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:  Jim Greenfield, Carly Summers, and Lauren Giles Wishnie

            In an ordinance adopted January 25, 2010 (Council Bill No. 116731) and signed by the Mayor on February 4, 2010 (Ordinance 123226), the Seattle City Council created new energy efficiency reporting requirements for owners of nonresidential and multi-family buildings located in the City of Seattle. The ordinance adopted by an 8-0 vote, will require 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. Building owners who provide inaccurate reports or who fail to report may be cited and fined or may receive a notice of violation. Building owners must provide copies of the energy benchmarking reports to current and prospective tenants, prospective buyers and lenders who ask for them. This adds new elements of due diligence and disclosure to non-residential lease and sale transactions in the city.

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Authored by: Jim Greenfield and Clayton Graham

This week, the Division One Court of Appeals filed its opinion in the case of Connor v. City of Seattle, which addressed a challenge to the application of Seattle’s Landmarks Preservation Ordinance (LPO) to certain homeowners’ (the Connors) residential property in West Seattle.  When the Connors bought the property, it had a designated Seattle landmark -- a 1906 house built in what is described as the “Seattle classic box” style.  Because the property has a large, sloping, front yard, the Connors subdivided the parcel into multiple lots and proposed building additional residences on the newly-created lots, while preserving the 1906 landmark house on the remainder of the old lot.  When Seattle’s Landmarks Preservation Board—and later the City Hearing Examiner—denied the Connors’ application for a certificate of approval under the LPO for building the new homes, the Connors sued under Washington’s Land Use Petition Act (LUPA).   

After losing in Superior Court, the Connors appealed to the Court of Appeals, which affirmed the trial court’s dismissal of the Connors’ suit.  The bulk of the opinion addresses the Connors’ claims that the LPO is constitutionally void for vagueness, based on the Connors’ contention that the LPO does not specify what kind of development would be permitted on their property.  The Court rejected the “void for vagueness” claim, noting that “the LPO contains contextual standards and a process for clarification and guidance as to individual sites.”  According to the court, these traits shielded the LPO from a “void for vagueness” claim.  The Court summarily dismissed the Connors’ claims that the “site” was never designated along with the house, that the denial violated RCW 82.02.020 (which prohibits certain development conditions), or that it constituted a taking or a substantive due process violation.  Owners of City landmarks should take care to ensure that any proposed development on their property is consistent with preservation of the features designated under the LPO.

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Authored by:  Lauren Giles Wishnie, Kerry Shea, and Clayton Graham

Findings recently issued by the Environmental Protection Agency (EPA) could be the first step in national regulation of greenhouse gas (GHG) emissions under the Clean Air Act. Although the findings apply only to new motor vehicles and engines for the time being, they lay the groundwork for regulating GHGs emitted by power plants and manufacturing facilities.

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This post is authored by:  Clayton Graham & Thomas Goeltz

Landowners and developers in Washington state should be aware of a spate of recent legislation aimed at prolonging the life of active land development permits. Developers who request these extensions in a timely manner could effectively extend the life of their development approvals—including certain building permits, use permits, subdivision and other land use approvals—and may be able to save themselves the hassle and expense of having to restart the entitlement process for stalled development projects.

Financial difficulties faced by many developers in the state have prompted a number of cities and counties to adopt ordinances that authorize extensions to certain permit expiration dates. These ordinances apply to a variety of development approvals and permits, and a few of them implement automatic permit extensions.

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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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On June 30, Oregon Gov. Ted Kulongoski signed Senate Bill 963 into law. This bill, set to go into effect on Jan. 1, 2010, makes major changes to the Oregon Condominium Act (ORS Chapter 100) and the Oregon Planned Community Act (ORS Chapter 94).

Following is an overview of the changes ahead for people dealing with condominiums and planned communities, whether they’re association officers and directors, developers, managers, or legal counsel. The focus of this first part is on sections of ORS 963 that affect governance of the condominium or planned community.  Read full Daily Journal of Commerce article.

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The legislature has recently authorized a regional program for the Transfer of Development Rights (TDR) among a number of Puget Sound jurisdictions, including King, Kitsap, Snohomish and Pierce Counties and the municipalities within them. This legislation (click here for HB 1172 and the final session law) , effective July 26, 2009, amends Chapter 43.362, RCW, and authorizes the State Department of Community, Trade & Economic Development (CTED) to serve as central coordinator for the program at the state level. The bill's goal is to conserve rural agricultural, forest and other resource land by encouraging transfer of density from such rural resource land to urban areas through the marketplace. Local governments can initiate participation in the program by interlocal agreement or by resolution. This regional TDR program encourages participating governments "to provide permitting or environmental review incentives for developers to participate." It may also benefit landowners and developers by permitting inter-jurisdictional sales of development capacity.

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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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This post was authored by Lloyd Chee & Clayton Graham

The latest version of a house bill entitled America’s Clean Energy Security Act of 2009 (H.R. 2454—click here for full text of the May 15^th Version), which was passed by the House Energy and Commerce Committee on May 21, contains provisions that could potentially affect building codes in every city and county in Washington State. Section 201 of the proposed legislation authorizes the Secretary of the Department of Energy to develop a “national energy efficiency building code.” The Bill sets specific efficiency targets, and requires the Secretary to consider a number of existing codes in formulating the national Code, including commercial building standards proposed by the

American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and also standards and practices for “cool roofs” (a term curiously not defined by the proposed legislation). Once the energy efficiency building code is adopted, states would have one year to either adopt the national code or equivalent standards into their building codes, or document adoption by local governments representing at least 80 percent of the state’s urban population. 

States that fail to make these changes to their building codes could lose emission allowances and other federal funding. In these states, the national code would automatically apply to buildings in the relevant (local) jurisdictions, and the Secretary would have direct enforcement authority over property owners and builders. The transfer or occupancy of a building that was constructed out of compliance with the national code would be a violation of the Act, for which the Secretary could assess civil penalties (each day of occupancy would be a separate violation of the Act). The Act would also provide jurisdiction to Federal district courts to enjoin any violation of the Act.

If this bill is passed, it could affect the design of commercial projects across the country, and some industry groups have decried the legislation as unfriendly to developers. In a published statement, NAIOP—the Commercial Real Estate Development Association—has said that “[t]he provisions as written would create significant financial barriers to the construction of new buildings.” Landowners and developers alike will be closely watching this bill as it makes its way through Congress.

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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.

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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)

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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.

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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.

 

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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.

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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.

 

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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

 

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In December, we discussed a recent case from the Tennessee Court of Appeals that held that an insurance company was relieved of its obligation to pay on its policy insuring a home because the bank foreclosing on the home did not notify the insurance company of the commencement of the foreclosure. U.S. Bank, N.A. v. Tennessee Farmers Mutual Insurance Company, 2007 WL 4463959 (Tenn. App. 2007). That decision has now been reversed by the Tennessee Supreme Court in U.S. Bank, N.A. v. Tennessee Farmers Mutual Insurance Company, 2009 WL 199856 (January 29, 2009).

The policy contained what the court described as a “standard mortgage clause”, under which the benefits of the policy ran to the bank holding the mortgage on the property. That clause provided in part that: “The mortgagee will…notify [the insurance company] of any change of ownership or occupancy or any increase in hazard of which the mortgagee has knowledge.”

The bank foreclosed on the home, but did not notify the insurance company of the foreclosure. During the foreclosure process, the home was destroyed by a fire. The bank made a claim on the insurance policy and the insurance company denied the claim. It based the denial on the argument that the commencement of the foreclosure was an “increase in hazard” within the meaning of the policy clause, that the bank knew of the increase in hazard, and that coverage was invalidated by the bank’s failure to notify the insurance company of the commencement of the foreclosure. 

Although it recognized that other courts have come to a different conclusion, the lower court in the Tennessee case agreed with the insurance company and ruled that it was not required to pay on the policy. In doing so, it cited among other cases a 1924 case decided by the U.S. Court of Appeals for the Ninth Circuit applying Washington State law, Neil Bros. Grain Co. v. Hartford Fire Ins. Co., 1 F.2d 904 (9^th Cir. 1924), for the proposition that: “It is universally recognized…that the hazard is increased by a mortgage of the property insured, and still further increased by the commencement of proceedings to foreclose.”

On January 29, 2009, the Tennessee Supreme Court reversed the lower appellate court’s decision. In doing so, it held: “We conclude that the Bank was not required to give notice to [the insurance company] of the initiation of foreclosure proceedings, and therefore, the lack of notice does not invalidate coverage in this case….We do not agree that by its plain meaning the phrase “increase of hazard” includes the commencement of foreclosure proceedings….”

 

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The Seattle City Council is currently considering legislation that would increase the number of trees within the City that are protected under City regulations, and could affect the development potential of many lots within the City. The proposed ordinance (council bill 116404) would expand existing tree protections to include sites not undergoing development, would prohibit removal of some "exceptional trees" (as defined by a Seattle DPD Director’s Rule) and would limit the number of trees having a diameter of 6 inches or greater that could be removed from a site during a one-year period.  Background information on the proposal and the text of the current council bill is available here.  The current version of the Director’s Rule defining "exceptional tree" would expand the number of trees considered "exceptional" under the ordinance, and would extend protections to groves of trees, as well.  The draft Director’s Rule is available here.

If approved, the legislation could become effective as early as February 2008. The Environment, Emergency Management, and Utilities Committee of the City Council is accepting written comments on the proposal until January 16, 2009.

 

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In a move decried by many environmentalist groups, the Interior Department finalized a rule which changes the way government agencies administer and comply with the Endangered Species Act (ESA). This new rule allows agencies to decline a formal consultation (with NOAA or the US Fish and Wildlife Service) if the agency determines that the direct and indirect effects of its actions are not anticipated to lead to a taking of an endangered species, and where other specific requirements are met. (The final rule, as promulgated, and the explanation of the same are linked here. The Washington Post quoted Interior Secretary Dirk Kempthorne calling the move “‘a clarification’ he considered essential in order to narrow the law’s reach.” While some see this rule as a way to make government agencies’ ESA compliance more efficient, others believe it improperly weakens species and habitat protections under the ESA. The proper scope of ESA protections is sure to be a hot button issue as the Federal government transitions from the Bush to an Obama administration.

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A recent Division One Court of Appeals case highlights the importance of including an unambiguous legal description in any contract for the sale of real property. The Court has once again strictly enforced the Statute of Frauds, which requires a description of the land to be transferred that is sufficiently definite to locate it without recourse to oral testimony. The parties in Dick Bedlington Real Estate, L.L.C. v. Tawes, No. 59387-1-I (2008) (unpublished) entered into two separate purchase and sale agreements. In the first agreement, the seller agreed to sell a parcel of land of approximately 88 acres, with 3 acres reserved to the seller. The "approximate" location of the land reserved to the seller was noted, along with a statement that "[t]he exact configuration shall be approved by the parties prior to closing." In the second agreement, the seller agreed to sell "3 acres" of a larger parcel that was described in the agreement.

The Court held that the legal descriptions in both agreements were deficient under the Statute of Frauds because they did not contain enough information to locate the land to be sold. The court refused to read the two agreements together to cure this deficiency, and held that the agreements were void and unenforceable.

 

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A recent Division One Court of Appeals case, Heller Building, LLC v. City of Bellevue, addresses when the issuance of a "stop work order" will be considered an appealable land use decision under Washington's Land Use Petition Act (LUPA), Chapter 36.370C, RCW. In the Heller case, the City of Bellevue had issued a building permit to Heller Building for the partial demolition and rebuild of an existing nonconforming structure. During demolition, the builder discovered that the existing foundation was unsafe, so additional work--which was not contemplated in the original plans--was needed. The City determined that this change in the scope of work caused the project to no longer comply with Bellevue land use code, and issued a stop work order on February 13, 2007. However, the stop work order did not state what ordinances had been violated and what steps were needed to correct the violation. After Heller responded to the City, the City issued a letter on March 2 that more fully explained the basis for its decision to stop work on the project.

The builder filed a LUPA appeal on March 23, but the City argued that LUPA's 21-day statute of limitations had already passed. The City claimed that Heller should have filed its LUPA appeal within 21 days of issuance of the stop work order, not the letter explaining the reasons for the stop work order. Generally, LUPA's statute of limitations begins to run on the date a local government issues a "land use decision," which is defined as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination." RCW 36.70C.020. The Heller Court disagreed with the City, and found that the March 2 letter explaining the stop work order, and not the stop work order itself, was the City's final determination on the matter and thus was the "land use decision" that was appealable under LUPA. In arriving at this conclusion, the Court cited its past holdings on what constitutes a "final decision," and noted that the stop work order lacked information required by the Bellevue City Code.

Compliance with LUPA's 21-day appeal period is strictly enforced by Washington Courts. Thus, knowing what constitutes an appealable decision under LUPA is critical to anyone wishing to use LUPA to get his or her "day in court."

 

Appealability of Stop Work Orders under LUPA

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If you have ever wondered what environmental and land use approvals and permits are required for a land development project located within the state of Washington, especially a complex project involving multiple agencies and permits, then you should know about the"Environmental Permit Handbook," a very useful website that neatly describes and organizes many federal, state, and local environmental and land use permits.

The link to the handbook is:  apps.ecy.wa.gov/permithandbook/allpermits.asp .

The handbook was prepared by the Washington State Governor's Office of Regulatory Assistance under its director Faith Lumsden, an experienced former land use planner and planning manager for several local planning agencies in Washington.

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Effective, July 8, 2008, the Washington Department of Ecology has adopted an emergency rule regulating and restricting the use of so-called “exempt” wells for domestic water supply within Upper Kittitas County. Ecology’s emergency rule institutes a partial withdrawal and restriction on use of ground water via exempt wells in the upper portion of the County in an effort to minimize the potential for interference with hydrologically connected flows in the Yakima River. The emergency rule adoption follows up on the recent Memorandum of Understanding (“MOU”) entered into between Ecology and Kittitas County regarding use of exempt wells for domestic supply. The MOU was entered into in response to a 2007 private party petition by a group known as Aqua Permanente to Ecology, requesting that Ecology withdraw all unappropriated ground water in Kittitas County from further appropriation pending further study of the effect of exempt wells on senior rights and on the Yakima River. The MOU and emergency rule have been pursued by Ecology in an effort to avoid such a drastic result. The implementation of the emergency rule will occur in part through the County land use permitting process. The emergency rule, and a proposal for a permanent rule-making on the issue by Ecology, will complicate residential construction within rural Kittitas County, and is potentially controversial as to the legal basis for the regulations. The text of the emergency rule and additional information on the rule implementation prepared by Ecology is available at http://www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html.

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In a decision that is certain to cause a few ripples in city and county planning departments, Division I of the Court of Appeals held that a King County Ordinance which limits clearing on property zoned rural area residential to a maximum of 50 percent, depending on the size of the parcel, violates RCW 82.02.020. Citizens' Alliance For Property Rights v. Ron Sims, ___Wn.App.___ (June 4, 2008). Finding parallels in the City of Camas' 30 percent open space set-aside for residential subdivision development struck down by the Washington State Supreme Court in Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P.3d 867 (2002), the Court of Appeals had no trouble holding that the clearing limits in the King County ordinance imposed an in kind indirect "tax, fee, or charge" on development prohibited by RCW 82.02.020. In so holding, the Court rejected County arguments that RCW 82.02.020 did not apply because the clearing limits were adopted pursuant to mandatory Growth Management Act requirements that require protection of critical areas. The Court found that the clearing limits adopted by King County were not required by the Growth Management Act. The Court also rejected County attempts to bring the clearing ordinance within the exception to RCW 82.02.020 for development restrictions that are "reasonably necessary as a direct result of the proposed development or plat." The Court found that the King County clearing limits impose "a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development." The variation in clearing restrictions was based on lot size, not development, and thus was not proportionally related to proposed development, a necessary element to satisfy the statutory exception to RCW 82.020.020.

A copy of the Court's opinion can be found at:

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=594168MAJ. .

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The owners of the Ballard Denny's site in Seattle have acted quickly now that the Seattle Landmarks Preservation Board has cleared the way for demolition of the building (Discussed in the June 3rd entry on this blog). 

On June 24, The Seattle Times reported that the building was demolished to make way for a planned mixed use development.

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In Corey v. Department of Land Conservation and Development, the Oregon Supreme Court on May 8, 2008, ruled that Measure 49, which voters passed in November 2007, extinguished landowners’ rights under Measure 37 except to the extent that a landowner had completed enough of the development approved under Measure 37 to have obtained a common law vested right to complete the development.

In the Corey case, the Supreme Court had originally planned to decide whether the Court of Appeals or the circuit court was the proper court for a landowner to challenge a decision by the state to deny part of a landowner’s claim under Measure 37. After voters passed Measure 49, however, the state asked the Supreme Court to dismiss the Corey case, arguing that Measure 49 had replaced all of the landowners’ rights under Measure 37 with the lesser rights available under Measure 49. For the most part, the Supreme Court agreed.

The Supreme Court’s ruling means that the only landowners who may continue to develop property under Measure 37 are the landowners who completed enough of the permitted development to require the government to allow the landowners to complete the development. A landowner who has not started to develop property under a Measure 37 waiver retains no rights under Measure 37.

The Supreme Court’s opinion leaves important questions open for later decisions by the courts. First, the Supreme Court did not discuss how much development a landowner must have completed to permit the landowner to complete a development.

Second, the Supreme Court chose not decide whether the constitution permitted voters to extinguish rights granted by Measure 37. Whether, for example, Measure 49 improperly takes property without just compensation must be decided in another case.

Third, the Supreme Court did not explain whether landowners to whom courts had awarded monetary compensation (as opposed to waivers of land use laws) keep those awards after the passage of Measure 49.

A landowners who filed an application with the state under Measure 37 should consult with the landowner’s legal advisor to determine whether the landowner should (1) apply for permission to divide property into home sites under Measure 49; (2) challenge the loss of Measure 37 rights; or, (3) where the landowner has begun development, apply for permission to complete the development.

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On June 12, 2008, a number of provisions of HB 3104 - 2007-08 will go into effect, which will expand the rights of registered domestic partners to include property rights previously enjoyed only by married individuals.  The text of the session law can be viewed here  

Under the new law, property acquired by either domestic partner after the partnership is registered will be held as community property.  (Under Washington law, conveyances of real property held as community property generally require consent of both parties.)  Once this law is in effect, purchasers of real property (not to mention insurers of title) should ensure that deeds and other conveyancing documents are executed and acknowledged by any domestic partner who may have a community interest in the real property conveyed.

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Months after a contentious decision in which the Seattle Landmarks Preservation Board designated the Ballard Denny's building a landmark, it has cleared the way for demolition of the building by declining to impose any protections on the property. The Landmarks Preservation Board agreed that the owner would not be able to achieve a reasonable return on the $12.5 million it paid for the property if the Board required the building to remain on the property. (The Seattle Landmarks Preservation Ordinance generally forbids depriving a property owner of "reasonable economic use" of a property. See SMC 25.12.580). According to a May 23, 2008 article in the Daily Journal of Commerce, Rhapsody Properties has plans to tear down the building and replace it with 261 condominium units over 32,000 square feet of retail.

 

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In mid-May, the Select Committee on Energy Independence and Global Warming took testimony from a number of individuals at a hearing called "Building Green, Saving Green: Constructing Sustainable and Energy Efficient Buildings."  The Committee then urged Congress to consider incentives and policies that would encourage energy efficiency in buildings, noting that "the numerous definitions of green buildings can lead to confusion, inaction or ineffective policy."  The lack of a universal green building standard (though the Leadership in Energy and Environmental Design ("LEED") standard is at the forefront) has resulted in a piecemeal adoption of green building incentives in a number of different jurisdictions at various levels of government.  Some of these programs have been successful in encouraging green building, but some believe that more and better state and/or federal incentives (such as tax credits) are the best way to encourage green building practices.

 

Local examples of green building incentives include Seattle's density bonus incentive for commercial or residential projects achieving a LEED Silver rating or higher.  Seattle provides other incentives for residential projects under its built green program, and King County provides grants for some projects meeting certain LEED certifications.

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