Total Outdoor, Corp. v. City Of Seattle Dept. Of Planning And Development ( 2015 )

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W THE COURT OF APPEALS 0F THE STATE OF WASHiNGTON
DlVlSlOM ONE
TOTAL OUTDOOR {£3CLiRF’CJRATlONa ) No, 7095734
:3 Washingten (summation
Appellant,
‘3‘.
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CITY QF SEATTLE DEPARTMENT OF
PLANNING AND DEVELOPMENT, a )
municipal carporaticn, )
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Respcncient. )
,7 )
VERELLEN, ABA. ~— Seattle ordinances rewgnize genuine distinctions between
UNPUBLISHED OPINIQM
FlLED: March16,2015
nonconforming uses and the nnnmnforming structures assaciated with web usess, The
cure issue premnied in this Land Use Petition Anti (LUPA) appeal in whether the owner
of legal ncnconfonning structures whu, without required permits, damolishes these
structures and then erects new structures in violation of a stats-wart: order may rebuild
or “repair” in dimensinns larger than allowed in the mast recent permit we.qu by the
city,
Sufficient evidence guppofis the Seattle Department of Planning and
Development (Departmant) determinatien that dimensions of the demolished structures
were not known with certainty because the Warner demolished and erected new
structures without seeking the required permits, The Department’s resulting ccnciusion
1 Ch 33.700 RCW.
N9, 7095134}?
that a roofing: Sign frame and sign face? may not be rebuilt 9r repaired to dimennions
larger than those. approved in the most recent permit is not glean}; arroneaus. We are
nni: persuaded that the comman law doctrine hf abandonment has any applicatian in this
setting.
Ancnrdingly, we affirm the Department’s determination that the height and width
of the rooflnp sign frame (including the sign base} and the square inoiage cf the sign
face are limited "in the dimenaions dacumenied in the 1981 building peimii and sketch.
But we reverse the Department’s deierminatian that the sign’s lighting is limited to 816
watts.
FACTS
in 1926, the city of Seattle (City) issued a permit tn build an illuminated rooftop
Sign atop tha Cantennial Building in dawntown Seattle, There ham been several major
developmenw since 1941.
2 Far purposes of this. opinian, “sign frame” refers to the nieei lattice framework for
mauniing and suppcirting shuctural nigh wmpcnents. Unless otherwise indicated, the
Sign frame cities not innlude the 4.5 foot tall metal base that nemesis the sign frame to
the ronfinp. “Sign face” rgfers to the structural sign components that are mounted on or
attached to the Sign frame, We also distinguish between the structural components
constituting the ning face and the wordn or images of advertising cnpy ihat are displayed
fmm time to time on the Sign face;
This terminnlngy is consistent with the mdinances defining “structure” as “anything
censtrucied 0r erected on the ground nr any imprevement huiit up or composed of parts
joined together in name definite manner and affixed to the grennd, including fences, walls
anti signs,” and “sign” as “any medium including structural ancl component parts used
. . . for advertising,” Seattle Municipal Code 23.84Afl36 (SMC); “sign structure” as “lalny
simuture which suppnns hr is designed in support any sign,” and “dispiay nurface" a5
“nine area hi 3 sign structure used in display the advertising message,” former Seattle
Building Code {SEC} 31073 (2009); and “advertising can)!” as synonymuus with “[a]
message on [a] sign[.]” Fonner SEC 3107.4.2(2).
Neil ?095?~?~I!1 ‘l
zoning lawsfi” For example, most nouns have upheld ordinancea impnsing reawnable
phaseaout deadlines (amortizaiinn periods) inr eliminating nnncnnfcnning Simsturesfi2
Specifically, an nwner’3 right in rebuild a nonconfanning structure is gnvemed by
nrdinancefifi
With miner exceptions, the SMG cioes not use the term *‘nnncnnforming
structures” but defines the equivaient‘ phrase “nonmnforming in development
siendards” as a “structure . . . that met applicable develnprneni atandarcls at the time it
was built or entaialished, but that drives noi now ccnform in one or mere of the applicable
develapmeni standards?“ The SMC includes specific provisionn that gevern such
3‘ §fi 8A MCQUILMN. sugra, § 25216 at 192 (“The general ruie is that structural
nr substantial alterations (if nanconfnrming structures are prohibitad under zoning
laws.”); Eunice A, Eichelberger, Annotatinn, Alieraiim, Extengion, Reconsimciian, 9r
Repair of Nonconfnn‘rring Simoture or Structure flavored to Nancnnfmning Use as
Viclaiion 0f Zaning Grfiinanca, 83 A.L.R.4TH 275, § 2(3) (1983) (“A determination as in
whether an afierationg extension, recnnstruciinn, or repair Gf a nnnconicrming structure
. . . is permissible is dependent an, or is affected by, the particular pravisions cf the
amicable zoning animating”),
32 i? WiLLlAM B. 370%le 8:, JGHN W. WEAVER, WASHlNGTQN PRACTiCE: REAL
ESTATE: PRQPERTY LAW § 421, at 252 (2d ed. 2004) (“Mast decisions uphnld the phase—
nutic-*:c;lir1im.ies which has became a standard feature nf waning”); see also Ackerleg
Commn'ns, inc. v, City of Seattle, 92 Wash. 2d 905, SW 3-19, 602 P.2d 1177 (1979)
{uphelding an ordinance requiring removal of ouidnnr advertising signs wiihnut
campensaiinn after three— to sevenwyear amnrtizatinn parind); Village of Skokie v.
Walton an Demgsier, inc” “iii? Ill. App. 3d 299, 458 N,E.2cl 293; 296~97, 74 Ill. Dec. Y91
(1933) (approving a $ign ordinance requiring remnval after iwc~ to sevennyear grace
periad depending on angina] cost)”
'33 §§§ State ex rel, Edmnnd Mean Hatel inc. v. Ci of Seattle, 66 Wash. 2d 329,
337, 402 Rad 486 (1985) (applying an ordinance precluding reconstruction (if a building
nancnniorming as to heignim even if use as hotei or adult living facility is swimming).
3* SMC 23,84A‘026l The code does refer it: “nonconfonning structures” in
SMC 23‘42.112(A)(5), 1rr'hiezzl'i allciws renovations, repairs! or structural alieratians that
increase nnnconiermiiy “as specifically permitted far nonnonforming uses and
nancmferrning stmciuras elaewhere in this Land Use Bade."
i1
ND: 70Q57—?—l!l 2
ncnceniorming structures,
Two provisinns permit an awner to rebuild a nnncnnforming structure, The first is
limited tn structures “(resumed by an necessary to a residential use“ and has n0
applicatlcrn here‘35 The other provides that “[alny structure nonccnfurming to
develnpmeni standards that is destruyed by fire, act crf nature, or rather causes beyond
the flannel of the owner, may be rebuilt in the same or smaller caniiguratinn existing
immediareiy prior to the time the structure was rclenitrrnrerl3‘36 Bewuse there has not
been any destruction by fire, act nf nature, rrr other cause beyond the owner’s: control,
and the owner demniisheci the structures without a permit, the ewner here had n0 right
to rebuild the Sign frame nr sign face in pre~l§81 dimensions.
A separate prnvision ailnws repair ni a nonconfnnning structure but nut any
axpansinn or increase in nenconformity. “A structure nonconforming to development
standards may be maintained, renavated, repaired or atructurally altered but may not be
expanded er extended in any manner that increases the extent or noncuniennity er
creates additionai nenconfonnity [with exceptions that d0 not apply neural"? Further,
the plain meaning nf “repair” is “is resinre by replacing a part or putting ingeiher what is
turn 0r broken?” A repair does not extend in rebuilding in the original er pre~1981
dimensiansx
35 SMC 23‘42.112(B).
36 SMC 23.42.1’l2i0).
3" SMC 23.42r1lziA); see alas SMC 23.42.l06{l3)(1) (“A structure occupied by a
noncnnfnrming nnnresideniial use may be maintained, repaireri, renevateci or
structurally altered but shall nut be expanded 9r extended except as otherwise required
by law”).
33 WEBSTER’S THIRD NEW INTERNATIONAL DlCTlONARY 1923 (2002).
12
Mal ?0957B?-l!13
Here, the owner reduced the size of the rcofiup slng frame and Sign farm aver the
yeara, lrr 1975’ the cwrrer reduced the dlmensians of the sign face 19 3 261001 by 60
foot display surface and reduced the height cf the Sign frame.39 Based an the 1978
permit a «4 feet by 48 foot message center was added to the theheexlsfing 31ng frame
armature“ Must impurtantly, the 1981 permit reaulted in an illuminated Cameras. West
name and logo measuring 5 feet iall by 54.5 feet wide installed “on existing structure.”43
The sketch attached to the 1981 permit depicts the rap 43f the sign frame and lap of the
sign face as 30 feet abcwe the “rooflihe,” The permit and attached sketch alga included
an electronic: massage center Of 35 feet by 43 feet [mated a short distance beluw the
name and logo,
A repair of the corroded Mae! lattlce frame caulcl lnclucla a piece~f0r~piece
replacement of cormdecl steel mmponents but does not encompass rebuilding 10
dimensions larger than those permitted and appmsred by the Department in 1981‘ The
Sign laue’s size is also limited 1c: the 1981 dlmemions. Total Outdeor may nut rebuild
the sign frame or the Sign face 10 the pre~1981 dimensluns.
Total Ourduor comrands that the Grumman law abandunment ductrine extends to
noncunforming utmcthes used in coniunctiun with such nonwnfurming uses. We
dlgagreer
First, it is undisputed that “Fatal Qutdcur demolished the existing structures and
erected new sign structures without ubtaining required pannlts and cantinuecl its work ln
39 It ls unclear from the record whether the sign‘s 1975 reduction in height to 30
feet was measured hum the roof parapet, the 4.51901 high metal based attached to the
Sign frame structure, hr the roofline,
4‘3 GP 31238,
’13
No, 7095734314
vioiation at a posted stop~work order, Totai Qutdnor cites no authority that these
building code violatinns are excused by any commen law doctrine"
Secnnd, Washington’s; camrnan law abandnnment doctrine applies to
nonconfanning uses“ Specifically, the right tr) engage in a iagai nonconforming use
"may be lost by abandcnment 0r dincontinuance, but a party $5: claiming has a heavy
burden 0f turnoff“ Abandanment or discantinuanca dapends on two factors: “‘(a) [aln
intention to abandon; and (b) an overt act, 0r failure to act, which carries the impiication
that the nwner does nnt claim or retain any interest in the right in the nonmnforming
tastier?”2 Total Ouicinor mntends that the Department may not distinguish between
nonconfonning uses. and the nonconforming Structures affiliaiacl with man uses.
But “[tihe distinction between a: nonccnforming Lise cf land: and a ncnconforrning
buildingistructure is genuine and can his critical tinder ordinances 0r statutes that
prnvide aeparaie regulations far ‘nonconfcrming struatures.’”‘3 Further, nonconi‘anning
structures and nnnconforrning uses are analytically 5eparai6‘“ The Seattle nrdinances
4" 32m, 166 wii, App. at 2991
43 1g; (alteration in nriginall) {internal quotatinn marks nmitted) (queting Van Sant v.
Gm of Evergtt, 69 Wn. App. 541‘ 648, 849 RZd 12176 (1993)).
43 2 SALEM, sugra, § 12:11.
‘4 §§§ 3A MCQUiLLIN, § 25:182, at 21 (“[Ciouris try is keep these: issues
analyticaliy separate."); Vial if, Prawn Gig, 2039 UT App 122, 210 P.3d 947, 951-52
(“The city ardinances provide for nonconfnrmlng uses, nonmniorming structures.
noncnnforming lots, and other nnnccnfonniiies. These are ail differant” (citatimns
nmitiedi); James v. Planning Ed, {31‘ Marlbomugh, 203 A322! 626, 628, 609 N,Yi8.2d
9?;2 {1994) (holding that the city tardinances specifically distinguished between
nonmnion’ning was and nancnnionning structures); Conny of Lake v. Ccur’meg, 45'i
NW2d 338, 341 (Minn. App. 1999) melding that in equate a use exceptinn with a
structure exceptian ‘iortures" an ordinance’s “plain and ordinary meaning”).
14
No. 3’0957-7-lf‘l 5
an nnnconfnrrniiy include references to both “use” and “development?” but the code
separately defines and regulates nnncnnfnnning structures and nonwn‘lorming rises.la
Here, the nonnunfnrming use is advertising}? The use in distinct hem a structure
that may he used in accumplish that usei The cede includns separate prnvisions
gnverning rebuilding or repairing a structure that dunes not confnrm to development
ntanrlarrlrrfla The everlaps cited by Total Outdoor do not alter this fundamental and
genuine distinction.“
45 SMC 2342.102,
4‘5 “‘Use, nonconforming’ means a use of land in a structure that was lawful when
established and that dues not new canionn tn the use regulations of the zone in whinh it
is inhaled, or that has ntherwise been established an noncnnforming according in
section 23.n2i102 [delineating various means to entablish noncnnfunning statusl”
SMC 23.84Afl40 (emphasis added); see alsn Rhodfi-Zalaa & 35th inc“ ’4'. Snnhomlsh
Goring, 136 Whirl 1, 6, 959 RM 1l324 (19%) (“A nnnncrnforming use: is a use which
lawfully existed prior la the enactment nii a zoning unlinance, and whish is maintained
after the effective date cf ‘lhe ordinance, although it does nut comply with the {current}
zoning restrictinns applicable in the district in which it is situated?) SMC 23,42.'l12
marines an entirely separate definition governing “structures” that do nut cunlorrn in
develapment alandards, such as sign dimensiens and marten signs.
4"” it is undisputed that the nunccnfonning use is subject in the doctrine nf
abandcnmenti For example, the Department applied the unctrine or abanrlnnmenl to
conclude that the nwner is not restricted in inn-premises advsrlising because the awner
never intended in abandnn its right in line nonconfnnnlng use 9f nfi‘premises advertising.
45 SMC 23.42112.
49 See also gale ex rel, Miller v. Gain, 40 Wnflrl 2‘l6, 242 P.2d 505 (1952}
where the court held that the owner or a gasoline service slaliun was nnt entitled to a
building permit in rencnstrucl the existing service station by replacing a structure and a
canopy; which together covered 450 square feet, with a steel reinfnrced structure
covering 631 aquare feel. The caurt painted out. that the case law is practically
unanimnus that a nunconfnrrning building devoted to a nonconronning use cannot be
replaced with a new and larger nnnconl‘orming building even though it wnuld he devoted
to the same use. The noun: declared that the prnperty owner had no vested right in the
perpetuation of the use of her prnperty as a ganoline service station an would compel
the issuance of a building permit far a new and larger nonconforming building to make
that use effective.
15
No. 7095734316
Finaiiy, Total Quidonr‘s other arguments related tn abandnnmeni are not
persuasive:
~ Total Outdoor focuses on the SMC 23142111163 reference to a “iramewerk inr
deaiing with nnnccniorrnity that aiigws most nnncnnformities in continue,” But
8M6 23.42.1100 aiso recognizes that “fine redeveicpment of nanconiormities
to be more confarming to current code standards is a long term goal.”
- Tatai Outdoor cites Resema v, 0ng cf Seattle to argue Grumman law
abandonment principies appiy here?" W heid that the nonconfarming
right in use a Muse as a dupiex had net been abandoned because the
house’s basement unit “maintainiedl the structural capabiiity” tr) operate as a
separate unit?" Unlike the nonconferming duplax in Mr the awner here
demnlisned the rooftop Sign frame and Sign face,
- Total Quidmr cites three cuter-state cases to support its contention that
abandonment principle-s can apply tr.) nenannforming stmctures, But these
cases are not persuasive because they (in net directiy addres$ the question
befare U352
5‘7 166 Wash. App. 293, 269 R313! 393 [2012).
51 ii at 301),
52 89th Sir, Retail Mail LP v. Ugger Barb}: Zoning Hr’g Bd.‘ 2012 WL 86816?2
(Fax Commw, Mar; 1:2?3 2612) {unpubiisheci} (nonuse of a biliboard Sign far statutory
pericrd of dismnflnuame did not, by itself, establish an abandonment of that sign; the
sole iswe anaiyzed on appeal was the interplay between ciissontinuanne and
abanclnnment); I=issrfltr1rsgEntersL Imam an Beam, 132 Cal. App. 4th 1482, 34 03!. Rptr, 3d
490 (2605) (illegai addition of iliuminatiun to a nonconfanning use of an advertising sign;
reiecting the argument that the additinn 0f iiiuminatiun wag a voluntary abandonment 0f
the advertising displays and holding that nonuse of the sign was net an abandunmeni af,
the iandawner’s legai, nonccnfanning use; emphasizing the use sf advertising); 3M Nat’l
Adrien Ca. 2;. Ci of Tam a Curie Enforcement 3d,, 58? So. 2d 640 (Flier Gigi. Ct, App.
16
NO. 7095?~7sli‘l?
~ Total Outdcor argues the rights that vested when the simctures and use
became nanconferming determine the outnczme Of this dispute. But the use 01‘
advertising is mi foreclnsed here and the only rights at issue are thong of an
owner cf 3 nanmnforming structura. These rights are limited in the nude
provisions; gaveming the scape and extent of a nonconfnnning structure. We
find no suppcn in the land use nr building codes for allowing an owner if!
rebuild 6r “repair” a nonconfcnning Sign frame Cir sign face in prior
dimensicns mere than 30 years after reducing the size (if these structures.“
2 Finally, Total Uuiclnor highlights the pnrtinn of the Dapanment’s decisian that
“the size of the stiucmre and sign face that [existed] in 1975 was ahandcned
when the sign structure and face became smaller in 1981 and thus, more
M m
1991) (hnlding that: in the context 0i landownar’s attachment of a full-size madel
airplane to the tap of a nonmnfonning sign, “a prohibited increase in a nnnccnforming
use does not result in loss of the entire use, at least if tha landawner can return to the
status qua ante?) (emphasis added) (italics emitted}.
53 Tntal Guidoor cites to case law disctwsing an ewnei’s “vested rights” in a
nnncnnfnrming uses, such as McMilian v. King Chung, 161 Wash. App. 581, 591, 255 P.3d
739 (2011) (“‘Legal, nonconiarming uses are vested legal rightg’” (quelling First Pioneer
TradingCn. v. Pierce Chung, 146 Wn App. 636, 614, 191 P.3d 928 (moan); Rhod-As
Zalea. 136 WnZd all 6 ("The right in cantinue a noncnnfanning Lisa despite a zening
crdinahce which prohibits such a use in the area is $omelimes referred to as a
'protecied’ ur ‘vesied' right"). We: note the mncept ef vested rights in a nanconforming
use is mt precisely the same as an application of the Washington “vested rights
dnctrine.“ Si MgGuire, 144 WnMZd at 652 (“Nnnccnfnnning 11393 are treade alike
vesred pmpedy rights, and may net be. voided easily,” (emphasis added); The vested
rights doctrine applies; nnly to a narrow set 01‘ circumstances prescribed by statute for
building permit applicatiena, RCW 19.2?395m, and subdivisien applications,
RCW 58.110336). “[‘l'jhe vested rights doctrine is new atatutory.” Town of Wacdwag
v. Snahnmish Chung, “180 Wald 185, 173, 322 Pfid 121% (2014); see also Fetala Vill.
iiiirklanda LLC v. Chg 0f Kirkland, 183 Wn, App. 191,192, 334 Film 1143 (2014)
(“Washingtnn‘s vested righta dnctrine ariginated at common law but is now statutory”).
We have net been prnvidacl any compelling authnrity that an nwner has any right as to
the size of noncenfnrming Structures beyond thosa providad in statute or ordinance.
1?
N0. 70957—74118
conforming!“ But when read in context. this passing reference does not
reveal a concession by the Department that the common law abandonment
doctrine applies here.
Wattage Limitations
Finally, Total Outdoor contends the City erred when it determined that the
maximum wattage permitted for the sign was 816 watts. We agree.
in an apparent typographical error, the Department’s decision refers to section
11321, “Lighting and Motors,“ of the 2009 Seattle Energy Code to support its
determination that only 816 watts are permitted for the sign.55 But section 1132.1
relates to “fenestration requirements” that involve the “areas . . . in the building envelope
that let in light” and has nothing to do with “Lighting and Motors." It appears the City
intended to refer to section 1132.3 of the 2009 Seattle Energy Code, which is entitted
“Lighting and Motors.” But that provision is also inapplicable because it requires
compliance with current lighting standards only when 20 percent or more of the fixtures
are replaced “in a space enclosed by walls or ceiling-height partitions.” The rooftop sign
is not in a space enclosed by waits or partitions. The Department provides no authority
that the rooftop sign is subject to specific energy code wattage limitationsfie'
5“ CP at 869 (emphasis added).
55 CF’ at 874, 1113.
55 Because Total Outdoor replaced nonconforming exterior lighting, it appears the
“light and glare" standards of the respective zone where the exterior lights are located
do apply. gee SMC 23.42124; SMC 23,49,025.
18
N0. 7095?"?4219
CONCLUSlON
There are genuine disilnciiens behveen Hanconforming uses and nonconferming
fiructures in the Seattle crdinanaes. The actual dimensions cf the demalished sign
frame and aign face were net knawn with certaimy because of Total Guidoor’s failure ta
obtain a permit and its cantinuation cf wm'k in violation of the slop-wcrk larder: The
Department’s rasulting decisian t0 limit the sign frame and sign face to the dimensions
documented in the 198i permit and skatch was suppm‘ted by aufficient evidence and
was not dearly erroneous‘ But it was an erml‘ of law far the Department to conclude
that specific wattan limits apply,
We reverse the Department‘s determination that Total Guidonr i3 limited to 876
watts in conjunction with the roaficp sign; We affirm the erartmem’s other decisions.‘
Affirmed in part and reversed in part,
WE CONCUR;
19
N0. 7395?-7«ii3
Until 1975, a iarge 55 fem by 685 feet Sign3 advertised railreads.
In 193% the City adopted an ordinanhe prohibiting alt motion signs in the
downtawn zone from exageding 80 feet above the roofline Gr nearest parapet”
In i975, the Sign face was changed to a 26 font by 60 font display surface,“ used
tr: advertise Aiaska Airlines. The 191% permit reflects the sign frame was lcwered to BE!
feet “to make it conforming to existiing] sign code.”5
Effective Camber 243 1975, the Git); prohibited any roofing; signs in the downtawn
210113.
in i978, a 4 foot by 48 feet electrcrnic message center was aisn attacheci to the
sign iramat The 1978 permit refers to the “message center sign an existing structure."a
In 198i, the Department issued a permit authurizing the instaliation of new sign
componants in place of the 26 that by 60 foot Aiasita Airtines sign face. The 1981
3 The 1M1 permit does not indicate whether the 55 that by 68.5 fant dimensions;
refer to the size of the sign frame or the sign face, or whether the sign’s height wah
measurad abave the mat parapet, the 4,5 toot tail metai base, Cir the mofiine. gag
Clerk’s Papera (GP) at?31‘ (“Rewards at the sign face size and shape are tess ciear, but
[the Denartrnent] acknawledges that there ia 3 i941 permit . . . that gives dimensions of
55 feet by 68.5 feet. Height and width are not specified; and there is he specific
information about the frame siza or Sign face size: but presumably the Sign fame height
was 55 feet and width was 68.5 test, based on photcgraphs of the sign before: and after
WM 3’).
4 Lika the “[941 permit, the May 1915 permit does hat indicate whether the 26
feet by 6i) feet refers in dimensions of the fiigi’i frame or tha $ig|ii face. But the City
acknnwtedged in its Qctober 26, 2612 premised decisirm that “these dimensians
presumably refer to the sign face size? GP at 731,
5 CP at 85. it is unclear from the permit and associated documents whather the
sign frame wag lowered to 30 feet as measurad tram the met parapet, the tsp of the 4 t0
5 that tall metal base, or the moiiinei
5 CP at 94* The parties dispute whether the 19% changers had been nompieiad
prior to October 24, 1975. But the nutcrrme of this appeai wcuid be the same
regardless of whether the 55 mm by 68.5 that sign face and larger Sign frame remained
in pierce as at Qctober 24* 197'5.
No. 70957—7414
permit is the most recent permit for the rooftop sign. That permit allowed a 5 foot by
545 foot Cameras West name and logo to be mounted at the top of the Sign frame,
together with a 3.5 foot by 48 foot electronic message centerY mounted several feet
below the name and logo. Both were mounted “on [the] existing [sign frame] structure."3
A sketch attached to the 1981 permit depicts the top of the sign frame and the top of the
Cameras West name and logo portion of the sign face both at 30 feet above the
"moflinef"g
In November 201 “I. Total Outdoor. the current agent of the owner,10 removed the
Cameras West components and installed a new solid rectangular display surface
containing a holiday greeting.11 In December 2011, Total Outdoor requested a sign
registration number for the legal nonconforming rooftop advertising sign.12 While
waiting for the Department to respond to the request, Total Outdoor removed and
replaced the sign frame on the existing 4.5 foot tall metal base without obtaining a
permit. A department inspector observed workers removing the existing sign frame and
sign face and constructing a new sign frame. On January 31, 2012, the Department
7 Although the 1978 permit authorized the erection of a 4 foot by 48 foot message
center sign, the 1981 permit depicts the dimensions of the existing message center sign
as 3.5 feet by 48 feet. Compare CP at 94. with CP at 101.
30Pat311.
9 CP at 100-01. The sign face’s total area as measured by the 1981 permit was
440.5 square feet, which included both the 54.5 foot by 5 foot Cameras West name and
logo and the 3.5 foot by 48 foot electronic message center.
1" Our references to “owner” include the owner’s agents.
‘1 Although no dimensions are available, a photo reveals that the new display
surface covered most of the width and more than hatf the height of the sign frame.
CP at 34, 282.
12 gee SMC 23.55.014ir).
No, ?095?=7=i15
issued a $t9p“W0fk arder hemuse the existing “sign [frame] structure , . , hald] been
completely demolished and a max»: sigh, [frame] structure erected" without a permit.“
Without obtaining a permit, Tatal Outdoor then violated the stapwork order by installing
a new sotid, rectangular clisptay surface 20 feet high by 69 feet wide on the new Sign
frame displaying an art fer a camputer tablet: An inspectar uitimately measured the top
(If the sign frame, including the 4.5 font base, as 34 feet abme the risintlilheiw The haw
Sign frame was 56.5 feet wide, and the tth of the new 20 font by 60 taut display 5urface
was even with the top at the sign frame at 34 feet abave the roafiine, including the 4.5
foot base. In February 2012, the Department denied Total Outdoor’s. request t0
withdraw the stop-wart; meter, noting that Total Outclmr violated the building code by
failing ta Obtain required permits and by igmring the posted stop‘work order.
In respanse to Tmtal Outdoors request fur a sign registration humhar, the
Department confirmed that the owner had a valid nmmhfcrmihg use to engage in off-
premises ronflap advertising,
in response to whectioh notices issued by the Department, Tatal Gutdaor
asserted that it had merely made a piece-for-piece replacement Qf rusted steel
members making up the Sign frame lattice and that the new frame was exactly the sama
size as befare demetitian. The Department ahkhcwledged that it “may or may nat be
true” that the current sign frame and sign face are the same size as; immediately befors
Tatal Outdcor’s recent, work, but because the sign frame and Sign face were “remaved
and remnatruh’ted without first obtaining the necessary DPD permits, the actual
*3 GP at 386; see also former SEC 3167,4.i {“A permit issued by the building
aflicial is required befcre any Sign is erectedy re-erecated, constructed, painted, pasted,
applied, altered, structurally revised, 0r repaired, except as provided in thifi chapterr“).
N0. 7095?=7~l!6
dimensions of the rooftop sign structure am net kmer with wheiniyfi“ The
Department cchcluded “it is most reasanable to expect that the dimensions matched the
most recent permit issued [in 1981].”l5
Although "a nonccnformlng structure may be maintained, and a continuous
nonconfonhing use may be recognized ,” the Bepartment determined that the code does
not "prcvide a means to simply tear dawn and replace a rmfltop] Sign with a new and
larger siriJrsllure."l8 To determine whether the sign frame’s height and width had been
expanded, the Department principally relied on tha 1981 sketch. Became the wurk
performed under the 198i permit was approved in a final inspeciicn, the Department
reasoned that the work must have complied with the dimensions set out in the 1981
sketch. Therefore, the whites) sign "is limited in the sign frame size, overall height, and
sign face size” as depicted by the sketch atiashed la the 1983 permitma sign frame 30
feet high above the roofline including the 4.5 foot tall sigh basa, by 545 feet wide, and a
sign face (if 440.5 square feet,” The Deparimeht alas cancludecl that the rfioflop sign
is limited in 8‘16 waits for illumination
Total Outdaor appealed the Department’s final decisions it) the superior court.
The superiw court deniad Tctal Outdmr’s LUF’A petitions, and affirmed the
Department’s decisions.
Tibial Outdoor appeals.
i4 CF“ at 864.
’5 GP at 864.
‘6 l3? at 734.
W CP at 863.
Nu. 709573417
ANALYSIS
Standami cf Revisw
Under LUPA, we review the “finai determinatisn by a iocai jurisdictien’s. bcdy or
nfiicer with the highest levei of authority to make the deieminatiun” directly on the
administrative renvcirciii8 To prevail, Totai Outdeor must estabiish that the Depamhent
made a misiaka 0i law, that there was ihsufficiem evidence it} fiuppflfi the decision, air
that the decision was cleariy erraneous.“
The “mistake cf law” standaid appiies if the “Hand use deaisim is an erroneous,
interpretaticn of the law, after aiiowing for such deference as is due the construciioh of a
law by a iacai jurisdictien with expertise?” This mandala presents a questicm 01‘ law,
which wa review de mm,21
Under the “substantial evidence” standard, reiief is warranted if the “iand use
decisihn is mi supported by evidence that is substantiai when viewed in fight (if the
whole record befare the ccurt.”22 We ccnsider “ali (if the evidehce and reasanabie
inierenaes in the light most favorabie to the parity who prevailed in the highesit forum
that exercised famefinding authhrityf’23 This process. “entails acceptance of the
factfinder’s views regarding . . . the weight to be: given reasonabie but campeting
‘3 RCW 36.7DCi020(2); Lakesider Indu, .7 at. Thurman Cnun
894, 83 P.3d 433 (2004}.
‘9 ROW 36‘?OC,130(1); Rasema v. City (If Seattle, 166 Wm App. 293, 2915598, 269
P.3d 393 (2012).
2" RCW 36.?08.139(1)(b).
2‘ Abbey Rd. Gm” LLC v. City; of Bonney Lakg, 16? Wn.2d 242, 259, 218 PM
18C: (200?).
22 RCW 363001 30(1 )(c).
23 Abbay Rd., 167 Wth at 250*
, 119 Wn, App. 886,
Not ?0957—7-li&
infemncesimz" We must dgizermihe whether the recnrd contains “‘a sufficient quantity at
evidence to persuade a fair~mihded pelian 0f the truth or currectness hi the crder.’”25
The “dearly ermheous” standard supports relief if the “land use decisicm is a
clearly erroneous applicatian of the law to the ‘iahissf26 “A finding is clearly erroneous
when, althcugh there is evidance tn support it, the reviewing chart on the racerd is left
with the definite and firm conviction that a mistake has been ccmmitted.”27
Suficiesncy of the Evidence
First, we ftDCLIS an the factual disputes. There is rm dispute that the Department
agreed that the (miner has a legal hcnconfcrming use far off-premiSes motion
advertisian Total Outdoor argues that insufficient evidence gupports the Department’s
finding that its most recent wnrk increased the size of the Sign. Totai Dutdaar mntends
that: it made a piece-forepiece repair hf the sign frame and that the 1981 sketch is not
reliable in light {if the 2012 annstruction photos. revealing that the new sign frame is
exactly the same size as the sign frame it replaced, bath sitting atop the 4.5 font base.
But the Department expressly noted the ahtuai dimensions of the sign frame that was
dismantled are not known with certainty because Total Qutdeor dismantled tha existing
Sign frame without obtaining a permit, Additionally, the sufficiency of the evidence
2‘ Ci of Universi Place it, McGuire. 144 hith 649; 652, 30 P.3d 453 (20611)
(quctihg State ex rel. Li 3 8: Wm! B. Dicksen Ca. tr. Court inf Pigrce; 65 Wn. App, 614‘
618, 829 9211 21?(1992))1
‘25 Ci 7‘ 9f Redmmd v. 77,7ud Gm. in B , 136 Writh
38, 46, 959 R20! 1991 (1998) (qusting Caiiecad 3;. Wash. State Patrol, 84 Wn, App.
883* an 929 Rm 510 (19973).
3'5 RCW 36.700.13nhxd),
37 Wenatchee Sgcrtsmen Ass’n v. Gheian Chung, “Mt WmZd 169! we, 4 P.3d
123 (2000),:
No. 7095?~7~119
standard is extremely daferential to the fact finder. The Department may rely 0n the
evidence and all reasanabie inferences viewed in a light most favnrable to the
Department and may determine the weight to be given in reasnnabie but {trumpeting
ir‘rferem:;es;.2i Because the wnrk campieted under the 1981 permit received a final
inspecricn and approval, the Department is allowed the reascnabie inference that the
work would not have been approved unless it cemplied with the dimensialns depicted in
the 1981 permit and sketchwa total height of 30 feet abnve the roofline including the
4.5 fnnt tall Sign base. Phntns taken during the recent wnsiructien may nuggest that a
ccmplated section of the new frame on nne edge cf the sign frame matches up with the
height cf a sectian of the alti frame an the oihnr edge of the sign frame. But n0 precise
“befnre” measurements are available and the photns dc: n0! inciude a precise frame of
reference. Even accepting that the pricing may support a campeting inference that the
new sign frame is the same size as the Sign frame it replaced, the Department was
entitled to give greatar weight in the campeting reascnabie inference arising from the
final inspectinn and apprmral 0f the work sompleied under the 1981 pannii,
As tn the sign face attached to the Sign frame, it is undisputed that the Gurrent
nigh campnnenis exceed the 440r5 square rant Sign face approved in the 1931 permit
Total Qutdoor argues that the 1981 mnfiguraticn is net the proper base in meaaure
against anti that changes in advertising mp3; from time tn time cannnt alter {ha
permissible dimensinns (if the Sign. But Total Outdnor itseii cites the building made
reference in "advertising mpy” or “raspy” as synenymnus with a "message on . . g [a]
38 mg. 144 Wn.2d at 652.
Nth ?095?~?—li‘l 0
sign[.]"‘*’9 Changes reducing the size of the Sign campanents physicaiiy mounted on M
attached to the Sign frame are not mere changes in the words and images constituting
the mensage an a sign. For example, if the owner cf a 20 foot by 60 foot biiibnard
changes the words and images can that dispiay surface, that is a mere change in
advertising copy. But if the» owner remnvas the biiibnard and repiarses it with a new
struniure that is haif the size? 10 feei by SC: feet, that eonsiitutes a change in the signs
structurai camponent, whethar or n01: the new smalier nunace is used in dismay a
message thai is identical to 0r different from tha message that had been dismayed on
the iarger surface, Here, the miners changes tn the Sign face were net mere changes
to the message on the sign; changes to the structural components attached to the Sign
frame aitered the nanmnforming structures.
Changes to Nancmfoming Structures
Aithough it is undispuieci that Tana! Quidcor may engage in the legai
nonconforming use of rooftop advertising, this appeal turns on the miners changes in
the nanoonforrning mofinp sign frame and sign face structures made without required
permits and in vioiaiion of a stopawork Order,
A zcning change can render a structure nancnnfarming‘ for exampie, as to
setbacks, int size‘ and other dimensicn standards?“ An owner‘s right in maintain, aiier,
rebuild, or repair a nonconfnrrning structure is subject in the restrictions imposed by
29 Appeiiant’s Opening Br, at 3 (aiteraiians in original) (citing farmer
SEC 31Q7.4.2(2)).
3‘3 8A EUGENE MCQUiLLIN, THE LAW OF MUNiCIPAL CORPORATIQNS § 252182” .3121
{3d ed. rev, 2012); 2 PATRicIA E. SALKIM, AMERiCAM LAW 01“ Zanrna § 12.11 (5th ed.
2014).
10