Written by Reuben Schutz
This content originally appeared in Tacoma-Pierce County Bar Association’s Pierce County Lawyer Magazine. It has been reprinted here with permission from TPCBA.
I would be lying if I said I always wanted to be a land-use attorney. Frankly in law school I didn’t know the practice existed. As it turned out, I found the practice by serendipity.
In 2017, I was an associate at Gordon Thomas Honeywell in Tacoma practicing plaintiff medical malpractice – and I was miserable. To be clear, my mentor at the time was fantastic and I was learning a ton. Still, I found myself often wondering how I ended up suing doctors. My father and sister are both doctors; another sister is a nurse. I tip-toed around the subject of my work at family gatherings.
Luckily for me, I work in a very supportive firm. When it became clear that medical malpractice was not for me, I was encouraged to join the firm’s land use group. For me, the practice, and more importantly the people, were a perfect fit. The rest is history; well my history anyway.
As a land use attorney, I get to use my law degree to resolve complicated problems. (Or at least that is what I attempt to do.) In the course of doing that I like to think that I help make projects better, which is pretty cool. But it is a challenging practice, and some days it feels like what I don’t know could fill books. Still, I have learned a couple of things over the past years. Here are a few of them.
Mind the Deadline
The deadline under the Land Use Petition Act (LUPA) is no joke. It is 21 days, it is jurisdictional, and absolutely no grace is given. A partner once told me: “Service makes me nervous.” LUPA service gives me ulcers.
The City Clerk was served on the 21st day but it happened at 5:02 p.m.? Sorry, better luck next time.
The Deputy City Clerk came out and accepted service on the Clerk’s behalf? Well tough.
I always try to serve LUPA petitions at least several days early. But it doesn’t always work out that way, and I have found myself driving to Puyallup at 3:30 on the 21st day sweating bullets.
To make matters worse, it is often not clear when the 21 days starts running. Was the land use decision mailed to the applicant? Then add three days to the deadline. Wait, it was emailed? Never mind, remove those three extra days. Wait again, it was emailed and mailed? That is not covered by the rule!
Of course, sometimes it is not even clear whether the decision being appealed is subject to LUPA. Maybe it needs to go to the Shoreline Hearing’s Board, or the Growth Management Hearings Board, or the Environmental Hearings Board. Or it could be a Declaratory Judgment action or an APA appeal. When in doubt I file in both/all. Better to drop an appeal claim later than discover you are in the wrong place after the deadline has passed.
As if that was not enough to worry about, there is exhaustion. Have you exhausted all administrative remedies (that change jurisdiction to jurisdiction, and each have their own specific deadline)? You mean you did not realize that in a certain local jurisdiction you had to appeal to an Appellate Examiner that reviews the Examiner’s decision?
Bottom line: when it comes to LUPA appeals, minefields abound.
Always Go to the Property
Satellite imagery is amazing and getting better all of the time. These days you can pull up detailed images of a property in seconds. You can view it on your computer from different angles. It is a new age.
But for land use there is no substitute for having your feet on the ground. It is rarely exactly as you pictured, and you are almost sure to notice something you would have otherwise missed. It is just easier to see how things fit. If I had a nickel for every time I said: “Oh now I see what you mean” during a site visit, I would have a handful.
Another reason to go to the property – it is important to clients. Personal injury plaintiffs often want their day in court; property owners want you to see and understand the property. A phone call or zoom to discuss overheads does not satisfy.
Do In Person Meetings – Onsite if Possible
It’s a Zoom/Teams world. There’s no denying the efficiencies of video meetings. But so much of land use is about building trust and relationships. While you may need to push back on some conditions, you still need to cooperate with the local jurisdiction on many others. And you will need to do the same on the next case with the same people. Face to face matters for relationships.
Another reason in person is key is that there are often lots of drawings, surveys, engineering plans involved – big papers with lots of small lines and words. All of this is best worked out around a table in person. Sometimes you need to push for that, and it costs the client money, but it generally pays off.
Better yet, try to meet on site. Sometimes that makes all the difference. One time I had hit a brick wall trying to convince fire protection authorities that paving and dramatically widening a rural driveway adjacent to wetlands was a bad idea for a small kennel business. Around and around we went but to no avail. Eventually I was able to get the fire marshal to meet on site. He took one look and said: “Oh yeah, the existing drive is just fine.” That one site visit probably saved the client’s business.
City/County Attorneys Can be Your Friends
So much of the real land use work happens without any litigation or prior to any litigation. It is often necessary to work with city or county staff to get through sticking points and issues and attorneys are not always involved. As good as most staff are at their jobs, whether as planners, engineers, etc., they are not lawyers. They do not stay up on current cases or know the intricacies of constitutional takings law or other legal limits on their authority.
That is where city/county attorneys can be very helpful. There have been times when I have asked (nay begged) staff to call the attorney. Sometimes the attorney and I will disagree, but often we’re on the same page or at least have the same understanding of the law. And when that happens it can save potentially weeks of back and forth with staff, not to mention the associated costs.
I really enjoy working with nearly all of the City and County attorneys that I regularly practice with and against. Civility is the norm with this group, and that makes practicing fun.
Whole Lot of New Faces
The Great Retirement that accompanied the pandemic did not spare city and county staffs, including planners, engineers, etc. There has been a ton of turnover in the last several years. This means that there are many new people, often at the beginning of their careers.
The institutional knowledge gained over a career in public service is not easily or quickly replaced. The result has often been increased wait times for decisions. This can be challenging, especially for clients for whom time equals money. The only thing for it is to be persistent, practice patience, and make sure the client’s expectations are in line with current reality.
Well, those are a few things I have learned, sometimes the hard way. If any young/new attorneys want to know more about the practice of land use law, I would be more than happy to meet with them and discuss it.