Zunino v. Rajewski
Summary:
A seller of property may not reserve easements without noting them on the deed. A clean deed supercedes any previous recordings of easements.
Discussion:
Defects in the land subdivision process may be invisible as plumbing mistakes to untrained eyes, but both are disastrous headaches when they finally make themselves known. Here the latent defect was literally invisible; the divider failed to properly secure access easements for new purchasers across the older tracts.
Gayle Anderberg sought to divide up her farm and sell it as residential properties. By selling the land in 10-acre lots with access easements on file with the county, she effectively avoided the county’s formal land-use process. Gayle filed the easement forms with the county with the help of a friend who worked at the Spokane County Building and Planning Department. The easements accomplished her goal of avoiding county oversight, but failed to ever become legally binding.
The easements failed to materialize for two reasons:
- The Documents Contained The Wrong Language
The mistaken word on the easements appears to be the use of “was” where “is” should have been. Each easement document states “this easement was created as . . . .” By using “was” the document implies that the easement existed before the document instead of being created by the document.
In legal terms, the easement filing failed to establish a “present intent to transfer an interest in land” because the wording referred to a past, not present, event. - The Easements Were Not Disclosed To Purchasers
All of the easement agreements were made before Ms. Anderberg sold any of her property, but none of the deeds made any mention of the easements. If the deeds had simply mentioned the easements, they might have cured the defective original filings.
Denying the access easements does not strand the current owners of Ms. Anderberg’s property. They retain the right to access their acreage by a state route and in a manner consistent with farm use.
Sources:
- Slip Opinion PDF
Cooke v. City of East Wenatchee
*Unpublished Opinion*
Discussion:
Summary: The Division Three panel applied the wrong standard of review and may have reached the wrong result in reviewing a variance dispute.
Clark Cooke owns Lot 31 in the Briarwood Subdivision of East Wenatchee. Lot 31 is 12 acres in area and has express approval in the CCR for further subdivision of the land. Mr. Cooke sought to exercise that provision and divide his lot into land for three homes. He proposed that the new houses would be accessed by a private access easement and therein lies the problem.
The East Wenatchee Municipal Code requires new lots to have public street access and 70 feet of public street frontage. In order to qualify for a variance from this requirement, the landowner has to show that there are geographical constraints that make compliance unusually burdensome in his case.
2. That such variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located.
The language is identical to that used many Washington cities.
The East Wenatchee review board twice denied Mr. Cooke’s request for the variance twice, only providing a formal opinion the second time. The formal opinion is on review here. The city department’s report to the board included statements that the situation did qualify under the variance standards.
The opinion is too short to review effectively, but the Court of the Appeals improperly switched the burden of proof in its analysis. Instead of examining the record to see if substantial evidence supported the Board’s denial of the variance, the court reviewed the record to see if substantial evidence supported the trial court’s grant of the variance.
Looking over the lot in question, emergency access looks like it could be a problem. Without street frontage, it is harder for emergency responders to find their destination. Without a public street, the fire trucks generally have to back out instead of turning around. The road in question does not look amenable to either backing out or to seeing the homes in danger.
Sources:
- Slip Opinion (PDF)
- Subdivision Map (See second link)
- Google Map
West Richland Zoning
The City of West Richland (think Tri-Cities) is currently updating its zoning ordinance and is still accepting public comment. Instead of just posting a blanket request for public comment, though, they have a fairly target survey online in both Word and PDF formats.
The survey is interesting in how it steers public comment to focus on the issues that will actually be addressed in the zoning ordinance and the request for quantitative feedback. While the development community is likely geared to think in terms of zoning terms, forcing citizens to evaluate how many people should be allowed to live in an ADU forces the difficult questions.
Apparently, though, the city has only received thirty responses.
Here’s are the options the city provides to promote urban density:
- Subdivisions must provide for a minimum of 2, 3 or 4 dwellings per acre.)
- Require all residential land divisions within the City to be served with City sewer and water, or the development cannot occur. (Does not directly impose a specified maximum lot size—relies on financial impacts to encourage urban-sized lots.)
- Require a minimum lot size of 5/10/20/40 acres (Underline choice), when new development is not served by City sewer and water. (The idea being to preserve the area for future development, when city utilities are available.)
- Require any land division that does not represent urban density to include a “shadow plat”, for further division of the lots in the future. (Example: In the sample drawing below, four one-acre lots are created now, with each one-acre lot set up to be divided into three lots in the future, for a total of 12 lots. The home and outbuildings are limited to one of the three designated building sites within the 1-acre lot. The other two building sites remain vacant until the lot is divided again. See drawing below.)
Sources
- West Richland Land Use Survey
- Briefs, Tri-City Herald, Thursday March 22, 2007, Page B1
Griffin v. Thurston County
Division Two upheld the county’s interpretation of an ordinance governing non-standard septic systems. The landowner will not be able to build a house on his waterfront lot.