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Oregon’s Planning Goal 1, Citizen Involvement, requires citizen involvement “in all phases of the land use planning process.” The Goal requires local governments to provide for public input when land use plans and regulations are adopted and amended. Oregon law also requires, among other things, notice and opportunity to be heard during land use proceedings. Although one of the original land use goals, Goal 1 is rarely used or relied on by LUBA or the courts as a basis to overturn a local government decision; however, efforts to change its scope are constant. Oregon and Washington courts have recently had an opportunity to consider some creative efforts to alter the scope of public participation.

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 2016 WL 455957 (Wa.) involved the successful gathering of signatures to put a “Community Bill of Rights,” as an amendment of the Spokane Charter, to send the matter to the voters of the city. Petitioners filed a declaratory judgment challenging the validity of the proposal. The trial court found petitioners had standing to challenge the validity of the proposal and that, on the merits, the proposal exceeded the initiative power. The Washington Court of Appeals made the opposite rulings on these issues and ordered the matter to be put to a vote. The Washington Supreme Court accepted review and posed the questions to be 1) whether petitioners had standing, and 2) whether the initiative was beyond the initiative power.

Cell phone towerT-Mobile West LLC v City of Medina, U.S.D.C. No. C14-1455-RSL (W.D. Wash., August 25, 2015) involved Plaintiff’s federal court challenge under the Federal Telecommunications Act (FTA) to the denial of its cell tower application.  After the case was filed but before trial, the original parties (i.e., the applicant and the City) proposed a stipulated judgment that would allow the tower on the proposed site with some modifications.  Intervening neighbors objected to the same.

Mature couple painting fence

Adverse possession and prescriptive easements are scary concepts to landowners. Valuable property rights can be lost to neighbors and strangers, seemingly rewarding longtime bad behavior. The Washington Supreme Court has recently struck a chord to promote harmony in our state, and make prescriptive easements tougher to establish in the case of Gamboa v. Clark, 183 Wn.2nd 38, 348 P.3d 1214 (2015).

The Gamboas and Clarks owned adjoining parcels of enclosed agricultural land which had originally been part of one larger parcel separated by a gravel road, largely crossing the Clarks’ property. The road was used by the Gamboas to access their home and by the Clarks for farming grapes on their parcel. The road had been used by both parties and their predecessors for these purposes for decades. Each was aware of the other’s use of the road, and neither party gave the other permission, objected or interfered with the other’s use. After an unrelated dispute arose between the parties in 2008, the Gamboas brought an action seeking a prescriptive easement to use the gravel road to the extent on the Clarks’ property.

The Court found that the elements of a prescriptive easement were all present in this case, with the possible exception of “adversity”. The Gamboas’ use of the road was “open, notorious, continuous, hostile and uninterrupted over the prescriptive period of ten years” and the Clarks had “knowledge of such use at the time when [they] would be able at law to assert and enforce his or her rights.” Incidentally, it’s not clear to me how the use can be found to be “hostile” without also being “adverse”.

In certain circumstances, Washington courts have found that a use of someone’s property will be presumed to be with the owner’s permission and therefore not “adverse”. For example, in the case of unenclosed lands, the regular crossing of another’s property is presumed to with permission.  Roediger v. Cullen, 26 Wn.2d 690. A presumption of permissive use also applies to enclosed or developed land cases when it is “reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.” The third situation recognized was when the owner created the road and the claimant’s use did not interfere with the owner’s use.  Cuillier v. Coffin, 57 Wn.2d 624, 627 (1961).

In this case, the trial court ruled that because the land was enclosed, there was no presumption of permission from the Clarks, and in effect, accepted a presumption of adverse use. In this close case, that shift from a presumption of permissive use, to placing on the Clarks the burden of establishing permissive use, led to the ruling that the Gamboas were entitled to a prescriptive easement to use the gravel road over the Clarks’ property.

Division III of the Court of Appeals disagreed, and found that the trial court erred in not recognizing that the Clarks should enjoy a presumption of permissive use, placing on the Gamboas the burden of rebutting that presumption to show their use was “adverse”.  Gamboa v. Clark, 180 Wn. App. 256, 321 P.3d 1236 (2014). This can be done by presenting evidence that the claimant’s use was “adverse and hostile to the rights of the owner” such as by showing he “interfered with the owner’s use of the land in some manner” or that the owner’s acts or statements acknowledged the claimant’s right to an easement.

Interestingly, Division I of the Washington Court of Appeals (Drake v. Smersh, 122 Wn. App. 147, 153-54, 89 P.3d 726 (2004)) as well the Oregon Court of Appeals (Wels v. Hippe, 269 Or. App 785, 787 (2015)) have recently taken positions more closely aligned with the trial court approach to the presumption of adversity. However, the Washington’s Supreme Court held that even in cases of enclosed land, “an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence.”   Id. at 1220. “Showing a reasonable inference of neighborly sufferance or acquiescence is a fairly low bar.”  Id. at 1221. In this case the fact that both parties knew the other used the road and didn’t object, and the use did not interfere with the owner’s use of its land, was enough to create this inference.  Bingo. No prescriptive easement.

I like this decision, and it fits the traditional Scandinavian silent but friendly culture of the Northwest. Why put the burden on the neighbor who allows a neighbor to use his or her road to be nasty to make sure he or she doesn’t lose property rights?  Why encourage more fence building when a policy which assumes that neighbors will be generous with each other creates a more pleasant atmosphere?  Here’s to a neighborly Washington!

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.

Metes and bounds legal descriptions are often indecipherable. Finding the points of beginning and then following the compass direction for the stated distances is difficult to translate from words to the ground. That’s why surveys and surveyors exist. I won’t even try to follow a metes and bounds legal description without first unrolling a large and detailed survey to guide me through the process. But surveys cost money, and are often impractical to acquire, especially before bidding at a non-judicial trustee’s sale. So how does a potential bidder at a nonjudicial foreclosure know exactly what’s for sale?

While this uncertainty exists, both lenders and debtors seek to maximize the prices bid at foreclosure sales, so the loans in default get paid off from the sale of the collateral. Debtors obviously want to receive as much of a credit against their debt as possible. Most lenders avoid becoming property owners. Very few banks see ownership of foreclosed property as a profit center, preferring to be repaid so they can make new loans; and uncertainty about a property’s dimensions is the enemy of robust bidding at trustee’s sales.

The Washington Court of Appeals, Division I, recently considered reforming a trial court ruling allowing a Trustee’s Deed, after a nonjudicial foreclosure, to add additional property to a legal description of property conveyed. Glepco, LLC v. Reinstra, ____ Wn App. ___, Case No. 67934-1-1 (WA Ct. App., Jul. 22, 2013). As the Court described it, the Grantee brought “a quiet title action involving property purportedly sold at a nonjudicial foreclosure sale. At the sale, the [Grantee] made a successful bid on the appellant’s property, believing, based on the address and other references in the deed of trust and notice of trustee’s sale, that they were bidding on a three-acre lot with a house. After the sale, however, the buyers discovered that the legal description of the property in those documents described only the drain filed portion of the land.”

The plaintiffs argued that the trustee’s deed, conveying title to the foreclosed property, and the underlying deed of trust upon which the foreclosure was based, were intended to include the legal description for both the drain field as well as the house and the balance of the three-acre lot. They asked the court to reform those instruments to reflect the parties’ intent based on the doctrine of mutual mistake (of the bank and the former homeowner/appellant) or because the instruments included a scrivener’s error. The plaintiffs requested equitable relief which contended was justified because they acted reasonably in relying on the street address of the house in the deed of trust, the tax parcel number with included the entire three-acre lot, and the assumption that the bank would not foreclose on a portion of a building lot.

The trial court and the Court of Appeals ruled that because the evidence was undisputed, the parties to the deed of trust intended to convey a lien on the entire combined lot including the house and not just the drain field, and that the incorrect legal description was a result of “mutual mistake.” Similarly, the evidence was substantial that the incomplete legal description constituted a “scrivener’s error.” Therefore, the trial court’s discretion in providing the equitable relief of rewriting the deed of trust and trustee’s deed was sustained.

The decision seems to go against the well established doctrine that a party should not be relieved of the obligation to understand legal documents. People have the duty to learn the meaning of their agreements. It isn't a defense, the enforcement of a contract that you didn't understand your obligations, in the absence of fraud. But in the real world, legal descriptions are different from contracts. What mere mortal can really read and understand a metes and bounds legal description without the aid of a survey?

In the context of nonjudicial foreclosures, surveys are very rarely available. Time is usually limited before a sale date, and there are typically a number of variables which make investing in a survey impractical: Will the property actually go to sale? What is the opening bid? Who else will be bidding? Due to the many unknown variables surrounding a potential foreclosure sale, a party rarely considers a bid to order a survey in advance of a sale. However without a survey, the problem faced by the bidder in the Glepco, LLC v. Reinstra case could arise again.

Fortunately, the Skagit County Superior Court ruled for the bidders, acting reasonably, to get the home that they paid for. The Court of Appeals agreed. Let’s hear it for an equitable decision which promotes the interests of a robust public auction process!

The Clyde Hill Board of Adjustments recently ruled in favor of former Mariner First Baseman, John Olerud and his wife Kelly, in the first action brought under the City of Clyde Hill’s View Obstruction and Tree Removal Ordinance (CHMC Chapter 17.38). In that action, the Oleruds asked the City to enforce the view protection ordinance which required their neighbors, who owned a rare fifty year old and fifty foot high Chinese red pine, as well as a fifty foot fir tree. The trees block what has been described by Olerud as 40% of a 30 degree view of Lake Washington, Seattle and the Olympics from his home. The Clyde Hill Board of Adjusters ruled, in a 3-2 vote, that the two trees "unreasonably block the view" of the Oleruds, and ordered the removal of the tress. The Oleruds were ordered to pay the cost of the tree removal and the cost to replace the trees with smaller trees, which total price tag was not trivial ($62,694). The neighbors were also ordered to trim the replacement trees if they grew to 25 feet.

For those of you unacquainted with this Seattle metropolitan suburban city, it is a very well heeled community nestled on a gently sloping hill between the enclave of Medina and Bellevue, a short walk from the shopping mecca of Bellevue Square. It is almost entirely residential, and many of the homes have beautiful lake views oriented to the western sunsets. Given the wealth of the community, it’s not surprising that its residents can afford lawyers, and may well be used to getting their way. Apparently this law, which has been on the books for decades, had never before required a ruling from the City. Prior property owners were able to resolve their differences privately. Perhaps taking a page out of the Congressional playbook, these neighbors couldn't reach a compromise.

Division Three of the Washington Court of Appeals recently considered how far a court could go to force a property owner to clean up his personal property after a non-judicial foreclosure. The Court’s answer is that inherent in the Court’s power to order the restitution of possession of property to the winning bidder at a trustee’s sale is the power to force the owner to clean up his mess or take steps to sell or dispose of the property.

In the case of Excelsior Mortgage Equity Fund II, LLC v. Schroeder, (No. 30333-1-III), the lender had conducted a trustee sale in February 2010 of some 200 acres of ranchland in Stevens County. The ranch was littered with hundreds of vehicles, bicycles, and parts of both, as well as cattle. While RCW 61.24.010(1) provides that the successful bidder is entitled to possession of a foreclosed property twenty days after the trustee’s sale, the bank extended the time for the owner to remove his personal property from the land. Finally, at the end of April, 2010, the bank brought an unlawful detaineraction under RCW 59.12 against the former landowner. It wasn’t until December 2010 that the Court granted a judgment of unlawful detainer and provided that a writ of restitution should be issued to the sheriff to deliver possession of the land to the bank.

Thereafter, the bank brought a motion to enlist the Court’s authority to help it clear the land of the borrower’s property. Because the borrower wasn’t living on the land, the normal writ of restitution function of “dispossessing” the occupants wasn’t at issue. The bank needed to get the property of the borrower off the land. The bank asked the court to fashion a process similar to the process in the Residential Landlord-Tenant Act (RCW 59.18) allowing a certain time period for removal of the property, and if not so removed, then to allow the sale and/or disposal of the property. The borrower resisted the process, because the unlawful detainer statute for this commercial property did not provide any such procedure.

The Washington Supreme Court went out of its way to protect oppressed Washington homeowners, while creating greater uncertainty for foreclosure purchasers, in their recent decision Albice v. Dickinson (Cause No. 85260-0). A homeowner had borrowed $115,500 with a loan secured by her home, which was appraised in 2007 at $950,000. The homeowner fell behind in payments, and a Trustee’s Sale was set for September 8, 2006. Before the sale date, the homeowner and lender entered into a Forbearance Agreement, and the Trustee continued the sale date every time a payment under the Forbearance Agreement was made.

Meanwhile, the homeowner made all required payments under the Forbearance Agreement, however each of the payments was late. The lender never objected to the late payment, until the last required payment, which was sent February 2, 2007. The lender returned that payment to the homeowner on February 10, 2007, with a message that it was rejected because it was late. Even though the Forbearance Agreement provided for a 10 day notice before default, no notice was given, and the house was auctioned at a Trustee’s Sale February 16, 2007, exactly 161 days after the original Trustee’s Sale date. (RCW 61.24.040(6) only allows continuances of sale dates for up to 120 days.) Mr. Dickinson was one of only two bidders to show up for the sale after the many sale continuances, and was the winning bidder with a bid of $130,000.

As long as a governmental entity has an easement or fee in land, a neighboring landowner will not be able to claim ownership of that land through adverse possession. This is a well known principle in the law, however until earlier this month Washington courts supported a different conclusion. But in the recent Washington State Supreme Court decision of Kiely v. Graves, __ P.3d __ (March 2012, No. 84828-9), the Court brought Washington into the national mainstream protecting public rights from private prescriptive use.

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