Tag Archives: Decisions
Washington Supreme Court Clarifies The Status of Dedicated Lands, Adverse Possession Law
Posted in Real EstateA recent opinion by the Washington Supreme Court has provided some guidance on what legal interest in land is transferred to the public upon dedication of land to a city, as well as the application of adverse possession law to these lands. In Kiely v. Graves, one landowner sought to establish title to part of… Continue Reading
5th Circuit Upholds “Shot Clock” Ruling: FCC’s Time Limits for Processing Wireless Facility Siting Applications Remain in Force
Posted in Land UseIn 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
Washington Supreme Court: Statute Limiting Developer Charges Does Not Apply to Local Shoreline Master Programs
Posted in Land UseThe 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 UseA 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 Holds that State Statutes of Limitations Do Not Apply in Arbitration
Posted in Real EstateAuthored by: Jonathan Lloyd, Stephen M. Rummage, Daniel M. Waggoner, and Maya Yamazaki Yesterday, in a 5-4 decision, the Washington Supreme Court ruled that Washington state statutes of limitations do not apply to claims brought in arbitration, absent specific contractual language to the contrary. In particular, the Court found those statutes, which specifically require that… Continue Reading
Department of Ecology Releases Guidance on Climate Change and SEPA
Posted in EnvironmentalAuthored 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… Continue Reading
Washington Supreme Court Raises the Bar for Establishing Boundary by Acquiescence
Posted in Land UseWhen 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 UseAuthored 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 UseAuthored 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 UseAuthored 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
Building Code Violations – Penalties Struck Down as Unconstitutional
Posted in Land UseIn a recent opinion linked here—Post v. Tacoma, the Washington Supreme Court struck down a number of building code violation penalties that the City of Tacoma had assessed against a property owner. The City assessed numerous fines against the owner (Post) based on the condition of a some of his properties in the City. The… Continue Reading
Washington Supreme Court: Vested Development Rights Not Triggered by Site Plan Application
Posted in Land UseThe scope of Washington’s vested rights doctrine—which has constitutional, common law, and statutory underpinnings—has been the subject of a longstanding debate. Under this doctrine, certain development projects may be subject to the land development laws in effect on the date that a complete building permit application is submitted, despite later changes in the law. Whether… Continue Reading
Specific Height Restriction Limits Approval Authority of Architectural Review Committee
Posted in ConstructionIn a dispute relating to the height of a residential addition, the Division Three Court of Appeals has provided additional guidance on when specific building restrictions in community covenants (CCRs) might limit the authority of an architectural approval committee. In Mack v. Armstrong, the court heard a challenge to a trial court order requiring the… Continue Reading
Refusal to Process Permits Held Unconstitutional Burden on Religious Freedoms
Posted in Land UseIn a recent en banc opinion, City of Woodinville v. Northshore United Church, et al. the Supreme Court of Washington held that the City’s "total refusal" to process a land use application for a homeless encampment on Church property violated the Washington state constitution. The City had refused to process a temporary use permit submitted… Continue Reading
Federal Building Codes?: Proposed Federal Legislation Could Require Changes to Energy Efficiency Provisions of City and State Building Codes
Posted in ConstructionThis post was authored by Lloyd Chee & Clayton Graham The latest version of a house bill entitled America’s Clean Energy Security Act of 2009 (H.R. 2454—click here for full text of the May 15th Version), which was passed by the House Energy and Commerce Committee on May 21, contains provisions that could potentially affect… Continue Reading
Residential Rescue: Stimulus Help for Homeowners
Posted in Real EstateRecent federal legislation to provide financial relief to current and prospective homeowners through refinancing, mortgage payment modification, changes in bankruptcy law, and tax credits for first-time homebuyers, addresses four critical consumer issues in today’s real estate market: (1) troubled ownership; (2) imminent default; (3) imminent foreclosure; and (4) first-time purchase. This advisory provides a brief… Continue Reading
Permit for Day Care Center Denied Based on “Noise Generated by Laughter and Screaming of Young Children” and Traffic
Posted in Real EstateIn this March 3, 2009 decision, the Kitsap County Hearing Examiner denied a Conditional Use Permit for a day care center and school in a rural area near Port Orchard based on the Examiner’s finding that "[t]he proposal would be materially detrimental to uses or property in the immediate vicinity, and would not be compatible… Continue Reading
President Obama’s Response to Bush Consultation Rules under Endangered Species Act
Posted in EnvironmentalIn December, we discussed a rule finalized during the final weeks of the Bush administration which limited agencies’ consultation requirements under the Endangered Species Act (ESA). In a March 3, 2009 memorandum to the heads of executive departments and agencies, President Obama requested that the Secretaries of the Interior and Commerce “review the regulation [and] determine… Continue Reading
Reversal Of Case Requiring Lenders To Notify Insurers Of Foreclosure
Posted in Real EstateIn December, we discussed a recent case from the Tennessee Court of Appeals that held that an insurance company was relieved of its obligation to pay on its policy insuring a home because the bank foreclosing on the home did not notify the insurance company of the commencement of the foreclosure. U.S. Bank, N.A. v. Tennessee… Continue Reading
Statute of Frauds – Legal Description Requirements Strictly Enforced
Posted in Real EstateA recent Division One Court of Appeals case highlights the importance of including an unambiguous legal description in any contract for the sale of real property. The Court has once again strictly enforced the Statute of Frauds, which requires a description of the land to be transferred that is sufficiently definite to locate it without… Continue Reading
Exempt Well Emergency Rule Will Complicate Residential Development in Upper Kittitas County
Posted in Real EstateEffective, 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… Continue Reading
Washington Court of Appeals Strikes Down King County Rural Clearing Limits
Posted in Land UseIn a decision that is certain to cause a few ripples in city and county planning departments, Division I of the Court of Appeals held that a King County Ordinance which limits clearing on property zoned rural area residential to a maximum of 50 percent, depending on the size of the parcel, violates RCW 82.02.020…. Continue Reading
Ballard Denny’s Demolition Decision
Posted in Real EstateThe owners of the Ballard Denny’s site in Seattle have acted quickly now that the Seattle Landmarks Preservation Board has cleared the way for demolition of the building (Discussed in the June 3rd entry on this blog). On June 24, The Seattle Times reported that the building was demolished to make way for a planned… Continue Reading
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