While Satterlee House owner William Conner is pursuing his development-rights appeal on five main points, only one of those points was spotlighted in oral arguments this morning before the state’s second-highest court: “Whether the city’s landmarks ordinance is unconstitutionally vague,” as Conner’s lawyer Richard Hill described it. The arguments went quickly – as we noted in the morning preview from the Court of Appeals-Division 1 courtroom at One Union Square downtown, each side gets 10 minutes, and a digital clock tracks the time in glaring red illumination – starting just after 10 am, and concluding, with some questions from the judges along the way, just before 10:30. Read on for details (and backstory if you haven’t followed this case before):
The case has already been through the city Landmarks Board, which denied permission for Conner to build three 2,000-ish-square-foot homes on the sprawling lawn of the Beach Drive “Painted Lady” house (4800 block – map), an official city landmark. The city Hearing Examiner, who — after a hearing that stretched across several sessions in March 2008 — upheld the Landmarks Board decision; and King County Superior Court, which, after a process much like this (paperwork plus a brief session of oral arguments), reaffirmed the Hearing Examiner’s decision.
“We respectfully ask the court to direct the City of Seattle to allow (William and Marilyn Conner) to build three homes on three vacant parcels (on the lawn),” Hill began, saying the homes would be smaller than “code” (zoning) allows, each about the same size as the Satterlee House itself, and preserving “in perpetuity a 45-foot view corridor” (negotiated by Historic Seattle without city involvement).
Case law cited by Hill for the claim of unconstitutionality included a 1972 Supreme Court decision saying “a basic principle of due process is that enactment is vague if its prohibitions are not clearly defined,” and he cited “key principles” of “fair notice … giving (someone) a reasonable opportunity to know what is prohibited,” to guard “against arbitrary and discriminatory enforcement of law,” and “laws must provide explicit standards.”
Becker interrupted him at that point for the first question of the hearing, asking if Hill were “arguing for the invalidation of the city Landmarks Ordinance entirely, or is there something about the way it was applied in this particular case?”
The latter, Hill clarified — specifically, the ordinance designating the Satterlee House a city landmark in the ’80s. He went on to cite several other cases that he said “invalidate(d) an overly vague ordinance,” and contended “a citizen should be able to interpret the law by reading the code … In this case, it is clear the Conners cannot determine what they are allowed to build on their property by reading the published code.”
“How should this have been done, to be consistent?” asked Judge Ellington.
Hill pointed to examples such as citywide design-review rules, and said those might be applied to landmarks. “Hard to do that one landmark at a time, though,” Ellington mused.
“Guidelines can be included in controls and incentives (specified) at the time of the designation of an individual landmark,” Hill offered, adding that for the Satterlee House, the designation ordinance simply specified that a “certificate of approval” would have to be obtained to make changes to the property, without getting any more specific, resulting, he contended, in Landmarks Board members applying “their own subjective standards.”
Given that the landmark was said to include both the house’s position and its spatial location on the site, Elilngton then asked, “what should be the incentives and controls?”
“We don’t know what the City Council was thinking at the time this was adopted,” Hill replied, “and that goes to the question about whether the designating ordinance was vague.”
He reserved time for rebuttal at the end, and made way for the attorney representing the city, Judy Barbour, who also has been on the case since the original appeal to the Hearing Examiner. She also stayed with the “vagueness” issue – and was asked a question by Judge Becker even before she began: “There is an issue about whether we are talking about the house or the house and the site that it’s on.”
Barbour recalled that being an issue in previous proceedings, and pointed out that the Hearing Examiner ruled the designation covered the house and the site. She contended that the ordinance was “not in the least bit vague,” as it specified that “alterations or significant changes cannot be made without a certificate of approval from (the Landmarks) Board. … the Conners have claimed you must be able to read the standards in the code and tell exactly what size building you can build without going to the Board …” but that’s just not the way it’s set up to work, she said.
Becker went back to the issue of what percentage of the site is involved in the designation — “how much of the lower lots are preserved — must there be no building on those lots, and if some is OK, then what’s wrong with this particular proposal? … The people in West Seattle who walk by and enjoy the view of the house, they will either be able to see all of it, or some of it. Otherwise, it must be your position that he cannot build on (the lawn).”
Replied Barbour, “A view easement is not a substitute for preservation of the site … (the board is) not in the easement business.”
Asked what the board might support being built on the lower lot, she answered, “That depends on whether the proposal is compatible with the scale and the massing … of the landmark and its environment. In this case, (the Board) found that what the Conners had proposed was too massive to be compatible with the landmark in its entirety … they did not close the door on entertaining any kind of development whatsoever. Both the chair and the member who testified at the Hearing Examiner (hearing) said they remain quite convinced something could be worked out … there’s development potential on the site. … The desires of the Landmarks Board and the property owner could be met by a design that showed a smaller configuration of three houses than what’s proposed by the Conners themselves.”
To Hill’s specific point, she said, “No, there is not a way you can read the ordinance and know what you can build. He shouldn’t be able to, either. Is it unconstitutionally vague? Not under case law. Merely because a person can’t predict an outcome with complete certainty doesn’t mean it’s unconstitutionally vague. … The standard is not so severe and restrained. It is also not that restrictive for the decisionmaker.”
In his rebuttal, Hill reiterated that “the designating ordinance itself … is vague. We don’t know what the site is. The property owner cannot look to find out what is governed by regulation. In addition, the controls aren’t defined.” He suggested the designating ordinance should have stipulated what, and where, buildings can be placed on the Satterlee House’s lawn.
“That’s a lot to ask of a designating ordinance,” observed Judge Ellington. “… You have the statutory ordinance requirements that there not be an adverse effect on the characteristic effect for which it was designated (a landmark) … The house is prominent, classic Seattle architecture on the side of a hill, with a sweeping vista … doesn’t that tell you clearly that the board wanted to preserve exactly that, the prominence of the structure in relationship to other structures?”
“The ordinance does refer to prominence of the spatial location,” Hill acknowledged. “What is unconstitutionally vague is how that is implemented.” The potential end result, he went on to say, is that you can find yourself going back to the board again and again until “subjective criteria” are satisfied.
Time ran out — we sat in the courtroom all morning, and didn’t see anyone cut off in mid-sentence, so there’s a little leeway — and now, the two sides wait for a ruling. The audio of today’s arguments is not yet posted on the court’s website (though we noticed same-day turnaround earlier in the week); watch for it here.
WSB coverage of this case is archived here, newest to oldest.