Northwest Land Matters Update - August 2016

August 1, 2016

Your Passport to Street Vacations

Steve Scheele

The Seattle City Council recently evaluated two highly publicized developments, Amazon’s planned Denny Triangle development and the Arena Group’s Seattle SoDo Arena proposal; both of which involved a request for a “street vacation”. Despite the high-profile nature of these proposed developments and extended media coverage on the issues facing the Council, little is understood about what a street vacation is or how the process works.

To understand why Amazon’s request for a street vacation was successful and the Arena Group’s proposal was not, it is important to first understand that the public’s right to use alleys, streets and roads for access and travel (generally referred to as the “public right-of-way”), exists even where the property underlying the street or road is owned by a private party—the road itself actually consists of an easement for public travel. A “street vacation” is the process by which the public’s interest in the right-of-way can be terminated to allow private use of the land by the fee owner. A street vacation effectively extinguishes the easement allowing the fee owner of the property to develop or utilize the unencumbered property.

Click here to read the full article.

IN BRIEF 

Supreme Court says Owners Can Make a Federal Case Out of Wetland Jurisdictional Determinations

In United States Army Corps of Engineers v. Hawkes Co., No. 15-290 (May 31, 2016), the U.S. Supreme Court unanimously confirmed that “approved Jurisdictional Determinations,” which establish the presence and boundary of “Waters of the United States” on a particular piece of property, are “final agency actions” reviewable in Federal District Court under the Administrative Procedures Act. This decision will allow property owners that obtain “approved JDs,” the opportunity to challenge the Army Corps’ determination that their property contains wetlands, streams and other jurisdictional waters, prior to having to go through a lengthy and costly Section 404 permit process to fill those waters. Initiating a federal lawsuit over the existence and boundaries of wetlands or jurisdictional streams is still an expensive and time consuming option. As a result, despite the Hawkes decision, many owners will continue to find that obtaining a “preliminary Jurisdictional Determinations” , which advise a property owner that there may be jurisdictional waters on a parcel of land is sufficient to design a project that avoids such waters or to obtain coverage under a Nationwide Permit for limited fill of such waters.

Creative Attempt to Develop Critical Areas Rejected

In Kinderace LLC v. City of Sammamish the courts prevented use of a Boundary Line Adjustment (BLA), followed by a Reasonable Use Exception (RUE), to fill a stream needed to develop a site. Kinderace owned two adjoining lots. On one lot, Kinderace obtained approval for a commercial development. The stormwater pond serving the commercial development was placed on Kinderace’s adjoining second lot. The remainder of the second lot contained a stream. Kinderace obtained BLA approval, which moved the property lines of his two lots, putting the stormwater pond on the commercial development lot and putting the stream alone on the second lot. It is unclear why the City approved the BLA because, under RCW 58.17.040(6) a BLA “cannot create any additional lot . . . which contains insufficient area and dimension to meet minimum requirements for width and area for a building site” and the City code defined “building site” as an area of land “capable of being developed under . . . local . . . critical area provisions…” Nonetheless, after BLA approval, the City rejected Kinderace’s subsequent RUE application to develop a pizza restaurant on the second lot by filling the stream. The trial and appellate court affirmed the City’s decision and rejected Kinderace’s regulatory takings claim, finding that Kinderace had reasonable use of the second lot, before the BLA, because it had been used in conjunction with the adjoining commercial development. The court emphasized that Kinderace had been put on notice that he might not be able to use the second lot because the City’s BLA approval stated: "Does Not Guarantee the Lots Will be Suitable for Development Now or in the Future.”

9th Circuit Confirms Lack of Notice for Lot Boundary Adjustment Does not Violate Due Process

Recently, the Ninth Circuit Court of Appeals issued a decision confirming that Seattle’s approval of a Lot Boundary Adjustment without notice to neighboring property owners did not violate federal due process requirements. Focusing on the procedural-process purpose of Washington State’s Land Use Petition Act (LUPA), the Court found that LUPA was enacted “to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.” The court held that the district court properly dismissed the neighbors' LUPA claim on the basis that LUPA does not create in the neighbor a substantive property interest entitled to constitutional protection in these circumstances.

Shoreline Management Act Does Not Require Removal of a pre-SMA Landfill

The Division III Court of Appeals, in Chelan Basin Conservancy v. GBI Holding Co., considered whether a private landfill known as the “Three Fingers” on the shore of Lake Chelan, allowed to remain in place by the Shoreline Management Act’s savings clause, violates the public’s right to access and use the state’s navigable waters. The court held that the SMA protects the fill, and that the SMA does not violate the public’s rights.

The Three Fingers area of Lake Chelan was filled in 1961 and 1962, raising the elevation of the land above the level of the lake year-round and extending 250 to 300 feet into the lake. When the Shoreline Management Act was adopted in 1972, it include a savings clause, allowing existing development (include preexisting landfills) to remain in place following the passage of the Act and making them immune from claims for violation of the public rights of navigation. When the owners of Three Fingers filed permit applications to develop the property, a local conservancy group challenged, alleging that the SMA savings clause should not apply because the provision permits suits against pre-SMA fills if they are in trespass or violation of state statutes (such as a public nuisance prohibition). The group also argued that the savings clause violates the public trust doctrine. Under the public trust doctrine, the state holds title to the state’s navigable waters but may never alienate the public’s right to use them.

The court rejected both arguments. The Court cited to the saving clause as providing clear legislative intent to permit preexisting landfills to remain in place, thereby expressly allowing the impairments of the public’s rights existing at the time the SMA was enacted. The court held that the clause plainly protects grandfathered-in fills such as Three Fingers. The court also held that the state had not substantially impaired the public’s rights through passage of the SMA, because vast areas of water were unaffected.

AGO EXPANDS HPA AUTHORITY - It’s Not About “Location, Location, Location”

The Attorney General’s Office (AGO) recently issued an opinion concluding that the Washington Department of Fish and Wildlife (WDFW) has the authority to regulate hydraulic projects above the Ordinary High Water Mark (OHWM). The AGO reasoned that this authority stems from RCW 77.55.011(11), which states that hydraulic projects that affect either the natural flow or bed of any state body of water are subject to Hydraulic Project Approval (HPA). The rationale behind the determination of WDFW’s authority is that it is not the location of the project, but the effect of the project that is most important, and a project located above the OHWM could affect the natural flow or bed of a state body of water. The AGO declined to give any real parameters on when a project above the OHWM would be subject to WDFW authority, relying instead on future case-specific determinations. The AGO did note that the further a project is from the ordinary high water line, the less likely it would be considered a hydraulic project, because the chance of the project affecting the natural flow or bed of state water or fish life decreases the further away a project is from the water body.

Last year WDFW adopted regulations that, for the first time, expressly included actions above the OHWM that needed to be addressed in an HPA. This AGO Opinion may result in even more projects being required to obtain HPAs even if no work is proposed below the OHWM. This may also result in more demanding conditions for HPAs relating to actions above the OHWM. Location may no longer dictate the need for an HPA. Instead, project-specific analyses may be needed to determine if a project will affect the natural flow or bed of a state water body and trigger the need for an HPA.

Corps Releases Guidelines for Eelgrass Delineation

The Seattle District of the U.S. Army Corps recently released interim procedures for completing an "Eelgrass Delineation and Characterization Report." Impacts to eelgrass must be considered for projects in marine waters seeking a permit under Section 404 of the Clean Water Act (33 U.S.C. 1344) or authorization under Section 10 of the Rivers and Harbors Act (33 U.S.C. 403). In order to evaluate impacts, the Corps often requires applicants to provide an eelgrass "delineation" (showing the location of eelgrass in the area) and/or eelgrass "characterization" (describing the type and quality of eelgrass). By clarifying the procedures for delineating and characterizing eelgrass, the Corps hopes to increase the efficiency of its regulatory program and streamline its review of projects with potential impacts to eelgrass.

Eelgrass provides many ecosystem services, and has one of the highest primary productivity rates of any habitat. It occurs in shallow coastal areas, such as along the shoreline or in bays and estuaries. Vegetated shallows supporting eelgrass are considered "special aquatic sites" under the 404(b)(1) Guidelines of the Clean Water Act.

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