Conner v. City of Seattle
| Decision Date | 21 December 2009 |
| Docket Number | No. 62563-2-I.,62563-2-I. |
| Citation | 223 P.3d 1201,153 Wash.App. 673 |
| Court | Washington Court of Appeals |
| Parties | William CONNER and Marilyn Conner, husband and wife, Appellants, v. CITY OF SEATTLE, a Washington municipal corporation, Respondent. |
Judith B. Barbour, Seattle City Attorneys Office, Seattle, WA, for Respondent.
Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, Nicholas Gieseler, Pacific Legal Foundation, Stuart, FL, for Amicus Curiae Pacific Legal Foundation.
Julia Miller, Elizabeth S. Merritt, National Trust for Historic Preservation, Washington, DC, Michael David Smith, Attorney at Law, Baltimore, MD, John Paul Bagley, Attorney at Law, Salt Lake City, UT, for Amicus Curiae The National Trust for Historic Preservation.
¶ 1 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 Ordinance1 is unconstitutionally vague as applied. They also contend the landmark restrictions on the property constitute an unlawful tax, a regulatory taking, and deprived them of due process. We reject their arguments and affirm.
¶ 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, of the style known as the "Seattle classic box." The grounds include a gazebo and other original landscaping features. The site is approximately an 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.
¶ 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.2 We review the hearing examiner's decision de novo on the administrative record.3 We review alleged errors of law de novo.4
¶ 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.
¶ 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.5 The Board must approve the nomination at a public meeting.6 After approving a nomination, the Board must decide whether to approve designation of the site as a landmark. This step also requires a public meeting.7 If the Board approves designation, it must prepare a written report describing the site, the features or characteristics to be preserved, and the reasons for the designation.8
¶ 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.9 If objections to proposed controls and incentives are timely filed, the LPO sets out detailed procedures for negotiation and appeal.10 Once controls and incentives are determined, the Board transmits its recommendation to the city council for further action.11
¶ 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.12
¶ 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."13 The nomination further stated that in contrast to neighboring properties which "congregate near the road's edge with much less attention to complementary landscaping," the house "is set back deeply from Beach Drive S.W. with a westward orientation overlooking a gently sloping front lawn, an apparently original goldfish and frog pond, and a large monkey puzzle tree, popular during the early 1900's."14
¶ 14 The Board considered the proposed designation at a public meeting in August 198115 and voted to approve designation of "the entire exterior of the house, as well as the entire site,"16 based upon two LPO designation criteria:
[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.17
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.1906.18
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.19
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."20
¶ 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.21
¶ 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."22
¶ 18 Ordinance section 3 identifies several incentives as "potentially available to the owner,"23 including the possibility of uses not otherwise allowed in the zoning area, and certain tax benefits and historic preservation grants-in-aid if the property were also entered in the National Register of Historic Places.
¶ 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.
¶ 20 The usual rules of statutory construction apply to municipal ordinances.24 Our objective is to determine the council's intent.25 Where the meaning of an enactment is clear, it must be given effect.26 "Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole."27 Ordinances "`must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.'"28
¶ 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."29 Further, the landmark nomination form, the report on designation, and the recommendations to the city council all identify the landmark in shorthand fashion as "Satterlee House" or "Satterlee Residence," but describe it as comprising both the house and the entire site. There is no reasonable argument that the Board intended to designate only the house.
¶ 22 Section 1 also contains a legal description ("a portion of Tract 18, Spring Villa Tracts"30), which...
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