Agenda - Planning Commission - 04/06/2017

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Zoning Bulletin February 25, 2017 I Volume 11 I Issue 4 Citation: Snohomish County v. Pollution Control Hearings Board, 2016 WL 7495874 (Wash. 2016) WASHINGTON (12/29/16)—This case addressed the issue of whether Washington's vested rights doctrine —which entitles develop- ers to have a land development proposal processed under the regula- tions in effect at the time a complete building application is filed, regardless of subsequent changes in zoning or other land use regula- tions —excuses compliance with the state -mandated requirements of a municipal storm water permit. In addressing that issue, the case ad- dressed the issue of "[w]hat constitutes a 'land use control ordinance,' " and more specifically, whether a storm water regulation is a "land use control ordinance" subject to the vested rights doctrine. The Background/Facts: Pursuant to the the Federal Water Pollution Control Act (also known as the Clean Water Act) ("CWA"), 25 U.S.C.A. §§ 1251-1388, and the National Pollutant Discharge Elimina- tion System ("NPDES") permitting program established by the CWA, the Washington State Department of Ecology (the "Department") is- sued the third iteration of a municipal storm water permit (the "2013 Phase I Permit"). That latest iteration of the storm water permit required the owners or operators of large and medium municipal separate storm sewer systems to adopt and make effective a local storm water manage- ment program by June 30, 2015. The program could include local ordi- nances and "shall apply to all [development] applications submitted af- ter July 1, 2015 and shall apply to [development] projects approved prior [to] July 1, 2015, which have not started construction by June 30, 2020." Various permittees—including several counties -(collectively, the "Counties") appealed that portion of the permit to Washington's Pollu- tion Control Hearing Board (the "Board"). They argued that the 2013 Phase I Permit violated the vested rights doctrine because it compelled them to retroactively apply new storm water regulations to completed development applications. Originating at common law but now statutory, Washington's vested rights doctrine "entitles developers to have a land development pro- posal processed under the regulations in effect at the time a complete building permit application is filed, regardless of subsequent changes in zoning or other land use regulations." (See, e.g., RCW 19.27.095 (building permits) and RCW 58.17.033(1) (land division).) The Department maintained that the vesting statutes were intended to limit the exercise of municipal discretion, and thus did not apply to municipal storm water permits because they were required under state action, not municipal action. The Board agreed that the vested rights doctrine does not apply to storm water regulations permittees must implement as part of the © 2017 Thomson Reuters 3