Recent Washington Land Use Decisions February 2007 – January 2008

1. Recent Washington Land Use DecisionsFebruary 2007 – January 2008 By Molly Lawrence GordonDerr LLP

2. A developer comes to you and asks: I have a site development permit application in for review with the City of Sunnyside. I’ve heard from the Planning Department that the City Council is considering changing the zoning on my property in the next few weeks. The new zone would prohibit the type of development I have proposed in my site development permit application. Should I be worried? What do you say?

3. Maybe, maybe not. Has Sunnyside adopted a vesting ordinance that allows you to vest with just a site development permit application? If not, you should be worried. Abbey Road Group, LLC. v. City of Bonnie Lake, 141 Wn. App. 184 (Div. II 2007) Court reiterated that in the absence of an alternative local vesting ordinance, development proposals vest at BP submittal – and not through any earlier development permit application. RCW 19.27.095(1). Court rejected Abbey Road’s “detrimental reliance” argument. Court also rejected Abbey Road’s financial hardship/feasibility argument. Note: Other jurisdictions have adopted more liberal/developer friendly vesting ordinances.

4. You are the City attorney. The City Council wants to move ahead with a fish recovery project under Washington’s Salmon Recovery Act. To complete the project, the City will need to expand an existing culvert, which will require condemning a portion of adjoining property. Can the City condemn the additional property needed to expand the culvert?

5. Not based on the Salmon Recovery Act (SRA) alone. Cowlitz County v. Martin (Div. II 2007) Court held SRA does not authorize condemnation. Furthermore, language in SRA strongly implies that a jurisdiction cannot use its general condemnation authority to implement a fish habitat improvement project under the SRA. Other key point: Make sure that the Council puts all necessary “public use” reasons into its resolution authorizing condemnation. Court held that the City attorney lacks the authority to supplement the Council’s reasoning in the petition.

6. You represent the First Baptist Church of Sunnyvale. The head pastor comes to you because he wants to host Tent City on the Church property. He’s heard, however, that the City has adopted a moratorium on all land use permit application within the R-1 zone, which is the zone applicable to the Church’s property. He asks whether the City can prohibit the Church from carrying out its religious mission by hosting Tent City. What do you tell him?

7. Maybe, maybe not. We need to go back and look at the relevant Washington cases regarding the authority of a jurisdiction to limit your free exercise rights. The most recent case: City of Woodinville v. Northshore United Church of Christ, 139 Wn.App. 639 (Div. I 2007) Court upheld the City’s imposition of a moratorium on new development in the R-1 zone despite the fact that it had the effect of blocking the Church’s application for a temporary permit to host Tent City.

8. The Court ignored the Church’s State freedom of religion claims on the grounds that the Church had not provided a Gunwall analysis (i.e., why different than federal 1st Amendment rights). Court held that the moratorium was not subject to strict scrutiny, even if it substantially burdened the Church’s free exercise rights, because it was a neutral law of general applicability. No claim under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The Washington Supreme Court granted review on February 5, 2008.

9. An individual client comes to you and says: I live in a neighborhood that is subject to restrictive covenants. One of those covenants says that my house cannot be more than “one story.” I’m planning a modified split level that will be sunk into the hillside so that it will not appear to be more than one story from the street. The permits are approved and ready to go, but my neighbor is grumbling that he’s going to file an action to enforce the covenant. What do you say?

10. Don’t go forward with construction until you have resolved the issue with your neighbor. Bauman v. Turpen, 139 Wn. App. 78 (Div I 2007) Court held that the drafter’s intent in preparing the covenant was to protect the views from uphill properties. Reliance on the definition of “one-story” from the 1997 UBC was not appropriate. Injunctive relief is a proper remedy for violation of a restrictive covenant. Turpens not “innocent defendants” because they continued with construction despite the lawsuit. Therefore, no equities in their favor. The Court concluded that the Turpens assumed the risk and ordered them to abate the covenant violation.

11. You represent the City of Sunnyside. The utilities department has received a request for sewer service outside the City’s boundaries, but within the City’s potential annexation area. The director of the utilities department is willing to provide the sewer service on the condition that the property owner complies with the City’s proposed future zoning for the property. What do you tell him?

12. Sorry, you can’t impose those limitations. MT Development, LLC v. City of Renton, 140 Wn.App. 422 (Div. I 2007) Two key points: (1) Where the City is the exclusive providers of sewer service to property outside its borders, it may not refuse to provide that service, although it may impose reasonable and lawful conditions; (2) BUT mandatory compliance with the jurisdiction’s residential density restrictions and comprehensive plan is not a reasonable or lawful condition because the City lacks zoning authority outside its borders.

13. A gravel mine operator comes to you and explains: I have applied to the City of Sunnyvale for a permit to expand my existing gravel mine from 26-acres to 150-acres. The City previously issued an MDNS for the project, and the Hearing Examiner granted the necessary permit approvals. On appeal, however, the City Council remanded the permit back to the Hearing Examiner for more information regarding the long term effects of the expanded mining operation on an adjoining river. The City already issued its SEPA determination. Do I really have to provide more environmental review regarding the river? What do you tell him?

14. If you want your permit, provide the additional information. Quality Rock Products v. Thurston County, 139 Wn.App. 125 (Div. II 2007) Code criteria for special use permit required that the project be deemed consistent with the County’s Comprehensive Plan and that it not cause substantial adverse impacts to the environment. Court held that the information provided by Quality Rock was inadequate to allow the Council to determine the long term impacts of the mining operation on the adjoining Black River. Earlier SEPA threshold determination did not trump Council’s authority to deny permit due to adverse impacts to the environment.

15. A developer client comes to you claiming that it has been years and years since they submitted their permit application to the City of Sunnyside, but the City still has not issued a SEPA threshold determination with regard to their project. The developer explains that they are spending tens of thousands of dollars each month carrying the property. They ask whether there is any damages claim that they can bring against the City. What do you say?

16. Yes, but whether you will be successful will depend almost entirely on the facts. Westmark Development Corporation v. City of Burien, 140 Wn.App. 540 (Div. I 2007) Crazy facts. City attempted to assert that RCW 64.40 was Westmark’s exclusive means for recovering delay damages. The Court disagreed. Key holding: RCW 64.40 is in addition to any other remedies provided at law. Washington common law allows common-law tort claims in addition to chapter RCW 64.40 claims.

17. Jury found that the City had intentionally interfered with Westmark’s business expectancy and awarded Westmark $10.7M. Court of Appeals upheld the decision as supported by substantial evidence. Worth noting: Westmark’s attorney appeared to testify during the trial court proceedings. Interesting ethical dilemma about both acting as advocate and fact witness.

18. A client with a small marina calls you because she’s just received a stop work order from the Department of Ecology for a new building that she in the process of constructing. She explains that she received a shoreline substantial development permit for the new building from the County two months ago. She’s worried about going forward with the building, but really needs to keep moving to be ready for the summer boating season. What do you tell her?

19. You should be okay to go ahead with construction. Twin Bridge Marina Park, LLC. v. Department of Ecology (2008) Factually complicated. Court reiterated holding from Samuel’s Furniture.

20. Same is true with SSDPs. Court held: (1) Ecology must invoke LUPA any time that it wants to challenge a SSDP decision that it believes is inconsistent with the SMA (not just jurisdictional issues); (2) the County has exclusive jurisdiction to issue SSDPs; (3) the County’s reinstatement of the Twin Bridge’s building permits was a final land use decision subject to LUPA challenge; and (4) Ecology’s effort to impose penalties directly against the marina owner constituted and invalid collateral attack on the County’s permit decision. Bottom line: Ecology bound by local jurisdiction’s decision on SSDP unless it appeals pursuant to LUPA.

21. A property owner comes to you asking whether he needs a permit to cut down 18 trees on his property, which has been platted, but on which no buildings have been constructed. You look at the local code and it says that a permit is required to cut down trees on “undeveloped or partially developed” lots. What do you tell him?

22. No permit is required. Sleasman v. City of Lacey, 159 Wn.2d 639 (2007) The Court held that land that has been platted meets the definition of “developed,” (not undeveloped or partially developed). The plain meaning of “develop” is to “convert raw land into an area suitable for building or residential business purposes.”

23. The Court explained that the City confused “developed” with “improved”: • Developed = made suitable for building through the platting process; • Improved = actually improved with structures. Also worth noting: The Court rejected the idea that the City’s interpretation of its own Code was entitled to deference.

24. You are outside counsel for a City. The City attorney comes to you and says: The City uses standard principles of government accounting to determine costs and revenues for particular departments. We have evaluated our costs/revenues for land use permitting and concluded that our fees cover only about 65% of the total allocated cost. We’d like to increase our permit review fees so that they cover 100% of the allocated costs. Can we do that? What do you say?

25. Let’s look at RCW 82.02.020. You need to confirm that all of the costs that you would like to allocate to land use permitting are reasonable and fit within the exceptions established there. Home Builders Association v. City of Bainbridge Island, 137 Wn.App. 338 (Div. II 2007) RCW 82.02.020: Generally prohibits jurisdictions from imposing charges on development – provided that: “Nothing in this section prohibits cities, towns, counties, or other municipal corporations from collecting reasonable fees from an applicant for a permit or other governmental approval to cover the cost to the city, town, county, or other municipal corporation of processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C. RCW.”

26. Court held that it was the City’s responsibility to demonstrate that all of the costs recovered from the permit fees fell within the exception language of RCW 82.02.020. Any costs other than “the cost to the city, town, county, or other municipal corporation of processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C. RCW” could not be recovered through permit application fees. Exceptions did not include overhead costs.

27. You are representing a property owner in a LUPA action against the City. The City’s defense seems completely frivolous. Can you recover your attorney’s fees even though LUPA does not have an attorney’s provisions?

28. Yes, if the jurisdiction’s defenses are deemed frivolous. Zink v. City of Mesa, 137 Wn.App. 271 (Div. III 2007) Following LUPA appeal of revoked BP, the City stipulated that it had improperly revoked the Zink’s building permit. Court awarded attorney’s fees for frivolous defense under RCW 4.84.185, even though LUPA has no attorney’s fee provision. Expands opportunity for attorney’s fees in LUPA cases from “three-strike” rule, RCW 4.84.370(1).

29. You local regulations specify that a property owner may only receive a building permit if she satisfies “all requirements” listed in the ordinance. Can you issue the permit along with a waiver of one or more of the listed requirements?

30. No. Griffin v. Board of Health, 137 Wn.App. 609 (Div. II. 2007) Court of Appeals overturned septic permit that was dependent on several waivers of code requirements because the local ordinance specified that the permit had to comply with “all requirements” listed in the applicable code section. There is no room in “all requirements” for the waiver or loosening of any of them. Court also held that the County's previous erroneous interpretation of the ordinance did not give Griffin a vested right to an OSS permit.

31. A farmer approaches you asking about the possibility of changing the crop type on his property. The property has been used as an apple orchard for nearly 50 years, but now due to changes in the market, the farmer would like to plant cherry trees. He explains that over the last 50 years, significant residential development has grown up around the farm. He also explains that cherry farming can require noisy guns to scare away birds. He asks if there is any reason why he should not make the change. What do you tell him?

32. Yes. Davis v. Taylor, 132 Wn.App. 515 (Div. III 2006) Court held that any new agricultural nuisances created by changes in a farming operation after the establishment of surrounding residential development will not be protected from nuisance challenges by the Right to Farm Act. Right to Farm Act protection only applies to farm operations that predate the surrounding residential development. It is the type of farming operation, and not the mere existence of the farm (doing any agricultural operation) that matters. On appeal to Washington Supreme Court. Awaiting decision.