Northwest Land Matters Update - September 2015

September 21, 2015

A Context for Viewing Climate Change in the Northwest

T.C. Richmond

The Third National Climate Assessment (NCA3), the most comprehensive source of scientific information to date about U.S. climate change impacts, was released in 2014.  VNF Partner TC Richmond served as the vice chair of the federal advisory committee that authored the NCA3 and was a lead author of the water resources chapter. This article provides highlights of the NCA3 focused on the Northwest and proposes a framework for viewing current societal actions and future proposed actions related to climate change.

Click here to read the full article.

IN BRIEF

2015 Drought Previews Future Water Supply Squeeze in the Pacific NW

Central Puget Sound area water managers are updating climate forecasts and the early returns suggest that the record drought in 2015 is a sign of things to come.  A 2009 update of the water supply outlook in the Seattle-Tacoma-Everett region had concluded that the central Puget Sound region would have sufficient water for at least the next 50 years, given considerations of growth and the potential impacts of climate change. A key element of this previous forecast was the significant reduction of water demand -- about a 25% decrease in water use per household from 1990 to 2005 due to water conservation programs and increased water use efficiency.   However, the lack of snow, reduced rainfall, and high temperatures that drove this year’s drought are also driving predictions of a future water supply squeeze.  Reports of new computer-modeled climate simulations predict that the annual firm yield of Seattle’s water supply would decline by an average of 30% by 2050.  While the climate forecast update work is not complete and will continue through next year, the emerging climate forecast may be the first concrete data point that the record 2015 drought is not an outlier and is, instead, a glimpse of the future in the Pacific NW.  For more on water resource issues in Washington, contact Partner Adam Gravley.

Another Strike Against Vested Rights

In Alliance Investment Group of Ellensburg v. Ellensburg, the Court of Appeals, Div. 3, recently held that a business park development proposed on short platted lots was subject to a Critical Area Ordinance (CAO) adopted one year after the short plat application was filed and approved, because the CAO was enacted before building permit applications were filed.  The Court applied a very narrow interpretation of Noble Manor v. Pierce County, in which the Washington Supreme Court had agreed that an applicant for a short plat who had disclosed a specific proposed use “has the right to have that application considered under the zoning and land use laws existing at the time the completed plat application is submitted.”  The Court of Appeals in Alliance agreed that the applicant had disclosed a business park use when applying for the short plat and that the CAO was a land use law.  Nonetheless, the Court distinguishes between vesting a “use” by short plat application and vesting for “buildings to support those uses” which the Court states requires a building permit application in order to vest. 

Hearings Board Proposed Rule Changes

The Growth Management Hearings Boards are considering changes to their administrative rules (242-03 WAC) based on the Board reorganization in 2011 and changing communications methods. Comments on the proposed changes hould be directed to Central@eluho.wa.gov and are due by October 2, 2015.

Texting and Advising Don’t Mix

new Supreme Court decision held that cell phone texts are deemed public records--even if on a private cell phone.  This is especially important for public entities and for private individuals communicating with public agencies as the communications might be subject to public records act requests and responses--all the more reason to NOT communicate by cell phone text.

How Many Owners Does It Take To Modify a Condominium Leasing Restriction?

The Washington Condominium Act (the “WCA”) requires the approval of the owners of units holding at least 90% of the voting rights in the condominium for any amendment to a condominium declaration that would change “the uses to which any unit is restricted.”  RCW 64.34.264(4).  The declaration for a Bellingham condominium explicitly permitted leasing of any of the units.  The owners voted to amend the declaration to limit the total percentage of units that could be leased, but without meeting the 90% supermajority voting requirement.  One of the owners challenged the vote, and the Washington Supreme Court recently ruled in favor of the owner.  The WCA does not define “use,” but because the condominium declaration in this case explicitly permitted leasing in the “Permitted Uses” section, the Court held that an amendment limiting leasing does restrict the “use” of a unit for this condominium and requires a supermajority vote under both RCW 64.34.264(4) and the declaration.  The Court did not decide whether under the WCA itself an amendment restricting leasing would trigger the supermajority requirement.  Condominium developers, boards, and owners should be aware of the supermajority vote required to change leasing restrictions in a declaration, or at least those that are described as use restrictions.

Update on Seattle’s  Commercial Linkage Fee and Inclusionary Housing

On September 1, 2015, Mayor Ed Murray and Council member O’Brien introduced legislation for a commercial linkage fee and mandatory inclusionary housing, which the City estimates will result in the creation of 6,000 new affordable units over ten years. The legislation reflects what has been described as a “Grand Bargain” between developers and housing advocates on the mayor’s Housing Affordability and Livability Agenda (HALA) task force.

The linkage fee was the subject of a previous Van Ness Feldman article; however, as now proposed, the linkage fee only applies to new commercial development instead of both commercial development and market-rate multi-family residential projects.  Concerns about the legality of a linkage fee, which focus on the City’s ability to demonstrate a legally-sufficient “nexus” between the need for affordable housing and the impacts of the new commercial development subject to the fee, still surround the program.  Developers on the HALA committee signed an agreement not to sue the City, but other developers are not bound by that agreement.  The second component of the proposed legislation is the mandatory inclusionary housing (MIH) program, requiring that developers incorporate affordable units into new multi-family residential and mixed-use developments or pay a fee to construct new affordable housing off-site.  The Council Committee on Housing Affordability held a public hearing on September 9th to solicit comments on the proposed legislation for both programs.  The City Council will hold a public hearing on the commercial linkage fee on September 30th and is targeting adoption of the program prior to the end of 2015.  A public hearing on the MIH is not yet scheduled, but City Council action is anticipated in early 2016.

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