                                                                         FILED 

                                                                      AUGUST 25, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


ALLIANCE INVESTMENT GROUP OF                  )
ELLENSBURG, LLC,                              )         No. 32370-6-111
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )         PUBLISHED OPINION
CITY OF ELLENSBURG,                           )
WASHINGTON,                                   )
                                              )
                     Respondent.              )

       KORSMO,   J. - This appeal once again requires us to consider the decision in

Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 943 P.2d 1378 (1997), and its

application to an amended Critical Area Ordinance (CAO) adopted after a short plat had

been approved. We reject appellant's interpretation of Noble Manor, affIrm the trial

court's ruling, and award respondent City of Ellensburg its attorney fees.

                                          FACTS

       Alliance Investment Group (Alliance) owns land in the City of Ellensburg (City)

that is the subject of this action. The land is zoned for light-industrial usage. Alliance

fIled a short plat application with the City on February 16,2007, to divide the property

into nine lots to develop an industrial park. While fInal plat approval was pending, the
No. 32370-6-111
Alliance Inv. Grp. v. City ofEllensburg


City also approved a building permit for a heating company office and shop on one of the

lots.

        Some of the land in the short plat was within a floodplain region, a fact that caused

the plat application to be carefully scrutinized to ensure compliance with the existing

CAO. The short plat was approved on May 28, 2008. The following year, the City

adopted a new CAO that again addressed floodplain regions. l

        Alliance asked the City for a statement of restrictions confirming that the 2009

CAO would not apply to future building permits for its short plat. Alliance contended

that its property was subject to the 2007 CAO in place at the time of the short plat. The

City's Planning Director disagreed and Alliance appealed to the City's planning

commission. Alliance lost that appeal and then filed a Land Use Petition Act (LUPA)

action in superior court.

        The superior court agreed with the City's interpretation and concluded that the

2007 CAO would not apply to future building permits. Alliance then timely appealed to

this court. We accepted ajoint brief from Futurewise and the Washington State

Association of Municipal Attorneys as amici curiae.




      lOur record does not demonstrate how the differences in the two ordinances
would impact the Alliance property.

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Alliance lnv. Grp. v. City ofEllensburg


                                       ANALYSIS

       The primary issue presented is which development rights vest upon approval of a

short plat application that is not accompanied with a building permit application. We

agree with the superior court and the administrative reviewers that short plat approval did

not necessarily vest Alliance in the 2007 CAO for future building permits.

       Washington's vested rights doctrine developed at common law, with Washington

expressly adopting a minority position that generally is more favorable to property

owners. Once a complete building permit application is filed, it will be considered under

the then-current ordinances and regulations governing the land. Abbey Rd. Grp. LLC v.

City ofBonney Lake, 167 Wn.2d 242, 250, 218 P.3d 180 (2009). That allows certainty

for the property owner who gets to choose when to vest. ld. at 250-51. The common law

vested rights doctrine ultimately also was applied to "conditional use permit applications,

grading permit applications, shoreline substantial development permit applications, and

septic permit applications." Potala Village Kirkland, LLC v. City ofKirkland, 183 Wn.

App. 191, 198,334 P.3d 1143 (2014), review denied, 182 Wn.2d 1004 (2015) (footnote

citations omitted).2 However, the vesting doctrine was never extended by the courts to

land division actions. Noble Manor, 133 Wn.2d at 280.




       2 For a concise, but thorough, recent history of Washington's vested rights
doctrine, see Potala Village, 183 Wn. App. at 197-202.

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Alliance Inv. Grp. v. City ofEllensburg


       The legislature in 1987 chose to codify the vested rights doctrine, adopting a

statute governing vesting for plats and subdivisions as well as a statute governing vesting

for building permits. The latter statute provides:

       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 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 19.27.095(1). The land division vesting statute states:

       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 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.

RCW 58.17.033.

       After the legislature acted, one question was whether the common law vesting

doctrine continued to have any force. The Washington Supreme Court first had to

address that issue in Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864, 872 P.2d

1090 (1994). There the question was whether the vesting doctrine should be applied to a

master use permit application, a mandatory part of the development process in Seattle.

Id. at 866. Seattle adopted a CAO after appellant filed a master use permit, but before a

building permit was sought. Id. The developer was told to comply with the new CAO;

instead, suit was filed to challenge the application of the CAO to the project. Id. at 866­


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Alliance Inv. Grp. v. City ofEllensburg


67. After a series of adverse administrative and court rulings, the developer obtained

review by the Washington Supreme Court. The court declined to extend the vesting

doctrine to the master use permit, reasoning that the significant legislative efforts in the

field of land use regulation militated against judicial involvement absent a need to protect

constitutional interests. Id. at 875-76.

       Erickson was applied in Abbey Road to reject an argument that a site plan vested

the applicant's development rights. There the developer filed a site plan application

expressing an interest in developing the land into a 575-unit condominium project, but no

building permits were sought at the time the plan was filed. 167 Wn.2d at 246-47.

Bonney Lake then changed its zoning laws to exclude condominiums on the Abbey Road

land. Id. at 248. The court declined to find a vesting of rights, reasoning that Erickson

controlled and there was no basis for ignoring the vesting requirements of RCW

19.27.095(1). Id. at 252-53.

       The issue was addressed again in Town of Woodway v. Snohomish County, 180

Wn.2d 165,322 P.3d 1219 (2014). There the court flatly declared: "While it originated

at common law, the vested rights doctrine is now statutory." Id. at 173. Reviewing the

Erickson/Abbey Road/Woodway line of cases, along with the legislative history behind

the 1987 statutes, the court in Potala Village rejected a contention that the filing of a

complete shoreline substantial development permit vested development rights. 183 Wn.

App. at 196-206. Noting that the legislature was quite aware of the various permits that

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No. 32370-6-111
Alliance Inv. Grp. v. City ofEllensburg


had been subject to common law vesting, the court found it significant that only building

permits were made subject to statutory vesting and concluded that the legislature did not

intend for shoreline substantial development permits to vest. ld. at 205. 3 Effectively,

Potala Village decided that the legislature had pre-empted the vesting doctrine in a

manner that foreclosed expansion of vesting to other permit types. 4

       In light of this authority, the question presented by Alliance would appear to be

easily answered--development rights do not vest under the building permit statute until

the completed building permit application is filed. RCW 19.27.095(1). Because the

legislature has comprehensively addressed land use issues, courts are not to expand the

vesting doctrine. Erickson, 123 Wn.2d at 875-76. However, the noted cases involve the

building permit vesting statute rather than the land division vesting statute, RCW

58.17.033, which also can be a source of vested development rights. The interpretation




       3 This court reached the same conclusion with respect to the effect of filing a
SEPA (State Environmental Policy Act, chapter 43.21C RCW) checklist and rejected a
construction of Noble Manor similar to that urged here in Deer Creek Developers, LLC v.
Spokane County, 157 Wn. App. 1, 10-13,236 P.3d 906 (2010), review denied, 170
Wn.2d 1021 (2011).
       4 Potala Village was not required to address the continued validity of older cases
applying the common law vesting doctrine to grading and other types of permits not
addressed by the legislature. Nothing in this opinion likewise should be construed as
opining on whether the legislature is now the exclusive source of vesting or whether the
common law rules still apply to permits not addressed by the legislature.


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No. 32370-6-III
Alliance lnv. Grp. v. City ofEllensburg


of that statute was at issue in Noble Manor, the decision on which Alliance bases its

arguments here.

       In Noble Manor, a developer initially sought to rezone land to build four duplexes

on a lot sized for three duplexes. 133 Wn.2d at 272. The county denied the request and

the developer then filed an application for a short plat to divide the land into three plots to

accommodate the three duplexes it sought to build. ld. Nearly two weeks later, the

developer filed three building permit applications, but the county accepted only one of

them because the short plat had not yet been approved. Two months later, before

approving the short plat application, the county adopted an interim zoning ordinance that

increased the lot size required for a duplex, an action that prevented Noble Manor from

building three duplexes on its lot. Id. The county subsequently approved the short plat

nearly nine months after enacting its interim zoning ordinance; the approved plat

recognized three duplexes on the site. Id. at 273. The developer re-submitted building

permit applications for the two previously rejected duplexes. The county again rejected

the applications, this time citing the interim ordinance. Id. Two weeks later the

developer again submitted the building permits; this time the counter clerk accepted them

based on the face of the short plat. Building began soon after. Id.

       After substantial construction on the three buildings, the county "red-tagged" two

of the buildings, delaying the project for a period of four months. On appeal, the

county's hearing examiner reversed the stop-work order and construction resumed. Id.

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No. 32370-6-111
Alliance Inv. Grp. v. City 0/Ellensburg


The developer completed the project and then sued the county for damages caused by the

delay. Id. The county defended on the basis that although the right to subdivide the

property had vested with the application, the right to develop three duplexes had not

vested prior to the interim zoning ordinance. Id.

       The court rejected the county's argument, determining that the additional

language 5 of the subdivision vesting statute did more than simply entitle the developer to

the benefit of the existing subdivision ordinance at the time of the short plat application.

Id. at 277. Instead, the court concluded that the purpose of the additional vesting

language was to guarantee the developer "a vested right to have that application

processed under the land use laws in effect at the time of the application." Id. at 278

(emphasis in original). Thus, a use of the land that was identified in the short plat

application was also subject to the existing zoning laws. Id. at 283. 6

       Alliance relies on Noble Manor to make several arguments that we address as two.

First, Alliance argues that only development laws in effect in 2007 should apply to future



       5 The additional language in question is denoted by underscoring: "A proposed
division of land ... 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 ... has been submitted." RCW 58.17.033(1).
       6 The court recognized this approach in two subsequent subdivision decisions.
See, Association o/Rural Residents v. Kitsap County, 141 Wn.2d 185,193,4 P.3d 115
(2000) (planned unit development filed with plat application would be built under
existing development laws); Mission Springs Inc. v. City o/Spokane, 134 Wn.2d 947,
958-59 n.12, 954 P.2d 250 (1998) (same).

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No. 32370-6-111
Alliance Inv. Grp. v. City ofEllensburg


building, seizing upon language in the opinion recognizing that the legislature "has made

the policy decision that developers should be able to develop their property according to

the laws in effect at the time they make completed application for subdivision or short

subdivision of their property." Id. at 280. This view essentially follows the concurring

opinion of Justice Sanders in Noble Manor. Id. at 288-90. Alternatively, it argues that

because the 2007 CAO was applied to the plat decision, that version also must apply to

future building permits. Second, Alliance argues both that Noble Manor only applies if

the local permit required the uses to be detailed and also that it adequately identified the

uses to which the property would be put on the plat application.

       We give short shrift to the initial argument as it is expressly contrary to the

holding of Noble Manor. There the court did consider whether all existing land use

development regulations would vest and expressly determined that only regulations

governing the identified use would vest. Id. at 283-85. It stated that position several

times and several ways, including in its conclusion:

       Not all conceivable uses allowed by the laws in effect at the time of a short
       plat application are vested development rights of the applicant. However,
       when a developer makes an application for a specific use, then the applicant
       has a right to have that application considered under the zoning and land
       use laws existing at the time the completed plat application is submitted.

               If a landowner requests only a division of land without any specified
       use revealed, then the county, city or town may consider the application to
       see if any legal use can be made of the land so divided, and no particular
       development rights would vest at that time. However, when an application
       is made for division of land for a specified use, then the applicant has the

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No. 32370-6-111
Alliance Inv. Grp. v. City ofEllensburg


       right to have that application for that use considered under the land use
       laws in effect on the date of the application.

Id. at 285. Any other position would have the absurd result of freezing land use

regulations forever upon submission of a short plat, leaving lawyers and judges centuries

in the future the task of determining what the local ordinances were that applied to this

short plat. Put another way, Noble Manor stands for the proposition that the government

may not frustrate the owner's legitimate plans made known to it during the permitting

process, but future land use policies are not required to yield to any potential, but

unexpressed, use the owner desires.

       Accordingly, we reject the argument that the 2007 CAO applies merely because it

was a land use regulation in effect when the short plat application was filed. For similar

reasons, we reject the argument that because the 2007 CAO was considered in making

the short plat decision, that version necessarily has to be considered when and if a

building permit is filed in the future. A CAO is an ordinance that has use in many

settings. The fact that it serves one purpose in the land division setting does not mean it

serves the same purpose in the building permit setting, as this case .illustrates. Here, the

flood plain provisions of the 2007 CAO had to be considered in determining whether or

not the land could be subdivided in the manner Alliance desired. The answer to that

question, however, did not also decide whether any particular desired future use of the

divided property would also satisfy the flood plain provisions. Some permitted uses of a



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No. 32370-6-III
Alliance Inv. Grp. v. City ofEllensburg


property may conflict with the CAO and others might not, but that determination cannot

be made without knowing the specific use desired and the portion of the land at issue. It

would frustrate the purpose of the CAO to not consider its application to both land

division actions and building requirements.

       The second set of arguments fare no better. Alliance contends that the Noble

Manor result applies only in those instances where the identified use was required to be

identified in the plat application, an argument that lifts language from that decision out of

context. 7 In fact, Noble Manor reached the opposite conclusion when, ironically, Pierce

County argued against an identified use vesting rule by pointing out that it had not

required the short plat applicant to identifY the uses it would make of the short plat and

did not use that information in making its plat decision. 133 Wn.2d at 284. Despite the

fact that the identified use was not required by the Pierce County form, the court still

required the county to apply the zoning law existing at the time that use was identified to

it. But under Alliance's argument, Noble Manor itself actually was decided wrongly

because the duplex usage identified by the developer there was a voluntary act rather than

one required by the county's forms. The argument failed in Noble Manor and is no more

persuasive here.



      7 See  Br. of Appellant at 11 (citing to Noble Manor, 133 Wn.2d at 278). There the
court was addressing the situation of a government ignoring information it had required
of an applicant.

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No. 32370-6-III
Alliance Inv. Grp. v. City ofEllensburg


       Alliance also argues that the city knew it intended to develop a business park on

its property, thereby entitling it to apply the 2007 CAO to any light industrial use

identified in the zoning code at that time. That conclusion does not follow from the

premise. To the extent that Alliance identified a business park as its purpose in the

subdivision, it likely has vested its rights to the light industrial zoning on the short plat

and the uses identified at the time by the zoning laws. 8 But it has vested rights only at a

very general level. Any specific project will still have to meet the development standards

at the time the building permit is filed. The vesting recognized under the land division

statute is specific to the action at issue, not to all possible uses permitted by law. Noble

Manor, 133 Wn.2d at 285 ("Not all conceivable uses allowed by the laws in effect at the

time of a short plat application are vested development rights of the applicant."). Here,

that means-at most-the nine plats are subject to the 2007 light industrial zoning and its

associated uses, but buildings to support those uses will need to conform to the building

standards (and associated ordinances such as the CAO) existing at the time they are built.

       The superior court correctly concluded that the 2007 CAO did not apply to any

future building permits that may be sought.

       The City also requests its attorney fees for prevailing a second time in this LUPA

action. As relevant to this litigation, the statute provides in part:


       8 The scope of any vested right is not before us since the only question presented
by this litigation involves the CAO.

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No. 32370-6-III
Alliance Inv. Grp. v. City ofEllensburg


       (1) Notwithstanding any other provisions of this chapter, reasonable
       attorneys' fees and costs shall be awarded to the prevailing party or
       substantially prevailing party on appeal before the court of appeals or the
       supreme court of a decision by a county, city, or town to issue, condition, or
       deny a development permit involving a site-specific rezone, zoning, plat,
       conditional use, variance, shoreline permit, building permit, site plan, or
       similar land use approval or decision. The court shall award and determine
       the amount of reasonable attorneys' fees and costs under this section if:
              (a) The prevailing party on appeal was the prevailing or substantially
       prevailing party before the county, city or town; and
              (b) The prevailing party on appeal was the prevailing party or
       substantially prevailing party in all prior judicial proceedings.
              (2) In addition to the prevailing party under subsection (1) of this
       section, the county, city, or town whose decision is on appeal is considered
       a prevailing party if its decision is upheld at superior court and on appeal.


RCW 4.84.370. Alliance argues that this appeal does not involve a "development

permit," so the attorney fees statute does not apply to this case. Reply Br. at 13.

       LUPA is the exclusive means of reviewing a land use decision. RCW

36.70C.030(l). That statute defines "land use decisions" very broadly, including "An

interpretative or declaratory decision regarding the application to a specific property of

zoning or other ordinances or rules regulating the improvement, development,

modification, maintenance, or use of real property." RCW 36.70C.020(2)(b). Both

LUPA and RCW 4.84.370 were enacted in the same legislation. See LAWS OF 1995, ch.

347, §§ 701-718. RCW 4.84.370 is the source of attorney fee awards under LUPA.

       As defined above, the fee award is available to a prevailing party on an appeal of

an action "to issue, condition, or deny a development permit involving a ... plat, ... site


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No. 32370-6-II1
Alliance lnv. Grp. v. City ofEllensburg


plan, or similar land use approval or decision." RCW 4.84.370(1). This definition is not

limited to development permits, but also to any "similar land use ... decision." Although

not treated as a term of art in the attorney fee statute, we still believe that the legislature

intended a broad meaning for the concept of "similar land use" decision as it enacted this

provision in conjunction with LUPA. The legislature treated interpretative proceedings

as land use decisions for purposes ofLUPA and it is entirely consistent with that statute

to also treat them as land use decisions for purposes of the fee award statute.

       Accordingly, as the prevailing party in both the superior court and this court, the

City of Ellensburg is entitled to its attorney fees in this case. Habitat Watch v. Skagit

County, 155 Wn.2d 397, 412-17, 120 P.3d 56 (2005). The award is subject to the City's

compliance with RAP 18.1 (d). Our commissioner shall consider any timely request.

RAP 18.l(t).

       Affirmed.




WE CONCUR:




                                                           Lawrence-Berrey, J.




                                               14 

