LAND USE CASE LAW UPDATE

Transcription

1 LAND USE CASE LAW UPDATE Phil Olbrechts Olbrechts and Associates, P.L.L.C. December 12, 2013

2 Welcome to the presentation Sue Enger Planning Consultant Phil Olbrechts Attorney Olbrechts and Associates, PLLC

3 Mr. Olbrechts Wild Land Use Ride

4 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) (1) Environmental Checklists Matter (2) Thorough Checklists for GMA Policies and Regulations Especially Required

5 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) -Applicant purchases 4.2 acres with nonconforming businesses in rural area -Applicant seeks to expand businesses with conditional use permit, but permit denied because commercial use inconsistent with Urban Reserve designation -Applicant applies for concurrent site specific amendments to comprehensive plan and zoning map from Urban Reserve to Limited Development Area

6 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) -DNS Issued for Proposal -DNS combined environmental review of eight site specific comp plan/rezone amendments -DNS checklist didn t address any specific impacts of proposal, noting generally that specific impacts for each of the eight pairs of amendments would be addressed during project review.

7 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) Hearing Board Jurisdiction: EWGHB had jurisdiction over rezone because it wasn t authorized by existing comprehensive plan.

8 Three Legislative Acts Synchronized Spokane County v. Eastern Washington Growth Management Hearings Bd Hearing Board Jurisdiction: 176 Wn. App. 555 (2013) (1) GMA Hearing Boards have exclusive jurisdiction over the adoption of GMA comprehensive plans and amendments, development regulations and amendments, shoreline regulations and amendments under the SMP and SEPA as it relates to those adoptions. RCW 36.70A.280(1)(a). (GMA) (2) Development regulations are defined to be controls placed on the development of land use activities including zoning ordinances. RCW 36.70A.030(7). (GMA) (3) A development regulation does not include a project permit application. RCW 36.70A.030(7). (GMA) (4) A project permit application include proposals for site-specific rezones authorized by a comprehensive plan RCW 36.70B.020(4). (Reg Reform) (5) Superior courts have exclusive jurisdiction on appeals of project permit applications. RCW 36.70C.020(2)(a). (LUPA)

9 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) Court Rules Checklist Inadequate Because it Failed to Address Impacts of Future Development

10 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) - An agency must base its threshold determination on information reasonably sufficient to evaluate the environmental impacts of a proposal. WAC For nonproject actions, such as comprehensive plan amendments or rezones, the agency must address the probable impacts of any future project action the proposal would allow. - In this case, future project actions weren t speculative because obvious what McGlades was going to build

11 SEPA INADEQUACIES Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) - An agency may not postpone environmental analysis to a later implementation stage if the proposal would affect the environment without subsequent implementing action. - The environmental review couldn t be postponed to the project review stage because the amendments approved the property's existing nonconforming use, thereby affecting the environment even if the applicant or its successors never pursue subsequent project action.

12 GMA Invalidity Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) Court Determined Amendments Invalid because the Inadequate SEPA Review Substantially interfered with the Fulfillment of the Goals of the GMA.

13 GMA Invalidity Spokane County v. Eastern Washington Growth Management Hearings Bd 176 Wn. App. 555 (2013) - Where a hearings board finds noncompliance with the GMA or SEPA, it may wholly or partially invalidate the county's planning action if continued validity would substantially interfere with the fulfillment of the goals of the GMA. - Continued validity would interfere with GMA Goal No. 10: Protect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water... - Amongst other omissions, checklist failed to address impacts to critical aquifer area within rezone area

14 GMA Invalidity Spokane County v. Eastern Washington Growth Management Hearings Bd Practical Consequences: 176 Wn. App. 555 (2013) Invalidity Prospective Only: A complete permit application prior to invalidity would vest to invalid regulation In this case if McGlades submitted his building permits prior to invalidity he could build anyway.

15 GMA Invalidity Contrast Clark County v. Western Washington Growth Management Hearings Board, 161 Wn. App. 204 (2011): Division II rules that Camas and Ridgeway could not annex properties in a contested UGA expansion during the pendency of the GMA appeal. The court reasoned that allowing such a maneuver would deprive the GMA hearings boards of the ability to prohibit invalid urban growth area boundaries.

16 Adequacy of Checklist Subject to Administrative Appeal? - Cities and counties may only hear administrative appeals of threshold determinations and the adequacy of an EIS. WAC (3)(a)(ii). - Is an appeal based on deficiencies in a checklist within the scope of an appeal of a threshold determination? - The courts have repeatedly held that in an appeal of a threshold the agency must make a showing that environmental factors were considered in a manner sufficient to make a prima facie showing with the procedural requirements of SEPA and WAC provides that a threshold determination shall be be based upon information reasonably sufficient to evaluate the environmental impact of a proposal.

17 $#(&^(&(*** NOTICE Prosser Hill Coalition v. County of Spokane, 171 Wn. App. 280 (2013) Dealing with Botched Hearing Notice

18 $#(&^(&(*** NOTICE Prosser Hill Coalition v. County of Spokane, 171 Wn. App. 280 (2013) - Applicant requests conditional use permit to build airstrip - SCC (2)(b) requires an applicant to post a notice of hearing sign on the site along the most heavily traveled street lying adjacent to the site. - The proposed airstrip was not adjacent to a road, but the two nearest roads are Spokane Cheney, a paved, thoroughfare in the area; and Jensen, a dirt road that leads to one private residence.

19 $#(&^(&(*** NOTICE Prosser Hill Coalition v. County of Spokane, 171 Wn. App. 280 (2013) - Applicant posts notice on dirt road. - Notice also incorrectly identified location of airport - Hearing examiner found the notice sufficient since all neighboring property owners received actual notice of the hearing.

20 $#(&^(&(*** NOTICE Prosser Hill Coalition v. County of Spokane, 171 Wn. App. 280 (2013) - Court finds notice insufficient, remands for new hearing. - One purpose of specific statutory requirements for public notice is to ensure that the decision makers receive enough information from those who may be affected by the action to make an intelligent decision. - The defective notice undermined this information-gathering process. - Examiner s determination that all affected property owners received actual notice was not compelling, since it is difficult to prove a negative, i.e. that that there was no one who didn t receive notice who should have received notice.

21 Options for Defective Notice (1) $#(&^(&(*** (2) Cancel hearing and start over (3) Take testimony, continue hearing to accommodate notice requirement, provide notice of testimony already taken

22 Deja Vu Kittitas County v. Kittitas County Conservation, 176 Wn. App. 38 (2013) GMA Hearing Board Jurisdiction over Site Specific Rezones (Again!) and a different type of GMA concurrency problem.

23 Deja Vu Kittitas County v. Kittitas County Conservation, 176 Wn. App. 38 (2013) -Applicant proposes an amendment to the County's comprehensive plan map and zoning map for the purpose of developing a travel center consisting of a truck stop, restaurant and hotel and RV park. - The travel center was proposed to be added to a Type 3 Limited Area of More Intensive Rural Development (LAMIRD), expanding it from 12 to 30.5 acres. - The amendments involved a comprehensive plan map redesignation from Rural to Commercial and Zoning Map redesignation from Agricultural 20 to Commercial Highway.

24 Deja Vu Kittitas County v. Kittitas County Conservation, 176 Wn. App. 38 (2013) - The comprehensive plan map and zoning map amendments were adopted concurrently by the county commissioners. - The amendments were invalidated by the Eastern Washington Growth Management Hearings Board. - On appeal the superior court determined that the Board had no jurisdiction to consider the amendments.

25 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) Concurrent Adoption: WAC (1):. Whenever amendments to comprehensive plans are adopted, consistent implementing regulations or amendments to existing regulations should be enacted and put into effect concurrently...

26 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) Board only has authority to consider site specific rezone amendments that are not authorized by a comprehensive plan: - A Hearings Board can review adoption of development regulations but not project permit applications. - A site specific rezone application only qualifies as a project permit application if it is authorized by a comprehensive plan. - Since the comprehensive plan was amended concurrently with the rezone, it was determined that the Ag 20 to Highway Commercial designation was not authorized by the Rural comp plan designation

27 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) Type 3 LAMIRDs: - LAMIRDs one of a few limited exceptions allowing for urban type development in rural lands. - Type 3 LAMIRDs allow intensification of isolated small-scale businesses to provide job opportunities for rural residents. RCW 36.70A.070(d)(iii).

28 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) Type 3 LAMIRDs: To quote precisely, Type 3 LAMIRDs allow an intensification of development: on lots containing isolated nonresidential uses or new development of isolated cottage industries and isolated small-scale businesses that are not principally designed to serve the existing and projected rural population and nonresidential uses, but do provide job opportunities for rural residents.

29 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) Type 3 LAMIRDs: - Under Type 3 LAMIRDs, rural counties may allow the expansion of small-scale businesses or new small-scale businesses to utilize a site previously occupied by an existing business - Such small small-scale businesses must conform to the rural character of the area

30 Kittitas County v. Kittitas County Conservation 176 Wn. App. 38 (2013) The Hearing Board denial was sustained because the proposed use was not isolated or small scale. - Proposal not isolated because it didn t stand apart from other commercial uses, specifically a fuel station and retail store across the highway. - Proposal not small scale because it was not appropriate to and visually compatible with a rural community. The proposal must be small compared to surrounding uses. The 29 acres of development with 44,000 square feet of building space was not small compared to the surrounding agricultural use.

31 Building Permit Appeals Again Durland v. San Juan County, 175 Wn. App. 316 (2013) - Opponent to building permit failed to timely appeal a building department approval of a building permit to the County hearing examiner. - Instead, the opponent filed his appeal pursuant to the Land Use Petition Act, Chapter 36.70C RCW ( LUPA ) to superior court.

32 Building Permit Appeals Again Durland v. San Juan County, 175 Wn. App. 316 (2013) LUPA appeal dismissed because failed to timely file administrative appeal: - Under LUPA, superior court only has jurisdiction to review a land use decision. RCW 36.70C A land use decision is defined as a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination. - In San Juan County, building permits can be appealed to the hearing examiner, who issues the final decision for that jurisdiction.

33 Building Permit Appeals Again Durland v. San Juan County, 175 Wn. App. 316 (2013) Fact that project opponent was unaware that building permit was issued because no notice of decision was issued did not serve to grant jurisdiction to superior court. Similar result in Nickum v. Bainbridge Island, 153 Wn. App. 366 (2009).

34 ESTABLISHMENT ISSUES King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) Answers the question: Can nonconforming use rights be established through the figment of someone s imagination? Hypothetical: Sprocket factory is an allowed use in the I zone. Mr. Jones buys an empty building and invests several million dollars in equipment and material to fill the building for his sprocket business. No land use permit is required to start operations. Before the materials and equipment are delivered, the I zone is amended to prohibit sprocket factories. Does Mr. Jones have any nonconforming use rights to operate his sprocket business?

35 ESTABLISHMENT ISSUES King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) FACTS: - Jeff Spencer owns farmland in the Green River Valley. - Ron Shear operates an organic materials processing business on Spencer's farm. - Other farmers and nursery owners bring Shear organic vegetation such as trees, stumps, brush, leaves, grass, and organic soils that he converts into matter used in animal bedding and fuel. - King County adopted some amended wetland and flood hazard regulations that went into effect in September 2004 that arguably prohibited the materials processing business on the Spencer property. - Prior to adoption of the amendments Shear was not yet operating the materials processing business. However, Shear had taken steps to commence operations, including renting the site, assembling and storing equipment, grading the site, stockpiling materials for processing organic materials, and extending an access driveway.

36 ESTABLISHMENT ISSUES King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) FACTS: - The King County Department of Development and Environmental Services (DDES) issued a notice of violation on grounds that Shear's use of the farm was an unauthorized materials processing facility in a critical area, namely a wetland and flood hazard area. - Spencer and Shear appealed the notice of violation to the King County hearing examiner. The hearing examiner largely agreed with Spencer and Shear, concluding that their use was a valid nonconforming use, and that the county had failed to demonstrate either a wetland or a flood hazard area. King County challenged the hearing examiner's ruling in superior court by filing a LUPA petition. The superior court reversed the hearing examiner. The Court of Appeals reversed the superior court and upheld the examiner s decision. The Supreme Court in this case reversed the Court of Appeals, which again reversed the examiner s decision.

37 King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) County argues that use not established prior to zoning changes so no nonconforming use. Property owners argue that County definitions provide that planning to undertake a use establishes the use.

38 King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) KCC 21A defines a nonconforming use as: Any use, improvement or structure established in conformance with King County rules and regulations in effect at the time of establishment that no longer conforms to the range of uses permitted in the site's current zone or to the current development standards of the code due to changes in the code or its application to the subject property. (emphasis added) KCC 21A goes on to define the use of property and when it is established as follows: The use of a property is defined by the activity for which the building or lot is intended, designed, arranged, occupied, or maintained. The use is considered permanently established when that use will or has been in continuous operation for a period exceeding sixty days (emphasis added)

39 King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) KCC 21A : The use of a property is defined by the activity for which the building or lot is intended, designed, arranged, occupied, or maintained. The use is considered permanently established when that use will or has been in continuous operation for a period exceeding sixty days Supreme Court overrules Court of Appeals and concludes that the first sentence of KCC 21A just defines the use of a property, not when it is established. Further, use of the term will in the second sentence is to enable the characterization of new uses as permanent even though they ve been in operation less than 60 days. Court notes that even without the KCC definitions, case law provides that uses could not be vested as nonconforming if they had not already been established and that the use must exist somewhere outside the property owner s mind.

40 King County v. King County Dept. of Dev. and Env. Services, 177 Wn.2d 636 (2013) Permits can vest uses even if use not established prior to change in regulations: Subdivisions Noble Manor Co. v. Pierce County, 133 Wn.2d 269 (1997) long plat lots vest for 5-10 years (depending on when final plat filed), short plat lots indefinitely. Any permits specifically authorizing a particular use, e.g. conditional use and shoreline permits. Building and grading permits???

41 Final Verbal Decisions Northshore Investments v. Tacoma, 174 Wn. App. 678 (2013) - Hearing examiner recommended denial of requested rezone to enable the residential development of a golf course that had been previously approved as the required open space for a residential development project. - The City Council concurred in the examiner s recommended decision and findings and conclusions by an oral vote. No written decision was ever adopted or approved by the City Council. - The City Clerk issued a notice of the decision a few days later. The rezone applicant filed and served a LUPA appeal of the rezone denial within 21 days of the notice issued by the City Clerk but failed to file it within 21 days of the City Council s oral motion. - The superior court ruled that the Clerk s notice triggered the 21 day appeal period and that the appeal was therefore timely, but the superior court ruled in favor of the City on the merits.

42 Northshore Investments v. Tacoma, 174 Wn. App. 678 (2013) Ruling: Filing of LUPA appeal dismissed as untimely. A LUPA petition is timely if it is filed and served within 21 days of the issuance of the land use decision. RCW 36.70C.040(3). A land use decision issues on one of three dates: (a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available; (b) If the land use decision is made by ordinance or resolution by a legislative body sitting in a quasi-judicial capacity, the date the body passes the ordinance or resolution; or (c) If neither (a) nor (b) of this subsection applies, the date the decision is entered into the public record. RCW 36.70C.040(4)(a) (c).

43 Northshore Investments v. Tacoma, 174 Wn. App. 678 (2013) The Court reasoned that the clerk s notice was not the final decision of the city council because: 1. It was not approved by the City Council. 2. The clerk s notice referred to the Council s decision as already haven been made. 3. Tacoma regulations did not require the decision to be in writing.

44 Northshore Investments v. Tacoma, 174 Wn. App. 678 (2013) No attorney fees because prevailing party must prevail on the merits, not a procedural deficiency:. reasonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town,. (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings. RCW (1)

45 Be Clear on Finality of Decision: (1) If not final, add a sentence stating it s not final and City/County reserves the right to change its mind. (2) If final, add an appeal statement advising that it s a final decision and what avenue of appeal is available.

46 How about posting instead of mailing x 100 decisions? RCW 36.70C.040(3): A land use decision is issued upon: (a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available;.

47 Unconventional Science? Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) - Kirkland issues variance for replacement of existing electrical substation in PSE finishes construction in Adjoining homeowners then filed suit on the basis that the electromagnetic fields (EMFs) create trespass, nuisance and inverse condemnation.

48 Unconventional Science? Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) - Homeowners present expert testimony of a doctor who concluded that EMFs cause leukemia, Alzheimer's disease, amyotrophic lateral sclerosis and infertility. - The doctor based his opinion upon epidemiological studies. - Trial court excluded on basis that doctor discounted studies and data showing no link of EMF to disease, especially newer studies, and that he failed to apply the protocols applicable to evaluating data from epidemiological studies.

49 Unconventional Science? Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) - The trial court also dismissed the inverse condemnation claim, determining that the claim should have been filed under the Land Use Petition Act ( LUPA ) within 21 days from issuance of the variance.

50 Admissibility of Expert Testimony Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) Court of appeals notes: To admit expert evidence in a trial court, the trial court must find that the underlying scientific theory and the techniques, experiments, or studies utilizing that theory must be generally accepted in the relevant scientific community and capable of producing reliable results. When a scientific theory has protocols for assuring reliability, an expert s errors in applying proper procedures may render evidence unreliable.

51 Admissibility of Expert Testimony Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) Holding: Trial court properly excluded expert testimony. Doctor considered credible epidemiological studies, but failed to use proper protocols in assessing them by discounting studies that conflicted with his conclusions, especially newer studies.

52 Two Case Studies on How Not to Battle Experts Problem: Can t exclude bad science in local land use hearings. Relevance is the only limitation: -- Cell Tower Radiation But, right to cross examination: -- River Dredging

53 Appeal Deadlines (Again!) Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) Court of appeals rules: Trial court improperly dismissed inverse condemnation claim on basis of LUPA. LUPA (and its deadlines) don t apply to inverse condemnation claims that aren t dependent upon the validity of a land use decision.

54 Inverse Condemnation Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) Inverse Condemnation: (1) a taking or damaging; (2) of private property; (3) for public use; (4) without just compensation being paid; (5) by a governmental entity that has not instituted formal proceedings.

55 Inverse Condemnation Lakey v. Puget Sound Energy, 296 P.3d 860 (2013) Inverse Condemnation Types of Actions: Appropriation of land (e.g. the freeway extension): Restriction of land (i.e. Regulatory Taking ); Damaging land by constructing a public project to achieve a public purpose.

56 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) The Big 3 Sources of Liability - Facts Part I - County denies site specific rezone from Forest and Range 20 to Rural 3. - On appeal trial court remands the denial back, ruling that the County failed to adequately review the record and make meaningful findings of fact and conclusions of law. - County again denies rezone and rezone is again appealed. County s reasons for denial are that there is no change in circumstances, no benefit to County, no improvement in access, incompatible with adjoining forest lands.

57 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) - Trial court again concludes that findings and conclusions were inadequately detailed to explain the reasons for its decision and that its findings were again too conclusory for review. - Trial court ruled that applicant met rezone criteria by implementing comprehensive plan. - County did not appeal the decision and approved rezone. - Trial court denied applicant s associated damages claims, which were appealed by applicant.

58 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority. Doesn t apply here because a rezone is not a permit application as made clear in legislative history. Note that rezone is treated as permit application in LUPA and Reg Reform.

59 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) 42 USC Section 1983 Every person who, under color of any statute, ordinance, regulation... of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

60 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Fifth Amendment: [N]or shall any person... be deprived of life, liberty, or property, without due process of law..

61 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Mission Springs v. City of Spokane, 134 Wn.2d 947 (1992): To establish due process violation under Section 1983, plaintiff must show that defendant deprived it of constitutionally protected property interest. A land owner has a constitutionally protected property right to develop land under existing regulations.

62 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Mission Springs doesn t apply here because a rezone not seeking development under existing code, but rather changing code.

63 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Tortious Interference with Business Expectancy (1) the existence of a valid contractual relationship or business expectancy, (2) that defendants had knowledge of that relationship, (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy, (4) that defendants interfered for an improper purpose or used improper means, and (5) resultant damage.

64 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Tortious Interference with Business Expectancy A valid business expectancy includes any prospective contractual or business relationship that would be of pecuniary value.

65 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) Tortious Interference with Business Expectancy Doesn t apply here because no contractual relationship or business expectancy: - applicant made clear no specific development contemplated. - no development occurred after rezone approved. BEWARE: the applicant who complains during process of pending development deals. Knowledge counts.

66 Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013) The a little pregnant status of rezones: - Adopted by ordinance as a legislative act. - Entitled to approval like a permit if meet permit criteria, but in practice courts grant wide discretion in applying criteria. - Quasi-judicial permit review even though comp plan map amendment for same property is legislative - No damages under or Section 1983 due process claim even though most other land use permits are entitled to damages. - Treated as permit under Reg Reform and LUPA.

67 Implied Right to Condition Permits Schlotfeldt v. Benton County, 292 P.3d 807 (2013) - County board of adjustment approves special use permit for proposed RV park, but imposes a condition that limits length of stay of RV vehicles to 180 days per calendar year. - Subject property was zoned light industrial with surrounding properties zoned agricultural with single-family homes. - Neighbors who testified at hearing were concerned that RV would turn into residential subdivision by permanent occupancy by RVs. - Applicant appeals 180 day condition

68 Schlotfeldt v. Benton County, 292 P.3d 807 (2013) Relevant Special Use Criteria: (1) is compatible with other uses in the surrounding area or is no more incompatible than are any other outright permitted uses in the applicable zoning district; (5) would not hinder or discourage the development of permitted uses on neighboring properties in the applicable zoning district as a result of the location, size or height of the buildings, structures, walls, or required fences or screening vegetation to a greater extent than other permitted uses in the applicable zoning district.

69 Schlotfeldt v. Benton County, 292 P.3d 807 (2013) - Applicants argue no authority to impose 180 day condition - Court of Appeals rules that County has inherent authority to impose conditions in order to assure consistency with special use criteria - Here, condition necessary to assure compatibility because RV as permanent subdivision would result in outdoor storage and would be inconsistent with neighboring single-family homes and school.

70 Schlotfeldt v. Benton County, 292 P.3d 807 (2013) Applicants argue findings not supported by substantial evidence. Court of Appeals notes that in LUPA review: (1) we view facts and inferences in a light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. (2) Review necessarily entails acceptance of the fact finder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences. (3) We do not weigh the evidence or substitute our judgment for the reviewing official's judgment.

71 Schlotfeldt v. Benton County, 292 P.3d 807 (2013) DETAIL YOUR FINDINGS!!!

72 Town of Woodway v. Snohomish County, 172 Wn. App. 643 (2013) - Applicant filed complete permit applications for development in Point Wells. - Woodway and other parties had appealed the comprehensive plan and development regulations applicable to the Point Wells area to the Growth Management Hearings Board. - The appeal was pending while the applicant had filed its applications. - The Board ruled that the development regulations were noncompliant with SEPA and remanded them for remedial action.

73 Town of Woodway v. Snohomish County, 172 Wn. App. 643 (2013) Did the applicant vest to remanded development regulations? RCW 36.70A.302: (1) The board may determine that part or all of a comprehensive plan or development regulations are invalid if the board: (a) Makes a finding of noncompliance and issues an order of remand under RCW 36.70A.300;

74 Town of Woodway v. Snohomish County, 172 Wn. App. 643 (2013) RCW 36.70A.302: (b) Includes in the final order a determination, supported by findings of fact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter; and (c) Specifies in the final order the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.

75 Town of Woodway v. Snohomish County, 172 Wn. App. 643 (2013) RCW 36.70A.302: Municipal Mischief Clause (2) A determination of invalidity is prospective in effect and does not extinguish rights that vested under state or local law before receipt of the board's order by the city or county. The determination of invalidity does not apply to a completed development permit application for a project that vested under state or local law before receipt of the board's order by the county or city or to related construction permits for that project.

76 Town of Woodway v. Snohomish County, 172 Wn. App. 643 (2013) RCW 36.70A.302 Result: Board only remanded (didn t invalidate) Point Wells regulations, so ordinances still valid and applicants can still vest. In this case, even if the Board had invalidated the regulations, the applicant was still vested because a complete application had been filed prior to the order of invalidity.

77 Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App. 691 (2012) - Applicant applies for conditional use permit to expand size of gravel mining operation and to add rock crushing to existing operations. - Ellensburg Cement appealed SEPA DNS issued for proposal and opposed conditional use application. - DNS was reviewed in a closed record appeal before the Kittitas County board of adjustment. - The conditional use permit was considered separately in an open record hearing before the board of adjustment. - The board upheld the SEPA threshold determination and approved the conditional use permit.

78 Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App. 691 (2012) Rock Crushing Allowed? -- BOA approved as processing of products produced on the premises, which is authorized in A-20 - Rock crushing expressly allowed in several zones, but not A product is defined as something produced naturally or as the result of a natural process by Webster s, which is agriculture, not rocks. ANSWER: NO

79 Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App. 691 (2012) Court Rules Open Record Hearing Required on SEPA appeal: RCW 36.70B.060(6): Except for the appeal of a determination of significance as provided in RCW 43.21C.075, if a local government elects to provide an appeal of its threshold determinations or project permit decisions, the local government shall provide for no more than one consolidated open record hearing on such appeal. The local government need not provide for any further appeal and may provide an appeal for some but not all project permit decisions. Court rules that no more than one = one open record hearing

80 Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App. 691 (2012) The this is too easy approach : WAC (3)(v): Except as provided in (a)(vi) of this subsection [not applicable to a DNS], the appeal shall consolidate any allowed appeals of procedural and substantive determinations under SEPA with a hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer or body.

81 Durland v. San Juan County, 174 Wn. App. 1 (2012) - Property owner issued notice of correction for building accessory dwelling unit without required permits. - Property owner agrees to compliance plan with County that resolves certain zoning compliance issues and provides for two options for compliance, each requiring the acquisition of additional permits. - One year later the property owner enters into a supplemental compliance plan that provides for a third method for acquiring compliance.

82 Durland v. San Juan County, 174 Wn. App. 1 (2012) - Options included reducing the height of the building to avoid triggering a shoreline substantial development permit and the like. - Property owner then applies for an accessory dwelling unit permit, a building permit and change of use permit as required by the compliance plans. - Adjoining property owner appeals permits to hearing examiner. - Hearing examiner determined that issues resolved in compliance plans were time barred because no timely LUPA appeal had been filed. Trial court agrees with examiner determination.

83 Durland v. San Juan County, 174 Wn. App. 1 (2012) A land use decision is defined under LUPA as a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed (b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development. (c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property...

84 Durland v. San Juan County, 174 Wn. App. 1 (2012) - A land use decision is final for purposes of LUPA when it leaves nothing open to further dispute and sets at rest the cause of action between the parties. - A final decision concludes the action by resolving the plaintiff's entitlement to the requested relief. - In contrast, an interlocutory decision intervenes between the commencement and the end of a suit and decides some point or matter, but is not a final decision of the whole controversy. - Furthermore, a final land use decision should memorialize the terms of the decision, not simply reference them, in a tangible and accessible way so that a diligent citizen may know whether the decision is objectionable or, if it is, whether there is a viable basis for a challenge.

85 Durland v. San Juan County, 174 Wn. App. 1 (2012) Compliance plans not final determinations because: 1. Multiple courses of action before compliance issues resolved. 2. Did not leave nothing open to further dispute because parties were able to negotiate a supplemental compliance plan.

86 Durland v. San Juan County, 174 Wn. App. 1 (2012) BUT: Final land use decisions, such as conditional use permits, often still involve additional permits (i.e. building permits). Most cities have processes in place for amending final land use decisions, such as conditional use permits. Intermediate project steps such as interpretations where multiple courses of action still possible are considered final land use decisions for purposes of LUPA.

87 Durland v. San Juan County, 174 Wn. App. 1 (2012) Solution: Clearly identify your final decisions as final decisions with appeal rights.

88 Oh Please Koontz v. St. Johns River Management Dist., 570 US (2013) Kagan dissent: The majority s errors here are consequential. The majority turns a broad array of local land-use regulations into federal constitutional questions. It deprives state and local governments of the flexibility they need to enhance their communities to ensure environmentally sound and economically productive development. It places courts smack in the middle of the most everyday local government activity. As those consequences play out across the country, I believe the Court will rue today s decision. I respectfully dissent.

89 Koontz v. St. Johns River Management Dist., 570 US (2013) Quick and Dirty Takings Law: FIFTH AMENDMENT: No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [1]

90 Quick and Dirty Takings Law: Regulatory Taking: Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) -- Property owner argues historic preservation law takes property without just compensation -- Court agrees that regulation can create taking and balances public benefit of regulation verses burden on property owner, considering factors such as investment backed expectations, economic impact, character of government action. -- No taking because property owner could still use railway terminal.

91 Quick and Dirty Takings Law: Physical Appropriation: Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419 (1982) -- Manhattan law required owner of five story apartment building to accommodate some minor cable television wires on its roof. -- Supreme Court rules that when the character of a governmental action is permanent physical occupation, the action is a takings regardless of how small the occupation or economic impact.

92 Quick and Dirty Takings Law: The Middling Status of Exactions An exaction is generally defined as a situation where the government demands that a landowner dedicate an easement or surrender a piece of property as a condition of obtaining a development permit. Under Loretto, an exaction would mandate compensation because involves a permanent physical occupation.. Under Penn Central, can argue no taking because economic impact not that great.

93 Quick and Dirty Takings Law: The Middling Status of Exactions -- the solution Nollan v. California Coastal Commission, 483 U.S. 825 (1987) California Coastal Commission requires a lateral public easement along the Nollans' beachfront lot as a condition of approval of a permit to demolish an existing bungalow and replace it with a three-bedroom house.

94 Quick and Dirty Takings Law: The Middling Status of Exactions -- the solution Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Ruling: The lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was...unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion The Court specified that a close nexus must be shown between the regulatory condition imposed and the development impacts of concern, and that the regulatory action must substantially advance legitimate state interests

95 Quick and Dirty Takings Law: The Middling Status of Exactions -- the solution Dolan v. Tigard, 512 U.S. 374 (1994) Approval of expansion to plumbing store conditioned on dedication of land to a public greenway and developing a pedestrian and bicycle pathway in order to relieve traffic congestion. Ruling: Court found nexus, but found that project failed to meet proportionality. City failed to make individualized determination that a public (as opposed to private) greenway was necessary to offset stormwater impacts and that proposed pathway was necessary to offset increased traffic.

96 Quick and Dirty Takings Law: NOLLAN/DOLAN = NEXUS/PROPORTIONALITY

97 Koontz v. St. Johns River Management Dist., 570 US (2013) FACTS: Applicant seeks permits from the St. Johns River Water Management District in Florida to develop a parcel inundated with wetlands. Applicant proposes to mitigate impacts to wetlands by deeding a conservation easement to the District for threequarters of his property.

98 Koontz v. St. Johns River Management Dist., 570 US (2013) FACTS: The District rejected Koontz s proposal and informed him that it would approve construction only if he (1) reduced the size of his development and deeded to the District a conservation easement on the resulting larger remainder of his property or (2) hired contractors to make improvements to District owned wetlands several miles away.

99 Koontz v. St. Johns River Management Dist., 570 US (2013) Legal Issues: (1) Can a permit be denied because the applicant refuses to agree to an unconstitutional exaction? (2) Does Nollan/Dolan nexus/proportionality apply to conditions requirement money instead of real property?

100 Koontz v. St. Johns River Management Dist., 570 US (2013) Issue 1 Permit Denial No, permit can t be denied because of refusal to agree to exaction that violates nexus/proportionality. Such a decision violates the unconstitutional condition doctrine.

101 Koontz v. St. Johns River Management Dist., 570 US (2013) Issue 1 Permit Denial The unconstitutional condition doctrine vindicates the Constitution s enumerated rights by preventing the government from coercing people into giving them up. More simply, the government may not deny a benefit to a person because he exercises a constitutional right.

102 Koontz v. St. Johns River Management Dist., 570 US (2013) Does this mean no more permit negotiation? The District made clear that it welcomed additional proposals from Koontz to mitigate his project s damage to wetlands. As pointed out by the dissent, had the District simply denied the application with no suggestions for revision, Nollan/Dolan would not have applied and any takings claim would be based upon Penn Central.

103 Koontz v. St. Johns River Management Dist., 570 US (2013) Does this mean no more permit negotiation? Negotiate if reasonably certain that at least one alternative satisfies nexus/proportionality.

104 Koontz v. St. Johns River Management Dist., 570 US (2013) Issue 2: Nollan/Dolan apply to conditions requiring money? Ruling: Yes, conditions requiring money must comply with Nollan/Dolan. To hold otherwise would enable government agencies to sidestep the nexus and proportionality requirements by simply giving the option of paying in lieu fees. The Court clarified that taxes are not subject to Nollan/Dolan.

105 Koontz v. St. Johns River Management Dist., 570 US (2013) Issue 2: Money conditions Is it that bad? Dissent asserts that Koontz could apply to permitting fees and utility rates and that the ambiguities in distinguishing between a fee and tax could lead to extensive litigation. RCW already prohibits any charges or fees to be imposed other than that necessary to mitigate a direct impact that has been identified as a consequence of proposed development