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 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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