Posted on December 23, 2009 by Davis Wright Tremaine

Seattle Landmarks Preservation Ordinance Survives Constitutional Challenge

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.

Tags: , , , , , ,
Posted on December 11, 2009 by Davis Wright Tremaine

EPA to Regulate Greenhouse Gas Emissions

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.

Continue Reading...
Tags: , , , , , , , ,
Posted on April 27, 2009 by Jayanne Hino

Keeping Costs Down On Land Survey

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)

Tags: , , , , , ,
Posted on March 18, 2009 by Clayton Graham

Seattle Shoreline Master Program Update--Shoreline Characterization Report Shows "Impaired" Shorelines in the City

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.

 

Tags: