July 28, 2023

Land Use, Property Rights and Land Development: New 2023 Washington case law that could impact you! (Part Two)


Jordan Ramis Shareholder Jamie Howsley recently summarized these cases, which were presented at the June 2023 Building Industry Association of Washington Legal Committee meeting. Here are Jamie’s highlights in this multi-part series.

Developer of a 46-story mixed use apartment building prevails in State Environmental Policy Act (SEPA) review, legislation

Fischer Studio Building Condominium Owners Association v. City of Seattle February 21, 2023 Division I Published

Seattle approved a 46-story mixed-use apartment building and the Association appealed the design review under State Environmental Policy Act (“SEPA”) arguing that that the project would have a significant environmental impact on light and glare. RCW 43.21C.501(3)(b) went into effect while the appeal was pending eliminating SEPA appeals for light and glare. The Court dismissed based on the new legislation.

A second claim under the City’s design review guidelines for inconsistency also got dismissed because the Association didn’t identify any specific inconsistency and tie it to the Land Use Petition Act (“LUPA”) appeal standards under RCW 36.70C.130.

Boundary line adjustments are exempt under RCW 58.17 in King County decision

Hollywood Hill Neighbors v. King County, Murray Franklyn Homes, LLC May 8, 2023 Unpublished Opinion Division I

The Hollywood Hill Neighbors (“Neighbors”) brought a Land Use Petition Act (“LUPA”) action to challenge and boundary line adjustment application in King County. The neighbors argued that the boundary line adjustment violated King County Code (“KCC”) 19A.28.020 because the resulting lots were too small to qualify as buildable lots under current code. The Court of Appeals agreed with the Neighbors based upon a reading of the ordinance and the statutory scheme.

James and Maxine Keesling owned eight King County lots and, pursuant to a 1974 divorced decree and 1985 judgment the lots were created. King County formally recognized the lots in a 1999 legal lot determination and recognized them as separate, legally created lots, exempt from RCW 58.17. But that decision also contained a caveat: “[r]ecognition of the property as a separate lot is not to be regarded as a commitment [by the County] that the lots in their present state are suitable for development…Any application for development approval will be reviewed under the ordinances and laws in effect at the time.”

Murray Franklyn purchased the lots and in February 2021 sought a boundary line adjustment to change the configuration and create one additional lots. In November 2021 the County approved the boundary line adjustment that was recorded in January 2022, which essentially did not change the square footage of any of the lots, dropped the one additional lot, and reoriented the lot boundaries from a vertical orientation to a horizontal one.

The Neighbors filed a LUPA action alleging the lots created more traffic, noise, worse views, lack of parking, and impacts on habitat. They also argued the lots were too small to quality as buildable in accordance with KCC 19.04.060.

The home builder argued that the Neighbors failed to have standing, resulting in additional discussion. There was a dissent in this case that would have dismissed for lack of standing. The Neighbors had improperly tried to establish a record on appeal by submitting a declaration with the reply brief.


Click here to read Part One

Tags: Construction, Real Estate and Land Use, Environmental and Natural Resources, Construction and Development, Homebuilding

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