Land Use

Land Use

A substantial portion of our practice involves land use matters, including drafting ordinances, permit processing, administrative hearings, negotiating development agreements, and litigation. We regularly provide advice and guidance to city councils, planning agencies, and staff throughout the review and adoption process. We have significant knowledge and experience working with SEPA, the Growth Management Act, the Shoreline Management Act, zoning codes, and other key statutes and regulations.The firm has successfully handled numerous matters before the Growth Management Hearings Board, the Shoreline Hearing Board, the Pollution Control Hearings Board, and other state appellate boards, as well as LUPA cases in counties around the state. Mike Kenyon, Kim Adams Pratt, David Linehan and Ann Marie Soto lead our land use team.

The firm has been responsible for the conduct of more than 75 contested land use matters over the past several years. A representative - but by no means exhaustive - sampling includes:

  • Puget Western, Inc. v. City of North Bend (GMHB No. 16-3-001).  North Bend currently hosts the only large commercial truck stop and service center in King County.  The truck stop is along I-90, an essential public facility (“EPF”) under state law.  The proponent for a second truck stop challenged the City’s zoning regulation prohibiting additional truck stops, citing to studies prepared by WSDOT and other authorities to support the argument that additional commercial truck stops were necessary to support and serve freight mobility along I-90.  In a 3 – 0 decision, the Growth Management Hearings Board rejected this argument, and upheld the validity of the City’s ordinance under the GMA.  Click here for the Growth Board's November 21, 2016 Final Decision and Order.
     
  • Kinderace, LLC v. City of Sammamish, 194 Wn. App. 835, 379 P.3d 135 (2016).  In this case, we successfully defended the City’s denial of a Reasonable Use Exception (RUE) for a parcel encumbered by a stream and its buffers. The property owner had previously utilized a portion of the parcel as a storm water detention pond in order to accommodate commercial development on an adjoining parcel, and sought to use the remainder by means of an approved boundary line adjustment. The developer appealed the RUE denial under LUPA, and also filed a separate “takings” lawsuit. We successfully defended the City’s position before the Hearing Examiner, the King County Superior Court, and the Court of Appeals.
     
  • City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17, 252 P.3d 382 (2011).  In this case the developer appealed a SEPA Mitigated Determination of Nonsignificance (“MDNS”) issued by the City of Tacoma, arguing that an MDNS condition requiring payment of traffic and stormwater mitigation fees to the City of Federal Way exceeded permissible SEPA mitigation. We assisted the City at the SEPA appeal hearing. The Hearing Examiner affirmed as to the stormwater fees, but ruled that traffic mitigation fees were improper. We filed a land use petition on behalf of Federal Way, and the Pierce County Superior Court reversed the Hearing Examiner and reinstated the traffic mitigation fees. We then also successfully defended the Superior Court’s decision on appeal, and obtained a published opinion saving Federal Way over $250,000 in traffic mitigation fees.
     
  • BD Lawson Partners, LP et al. v. Central Puget Sound Growth Management Hearings Board, 165 Wn. App. 677, 689-90, 269 P.3d 300 (2011); rev. denied 173 Wn.2d 1036 (2012).  In this complex land use decision, we represented the City of Black Diamond when it issued two Master Planned Development (“MPD”) Permit approvals for a total of 6,000 residential units and over one million square feet of commercial space. A citizen group challenged the MPD Permit approvals before both the Growth Management Hearings Board and in superior court (see TRD v. Black Diamond, below).  After the Growth Management Hearings Board initially ruled that it had jurisdiction over the case, the Court of Appeals reversed, ruling that the MPD Permit was a permit and that project opponents may not collaterally attack prior legislative policy decisions during a permit appeal.  The Supreme Court denied review.
     
  • Toward Responsible Development v. City of Black Diamond. In this companion case to BD Lawson Partners, we also defended a citizen group’s LUPA petition challenging the City of Black Diamond’s approval of two MPD Permits and the adequacy of the Final Environmental Impact Statements on which they were based.  The LUPA petition included civil rights claims under 42 U.S.C. §1983, alleging denial of Petitioners’ First Amendment rights to petition their elected officials.  The case was removed to federal court, but the state law (LUPA and SEPA) claims were subsequently remanded to superior court with the federal court retaining jurisdiction over the federal civil rights claims. The federal law claims were dismissed on motion without opposition following the Court of Appeals’ decision in BD Lawson Partners (above).  On August 27, 2012, after receiving over 200 pages of briefing from Petitioners alone, the Superior Court denied the land use petition.
     
  • Jones v. Hunts Point.  We defended the Town of Hunts Point’s decision to reject a short plat application due to language on the face of the underlying, recorded plat effectively barring reduction in the size of the lots.  The Town’s Hearing Examiner affirmed, and the property owners filed a LUPA petition. We successfully defended the Town’s decision before the Superior Court and the Court of Appeals, and the Supreme Court denied review. Both the Court of Appeals and the Supreme Court awarded the Town attorney fees; the Court of Appeals’ decision also awards the Town its consultant and hearing examiner expenses incurred at the administrative level.
     
  • Heller v. Bellevue, 147 Wn. App. 46, 194 P.3d 264 (2008). We defended a City stop-work order issued to halt work on a commercial remodel in excess of that allowed by the applicable building code.  We assumed the City’s defense after the trial court granted the property owner’s LUPA petition.  On appeal, we persuaded the Court of Appeals to reverse the trial court’s erroneous ruling, and obtained a published decision reaffirming cities’ rights to invalidate improperly granted building permit amendments.
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