HomeMy WebLinkAboutOff-Site Sign Hearing - COM Letters / Memos U0/U5/ZUU4 10:ZU r'A.I ZUU 447UZ15 1 002/008
1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY
2 Phil Olbrechts,Hearing Examiner
3
RE: Rick Engley FINDINGS OF FACT, CONCLUSIONS
4 OF LAW AND FINAL DECISION.
5 Appeal of Administrative TO BE KEPT IN T H E
Determination on OfFsite 6 Sign as Allowed Use j X�,► L 'L F
7
8 INTRODUCTION
9 The appellant appeals a determination by Mason County staff that a an off-site sign
10 within in an urban growth area is prohibited by the Mason County Zoning Code. The
Examiner sustains the decision of Mason County staff,but at least partially on the
11 basis that the Examiner has no authority to invalidate county regulations. Mason
County staff are advised that its off site sign prohibition is constitutionally suspect
12 and it should confer with the its prosecuting attorney, to determine whether the ban
should be enforced. O
13
14 ORAL TESTIMONY,
15 Robert Fink testified on behalf of Mason County and summarized the staff report.
16 Michael Murphy represented the appellant, presented the arguments outlined in his
17 brief entitled "Appeal Application", and submitted several photographs of off site
signs located throughout Mason County.
18
19
20 Exhibit 1: June 17,2003,staff report.
21 Exhibit 2. April 30,2003 letter from Robert Fink.
22 Exhibit 3: Development regulations sections 1.03.010 — 1,03.023, including
23 figure 1.03.020.
24 Exhibit 4: Definition pages 248-250, "Illustrated Book of Development
Definitions"by H.Moskov itz and C.Lindbloom.
25
Appeal of Administrative Determination
on Shoreline Exemption
P. 1 Findings, Conclusions and Decision
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1 Exhibit 5: Belfair Village Plan 1999, cover and pages 11-12.
2 Exhibit 6: Mason County Comprehensive Plan Policy A(i)(b).
3
Exhibit 7 Part of Shelton Code Sections 20.38.020 and 20.38.090.
4
Exhibit 8 hick Engley and Engley Construction application. received May
5 143,2003_
6 Exhibit 9 Conditions associated with Case No: COM2003-0005.
7
Exhibit 10: Conditions associated with Case No.COM2003-0007.
8
Exhibit 11: Conditions associated with Case No. COM2003-00048.
9
10 Exhibit 12: Mason County Building Permit Application COM2003-00045.
11 Exhibit 13: Mason County Building Permit Application COM2003-00047.
12 Exhibit 14: Mason County Building Permit Application COM2003-00048_
13 Exhibit 15: Mason County DCD Receipt No. 62122.
14 Exhibit 16: Mason County DCD Receipt No_ 62119.
15 ,
Exhibit 17: Mason County DCD Receipt No_ 62121.
16
Exhibit 18: Approval letter from Washington State Department of
17 Transportation dated February 25,2003.
18 Exhibit 19: Photograph"Let Safety Rule In,All You Do%
19
Exhibit 20: Photograph"G, Smoking Really Does Make You StiW".
20
21 Exhibit 21: Photograph"Golf'.
22 Exhibit 22: Photograph"Lakeside Bistro".
23 Exhibit 23: Photograph"Verle's''.
24 Exhibit 24: Photograph,billboard exhibit.
j
25
Appeal of.Administrative Determination
on Shoreline Exemption
p.2 Findings, Conclusions and Decision
(PA0550090.DOC;1/99925.001111/1 i
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Exhibit 25: Photograph"Gets More Done Than Most Husbands",
1
2 Exhibit 26: Mason County Rural Zoning Regulations.
3 Exhibit 27: June 16, 2003 Planning Commission Work Target for sign
workshop.
P
4
FINDINGS OF FACT ,
5 ,
6 procedural:
1 7
w filed
s appeal as t. The appellant is Rick En ey. Mr. Engley pp. A elian PP �
$ on May 14, 2003, specifically appealing a determination made by Robert Fink in an
April 30, 2003 letter(Exhibit 2) advising that the appellant was not allowed to place
g off-site signs in the Shelton and Belfair Urban Growth Areas.
10 2. Hearin . The hearing on this matter was held on July 22, 2003 in the
Mason County Board of Commissioners Meeting Chambers.
11
12
CONCLUSIONS OF LAW
13
Procedural:
14
15 1• Authority of Hearin Etrr,_ xaminer. MCC 15.11.010(A) provides the
$xaminer with the authority to review and issue a final decision upon all appeals of
16 administrative interpretations and decisions made under the Mason County
Development Regulations.
17
1 s Substantive:
19 2. Figure 1.03.020 Use Matrix Governs Permitted Uses in Urban Growth
Areas. As indicated in MCC 1.020.010, Mason, County is divided into three types of
20 areas for purposes of regulating development activity. These areas are approximately
2X the same as zoning districts under more commonly used zoning codes. The three
types of areas within Mason County are delineated as "Urban Growth Areas",
22 "Resource Lands" and "Rural. Lands". Figure 1.03.020 identifies permitted uses
within Urban Growth Areas and Resource Areas. This table specifically provides that
23 Waal land uses are treated outside the permitted use matrix, in Chapter 1.04 MCC.
24 3. Off-Site Silas Are Not Allowed by the Permitted Use Matrix of Fi;rure
25 1.03.020. Although signs are specifically identified and addressed in the Rural Lands
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p.3 Findings, Conclusions and Decision
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Section, as indicated in the paragraph above, permitted uses within Urban Growth
1 Areas acid Resource,Area Lands are governed separately by the Permitted Use Matrix
2 of Figure 1.03.020. Signs are not specifically identified within the Permitted Use
Matrix. Staff state that signs qualify as "accessory uses", which are specifically
3 allowed in the Permitted Use Matrix. An accessory building or use is defined, in
relevant part,by Chapter 1.06 MCC as any building or use which is subordinated to,
4 and serves a.principal building or principal use. Staff interpret this to allow on-
premises signs, which they construe subordinate to and serving the principal use or
5 building of a lot, but prohibiting off premises signs because they are not subordinate
6 to or serving the principal building or principal use_
7 The staff interpretation is consistent with several court cases from other jurisdictions,
where off-premises signs not specifically addressed in zoning codes are prohibited
8 through similar definitions of accessory use because the signs are not subordinate to
or serve a principal use or building. See. 81 ALR.3d 486, 'Validity and Construction
9 of State or Local Regulation Prohibiting Off-Premises Advertising Structures, § 16
10 Construction of Particular Words and Phrases: (c) accessory use; Silver v. Zonina
Board of Adjustment, 112 A.2d 84 (1955); Landau Advertising Co. v. ZoningBoard
1 I of Adiusttne u 128 A.2d 559 (1957), Ashburn v. Zoning Board of Review of the Ci
of Pawtucket(1969).
12
Given the deference to be afforded to staff interpretations of the zoning code as well
13 as the consistency of this interpretation with the decisions cited Supra, the Examiner
14 finds that the Permitted Use Matrix Figure 1.03.020,prohibits off premises signs.
15 4. Noneonfornlin Off Premises Suns. The appellant has submitted a
substantial number of photographs evidencing any significant number of off site signs
16 dispersed throughout Mason County, including in areas where the Use Matrix would
17 not pezrnit off premises signs. To the extent the appellant is offering this evidence to
show an inconsistent interpretation of the Mason County Zoning Code, the evidence
18 is not compelling since Mason County has only recently adopted its development
regulations and it is not clear from the record whether or not these signs were
19 installed before or after off premises signs became prohibited under the Use Matrix.
Staff testified that the application of the current development regulations to off -
20 premises signs is a matter of first impression. Rick Mraz may have mistakenly
21 informed WSDOT that there was no off-premises sign prohibition,but Iris supervisor,
Bob Fink, has found otherwise and in his position as Planning Manager more
22 accurately represents the staff interpretation. Given these factors, the existence of
other nonconforming or even of illegal off premises signs is not relevant to how the
23 Use Matrix should be applied to the appellant's proposed off premises signs.
24 To the extent that the appellant is alleging, selective-enforcement on the part of the
25 County, the appellant must show more than mere selectivity and enforcement, but
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on Shoreline Exemption
p.4 findings,Conclusions and Decision
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must show"deliberate or purposeful discrimination based on an unjustifiable standard
1 such as race, religion or other arbitrary classification". Burlin on v. Kutzer, 23 Wn.
App, 677, 681 (1979)_ In this case, there is no evidence of an unjustifiable standard.
2 employed to enforce the prohibition on off promises sighs.
3
5. Authority of Hearing Examiner to Invalidate County Regulations- One of
4 the arguments submitted by the appellant is that the Mason County regulations are
unconstitutional to the extent that they prohibit off-premises signs. The Examiner has
5 no authority to invalidate county regulations. The Examiner, as an- administrative
6 agency, is a creative of the legislature without inherent or common law powers and
may exercise only those powers conferred either expressly or by necessary
7 implication. Chaussee v Snohomish County Council, 38 Wn. App. 630, 636 (1984)
(hearing examiner does not have the authority to rule upon issues of equitable
8 estoppel; examiner "strictly limited" to determine whether code applied to subject
property). Mason County Code gives the Examiner no express authority to invalidate
9 county ordinances, nor would it be reasonable to find an implied power to do so-
However,However, the Examiner is bound by common law principals and statutory
construction in interpreting Mason County's signs regulations, which includes the
11 requirement that statutes be interpreted in a manner which preserves their
constitutionality, see Swanson v. White,83 W.2d 175, 183 (1973).
12
5. First Amendment "4verbreadth". During the hearing the Mason County
13 planning Manager testified that the applicability of the staff's off premmises
14 interpretation to political and religious signs was not relevant because,that issue was
not before the Examiner. In actuality it is a relevant issue,because of the initial First
15 Amendment overbreadth doctrine. 1-0 the overbreadth doctrine, an ordinances is not
valid if it includes within its proscriptions protected expression. Seattle v. Mi
16 Movers, Inc., 112 Wn. App. 904, 910 (2002). This means that if the appellant can
17 persuade a court that Masan County's sign regulations prohibit protected political or
other speech, it can have those regulations invalidated even if the appellant him or
18 herself does not propose a sign with protected speech. Given the Examiners
responsibility to formulate an constitutionally consistent interpretation, the Examiner
19 should attempt to formulate an interpretation that would not prohibit protected
speech, even if that is not the type of speech proposed by the appellant.
20
21 6' Consistency of Use Matrix with speech protected by first amendment. As
noted previously, staff has formulated a reasonable and defensible interpretation of
22 "accessory use", wherein on-premises signs are allowed and off-premises signs are
prohibited. However, under the First Amendment overbreadth doctrine, an inquiry
23 must be made as to whether this interpretation would violate the First Amendment in
prohibiting protected speech. The Examiner finds that although the accessory use
24 definition does prohibit off-premises signs,it does not prohibit protected speech, such
25 as political or religious statements_ The expression of political or religious
Appeal of Administrative Determination
on Shoreline Exemption
P. 5 Findings, Conclusions and Decision
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statements, unlike off-
premises advertising, are a reflection of the viewpoint of the
X owner or possessor of the property and therefore are "subordinated to" and serve
2 principal building or use of the property. Off site advertising is subordinate to or
serves a building or principal use that is not located on the premises. Given that the
3 definition of "accessory use" does accommodate protected speech, there is no
constitutional problem with the regulation in terms of prohibiting protected speech-
4 Further, since the meaning of accessory use is relatively clear and can be derived
without twisting the plain language of its definition, there is no "unbridled discretion
5. of government officials" involving the interpretation that would serve as an
6 unconstitutional prior restraint.
7 7. Absence of Documented Substantial Government Interest in Erohibitin
Off Premises Sips. The appellant raised a compelling argument that Mason
8 County's prohibition of off premises signs is not sufficiently justified by a purpose
clause or other legislation evidencing a substantial government interest to justify the
9 prohibition. One of the requirements for restricting commercial speech is that the
10 restriction must "seek to implement a substantial governmental interest". Central
Hudson Gas &Electrical Corp. v. Public Service Commission 447 U.S. 557, 563-66
11 (1980). Aesthetics and traffic safety represent substantial governmental interest that
justify bans on billboards. See, Desert Outdoor Advertising. Inc. v. Outdoor Media
12 Crrou Inc.. 103 F.3d 814, 819 (1996). However, a municipality must document this
purpose within its legislation to justify the restriction. As noted by the Desert
13 Outdoor Advertising:
14 In so far as billboards are concerned,the burden on the city
1s of.meeting the first part of the Central Hudson test
[implementing a substantial govenunental interest) is not a
16 great one. Had the city enacted the ordinance with a clear
statement of purpose indicating the City's interest in
17 eliminating the hazards posed by billboards to pedestrians
18 and motorists and in. preserving and improving its
appearance, the City would have demonstrated that the
19 ordinance sought to implement substantial governmental
interest, and would thus have satisfied the first prong of the
20 Central Hudson test.
21 Desert Outdoor Advertising,Inc.. 103 F.3d at 819,Fly 2_
22
Mason County has not offered any legislative enactment justification for the off-
23 premises sign ban and nor is one readily discernable from the Mason County Code.
Where is no interpretation of Mason County's zoning restrictions that can
24 accommodate this potential constitutional infirmity. if the Matrix is construed as not
25 addressing signs,then the standards of MCC 1.03.020 must be employed to ascertain
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p. 6 Findings, Conclusions and Decision
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whether an off premises sign is "appropriate" for a particular area. The Examiner
1 agrees with the appellant that the standards for determining"appropriate"uses are too
2 vague when employed as a prior restraint on free speech. Ignoring the "appropriate"
standard entirely, however, goes beyond the scope of statutory construction and
3 constitutes an amendment or invalidation of the standard., which is beyond the
Examiner's authority. The Examiner is left with only two options: (1) subjecting the
4 placement of signs to the constitutionally suspect "appropriate' standard of MCC
1.03.020; or (2) applying an off-site sign ban that is apparently lacldng in requisite
5 legislative justification. Given the deference afforded to staff interpretations, the case
6 law supporting the staff interpretation, and the reasonableness of the staff interpretation, the Examiner finds that off-site signs are banned because they do not
7 qualify as accessory uses. This finding should not in any way be construed as a
finding that the off-premises ban is constitutional, and staff should consult with their
8 attormey to determine if they should continue enforcing the ban.
9 DECISION
10 Off premises signs are prohibited in the Urban CYrowth Areas of Mason County_ The
11 interpretation of county staff in this regard is sustained and the subject appeal is
denied.
12
Dated this � day of August,2003.
13 J
1.4 Phil Olbrechts
Mason County Hearing Examiner
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Appeal of Administrative Determination
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p. 7 Findings,Conclusions and Decision
{PA0550000.DOC,1199925.00111 III i
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Notice of appeal of adminlstrati_v"�p Affidavit of Publication
decision and Notice of Public Hearin.,,,
Notice Is hereby given that Rick Eng-
ley has filed an appeal of an administra-
tive decision by Mason County Depart- SS.
ment of Community Development(DCD) COUNTY OF MASON
staff.
After review of three Commercial
Building Permit applications(COM2003-
00045, -00047, 00048) to construct ad- Julie G. Orme being first duly swom
vertising signs, Mason County staff ap-
proved for Issuance the commercial per- on oath deposes and says that she is the clerk
-
mits including a condition that stated the of THE SHELTON-MASON COUNTY JOURNAL,a weekly newspaper.That said news-
signs could only reflect onslte advertis-
ing.Mr.Engley contested that condition. Paper is a legal newspaper and it is now and has been for more than six months prior to the
DCD staff wrote a letter of administrative date of the publication hereinafter referred to,published in the English language continu-
determinatlon to Mr. Engley describing ously as a weekly newspaper in SHELTON,Mason County,Washington,and it is now
the basis for the condition. Pursuant to and during all of said time was printed in an office maintained at the aforesaid place of
Title 15 of the Mason County Develop- publication of said newspaper.That the said SHELTON-MASON COUNTY JOURNAL
ment Code, specifically Section was on the 9th day of August,1941,approved as a legal newspaper by the Superior Court
15.11.010, Mr. Engley Is appealing that of said Mason County.
determination.
.Project locations: 22421 NE State That the annexed is a true copy of a No ice of Appeal of
Route 3, Belfair,23530 NE State Route 3,
Belfair, 950 SE State Route 3, Shelton. Admin. Decision and Notice Of Public
Parcel Vs 12332-50-001107 12329-43-
90175,and 32030-14-00010,respectively. Hearing — Rick Engley
Date of application of appeal: May 14,
2003. as it was published in regular issues(and not in supplement form)of said
A HEARING will be held by the Mason One
County Hearing Examiner on the appeal newspaper once each week for a period of
on Tuesday,July 22,2003 at 1:00 p-ft 11T consecutive weeks,commencing on the
the County Commissioners Chambers,
Bldg.1,411 N.5th Street,Shelton,WA. 10-Eh_day of July ,20 03 ,and ending on the
A written request for intervention
must be submitted to the Hearing Exam- 10 t h day of Ju 1 Y ,20 0 3 ,both dates inclusive,
finer at least five(5)days prior to the day and that such newspaper was regularly distributed to its subscribers during all of the said
on which the hearing begins. The Inter-
vention request must state the basis for period.That the full amount of the fee charged for the
the intervention and how the person,
group, organization, corporation, or foregoing publication is the sum of$
other entity making the request is affect-
ed by or interested in the appeal thereof.
Please contact Robert Fink of the Mason
County Department of Community Devel
opment at(360) 427-9670, ext. 366, with Subscribed and swom to before me thi 1 0 th day of
any questions on this development and
appeal. July ,20
7/10 It
Notary Public in for the State of Washington
ResidingY Shelton,Washington
WASN;�a�`,�� My commission expires