Anderson v. City of Issaquah

KENNEDY, Judge.
Appellants M. Bruce Anderson, Gary D. LaChance, and M. Bruce Anderson, Inc. (hereinafter referred to as “Anderson”), challenge the denial of their application for a land use certification, arguing, inter alia, that the building design requirements contained in Issaquah Municipal Code (IMC) 16.16.060 are unconstitutionally vague. The superior court rejected this constitutional challenge. We reverse and direct that Anderson's land use certification be issued.

FACTS

Anderson owns property located at 145 N.W. Gilman Boulevard in the City of Issaquah (City). In 1988, Anderson applied to the City for a land use certification to develop the property. The property is zoned for general commercial use. Anderson desired to build a 6800 square foot commercial building for several retail tenants.

After obtaining architectural plans, Anderson submitted the project to various City departments for the necessary approvals. The process went smoothly until the approval of the Issaquah Development Commission (Development Commission) was sought. This commission was created to administer and enforce the City's land use regulations. It has the authority to approve or deny applications for land use certification.

As initially designed, Anderson's proposed structure was to be faced with off-white stucco and was to have a blue metal roof. It was designed in a “modern” style with an unbroken “warehouse” appearance in the rear, and large retail style windows in the front. The City moved a Victorian era residence, the “Alexander House,” onto the neighboring property to serve as a visitors' center. Across the street from the Anderson site is a gasoline station that looks like a gasoline station. Located nearby and within view from the proposed building site are two more gasoline stations, the First Mutual Bank Building built in the “Issaquah territorial style,” an Elk's hall which is described in the record by the Mayor of Issaquah as a “box building”, an auto repair shop, and a veterinary clinic with a cyclone fenced dog run. The area is described in the record as “a natural transition area between old downtown Issaquah and the new village style construction of Gilman [Boulevard].”

The Development Commission reviewed Anderson's application for the first time at a public hearing on December 21, 1988. Commissioner Nash commented that “the facade did not fit with the concept of the surrounding area.” Commissioner McGinnis agreed. Commissioner Nash expressed concern about the building color and stated that he did not think the building was compatible with the image of Issaquah. Commissioner Larson said that he would like to see more depth to the building facade. Commissioner Nash said there should be some interest created along the blank back wall. Commissioner Garrison suggested that the rear facade needed to be redesigned.

At the conclusion of the meeting, the Development Commission voted to continue the hearing to give Anderson an opportunity to modify the building design.

On January 18, 1989, Anderson came back before the Development Commission with modified plans which included changing the roofing from metal to tile, changing the color of the structure from off-white to “Cape Cod” gray with “Tahoe” blue trim, and adding brick to the front facade. During the ensuing discussion among the commissioners, Commissioner Larson stated that the revisions to the front facade had not satisfied his concerns from the last meeting. In response to Anderson's request for more specific design guidelines, Commissioner McGinnis stated that the Development Commission had “been giving direction; it is the applicant's responsibility to take the direction/suggestions and incorporate them into a revised plan that reflects the changes.” Commissioner Larson then suggested that “[t]he facade can be broken up with sculptures, benches, fountains, etc.” Commissioner Nash suggested that Anderson “drive up and down Gilman and look at both good and bad examples of what has been done with flat facades.”

With this, the Development Commission voted to continue the discussion to a future hearing.

On February 15, 1989, Anderson came back before the Development Commission. In the meantime, Anderson's architects had added a 5-foot overhang and a 7-foot accent overhang to the plans for the front of the building. More brick had been added to the front of the building. Wood trim and accent colors had been added to the back of the building and trees were added to the landscaping to further break up the rear facade.

At that point, the Development Commission denied Anderson's application.

Anderson, who by this time had an estimated $250,000 into the project, timely appealed the adverse ruling to the Issaquah City Council (City Council). After a lengthy hearing and much debate, the City Council decided to affirm the Development Commission's decision by a vote of 4 to 3.

Thirteen days later, on April 18, 1989, Anderson filed a complaint in King County Superior Court.

DISCUSSION

2. Constitutionality of IMC 16.16.060 (Building Design Provisions).

[A] statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

In the field of regulatory statutes governing business activities, statutes which employ technical words which are commonly understood within an industry, or which employ words with a well-settled common law meaning generally will be sustained against a charge of vagueness. The vagueness test does not require a statute to meet impossible standards of specificity.

In the area of land use, a court looks not only at the face of the ordinance but also at its application to the person who has sought to comply with the ordinance and/or who is alleged to have failed to comply. The purpose of the void for vagueness doctrine is to limit arbitrary and discretionary enforcements of the law.

Looking first at the face of the building design sections of IMC 16.16.060, we note that an ordinary citizen reading these sections would learn only that a given building project should bear a good relationship with the Issaquah Valley and surrounding mountains; its windows, doors, eaves and parapets should be of “appropriate proportions”, its colors should be “harmonious” and seldom “bright” or “brilliant”; its mechanical equipment should be screened from public view; its exterior lighting should be “harmonious” with the building design and “monotony should be avoided.” The project should also be “interesting”. If the building is not “compatible” with adjacent buildings, it should be “made compatible” by the use of screens and site breaks “or other suitable methods and materials.” “Harmony in texture, lines, and masses [is] encouraged.” The landscaping should provide an “attractive ... transition” to adjoining properties.

As is stated in the brief of amici curiae, we conclude that these code sections “do not give effective or meaningful guidance” to applicants, to design professionals, or to the public officials of Issaquah who are responsible for enforcing the code. Although it is clear from the code sections here at issue that mechanical equipment must be screened from public view and that, probably, earth tones or pastels located within the cool and muted ranges of the color wheel are going to be preferred, there is nothing in the code from which an applicant can determine whether his or her project is going to be seen by the Development Commission as “interesting” versus “monotonous” and as “harmonious” with the valley and the mountains. Neither is it clear from the code just what else, besides the valley and the mountains, a particular project is supposed to be harmonious with, although “[h]armony in texture, lines, and masses” is certainly encouraged.

In attempting to interpret and apply this code, the commissioners charged with that task were left with only their own individual, subjective “feelings” about the “image of Issaquah” and as to whether this project was “compatible” or “interesting”. The commissioners stated that the City was “making a statement” on its “signature street” and invited Anderson to take a drive up and down Gilman Boulevard and “look at good and bad examples of what has been done with flat facades.” One commissioner drove up and down Gilman, taking notes, in a no doubt sincere effort to define that which is left undefined in the code.

The point we make here is that neither Anderson nor the commissioners may constitutionally be required or allowed to guess at the meaning of the code's building design requirements by driving up and down Gilman Boulevard looking at “good and bad” examples of what has been done with other buildings, recently or in the past. We hold that the code sections here at issue are unconstitutionally vague on their face. The words employed are not technical words which are commonly understood within the professional building design industry. Neither do these words have a settled common law meaning.

As they were applied to Anderson, it is also clear the code sections at issue fail to pass constitutional muster. Because the commissioners themselves had no objective guidelines to follow, they necessarily had to resort to their own subjective “feelings”. The “statement” Issaquah is apparently trying to make on its “signature street” is not written in the code. In order to be enforceable, that “statement” must be written down in the code, in understandable terms. The unacceptable alternative is what happened here. The commissioners enforced not a building design code but their own arbitrary concept of the provisions of an unwritten “statement” to be made on Gilman Boulevard. The commissioners' individual concepts were as vague and undefined as those written in the code. This is the very epitome of discretionary, arbitrary enforcement of the law.

Although the City argues that its code is not unconstitutionally vague, it primarily relies upon the procedural safeguards contained in the code. Because aesthetic considerations are subjective in concept, the City argues that they cannot be reduced to a formula or a number. The vagueness test does not require a statute to meet impossible standards of specificity.

Certainly, the IMC grants Anderson the right to appeal the adverse decision of the Development Commission. But just as IMC 16.16.060 provides no standards by which an applicant or the Development Commission or the City Council can determine whether a given building design passes muster under the code, it provides no ascertainable criteria by which a court can review a decision at issue, regardless of whether the court applies the arbitrary and capricious standard as the City argues is appropriate or the clearly erroneous standard as Anderson argues is appropriate. Under either standard of review, the appellate process is to no avail where the statute at issue contains no ascertainable standards and where, as here, the Development Commission was not empowered to adopt clearly ascertainable standards of its own. The procedural safeguards provided here do not save the ordinance.

Clearly, . . . aesthetic standards are an appropriate component of land use governance. Whenever a community adopts such standards they can and must be drafted to give clear guidance to all parties concerned. Applicants must have an understandable statement of what is expected from new construction. Design professionals need to know in advance what standards will be acceptable in a given community. It is unreasonable to expect applicants to pay for repetitive revisions of plans in an effort to comply with the unarticulated, unpublished “statements” a given community may wish to make on or off its “signature street”. It is equally unreasonable, and a deprivation of due process, to expect or allow a design review board such as the Issaquah Development Commission to create standards on an ad hoc basis, during the design review process.


CONCLUSION

It is not disputed that Anderson's project meets all of the City's land use requirements except for those unwritten and therefore unenforceable requirements relating to building design which the Development Commission unsuccessfully tried to articulate during the course of several hearings. We order that Anderson's land use certification be issued, provided however, that those changes which Anderson agreed to through the hearing before the City Council may validly be imposed.


GROSSE and SCHOLFIELD, JJ., concur.