Sun Outdoor Advertising, Llc v. Washington State Department Of Transportation , 195 Wash. App. 666 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SUN OUTDOOR ADVERTISING, LLC, No. 75231-6-1
a Washington limited liability company,
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WASHINGTON STATE DEPARTMENT 3X m -
OF TRANSPORTATION, PUBLISHED OPINION 181 Wash. App. 18,
21, 325 P.3d 209 (2014).
8 Smith v. Emp't Sec. Dep't, 155 Wash. App. 24, 32, 226 P.3d 263 (2010).
9 Life Care Ctrs. of Am., Inc. v. Dep't of Soc. & Health Servs., 162 Wash. App. 370,
375, 254 P.3d 919 (2011).
10 Jdj accord City of Seattle v. Allison. 148 Wash. 2d 75, 81, 59 P.3d 85 (2002)).
11 Life Care. 162 Wash. App. at 375.
12 RCW 47.42.010. The Act dovetails with the Federal-Aid Highway Act, whose
express purpose for controlling outdoor advertising is "to protect the public investment in
such highways, to promote the safety and recreational value of public travel, and to
preserve natural beauty." 23 U.S.C.A. § 131(a). Under the Federal-Aid Highway Act,
signs "may be erected and maintained within six hundred and sixty feet of the nearest
edge of the right-of-way within areas adjacent to the Interstate and primary systems
which are zoned industrial or commercial under authority of State law, or in unzoned
No. 75231-6-1/4
maintain a sign which is visible from the main traveled way of the interstate system, the
primary system, or the scenic system."13 The definition of "scenic system" includes:
[A]ny state highway or portion thereof outside the boundaries of any
incorporated city or town designated by the legislature as a part of the
scenic and recreational highway system except for the sections of
highways specifically excluded in RCW 47.42.025 or located within areas
zoned by the governing county forpredominantly commercial and
industrial uses, and having development visible to the highway, as
determined by the departments
Thus, when this two-prong test is met, the area is no longer part of the "scenic system"
and billboards are permitted. Only the first prong of this test is at issue.15
The term "predominantly" is not defined in the Act. "Undefined words in a statute
are accorded their ordinary meanings."16 The dictionary defines "predominant" as
"having superiorstrength, influence, authority, or position: CONTROLLING,
DOMINATING, PREVAILING."17
Sun Outdoor's premise is that to determine whether an area is predominantly
zoned for any particular use turns on counting up the number of specific uses allowed in
a particular zoning designation. It claims that because "95 ofthe 97" itemized permitted
uses in the MRD zone can be categorized as "plainly commercial or industrial in nature,"
those uses predominate.18
commercial or industrial areas as may be determined by agreement between the
several States and the Secretary." 23 U.S.C.A. § 131(d).
13 RCW 47.42.030.
14 RCW 47.42.020(9)(c) (emphasis added).
15 We agree with Sun Outdoor that the actual uses in place at the proposed
billboard location are not part of the first prong analysis.
16 Gradinaru. 181 Wash. App. at 22.
17 Webster's Third New Int'l Dictionary 1786 (2002).
18 Appellant's Br. at 16.
No. 75231-6-1/5
But the plain meaning of "predominant" requires a more carefully calibrated
comparison of uses permitted. If every use is permitted, then no particular use
predominates. Similarly, in analyzing whether a particular use predominates in a multi-
use zone, we have to compare equivalent categories of uses.
Here, the proposed billboard location is not within an area zoned by the County
as a specific commercial or industrial district. Rather, it is zoned to permit a wide variety
of uses, including but not limited to commercial and industrial uses. For example, in
addition to a long list of commercial and industrial uses, the MRD expressly permits
agricultural (dairy farms, farms, ranges, pastures, nurseries, and orchards), residential
(single-family and multifamily), governmental (fire and police facilities, maintenance
shops, warehouses, and offices), and recreational (athletic fields) uses.19 Other varied
uses are allowed with a conditional use permit or a binding site plan (churches,
manufactured home parks, schools, RV parks, and campgrounds).20
In this setting, broad categories such as "commercial and industrial" uses should
be compared with equivalent broad categories of uses such as "agricultural, residential,
governmental, and recreational." The question comes into focus if permitted uses are
contrasted with prohibited uses in the MRD. The only prohibited uses appear to be
"nightly rentals" and auto storage of more than five disabled automobiles.21 Because
the MRD allows such a broad range of uses and prohibits only a very few uses, there is
19 Okanogan County Code 17.05.020.
20 Okanogan County Code 17.05.030.
21 Okanogan County Code 17.05.050.
No. 75231-6-1/6
no particular category of use that predominates. Commercial and industrial uses do not
predominate.22
Although the Department looked to the broad and general purpose for the MRD
zoning designation in its decision, we do not find the statement of purpose helpful.
Okanogan County Code 17.05.010 provides, "The purpose of the minimum requirement
district is to maintain broad controls in preserving natural character and protecting
natural resources." The broad statement of purpose does not reveal whether a
particular use predominates. In this setting, the plain meaning of "predominantly" in
RCW 47.42.020(9) is determinative.
Because Sun Outdoor fails to establish any error of law under the APA
standards, we affirm.
WE CONCUR:
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22 Contrary to Sun Outdoor's argument, merely counting up the number of
itemized permitted uses in the MRD that are commercial or industrial in nature is not a
true measure of what uses predominate. For example, if instead of merely listing
single-family dwellings and multifamily dwellings, the County itemized bungalows, huts,
cottages, chalets, lodges, log cabins, duplexes, condominiums, and town houses as
uses permitted in the MRD, the residential category of uses would not predominate to
any greater extent.