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:  Clayton Graham and Jim Greenfield

Many Seattle landlords and other building owners will soon need to begin reporting on the energy efficiency of their buildings. As reported in DWT’s Northwest Real Estate Blog last year, a Seattle ordinance passed in connection with the state’s Efficiency First! Act requires many Seattle 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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Authored by:  Clayton Graham

A recent Court of Appeals decision has limited the situations in which courts will allow a “nonconforming use”—that is, a use that was legal when it was established but is no longer permitted under current local land use regulations (sometimes referred to as “grandfathered”).  Many local land use codes allow nonconforming uses to continue subject to certain limitations, such as a prohibition on expansion or changes to the use. While many codes state that the nonconforming use must be “lawfully established,” they do not generally specify whether, to be “lawful,” the use must have complied only with land use regulations or with other laws as well.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Authored by: Gene Grant

As published in the Daily Journal of Commerce

The city of Portland is known for great restaurants, a beautiful environment, progressive land-use planning, bike friendliness, mass transit, etc. Lately, however, Portland is becoming known for negative job growth.

In an ECONorthwest study commissioned jointly by the Portland Business Alliance, the Oregon Business Association, the Oregon Business Council, Associated Oregon Industries, the Port of Portland and the Pacific Northwest International Trade Association, Multnomah County was found to be almost dead last in the western United States for private-sector job creation, among many other indicia of relative economic decline.

I chaired programs presented by the nonpartisan Urban Land Institute the last couple of years in connection with the ongoing Portland comprehensive land-use plan, which corroborates results of the study. The panelists reported that 30 years ago, two-thirds of the metropolitan jobs were in Portland; today, two-thirds of those jobs are in suburban counties.

In absolute terms, the number of Portland jobs has remained relatively flat over that entire period. While city staffers participated in these programs and acknowledged the long-term failure of Portland’s plan to achieve job growth, Mayor Sam Adams and all but one commissioner were conspicuously absent.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Authored by:  Craig Gannett, Lauren Giles, and Clayton P. Graham

On May 27, the Washington Department of Ecology (“Ecology”) released draft Guidance regarding the analysis of climate change impacts under Washington’s State Environmental Policy Act ("SEPA"). The Guidance, which will be open for comment until June 25, proposes extensive analysis of both direct and indirect greenhouse gas ("GHG") emissions potentially resulting from government actions covered under SEPA. Among the government actions that are subject to SEPA’s requirements are local governments’ issuance of land use and construction permits for many types of projects, especially commercial, industrial, or larger residential developments. The Guidance also describes potential mitigation measures that project proponents may be required to undertake. Given the broad scope of the Guidance, it is essential that owners and developers of real estate, as well as any business or institution with expansion plans, become familiar with these proposed requirements.

Continue reading here...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Authored by:  Lauren Giles, 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...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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
• Share Link

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
• Share Link