[No. 62563-2-I. Division One. December 21, 2009.]
June 10, 2009, Oral Argument
George R. Hill (of McCullough Hill, PS), for appellants.
Thomas A. Carr, City Attorney, and Judith B. Barbour, Assistant, for respondent.
Brian T. Hodges and Nicholas Gieseler on behalf of Pacific Legal Foundation, amicus curiae.
Julia Miller, Elizabeth S. Merritt, Michael D. Smith, and John P. Bagley on behalf of National Trust for Historic Preservation, amicus curiae.
¶1 ELLINGTON, J. -- William and Marilyn Conner purchased a designated historical landmark property in West Seattle known as the Satterlee House. The Landmarks Preservation Board rejected their proposal to develop the site because it did not preserve the protected historic features. The hearing examiner and the superior court upheld the Board's decision.
¶2 The Conners' principal contention is that the Landmarks Preservation Ordinance BACKGROUND ¶3 The property at issue here comprises a large house at the top of a gently sloping hill overlooking Puget Sound. The house was built in about 1906. It has three stories, in the style known as the "Seattle classic box." The grounds include a gazebo and other original landscaping features. The site is approximately one acre in size and originally consisted of two lots, bounded on the east by a wooded hillside and on the west by Beach Drive. ¶4 Owner David Satterlee contacted the Seattle Historic Preservation Program about having the house and grounds nominated as a historic site, with the hope of securing preservation funding. The property was designated as an historical landmark by the Seattle Landmarks Preservation Board (Board) in 1981. The Board recommended that the city council impose controls on the property such that approval would be required for significant changes or addition of new structures. The city adopted Ordinance 111022 in 1983, imposing those controls. ¶5 In 2000, William and Marilyn Conner (hereafter Conner) bought the property. Conner was aware of the historical landmark designation and the requirement for approval by the Board before significant changes are made to the property. ¶6 Conner short-platted the west parcel into three lots and proposed to build three contemporary homes, each larger than the landmark house. He sought a certificate of approval for the project. ¶7 After a long process of negotiations, the Board ultimately rejected Conner's proposal as inconsistent with the purposes of the landmark designation. Conner appealed to a hearing examiner, who affirmed. Conner challenged the hearing examiner's decision in a land use petition, which the superior court dismissed. DISCUSSION ¶8 Judicial review of land use decisions is governed by the Land Use Petition Act (LUPA), chapter 36.70C RCW. Under LUPA, a court may grant relief only if certain criteria are met. ¶9 Conner contends the hearing examiner made a mistake of law, the evidence did not support the decision, the decision was clearly erroneous, and the decision violates his constitutional rights. LPO Procedures--Generally ¶10 As relevant here, the procedures under the Seattle Landmarks Preservation Ordinance (LPO) are as follows. Any person may nominate a site as a landmark. ¶11 The Board must also request that the owner consult with Board staff to develop and agree upon appropriate controls and incentives to be applied to the landmark. ¶12 The city council may issue a designating ordinance, which includes a legal description of the site, the specific features or characteristics designated for preservation, the basis for the designation, and the specific controls imposed or incentives granted. LPO Procedures for Satterlee House ¶13 After David Satterlee inquired about landmark designation for the property, city staff submitted a nomination form to the Board. The nomination described both the house and grounds, stating that "[l]andscape elements and siting contribute to the period character and significance of the residence." ¶14 The Board considered the proposed designation at a public meeting in August 1981 [The landmark] embodies the distinctive visible characteristics of an architectural style, or period, or of a method of construction. . . . Because of its prominence of spatial location, contrasts of siting, age, or scale, [the landmark] is an easily identifiable visual feature of its neighborhood or the city and contributes to the distinctive quality or identity of such neighborhood or the city. The Board's report further explains the basis for the designation: The property is in significant contrast to the surrounding, rather crowded (albeit atmospheric) area, with its long "front yard" extending back and up the slope, climaxed by location of the house near the top of the slope. Much of the design of the grounds dates from the building of the house, ca. 1906. The Board recommended controls to ensure preservation of the landmark, specifically, the requirement that a certificate of approval be obtained: [B]efore the owner may make alterations or significant changes that would affect the identified features of the [l]andmark[, a] Certificate of Approval would be required for proposed changes to the grounds only when those changes would propose alterations to the existing site plan or if new structures were being proposed for the site. Satterlee received a copy of the recommendation by certified mail. ¶15 In February 1983, the city council adopted Ordinance 111022 (Ordinance) designating the property as a landmark. In the fourth "whereas" paragraph, the Ordinance recites that "the Board and the owners of the designated property agreed to controls and incentives." ¶16 In section 1, the Ordinance acknowledges the Board's designation of "the Satterlee House more particularly described as: a portion of Tract 18, Spring Hill Villa Tracts" based upon criteria quoted in the report on designation. ¶17 Ordinance section 2 imposes as a control the requirement that a certificate of approval be obtained "before the owner may make alterations to the entire exterior of the house, as well as the entire site." ¶18 Ordinance section 3 identifies several incentives as "potentially available to the owner," Scope of the Landmark Designation ¶19 As a threshold question we must identify the property protected by the landmark designation. Conner contends the city council designated only the house, not the entire site. If this is correct, then Conner needs no approval from the Board to develop the western portion of the property. [1, 2] ¶20 The usual rules of statutory construction apply to municipal ordinances. [3] ¶21 Conner contends the reference in Ordinance section 1 to "the Satterlee House" supports his argument. But the purpose of that section is to acknowledge the Board's designation and its basis. The Board designated "the entire exterior of the house, as well as the entire site." ¶22 Section 1 also contains a legal description ("a portion of Tract 18, Spring Villa Tracts" ¶23 Finally, the Ordinance imposes controls upon "the entire exterior of the house, as well as the entire site." ¶24 Nothing in the Ordinance indicates the city council intended to designate something less than the Board approved. Only one interpretation of the Ordinance gives effect to all its language and does not render any portion meaningless: that the reference in section 1 to "the Satterlee House" is a reference to the entire site proposed for landmark designation. ¶25 Conner contends this interpretation ignores the intent of Satterlee, who initiated the landmark process for his own property. Satterlee testified that he intended the designation to encompass only the house, and that he was assured by the city that landmark status would have no effect on his ability to develop the property. Conner cites a letter in which Satterlee inquired about having "our home nominated as a local historical structure." ¶26 As indicated above, the hearing examiner discounted Satterlee's testimony as the product of a failing memory. And even if Satterlee were credible and his intent could be relevant to determining interpretation of a legislative enactment, the evidence before the hearing examiner showed that Satterlee personally inquired about obtaining landmark status for both the "house and grounds." ¶27 The Ordinance clearly designates the entire site as a historic landmark. Vagueness [4] ¶28 Conner next contends the LPO is unconstitutionally vague as applied in this case. [5] ¶29 A statute is void for vagueness if it regulates action in terms so vague that persons " 'of common intelligence must necessarily guess at its meaning and differ as to its application'." [6, 7] ¶30 Conner contends the LPO provides no objective criteria from which he can predict what development proposal will be approved. He argues the ordinance thus forces Board members to rely on their own subjective opinions to determine whether his proposal complies with the LPO. ¶31 Conner's argument rests first on the premise that the LPO itself can and should provide sufficient detail from which an owner can discern exactly what he or she will be able to build upon a landmark site. The purpose and structure of the LPO do not permit such specificity, however, and the constitution does not require it. ¶32 The principal purpose of the LPO is "to designate, preserve, protect, enhance and perpetuate those sites, improvements and objects which reflect significant elements of the City's cultural, aesthetic, social, economic, political, architectural, engineering, historic or other heritage." ¶33 Because each landmark has unique features and occupies a unique environment, it is impracticable for a single ordinance to set forth development criteria or standards that could apply to every landmark. Rather, because that which may be appropriate adjacent to the Red Hook Ale Brewery may not be suitable next to the Smith Tower, the LPO requires each landmark designation to provide for specific controls and incentives, thus requiring individual consideration of development proposals. ¶34 Here, the agreed control was the requirement of a certificate of approval before new structures are added or significant changes are made. In considering an application for a certificate of approval, the LPO requires the Board and hearing examiner to take into account, among other factors, "[t]he extent to which the proposed alteration or significant change would adversely affect the specific features or characteristics specified in the . . . designating ordinance." New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment. These are general standards, which gain specificity from application to a particular landmark and a particular proposal. ¶35 The features and characteristics to be protected here are the "prominence of spatial location, contrasts of siting, age, or scale," which make the Satterlee House "an easily identifiable visual feature of its neighborhood or the city and contributes to the distinctive quality or identity of such neighborhood or the city." ¶36 The fact that an ordinance must be applied in context to a given proposal does not render it unconstitutionally vague. In the context of special use permits, for example, county codes routinely entrust a board to apply general standards to particular circumstances. In State ex rel. Standard Mining & Development Corp. v. City of Auburn, ¶37 The same approach has been applied in historic preservation cases. ¶38 Similarly here, the standards derive meaning from the unique conditions and characteristics of the subject to which they are applied. There is no constitutional impediment to such regulations. ¶39 Conner contends the absence of definite building standards in the LPO condemns him to submitting application after application until, finally, one meets the Board's subjective standards. This is not correct. To prevent just such a scenario, the LPO allows owners to request consideration of a preliminary design relating only to size, massing, scale, and placement. ¶40 In Burien Bark Supply v. King County, ¶41 In this case, Conner availed himself of the preliminary design and ARC procedures. He received consistent feedback to the effect that any successful proposal would include structures that were smaller than the Satterlee House, did not visually overpower it, and were situated to one side of the grounds so as to preserve the "sweep" of the view. These clarifications removed any ambiguities in the LPO and are sufficient to defeat Conner's vagueness claim. ¶42 Conner does not assert that this guidance was ambiguous; he simply disregarded it. ¶43 These procedures distinguish this case from Anderson v. City of Issaquah, ¶44 The ambiguities of the Issaquah code gave neither the applicant nor the development commission itself a basis for determining whether a given proposal met code requirements and provided no ascertainable criteria by which a court could review the ultimate decision. ¶45 Here, however, the LPO and the Ordinance describe specific features to be preserved, and the Board and ARC utilized their expertise ¶46 Anderson is inapposite for another reason. The Issaquah design code was meant to impose a particular aesthetic throughout the city, but its terms were so subjective they were essentially meaningless. ¶47 Conner's argument, in its essence, is that the LPO is impermissibly vague because it does not tell him exactly what he can do with his property. This is not the test. The question is whether Conner can ascertain the requirements for an acceptable project. The LPO contains both contextual standards and a process for clarification and guidance as to individual sites. From these, a landowner can ascertain what changes may be made. The constitution requires no more. Conner's Proposal ¶48 The hearing examiner concluded that Conner's proposal was inconsistent with the factors set out in the LPO and the Standards: 4. The height, scale and massing of Appellant's proposal would adversely affect the features and characteristics specified for the property in the designating ordinance 5. Because the Appellant's proposal fails to retain the historic relationship of the Satterlee residence to the site, it was not shown to be "compatible with the massing, size, [and] scale" of the landmark, and it fails to "protect the historic integrity of the property and its environment." Consequently, the Appellant's proposal does not comply with the Secretary's Standard 9. ¶49 Conner contends these conclusions are unsupported by substantial evidence.