Wash. State Dep’t of Trans. v. City of Seattle, No. 72719-2-I (Wash. Ct. App. Feb. 29, 2016).
The Washington State DOT is currently replacing the old Evergreen Point Floating Bridge, which spans Lake Washington. The west side of the replacement bridge begins in Seattle, in a wetland area, so the DOT duly obtained an environmental permit to build there. But the DOT also needed a temporary easement from the city, because it would be building the western approach to the new bridge over public property.
The city issued the easement, but made it conditional upon DOT’s getting a “grading permit”—a permit that allows a builder to change the “grade,” or degree of slope, of existing land. But Seattle’s municipal code contains an exception to this grading-permit requirement: the code says that “development undertaken by the” state DOT on a “state highway right-of-way” doesn’t require a grading permit. It is state route 520 that the Evergreen Point Floating Bridge extends across a lake, so you’d think that this permit exception would apply here.
According to Seattle, though, the permit exception doesn’t apply because the replacement bridge isn’t open to public travel yet. This position makes no sense. Before a portion of highway can be replaced or repaired, it normally has to be closed to public travel, at least temporarily. That closed portion, if Seattle’s logic is followed to its conclusion, would not qualify as a state highway right-of-way—in which case it’s difficult to see what practical application Seattle’s own permit exception for the state DOT would have. That exception would never be applicable anytime the DOT replaces or repairs (or, for that matter, builds) a highway.
Not surprisingly, then, the Court of Appeals rejects Seattle’s position and holds that the DOT had no obligation to get a grading permit.