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

As originally published in the Daily Journal of Commerce

Authored by:  Clayton Graham

There are some good tidings for developers even in the gloom of a sluggish economy. Permit turnaround times are generally quick in local planning departments, and many contractors, builders and design professionals are eager to take on new projects at competitive prices.

Barring any financing issues, all this can help developers and owners get their projects built more quickly and efficiently.

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As originally published in the Daily Journal of Commerce

Authored by: Phil Grillo

The Portland Plan is coming, and people who recall the River Plan, which the city of Portland enacted last year, will find this one familiar. Like the River Plan, this new plan has been developed through a bottom-up planning process. This involved several years of community meetings and public outreach, resulting in more than 20,000 comments from residents and businesses.

And like the River Plan, which has been appealed to Oregon’s Land Use Board of Appeals and the Oregon Court of Appeals, the Portland Plan may have a negative impact on the family-wage jobs in the working harbor.

The Portland Plan will be adopted by City Council and used to guide the city’s land-use decision-making process over the next 25 years. Many of the policies adopted in the Portland Plan will eventually find their way into the city’s adopted comprehensive plan and zoning code, so now is the time to positively influence those decisions.

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Authored by:  Clayton Graham

The Washington Supreme Court recently removed one vehicle for developers to challenge requirements imposed under local governments’ shoreline regulations. In Citizens for Rational Shoreline Planning (CRSP) v. Whatcom County, the Court considered whether regulations in the County’s Shoreline Master Program (“SMP”) could be challenged under a provision of RCW 82.02.020 which generally prohibits any local government from “impos[ing] any tax, fee, or charge, either direct or indirect, on . . . the development, subdivision, classification, or reclassification of land,” subject to certain exceptions. Since its enactment, the meaning of this provision has been litigated many times and has been found to limit local governments’ land use regulations. For example, the Division I Court of Appeals relied on this statute in striking down portions of a King County ordinance that limited the amount of clearing an owner could do on a rural lot, finding that these restrictions were “an in kind indirect ‘tax, fee, or charge’ on development.” See Citizens Alliance for Property Rights (CAPR) v. King County.

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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.

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Authored by Clayton P. Graham and James A. Greenfield

In a development of great interest to owners of property in or near floodplains, many local jurisdictions in Washington state will soon begin updating their floodplain development regulations to comply with new federal requirements. As discussed in a post on Davis Wright Tremaine’s Real Estate Blog, the Federal Emergency Management Agency (FEMA) began developing its model ordinance after the National Marine Fisheries Service (NMFS) found that FEMA’s administration of the National Flood Insurance Program (NFIP) threatened the habitat of a number of species protected under the Endangered Species Act.

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Authored by:  Craig Gannett and Clayton P. Graham

Landowners and developers across Western Washington will be affected by floodplain map revisions that the Federal Emergency Management Agency (FEMA) plans to carry out in the coming months. These map updates are part of FEMA’s administration of the National Flood Insurance Program (NFIP), and changes in map designations can have far-reaching effects, including increases in flood insurance premiums and new floodplain development regulations under local codes. For these reasons, many landowners and local governments across Western Washington are expected to appeal these map revisions.

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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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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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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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