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

In a recent impact fees case, Belleau Woods v. City of Bellingham, the Division I Court of Appeals upheld the City of Bellingham’s application of a new park impact fee ordinance to a development that was already conditioned on a land dedication and payment under a separate parks-related development requirement. The Court reaffirmed its prior holdings that new impact fees can be applied to some developments that have already been approved, and that the doctrine of vesting did not protect the developer from the newly-created park impact fee. Based on its extensive analysis of the provisions of a development agreement and the municipal code, the court reversed the Superior Court on the impact fees issue. The Court reinstated the City Hearing Examiner’s decision that the City could apply the new impact fee and the prior park-related mitigation measures concurrently to the development. The Belleau Woods case highlights the importance of assessing all local code provisions that might require or authorize mitigation, even where separate code provisions seem to target similar development impacts.

• Email This
• Print
• Comments
• Trackbacks

We recently met with some surveyors, who passed on the following tips for keeping costs down on land surveys:

 

• In order for them to provide a realistic price quote, they need to see copies of the property title report, the prior survey (if you have it), and the lender's survey requirements (including the form of surveyor's certificate required by the lender).

• Attached is a PDF of the 2005 minimum standards for an ALTA/ACSM survey.  The "Table A items" on pages 4 and 5 are the additional items that a surveyor can show on a survey.  Ask your surveyor to look at the list of Table A items required by your lender.  The following Table A items can significantly increase the cost of the survey:

• Item #1:  Placing a monument (e.g., a marker or a pin) at every major corner on the property.  The surveyor must also file a record of survey with the County Recorder’s office at an additional cost of approximately $2000.

• Item 5:  Showing the contours and the elevations of the property.  This is usually required only if development or construction on the land is involved.

• Item 7(b)(2):  Calculating the gross floor area of all buildings on the property.  

• Item 11(b):  Mapping the location of underground utilities.  See if your lender will accept Item 11(a) instead, in which the surveyor shows the location of utilities based on observed evidence on the surface.

• Make sure the list of items your lender says it wants the surveyor to cover is consistent with the lender’s form of surveyor’s certificate.  The lender’s form of surveyor’s certificate often contains additional requirements, so the cost to you will increase if the surveyor has to go back and do additional work.

• For projects with lots of acreage, one way to cut down on costs can be to have an aerial photogrammetry map done showing the location of interior buildings.  Traditional survey methods would then be used to establish the boundaries of the property and any features within 5 feet of the boundaries.  You should talk to your lender about whether this method is acceptable in lieu of a traditional ALTA/ACSM survey.

One other tip: surveyor contracts often contain a provision limiting their liability for any errors to the cost of the survey, which doesn’t provide much protection to you.  It’s worth asking the surveyor to delete that limitation before you sign the contract.

 

ALTA 2005 Standards (pdf)

• Email This
• Print
• Comments
• Trackbacks

Recent federal legislation to provide financial relief to current and prospective homeowners through refinancing, mortgage payment modification, changes in bankruptcy law, and tax credits for first-time homebuyers, addresses four critical consumer issues in today’s real estate market: (1) troubled ownership; (2) imminent default; (3) imminent foreclosure; and (4) first-time purchase.

This advisory provides a brief overview of the new legislation and related programs, and addresses how consumers can take advantage of them. Some basic examples of specific scenarios are included.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

The U.S. Green Building Council (USGBC) recently announced the details of the much-anticipated Leadership in Energy and Environmental Design (LEED) Version 3 building certification program (LEED v3, also referred to as LEED 2009). LEED, a third-party certification program, is the nationally accepted benchmark for the design, construction and operation of high performance green buildings.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In January, we discussed the Seattle City Council’s consideration of Council Bill 116404, which would increase tree protection under the City Code. On February 23, 2009, the City Council passed the ordinance with a vote of 8-1, and the Mayor signed the legislation on March 2^nd. This ordinance limits removal of “exceptional trees” (as defined in the City Code and regulations) and trees 6 inches in diameter or greater on certain residential and commercial lots within the City.

 

• Email This
• Print
• Comments
• Trackbacks

In this March 3, 2009 decision, the Kitsap County Hearing Examiner denied a Conditional Use Permit for a day care center and school in a rural area near Port Orchard based on the Examiner’s finding that "[t]he proposal would be materially detrimental to uses or property in the immediate vicinity, and would not be compatible with the existing character, appearance . . . and physical characteristics of property in the immediate vicinity." The Examiner based this finding on a number of possible impacts of the proposal, including "[n]oise generated by laughter and screaming of young children during outdoor playtime and [added] vehicle trips to and from the property." The Examiner also cited traffic safety concerns, and possible impacts to wetlands near trails on the property, as"[y]oung children accompanying instructors to group gatherings . . . would likely not stay on the existing path or footbridge, but would venture off the path trampling stream banks and wetland area . . ."

The Kitsap Sun and KOMO News have both run stories on the denial, which could be appealed to the Kitsap County Board of Commissioners.

• Email This
• Print
• Comments
• Trackbacks

If you have a commercial real estate loan, the loan documents probably give the lender the right to conduct periodic property inspections. And in today’s economy, lenders are taking a hard look at the collateral securing their loans. Loan documents often give lenders certain remedies if there are concerns about the property, such as allowing the lender to require or increase repair reserve payments, to increase financial reporting requirements, to require rents to be paid into a lockbox, to impose a default interest rate, and in certain cases even to call a default on the loan.

So where should you spend your hard earned maintenance dollars? In 2008, the Mortgage Bankers Association (MBA) issued a new commercial/multifamily real estate property inspection form for a variety of property types, such as Office, Retail, Multifamily, Healthcare, Lodging and Industrial. The inspection form has received industry-wide adoption by funding sources, including Fannie Mae and Freddie Mac (although apparently not by the Federal Housing Administration).

Property owners and management companies should review the inspection form and the reference guide to see how lenders will be evaluating their properties. The guide also provides a helpful overview of the inspection process, so you’ll know how to prepare for the inspection and what kinds of information the inspector will want from you.

 

• Email This
• Print
• Comments
• Trackbacks

Seattle’s Department of Planning and Development (DPD) is currently updating the City’s Shoreline Master Program, which regulates land use and development on and near the City’s shorelines. As a part of this update, which is slated for completion around December 2010, the City has carried out a comprehensive study of the relative health of Seattle’s shorelines. The report, entitled Seattle Shoreline Characterization Report (available on DPD’s website here), classifies the relative health of Seattle’s shorelines from "Least Impaired" to "Most Impaired" based on a number of factors relating to shoreline ecological functions. Among the areas classified as "Most Impaired" are Lake Union and its Ship Canal, the Duwamish near Harbor Island, and the Downtown Waterfront.

Given the State Department of Ecology’s mandate that local Shoreline Master Programs protect "ecological functions of the shorelines," owners of land near the more "impaired" shorelines may see stricter regulations of land use and development under the updated Shoreline Master Program. Public comments on the report are being accepted through April 16, 2009.

 

• Email This
• Print
• Comments
• Trackbacks

In December, we discussed a rule finalized during the final weeks of the Bush administration which limited agencies’ consultation requirements under the Endangered Species Act (ESA).  In a March 3, 2009 memorandum to the heads of executive departments and agencies, President Obama requested that the Secretaries of the Interior and Commerce “review the regulation [and] determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purpose of the ESA.” The memorandum does not purport to repeal the rule, but rather requests that agency heads “exercise their discretion . . . to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.” This memorandum shows a strong preference for agency consultations under the ESA, and may signal a push for future changes to the ESA regulations.

 

The full text of the memorandum can be accessed here.

 

Media coverage of President Obama’s ESA memorandum can be reviewed at the following links:

Chicago Tribune

CNN

New York Times

 

• Email This
• Print
• Comments
• Trackbacks