Northwest Real Estate Law Blog : Northwest Real Estate Lawyer & Attorney : Davis Wright Tremaine Law Firm : Land Use, Development, Commercial Property : Seattle, Portland, Alaska, Washington, Oregon

Authored by: Karen Thiessen

As originally published in Daily Journal of Commerce

Folks in the hotel or restaurant industry are probably very familiar by now with “radius restrictions.” These requests are increasingly being included in contracts by landlords in commercial leases, owners in management agreements (such as for hotels, restaurants, theaters or other venues operated on behalf of the owner for a fee), and licensees in brand franchise agreements.

The restrictions typically limit the tenant, manager or licensor from opening, operating, permitting or otherwise engaging in their business in another location within a certain radius or area, known as the area of protection (or AOP).

When encountering a proposed radius restriction clause, negotiate carefully. While many radius restrictions are reasonable, they can easily become overbroad. A savvy “restricted party” will think beyond only present operations to how the radius restriction may impact other business opportunities.

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As originally published in the Daily Journal of Commerce

Authored by:  Clayton Graham

There are some good tidings for developers even in the gloom of a sluggish economy. Permit turnaround times are generally quick in local planning departments, and many contractors, builders and design professionals are eager to take on new projects at competitive prices.

Barring any financing issues, all this can help developers and owners get their projects built more quickly and efficiently.

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As originally published in the Daily Journal of Commerce

Authored by: Phil Grillo

The Portland Plan is coming, and people who recall the River Plan, which the city of Portland enacted last year, will find this one familiar. Like the River Plan, this new plan has been developed through a bottom-up planning process. This involved several years of community meetings and public outreach, resulting in more than 20,000 comments from residents and businesses.

And like the River Plan, which has been appealed to Oregon’s Land Use Board of Appeals and the Oregon Court of Appeals, the Portland Plan may have a negative impact on the family-wage jobs in the working harbor.

The Portland Plan will be adopted by City Council and used to guide the city’s land-use decision-making process over the next 25 years. Many of the policies adopted in the Portland Plan will eventually find their way into the city’s adopted comprehensive plan and zoning code, so now is the time to positively influence those decisions.

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Authored by: Linda White Atkins

The Washington State Department of Ecology announced today that beginning in late 2012, up to 9,400 acre feet of water to be released from Sullivan Lake in Northeast Washington will become available for new water rights in Pend Oreille, Ferry, Lincoln, Stevens, Okanogan and Douglas counties. Additional amounts of released water will be available to support stream flows for the benefit of fisheries in Sullivan Creek, the Pend Oreille River, and the Columbia River. The Ecology announcement notes that the water is being made available because the Pend Oreille Public Utility District is surrendering its license for the Sullivan Creek Hydroelectric Project. Any new water right applications, however, will join the end of the line of pending applications that Ecology has deemed potentially eligible for water supply from this release.

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If you have a water right issued by the Washington Department of Ecology, you may not think very much about whether it is called a water right “permit” or a water right “certificate.” Permit, certificate, isn’t it the same?

Truth be told – No, these documents are not the same, and may be treated very differently under the law, particularly when it comes to applying to Ecology for permission to make changes to the water right.

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As originally published in the Daily Journal of Commerce

Authored by: Marcus Eyth

Lots of people in the construction industry have been talking about public-private partnerships recently. But many folks aren’t really sure what a PPP is, don’t understand the players and their roles, and may not recognize the risks and potential benefits.

PPPs have been used in the U.S. for more than 225 years in various forms, and include wildly successful and famous projects such as the Erie Canal, the Holland Tunnel, Grand Central Terminal, the Brooklyn Bridge, the New York subway and the Boston subway.

Fundamentally, PPPs consist of a contractual relationship between a public agency and a private entity (usually referred to as a “concessionaire”) with a purpose of delivering a service or facility for the use of the general public. Stated differently, the agency and the private entity jointly supply money to build, operate and maintain a public project, with both sides sharing the risks and rewards of project delivery.

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Authored by: Monique Hawthorne

Back in October of 2010, Henry Gifford filed a class action lawsuit against the US Green Building Counsel (USGBC), which is the non-profit responsible for administering LEED certification for buildings and homes. Mr. Gifford alleged several issues including that the USGBC fraudulently represented the performance of LEED buildings, that it participated in false advertising, and that it operated to monopolize green building standards. Somewhere buried in the complaint, he also let on that he was really mad at the USGBC because he lost clients and business opportunities because he was not LEED accredited. When I first heard about the lawsuit, my reaction was “oh brother, really?!” Doesn’t Mr. Gifford know how the USGBC revolutionized green building in the U.S.? Show a little respect! Can you really accuse the USGBC of fraud? Okay, you can accuse them, but can you prove it?

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Authored by: Larry Burke

House Bill 3325 provides a mechanism for potential purchasers to obtain a higher level of certainty regarding potential environmental liability. A “brownfield” is a vacant or underused property where actual or perceived environmental contamination complicates expansion or redevelopment. Prospective purchasers of brownfields may decline to buy or develop the land out of fear of the potentially high costs of investigating and cleaning up the property. This legislation clarifies DEQ’s authority to provide a prospective property owner with release from liability for existing spills or releases of oil and other hazardous substances and for prior entry of such substances into waters of the state. The DEQ release from liability may be accomplished by either an administrative order on consent or a judicial consent judgment. Of course, owners will remain liable for any spill or release of oil or hazardous substance, or release of oil into state waters, which occurs after they have become an owner or if they exacerbate or contribute to the release or are otherwise negligent or violate the law. The legislation also confirms that a purchaser of land or a facility already subject to administrative agreement may be released by DEQ if the purchaser adopts and agrees to be bound by agreement. 

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Authored by: Monique Hawthorne and Thomas Smith

Unless you have been living under a rock, you know that we are still in a recession. Unemployment is still up, debt is out of hand, and commercial real estate values have not bottomed out.

It is a difficult market because while values continue to decline, the availability and cost of financing is more challenging than ever. With that said, there are real opportunities in commercial real estate for investors with liquid assets available.

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Authored by:  Clayton Graham and Jim Greenfield

Many Seattle landlords and other building owners will soon need to begin reporting on the energy efficiency of their buildings. As reported in DWT’s Northwest Real Estate Blog last year, a Seattle ordinance passed in connection with the state’s Efficiency First! Act requires many Seattle building owners to provide “energy benchmarking reports” to the Director of the Department of Planning & Development using the federal Environmental Protection Agency’s Energy Star Portfolio Manager or a similar system. 

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Authored by: Monique Hawthorne

It is quite possible that everyone has heard about WaterSense already, and I am simply late to the party. But, on the off chance that you haven’t heard, let me be the one to tell you about the Water House, which is the very first WaterSense certified home in Oregon. WaterSense is a new EPA certification program for new homes to increase water efficiency. Yes, it is true that the ubiquitous LEED certification includes water efficiency as a goal as well, but WaterSense dives deeper (sorry, I couldn’t help myself). The Water House is going to serve as a laboratory so that others can learn about different sustainable building practices, materials and systems. The Water House has been included on the Portland “Build it Green” tour, and its development was made possible through public and private partnerships with local green-building leaders donating over $150,000.00 of labor and materials.

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Authored by: Jim Reinhart

As published in the Daily Journal of Commerce

How should a potential tenant decide which building to select for office space? Rental rate, incentives, class of space, location and tenant improvements make the usual list of important factors. In this competitive market, landlords are paying more attention to how they can differentiate their office space from the building down the street. One inventive way is to allow pets.

Portland has a few pet-friendly office buildings. Wieden + Kennedy, recognized for its originality, is known for the dogs in its building. Both its employees and its tenants can bring their dogs into the office. Despite a lack of policy, Portland’s EcoTrust Building has many dogs inside. Most buildings expressly do not allow pets, but that is changing around the country and in the Portland-metropolitan area.

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Authored by:  Clayton Graham

The Washington Supreme Court recently removed one vehicle for developers to challenge requirements imposed under local governments’ shoreline regulations. In Citizens for Rational Shoreline Planning (CRSP) v. Whatcom County, the Court considered whether regulations in the County’s Shoreline Master Program (“SMP”) could be challenged under a provision of RCW 82.02.020 which generally prohibits any local government from “impos[ing] any tax, fee, or charge, either direct or indirect, on . . . the development, subdivision, classification, or reclassification of land,” subject to certain exceptions. Since its enactment, the meaning of this provision has been litigated many times and has been found to limit local governments’ land use regulations. For example, the Division I Court of Appeals relied on this statute in striking down portions of a King County ordinance that limited the amount of clearing an owner could do on a rural lot, finding that these restrictions were “an in kind indirect ‘tax, fee, or charge’ on development.” See Citizens Alliance for Property Rights (CAPR) v. King County.

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Authored by:  Clayton Graham

A recent Court of Appeals decision has limited the situations in which courts will allow a “nonconforming use”—that is, a use that was legal when it was established but is no longer permitted under current local land use regulations (sometimes referred to as “grandfathered”).  Many local land use codes allow nonconforming uses to continue subject to certain limitations, such as a prohibition on expansion or changes to the use. While many codes state that the nonconforming use must be “lawfully established,” they do not generally specify whether, to be “lawful,” the use must have complied only with land use regulations or with other laws as well.

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