“Take this as a Sign” Supreme Court Sends Strong Message to Municipalities Concerning Content Based Sign Codes

Doug McIntyre,  Carly Summers and Brent Carson

On June 18, The United States Supreme Court decision in Reed v. Town of Gilbert, Arizona, No. 13-502 imposed a new strict test for municipalities to prove that their sign regulations are truly content neutral.  Local ordinances that regulate signs differently—dependent upon the type of message conveyed—may be found to be unconstitutional unless they support compelling government interests and are narrowly tailored to achieve those goals.

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IN BRIEF

Wind Energy in Skamania County Powers Forward

In Save our Scenic Area v. Skamania County, a case that reflected yet another attempt by Whistling Ridge Wind Farm opponents to block construction of this wind energy project, the Supreme Court held that claims under GMA failure to act and claims under the Planning Enabling Act were not time-barred.  Plaintiffs argued that (1) that the County had failed to complete its periodic review of natural resource lands and critical areas as required under GMA; and (2) that the County violated the Planning Enabling Act because its development regulations were inconsistent with its comprehensive plan.  GMA failure to act claims are permitted any time after the deadline for action established by the GMA.  In other words, there is effectively no statute of limitations for a failure to act challenge under the GMA.  The Planning Enabling Act inconsistency claim was not time-barred because the County had adopted and then continually extended a building moratorium for 5 years that was supported by statements regarding  ongoing work to address plan and regulation inconsistencies.  

Ecology Releases Draft Guidance on Stormwater Program

On May 14, 2015, the Department of Ecology released draft guidance on their Stormwater Control Transfer Program for public comment, which closed on July 14, 2015.  The new program will allow Western Washington municipal stormwater Permittees (both Phase 1 and Phase 2) an alternative means to satisfy permit requirements associated with flow control, runoff treatment, and/or low impact development (triggered at new and redevelopment sites) by directing rehabilitation efforts to priority watersheds.  The Stormwater Control Transfer Program is intended to accelerate environmental improvements in high priority watersheds.

A key element of the program is that municipalities must first evaluate their watersheds and establish a prioritization scheme prior to implementing a Stormwater Control Transfer Program.  Municipalities will then be allowed to transfer LID requirements and other NPDES permit requirements from development sites to these priority watersheds.  Additionally, municipalities must monitor and document the effectiveness of improvements made in priority watersheds to confirm the equivalency of the transfer approach with the default stormwater management requirements.  

Changes to Low-Rise Zoning

On July 6, the Seattle City Council passed Council Bill #CB118385, which amends the low-rise zoning districts throughout the City and is awaiting signature by Mayor Murray.  The low-rise multifamily zoning code, which was updated in 2010, became the subject of review when former Councilmember Sally Clark asked DPD to review building heights in the low-rise districts to bring new development more in line with existing neighborhood character.  The result of this review was a combination of wide-ranging changes to the LR-1, LR-2, and LR-3 zones.  Of particular note, the City will now subject certain development in the LR-2 zone to the design review process (8 dwelling unit threshold), impose stricter “rounding provisions” when calculating density in all low-rise zones, and require larger setbacks for all rowhouse development abutting non-rowhouse development.

While the Mayor has expressed general support for the changes, he also noted his hesitation for subjecting projects in the LR-2 zone to design review. 

Seattle’s Action Plan to Address Affordability    

After nearly a year of work, Seattle’s 28-member Housing Affordability and Livability Advisory (HALA) Committee, comprised of renters, homeowners, developers and housing experts, released its 76 page report with 65 specific recommendations to generate 20,000 units of affordable housing and 30,000 market rate units over the next 10 years.  Recommendations include:

• Mandating that affordable units be included in new housing developments on all up-zoned land
• Requiring commercial developments to contribute fees towards affordable housing (the so-called “linkage fee”)
• Devoting more land to multifamily housing near transit, services and amenities
• Expanding Urban Village boundaries to a ½ mile walking distance to transit
• Converting Single Family zoned land within Urban Villages to more intensive uses.
• Seeking state authority for property tax exemptions for private landlords who commit to income and rent restrictions in existing buildings
• Enacting a new 0.25% Real Estate Excise Tax (REET) dedicated to affordable housing
• Doubling the Seattle Housing Levy
• Expanding the Multifamily Property Tax Exemption program
• Removing specific code barriers, such as owner occupancy, to boost production of accessory dwelling units and detached accessory dwelling units
• Allowing small lot dwellings, cottages, courtyard housing, duplexes and triplexes, in Single Family zones
• Reforming the City design review and historic review processes
• Reducing the number of projects required to undergo SEPA review by raising SEPA thresholds

In announcing release of the HALA report, Mayor Murray noted that at the “heart” of the action plan is a requirement that developers reserve 5-7% of units in every new multifamily building to affordable units and a Commercial Linkage Fee of $5 to $14 per square foot of development to be used to fund affordable housing.  These two plan elements are likely to lead to legal challenges if adopted by the City Council.  

Division II Decision Addresses Damages for Land Use Delays

On June 9, Division II of the Court of Appeals published a decision that clarified several important procedural and substantive issues related to claims for damages allegedly caused by local government delays in making land use decisions. In Woods View II, LLC v. Kitsap County, No. 44404 -6 –II, the court rejected Kitsap County’s procedural arguments regarding statutes of limitations and the Land Use Petition Act (LUPA), holding that the plaintiffs’ claims did not accrue until the statutory time limit for a land use decision is “actually exceeded” and that the plaintiffs were not required to file a LUPA petition because they only sought money compensation rather than a reversal or modification of a land use decision. Second, the court agreed with the County’s argument that the public duty doctrine barred the plaintiffs’ negligence claim because neither of the asserted exceptions to that doctrine (the “failure to enforce” and the “special relationship” exception) applied. Third, the court rejected the plaintiffs’ claims for tortious interference on the merits, holding that the plaintiffs failed to establish two necessary elements of that claim: that the County’s interference resulted in the termination of their business relationships, and that the County acted with improper means or improper purpose.  Finally, the court  rejected the plaintiffs’ takings claim on the merits, holding that the mere loss of property value does not constitute a taking, that the County did not cause a reduction in the plaintiffs’ property value in any event, and that mere government delay does not constitute a taking.

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