Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin March 10, 20161 Volume 10 Issue 5 19.27.095(1) and RCW 58.17.033(1)—provides 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. The Counties argued that enforcement of condition S5.C.5.a.iii would require permittees to violate the vested rights of developers because: (1) the required stoiniwater regulations were 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. The DOE (along with Puget Soundkeeper Alliance) argued that the 2013-2018 Permit would not require permittees to violate the vested rights doctrine because the required regulations were environmental regulations, not land use control ordinances. The Board agreed with the DOE. It held that the 2013-2018 Permit did not violate the vested rights of property developers because the 2013-2018 Permit's requirements were environmental regulations. The Appellants appealed. The Court's Decision: Judgment of superior court reversed, and matter remanded. The Court of Appeals of Washington, Division 2, held that: (1) the 2013-2018 Permit's required stormwater regulations were "land use control ordinances" under the vested rights statutes; and (2) enforce- ment 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. In determining whether the 2013-2018 Peiniit's required stormwater regulations constituted "other land use control ordinances" under RCW 19.27.095(1) and RCW 58.17.033(1), the court looked at the plain language of the statutes. Finding neither defined "land use control ordinance," the court looked to case law that had defined "land use control ordinance" as an ordinance that "exerts a restraining or direct- ing influence over land use." The court then found that the type of stormwater ordinances required under the 2013-2018 Permit "clearly would satisfy" that definition of "land use control ordinance" as they would exert a restraining and direct influence over the development and redevelopment of land to effectuate the DOE's regulation of stormwater discharges in Washington's waters. Again, the DOE had argued that the 2013-2018 Permit's required regulations were environmental regulations and therefore could not be considered land use control ordinances that were subject to the vesting rights statues. The court rejected that argument, noting that nothing in © 2016 Thomson Reuters 7