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June 2017 Land Use Case Law Update Recap

On June 15, Phil Olbrechts and I presented the first of two annual Land Use Case Law Update webinars for 2017. Here is the link to the webinar and presentation slides. In this blog post, I will provide a brief recap of the cases covered in the webinar, as well as a summary of another case decided since the webinar.

Snohomish County v. Pollution Control Hearings Board, 187 Wn.2d 346 (2016)

Topics: Vested rights; Stormwater regulations.

On December 29, 2016, the Washington Supreme Court issued Snohomish County, et al. v. Pollution Control Hearings Bd., a significant decision interpreting the statutory vested rights doctrine as related to stormwater regulations adopted pursuant to a state-mandated NPDES permit. For an in-depth discussion of this decision, see my blog post on the case from earlier this year.

As discussed in the webinar, in May, the Washington Supreme Court declined to reconsider its decision. However, the court did amend some language based on a request for clarification from some of the parties. I am not certain of the ultimate effect of the changes, except it does appear that the court intended to narrow the holding. Among other minor changes, a new Footnote 9 was added to the opinion that reads:

Our conclusion with respect to the 2013 Phase I Permit should not be interpreted to suggest that all federal- and state-directed environmental laws are exempt from vesting.

Maytown Sand and Gravel, LLC v. Thurston County, 198 Wn. App. 560 (2017)

Topics: Special Use Permits; Tortious Interference with Business Expectancy; Damages.

In Maytown Sand and Gravel, Division II upheld a jury award of $8 million in damages to the Port of Tacoma, and $4 million to Maytown Sand and Gravel for tortious interference with a business expectancy and violations of substantive due process rights by Thurston County related to its handling of a land use permit. At issue was a twenty-year Special Use Permit (SUP) issued to the Port of Tacoma for operation of a gravel pit in 2006. As a condition, the permit required a five-year review by the Hearing Examiner. In 2009, Maytown Sand and Gravel entered into a purchase and sale agreement for $17 million after discussing the permit with County staff. Maytown was told the permit was valid but subject to minor staff approvals, and that they should be able to begin mining shortly. Thereafter, a series of interactions occurred related to the permit that were inconsistent with what staff had indicated. At the five-year review required by the SUP, staff recommended that the new Critical Areas Ordinance be applied to the pit activities. This would have substantially reduced the area to be mined. The Hearing Examiner declined to apply the new CAO, and environmental groups appealed to the three-member Board of County Commissioners (BOCC), two of whom had donated to the environmental groups that appealed. Additionally, each Commissioner met individually with environmental groups regarding the SUP and failed to disclose the meetings. The BOCC asked staff to reexamine the overall validity of the SUP, and also remanded the matter to the Hearing Examiner for more review, further delaying mining operations. Maytown filed a LUPA appeal. The superior court reinstated the Hearing Examiner’s five-year review decision. The damages claims were handled separately.

Chumbley v. Snohomish County, 197 Wn. App. 346 (2016)

Topics: LUPA; Code enforcement; Permitting authority.

In Chumbley, a landowner sought approval from the county health district for off-site septic work associated with a planned residence. The health district granted approval of the septic design. Permits were thereafter issued for land disturbance and construction activities associated with the residence, however no separate land disturbance permit was sought for the off-site septic work that would occur on two nearby lots. After grading of the two off-site lots began, water began flowing onto adjacent properties including the BNSF railway. After receiving complaints, the county issued a stop work order and notice of violation for land disturbance work done on the two lots without a permit. The landowner thereafter sought a permit for this septic-related work, but then withdrew the application when the water flow issue was resolved. The county closed the code enforcement file and did not require that the landowner obtain a permit for this work. The health district issued final septic approval and the county issued a certificate of occupancy for the completed residence. BNSF and adjacent landowners filed a LUPA appeal. The county argued that the health district had exclusive authority to approve septic system design and installation and also argued that the LUPA appeal was untimely and should have been brought within 21-days of the county issuing the building permit for the residence. The court held that the final land use decision occurred either on the date the code enforcement case was closed or the date the county issued the certificate of occupancy, not when the building permit was issued. In either case, the petition was timely. The court remanded the matter back to superior court to consider the issue of permitting authority.

Columbia Riverkeeper v. Port of Vancouver, Case No. 92335-3 (Wash. March 16, 2017)

Topics: SEPA.

In Columbia Riverkeeper, an environmental group brought a SEPA challenge against Port of Vancouver, arguing that entering into lease for petroleum facility prior to completion of EIS violated SEPA requirement that prohibits agency action that limits reasonable alternatives prior to completion of EIS. Siting of the facility was subject to the Energy Facility Site Evaluation Council (EFSEC) approval. The lease included language stating that Tesoro could not occupy or develop the port property until Tesoro obtained “all necessary licenses, permits and approvals…for the Permitted Use.” The court held that the SEPA provision at issue did apply to the port, however the lease had sufficient escape clauses such that the port did not violate SEPA by entering into the agreement. 

Olympic Stewardship Foundation, et. al. v. Western Washington Growth Management Hearings Board, Case No. 47641-0-II (Wash. Ct. App. June 20, 2017)

Topics: Shoreline Management Act; Property Rights.

In Olympic Stewardship Foundation, Division II affirmed the Western Washington Growth Management Hearings Board decision upholding Jefferson County’s Shoreline Master Program (SMP). Jefferson County’s SMP was adopted pursuant to the updated Department of Ecology guidelines under the Shoreline Management Act (SMA). The updated shoreline guidelines emphasize no net loss of ecological functions and protection of shoreline resources. The court rejected several arguments raised by the appellants, including that the SMP improperly prioritized shoreline resources over property rights, resulted in over-burdensome regulations on landowners, and was not supported by adequate scientific data.

Questions? Comments? 

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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.