Snohomish County v. Pollution Control Hearings Board

Filed
Washington State
Court of Appeals
Division Two
January 19, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
SNOHOMISH COUNTY, KING COUNTY, No. 46378-4-II
and BUILDING INDUSTRY ASSOCIATION
OF CLARK COUNTY,
Appellants,
v.
POLLUTION CONTROL HEARINGS PUBLISHED OPINION
BOARD, and WASHINGTON STATE
DEPARTMENT OF ECOLOGY, and PUGET
SOUNDKEEPER ALLIANCE,
WASHINGTON ENVIRONMENTAL
COUNCIL, and ROSEMERE
NEIGHBORHOOD ASSOCIATION,
Respondents.
MAXA, J. — Snohomish County, King County, and the Building Industry Association of
Clark County (collectively, appellants) appeal the Pollution Control Hearings Board’s (Board)
order holding that condition S5.C.5.a.iii in the 2013-2018 Phase I Municipal Stormwater Permit
(the 2013-2018 Permit) issued by the Washington Department of Ecology (Ecology) does not
violate the vested rights of property developers. The 2013-2018 Permit requires Phase I
permittees, which include certain counties and cities, to adopt by June 30, 2015 regulations for
controlling stormwater drainage and runoff to municipal stormwater sewer systems for new
development, redevelopment, and construction activities. Condition S5.C.5.a.iii provides that
No. 46378-4-II
the new regulations will apply to all development applications submitted after July 1, 2015 and
submitted before July 1, 2015 if construction is not started by June 30, 2020.
The statutory vested rights doctrine provides that a land use application generally must be
considered under the zoning or other land use control ordinances in effect at the time the
application was submitted. The appellants argue that enforcement of condition S5.C.5.a.iii
would require permittees to violate the vested rights of developers because (1) the required
stormwater regulations are land use control ordinances, (2) an application submitted before July
1, 2015 might not result in the start of construction by June 2020, and (3) condition S5.C.5.a.iii
therefore might require counties to enforce stormwater regulations adopted after an application is
submitted.
Ecology and Puget Soundkeeper Alliance (PSA) (collectively, Ecology) argue, and the
Board ruled, that the 2013-2018 Permit would not require permittees to violate the vested rights
doctrine because the required regulations are environmental regulations, not land use control
ordinances. They also argue that even if the regulations are land use control ordinances, federal
law preempts Washington’s vested rights statutes.
We hold that (1) the 2013-2018 Permit’s required stormwater regulations are “land use
control ordinances” under the vested rights statutes, (2) enforcement of condition S5.C.5.a.iii
would violate the statutory vested rights of developers who submit applications before July 1,
2015 but do not begin construction until after June 30, 2020, and (3) federal law does not
preempt Washington’s vested rights statutes. Accordingly, we reverse the Board’s order and
remand to the Board to direct Ecology to revise condition S5.C.5.a.iii to specify that the 2013-
2018 Permit applies only to those completed applications submitted after July 1, 2015.
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FACTS
The federal Clean Water Act (CWA)1 prohibits any discharge of pollutants into the
nation’s waters, unless the discharge is made according to the terms of a permit issued under the
National Pollution Discharge Elimination System (NPDES). 33 U.S.C. §§ 1311(a), 1342. The
federal Environmental Protection Agency (EPA) may issue NPDES permits, but it may also
delegate the authority to issue permits to a state agency. 33 U.S.C. § 1342(a)(1), (b). In
Washington, EPA has delegated the authority to issue NPDES permits to Ecology. See RCW
90.48.260.
2013 Municipal Stormwater Permit
In August 2012, Ecology issued the 2013-2018 Phase I Municipal Stormwater Permit.2
The 2013-2018 Permit authorizes and regulates the discharge of stormwater to surface waters
and to ground waters from large and medium municipal separate storm sewer systems, referred
to as MS4s.3 Snohomish County, King County, Pierce County, Clark County, and the cities of
Seattle and Tacoma are among the entities that are permittees under the 2013-2018 Permit.4 The
2013-2018 Permit is effective from August 1, 2013 through July 31, 2018.
1
The Clean Water Act’s formal name is the Water Pollution Control Act. 33 U.S.C. § 1251 et
seq.
2
The 2013-2018 Permit is the third Phase I municipal stormwater permit issued in Washington.
Ecology issued the first such permit in 1995 and the second in 2007.
3
The Board described MS4s as “all the conveyances or systems of conveyances that are
designed or used for collecting or conveying stormwater, including roads with drainage systems,
municipal streets, catch basins, curb gutters, ditches, manmade channels or storm drains.”
Clerk’s Papers at 32-33.
4
Ecology also regulates stormwater discharges from small municipalities with two Phase II
permits. Neither of the Phase II permits are at issue in this appeal.
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Ecology implements the 2013-2018 Permit at the local level by mandating that each local
permittee be responsible for compliance with the 2013-2018 Permit’s terms. The 2013-2018
Permit requires all permittees to create a stormwater management program. That program must
include the enactment of local ordinances or other governing documents regulating development
within each permittee’s jurisdiction. The 2013-2018 Permit requires several conditions that
permittees must implement through their ordinances. Condition S5.C.5 is one such condition.
Condition S5.C.5 focuses on preventing and controlling stormwater runoff from new
development, redevelopment, and construction activities. This condition applies to those
projects that meet certain thresholds specified in Appendix 1 of the 2013-2018 Permit5 and that
will discharge stormwater into an applicable sewer system.
Condition S5.C.5 includes a lengthy set of minimum performance measures, one of
which includes site and subdivision scale requirements implementing the “[m]inimum
[r]equirements, thresholds, and definitions” in Appendix 1 of the 2013-2018 Permit for new
development, redevelopment, and construction sites. Site and subdivision scale requirements
that developers must implement include preparing stormwater site plans; drafting stormwater
pollution prevention plans; utilizing all known, available, and reasonable source control best
management practices; maintaining natural drainage patterns to the maximum extent practicable;
and implementing on-site stormwater management best management practices to the extent
feasible in various contexts. In addition, certain projects trigger additional minimum
5
The applicability of the 2013-2018 Permit’s minimum requirements depends on the
development project’s type and size. Certain project types are expressly exempted from the
2013-2018 Permit’s requirements.
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requirements that developers must comply with. These include constructing stormwater
treatment facilities to treat stormwater runoff, implementing flow control standards to reduce the
impacts of stormwater runoff, ensuring that projects draining into wetlands comply with various
guide sheets and construction restrictions, and maintaining an operation and maintenance
manual.
Condition S5.C.5.a.iii provides that permittees must adopt and make effective a
stormwater management program that meets the 2013-2018 Permit requirements no later than
June 30, 2015. The second sentence of the condition addresses the applicability of the new
program to development projects:
The local program adopted to meet the requirements of S5.C.5.a.i through ii shall apply
to all applications submitted after July 1, 2015 and shall apply to projects approved prior
[to] July 1, 2015, which have not started construction by June 30, 2020.
Certified Appeal Board Record (CABR) at 27 (emphasis added) (footnotes omitted).
Procedural History
Snohomish County, King County, Pierce County, Clark County, and the Building
Industry Association of Clark County appealed the 2013-2018 Permit to the Board.6 They
argued in part that the 2013-2018 Permit’s requirements were land use control ordinances and
that condition S5.C.5.a.iii conflicted with Washington’s vested rights and finality laws. Ecology
argued that the requirements under the 2013-2018 Permit were environmental regulations that
6
The City of Seattle, City of Tacoma, and the Washington State Department of Transportation
received permission to intervene in the appeals. Puget Soundkeeper Alliance, Washington
Environmental Council, and Rosemere Neighborhood Association (collectively PSA) also
received permission to intervene on behalf of Ecology.
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No. 46378-4-II
were necessary to comply with the federal CWA and state Water Pollution Control Act, and
therefore did not implicate the vested rights doctrine.
In October 2013, the Board issued a summary judgment order ruling that the 2013-2018
Permit’s requirements were environmental regulations and therefore that condition S5.C.5.a.iii
did not violate Washington’s vested rights doctrine or finality doctrine. The Board stated that it
“has consistently ruled that the requirements imposed by NPDES stormwater permits are not
land use control ordinances that are subject to state vesting laws.” Clerk’s Papers (CP) at 56.
Moreover, the Board rejected the notion that the doctrines of vested rights and finality of land
use decisions could control and limit the application of state and federal water quality
requirements.
However, the Board’s summary judgment order did require Ecology to modify the
second sentence of condition S5.C.5.a.iii. The Board directed Ecology to replace the phrase
“projects approved” with “application submitted.”
Following a trial on the remaining issues in the case, the Board issued its final decision
and order. The appellants separately appealed the Board’s October 2013 decision to the
Thurston County Superior Court. Thurston County consolidated the appeals. The appellants
sought direct review, which this court granted.
ANALYSIS
A. STANDARD OF REVIEW
The Administrative Procedures Act (APA) governs our review of Board decisions. See
RCW 34.05.570(1)(b); Cornelius v. Dep’t of Ecology, 182 Wn.2d 574, 584-85, 344 P.3d 199(2015). We apply the APA to the administrative record. Cornelius, 182 Wn.2d at 585. We may
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grant relief from an order based on several reasons listed in RCW 34.05.570(3), including that
the order is (1) outside the statutory authority of the agency, and (2) based on an erroneous
interpretation or application of the law. RCW 34.05.570(3)(b), (d). The burden of
demonstrating the invalidity of agency action is on the party asserting invalidity. RCW
34.05.570(1)(a).
We review questions of law de novo. Cornelius, 182 Wn.2d at 585. When a statute is
ambiguous and falls within Ecology’s area of expertise, we give great weight to Ecology’s
interpretation if it is consistent with the statutory language. Clark County v. Rosemere Neigh.
Ass’n, 170 Wn. App. 859, 871, 290 P.3d 142 (2012). However, we are not bound by an agency’s
interpretation of a statute. See RCW 34.05.570(3)(d); see also . Postema v. Pollution Control
Hr’gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). The Board’s order was made on summary
judgment, which we also review de novo. Cornelius, 182 Wn.2d at 585.
B. CONFLICT BETWEEN CONDITION S5.C.5.a.iii AND VESTED RIGHTS DOCTRINE
The appellants challenge the second sentence of condition S5.C.5.a.iii, which requires
permittees to apply the new stormwater regulations to property development applications filed
before July 1, 2015 if construction on those projects has not started by June 30, 2020. The
appellants focus specifically on the application of the new stormwater regulations to local
building permit and subdivision applications and development agreements. They argue that
condition S5.C.5.a.iii conflicts with the statutory vested rights doctrine. We agree.
1. Vested Rights Doctrine
The vested rights doctrine generally provides that certain land development applications
must be processed under the land use regulations in effect when the application was submitted,
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No. 46378-4-II
regardless of subsequent changes to those regulations. Town of Woodway v. Snohomish County,
180 Wn.2d 165, 172-73, 322 P.3d 1219 (2014). Development rights “vest” on a date certain –
when a complete development application is submitted. Id. The purpose of the vested rights
doctrine is to provide certainty to developers and to provide some protection against fluctuating
land use policy. Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 278, 943 P.2d 1378 (1997).
The doctrine recognizes that development rights are valuable property interests and ensures that
new land use regulations do not interfere with those rights. Town of Woodway, 180 Wn.2d at
173.
The vested rights doctrine originated at common law, but the legislature has codified the
doctrine with regard to building permits (RCW 19.27.095(1)), subdivision applications (RCW
58.17.033(1)), and development agreements (RCW 36.70B.180).7 Town of Woodway, 180
Wn.2d at 173. RCW 19.27.095(1) provides that a valid and fully complete building permit
application “shall be considered under the building permit ordinance in effect at the time of
application, and the zoning or other land use control ordinances in effect on the date of
application.” RCW 58.17.033(1) provides that a proposed division of land “shall be considered
under the subdivision or short subdivision ordinance, and zoning or other land use control
7
A question exists as to whether the vested rights doctrine now is purely statutory or continues
to evolve in the common law. The Supreme Court in Town of Woodway stated without
discussion that “the vested rights doctrine is now statutory.” 180 Wn.2d at 173. Division One of
this court also has held that the vested rights doctrine is purely statutory. Potala Vill. Kirkland,
LLC v. City of Kirkland, 183 Wn. App. 191, 203-214, 334 P.3d 1143 (2014) (discussing the
evolution of the vested rights doctrine and applying its holding that the doctrine is purely
statutory). The appellants limit their arguments to the vested rights statutes, and none of the
parties argue that we should address any common law vested rights doctrine. Therefore, we
analyze only the vested rights statutes.
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ordinances, in effect on the land at the time a fully completed application for preliminary plat
approval of the subdivision, or short plat approval of the short subdivision, has been submitted to
the appropriate county, city, or town official.” And RCW 36.70B.180 provides that a
development agreement is not subject to an amended or new “zoning ordinance or development
standard or regulation adopted after the effective date of the agreement.”
The issue here is whether the 2013-2018 Permit’s required stormwater regulations
constitute “other land use control ordinances” under RCW 19.27.095(1) and RCW 58.17.033(1)
and/or “development standard[s] or regulation[s]” under RCW 36.70B.180. If so, the statutory
vested rights doctrine applies to those stormwater regulations. If not, the vested rights doctrine
does not apply.
2. Principles of Statutory Construction
Determining whether the statutory vested rights doctrine applies to the 2013-2018
Permit’s required stormwater regulations involves the interpretation of the pertinent statutory
language. Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,
179 Wn.2d 756, 761, 317 P.3d 1003 (2014).
The goal of statutory interpretation is to determine and give effect to the legislature’s
intent. Id. at 762. To determine legislative intent, we first look to the plain language of the
statute. Id. We consider the language of the provision in question, the context of the statute in
which the provision is found, and related statutes. Protect the Peninsula’s Future v. Growth
Mgmt. Hr’gs Bd., 185 Wn. App. 959, 969, 344 P.3d 705 (2015). Undefined terms are given their
plain and ordinary meaning, which can be derived from a dictionary. Estate of Haselwood v.
Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P.3d 308 (2009). If a statute is
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No. 46378-4-II
unambiguous, we apply the statute’s plain meaning as an expression of legislative intent without
considering other sources of such intent. Jametsky, 179 Wn.2d at 762.
If the plain language of the statute is susceptible to more than one reasonable
interpretation, the statute is ambiguous. Id. We resolve ambiguity by considering other
indications of legislative intent, including principles of statutory construction, legislative history,
and relevant case law. Id.
3. Statutory Language: Land Use Control Ordinances
RCW 19.27.095(1) and RCW 58.17.033(1) both provide that building permit and land
division applications must be considered under the “zoning or other land use control ordinances”
in effect at the time the application is submitted. Neither statute defines the term “land use
control ordinance.” However, the appellants rely on Washington cases that do define the term
and on this court’s holding in Westside Business Park, LLC v. Pierce County, 100 Wn. App. 599,
607, 5 P.3d 713 (2000) to support their contention that stormwater drainage ordinances are land
use control ordinances.
a. New Castle and Westside
In New Castle Investments v. City of LaCenter, this court first discussed the meaning of
“land use control ordinance” in RCW 58.17.033(1). 98 Wn. App. 224, 228, 989 P.2d 569(1999). We focused on the word “control,” which is defined in part as “ ‘[t]he ability to exercise
a restraining or directing influence over something.’ ” Id. at 229 (quoting BLACK’S LAW
DICTIONARY 329 (6th ed.1990)). Accordingly, we suggested that a land use control ordinance
was one that “exercise[d] a restraining or directing influence over land use.” New Castle, 98
Wn. App. at 229. This court subsequently adopted this definition of land use control ordinance
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in Westside, 100 Wn. App. at 607. Division One of this court also has adopted this definition.
Graham Neigh. Ass’n v. F.G. Assocs., 162 Wn. App. 98, 115, 252 P.3d 898 (2011).
In New Castle, we addressed whether an ordinance imposing a transportation impact fee
(TIF) on a proposed subdivision was a land use control ordinance subject to the vesting rights
provision of RCW 58.17.033. 98 Wn. App. at 226-27. We stated that TIFs do not exercise a
controlling or restraining influence over land use; they only increase the cost of a development.
Id. at 229. Further, we explained:
The TIFs do not affect the physical aspects of development (i.e., building height,
setbacks, or sidewalk widths) or the type of uses allowed (i.e., residential,
commercial, or industrial). If they did, then TIFs would be subject to the vested
rights doctrine. In other words, “[the developer] is not being forced to use its land
or build differently from that which [the developer] was able to do at the time its
plans were approved.”
Id. at 237 (quoting Lincoln Shiloh Assocs. v. Mukilteo Water Dist., 45 Wn. App. 123, 128, 724
P.2d 1083 (1986)). We concluded:
Because TIFs do not “control” land use, do not affect the developer’s rights with
regard to the physical use of his or her land, and are best characterized as revenue
raising devices rather than land use regulation, we hold that the definition of “land
use control ordinances” does not include TIFs.
Id. at 237-38.
In Westside, we addressed an issue very similar to the one here – whether an ordinance
imposing increased stormwater drainage requirements was a land use control ordinance subject
to the vesting rights provision of RCW 58.17.033. 100 Wn. App. at 602. After relying on New
Castle to define “land use control ordinance” as an ordinance that exerts a restraining or
directing influence over land use, we stated:
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Storm water drainage ordinances are land use control ordinances. Under RCW
58.17.060, local governments may approve a short subdivision only if they enter written
findings in support, as provided in RCW 58.17.110. RCW 58.17.110(1) requires, as a
prerequisite to subdivision approval written findings that “appropriate provisions are
made for [inter alia] drainage ways[.]” As a mandatory prerequisite to short subdivision
approval, storm water drainage ordinances do exert a “restraining or directing
influence” over land use and are therefore land use control ordinances.
Westside, 100 Wn. App. at 607 (emphasis added).
We also relied on Phillips v. King County, 136 Wn.2d 946, 963, 968 P.2d 871 (1998),
where the Supreme Court stated that the vested rights doctrine applied to surface water drainage
regulations. Westside, 100 Wn. App. at 607. We stated that “because the Phillips court plainly
considered whether surface water drainage ordinances are within the ambit of the vested rights
doctrine, . . . we are not prepared to say that storm water drainage ordinances are not subject to
the vesting rule.” Id. at 607-08.
Ecology essentially ignores Westside. And PSA argues that the discussion in Westside
regarding the definition of “land use control ordinance” is dicta and the case neither controls nor
is informative here because the deciding issue was the adequacy of an application to invoke
vesting.8 However, even if our discussion of the meaning of “land use control ordinance” in
Westside was dicta, PSA does not explain why we should disregard the adoption of a definition
of that term in New Castle, which we cited with approval in Westside.
Here, there is no indication that the effect of the stormwater regulations the 2013-2018
Permit requires would be appreciably different than the stormwater drainage ordinances
8
Similarly, the Board ruled that Westside was inapplicable and adopted its prior discussion in
Rosemere Neighborhood Ass’n v. Department of Ecology, No. 10-013, 2010 WL 3420570, at * 2
(Wash. Pollution Control Hr’gs Bd. Aug. 26, 2010).
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No. 46378-4-II
discussed in Westside. Therefore, in the absence of some reason to treat the regulations adopted
pursuant to the 2013-2018 Permit differently than other stormwater drainage ordinances, we hold
that Westside is controlling authority.
Further, the type of stormwater ordinances required under the 2013-2018 Permit clearly
would satisfy Westside’s definition of “land use control ordinance.” The 2013-2018 Permit
requirements by their very design are intended to exert a restraining and directing influence over
the development and redevelopment of land to effectuate Ecology’s regulation of stormwater
discharges into Washington’s waters. Certain project developers must comply with local
ordinances enacted under the 2013-2018 Permit requiring, for example, that they utilize source
control best management practices, implement on-site stormwater best management practices,
and implement flow control standards to reduce the impacts of stormwater runoff. These and
other 2013-2018 Permit requirements would significantly curtail how developers use their land.
b. Ecology Arguments
Ecology argues that stormwater regulations adopted as required in the 2013-2018 Permit
are not land use control ordinances for several reasons. First, Ecology argues that because the
2013-2018 Permit’s required regulations are environmental regulations, they cannot be
considered land use control ordinances. Ecology points out that the purpose of the regulations
adopted pursuant to the 2013-2018 Permit is to control pollution discharges, not control the use
of land. The Board’s summary judgment order also focused on the purpose of the regulations at
issue:
The conditions that are imposed pursuant to the Phase I and Phase II Permits exist
and are designed to address pollution, not to control the use of land. The authority
for these conditions is contained in state and federal environmental laws, not any
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land use-related statute. The requirement to use various best management
practices to control stormwater runoff from new development or
redevelopment, . . . does not change the type of use the land may be put to
(residential, commercial, etc[.]), nor is it a tool to regulate the subdivision of land.
Rather, the requirements of the Phase I and II Permits are, by their nature, aimed at
improving the quality of the environment and the beneficial uses of the state’s
waters for the public at large.
CP at 57-58.
Ecology’s argument seems to be based on the assumption that a regulation can either be
an environmental regulation or a land use control regulation, but not both. However, Ecology
does not cite any case authority for this proposition. And several cases address the application of
the vested rights doctrine to regulations that can be classified as “environmental.” See, e.g.,
Lauer v. Pierce County, 173 Wn.2d 242, 258-263, 267 P.3d 988 (2011) (watercourse buffer
regulations); Phillips, 136 Wn.2d at 951 (water drainage regulations); Julian v. City of
Vancouver, 161 Wn. App 614, 619, 626-28, 255 P.3d 763 (2011) (riparian buffer regulations);
Westside, 100 Wn. App. at 601 (storm drainage regulations adopted in part as a response to the
CWA). Nothing in Washington case law suggests that simply characterizing a land use control
ordinance as an environmental ordinance limits the application of the vested rights doctrine.
Ecology emphasizes that the Board has held that NPDES permit requirements do not
constitute land use control ordinances. See Rosemere Neigh. Ass’n. v. Dep’t of Ecology & Clark
County, No. 10-103, 2010 WL 3420570 (Wash. Pollution Control Hr’gs Bd. Aug. 26, 2010),
affirmed, Clark County v. Rosemere Neigh. Ass’n, 170 Wn. App. 859, 875-76, 290 P.3d 142(2012) (refraining from addressing the legal vesting issue); Cox v. Dep’t of Ecology, No. 08-077,
2009 WL 542494 (Wash. Pollution Control Hr’gs Bd. Feb. 26, 2009). However, we are not
bound by an agency’s interpretation of a statute. Postema, 142 Wn.2d at 77. Here, the Board’s
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rulings are inconsistent with the language of the vested rights statutes, which do not carve out an
exception for environmental regulations, and applicable case law.
Second, Ecology quotes language from New Castle that “ ‘[t]he vested rights rule is
generally limited to those laws which can loosely be considered ‘zoning’ laws.’ ” 98 Wn. App.
at 232 (quoting WASH. STATE BAR ASS’N, WASHINGTON REAL PROPERTY DESK BOOK, §
97.8(2)(d) (3d ed. 1996)). Ecology argues that environmental regulations do not resemble
zoning laws. Although we quoted the same language in Westside, we then noted that the vested
rights doctrine “has also been extended beyond zoning-type laws.” 100 Wn. App. at 607. And
the definition of land use control ordinance in Westside focused on the effect of an ordinance on
land use, not on any similarity to zoning laws. Id. Further, RCW 19.27.095(1) and RCW
58.17.033(1) both refer to “zoning or other land use control ordinances.” This language clearly
establishes that a land use control ordinance is different than a zoning ordinance.
Third, Ecology argues that the purpose of the vested rights doctrine is only to limit the
exercise of municipal discretion, rather than limiting the state’s ability to implement
environmental regulations necessary to comply with state and federal water pollution laws.
Ecology relies on Erickson & Assocs., Inc. v. McLerran, where the Supreme Court recognized
that:
[o]ur vested rights doctrine is not a blanket rule requiring cities and towns to
process all permit applications according to the rules in place at the outset of the
permit review. Instead, the doctrine places limits on municipal discretion and
permits landowners or developers “to plan their conduct with reasonable certainty
of the legal consequences.”
123 Wn.2d 864, 873, 872 P.2d 1090 (1994) (quoting West Main Assocs. v. City of
Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986)). Ecology states that permittees do not
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exercise municipal discretion when they implement environmental conditions imposed by
the state to meet water pollution laws.
However, Erickson does not stand for the proposition that the vested rights
doctrine applies only to limit municipal discretion and cannot apply to environmental
requirements enacted pursuant to state direction. The language quoted above addressed
an ordinance that determined the vesting date of certain permits, not land use control
ordinances. Erickson, 123 Wn.2d at 869-71. And Ecology cites to no authority holding
that the vested rights statutes do not apply to local regulations that are state mandated.9
Those statutes broadly apply to land use control ordinances without any exception for
ordinances mandated by state or federal law. See Westside, 100 Wn. App. at 601
(recognizing a vested right to the application of the predecessor to stormwater drainage
ordinances adopted in response to the CWA).
Fourth, Ecology argues that controlling water pollution is an exercise of a local
municipality’s police powers, which extinguishes a developer’s vested right. Ecology
quotes a 1905 case stating that “[t]here is no such thing as an inherent or vested right to
imperil the health or impair the safety of the community.” City of Seattle v. Hinckley, 40
Wash. 468, 471, 82 P. 747 (1905). Ecology also relies on Rhod-A-Zalea & 35th, Inc. v.
Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1998), where the Supreme Court
9
Ecology cites only to Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wn.2d
384, 389, 258 P.3d 36 (2011) to support its argument. But that case involved RCW 82.02.020,
which has explicit language stating that it applies only to taxes imposed by local government, not
by the state. Citizens for Rational Shoreline Planning, 172 Wn.2d at 390. RCW 19.27.095(1)
and RCW 58.17.033(1) have no similar language.
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addressed whether a nonconforming peat mining operation was subject to a county’s
police power regulations enacted for the health, safety, and welfare of the community.
The court held that the peat mining operation was subject to subsequent police power
regulations and that local governments may “preserve, regulate and even, within
constitutional limitations, terminate nonconforming uses.” Id. at 8. Ecology emphasizes
that the court suggested that a nonconforming factory would not be exempt from later
enacted pollution regulations. Id. at 15.
However, Ecology did not argue below that the stormwater regulations may be
enacted pursuant to a municipality’s police powers. And the Board did not address this
issue. Therefore, whether a local municipality could impose police power conditions on
a development application is not before us. The only issue on appeal is the application of
the vested rights doctrine.
Fifth, Ecology argues that it could require permittees to use their authority under
SEPA to enforce stormwater discharge regulations. SEPA regulations are exempt from
the vested rights doctrine. RCW 19.27.095(6); RCW 58.17.033(3). However, once again
Ecology did not argue below that it was requiring permittees to enact regulations
pursuant to SEPA. And the Board did not base its decision on SEPA. Therefore,
whether a local municipality could enact certain regulations under SEPA that would not
be subject to the vested rights doctrine is not before us.
Sixth, Ecology argues that applying the vested rights doctrine here would conflict
with the legislature’s intent, expressed in RCW 90.48.010, to “maintain the highest
possible standards to insure the purity of all waters of the state. . . , and to that end
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require the use of all known available and reasonable methods by industries and others”
to control water pollution. However, as noted above, RCW 19.27.095(6) and RCW
58.17.033(3) do not contain any exception for environmental regulations. And Ecology
has not cited to any expression of a legislative intent to have NPDES permit requirements
supersede the vested rights doctrine. Further, to the extent that RCW 90.48.010 and the
vested rights statutes conflict, the more general policy statement in RCW 90.48.010 must
yield to the more specific vested rights statutes. See Ass’n of Wash. Spirits & Wine
Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 356, 340 P.3d 849 (2015)(a
general statutory provision must yield to a more specific provision).
c. Summary
Under a plain reading of RCW 19.27.095(1) and RCW 58.17.033(1), in combination with
our case law interpreting these provisions, regulations enacting the 2013-2018 Permit
requirements constitute local land use ordinances because the regulations will restrain and direct
the use of land. Because development rights vest upon filing a completed building or land
division application, condition S5.C.5.a.iii conflicts with the vested rights doctrine as stated in
RCW 19.27.095(1) and RCW 58.17.033(1) because it could require a permittee to enforce
regulations adopted after development rights had been vested. Accordingly, we hold that
condition S5.C.5.a.iii of the 2013-2018 Permit is invalid.
4. Statutory Language: Development Standards and Regulations
RCW 36.70B.180 provides that a development agreement is not subject to an amended or
new “zoning ordinance or development standard or regulation adopted after the effective date of
the agreement.” The statute does not define “development standard or regulation.” And there
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No. 46378-4-II
are no cases or statutes that define this term. However, the ordinary meaning of “development
regulation” is a regulation that affects the development of land. Using this meaning, there is no
reason to interpret development regulation differently than land use control ordinance. Similarly,
the ordinary meaning of “development standards” is a standard that affects the development of
land. Although “standard” may have a narrower meaning than “regulation,” again there is no
reason to interpret development standards differently than land use control ordinances.
We hold that under a plain reading of RCW 36.70B.180, local regulations enacting the
2013-2018 Permit requirements constitute development regulations and development standards.
Accordingly, we hold that condition S5.C.5.a.iii conflicts with the vested rights doctrine as stated
in RCW 36.70B.180, and therefore is invalid.10
5. Remedy
We hold that condition S5.C.5.a.iii of the 2013-2018 Permit conflicts with RCW
19.27.095(1), RCW 58.17.033(1), and RCW 36.70B.180. The appellants contend that this
holding requires us to find that condition S5.C.5.a.iii is invalid because the Washington
legislature did not provide Ecology with the authority to compel permittees to violate
Washington law and to do so would be unreasonable. We agree.
An administrative regulation that conflicts with a statute is invalid. See Cannabis Action
Coal. v. City of Kent, 180 Wn. App. 455, 481, 322 P.3d 1246 (2014). Such a conflict exists
when an ordinance permits what state law forbids or forbids what state law permits. Id. at 482.
10
Snohomish County also argues that compliance with condition S5.C.5.a.iii could require
permittees to violate Washington’s doctrine of finality of land use decisions for land use
applications actually approved before January 1, 2015. Because we reverse based on the vested
rights doctrine, we do not address this issue.
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No. 46378-4-II
“ ‘The conflict must be direct and irreconcilable with the statute, and the ordinance must yield to
the statute if the two cannot be harmonized.’ ” Id. (quoting City of Tacoma v. Luvene, 118
Wn.2d 826, 835, 827 P.2d 1374 (1992)).
Here, condition S5.C.5.a.iii requires that permittees apply the new 2013-2018 Permit
requirements to completed building and subdivision permit applications and executed
development agreements that were submitted before July 1, 2015 that have not started
construction by June 30, 2020. The vesting rights statutes provide that certain land development
projects must be processed under the land use or development regulations in effect at the time the
completed building or land division application is submitted or the effective date of the
development agreement regardless of when construction starts. Therefore, there is a direct
conflict between the condition and the statutory provisions because condition S5.C.5.a.iii
requires imposition of new regulations on those applications and agreements that had
development rights vested before the new regulations were adopted.
The proper remedy is to reverse the Board’s order and remand to the Board to direct
Ecology to revise condition S5.C.5.a.iii to specify that the 2013-2018 Permit applies only to
those completed applications submitted after permittees adopted the new Permit requirements.
See Puget Soundkeeper Alliance v. State, 189 Wn. App. 127, 131, 152, 356 P.3d 753 (2015)
(reversing Board order and remanding to Ecology to revise permit condition).
D. FEDERAL PREEMPTION
Ecology argues that even if Washington’s vested right doctrine applies to the 2013-2018
Permit’s required regulations, the federal CWA preempts that doctrine. Ecology contends that
preemption applies here because the application of the vested rights doctrine to the 2013-2018
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No. 46378-4-II
Permit requirements would prevent accomplishing the purposes and objectives of Congress. We
disagree and hold that the CWA does not preempt Washington’s vested rights doctrine.
1. Legal Principles
The Supremacy Clause of the United States Constitution gives the federal government the
power to preempt state law. Hillman v. Maretta, ___ U.S. ___, 133 S. Ct. 1943, 1949, 186 L.
Ed. 2d 43 (2013). “Conflict preemption” occurs when (1) federal and state laws conflict, making
compliance with both an impossibility, or (2) state law “ ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. at 1950(quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)). “[S]tate
laws are not superseded by congressional legislation unless that is the clear and manifest purpose
of Congress.” McKee v. AT&T Corp., 164 Wn.2d 372, 387, 191 P.3d 845 (2008). Courts should
not seek out conflict where none actually exists. Chevron U.S.A., Inc. v. Hammond, 726 F.2d
483, 499 (9th Cir. 1984).
Significantly, there is a strong presumption against preemption under Washington law.
Nw. Wholesale, Inc. v. Pac Organic Fruit, LLC, 184 Wn.2d 176, 184, 357 P.3d 650 pet. for cert.
filed sub nom. Ostenson v. Holzman, No. 15-763 (U.S. Dec. 9, 2015). “Preemption is the
exception, not the rule in Washington.” Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,
864, 93 P.3d 108 (2004).
We review federal preemption issues de novo. Wal-Mart Stores, Inc. v. United Food &
Commercial Workers Int’l Union, 190 Wn. App. 14, 21, 354 P.3d 31 (2015).
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2. No Direct Conflict Between State and Federal Law
Washington’s vested rights doctrine does not directly conflict with the CWA. The CWA
does not provide that state agencies must require local municipalities to enact certain stormwater
regulations applicable to land development. Instead, Congress has delegated implementation of
general pollution control guidelines to the states. As a result, the requirements of condition
S5.C.5.a.iii reflect Ecology’s interpretive choices meant to effectuate a framework of federal and
state environmental guidelines. Further, there is no counterpart to condition S5.C.5.a.iii in the
CWA. And nothing in the CWA requires that stormwater regulations be applied within a set
deadline. Accordingly, we hold that the CWA does not directly conflict with Washington’s
vested rights doctrine.
3. Obstacle to Congressional Objectives
Ecology argues that the second prong of conflict preemption applies here. To determine
whether this prong applies, we must determine the purposes and objectives of Congress that are
embodied in the CWA and determine whether the vested rights doctrine stands as an obstacle to
the accomplishment of those objectives. Beatty v. Fish & Wildlife Comm’n, 185 Wn. App. 426,
454, review denied, 183 Wn.2d 1004 (2015). “The obstruction strand of conflict preemption
focuses on both the objective of the federal law and the method chosen by Congress to effectuate
that objective.” McKee, 164 Wn.2d at 388.
a. Objective of CWA
The CWA is a comprehensive water quality statute with the stated goal of “restor[ing]
and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” and
achieving or maintaining “water quality which provides for the protection and propagation of
22
No. 46378-4-II
fish, shellfish, and wildlife.” 33 U.S.C. §1251(a)(2). Under the statute, the administrator of EPA
is charged with the responsibility of “establish[ing] and enforc[ing] technology-based limitations
on individual discharges into the country’s navigable waters from point sources.” PUD No. 1 of
Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S. Ct. 1900, 128 L. Ed. 2d
716 (1994) (citing 33 U.S.C. §§ 1311, 1314). The states also are required to provide water
quality standards, which may be more stringent than the federal standards but cannot be less
protective than the federal standards. Jefferson County, 511 U.S. at 705; 33 U.S.C. § 1370.
The key provision of the CWA regarding stormwater pollution is 33 U.S.C. §
1342(p)(3)(B)(iii), which states that permits issued for discharges from municipal storm sewers
“shall require controls to reduce the discharge of pollutants to the maximum extent practicable.”
Ecology argues that the stormwater requirements in the 2013-2018 Permit will reduce the
discharge of pollutants to the maximum extent practicable, and therefore allowing the vested
rights doctrine to prevent application of these requirements to certain developments would be an
obstacle to the accomplishment of the objectives of 33 U.S.C. § 1342(p)(3)(B)(iii).
However, 33 U.S.C. § 1342(p)(3)(B)(iii) does not require controls to reduce the discharge
of pollutants to the maximum extent possible. Congress used the word “practicable.” 33 U.S.C.
§ 1342(p)(3)(B)(iii). This language necessarily provides some flexibility to the states in adopting
stormwater control regulations. Consistent with 33 U.S.C. § 1342(p)(3)(B)(iii), a state may
legitimately determine that it is not “practicable” to impose new NPDES permit requirements on
those projects with development applications that have already vested under state law.
Further, as noted above, the CWA contains no timeline for adopting controls to reduce
the discharge of pollutants. The absence of any directive requiring the adoption of new
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No. 46378-4-II
regulations within a specific timeframe necessarily provides some flexibility to the states in
implementing stormwater control regulations. Ecology itself recognized this flexibility by
delaying the application of the 2013-2018 Permit requirements until 2020 for development
applications filed before July 1, 2015. Ecology does not suggest that this five year delay violates
33 U.S.C. § 1342(p)(3)(B)(iii) or interferes with Congressional objectives. If delaying the
application of 2013-2018 Permit requirements until 2020 for some developments is acceptable
under federal law, we cannot agree that delaying the application of 2013-2018 Permit
requirements for a few more years in the present context to fully protect vested development
rights interferes with Congressional objectives.
b. Method Chosen by Congress
In enacting the CWA, Congress chose not to adopt rigid requirements for the immediate
elimination of the discharge of pollutants to stormwater collection systems. Instead, Congress
developed the NPDES permit program to gradually reduce such discharges. This choice
suggests that some delay in the implementation of NPDES permit requirements would not
necessarily prevent the accomplishment of Congress’s broad purposes and objectives. As the
United States Supreme Court noted, “[b]y establishing a permit system for effluent discharges,
Congress implicitly has recognized that the goal of the CWA – elimination of water pollution –
cannot be achieved immediately.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S. Ct.
805, 93 L. Ed. 2d 883 (1987).
Further, Congress did not retain control over the specific terms of NPDES permits.
Instead, Congress provided EPA with the authority to delegate the NPDES permit program to
approved state agencies, with the requirement that state standards not fall below federal
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No. 46378-4-II
standards. 33 U.S.C. § 1370. This delegation suggests that Congress intended that the
implementation of CWA objectives would occur within the framework of state law, not that it
intended to preempt state law. Although the application of Washington’s vested rights doctrine
may delay the application of Ecology’s current permit requirements for a limited number of
developments, the doctrine itself does not prevent the accomplishment of Congress’s broad
purposes and objectives.
Given the strong presumption against preemption under Washington law, we hold that
that the CWA does not preempt Washington’s statutory vested rights doctrine.
We reverse the Board’s order and remand to the Board to direct Ecology to revise
condition S5.C.5.a.iii in the 2013-2018 Phase I Municipal Stormwater Permit to specify that the
2013-2018 Permit applies only to those completed applications submitted after July 1, 2015.
MAXA, J.
I concur:
LEE, J.
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No. 46378-4-II
BJORGEN, J. (dissenting) — The application of the vested rights doctrine proposed by
Snohomish County, King County, and the Building Industry Association of Clark County
(collectively appellants), in my view, is both preempted by federal law and in conflict with
governing state law. Therefore, I would affirm the decision of the Pollution Control Hearings
Board (Board).
I. FEDERAL PREEMPTION
The issue in this appeal is whether the state vested rights doctrine excuses a specific class
of applicants from compliance with new storm water regulations adopted by local governments
to implement the 2013-2018 Phase I Municipal Storm Water NPDES11 permit (2013-2018
Permit). The class at issue comprises those who filed a complete development application before
July 1, 2015, but who will not have started construction by June 30, 2020. The 2013-2018
Permit and the Board’s ruling upholding it deems them subject to the new regulations. The
appellants urge that the state’s vested rights doctrine shields those applicants from the reach of
the new regulations.
The pulse of the federal Clean Water Act (CWA) is set by 33 U.S.C. 1311(a), which bans
the discharge of any pollutant from a point source into the nation’s navigable waters, unless
within applicable standards and subject to a permit. See also 33 U.S.C. 1312, 1316-17, 1328,
1342, 1344. The principal permit under the CWA is the NPDES permit. The federal
government has delegated the authority to issue NPDES permits in Washington to the state
Department of Ecology (Ecology). See RCW 90.48.260.
11
National Pollutant Discharge Elimination System.
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No. 46378-4-II
Of the various types of discharges,
[s]tormwater runoff is one of the most significant sources of water pollution in the
nation, at times comparable to, if not greater than, contamination from industrial
and sewage sources. Storm sewer waters carry suspended metals, sediments, algae-
promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw
sewage, pesticides, and other toxic contaminants into streams, rivers, lakes, and
estuaries across the United States. . . . Urban runoff has been named as the foremost
cause of impairment of surveyed ocean waters.
Envtl. Def. Ctr., Inc. v. United States Envtl. Prot. Agency, 344 F.3d 832, 840-41 (9th Cir. 2003)
(footnotes and internal quotation marks omitted). To implement CWA requirements, Ecology
issued the 2013-2018 Permit authorizing discharges from large and medium municipal storm
water systems, subject to standards and conditions. Of those, Condition S5.C.5 imposes new
requirements on specified land development, including source control, flow control, and
treatment, among others. Under this condition, local governments covered by the 2013-2018
Permit must adopt plans and regulations imposing these requirements on development proposals
by June 30, 2015. At the heart of this appeal, Condition S5.C.5.a.iii states that these plans and
regulations shall apply to all applications submitted after June 30, 2015 “and shall apply to
applications submitted no later than June 30, 2015, which have not started construction by June
30, 2020.”
Subject to the intricacies and exceptions unpacked by the case law, vesting
refers generally to the notion that a land use application, under the proper
conditions, will be considered only under the land use statutes and ordinances in
effect at the time of the application's submission.
Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 275, 943 P.2d 1378 (1997). As noted, the
2013-2018 Permit required local governments to adopt new storm water regulations by June 30,
2015. With that, appellants argue, the Permit violates the vested rights doctrine, since Condition
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S5.C.5.a.iii imposed those new regulations on applications submitted before that date, as long as
construction will not have started by June 30, 2020. Whether the appellants are correct in this,
however, need not detain the analysis, since relieving this class of applicants from compliance
with the new regulations is preempted by the CWA.
State law is preempted “‘to the extent of any conflict with a federal statute.’” Hillman v.
Maretta, __ U.S. __, 133 S. Ct. 1943, 1949-50, 186 L. Ed. 2d 43 (2013) (quoting Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000)). Conflict
preemption occurs “when compliance with both federal and state regulations is impossible . . . or
when the state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Hillman, 133 S. Ct. at 1950 (internal citations omitted)
(quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 2d 581 (1941)).
The objective of the CWA is to “restore and maintain the chemical, physical, and
biological integrity of the Nation's waters” and to achieve or maintain “water quality which
provides for the protection and propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a);
Pub. Util. Dist. No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700, 704,
114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994). To serve this goal, the CWA broadly prohibits “the
discharge of any pollutant by any person,” except as authorized by enumerated statutory
provisions. 33 U.S.C. § 1311(a); Puget Soundkeeper Alliance v. State, Pollution Control Hr’gs
Bd., 189 Wn. App. 127, ¶18, 356 P.3d 753 (2015). More specifically, the CWA mandates that
permits for discharges from municipal storm sewers require controls to reduce the discharge of
pollutants to “the maximum extent practicable.” 33 U.S.C. § 1342(p)(3)(B).
State agencies may not issue NPDES permits
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No. 46378-4-II
[w]hen the conditions of the permit do not provide for compliance with the
applicable requirements of CWA, or regulations promulgated under CWA; . . . [or
w]hen the imposition of conditions cannot ensure compliance with the applicable
water quality requirements of all affected States.
40 C.F.R. § 122.4(a), (d) (alteration in original). Washington law makes clear that these
requirements apply to each discharge: WAC 173-220-150(1)(c) provides that “each issued
[NPDES] permit shall require that . . . [a]ny discharge of any pollutant . . . at a level in excess of
that identified and authorized by the permit shall constitute a violation of the terms and
conditions of the permit.” Puget Soundkeeper, 189 Wn. App. at ¶ 20.
The appellants do not argue that the specific standards of the 2013-2018 Permit are not
strict enough to serve the CWA’s purposes. Therefore, they do not dispute that the 2013-2018
Permit is a method of achieving the “maximum extent practicable” standard of 33 U.S.C. §
1342(p)(3)(B). Similarly, the Board concluded in its findings of fact, conclusions of law and
order, dated March 21, 2014 (2014 decision), that the 2013-2018 Permit’s low-impact
development requirements, including those covering permeable pavement, bioretention, and the
phasing of watershed basin planning “constitute . . . MEP,” which is the abbreviation for
“maximum extent practicable.” Clerk’s Papers at 248.
Against this background, one must conclude that the permit’s standards are reasonably
necessary to reduce the discharge of pollutants to “the maximum extent practicable,” as required
by federal law. Among those standards is the one at issue here: that the Permit’s substantive
requirements apply to projects for which applications were filed before July 1, 2013, but which
will not have commenced construction by June 30, 2020. Similarly, one must conclude that this
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No. 46378-4-II
temporal choice of law provision is also reasonably necessary to meet the “maximum extent
practicable” standard of 33 U.S.C. § 1342(p)(3)(B).
The state’s vested rights doctrine would directly obstruct these federal purposes. Under
the permit, projects with applications submitted before July 1, 2015 and which did not
commence construction by 2020 would be subject to the standards of the 2013-2018 Permit.
Under the vested rights doctrine as expounded by appellants, projects within this window would
escape those standards. Thus, the proposed application of the doctrine would result in greater
discharge of pollutants into receiving waters and consequent greater compromise to the purity of
those waters. While the CWA may not require choosing the least polluting of all conceivable
alternatives in every situation, it does require that permits for municipal storm sewers reduce the
discharge of pollutants to “the maximum extent practicable.” 33 U.S.C. § 1342(p)(3)(B).
Applying the vested rights doctrine as appellants urge would frustrate the achievement of that
standard, since, as shown above, subjecting projects within this window to the specific controls
of the 2013-2018 Permit is a part of the Permit’s reduction of polluting discharges to the
maximum extent practicable.
The United States Congress recognized that the goals of the CWA cannot be achieved
immediately, setting in 33 U.S.C 1251(a)(1) the goal that the discharge of pollutants into the
navigable waters be eliminated by 1985. Thirty years have now passed since the 1985 deadline.
To use the flexibility shown by that deadline as a license for further delay thirty years after its
expiration is to risk passage into the absurd. Because application of the vested rights doctrine
would frustrate accomplishment of the federal purposes, it is preempted under Hillman, 133 S.
Ct. at 1950.
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No. 46378-4-II
II. CONFLICT WITH STATE LAW
The policy of the water pollution control statute at chapter 90.48 RCW is “to maintain the
highest possible standards to insure the purity of all waters . . . and to that end require the use of
all known, available and reasonable methods by industries and others to prevent and control the
pollution of the waters of the state of Washington.” RCW 90.48.010. Similarly, RCW
90.54.020(3)(b) states:
Regardless of the quality of the waters of the state, all wastes and other materials
and substances proposed for entry into said waters shall be provided with all known,
available, and reasonable methods of treatment prior to entry . . . wastes and other
materials and substances shall not be allowed to enter such waters which will reduce
the existing quality thereof, except in those situations where it is clear that
overriding considerations of the public interest will be served.
These designs are also reflected in the state anti-degradation policy to “[r]estore and maintain the
highest possible quality of the surface waters of Washington” and to “[e]nsure that all human
activities that are likely to contribute to a lowering of water quality, at a minimum, apply all
known, available, and reasonable methods of prevention, control, and treatment
(AKART).” WAC 173-201A-300(2)(a), (d).
Conclusions 10, 17 and 43 of the Board’s 2014 decision determined that the 2013-2018
Permit’s low-impact development requirements, including those covering permeable pavement,
bioretention, and the phasing of watershed basin planning “constitute AKART.” The 2013-2018
Permit thus would require AKART of projects with applications submitted before July 1, 2015,
and which did not commence construction by June 30, 2020. The theory of the vested rights
doctrine urged by appellants would relieve that class of projects from the duty to provide
AKART. Thus, this application of the vested rights doctrine would conflict with RCW
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No. 46378-4-II
90.48.010, RCW 90.54.020(3)(b), and WAC 173-201A-300 (2). The proper resolution of that
conflict depends on the source of the vested rights doctrine.
In West Main Associates v. City of Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986), our
Supreme Court struck down Bellevue’s local vesting ordinance, because it did not meet the due
process standards of the Fourteenth Amendment. West Main, 106 Wn.2d at 52. The ordinance
provided that rights would vest only upon filing a building permit application, but prohibited the
filing of such an application until up to eight other permits or reviews had been approved. Id. at
49. The ordinance further barred filing a building permit application until any appeal of four of
these other approvals had been resolved. Id. Not surprisingly, the court found this artifice to be
unconstitutional. The court, however, did not hold that the state’s general vesting rule, that
projects are subject to the law in effect when a complete application is filed, is compelled by
either the state or federal constitution. To do so would have approached the extremity of
implying that the reliance-based vesting rule current in the great majority of states was
unconstitutional. More recently, our Supreme Court held in Town of Woodway v. Snohomish
County, 180 Wn.2d 165, 173, 322 P.3d 1219, remanded, 2014 WL 6968436 (May 2014), that
“[w]hile it originated at common law, the vested rights doctrine is now statutory.” Accord,
Potala Vill. Kirkland, LLC v. City of Kirkland, 183 Wn. App. 191, 202, 334 P.3d 1143 (2014),
review denied, 182 Wn.2d 1004 (2015). Although arbitrarily fluctuating governmental standards
may scant the degree of fairness required by the constitution, our minority vesting doctrine is not
constitutionally required medicine for that problem.
For these reasons, the conflict between the appellants’ view of the vested rights doctrine
and state water quality law must be analysed as a conflict between two statutes. When faced
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No. 46378-4-II
with apparently conflicting statutes, we employ a two-step process. See Gorman v. Garlock,
Inc., 155 Wn.2d 198, 210, 118 P.3d 311 (2005). First, we examine whether the statutes can be
harmonized and effect given to both. City of Lakewood v. Pierce County, 106 Wn. App. 63, 71,
23 P.3d 1 (2001). Then, if the statutes truly conflict and cannot be reconciled, we give
preference to a more specific or more recently enacted statute. Tunstall ex rel. Tunstall v.
Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000).
Turning to the first step, the conflict between the two positions seems beyond the reach of
harmonization: one would exempt a certain class of projects from the new standards and one
would not. Chronology likewise is of little help. On one hand, the antecedents of RCW
90.48.010 go back to 1945, although its modern form was enacted in the early 1970s. Chapter
90.54 RCW was enacted in 1971. The lineage of WAC 173-201A-300 is more recent. See WSR
03-14-129. On the other hand, the two principal vesting statutes, RCW 19.27.095 (building
permits) and RCW 58.17.033 (preliminary subdivision approval), were each enacted in 1987.
A better window into legislative intent lies in the nature of the competing statutes. The
vested rights doctrine is a general rule covering all development within its scope, without
specific regard to the effects or interests at stake. RCW 90.48.010 and WAC 173-201A-300, in
contrast, are aimed at protecting a specific resource, the waters of the state, from a specific
threat, pollution. Chapter 90.54 RCW is of similarly focused scope, directed at ensuring the
proper utilization of the state’s water resources. RCW 90.54.010. These measures were enacted
pursuant to legislative recognition of the value of the resource and the presence of the threat.
RCW 90.48.010; RCW 90.54.010. The narrowed circumference of both focus and purpose in
33
No. 46378-4-II
the water quality measures suggests that within those bounds the more general vesting doctrine
must give way.
This conclusion flows also from our Supreme Court’s view of the purpose of the vested
rights doctrine. In West Main the court held that the purpose of the vesting doctrine is to allow
developers to determine, or “fix,” the rules that will govern development. 106 Wn. 2d at 51.
The court then took a more nuanced view in Erickson & Associates, Inc. v. McLerran, 123
Wn.2d 864, 873-74, 872 P.2d 1090 (1994), recognizing that
[t]he practical effect of recognizing a vested right is to sanction the creation of a
new nonconforming use. A proposed development which does not conform to
newly adopted laws is, by definition, inimical to the public interest embodied in
those laws. If a vested right is too easily granted, the public interest is subverted.
To use the vested rights doctrine to exempt from compliance those who filed before July
1, 2015, but who still have not begun construction over five years later, is to engage in the sort of
subversion of the public interest against which Erickson warned. Reversing the defilement of
our public waters stands high in any ranking of public interest. On the other hand, the public
interest in allowing applicants to proceed under the standards current when they applied declines
with time, as those standards become more obsolete and the excuses for inaction become weaker.
Perhaps more to the point, the 2013-2018 Permit was adopted in 2012, effective in 2013. Thus,
there can be little surprise in applying the permit’s standards to those applying before July 1,
2015.
The purposes of the vested rights doctrine and our clean water laws are not in equipoise.
The scrutiny of those purposes, as well as the specific nature of the latter, shows that protection
of the state’s waters must prevail in its conflict with the vested rights doctrine. By relieving a
34
No. 46378-4-II
class of projects from the duty to provide AKART, the vested rights doctrine would conflict with
RCW 90.48.010, RCW 90.54.020(3)(b), and WAC 173-201A-300 (2). In resolving that conflict,
these statutes have the last word.
III. CONCLUSION
For the reasons set out above, I would affirm the order of the Board.12
_____________________________________
BJORGEN, J.
12
This opinion does not examine whether the vested rights doctrine would apply in these
circumstances in the absence of federal preemption or conflict with state statutes.
35