Takeaway
In short, this case holds that a city may not deny a land-use application by applying subjective, unwritten aesthetic preferences; design-review standards must provide clear, published, and workable guidance.
M. Bruce Anderson and related parties sought a land use certification to build a 6,800-square-foot retail commercial building on Gilman Boulevard in Issaquah. The property was zoned for general commercial use, and the project satisfied the City’s other land-use requirements. The proposed design used stucco, a blue roof, large retail windows, and a relatively unbroken rear wall.
The Issaquah Development Commission repeatedly continued its review while asking Anderson to make the building more compatible with the area and with the City’s desired image for Gilman Boulevard. Anderson made several revisions, including changing the roof material and colors, adding brick, overhangs, wood trim, and landscaping. But the commissioners continued to invoke such concepts as harmony, interest, compatibility, and the “feeling” of Gilman Boulevard. They ultimately denied the application because the design did not reflect the Commission’s view of the street’s appropriate architectural character.
The City Council affirmed the denial. Anderson then filed suit in superior court, challenging the design-review provisions of IMC 16.16.060 as unconstitutionally vague. Before trial, the superior court dismissed the City’s affirmative defenses that the appeal was untimely, that the Attorney General had not been timely served, and that Anderson’s corporation was an indispensable party. After trial, however, the court rejected Anderson’s constitutional challenge and dismissed the complaint. Anderson appealed, and the City cross-appealed the dismissal of its affirmative defenses.
Issue #1
Whether the City could assert that Anderson’s superior-court appeal was filed after the 14-day municipal deadline.
Holding
No. The City waived that defense by telling Anderson that he had 14 days from April 5, 1989, to appeal, and Anderson filed within that stated period.
Reasoning
The City argued that the City Council’s decision occurred on April 3, when the Council orally adopted its action, rather than on April 5, when the written findings were signed and the notice of action issued. Under that theory, Anderson’s April 18 filing was one day late. The court acknowledged that the City’s position had some technical support in prior cases and was not frivolous in itself.
But the City’s April 5 notice expressly told Anderson that he had 14 days from the date of that notice to file an appeal. Having supplied that deadline, the City could not later insist on an earlier one. The court therefore held that the City waived its timeliness defense without deciding the precise date on which the City Council’s decision became final.
Issue #2
Whether M. Bruce Anderson, Inc. was an indispensable party that had to be included when the action was first filed.
Holding
No. The corporation was not an indispensable party until it acquired the property, and it had been joined by then.
Reasoning
A property owner is ordinarily a necessary and indispensable party to litigation challenging a land-use decision affecting that property. But when the complaint was filed, Gary LaChance—not M. Bruce Anderson, Inc.—owned the property.
The corporation acquired the property in June 1989 and was then added as a plaintiff by stipulation. Because it was not yet an owner at the time the action began, it could not have been an indispensable party at that earlier time. The City’s contrary argument was wholly frivolous.
Issue #3
Whether Anderson’s service on the Attorney General was fatally late under RCW 7.24.110.
Holding
No. The Attorney General was served before trial and expressly waived participation, which disposed of the objection.
Reasoning
RCW 7.24.110 requires service on the Attorney General when a party seeks declaratory relief declaring a municipal ordinance unconstitutional, but the statute does not prescribe a deadline for service or require that the Attorney General be named as a party.
Washington precedent recognizes that the Attorney General may waive the statutory right to participate. Here, after Anderson served the Attorney General before trial, that office declined to intervene and waived further notice. If the Attorney General may waive even a complete failure of service, the court reasoned, the office may certainly waive any claim of delayed service.
Issue #4
Whether Anderson was entitled to attorney fees or sanctions because the City’s cross-appeal was frivolous.
Holding
No. Although parts of the City’s cross-appeal lacked merit, the appeal was not wholly frivolous.
Reasoning
The City’s arguments concerning the corporate party and Attorney General service were untenable, and the court criticized the City for failing to disclose pertinent facts in its briefing. The court stated that the City came close to sanctions.
Still, the City had a technically plausible argument concerning the date of the City Council’s decision and the filing deadline. Because doubts over whether an appeal is frivolous must be resolved in the appellant’s favor, the court denied Anderson’s request for attorney fees under RAP 18.9.
Issue #5
Whether Issaquah’s building-design standards in IMC 16.16.060 were unconstitutionally vague.
Holding
Yes. The provisions were void for vagueness both on their face and as applied to Anderson’s application.
Reasoning
Due process prohibits a law so vague that people of common intelligence must guess at its meaning and differ as to its application. In the land-use context, the court examines both the ordinance’s text and how officials applied it. The central purpose of the vagueness doctrine is to prevent arbitrary and discretionary enforcement.
The ordinance required such qualities as compatibility, harmony, appropriate proportions, nonmonotony, and an interesting relationship to the valley and surrounding mountains. Apart from more concrete requirements—such as screening mechanical equipment—the code gave applicants, design professionals, and administrators no effective way to determine what design would comply. The terms were neither technical terms with a settled industry meaning nor terms with established common-law meanings.
The hearings confirmed the ordinance’s defect in operation. Commissioners relied on their individual feelings about Issaquah’s image and the desired “feeling” of Gilman Boulevard. They directed Anderson to drive along the street and distinguish supposedly good from bad examples, while the street itself contained approved structures inconsistent with the characteristics the commissioners later identified.
The City’s desired architectural statement for its “signature street” was not written into the code. Rather than enforce published criteria, the Commission developed and imposed an unwritten aesthetic program during Anderson’s review. That ad hoc approach left both Anderson and the Commission guessing and created the very risk of arbitrary enforcement that due process forbids.
The City’s appeal procedures did not cure the problem. Meaningful administrative or judicial review requires ascertainable standards against which a decision can be measured, yet the ordinance supplied none and the Commission had not been authorized to adopt its own clear standards. The court therefore ordered issuance of the land use certification, subject to changes Anderson had agreed to through the City Council hearing.
Issue #6
Whether a municipality may regulate development based solely on aesthetic considerations.
Holding
The court did not decide that question, but held that any municipal aesthetic standards must be clearly written and objectively administrable.
Reasoning
Anderson argued that Washington law forbade denial of development based on aesthetics alone, while the City argued that aesthetics were one component of its broader police-power objectives. The court regarded the issue as unsettled under Washington precedent and declined to resolve it because the ordinance failed for vagueness.
The court recognized that aesthetic concerns can be a legitimate component of land-use regulation and noted that modern authorities may permit aesthetic regulation alone when adequate standards exist. But communities must articulate those standards in advance, in understandable terms, rather than force applicants to pay for repeated redesigns in response to unpublished preferences.