Washington courts are free to enforce publicland use servitudes. Of the elements required for a servitude to run with the land, form, notice, and touch and concern on the burden side do not bar running. Only the touch and concern element applied on the benefit side is a potential bar. Washington conceivably could allow public land use servitudes to run with the land by following the minority position of not requiring touch and concern on the benefit side. A less stringent theory, however, is available to enforce public land use servitudes. Washington has not adopted a rule that public servitudes are always in gross when government does not directly own benefited land. Therefore, the courts are free to require touch and concern on the benefit side while recognizing that the requirement is met when the promise benefits land, regardless of ownership. Based on their past record, Washington courts probably will enforce public land use servitudes. The courts have recognized and responded to the need for land use control to manage growth and development in the state, thereby furthering both public zoning and private subdivision regulation. Accordingly, to be consistent, the courts must enforce public land use servitudes.
Stephen Phillabaum, Enforceability of Land Use Servitudes Benefiting Local Government in Washington, 3 SEATTLE U. L. REV. 216 (1979).