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 opinion linked here—Post v. Tacoma, the Washington Supreme Court struck down a number of building code violation penalties that the City of Tacoma had assessed against a property owner. The City assessed numerous fines against the owner (Post) based on the condition of a some of his properties in the City. The ordinance at issue permitted the assessment of daily fines for continuing building code violations, which is a common element of local code compliance provisions. The Court, however, took issue with the fact that the City "ha[d] no procedures in place for civil defendants to appeal any but the first penalty." That is, once fines had begun accruing, there was not an adequate process in place for the landowner to contest the violation. A majority of the Court found that the code provisions authorizing these penalties violated procedural due process requirements and thus were unconstitutional on their face and as applied to Post.

The majority also found that the State’s Land Use Petition Act (LUPA) did not apply to Post’s appeal, so Post was not required to comply with LUPA’s procedural requirements for challenging the City’s action. The dissenting justices, on the other hand, believed that Post’s failure to file his complaint under LUPA precluded judicial review of his claims. This opinion reiterates the importance of an owner’s procedural rights to contest penalties assessed by a city or county. It is also a reminder that an owner should take quick action to address notices of code violations in order to avoid unnecessary expenses.

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If your Halloween festivities include building a haunted house, take care to comply with any local regulations that apply to the structures or your attraction could be shut down. Examples abound this time of year. Officials in Tonawanda, New York, have shut down one haunted house that had become a 15-year long tradition in its neighborhood. In an article on the structure, it is described as being “approximately 1200 square feet,” and “built with over 300 2x4s [and] 400 feet of plastic.”  In Simi Valley, California, the City shut down another 1,200 square foot “amusement building,” deeming it an “unsafe structure” due to fire hazards. Even if your haunted house is smaller than these structures, it may still trigger a permit requirement or other obligations under local codes. When in doubt, check with your local planning department for details, or you may have unexpected visitors this Halloween.

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The scope of Washington’s vested rights doctrine—which has constitutional, common law, and statutory underpinnings—has been the subject of a longstanding debate. Under this doctrine, certain development projects may be subject to the land development laws in effect on the date that a complete building permit application is submitted, despite later changes in the law. Whether other types of project applications should vest, and in what circumstances, has been the subject of a longstanding debate, which has been chronicled in a long line of appellate court cases. Today, the Washington Supreme Court has added another landmark opinion to Washington’s body of case law on vested rights. This opinion, issued in the case of Abbey Road Group v. City of Bonney Lake, answers some questions, but still leaves developers with a great deal of uncertainty. (Click on the following hyperlinks to access the text of the three separate portions of the opinion: the lead opinion, authored by Justice Johnson and joined by two others; the concurrence authored by Madsen and joined by one other; and the dissent authored by Justice Sanders and joined by three others.)

In this case, a developer (Abbey Road) submitted a site plan for a multifamily development to the City of Bonney Lake, apparently under the belief that it could not apply for a building permit until the City approved the site plan. On that same day, the City passed an ordinance rezoning the subject property to a zoning category in which the proposed project was prohibited. The Supreme Court held that Abbey Road’s project was not vested against the rezone because it had not submitted a complete building application for the development. According to the Court, the site plan approval could not vest the project, because the applicable vesting statute (RCW 19.27.095) does not address site plans, and because the City’s code does not address vesting. The Court declined the invitation to expand the vested rights doctrine to include applications not specifically addressed in the statute.

The majority and the dissent disagreed about whether the City’s regulations required site plan approval before a building permit application could be submitted. If this were the case, the City’s process may violate developers’ due process rights under West Main Associates. However, despite the concurring justices’ "concerns" about the City’s process, a majority of the Court found that there was no due process violation because the developer could have submitted a building permit application at any time. The dissent found that this was not the case, and that the City’s procedures violated due process because they deprived the developer of the right to "unilaterally control the date th[e] project vested." The due process aspect of the vested rights doctrine is sure to be the subject of future vested rights disputes.

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Previously, in our September 3 post, we talked about how Senate Bill 963 impacts the governance of condominium associations and planned communities. For an outline of some of the other changes that SB 963 brings about, read the full Daily Journal of Commerce article (Part 2).

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The Portland Business Alliance Development Committee, a subcommittee of the Central City Standing Committee, and the Urban Land Institute Commercial Development Committee convened a joint effort to craft recommendations and inform the Bureau of Planning and Sustainability as it begins the process of updating the 25-year Central Portland Plan. This is occurring because the Bureau of Planning and Sustainability has embarked on an update to the 1988 Central City Plan. The Central Portland Plan Update is a two-year, comprehensive effort that will set the stage for significant employment and residential growth for the next 25 years.

Summary of Findings

Presentation

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