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Land Use Case Law Update Recap


December 21, 2016 by Jill Dvorkin
Category: Court Decisions, AGO Opinions and Regulations , Land Use Administration

Land Use Case Law Update Recap

In our recent Land Use Case Law Update webinar, Phil Olbrechts and I discussed key land use cases decided, for the most part, within the past six months. In this blog post, I will briefly recap the cases we covered during the webinar.

Whatcom County v. Western Washington Growth Management Hearings Board, et al. (aka Whatcom County v. Hirst), No. 91475-3 (Wash. Oct. 6, 2016).

Topics: GMA; Water Rights; Instream Flows; Rural Development; Counties.

In Whatcom County v. Hirst, the Washington Supreme Court ruled that Whatcom County’s comprehensive plan and development regulations failed to protect water resources, in violation of the Growth Management Act (GMA). The court held that the GMA requires local jurisdictions to make an independent determination about water availability before it can approve development that requires a water source. And this process needs to be set forth in its planning documents. Whatcom County could not rely upon the Department of Ecology’s instream flow rule (the “Nooksack Rule”) to satisfy this duty. The Nooksack Rule closed many watersheds in the county to further appropriations, but did not regulate permit-exempt wells allowed pursuant to RCW 90.44.050 in most areas. Evidence was presented that instream flows were not being met for a good part of the year, yet development relying on permit-exempt wells was continuing unchecked in much of the county.

For more information, see this Department of Ecology webpage and our four-part blog series discussing the case.

Kinderace LLC v. City of Sammamish, 194 Wn. App. 835 (2016).

Topics: Regulatory Takings; Boundary Line Adjustments; Critical Areas.

In Kinderace, a landowner sought a boundary line adjustment that resulted in a stormwater detention pond that served adjacent commercial properties being subsumed into one of these commercial lots. The remaining undeveloped parcel was completely encumbered by wetland and stream buffers and deemed unbuildable. The owner sold the encumbered parcel to a corporation at least partially controlled by the owner. The corporation then applied for a reasonable use exception to build on the lot and the city denied it. The owner appealed, claiming a constitutional takings. The trial court upheld the city’s decision, finding that at the time the critical areas regulations were adopted, the lot included the stormwater detention pond which was an economically viable use—therefore no taking occurred. The owner argued on appeal that the takings analysis should have been done based on the lot that existed after the boundary line adjustment. The appeals court stated:

We reject the argument that Kinderace can use a boundary line adjustment to isolate the portion of its already-developed property that is entirely constrained by critical areas and buffers, and then claim that the regulations have deprived that portion of all economically viable use.

And:

To hold otherwise would enable a property owner to subvert the environmental regulations by changing parcel boundaries to consolidate critical areas. Once an owner had delineated a parcel that was entirely constrained, he or she could claim deprivation of all economically viable use.

Alliance Investment Group of Ellensburg v. City of Ellensburg, 189 Wn. App. 763 (2015).

Topics: Vested Rights; Subdivisions; Critical Areas Ordinances.

In Alliance Investment Group, the court held that approval of a short plat or subdivision application that is not accompanied with a building permit application does not vest a right to have future development of the property considered under a critical areas ordinance that existed at the time of the short plat or subdivision approval. This right does not vest even if the existing ordinance was considered for purposes of granting the short plat or subdivision. Any specific project or proposed development of the land must meet the development standards in effect at the time a completed application for a building permit is filed.

Schnitzer West, LLC v. City of Puyallup, No. 47900-1-II (Wash. Ct. App. Oct. 18, 2016).

Topics: LUPA; Site-specific Rezone.

In Schnitzer, following the annexation of territory, the city, by its own action, extended an overlay zone into a portion of the newly-annexed area, affecting property owned by Schnitzer. Schnitzer appealed to court under LUPA, arguing that the city’s action was a site-specific rezone. The city moved to dismiss the petition for lack of subject matter jurisdiction because the ordinance was not a "land use decision" subject to review under LUPA. The court rejected the city’s argument and found that the city’s ordinance was an unlawful site-specific rezone and was invalid as a matter of law. The city appealed and the court of appeals reversed. The city’s action was not a specific request or application by a specific party for a rezone. It did not constitute a site-specific rezone and, therefore, it was not a land use decision subject to the superior court’s jurisdiction under LUPA.

Sun Outdoor Advert., LLC v. WSDOT, 195 Wn. App. 666 (August 29, 2016).

Topics: Scenic Vistas Act; Signs.

Under the Scenic Vistas Act, chapter 47.42 RCW, billboards are generally prohibited along scenic roads, but an exception applies if (1) the area is zoned by the county for predominantly commercial and industrial uses and (2) the area contains development which is visible from the highway. An advertising company applied for a permit along a stretch of highway in Okanogan County. The Washington State Department of Transportation (WSDOT) denied the permit. In Sun Outdoor, the court agreed with WSDOT that the area along a designated scenic highway where proposed billboard would be located was not predominantly commercial, and thus the billboard was not permitted under the Scenic Vistas Act. The proposed location was not within an area zoned by county as a specific commercial or industrial district. Rather, the area was zoned to permit a wide variety of uses, including commercial and industrial uses, agricultural uses, residential uses, governmental uses, and recreational uses.

Have a question or comment about this information? Let me know below or contact me directly at jdvorkin@mrsc.org.

About Jill Dvorkin

Jill joined MRSC as a legal consultant in June 2016 after working for nine years as a civil deputy prosecuting attorney for Skagit County. At Skagit County, Jill advised the planning department on a wide variety of issues including permit processing and appeals, Growth Management Act (GMA) compliance, code enforcement, SEPA, legislative process, and public records. Jill was born and raised in Fargo, ND, then moved to Bellingham to attend college and experience a new part of the country (and mountains!). She earned a B.A. in Environmental Policy and Planning from Western Washington University and graduated with a J.D. from the University of Washington School of Law in 2003.

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