1. Washington Real Estate Law © Copyright 2010 Rockwell Publishing, Inc. Lesson 11: Restrictions on Land Use

2. © Copyright 2010 Rockwell Publishing, Inc. Introduction In this lesson: local land use restrictions (zoning, building codes, subdivision regulations, land use planning, etc.), environmental legislation, taxation, open space and agricultural properties, and private restrictions.

3. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions As populations grew and cities became crowded, local governments began enacting zoning ordinances to prevent conflicting land uses. Zoning ordinances are primary public restriction on land use. Building codes, state laws such as the Growth Management Act, and other regulations also restrict land to benefit public.

4. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions The power to regulate land use is rooted in the state’s police power. Police power: A state government’s power to adopt and enforce laws for protection of the public health, safety, morals, and general welfare. State may delegate police power to local governments. Power to regulate land use

5. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Because land use laws prevent overcrowding and accompanying sanitation, fire protection, and law enforcement problems, they protect the public health, safety, and welfare. U.S. Supreme Court: Land use laws are legitimate use of police power, not an unconstitutional interference with private property rights. Power to regulate land use

6. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Constitutionality of a particular land use law can still be challenged if it imposes excessive restrictions on landowner’s use of property. Inverse condemnation: Government restrictions amount to a “taking” of the property. Government can take property under eminent domain/condemnation only if it pays just compensation. Power to regulate land use

7. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions To successfully challenge land use law, landowner must do more than simply prove that law has lowered the value of her property. Must prove that law makes the property virtually useless, by preventing the only kind of development it was suited for. Power to regulate land use

8. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Purpose of zoning is to control and regulate growth and building in a way that serves the public’s best interests. Zoning ordinances: Zoning partitions community into areas (zones) and specifies the uses allowed in each zone. Compatible uses are located in the same zone. Zoning

9. © Copyright 2010 Rockwell Publishing, Inc. Zoning Early zoning regulations used only four categories: residential, commercial, industrial, and agricultural/rural. Zoning categories

10. © Copyright 2010 Rockwell Publishing, Inc. Zoning Today’s zoning regulations are much more complicated. Four basic categories may still be used, but with numerous subcategories. Example: Residential zone may be divided into areas for single-family housing, duplexes, apartments, condominiums, mobile homes, etc. Zoning categories

11. © Copyright 2010 Rockwell Publishing, Inc. Zoning Zoning may also: regulate height, size, and shape of buildings, as well as their locations on lot, control population density, ensure adequate open spaces and access to air and daylight, and provide guidelines concerning specific matters such as vehicle parking, etc. Zoning categories

12. © Copyright 2010 Rockwell Publishing, Inc. Zoning When proposal for new development is made, it must go through plan review process to make sure it meets all building code and zoning requirements. Many communities now have a design review process that assesses aesthetic quality of buildings and landscaping. Zoning for aesthetics

13. © Copyright 2010 Rockwell Publishing, Inc. Zoning In Washington, zoning ordinances are adopted only after a public hearing has been held. This gives members of public the opportunity to express their opinions and state any objections. Exceptions to zoning regulations

14. © Copyright 2010 Rockwell Publishing, Inc. Zoning When area is rezoned, there may be properties that don’t comply with new zoning restrictions, or some landowners who want to make a different use of their property than the one allowed. These conflicts are resolved by seeking exceptions to zoning rules. Exceptions to zoning regulations

15. © Copyright 2010 Rockwell Publishing, Inc. Zoning Exception to zoning regulations include: nonconforming uses, variances, and conditional uses. Exceptions to zoning regulations

16. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Nonconforming use: A land use that violates current zoning but was legal prior to a zoning change. Use is permitted to continue even though it does not comply with new or revised ordinance. Usually subject to certain limitations or restrictions. Nonconforming uses

17. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations In general, nonconforming use may not: be expanded, be resumed after being discontinued, or be rebuilt after being destroyed (by fire, earthquake, etc.). Nonconforming uses

18. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Nonconforming uses usually run with the land. New owner can continue nonconforming use. All of the same restrictions that applied to previous owner would also apply to new owner. Nonconforming uses

19. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Variance: A zoning exception that permits an owner to build a structure or conduct a use not otherwise allowed. Allows only minor deviation from requirements of zoning ordinance. Proposed use must not change essential character of the area, or reduce value of the surrounding properties. Variances

20. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Certain factors must be present before a variance is granted. The owner must show that the zoning causes undue hardship. The hardship suffered must be that reasonable use cannot be made of the land, not simply that more money could be made by devoting land to another use. Variances

21. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Conditional use: A common provision in zoning ordinances that allows the zoning board to issue special permits for certain uses that are inconsistent with the designated zone, but are necessary or beneficial to the community. Examples: Churches, hospitals, schools, etc. Conditional uses

22. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations If property owner believes zoning classification is improper, petition may be made for rezone. Change must be justified by current needs of community. Change can be made only if it makes more sense than current zoning category. Change must not damage rights of those relying on current zoning. Rezones

23. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations Spot zoning: When one piece of property is singled out and rezoned without any clear justification for change. Spot zoning is illegal. If zone change is based on sound planning policy and is clearly justified, the change is not illegal. Spot zoning

24. © Copyright 2010 Rockwell Publishing, Inc. Exceptions to Zoning Regulations In deciding whether or not particular rezone is spot zoning, court considers several factors: size of area rezoned, character of surrounding areas, whether new use meets community needs or fits within comprehensive plan, and whether rezone benefits individual owner without any corresponding benefit to community. Spot zoning

25. © Copyright 2010 Rockwell Publishing, Inc. Zoning In Washington, zoning ordinances may be enforced by either city or county officials, depending on where property is located. Violations may result in fines or court actions. Zoning often enforced through building codes and permits. Enforcement of zoning ordinances

26. Summary © Copyright 2010 Rockwell Publishing, Inc. Zoning  Police power  Inverse condemnation  Zoning ordinances  Nonconforming use  Variance  Conditional use  Spot zoning

27. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Building code regulations are intended to protect public health and safety. Generally divided into specialized areas, such as fire code or plumbing code. Codes specify construction standards and requirements for materials used. Building codes and permits

28. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Building codes are usually enforced by requiring a building permit to be obtained before a building can be constructed, repaired, or altered. Allows officials to inspect building plans to verify that building codes and zoning ordinances will be complied with during construction. Building codes and permits

29. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions A building inspector examines various phases of construction. If there are problems noted, problems must be resolved before construction may continue. Once building is completed, it is inspected again. If it is found to be satisfactory, a certificate of occupancy is issued. Building codes and permits

30. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions There are two types of subdivision regulations in Washington. The first is concerned with physical aspects of subdivisions (provisions for streets, utilities, size of lots, etc.), and these determine procedures for subdividing/developing land. The second is concerned with protecting interests of consumers in real estate transactions. Subdivision regulations

31. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Regulations that set forth procedures for subdividing land are adopted and administered by each county. Procedural requirements

32. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Before subdividing, landowner generally must notify officials of the county where the property is located. If property is within one mile of a city or within city limits, notice must also be given to city officials (usually the planning commission). Procedural requirements

33. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Notice is usually given by filing plat map. Plat: A type of map that shows the location and boundaries of the proposed lots within the subdivision and the location of streets and public areas, and provides information about public services, such as utilities, schools, and parks. Procedural requirements

34. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Most local regulations provide that developer may not divide and sell or make improvements to land until proposed design of the subdivision has been approved by planning authority. Developer must submit preliminary plat for consideration. After any required changes or improvements have been made, subdivider files final plat for approval. Procedural requirements

35. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations The Washington Land Development Act is a consumer protection law that applies to: sales of land subdivided into 26 or more lots, that are sold or advertised to general public. Washington Land Development Act

36. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act Developers are required to provide purchasers with a public offering statement at least two days prior to closing of sale of a lot. Requirements

37. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act Public offering statement must include, among other things: name and address of developer/development, brief description of permitted uses and restrictions pertaining to development and individual lots, number of existing lots in the development and number of lots that may be added, and a list of the principal common amenities. Requirements

38. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act Public offering statement must also include copies of: pertinent CC&Rs, surveys, plat maps, articles of incorporation and bylaws, current or proposed budgets for any owners’ association, and other important documents. Requirements

39. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act Land Development Act makes it unlawful to sell lot that is subject to a blanket encumbrance unless lot purchaser will obtain legal title free and clear of the blanket encumbrance. Requirements

40. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act A developer’s failure to comply with any of these requirements may lead to: liability for actual damages, injunctive order prohibiting future sales, and cancellation of any sales agreements made with purchasers who did not receive copy of the public offering statement. Requirements

41. © Copyright 2010 Rockwell Publishing, Inc. WA Land Development Act Land Development Act has several exemptions. Does not apply if all of lots in the development are at least five acres. Does not apply if lots have buildings on them or if developer has legal obligation to construct buildings on them within two years. Does not apply if subdivision is entirely within limits of a city. Exemptions

42. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Planned unit development (PUD): A subdivision where the houses are clustered close together on slightly undersized lots in order to provide more open space to all of the residents. Planned unit developments

43. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Planned unit developments may have: mixed residential and commercial uses, mixed single-family and multi-family housing, and/or some other combination of uses that would not normally be permitted. In return, developer must usually provide more open space, dedicate more land to the public, or take other actions beneficial to public welfare. Planned unit developments

44. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations Some communities designate specific areas as PUD zones. More commonly, a floating zone system is used. PUD can be put in any area if adequate proposal made and approved by community and local zoning authority. Planned unit developments

45. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Regulations To get approval for a PUD, developer must: submit detailed plans of proposed development to planning authority, and meet additional requirements of planning authority, if necessary. Planned unit developments

46. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions In some older urban areas, certain buildings or districts have been designated as historical sites. Prevents buildings from being destroyed. Before any significant change to building is made, permit must be obtained. Historic preservation

47. Summary © Copyright 2010 Rockwell Publishing, Inc. Building codes/Subdivision regulations  Building code  Certificate of occupancy  Plat  Washington Land Development Act  Public offering statement  Planned unit development

48. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions In Washington, land use planning and administration changed dramatically with passage of Growth Management Act (GMA) in 1990, and subsequent amendments. Land use planning and administration

49. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Growth Management Act has four goals: concentrating new development in already existing urban growth areas; requiring thorough infrastructure planning; protecting critical areas from harm, and protecting natural resource lands from incompatible development; and encouraging regional responsibility by coordinating the plans and regulations of neighboring communities. Land use planning and administration

50. © Copyright 2010 Rockwell Publishing, Inc. Local Land Use Restrictions Growth Management Act: creates framework for land use planning, outlines steps local governments must take to achieve goals, sets deadlines for compliance, and establishes three regional hearing boards to settle disputes. Act leaves bulk of planning to local governments. Land use planning and administration

51. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. All states have adopted legislation authorizing local governments to develop comprehensive plans. Comprehensive plan: Sets forth general guidelines for development in a community, to prevent the problems caused by haphazard and unplanned growth. Comprehensive plans

52. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. Comprehensive plan addresses many issues, including: building intensity, housing, sewers, roads, utilities, and transportation. Comprehensive plans

53. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. Comprehensive plan is usually developed by planning commissions appointed by local legislative bodies (county council or city council). Comprehensive plans

54. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. In Washington, land use planning objectives of GMA are achieved using comprehensive plans. Requires most counties in Washington, as well as cities within those counties, to prepare comp plans. Other local governments may choose whether or not to prepare a plan. Comprehensive plans

55. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Growth Management Act requires comprehensive plans to be: internally consistent; coordinated and consistent with plans of adjacent counties and cities within region; and implemented by development regulations (such as zoning ordinances) that are consistent with those plans. Requirements

56. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Comprehensive plans must address several land use planning issues. Among other things, a comp plan must: include comprehensive information on required land uses, especially housing; address housing needs of all economic segments of society; Requirements

57. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Comprehensive plan requirements cont’d explore relationship between land use and transportation, inventory current transportation facilities, forecast future transportation needs, and plan financing of future transportation facilities; Requirements

58. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Comprehensive plan requirements cont’d determine location and distribution of various land uses, set forth appropriate population densities and building intensities in relation to various land uses, and project future population growth; and Requirements

59. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Comprehensive plan requirements cont’d provide for protection of ground water quality and quantity, and management of drainage, flooding, and storm water run-off. Requirements

60. © Copyright 2010 Rockwell Publishing, Inc. Comprehensive Plans Comprehensive plans are usually implemented by zoning ordinances. Local zoning ordinances can never conflict with goals set forth in community’s comp plan. Amendments to plan can only be considered once a year. Requirements

61. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. In large city, several additional agencies may administer zoning ordinances and other land use laws. Examples include: board of adjustment that grants variances and conditional use permits, hearing examiner who decides quasi-judicial disputes, board for subdivision approval, department that issues building permits, and an enforcement division. Requirements

62. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. In small towns, the town council may handle all of those matters and also serve as planning commission. Requirements

63. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. Growth Management Act requires new development to be concentrated in compact urban growth areas. Must be contiguous with presently urbanized areas. County and city planning under the GMA must designate urban growth areas. Urban growth areas

64. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. Urban growth areas must: consist of areas that are or will be adequately served by public facilities and services, and contain greenbelt and open space areas. Each county’s urban growth area must contain enough space to accommodate county’s projected 20-year population growth. Urban growth areas

65. © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning and Admin. Concurrency requirement: Under GMA, adequate public facilities to serve new development must be available when impact of development occurs and without decreasing current service levels below minimum standards. Development can’t take place unless accompanied by sufficient public facilities and services. Concurrency requirement

66. Summary © Copyright 2010 Rockwell Publishing, Inc. Land Use Planning  Growth Management Act  Comprehensive plan  Planning commission  Urban growth area  Concurrency requirement

67. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Federal and state environmental legislation includes: CERCLA, Model Toxics Control Act, National Environmental Policy Act, State Environmental Policy Act, Shoreline Management Act, Clean Air Act, and Clean Water Act.

68. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is a federal law that concerns liability for environmental cleanup costs. Identifies liable parties and makes them responsible for cleanup costs. Enforced by Environmental Protection Agency (EPA). CERCLA

69. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Superfund: A multibillion dollar fund used to clean up hazardous waste dumps and respond to spills of hazardous materials. CERCLA

70. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation If EPA determines a release of hazardous materials has occurred, it begins remedial action. Determines who is responsible. May include present and previous landowners as well as industrial generators of waste.  Referred to as “potentially responsible parties.” CERCLA

71. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation If potentially responsible parties fail to cooperate voluntarily in cleanup, EPA can begin cleanup work itself. Responsible parties will be charged for cost. Cleanup costs may include both cost of cleaning up that particular property and cost of cleaning up any neighboring property that may have been contaminated by hazardous substances. CERCLA

72. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Liability under CERCLA is joint and several. Joint and several liability: Any one property owner can be held responsible for entire cost of cleanup, regardless of liability of any other owners. If only one owner can afford the cleanup, she must pay for it, but can then try to get reimbursement from other owners. CERCLA

73. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation In some cases, current owners of contaminated property may be required to pay for cleanup even if they didn’t cause contamination. Referred to as retroactive liability. Doesn’t depend on finding of fault. CERCLA

74. Summary © Copyright 2010 Rockwell Publishing, Inc. CERCLA  CERCLA  Superfund  Joint and several liability  Retroactive liability

75. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Washington’s Model Toxics Control Act (MTCA) is a state law analogous to CERCLA. Imposes joint and several liability for hazardous waste cleanup on “potentially liable parties.” Coordinated by state Department of Ecology. Model Toxics Control Act

76. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Potentially liable parties may conduct cleanup without assistance and oversight of state. Cleanup results must still be reported to Department of Ecology. If potentially liable parties do not begin cleanup voluntarily, department may handle cleanup and then recover up to 3x amount spent from responsible party. Model Toxics Control Act

77. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation The National Environmental Policy Act (NEPA) requires federal agencies to provide an environmental impact statement (EIS) for any action that would have significant effect on environment. National Environmental Policy Act

78. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation NEPA applies to: all types of federal development (construction projects, building highways, etc.), and private actions when use or development requires approval of federal agency (licenses, permits, federal loans, etc.). National Environmental Policy Act

79. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation EIS should disclose impact of proposed development on: energy consumption, sewage systems, school population, drainage, water facilities, and other environmental, economic, and social factors. National Environmental Policy Act

80. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation State Environmental Policy Act (SEPA): State law similar to NEPA that requires issuance of environmental impact statement for all acts of local and state agencies that may have significant effect on quality of environment. State Environmental Policy Act

81. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation SEPA applies to: all state and local developments, and private developments that require approval of state, city, or county government agencies. State Environmental Policy Act

82. © Copyright 2010 Rockwell Publishing, Inc. State Environmental Policy Act When government agency is considering its own project or whether to issue a permit for a private project, it must: review environmental considerations, based on information found in environmental checklist, and decide if project may have significant environmental effects that require preparation of environmental impact statement. SEPA procedures

83. © Copyright 2010 Rockwell Publishing, Inc. State Environmental Policy Act Determination of nonsignificance: When proposal will have only moderate or minor effect on environment. Additional SEPA procedures do not apply. Environmental impact statement not needed. SEPA procedures

84. © Copyright 2010 Rockwell Publishing, Inc. State Environmental Policy Act When effect is deemed significant, an EIS is required. State or local agency may prepare statement. Developer may provide necessary information. SEPA procedures

85. Summary © Copyright 2010 Rockwell Publishing, Inc. MTCA, NEPA, and SEPA  Model Toxics Control Act  National Environmental Policy Act (NEPA)  Environmental impact statement  State Environmental Policy Act (SEPA)  Environmental checklist  Determination of nonsignificance

86. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Washington’s Shoreline Management Act protects shorelines by regulating development within 200 feet of high water marks. Applies to: coastal shorelines, lakes larger than 20 acres, and streams that flow at rate in excess of 20 cubic feet per second. Shoreline Management Act

87. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Structures existing when law took effect: can be maintained and repaired, and can be replaced or rebuilt in same footprint if destroyed. Shoreline Management Act

88. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Buyers face limitations if they want to build new home or structure, or add on to existing one. Developers of shoreline property are required to obtain substantial development permit from city or county before beginning any work. Shoreline Management Act

89. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Development is considered substantial if: it would materially interfere with normal public use of the water or shoreline, or its value exceeds $5,718. Value is adjusted for inflation every five years; current value will be adjusted again in 2012. Shoreline Management Act

90. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation The Shoreline Management Act also requires cities and counties to adopt shoreline master programs. These programs: regulate development in shoreline areas, and preempt other zoning laws that may apply to shoreline regions. Shoreline Management Act

91. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Violation of Shoreline Management Act may result in: fines and damages, and/or court order to restore shoreline to its original condition. Shoreline Management Act

92. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Federal Clean Air Act requires Environmental Protection Agency (EPA) to control emission of air pollutants that are harmful to public health and welfare. National standards have been issued for certain pollutants. States required to prepare state implementation plan (SIP) for meeting national standards. Clean Air Act

93. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation Developers of projects that will cause direct emissions of pollutants into air must obtain permits from state Department of Ecology or from regional air pollution control authorities. Clean Air Act

94. © Copyright 2010 Rockwell Publishing, Inc. Environmental Legislation The federal Clean Water Act is meant to safeguard water and prevent water pollution. Permits are required for discharge of pollutants into lake, stream, or other waterway. Also regulates wastewater treatment systems. Clean Water Act

95. Summary © Copyright 2010 Rockwell Publishing, Inc. Shoreline Mgmt., Clean Air/Water Acts  Shoreline Management Act  Substantial development permit  Shoreline master program  Clean Air Act  State implementation plan  Clean Water Act

96. © Copyright 2010 Rockwell Publishing, Inc. Taxation Two types of taxes on real property: general real estate taxes, and special assessments.

97. © Copyright 2010 Rockwell Publishing, Inc. Taxation General real estate taxes are: levied annually, and used to support government’s general operations and services (police, fire protection, etc.). General real estate taxes

98. © Copyright 2010 Rockwell Publishing, Inc. Taxation General real estate taxes are sometimes referred to as ad valorem taxes. Tax calculated based on value of property. Taxable value periodically determined by county assessor. Ad valorem = “according to value.” General real estate taxes

99. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes In Washington, real property is valued at its “true and fair value” unless otherwise specifically provided by law. True and fair value: Market value. Assessing value

100. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes For assessment purposes, land is valued as if vacant and available for development at its highest and best use. Property owner generally pays taxes based on highest and best use of land rather than use to which it is actually devoted. Highest and best use: Use of property that would produce the highest net return. Assessing value

101. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes The value of improvements to property (such as office buildings, houses, etc.) is assessed separately from the value of the land. Assessing value

102. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes Some properties taxed at current use instead of highest and best use. Examples include: open space, and historic landmarks. Purpose is to preserve: open space, natural resources, and scenic beauty, and historic landmarks. Exceptions

103. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes Certain types of property are exempt from general real estate taxes. Exemptions include: publicly owned property, church property and cemeteries, property owned by nonprofit organizations and veterans’ organizations, health care facilities, and libraries, schools, and museums. Exemptions

104. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes In Washington, total amount of all general taxes on real and personal property in any year cannot exceed 1% of true and fair value of the property. Limit doesn’t apply to port district or public utility district levies, or to special levies voted for by the people. Rate is set at certain number of dollars per thousand dollars of value. Rate is then applied to assessed value of each taxpayer’s property. Tax amounts

105. © Copyright 2010 Rockwell Publishing, Inc. General Real Estate Taxes Tax bills are usually mailed in middle of February. Payment of one-half of the tax is due on April 30 and balance is due on October 31. Collection

106. © Copyright 2010 Rockwell Publishing, Inc. Taxation Special assessments: Taxes levied to pay for public improvements that benefit specific pieces of property (a.k.a. improvement taxes). Usually one-time expense to pay for particular improvements (new sidewalks, etc.). Only those pieces of property that benefit from improvement are taxed. Special assessments

107. Summary © Copyright 2010 Rockwell Publishing, Inc. Taxation  Ad valorem taxes  True and fair value  Highest and best use  Special assessments

108. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Transfer of property can be affected by: Open Space Taxation Act, and Right to Farm Act.

109. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Open Space Taxation Act: Allows property owners to have certain property valued (and taxed) based on current use, rather than highest and best use. Lowers tax bills of owners who use property for beneficial purposes. Open Space Taxation Act

110. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act The law applies to three classifications of property: open space land, farm and agricultural land, and timber land. Property classification

111. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act Open space land includes lands that are preserved in their natural state. Current use of the land: conserves and enhances natural or scenic resources; protects streams or water supplies; promotes conservation of soils, wetlands, beaches or tidal marshes; or preserves archaeological and historic sites. Property classification

112. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act Farm or agricultural land must be used for livestock or agricultural production. If property is smaller than 20 acres, it must meet minimum revenue guidelines to qualify. Example: A parcel between five and 20 acres will qualify if it has earned a gross income of at least $200 per acre per year for three of the preceding five calendar years. Property classification

113. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act Timber land: A parcel of land that is five or more acres and that is devoted primarily to the growth and harvest of timber for commercial purposes. Property classification

114. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act Once property is classified as open space, agricultural land, or timber land, it must maintain that use for at least 10 years. Owner can withdraw property from classification early, but will have to pay difference between classified tax rate and normal tax rate for up to previous seven years, plus interest on amount.  Plus penalty equal to 20% of total owed. Current use status

115. © Copyright 2010 Rockwell Publishing, Inc. Open Space Taxation Act Some exceptions to rule: Owners can reclassify property from one open space category to another without penalty. Land use can change without penalty if change is due to a natural disaster. Classified property can be transferred at any time, but transferor becomes liable for additional tax, interest, and penalty at time of transfer, unless new owner agrees to preserve property’s current open space use. Current use status

116. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Usually, offensive odors from nearby farms would meet statutory definition of nuisance. Nuisance: Something which interferes with an owner’s use and enjoyment of her property. Right to Farm Act

117. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Washington’s Right to Farm Act attempts to balance needs of farmers against the needs of homeowners. In general, if agricultural property’s use is consistent with good agricultural (or forestry) practices, and was established prior to surrounding nonagricultural property use, then use is presumed to be reasonable and will not be considered a nuisance. Right to Farm Act

118. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Some WA counties require sellers to give potential buyers mandatory Right to Farm disclosure form when property is within certain distance of designated farmland. Disclosure informs potential buyers that they may be subject to unpleasant odors, pesticide- spraying, noise, dust, and similar agricultural activities from nearby farms. Right to Farm Act

119. © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property Purpose of law is to promote forestry practices and protect farming from nuisance laws. Gives agricultural property owner right to say “I was here first.” Right to Farm Act

120. Summary © Copyright 2010 Rockwell Publishing, Inc. Open Space/Agricultural Property  Open Space Taxation Act  Timber land  Current use status  Nuisance  Right to Farm Act

121. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Private restrictions are agreements between seller and buyer or between neighbors. Usually found in deed to the property. Generally run with the land.

122. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Private restrictions may be either covenants or conditions. Covenant: A promise to do or not do something. Condition: A deed restriction on the owner’s title that results in forfeiture of the owner’s title if condition is breached. Covenants and conditions

123. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Since forfeiture is extremely harsh punishment, ambiguity in wording of clause will usually lead court to construe restriction as covenant rather than condition. Violation of a covenant can lead to: court order requiring compliance with covenant, or judgment for money damages. Covenants and conditions

124. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Most restrictive covenants have no time limit and may be enforced indefinitely. But some contain time limits. Some states impose time limits even if none stated.  Washington doesn’t impose time limits. Termination of restrictions

125. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Probably most common example of private land use regulation is list of restrictions placed by a subdivider on lots within a subdivision. May be referred to as a declaration of restrictions or as CC&Rs (covenants, conditions, and restrictions). Subdivision restrictions

126. © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions Restrictions may: address permitted uses of property, specify items such as minimum square footage, maximum height, setback requirements, and permitted exterior materials, and address aesthetic concerns (street parking, etc.). Subdivision restrictions

127. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Restrictions Subdividers/developers may devise general plan for uniformity among all lots in development. Recorded plat or map of area will list all uniform restrictions that will apply to every lot. Individual deed to each lot states that lot is subject to restrictions in recorded plat. Recorded restrictions are incorporated by reference in each individual deed, and title conveyed is subject to restrictions. General plan

128. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Restrictions If there is a general plan, any lot owner may enforce restrictions in the plan against any other owner. Some developers create a homeowners association made up of lot owners. Association has right to enforce restrictions or bring lawsuit if restrictions are violated. Enforcement

129. © Copyright 2010 Rockwell Publishing, Inc. Subdivision Restrictions Restrictions that violate public policy will not be enforced. Example: Restriction prohibiting sale of property to members of particular race or religion is unenforceable. Enforcement

130. Summary © Copyright 2010 Rockwell Publishing, Inc. Private Restrictions  Covenant  Condition  Declaration of restrictions  CC&Rs