Posted by: Patricia Salkin | November 27, 2016

WA Court of Appeals Holds Proposed Billboard Location was Not Predominantly Commercial

Sun Outdoor Advertising appealed the denial of a permit to erect a billboard along a designated scenic highway in Okanogan County. The Department of Transportation found that the proposed location was not zoned for “predominantly commercial or industrial uses,” noting the purpose of the MRD zone was to “maintain broad controls in preserving rural character and protecting natural resources.” Under the Scenic Vistas Act, chapter 47.42 RCW, billboards were generally prohibited along scenic roads, but an exception would apply if: the area was zoned by the county for predominantly commercial and industrial uses, and the area contains development which was visible from the highway. Sun Outdoor argued that because the majority of the itemized permitted uses in the applicable zoning designation could be categorized as commercial or industrial in nature, those uses “predominate.”

At the outset, the court noted that the proposed billboard location was not within an area zoned by the County as a specific commercial or industrial district. Instead, the proposed location was zoned by the County as a “Minimum Requirement District” (MRD), which permitted a wide variety of uses, including but not limited to commercial and industrial uses. The court found that because the MRD allowed a broad range of uses and prohibited only a very few uses, there was no particular category of use that predominates; therefore, commercial and industrial uses did not predominate. Furthermore, the court determined that contrary to Sun Outdoor’s argument, merely counting up the number of itemized permitted uses in the MRD that were commercial or industrial in nature was not a true measure of what uses predominate. Accordingly, the court held that Sun Outdoor failed to establish any error of law under the APA standards, and affirmed.

Sun Outdoor Advertising, LLC v. Washington State Department of Transportation, 381 P.3d 169 (WA App. 2016)

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