Northwest Land Matters Update - November 2015

November 23, 2015

When it Comes to Wetland Mitigation, Choose Wisely

Brent Carson

Work in wetlands triggers the need to perform wetland mitigation under separate federal, state and local requirements. Mitigation may take several forms including wetland creation, restoration, enhancement, and, under some circumstances, preservation.

To be successful in developing projects that impact wetlands, it is important to understand your mitigation choices and to avoid conflicts that can occur when complying with varying mitigation requirements.

Click here to read the full article.

Rural Water Strategies:  The Saga Continues

Adam Gravley, Duncan Greene, Tadas Kisielius

In October, The Washington State Department of Ecology (Ecology) released a new report that explores mitigation options for new permit-exempt groundwater withdrawals. The draft report is open for comment until November 20. This is the latest installment in broader efforts to address the vexing legal and policy dilemma that pits domestic rural water supply against the needs of fish and other instream resources when rural property owners seek to install small domestic wells (permit-exempt groundwater withdrawals) in river basins where instream flows are not met all the time.

Click here to read the full article.

IN BRIEF

Landlords & Tenants Pay Attention: Eviction and Leases May Not Mix

The Washington unlawful detainer statute (RCW Chapter 59.12) requires a landlord to give a tenant notice and an opportunity to cure certain defaults before the landlord may seek to evict the tenant.  For example, if a tenant fails to pay rent, the landlord must give a notice and provide three days for the tenant to cure the rent default before the landlord may seek eviction.  RCW 59.12.030(3).  But if a tenant fails to vacate the premises at the end of the lease term, under the "holdover" clause of the unlawful detainer statute the tenant is not entitled to notice and cure rights.  RCW 59.12.030(1).  In FPA Crescent Associates, LLC v. Jamie's LLC, et al. the Washington Court of Appeals recently considered whether a landlord could rely on a lease provision that allowed it to terminate a lease immediately for a rent default, and then pursue eviction under the "holdover" clause of the unlawful detainer statute without providing notice and cure rights.  The court held that the phrase "expiration of the term" in the "holdover" clause means the end of a fixed lease term, not an early termination arising from a landlord termination notice.  The court pointed to a previous case establishing that the termination provision of a contract cannot "provide a basis for circumventing the statutory requirements."  The case is a reminder for landlords and tenants that the unlawful detainer statute contains some requirements for the eviction process that apply regardless of the language of a lease.

Seattle Considering Splitting DPD

The Seattle City Council is considering legislation, submitted in September by the Mayor, which would split the Seattle Department of Planning and Development (DPD) into two separate departments.  Council Bill 118556 would abolish DPD and create the Department of Construction and Inspections (DCI) and the Office of Planning and Community Development (OPCD).  DCI would focus on current planning, including review and issuance of Master Use Permits and Building Permits, code enforcement, implementation of the Shoreline Master Program, Environmentally Critical Areas, and tenant relocation requirements.  OPCD would manage long range planning and code development and coordinate with other city departments for plan implementation.  The Directors of DCI and OPCD would be subject to confirmation by the City Council, with the DCI Director subject to reconfirmation every 4 years.  The City has already advertised for a new Department head for OPCD.  Long-time observers of the Seattle planning process will be familiar with this cyclical joining and uncoupling of planning and permit review functions, which has been the center of a number of Department re-organizations over the past few decades.  The Council is seeking public comments on the proposed legislation.

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