T.C. Richmond and Ray Liaw

While VNF professionals are ready to begin work at any stage of negotiations, helping clients understand basic legal concepts is a value-add that makes good sense for everyone. This month we’re providing insight into the simple contracts that exist outside of the complex/high-stakes transactions—namely negotiating form leases, simple purchase and sales agreements, and service contracts—many of which are part of non-lawyers’ regular days. While no general “how-to” guide can replace contract-specific advice, the following tips for navigating basic contracts may help avoid common pitfalls.

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IN BRIEF

In another court decision regarding the interaction of land development and water resources law, the Washington State Court of Appeals (Division One) has held that a county properly rejected a building permit where water was not legally available for a new domestic well due to senior instream flows. Fox v. Skagit County involved an application to build a home in the Skagit River basin outside of any public water service area that proposed to use a permit-exempt well under RCW 90.44.050. Fox contended that a permit-exempt well is exempt from all water rights permitting requirements and from the minimum instream flow regulation adopted in 2001 by the Department of Ecology. The county had rejected the building permit on grounds that water was not legally available for a well that would draw groundwater in continuity with the Skagit River. Following State Supreme Court precedent from 2013, the Court of Appeals affirmed the county’s action because the Fox well would intercept water appropriated to instream flow by the 2001 regulation and those flow levels are not regularly met. The Court of Appeals held that a permit-exempt well is subject to the prior appropriation doctrine and the senior right represented by the instream flow regulation. Because a well subject to interruption cannot provide a reliable supply, the Court found water to be “not legally available” for the proposed building. Fox could seek Supreme Court review of this decision.

This is the second time in a year that Division One of the Court of Appeals has been asked to rule on issues stemming from the interaction of land development and water resources law. Division One decided Whatcom County v. Western Washington Growth Management Hearings Board in 2015. In fact, the lead author of the Whatcom decision also signed the Fox decision. The court in Fox cites to that earlier Whatcom case for authority in a passage that highlights a key distinction between the two cases – namely, the Court in Fox concludes that the Skagit Instream Flow Rule expressly indicates that it “applies to all groundwater withdrawals including permit-exempt wells,” while the Court in Whatcom confirmed Ecology’s interpretation that the applicable instream flow rule at issue in that case does not.   

Under long standing legal precedent in Washington, to establish a claim of adverse possession, a party’s possession must be: (1) exclusive; (2) actual and interrupted; (3) open and notorious; and, (4) hostile under a claim of right.  In the recent LeBleu v. Aalgaard decision, the Appellate Court focused on the “hostility” element, which is generally satisfied if the party claiming adverse possession treats the claimed land as his own without permission throughout the statutory period (generally ten years).   However, such use undertaken with permission of the owner of record negates the element of “hostility”.   Here, the court concluded that a party’s use of a neighboring property owner’s land pursuant to an agreement establishing a common property boundary did not constitute permissive use because the agreement was an agreement for adverse use, not a revocable license for use of the property.  Consequently, the element of hostility was satisfied—sometimes it just pays to not be nice.  

Adding fuel to the fire of neighborhood tree cutting disputes, the Washington Court of Appeals in Mustoe v. Ma et al. has affirmed that a property owner can cut the roots of a neighbor’s tree that have crossed the property line, without any liability for damaging the neighbor’s tree.  Mustoe had two large Douglas fir trees entirely on her property, 2.5 feet from the property line of her neighbor, Ma.  Ma dug a ditch on the Ma property, cutting and removing the trees roots along the ditch line, resulting in the loss of nearly half the tree’s roots and creating a high risk of the tree falling onto Mustoe’s home. The trial court dismissed Mustoe’s complaint for Ma’s negligent, reckless and intentional damage to Mustoe’s trees.  The Court of Appeals affirmed, holding that an adjoining landowner can engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property, and the adjoining landowner owes no duty of care to prevent damage to the neighbor’s tree, whether under theories of negligence, nuisance, or the timber trespass statue RCW 64.12.030.  Had the trees been on the property line, instead of 2.5 feet from the property line, the trees would have been considered the common property of both parties and damages could have been established for timber trespass under Happy Bunch, LLC. V. Grandview North, LLC.

In City of Airway Heights v. Eastern Washington Growth Management Hearings Board, the Court of Appeals (Division Three) provided guidance on a provision of the Growth Management Act (GMA) that prohibits development patterns in the vicinity of military installations that are “incompatible with the installation’s ability to carry out its mission requirements.” RCW 36.70A.530. The GMA provision at issue is similar to another GMA section that protects general purpose airports from incompatible development. RCW 36.70A.510; RCW 36.70.547.

At issue in the case were the City of Airway Heights’ ordinances that would have allowed multifamily residential development in the vicinity of the Fairchild Air Force Base (FAFB) and the Spokane International Airport (SIA). The City’s actions followed years of efforts among the City, County, and City of Spokane, to work collaboratively with the SIA and FAFB. Ultimately, however, the FAFB, SIA and the FAA opposed the City’s actions. The Growth Board initially invalidated the ordinances, largely on the basis of the input from the FAFB, SIA and FAA, but Spokane Superior Court reversed the Board. On appeal, the Court of Appeals affirmed the Board’s ruling, but did not agree with all of the Board’s rationale.

In reaching its decision, the court (like the Board below) balanced between GMA deference to local legislative actions and the contravening opinions of persons and agencies with expertise on the military installation. In general, the Board and courts are required to give deference to the planning decisions of local jurisdictions – in this case, the City. However, the Court gave substantial “weight to knowledgeable persons with expertise [namely, the FAFB, FAA and SIA] and to collaborative agreements involving such entities,” and determined that those opinions outweighed the deference owed to the City’s planning actions because the latter reflected the statutory purpose behind RCW 36.70A.530.

Interestingly, the Court did not rely on or discuss the specific requirement in RCW 36.70A.530 for the local jurisdiction to solicit the input of the commander of the military installation, which might have given more justification for siding with the FAFB over the City. Instead, the Court appears to base its decision on the Board’s general ability to weigh that stakeholder input and opinion over the deference required to the City under the GMA, despite the fact that the City made an effort to justify its approach based on FAA and DOD planning guidance and standards. That may be due to the unique facts of this case and the decision of the City ultimately to pursue a course of action that was inconsistent with the results of the multi-year, multi-jurisdictional joint planning effort in which it had participated with FAFB. However, as written, the Court’s decision gives weight to the input of military installations in planning decisions that might affect their operations.

On April 21st the 6th Circuit Court of Appeals rejected motions for en banc reconsideration of the February 22nd decision by a 3 judge panel concluding that the 6th Circuit had jurisdiction to hear petitions challenging the EPA-USACE Clean Water Rule. This allows the 6th Circuit to proceed with formal review of the multiple challenges to the rule by states, industry groups and environmental organizations. The Clean Water Rule, which defines “Waters of the United States,” has significant implications for NPDES and Section 404 permitting but, for now, the Rule remains stayed nationwide until a final decision by the 6th Circuit.

Separately, an appeal is pending in the 11th Circuit on whether the Clean Water Rule could have been challenged in the Georgia District Court. The North Dakota District Court is also, for now, proceeding with consideration of the complaints against the Clean Water Rule filed in that court, although motions to dismiss that action are pending. Appeals of any decision by the North Dakota District Court would be filed in the 8th Circuit. As such, a split among the Circuit Courts, on the procedural issue of where to file challenges to the Rule. is a real possibility.

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