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Recent Appellate Decisions: June 1 – 8, 2012

Summaries prepared by Commissioner James Verellen (ret.)

Div. II Washington State Court of Appeals

June 5, 2012

Littlefair v Schulze No. 41448-1

Real property – easement – fence – interference – nuisance per se

The owners of property subject to an easement are entitled to reasonably use their property consistent with the purposes of the easement, but not to build an obstruction that clearly interferes with the proper enjoyment of the easement.  Such an obstruction could support an adverse possession claim that would extinguish the easement.  A structure built within an easement in violation of the zoning code may constitute a nuisance per se.

L and S own adjoining property.  The plat map and deeds reflect a 40-foot right of way for ingress, egress, and utilities.  Historically, the parties drove on only a 12-14 foot wide road, but the easement clearly anticipates a wider area for utilities, ditching and snow removal.  S built a fence that did not interfere with the historic 12-14 foot wide road but obstructed the wider area included in the easement for utilities, ditching and snow removal.  Additionally, the zoning code provides that in such an R-2 subdivision no building or structure (defined to include fences) may be located within any easement.

L sued to force S to remove the fence. The trial court concluded that S was using his property in a reasonable manner consistent with the easement.  The court rejected the nuisance per se theory because the county is “laced with easements that have structures on them” and enforcing the zoning ordinance would “wreak havoc” on any reasonable land use proceedings.

Division II concluded that the trial court did not consider whether the fence interferes with the ancillary uses expressly granted in the easement and that the “fence appears to be a sufficiently permanent structure that could support an adverse possession claim.” The court held it was not necessary to remand to resolve that issue, because the fence clearly violates the zoning ordinance and is a nuisance per se.  S must remove the fence.

Division III

June 5, 2012

Ferguson v City of Dayton No. 29703-9

Land Use – LUPA appeal – timeliness

A LUPA (Land Use Petition Act) appeal of a land use decision must be filed within 21 days of the “land use decision,” which is defined as “a final determination” by the local jurisdiction.

The City issued a building permit for a pole building.  A neighbor questioned the planner’s determination that the building would not exceed height restrictions.  The Planning Commission, assigned to hear administrative land use decision appeals in the county, affirmed the planner’s interpretation that building would not exceed height restrictions.  The neighbor filed a LUPA petition more than 21 days after the building permit was issued.  The City argued that the LUPA appeal was untimely because the 21-day period was triggered when the building permit was issued.  The superior court agreed and dismissed the neighbor’s LUPA appeal.

Division III reversed.  “Because the building permit was subject to an administrative appeal process, the time for filing a LUPA petition began to run with the final ruling in that process.”  The City provided for an administrative appeal before the Planning Commission, which had the “last word” on the permit.  The Planning Commission decision was the “final determination” and the LUPA appeal was timely.

June 5, 2012

Marriage of Bowen No. 29650-4  (published in part).

Domestic relations – dissolution – division of property – military disability retirement pay

Federal statutes direct how military disability payments impact the calculation of “disposable retired pay,” the only portion of military retirement that may be apportioned by a divorce court.

After serving 15 years in the Air Force, the husband was discharged with a 30 percent disability rating.  At the dissolution trial, the trial court was provided with limited testimony about the disability payments.  The husband testified that his total benefits were based on his disability and that none of his retirement pay could be considered disposable retired pay.  The trial court ruled that none of the military retirement pay was before the court for distribution.

Division III affirmed, holding that the only evidence before the trial court was the husband’s testimony supporting the conclusion that all of his retired pay should be subtracted in calculating disposable retired pay.  “Whether actually correct or not, the only evidence in the record that bears on [the husband’s] retirement pay…supports the trial court’s finding that none of it was before the court for distribution.”

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