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:  Alan Middleton

The International Code Council on Monday will release the International Green Construction Code, Public Version 1.0 (IGCC).  The IGCC incorporates ANSI/ASHRAE/USGBC/IES Standard 189.1, Standard for the Design of High Performance, Green Buildings Except Low-Rise Residential Buildings, as an alternate path of compliance. The IGCC is intended as an overlay to complement existing codes.  More information is available at www.iccsafe.org.  Release of the IGCC will likely accelerate adoption of relatively uniform green building codes nationwide.  DWT will be tracking developments in local jurisdictions.

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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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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.

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If your Halloween festivities include building a haunted house, take care to comply with any local regulations that apply to the structures or your attraction could be shut down. Examples abound this time of year. Officials in Tonawanda, New York, have shut down one haunted house that had become a 15-year long tradition in its neighborhood. In an article on the structure, it is described as being “approximately 1200 square feet,” and “built with over 300 2x4s [and] 400 feet of plastic.”  In Simi Valley, California, the City shut down another 1,200 square foot “amusement building,” deeming it an “unsafe structure” due to fire hazards. Even if your haunted house is smaller than these structures, it may still trigger a permit requirement or other obligations under local codes. When in doubt, check with your local planning department for details, or you may have unexpected visitors this Halloween.

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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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