Posted by: Patricia Salkin | September 28, 2016

WA Appeals Court Upholds Denial of Proposed Billboard Along Scenic Highway

Sun Outdoor sought a permit from the Department of Transportation of Okanogan County, Washington to erect a billboard along State Route 97 a designated scenic highway/”scenic system.” The proposed location was zoned as a “Minimum Requirement District” (MRD). The Department denied Sun Outdoors’ application, finding that the proposed location was not zoned for “predominantly commercial or industrial uses,” and that the stated purpose of the MRD zone was to “maintain broad controls in preserving rural character and protecting natural resources. The trial court affirmed the decision and Sun Outdoor appealed.

On appeal, the Court of Appeals of Washington affirmed stating that the Scenic Vistas Act was enacted “to promote the public health, safety, welfare, convenience and enjoyment of public travel and to attract visitors to the state by conserving the natural beauty of areas adjacent to the interstate system, and of scenic areas adjacent to state highways.” Under the Scenic Vistas Act, chapter 47.42 RCW, billboards are generally prohibited along scenic roads, but an exception applies if (1) the area is zoned by the county for predominantly commercial and industrial uses and (2) the area contains development which is visible from the highway. When this two-prong test is met, the area is no longer part of the “scenic system” and billboards are permitted.

The term “predominantly” is not defined in the Act. The plain meaning of “predominate” requires a comparison of equivalent categories of use. Because the applicable zoning designation allowed broad categories of uses and prohibited very few categories of uses, no particular category of use predominates. In analyzing whether a particular use predominates in a multiuse zone, it has to compare equivalent categories of uses. Here, the proposed billboard location was not within an area zoned as a specific commercial or industrial district. Rather, it is zoned to permit a wide variety of uses, including commercial and industrial uses. Because the MRD allowed such a broad range of uses and prohibits only a very few uses, there was no particular category of use that predominated.

Sun Outdoor Advertising, LLC v. Washington State Department of Transportation, 2016 WL 4506787 (WA App. 8/29/2016)

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