The memorandum builds on a March 22, 2012 executive order (Executive Order No. 13604) that aims to facilitate faster regulatory reviews of proposed transportation, water resources, renewable energy, electric transmission, oil and gas pipeline, and other projects. The memorandum is available here: .
Congressman Norm Dicks has joined Van Ness Feldman as Senior Policy Counsel.
Working with the firm’s Washington, DC and Seattle offices, Dicks will apply his years in public service to his new role, consulting with clients on a wide range of public policy, strategic, and regulatory issues, particularly those in the environmental sector. He will work in both the DC and Seattle offices of the firm.
“Van Ness Feldman has an outstanding reputation as one of the premier law firms focused on the nation’s energy, environment, natural resources, and public policy matters. Like me, the firm has deep roots in both DC and the Pacific Northwest. The culture is one of collaboration among firm professionals and with clients,” said Dicks. “I look forward to joining a team of top-notch professionals committed to providing solutions to those doing business in these industries.”
Congressman Dicks was elected to the House in 1976, and represented Washington State’s 6th Congressional District. During his distinguished tenure in Congress, he received a rare first-term appointment to the House Appropriations Committee, later becoming Chair of the Defense Appropriations Subcommittee and Chair of the Interior Subcommittee. Dicks retired as the top-ranking Democratic Member of the full Appropriations Committee.
“As a firm with deep roots in Washington, DC and Washington State, we are honored to have Congressman Dicks join our firm,” said Firm Chairman, Rick Agnew. “Norm is highly respected for his wisdom, bipartisanship and legislative skills as a senior leader in Congress. His policy expertise will be a great resource to our clients as well as to his fellow attorneys at the firm.”
Van Ness Feldman is helping clients navigate the complicated and often lengthy process of disaster recovery in the wake of Hurricane Sandy. The Center's purpose is to help affected businesses secure federal resources for rebuilding and to keep clients up-to-date with the latest post-Sandy developments in the areas of energy, environment, project development, real-estate, federal funding and public policy.
Click on the links below for detailed information on key federal and state-administered programs tasked with recovery. The Center's web page will be updated frequently, and we encourage you to contact Tracy Nagelbush, Stuart Hall and Michael Chase of our Hurricane Sandy Resource Task Force for more information or questions regarding specific opportunities.
STATE-ADMINISTERED SANDY RELIEF PROGRAMS
KEY FEDERAL SANDY RELIEF PROGRAMS
- Army Corps of Engineers
- Department of Commerce
- Department of Defense
- Department of Health & Human Services
- Department of Homeland Security (including FEMA and NFIP)
- Department of Housing & Urban Development
- Department of the Interior
- Department of Justice and Legal Services Corporation
- Department of Transportation
- Department of Veterans Affairs
- Environmental Protection Agency
- Small Business Administration
- Other programs
Federal Funding Opportunities for Natural Resources, Agriculture, Alternative Energy, Water, and Energy Efficiency
Six opportunities totaling over $16.25 million in federal financial assistance were released this week, soliciting proposals in the major program areas of:
- Alternative and Renewable Energy
- Energy Efficiency
- Public Lands and Natural Resources
Van Ness Feldman's Federal Funding Resource Center is an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. It compiles active federal funding opportunity announcements in one place for ease of review, and includes a Primer on the federal funding process. Please feel free to let us know how we can improve this service.
Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years. The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements, and managing ongoing reporting and compliance requirements.
Cascade Water Alliance: First Entity in Washington to Become A Joint Municipal Utilities Services Corporation
On July 12, 2012, Van Ness Feldman GordonDerr client Cascade Water Alliance successfully converted to a municipal corporation (a Joint Municipal Utility Services Authority) from a non-profit Watershed Partnership.
Cascade, formed originally as a non-profit watershed management partnership, realized it lacked authorities of other utilities and had many areas of confusion, such as how to handle public purchasing. As a result, Cascade led a statewide effort to create more effective ways for entities to form to provide essential public services. The process led to the Joint Municipal Utility Services Act, enacted by the Washington Legislature in 2011.
The 2011 Act establishes an improved interlocal mechanism for cooperation among local government utilities that provide water, wastewater, stormwater and/or flood control services. The Act authorizes cities, towns, counties, and special purpose districts voluntarily to form an intergovernmental municipal corporation (“Authority”) that can provide services to those local utilities and their customers.
Cascade is very proud to be the first such entity and Van Ness Feldman GordonDerr is proud to have been of assistance in this transition.
Federal District Court Denies Request for Preliminary Injunction To Halt The Sale Of Flood Insurance and Floodplain Map Revisions In The Puget Sound
On April 12, 2012, Judge Martinez, U.S. District Court, Western District of Washington, issued a decision denying the National Wildlife Federation’s request for a preliminary injunction to halt the sale of flood insurance and floodplain map revisions in the Puget Sound stating that the NWF failed to demonstrate likely environmental harm absent the requested injunction.
[e]vidence that new flood insurance policies have been issued does not constitute proof that listed species are likely to suffer harm.” He explained: “the issuance of flood insurance policies by itself does not cause jeopardy to listed species; it is the issuance of such policies in the context of a program that is implemented in a certain way that causes jeopardy.
-Judge Richard Martinez
On the final day of the Washington State 2012 Special Session, 2ESSB 6406 was passed by the House and Senate and is on its way to the Governor’s desk. In a session light on land use issues, some have called this bill the most significant land use bill of the session.
The bill was able to survive this tough session in part because it introduced new fees and raises existing fees for certain natural resource approvals. Some specific features of the bill are listed below.
Idaho Governor C. L. “Butch” Otter signed House Bill 464, which prevents cities and counties in the state from banning oil and gas drilling operations. The bill would still allow local governments to pass “reasonable local ordinances” that regulate zoning and planning issues related to oil and gas operations, while all other activities would be regulated at the state level. Critics of the bill say it will increase fracking activity in the state, while supporters of the bill say it will make the state’s oil and gas regulations more uniform.
We are pleased to announce the launch of our Federal Funding Resource Center – www.vnf.com/funding – an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. The Federal Funding Resource Center, which is updated daily, compiles active federal funding opportunity announcements in one place for ease of review. The Federal Funding Resource Center also includes a Primer on the federal funding process.
In addition, our Government Relations team will send weekly funding updates via email every Tuesday to those who are interested in receiving them. To subscribe to our weekly funding email update, please e-mail email@example.com.
We hope you find the Federal Funding Resource Center useful and we welcome your suggestions for how it could be enhanced. Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years. The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements and managing ongoing reporting and compliance requirements. For more information on the firm’s capabilities in this area, please contact Shannon Angielski or any other member of the firm’s Federal Funding Practice at 202.298.1800.
Supreme Court Rules That Private Parties Do Not Have Avenue For Relief in Appeals of Docketing Decisions
Last week, the Washington State Supreme Court ruled in Stafne v. Snohomish County, reversing a lower appellate court decision that had caused consternation among local jurisdictions throughout the state.
The case clarifies the ability of a party to appeal a local jurisdiction’s decision to reject a privately-initiated proposal to amend a comprehensive plan amendment as part of the local jurisdiction’s annual “docketing” process. The Growth Management Hearings Board historically gave local jurisdictions great discretion to reject proposals from its docket and has repeatedly held that the board does not have jurisdiction to hear appeals of those decisions to not pursue privately initiated comprehensive plan proposals.
King County’s long developing program to accept cash payments for projects in need of wetland mitigation is expected to be formally approved by the U.S. Army Corps of Engineers next week. Under this program, King County takes on the obligation to build acceptable wetland mitigation and the Corps relieves the party filling the wetland and paying the fee of any other federal wetland mitigation obligation. This program can also satisfy mitigation obligations with King County and may be used to satisfy city obligations for cities within King County’s with local government approval.
We understand that the costs per credit may be very high as compared with on-site wetland mitigation, but with time savings and improved certainty, this may be a route to be considered.
National Wildlife Federation Files New Suit Against FEMA - Seeking Injunction Halting the Sale of NFIP Flood Insurance in the Puget Sound Region
On Thursday December 8, 2011, the National Wildlife Federation (NWF) initiated the most recent installment in their ongoing effort to force FEMA to change the way it operates the National Flood Insurance Program (NFIP).
In 2004, NWF filed a prior suit against FEMA, asserting that FEMA had violated the Endangered Species Act (ESA) because it had not consulted with NOAA-National Marine Fisheries Service (NMFS) regarding the impact of the NFIP on endangered species in the Puget Sound region. That lawsuit resulted in a decision ordering FEMA to consult with NMFS, which ultimately culminated in the 2008 Biological Opinion. In that 2008 Biological Opinion, NMFS concluded that FEMA’s activities implementing the National Flood Insurance Program (NFIP) in the Puget Sound region are likely to jeopardize the continued existence of certain endangered species, including chinook salmon and killer whales (orcas).
GordonDerr is excited to announce that the firm is combining with Van Ness Feldman, a nationally and regionally recognized energy, environment, transportation, and natural resources law and public policy firm with offices in Seattle and Washington, DC. The combined firm will help a broad, national range of clients successfully navigate the next generation of real estate, land use, natural resource, energy, infrastructure, and sustainable development projects.
Jay Derr, GordonDerr's Managing Partner, will lead the combined firm's Seattle office, which will operate under the name Van Ness Feldman GordonDerr for a transitional period.
Van Ness Feldman is the ideal partner for growth, as well as increased service and value to GordonDerr clients. The cultures mesh well, and we anticipate a seamless transition for our clients. More information about the combination and its many benefits to our clients may be found at www.GordonDerr.com.
Development and conservation need not always be at odds. The Pierce County Council recently approved Orton Junction, “a new model of development that contributes to the economic strength and livability of our cities and breaks the old habit of sprawling across the countryside.”
This agreement represents a model solution that provides for services and jobs in the Sumner area while also permanently protecting hundreds of acres of farmland and creating a ‘green wall’ to curb further growth in the valley.
Pierce County Executive Pat McCarthy
GordonDerr Partner Jay Derr provided strategic advice to the City of Sumner and property owners within the proposed conservation development over the past several years and led the final negotiations with Cascade Land Conservancy that culminated in a 7 Principles Agreement for agricultural lands conservation easements, transfer of development rights and sustainable community design and construction principles. The City ends up with significant job and economic development opportunities in a new community center. The local agricultural industry ends up with over 500 acres of agricultural land protected by permanent conservation easements—all based on private funds and market rate development.
Partner Jay Derr testified before the State Legislature, sharing perspective on local land use and environmental regulations in the State of Washington. Insight was given on the Growth Management Act (GMA), the State Environmental Policy Act (SEPA), the Shoreline Management Act (SMA), the various growth management boards throughout the State, and numerous specialized development and environmental regulations.
Skanska USA is poised to become the second developer participating in the City of Seattle’s “living building” pilot program. The living building program offers incentives to develop green building projects by allowing the City to modify development standards for buildings that meet a set of sustainability criteria.
The Seattle Times is reporting that Skanska USA has identified a tenant for its proposed green building on Stone Way in the Wallingford neighborhood. The City is also reviewing a code amendment that would allow Skanska to increase the building height by 20 feet beyond what is currently allowed for the zone. The proposed height increase has raised objection by some surrounding residents, and the Wallingford Community Council has requested review by the City’s Hearing Examiner.
The Florida State Legislature repealed its growth management legislation last spring. While Florida’s repeal still permits local jurisdictions to implement growth management planning tools by their own choice, there are no longer state mandates (nor state oversight) in Florida to do so. Economic development and jobs were the key reasons articulated for the repeal.
Washington’s Growth Management Act was adopted largely following Florida’s model. Does this mean Washington might follow suit? At least for this next legislative session, where dollars, instead of growth policy are likely to be the major (if not sole) focus of the debate in Olympia, repeal or even significant overhaul of Washington’s Growth Management Act is not likely. However, cries for regulatory reform (including repeated requests from the Governor’s office for new ideas) could spawn suggestions that Washington consider following Florida’s lead once again—if not in this session, in the near future.
Perhaps at a minimum, those implementing the Growth Management Act in Washington might be well-advised to pay a bit more attention to the Economic Development Goal in the GMA and give local governments more ability to make (or change) land use decisions when deemed appropriate to promote economic development and job growth.
GordonDerr partner, Molly Lawrence, reacts to notice that the National Wildlife Federation plans to sue the federal government, saying FEMA has failed to ensure that the national flood insurance program hasn't harmed endangered salmon — or the orca whales that feed on the fish — in Puget Sound.
The September 22, 2011, alleged “deadline” for local jurisdictions to take action to implement Element 3 of the Reasonable and Prudent Alternative from the NFIP Biological Opinion has come and gone. At this point, it appears that more than 75% of local jurisdictions have either formally selected “Door #3” – a permit by permit approach – to compliance. (Less than a dozen jurisdictions have made it through either Door #1 (adopting FEMA’s Model Ordinance) or Door #2 (showing how their existing development regulations satisfy Element 3)).
Despite multiple statements from representatives of FEMA and NOAA-Fisheries (NMFS), that they would be issuing clarifying guidance and/or revisions to the NFIP Biological Opinion to help local jurisdictions and property owners understand what is required, the agencies have yet to issue anything new.
Dissatisfied with the current state of affairs, the National Wildlife Federation (through their legal counsel Earthjustice) filed a 60-day notice with FEMA and NOAA-Fisheries threatening to initiate litigation for failure to comply with the Endangered Species Act if FEMA does not “hustle up” and take more comprehensive action to implement the various Elements of the Reasonable and Prudent Alternative from the NFIP Biological Opinion.
Local jurisdictions and property owners will now have to reflect and decide whether to “get in the game” to defend their interests, which could be significantly affected by the outcome of the NWF’s threatened lawsuit.
zHome, the nation’s first zero-impact, affordable, multi-family community, located in the City of Issaquah, had its grand opening on September 14th.
An international public/private collaborative of the City of Issaquah, Howland Homes, Ichijo USA, Built Green, King County, Port Blakely Communities, Puget Sound Energy, and the WSU Energy Program teamed on the project which in addition to the community itself, will feature on- and off-site education including a sustainability center for long-term education about the project and deep green living and building.
The concept for zHome originated many years ago in the conference rooms at GordonDerr. Former GD land use planner Brad Liljequist, currently Project Manager for zHome, had a revolutionary vision—the idea that deep green building and living could be accessible to the mainstream housing market. Today, zHome proves that the construction of up-to-date; eco-friendly construction technologies are feasible and possible for typical housing projects.
zHome is now open Saturdays from 10-5 and Sundays 11-5 from September 17 until October 30th. Tours include expert guides explaining the future of building and how we can deal with climate change, ocean acidification, and deforestation. You can either walk through on your own or take a tour, which will leave every thirty minutes starting at the top and bottom of the hour.
zHome is located on High Street in Issaquah Highlands, just east of the intersection with Highlands Drive. Take exit 18 on I-90, head north on Highlands Drive, and look for the homes with the solar panels! Lots of free parking is available on adjacent side streets around the project.
Columbia Law School’s Center for Climate Change Law has prepared a first draft of a model small-scale solar-siting ordinance. The model ordinance offers a framework that can enable municipalities to implement and enforce the effective and efficient use of solar energy resources. The ordinance would govern all new solar energy systems of up to ten kilowatts and includes provisions regarding permits, appeals, safety, and zoning for future solar access.
A majority of the model ordinance is derived from existing solar ordinances enacted in New York municipalities. While designed with New York municipalities in mind, the model ordinance can be easily modified for adoption in other states.
FEMA and NOAA-National Marine Fisheries Service Contemplate Changes to the NFIP Biological Opinion While Local Jurisdictions Proceed with Efforts to Implement the 2008 Biological Opinion
With the September 23rd implementation “deadline” less than two months away, many of the 122 local jurisdictions participating in the National Flood Insurance Program (NFIP) are moving ahead to take some type of action to respond to the Biological Opinion issued by the NOAA-National Marine Fisheries Service to FEMA Region X. As many will recall, in that Biological Opinion, the NOAA-National Marine Fisheries Service directed FEMA to take action by September 23, 2011 to implement changes to the NFIP to protect endangered salmon and steelhead species and Orca whales. FEMA has in turn looked to local jurisdictions to change their regulations to implement the more stringent floodplain development standards set forth in the Biological Opinion (Element 3 of the Reasonable and Prudent Alternative).
But this is not new or news. What is new is that FEMA and NMFS are currently in the process of considering revisions to the Biological Opinion that are likely to address some of the many concerns leveled at the Biological Opinion since its issuance in September 2008.
A recent New York Times article raises some interesting questions about how US cities might tackle increasing traffic congestion and subsequent pollution—by following the urban planning of many European cities, where trends are to make driving as irritating as possible, thereby almost forcing individuals to choose public transportation.
Interesting concept—plan a city/development around people NOT cars. Could Seattle follow the lead of our southern neighbor San Francisco? Perhaps the Burke-Gilman trail could be rebranded as Seattle’s next highway…
There are two different types of rezoning decisions: area-wide rezones and site-specific rezones. Traditionally, both types of rezones were considered to be purely legislative decisions and, like all legislative decisions, were given a high degree of deference by the courts. Since the passage of the Land Use Petition Act (LUPA) in 1995, however, site-specific rezones have been considered to be “quasi-judicial” decisions. This change called into question the level of deference that courts should give to local government decisions on site-specific rezone requests.
On June 16, 2011, the Washington Supreme Court issued a unanimous opinion that clarifies the appropriate level of deference in such cases. Phoenix Development, Inc. v. City Of Woodinville, No. 84296-5 (Wash., June 16, 2011). In Phoenix Development, the Supreme Court reversed a prior decision by Division I of the Court of Appeals, which had reversed the City of Woodinville’s denial of two rezone requests. See Phoenix Development, Inc. v. City of Woodinville, 154 Wn. App. 492, 229 P.3d 800 (2009). The Supreme Court’s opinion affirmed the long history of judicial deference to site-specific rezoning decisions, despite the fact that such decisions are now considered “quasi-judicial” decisions under LUPA. It also affirmed earlier holdings giving deference to local choices regarding urban densities under the Growth Management Act (GMA).
According to a recent Crosscut article Seattle is “the Wild West” for outdoor signage, where bigger, brighter, bolder, and brazenly illegal signs are polluting the streetscape. The article focuses on the proliferation of wall-covering vinyl signs and how the City has allowed these signs through a loophole in the sign ordinance. The article concludes that the proliferation of wall-covering signs will lead Seattle into a dystopic and generic future that will rob Seattle its urban character. But what about the important role signs play in keeping a city fresh with new ideas and new products? Assuming the City can wrangle the signage cowboys, do wall-covering signs have a place in downtown Seattle?
On Thursday, May 5, the state Supreme Court issued a decision in Whatcom County Fire District No. 21 v. Whatcom County, which has implications on concurrency determinations for development proposals. “Concurrency” is captured in the twelfth goal of the growth management act and requires that an adequate level of service should be available at the time of occupancy to meet the needs of development. The case before the court addressed the question of whether certain local regulations allow providers of public services (e.g., fire districts, water and sewer utilities, and school districts) to essentially veto development proposals over concerns about their ability to serve those development proposals.
Seattle’s City Council unanimously approved a pilot program that will enliven downtown lots left vacant after the real estate bust. The City hopes to replace parking lots with public art, mobile food vending, retail kiosks, tree nurseries, community gardens, or any other similar use that enlivens the area for pedestrians.
Is this Seattle’s first step toward challenging Portland’s reign as food cart king? Most likely no: it is unlikely that the 20 lot pilot program will yield anything close to Portland’s 500 food carts. However, as the city waits for the real estate market to rebound, our own flavor of vacant lot reuse could keep downtown residents, workers, and visitors well-fed and entertained.
Interested participants must obtain a Type I Master Use Permit, which is subject to approval by the City’s Planning Director. Those given the green light will be allowed to operate their new and creative uses for three years, with a possible three-year extension.
The City of Issaquah recently announced a complex agreement involving a transfer of development rights (TDR) transaction that will preserve more than 140 acres of forested land in and around the City, including the entire Park Pointe area at the base of Tiger Mountain. Several years ago, a developer had proposed to build hundreds of homes at Park Pointe. The TDR agreement shifts new development away from Park Pointe and into the area around the Issaquah Highlands master-planned community.
This project, like many other TDR success stories in Washington State, was the result of fairly unique and fortuitous circumstances. Land conservation efforts always require vision and dedication, and in this case, local officials, planners, and other partners worked for years to preserve Park Pointe. However, as reported in the Issaquah Press, a key factor in the ultimate success of the project was the recession: between early 2009 and late 2010, the property’s value dropped from $18.9 million to around $6 million.
Kitsap’s population grew 8.3% over the past ten years placing it 11th from the bottom in population growth rates among Washington’s 39 counties. Perhaps the lack of population pressure contributed to Kitsap County’s decision to consider prohibiting Fully Contained Communities, as authorized by the Washington Growth Management Act.
In concept, a Fully Contained Community (FCC) is a development incorporating urban-style housing, businesses, and jobs in a defined rural area. In some cases, these communities may be constructed adjacent to (and subsequently incorporated into) an existing town or City, such as Snoqualmie Ridge, Issaquah Highlands ,and the most recent Yarrow Bay project approved in Black Diamond.
The idea is that the urban impacts of the development will be prevented from spilling into the rural surroundings. In some cases, starting from scratch with new planning and urban infrastructure may be more cost-effective than trying to retrofit the same growth within existing infill neighborhoods: it’s sometimes easier to draw a pretty picture on a clean slate.
All signs indicate that it will be several more months – if not years – before FEMA finalizes the floodplain maps for many Puget Sound jurisdictions, including King County (Green River) and Pierce County (Puyallup River).
“Acknowledging that there are ongoing flood hazard analysis studies where the ‘without levees’ approach has been used, FEMA will temporarily withhold issuing Final Determinations for those communities whose levees do not meet accreditation requirements and would clearly benefit from this new approach. This temporary delay will allow us to properly evaluated affected levees under the new procedures.”
--FEMA Administrator Craig Fugate, 3/10/11
The exact impact of this policy change on the maps in the Puget Sound region is not yet entirely clear. Initial conversations with local FEMA representatives indicate that this change will mean at least further delays in the King County and Pierce County floodplain maps, which are still in their preliminary stage. It may also apply to the pending floodplain maps for other jurisdictions (e.g., Skagit, Lewis, and Snohomish counties) where FEMA has treated as non-existent various levees that do not meet FEMA’s accreditation standards.
A recent post, somewhat tongue-in-cheek, commented on a not too surprising gap in the City of Seattle’s land use codes that did not specifically address construction of a 200-foot tall ferris wheel. While local governments probably don’t need to run out and amend their local codes to address ferris wheels specifically, another developing trend in local land use probably merits more careful consideration: small scale renewable energy installations.
Current legislation being considered by the Washington state legislature is evidence of the need to address siting of small scale renewable energy installations. House Bill 1081 would give the state Energy Facility Site Evaluation Council (EFSEC) authority to approve small-scale renewable energy installations, particularly in circumstances where local ordinances do not adequately address the use.
Jurisdictions throughout the state are in varying stages of updating their local shoreline master programs (SMPs). While several have completed the process, others, like Seattle are still relatively early in the process, and some have yet to start. Each jurisdiction’s progress is shown on the Department of Ecology’s website.
SMPs regulate development and land use within 200 feet of the ordinary high water mark of marine waters and many lakes and rivers and can extend across an entire floodplain. Thus, while their reach is relatively constrained geographically, SMPs are a primary source of land use restrictions for properties located in whole or in part within these shoreline areas. Shoreline property owners, businesses and industries along watercourses can be significantly affected by the SMP updates with such issues as increased setbacks and buffers, restrictions on bank stabilization and increased public access.
FEMA, NOAA-National Marine Fisheries (NMFS), Puget Sound Partnership and other partnering organizations held a two day conference March 1st and 2nd in Edmonds in an effort to help local governments, technical consultants and other NGOs understand options for implementing the Biological Opinion ("BiOP") issued by NMFS in September 2008 regarding FEMA's implementation of the National Flood Insurance Program.
Approximately 300 people attended the conference, during which representatives of FEMA, NMFS and several local governments rolled out the various process options for local governments to demonstrate compliance with the BiOp by the September 22, 2011 deadline. In many instances, the conference raised more, or at least as many, questions as it answered, particularly as federal officials attempt to explain how the BiOp does or does not fit with existing state and local regulations (e.g., the Shoreline Management Act and the Growth Management Act).
Local governments continue to seek the most efficient means to integrate the BiOp provisions into their regulatory scheme. At this point, it seems improbable that most local governments will meet the September 2011 deadline. But property owners and project applicants should except local jurisdictions to step up their BiOp compliance efforts immediately by requiring more habitat assessments, increased mitigation, and in some cases even denying projects that just a few months ago would have survived environmental scrutiny.
For more information regarding the processes that will be used by local governments over the next several months to implement the BiOp, or how that BiOp implementation may affect your property, feel free to contact me.
As discussed in "Smart Growth = Better Bottom Line?", recent studies demonstrate that dense, mixed-use urban development centered around public transit ("smart growth") can translate into economic gains for local businesses, citizens, and the government. An additional cost-saving tool also available to eligible cities passed last year: the "Compact, High-Density Urban Development" bill.
Although a participating city must follow a number of requirements, the SEPA cost savings and "no appeal" incentive for developers are significant.
No matter how hard local government tries to anticipate uses in its local zoning codes, you can probably never anticipate them all. Proof that local ordinances should always leave room for director interpretations of unanticipated uses arose when Great City Attractions, of Birmingham, England approached the City about installing an 196 foot tall “capsule ferris wheel” at Seattle Center to celebrate the 50th anniversary of the Seattle World’s Fair.
Probably to no one’s surprise, the Seattle land use code did not anticipate ferris wheels in its regulations. Not wanting to be a party pooper, in a deft feat of nimble code interpretation, the City solved the problem (and permitted the celebration) with a dual interpretation: first that the ferris wheel is not a structure, but rather a piece of equipment and, as such, is NOT subject to height limitations that would otherwise apply; and second that the use is not really a ferris wheel, but rather a “participant sport and recreational use” that is permitted at Seattle Center. Without even doing the research, I can only speculate that should this matter get appealed, one won’t find any specific precedent to guide appellate decision makers.
We now know a little more about how the Department of Ecology is responding to Gregoire’s suspension of rule making. On November 30, Ecology Director Ted Sturdevant released an initial determination of affected rules. He intends to announce a final determination on Monday, December 6. Ecology is seeking comments on its initial determination through this Friday, December 3.
The affected rules run the gamut of Ecology’s authority from water rights administration, to solid waste handling and landfills, to dam safety. You should review Ecology’s lists to determine if any rule making affects you, and if so, consider a comment to Ecology explaining how proceeding with the rule—or postponing any further rule making—over 2011 will impact your operations. Ecology is accepting electronic comments at firstname.lastname@example.org.
The initial determination identifies three categories: (1) rules that Ecology will delay development on until 2012; (2) rules that will continue over 2011; and (3) rules that Ecology is waiting for further input from local government, Tribes, and/or the legislature before making a determination.
Please note that the rules slated to proceed in category (2) are in addition to the six rules that Ecology previously identified.
Jonathan Miller, in his recent Emerging Trends in Real Estate 2011 forecast prepared for the Urban Land Institute suggests we are entering a new economic period that he calls the “Era of Less”—less home ownership; smaller size housing; and the need for less “stuff” to put in less space. Tougher lending requirements; former homeowners re-entering the rental market after losing their homes to foreclosure and echo boomers entering the job and housing markets, but with more difficulty finding jobs that pay enough to support home ownership all suggest an increased demand for rental housing and an overall demand for less expensive (thereby smaller) housing in the coming years.
Governor Gregoire has suspended the rulemaking process for all “non-critical” rules. This Order extends to all executive cabinet agencies and boards, and all commissions and state agencies reporting to the Governor’s office. Effective on the signing date, November 17, 2010, the rulemaking moratorium will run until December 21, 2011. The Governor’s press release explains that the suspension is an effort to help small businesses by preserving the status quo while saving government funds expended on rulemaking. This is important because the order might halt a rule (or rule making procedure) that the regulatory agency regulating your industry was going to pass in 2011.
Today, the Washington State Supreme Court issued the long awaited decision in Lummi Indian Nation, et al., v. State of Washington. This landmark water rights decision upholds the Municipal Water Law ("MWL") against all of the Plaintiffs’ facial constitutional challenges and resolves disputes and uncertainties over the water rights of public water systems in this state that began more than a decade ago. GordonDerr LLP represented the Washington Water Utilities Council ("WWUC") which joined the State in defending the MWL.
This decision is significant to water utilities, businesses, local jurisdictions, and the public throughout the State. It upholds a landmark law that facilitates efforts to provide the State’s growing communities with healthy and safe drinking water while simultaneously requiring public water systems to be good stewards of a limited resource. Had the plaintiffs been successful or if the trial court’s decision was left intact, public water systems would have lost important legislation that facilitates their efforts to serve our state’s growing population. It would have jeopardized land use planning in our urban areas that was premised, in part, on the availability of water from municipal water suppliers. While it does not answer all outstanding issues concerning municipal water and analysis of the decision will now begin, the Court’s decision restores the certainty that the legislature intended to provide.
Last Thursday, October 7, 2010, the Supreme Court issued a decision on the Public Records Act (PRA) that emphasizes the challenges local jurisdictions face when responding to requests for electronic documents under our state’s expansive “sunshine” law.
In O'Neill v. City Of Shoreline, the Supreme Court dragged the PRA into the digital age and held that metadata (hidden information embedded within an electronic document) is subject to the PRA when it is specifically requested by a party. Thus, when a person requests emails and accompanying metadata, as was the case in O’Neill, printed copies of emails are not adequately responsive. The jurisdiction is required to provide the email in its original electronic form.
O’Neill highlights a particular difficulty of complying with requests when employees and elected officials often use personal computers and email accounts when conducting business. The requested email in that case was deleted from an elected official’s work computer, but it was possible that it was stored on the hard drive of the elected’s home computer. The majority opinion makes clear that work-related emails and documents stored on home computers or sent from personal email accounts are nevertheless public documents subject to disclosure under the PRA. Otherwise, it would be easy for public officials and employees to circumvent the PRA.