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Northwest Land Matters Update - March 2017

March 7, 2017

Court of Appeals Confirms When LUPA’s 21-Day Appeal Period Begins to Run and When “Collateral Attacks” on Prior Unchallenged Land Use Decisions Are Barred

Duncan Greene

On December 27, 2016, Division I of the Washington Court of Appeals issued Chumbley et al. v. Snohomish County et al, which further clarified when local land use decisions are considered “issued,” triggering the 21-day statute of limitations for appeals under the Land Use Petition Act (LUPA), Chapter 36.70C RCW. The Chumbley decision also clarified the scope of prior court holdings that prohibit so-called “collateral attacks” on land use decisions that are not directly challenged within LUPA’s 21-day appeal period.

Click here to read the full article.


Army Corps of Engineers Releases 2017 Nationwide Permits

On January 6, 2017, the U.S. Army Corps of Engineers issued its 2017 Nationwide Permits (NWPs) for work in streams and wetlands under Section 404 of the federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899. 82 Fed. Reg. 1860. NWPs are a type of general permit issued by the Corps that are designed to regulate certain activities in jurisdictional waters and wetlands, where the activities have no more than minimal adverse environmental impacts—with the ultimate goal of establishing standard terms and conditions for protections of jurisdictional waters and wetlands while allowing the activities to proceed with minimal delay and paperwork. The 2017 NWPs are effective March 19, 2017 for a period of five years, replacing the 2012 NWPs that expire on March 18, 2017. Van Ness Feldman has prepared an examination and review of the recent 2017 Nationwide Permits which can be read in its entirety here.

Trump Executive Order Starts Review and Potential Revision of the "Waters of the United States" (WOTUS) Rule

On February 28, 2017, President Trump signed an Executive Order directing the review and reconsideration of the final rule re-defining “waters of the United States” under the Clean Water Act (“CWA”), commonly called the “WOTUS Rule.” The WOTUS Rule was issued during President Obama’s tenure on May 27, 2015, by the EPA and the U.S. Army Corps of Engineers (“USACE”) (collectively the “Agencies”).

The WOTUS Rule has far-reaching implications for project development and operations across the energy, water, construction, building, agricultural and transportation sectors. Most prominently, the WOTUS Rule adopted an expansive view of the types of wetlands and other waterbodies to be considered “waters of the United States,” triggering the need for federal permits or authorizations prior to engaging in activities within, or affecting, jurisdictional waters. Van Ness Feldman’s full discussion on the Executive Order is available here.

Recent Appellate Decisions Bring Clarity to Hazardous Waste Matters

The Washington State Court of Appeals has further clarified the scope of cleanup liability of parties with an ownership interest in or operational control of contaminated sites under Washington’s Model Toxics Control Act (MTCA). In Pope Resources, LP et al. v. Washington State Department of Natural Resources, Division II adopted an expansive definition of potentially liable parties (“PLP’s”) under MTCA, which clarifies the broad scope of “owner and operator” liability for cleanup of contaminated sites. The decision leaves little doubt that “any” right associated with an ownership interest of the contaminated property is adequate to confer “owner” liability under MTCA. Such rights are not limited to fee simple ownership. Furthermore, the Court adopted an expansive definition of “operator” liability, holding that “any control” over the contaminated property at the time of a release of hazardous substances can be the basis for liability, regardless of whether or not that control relates to control over the polluting activity. This case distinguishes previous case law and federal law which suggests that a link to the polluting activity is necessary to confer “operator” liability. Parties with control of property at the time of a release, such as tenants, are more likely to be considered PLP’s under MTCA as a result of the holding in this case.

In Douglass v. Shamrock Paving, Inc., the state Court of Appeals, Division III confirmed that parties can recover the costs of investigative efforts undertaken to identify the need for cleanup even where the quantities of hazardous materials released are too small to pose a threat to human health or the environment. The case centered on the scope of what constitutes “remedial action” under MTCA. The court reiterated that remedial actions, for which costs are recoverable, are not limited to the actual cleanup efforts, but also include identification and investigation of the need for a cleanup. Investigative costs undertaken to discern whether or not a threat to human health and the environment exists are compensable remedial actions, even if the investigation concludes that no such threat exists. This broad interpretation of “remedial action” is consistent with the courts’ construction of MTCA to comport with the statute’s intent to encourage good stewardship and promote preservation of the environment.

Appellate Court Rules on Implied Easements: Beware of Subtleties

The Court of Appeals’ recent decision in Boyd v. Sunflower provides an extensive analysis of easements, and sets out a three-factor test for the establishment of “implied by prior use,” which includes the requirement that there be prior apparent and continuous use of the claimed easement to benefit the property in question. In this case concerning a property purchase on Orcas Island, the Buyer claimed that it bought its Property together with an implied easement across the Seller’s land to the north, for access to a nearby roadway. The Seller disagreed, and said the Buyer had no right to use the Seller’s other land for access to the Property. Instead, the Buyer had to use a less convenient access to the south.

In the original purchase transaction, the Buyer had asked the Seller for a boundary line adjustment that would give the Buyer a strip of land to allow access off the north side of the Property, to a northern roadway. The Seller refused that proposal, and instead recorded a boundary line adjustment that gave the Buyer access off the south side of the Property, across a steeper section, to a southern roadway. Nevertheless, when the Buyer decided to build on its Property, Buyer informed the Seller that it would use the Seller’s property to access the northern roadway, based on a claim that an easement over the Seller’s property should have been included in the original sale of the Property. The Seller refused access, and in 2015 the Buyer sued, claiming that it had an implied easement over the Seller’s property, to the northern roadway.

The trial court dismissed the Buyer’s suit, finding that the Buyer had failed to provide evidence to support its claim. The Court of Appeals affirmed the dismissal, holding that the Buyer failed to prove prior apparent and continuous use of the easement, instead showing only sporadic, incidental uses of the claimed easement area for access to its Property. Even though the northern access was easier for the Buyer and would result in somewhat lower construction costs, there was no showing that the Seller intended to grant easement rights to the Buyer and the Buyer’s claim failed. In addition, because the Buyer brought the claims for rights that fell outside the scope of the parties’ purchase and sale agreement, the court held that the Seller did not have the right to recover attorneys’ fees, even though it was the prevailing party.

GMHB Finds "De Facto" GMA Amendment in County's Planning Action for Point Wells Sewer Service

On January 25, 2017, the Growth Management Hearings Board (GMHB) issued a decision overturning a Snohomish County sewer plan amendment, related to the ongoing controversy surrounding a proposed mixed-use development in Point Wells, an unincorporated area of Snohomish County on the shoreline of Puget Sound immediately north of the boundary between King County and Snohomish County.

In 2010, the owner of the Point Wells property, BSRE Point Wells, LLP (“BSRE”), proposed a mixed-use “Urban Center” development in Point Wells featuring more than 3,000 residential units and over 100,000 square feet of commercial and retail space. Since that time, Point Wells has been an area of contention among municipal entities in King County and Snohomish County and the subject of extensive litigation and rulings in court and administrative proceedings. The rulings include a 2004 Court of Appeals decision holding that both the City of Shoreline (in King County) and the Town of Woodway (in Snohomish County) may designate Point Wells as a “potential annexation area,” as well as a 2014 Washington Supreme Court decision holding that BSRE’s development rights “vested” in 2011, when BRRE submitted its permit applications.

In its January 2017 decision, the GMHB held that Snohomish County violated the Growth Management Act (GMA) when it attempted to approve an amendment to a sewer plan designating Olympic View Water and Sewer District (“Olympic View”) as the sewer provider to Point Wells. The Board held that Snohomish County erred when it failed to process the sewer plan amendment as a GMA amendment, because it was a “de facto” amendment to the County’s Comprehensive Plan. The GMHB also held that, because the County’s existing Comprehensive Plan relied on Ronald Wastewater District (“Ronald”) as the provider of sewer service to Point Wells, it was inconsistent for the County to attempt to designate Olympic View as the sewer provider. The GMHB remanded the sewer plan amendment to the County for further compliance action consistent with the GMA.


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