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Real Property & Development Review

Category Archives: Land Use

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Court of Appeals Denies Vesting for Shoreline Permits

Posted in Environmental, Land Use

Last week Washington’s Court of Appeals decided Potala Village Kirkland, LLC v. City of Kirkland (Div. I, August 25, 2014), which addressed whether the filing of an application for a shoreline substantial development permit, without filing an application for a building permit, vested a development project against later changes to zoning and other land use… Continue Reading

Washington Supreme Court Permits $1.5M Damages Claim to Proceed against Engineering Firm under “Independent Duty Doctrine”

Posted in Construction, Land Use

In a recent decision decided on a narrow 5-to-4 vote, the Washington Supreme Court declined to bar a couple’s negligence claims against an engineering firm based on a contractual limitation of liability, permitting the couple to continue pursuing their damages claims in King County Superior Court. The parties to the case, Donatelli v. D.R. Strong… Continue Reading

Portland Metro Urban and Rural Reserve Decision Reversed by the Oregon Court of Appeals: Seven Years and Counting

Posted in Land Use

Yesterday, after three years of planning, followed by four years of state review and litigation, the Oregon Court of Appeals sent the Portland Metro Urban and Rural Reserve decision back to LCDC, Metro, and the three Metro counties, for another round of planning and local decision making, followed by another round of LCDC review, and… Continue Reading

Oregon Court Limits Agri-tourism at Farm Stands

Posted in Land Use

A land use decision by the Oregon Court of Appeals could impact farm marketing activities across the state, imposing new permitting requirements and forcing changes to business operations. The case, Greenfield v. Multnomah County, concerns limits on farm-to-table dinners, corn mazes, picnics and other events at an organic farm on Sauvie Island near Portland. The… Continue Reading

Washington Supreme Court Rejects Legal Nonconforming Use Claim for King County Recycling Facility

Posted in Environmental, Land Use

Last week, the Washington Supreme Court decided another case dealing with the scope of the legal nonconforming use doctrine.  Legal nonconforming uses, commonly referred to as “grandfathered” uses, are generally recognized under Washington law, but a rather complex, fact-driven analysis is required to determine whether such a “grandfathered” use exists.  Under this doctrine, local regulations… Continue Reading

Is Your Floating Home a “Vessel?”

Posted in Land Use

Early this year, the United States Supreme Court decided a case that could have had far-reaching effects on local land use regulations affecting floating homes.  However, the Court’s opinion in this case, Lozman v. City of Riviera Beach (No. 11-626), appears to have left most of these regulations intact—at least for the time being.  The… Continue Reading

Oregon Land Use Board of Appeals Clarifies Permitting Pathways for Wine Businesses on Farmland

Posted in Land Use

The Oregon Land Use Board of Appeals (LUBA) has issued two important new decisions regarding wine businesses on Exclusive Farm Use (EFU) land. Across Oregon, wineries and other wine-related businesses utilize several different permitting pathways to secure land use approval for their activities. The rules governing these pathways are convoluted, and the differences between the… Continue Reading

Oregon’s Integrated Water Resources Strategy Explores Relationships Between Water and Land Use Regulation

Posted in Land Use

The Oregon Water Resources Department (“WRD”) recently released what WRD hopes will be the final draft  of Oregon’s strategy to manage the state’s water resources. The 2009 Oregon Legislature required WRD to develop an “Integrated Water Resources Strategy” (“IWRS”) to protect water quality and ensure adequate water supplies. The IWRS seeks to promote better coordination… Continue Reading

Governor Orders State and Local Cooperation on Southern Oregon Land Use Planning

Posted in Land Use

Oregon Governor John Kitzhaber has issued an Executive Order directing state agencies to cooperate with local efforts to redefine farm and forest lands in three southern Oregon counties. The order implements an earmark passed by the Oregon Legislature earlier this year that provides funding for technical studies, mapping and a state rulemaking process. If successful, this… Continue Reading

5th Circuit Upholds “Shot Clock” Ruling: FCC’s Time Limits for Processing Wireless Facility Siting Applications Remain in Force

Posted in Land Use

In the first major challenge to the FCC’s November 18, 2009 Declaratory Ruling establishing timelines for state and local government to act on wireless facility siting applications, commonly known as the “Shot Clock” ruling, the 5th Circuit Court of Appeals has denied and dismissed petitions for review brought by two Texas cities, Arlington and San… Continue Reading

Lay of the Land — Permits: Hope for the best, prepare for an appeal

Posted in Land Use

As originally published in the Daily Journal of Commerce There are some good tidings for developers even in the gloom of a sluggish economy. Permit turnaround times are generally quick in local planning departments, and many contractors, builders and design professionals are eager to take on new projects at competitive prices. Barring any financing issues,… Continue Reading

Why You Should Get to Know the Portland Plan

Posted in Land Use

As originally published in the Daily Journal of Commerce The Portland Plan is coming, and people who recall the River Plan, which the city of Portland enacted last year, will find this one familiar. Like the River Plan, this new plan has been developed through a bottom-up planning process. This involved several years of community… Continue Reading

Seattle Landlords’ Energy Efficiency Reports Due Oct. 3, 2011 or April 1, 2012

Posted in Land Use

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… Continue Reading

Washington Supreme Court: Statute Limiting Developer Charges Does Not Apply to Local Shoreline Master Programs

Posted in Land Use

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… Continue Reading

Nonconforming Use Will Not Be Recognized if Established by a Trespasser

Posted in Land Use

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… Continue Reading

Washington Supreme Court Raises the Bar for Establishing Boundary by Acquiescence

Posted in Land Use

When a boundary line dispute arises between neighboring property owners, one claim that is commonly asserted—along with adverse possession, estoppel in pais, and a few other legal bases for boundary adjustment—is “mutual recognition and acquiescence” in a common boundary. A recent opinion from the Washington Supreme Court (Merriman v. Cokeley) has refined the standard that… Continue Reading

Local Development Standards to Be Modified to Comply with Endangered Species Act

Posted in Land Use

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,… Continue Reading

FEMA’s Revised Flood Maps to Affect Development, Availability of Flood Insurance in Western Washington

Posted in Land Use

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… Continue Reading

Seattle Landmarks Preservation Ordinance Survives Constitutional Challenge

Posted in Land Use

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,… Continue Reading