See full article at Preservation Law Digest

U.S. District Court, W.D. Washington, Tacoma
Case No. C12-5140 RBL
September 25, 2013


Plaintiff GLW owns 110 acres of undeveloped land located along the Columbia River Gorge, on which its predecessor sold a conservation easement to the United States Forest Service under the Columbia Gorge National Scenic Area Act. The easement reserved to the owner the right to develop two legal, buildable lots, as follows:

“The right is reserved to break the ownership into two tracts, Tract I being 62 acres in farm and woodlot and 5 acres in homesite, and Tract 2 being 38 acres in farm and woodlot and 5 in homesite. At the time of this easement, the right is acknowledged that construction of two dwellings for use in conjunction with the management of the two tracts if the proposed homesite is within the constraints of the [Columbia River Gorge National Scenic] Act[.]”

At the time of the grant of the easement, the minimum lot size under the County Code was 40 acres, and each of the two parcels described in the easement met that minimum. GLW and USDA agreed that but for the easement the owner of the entire tract would have four legal, buildable lots, because the existing lots predated the Gorge Act and the 40 acre minimum lot size.

GLW sought County approval to define two legal lots (to develop one and sell the other) and to “nominally” (in the court’s words) adjust the boundary line between the two building parcels, as sketched in the easement, to create one 56 acre lot and one 51 acre lot. The County determined that the boundary line adjustment was acceptable, but that it required the Forest Services’ approval. The Forest Service refused to consent to the adjustment.

GLW sued, alleging that the Forest Service’s refusal to consent to its proposed land use action was an abuse of discretion. Both GLW and the USDA moved for summary judgment. Although the court wrote very critically of the USDA’s arguments in this case, the court denied both party’s summary judgment motions but took the step of issuing a holding “that either the … [easement] created two lots, or GLW is entitled to a rescission of it: they have either four legal lots, or are entitled to two, without interference from its contracting partner, the Forest Service.” The court also noted, “It is undisputed that the Boundary Line Adjustment would not adversely affect the goals of the Gorge Act any more than would the development of the two lots sketched as part of the initial agreement.”

Because the County’s actions are on appeal at the County level, the court also stayed the case pending the outcome of the County litigation.

Decision available at http://scholar.google.com/scholar_case?q=GLW+VENTURES+LLC+v.+US+Department+of+Agriculture&hl=en&as_sdt=40000003&case=7432613605202822162&scilh=0.