851 P.2d 744
M. Bruce Anderson, Gary D. LaChance, and M. Bruce Anderson, Inc. own property located at 145 N.W. Gilman Boulevard in the city of Issaquah.1 In 1988, Anderson applied to the City for a land use certification to develop the property.2 The property is zoned for general commercial use.3 Anderson desired to build a 6,800-square-foot commercial building for several retail tenants.4
After obtaining architectural plans, Anderson submitted the project to City departments for the necessary approvals.5 The process went smoothly until the approval of the Issaquah Development Commission was sought.6 This commission was created to administer and enforce the City's land use regulations.7 It has the authority to approve or deny applications for land use certification.8
The Development Commission reviewed Anderson's application for the first time at a public hearing on December 21, 1988.9 Commissioners commented that the facade did not fit with the concept of the surrounding area.10 They expressed concern about the building color and compatibility with the image of Issaquah.11 They suggested more depth to the building facade and redesign of the rear facade.12 At the conclusion of the meeting, the Development Commission voted to continue the hearing to give Anderson an opportunity to modify the building design.13
On January 18, 1989, Anderson returned with modified plans including a tile roof, Cape Cod gray color with Tahoe blue trim, and brick on the front facade.14 Commissioner Larson stated that the revisions to the front facade had not satisfied his concerns from the last meeting.15 Commissioner Larson then suggested that the facade can be broken up with sculptures, benches, fountains, etc.16 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.17 The Development Commission voted to continue the discussion to a future hearing.18
On February 15, 1989, Anderson presented further modified plans with added overhangs, more brick, wood trim, accent colors on the back, and additional trees.19 After Commissioner Steinwachs described design elements observed on Gilman Boulevard such as heavy use of brick, wood, and tile and modulation methods such as gables, bay windows, recesses in front faces, porches, rails, many vertical columns, and breaks in roof lines, the Development Commission denied the application.20 The denial cited four reasons including insufficient responsiveness and failure to achieve the visual effect sensitive to the unique character of the signature street.21 Anderson appealed the denial to the Issaquah City Council, which affirmed the decision by a 4 to 3 vote.22
Anderson filed a complaint in King County Superior Court thirteen days after the April 5, 1989 notice of action.23 The City interposed affirmative defenses alleging the complaint was filed one day past the deadline, that Anderson failed to name the Attorney General, and that the corporation should have been joined initially.24 Prior to trial these affirmative defenses were stricken on summary judgment.25 Following trial the court dismissed Anderson's complaint.26 Anderson had invested an estimated $250,000 in the project by the time of the denial.27
Whether the building design requirements contained in Issaquah Municipal Code 16.16.060 are unconstitutionally vague?28
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.29 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.30 The purpose of the void for vagueness doctrine is to limit arbitrary and discretionary enforcements of the law.31
Yes. The code sections require that buildings be made compatible with adjacent buildings of conflicting architectural styles by screens and site breaks or other suitable methods.32 Harmony in texture, lines, and masses is encouraged.33 Evaluation of a project is based on quality of its design and relationship to the natural setting of the valley and surrounding mountains.34 Building components such as windows, doors, eaves, and parapets must have appropriate proportions.35 Colors must be harmonious, with bright or brilliant colors used only for minimal accent.36 Mechanical equipment must be screened from public view.37 Exterior lighting must be part of the architectural concept and harmonious with the building design.38 Monotony of design must be avoided by creating an interesting project.39
When applied to Anderson's proposed 6,800 square foot commercial building for retail tenants on property zoned for general commercial use at 145 N.W. Gilman Boulevard, the Development Commission reviewed the initial off-white stucco modern style design with blue metal roof at the December 21, 1988 hearing and continued the matter after comments that the facade did not fit the surrounding area, the color was concerning, and the rear wall needed redesign.40 At the January 18, 1989 hearing with modified Cape Cod gray, Tahoe blue trim, tile roof, and added brick, the commissioners again continued after stating the revisions had not satisfied concerns, suggesting sculptures, benches, fountains to break up the facade, and directing Anderson to drive up and down Gilman Boulevard to observe good and bad examples.41 At the February 15, 1989 hearing after further modifications including overhangs, more brick, wood trim, accent colors, and trees, the commission denied the application citing insufficient responsiveness to concerns, the architecture as it relates to Gilman Boulevard, and failure to achieve a visual effect sensitive to the unique character of the signature street based on one commissioner's notes about heavy use of brick, wood, tile, modulation, gables, bay windows, recesses, long sloping roofs, and no floor to ceiling windows.42 The commissioners had no objective guidelines in the code and necessarily resorted to their own subjective feelings about the image of Issaquah and whether the project created the same feeling as other buildings on Gilman Boulevard.43
The building design requirements contained in Issaquah Municipal Code 16.16.060 are unconstitutionally vague on their face and as applied to Anderson.44
Whether the City waived its argument that Anderson's superior court complaint was filed one day late?45
The City waived the right to argue the timeliness issue when on April 5, 1989 it sent Anderson a notice stating that Anderson had 14 days from the date of that notice to file an appeal.46
Yes. The City Council verbally adopted its action on April 3, 1989 but required changes to the proposed findings and conclusions which were signed on April 5, 1989 backdated to April 3.47 On April 5 a notice of action was issued to Anderson stating that he had 14 days from the date of that notice in which to file any appeal.48 Thirteen days later on April 18, 1989 Anderson filed the complaint in King County Superior Court.49
Although precedent indicated the date of the City's decision was April 3 rather than April 5, the City waived the right to argue this timeliness issue by the terms of the notice it sent.50
The City waived its argument that Anderson's superior court complaint was filed one day late.51
Whether M. Bruce Anderson, Inc. should have been joined initially as an indispensable party?52
A property owner in an action such as this is a necessary and indispensable party but the Anderson corporation did not become the owner of this property until June 1989.53
No. The lawsuit was initially brought in the names of M. Bruce Anderson and Gary D. LaChance at a time when LaChance still owned the property.54 On June 19, 1989, LaChance sold the property to M.
Bruce Anderson, Inc.55 The complaint was amended by stipulation to add the corporation as a party plaintiff without prejudice to the City's right to argue that the corporation had been an indispensable party before the sale closed.56 The corporation did not become an indispensable party until it purchased the property, by which time M. Bruce Anderson, Inc., had been joined as a party.57
M. Bruce Anderson, Inc. was not an indispensable party that should have been joined before it acquired the property.58
Whether delayed service on the Attorney General bars the action when the Attorney General waived the opportunity to participate?59
Although service upon the Attorney General is jurisdictional in a general sense, such service is subject to waiver by the Attorney General. The Attorney General's pretrial waiver of the statutory opportunity to intervene is dispositive of this issue.60
No. Anderson was challenging the constitutionality of an Issaquah city ordinance and RCW 7.24.110 requires that the Attorney General be served although no time limit is stated.61 The Attorney General was served on August 28, 1990 prior to trial.62 The Attorney General declined the opportunity to participate in the action and waived notice of any further proceedings.63 The Attorney General may waive the total failure to serve and can waive late service.64
Delayed service on the Attorney General does not bar the action when the Attorney General waived the opportunity to participate.65