Northwest Land Matters Update - January 2016

January 12, 2016

Happy 2016 from Van Ness Feldman!

As we enter the new year, we’d like to encourage you to let us know if there are any topics, areas of interest, or questions that you would like to see us address in Northwest Land Matters.   It is always wonderful to hear from our clients, colleagues, and friends, so please drop us a line or a tip for content and we’ll do our best to feature it in an upcoming issue. Cheers!

Opportunities to Save with Washington’s Open Space Taxation Act

Susan Shyne and Steve Scheele

If you are an owner of lands that produce food, fiber, or forest crops, or lands with possible conservation and recreation value, you may be eligible for property tax savings. Washington’s Open Space Taxation Act (“the Act”) provides property owners with the possibility of substantial real estate tax savings by allowing certain lands to be valued under their "current use" rather than at their “highest and best use.” 

Click here to read the full article.

IN BRIEF

SCOTUS to Determine if Corps’ JDs are Appealable

Property owners who disagree with a formal determination by the U.S. Army Corps of Engineers (Corps) that their property contains wetlands, a decision known as a Jurisdictional Determination (JD), may soon be able to challenge that decision in federal court.  The U.S. Supreme Court has just agreed to hear the case of Hawkes v. Corps of Engineers to resolve a split in the Circuit Courts on whether JDs are appealable.  The 8th Circuit in Hawkes concluded that JD’s are appealable.  However, in the 9th Circuit, including Washington State, based on Fairbanks North Star Borough v. U.S. Army Corps of Engineers, and in the 5th Circuit, based on Kent Recycling v. Corps of Engineer, a final JD is not appealable.  When a JD is not appealable, an owner must apply for Corps permits to fill the alleged wetlands then challenge the authority of the Corps after the permits are issued.  Alternatively, under the Sackett decision, an owner that fills alleged wetlands without a permit and faces enforcement action by the Corps or EPA can challenge that enforcement action in court.

Snohomish County Stormwater Rules Coming Soon

Snohomish County will hold a final public hearing to amend stormwater regulations on January 6, 2016.  In accordance with requirements for the County’s NPDES permit, the County is anticipated to adopt new stormwater rules on January 22, 2016.

Seattle City Council’s New Committee Structure Reflects its New Councilmembers

Seattle’s 2016 City Council Committee Structure and leadership changes were approved last week in Resolution 31643.  The former Planning, Land Use and Sustainability (PLUS) Committee is now the Planning, Land Use and Zoning (PLUZ) Committee.  Former chairman Mike O’Brien will move to the Vice-Chair position, with newly elected councilmember Rob Johnson as Chair and fellow newcomers Lisa Herbold (member) and Lorena González (alternate) also joining.  The PLUZ committee is given back authority to review Major Institution Master Plans, formerly overseen by the Committee on Housing Affordability, Human Services and Economic Resiliency.  Sustainability issues have been broken out of the former PLUS Committee and split up.  First, the Energy Committee has become the Energy and Environment Committee (E&E), where Councilmember Sawant, Chair, will tackle climate, green buildings, and conservation programs.  The E&E Committee, rounded out by new councilmembers González and Debora Juarez, will also manage legislation and policy issues concerning Seattle City Light, air pollution and alternative energy issues.  Second, the former Transportation Committee is now the Sustainability and Transportation (S&T) Committee, where, in addition to overseeing Seattle’s Department of Transportation and various transportation issues and projects, it will address transportation system sustainability and carbon emission reductions.  Finally, the new Affordable Housing, Neighborhoods and Finance Committee, chaired by Tim Burgess, will continue to address affordable housing policies, historic preservation and neighborhood engagement.  

Enhanced Tax Incentive Now Permanently Available for Conservation Easement Donations

Enhanced tax incentives for donations of conservation easements are now permanently available, thanks to the omnibus spending bill signed into law by President Obama on December 18, 2015. This represents a major victory for the nonprofit land trust community and for landowners interested in conserving their properties.

Conservation easements are legal instruments that restrict property use for ecological, open space, farmland preservation, or other similar purposes. Conservation easements may be sold or donated to nonprofit land trusts. One of the most important incentives encouraging landowners to donate conservation easements is the federal conservation tax deduction, which allows landowners to deduct all or part of the value of a donated easement from their taxable income. The value of the easement is calculated by determining the difference in property value before and after the easement.

Without the enhanced incentive, a landowner could deduct the value of a conservation easement, up to 30% of his or her adjusted gross income (AGI) for up to 6 years. The enhanced incentive raises the maximum deduction for donating a conservation easement to 50% of their AGI in any year, allows qualified farmers and ranchers to deduct up to 100% of their AGI, and allows deductions for up to 16 years.

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