Court Decisions - Historic Preservation

• Conner v. City of Seattle, 153 Wn. App. 673 (2009).

Conner sought to develop property that had previously been designated as a landmark. Conner argued that the landmark designation applied only to a house on the property and not to the surrounding grounds. The court disagreed; the designation included both the house and the grounds. Conner further contended that that the Landmarks Preservation Ordinance was unconstitutionally vague as applied and that the landmark restrictions on the property constituted an unlawful tax, a regulatory taking, and deprived him of due process. The court concluded that the ordinance was not vague as each property was reviewed individually. There was no unlawful tax or a takings (the city need not prove a compelling interest).

• City of Tacoma v. Zimmerman, 119 Wn. App. 738 (2004).

The court upheld the validity of a Tacoma ordinance authorizing city acquisition of an historic structure through eminent domain. The owner was allowing the historic structure to deteriorate. Tacoma had a strong code provision in effect and had vigorously attempted to get the owners to maintain the structure, but without success. The court found that the city council did not abuse its discretion when it decided to exercise its eminent domain power under the Derelict Building Procedure of the Tacoma Municipal Code and preserve the Old Elks Temple, a pivotal structure in the Old City Hall Historic District of Tacoma.

• Swinomish Indian Tribal Community v. Island County, 87 Wn. App. 552, 942 P.2d 1034 (1997).

  Counties are obligated under the Shoreline Management Act to establish procedures protecting buildings, sites, and areas having historic, cultural, educational, or scientific value. Island County violated the statute and its own Shoreline Management Master Plan by issuing sewer repair permits without adopting any procedures protecting known Indian archeological sites in the area. Implementing protective procedures is especially critical where, in an effort to keep the sites from being looted, only the County knows where the sites are located.

• First United Methodist Church of Seattle v. Hearing Examiner for the Seattle Landmarks Preservation Board, 129 Wn.2d 238, 916 P.2d 374 (1996).

  Landmarks Preservation Ordinance, which prohibits United Methodist from making any alterations or significant changes to the church without City approval, burdens free exercise of religion because it forbids United Methodist to sell its property and use the proceeds to advance its religious mission. The ordinance is invalid as applied because the free exercise clause of the United States Constitution prevents government from engaging in landmark preservation when preservation has a coercive effect on religious practice.

• Munns v. Martin, 131 Wn.2d 192, 930 P.2d 318 (1996).

  Demolition permit ordinance, which provides for a waiting period preceding issuance of a permit to demolish any structure over 50 years old or a "place of historic value," is an unconstitutional violation of the Catholic Bishop’s right to demolish a school building that was once part of his religious ministry. Delaying demolition and development for long periods of time and compelling the Bishop to seek approval of his "religious mission" from secular authorities burdens the free exercise of religion.

• First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 840 P.2d 174 (1992).

  Seattle’s Landmarks Preservation Ordinance, which requires First Covenant to get a certificate of approval before it makes certain alterations to the church’s exterior, violates the church’s right to free exercise of religion under the state and federal constitutions. The church building itself is an expression of religious belief and message. Therefore, the ordinances burden the church’s free exercise administratively (by requiring the church to seek approval from secular authorities before altering the exterior of the building) and financially (by cutting in half the value of the church’s property). The City’s interest in preserving historic structures is not compelling enough to justify infringement on free exercise.

• Buttnick v. City of Seattle, 105 Wn.2d 857, 719 P.2d 93 (1986).

  In commanding building owner to remove and replace a parapet/pediment, the Pioneer Square Historic Preservation Board did not work an unconstitutional taking of property. Local governments may enact land use restrictions or controls to enhance quality of life by preserving the character and desirable aesthetic features of a city. Furthermore, the estimated cost of replacing the parapet does not impose an unnecessary or undue hardship on the property owner, considering the building’s high market value and income-producing potential.

• State v. City of Seattle, 94 Wn.2d 162, 615 P.2d 461 (1980).

  The City of Seattle has no power to nominate or designate any buildings as landmarks within the University’s Metropolitan Tract when the legislature specifically granted to the Board of Regents the power to preserve, remodel, improve, or destroy Tract buildings.