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      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ABBEY ROAD GROUP, LLC, a                            )
Washington limited liability company;               )      No.  80878-3
KARL J. THUN and VIRGINIA S.                        )
THUN, husband and wife;                             )      En Banc
THOMAS PAVOLKA; and VIRGINIA                        )
LESLIE REVOCABLE TRUST; and                         )
WILLIAM AND LOUISE LESLIE                           )
FAMILY REVOCABLE TRUST                              )
                                                    )
                      Petitioners,                  )
       v.                                           )
                                                    )
CITY OF BONNEY LAKE, a                              )
Washington municipal corporation,                   )
                                                    )
                      Respondent.                   )      Filed October 8, 2009
_________________________________                   )

       C. JOHNSON, J. -- This case asks us to determine whether development 

rights vest upon filing of a site plan review permit application (site plan 
application).1 Under Washington statutory law, development rights vest upon the 

filing of a complete building permit application, RCW 19.27.095(1).2 This case 

1 The full title on the application form is "Commercial or Multi-Family Site Plan Review Application Form Type 3
Permit." AR Ex. 27. 

Cause No.  80878-3

involves the question of whether any common law or constitutional due process 

principles support a different rule.  Abbey Road Group, LLC, filed a site plan 

application for a multifamily condominium development with the city of Bonney 

Lake (City).  The application was denied based on a later adopted zoning change 

which prohibited this type of development.  Abbey Road challenged the denial, first 

administratively, then in court.  The hearing examiner found that Abbey Road's 

rights did not vest.  The superior court reversed the hearing examiner's decision.  

The City appealed, and the Court of Appeals reversed and held that filing a building 

permit application is necessary to vest development rights.  We affirm the Court of 

Appeals.

                              Factual and Procedural History

       Abbey Road proposed a 575-unit condominium project on 36.51 acres within 
the City.  Bonney Lake Municipal Code (BLMC) governs development procedures;3

however, the City has not adopted a vesting ordinance.  On June 15, 2005, Abbey 

Road representatives attended a preapplication meeting with the City.  At the 

meeting, the City distributed a letter generally reviewing the information

2 The legislature also codified vesting for plat applications.  See RCW 58.17.033.
3 See Title 14 BLMC.  Chapter 14.50 governs Type 3 permits.

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Cause No.  80878-3

required for a site development plan application and indicating the land use 

application fees.  Before the hearing examiner there was evidence that City officials 

had advised Abbey Road orally and in writing that site development review would 

not vest rights in the existing commercial zoning.  Thereafter, Abbey Road 

embarked on the development process, expending more than $96,500 in the 
process.4 On September 13, 2005, it submitted a site plan application, which is part 

of a preliminary stage in the development process relative to the building permit 

application phase.  Later that same day, the City passed an ordinance rezoning the 

subject property to Residential/Conservation District, a zoning category precluding 

Abbey Road's multifamily development. 

       In an October 12, 2005, letter, the City Planning Director notified Abbey 

Road that its project had not vested under the prior ordinance because Abbey Road 

had not filed a building permit application and that its site plan application had been 

denied.  Abbey Road appealed the director's determination to the hearing examiner. 

The hearing examiner found the director correctly determined that pursuant to

4 This amount is from the hearing examiner's findings.  The record reflects other amounts.  Abbey Road did not 
dispute this particular finding or the hearing examiner's finding that Abbey Road's expenditures amounted to only 
approximately .007% of the anticipated project cost.  Clerk's Papers (CP) at 12.

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Cause No.  80878-3

Erickson & Associates, Inc. v. McLerran, 123 Wn.2d 864, 872 P.2d 1090 (1994), 

an applicant must submit a completed application for a building permit to vest the 

project.  Abbey Road filed a petition under the Land Use Petition Act (LUPA), ch. 

36.70C RCW challenging the hearing examiner's determination.  The superior court 

reversed the hearing examiner's decision.  That court concluded Abbey Road's 

development rights vested on September 13, 2005, when it filed a complete site plan 

application.

       The Court of Appeals reversed the superior court and affirmed the hearing 

examiner's determination that Abbey Road's development rights did not vest absent 

a building permit application, as required under RCW 19.27.095(1).  Further, the 

Court of Appeals declined to expand the vested rights doctrine under common law 

principles to recognize vesting upon the filing of a site plan application.  The court 

also concluded that the City's process was not unduly burdensome such that it 

unconstitutionally frustrates vesting rights, and that its vesting process complied 
with common law and statutory vesting rights.5 Abbey Road petitioned this court, 

and we accepted review.6

5 Abbey Road Group, LLC v. City of Bonney Lake, 141 Wn. App. 184, 167 P.3d 1213 (2007).
6 Abbey Road Group, LLC v. City of Bonney Lake, 163 Wn.2d 1045, 187 P.3d 750 (2008).

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Cause No.  80878-3

                                             Issue

       Whether in these circumstances the filing of a site plan application vested 

Abbey Road's development rights?

                                           Analysis

   A. Standard of Review

       Judicial review of land use decisions proceeds under LUPA.  The 

court may grant relief under LUPA only if the party seeking relief has carried the 

burden of establishing that one of the following standards is met:

           (a) The body or officer that made the land use decision engaged in 
       unlawful procedure or failed to follow a prescribed process, unless the error 
       was harmless;
           (b) The land use decision is an erroneous interpretation of the law, after 
       allowing for such deference as is due the construction of a law by a local 
       jurisdiction with expertise;
           (c) The land use decision is not supported by evidence that is substantial 
       when viewed in light of the whole record before the court;
           (d) The land use decision is a clearly erroneous application of the law to 
       the facts;
           (e) The land use decision is outside the authority or jurisdiction of the 
       body or officer making the decision; or
           (f) The land use decision violates the constitutional rights of the party 
       seeking relief.

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Cause No.  80878-3

RCW 36.70C.130(1).  On appeal, Abbey Road challenged the hearing examiner's 

decision under (b), (c), (d), and (f), asserting it was an erroneous interpretation of 

the law, a clearly erroneous application of the law to the facts, and not supported by 

substantial evidence, and it violated Abbey Road's constitutional rights.

   Standards (a), (b), (e), and (f) present questions of law, which we review de 

novo.  Standard (c) concerns a factual determination that we review for substantial 

evidence.  Substantial evidence is evidence that would persuade a fair-minded 

person of the truth of the statement asserted.  Our deferential review requires us to 

consider all of the evidence and reasonable inferences in the light most favorable to 

the party who prevailed in the highest forum that exercised fact-finding authority.  

Moreover, we give due deference to the local authority's construction of the law 

within its expertise.  RCW 36.70C.130(1)(b). Standard (d) requires us to employ 

the clearly erroneous standard of review.  Cingular Wireless, LLC v. Thurston 

County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006).  

   B. Background: Vested Rights Doctrine

   Our vesting doctrine grew out of case law recognizing that vesting rights is

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Cause No.  80878-3

rooted in notions of fundamental fairness.  This doctrine reflects the recognition that 

development rights can represent a valuable and protectable property interest.  

Erickson, 123 Wn.2d at 870.

       Washington's vested rights doctrine, as it was originally judicially 

recognized, entitles developers to have a land development proposal 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.  Hull 

v. Hunt, 53 Wn.2d 125, 130, 331 P.2d 856 (1958).

       Washington's rule is the minority rule, and it offers more protection of 

development rights than the rule generally applied in other jurisdictions.  The 

majority rule provides that development is not immune from subsequently adopted 

regulations until a building permit has been obtained and substantial development 

has occurred in reliance on the permit. Our cases rejected this reliance-based rule, 

instead embracing a vesting principle which places greater emphasis on certainty 

and predictability in land use regulations.  By promoting a date certain vesting point, 

our doctrine ensures that "new land-use ordinances do not unduly oppress 

development rights, thereby denying a property owner's right to due process under 

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Cause No.  80878-3

the law."  Valley View Industrial Park v. City of Redmond, 107 Wn.2d 621, 637, 

733 P.2d 182 (1987).  Our vested rights cases thus recognize a "date certain"

standard that satisfies due process requirements.  

       In 1987, the legislature codified these judicially recognized principles in 

RCW 19.27.095(1).  Laws of 1987, ch. 104, § 1.  RCW 19.27.095(1) reads:

       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.  

The goal of the statute is to strike a balance between the public's interest in 

controlling development and the developers' interest in being able to plan their 

conduct with reasonable certainty.  Development interests can often come at a cost 

to public interest.  The practical effect of recognizing a vested right is to potentially 

sanction 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." Erickson, 123 Wn.2d at 873-74.  If a vested right is too 

easily granted, the public interest could be subverted.  Erickson, 123 Wn.2d at 874.  

   C. Application of Doctrine

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Cause No.  80878-3

   We have previously resolved many of the arguments in this case in Erickson, 

which involved a challenge to the constitutionality of a Seattle ordinance setting the 

vesting date either when a building permit application is filed or a master use permit 

(MUP) is issued.7 The reasoning and the holding in Erickson largely control our 

decision here.  In Erickson, the developer argued both that the ordinance was 

unconstitutional and that the vesting doctrine should be expanded.  In rejecting this 

argument, we affirmed the statutory line by upholding the constitutionality of the 

ordinance and reasoning that under the ordinance, a developer could control vesting 

of a MUP application and, in all instances, vesting occurs no later than the 

statutorily prescribed building permit application stage or earlier under the ordinance 

when a MUP application is approved.  We explicitly rejected Erickson's invitation 

to expand the vesting doctrine to the filing of a MUP application based on the 

developer's arguments that the burden or cost of submitting the application was 

sufficient to support a vesting of development rights at the time of the filing of the 

application.  We confirmed that in the absence of a local vesting ordinance 

7 The parties generally proceed as if MUP applications and site plan review applications are substantially the same, 
though Abbey Road indicates there may be some difference between the processes in terms of when a developer 
incurs the cost associated with each application.  Report of Proceedings (RP) at 13.

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Cause No.  80878-3

specifying an earlier vesting date, which in Erickson was the date of the issuance of 

the MUP, then RCW 19.27.095(1) is the applicable vesting rule.

       Without addressing the statute, Abbey Road argues we should reconsider and 

overrule our decision in Erickson, maintaining we wrongly decided that case by 

failing to properly consider the cost to a developer of submitting an MUP

application.  Abbey Road bases its argument for the extension of the vesting 

doctrine primarily on the contention that the cost to a developer of submitting a site 

plan application represents a level of commitment that entitles it to a vested right 

and is sufficient to deter permit speculation.  Notably, Abbey Road raises the same 

cost-based arguments for the extension of the doctrine to MUP applications that we 

found unpersuasive in Erickson.  See 123 Wn.2d at 874-75.  In summary, in 

Erickson, we declined to extend the vesting doctrine to MUP applications on the 

basis of cost for three reasons: (1) the cost of obtaining MUP applications varies

greatly depending on the proposed project; (2) we refused to reintroduce a form of 

case-by-case analysis of costs and reliance interests, which we had rejected 40 years 

before in favor of a date certain vesting standard; and (3) unlike building permit 

applications, MUP applications may be submitted at the infancy of a project before 

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Cause No.  80878-3

the developer has made a substantial commitment to it.  Erickson, 123 Wn.2d at 874-

75.  Similarly, the costs involved in preparing and submitting a building permit 

application are often substantial.  For the same reasons we rejected the invitation to 

extend the vesting doctrine in Erickson, we refuse to expand it in this case.8

       In analyzing the vesting rules, the Court of Appeals in this case focused on 

Erickson and, in part, on the statute codifying the common law vesting doctrine.  In 

upholding the hearing examiner's interpretation and application of the law, that 

court stated, "RCW 19.27.095(1) is unequivocal and requires a 'valid and fully 

complete building permit application' be submitted for development rights to vest 

'on the date of the application.'"  Abbey Road, 141 Wn. App. at 194.  As the Court 

of Appeals recognized, it is undisputed that Abbey Road did not file a building 

permit application.  Further, Abbey Road points to no authority, either in its briefing 

to lower courts or to this court, allowing us to simply ignore the legislative directive 

8 Abbey Road also argues that we should expand the vested rights doctrine based on case law, contending that there 
is no "rational reason" for refusing to expand the doctrine to site plan applications when the courts have done so in 
other contexts.  Pet'rs' Reply to Resp. to Suppl. Br. at 3.  See Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 
Wn. App. 59, 510 P.2d 1140 (1973) (grading permit applications); Talbot v. Gray, 11 Wn. App. 807, 525 P.2d 801 
(1974) (shoreline permit applications); Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wn. App. 
709, 558 P.2d 821 (1977) (septic tank permit application); Beach v. Bd. of Adjustment, 73 Wn.2d 343, 438 P.2d 
617 (1968) (conditional use permit applications); Weyerhaeuser v. Pierce County, 95 Wn. App. 883, 976 P.2d 
1279 (1999) (conditional use permit applications). Again, in Erickson, we considered and rejected similar 
arguments, and we are not persuaded to overrule our analysis or holding in Erickson.

                                              11 

Cause No.  80878-3

set out in RCW 19.27.095(1).

       Instead of discussing the relevance of this statutory directive to its case, 

Abbey Road's briefing presents the argument that Victoria Tower P'ship v. City of 

Seattle, 49 Wn. App. 755, 745 P.2d 1328 (1987) conflicts with Erickson and should 

control the outcome of this case.  Abbey Road argues that Victoria Tower expanded 

the vested rights doctrine to include the filing of a site plan application.  It reasons 

that Victoria Tower stands for the proposition that the filing of an MUP application 

vests development rights and that the same should hold true for a site development 

plan.  But as the Court of Appeals properly noted,"[E]ither the Victoria Tower 

courts assumed that the two types of permits were equivalent or the distinction 

between a[n] MUP and a building permit was not before those courts."  Abbey 

Road, 141 Wn. App. at 195 (citing Erickson, 69 Wn. App. at 568). As such, the

Court of Appeals correctly recognized that Abbey Road wrongly reads Victoria 

Tower.  Victoria Tower did not change the long established requirement that, in 

order to preserve development rights, a building permit application must be filed.

Even if Victoria Tower can be read to expand the common law vesting doctrine to 

MUP applications, it has been superseded by RCW 19.27.095(1) and our analysis in 

                                              12 

Cause No.  80878-3

Erickson.

                                              13 

Cause No.  80878-3

   D. Expansion of Doctrine To Protect Individual Due Process Rights

       Abbey Road also argues we should expand the vesting doctrine to site plan 

applications in this case to protect its due process rights because the City's vesting 

process necessarily delays and frustrates vesting for large projects such that it is 

"unduly oppressive" under West Main Associates v. City of Bellevue, 106 Wn.2d 

47, 52, 720 P.2d 782 (1986).  Abbey Road contends the hearing examiner 

erroneously concluded that West Main was inapposite and that Bonney Lake's 

process did not frustrate vesting.  According to Abbey Road, the hearing examiner 

incorrectly found it had the ability to fix the vesting date by submitting a building 

permit application at any time during the site plan review process and that the City 

processes site plan development permit applications and building permit 

applications concurrently.  Resp't's Br. at 27-28.  

       In West Main, a developer challenged the validity of a Bellevue vesting 

ordinance which prohibited the filing of a building permit application until after a 

series of procedures was complete, including procedures such as administrative 

design review approval, site plan review approval, administrative conditional use 

                                              14 

Cause No.  80878-3

approval, and modification of landscape approval.  The ordinance also provided that 

development rights would vest only as of the time a building application was filed.  

This court held the Bellevue ordinance unconstitutional because the City denied the 

developer the ability to vest rights by filing for a building permit application until 

after a series of preliminary permits was obtained.  The court concluded this amount 

of discretion subverted the vesting doctrine's underlying purpose, which is to 

protect a citizen's right to develop property free of the "fluctuating policy" of 

legislative bodies.  106 Wn.2d at 52-53.  The problem with this argument is that 

Abbey Road has not identified any similar ordinances in the BLMC.

       Nonetheless, Abbey Road argues that the City's application process is 

unconstitutional under West Main, and it relies primarily on its interpretation of the

City's building permit application form.  Abbey Road argues that the City's 

procedures, as evidenced by its building permit application form, "[r]equir[e]

approved site development plans for a complete commercial building permit 

application. . . ." Resp't's Br. at 37.  Abbey Road asserts it should be able to rely 

on the accuracy of the application form, and conditioning submission of the building 

permit application on prior approval of the site permit application is prohibited 

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Cause No.  80878-3

under West Main.  Resp't's Br. at 37, 40.  

       In response, the City contends that Abbey Road misinterprets the form, that 

nothing in the BLMC prevents a developer from submitting a building permit 

application before a site development application is approved, and that separate 

submission and approval for each type application is a voluntary process.  

According to the City, a developer can submit the site plan application and wait for 

the City to approve it before submitting a building permit application, or a developer 

can submit both applications to the City for concurrent review.  If a developer 

chooses to do the latter, the concurrent submission will vest development rights, so 

long as a complete building permit application has been filed.

       The City's building permit application form contains a checklist delineating 

items that may be included as part of the building permit application.  Above the 

checklist, the form states, "Commercial Building Permit[:] [m]ust be submitted with 

the following." Beside each item on the list that follows, there are two boxes; one, 

when checked, establishes that the item has been "submitted," and the other denotes

the item is not applicable (N/A).  One of the items on that list is "Six Copies of the 

Approved Site Development Plans."  AR Ex. 28.

                                              16 

Cause No.  80878-3

       After hearing the testimony of Abbey Road representatives, including Gil 

Hulsmann and city officials, the hearing examiner found "not all documents listed on 

page 2 need be submitted for a completed application," because "the form contains 

a block for 'N/A' which means 'not applicable'".  Clerk's Papers (CP) at 35.  He 

further found that the City's past practices in at least two projects provide evidence 

confirming the City does not require prior approval of a site plan permit application 

before it allows a developer to apply for a building permit application.  Specifically, 

the hearing examiner found:

       Mr. Hulsmann also served as agent for Abbey Road Group, LLC, 
       in the Windermere Real Estate office project and submitted a building 
       construction permit application packet on March 12, 2004, prior
       to receiving Type 3 permit approval. . . .  Thus, contrary to his
       testimony, in one of Mr. Hulsmann's own projects, he submitted
       a building permit application well in advance of receiving Type
       3 approval.

CP at 35-36.  In addition, the hearing examiner found: 

       [I]n the Kitsap Bank project the applicant submitted a "Commercial 
       or  'Multi-Family Site Plan Review Application Form" on January 19, 
       2004. . . . The applicant also submitted a Commercial Building 
       Permit Application on January 20, 2004, one day after submitting 
       the Type 3 permit application. . . .  The City issued the Type 3 
       approval on August 28, 2004, . . . and apparently was prepared to 
       issue the building permit on August 19, 2004.

                                              17 

Cause No.  80878-3

CP at 36.  Based on the testimony and the exhibits, the hearing examiner concluded:

       [T]he Type 3 process does not prohibit an applicant from filing a building 
       permit application prior to completion of the process.  To the contrary, the 
       intent of the [BLMC] is to streamline and combine reviews for various 
       permits and guide development in the City. The [BLMC] encourages 
       concurrent review of building permit applications and Type 3 applications.

CP at 37-38.

       Abbey Road responds by arguing that the "N/A" boxes appear next to each 

item on the checklist making it more likely that the submission of each item on the 

list may not be required in every instance.  For example, a site development plan

may not be required to obtain a building permit for the remodel of an existing 

building.  Abbey Road argues this is a hurdle similar to that found unconstitutional 

in West Main.  But in West Main an ordinance prevented developers from filing a 

building permit application before other requirements were met.  

       Here, we have no ordinance or regulation precluding Abbey Road from 

simultaneously filing a site plan and a building permit application.  Instead, the City 

claims to allow an integrated permitting process.  It was Abbey Road that chose not 

to use this process, but to obtain site development plan approval before undertaking 

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Cause No.  80878-3

the additional step of filing a building permit application.  While this may make 

good business sense, as building plans may change significantly depending on the 

final site plan approval, by the same token it suggests a builder that is not ready to 

proceed, and thus is not entitled to vesting under the very rationale of that doctrine. 

See Roger D. Wynne, Washington's Vested Rights Doctrine: How We Have 

Muddled a Simple Concept and How We Can Reclaim It, 24 Seattle U. L. Rev.  

851, 928-29 (2001) (noting the developer may want to hedge its bets by seeking one 

permit at a time but does so at its own risk).  But unlike the facts in West Main, the 

City here provided a process that allowed a builder the ability to control the date of 

vesting. Abbey Road's failure to seek a building permit prevents it from 

establishing that Bonney Lake would have refused the simultaneous filing or that it 

would have deemed the building permit application incomplete without a previously 

approved site plan.

       The dissent insists that Abbey Road could not have filed a complete building 

permit application to allow it to vest, and thus the integrated process contemplated 

by Bonney Lake was no more acceptable than the Bellevue ordinance we declared 

unconstitutional in West Main.  But the dissent misunderstands the vesting scheme 

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Cause No.  80878-3

under RCW 19.27.095.  The statute leaves to the local authority the determination 

of when a building permit application is "fully complete[]." RCW 19.27.095(2).  

While there are certain minimum requirements for projects over $5,000, there is no 

contention these are at issue in this case, and even as to these requirements, the 

statute provides that an application submitted before this information is available 

will be deemed fully complete for vesting purposes so long as the applicant provides 

the required information as soon as it can reasonably be obtained.  RCW 

19.27.095(5).  Here, as the hearing examiner determined, Bonney Lake accepted 

building permit applications during the pendency of site development plan review, 

and Abbey Road could have submitted a "complete" building permit application 

without awaiting approval of the site development plan.

       Nothing in the statute or the record in this case supports the dissent's 

contention that a building permit application cannot be deemed "complete" until an 

applicant who is denied a permit would be entitled to demand its issuance by 

bringing a writ of mandamus.  This conclusion rests on a premise we have rejected, 

specifically a false dichotomy between ministerial and discretionary acts in the 

context of vesting rights under a building permit.  See Norco Constr., Inc. v. King 

                                              20 

Cause No.  80878-3

County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982) ("The distinction between 

ministerial and discretionary acts is not relevant to the validity of procedural limits 

placed on the decisionmaking entity.  The need for a 'date certain' upon which a 

right vests is to avoid tactical maneuvering between parties and that need would 

appear equally strong whether the act is discretionary or ministerial.") While some 

early vesting cases arose in the context of a mandamus action, it is broadly 

recognized that most land use decisions today involve at least some measure of 

discretion and are not subject to a writ of mandamus.  See Richard L. Settle, 

Washington Land Use and Environmental Law and Practice § 8.4(a) (1983).  

Moreover, the mandamus cases provide no support for the dissent's conclusion that 

a developer's rights vest upon application for a site plan review permit because the 

"date certain" established in the mandamus cases is the date the developer applies 

for a building permit.  See State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492, 

495-96, 275 P.2d 899 (1954) ("The right accrues at the time an application for a 

building permit is made."; Hull, 53 Wn.2d at 130 ("[T]he right vests when the party 

. . . applies for his building permit, if that permit is thereafter issued."). Nor is there 

any suggestion that a local authority lacks the discretion to deny site plan approval 

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Cause No.  80878-3

(and all subsequent permits necessary for development) once a complete site plan 

review permit application is filed, so that the mandamus rationale would support 

vesting at this early stage.

       In the final analysis, nothing in the City's municipal code or in its application 

procedures conditions the submission of a complete building permit application on 

prior approval of a site permit plan application.  Abbey Road's own erroneous 

interpretation of the building permit application form is not a basis for finding the 

City's vesting procedures unconstitutional under the West Main standard. Abbey 

Road elected to proceed by obtaining site plan approval before applying for a 

building permit and cannot argue that its interpretation of the process it chose makes 

that process unconstitutional.

       Although Abbey Road also argues that its case is analogous to West Main in 

part because it would have to file 24 building permit applications, its analogy fails.

The number of requisite separate building permit applications is a function of the

size of the project and does not make the process unduly oppressive.  Here, the fact 

that Abbey Road has chosen to construct a 575-unit condominium project with 24 

buildings is not a basis for altering the vesting doctrine.  Abbey Road argues that the 

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Cause No.  80878-3

size or complexity of a project should determine the vesting date.  If we accept its

proposed rule, then the larger the development project is the more generous the 

vesting would be.  We reject such a rule.  Whether a planned development will have 

a single building or multiple buildings, in the absence of a local vesting ordinance, 

RCW 19.27.095(1) establishes the "date certain" standard for vesting regardless of 

the project size.  It is the filing date of a building permit application.  We conclude 

that, under Erickson, Abbey Road's arguments do not support a change in the 

vesting doctrine.

       Finally, Abbey Road argues that as a matter of fundamental fairness this court 

should expand the vesting rights doctrine to all land use applications.  They maintain 

that we should do so to harmonize a haphazard common law vesting doctrine, 

provide certainty to developers, protect developers' expectations against fluctuating 

land use policies, and update a doctrine that has failed to keep pace with 

increasingly complex changes in land development processes.  To establish this 

fairness and certainty in the development process, Abbey Road urges this court to 

establish a uniform vesting point "for every land use permit application regardless of 

the permit's name or what it does or does not do." Pet'rs' Reply to Resp. to Suppl. 

                                              23 

Cause No.  80878-3

Br. at 3-5.  We find that such a rule would eviscerate the balance struck in the

vesting statute.  While some of Abbey Road's arguments could support a change in 

the law, instituting such broad reforms in land use law is a job better suited to the 

legislature.  See Wynne, supra, at 916-17 ("[r]eform [of the vesting rights doctrine] 

should not be left to the judiciary, which must focus on one narrow fact pattern at a 

time"; advocating legislative reform).

       We affirm the Court of Appeals.

AUTHOR:
       Justice Charles W. Johnson

WE CONCUR:
                                                        Justice Susan Owens

                                                        Justice Debra L. Stephens

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Cause No.  80878-3

                                              25