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 dispute relating to the height of a residential addition, the Division Three Court of Appeals has provided additional guidance on when specific building restrictions in community covenants (CCRs) might limit the authority of an architectural approval committee. In Mack v. Armstrong, the court heard a challenge to a trial court order requiring the Armstrongs to remove the top four feet of their new residential addition. This order was based on a decision by an architectural committee, which was authorized to approve any new construction on the Armstrongs’ lot. The Court of Appeals, however, reversed this order because the Armstrongs’ construction complied with a specific 30-foot height restriction in the covenants. The Court cited prior cases generally holding that "[s]pecific provisions of real estate covenants take precedence over more general consent-to-construction provisions of those same covenants." This case highlights the importance of reading a community covenants document as a whole while interpreting its meaning.

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In a recent en banc opinion, City of Woodinville v. Northshore United Church, et al. the Supreme Court of Washington held that the City’s "total refusal" to process a land use application for a homeless encampment on Church property violated the Washington state constitution. The City had refused to process a temporary use permit submitted by the Church based on a City moratorium on such permits in certain areas of the City. Despite the City’s reliance on this moratorium, the Court found the City’s actions placed a "substantial burden on [the] exercise of religion," and thus violated State constitutional protections for religious exercise. The Court noted that "[h]ousing of the homeless may be a part of religious belief or practice," but that the these activities had a greater impact on the surrounding community than typical worship activities. The Court added: "Cities may mediate these externalities reflecting concerns for safety, noise, and crime but may not outright deny consideration of permitting." The Court also ruled in favor of the Church on a breach of contract claim by the City, but did not reach federal constitutional issues or claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

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