Transcript TELECOMMUNICATIONS UPDATE: Local Zoning Authority Over

Recent Washington Land Use
Decisions
February 2007 – January 2008
By Molly Lawrence
GordonDerr LLP
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?
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.
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?
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.
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?
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.
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.
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?
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.
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?
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.
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?
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.
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?
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.
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.
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?
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.
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.
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?
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.”
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.
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?
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.”
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.
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?
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).
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?
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.
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?
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.