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Posts from April 2014.

In Relling v. Khorenian, plaintiff filed a declaratory judgment seeking to establish an easement over the defendant's properties for access.  Plaintiff purchased property from N-C-W, Inc. (NCW) pursuant to a land sale contract in 1972.  At the time of the conveyance, plaintiff accessed his property via a logging road on property owned by NCW to McKay Creek Road.  The fulfillment deed held in escrow during the land-sale contract granted plaintiff “an easement for road purposes to McKay Creek Road.”  Three months after conveyance to plaintiff, NCW began conveying the remaining lands surrounding plaintiff's parcel, including parcels containing plaintiff’s existent logging road access across defendant’s property to McKay Creek Road.  The fulfillment deed was recorded in 1978, after adjacent parcels had been transferred to others.

Although plaintiff’s prayer for relief sought declaration of a common law easement of necessity, plaintiff’s arguments emphasized facts suggesting that plaintiff had an implied easement by nature of the fulfillment deed.  Instead, the court held plaintiff to his plea that the landlocked nature of his property warranted granting an easement of necessity.  The Court held that three factors must be present in order to award an easement of necessity: (1) unity of title in the grantor; (2) severance of ownership; (3) actual necessity.  The facts indicated that plaintiff had multiple access points from other adjacent properties at the time of severance that did not rely on use of the logging road crossing defendant's properties.  Therefore, the court held that actual necessity was not present on these facts.  The trial court’s judgment was affirmed. Relling v. Khorenian ___ Or App ___ (Feb. 12, 2014, 2014 WL 554488, A148378)

 Town of Woodway v. Snohomish County, 2013 WL ______, January 8, 2013 (Wash. App., 2013) involved an application filed while a controversy over the validity of the new plan and zoning designations conformity with the State Environmental Policy Act (“SEPA”) was pending.

The subject site had a series of industrial uses.  The Applicant desired to change the plan and zoning designations for the site to accommodate commercial and residential uses.  The county ultimately approved the applications and plaintiff town and others sought review of the Plan and Zoning amendments through Washington Growth Management Act (“GMA”) before the Washington Growth Management Board (“GMB”).  After the matter was heard, but before the decision, the applicant filed a development permit applicant.  The GMB subsequently found the Plan Amendment violated procedural provisions of SEPA.  Plaintiffs then brought a trial court proceeding for Declaratory Judgment and injunction to determine the validity of the permit and seeking a halt to the development.  Both sides moved for summary judgment.  The trial court granted summary judgment to plaintiff and defendant appealed.

The court of appeals found the dispositive issue to be whether the development permits vested, notwithstanding the pending appeal which ultimately overturned the comprehensive plan and designation.  Under Washington law, a complete development permit application vests those regulations in place at the time of filing.  In 1995, Washington land use legislation was amended to allow the GMB to declare a plan or regulation either to be non-compliant with the GMA or to be invalid.  Following further study, the 1997 Washington legislature provided that a declaration of invalidity did not necessarily affect vested rights.  The court found that this provision controlled and the permit had vested, notwithstanding the subsequent invalidity of the underlying Plan provisions unless, under the 1997 legislation, the challenged Plan provision “interferes with the fulfillment of the GMA’s goals.”  A SEPA procedural violation thus is not sufficient, according to the court, to defeat the vesting of the permit.  The trial court judgment was thus reversed.

The outcome that a permit may vest notwithstanding noncompliance with the underlying Plan and land use regulations is a peculiar result of Washington statutory law and that state’s liberal views on vested rights.

The Washington Supreme Court affirmed this decision by a divided vote on April 10, 2014.

Town of Woodway v. Snohomish County, 2013 WL ______, January 8, 2013 (Wash. App., 2013).

Some people say that once you get outside the Puget Sound metropolis, you find friendlier people.  I’ve heard of the “Seattle freeze,” where people move here and have a hard time making friends.  It’s not hard to meet people in Manson, Wenatchee or Yakima, Washington, three cities I know and have spent time in.  Overall, they seem like friendlier places to me than the big city on Elliot Bay.

A recent decision by Division III of the Washington Court of Appeals may reflect that warmer culture.  Its decision in Gamboa v. Clark (No. 30826-0-III, March 25, 2014) discussed “presumptions” and “inferences” in the context of prescriptive easements.  The Court ruled that among otherwise friendly neighbors, the use of a roadway on a neighbor’s property is presumed to be permissive.  As a result, in the absence of other evidence, a neighbor who openly, notoriously, uninterruptedly travels on a neighbor’s road does not acquire a prescriptive easement.  The element of “adversity” is missing.  The neighbors are presumed to be acting generously with one another.

Contrast the Eastern Washington appellate decision with the ruling of the Court of Appeals based in Seattle.  Division I of the Court of Appeals ruled in Drake v. Smersh, 122 Wn. App. 147 (2004) that while the presumption of permission may apply in “vacant land cases,” in “developed land cases” evidence of “neighborly sufferance or accommodation” may be the basis for avoiding a presumption of adverse use, but may not in each case.

The Gamboas and the Clarks were neighbors, each of them farmers raising crops and living on their adjoining parcels.  They got along well, and the Gamboas used a road put in by the Clarks which ran across the Clarks’ property to access the Gamboa home.  The Clarks also used that road for their own farming purposes.  Each believed the road was their own and that they were letting the other family use the road out of neighborly accommodation.  However there was no evidence of express permission to use the road coming from either party.

A dispute arose at some point, and they decided to have the road surveyed to determine ownership.  The survey showed it was largely located on the Clarks’ property, and the Gamboas brought a lawsuit to establish their right to a prescriptive easement over the roadway.  The trial court ruled that the Gamboas had demonstrated all the elements required to prove a prescriptive easement.  They’d used the road openly and notoriously for an uninterrupted period of 16 years, believing they were the owners.  They’d also done some maintenance on the road during that period.  While they never openly claimed ownership of the road, conversely, the Clarks never gave them express or implied permission to use it.  The trial court found that “a claimant’s use is adverse unless the property owner can show that the use was permissive.”  Because the Clarks didn’t present evidence of express or implied permission, the Gamboas were granted a prescriptive easement over the Clarks’ land.

The Court of Appeals, sitting in Spokane, by a 2-1 majority, overturned the trial court and ruled, instead, that in cases where there’s a history of neighborliness, or where the claimant is using a road which was established by the property owner along with the property owner, the is no presumption that use by a neighbor of another’s land in such case is adverse.  Instead, in those cases, as in cases where the land is vacant, open and unimproved, the law won’t apply the presumption of adversity necessary to establish prescriptive rights.  In effect, it’s a recognition of a characteristic I’ve observed first hand on the dry side of the Cascades.  It’s just friendlier there.

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