Land Use Liability

Land use regulation, permitting and litigation are among the most complex and daunting processes a governmental entity can face. 

At KBM, our land use pre-defense and litigation team is staffed with highly-experience professionals consistently recognized as among the best in the industry.  Representing government entities from across the State in thousands of land use disputes, claims, and lawsuits at all levels of administrative and judicial review in both state and federal courts, our land use pre-defense and litigation team stands ready to serve.

At KBM, the attorneys on our land use litigation team have proven themselves as tough–minded, committed advocates with the knowledge, experience, and creativity to defend the interests of our governmental clients across the region.

Pre-Defense Analysis and Review

With multiple layers of administrative and procedural complexity, land use claims are often won or lost well before a claim is even filed.  In recognition of this, our land use litigation team can provide timely, insightful analysis and review of potential land use disputes before they arise.  Some of the issues we commonly address in the pre-defense setting include:

• Development and implementation of strategies to address new state regulations (such as medical and recreational marijuana)
• Strategies to address recent court decisions
• Potential Inverse Condemnation and Takings claims
• Surface water flooding and drainage claims
• Sewage backup claims
• Potential permit decisions and conditions
• Moratoria – drafting, adoption and potential claims
• Zoning – drafting, adoption and potential claims
• Enforcement and abatement proceedings (Nuisance/Zoning Violations)
• SEPA and environmental decisions and conditions
• Comprehensive plan updates, reviews and strategies
• Potential civil rights liability for permitting, zoning and land use decisions
• Strategies to prevent or limit delay damage claims
• Planning and regulation for water rights issues

Pre-litigation Administrative Proceedings

In addition to the wide variety of potential claims and theories of liability, land use disputes often involve a variety of pre-litigation administrative proceedings.  At KBM, our land use team will navigate these murky waters, and clearly outline a sound and economic path to victory.  Some of the more common types of pre-court proceedings include:

• Zoning appeals
• Administrative Hearings
• SEPA Review and Appeals
• Growth Management Hearings Board Appeals
• Appeals under the State Administrative Procedure Act (“APA”)

Litigation Services

Finally, the reality is that land use disputes often ripen into full-blown courtroom litigation.  In that case, our land use team has both the legal expertise and the real-world experience to represent our government clients in the full range of claims and litigation at both the state and federal levels.  Some of the most common claims include:

State Claims

• Land Use Petition Act (“LUPA”) claims
• State Inverse Condemnation claims
• Surface water flooding/improper drainage
• Sewage backup claims
• Permit negotiation and administration
• Permit decisions and conditions
• Moratoria – drafting and adoption
• Zoning decisions, actions, and appeals
• Enforcement and Abatement proceedings (nuisance/zoning violations)
• SEPA and Environmental claims and appeals
• Growth Management Act claims and appeals
• Civil Rights claims regarding permits, Zoning and Land Use Conditions
• Delay Damage Claims
• Water Rights disputes
• Facial and As-applied Challenges to Land Use and Permitting regulations
• Boundary Line disputes

Federal Claims

• Equal Protection
• Due Process (substantive and procedural)
• RILUPA Claims
• First Amendment (signage restrictions, etc.)
• Civil Rights claims regarding permits, zoning and land use conditions
• Delay damage claims
• Facial and As-applied challenges to land use and permitting regulations
• Takings/Just Compensation Claims

Expert Witnesses

An important aspect of land use litigation is the use of qualified, effective expert witnesses to educate both judge and jury on the often complex and untested subjects at issue in the case.  At KBM, our land use team has well-developed, long-term relationships with some of the most experienced, highly-respected experts in the various disciplines that apply in the land use context:

•  Hydrologists
• Planning experts
• Permitting experts
• SEPA and environmental experts
• Business valuation and loss experts
• Appraisers
• Real Estate Sales and Marketing experts
• Civil engineers
• Structural Engineers
• Geologists and Soils experts
• Construction experts
• Geotechnical experts
• Meteorologists

These experts have proven themselves both qualified in their field and effective in the courtroom.  They are an important, often-overlooked tool in the arsenal of our land use litigation team, and another example of how KBM goes above and beyond in its strategic planning and practical representation of our government clients.

Training – Risk Management – Policy Development

At KBM, we recognize the best litigation strategy begins well before a claim or lawsuit is ever filed; with effective training, intelligent policy development, and strategic risk management.  Our land use attorneys are not only tenacious litigators, but have proven their worth as expert trainers, risk management specialists, strategic thinkers, and creative policy analysts.

Our team is extensively published on a wide range of land use topics, and is sought-after as lecturers, consultants, and advisers on issues of planning, policy implementation and review, risk management assessment, and pre-defense analysis.

We provide training for all levels of regulatory development, planning, permitting, engineering, and operations.  We recognize that a one-size-fits-all approach is rarely successful, and will work with your department to tailor any training to your specific needs.  Some of our recent training sessions include:

• Land Use Law Summary and Land Use Case Law Update
• SEPA Law and General Land Use Law for Local Government and Elected Officials
• Land Use Law, Land Use Risk Management & Civil Rights Liability for Local Government and Elected Officials
• Preparing, Conducting and Deciding Quasi-Judicial Hearings
• Constitutional Limits on Zoning Actions, National Business Institute (NBI) program: Practical Guide to Zoning and Land Use, Seattle WA, Nov. 5, 2012
• Law for Planners: Trends from the Trenches, Gorillas in the Closet, and 10 Commandments of Good Land Use Planning,
• Safe Walking Conditions Under Washington’s Platting Statutes: What are they and how do we Achieve Them?
• Land Use Law Update, Planning Directors’ Association of Washington Annual Conference
• Land Use Liability: From Negligence to Takings
• Everything You Wanted to Know about Vested Rights … but Were Afraid to Ask
• Tent City Two-Step: Mercer Island Citizens for Fair Process v. City of Mercer Island – Division I’s Decision rejecting Challenges to Tent City Regulations, and new State Rules for Tent city Permitting and Regulation

Policy Development and Analysis

Our land use team is skilled at assisting government officers and staff in all aspects of land use planning, regulatory control and policy analysis regarding new or revised land used regulations and options.  Our team is able to quickly to provide legally sound, creative and efficient policy decisions for all levels of government.