Are the building design provisions of Issaquah Municipal Code 16.16.060, which require building designs to be compatible, harmonious, and interesting without objective standards, unconstitutionally vague on their face and as applied to an applicant denied a land use certification under them?

M. Bruce Anderson and Gary LaChance owned commercially zoned property at 145 N.W. Gilman Boulevard in Issaquah. In 1988, Anderson applied for a land use certification to build a 6,800-square-foot retail building with off-white stucco, a blue metal roof, large retail windows in front, and an unbroken warehouse-style rear wall. Issaquah Municipal Code 16.16.060 directed the Issaquah Development Commission to evaluate building design using criteria such as compatibility with adjacent buildings, harmony in texture, lines, and masses, harmonious colors, relationship to the valley and mountains, and avoidance of monotony.

The Commission reviewed the application at three hearings. Commissioners voiced subjective impressions that the facade did not fit the area or the image of Issaquah, and they told Anderson to drive up and down Gilman Boulevard and study good and bad examples. Anderson changed the roof to tile, the colors to gray with blue trim, and added brick, overhangs, wood trim, and trees, but kept floor-to-ceiling windows for retail use. The Commission denied the application, citing unresponsiveness to its concerns, the building's relationship to Gilman Boulevard, and a list of design elements it observed on that street. By then Anderson had invested about $250,000. The City Council affirmed the denial 4 to 3.

The Issaquah Development Commission denied Anderson's application on February 15, 1989. Anderson appealed to the Issaquah City Council, which affirmed by a 4-to-3 vote and adopted written findings and conclusions signed April 5, 1989 (backdated to April 3). On April 5, the City issued a notice telling Anderson he had 14 days to appeal. Anderson filed suit in King County Superior Court on April 18, 1989, challenging the ordinance as unconstitutionally vague. The complaint was later amended by stipulation to add M. Bruce Anderson, Inc., which bought the property in June 1989. The Attorney General was served on August 28, 1990, and declined to participate. The City asserted affirmative defenses of untimely filing, failure to join the Attorney General, and failure to join the corporation; the trial court granted Anderson summary judgment striking them. After trial, the superior court dismissed Anderson's complaint and rejected the vagueness challenge. Anderson appealed, and the City cross-appealed the dismissal of its affirmative defenses. The Court of Appeals reversed on the main appeal and affirmed on the cross appeal.

(Kennedy, J.)

Yes. The building design provisions of IMC 16.16.060 are unconstitutionally vague both on their face and as applied to Anderson.

A law that requires or forbids conduct in terms so vague that people of common intelligence must guess at its meaning violates due process. Connally v. General Constr. Co., 269 U.S. 385 (1926). In land use cases, courts examine both the face of the ordinance and its application to the applicant. The doctrine exists to limit arbitrary and discretionary enforcement. Burien Bark Supply v. King Cy., 106 Wn.2d 868 (1986).

On its face, the ordinance's terms (compatible, harmonious, interesting, monotonous, appropriate proportions) give no effective guidance to applicants, design professionals, or the officials who enforce them. They are not technical terms commonly understood in the building design industry, and they lack a settled common law meaning. The ordinance never says what a project must be harmonious with beyond the valley and mountains.

As applied, the commissioners had no objective standards and relied on their own subjective feelings about the image of Issaquah and a Gilman Boulevard "statement" that appears nowhere in the code. Telling an applicant to drive the street and study examples is arbitrary, ad hoc enforcement. Aesthetic standards may be defined clearly, as the amicus's examples from other jurisdictions show, so the vagueness test does not demand impossible specificity.

The procedural safeguards of appeal to the City Council and the courts do not cure the defect. Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155 (1972), and State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wn.2d 321 (1973), do not apply to these code sections. Barry involved a Director who was required to establish and publish uniform standards, not to decide matters arbitrarily case by case, and Barry does not let an agency impose vague, unarticulated standards on the public. Without ascertainable standards, a reviewing court has no criteria for review under either the arbitrary-and-capricious or clearly erroneous standard. A design review ordinance must contain workable guidelines, and a review board may not create standards ad hoc.

On the cross appeal, the City waived its timeliness defense by issuing a notice giving Anderson 14 days to appeal. The corporation became an indispensable party only upon purchasing the property, by which time it had been joined. The Attorney General's waiver of the right to participate under RCW 7.24.110 resolves the service issue under Leonard v. Seattle, 81 Wn.2d 479 (1972). The court denied sanctions for a frivolous cross appeal, and ordered the land use certification issued, subject to the changes Anderson agreed to before the City Council.