the vested
rights doctrine Is significant, because the state legislature also can't adopt any legislation that violates
http://www.mrsc.orglfocusipladvisor/pIa0708.aspx
7/8/2008
p~ Advisor July 2008
Page 2 of4
.'
.
the due process clause, Including RCW 36.706.160(2).
At this point, some of you are thinking .ok, what does a pre-application conference have to do with the
vested rIghts doctrine?" The fundamental problem with a pre-application conference Is that It robs the
allpllcant of the ability to control the date of vesting, undermining the vested right's purpose of
protectlng against "fluctuating land use pollcles." A pre-application conference gives a community
notice and an opportunity to change the rules to prevent a development It doesn't want. If, through an
oversight, Ballevue's zoning code authorized slaughterhouses adjacent to Newport Shores, you can bet
that as soon as the request for a pre-application conference comes In for the slaughterhouse
development the Belhivue City Councll will be holding a special meeting to adopt an Immediate
moratorium or Interim ordinance banning slaughterhouses. For these reasons, the courts have ruled
that the vested rights doctrine Includes the applicant's right to control the date of vesting.
There are two key cases that address the Issue of control over the vesting date. The most pertinent Is
West Main v. BelI~. (5) In that case, the City of Ballevue adopted an ordinance requiring a developer
to go through several procedural obstacles prior to filing a building permit application, Indudlng
administrative design review approval, site plan review approval, and administrative conditional use
approval. The ordinance further provided that the filing of applications for any of these preliminary
approvals would not vest development rights - this would only occur upon the filing of the building
permIt application. The developer challenged the validity of the ordinance. The court agreed that the
ordinance violated due process and Was Invalid, condudlng as follows:
The City delays the vesting point until well after a developer first applies for City approval
of a project, and reserves for Itself the almost unfettered ability to change Its ordinances In
response to our vesting doctrine's protectlon of a citizen's constitutional right to develop
property free of the "fluctuating policy" of legislative bodies. (6)
Of more general relevance Is the case of grfckson & Associates v. Seattle. (7) A developer challenged a
Seattle vesting ordinance, which provided that a project vested either upon the filing of a complete
building permit application or when the city earlier Issues a master use permit. As noted by the court,
the master use permitting process was an Ulteratlve" process In which developers may start off with
general design concepts and then refine them as they work with staff. The vesting ordinance gave
applicants the ability to file a building permit application at any time to vest their projects and the
timing of the buJldlng permit application was not dependent upon the master use review process. The
developer asserted the vesting ordinance violated the vested rights doctrine because It only provided
for vesting upon the Issuance of a master use permit as opposed to the filing of an application for one.
The court upheld the validity of the ordinance, finding It determinative that applicants could control the
time of vesting by filing a building permit at any time.
Mandatory pre-application conferences are certainly distinguishable from the West Main case as a
matter of degree - In the West Main case the dty of Bellevue had almost limitless discretion to delay
vesting. Most pre-application conference reQuirements reQuire cities and counties to hold the
conferences within some reasonable amount of time. In formulating the vested rights doctrine, the
COUrts were careful to require a Ucomplete" permit application In order to only protect developers who
. have backed their development expectations with some Investment, which Isn't happening much at the
pre-appllcetlon stage. The fact remains, though, that a pre-application conference gives a city or
county both notice and opportunity to change the rules prior to vesting, taking away the control an
applicant has to set vesting date as found so Important In Erickson. The similarities between the master
use process In Seattle and pre-application conferences also don't help - both focus upon a preliminary
conceptual review designed to streamline the permitting process.
Attorneys differ as to the consequences of the Intersection of the vested rights doctrine with the pre-
application statute, RCW 36. 70a.~60(2). SOme (8) look to the remedy of the West Main case and the
remedy usually associated with due process violations and believe that mandatory pre-application
conferences are Invalid. Others believe that a court would try to harmonize statutory vesting statutes
(the legislature has codified vesting for some development permits, InclUding building permits) with the
http://www.rnrsc.orglfocuslpladvisorlpla0708.aspx
7/812008
Pl~ng Advisor July 2008
...
Page 3 of 4
4
pre-application statute and the vested rights doctrine to move up vesting to the date of the pre-
application conference, or possibly the date a pre-application conference Is requested.
The Solution
There are at least a couple strategies a municipality could employ to deal with the vesting problems of
mandatory pre-application conferences. One, just don't make the conferences mandatory. Provide
Incentives for attending optional conferences. This could Include lower permit application fees for those
who choose to attend. Also, make applicants pay for time wasted because they didn't attend a pre-
application conference - addItional review fees can be Imposed for prOject modifications necessitated
by noncompliance with development standards.
A second suggestion - allow vesting to occur when a complete request for a pre-application Is filed but
only allow the vesting to perfect If a complete application Is flied within a set number of days. This
retains the developer's control over the vesting date while protecting the city or county from the
speculative vesting of permits. For example, your code could provide that a project will vest upon the
submittal of a complete request for a pre-applIcation conference If a complete development permlt
application Is flied within 21 days of the date of the pre-application request or seven days from the end
of the pre-application conference, whichever Is later. You could also set 20 percent of the development
permit fee as the pre-application conference fee and prOVide that It will be applied to the development
permit application If a complete development permit application Is made within the requisite time. If a
complete application Isn't flied Within the requisite time, the applicant forfeits the 20 percent fee.
In short, yes, RCW 36.706.060 does recognize the authority to mandate pre-application conferences.
It's just gOing to take a little creativity If your community wants to take advantage of that authority.
l RCWn Is the ~Revlsed Code of Washlngtonn, the codification of the state statutes adopted by the
Washington State legislature.
z tJp/l v. Hunt. 53 Wn.2d 125 (1958).
3 friends of the Law v. King County. 123 Wn.2d 518, 522 (1994).
4 See West Main AssocIates v. Bel/evue, 106 Wn.2d 47,51 (1986).
5 rd.
(; rd.1>J: 52.
7 123 Wn.2d 864(1994).
8 Well ok, the disagreement Is between me an attorney who chooses to remain anonymous and has
absolutely nothing to do with this article.
PlanniogAdvlsor
Pat Dugan has a unique combination of experience In both planning and public flnance, spanning 35
years. As a planner, he has been a planning director In two cities (Auburn and Burlen), and two
regional planning agencies In Oregon and WashingtOn; and was a planning manager In Goleta,
http://www.mrsc.org!focuslpladvisor/pla0708.aspx
7/8/2008
Pll}llIlkg Advisor July 2008
Page 4 of 4
..
,
California. In public finance, Pat has served as the chief financial officer In four public agendes
Including the CIties of Auburn and Lynnwood, and the Snohomlsh County Public Works Department. He
has written extensively on financing capital facility programs and on pUblic finance for planners. Pat
now offers plannIng and pUblic finance consulting services and In his own firm, Dugan Consulting
Services In Everett and can be reached at consult.du9an(1ilverlz~.
Phil Olbrec:hts Is a member (SImilar to partner) and elected member of the board of directors of
Ogden, Murphy, Wallace, LLC. Phil focuses his practice on land use law and currently represents seven
municipalities as either CIty Attorney or Hearing examiner. He has taught over a dozen credits of land
use law at the University of Washington, has taught numerous land use continuing legal education
C(jurses and has made over 200 land use presentations to elected and appointed officials throughOut
Washington State. Phil has served on the Seattle Planning Commission and in the past served as the
Planning Director for two municipalities.
iJ"- JDEN
I.ur.~..p.. HY
'V\l .1 ACE
'".1...1.<
A I: r~' ,: _, I: " ~i :\ -I l..\ w
Arthur Sullivan Is the Program Manager 9f ABC!:! (A Regional Coalition for Housing). ARCH Is a
coalition of 16 public jurisdictions located In East King County. Its purpose Is to facilitate efforts of
public jurisdictions to create a full range of housing, with an emphasis on affordable housing. In 2004
ARCH was the winner of the Inaugural Ash Institute / Fannie Mae Foundation Innovations In American
Government Award In Affordable HousIng. previously Arthur was a Senior Manager at BRIDGE HOUSing
and planner for Environmental Impact Planning. He holds a BoA. In Planning from the UniversIty of
Washington, and a Master of Planning from UC, Berkeley.
A~~('....Jid1lllr...~lMllb\i
*The Articles appearing In the "Planning Advisor" column represent the opinions of the authors and do
not necessarily reflect those of the Municipal Research & Services Center.
http://www.mrsc.orglfocuslpladvisor/pla0708.asplt
7/812008
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT (DCD)
621 Sheridan Street, Port Townsend, W A 98368
Al Scalf, Director
Unified Development Code Interpretation
Date:
April 14, 2010
Issued bv:
Jefferson County DCD Planning ManagerlUDC Administrator
Affected:
All properties within shoreline jurisdiction in Jefferson County
Subiect:
EHB 1653: Relationship between Growth Management Act (GMA) and
Shoreline Management Act (SMA) jurisdiction
Summary of Issue
On March 18,2010, Washington State approved a legislative change EBB 1653 as follows:
. The legislature affinns that development regulations adopted under the growth management act
to protect critical areas apply within shorelines of the state as provided in section 2 of this act.
. The legislature affinns that the adoption or update of critical area regulations under the growth
management act is not automatically an update to the shoreline master program. Apply Critical
Area Ordinances in shoreline jurisdiction until an updated SMP is adopted, retroactive to July
27,2003.
How does this legislative change affect permitting in Jefferson County?
Code Intemretation:
. The UDC Code Interpretation regarding Relationship between Growth Management Act
(GMA) and Shoreline Management Act (SMA) jurisdiction dated August 22, 2008 is hereby
rescinded;
. CAO provisions adopted after July 27,2003 shall apply within shoreline jurisdiction despite the
absence of an update to the shoreline master program; however
. Applications vested prior to March 18, 2010 shall be reviewed per the codes and code
interpretations in effect on the date of vesting including the August 22, 2008 code
interpretation, as applicable; and
. Codes in effect, including critical areas ordinances retroactive to July 27, 2003, shall apply to
development within shoreline jurisdiction with a vesting date on or after March 18, 2010, the
effective date ofEHB 1653.
Pagel
Back!!round & Analvsis:
In accordance with Arlicle VI, Chapter 18.40 of the Unified Development Code (UDC), Jefferson
County Code (JCC 18.40.350) this interpretation of the Unified Development Code is intended to
interpret scope or intent. This is an administrator-initiated interpretation as allowed by JCC
18.40.360(1). The "Factors for Consideration", as identified in JCC 18.40.360(4) and listed below,
were considered in making this UDC interpretation, including applicable goals and policies of the
Jefferson County Comprehensive Plan:
(a) The applicable provisions of this code, including its purpose and context;
(b) The implications of the interpretation for development within the county as a whole, including
the precedent the interpretation will set for other applicants; and
(c) Consistency with the Jefferson County Comprehensive Plan and other relevant ordinances and
policies.
Applicable Provisions
Applicable provisions ofilie Jefferson County UDC include:
. JCC 18.15, an earlier Critical Areas Ordinance (eCAO) - Effective January 16,2001 adopted
pursuant to the Washington State Growth Management Act (GMA; RCW 36.70A) and the
County's 1998 Comprehensive Plan in order to protect environmentally sensitive features such
as critical aquifer recharge areas, frequently flooded areas, geologically hazardous areas, fish &
wildlife habitat conservation areas, and wetlands; and applicable to any project permit
application deemed "substantially complete" by DCD before March 17, 2008;
· JCC 18.22 Critical Areas Ordinance (CAD) - Adopted March 17,2008 adopted pursuant to the
Washington State Growth Management Act (GMA; RCW 36.70A) and the County's 2004
Comprehensive Plan in order to protect environmentally sensitive features such as critical
aquifer recharge areas, frequently flooded areas, geologically hazardous areas, fish & wildlife
habitat conservation areas, and wetlands; and
· JCC 18.25 Shoreline Master Program (SMP) - Adopted March 7, 1989 (including subsequent
amendments through February 6, 1998) adopted pursuant to the Washington State Shoreline
Management Act (SMA; RCW 90.58) to encourage water-dependent uses and promote public
access while protecting shoreline natural resources and ecological functions.
Impllcations
Because EHB 1653 represents a major step by the Governor and the State Legislature to explain and
clarifY the interplay between Ch. 90.58 RCW, the Shoreline Management Act, and Ch. 36.70A. RCW,
the Growth Management Act, and because EHB 1653 serves to establish what amount to "before" and
"after" regulatory scenarios the1'!l are important implications for development of parcels containing
critical areas, if those parcels are also within the shoreline jurisdiction. Some historical and legal
background is required and is laid out here.
. Jefferson County must comply with state laws before and after adoption ofEHB 1653.
· Critical Areas within shoreline jurisdiction must be protected by the County's development
regulations. The question requiring clarification is, "Which development regulation regulates
Page 2
development of a parcel or parcel!' within the shoreline J)1risdiction when critical areas are
present?" Actions by the State Legislature and the Jefferson County Commission have served
to change the answer to that question.
. According to EHB 1653, effective when the Governor signed the bill on March 18, 2010, once
Jefferson County adopts an SMP that is in compliance with the 2003 W A State Department of
Ecology guidelines then only the revised or updated SMP wilI serve to regulate critical aress
located within the shoreline jurisdiction.
. From August 22, 2008 to March 17,2010 only the County's 1989 SMP regulated development
with the potential to impact critical areas when that development was occurring within the
shoreline jurisdiction.
. Before August 22, 2008 either the eCAO or the CAO adopted on March 17,2008 regulated
land use development that might impact a critical area found within the shoreline jurisdiction.
The legal doctrine of vesting detennines which version of the CAO was applicable.
. Vesting rights must be preserved in order to comply with RCW 19.27.095, RCW 58.17.033 and
published case law. Penn its issued more than 24 days prior to the date of this Code
Interpretation that have not already been challenged in Superior Court pursuant to the Land Use
Petition Act cannot now be challenged, and those applicants vest to the development
regulations applicable when their application became either "substantially complete" or were
deemed complete by default. Permit applications that are "substantially complete" (or
complete by default) but have not yet had a permit issued also vest to the development
regulations in place when the application became either "substantially complete" or complete
by default.
Consistency
This interpretation is consistent with the Jefferson County Comprehensive Plan as it continues to allow
for use, development and protection of environmentally sensitive areas and shoreline resources through
implementation of the UDC.
Background
The issue at hand is complex due to vesting rights, existing case law and recent legislative changes.
Simply put, vesting rights set the review of an application to the codes in effect on a certain date. Case
law changed the interpretation of which laws applied to applications. HB 1653 is a retroactive
legislative ''fix'' to require application of certain laws without additional process.
Vesting is determined per various sections of the Jefferson County Code or "JCC." See below. If the
application submittal was complete, the vesting date would be the date of application submittal. If the
application was incomplete, the application is vested on the date the application was determined to be
complete, i.e., "complete by default." An approved Site Plan Approval Advance Determination
(SPAAD), Shoreline Substantial Development Pennit (SDP) or Shoreline Variance (SV) allows for a
future building permit to vest to ordinances in effect at time ofSPAAD, SDP or SV vesting.
Page 3
The diagram below details the Jefferson County application of Critical Areas Ordinances in shoreline
jurisdiction.
History of Jefferson County Application of CAO and SMP
Within Shoreline Jurisdiction
~
en
....
0\
ill
....
o
o
N
;0-
....
.....
....
~
o
N
;;;-
....
i:l'
....
co
o
o
N
j:::-
....
;;;-
en
o
o
N
j:::-
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....
o
....
o
N
05-
....
.....
..,
o
~
SMP &. CAO OrdtnancmI. (ode
Intemretatfons
Current SMP (3/7/1989 w/revlslons)
1994 CAO, Ord No. 05-0509-94 (SMP
setback and other CA application)
2001 CAO (UDC) as amended; JCC
18.15, (SMP setback and other CA
application)
2004 CAO, Ord No. 17-1213-04,
(SMP setback and other CA
application)
2008 CAO, JCC 18.22,
Ord No. 03-0317-08
8/22/2008 UnIfied Development
Code Interpretation of GMA/SMA,
due to Futurewlse/ Anacortes decision
4/8/2010 Code InterpretatIon of
GMA/SMA due to EHB 1653
Updated SMP (TBD)
JC Locally Approved SMP, Res 77-09 on 12/7/2009
3/18/2010 Governor sIgnature of EHB 1653
The gap in application of the critical areas ordinance between August 22, 2008 and March 18, 2010
resulted to achieve compliance with the Washington State Supreme Court decision No. 803%-0 titled
Futurewise. et aI. v. W A State CTED. W A State EcolollV v. WWGMHB. Ciro of Anacortes. In a Code
Interpretation dated August 22, 2008 Jefferson County ceased to implement JCC 18.22 CAO
PIlIJ84
provisions within the SMP jurisdictional area defined by JCC 18.25. Accordingly, Jefferson County
commenced implementing only JCC 18.25 within the SMP jurisdictional area although JCC
18.40.360(5) would otherwise require the County to apply a more restrictive and equally applicable
code provision found elsewhere in the UDC, Title 18 JCC.
On March 18,2010, the Washington State approved a legislative change EBB 1653 as follows:
. "The legislature affinns that development regulations adopted under the growth management
act to protect critical areas apply within shorelines of the state as provided in section 2 of this
act."
. The legislature affirms that the adoption or update of critical area regulatious under the growth
management act is not automatically an update to the shoreline master program. Apply Critical
Area Ordinances in shoreline jurisdiction until an updated SMP is adopted, retroactive to July
27,2003.
Analysis:
With respect to those applications that vested between March 17,2008 and Aug 22, 2008 per the Code
Interpretation dated August 22, 2008, the literal reading of BB 1653 could be that the newest CAO
(found at JCC 18.22) would have to be applied to those applications when the subject parcel is inside
the shoreline jurisdiction, reversing FuturewiselAnacorles. This interpretation may not be consistent
with Washington State vesting laws.
For example, the County has already issued permits (denominated as "approvals" in the case of the
SPAAD) and the holders of those permits are entitled to certainty once the LUPA appeal period runs.
The County is time barred from challenging issued permits after the fact. The County could not use
EBB 1653 to reopen an issued permit and apply the newest CAO found at JCC 18.22 to any critical
areas that might be on the subject parcel AND also within the shoreline jurisdiction.
This is because like any other aggrieved party Jefferson County had 21 days (or 24-if one includes the
three days for mailing) under LUPA to challenge the conditions ofa permit and Jefferson County has
not done so. This doctrine oflaw arises from state law and the Chelan v. Nykretm case, 146 Wn. 2d
904 (2002) where Chelan County sued too late to revoke a BLA it had issued some months before.
A second reading of the EBB 1653 that is consistent with vesting laws is the application of Critical
Areas Ordinances adopted on or after July 27, 2003 shall be applied within shoreline jurisdiction
without requiring an update to the SMP. This interpretation satisfies the requirement that this bill
apply "retroactive to July 27,2003."
EBB 1653 did not change Washington State vesting laws, thus this does not affect vesting, including
applications submitted after July 27, 2003 and prior to March 18,2010. Under the latter interpretation,
the vesting of an application would continue to be to the codes and code interpretations as they exist on
the date of vesting. Since the Code Interpretation dated August 22, 2008 applied to permit applications
that were vested and not yet issued, a subset of pre-March 18, 2010 vested permits exists.
Applications vested on a date prior to the code interpretation dated August 22, 2008 and included in
the applicability of that interpretation, i.e. they were pending (permit not yet issued) at that time, would
Page.
continue to be vested to the August 22, 2008 code intezpretation. Therefore, if the August 22, 2008
Code Interpretation is applicable to a specific application, then only the SMP and neither the cCAO or
the CAO would be applicable to that application.
Code Intemretation:
· The UDC Code Interpretation regarding Relationship between Growth Management Act
(GMA) and Shoreline Management Act (SMA) jurisdiction dated August 22, 2008 is hereby
rescinded;
· CAO provisions adopted after July 27, 2003 shall apply within shoreline jurisdiction without an
update to the shoreline master program;
· Applications vested prior to March 18, 2010 shall be reviewed per the codes and code
inteIpreMions in effect on the date of vesting including the August 22, 2008 code
interpretation, as applicable; and
. Codes in effect, including critical areas ordinances retroactive to July 27, 2003, shall apply to
development within shoreline jurisdiction with a vesting date on or after March 18, 2010, the
date of enactment ofEHB 1653.
AooUcabilltv:
This interpretation applies to:
· All permit applications that are substantia11y complete and have not received a permit decision; and
· All permit applications received on or after March 18, 2010.
In accordance with JCC 18.40.380, this code interpretation will remain in effect unless and until the
administrator is~ a written rescission or the code is forma11y amended (as per ICC 18.45.090) to
supersede this interpretation. This interpretation may be enforced in the same manner that any
provision of the code is enforced.
Aoneal:
As outlined in ICC 18.40.390, a code interpretation may be appealed to the Hearing Examiner within
fourteen (14) calendar days of the decision using the process for appeals of Type II permit decisions as
set forth in ICC 18.40.330.
Dated this 14th day of Apri12010.
~~(k~^~
Stacie Hoskins, Planning Manager!UDC Administrator
Attached:
EHB 1653
Jefferson County Code Interpretation dated August 22, 2008
Page 8
CERTIFICATION OF ENROLLMENT
ENGROSSED ROUSE BXLL 1653
51st Legislature
2010 Regular Session
Passed by the House February 15, 2010
Yeas 58 Nays 39
CERTIFICATE
Speaker of the Bouse of Representatives
I, Barbara Baker, Chief Clerk of
the House of Representatives of the
State of Washington, do hereby
certify that the attached is
ENGROSSED BOUSE BILL 1653 as passed
by the House of Representatives and
the Senate on the dates hereon set
forth.
Passed by the Senate March 2, 2010
Yeas 35 Nays 10
Chief Clerk
President of the Senate
Approved
FILED
Secretary of State
State of Washington
Governor of the State of Washington
ENGROSSED HOtlSE BJ:LL1653
Passed Legislature - 2010 Regular Session
State of Washington
61st Legislature
2010 Regular Session
By Representative Simpson; by request of Department of Ecology and
Department of community, Trade, and Economic Development
Read first time 01/27/09. Referred to Committee on Local Government &
HOUSing.
1 AN ACT Relating to clarifying the integration of shoreline
2 management act policies with the growth management act; amending RCW
3 36.70A.480and 90.58.030; adding a new section to chapter 90.58 RCW;
4 creating new sections; and declaring an emergency.
5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
6 NEW SECTION. Sec. 1. (1) The legislature recognizes that
7 Engrossed Substitute House Bill No. 1933, enacted as chapter 321, Laws
8 of 2003, modified the relationship between the shoreline management act
9 and the growth management act. The legislature recognizes also that
10 its 2003 efforts, while intended to create greater operational clarity
11 between these significant shoreline and land use acts, have been the
12 subject of differing, and occasionally contrary, legal interpretations.
13 This act is intended to affirm and clarify the legislature I s intent
14 relating to the provisions of chapter 321, Laws of 2003.
15 (2) The legislature affirms that development regulations adopted
16 under the growth management act to protect critical areas apply within
17 shorelines of the state as provided in section 2 of this act.
18 (3) The legislature affirms that the adoption or upCUlte of critical
p. 1
ERE 1653.PL
1 area regulations under the growth management act is not automatically
2 an update to the shoreline master program.
3 (4) The legislature intends for this act to be remedial and
4 curative in nature, and to apply retroactively to July 27, 2003.
5 Sec. 2. RCW 36.70A.480 and 2003 c 321 s 5 are each amended to read
6 as follows:
7 (1) For shorelines of the state, the goals and policies of the
8 shoreline management act as set forth in RCW 90.58.020 are added as one
9 of the goals of this chapter as set forth in RCW 36. 70A. 020 without
10 creating an order of priority among the fourteen goals. The goals and
11 policies of a shoreline master program for a county or city approved
12 under chapter 90.58 RCW shall be considered an element of the county or
13 city's comprehensive plan. All other portions of the shoreline master
14 program for a county or city adopted under chapter 90.58 RCW, including
15 use regulations, shall be considered a part of the county or city's
16 development regulations.
17 (2) The shoreline master program shall be adopted pursuant to the
18 procedures of chapter 90.58 RCW rather than the goals, policies, and
19 procedures set forth in this chapter for the adoption of a
20 comprehensive plan or development regulations.
21 (3)~ The policies, goals, and provisions of chapter 90.58 RCW and
22 applicable guidelines shall be the sole basis for determining
23 compliance of a shoreline master program with this chapter except as
24 the shoreline master program is required to comply with the internal
25 consistency provisions of RCW 36.70A.070, 36.70A.040(4), 35.63.125, and
26 35A.63.105.
27 ( ((a) hs of the date the e.CJjlartlllCIit of ecole!jY appre'l."es a local
28 !l'o".'e1.-mneIit. s shereline maste:r pregTlXHl ae.ej?tee. Ui'.lticr applicable
29 shereliIiO ~ie.eliBe6, the protectioR of critical areas as defined by
30 ROW 36.7011..030(5) withiR sherelines of the state ehall be ace~lished
31 only through the local g~;ernmeIit'e shereliRe master program aRe. shall
32 net he subject te the proceaural ana a~6taBti~c requirements ef ~hiB
33 chapter, except as pr~"idea in eubeectioR (6) sf taie eectioR.))
34 (b) Except as otherwise provided in (c) of this subsection.
35 development reaulations adopted under this chapter to protect critical
36 areas within shorelines of the state applv within shorelines of the
37 state until the department of ecoloav approves one of the followinq:
EHB 1653.PL
p. 2
1 A comorehensive master oroqram u~date. as defined in ROW 90.58.030: a
2 seqrnent of a master oroqram relatinq to critical areas. as orovided in
3 ROW 90.58.090: or a new or amended master oroqram aooroved bv the
4 deoartment of ecoloav on or after March 1. 2002. as orovided in ROW
5 90.58.080. The adoption or u~ate of develooment requlations to
6 protect critical areas under this chaoter prior to deoartment of
7 ecoloav aooroval of a master proqram uodate as orovided in this
8 subsection is not a comorehensive or seqrnent uodate to the master
9 proqram.
10 ec} (i) Until the deoartment of ecoloav aooroves a master oroqram or
11 seqrnent of a master orogram as orovided in ebl of this subsection. a
12 use or structure legallY located within shorelines of the state that
13 was established or vested on or before the effective date of the local
14 qovernment I s develooment requlations to orotect critical areas may
15 continue as a conforminq use and may be redeveloped or modified if:
16 IAl The redevelooment or modification is consistent with the local
17 qovernment's master proqram: and (Bl the local qovernment determines
18 that the orooosed redevelooment or modification will result in no net
19 loss of shoreline ecoloqical functions. The local qovernment may waive
20 this requirement if the redevelooment or modification is consistent
21 with the master oroqram and the local qovernment's develooment
22 requlations to orotect critical areas.
23 (iil For ^,u:r:poses of this subsection (3) (c). an aqricultural
24 activity that does not exvand the area beinq used for the aqricultural
25 activitv is not a redevelooment or modification. "Aqricultural
26 activitv." as used in this subsection (31 (c). has the same meaninq as
27 defined in ROW 90.58.065.
28 Id) Uoon deoartment of ecoloav aooroval of a shoreline master
29 program or critical area seqrnent of a shoreline master oroqram.
30 gritical areas within shorelines of the state ((that have been
31 iaentified as moetin~ the definition of critical ar~as as defined by
32 ROW JG.70A.OJO(S), and that are subject te a shoreline master pre~ram
33 aooJilted under applicable shoreline !f1iidelincs shall net be)) are
34 "rotected under chanter 90.58 ROW and are not subject to the procedural
35 and substantive requirements of this chapter, except as provided in
36 subsection (6) of this section. Nothing in chapter 321, Laws of 2003
37 or this act is intended to affect whether or to what extent
p. 3
EHB 1653.PL
1 agricultural activities, as defined in RCW 90.58.065, are subject to
2 chapter 36.70A RCW.
3 ((-fer)) 1& The provisions of RCW 36.70A.172 shall not apply to the
4 adoption or subsequent amendment of a local government's shoreline
5 master program and shall not be used to determine compliance of a local
6 government's shoreline master program with chapter 90.58 RCW and
7 applicable guidelines. Nothing in this section, however, is intended
8 to limit or change the quality of information to be applied in
9 protecting critical areas within shorelines of the state, as required
10 by chapter 90.58 RCW and applicable guidelines.
11 (4) Shoreline master programs shall provide a level of protection
12 to critical areas located within shorelines of the state that ((is at
13 leas~ equal to the le~el af proteetieR pr~Jiaed te critical arcas 5y
14 the leeal ge~crnmcHt'a critical area ordinances adapted and thereafter
15 amcBdcd pura~Rt ta ROW 36.70A.868(2))) assures no net loss of
16 shoreline ecoloqical functions necessarY to sustain shoreline natural
17 resources as defined bv department of ecoloqy croidelines adopted
18 pursuant to RCW 90.58.060.
19 (5) Shorelines of the state shall not be considered critical areas
20 under this chapter except to the extent that specific areas located
21 within shorelines of the state qualify for critical area designation
22 based on the definition of critical areas provided by RCW 36.70A.030(5)
23 and have been designated as such by a local government pursuant to RCW
24 36.70A.060(2).
25 (6) If a local jurisdiction's master program does not include land
26 necessary for buffers for critical areas that occur within shorelines
27 of the state, as authorized by RCW 90.58.030(2)(f), then the local
28 jurisdiction shall continue to regulate those critical areas and their
29 required buffers pursuant to RCW 36.70A.060(2).
30 Sec. 3. RCW 90.58.030 and 2007 c 328 s 1 are each amended to read
31 as follows:
32 As used in this chapter, unless the context otherwise requires, the
33 following definitions and concepts apply:
34 (1) Administration:
35 (a) "Department" means the department of ecology;
36 (b) "Director" means the director of the department of ecology;
EBB 1653.PL
p. 4
1 (C) "Local government" means any county, incorporated city,ortown
2 which contains within its bo\mdaries any lands or waters subject to
3 this chapter;
4 (d) "Person" means an individual, partnership, corporation,
5 association, organization, cooperative, public or municipal
6 corporation, or agency of the state or local governmental unit however
7 desigtllited;
8 (e)"( (Itea:r:'iB;g [aJ)) Hearings board" means the ((ehere.liMJ ral))
9 shOl::elinel;! hearings board established by this chapter.
10 (2) Geographical:
11 (a) "Extreme low tide" means the lowest line on the land reached by
12 a receding tide,
13 (b) "Ordinary high water mark" on all lakes,strelllllS, and tidal
14 water is that mark that will be found by examining the bed and banks
lS and ascertaining where the preSence and action of waters are so common
16 and usual, and so long cQl1tinued in all ordinary years, as to mark upon
17 the soil a character diatinct from that of the abutting upland, in
18 respect to vegetation as that cQl1dition exists on J~ 1, 1971. as it
19 may naturally change thereafter ,or as it may change thereafter in
20 accordance with permits issued by a local government or the department:
21 PROVIDED, That in any area where the ordinary high water mark cano.ot be
22 found, the ordinary high water mark adjoining salt water shall.be the
23 line of mean higher high tide and the ordinary high watermark
24 adjoining freshwater shall be the line of mean high water;
25 (c) "Shorelines of the state" are the total of all "shorelines" and
26 'shorelines of statewide significance' within the state;
27 (d) · Shorelines. means all of the water areas of the state,
28 including reservoirs, and their associated shorelands, together with
29 the lands underlying them; except (i) shorelines of statewide
30 significance; (ii) shorelines on segments of streams upstream of a
31 point where the mean annual flow is twenty cubic feet per second or
32 less and the wetlands associated with such upstream segments; and (iii)
33 shorelines. . on lakes less than twenty acres in size and wetlands
34 associated with such small lakes;
35 (e) "Shorelines of statewide significance" means the following
36 shorelines of the state:
37 (i) The area between the ordinary high water mark and the western
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EHB 1653.PL
1 boundary of the state from cape Disappointment on the south to Cape
2 Flattery on the north, including harbors, bays, estuaries, and inlets;
3 (ii) Those areas of Puget Sound and adjacent salt waters and the
4 Strait of Juan de Fuca between the ordinary high water mark and the
5 line of extreme low tide as follows:
6 (A) Nisqually Delta--from DeWolf Bight to Tatsolo Point,
7 (B) Birch Bay--from Point Whitehorn to Birch Point,
8 (C) Hood Canal--from Tala Point to Foulweather Bluff,
9 (D) Skagit Bay and adjacent area--from Brown Point to Yokeko Point,
10 and
11 (E) Padilla Bay--from March Point to William Point;
12 (iii) Those areas of Puget Sound and the Strait of Juan de Fuca and
13 adjacent salt waters north to the Canadian line and lying seaward from
14 the line of extreme low tide;
15 (iv) Those lakes, whether natural, artificial, or a combination
16 thereof, with a surface acreage of one thousand acres or more measured
17 at the ordinary high water mark;
18 (v) Those natural rivers or segments thereof as follows:
19 (A) Any west of the crest of the Cascade range downstream of a
20 point where the mean annual flow is measured at one thousand cubic feet
21 per second or more,
22 (B) Any east of the crest of the Cascade range downstream of a
23 point where the annual flow is measured at two hundred cubic feet per
24 second or more, or those portions of rivers east of the crest of the
25 Cascade range downstream from the first three hundred square miles of
26 drainage area, whichever is longer;
27 (vi) Those shore lands associated with (i), (ii), (iv) , and (v) of
28 this subsection (2) (e) ;
29 (f) " Shore lands " or "shoreland areas" means those lands extending
30 landward for two hundred feet in all directions as measured on a
31 horizontal plane from the ordinary high water mark; floodways and
32 contiguous floodplain areas landward two hundred feet from such
33 floodways; and all wetlands and river deltas associated with the
34 streams, lakes, and tidal waters which are subject to the provisions of
35 this chapter; the same to be designated as to location by the
36 department of ecology.
37 (i) Any county or city may determine that portion of a one-hundred-
EHB 1653.PL
p. 6
1 year-flood plain to be included in its master program as long as such
2 portion includes, as a minimum, the floodway and the adjacent land
3 extending landward two hundred feet therefrom.
4 (ii) Any city or county may also include in its master program land
5 necessary for buffers for critical areas, as defined in chapter 36.70A
6 RCW, that occur within shorelines of the state, provided that forest
7 practices regulated under chapter 76.09 RCW, except conversions to
8 nonforest land use, on lands subject to the provisions of this
9 subsection (2) (f) (ii) are not subject to additional regulations under
10 this chapter;
11 (g) "Floodway" means the area, as identified in a master program,
12 that either: (i) Has been established in federal emergency management
13 agency flood insurance rate maps or floodway maps; or (ii) consists of
14 those portions of a river valley lying streamward from the outer limits
15 of a watercourse upon which flood waters are carried during periods of
16 flooding that occur with reasonable regularity, although not
17 necessarily annually, said floodway being identified, under normal
18 condition, by changes in surface soil conditions or changes in types or
19 quality of vegetative ground cover condition, topography, or other
20 indicators of flooding that occurs with reasonable regularity, although
21 not necessarily annually. Regardless of the method used to identify
22 the floodway, the floodway shall not include those lands that can
23 reasonably be expected to be protected from flood waters by flood
24 control devices maintained by or maintained under license from the
25 federal government, the state, or a political subdivision of the state;
26 (h) "Wetlands" means areas that are inundated or saturated by
27 surface water or groundwater at a frequency and duration sufficient to
28 support, and that under normal circumstances do support, a prevalence
29 of vegetation typically adapted for life in saturated soil conditions.
30 Wetlands generally include swamps, marshes, bogs, and similar areas.
31 Wetlands do not include those artificial wetlands intentionally created
32 from nonwetland sites, including, but not limited to, irrigation and
33 drainage ditches, grass-lined swales, canals, detention facilities,
34 wastewater treatment facilities, farm ponds, and landscape amenities,
35 or those wetlands created after July 1, 1990, that were unintentionally
36 created as a result of the construction of a road, street, or highway.
37 Wetlands may include those artificial wetlands intentionally created
38 from nonwetland areas to mitigate the conversion of wetlands.
p. 7
ERE 1653.PL
1 (3) Procedural terms:
2 (a) "Guidelines" means those standards adopted to implement the
3 policy of this chapter for regulation of use of the shorelines of the
4 state prior to adoption of master programs. Such standards shall also
5 provide criteria to local governments and the department in developing
6 master programs;
7 (b) "Master program" shall mean the comprehensive use plan for a
8 described area, and the use regulations together with maps, diagrams,
9 charts, or other descriptive material and text, a statement of desired
10 goals, and standards developed in accordance with the policies
11 enunciated in RCW 90.58.020. "Comorehensive master proqram update"
12 means a master proqram that fullv achieves the procedural and
13 substantive reauirements of the department guidelines effective Januarv
14 17. 2004. as now or hereafter amended;
15 (c) "State master program" is the cumulative total of all master
16 programs approved or adopted by the department of ecology;
17 (d) "Development" means a use consisting of the construction or
18 exterior alteration of structures; dredging; drilling; dumping;
19 filling; removal of any sand, gravel, or minerals; bulkheading; driving
20 of piling; placing of obstructions; or any project of a permanent or
21 temporary nature which interferes with the normal public use of the
22 surface of the waters overlying lands subject to this chapter at any
23 state of water level;
24 (e) "Substantial development" shall mean any development of which
25 the total cost or fair market value exceeds five thousand dollars, or
26 any development which materially interferes with the normal public use
27 of the water or shorelines of the state. The dollar threshold
28 established in this subsection (3) (e) must be adjusted for inflation by
29 the office of financial management every five years, beginning July 1,
30 2007, based upon changes in the consumer price index during that time
31 period. "Consumer price index" means, for any calendar year, that
32 year's annual average consumer price index, Seattle, Washington area,
33 for urban wage earners and clerical workers, all items, compiled by the
34 bureau of labor and statistics, United States department of labor. The
35 office of financial management must calculate the new dollar threshold
36 and transmit it to the office of the code reviser for publication in
37 the Washington State Register at least one month before the new dollar
EHB 1653.PL
p. 8
,
. ~' threshold is to take effect. The following shall not becons,idered
2 substanti$.l developments for the purpose of this chapter:
3 (i) Normal maintenance or repair of existing strUctures or
4 developmElI1ts, including damage by accident, fire, or elements;
5 (ii) Construction of the normal protective bulkhead .common' to
6 sing:te family residences;
7 (Hi) Emergency construction necessary to protect property :C;rolll
8 damage.by the elements;
9 (iv) COnstruction and practices normal or necessary for farming,
10 irrigation, and ranching activities, including agricultural service
11 rOads and utilities on shore lands , and the construction and maintenance
12 of, irrigation structures including but not limited to head . gates,
13 pumping facilities, and irrigation channels. A feedlot of any size,
~4 all processing plants, other activities of a commercial nature,
15 alteration of the contour of the shorelands by leveling or filling
16 other than that which results from noPllal' cultivation, shall not be
17 considered normal or necessary farming or ranching activities. A
~8 feedlot shall be an enclosure or facility used or capable of being used
19 for feeding livestock hay, grain, silage, orotherlivestockfeed,but
20 shall not include land for growing crops or vegetation ,for livestock
21 feeding and/orgrazing, nor shall it include normal livestock wintering
22 operations;
23 (v) Construction or modificati,on of navigational aids such as
24 channel markers and anchor buoys; .
25 (vi) Construction on shore lands by an owner, :tessee, or contract
26 purchaser of a single family residence for his own ~seor for the use
27 of his or her family, which residence does not exceed a height of
28 thirty-five feet above average grade level and which meets, all
29 requirements of the state agenCy or local government having
30 jurisdictiOn. thereof, other than requirements imposed pursuant to this
31 chapter;
32 (vii) Construction of lit dock, including a community dock, designed
33 for pleasure craft on.1y, for the private nonconunercialuse of the
34 owner, lessee, or contract purchaser of single and multiple family
35 residences. This exception applies if either: (A) In salt waters, the
36 fair market value of the dock does not exceed two thousand five hundred
37 dollars; or (B)!n fresh waters, the fair market value of the dock dOes
38 not exceed ten thousand dollars, but if subsequent construction having
p. 9
EHB 16S3.PL
1 a fair market value exceeding two thousand five hundred dollars occurs
2 within five years of completion of the prior construction, the
3 subsequent construction shall be considered a substantial development
4 for the purpose of this chapter;
5 (viii) Operation, maintenance, or construction of canals,
6 waterways, drains, reservoirs, or other facilities that now exist or
7 are hereafter created or developed as a part of an irrigation system
8 for the primary purpose of making use of system waters, including
9 return flow and artificially stored groundwater for the irrigation of
10 lands;
11 (ix) The marking of property lines or corners on state owned lands,
12 when such marking does not significantly interfere with normal public
13 use of the surface of the water;
14 (x) Operation and maintenance of any system of dikes, ditches,
15 drains, or other facilities existing on September 8, 1975, which were
16 created, developed, or utilized primarily as a part of an agricultural
17 drainage or diking system;
18 (xi) Site exploration and investigation activities that are
19 prerequisite to preparation of an application for development
20 authorization under this chapter, if:
21 (A) The activity does not interfere with the normal public use of
22 the surface waters;
23 (B) The activity will have no significant adverse impact on the
24 environment including, but not limited to, fish, wildlife, fish or
25 wildlife habitat, water quality, and aesthetic values;
26 (e) The activity does not involve the installation of a structure,
27 and upon completion of the activity the vegetation and land
28 configuration of the site are restored to conditions existing before
29 the activity;
30 (D) A private entity seeking development authorization under this
31 section first posts a performance bond or provides other evidence of
32 financial responsibility to the local jurisdiction to ensure that the
33 site is restored to preexisting conditions; and
34 (E) The activity is not subject to the permit requirements of RCW
35 90.58.550;
36 (xii) The process of removing or controlling an aquatic noxious
37 weed, as defined in RCW 17.26.020, through the use of an herbicide or
38 other treatment methods applicable to weed control that are recommended
EHB 1653.PL
p. 10
1 by a final environmental impact statement published by the department
2 of agriculture or the department jointly with other state agencies
3 under chapter 43. 21C RCW.
4 NEW SECTION. Sec. 4. A new section is added to chapter 90.58 RCW
5 to read as follows:
6 RCW 36. 70A. 480 govems the relationship between shoreline master
7 programs and development regulations to protect critical areas that are
8 adopted under chapter 36. 70A RCW.
9 NEW SECTION. Sec. S. This act is remedial and curative in nature
10 and applies retroactively to July 27, 2003.
11 NEW SECTION. Sec. 6. This act is necessary for the immediate
12 preservation of the public peace, health, or safety, or support of the
13 state govemment and its existing public institutions, and takes effect
14 immediately.
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p. 11
EHB 1653.PL
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c.c... A.LL Dc:!. 1)
f:.-\.\
Unified Development Code Interpretation
Date:
August 22, 2008
Issued by:
Jefferson County DCD Planning Manager!UDC Administrator
Affected:
All properties within Jefferson County
Subiect:
Relationship between Growth Management Act (GMA) and Shoreline
Management Act (SMA) jurisdiction
Bacbround & Analvsis:
In accordance with Article VI, Chapter 18.40 of the Unified Development Code (UDC),
Jefferson County Code (JCC 18.40.350) this interpretation of the Unified Development Code is
intended to clarify conflicting or ambiguous wording, interpret proper classifications of a use, or
interpret scope or intent. This is an R<lmini~or-initiated interpretation as allowed by JCC
18.40.360(1). The "Factors for Consideration", as identified in JCC 18.40.360(4) and listed
below, were considered in making this UDC interpretation, including applicable goals and
policies of the Jefferson County Comprehensive Plan:
(a) The applicable provisions of this code, including its purpose and context;
(b) The implications of the interpretation for development within the county as a whole,
including the precedent the interpretation will set for other applicants; and
(c) Consistency with the Jefferson County Comprehensive Plan and other relevant
ordinances and policies.
Applicable Provisions
Applicable provisions of the Jefferson County UDC include:
· JCC 18.15, an earlier Critical Areas Ordinance (eCAO) - Effective January 16,2001 as
per the Washington State Growth Management Act (GMA; RCW 36.70A) to protect
G.1PLANNlNGUCC~UDC.OtfJ6r~.&fASlmFa.DSiVJDC'CodeJi4b,J'I '9'2U6~ctlde_g,{1 S!:&i1Codt~~
Psgolof3
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environmentally sensitive features such as critical aquifer recharge areas, frequently
flooded areas, geologically hazardous areas, fish & wildlife habitat conservation areas,
and wetlands; and applicable to any project permit application deemed "substantially
complete" by DCD before March 17, 2008;
· JCC 18.22 Critical Areas Ordinance (CAO) - Adopted March 17,2008 as per the
Washington State Growth Management Act (OMA; RCW 36.70A) to protect
environmentally sensitive features such as critical aquifer recharge areas, frequently
flooded areas, geologically hazardous areas, fish & wildlife habitat conservation areas,
and wetlands; and
· JCC 18.25 Shoreline Master Program (SMP) - Adopted March 7, 1989 (including
subsequent amendments through February 6, 1998) as per the Washington State
Shoreline Management Act (SMA; RCW 90.58) to encourage water-dependent uses and
promote public access while protecting shoreline natural resources and ecological
functions.
Implicatio71S
The implications of this interpretation include:
· CAO provisions, including regulations and protections standards, will not apply within
shoreline jurisdiction; and
· Use and development activities within shoreline jurisdiction will be govemed solely by
the SMP.
C07lSistency
This interpretation is consistent with the Jefferson County Comprehensive Plan as it continues to
allow for use, development and protection of environmentally sensitive areas and shoreline
resources through implementation of the UDC.
Code Interoretation:
Effective 7/3112008, in compliance with the Washington State Supreme Court decision No.
80396-0 titled Futurewise, et aI. v. WA State CTED. WA State EcoloflV v. WWGMHB. CiN of
Anacortes. Jefferson CoUll.ty will not and does not implement Jce 18.22 CAO provisions within
the SMP jurisdictional area defined by Jce 1&.25.
Effective 713112008, in compliance with the above-descn'bed decision of the Washington State
Supreme Court, Jefferson County will implement only JCC 18.25 within the SMP jurisdictional
area although JCC 18.40.360(5) would otherwise require the County to apply a more restrictive
and equally applicable code provision found elsewhere in the UDC, Title 18 JCC.
G:V!ANNINGIJCC.1JDC-QbarCodGsWDCJMSJER~Codef ":-., . ~ 'fl22-G8~<<lt1lt.blel)Gln YColf!~~
P8I/8 20f 3
.
.
.
This interpretation applies to:
. All permit applications that are substantially complete and have not received a permit
decision; and
. All permit applications received since July 31, 2008.
Aoolicabilitv:
In accordance with JCC 18.40.380, this code interpretation will remain in effect unless and until
the Anm;ni!;jrator issues a written rescindment or the code is formally amended (as per JCC
18.45.090) to supersede this interpretation. This interpretation may be enforced in the same
manner.that any provision of the code is enforced.
Aooeal:
As outlined in JCC 18.40.390, a code interpretation may be appealed to the Hearing El<mn;ner
within fourteen (14) calendar days of the decision using the process for appeals of Type II permit
decisions as set forth in JCC 18:40.330.
Dated this 22nd day of August, 2008.
d~"'-- L~~L~
Stacie Hoskins, Planning ManagerIUDC Administrator
Attached:
W A Supreme Court Decision No. 80396-0
Jefferson County Prosecutor Office Analysis of Decision No. 80396-0
G.'\ftANNIJtG\JCC.UDC-OIlxrCodclsllJl)Ct4ASTERFOLDERllJDCCodo~.{lS~r:cdtJilfspmt, ~~'lCW61ds'pn(rs/iM8-22.o8RN1Ldoc
Page 3013
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IN THE SUPREME COURT OF TilE STATE OF WASHINGTON
FUTIJREWISE,EVERGREBN . )
ISLANDS, and SKAGIT AUDUBON )
SOCIETY, )
)
Respondents, ) No. 80396-0
)
WASHINGTONSTATEDEPARTMENT ) . BnBanc
OF COMMUNITY, TRADE AND )
ECONOMIC DEVELOPMENT and )
WASHINGTON stATE DEPARTMENT ) Filed July 31,2008
. OF ECOLOGY, )
)
RespondentslIntervenors, )
)
v. )
)
WESTERN WASHINGTON GROWTH )
MANAGEMENT HEARINGS BOARD, )
an agency of the state of Washington; and )
CITY OF ANACORTES, )
)
Petitioners, )
)
and )
)
WASHINGTON PUBLIC PORTS )
ASSOCIATION, )
)
Intervenor. )
)
.
No. 80396-0
.
J.M. JOHNSON, J.-In 1971, Washington voters passed the Shoreline
Management Act of 1971 (SMA), chapter 90.58 RCW. The SMA meant to
strike a balance among private ownership, public access, and public
protection oftb.e State's shorelines. RCW 9058.020. Starting that year,
local governments were required to create shoreline master plans govemin~
the uSe of shorelines and the DllplI1t1ucut of Ecology (Bcology) WII& given
authority to approve plans before they became effective. RCW 90.58.070(1).
The plans must be updated every seven years to make sure they still comply
with the law. RCW 90.58.080(4).- The city of Anacortes has a shoreline
master plan, which Ecology approved in 1977. Ecology has approved
Anacortes's periodic updates several times since then. most recently in 2000.
Each time, both AnIlCOrtes and Ecology held public hearings and made
written findings, concluding that the plans adequately protected shorelines in
Anacortes.
.
In 1990, the legislature passed the Growth Management Act, chapter
36.70A RCW CGMA). Its goal is to coordinate land use planning across the
state. RCW 36.70A.OIO. TIle GMA has subslanlial requirements when
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No. 80396-0
actions might affect areas defined as "critical areas," RCW 36.70A.I72(I).
Among other things, the GMA was mnendedin 1995 to require l~
governments to designate and 1)J~1 critical areas using the "best available
science"-a benign term with often a heaVy price tag. Id The SMA, with its
goal ofballlncing use and protection. is less bmdensome,
The GMA alsQ diVided the state into thirds lIIid oieated three
admlnillttati...eboards to bear ~ under the GMA. RCW 36.70A.2SO. In
2003, the Centnil Paget SOl1Jld Growth Management Hearings Board decided
that the GMA retroltctively applied even to those critical areas inside
shoreline management areas long mRnl\ged through shoreline master plans
properly adopted, amended, and approved by Ecology under the SMA.
Everett Shorelines Coal. v. City of Everett, No. 02-3..00090 (Cent. Paget
Sound Growth Mgmt. Hr'gs Bd. Jan. 9,2003). This board decision so
conflicted with the law and the established practices that the legislature acted
the next session by enacting a law explicitly rejecting that board's
interpretation. Engrossed Substitute H.B. 1933, 58th Leg., Reg.Sess. * 1(1)
(Wash. 2003) (ESHB 1933). "The legislatw'e intends that critical areas
within the jurisdiction of the [SMA] shall be governed by the [SMA] and that
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No. 80396-0
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critical areas outside the jurisdiction of the [SMA] sball be governed by the .
[GMA]." [d. ~ 1(3). We hold that the legislature meant what it said. Critical
areas within the jurisdiction of the SMA.are governed only by the SMA. .
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The city of Anacortes has long had a sl10rWne master plan for its
. shoreline area (last amended and approved In 2000). Anacortes adopted new
standar.cJs under its GMA plan for other areas,.inc1uding critical areas.
Unforttmately, it is now common that litigation often follows actious by 1!)Cal
govemments relating t? land lISe. In this litigation. the Western Washin8ton
Growth Management Hearjngs Board decided that the SMA continued to
.
cover Anacortes's plan (rather than the GMA atnllJldments), fullowing the
clear language ofBSHB 1933. When litigant Futurewise appealed, the
superior court disagreed and held that the GMA retroactively applies to
critical areas within the shoreline master plan until the next time Ecology
. .
considers and approves an amended shoreline master plan. I Anacortes
appealed, and we granted direct review.
n
I As is noted infra, EcoJosy bas acted to approve only three (amended) county plBns since
2003.
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No. 80396-0
The only issue is whetherthe legislature meant the GMA to apply to
critical areas in.shorelines covered by shoreline master plans mtll Ecology
has approved a new or updated shoreline master plan. The legislature's clear
intent as quoted above reads, "critical areas within the;jurisdictiQll of the
{SMA] shall be governed by the {SMA]." ESHB 1933 ~ 1(3).
EcOlogy principally relies on the language ofBSHB 1933 as codified,
which reads: "As of the date the department of ecology approves a local
government's shoreline master program . . . the protectiQll of critical areas. . .
shall be accomplished only through the local govemmenfs shoreline master
program. . . ." RCW 36.70A.480(3)(a). The tense of "approves" sounds
prospective, but only at first blush. This is the same verb tense as "{t]he
legislature intends;" and the legis1ati1re surely did not mean itS statutory
correction would solve the misreading of the statute someday in the future.
The cure was immediate (indeed retrospective). In the same way, the
legislature uses "[aJs of the date the department of ecology approves" to refer
to the date of approval of each plan. In Anacortes's .case, that date was in
2000.
The subsections ofESHB 1933 surromding this language support this
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No. 80396-0
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reading. As codified, the very next subsection reads: "Critical areas within
shorelines of the state . . . and that are subject to a shoreline master program
adopted under applicable shoreUne guidelines sbaIl not be subject to the
procedural and substantive requir.em~ts of [the GMA]." RCW
36.70A.480(3)(b}. The subsection after that reads: "[The GMA] shall not .
apply to the adoption or subsequent amendment ofa local govl>Alment's
shoreline 1Dll8ter program." RCW 36.70A.480(3)(c). None of this is
prospective or delayed in effect. The legislature's ~t was that the SMA,
not the GMA, should cover shore1ines.
BSHB 1933 was a rebuke to one board decision that misread the law.
Courts must not repeat or extend one hearings board's mistake, especially
when the legislature took only four months to adopt legislation clarifying that
the board had construed the law incorrectly.
SMA coverage of shorelines has long protected the environment.
Anacortes bas had a shoreline master plan protecting. its shorelines since
1977, which was adopted by Anacortes'scity council and approved by
Ecology. Hearings, extensive study and analysis, and public input surrounded
each step. Among other things, before enacting the plan, Anacortes gave
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No. 80396-0
notice to every interested party and allowed opportunity for input and
comment. RCW 9O.58.090(2)(a). The plan and its updates take into account
the preservation and protectiOn of shorelines. RCW 90.58.020. Those
closest to the Anacortes shorelines. i.e., the-residents and their elected
rep1~ves, have lbe most invested in plliptlt'ly balancing smart use and
enviroumental safeguards. Anacortes has followed the SMA and has created
a master plan protecting its Shorelines, and Ecology has approved the plan.
The shorelines wiD remain protected.
The real-world effect of interpIClitag the transfer as prospective, as
Ecology urges, would be to change the effective date ofESHB 1933 from
July 27, 2003, to a much later rolling date, as Ecology gets around to
processing and approving new or amended shoreline master plans. At oral
argument, Ecology's attorney said 'Ecology had approved only 3 out of39
county plans since 2003. And those are just the county plans; cities also have
plans that Ecology must approve. At this rate, if we were to hold as
petitioners and Ecology argue, it is unknown when the law would go into
effect statewide. The legislature surely did not intend the effect of this
curative law to delay, and such a conclusion flies in the face of express
7