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

If you have a water right issued by the Washington Department of Ecology, you may not think very much about whether it is called a water right “permit” or a water right “certificate.” Permit, certificate, isn’t it the same?

Truth be told – No, these documents are not the same, and may be treated very differently under the law, particularly when it comes to applying to Ecology for permission to make changes to the water right.

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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. 

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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, Carly Summers, and Lauren Giles

 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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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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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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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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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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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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