Northwest Land Matters Update - December 2016

December 14, 2016

State Supreme Court Roils Rural Water Supply in Growth Management Decision

Tadas Kisielius and Adam Gravley

On October 6, 2016, the Washington State Supreme Court issued its long-awaited decision in Whatcom County v. Hirst (“Hirst”). In a split decision, the majority of the Court concluded that the Growth Management Act (“GMA”) requires counties to play an expansive role in the regulation of water availability and water quality. The outcome of this case will likely force local governments to increase the level of analysis of water availability and impacts during their review of building permit and subdivision applications.

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IN BRIEF

White House Action Plan to Restore Puget Sound

On October 18, the White House launched a new action to protect and restore the Puget Sound watershed through the establishment of a Federal Puget Sound Task Force and the release of a Memorandum of Understanding (MOU) directing federal agency restoration activities in the Puget Sound region. Comprised of representatives from several federal agencies and co-chaired by the White House Council on Environmental Quality, the Task Force, in collaboration with the State of Washington and in consultation with tribal governments and other stakeholders, will develop a “Puget Sound Action Plan” to better coordinate federal programs and focus restoration efforts. The Task Force announcement, in conjunction with the recent Secretarial Order 3342 concerning collaborative partnerships with Tribes in the management of Federal Lands and Resources, highlight the Administration’s efforts to reshape the role and effect of Tribal input on federally-approved and permitted projects.

Should Public Employees Carry Two Cell Phones?

In West v. Vermillion, the Washington State Court of Appeals (Div. II) extended the recent Washington State Supreme Court decision in Nissen v. Pierce County to apply the Public Records Act to personal email accounts. The Nissen court concluded that public records maintained by agency personnel on private cell phones (i.e., text messages relating to the conduct of government) are subject to disclosure under the Public Records Act. The court rejected the argument that requiring such disclosure violates constitutional privacy rights. In order to balance privacy concerns, the Court stated that agency employees may search on their own devices and prepare an affidavit attesting to the nature and extent of that search. In West, the court upheld these same obligations when requested records relating to the conduct of government may be located on personal email accounts. [Practice tip: public employees should avoid conducting any agency business on personal cell phones and if unavoidable, copies of all public records should be forwarded to agency servers]

No Inverse Condemnation without Regulation or Physical Invasion

In Tapio v. State of Washington, the owner of an office building near a major freeway interchange sued the Washington Department of Transportation (DOT) in inverse condemnation, claiming that even though DOT had not actually condemned or used any portion of the owner’s property and did not intend to do so for many years, actions taken by the DOT including public statements about a planned freeway project and acquiring other properties needed for the project, had resulted in significantly reduced leasing activity and reduced the value of the property. At trial, the owner’s claim of damages was based on the theory (accepted in a 1978 California case but rejected by the Washington Supreme Court in 1987) that oppressive pre-acquisition conduct of DOT, primarily its delay in purchasing the property it needed from this owner, had caused a total loss in value amounting to $13.8 million in damages. At the Court of Appeals, Tapio argued that it was entitled to compensation under the U.S. Constitution, where a government encroaches upon or occupies private land for its own use, or regulates the property to the extent that the regulation constitutes a taking. The Court of Appeals rejected Tapio’s claim, because no regulation had been enacted limiting the use of the property in any way, and no physical invasion had yet occurred. Tapio would be compensated when its property was needed by DOT, and valued at that time as if the freeway project had never occurred. To hold otherwise, the court recognized, could severely impede the ability of the government to plan and perform public-works projects, encourage secrecy, limit public input, and limit the evaluation of alternative project proposals.

Government Initiated Project Specific Rezone Deemed “Legislative” and Not Appealable to Court under LUPA

In Schnitzer West, LLC v. City of Puyallup, the Washington State Court of Appeals, Division II, held that a government-initiated rezone is not a “land use decision” and cannot be appealed to Superior Court under the Land Use Petition Act (LUPA), Chapter 36.70C RCW. In this case, the rezone only effected specific parcels owned by Schnitzer, limiting the building size of development on those parcels and prohibited the type of development contemplated by Schnitzer. The majority held that because the rezone was not adopted in response to an application by a specific party, it did not meet the definition of a “land use decision” appealable to Court under LUPA. As a legislative decision, the appeal must be filed with the Growth Management Hearings Board under RCW 36.70A.280. In a pointed dissent, Judge Bjorgen stated that the action was not legislative, but a site-specific rezone resembling the work of a court involving specific parties and tracts rather than enactment of a generally applicable law. Given the significance of the court’s holding, it is likely we will see an appeal to the Supreme Court.

White Tail Deer Downlisted from “Endangered” to “Threatened” – 4(d) Rule Allows Limited Take

On October 17, 2017, the U.S. Fish and Wildlife Service (USFWS) issued a final rule changing the listing status of the Columbia River White Tail Deer (CWTD) from endangered to threatened, effective November 16, 2016. The number and range of CWTD have continued to expand since the species was first listed as endangered in 1968, justifying the lower classification for this species. Although take of this species generally continues to be prohibited, certain forms of take will now be allowed including: (i) intentional harassment by a landowner which is not likely to cause mortality, if the landowner has a state permit from Washington Department of Fish & Wildlife (DFW); (ii) take of problem CWTD’s by government officials or private landowners with a DFW permit; and (iii) take by private landowners, accidental and incidental to otherwise lawful activity to control black-tailed deer if reasonable due care was practiced to avoid such a taking.

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