Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., Supreme Ct. Case No. 76339-9 (Sept. 13, 2007)

Thursday, September 13, 2007

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Zunino v. Rajewski, Ct. of Appeals Case No. 25087-3-III (Sept. 8, 2007) (slip opinion)*

Saturday, September 8, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.

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A seller of property may not reserve easements without noting them on the deed. A clean deed supersedes any previous recordings of easements.


Defects in the land subdivision process may be invisible as plumbing mistakes to untrained eyes, but both are disastrous headaches when they finally make themselves known. Here the latent defect was literally invisible; the divider failed to properly secure access easements for new purchasers across the older tracts.
Gayle Anderberg sought to divide up her farm and sell it as residential properties. By selling the land in 10-acre lots with access easements on file with the county, she effectively avoided the county’s formal land-use process. Gayle filed the easement forms with the county with the help of a friend who worked at the Spokane County Building and Planning Department. The easements accomplished her goal of avoiding county oversight, but failed to ever become legally binding.

The easements failed to materialize for two reasons:

(1) The Documents Contained the Wrong Language 
The mistaken word on the easements appears to be the use of “was” where “is” should have been. Each easement document states “this easement was created as . . . .” By using “was” the document implies that the easement existed before the document instead of being created by the document. 
In legal terms, the easement filing failed to establish a “present intent to transfer an interest in land” because the wording referred to a past, not present, event.
 (2) The Easements Were Not Disclosed To Purchasers 
All of the easement agreements were made before Ms. Anderberg sold any of her property, but none of the deeds made any mention of the easements. If the deeds had simply mentioned the easements, they might have cured the defective original filings.
Denying the access easements does not strand the current owners of Ms. Anderberg’s property. They retain the right to access their acreage by a state route and in a manner consistent with farm use.


Gold Star Resorts, Inc. v. Futurewise, Ct. of Appeals Div. I Case No. 58379-4 (Aug. 27, 2007)

Monday, August 27, 2007

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Woodinville v. SHARE/WHEEL, Ct. of Appeals Div. I Case No. 58296-8-I (July 16, 2007)*

Monday, July 16, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.


SHARE/WHEEL violated its 2004 contract with Woodinville by failing to apply for a tent city permit far enough in advance. Therefore the city properly blocked the 2006 effort to locate Tent City 4 in Woodinville. Excluding Tent City 4 did not violate Northshore United Church of Christ’s (“the church”) exercise of religious freedom.


A persistent theme runs through Judge Cox’s opinion, the theme of an underdeveloped trial record. Several issues in the case would have intellectually benefitted from further argument at the trial level. It is doubtful, though, that more facts would have changed the opinion.

The heart of the issue in this case is Tent City 4’s perpetually short/urgent timeline. SHARE/WHEEL and the church had promised Woodinville in 2004 that they would not locate a tent city in Woodinville without first applying for a permit in a timely fashion. When the organizations sought to return Tent City 4 to Woodinville in 2006, though, they applied for a permit fewer than thirty days in advance. The city normally requires between thirty and forty days to process a special use application. Tent cities are more complex and contentious than run-of-the-mill special use permits making every day of advance notice useful. The private agreement between the church, SHARE/WHEEL, and Woodinville guaranteed Woodinville the full length of planning time and when SHARE/WHEEL applied late, no other reason for blocking the tent city was necessary.

As a secondary argument, the church argued that Woodinville’s denial of the permit impermissibly burdened its exercise of religion. Caring for the poor is traditionally considered an exercise of religion and is therefore privileged. Sheltering the poor, though, is but one way to care for the poor and is not specially protected. This was the argument that would have most benefited from more facts. In order to win this argument, the church needed to show one of three things: greater protection for its religious exercise under the Washington state constitution than under the Federal constitution; or that the restriction was solely intended to restrain the church; or that the restriction effectively restrained only the church. SHARE/WHEEL did not thoroughly discuss the Washington constitution nor did it offer evidence of Woodinville’s intent. SHARE/WHEEL also failed to demonstrate that others had avoided Woodinville’s moratorium on special uses in residential zones. Since the city had treated SHARE/WHEEL and the church exactly as it treated all non-religious organizations, the claims to special religious privilege failed.

The opinion closes with a short discussion regarding the city’s attorney fees. Based upon the course of the case, both sides are responsible for their own fees.


Carpenter v. City of Snohomish, 2007 WL 1742161 (Wash. W.D. 2007)*

Saturday, June 23, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.


Last week, Judge Coughenour closed the federal case brought against the City of Snohomish by the owners of the BBQ Shack.  Located in Snohomish’s downtown historic district, the BBQ Shack is a new restaurant featuring simple food.

Under the historic district rules, the art and architecture of the area are meant to evoke a feeling of the 1880-1930. Nevertheless, the owners had a friend paint murals on the BBQ Shack without receiving design approval from the city. The BBQ Shack’s murals feature “several dancing pigs, one pig on a grill, a hot air balloon, and, on the other side of the building, a classic car.” Some unpleasantness followed. The BBQ Shack was forced to cover its murals for months before the city acquiesced and agreed to drop its objections.

The case is fairly straightforward, but I found the following of note:

(1) The BBQ Shack was suing for lost profits due to the delay in unveiling their murals and opening their business. While such a claim can be powerful and is appropriately lodge in federal court, it rests on the delay being illegal. Since the BBQ Shack eventually received design approval, then it had to show either the design ordinance itself was illegal or that the approval took longer than allowed. Both are fairly uphill claims.

(2) The City of Snohomish supplemented its design ordinance with photographs in addition to textual descriptions. Many design regulations have been struck down for vagueness since they often amount to little more than a formal pronouncement that a committee will know a bad design when presented with one. By including photographs of both acceptable and unacceptable designs, the City was able to capture more of that gut feeling for judicial review. Smart move.



Lakeland Estates v. King County, Ct. of Appeals Div. I Case No. 57432-9-I (June 4, 2007)*

Monday, June 4, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org/. Ganey is a 2008 graduate of the University of Washington School of Law.

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An owner may not sell the lots of a trailer park to the residents when the sale is contrary to the land’s zoning and the trailer park was approved as a planned unit development (PUD).


Lakeland Estates, which owns a great deal of land in southern King County, applied for and received permission to create a 13 unit mobile home park in 1979. From the facts in the case, it appears that Lakeland operated the mobile home park without incident for nearly twenty-four years. In 2003, Lakeland decided it was willing to sell individual residents of the park the land under their homes. The ordinance approving the park, though, specified that the park not be subdivided.

Unlike a rezone, which changes the range of land uses available at a site, a PUD retains the zoning limitations and carves out a single exception. In this case, the PUD permitted the use of the parcel as a mobile home park with thirteen homes. Any other use would have required new approval under the standard zoning rules. While the law is clear on this point, the language used at the time is rather confusing. In this case, the PUD used the word “lot” to mean two very different things without any attempt to clarify. The PUD refers the mobile home sites as “lots” and without differentiating the legal meaning of “lot” as an individual tax parcel.

Perhaps relying on this ambiguity, Lakeland sought approval to divide the property through a binding site plan (BSP). The BSP process is an alternative to the usual land division process. BSPs, though, only bypass the usual process if the property will later be used by a condominium entity. Since Lakeland was seeking to fragment all ownership of the mobile home sites, the BSP process did not provide a loophole.

Lakeland had another method available to sell the mobile home sites. As the court notes, Lakeland could have created a formal residential community, a condominium association for example, and transferred ownership to the residents through that structure.


Bilcher v. Cowlitz County, Ct. of Appeals Case No. 35171-4-II (May 2007) (unpublished)*

Saturday, June 2, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.


A landowner’s appeal from a hearing examiner’s decision was invalid because he failed to serve a copy of the appeal to a person possibly misidentified by the hearing examiner as an owner of the property. The landowner was required to challenge the hearing examiner’s determination of ownership or to serve the person.


The court applied the law in a clear, straight-forward manner to an interesting set of facts. John Bilcher purchased a lot in a senior community from Gabriel Goro through private contract. Once in control of the property, Mr. Bilcher began, with his friends and family, to use the property as an RV campground and shooting range. Such activities were not allowed by the land’s zoning and the county acted to enforce the zoning rules.

Ultimately, the Hearing Examiner denied Mr. Bilcher’s tardy request for a special use permit. In the written decision, the examiner named Mr. Goro as an owner of the property. This was a natural, and perhaps correct, action since Mr. Goro remained on the tax rolls as the owner of the property. Mr. Bilcher and a co-purchaser had assumed the full responsibilities of ownership, including property tax payments, but had not changed the ownership records at the county assessor’s office.

The key to the case is the hearing examiner opinion listed Mr. Goro as an owner. Since Mr. Bilcher did not challenge the examiner’s finding on that point, Mr. Bilcher became bound to treat Mr. Goro as an owner for the purposes of the decision – including his appeal.

RCW 36.70C.040 of the Land Use Petition Act (LUPA) provides:
(2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served on the following persons who shall be parties to review of the land use petition:
(b) Each of the following persons if the person is not the petitioner:
(ii) Each person identified by name and address in the local jurisdiction’s written decision as an owner of the property at issue.


Kitsap County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Court of Appeals Div. II, Case No. 35267-2 (May 30, 2007)*

Wednesday, May 30, 2007

* This post is published here under the Creative Commons License.  The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org.  Ganey is a 2008 graduate of the University of Washington School of Law.

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Kitsap County must take a different approach to meeting its growth-within-the-UGA target, but it has until 2008 to revise its UGAs.


UGA Updates

UGAs are required to be revised every ten years, while comprehensive plans must be updated every seven. Since Kitsap County did not designate its UGAs until 1998, it was not required to revise those designations when it updated the rest of the comprehensive plan in 2004.

Plan/Outcome Inconsistencies

When Kitsap County first adopted its comprehensive plan, it set an ambitious target of placing 83% of its growth within its UGAs. Kitsap was not required to set such an ambitious agenda; the GMA does not require specific outcomes. Nevertheless, once Kitsap County included this target in its plan, the county became bound to reach this outcome.

In the one study completed since the adoption of the comprehensive plan, a majority of building permits were issued in rural areas.

Reasonable Measures to Realize Plan

Kitsap’s proposed plan of action to address the amount of building occurring outside UGAs was simply to wait. While the court dismissed non-action as a viable strategy, and is probably right to do so, the evidence in Pierce County suggests that giving the UGAs time to take effect makes a substantial difference. Kitsap’s problem is that 83% is at the upper extreme of a passive strategy’s success.

The court agreed with Futurewise that leaving policies unchanged should be assumed to leave results unchanged. The court’s decision not to give great weight to vested building rights is interesting, but unlikely to cause long term problems now that the most vested rights have run their course.


Cooke v. City of East Wenatchee, Ct. of Appeals Div. III Case No. 25376-7-III (unpublished opinion)*

Saturday, April 14, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.


The Division Three panel applied the wrong standard of review and may have reached the wrong result in reviewing a variance dispute.

Clark Cooke owns Lot 31 in the Briarwood Subdivision of East Wenatchee. Lot 31 is 12 acres in area and has express approval in the CCR for further subdivision of the land. Mr. Cooke sought to exercise that provision and divide his lot into land for three homes. He proposed that the new houses would be accessed by a private access easement and therein lays the problem.

The East Wenatchee Municipal Code requires new lots to have public street access and 70 feet of public street frontage. In order to qualify for a variance from this requirement, the landowner has to show that there are geographical constraints that make compliance unusually burdensome in his case.
2.  That such variance is necessary, because of special circumstances relating to the size, shape,  topography,  location or surroundings of the subject property,  to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located.
The language is identical to that used many Washington cities.

The East Wenatchee review board twice denied Mr. Cooke’s request for the variance twice, only providing a formal opinion the second time. The formal opinion is on review here. The city department’s report to the board included statements that the situation did qualify under the variance standards.

The opinion is too short to review effectively, but the Court of the Appeals improperly switched the burden of proof in its analysis. Instead of examining the record to see if substantial evidence supported the Board’s denial of the variance, the court reviewed the record to see if substantial evidence supported the trial court’s grant of the variance.

Looking over the lot in question, emergency access looks like it could be a problem. Without street frontage, it is harder for emergency responders to find their destination. Without a public street, the fire trucks generally have to back out instead of turning around. The road in question does not look amenable to either backing out or to seeing the homes in danger.

See also: Subdivision Map (click second link); Google Map


Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., Court of Appeals Div. II, 137 Wn. App. 781, Case No. No. 34172-7-II (Apr. 3, 2007)*

Tuesday, April 3, 2007

* This post is published here under the Creative Commons License.  The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org.  Ganey is a 2008 graduate of the University of Washington School of Law.

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(1) Any person that comments on a part of a comprehensive plan may challenge the final plan in regard to that part.

(2) Every part of a comprehensive plan is open for challenge after a complete update, even if the those parts were left unchanged from the previous plan.

(3) In determining Agricultural Lands: parcel size may be considered, but the actual use of the land may not be relied on.

(4) If a jurisdiction draws its UGAs(“Urban Growth Areas”) assuming that some land within the UGAs will not be developed, then it must explain the basis of that assumption.

(5) Once resource and residential lands were removed, Thurston County failed to provide a variety of rural densities since all remaining lands were zoned for one residence every five acres. Relying on private action to maintain density variety is unacceptable.


Thurston County contested Futurewise’s (formerly 1000 Friends of Washington) successful challenge to the most recent update of the county’s comprehensive plan. Thurston was one of the county’s required to update its comprehensive plan during the first round of 7 year updates in 2004. See RCW 36.70A.130. Tim Trohimovich, an employee of Futurewise, provided both written and oral testimony during the update process, but was unsatisfied with the integration of his comments into the final plan. Futurewise prevailed in front of the Western Washington Growth Management Hearings Board (“WWGMHB”). Thurston County appealed.

First, Thurston County argued that Futurewise did not have the right to challenge the comprehensive plan since Mr. Trohimovich nor Futurewise resided on or owned property in the county. The county argued first that the absence of a physical connection prevented Futurewise, an outsider, from becoming involved. Next, the county argued that the legislature did not have the power to authorize such third-party challenges. The court was not persuaded by either of these arguments.

Second, Thurston County attempted to protect its plan by arguing that Futurewise had failed to present a timely challenge to the plan since it had challenged elements of the updated plan that were unchanged from the previous plan. The county argued that Futurewise should have challenged the sections when they were adopted into the previous plan. As the court notes, if the county were to prevail then plan updates would be a mere formality. A county would rarely, if ever, be forced to defend its plan after adopted the first time even though the situation might have greatly changed.

The other two arguments relate to the county’s provisions for rural lands. These sections were a split decision. Thurston County relied on the use and zoning of the lands in order to designate long term resource lands. The zoning can be used since it is government controlled, but the use can not. If the use was considered than land owners could game the system directly.   Furthermore, while the did not provide any real difference in zoning densities for rural lands, the WWGMHB did not force Futurewise to prove the insufficiency of the county’s innovative programs to achieve rural variety and thus the board’s decision is unsupported.


City of Arlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Ct. of Appeals Div. I, 138 Wn. App. 1, Case No. 57253-9-I (Mar. 26, 2007)

Monday, March 26, 2007

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