Author: Brian T. Hodges
Earlier this week, Division I of Washington’s Court of Appeals issued a decision expanding government agencies’ authority to enforce vague laws against its citizens that should send a shiver down our collective spines.
Until yesterday, our courts held that a basic tenet of the constitutional guarantee of due process is that a person must be provided notice of what the law permits or prohibits with some reasonable degree of certainty before the law can be applied to him or her.
This may have all changed with the Conner v. City of Seattle decision.
Seattle’s Landmark Preservation Board nominated a 1904 house in West Seattle (the "Satterlee House") for designation as a historic landmark, and city adopted an ordinance restricting any development that changes or adversely impacts the historic character of the landmark. Several years later, the city subdivided the lot, creating three new vacant, residential-zoned parcels. But the preservation ordinance contains no articulated standards indicating what size home would or would not be allowed on properties adjacent to a historic landmark, stating generally that
"new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment."
The ordinance left it up to the Landmark Preservation Board to determine what that meant.
The owner of the three vacant lots submitted a proposal to build homes that satisfied all local code requirements and did not impact the landmark house itself. Nonetheless, the Landmark Preservation Board denied the applications, stating that the property owner would have to continue to file applications until they got one that was sufficiently "subservient" to the landmark.
You see, the Landmark Preservation Board interpreted the city’s designation of the "Satterlee House" as including the perception of the home’s prominence vis-a-vis its large yard (which included the three subdivided residentially zoned parcels). The Board denied the property owner’s proposals because it was concerned that building homes on adjacent lots would interfere with the"Satterlee House’s" "prominence of spatial location."
The property owner appealed the Board’s decision, arguing that there were no discernable standards in the city’s landmark ordinance for a property owner to know what uses of property would be allowed under the law.
Oddly, the city agreed. Board members testified that the landmark ordinance was so broad that they did not know what type of development could be approved – they would just know it when they saw it. Even the city’s attorney agreed, arguing to the Court of Appeals that "there is not a way you can read the ordinance and know what you can build."
This should have been enough to invalidate the Board’s decision.
For decades, the vagueness test turned on the question whether a person of ordinary intelligence was provided a reasonable opportunity to know what is prohibited before the law is enforced. But the Court of Appeals decision departed from this well-recognized standard. The Court acknowledged that the landmark ordinance was vague, but then concluded that vague standards derive an objective meaning when considered in context by an agency that has an expertise in considering the subject matter. Thus, the Court held that where the administrative agency can provide a reasonable explanation of how it arrived at its conclusion after the law is enforced, then the ordinance is not vague.
What is particularly worrisome about this decision is there is no limit to the circumstances where this analysis can be applied, essentially substituting due process with post-hoc rationale.