As promised, here are the details of Monday afternoon’s oral arguments in the case of Conner vs. Seattle — that’s William Conner, who founded Conner Homes and is now retired, challenging the city Hearing Examiner‘s decision upholding the city Landmarks Board‘s rejection of his proposal to build three 3,000-or-so-square-foot homes on the big lawn fronting the Satterlee House (4866 Beach Drive; map). That board has to turn thumbs up or down on changes proposed to official city landmarks, which require a “certificate of approval” before such changes can proceed to the next step in any development process. This case is unusual and potentially precedent-setting because, as was noted during the HE hearings we covered in the spring, Landmarks Board rulings are seldom appealed, and this one not only went to appeal, the ruling on that appeal is now being challenged in court. Here’s what happened in court Monday (expanding on our brief initial report published Monday afternoon):
Conner himself was there, though he didn’t speak; the arguments were made by the attorneys who also had presented the case to the Hearing Examiner last spring, Conner’s lawyer Richard Hill, and city lawyer Judy Barbour.
If you are interested in reading our previous coverage first, here are links (note the Hearing Examiner proceedings didn’t happen on consecutive dates; more days had to be added as it went on, and had to be worked around other cases already scheduled):
February report about the then-impending Hearing Examiner proceedings
March 5 testimony by former owner David Satterlee before the city Hearing Examiner
March 10 testimony by Beth Chave from the Landmarks Board and by her supervisor Karen Gordon
March 11 report with more details on witnesses from the first day
March 13 testimony: morning witnesses here, afternoon witnesses here
March 14: William Conner testifies
March 18: Yet more testimony
March 19: The final witness, the Satterlee House’s longtime listing agent
April 28: Hearing Examiner issues ruling upholding Landmarks Board rejection of Conner proposal
May 15: Conner files court challenge to Hearing Examiner ruling
And five months later, that brings us to Monday’s oral arguments in the case, before King County Superior Court Judge Suzanne Barnett.
Hill went first, starting with a recap of the original backstory, saying William Conner, who Hill described as a “retired homebuilder, 76 years old,” bought the Satterlee House around 2000 with “two objectives” — one, to build so-called “cottage” homes on the site as part of a pilot program, and to help protect the landmark. The “cottage homes” plan did not go through; Hill, in court today, blamed that on opposition from neighbors. He then said he had five reasons to ask the court to reverse the city’s decision. Here are his five reasons, and a summary of his supporting arguments on their behalf:
1. The city had no jurisdiction. Hill contended that the home’s original owner, David Satterlee, did not ask the city to designate the entire site as a landmark, and quoted from Satterlee’s 1980 letter to the city to that effect. He cited case law saying that ordinances designating landmarks “shall include a legal description of the site or object” that’s the subject of the designation, and he contends that the ordinance designating this landmark only described the house, not the land. In addition, he argued, the criteria the Satterlee House met for landmark designation, such as embodying a certain period’s construction style, applied to the house, not the land. Bottom line, he says the Landmarks Board shouldn’t have been reviewing a proposal for the lots in front of the house (short-platted into three separate lots in 2007) because he contends they aren’t part of what was designated as a landmark.
2. The landmark ordinance was unconstitutionally applied. The arguments here got a little technical; Hill cited cases including a 1978 matter in which a property owner in Grant County wanted to move a mobile home onto a vacant lot and a 1986 state Supreme Court ruling involving a bark-supply company in Burien, as well as a case from Issaquah in which design standards were found to be too subjective, which was the major point of Hill’s argument here – the application of the ordinance was overly subjective, even though aesthetic standards are clearly important.
3. The city’s actions constituted an unlawful tax/fee in violation of state law
4. No ascertainable standards were set forth; the proposal complied with city codes.
5. The city’s actions constituted regulatory “taking,” and violation of due process.
To the above-listed points, Hill insisted the law shows that while “aesthetic standards are an important component” of these matters, “when a community adopts them, they can and must be drafted to give clear guidance to all parties concerned.” That, he said, had not happened here; he read portions of testimony from various witnesses during the spring proceedings before the Hearing Examiner (see the links above) at which he had asked whether an applicant could tell the “acceptable size” of a proposed new home from reading the landmark ordinance, and the answer was “no, you go to the board and present alternatives and get a reading from the board.” Just too subjective to be legal, he contended, while saying the Constitution demands precision.
He also attacked the ruling against his client’s proposal for not specifying how it would adversely affect the features identified in the landmark-designation ordinance. The city’s response, in essence, he summarized, was “c’mon, you know it when you see it, you just have to look at the drawings” – but that, he said, was “unacceptable.”
To his last point contending the ruling was a “taking,” he said it amounted to the city taking a “view easement” for which they would normally have to compensate a property owner; he also suggested it was a form of “condemnation” and again asked what harm was being done to the public by the proposal – did it affect public safety? No, he said. Public health? No, again. Public welfare? No. The state Supreme Court, he said, described landmark preservation as “cultural” and “aesthetic” – so, he said, how could building three code-conforming homes (not as large or as tall as code would allow, he contended) present public harm? “This mode of regulation represents a taking of Mr. Conner’s rights.”
After a 15-minute recess, Barbour stepped forward to argue the city’s case. First, she wanted to rebut a few themes she had heard recur in Hill’s presentation — he had frequently mentioned that Conner’s three-home proposal was “code-conforming”; she noted that was irrelevant to the historic preservation at the heart of this case: “Fact of the matter is, someone who wants to build on a landmark has to get permission from the board before he ever goes to another agency in the city to get a read on whether it conforms with codes or not.”
She also took issue with Hill citing David Satterlee on repeated occasions, because, she noted, the Hearing Examiner’s ruling in April had dismissed him as a not-credible witness because of “failing memory.”
Overall, Barbour said, the Hearing Examiner had found that the entire site – house and land – was included in the designation, and cited sections of the designating ordinance which referred to the entire property as “Satterlee House” and the structure itself as “Satterlee house” with a lower-case “h.”
She also discussed the easement agreement involving Historic Seattle and said it actually “recognizes” that the front lawn “is part of the property” and that the “designating ordinance … designates the entire property including that lawn … This is a powerful piece of evidence.” She also claimed that a later attempt was made to “expunge (those) words by an amendment to the easement.”
And while the document detailing “controls” on the landmark is apparently lost forever, Barbour suggested it’s almost irrelevant, declaring, “The record is absolutely replete with pieces of information that show (the lawn) was intended to be designated … When the board went to look at the Conner proposal, it had to look at the record of this nomination (of the land, 27 years earlier) … They found a statement of significance” which singled out landscaping aspects. She went on to cite several other things she said supported the belief the lawn was intended to be included in the landmark designation … “It’s clear on the record that the entire site is designated .. because it’s landmark-worthy.”
As for Hill’s argument that the landmarks ordinance should be worded in a way enabling an applicant to “tell exactly what size house” could be built on a site, Barbour said, “There is not a case anywhere that requires such specificity,” calling attention to the fact that the city’s current list of landmarks includes much more than houses: She listed bridges, a pier, a water tank, a playfield, a street stairway, and even the Admiral Theater: “The ordinance does not specify for ANY of these things, the exact size of a permissible alteration. If an owner wants to alter one, he has to come to the board … and the board will apply the very same standards it applied to the Satterlee House, and those do have to be general by necessity.” This case, Barbour said, was believed to be one of only two in 20 years in which a request for alterations was denied. If this were part of a historic district, she suggested, the language in the law would be more specific, but regarding individual landmarks, by necessity, it’s not. “The issue is whether regulations are so vague they do not give reasonable notice that the conduct may be unlawful … it’s the BONES of these historic preservation cases that have been upheld.”
The final point of Hill’s argument is one in which Barbour said she agreed with him to some degree – but only regarding a half-joke he made, saying our state’s “takings” law was enough to potentially make someone’s head explode. She recalled that much of the hearing had to do with whether Conner was deprived of a reasonable economic use of the property, and “the evidence put on by the city was overwhelming … bottom line, (takings law is about) whether a person no longer has reasonable use of his property, and that is NOT the case here. … (Conner) stlll has a ‘reasonable use’ of the property, even if he just sells it.”
After Barbour made her case for about three-quarters of an hour, close to the same time Hill had spent, he rebutted a few points — seeming incredulous that the Hearing Examiner had made an interpretation based on whether the word “house” had been written with an uppercase or lowercase “H” — “I don’t believe there’s any case in the entire jurisprudence of the West that makes a decision based on (letter case)!”
He focused again on the missing “controls and incentives” agreement and the resulting absence of information about its contents, and he called it “ironic” that Barbour had called previous owner Satterlee’s credibility into question, given that a letter from him was part of the city’s evidence in the case. (It should be noted, the credibility questioning involved his testimony this year before the Hearing Examiner, while that letter was from more than a quarter-century earlier.)
Hill also said it’s not that his clients are demanding “absolute specificity, though there’s no question they wish they could go to SOMEBODY and have someone tell them in a lawful way how big a house (they) can build on (their) property … What they ARE saying is, (there should be) clearly ascertainable standards that don’t require guesswork or subjective judgments or meeting after meeting, application after application … Without clear guidance to all concerned, the city’s regulations fail, and that’s what happened in this case.”
WHAT’S NEXT: Since Judge Barnett had only been assigned to this case last Friday (during what she described as a “full day” of hearing/considering other cases), she hadn’t had the opportunity to review all the written materials — “In assigning the case to me, nobody built in any reading time,” she remarked — so she set a date to announce and deliver her ruling: 11 am October 24. We’ll be there.