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: Linda White Atkins

The Washington State Department of Ecology announced today that beginning in late 2012, up to 9,400 acre feet of water to be released from Sullivan Lake in Northeast Washington will become available for new water rights in Pend Oreille, Ferry, Lincoln, Stevens, Okanogan and Douglas counties. Additional amounts of released water will be available to support stream flows for the benefit of fisheries in Sullivan Creek, the Pend Oreille River, and the Columbia River. The Ecology announcement notes that the water is being made available because the Pend Oreille Public Utility District is surrendering its license for the Sullivan Creek Hydroelectric Project. Any new water right applications, however, will join the end of the line of pending applications that Ecology has deemed potentially eligible for water supply from this release.

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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

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:  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.

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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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If you have ever wondered what environmental and land use approvals and permits are required for a land development project located within the state of Washington, especially a complex project involving multiple agencies and permits, then you should know about the"Environmental Permit Handbook," a very useful website that neatly describes and organizes many federal, state, and local environmental and land use permits.

The link to the handbook is:  apps.ecy.wa.gov/permithandbook/allpermits.asp .

The handbook was prepared by the Washington State Governor's Office of Regulatory Assistance under its director Faith Lumsden, an experienced former land use planner and planning manager for several local planning agencies in Washington.

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