HomeMy WebLinkAboutLUA98-102a CIT' OF RENTON
I t ,
u. a City Clerk
Jesse Tanner,Mayor Marilyn J.Petersen
Octobre 20, 1998
Paul R. Taylor
1000 Second Avenue, 38th Floor
Seattle, WA 98104
Re: Appeal of Hearing Examiner's Recommendation; AK Media/NW Signage;
AAD-98-102
Dear Mr. Taylor:
At the regular Council meeting of October 19, 1998, the Renton City Council adopted the
recommendation of the Planning and Development Committee to deny the referenced
appeal and affirm the decision of the Hearing Examiner. A copy of the report is enclosed
for your records.
If I can provide additional information or assistance, please feel free to call.
Sincerely,
Marilyn . ersen
City Clerk
cc: Mayor Jesse Tanner
Council President Bob Edwards
Jana Huerter, Development Services Division
Fred Kaufman, Hearing Examiner
1055 South Grady Way - Renton, Washington 98055 - (425)430-6510 / FAX(425)430-6516
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RENTON CITY COUNCIL
Regular Meeting
October 19, 1998 Council Chambers
Monday, 7:30 p.m. MINUTES Municipal Building
CALL TO ORDER Mayor Jesse Tanner led the Pledge of Allegiance to the flag and called the
meeting of the Renton City Council to order.
ROLL CALL OF BOB EDWARDS, Council President; KATHY KEOLKER-WHEELER; DAN
COUNCILMEMBERS CLAWSON; KING PARKER; TIMOTHY SCHLITZER; RANDY CORMAN;
TOM NELSON.
CITY STAFF IN JESSE TANNER,Mayor; JAY COVINGTON,Chief Administrative Officer;
ATTENDANCE LAWRENCE J. WARREN, City Attorney; MARILYN PETERSEN,City
Clerk; GREGG ZIMMERMAN,Planning/Building/Public Works
Administrator;JIM SHEPHERD,Community Services Administrator; DEREK
TODD, Finance Analyst; COMMANDER DENNIS GERBER, Police
Department.
APPROVAL OF MOVED BY EDWARDS, SECONDED BY CORMAN, COUNCIL
COUNCIL MINUTES APPROVE THE MINUTES OF OCTOBER 12, 1998, AS PRESENTED.
CARRIED.
PROCLAMATIONS A proclamation by Mayor Tanner was read declaring the month of October,
October, 1998 —"National 1998 to be "National Arts and Humanities Month"in the City of Renton, and
Arts &Humanities Month"encouraging residents to participate in and celebrate the cultural riches our
community has to offer. MOVED BY EDWARDS, SECONDED BY
KEOLKER-WHEELER, COUNCIL CONCUR IN THE PROCLAMATION
AS READ. CARRIED.
October 18-24—"YWCA A proclamation by Mayor Tanner was read declaring the week of October 18-
Week Without Violence" 24, 1998, to be"YWCA Week Without Violence"in the City of Renton, and
urging all residents to join in making violence prevention a personal
commitment. MOVED BY EDWARDS, SECONDED BY KEOLKER-
WHEELER,COUNCIL CONCUR IN THE PROCLAMATION AS READ.
CARRIED.
APPEAL Planning&Development Committee Chair Keolker-Wheeler presented a report
Planning& Development regarding the appeal of A.K. Media/Northwest. The Committee heard this
Committee appeal at its meeting of October 15, 1998. The Committee reviewed the appeal
Development Services: AK filed by the representative for A.K. Media/Northwest, and heard arguments
Media/NW Appeal re: "Tri- from its attorney,Paul Taylor. Having carefully reviewed the Hearing
Vision"Billboards Examiner's decision in light of the briefing material supplied by Mr.Taylor
A-pk-'ct s- 1°Z and his arguments, and realizing that the Committee must find an error in fact
or law, the Committee recommended that the full Council deny the appeal of
A.K. Media/Northwest and affirm the decision of the Hearing Examiner.
MOVED BY KEOLKER-WHEELER, SECONDED BY SCHLITZER,
COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED.
ADMINISTRATIVE Chief Administrative Officer Jay Covington reviewed a written administrative
REPORT report summarizing the City's recent progress towards goals and work
programs adopted as part of its business plan for 1998 and beyond. Items noted
included:
The City's website has earned a national award from the City-County
APPROVED BY
CITY COUNCIL
Date
PLANNING & DEVELOPMENT COMMITTEE
COMMITTEE REPORT
October 19, 1998
Appeal of A.K. Media/Northwest
Referred October 12, 1998)
The Planning and Development Committee heard this appeal at its meeting of October
15, 1998. The Committee reviewed the appeal filed by the representative for A.K.
Media/Northwest and heard arguments from its attorney,Paul Taylor. Having carefully
reviewed the Hearing Examiner's decision in light of the briefing material supplied by
Mr. Taylor and his arguments, and realizing that the committee must find an error in fact
or law, the committee recommends to the full Council that the appeal of A.K.
Media/Northwest be denied and the Hearing Examiner's decision be affirmed.
ek ' (Akezti
Kathy Kjker-Wheeler, Chair
Timothy J. Sc it r, Vice-Chair
O
Dan Clawson, Member
iu
gA"---
ket-eqirfrt-it-7-1
October 5, 1998 Renton City Council Minute Page 328
whenever a jurisdiction's Comprehensive Plan and its Zoning Code conflict,
the latter overrules the former.
CONSENT AGENDA Items on the consent agenda are adopted by one motion which follows the
listing.
Appeal: AK Media/NW, Tri- City Clerk submitted appeal of Hearing Examiner's decision denying the
Vision Billboards, AAD-98- appeal of an administrative determination prohibiting the use of"tri-vision"
102 billboard signs; appeal filed on 9/24/98 by Paul R. Taylor,representing AK
Media/NW. Refer to Planning&Development Committee.
Parks: Downtown Plaza and Community Services Depai tinent recommended that the Downtown Plaza and
Gateway Parcels,Naming as Gateway parcels located north and south of Logan Ave. S. and west of S. Third
Official City Parks St. in the downtown,be officially designated as City parks. Refer to
Community Services Committee.
Annexation:Hoquiam Ave NE Economic Development,Neighborhoods and Strategic Planning Department
113th to 116th) requested a public meeting be set on 10/26/98 to consider a Notice of Intent
petition to annex approximately 12 acres located east of Hoquiam Ave.NE
142nd Ave. SE)between SE 113th and 116th Streets. Council concur.
Planning: Urban Growth Economic Development,Neighborhoods and Strategic Planning Department
Boundary&Countywide recommended acceptance of amendments to the Urban Growth Boundary and
Planning Policies Countywide Planning Policies as proposed by the Growth Management
Amendments for Cougar Mt Planning Council. The amendments pertain to the Cougar Mountain Regional
Park Wildland Park. Council concur.
Finance: Timekeeping Finance and Information Services Depai ti,ient recommended approval of a
Software,KRONOS contract in the amount of$121,536 with KRONOS,Inc. for software to provide
timekeeping information and distribution. Refer to Finance Committee.
HR&RM: Reclassifications Human Resources&Risk Management Department recommended the
12 Positions) reclassification of 12 positions, as follows: CIP Manager, grade MR-26 to
grade 28; Golf Course Operations Specialist, grade 7 to grade 8; Office
Assistant III, grade 5,to Data Base Systems Technician, grade 7; Principal
Human Resources Analyst, grade MU-23,to Human Resources Manager,grade
30; City Clerk, grade MR-26, to City Clerk/Cable Manager, grade 30; Deputy
City Clerk, grade EH-15 to grade MZ-17; Records Management Specialist,
grade 7,to Records Management Coordinator, grade 11; Court Clerk, grade 7,
to Judicial Specialist, grade 8; Lead Court Clerk, grade 10,to Lead Judicial
Specialist, grade 11; Vehicle&Equipment Supervisor, grade MR-26, to Fleet
Manager, grade 30;Utililty Locator/Inspector, grade 12 to grade 14; and Court
Services Director, grade MR-26 to grade 30. Total 1998 cost: $18,671. Refer
to Finance Committee.
Transportation: Kennydale Transportation Systems Division requested authorization to proceed with
Sidewalk Design(N 30th& design of walkways along Park Ave.N. and N. 30th St. in accordance with
Park) Alternatives "B"and"C"that were presented at a public open house on
September 15th. Refer to Transportation Committee.
Public Works: East Kennydale Utility Systems Division recommended a temporary closure of NE 24th St.
Sewer Interceptor between Aberdeen and Blaine Avenues NE, the intersection of Aberdeen Ave.
Construction, Temporary NE and NE 24th St., and Aberdeen Ave.NE between NE 24th and 20th Streets
Closure of Aberdeen&NE from October 13th to November 9th to allow construction of the East
24th Kennydale Sewer Interceptor. Council concur. (See page 331 for resolution.)
MOVED BY EDWARDS, SECONDED BY CORMAN, COUNCIL
APPROVE THE CONSENT AGENDA AS PRESENTED. CARRIED.
CIT. „'F RENTON COUNCIL AGE1\-1 BILL
AI#: 8.0.. •
SUBMITTING DATA: FOR AGENDA OF: 10/12/98
Dept/DivBoard City Clerk
Staff Contact Marilyn Petersen AGENDA STATUS:
Consent XX
SUBJECT:Public Hearing
Appeal of Hearing Examiner's Decision denying appeal of Correspondence...
Administrative Determination prohibiting use of"tri-vision" Ordinance
billboard signs Resolution
File No. LUA-98-102,AAD Old Business
EXHIBITS: New Business
A. City Clerk's letter Study Session
B. Appeal(9/24/98) Other
C. Hearing Examiner's Report&Decision(9/10/98)
RECOMMENDED ACTION: APPROVALS:
Refer to Planning and Development Committee. Legal Dept
Finance Dept
Other
FISCAL IMPACT: N/A
Expenditure Required Transfer/Amendment....
Amount Budgeted Revenue Generated
SUMMARY OF ACTION:
Appeal filed by Paul R.Taylor,representing AK Media/NW,accompanied by required fee received on 9/24/98.
co CIT OF RENTON
tt `-.City Clerk
Jesse Tanner,Mayor Marilyn J.Petersen
September 28, 1998
APPEAL FILED BY: Paul R. Taylor
Representative for AK Media/NW
RE: Appeal of Hearing Examiner's decision 9/10/98 denying Appeal of
Administrative Determination prohibiting use of"tri-vision"billboard signs;
LUA-98-102, AAD
To Parties of Record:
Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the
hearing examiner's decision on the Administrative Determination prohibiting use of"tri-
vision"billboard signs has been filed with the City Clerk.
In accordance with Renton Municipal Code Section 4-8-16.B.,within five days of receipt
of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the
appeal.
NOTICE IS HEREBY GIVEN that the written appeals and other pertinent documents
will be reviewed by the Council's Planning and Development Committee. The Council
secretary will notify all parties of record of the date and time of the Planning and
Development Committee meeting. If you are not listed in local telephone directories and
wish to attend the meeting,please call the Council secretary at 425 430-6501 for
information. The recommendation of the Committee will be presented for consideration
by the full Council at a subsequent Council meeting.
Attached is a copy of the Renton Municipal Code regarding appeals of hearing examiner
decisions or recommendations. Please note that the City Council will be considering the
merits of the appeal based upon the written record previously established. Unless a
showing can be made that additional evidence could not reasonably have been available
at the prior hearing held by the Hearing Examiner, no further evidence or testimony on
this matter will be accepted by the City Council.
For additional information or assistance, please feel free to call me at 425 430-6502.
Sincerely,
Marilyn J1P: .en
City Clerk
Attachment
200 Mill Avenue South - Renton, Washington 98055 - (425)235-2501 /FAX(425)235-2513
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I. Appeals: Table 4, Land Use Permit Proce-
that additional evidence is required, the 4-8-17: COUNCIL ACTION: dures, lists the development permits
Council shall remand the matter to the Any application requiring action by the reviewed by the City and the review author-
Examiner for reconsideration and receipt of City Council shall be evidenced by minute entry ity responsible for open record appeals,closed
additional evidence.The cost of transcription unless otherwise required by law. When taking record appeals and judicial appeals.The City
of the hearing record shall be borne by the any such final action,the Council shall make and has consolidated the permit process to allow
4-8-16: APPEAL: Unless an ordinance applicant. In the absence of an entry upon enter findings of fact from the record and conclu- for only one(1)open record appeal of all per-
providing for review of decision of the
the record of an order by the City Council sions therefrom which support its action. Unless
Examiner requires review thereof by the
authorizing new or additional evidence or otherwise specified,the City Council shall be pre- mit decisions associated with a single devel-
Superior Court, any interested party aggrieved
testimony, and a remand to the Hearing sumed to have adopted the Examiner's findings opment application.Appeals pursuant to this
by the Examiner's written decision or
Examiner for receipt of such evidence or tes- and conclusions. section are intended to comply with the Land
recommendation may submit a notice of appeal timony,it shall be presumed that no new or Use Petition Act,Chapter 36.70C RCW.
to the City Clerk upon a form furnished by the additional evidence or testimony has been A. In the case of a change of the zone classifica-
City Clerk, within fourteen (14) calendar days accepted by the City Council, and that the tion of property(rezone),the City Clerk shall 1. Time For Initiating Appeal.An appeal to
from the date of the Examiner's written report. record before the City Council is identical to place the ordinance on the Council's agenda Superior Court of a land use decision, as
The notice of appeal shall be accompanied by a
the hearing record before the Hearing Exam- for first reading. Final reading of the ordi- defined herein,must be filed within twenty
fee in accordance with the fee schedule of the iner.(Ord.4389,1.25-93) nance shall not occur until all conditions, one(21)days of the issuance of the land use
City.(Ord.3658,9.13-82) restrictions or modifications which may have decision. For purposes of this section, the
A. The written notice of appeal shall fully,
E. The consideration by the City Council shall been required by the Council have been date on which a land use decision is issued is:
clearly
p
the
be based solely upon the record,the Hearing accomplished or provisions for compliance
substantiallearlyanderror(s) inthoroughlyfact orspecifycif whichc Examiners report,the notice of appeal and made to the satisfaction of the Legal Depart-a. Three(3)days after a written decision
additional submissions by parties. went. is mailed by the City or, if not mailed,the
exist in the record of the proceedings from
which the appellant seeks relief. Facsimile
date on which the local jurisdiction provides
F. If,upon appeal of a decision of the Hearing B. All other applications requiring Council notice that a written decision is publicly
filing of a notice of appeal is authorized Examiner on an application submitted pursu- action shall be placed on the Council's agenda available;
pursuant to the conditions detailed in
ant to Section 4-8-10A and after examination for consideration.(Ord.3454,7-28-80)
Renton City Coda Section 4-8-11C. (Ord. of the record,the Council determines that a b. If the land use derision is made by ordi-
4353,6-1-92) substantial error in fact or law exists in the C. The action of the Council approving,modify- nance or resolution by the City Council,
B. Within five(5)days of receipt of the notice
sit-
record, it may remand the proceeding to ing or rejecting a decision of the Examiner ting in a quasi-judicial capacity,the date the
Examiner for reconsideration,or modify, or shall be final and conclusive,unless appealed body passes the ordinance or resolution;or
of appeal, the City Clerk shall notify all
reverse the decision of the Examiner accord- within the time frames established under
parties of record of the receipt of the Section 4-36-71 (Ord.3725,5-9-83;amd.Ord.c. If neither a or b of this subsection
appeal.Other parties of record may submit ingly.
4660,3-17-97) applies,the date the decision is entered into
letters in support of their positions within G. If,upon appeal from a recommendation of the the public record.
ten(10)days of the dates of mailing of the Hearing Examiner upon an application sub-
appecation of the filing of the notice of witted pursuant to Section 4.8-lOB or C,and 4-8-18: SEVERABILITY: 2. Standing.Those persons with standing to
appeal, after examination of the record,the Council The provisions of this Ordinance are bring an appeal of a land use decision are
determines that a substantial error in fact or hereby declared to be severable. If any word, limited to the applicant,the owner of prop
C. Thereupon the Clerk shall forward to the law exists in the record,or that a recommen- phrase, clause, sentence, paragraph, section or erty to which land use decisions are directed,
members of the City Council all of the
dation of the Hearing Examiner should be dis- part in or of this Ordinance, or the application and any other person aggrieved or adversely
pertinent documents,including the written regarded or modified,the City Council may thereof to any person or circumstance,is declared affected by the land use decision or who
decision or recommendation, findings and remand the proceeding to the Examiner for invalid,the remaining provisions and the applica- would be aggrieved or adversely affected by a
conclusions contained in the Examiner's
reconsideration, or enter its own decision tion of such provisions to other persons or circum- reversal or modification of the land use deci-
report,the notice of appeal,and additional upon the application pursuant to Section 4-8- stances shall not be affected thereby, but shall sion.The terms "aggrieved' and`adversely
letters submitted by the parties. (Ord. 10B or C. remain in full force and effect,the Mayor and City affected"are defined in RCW 36.70C.060.
3658,9-13-82)Council hereby declaring that they would have
H. In any event,the decision of the City Council ordained the remaining provisions of this Ordi- 3. Content Of Appeal Submittal. The con-
D. No public hearing shell be held by the City shall be in writing and shall specify any mod- nance without the word,phrase,clause,sentence, tent,procedure and other requirements of an
Council. No new or additional evidence or ified or amended findings and conclusions paragraph, section or part or the application appeal of a land use decision are governed by
testimony shall be accepted by the City other than those set forth in the report of the thereof,so held invalid. Chapter 36.70C RCW which is incorporated
Council unless a showing is made by the Hearing Examiner. Each material finding herein by reference as if fully set forth.
party offering the evidence that the shall be supported by substantial evidence in
evidence could not reasonably have been the record. The burden of proof shall rest 4. Other Appeals. Appeals to Superior
available at the time of the hearing before with the appellant.(Ord.3658,9.13-82) Court from decisions other than a land use
the Examiner. If the Council determines decision,as defined herein,shall be appealed
within the time frame established by ordi-
nance.If there is no appeal time established
by an ordinance,and there is no statute spe-
cifically preempting the area and establish-
ing a time frame for appeal, any appeal,
whether through extraordinary writ or other-
497 wise,shall be brought within twenty one(21)
City of Renton days of the decision.(Ord. 4587,3-18-1996;
amd.Ord.4660,3.17.97)
AF,P AL
HEARING EXAMINER
WRFITEN APPEAL OF HEARINC —:AMIINER'S DECISION/RECOMMENDATION TO RENTON CITY COUNCIL.
FILE NO. LUA-98-102 , AAD CITY OF RENTON
3,'3OF.m.
APPLICATION NAME; daS.s P s.The undersigned interested party hereby files its Notice of Appeal from the decision or recommen ono the Use
Hearing Examiner,dated September 10 1998 RECEIVED
1. IDENTIFICATION OF PARTY CITY CLERK'S OFFICE
APPELLANT: REPRESENTATIVE(IF ANY);
Name: AK Media/NW Nam:. Paul R. Taylor
Address: Address:_ 1000 Second Avenue, 38th Floor
Seattle, WA 98104
Telephone No. Telephone No. 2 0 6/6 2 2-2 0 0 0
2. SPECIFICATION OF ERRORSJAttach additional sheets,if necessary),
Set forth below are the specific errors or law or fact upon which this appeal is bawd:
FINDING OF FACT: (Please designate number as denoted in the Examiner's report)
No. Error, See attached.
I
Correction:
CONCLUSIONS:
No. Error: See attached.
t
Correction:
OTHER:
No. Error: See attached.
Correction:
3. SUMMARY OF ACTION REQUESTED: The City Council is requested to grant the following rcliefi
Attach explanation,if desired)
X Reverse the decision or recommendation and grant the following relief: Petitioner should be permittEl
Modify the decision or recommendation as follows:
to use t r i-vision display
Remand to the Examiner for further consideration as follows:
surface on sign structures.
Other
1"---//1 /1,-September 24 , 1998
j/fsr)
Appellant/Representati Signature Date
Paul. R. Taylor
NOTE: Please refer to Title IV,Chapter 8,of the Renton Municipal Code,and Section 4-8-16,for specific procedures.
hcappcal.doc
Appendix to Appeal of Hearing Examiner Decision
in AK Media/NW Signage Appeal File No. LUA98-102, AAD
I . Background.
AK Media owns a number of outdoor advertising signs in
the City of Renton. Those signs are maintained on standardized
structures comprised, in simple terms, of either (i) two I-beam
posts with cross bars, or (ii) single poles with a support bar
extending at a right angle from the top of the pole. HED at 3 .1
These structures hold and support removable display surfaces to
which the advertising copy is affixed.
The sign structures are designed to permit easy
changing of the display surfaces without affecting the integrity
of the structure or requiring any structural alterations . To
change the display surface, it is simply unbolted from the sign
structure and replaced.2 This is done routinely for maintenance .
Installation of a tri-vision display surface is done the same
way. The existing display surface is unbolted from the structure,
the tri-vision surface put in its place, and the bolts reinserted
and tightened. The process requires no alteration to the
structure . HED at 2 .
II . The Dispute .
AK Media wishes to use so-called "tri-vision" display
surfaces in place of flat display surfaces on certain of its
structures . Tri-vision surfaces are composed of triangular slats
which rotate, thus presenting three periodically alternating
messages . HED at 3-4 .
The City told AK Media that the use of tri-vision
display surfaces was not allowed under the City' s Sign Code . Ex.
2 . The City correctly concluded that AK Media' s advertising signs
are a non-conforming use and that under the City Code, non-
conforming uses cannot be "structurally altered. " HED at 3 . The
City was incorrect, however, in contending that the use of tri-
vision display surfaces as opposed to single surfaces somehow
constitutes an impermissible structural alteration. Accordingly,
AK Media appealed to the Hearing Examiner.
III . The Hearing Examiner' s Decision.
The Hearing Examiner affirmed the administrative
decision, holding that :
1
As used herein, HED refers to the Hearing Examiner' s
decision in this matter, a copy of which is attached as Ex. 1 .
2
HED at 2 .
The replacement of a plain surfaced sign
with a tri-vision sign or surface would
result in a sign which has been
structurally altered. " That is clearly
not permitted [by the Renton Municipal
Code] .
HED at 6 .
In reaching this conclusion, the Hearing Examiner
reasoned that even though "display surface" is defined separately
from "sign structure, " in the City' s sign code (HED at 4) a
change to the display surface nevertheless constitutes a
structural alteration. HED at Conclusion Nos . 7, 8 .
IV. Specification of Errors :
A. Finding of Fact No. 4 .
In Finding No. 4 , the Hearing Examiner found that the
manner in which existing display surfaces would be replaced by
tri-vision surfaces was "not known. " But as the decision itself
explains, the replacement of single-face display surfaces with
tri-vision surfaces involves nothing more than unbolting the
single-face surface and bolting in the tri-vision surface .
B. Conclusion of Law Nos . 11, 12 :
The Hearing Examiner found that the replacement of a
single-face surface with a tri-vision surface constitutes an
impermissible structural alteration. Thus, the "staff ' s"
conclusion to this effect did not misconstrue the Code . As
detailed below, this is clearly erroneous .
V. The Use of Tri-Vision Display Surfaces Does Not
Constitute a Structural Alteration, and Thus the
Hearing Examiner' s Decision Was Clearly Erroneous .
The issue is whether the use of a tri-vision display
surface rather than a single flat surface somehow constitutes a
structural alteration. Under the City' s Code and under the law,
it plainly does not .
A. The Restriction on Structural Alterations Does Not
Apply to Display Surfaces .
At the outset, the Code only bars "structural"
alterations . Renton Code § 4-20-8 (A) (10) (c) ; HED at 5 . The City
took the position that a change in the display surface of a sign
is a "structural change, " contending that :
2
The sign face itself is part of the sign
structure . The structure is not limited
solely to the steel pole in the ground
or the major beams .
See Ex. 2 .
The Hearing Examiner concurred. HED at Conclusion No.
8 .
The City' s and the Hearing Examiner' s position is
directly contradicted by the Sign Code, which makes clear that a
sign "structure" does not include the display surface .
The Code defines a sign structure as :
Any structure which supports or is
capable of supporting any sign as
defined in this Code . A sign structure
may be a single pole and may or may not
be an integral part of the building.
Renton Code § 4-20-2 .
The Code then distinguishes between the sign structure
and the display surface, making clear that they are two distinct
elements :
DISPLAY SURFACE: The area made
available by the sign structure for the
purpose of displaying the advertising
message .
Renton Code § 4-20-2 .
Given the express distinction in the Code between "sign
structure" and "display surface, " the restriction on alterations
to the sign structure clearly does not apply to the display
surfaces . Any contrary conclusion renders the different
definitions of the two phrases meaningless . This is not
permissible under the long-standing tenet of statutory
construction which requires that meaning and effect must be given
to every word in a statute . See, e .g. , Dennis v. Department of
Labor & Indus . , 109 Wn. 2d 467, 745 P. 2d 1295 (1987) . A
construction which renders any words superfluous or meaningless
is erroneous . Id.
The fact that the restriction on structural alterations
does not bar changes to the display surface is underscored by the
City' s acknowledged practice of permitting AK Media to remove and
replace single face structures . HED at 6 .
3
The Hearing Examiner' s decision leads to potentially
absurd results . Assume, for example, that a bolt on a sign
structure needs replacing. Under the Hearing Examiner' s
rationale, an impermissible structural alteration would occur if
AK Media used anything but an identical bolt . If the bolt were
thicker, longer, or stronger, it would constitute a structural
alteration.
Finally, it is important to note that the City
presented no evidence, and the Hearing Examiner made no finding,
to the effect that tri-vision, as opposed to single display
surfaces, have any deleterious effects . And indeed, unless one
is watching the tri-vision panel at the exact moment the message
changes, it is visually indistinguishable from a single face
surface . Thus, the Hearing Examiner' s decision appears to favor
linguistic gymnastics over any reasoned policy analysis .
B. Any Doubts Must Be Resolved in AK Media ' s Favor.
To the extent there is any doubt about the meaning of
the Code (and there is not) , the law is clear that all such
doubts must be resolved in AK Media ' s favor. First, zoning laws
are in derogation of the common law and must strictly construe
against the government . See, e .g. , Pearson v. Evans, 51 Wn. 2d
574 , 576 , 320 P. 2d 300 (1958) .
Second, non-conforming uses can be upgraded, enhanced,
and modernized even in the face of restrictions on alterations .
This principle was illustrated in Keller v. Bellingham, 20 Wn.
App. 1, 578 P. 2d 881 (1978) , affirmed, 92 Wn. 2d 726 , 600 P. 2d
1276 (1979) .
3
In Keller, Georgia Pacific maintained a non-
conforming chlorine plant in Bellingham. It wished to make
certain improvements to the plant, including adding six new
cells" , i .e . , large chemical treatment units . The Bellingham
City Code prohibited the enlargement or rearrangement of non-
conforming uses, including the chlorine plant . Id. at 3 .
Notwithstanding the ban on enlargement or rearrangement for the
non-conforming uses, the court held that the additional cells
were permissible . In language particularly applicable here, the
court explained that :
O] ne entitled to a nonconforming use
has a right to . . . modernize and
employ improved instrumentalities in
connection with such use .
Keller, 20 Wn. App. at 10, quoting 8A E. McQuillan, Municipal
Corporations § 25 . 200 (3d ed. rev. 1976) .
3
Copy attached as Ex. 3 .
4
The court went on to explain that :
Thus, for example, in mining, quarrying
and similar types of uses, the
introduction of new, mechanized devices
and equipment is not an enlargement or
extension of the use, but merely a more
effective method of carrying it on.
Id.
Here, the tri-vision display surfaces are simply a
modernized, and more effective, method of carrying on the
existing use, i . e . , off-premise advertising.
VI . Conclusion.
Both the Sign Code and the long-standing principles of
zoning law support AK Media ' s position. The Hearing Examiner' s
decision is incorrect, and should be reversed.
5
September 10, 1998
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION
4. 1‘:.,
APPELLANT: Paul Taylor
Appeal of Administraive Determination
File No.: LUA-98-102,AAD
SUMMARY OF APPEAL: Appeal of Administrative determination prohibiting use of"tri-
vision" billboard signs.
PUBLIC HEARING: After reviewing the Appellant's written request for a hearing
and examining the available information on file,the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The following minutes are a summary of the August 25, 1998 hearing.
The official record is recorded on tape.
The hearing opened on Tuesday,August 25, 1998, at 10:30 a.m. in the Council Chambers on the seventh floor
of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner.
The following exhibit was entered into the record:Exhibit No. 1: Yellow file containing the appeal,
proof of posting and publication, and other
documentation pertinent to the appeal.
Parties present: Representing AK Media NW
Paul R.Taylor
1000 Second Avenue, 38th Floor
Seattle, WA 98104
Representing City of Renton
Zanetta Fontes
1055 S Grady Way
Renton,WA 98055
The Examiner explained that the appeal was an administrative appeal held pursuant to Ordinance 3071 and was
the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for
reconsideration if the parties are not satisfied with the decision. He stated that the appellant had the burden of
demonstrating that the City's action was erroneous, and would have to show clear and convincing evidence that
the City's determination was incorrect. At that point the City could respond, if they chose to do so.
EXHIBIT 1
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 2
Mr.Taylor stated that AK Media maintains a number of sign structures in the City of Renton. On some of
those sign structures AK Media wants to replace flat display surfaces with what are called tri-vision display
surfaces. The replacement of flat display surfaces with tri-vision display surfaces involves no alteration
whatsoever to the structure. Appellant replaces flat display surfaces in the City of Renton all the time for
changing the sign and for maintenance, and they are not doing anything different than they have always done
and feel they are allowed to do. The fundamental issue is there is no alteration to the structure which holds up
the display surface. He further stated that the owner of a nonconforming use has the right to modernize that
use and improve or employ improved instrumentality. He stated that this is no different, for example,than if
they wanted to use bolts that had a higher tension or a higher strength than what currently exists on the
billboard or on the sign structure.
Frank Podany, 3601 6th Avenue S, Seattle, Washington 98134,testified on behalf of the appellant. He is the
regional real estate manager of AK Media NW, and is responsible for 2,300 sign structures located in 108
municipalities from Bellingham, Washington to Eugene, Oregon. He stated that the signs used in Renton are
basically of two support structures, one a monopole and the second an I-beam. Both are steel columns in
concrete in the ground. On top of these columns are either a torsion bar or post-tops. The display surface sits
on deck arms or horizontal bars. In order to change the display surface, it is unbolted from the sign structure
and replaced. This is done routinely for maintenance and to change to a tri-vision display surface. A tri-vision
display surface is simply bolted to the structure, with no alteration to the structure.
On cross-examination, Mr. Podany stated that when a display surface is changed, it is unbolted, lifted off and a
new one put in place. The entire surface, including the frame, is removed. All that remains at this point is the
post-tops and the structure that holds the post-tops in place. In order to turn the tri-vision pieces,there are
gears and a belt powered by a small electric motor. There is no motor in the existing current flat display. On
the tri-vision units that spin,there are approximately 20 slats per side,with a pivot point at the top and bottom.
Jim Hanson, Development Services Director, City of Renton, 1055 S. Grady Way,Renton, Washington 98055,
stated that the City believes that the display surface that is being changed or taken down and put back up is a
structure. He explained the different code definitions for structures which the City looks at in determining its
decision. The replacement of a single faced display by a tri-vision unit with an electrical component and
pieces that will actually pivot is considered a change in the integral parts of the framed unit that gets replaced.
Responding to questions by Mr. Taylor, Mr. Hanson stated that the issue here was whether this was a structural
change, not just a change in the display surface. He further stated from the code that signs in existence may be
maintained, but not expanded, moved or structurally altered. He agreed that the focus here is on the display
surface and nOt the sign structure,that there is a structural change between a flat surface sign and a proposed
tri-vision structure.
Closing arguments were given by the parties and their comments reiterated their previous statements.
The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The
hearing closed at 11:10 a.m.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 3
FINDINGS.CONCLUSIONS & DECISION
Having reviewed the record in this matter,the Examiner now makes and enters the following:
FINDINGS:
1.The appellant, Paul Taylor for AK Media Northwest(hereinafter AK Media), filed an appeal of an
administrative determination that replacing single-faced display signs with tri-vision signs was not
permitted.
2.AK Media owns a number of outdoor advertising signs in Renton. These signs are considered "off-
premises" signs, not immediately located on or closely associated with the business or item being
advertised. These signs are on support structures consisting of either of two configurations. One
structure consists of two parallel upright I-beams with cross bars. The other is a single pole with a
perpendicular support bar. Both types support removable display surfaces on which advertising copy isaffixed.
3.The appellant apparently periodically removes the display surface from the supporting structure for
maintenance in which display or advertising copy remnants and paste, etc.are removed. When one
such face is removed for cleaning, another is placed up.
4.It would appear that the appellant in some fashion not revealed by the record indicated that they would
be replacing single-faced/single message signs with a sign capable of displaying in turn,three separate
messages on what is called a tri-vision sign.
5.James C. Hanson, Director of Development Services, issued administrative determination on June 5,
1998, directed to Terry Sandblast, Governmental Affairs Manager of AK Media Northwest, indicating
such tri-vision replacements were not allowed. The record does not show specifically what generated
this correspondence.
6.The letter from Hanson stated:
Subject: DISPLAY SURFACE CHANGES"
The City of Renton has always considered the changes in the face of the sign that you
proposed as a structural change. The sign face is part of the sign structure. The
structure is not limited solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors,the type of change you propose
is not allowed by our sign code."
7.The appellant in its support of its appeal conceded that the signs are non-conforming uses
correspondence dated August 12, 1998 at Page 2):
The City correctly concluded that AK Media's advertising signs are a non-conforming
use and that under the City Code, non-conforming uses cannot be'structurally altered."
8.The appeal by AK Media was filed on June 18, 1998 and was timely filed. Its main points are:
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 4
The decision bars the use of so-called "tri-vision" faces on billboard structures in the
City of Renton. Tri-vision faces are made of triangular slats which periodically rotate,
thus presenting three alternating messages on billboard faces."
There is nothing in the Renton Municipal Code which bars tri-vision billboard faces.
The billboard structures themselves are legal non-conforming structures and use. The
installation of the tri-vision panels on the structures does not expand either the
structures or the use."
9.The appellant claims that changing the surface from "plain"to tri-vision is not a "structural change."
10. The Sign Code,Title 4, Chapter 20 contains the following definitions applicable to this appeal (Section
4-20-2):
ANIMATED SIGN: A sign with action or motion,flashing or color changes requiring
electrical energy, electronic or manufactured source of supply,but not
including revolving signs or wind actuated elements such as flags or banners.
DISPLAY SURFACE: The area made available by the sign structure for the purpose
of displaying the advertising message.
OFF-PREMISES SIGN: Any sign which cannot be classified as an on-premises sign
as described below.
ON-PREMISES SIGN: A sign which displays only advertising copy strictly incidental
to the lawful use of the premises on which it is located, including signs or sign
devices indicating the business transacted at, services rendered, goods sold or
produced on the immediate premises, name of the business,person, firm or
corporation occupying the premises.
SIGN: Any medium, including merchandise, its structure and component parts, which
is used or intended to be used to attract attention to the subject matter for
advertising purposes.
SIGN STRUCTURE: Any structure which supports or is capable of supporting any
sign as defined in this Code. A sign structure may be a single pole and may or
may not be an integral part of the building.
STRUCTURE: That which is built or constructed,an edifice or building of any kind,
or any piece of work artificially built up or composed of parts joined together
in some definite manner.
11. In addition,the Sign Code contains the following relevant provisions:
Section 4-20-8 defines the prohibited signs:
3.All of the following signs within seventy five feet(75')of the public right-of-
way with any of the following features: animated, revolving more than eight
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 5
8)revolutions per minute, blinking and flashing. Exceptions are public
service signs, such as those which give the time,temperature and/or humidity.
10. Off-Premises Signs. Except:
a.Signs allowed by Section 4-20-9,4-20-10 and 4-20-11.
b.Off-premises advertising may be allowed as an accessory use of an
identification sign or other structure if the following conditions are
met:
1) The maximum size of the off-premises advertising is six(6) square
feet.
2) No more than twenty five percent(25%)of the principal structure
is covered by the off-premises advertising sign.
3) The off-premises advertising sign is designed to be viewed by
users of the facility rather than street traffic.
c.Off-premises signs in existence upon passage of this Section may
be maintained but not expanded,moved or structurally altered.
Ord. 4172, 9-12-88) (emphasis supplied)
CONCLUSIONS:
1.The appellant has the burden of demonstrating that the decision was either in error, or was otherwise
contrary to law or constitutional provisions, or was arbitrary and capricious(Section 4-8-11(B)(4). The
appellant has failed to demonstrate that the action of the City should be modified or reversed. The
decision of the City is affirmed.
2.Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the
facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts
and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co v Washing on Utilities
and Transportation Commission,69 Wn. 2d 255,259 (1969).
3.An action is likewise clearly erroneous when, although there is evidence to support it,the reviewing
body, on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. (Ancheta v Daly, 77 Wn. 2d 255, 259 (1969).
4.The appellant has failed to demonstrate that the decision was founded upon anything but a fair review
of the Sign Code as it pertains to the proposed changes. The appellant has failed to demonstrate with
cogent evidence that a mistake was made.
5.Since the burden of demonstrating error is on the appellant,this office can reach no other conclusion
but that staff made the correct determination. The proposed changes are not permitted and cannot be
approved administratively. The decision below must be affirmed.
6.The appellant relied on a number of court cases to demonstrate its point but it appears that rules of
construction and the import of the common law vis-a-vis zoning law are unnecessary in reviewing this
matter. The appellant relied on the definition of"sign structure" in supporting its claim that the
appellant was not altering the sign structure.
r I
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 6
7.But it is clear that the Sign Code contains a definition of structure which is more encompassing. The
Sign Code provides two definitions which may overlap but separately define "structure" and "sign
structure." A "structure" appears to be anything constructed or put together which does not occur
naturally,while a "sign structure" is the support mechanism which holds the actual sign.
8.What is prohibited by Renton Code is structural alteration. It does not specifically prohibit "sign
structure alteration." The code bars signs from being "structurally altered." "Structure" as defined by
the Code includes not only the appellant's single pole or dual-I-beam "sign structure" but also the sign
or display face. The entire system sign, poles,etc.,are a "structure" under the Code.
9.The City has barred no one from changing the copy displayed. Nor has the City barred them from
routine maintenance which apparently even includes removing the one display surface for cleaning and
replacing it by another functionally similar display surface.
10. The proposed tri-vision display surface is an animated surface comprised of triangular slats that rotate
by use of an electrical motor and some form of drive mechanism. As proposed by the appellant,this
moving, electricity-powered, faceted surface replaces a solid,unmoving surface. The surfaces, a plain
unmoving surface and a moving three-faced surface, are not equivalent. The surface of a tri-vision sign
along with the sign structure are not equivalent to a plain flat surface on a sign structure.
11. The replacement of a plain surfaced sign with a tri-vision sign or surface would result in a sign which
has been "structurally altered." That is clearly not permitted. That is what staff has determined. There
is no evidence that staff has misread or misconstrued the code. There is no need to resort to rules of
construction.
12. The determination below must be upheld since there was nothing in the record to allow this office to
conclude the decision below was either clearly erroneous or arbitrary and capricious.
DECISION:
The appeal is denied.
ORDERED THIS 10th day of September, 1998.
FRED J. KAU AN
HEARING EXAMINER
TRANSMITTED THIS 10th day of September, 1998 to the parties of record:
Paul R. Taylor Zanetta Fontes Frank Podany
1000 Second Avenue 1055 S. Grady Way 3601 6th Avenue S
38th Floor Renton, WA 98055 Seattle, WA 98134
Seattle, WA 98104
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 7
Jim Hanson
1055 S Grady Way
Renton, WA 98055
TRANSMITTED THIS 10th day of September, 1998 to the following:
Mayor Jesse Tanner Gregg Zimmerman, Plan/Bldg/PW Administrator •
Members, Renton Planning Commission Jim Hanson, Development Services Director
Art Larson, Fire Marshal Mike Kattermann,Technical Services Director
Lawrence J. Warren, City Attorney Larry Meckling, Building Official
Transportation Systems Division Jay Covington, Chief Administrative Officer
Utilities System Division Councilperson Kathy Keolker-Wheeler
Sue Carlson,Econ. Dev.Administrator South County Journal
Pursuant to Title IV, Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in
writing on or before 5:00 p.m.,September 24, 1998. Any aggrieved person feeling that the decision of the
Examiner is ambiguous or based on erroneous procedure, errors of law or fact,error in judgment, or the
discovery of new evidence which could not be reasonably available at the prior hearing may make a written
request for a review by the Examiner within fourteen(14) days from the date of the Examiner's decision. This
request shall set forth the specific ambiguities or errors discovered by such appellant,and the Examiner may,
after review of the record,take further action as he deems proper.
An appeal to the City Council is governed by Title IV, Chapter 8, Section 16,which requires that such appeal
be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other specified requirements.
Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City
Hall.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the
gffecuted Covenants will be required prior to approval by City Council or final processing of the file.
You may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one)communications may
occur concerning pending land use decisions. This means that parties to a land use decision may not
communicate'in private with any decision-maker concerning the proposal. Decision-makers in the land use
process include both the Hearing Examiner and members of the City Council.
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.
CITY RENTON
Planning/Building/Public Works Department
Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator
June 5, 1998
Terry Sandblast
Governmental Affair Manager
AK Media NW
715 NE Everett cliV r
Portland, OR 97232 t':!r a
5 "?
SUBJECT: DISPLAY SURFACE CHANGES
Dear Mr. Sandblast,
The City of Renton has always considered the changes in the face of the sign that you proposed as
a structural change. The sign face itself is part of the sign structure. The structure is not limited
solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors, the type of change you propose is not
allowed by our sign code.
If you have further questions, please contact Robert Arthur, Code Compliance Officer for the City
of Renton, at(425)277-6169:`
Sincerely,
es C. Hanson,Director
Development Services
cc: Robert Arthur
JCH:ckg98-027
EXHIBIT 2
200 Mill Avenue South - Renton, Washington 98055
xxvi CASES REPORTED
Webster, State v.128 CASES DETERMINED IN THE
Weddel, State v.1046
Weikel, State v. 1029
Welliver, State v 1005 COURT OF APPEALS
Western Fire Insurance Company of Fort Scott
Kansas, Keesling v.1014
OF
Westlake Chevrolet Company, Inc. v. Seattle Human
Rights Commission 1048
Weygandt, State v. 599 WASHINGTON
Whatcom County, Cwalinski v 1065 1
Whatcom County District Court, State ex rel.
Schlegel v 1019
Wheeler, State v.1051
No. 5071-1. Division One. May 8, 1978.]
White, State v.1031, 1032, 1034 ROBERT H. KELLER, JR., ET AL, Appellants, V. THE
White, Turner v. 290 CITY OF BELLINGHAM, ET AL, Respondents.
Wilcox, State v. 617 1] Zoning — Review — Administrative Remedies — Disre-
Williams v. Burrus 494 gard — Effect. It is improper to seek judicial intervention in a
Williams, Ward v. 1039 zoning matter without having exhausted all administrative remedies
Wilshire Insurance Company v. Jefferson 1059 provided in the zoning ordinance. Such error is not jurisdictional,
Wilson, State v 592, 1038 however, and when all parties concur in a judicial review the court's
Wolf, State v. 1007
action will not be reversed on the basis of that error.
Wolfe, Dooley v 1020 2] Zoning — Review — Nonaction of Legislative Body —
Woods, In re 515 Effect. A city council whose only function under a zoning ordinance
559
is legislative does not take any action which is reviewable when it
Worland, State v discusses a matter but does not formally act by motion or
Wraspir, State v.626 resolution.
Wyatt, State v 1046 3] Zoning — Nonconforming Use — Intensification — Publii
Wynn, State v. 1010 Policy. It is the public policy of the state that nonconforming use
1021 be restricted and eventually phased out. However, zoning regula-
tionsYakimav. Jimenez must be strictly construed in favor of a property owner, and
Yancovich v. Cavanaugh Lumber Company, Inc. 347 intensification of a nonconforming use, as opposed to enlargement,
Zimny v. Sutherland Motors, Ltd. 1006 will be permitted unless a zoning regulation specifically prohibits it.
4] Zoning — Nonconforming Use — Intensification — What
Constitutes. Modernization of a nonconforming use and improve-
ments in efficiency do not constitute an enlargement of the use so
long as the original purpose of the use remains unchanged.
5] Zoning — Construction — Evidence — Administrative
Opinion. The interpretation of a zoning regulation by an officer •
charged with its enforcement is entitled to great weight by the .
courts.
EXHIBIT 3
YELLER V.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 3
2
20 Wn.App.1,578 P.2d 881 20 Wn.App. 1,578 P.2d 881
6] Appeal and Error— Findings of Fact — Review — In Gen- plant but share a concern that the Bellingham zoning ordi- • '
eral.When a trial court's findings are supported by substantial evi- nance be enforced.
dense,an appellate court may not disturb them. Georgia-Pacific operates its chlor-alkali facility in an
Nature of Action: Citizens of a municipality sought a industrial section of Bellingham which is zoned for heavy
declaratory judgment as to the validity of an improvement manufacturing. The plant, which manufactures liquid chlo-
to an industrial nonconforming use. The city council had rine, has been in operation since October of 1965. The
taken no action although it had received an opinion of the chlorine that is manufactured there is used for such pur-
city attorney that the action was valid. poses as water and sewage treatment and in the manufac-
ture of insecticides, herbicides, textiles, detergents, fuel,
Superior Court: The Superior Court for Whatcom metal alloys and plastics.
County, No. 49750, Jack S. Kurtz, J., entered judgment on In April of 1969, the City of Bellingham enacted its zon
September 2, 1976, for the defendant, finding that the city ing ordinance, Bellingham City Code, ch. 20.06. This ordi
council's acquiescence constituted approval, and no grounds nance prohibited the "[m]anufacture, compounding,
for reversal existed. processing, refining, treatment, and assembly" of certain
Court.of Appeals: The court holds that the city council materials and operations," including chlorine, in a heavy
took no action subject to judicial review, but that the phys- manufacturing district zone. Bellingham City Code § 20.06-
ical improvements did not violate the zoning regulations. 122(bbefore)(1). Any
the 1969 ordinangeuse which had been established
and which was prohibited by the
The judgment is affirmed.
Brett & Daugert and Larry Daugert, for appellants.
ordinance, was declared to be a nonconforming use and not,
therefore, in violation of the ordinance. Bellingham City
Patrick L. Brock, City Attorney, Lane, Powell, Moss & Code § 20.06.027(a)(1).
Miller, and Thomas Zilly, for respondents. I Section 20.06.027(b) of the ordinance provides in perti-
nent part:
ANDERSEN, J.— 1) Any existing use lawfully established prior to April
FACTS OF CASE 21, 1969, which is not permitted in the use district in
At issue in this case is whether over a million dollars' which it is located is declared a nonconforming use and
worth of improvements to Georgia-Pacific Corporation's not in violation of this title;
chlor-alkali plant in Bellingham are in violation of that
cated( ) ornonconformingrearrangedt r
use sha
effective
ll not be enlarg d,, ordi-
city's zoning ordinance. nance which made the use nonconforming;
The case arose when a declaratory judgment action was
brought seeking to have such improvements declared viola-
Italics ours.) The ordinance also provides that storage and
tive of the zoning ordinance. The case was tried to the court freight terminals are permitted uses within heavy manufac-
turing districts. Bellingham City Code § 20.06.122(b)(4).
ofo County.
orintheSuior Court of the State of Washington for The plant includes a cell building which houses cells used
The
W
The following facts found by the trial court are not to change sodium chloride brine into chlorine and sodium
hydroxide through an electrolysis process. Georgia-Pacific
disputed. stored spare parts in its cell building underneath the exist-The petitioners, who are the appellants herein, are citi-
zens of Bellingham, Washington, who do not reside by the ing cells. In order to provide a better opportunity for
May 1978 KELLER v.BELLINGHAM 5
4 KELLER v.BELLINGHAM May 1978
20 Wn.App. 1,578 P.2d 881
20 Wn.App.1,578 P.2d 881
press release stated in part that the expansion would cost
cleaning the cell building and to improve mercury control, several million dollars and that the modifications would
as required by the Environmental Protection Act and regu- allow substantial additional production without additional
lations, it constructed a spare parts building at the facility
in 1972. This was necessary in order to provide for the
On November 4,
energy or pollution problems.
1974 the Bellingham City Council
storage of spare parts and maintenance equipment outside 1 requested a statement in writing from the city attorney of
the cell room and to permit required housekeeping and Bellingham as to the status of Georgia-Pacifies plan for
cleaning improvements within the cell area itself. expansion with regard to the zoning ordinance. Then on
The space now used for the storage of spare parts and
maintenance equipment within the new storage and spare
November 14, 1974, the city attorney sent an opinion letter
parts building at the plant is required by various federal
to the council advising it that "under our zoning ordinance,
i modernization or improvement of a manufacturing process
and state laws and regulations, and the storage of spare accomplis hed."may be acc
parts and maintenance equipment within the new spare
Later,
conc
December 4, 1974, the members of the council
parts building is reasonable under such laws and regula-
tions. The employees' locker room, lunchroom, showers and visited the plant to determine the nature and extent of the
proposed modifications. Thereafter, council members asked
laundry and the welding shop, paint room and valve testing
center now contained in the new spare parts building, were the city attorney to enlarge upon his opinion letter in view
of the additional information received from Georgia-Pacific
all required by federal and/or state laws and regulations concerning the contemplated improvements to the chlor-
and the space used for such facilities has been reasonable. alkali facility. On January 6, 1975, the city attorney sent
Prior to 1972, Georgia-Pacific used five 300-ton chlorine
storage tanks in connection with the storage of chlorine
the council a second opinion letter. It stated in part that
in my opinion Georgia-Pacific is acting within the bounds
prior to shipment. In June of 1973, it installed four addi- of the zoning ordinance in carrying out the contemplated
tional storage tanks to provide for increased safety and
modernization of the Chlorine Plant." This letter was
storage. The four chlorine tanks installed in June of 1973
were large, visible tanks which could easily be seen by the
received and filed with the city council at its public meeting
on January 6, 1975, and the council did nothing more about
public after their construction and placement on the Geor- the matter. All of this action was reported from time to
gia-Pacific property. The average amount of chlorine stored time in the local press.
in the original five tanks was 650.5 tons and 2.17 tanks, In reliance on the nonaction of the city council, and the
resulting in an average use of 43 percent of storage capac- two opinion letters of the city attorney, as the trial court
ity. The average storage in the existing nine chlorine stor-
found, "Georgia-Pacific intensified its use of the subject
age tanks has been 964 tons or 3.21 tanks, resulting in an property by adding six new cells within the cell building."
average use of 36 percent of storage capacity. Normally, Italics ours.)
Georgia-Pacific keeps four or five tanks totally empty (void The cell building had originally been designed and con-
and with pressure reduced to a vacuum) in order to provide structed for space to hold 32 cells. When the original cell
for safety and flexibility of operations. building was constructed in 1965, the original building
In October of 1974, Georgia-Pacific issued a press release foundation was engineered and additional pilings were
announcing that it would add six new cells in the existing installed to permit the later addition of the six new cells
cell building, adding approximately 36,300 annual tons of which, in part, are the subject of the present litigation. At
new chlorine and caustic soda capacity to the plant.'The
6 KELLER v.BELLINGHAM May 1978
May 1978 KELLER v.BELLINGHAM20Wn.App. 1,578 P.2d 881 7
20 Wn.App. 1,578 P.2d 881
all material times, Georgia-Pacific had intended to add the
six new cells within its existing cell building. 3.
All of the activitywhich is the of this action took The City of Bellingham and Georgia-Pacific Corpora-
subjecttion are entitled to a declaratory judgment that Geor-
place in a heavy manufacturing zone area of Bellingham. gia-Pacific's installation of six new cells together with
The changes described in petitioners' complaint did not the rewind of the rectifiers and the additional trans-
result in any change in the nature or character of the use of former do not constitute an enlargement of a non-con-
the property by Georgia-Pacific. At all material times, forming use under the Bellingham Zoning Ordinance.
4.Georgia-Pacific continued to use the same property in con- The Bellingham Zoning Ordinance permits the storage
nection with the operation of its chlor-alkali facility. of chlorine in a heavy industrial district without
A rewind of a rectifier and the addition of a transformer restriction.
at the plant constituted changes of methodology or tech-5.
nology, the use of more modern equipment and processes Any change in any existing use established prior to the
and resulted in a more economical consumption of electric effective date of the Zoning Ordinance which is reason-
ably required in order to comply with federal or state lawitybytheplant.or regulation is permitted.
The changes described in petitioners' complaint wherein 6,
they sought a declaratory judgment, and which changes are The action of the Bellingham City Council acting in
the subject of this litigation, had no significant effect on the reliance upon the letters of the Bellingham City Attor-
neighborhood or surrounding environment as the trial court ney was not arbitrary or capricious and the action of the
found. City Council should be sustained.
Neither Georgia-Pacific nor the petitioners ever asked
Italics ours.) Conclusions of law Nos. 1-6.
i that the board of adjustment, which was set up by the The petitioners appeal from a judgment entered for
1 Bellingham zoning ordinance, review and determine the Georgia-Pacific. They assign error only to conclusions of
law Nos. 2, 3 and 6, emphasized above, and to the corre-
zoning issues involved in the present litigation.
sponding portions of the declaratory judgment.The petitioners in this action have sought no specific Error has not been assigned to any finding of fact; there-relief other than a declaratory judgment adjudging the city fore the trial court's findings of fact must be considered as
attorneys opinions to be in error and the changes by Geor-
the established facts of the case. Colella v. King County, 72gia-Pacific to its plant to be violations of the Bellingham
Wn.2d 386, 388, 433 P.2d 154 (1967); State v. Lake, 7 Wn.
zoning ordinance.
App. 322,.327, 499 P.2d 219 (1972).Based on the foregoing facts found, the trial court
This appeal presents two legal issues.concluded:
1. ISSUES
The Court has jurisdiction over the parties and the I ISSUE ONE. Did the Bellingham City Council take such
subject matter of this action. I action as would be reviewable only under the arbitrary and
2. capricious standard?
The opinions of the Bellingham City Attorney IssuE Two. Did the trial court err in determining thatarecorrect, in that an intensification of a non-con-
forming use does not constitute a prohibited enlarge- the improvements made by Georgia-Pacific to its chlor-
ment, relocation or rearrangement of the use under the alkali plant did not constitute an unlawful enlargement of a
Bellingham Zoning Ordinance. nonconforming use?
i
8 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v. BELLINGHAM
20 Wn.App. 1,578 P.2d 881
9
20 Wn.App. 1,578 P.2d 881
DECISION 2] The fallacy in Georgia-Pacific's argument is that
ISSUE ONE. here the council inquired into Georgia-Pacific's plant mod-
CONCLUSION. The Bellingham City Council took no ification and then did nothing about it, one way or the
action, legislative or otherwise; therefore, the trial court's other. So far as the record before us reflects, the whole
conclusion concerning the propriety of the council's action matter was just let drop without benefit of any formal
is without effect. motion or resolution of any kind. The council's only func-
At the outset of the discussion of the legal issues, it tion under the zoning code is legislative, Bellingham City
should be noted that this case does not involve the validity Code § 20.06.213, and it makes no administrative determi-
of Bellingham's zoning ordinance but only its interpreta- nations concerning code violations. No authority has been
tion. The ordinance contemplated that questions just such cited to us, and we know of none, which holds that in this
as this were bound to arise from time to time and estab- kind of a situation there is any council action to judicial
lished a board of adjustment with the expertise to decide review. The petitioners' assignments of error directed t.,
them. Bellingham City Code § 20.06.201; RCW 36.70.810; conclusion of law No. 6 are well taken, and that conclusion
RCW 36.70.820. is a nullity.
1] The petitioners made no attempt to comply with the IssUE Two.
administrative procedures established by the zoning ordi- CONCLUSION. The trial court's findings that the improve-
nance. When an adequate administrative remedy is pro- ments to Georgia-Pacific's plant constituted an intensifica-
vided, it must be exhausted before the courts will intervene. tion of the nonconforming use rather than an enlargement
Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 of it are supported by substantial evidence and are
1974). Circumventing the board of adjustment by filing a determinative.
declaratory judgment was improper in this case. 4 R. 3, 4] Georgia-Pacific's plant is a nonconforming use
Anderson, American Law of Zoning § 28.06 (2d ed. 1977). because it was in existence prior to the effective date of the
Since the error did not go to the jurisdiction of the court, zoning ordinance. The public policy of this state, as well as
however, and since it was invited by the petitioners and the spirit of zoning measures, is to restrict rather than
concurred in by Georgia-Pacific, it is not reversible error. increase such nonconforming uses in order that they ulti-
Rao v. Auburn Gen. Hosp., 19 Wn. App. 124, 130, 573 P.2d mately may be phased out. State ex rel. Miller v. Cain, 4 '
834 (1978). Wn.2d 216, 219, 242 P.2d 505 (1952); Coleman v. Wal!
The petitioners assign error to conclusion of law No. 6, Walla, 44 Wn.2d 296, 299-300, 266 P.2d 1034 (1954);
set out above, wherein the trial court concluded that "[t]he Anderson v. Island County, 81 Wn.2d 312, 323-24, 501
action of the Bellingham City Council acting in reliance P.2d 594 (1972).
upon the letters of the Bellingham City Attorney was not It should be noted parenthetically in connection with
arbitrary or capricious and the action of the City Council these three decisions on which petitioners rely, that unlike
should be sustained." Georgia-Pacific argues that this was the present case, Miller involved a new and substantially
proper and that the council's action cannot be overturned larger building, Coleman involved a new nonconforming use
absent a showing of arbitrary and capricious conduct by it. and Anderson involved changing a residential zone to a
Georgia-Pacific argues State ex rel. Myhre v. Spokane, 70 commercial zone in order to establish a new use.
Wn.2d 207, 210-13, 422 P.2d 790 (1967) and other decisions Speaking generally of nonconforming uses, one text sum- •
of like import as supporting this position. marizes as follows:
s
1
10 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 11
20 Wn.App. 1,578 P.2d 881 20 Wn.App. 1,578 P.2d 881
The standard for determining the extent of an author- A nonconforming use of land, whether it is a dairy
ized nonconforming use is ordinarily the use that is being i' farm, a manufacturing plant, or a rooming house, is not
carried on the premises at the time of the adoption of the likely to remain static. As the use is exploited and eco-
zoning laws. In other words, a nonconforming use must in nomic changes occur, it may grow in volume or intensity,
substance be the same after the passage of a zoning ordi- and periods of active use may become more frequent or
nance as it was theretofore. However, the continuance of of longer duration. These changes in the level of use may
an existing nonconforming use carries with it all the inci- have profound impact upon property in the areas where
dents of that use which appertained to it when zoning they are located, but the zoning regulations seldom
laws were enacted. Accordingly, one entitled to a non- include specific provisions for restricting this kind of
conforming use has a right to repair, restore and replace growth.
structures in connection with the use, to engage in uses 1 R. Anderson, American Law of Zoning § 6.47 (2d ed.
normally incidental and auxiliary to the nonconforming 1976). Some zoning ordinances do specifically proviuse, and to modernize and employ improved instrumen-
talities in connection with such use.
against intensifying nonconforming uses. See 2 ...
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora- Rathkopf, The Law of Zoning and Planning 60-1 (3d ed.
tions § 25.200 (3d ed. rev. 1976). And further,
1972). Bellingham's zoning ordinance did not so provide;
It is the general rule that the employment of modern
therefore, we must assume that it did not intend to do so
and more effective instrumentalities, not previously used, since zoning ordinances are in derogation of the common
in a nonconforming business or use or in connection with law and must be strictly construed in favor of the property
a nonconforming building does not constitute a prohib- owner. Pearson v. Evans, 51 Wn.2d 574, 576, 320 P.2d 300
ited expansion or enlargement of the business, use or 1958).
building. In short, an owner can modernize facilities and 5] Here the case was fully tried out in the trial court,
employ improved instrumentalities in connection with a the forum sought by the petitioners. The primary issue in
nonconforming building or use. However, the instrumen-
talities must be ordinarily and reasonably adapted to that court was whether the improvements to Georgia—
make the use in question available to the owner, and, Pacific's plant amounted only to an "intensification" of the
moreover, the original nature and purpose of the under- use, or was an "enlargement" of the use. The testimony
taking must remain unchanged. Thus, for example, in before that court included that of Bellingham's planning
mining, quarrying and similar types of uses, the intro- director of many years. The sum and substance of her t
duction of new, mechanized devices and equipment is not timony was that she was familiar with the improvements
an enlargement or extension of the use, but merely a
more effective method of carrying it on. the plant and concurred with the city attorney's opinion
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora-which was that Georgia—Pacific acted within the bounds of
tions § 25.210 (3d ed. rev. 1976). the zoning ordinance in carrying out its plant moderniza-
The zoning ordinance requires that nonconforming uses
tion. As one of the officials charged with the enforcement of
not be enlarged, relocated or rearranged after the effective
the code, her testimony was entitled to great weight. Morin
date of the ordinance which made the use nonconforming;"
u. Johnson, 49 Wn.2d 275, 279, 300 P.2d 569 (1956); Ball v.
Bellingham City Code § 20.06.027(b)(2). The zoning ordi- Smith, 87 Wn.2d 717, 723, 556 P.2d 936 (1976).
nance thus prevented "enlarging" nonconforming uses.
6] The trial court found as a fact that there had been
The zoning ordinance did not, however, prevent "intensi- an "intensification" of the nonconforming use. It also
fying" nonconforming uses. As one recognized authority
determined that there had not been an "enlargement" of
explains it,
12 DAILEY v.LANGE May 1978 May 1978 DAILEY v.LANGE 13
20 Wn.App. 12,578 P.2d 1322 20 Wn.App. 12,578 P.2d 1322
it.' There being substantial evidence to sustain the trial Nature of Action: The plaintiff police officer was on
court's findings in this regard, they will not be disturbed on foot on a highway right-of-way controlling traffic when he
this appeal. As expressed by the State Supreme Court in a was struck by a vehicle driven by the defendant. The
like situation,
plaintiff sought damages.
If we were of the opinion that the trial court should have Superior Court: The Superior Court for King County,
resolved the factual dispute the other way, the constitu- No. 801425, Francis E. Holman, J., entered a judgment on
tion does not authorize this court to substitute its find- October 19, 1976, on a verdict in favor of the defendant.
ings for that of the trial court.
Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, Court of Appeals: Holding that the police officer was
343 P.2d 183 (1959). We have consistently so held. Charles not a pedestrian and was entitled to a special status of
Pankow, Inc. v. Holman Properties, Inc., 13 Wn. App. 537, working on the right-of-way, the court reverses the judv-
542, 536 P.2d 28 (1975).
ment and remands for a new trial.
Affirmed. Arthur D. Swanson, for appellant.
JAMES and DORE, JJ., concur.
Merrick, Hofstedt & Lindsey and Thomas J. Collins, for
respondents.
Reconsideration denied October 17, 1978.
RINGOLD, J.—In February 1974, during the gasoline
Review granted by Supreme Court February 28, 1979. shortage crisis, the plaintiff, a Renton police officer, was
assisting the movement of traffic on North 30th in Renton
when he was struck by defendant's vehicle. Lange, east-
bound at 5 to 8 miles per hour, swerved to the right to miss
No. 5118-1. Division One. May 8, 1978.] a car leaving a gasoline station on the north side of the road
and in doing so struck Dailey, who was walking westbound
BART W. DAILEY, Appellant, V. HUBERT M. LANGE, along the edge of the roadway. Dailey was proceeding
ET AL, Respondents.alongside a line of cars parked partially on the roadway,
1] Automobiles — Pedestrians — Persons Working on Right- and partially on the shoulder. From a verdict for 0--
of-Way — Police Officer. A police officer on foot on a highway defendant, the plaintiff appeals. Plaintiff assigns as err
right-of-way while controlling traffic is not a "pedestrian," within the giving of certain instructions and failing to give the
the meaning of RCW 46.61.240(1) which requires pedestrians not in plaintiff's proposed instruction providing that a police offi-
a crosswalk to yield to all vehicles. Such an officer is a "person
engaged in work" within the right-of-way of a highway within the cer enjoys a special status which must be considered in
meaning of RCW 46.61.030 and is not held to the same duty of care determining whether he has exercised due care for his
as a pedestrian under RCW 46.61.250, or required to keep a con- safety, and that a driver must drive at a speed which is
stant lookout for approaching vehicles. prudent in light of conditions then existing.
The trial court did not err in refusing to give plaintiff's
Whether there is an enlargement of a use is a question of fact. Jamison v. proposed instruction on excessive speed. The question of
Kyles,271 N.C.722, 157 S.E.2d 550(1967);Application of Hasting,252 N.C.327,
113 S.E.2d 433, 434 (1960). A finding of fact labeled as a conclusion of law will the defendant's speed is amply covered in the general
nonetheless be treated as a finding of fact.Redmond v.Kezner, 10 Wn. App. 332, instruction requiring the jury to determine whether or not
343, 517 P.2d 625 (1973). Accord, Estes u. Bevan, 64 Wn.2d 869, 395 P.2d 44
1964).
YLK.C2J
41 :..,7' , CIT" 1 OF RENTON
Renton City Council
Jesse Tanner,Mayor
October 1, 1998
APPEAL FILED BY: Paul R. Taylor
Representative for AK Media/NW
RE: Appeal of Hearing Examiner's decision 9/10/98 denying Appeal of Administrative
Determination prohibiting use of"tri-vision' billboard signs; LUA-98-102-AAD
To Parties of Record:
The Planning and Development Committee will meet to review the subject appeal on:
Thursday, October 15, 1998
4:00 PM
Council Chambers
Seventh Floor
Renton City Hall
1055 S. Grady Way
This is not a public hearing, but a working session of the Planning and Development
Committee. As all Council committee meetings are open to the public, you are welcome
to attend. Consideration of the appeal shall be based solely upon the written record
previously established. Unless a showing can be made that additional evidence could
not reasonably have been available at the prior hearing held by the Hearing Examiner,
no further evidence or testimony on this matter will be accepted by the City Council.
The Committee will submit a written recommendation to the full Council for their
consideration at a regular Monday night Council meeting.
If you have questions regarding this meeting, please phone the Council Liaison at 425-
430-6501.
Sincerely,
rdlut---48elcuz,- Lthab-k)
Kathy Keolker-Wheeler, Chair Pril
Planning and Development Committee
PADAPL.DOC
Z00 Mi Avenue South- Renton, Washington 98055 - (206)235-2586
c.
CITY OF RENTON
CITY CLERK'S DIVISION
MEMORANDUM
DATE:Sept. 29, 1998
TO: Julia Medzigian, Council Secretary
FROM:Bonnie Walton, x 6510
SUBJECT: Appeal
Attached is copy of the City Clerk's appeal notification letter of 9/28/98 as well as the
addresses for the 4 parties of record. Agenda bill for this has been prepared for the10/12/98 Council meeting. You will be doing notification letters regarding the
Planning and Development Committee meeting as per previous communication.
Thanks.
bw
Enc.
g CITI )F RENTON
di City Clerk
Jesse Tanner,Mayor Marilyn J.Petersen
September 28, 1998
APPEAL FILED BY: Paul R. Taylor
Representative for AK Media/NW
RE: Appeal of Hearing Examiner's decision 9/10/98 denying Appeal of
Administrative Determination prohibiting use of"tri-vision"billboard signs;
LUA-98-102, AAD
To Parties of Record:
Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the
hearing examiner's decision on the Administrative Determination prohibiting use of"tri-
vision"billboard signs has been filed with the City Clerk.
In accordance with Renton Municipal Code Section 4-8-16.B.,within five days of receipt
of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the
appeal.
NOTICE IS HEREBY GIVEN that the written appeals and other pertinent documents
will be reviewed by the Council's Planning and Development Committee. The Council
secretary will notify all parties of record of the date and time of the Planning and
Development Committee meeting. If you are not listed in local telephone directories and
wish to attend the meeting, please call the Council secretary at 425 430-6501 for
information. The recommendation of the Committee will be presented for consideration
by the full Council at a subsequent Council meeting.
Attached is a copy of the Renton Municipal Code regarding appeals of hearing examiner
decisions or recommendations. Please note that the City Council will be considering the
merits of the appeal based upon the written record previously established. Unless a
showing can be made that additional evidence could not reasonably have been available
at the prior hearing held by the Hearing Examiner, no further evidence or testimony on
this matter will be accepted by the City Council.
For additional information or assistance,please feel free to call me at 425 430-6502.
Sincerely,
Mari yn s n
City Cler
Attachment
200 Mill Avenue South- Renton, Washington 98055 - (425)235-2501 /FAX(425)235-2513
This paper contains 50%recycled material,20%post consumer
CI) CD
I. Appeals: Table 4, Land Use Permit Proce-
that additional evidence is required, the 4-8-17: COUNCIL ACTION: dures, lists the development permits
Council shall remand the matter to the Any application requiring action by the reviewed by the City and the review author-
Examiner for reconsideration and receipt of City Council shall be evidenced by minute entry ity responsible for open record appeals,closed
additional evidence.The cost of transcription unless otherwise required by law. When taking record appeals and judicial appeals.The City
of the hearing record shall be borne by the any such final action,the Council shall make and has consolidated the permit process to allow
4-8.16: APPEAL: Unless an ordinance
applicant. In the absence of an entry upon enter findings of fact from the record and conclu- for only one(1)open record appeal of all per-
providing for review of decision of the
the record of an order by the City Council sions therefrom which support its action. Unless
Examiner requires review thereof by the
authorizing new or additional evidence or otherwise specified,the CityCouncilshall be devel-Superiorre-Court, any interested party aggrieved
P P mit decisions associated with a single
decision or
Examiner for receipt of such evidence or tes- and conclusions. section are intended to comply with the Landtestimony, and a remand to the Hearing sumed to have adopted the Examiner's findings opment application.Appeals pursuant to this
by the Examiner's written
recommendation may submit a notice of appealre
the City Clerk upon a form furnished by the
timony,it shall be presumed that no new or Use Petition Act,Chapter 36.70C RCW.
toCity Clerk, within fourteen (14) calendar days
additional evidence or testimony has been A. In the case of a change of the zone classifica-
from the date of the Examiner's written report.
accepted by the City Council, and that the tion of property(rezone),the City Clerk shall 1. Time For Initiating Appeal.An appeal to
The notice of appeal shall be accompanied by a
record before the City Council is identical to place the ordinance on the Council's agenda Superior Court of a land use decision, as
the hearing record before the Hearing Exam- for first reading. Final reading of the ordi- defined herein,must be filed within twenty
fee in accordance with the fee schedule of the finer.(Ord.4389,1-25-93) nance shall not occur until all conditions, one(21)days of the issuance of the land use
City.(Ord.3658,9.13-82) restrictions or modifications which may have decision. For purposes of this section, the
E. The consideration by the City Council shall been required by the Council have been date on which a land use decision is issued is:
A. The written notice of appeal shall fully,
clearly and thoroughly specify the
be based solely upon the record,the Hearing accomplished or provisions for compliance
Depart-
substantial error(s) in fact or law which
Examiner's report,the notice of appeal and made to the satisfaction of the Legal Depart-a. Three(3)days after a written decision
exist in the record of theproceedingsarla from
additional submissions by parties. ment. is mailed by the City or,if not mailed, the
date on which the local jurisdiction provides
which the appellant seeks relief. Facsimile F. If,upon appeal of a decision of the Hearing B. All other re uirin Council
filing of a notice of appeal is authorized
applicationsrequiring notice that a written decision is publicly
pursuant to the conditions detailed in
Examiner on an application submitted pursu- action shall be placed on the Council's agenda available;
Renton City Code Section 4.8-11C. (Ord.
ant to Section 4-8-10A and after examination for consideration.(Ord.3454,7-28.80)
4353,6-1-92)
of the record,the Council determines that a b. If the land use decision is made by ordi-
substantial error in fact or law exists in the C. The action of the Council approving,modify- nance or resolution by the City Council,
B. Within five(5)days of receipt of the notice
sit-
record, it may remand the proceeding to ing or rejecting a decision of the Examiner ting in a quasi-judicial capacity,the date the
of appeal, the City Clerk shall notify all
Examiner for reconsideration, or modify, or shall be final and conclusive,unless appealed body passes the ordinance or resolution;or
parties of record of the receipt of the
reverse the decision of the Examiner accord- within the time frames established under
appeal.Other parties of record may submit
ingly. 4660Sectionn- -
16-71 (Ord.3725,5-9-83;amd.Ord.c. If neither a or b of this subsection
letters in support of their positions within
applies,the date the decision is entered into
ten(10)days of the dates of mailing of the
G. If,upon appeal from a recommendation of the the public record.
notification of the filing of the notice of Hearing Examiner upon an application sub-
appeal.
l2miffedpursuanttoSection4-8-1OB or C,and 4-8-18: SEVEABILITY: 2. Standing.Those persons with standing to
after examination of the record,the Council The provisions of this Ordinance are bring an appeal of a land use decision are
determines that a substantial error in fact or hereby declared to be severable. If any word,
C. Thereupon the Clerk shall forward to the
limited to the applicant,the owner of prop-
members of the City Council all of the
law exists in the record,or that a recommen- phrase, clause, sentence, paragraph, section or erty to which land use decisions are directed
pertinent documents,including the written
dation of the Hearing Examiner should be dis- part in or of this Ordinance, or the application and any other person aggrieved or adversel;
regarded or modified,the City Council may thereof to any person or circumstance,is declared affected by the land use decision or wht
decision or recommendation, findings and remand the proceeding to the Examiner for invalid,the remaining provisions and the applica- would be aggrieved or adversely affected by a
conclusions contained in the Examiner's
report,the notice of appeal,and additional
reconsideration, or enter its own decision tion of such provisions to other persons or circum- reversal or modification of the land use deci-
letters submitted by the parties. (Ord.
upon the application pursuant to Section 4-8- stances shall not be affected thereby, but shall sion. The terms"aggrieved" and "adversely
1OB or C. remain in full force and effect,the Mayor and City affected"are defined in RCW 36.70C.060.
3658,9-13-82)Council hereby declaring that they would have
D. No public hearing shall be held by the City
H. In any event,the decision of the City Council ordained the remaining provisions of this Ordi- 3. Content Of Appeal Submittal. The con-
shall be in writing and shall specify any mod- nance without the word,phrase,clause,sentence, tent,procedure and other requirements of an
Council. No new or additional evidence or
testimony shall be accepted by the City
ified or amended findings and conclusions paragraph, section or part or the application appeal of a land use decision are governed by
Council unless a showing is made by the
other than those set forth in the report of the thereof,so held invalid. Chapter 36.70C RCW which is incorporated
Hearing Examiner. Each material finding herein by reference as if fully set forth.
party offering the evidence that the
evidence could not reasonably have been shall be supported by substantial evidence in
idenc
time f the a av before
the record. The burden of proof shall rest 4. Other Appeals. Appeals to Superior
theavailableE at the
If the Council determines
with the appellant.(Ord.3658,9.13-82) Court from decisions other than a land use
decision,as defined herein,shall be appealed
within the time frame established by ordi-
nance.If there is no appeal time established
by an ordinance,and there is no statute spe-
cifically preempting the area and establish-
ing a time frame for appeal, any appeal,
whether through extraordinary writ or other-
497 wise,shall be brought within twenty one(21)
City of Renton days of the decision.(Ord. 4587, 3-18-1996;
amd.Ord.4660,3-17-97)
s A 1 tAL
HEARING EXAMINER
WRITTEN APPEAL OF HEARING:.;,,,,MINER'S DECISION/RECO MMEIvDA-I"lON TO RENTON CITY COUNCIL,.FILE NO. LUA-98- 102, AAD
CITY OF RENTONAPPLICATIONNAME: j'3OF,The undersigned interested party hereby files its Notice of Appeal from the decision or rccommenua
4
1HearingExaminer,dated September 10
19
a o the Use
1. IDENTIFICATION OF PARTY RECEIVED
APPELLANT: C{CITYCLERK'S OFFICE
Name:PPEMedia/NW REPRESENTATIVE(IF
N: Paul R. Tayllor
Address:
Address: 1000 Second Avenue, 38th Floor
Seattle, WA 98104
Telephone No.
Telephone No. 206/622-20002. S1,; CIFICATTON OF ERRORS (Attach additional sheets.if necessary)Set forth below are the specific errors or law or fact upon which this appeal is based:
FINDING OF FACT: (Please designate number as denoted in the Examiner's report)No. Error. See attached.
Correction:
CONCLUSIONS:
No. Error. See attached.
Correction:
OTHER
No. Error. See attached.
fl
Correction:
3. SUMMARY OF ACTION REQUESTED: The City Council is requested to grant the following reliefAttachexplanation,if desired)
X Reverse the decision or recommendation yPetitioner should beendationandtthefollowingrelief permi ttEcModifythedecisionorrecommrnflationasfollows: to use t r i—vision displayRemandtotheExaminerforfurtherconsiderationasfollows: surface on sign structures.
Other
p1-1 Gf,$ /l .0 September 24, 1998AppeIlant/Representati Signature
DatePaulR. Taylor
NOTE: Please rcfcr to Title IV,Chapter 8,of the Renton Municipal Code and Section 4-8-16,for specificP
procedures.hcappcal.doc
r
Appendix to Appeal of Hearing Examiner Decision
in AK Media/NW Signage Appeal File No. LUA98-102, AAD
I . Background.
AK Media owns a number of outdoor advertising signs in
the City of Renton. Those signs are maintained on standardized
structures comprised, in simple terms, of either (i) two I-beam
posts with cross bars, or (ii) single poles with a support bar
extending at a right angle from the top of the pole . HED at 3 . 1
These structures hold and support removable display surfaces to
which the advertising copy is affixed.
The sign structures are designed to permit easy
changing of the display surfaces without affecting the integrity
of the structure or requiring any structural alterations . To
change the display surface, it is simply unbolted from the sign
structure and replaced.2
This is done routinely for maintenance .
Installation of a tri-vision display surface is done the same
way. The existing display surface is unbolted from the structure,
the tri-vision surface put in its place, and the bolts reinserted
and tightened. The process requires no alteration to the
structure . HED at 2 .
II . The Dispute.
AK Media wishes to use so-called "tri-vision" display
surfaces in place of flat display surfaces on certain of its
structures . Tri-vision surfaces are composed of triangular slats
which rotate, thus presenting three periodically alternating
messages . HED at 3-4 .
The City told AK Media that the use of tri-vision
display surfaces was not allowed under the City' s Sign Code . Ex.
2 . The City correctly concluded that AK Media ' s advertising signs
are a non-conforming use and that under the City Code, non-
conforming uses cannot be "structurally altered. " HED at 3 . The
City was incorrect, however, in contending that the use of tri-
vision display surfaces as opposed to single surfaces somehow
constitutes an impermissible structural alteration. Accordingly,
AK Media appealed to the Hearing Examiner.
III . The Hearing Examiner' s Decision.
The Hearing Examiner affirmed the administrative
decision, holding that :
1
As used herein, HED refers to the Hearing Examiner' s
decision in this matter, a copy of which is attached as Ex. 1 .
2
HED at 2 .
The replacement of a plain surfaced sign
with a tri-vision sign or surface would
result in a sign which has been
structurally altered. " That is clearly
not permitted [by the Renton Municipal
Code] .
HED at 6 .
In reaching this conclusion, the Hearing Examiner
reasoned that even though "display surface" is defined separately
from "sign structure, " in the City' s sign code (HED at 4) a
change to the display surface nevertheless constitutes a
structural alteration. HED at Conclusion Nos . 7, 8 .
IV. Specification of Errors :
A. Finding of Fact No. 4 .
In Finding No. 4 , the Hearing Examiner found that the
manner in which existing display surfaces would be replaced by
tri-vision surfaces was "not known. " But as the decision itself
explains, the replacement of single-face display surfaces with
tri-vision surfaces involves nothing more than unbolting the
single-face surface and bolting in the tri-vision surface .
B . Conclusion of Law Nos . 11, 12 :
The Hearing Examiner found that the replacement of a
single-face surface with a tri-vision surface constitutes an
impermissible structural alteration. Thus, the "staff ' s"
conclusion to this effect did not misconstrue the Code . As
detailed below, this is clearly erroneous .
V. The Use of Tri-Vision Display Surfaces Does Not
Constitute a Structural Alteration, and Thus the
Hearing Examiner' s Decision Was Clearly Erroneous .
The issue is whether the use of a tri-vision display
surface rather than a single flat surface somehow constitutes a
structural alteration. Under the City' s Code and under the law,
it plainly does not .
A. The Restriction on Structural Alterations Does Not
Apply to Display Surfaces .
At the outset, the Code only bars "structural"
alterations . Renton Code § 4-20-8 (A) (10) (c) ; HED at 5 . The City
took the position that a change in the display surface of a sign
is a "structural change, " contending that :
2
The sign face itself is part of the sign
structure . The structure is not limited
solely to the steel pole in the ground
or the major beams .
See Ex. 2 .
The Hearing Examiner concurred. HED at Conclusion No.
8 .
The City' s and the Hearing Examiner' s position is
directly contradicted by the Sign Code, which makes clear that a
sign "structure" does not include the display surface .
The Code defines a sign structure as :
Any structure which supports or is
capable of supporting any sign as
defined in this Code . A sign structure
may be a single pole and may or may not
be an integral part of the building.
Renton Code § 4-20-2 .
The Code then distinguishes between the sign structure
and the display surface, making clear that they are two distinct
elements :
DISPLAY SURFACE : The area made
available by the sign structure for the
purpose of displaying the advertising
message .
Renton Code § 4-20-2 .
Given the express distinction in the Code between "sign
structure" and "display surface, " the restriction on alterations
to the sign structure clearly does not apply to the display
surfaces . Any contrary conclusion renders the different
definitions of the two phrases meaningless . This is not
permissible under the long-standing tenet of statutory
construction which requires that meaning and effect must be given
to every word in a statute. See, e .g. , Dennis v. Department of
Labor & Indus . , 109 Wn. 2d 467, 745 P. 2d 1295 (1987) . A
construction which renders any words superfluous or meaningless
is erroneous . Id.
The fact that the restriction on structural alterations
does not bar changes to the display surface is underscored by the
City' s acknowledged practice of permitting AK Media to remove and
replace single face structures . HED at 6 .
3
The Hearing Examiner' s decision leads to potentially
absurd results . Assume, for example, that a bolt on a sign
structure needs replacing. Under the Hearing Examiner' s
rationale, an impermissible structural alteration would occur if
AK Media used anything but an identical bolt . If the bolt were
thicker, longer, or stronger, it would constitute a structural
alteration.
Finally, it is important to note that the City
presented no evidence, and the Hearing Examiner made no finding,
to the effect that tri-vision, as opposed to single display
surfaces, have any deleterious effects . And indeed, unless one
is watching the tri-vision panel at the exact moment the message
changes, it is visually indistinguishable from a single face
surface . Thus, the Hearing Examiner' s decision appears to favor
linguistic gymnastics over any reasoned policy analysis .
B. Any Doubts Must Be Resolved in AK Media ' s Favor.
To the extent there is any doubt about the meaning of
the Code (and there is not) , the law is clear that all such
doubts must be resolved in AK Media' s favor. First, zoning laws
are in derogation of the common law and must strictly construe
against the government . See, e .g. , Pearson v. Evans, 51 Wn. 2d
574 , 576 , 320 P. 2d 300 (1958) .
Second, non-conforming uses can be upgraded, enhanced,
and modernized even in the face of restrictions on alterations .
This principle was illustrated in Keller v. Bellingham, 20 Wn.
App. 1, 578 P. 2d 881 (1978) , affirmed, 92 Wn. 2d 726 , 600 P. 2d
1276 (1979) .3
In Keller, Georgia Pacific maintained a non-
conforming chlorine plant in Bellingham. It wished to make
certain improvements to the plant, including adding six new
cells" , i .e . , large chemical treatment units . The Bellingham
City Code prohibited the enlargement or rearrangement of non-
conforming uses, including the chlorine plant . Id. at 3 .
Notwithstanding the ban on enlargement or rearrangement for the
non-conforming uses, the court held that the additional cells
were permissible . In language particularly applicable here, the
court explained that :
O] ne entitled to a nonconforming use
has a right to . . . modernize and
employ improved instrumentalities in
connection with such use .
Keller, 20 Wn. App. at 10, quoting 8A E. McQuillin, Municipal
Corporations § 25 . 200 (3d ed. rev. 1976) .
3
Copy attached as Ex. 3 .
4
The court went on to explain that :
Thus, for example, in mining, quarrying
and similar types of uses, the
introduction of new, mechanized devices
and equipment is not an enlargement or
extension of the use, but merely a more
effective method of carrying it on.
Id.
Here, the tri-vision display surfaces are simply a
modernized, and more effective, method of carrying on the
existing use, i . e . , off-premise advertising.
VI . Conclusion.
Both the Sign Code and the long-standing principles of
zoning law support AK Media ' s position. The Hearing Examiner' s
decision is incorrect, and should be reversed.
5
EXHIBIT I
September 10, 1998
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION
APPELLANT: Paul Taylor
Appeal of Administraive Determination
File No.: LUA-98-102,AAD
SUMMARY OF APPEAL: Appeal of Administrative determination prohibiting use of"tri-
vision"billboard signs.
PUBLIC HEARING: After reviewing the Appellant's written request for a hearing
and examining the available information on file,the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The following minutes are a summary of the August 25, 1998 hearing.
The official record is recorded on tape.
The hearing opened on Tuesday,August 25, 1998, at 10:30 a.m. in the Council Chambers on the seventh floor
of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner.
The following exhibit was entered into the record:Exhibit No. 1: Yellow file containing the appeal,
proof of posting and publication, and other
documentation pertinent to the appeal.
Parties present: Representing AK Media NW
Paul R. Taylor
1000 Second Avenue,38th Floor
Seattle, WA 98104
Representing City of Renton
Zanetta Fontes
1055 S Grady Way
Renton, WA 98055
The Examiner explained that the appeal was an administrative appeal held pursuant to Ordinance 3071 and was
the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for
reconsideration if the parties are not satisfied with the decision. He stated that the appellant had the burden of
demonstrating that the City's action was erroneous, and would have to show clear and convincing evidence that
the City's determination was incorrect. At that point the City could respond, if they chose to do so.
EXHIBIT I
I
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 2
Mr. Taylor stated that AK Media maintains a number of sign structures in the City of Renton. On some of
those sign structures AK Media wants to replace flat display surfaces with what are called tri-vision display
surfaces. The replacement of flat display surfaces with tri-vision display surfaces involves no alteration
whatsoever to the structure. Appellant replaces flat display surfaces in the City of Renton all the time for
changing the sign and for maintenance, and they are not doing anything different than they have always done
and feel they are allowed to do. The fundamental issue is there is no alteration to the structure which holds up
the display surface. He further stated that the owner of a nonconforming use has the right to modernize that
use and improve or employ improved instrumentality. He stated that this is no different, for example,than if
they wanted to use bolts that had a higher tension or a higher strength than what currently exists on the
billboard or on the sign structure.
Frank Podany, 3601 6th Avenue S, Seattle, Washington 98134,testified on behalf of the appellant. He is the
regional real estate manager of AK Media NW,and is responsible for 2,300 sign structures located in 108
municipalities from Bellingham, Washington to Eugene, Oregon. He stated that the signs used in Renton are
basically of two support structures, one a monopole and the second an I-beam. Both are steel columns in
concrete in the ground. On top of these columns are either a torsion bar or post-tops. The display surface sits
on deck arms or horizontal bars. In order to change the display surface, it is unbolted from the sign structure
and replaced. This is done routinely for maintenance and to change to a tri-vision display surface. A tri-vision
display surface is simply bolted to the structure, with no alteration to the structure.
On cross-examination, Mr. Podany stated that when a display surface is changed, it is unbolted, lifted off and a
new one put in place. The entire surface, including the frame, is removed. All that remains at this point is the
post-tops and the structure that holds the post-tops in place. In order to turn the tri-vision pieces,there are
gears and a belt powered by a small electric motor. There is no motor in the existing current flat display. On
the tri-vision units that spin,there are approximately 20 slats per side,with a pivot point at the top and bottom.
Jim Hanson, Development Services Director, City of Renton, 1055 S. Grady Way,Renton, Washington 98055,
stated that the City believes that the display surface that is being changed or taken down and put back up is a
structure. He explained the different code definitions for structures which the City looks at in determining its
decision. The replacement of a single faced display by a tri-vision unit with an electrical component and
pieces that will actually pivot is considered a change in the integral parts of the framed unit that gets replaced.
Responding to questions by Mr. Taylor,Mr. Hanson stated that the issue here was whether this was a structural
change, not just a change in the display surface. He further stated from the code that signs in existence may be
maintained, but not expanded, moved or structurally altered. He agreed that the focus here is on the display
surface and not the sign structure,that there is a structural change between a flat surface sign and a proposed
tri-vision structure.
Closing arguments were given by the parties and their comments reiterated their previous statements.
The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The
hearing closed at 11:10 a.m.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 3
FINDINGS.CONCLUSIONS & DECISION
Having reviewed the record in this matter,the Examiner now makes and enters the following:
FINDINGS:
1.The appellant, Paul Taylor for AK Media Northwest(hereinafter AK Media), filed an appeal of an
administrative determination that replacing single-faced display signs with tri-vision signs was not
permitted.
2.AK Media owns a number of outdoor advertising signs in Renton. These signs are considered "off-
premises" signs, not immediately located on or closely associated with the business or item being
advertised. These signs are on support structures consisting of either of two configurations. One
structure consists of two parallel upright I-beams with cross bars. The other is a single pole with a
perpendicular support bar. Both types support removable display surfaces on which advertising copy isaffixed.
3.The appellant apparently periodically removes the display surface from the supporting structure for
maintenance in which display or advertising copy remnants and paste, etc. are removed. When one
such face is removed for cleaning,another is placed up.
4.It would appear that the appellant in some fashion not revealed by the record indicated that they would
be replacing single-faced/single message signs with a sign capable of displaying in turn,three separate
messages on what is called a tri-vision sign.
5.James C. Hanson,Director of Development Services, issued administrative determination on June 5,
1998, directed to Terry Sandblast,Governmental Affairs Manager of AK Media Northwest, indicating
such tri-vision replacements were not allowed. The record does not show specifically what generated
this correspondence.
6.The letter from Hanson stated:
Subject: DISPLAY SURFACE CHANGES"
The City of Renton has always considered the changes in the face of the sign that you
proposed as a structural change. The sign face is part of the sign structure. The
structure is not limited solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors,the type of change you propose
is not allowed by our sign code."
7.The appellant in its support of its appeal conceded that the signs are non-conforming uses
correspondence dated August 12, 1998 at Page 2):
The City correctly concluded that AK Media's advertising signs are a non-conforming
use and that under the City Code, non-conforming uses cannot be'structurally altered."
8.The appeal by AK Media was filed on June 18, 1998 and was timely filed. Its main points are:
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 4
The decision bars the use of so-called "tri-vision" faces on billboard structures in the
City of Renton. Tri-vision faces are made of triangular slats which periodically rotate,
thus presenting three alternating messages on billboard faces."
There is nothing in the Renton Municipal Code which bars tri-vision billboard faces.
The billboard structures themselves are legal non-conforming structures and use. The
installation of the tri-vision panels on the structures does not expand either the
structures or the use."
9.The appellant claims that changing the surface from "plain"to tri-vision is not a"structural change."
10. The Sign Code,Title 4, Chapter 20 contains the following definitions applicable to this appeal (Section
4-20-2):
ANIMATED SIGN: A sign with action or motion,flashing or color changes requiring
electrical energy, electronic or manufactured source of supply, but not
including revolving signs or wind actuated elements such as flags or banners.
DISPLAY SURFACE: The area made available by the sign structure for the purpose
of displaying the advertising message.
OFF-PREMISES SIGN: Any sign which cannot be classified as an on-premises sign
as described below.
ON-PREMISES SIGN: A sign which displays only advertising copy strictly incidental
to the lawful use of the premises on which it is located, including signs or sign
devices indicating the business transacted at, services rendered, goods sold or
produced on the immediate premises, name of the business,person, firm or
corporation occupying the premises.
SIGN: Any medium, including merchandise, its structure and component parts,which
is used or intended to be used to attract attention to the subject matter for
advertising purposes.
SIGN STRUCTURE: Any structure which supports or is capable of supporting any
sign as defined in this Code. A sign structure may be a single pole and may or
may not be an integral part of the building.
STRUCTURE: That which is built or constructed,an edifice or building of any kind,
or any piece of work artificially built up or composed of parts joined together
in some definite manner.
11. In addition,the Sign Code contains the following relevant provisions:
Section 4-20-8 defines the prohibited signs:
3.All of the following signs within seventy five feet(75')of the public right-of-
way with any of the following features: animated, revolving more than eight
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 5
8)revolutions per minute, blinking and flashing. Exceptions are public
service signs, such as those which give the time, temperature and/or humidity.
10. Off-Premises Signs. Except:
a.Signs allowed by Section 4-20-9,4-20-10 and 4-20-11.
b.Off-premises advertising may be allowed as an accessory use of an
identification sign or other structure if the following conditions are
met:
1) The maximum size of the off-premises advertising is six(6) square
feet.
2) No more than twenty five percent(25%) of the principal structure
is covered by the off-premises advertising sign.
3) The off-premises advertising sign is designed to be viewed by
users of the facility rather than street traffic.
c.Off-premises signs in existence upon passage of this Section may
be maintained but not expanded, moved or structurally altered.
Ord. 4172, 9-12-88) (emphasis supplied)
CONCLUSIONS:
1.The appellant has the burden of demonstrating that the decision was either in error, or was otherwise
contrary to law or constitutional provisions, or was arbitrary and capricious(Section 4-8-11(B)(4). The
appellant has failed to demonstrate that the action of the City should be modified or reversed. The
decision of the City is affirmed.
2.Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the
facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts
and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co v Washington Utilities
and Transportation Commission,69 Wn. 2d 255, 259 (1969).
3.An action is likewise clearly erroneous when,although there is evidence to support it,the reviewing
body, on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. (Ancheta v Daly, 77 Wn. 2d 255, 259 (1969).
4.The appellant has failed to demonstrate that the decision was founded upon anything but a fair review
of the Sign Code as it pertains to the proposed changes. The appellant has failed to demonstrate with
cogent evidence that a mistake was made.
5.Since the burden of demonstrating error is on the appellant,this office can reach no other conclusion
but that staff made the correct determination. The proposed changes are not permitted and cannot be
approved administratively. The decision below must be affirmed.
6.The appellant relied on a number of court cases to demonstrate its point but it appears that rules of
construction and the import of the common law vis-a-vis zoning law are unnecessary in reviewing this
matter. The appellant relied on the definition of"sign structure" in supporting its claim that the
appellant was not altering the sign structure.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 6
7.But it is clear that the Sign Code contains a definition of structure which is more encompassing. The
Sign Code provides two definitions which may overlap but separately define "structure" and "sign
structure." A "structure" appears to be anything constructed or put together which does not occur
naturally, while a"sign structure" is the support mechanism which holds the actual sign.
8.What is prohibited by Renton Code is structural alteration. It does not specifically prohibit "sign
structure alteration." The code bars signs from being "structurally altered." "Structure" as defined by
the Code includes not only the appellant's single pole or dual-I-beam "sign structure" but also the sign
or display face. The entire system sign, poles,etc., are a "structure" under the Code.
9.The City has barred no one from changing the copy displayed. Nor has the City barred them from
routine maintenance which apparently even includes removing the one display surface for cleaning and
replacing it by another functionally similar display surface.
10. The proposed tri-vision display surface is an animated surface comprised of triangular slats that rotate
by use of an electrical motor and some form of drive mechanism. As proposed by the appellant,this
moving, electricity-powered, faceted surface replaces a solid,unmoving surface. The surfaces,a plain
unmoving surface and a moving three-faced surface,are not equivalent. The surface of a tri-vision sign
along with the sign structure are not equivalent to a plain flat surface on a sign structure.
11. The replacement of a plain surfaced sign with a tri-vision sign or surface would result in a sign which
has been "structurally altered." That is clearly not permitted. That is what staff has determined. There
is no evidence that staff has misread or misconstrued the code. There is no need to resort to rules of
construction.
12. The determination below must be upheld since there was nothing in the record to allow this office to
conclude the decision below was either clearly erroneous or arbitrary and capricious.
DECISION:
The appeal is denied.
ORDERED THIS 10th day of September, 1998.
FRED J. KAU AN
HEARING EXAMINER
TRANSMITTED THIS 10th day of September, 1998 to the parties of record:
Paul R. Taylor Zanetta Fontes Frank Podany
1000 Second Avenue 1055 S. Grady Way 3601 6th Avenue S
38th Floor Renton, WA 98055 Seattle, WA 98134
Seattle, WA 98104
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 7
Jim Hanson
1055 S Grady Way
Renton, WA 98055
TRANSMITTED THIS 10th day of September, 1998 to the following:
Mayor Jesse Tanner Gregg Zimmerman, Plan/Bldg/PW Administrator •
Members, Renton Planning Commission Jim Hanson, Development Services Director
Art Larson, Fire Marshal Mike Kattermann, Technical Services Director
Lawrence J. Warren, City Attorney Larry Meckling, Building Official
Transportation Systems Division Jay Covington, Chief Administrative Officer
Utilities System Division Councilperson Kathy Keolker-Wheeler
Sue Carlson,Econ. Dev.Administrator South County Journal
Pursuant to Title IV, Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in
writing on or before 5:00 p.m..September 24. 1998. Any aggrieved person feeling that the decision of the
Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the
discovery of new evidence which could not be reasonably available at the prior hearing may make a written
request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This
request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may,
after review of the record, take further action as he deems proper.
An appeal to the City Council is governed by Title IV, Chapter 8, Section 16,which requires that such appeal
be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other specified requirements.
Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City
Hall.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the
executed Covenants will be required prior to approval by City Council or final processing of the file.
You may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one)communications may
occur concerning pending land use decisions. This means that parties to a land use decision may not
communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use
process include both the Hearing Examiner and members of the City Council.
0,
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.
T
CITY AF RENTON
Planning/Building/Public Works Department
Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator
June 5, 1998
Terry Sandblast
Governmental Affair Manager
AK Media NW 4i
715 NE Everett 0/1/
Portland, OR 97232 hr.?
SUBJECT: DISPLAY SURFACE CHANGES
Dear Mr. Sandblast,
The City of Renton has always considered the changes in the face of the sign that you proposed as
a structural change. The sign face itself is part of the sign structure. The structure is not limited
solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors, the type of change you propose is not
allowed by our sign code.
If you have further questions,please contact Robert Arthur, Code Compliance Officer for the City
of Renton, at(425)277-6169:`
Sincerely,
es C. Hanson, Director
t147
Development Services
cc: Robert Arthur
JCH:ckg98-027
EXHIBIT 2
200 Mill Avenue South - Renton, Washington 98055
i
XXV1 CASES REPORTED
Webster, State v.128 CASES DETERMINED IN THE
Weddel, State v.1046
Weikel, State v. 1029
Welliver, State v 1005 COURT OF APPEALS
Western Fire Insurance Company of Fort Scott
Kansas, Keesling v.1014
OF
Westlake Chevrolet Company, Inc. v. Seattle Human
Rights Commission 1048
Weygandt, State v. 599 WASHINGTON
Whatcom County, Cwalinski v 1065
Whatcom County District Court, State ex rel.
Schlegel v 1019
No. 5071-1. Division One. May 8, 1978.]
Wheeler, State V. 1051
White, State v. 1031, 1032, 1034 ROBERT H. KELLER, JR., ET AL, Appellants, V. THE
White, Turner v. 290 CITY OF BELLINGHAM, ET AL, Respondents.
Wilcox, State v. 617 1] Zoning — Review — Administrative Remedies — Disre-
Williams V. Burrus 494 1gard — Effect. It is improper to seek judicial intervention in a
Williams, Ward v. 1039 zoning matter without having exhausted all administrative remedies
Wilshire Insurance Company v. Jefferson 1059 provided in the zoning ordinance. Such error is not jurisdictional,
Wilson, State v 592, 1038 however, and when all parties concur in a judicial review the court's
Wolf, State v 1007 action will not be reversed on the basis of that error.
Wolfe, Dooley v 1020 2] Zoning — Review — Nonaction of Legislative Body —
Woods, In re 515 Effect.A city council whose only function under a zoning ordinance
559
is legislative does not take any action which is reviewable when it
Worland, State v. discusses a matter but does not formally act by motion or
Wraspir, State v.626 resolution.
Wyatt, State v 1046
1010
3] Zoning — Nonconforming Use — Intensification — Public
Wynn, State v Policy. It is the public policy of the state that nonconforming use:
1021 be restricted and eventually phased out. However, zoning regula-
tionsYakimav. Jimenez must be strictly construed in favor of a property owner, and
Yancovich v. Cavanaugh Lumber Company, Inc. 347 intensification of a nonconforming use, as opposed to enlargement,
Zimny v. Sutherland Motors, Ltd. 1006 will be permitted unless a zoning regulation specifically prohibits it.
4] Zoning — Nonconforming Use — Intensification — What
Constitutes. Modernization of a nonconforming use and improve-
t ments in efficiency do not constitute an enlargement of the use so
long as the original purpose of the use remains unchanged.
5] Zoning — Construction — Evidence — Administrative
Opinion. The interpretation of a zoning regulation by an officer
k charged with its enforcement is entitled to great weight by the
courts.
EXHIBIT 3
I
2 KELLER v.BELLINGHAM May 1978 I May 1978 KELLER v.BELLINGHAM 3
20 Wn.App. 1,578 P.2d 881 20 Wn.App. 1,578 P.2d 881
6] Appeal and Error — Findings of Fact — Review — In Gen- plant but share a concern that the Bellingham zoning ordi-
eral.When a trial court's findings are supported by substantial evi- nance be enforced.
deuce,an appellate court may not disturb them. Georgia-Pacific operates its chlor-alkali facility in an
Nature of Action: Citizens of a municipality sought a industrial section of Bellingham which is zoned for heavy
declaratory judgment as to the validity of an improvement manufacturing. The plant, which manufactures liquid chlo-
to an industrial nonconforming use. The city council had rine, has been in operation since October of 1965. The
taken no action although it had received an opinion of the chlorine that is manufactured there is used for such pur-
city attorney that the action was valid. poses as water and sewage treatment and in the manufac-
ture of insecticides, herbicides, textiles, detergents, fuel,
Superior Court: The Superior Court for Whatcom metal alloys and plastics.
County, No. 49750, Jack S. Kurtz, J., entered judgment on In April of 1969, the City of Bellingham enacted its zon-
September 2, 1976, for the defendant, finding that the city ing ordinance, Bellingham City Code, ch. 20.06. This ordi.
council's acquiescence constituted approval, and no grounds nance prohibited the "[m]anufacture, compounding,
for reversal existed. processing, refining, treatment, and assembly" of certain
Court.of Appeals: The court holds that the city council materials and operations," including chlorine, in a heavy
took no action subject to judicial review, but that the phys- manufacturing district zone. Bellingham City Code § 20.06-
ical improvements did not violate the zoning regulations. 122(b)(1). Any existing use which had been established
The judgment is affirmed. before the 1969 ordinance, and which was prohibited by the
Brett & Daugert and Larry Daugert, for appellants.
ordinance, was declared to be a nonconforming use and not,
therefore, in violation of the ordinance. Bellingham City
Patrick L. Brock, City Attorney, Lane, Powell, Moss & Code § 20.06.027(a)(1).
Miller, and Thomas Zilly, for respondents. Section 20.06.027(b) of the ordinance provides in perti-
nent part:
ANDERSEN, J.— 1) Any existing use lawfully established prior to April
FACTS OF CASE 21, 1969, which is not permitted in the use district in
At issue in this case is whether over a million dollars' which it is located is declared a nonconforming use and
worth of improvements to Georgia-Pacific Corporation's not in violation of this title;
chlor-alkali plant in Bellingham are in violation of that 2) A nonconforming use shall not be enlarged, relo
city's zoning ordinance.
cated or rearranged after the effective date of the ordi-
The case arose when a declaratory judgment action was
nance which made the use nonconforming;
brought seeking to have such improvements declared viola-
Italics ours.) The ordinance also provides that storage and
tive of the zoning ordinance. The case was tried to the court freight terminals are permitted uses within heavy manufac-
in the Superior Court of the State of Washington for turing districts. Bellingham City Code § 20.06.122(b)(4).
Whatcom County. I The plant includes a cell building which houses cells used
I The following facts found by the trial court are not to change sodium chloride brine into chlorine and sodium
disputed.
hydroxide through an electrolysis process. Georgia-Pacific
The petitioners, who are the appellants herein, are citi- stored spare parts in its cell building underneath the exist-
zens of Bellingham, Washington, who do not reside by the ing cells. In order to provide a better opportunity for
I
4 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 520Wn.App. 1,578 P.2d 881
20 Wn.App. 1,578 P.2d 881
cleaning the cell building and to improve mercury control, press release stated in part that the expansion would cost
as required by the Environmental Protection Act and regu-
several million dollars and that the modifications would
lations, it constructed a spare parts building at the facility allow substantial additional production without additional
in 1972. This was necessary in order to provide for the energy or pollution problems.
storage of spare parts and maintenance equipment outside
On November 4, 1974, the Bellingham City Council
the cell room and to permit required housekeeping and requested a statement in writing from the city attorney of
cleaning improvements within the cell area itself.
Bellingham as to the status of Georgia-Pacific's plan for
The space now used for the storage of spare parts and expansion with regard to the zoning ordinance. Then on
maintenance equipment within the new storage and spare
November 14, 1974, the city attorney sent an opinion letter
parts building at the plant is required by various federal to the council advising it that "under our zoning ordinance,
and state laws and regulations, and the storage of spare
modernization or improvement of a manufacturing process
may be accomplished."
parts and maintenance equipment within the new spare
Later, ccon December 4, 1974, the members of the council
parts building is reasonable under such laws and regula-
tions. The employees' locker room, lunchroom, showers and visited the plant to determine the nature and extent of the
proposed modifications. Thereafter, council members askedlaundryandtheweldingshop, paint room and valve testing
center now contained in the new spare parts building, were the city attorney to enlarge upon his opinion letter in view
all required by federal and/or state laws and regulations
of the additional information received from Georgia-Pacific
and the space used for such facilities has been reasonable. concerning the contemplated improvements to the chlor-
Prior to 1972, Georgia-Pacific used five 300-ton chlorine alkali facility. On January 6, 1975, the city attorney sent
storage tanks in connection with the storage of chlorine
the council a second opinion letter. It stated in part that
prior to shipment. In June of 1973, it installed four addi- in my opinion Georgia-Pacific is acting within the bounds
tional storage tanks to provide for increased safety and of the zoning ordinance in carrying out the contemplated
storage. The four chlorine tanks installed in June of 1973 modernization of the Chlorine Plant." This letter was
were large, visible tanks which could easily be seen by the
received and filed with the city council at its public meeting
on January 6, 1975, and the council did nothing more about
public after their construction and placement on the Geor- the matter. All of this action was reported from time to
gia-Pacific property. The average amount of chlorine stored
time in the local press.
in the original five tanks was 650.5 tons and 2.17 tanks, In reliance on the nonaction of the city council, and the
resulting in an average use of 43 percent of storage capac- two opinion letters of the city attorney, as the trial court
ity. The average storage in the existing nine chlorine stor-
age tanks has been 964 tons or 3.21 tanks, resulting in an
property by adding six new cells within the cell building."
average use of 36 percent of storage capacity. Normally, Italics ours.)
Georgia-Pacific keeps four or five tanks totally empty (void The cell building had originally been designed and con-
and with pressure reduced to a vacuum) in order to provide structed for space to hold 32 cells. When the original cell
for safety and flexibility of operations. building was constructed in 1965, the original building
In October of 1974, Georgia-Pacific issued a press release foundation was engineered and additional pilings were
announcing that it would add six new cells in the existing installed to permit the later addition of the six new cells
cell building, adding approximately 36,300 annual tons of which, in part, are the subject of the present litigation. At
new chlorine and caustic soda capacity to the plant. The.
6 KELLER v.BELLINGHAM May 1978
May 1978 KELLER v.BELLINGHAM20Wn.App. 1,578 P.2d 881
20 Wn.App. 1,578 P.2d 881
all material times, Georgia-Pacific had intended to add the
six new cells within its existing cell building. 3.
All of the activitywhich is the of this action took The City of Bellingham and Georgia-Pacific Corpora-
subjecttion are entitled to a declaratory judgment that Geor-
place in a heavy manufacturing zone area of Bellingham. gia-Pacific's installation of six new cells together with
The changes described in petitioners' complaint did not the rewind of the rectifiers and the additional trans-
result in any change in the nature or character of the use of former do not constitute an enlargement of a non-con-
the property by Georgia-Pacific. At all material times, forming use under the Bellingham Zoning Ordinance.
4.Georgia-Pacific continued to use the same property in con- The Bellingham Zoning Ordinance permits the storagenectionwiththeoperationofitschlor-alkali facility. of chlorine in a heavy industrial district without
A rewind of a rectifier and the addition of a transformer restriction.
at the plant constituted changes of methodology or tech-5.
nology, use of more modern equipment and Any change in any existing use established prior to thegY, processes effective date of the Zoning Ordinance which is reason-and resulted in a more economical consumption of electric-
ably required in order to comply with federal or state lawitybytheplant.or regulation is permitted.
The changes described in petitioners' complaint wherein 6.
they sought a declaratory judgment, and which changes are The action of the Bellingham City Council acting in
the subject of this litigation, had no significant effect on the reliance upon the letters of the Bellingham City Attor-
ney was not arbitrary or capricious and the action oftheneighborhoodorsurroundingenvironmentasthetrialcourtCityCouncilshouldbesustained.found.
Neither Georgia-Pacific nor the Italics ours.) Conclusions of law Nos. 1-6.g petitioners ever asked
The petitionersthattheboardofadjustment, which was set up by the appeal from a judgment entered for
Georgia-Pacific. They assign error only to conclusions ofBellinghamzoningordinance, review and determine the
zoning issues involved in the present litigation.law Nos. 2, 3 and 6, emphasized above, and to the corre-
The petitioners in this action have sought no specific sponding portions of the declaratory judgment.
relief other than a declaratory judgment adjudging the city I Error has not been assigned to any finding of fact; there
attorney's opinions to be in error and the changes by Geor fore the trial court's findings of fact must be considered as
gia-Pacific to its plant to be violations of the Bellingham the established facts of the case. Colella v. King County, 72
zoning ordinance.
Wn.2d 386, 388, 433 P.2d 154 (1967); State v. Lake, 7 Wn.
Based on the foregoing facts found, the trial court App 322,.327, 499 P.2d 219 (1972).
This appeal presents two legal issues.concluded:
1. ISSUES
The Court has jurisdiction over the parties and the 1 ISSUE ONE. Did the Bellingham City Council take such
subject matter of this action. 1 action as would be reviewable only under the arbitrary and2. capricious standard?The opinions of the Bellingham City Attorney IssuE Two. Did the trial court err in determiningthatarecorrect, in that an intensification of a non-con-
forming use does not constitute a prohibited enlarge- the improvements made by Georgia-Pacific to its chlor-
ment, relocation or rearrangement of the use under the alkali plant did not constitute an unlawful enlargement of a
Bellingham Zoning Ordinance. nonconforming use?
8 KELLER v.BELLINGHAM May 1978
May 1978 KELLER v.BELLINGHAM
20 Wn.App. 1,578 P.2d 881
9
20 Wn.App. 1,578 P.2d 881
DECISION 2] The fallacy in Georgia-Pacific's argument is that
IssuE ONE. here the council inquired into Georgia-Pacific's plant mod-
CONCLUSION. The Bellingham City Council took no ification and then did nothing about it, one way or the
action, legislative or otherwise; therefore, the trial court's other. So far as the record before us reflects, the whole
conclusion concerning the propriety of the council's action matter was just let drop without benefit of any formal
is without effect. motion or resolution of any kind. The council's only func-
At the outset of the discussion of the legal issues, it tion under the zoning code is legislative, Bellingham City
should be noted that this case does not involve the validity Code § 20.06.213, and it makes no administrative determi-
of Bellingham's zoning ordinance but only its interpreta- nations concerning code violations. No authority has been
tion. The ordinance contemplated that questions just such cited to us, and we know of none, which holds that in this
as this were bound to arise from time to time and estab- E kind of a situation there is any council action to judiciall.
lished a board of adjustment with the expertise to decide review. The petitioners' assignments of error directed to
them. Bellingham City Code § 20.06.201; RCW 36.70.810; conclusion of law No. 6 are well taken, and that conclusion
RCW 36.70.820. is a nullity.
1] The petitioners made no attempt to comply with the ISSUE Two.
administrative procedures established by the zoning ordi- CONCLUSION. The trial court's findings that the improve-
nance. When an adequate administrative remedy is pro- ments to Georgia-Pacific's plant constituted an intensifica-
vided, it must be exhausted before the courts will intervene. tion of the nonconforming use rather than an enlargement
Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 of it are supported by substantial evidence and are
1974). Circumventing the board of adjustment by filing a determinative.
declaratory judgment was improper in this case. 4 R. i 3, 4] Georgia-Pacific's plant is a nonconforming use
Anderson, American Law of Zoning § 28.06 (2d ed. 1977). because it was in existence prior to the effective date of the
Since the error did not go to the jurisdiction of the court, zoning ordinance. The public policy of this state, as well as
however, and since it was invited by the petitioners and the spirit of zoning measures, is to restrict rather than
concurred in by Georgia-Pacific, it is not reversible error. increase such nonconforming uses in order that they ulti-
Rao u. Auburn Gen. Hosp., 19 Wn. App. 124, 130, 573 P.2d I mately may be phased out. State ex rel. Miller v. Cain, 4C
834 (1978). Wn.2d 216, 219, 242 P.2d 505 (1952); Coleman v. Walk
The petitioners assign error to conclusion of law No. 6, Walla, 44 Wn.2d 296, 299-300, 266 P.2d 1034 (1954);
set out above, wherein the trial court concluded that "[t]he Anderson v. Island County, 81 Wn.2d 312, 323-24, 501
action of the Bellingham City Council acting in reliance P.2d 594 (1972).
upon the letters of the Bellingham City Attorney was not It should be noted parenthetically in connection with
arbitrary or capricious and the action of the City Council these three decisions on which petitioners rely, that unlike
should be sustained." Georgia-Pacific argues that this was the present case, Miller involved a new and substantially
proper and that the council's action cannot be overturned larger building, Coleman involved a new nonconforming use
absent a showing of arbitrary and capricious conduct by it. and Anderson involved changing a residential zone to a
Georgia-Pacific argues State ex rel. Myhre v. Spokane, 70 commercial zone in order to establish a new use.
Wn.2d 207, 210-13, 422 P.2d 790 (1967) and other decisions Speaking generally of nonconforming uses, one text sum-
of like import as supporting this position. marizes as follows:
10 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 11
20 Wn.App. 1,578 P.2d 881 20 Wn.App. 1,578 P.2d 881
The standard for determining the extent of an author- A nonconforming use of land, whether it is a dairy
ized nonconforming use is ordinarily the use that is being farm, a manufacturing plant, or a rooming house, is not
carried on the premises at the time of the adoption of the likely to remain static. As the use is exploited and eco-
zoning laws. In other words, a nonconforming use must in nomic changes occur, it may grow in volume or intensity,
substance be the same after the passage of a zoning ordi- and periods of active use may become more frequent or
nance as it was theretofore. However, the continuance of of longer duration. These changes in the level of use may
an existing nonconforming use carries with it all the inci- have profound impact upon property in the areas where
dents of that use which appertained to it when zoning they are located, but the zoning regulations seldom
laws were enacted. Accordingly, one entitled to a non- include specific provisions for restricting this kind of
conforming use has a right to repair, restore and replace growth.
structures in connection with the use, to engage in uses 1 R. Anderson, American Law of Zoning § 6.47 (2d ed.
normally incidental and auxiliary to the nonconforming 1976). Some zoning ordinances do specifically provic'use, and to modernize and employ improved instrumen-
talities in connection with such use. against intensifying nonconforming uses. See 2 1
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora- Rathkopf, The Law of Zoning and Planning 60-1 (3d ed.
tions § 25.200 (3d ed. rev. 1976). And further,1972). Bellingham's zoning ordinance did not so provide;
therefore, we must assume that it did not intend to do so
It is the general rule that the employment of modern
and more effective instrumentalities, not previously used, since zoning ordinances are in derogation of the common
in a nonconforming business or use or in connection with law and must be strictly construed in favor of the property
a nonconforming building does not constitute a prohib- owner. Pearson v. Evans, 51 Wn.2d 574, 576, 320 P.2d 300
ited expansion or enlargement of the business, use or 1958).
building. In short, an owner can modernize facilities and 5] Here the case was fully tried out in the trial court,
employ improved instrumentalities in connection with a the forum sought by the petitioners. The primary issue innonconformingbuildingoruse. However, the instrumen-
talities must be ordinarily and reasonably adapted to that court was whether the improvements to Georgia-
make the use in question available to the owner, and, Pacific's plant amounted only to an "intensification" of the
moreover, the original nature and purpose of the under- use, or was an "enlargement" of the use. The testimony
taking must remain unchanged. Thus, for example, in i before that court included that of Bellingham's planning
mining, quarrying and similar types of uses, the intro- j director of many years. The sum and substance of her tes-
duction of new, mechanized devices and equipment is not
an enlargement or extension of the use, but merely a timony was that she was familiar with the improvements t
more effective method of carrying it on. the plant and concurred with the city attorney's opinion
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora- which was that Georgia-Pacific acted within the bounds of
tions § 25.210 (3d ed. rev. 1976). the zoning ordinance in carrying out its plant moderniza-
The zoning ordinance requires that nonconforming uses
tion. As one of the officials charged with the enforcement of
not be enlarged, relocated or rearranged after the effective the code, her testimony was entitled to great weight. Morin
date of the ordinance which made the use nonconforming;"
v. Johnson, 49 Wn.2d 275, 279, 300 P.2d 569 (1956); Ball v.
Bellingham City Code § 20.06.027(b)(2). The zoning ordi- Smith, 87 Wn.2d 717, 723, 556 P.2d 936 (1976).
nance thus prevented "enlarging" nonconforming uses.
6] The trial court found as a fact that there had been
The zoning ordinance did not, however, prevent intensi-an "intensification" of the nonconforming use. It also
fying" nonconforming uses. As one recognized authority
determined that there had not been an "enlargement" of
explains it,
i
12 DAILEY v.LANGE May 1978 May 1978 DAILEY v.LANGE 13
20 Wn.App. 12,578 P.2d 1322 20 Wn.App. 12,578 P.2d 1322
I.
it.' There being substantial evidence to sustain the trial Nature of Action: The plaintiff police officer was on
court's findings in this regard, they will not be disturbed on foot on a highway right—of—way controlling traffic when he
this appeal. As expressed by the State Supreme Court in a was struck by a vehicle driven by the defendant. The
like situation, plaintiff sought damages.
If we were of the opinion that the trial court should have Superior Court: The Superior Court for King County,
resolved the factual dispute the other way, the constitu- No. 801425, Francis E. Holman, J., entered a judgment on
tion does not authorize this court to substitute its find- October 19, 1976, on a verdict in favor of the defendant.
ings for that of the trial court.
Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, Court of Appeals: Holding that the police officer was
343 P.2d 183 (1959). We have consistently so held. Charles not a pedestrian and was entitled to a special status of
Pankow, Inc. v. Holman Properties, Inc., 13 Wn. App. 537, working on the right—of—way, the court reverses the judr
542, 536 P.2d 28 (1975).
ment and remands for a new trial.
Affirmed. Arthur D. Swanson, for appellant.
JAMES and DORE, JJ., concur.
Merrick, Hofstedt & Lindsey and Thomas J. Collins, for
respondents.
Reconsideration denied October 17, 1978.
RINGOLD, J.—In February 1974, during the gasoline
Review granted by Supreme Court February 28, 1979. shortage crisis, the plaintiff, a Renton police officer, was
assisting the movement of traffic on North 30th in Renton
when he was struck by defendant's vehicle. Lange, east-
bound at 5 to 8 miles per hour, swerved to the right to miss
No. 5118-1. Division One. May 8, 1978.] a car leaving a gasoline station on the north side of the road
and in doing so struck Dailey, who was walking westbound
BART W. DAILEY, Appellant, V. HUBERT M. LANGE, along the edge of the roadway. Dailey was proceeding
ET AL, Respondents.alongside a line of cars parked partially on the roadway,
1] Automobiles — Pedestrians — Persons Working on Right- and partially on the shoulder. From a verdict for th
of-Way — Police Officer. A police officer on foot on a highway defendant, the plaintiff appeals. Plaintiff assigns as errc_
right-of-way while controlling traffic is not a "pedestrian," within the giving of certain instructions and failing to give the
the meaning of RCW 46.61.240(1) which requires pedestrians not in plaintiff's proposed instruction providing that a police offi-
a crosswalk to yield to all vehicles. Such an officer is a "person
engaged in work" within the right-of-way of a highway within the cer enjoys a special status which must be considered in
meaning of RCW 46.61.030 and is not held to the same duty of care determining whether he has exercised due care for his
as a pedestrian under RCW 46.61.250, or required to keep a con- safety, and that a driver must drive at a speed which is
stant lookout for approaching vehicles. prudent in light of conditions then existing.
The trial court did not err in refusing to give plaintiff's
Whether there is an enlargement of a use is a question of fact. Jamison v. proposed instruction on excessive speed. The question ofKyles,271 N.C.722, 157 S.E.2d 550(1967);Application of Hosting,252 N.C.327,
113 S.E.2d 433, 434 (1960). A finding of fact labeled as a conclusion of law will the defendant's speed is amply covered in the general
nonetheless be treated as a finding of fact.Redmond u.Kezner, 10 Wn.App. 332, instruction requiring the jury to determine whether or not
343, 517 P.2d 625 (1973). Accord, Estes u. Bevan, 64 Wn.2d 869, 395 P.2d 44
1964).
i
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September 28, 1998
CERTIFICATE OF MAILING
STATE OF WASHINGTON
ss.
COUNTY OF KING
MARILYN J. PETERSEN, City Clerk for the City of Renton, being first duly
sworn on oath, deposes and says that she is a citizen of the United States and
a resident of the State of Washington, over the age of 21 and not a party to nor
interested in this matter.
That on the 28th day of September, 1998, at the hour of 5:00 p.m your affiant
duly mailed and placed in the United States Post Office at Renton, King
County, Washington, by first class mail to all parties of record, notice of appeal
of Hearing Examiner's decision filed by Paul R. Taylor, representative for AK
Media/NW (File No. LUA-98-102, AAD).
f
Marilyn . 'a-rsen, City Clerk
SUBSCRIBED AND SWORN TO BEFORE me this 28th day of September 1998.
qPi\JAACkeri.
Brenda Fritsvold
Notary Public in and for e State of
Washington, residing in
CITY OF RE_ [TON
Office of the City Clerk
200 Mill Avenue South - Renton,Washington 98055
ADDRESS SERVICE REQUESTED
Jim Hanson
1055 S. Grady Way
Renton, WA 98055
CI" This paper contains 50%recycled paper,20%post-consumer
Frank Podany
3601 6th Avenue S.
Seattle, WA 98134
This paper contains 50%recycled paper,20%post-consumer
Zanetta Fontes
1055 S. Grady Way
Renton, WA 98055
This paper contains 50%recycled paper,20%post-consumer
Paul R. Taylor
1000 Second Avenue, 38th Floor
Seattle, WA 98104
In This paper contains 50%recycled paper,20%post-consumer
CITY CLERK'S OFFICE
Send Copies to:
CITY ATTORNEY
rig CITY COUNCIL
FINANCE/INFO SERVICES
FIRE DEPT/FIRE PREVENTION Art LQ/SO?
HEARING EXAMINER
HOUSING&HUMAN SERVICES I
X MAYOR/EXECUTIVE Nap, Jay dc' iis91o4
COMMUNITY SERVICES
HUMAN RESOURCES/RISK MGMT.
PLANNING COMMISSION
POLICE
NEWSPAPER SCS
CODIFIER
S/ PARTIES OF RECORD
PLANNING/BUILDING/PUBLIC WORKS
1 ADMINISTRATION 41e'j Zinimemian
AIRPORT
DEVELOPMENT SERVICES Lairy /Y/eCKliry
Building/Zoning/Plan Review
PLANNING&TECHNICAL SVCS.
Property Management
TRANSPORTATION SYSTEMS Sard1a Meyer
Traffic Engineering
I UTILITY SYSTEMS Lys Norns b y
a EDNSP - Sue CQdsor+
i
ka-therm art
I ri le-
AFFIDAVIT OF SERVICE BY MAILING
STATE OF WASHINGTON )
ss.
County of King
MARILYN MOSES being first duly sworn, upon oath, deposes
and states:
That on the 10th day of September ,1998, affiant deposited in the mail of the
United States a sealed envelope(s)containing a decision or recommendation with postage
prepaid, addressed to the parties of record in the below entitled application or petition.
Signature: 1( l/( 6QpD
SUBSCRIBED AND SWORN to before me this AA day of 1998.
Notary Public' and r the State of Washington,
residing at P.. W therein.
Application, Petition, or Case No.: Appeal by AK Media
LUA98-102,AAD
The Decision or Recommendation contains a complete list of the Parties of Record.
September 10, 1998
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION
APPELLANT: Paul Taylor
Appeal of Administraive Determination
File No.: LUA-98-102,AAD
SUMMARY OF APPEAL: Appeal of Administrative determination prohibiting use of"tri-
vision"billboard signs.
PUBLIC HEARING: After reviewing the Appellant's written request for a hearing
and examining the available information on file,the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The following minutes are a summary of the August 25, 1998 hearing.
The official record is recorded on tape.
The hearing opened on Tuesday,August 25, 1998,at 10:30 a.m. in the Council Chambers on the seventh floor
of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner.
The following exhibit was entered into the record:Exhibit No. 1: Yellow file containing the appeal,
proof of posting and publication,and other
documentation pertinent to the appeal.
Parties present: Representing AK Media NW
Paul R. Taylor
1000 Second Avenue, 38th Floor
Seattle, WA 98104
Representing City of Renton
Zanetta Fontes
1055 S Grady Way
Renton,WA 98055
The Examiner explained that the appeal was an administrative appeal held pursuant to Ordinance 3071 and was
the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for
reconsideration if the parties are not satisfied with the decision. He stated that the appellant had the burden of
demonstrating that the City's action was erroneous,and would have to show clear and convincing evidence that
the City's determination was incorrect. At that point the City could respond, if they chose to do so.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 2
Mr. Taylor stated that AK Media maintains a number of sign structures in the City of Renton. On some of
those sign structures AK Media wants to replace flat display surfaces with what are called tri-vision display
surfaces. The replacement of flat display surfaces with tri-vision display surfaces involves no alteration
whatsoever to the structure. Appellant replaces flat display surfaces in the City of Renton all the time for
changing the sign and for maintenance,and they are not doing anything different than they have always done
and feel they are allowed to do. The fundamental issue is there is no alteration to the structure which holds up
the display surface. He further stated that the owner of a nonconforming use has the right to modernize that
use and improve or employ improved instrumentality. He stated that this is no different,for example,than if
they wanted to use bolts that had a higher tension or a higher strength than what currently exists on the
billboard or on the sign structure.
Frank Podany, 3601 6th Avenue S, Seattle, Washington 98134,testified on behalf of the appellant. He is the
regional real estate manager of AK Media NW, and is responsible for 2,300 sign structures located in 108
municipalities from Bellingham, Washington to Eugene,Oregon. He stated that the signs used in Renton are
basically of two support structures,one a monopole and the second an I-beam. Both are steel columns in
concrete in the ground. On top of these columns are either a torsion bar or post-tops. The display surface sits
on deck arms or horizontal bars. In order to change the display surface, it is unbolted from the sign structure
and replaced. This is done routinely for maintenance and to change to a tri-vision display surface. A tri-vision
display surface is simply bolted to the structure,with no alteration to the structure.
On cross-examination,Mr. Podany stated that when a display surface is changed, it is unbolted, lifted off and a
new one put in place. The entire surface, including the frame, is removed. All that remains at this point is the
post-tops and the structure that holds the post-tops in place. In order to turn the tri-vision pieces,there are
gears and a belt powered by a small electric motor. There is no motor in the existing current flat display. On
the tri-vision units that spin,there are approximately 20 slats per side,with a pivot point at the top and bottom.
Jim Hanson,Development Services Director,City of Renton, 1055 S. Grady Way,Renton, Washington 98055,
stated that the City believes that the display surface that is being changed or taken down and put back up is a
structure. He explained the different code definitions for structures which the City looks at in determining its
decision. The replacement of a single faced display by a tri-vision unit with an electrical component and
pieces that will actually pivot is considered a change in the integral parts of the framed unit that gets replaced.
Responding to questions by Mr. Taylor,Mr. Hanson stated that the issue here was whether this was a structural
change,not just a change in the display surface. He further stated from the code that signs in existence may be
maintained,but not expanded,moved or structurally altered. He agreed that the focus here is on the display
surface and not the sign structure,that there is a structural change between a flat surface sign and a proposed
tri-vision structure.
Closing arguments were given by the parties and their comments reiterated their previous statements.
The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The
hearing closed at 11:10 a.m.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 3
FINDINGS, CONCLUSIONS & DECISION
Having reviewed the record in this matter,the Examiner now makes and enters the following:
FINDINGS:
1.The appellant,Paul Taylor for AK Media Northwest(hereinafter AK Media),filed an appeal of an
administrative determination that replacing single-faced display signs with tri-vision signs was not
permitted.
2.AK Media owns a number of outdoor advertising signs in Renton. These signs are considered "off-
premises" signs,not immediately located on or closely associated with the business or item being
advertised. These signs are on support structures consisting of either of two configurations. One
structure consists of two parallel upright I-beams with cross bars. The other is a single pole with a
perpendicular support bar. Both types support removable display surfaces on which advertising copy is
affixed.
3.The appellant apparently periodically removes the display surface from the supporting structure for
maintenance in which display or advertising copy remnants and paste,etc. are removed. When one
such face is removed for cleaning,another is placed up.
4.It would appear that the appellant in some fashion not revealed by the record indicated that they would
be replacing single-faced/single message signs with a sign capable of displaying in turn,three separate
messages on what is called a tri-vision sign.
5.James C.Hanson,Director of Development Services, issued administrative determination on June 5,
1998,directed to Terry Sandblast,Governmental Affairs Manager of AK Media Northwest, indicating
such tri-vision replacements were not allowed. The record does not show specifically what generated
this correspondence.
6.The letter from Hanson stated:
Subject: DISPLAY SURFACE CHANGES"
The City of Renton has always considered the changes in the face of the sign that you
proposed as a structural change. The sign face is part of the sign structure. The
structure is not limited solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors,the type of change you propose
is not allowed by our sign code."
7.The appellant in its support of its appeal conceded that the signs are non-conforming uses
correspondence dated August 12, 1998 at Page 2):
The City correctly concluded that AK Media's advertising signs are a non-conforming
use and that under the City Code,non-conforming uses cannot be'structurally altered."'
8.The appeal by AK Media was filed on June 18, 1998 and was timely filed. Its main points are:
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 4
The decision bars the use of so-called "tri-vision" faces on billboard structures in the
City of Renton. Tri-vision faces are made of triangular slats which periodically rotate,
thus presenting three alternating messages on billboard faces."
There is nothing in the Renton Municipal Code which bars tri-vision billboard faces.
The billboard structures themselves are legal non-conforming structures and use. The
installation of the tri-vision panels on the structures does not expand either the
structures or the use."
9.The appellant claims that changing the surface from "plain"to tri-vision is not a"structural change."
10. The Sign Code,Title 4,Chapter 20 contains the following definitions applicable to this appeal(Section
4-20-2):
ANIMATED SIGN: A sign with action or motion,flashing or color changes requiring
electrical energy,electronic or manufactured source of supply,but not
including revolving signs or wind actuated elements such as flags or banners.
DISPLAY SURFACE: The area made available by the sign structure for the purpose
of displaying the advertising message.
OFF-PREMISES SIGN: Any sign which cannot be classified as an on-premises sign
as described below.
ON-PREMISES SIGN: A sign which displays only advertising copy strictly incidental
to the lawful use of the premises on which it is located, including signs or sign
devices indicating the business transacted at, services rendered,goods sold or
produced on the immediate premises,name of the business,person,firm or
corporation occupying the premises.
SIGN: Any medium, including merchandise, its structure and component parts,which
is used or intended to be used to attract attention to the subject matter for
advertising purposes.
SIGN STRUCTURE: Any structure which supports or is capable of supporting any
sign as defined in this Code. A sign structure may be a single pole and may or
may not be an integral part of the building.
STRUCTURE: That which is built or constructed, an edifice or building of any kind,
or any piece of work artificially built up or composed of parts joined together
in some definite manner.
11. In addition,the Sign Code contains the following relevant provisions:
Section 4-20-8 defines the prohibited signs:
3.All of the following signs within seventy five feet(75')of the public right-of-
way with any of the following features: animated,revolving more than eight
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 5
8)revolutions per minute,blinking and flashing. Exceptions are public
service signs, such as those which give the time,temperature and/or humidity.
10. Off-Premises Signs. Except:
a.Signs allowed by Section 4-20-9,4-20-10 and 4-20-11.
b.Off-premises advertising may be allowed as an accessory use of an
identification sign or other structure if the following conditions are
met:
1) The maximum size of the off-premises advertising is six(6)square
feet.
2) No more than twenty five percent(25%)of the principal structure
is covered by the off-premises advertising sign.
3) The off-premises advertising sign is designed to be viewed by
users of the facility rather than street traffic.
c.Off-premises signs in existence upon passage of this Section may
be maintained but not expanded,moved or structurally altered.
Ord.4172,9-12-88) (emphasis supplied)
CONCLUSIONS:
1.The appellant has the burden of demonstrating that the decision was either in error, or was otherwise
contrary to law or constitutional provisions,or was arbitrary and capricious(Section 4-8-11(B)(4). The
appellant has failed to demonstrate that the action of the City should be modified or reversed. The
decision of the City is affirmed.
2.Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the
facts and circumstances. A decision,when exercised honestly and upon due consideration of the facts
and circumstances, is not arbitrary or capricious(Northern Pacific Transport Co.v Washington Utilities
and Transportation Commission,69 Wn. 2d 255,259(1969).
3.An action is likewise clearly erroneous when, although there is evidence to support it,the reviewing
body, on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. (Ancheta v Daly, 77 Wn. 2d 255,259(1969).
4.The appellant has failed to demonstrate that the decision was founded upon anything but a fair review
of the Sign Code as it pertains to the proposed changes. The appellant has failed to demonstrate with
cogent evidence that a mistake was made.
5.Since the burden of demonstrating error is on the appellant,this office can reach no other conclusion
but that staff made the correct determination. The proposed changes are not permitted and cannot be
approved administratively. The decision below must be affirmed.
6.The appellant relied on a number of court cases to demonstrate its point but it appears that rules of
construction and the import of the common law vis-a-vis zoning law are unnecessary in reviewing this
matter. The appellant relied on the definition of"sign structure" in supporting its claim that the
appellant was not altering the sign structure.
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 6
7.But it is clear that the Sign Code contains a definition of structure which is more encompassing. The
Sign Code provides two definitions which may overlap but separately define "structure" and "sign
structure." A "structure" appears to be anything constructed or put together which does not occur
naturally,while a"sign structure" is the support mechanism which holds the actual sign.
8.What is prohibited by Renton Code is structural alteration. It does not specifically prohibit"sign
structure alteration." The code bars signs from being "structurally altered." "Structure" as defined by
the Code includes not only the appellant's single pole or dual-I-beam "sign structure"but also the sign
or display face. The entire system sign,poles,etc.,are a"structure" under the Code.
9.The City has barred no one from changing the copy displayed. Nor has the City barred them from
routine maintenance which apparently even includes removing the one display surface for cleaning and
replacing it by another functionally similar display surface.
10. The proposed tri-vision display surface is an animated surface comprised of triangular slats that rotate
by use of an electrical motor and some form of drive mechanism. As proposed by the appellant,this
moving,electricity-powered,faceted surface replaces a solid,unmoving surface. The surfaces,a plain
unmoving surface and a moving three-faced surface,are not equivalent. The surface of a tri-vision sign
along with the sign structure are not equivalent to a plain flat surface on a sign structure.
11. The replacement of a plain surfaced sign with a tri-vision sign or surface would result in a sign which
has been "structurally altered." That is clearly not permitted. That is what staff has determined. There
is no evidence that staff has misread or misconstrued the code. There is no need to resort to rules of
construction.
12. The determination below must be upheld since there was nothing in the record to allow this office to
conclude the decision below was either clearly erroneous or arbitrary and capricious.
DECISION:
The appeal is denied.
ORDERED THIS 10th day of September, 1998.
FRED J.KAU N
HEARING EXAMINER
TRANSMI Fl ED THIS 10th day of September, 1998 to the parties of record:
Paul R. Taylor Zanetta Fontes Frank Podany
1000 Second Avenue 1055 S.Grady Way 3601 6th Avenue S
38th Floor Renton,WA 98055 Seattle, WA 98134
Seattle, WA 98104
Paul Taylor
AK Media Northwest
Appeal of Administrative Determination
File No.: LUA98-102,AAD
September 10, 1998
Page 7
Jim Hanson
1055 S Grady Way
Renton, WA 98055
TRANSMITTED THIS 10th day of September, 1998 to the following:
Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Administrator
Members,Renton Planning Commission Jim Hanson,Development Services Director
Art Larson,Fire Marshal Mike Kattermann, Technical Services Director
Lawrence J. Warren,City Attorney Larry Meckling, Building Official
Transportation Systems Division Jay Covington,Chief Administrative Officer
Utilities System Division Councilperson Kathy Keolker-Wheeler
Sue Carlson,Econ. Dev.Administrator South County Journal
Pursuant to Title IV,Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in
writing on or before 5:00 p.m.,September 24,1998. Any aggrieved person feeling that the decision of the
Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the
discovery of new evidence which could not be reasonably available at the prior hearing may make a written
request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This
request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may,
after review of the record,take further action as he deems proper.
An appeal to the City Council is governed by Title IV,Chapter 8, Section 16,which requires that such appeal
be filed with the City Clerk,accompanying a filing fee of$75.00 and meeting other specified requirements.
Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City
Hall.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the
executed Covenants will be required prior to approval by City Council or final processing of the file.
You may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one)communications may
occur concerning pending land use decisions. This means that parties to a land use decision may not
communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use
process include both the Hearing Examiner and members of the City Council.
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.
Page 1
Citation/Title
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
726 92 Wn.2d 726
600 P. 2d 1276
Obert H.KELLER,Jr.,William G.Sodt,Jerry Burns,Carolyn
Richard,Henry Schwan,Jr.,Robert Scott,and
William Servais,Petitioners,
v.
The CITY OF BELLINGHAM,a municipal corporation;and
Georgia-Pacific Corporation,a Georgia
Corporation,Respondents.
No. 45882 .
Supreme Court of Washington, En Banc.
Oct. 11, 1979.
Citizens of city brought declaratory judgment action against city and chlor-
alkali plant, seeking to have improvements to plant declared violative of city
zoning ordinance. The Superior Court, Whatcom County, J. S . Kurtz, J. , entered
judgment that improvements were not in violation of zoning ordinance, and
petitioners appealed. The Court of Appeals, 20 Wash.App. 1, 578 P.2d 881,
affirmed, and further appeal was taken. The Supreme Court, Hicks, J. , held that
in light of fact that, at time zoning ordinance was adopted so as to render
chlor-alkali plant' s use of part of its building a nonconforming use, plant
intended to dedicate greater portion of its facilities to such use, that city
attorney opined that such improvement was permissible and that nature and
character of nonconforming use was not changed by the expansion, trial court did
not abuse its discretion in determining that such improvement constituted an
intensification of a nonconforming use rather than a prohibited enlargement.
Affirmed.
Williams, J. , filed dissenting opinion in which Utter, C. J. , Dolliver and
Rosellini, J. , joined.
1 .APPEAL AND ERROR f, 719 (6)
30
30XI Assignment of Errors
30k719 Necessity
30k719 (6) Sufficiency of evidence.
Wash. , 1979.
Where no error was assigned to trial court ' s findings of fact, findings would
be considered verities .
2 . STATUTES €239
361
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Page 2
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
361VI Construction and Operation
361VI (B) Particular Classes of Statutes
361k239 Statutes in derogation of common right and common law.
Wash. , 1979.
Enactments in derogation of common law are to be strictly construed.
3. ZONING AND PLANNING q0,7,P232
414
414V Construction, Operation and Effect
414V(A) In General
414k232 Strict or liberal construction.
Wash. , 1979.
Zoning ordinances are to be liberally construed to accomplish their purpose,
but they are not to be extended beyond clear scope of legislative intent as
manifest in their language.
4 . STATUTES C 219 (1)
361
361VI Construction and Operation
361VI (A) General Rules of Construction
361k213 Extrinsic Aids to Construction
361k219 Executive Construction
361k219 (1) In general .
Wash. , 1979.
Considerable judicial deference is given to construction of legislation by
those charged with its enforcement .
5. ZONING AND PLANNING C329. 1
414
414VI Nonconforming Uses
414k329 Enlargement or Extension of Use
414k329. 1 In general .
Formerly 414k329
Wash. , 1979.
Intensification of a nonconforming use is permissible where nature and
character of the use is unchanged and substantially same facilities are used;
test is whether intensified use is "different in kind" from nonconforming use in
existence when zoning ordinance was adopted.
6. ZONING AND PLANNING q` 330
414
414VI Nonconforming Uses
414k329 Enlargement or Extension of Use
414k330 Area of use.
Wash. , 1979.
If a use is established in part but not all of a building prior to enactment
of a zoning ordinance, right to continue use as "nonconforming" may not include
Copyright (c) West Group 1998 No claim to original U.S . Govt. works
Page 3
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
right to extend it to other portions of building; such extension is
permissible, however, if design of structure indicates that at time of passage
of zoning restriction it was intended to dedicate building, in its entirety, to
such use.
7 . ZONING AND PLANNING q:t.P330
414
414VI Nonconforming Uses
414k329 Enlargement or Extension of Use
414k330 Area of use.
Wash. , 1979.
In light of fact that, at time zoning ordinance was adopted so as to render
chlor-alkali plant' s use of part of its building a nonconforming use, plant
intended to dedicate greater portion of its facilities to such use, that city
attorney opined that such improvement was permissible and that nature and
character of nonconforming use was not changed by the expansion, trial court did
not abuse its discretion in determining that such improvement constituted an
intensification of a nonconforming use rather than a prohibited enlargement .
727 [600 P.2d 1277] Brett & Daugert, Lawrence B. Daugert, Bellingham, for
petitioners .
Lane, Powell, Moss & Miller, Thomas S . Zilly, Seattle, Patrick L. Brock,
Bellingham, for respondents .
HICKS, Justice.
This appeal challenges a decision of the Court of Appeals, Division One,
upholding the trial court 's determination that improvements made by the Georgia-
Pacific Corporation (GP) to its chlor-alkali plant do not constitute unlawful
enlargement" of a nonconforming use under the Bellingham zoning ordinance. The
facts are set forth with considerable particularity in the opinion of the Court
of Appeals. Keller v. Bellingham, 20 Wash.App. 1, 578 P.2d 881 (1978) . We
affirm the Court of Appeals.
600 P.2d 1278] In 1965, GP constructed a chlor-alkali facility in an
industrial section of Bellingham zoned as a "heavy manufacturing district . "
Liquid chlorine has been manufactured at the plant since October 1965. Through
an electrolysis process, sodium chloride brine is changed into chlorine and
sodium hydroxide in devices known as electrolytic cells . The cells are large
troughlike structures measuring some 50 feet in length, 5 feet in width and
about 1 foot in depth. GP originally designed and constructed its building to
accommodate 32 cells, although only 26 were in place when the plant began
operations in 1965. At all material times, GP intended to add six cells to the
cell building.
April 1969, the Bellingham City Council adopted a zoning ordinance which,
Copyright (c) West Group 1998 No claim to original U.S . Govt. works
Page 4
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
among other things, prohibits the "manufacture" of chlorine in a heavy
manufacturing zone. Bellingham City Code s 20 . 06. 122 (b) (1) . Section
20. 06. 027 (b) of the code provides in part:
1) Any existing use lawfully established prior to April 21, 1969, which
is not permitted in the use district in which it is located is declared a
nonconforming use and not in violation of this title;
728 (2) A nonconforming use shall not be enlarged, relocated or
rearranged after the effective date of the ordinance which made the use
nonconforming;
GP' s chlorine operations were continued as an authorized nonconforming use .
October 1974, in a press release given prominent coverage by the local media,
GP announced a plant modernization plan, including Inter alia the addition of
six electrolytic cells to bring the cell building to its design capacity of 32 .
The added cells were forecast to increase chlorine production by 20 to 25
percent .
November 4, 1974, the Bellingham City Council reacted to the GP announcement
by requesting a written statement from the city attorney regarding the
permissibility of the proposed plant improvements under the zoning code. The
city attorney responded by a letter dated November 14, which concluded that
u) nder our zoning ordinance, modernization or improvement of a manufacturing
process may be accomplished. " December 4, 1974, several city council members
toured the GP plant and thereafter requested a further opinion from the city
attorney. In a second letter opinion, the city attorney concluded "Georgia
Pacific is acting within the bounds of the zoning ordinance in carrying out the
contemplated modernization of the Chlorine Plant. " The city council filed the
letter in its January 6, 1975 open meeting and took no further action. All
events related above were reported periodically in the local press .
GP proceeded with its plant improvements. The estimated cost of the cell
addition was $531, 000 . Several local citizens commenced an action against the
City of Bellingham, which ultimately became a declaratory judgment action. They
sought, Inter alia, an adjudication that the city attorney' s letter opinions
were erroneous as a matter of law and a declaration that the addition of six
electrolytic cells violated the zoning ordinance. Upon stipulation of the
parties, GP intervened.
Following a trial to the court, findings of fact and conclusions of law were
entered. Although other issues were *729 raised before the trial court, the
sole remaining issue is the legality of the six-cell addition. The trial judge
concluded, as a matter of law, that the letter opinions correctly interpreted
the law and the addition of the six electrolytic cells constituted a permitted
intensification" of a nonconforming use, not a prohibited "enlargement" of such
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Page 5
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
use.
1] On appeal, error was assigned only to the trial court' s conclusions of
law Nos . 2, 3 and 6. No error was assigned to any finding of fact and the
findings must thus by considered verities. Goodman v. Bethel School Dist. , 84
Wash.2d 120, 124, 524 P.2d 918 (1974) . Petitioners do not dispute this posture
on review of the case; however, they do assert that the Court of Appeals
erroneously held the critical "conclusion of law" to be a "finding of fact",
thereby insulating it from appellate review. See Keller v. Bellingham, supra 20
Wash.App. at 11, 12, n. 1, 578 P.2d 881 . Petitioners contend they received no
appellate review [600 P.2d 1279] of a genuine issue of law: "whether undisputed
facts in this particular case compel the legal conclusion that the acts done at
the Bellingham chlor-alkali plant were in violation of the local zoning
ordinance. " For purposes of this review, we accept the designations of the
trial court and we do not characterize the challenged "conclusion of law" as a
finding of fact" as did the Court of Appeals .
Petitioners argue that the facts found by the trial court compel a conclusion
that the GP plant modernization constituted prohibited "enlargement" under the
zoning ordinance. They premise this argument upon three Washington cases : State
ex rel . Miller v. Cain, 40 Wash.2d 216, 242 P.2d 505 (1952) ; Coleman v. Walla
Walla, 44 Wash.2d 296, 266 P.2d 1034 (1954) ; and Anderson v. Island County, 81
Wash.2d 312, 501 P. 2d 594 (1972) . Petitioners assert that, considered together
these cases demonstrate "this Court' s extraordinary tenacity in holding that
non-conforming uses must be discouraged, even abated, as opposed to enlarged. "
They urge that "this doctrine should apply to industrial expansion as well . "
They argue that under the facts of this *730 case, the distinction between
intensification" and "enlargement" is a distinction without a difference.
GP contends that its plant modernization is not proscribed under the
Bellingham zoning ordinance which provides : "A nonconforming use shall not be
enlarged" . GP asserts that while the nonconforming use of its plant may have
intensified", it has not been "enlarged" . The city attorney agreed with this
as did the former city planning director who helped draft the ordinance, and the
city council . The trial court after hearing the matter de novo concurred in
this view and a unanimous Court of Appeals also upheld GP' s position.
2] [3] While each of the three cases upon which petitioners rely is readily
distinguishable from the case at bench, (FN1) the "doctrine" which petitioners
would distill from those cases as applicable to the instant case proves too
encompassing. We agree that the spirit of zoning measures is to restrict the
extension of nonconforming uses as exemplified in State ex rel . Miller v. Cain,
supra. Nevertheless, enactments in derogation of the common law are to be
strictly construed: Pearson v. Evans, 51 Wash.2d 574, 320 P.2d 300 (1958) . In
endeavoring to accommodate both concerns, zoning ordinances are to be liberally
construed to accomplish their purpose, but they are not to be extended beyond
the clear scope of legislative intent as manifest in their language. State ex
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Page 6
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
rel . Standard Mining & Dev. Corp. v. Auburn, 82 Wash.2d 321, 510 P.2d 647
1973) .
Although phasing out nonconforming uses may be a desirable policy of zoning
legislation, the severity of limitations in phasing out such uses is within the
discretion of the *731 legislative body of the city. See Bartz v. Board of
Adjustment, 80 Wash.2d 209, 492 P.2d 1374 (1972) . It may be said generally:
A nonconforming use of land . . . is not likely to remain static. . . .
I) t may grow in volume or intensity . . . These changes in the level of
use may have profound impact upon property in the areas where they are
located, but the zoning regulations seldom include specific provisions for
restricting this kind of growth.
1 R. Anderson, American Law of Zoning s 6. 47 (2nd ed. 1976) . Although the
Bellingham zoning ordinance could have specifically prohibited intensification
of a nonconforming use by reference to a specified volume of such use, it did
not do so.
4] In addition, those charged with enforcing the ordinance for the city did
not construe the enactment as prohibiting use [600 P.2d 1280] intensification.
Considerable judicial deference is given to the construction of legislation by
those charged with its enforcement . Hama Hama Co. v. Shorelines Hearings Bd. ,
85 Wash.2d 441, 536 P.2d 157 (1975) ; Morin v. Johnson, 49 Wash. 2d 275, 300 P.2d
569 (1956) . After actively examining the GP proposal and soliciting two letter
opinions from the city attorney, the legislative body of the city appears to
have tacitly approved the GP modernization project as being within the
limitations of its ordinance.
5] When an increase in volume or intensity of use is of such magnitude as to
effect a fundamental change in a nonconforming use, courts may find the change
to be proscribed by the ordinance. 1 R. Anderson, Supra at s 6. 47; 8 A.
McQuillan, Municipal Corporations s 25.207 (3rd ed. 1976) . Intensification is
permissible, however, where the nature and character of the use is unchanged and
substantially the same facilities are used. Jahnigen v. Staley, 245 Md. 130,
137, 225 A.2d 277 (1967) . The test is whether the intensified use is "different
in kind" from the nonconforming use in existence when the zoning ordinance was
adopted. 3 A. Rathkopf, The Law of Zoning and Planning, ch. 60-1, s 1 (4th ed.
Cum.Supp. 1979) . In unchallenged *732 findings of fact, the trial court found
that intensification wrought no change in the nature or character of the
nonconforming use by GP. Further, the court found that the intensified use
has) no significant effect on the neighborhood or surrounding environment . "
6] Finally, if a use is established in part but not all of a building prior
to enactment of a zoning ordinance, the right to continue the use as
nonconforming" may not include the right to extend it to other portions of the
building. 1 R. Anderson, Supra at s 6.45. Such extension is permissible,
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Page 7
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 19791
however, if the "design of the structure indicates that at the time of the
passage of the zoning restriction it was intended to dedicate the building, in
its entirety, to such use. " 3 A. Rathkopf, The Law of Zoning and Planning ch.
60, s 5 (4th ed. 1975) . By unchallenged finding of fact No. 12, the trial court
found:
In reliance upon the action by the Bellingham City Council, and the
opinion letters of the Bellingham City Attorney, Georgia-Pacific has
intensified its use of the subject property by the addition of six new cells
within the cell building. The cell building was originally designed and
constructed for space to hold 32 cells . When the original cell building was
constructed in 1965, the original building foundation was engineered and
additional pilings were installed to permit the later addition of six new
cells which are in part the subject matter of this litigation, At all times
material, Georgia-Pacific Corporation had intended to add the six new cells
within its existing cell building.
7] We conclude that Bellingham' s zoning ordinance did not specifically
proscribe intensification of nonconforming uses . In view of the unanimity of
opinion of the officials responsible for the enactment and enforcement of th@
ordinance, the unchallenged findings of fact and the applicable principles of
law, we feel constrained to hold that the trial court did not err concluding
GP' s improvements do not violate the Bellingham zoning ordinance.
733 Affirmed.
WRIGHT, BRACHTENBACH and HOROWITZ, JJ. , and McMULLEN, J. Pro Tem. , concur.
WILLIAMS, Justice (dissenting) .
I disagree with the conclusion reached by the majority. It is clear to me
that Georgia-Pacific' s addition of six electrolytic cells for the manufacture of
chlorine constitutes an enlargement of the nonconforming use in violation of
section 20 . 06. 027 (b) of the Bellingham City Code.
It bears note that Georgia-Pacific proceeded with its plant improvements
After the commencement of the action against the City of Bellingham. The six
cells were installed at considerable expense despite the pending litigation.
My disagreement with the majority is based on an interpretation of a
perfectly [600 P.2d 1281] clear and unambiguous provision in the zoning
ordinance. A court should not depart from the ordinary meaning of the words in
a statute absent some ambiguity or statutory definition. Pope & Talbot, Inc. v.
Department of Revenue, 90 Wash.2d 191, 580 P.2d 262 (1978) . By the terms of the
ordinance a nonconforming use cannot be enlarged. That is precisely what has
occurred in this case. If Georgia-Pacific had increased its production simply
by using more efficient methods, employing new techniques or equipment, or by
Copyright (c) West Group 1998 No claim to original U.S . Govt. works
Page 8
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
increasing the work force or number of hours of operation, such additional
production would clearly result from "intensification" of the nonconforming use.
In the present case, however, extra cells were added to the production line. It
thus escapes me how the addition of six extra cells can be called anything but
an enlargement.
Counsel for the City and Georgia-Pacific admitted during argument before this
court that if the six cells had been added to the production line but installed
in a separate building, the additions would have in that case constituted an
enlargement. They claim, however, that since the additional cells were
installed within the same building as the *734 original 26 cells, the
nonconforming use is merely intensified. Such reasoning cannot withstand the
most superficial analysis .
The "enlargement" referred to in the ordinance plainly does not mean the
enlargement of the building itself or an increase in the number of buildings in
use, but refers to the enlargement of the "nonconforming Use " . The use is the
manufacture of chlorine, and the enlargement of that use is the increased
production resulting from the addition of the six new cells . An analogous
example which clearly demonstrates the difference between an enlargement and an
intensification would be the operation of a 6-pump gas station as a
nonconforming use. If the station increased the number of hours of operation
and thus pumped more gas or devised some new modern method of pumping the gas
faster out of the tanks that it had, such would amount to an intensification of
the use. However, if the gas station added six pumps in order to increase
production, there is no question in my mind but that it would constitute an
enlargement of the use.
A statute which is plain needs no construction. Vita Food Prods . , Inc. v.
State, 91 Wash.2d 132, 587 P.2d 535 (1978) . Purse Seine Vessel Owners Ass 'n v.
Moos, 88 Wash.2d 799, 567 P.2d 205 (1977) . The ordinance in question here is
clear, unambiguous and easy of interpretation. It should therefore be
unnecessary to turn to the rules of statutory construction to interpret the
ordinance. Nonetheless, the ordinance may be viewed in light of our ruling in
Coleman v. Walla Walla, 44 Wash.2d 296, 266 P.2d 1034 (1954) , where this court
stated that the purpose and intent of nonconforming use ordinances was not to
allow the enlargement of nonconforming uses but to restrict and ultimately phase
them out entirely. The court in Coleman quoted from State ex rel . Miller v.
Cain, 40 Wash.2d 216, 242 P.2d 505 (1952) , as follows :
The ultimate purpose of zoning ordinances is to confine certain classes
of buildings and uses to certain localities . The continued existence of
those which are *735. nonconforming is inconsistent with that object, and it
is contemplated that conditions should be reduced to conformity as completely
and as speedily as possible with due regard to the special interests of those
concerned, and where suppression is not feasible without working substantial
injustice, that there shall be accomplished "the greatest possible
Copyright (c) West Group 1998 No claim to original U.S. Govt. works
Page 9
92 Wn.2d 726, 600 P.2d 1276, Keller v. City of Bellingham, (Wash. 1979)
amelioration of the offending use which justice to that use permits . " "The
accepted method of accomplishing this result is as follows : The nonconformity
is in no case allowed to increase. It is permitted to continue until some
change in the premises is contemplated by the owner, when, in so far as
expedient, the authorities take advantage of this fact to compel a lessening
or complete suppression of the nonconformity. " ' "
Coleman v. Walla Walla, supra 44 Wash.2d at 299, 266 P.2d at 1036. The City
Council of Bellingham for what I assume were valid [600 P.2d 1282] reasons has
rezoned the area in question so as to prohibit the manufacture of chlorine.
Pursuant to the reasoning expressed in Coleman, the permission to operate the
plant as a nonconforming use should be interpreted as a mere Toleration of the
manufacture of chlorine in the area, and such toleration should not be construed
as permission to increase and enlarge the nonconforming use so as to perpetuate
it.
By misinterpreting the word "intensification", the court has reached a
decision which is contrary to the plain meaning and intent of the nonconforming
use ordinances . I would reverse.
DOLLIVER, UTTER and ROSELLINI, JJ. , concur.
FN1 . State ex rel . Miller v. Cain, supra, involved construction of a new and
substantially larger service station, and Anderson v. Island County, supra,
involved an amendment changing a residential zone to a commercial zone to
permit a new use. Although Coleman v. Walla Walla, supra, provides a closer
analogy, in that case the court found a New nonconforming use. It is not
disputed that the instant case involves no change in the nature or character
of the use. Unchallenged finding of fact No. 13 .
Copyright (c) West Group 1998 No claim to original U.S . Govt . works
AFFIDAVIT OF PUBLICATION
Charlotte Ann Kassens first duly sworn on oath states that he/she is the Legal Clerk of the
SOUTH COUNTY JOURNAL
600 S. Washington Avenue, Kent, Washington 98032
a daily newspaper published seven (7) times a week. Said newspaper is a legal
newspaper of general publication and is now and has been for more than six months
prior to the date of publication, referred to, printed and published in the English language NOTICE OF PUBLIC HEARING
continually as a daily newspaper in Kent, King County, Washington. The South County RENTON HEARING EXAMINER
Journal has been approved as a legal newspaper by order of the Superior Court of the A PubIicRENTONng will be hoed by the
State of Washington for King County. Renton Hearing Examiner at his regular
The notice in the exact form attached, was published in the South County meeting in the Council Chambers on the
7th floor of City Hall, 1055 South Grady
Journal (and not in supplemental form)which was regularly distributed to the subscribers way, Renton, WA, on August 25, 1998 at
during the below stated period. The annexed notice, a 10:00 AM to consider the following
petitions:
APPEAL
Appeal Tri-Vision Sign AAD-98-102 TRI-VISION SIGN
AAD-98-102
Appeal of an administrative decision.
as published on: 8/14/98 All interested persons to said petitions
are invited to be present at the Public
The full amount of the fee charged for said foregoing publication is the sum of$27.43 Hearing to express their opinions.
r9 9 9 Publication Date: August 14, 1998
Legal Number 5058A Published in the South County Journal
August 14, 1998.5058A
Legal Cler , South County Jo
Subscribed and sworn before me on this.740 day of A ,
011111i WI
s o,1\' p,).• a Notary Public of the State of Washington
c.any
F,r. ; residing in Renton
v+= King County, Washington
o_
i'
3LIt"
Oop(to
2``:
NOTICE OF PUBLIC HEARING
RENTON HEARING EXAMINER
RENTON, WASHINGTON
A Public Hearing will be held by the Renton Hearing Examiner at his regular meeting in the Council
Chambers on the 7th floor of City Hall, 1055 South Grady Way, Renton, WA, on August 25, 1998 at
10:00 AM to consider the following petitions:
APPEAL
TRI-VISION SIGN
AAD-98-102
Appeal of an administrative decision.
All interested persons to said petitions are invited to be present at the Public Hearing to express their
opinions.
Publication Date: August 14, 1998
Account No. 51067
HEXPUB.DOC
unlV AUG 131998
BYRNE S & KELLER LLP
MONLAWYERS
NEARING R
TELECOPIER LEPHONE
1206)622-2522
38TH FLOOR
206)622-2000
1000 SECOND AVENUE
SEATTLE,WASHINGTON 98104
August 12 , 1998
Mr. Fred J. Kaufman
City of Renton Hearing Examiner
200 Mill Avenue South
Renton, WA 98055
Re: Appeal of Administrative Determination Re
AK Media/NW Signage Appeal File No. LUA98-102 , AAD
Dear Mr. Kaufman:
AK Media has appealed the City' s decision to prohibit
it from installing tri-vision display surfaces on the sign
structures it owns in Renton. The City contends that as a non-
conforming use, AK Media ' s signs cannot be "structurally
altered. " This is correct, but under the plain language of the
City Code, the use of tri-vision display surfaces does not
constitute a structural alteration. Long-standing principles of
zoning law compel the same result.
The matter is scheduled for hearing on August 25 , 1998 ,
at 10: 00 a .m.
I . Background.
AK Media owns a number of outdoor advertising signs in
the City of Renton. Those signs are maintained on standardized
structures comprised, in simple terms, of either (i) two I-beam
posts with cross bars, or (ii) single poles with a support bar
extending at a right angle from the top of the pole. These
structures hold and support removable display surfaces to which
the advertising copy is affixed.
The sign structures are designed to permit changing of
the display surfaces without affecting the integrity of the
structure or requiring any structural alterations. This
removable surface design facilitates AK Media ' s need to properly
and professionally maintain the sign display surface. For
example, the display surface itself often requires off-site
cleaning of poster paper build up at AK Media ' s facility in
Seattle.
II . The Dispute.
AK Media wishes to use so-called "tri-vision" display
surfaces in place of flat display surfaces on certain of the
structures. Tri-vision surfaces are composed of triangular slats
Mr. Fred J. Kaufman
August 12 , 1998
Page 2
which rotate, thus presenting three periodically alternating
messages.
The City told AK Media that the use of tri-vision
display surfaces was not allowed under the City' s Sign Code. The
City correctly concluded that AK Media ' s advertising signs are a
non-conforming use and that under the City Code, non-conforming
uses cannot be "structurally altered. " The City is incorrect,
however, in contending that the use of tri-vision display
surfaces as opposed to single surfaces somehow constitutes an
impermissible structural alteration.
III . The Use of Tri-Vision Display Surfaces Does Not
Constitute a Structural Alteration.
The issue is whether the use of a tri-vision display
surface rather than a single flat surface somehow constitutes a
structural alteration. Under the City' s Code and under the law,
it plainly does not.
A. The Restriction on Structural Alterations Does Not
Apply to Display Surfaces.
At the outset, the Code only bars "structural"
alterations. Renton Code § 4-20-8 (A) (10) (c) . The City took the
position that a change in the display surface of a sign is a
structural change, " contending that:
The sign face itself is part of the sign
structure. The structure is not limited
solely to the steel pole in the ground
or the major beams.
See Ex. A.
The City ' s position is directly contradicted by the
Sign Code, which makes clear that a sign "structure" does not
include the display surface.
At the outset, the Code defines a sign structure as:
Any structure which supports or is
capable of supporting any sign as
defined in this Code. A sign structure
may be a single pole and may or may not
be an integral part of the building.
Renton Code § 4-20-2 .
Mr. Fred J. Kaufman
August 12 , 1998
Page 3
The Code then distinguishes between the sign structure
and the display surface, making clear that they are distinct
elements of a sign structure:
DISPLAY SURFACE: The area made
available by the sign structure for the
purpose of displaying the advertising
message.
Renton Code § 4-20-2 .
Given the express distinction in the Code between sign
structure and display surfaces, the restriction on alterations to
the sign structure clearly does not apply to the display
surfaces.
B. Any Doubts Must Be Resolved in AK Media ' s Favor.
To the extent there is any doubt about the meaning of
the Code (and there is not) , the law is clear that all such
doubts must be resolved in AK Media ' s favor. First, zoning laws
are in derogation of the common law and must strictly construe
against the government. See, e.g. , Pearson v. Evans, 51 Wn. 2d
574 , 576, 320 P. 2d 300 (1958) .
Second, non-conforming uses can be upgraded, enhanced,
and modernized notwithstanding restrictions on alterations. This
principle was illustrated in Keller v. Bellingham, 20 Wn. App. 1,
578 P. 2d 881 (1978) , aff 'd, 92 Wn. 2d 726, 600 P. 2d 1276 (1979) .
1
In Keller, Georgia Pacific maintained a non-conforming chlorine
plant in Bellingham. It wished to make certain improvements to
the plant, including adding six new "cells" , i. e. , large chemical
treatment units. The Bellingham Municipal Code prohibited the
enlargement" or "rearrangement" of non-conforming uses,
including the chlorine plant. Id. at 3 . Notwithstanding the ban
on enlargement or rearrangement for the non-conforming uses, the
court held that the additional cells were permissible. In
language particularly applicable here, the court explained that:
O]ne entitled to a nonconforming use
has a right to . . . modernize and
employ improved instrumentalities in
connection with such use.
Keller, 20 Wn. App. at 10, quoting 8A E. McQuillan, Municipal
Corporations § 25 . 200 (3d ed. rev. 1976) .
1
Copy attached as Ex. B.
Mr. Fred J. Kaufman
August 12 , 1998
Page 4
The court went on to explain that:
Thus, for example, in mining, quarrying
and similar types of uses, the
introduction of new, mechanized devices
and equipment is not an enlargement or
extension of the use, but merely a more
effective method of carrying it on.
Id.
Here, the tri-vision display surfaces are simply a
modernized, and more effective, method of carrying on the
existing use, i . e. , off-premise advertising.
IV. Conclusion.
Both the Sign Code and the long-standing principles of
zoning law support AK Media 's position. The City' s
interpretation is incorrect, and should be reversed.
Respectfully Submitted,
BYRNES & KELLER LLP
Paul R. Tayl
EXHIBIT A
CITY ! F RENTON
Planning/Building/Public Works Department
J e Tanner,Mayor Gregg Zimmerman P.E.,Administrator
June 5, 1998
Terry Sandblast
Governmental Affair Manager
AK Media NW
715 NE Everett Jay /
Portland, OR 97232 rrn
5
SUBJECT: DISPLAY SURFACE CHANGES
Dear Mr. Sandblast,
The City of Renton has always considered the changes in the face of the sign that you proposed as
a structural change. The sign face itself is part of the sign structure. The structure is not limited
solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors, the type of change you propose is not
allowed by our sign code.
If you have further questions,please contact Robert Arthur, Code Compliance Officer for the City
of Renton, at(425)277-6169.
Sincerely,
40/Mae't^—
es C. Hanson, Director
Development Services
cc: Robert Arthur
JCH:ckg98-027
200 Mill Avenue South - Renton, Washington 98055
EXHIBIT B
1 CASES DETERMINED IN THE
COURT OF APPEALS
OF
WASHINGTON
No. 5071-1. Division One. May 8, 1978.]
ROBERT H. KELLER, JR., ET AL, Appellants, V. THE
CITY OF BELLINGHAM, ET AL, Respondents.
1] Zoning — Review — Administrative Remedies — Disre-
gard — Effect. It is improper to seek judicial intervention in a
zoning matter without having exhausted all administrative remedies
provided in the zoning ordinance. Such error is not jurisdictional,
however, and when all parties concur in a judicial review the court's
action will not be reversed on the basis of that error.
2] Zoning — Review — Nonaction of Legislative Body —
Effect. A city council whose only function under a zoning ordinance
is legislative does not take any action which is reviewable when it
discusses a matter but does not formally act by motion or
resolution.
3] Zoning — Nonconforming Use — Intensification — Pu" ."
Policy. It is the public policy of the state that nonconforming
be restricted and eventually phased out. However, zoning reg__
tions must be strictly construed in favor of a property owner, and
intensification of a nonconforming use, as opposed to enlargement,
will be permitted unless a zoning regulation specifically prohibits it.
4] Zoning — Nonconforming Use — Intensification — What
Constitutes. Modernization of a nonconforming use and improve-
ments in efficiency do not constitute an enlargement of the use so
long as the original purpose of the use remains unchanged.
5] Zoning — Construction — Evidence — Administrative '
Opinion. The interpretation of a zoning regulation by an officer
charged with its enforcement is entitled to great weight by the
courts.
I
May 1978 May 1978 KELLER v.BELLINGHAM 3
2
KELLER V.BELLINGHAM 20 Wn.App. 1,578 P.2d 881
20 Wn.App.1, 881
6] Appeal and Error — Findingss off FFact—Review —InGen-plant but share a concern that the Bellingham zoning ordi-
eral.When a trial courts findings are supported by substantialnance be enforced.
dence, an appellate court may not disturb them. Georgia-Pacific operates its chlor-alkali facility in an
industrial section of Bellingham which is zoned for heavy
Nature of Action: Citizens of a municipality sought a manufacturing. The plant, which manufactures liquid chlo-
declaratory judgment as to the validity of an improvement rine, has been in operation since October of 1965. The
to an industrial nonconforming use. The city council had chlorine that is manufactured there is used for such pur-
taken no action although it had received an opinion of the poses as water and sewage treatment and in the manufac-
I city attorney that the action was valid. ture of insecticides, herbicides, textiles, detergents, fuel,
Superior Court: The Superior Court for Whatcom metal alloys and plastics.
County, No. 49750, Jack S. Kurtz, J., entered judgment on In April of 1969, the City of Bellingham enacted its z^^-
September 2, 1976, for the defendant, finding that the city ing ordinance, Bellingham City Code, ch. 20.06. This o
council's acquiescence constituted approval, and no grounds nance prohibited the "[m]anufacture, compounding,
for reversal existed. processing, refining, treatment, and assembly" of certain
g hlor ine, in
Court of App eals: The court holds that the city council materials and operation in
1 sg
in cm City Code
a heavy
took no action subject to judicial review, but that the phys-manufacturing district zone.
20.06-
ical improvements did not violate the zoning regulations.122(b)(1). Any existing use which had been established
judgment is affirmed.
before the 1969 ordinance, and which was prohibited by the
The J
Brett & Daugert and Larry Daugert, for appellants.
ordinance, was declared to be a nonconforming use and not,
therefore, in violation of the ordinance. Bellingham City
Patrick L. Brock, City Attorney,Lane, Powell, Moss &Code § 20.06.027(a)(1).
Miller, and Thomas Zilly, for respondents. Section 20.06.027(b) of the ordinance provides in perti-
nent part:
ANDERSEN, J.— 1) Any existing use lawfully established prior to April
FACTS OF CASE 21, 1969, which is not permitted in the use district in
At issue in this case is whether over a million dollars' which it is located is declared a nonconforming use and
worth of improvements to Georgia-Pacific Corporation's not in
A
violation oft sitl
a shall not bdatelof the
city- aonin plant in Bellingham are in violation of that
cated or rearranged after the effective
city's zoning ordinance.nance which made the use nonconforming;
The case arose when a declaratory judgment action was
kin to have such improvements declared viola-
Italics ours.) The ordinance also provides that storage and
t
tivebro of the
seeking freight terminals are permitted uses within heavy manufac-
in
tive of zoning ordinance. The case was tried to the court
turfing districts. Bellingham City Code § 20.06.122(b)(4).
the SuperiorC Court of the State of Washington for The plant includes a cell building which houses cells used
Whatcom County. court are not to change sodium chloride brine into chlorine and sodium
The following facts found by the trial hydroxide through an electrolysis process. Georgia-Pacific,
The pee
disputed.
appellants herein, are citi-stored spare parts in its cell building underneath the exist-
tens of Bellingham,
in who are the
Washington, who
ing cells. In order to provide a better opportunity for
do not reside by the
1
May 1978 KELLER v.BELLINGHAM 5
4 KELLER v.BELLINGHAM May 1978 20 Fyn,App, 1,578 P.2d 881
20 Wn.App. 1,578 P.2d 881
press release stated in part that the expansion would cost
cleaning the cell building and to improve mercury control, several million dollars and that the modifications would
as required by the Environmental Protection Act and regu- allow substantial additional production without additional
lations, it constructed a spare parts building at the facility energy or pollution problems.
in 1972. This was necessary in order to provide for the
storage of spare parts and maintenance equipment outside
On November 4, 1974, the Bellingham City Council
requested a statement in writing from the city attorney of
the cell room and to permit required housekeeping and Bellingham as to the status of Georgia-Pacifies plan for
cleaning improvements within the cell area itself. expansion with regard to the zoning ordinance. Then on
The space now used for the storage of spare parts and
maintenance equipment within the new storage and spare
November 14, 1974, the city attorney sent an opinion letter
parts building at the plant is required by various federal
to the council advising it that "under our zoning ordinance,
modernization or improvement of a manufacturing process
and state laws and regulations, and the storage of spare
may be
parts and maintenance equipment within the new spare Later,
accomplished."
o December 4, 1974, the members of the coun..
parts building is reasonable under such laws and regula-
tions. The employees' locker room, lunchroom, showers and
visited the plant to determine the nature and extent of the
proposed modifications. Thereafter, council members asked
laundry and the welding shop, paint room and valve testing
center now contained in the new spare parts building, were
the city attorney to enlarge upon his opinion letter in viewoftheadditionalinformationreceivedfromGeorgia-Pacific
all required by federal and/or state laws and regulations concerning the contemplated improvements to the chlor-
and the space used for such facilities has been reasonable. alkali facility. On January 6, 1975, the city attorney sent
Prior to 1972, Georgia-Pacific used five 300-ton chlorine the council a second opinion letter. It stated in part that
storage .tanks in connection with the storage of chlorine in my opinion Georgia-Pacific is acting within the bounds
prior to shipment. In June of 1973, it installed four addi- of the zoning ordinance in carrying out the contemplated
tional storage tanks to provide for increased safety and
modernization of the Chlorine Plant." This letter was
storage. The four chlorine tanks installed in June of 1973
were large, visible tanks which could easily be seen by the
received and filed with the city council at its public meeting
on January 6, 1975, and the council did nothing more about
public after their construction and placement on the Geor- the matter. All of this action was reported from time to
gia-Pacific property. The average amount of chlorine stored time in the local press.
in the original five tanks was 650.5 tons and 2.17 tanks, In reliance on the nonaction of the city council, and
resulting in an average use of 43 percent of storage capac- two opinion letters of the city attorney, as the trial court
ity. The average storage in the existing nine chlorine stor-
found, "Georgia-Pacific intensified its use of the subject
age tanks has been 964 tons or 3.21 tanks, resulting in an property by adding six new cells within the cell building."
average use of 36 percent of storage capacity. Normally, Italics ours.)
Georgia-Pacific keeps four or five tanks totally empty (void The cell building had originally been designed and con-
and with pressure reduced to a vacuum) in order to provide structed for space to hold 32 cells. When the original cell
for safety and flexibility of operations. building was constructed in 1965, the original building
In October of 1974, Georgia-Pacific issued a press release foundation was engineered and additional pilings were
announcing that it would add six new cells in the existing installed to permit the later addition of the six new cells
cell building, adding approximately 36,300 annual tons of which, in part, are the subject of the present litigation. At
new chlorine and caustic soda capacity to the plant. The.
I
KELLER V.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 7
6
20 Wn.App. 1,578 P.2d 881
20 Wn.App. 1,578 P.2d 881
all material times, Georgia-Pacific had intended to add the 3.
The City of Bellingham and Georgia-Pacific Corpora
six new cells within its existing cell building. tion are entitled to a declaratory judgment that Geor-
All of the activity which is the subject of this action took gia-Pacifies installation of six new cells together with
place in a heavy manufacturing zone area of Bellingham. the rewind of the rectifiers and the additional trans-
The changes described in petitioners' complaint did not former do not constitute an enlargement of a noncon-forming use under the Bellingham Zoning Ordinance.
result in any change in the nature or character of the use of
4
the property by Georgia-Pacific. At all material times,
IGeorgia-Pacific continued to use the same property in con-
of Thech eBellinghamin a
Zoning Ordinanceeavypermits
district
the thanet
nection with the operation of its chlor-alkali facility. restriction.
A rewind of a rectifier and the addition of a transformer 5.
at the plant constituted changes of methodology or tech- Any change in any existing use established prior to t'
nology, the use of more modern equipment and processes effective date of the Zoning Ordinanceithfederal or state 1.,
and resulted in a more economical consumption of electric-aaoblregulationerequiredlutionispermtted
er to comply
sty by the plant.
u The changes described in petitioners' complaint wherein
6.
I The action of the Bellingham City Council acting inrelianceuponthelettersoftheBellinghamCityAttor-they sought a declaratory judgment, and which changes arethesubjectofthislitigation, had no significant effect on the
n
ney was not arbitrary or capricious and the action of theCityCouncilshouldbesustained.
neighborhood or surrounding environment as the trial court
I
found.
Italics ours.) Conclusions of law Nos. 1-6.
Neither Georgia-Pacific nor the petitioners ever asked The petitioners appeal from a judgment entered for
bythe error
that the board of adjustment, which was set up
the
Georgia-Pacific. They
phi ized above,
to
and toclusions
of
the corre-
law Nos. 2, 3 and 6, emphasized
Bellingham zoning ordinance, review aged determine
sponding portions of the declaratory judgment.
zoning issues involved in the present litigation. Error has not been assigned to any finding of fact; there-
reliefThe petitioners in this action have sought no specific
other than a declaratory judgment adjudging the city fore the trial court's findings of fact must be considered as
attorney's opinions to be in error and the changes by Geor- the established facts of the case. Colella v. King County, 72
ific to its plant to be violations of the Bellingham Wn.2d 386, 388, 433 P.2d 154 (1967); State v. Lake, 7
gia-Pacific
zoningordinance.
App. 322, 327, 499 P.2d 219 (1972).
Based on the foregoing facts found, the trial court This appeal presents two legal issues.
concluded:
ISSUES
1. IssuE ONE. Did the Bellingham City Council take such
The Court has jurisdiction over the parties and the action as would be reviewable only under the arbitrary and
2.subject matter of this ctio capricious standard?
opinions of the Bellingham City Attorney . . • IssuE Two. Did he trialialb
court err in determiningnig
that `
I The f the improvements
are correct, in that an intensifi.catioohprohibited enlarge-use does not constitute a p
use under the
alkali plant did not constitute an unlawful enlargement of a
f nonconforming use?
r ment, relocation or rearrangement of the
Bellingham Zoning Ordinance.
i
1
t
8 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 9
20 Wn.App. 1,578 P.2d 881 20 Wn.App. 1,578 P.2d 881
DECISION 2] The fallacy in Georgia—Pacific's argument is that
ISSUE ONE. here the council inquired into Georgia—Pacifies plant mod-
CONCLUSION. The Bellingham City Council took no ification and then did nothing about it, one way or the
action, legislative or otherwise; therefore, the trial court's other. So far as the record before us reflects, the whole
conclusion concerning the propriety of the council's action 1- matter was just let drop without benefit of any formal
is without effect.motion or resolution of any kind. The council's only func-
At the outset of the discussion of the legal issues, it tion under the zoning code is legislative, Bellingham City
should be noted that this case does not involve the validity Code § 20.06.213, and it makes no administrative determi-
of Bellingham's zoning ordinance but only its interpreta- nations concerning code violations. No authority has been
tion. The ordinance contemplated that questions just such cited to us, and we know of none, which holds that in this
as this were bound to arise from time to time and estab- kind of a situation there is any council action to judi y
lished a board of adjustment with the expertise to decide review. The petitioners' assignments of error direct__ _o
them. Bellingham City Code § 20.06.201; RCW 36.70.810; conclusion of law No. 6 are well taken, and that conclusion
RCW 36.70.820.is a nullity.
1] The petitioners made no attempt to comply with the IssuE Two.
administrative procedures established by the zoning ordi- CONCLUSION. The trial court's findings that the improve-
nance. When an adequate administrative remedy is pro- ments to Georgia—Pacific's plant constituted an intensifica-
vided, it must be exhausted before the courts will intervene. tion of the nonconforming use rather than an enlargement
Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 of it are supported by substantial evidence and are
1974). Circumventing the board of adjustment by filing a determinative.
declaratory judgment was improper in this case. 4 R. 3, 4] Georgia—Pacific's plant is a nonconforming use
Anderson, American Law of Zoning § 28.06 (2d ed. 1977). because it was in existence prior to the effective date of the
Since the error did not go to the jurisdiction of the court, zoning ordinance. The public policy of this state, as well as
however, and since it was invited by the petitioners and the spirit of zoning measures, is to restrict rather than
concurred in by Georgia—Pacific, it is not reversible error. increase such nonconforming uses in order that they ulti-
Rao v. Auburn Gen. Hosp., 19 Wn. App. 124, 130, 573 P.2d mately may be phased out. State ex rel. Miller v. Cain 40
834 (1978).
Wn.2d 216, 219, 242 P.2d 505 (1952); Coleman v.a
The petitioners assign error to conclusion of law No. 6, Walla, 44 Wn.2d 296, 299-300, 266 P.2d 1034 (wog);
set out above, wherein the trial court concluded that "Mlle v. Island County, 81 Wn.2d 312, 323-24, 501e
594 (1972).
action of the Bellingham City Council acting in reliance P.2dIt should be noted parenthetically in connection withuponthelettersoftheBellinghamCityAttorneywasnot
arbitrary or capricious and the action of the City Council these three decisions on which petitioners rely, that unlike
should be sustained." Georgia—Pacific argues that this was the present case, Miller involved a new and substantially
1 proper and that the council's action cannot be overturned larger building, Coleman involved a new nonconforming use
and Anderson involved changing a residential zone to a
absent a showing of arbitrary and capricious conduct by it.
zone in order to establish a new use.
Georgia—Pacific argues State ex rel. Myhre v. Spokane, 70
commercialSpeaking generally of nonconforming uses, one text sum-
Wn.2d 207, 210-13, 422 P.2d 790 (1967) and other decisions
sum-
as follows:
of like import as supporting this position.
1
1
10 KELLER v.BELLINGHAM May 1978 May 1978 KELLER v.BELLINGHAM 11
20 Wn.App.1,578 P.2d 881 20 Wn.App.1,578 P.2d 881
The standard for determining the extent of an author- A nonconforming use of land, whether it is a dairy
ized nonconforming use is ordinarily the use that is being farm, a manufacturing plant, or a rooming house, is not
carried on the premises at the time of the adoption of the likely to remain static. As the use is exploited and eco-
zoning laws. In other words, a nonconforming use must in nomic changes occur, it may grow in volume or intensity,
substance be the same after the passage of a zoning ordi- and periods of active use may become more frequent or
nance as it was theretofore. However, the continuance of of longer duration. These changes in the level of use may
an existing nonconforming use carries with it all the inci- have profound impact upon property in the areas where
dents of that use which appertained to it when zoning they are located, but the zoning regulations seldom
laws were enacted. Accordingly, one entitled to a non- include specific provisions for restricting this kind of
conforming use has a right to repair, restore and replace growth.
structures in connection with the use, to engage in uses 1 R. Anderson, American Law of Zoning § 6.47 (2d ed.
normally incidental and auxiliary to the nonconforming e
use, and to modernize and employ improved instrumen-
1976). Some zoning ordinances do specifically pr
against intensifying nonconforming uses. See
talities in connection with such use. Rathkopf, The Law of Zoning and Planning 60-1 (3d ed.
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora-
1972). Bellingham's zoning ordinance did not so provide;
tions § 25.200 (3d ed. rev. 1976). And further, therefore, we must assume that it did not intend to do so
It is the general rule that the employment of modern since zoning ordinances are in derogation of the common
and more effective instrumentalities, not previously used,
in a nonconforming business or use or in connection with law and must be strictly construed in favor of the property
a nonconforming building does not constitute a prohib-owner. Pearson v. Evans, 51 Wn.2d 574, 576, 320 P.2d 300
ited expansion or enlargement of the business, use or 1958).
building. In short, an owner can modernize facilities and 5] Here the case was fully tried out in the trial court,
employ improved instrumentalities in connection with a the forum sought by the petitioners. The primary issue in
nonconforming building or use. However, the instrumen- the improvements to Georgia-
make the use in question available to the owner, and,
that court was whether .
talities must be ordinarily and reasonably adapted to
Pacifies plant amounted only to an "intensification" of the
moreover, the original nature and purpose of the under- use, or was an "enlargement" of the use. The testimony
taking must remain unchanged. Thus, for example, in before that court included that of Bellingham's planning
mining, quarrying and similar types of uses, the intro- director of many years. The sum and substance of her tes-
duction of new, mechanized devices and equipment is not timony was that she was familiar with the improvem( to
an enlargement or extension of the use, but merely a
the plant and concurred with the city attorneys o_ )n
more effective method of carrying it on. which was that Georgia-Pacific acted within the bounds of
Footnotes omitted.) 8A E. McQuillin, Municipal Corpora-
tions § 25.210 (3d ed. rev. 1976).
the zoning ordinance in carrying out its plant moderniza
tion. As one of the officials charged with the enforcement of
The zoning ordinance requires that nonconforming uses the code, her testimony was entitled to great weight. Morin
not be enlarged, relocated or rearranged after the effective
date of the ordinance which made the use nonconforming;"
V. Johnson, 49 Wn.2d 275, 279, 300 P.2d 569 (1956); Ball v.
Smith, 87 Wn.2d 717, 723, 556 P.2d 936 (1976).
Bellingham City Code § 20.06.027(b)(2). The zoning ordi-
6] The trial court found as a fact that there had been,
nance thus prevented "enlarging" nonconforming uses.
an "intensification" of the nonconforming use. It also
The zoning ordinance did not, however, prevent "intensi- determined that there had not been an "enlargement" of
fying" nonconforming uses. As one recognized authority
explains it,
May 1978 r` May 1978 DAILEY v.LANGE 13
12 DAILEY V.LANGE 20 Wn.App.12,578 P.2d 1322
20 Wn.App.12,578 P.2d 1322
it.' There being substantial evidence to sustain the trial t7 Nature of Action: The plaintiff police officer was on
foot on a highway right-of-way controlling traffic when he
court's findings in this regard, they will not be disturbed on was struck by a vehicle driven by the defendant. The
this appeal. As expressed by the State Supreme Court in a
plaintiff sought damages.
like situation,
If we were of the opinion that the trial court should have Superior Court: The Superior Court for King County,
resolved the factual dispute the other way, the constitu- No. 801425, Francis E. Holman, J., entered a judgment on
tion does not authorize this court to substitute its find-
ings for that of the trial court.
October 19, 1976, on a verdict in favor of the defendant.
Court of Appeals: Holding that the police officer was
Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, not a pedestrian and was entitled to a special status of
343 P.2d 183 (1959). We have consistently so held. Charles working on the right-of-way, the court reverses the ;-
Pankow, Inc. v. Holman Properties, Inc., 13 Wn. App. 537, ment and remands for a new trial.
542, 536 P.2d 28 (1975).
Affirmed.
Arthur D. Swanson, for appellant.
JAMES and DORE, JJ., concur.
Merrick, Hofstedt & Lindsey and Thomas J. Collins, for
i respondents.
Reconsideration denied October 17, 1978.RINGOLD, J.—In February 1974, during the gasoline
Review granted by Supreme Court February 28, 1979.shortage crisis, the plaintiff, a Renton police officer, was
assisting the movement of traffic on North 30th in Renton
when he was struck by defendant's vehicle. Lange, east-
bound at 5 to 8 miles per hour, swerved to the right to miss
No. 5118-1. Division One. May 8, 1978.] a car leaving a gasoline station on the north side of the road
and in doing so struck Dailey, who was walking westbound
BART W. DAILEY, Appellant, V. HUBERT M. LANGE, along the edge of the roadway. Dailey was proceeding
ET AL, Respondents.alongside a line of cars parked partially on the roadway,
1] Automobiles — Pedestrians — Persons Working on Right-and partially on the shoulder. From a verdict f
of-Way — Police Officer. A police officer on foot on a highway defendant, the plaintiff appeals. Plaintiff assigns a or
right-of-way while controlling traffic is not a "pedestrian," within the giving of certain instructions and failing to give the
the meaning of RCW 46.61.240(1) which requires pedestrians not in plaintiff's proposed instruction providing that a police offi-
a crosswalk to yield to all vehicles. Such an officer is a "person cer enjoys a special status which must be considered in
engaged in work" within the right-of-way of a highway within the determining whether he has exercised due care for his
meaning of RCW 46.61.030 and is not held to the same duty of care
as a pedestrian under RCW 46.61.250, or required to keep a con- safety, and that a driver must drive at a speed which is
start lookout for approaching vehicles. prudent in light of conditions then existing.The trial court did not err in refusing to give plaintiff's
Whether there is an enlargement of a use is a question of fact. Jamison v. proposed instruction on excessive speed. The question of
Kyles,271 N.C.722, 157 S.E.2d 550(1967);Application of Heating,252 N.C.327,
on of law will the defendant's speed is amply covered in the general
nonetheless
S.E.2d 4
be treated434 as a.
A finding of facte labeled . ea ner,
con
10 Wn.App.332, instruction requiring the jury to determine whether or not
as finding of fact.Redmond u.Kezner,
343, 517 P.2d 625 (1973). Accord, Estes v. Bevan, 64 Wn.2d 869, 395 P.2d 44
i 1964).
i ,
4% ;,r CITY OF -IENTON
LL Hearing Examiner
Jesse Tanner,Mayor Fred J.Kaufman
July 2, 1998
Mr. Paul R. Taylor
Byrnes & Keller
38th Floor
1000 Second Avenue
Seattle, WA 98104
Re: Appeal of Administrative Determination re AK Media Northwest Signage
Appeal File No. LUA98-102, AAD
Dear Mr. Taylor:
As you requested on June 29, the appeal in this matter has now been changed to Tuesday,
August 25, 1998, at 10:00 a.m. The location of the hearing will now be in the Council
Chambers located on the 7th floor of the new Renton City Hall located at 1055 S. Grady Way.
Should you be unable to attend, would you please appoint a representative to act on your behalf.
We appreciate your cooperation, and if you have any questions, please contact this office.
Sincerely,
1
4:'--- 1 lisC'4'.--.. . 1'------
1
Fred J. Kaufman 1
Hearing Examiner I
FJK:mm
I
cc: Mayor Jesse Tanner
Jay Covington, Chief Administrative Officer
Larry Warren, City Attorney
Jana Huerter
1
1
1
1
200 Mill Avenue South - Renton, Washington 98055 - (425)235-2593
0 This paper contains 50%recycled material,20%post consumer
CITY OF "ENTON
LL Hearing Examiner
Jesse Tanner,Mayor
Fred J. Kaufman
June 25, 1998
Mr. Paul R. Taylor
Byrnes & Keller
38th Floor
1000 Second Avenue
Seattle, WA 98104
Re: Appeal of Administrative Determination re AK Media Northwest Signage
Appeal File No. LUA98-102, AAD
Dear Mr. Taylor:
Your letter of appeal in the above matter has been received and a date and time for said hearing
have now been established.
The appeal hearing has been set for Tuesday,August 4, 1998 at 9:00 a.m. in the Conference
Room on the seventh floor of the new Renton City Hall located at 1055 S. Grady Way. Should
you be unable to attend,would you please appoint a representative to act on your behalf.
We appreciate your cooperation, and if you have any questions, please contact this office.
Sincerely,
Fred J. Kaufman
Hearing Examiner
FJK:mm
cc: Mayor Jesse Tanner
Jay Covington, Chief Administrative Officer
Larry Warren, City Attorney
Jana Huerter
200 Mill Avenue South - Renton, Washington 98055 - (425)235-2593
r..:..................a+..cow-atonal 70%Oast 000sUTBr
BYRNES & KELLER LLP
LAWYERS
TELECOPIER TELEPHONE
206)622-2522
38TH FLOOR
206)622-2000
1000 SECOND AVENUE
SEATTLE,WASHINGTON 98104
June 18, 1998
VIA HAND DELIVERY
Office of the Hearing Examiner
200 Mill Avenue South
Renton, WA 98055
Re: Appeal from Administrative Decision
Dear Sir or Madam:
The undersigned, on behalf of AK Media Northwest,
hereby appeals the enclosed administrative determination made by
the City of Renton. The decision bars the use of so-called "tri-
vision" faces on billboard structures in the City of Renton.
Tri-vision faces are made of triangular slats which periodically
rotate, thus presenting three alternating messages on billboard
faces.
There is nothing in the Renton Municipal Code which
bars tri-vision billboard faces. The billboard structures
themselves are legal non-conforming structures and use. The
installation of the tri-vision panels on the structures does not
expand either the structures or the use. Additional briefing
will be submitted by AK Media prior to the hearing.
We have enclosed a check for $75 . 00.
Very truly yours,
BYRNES & KELLER LLP
725;(
Paul R. Tayl
Enclosures
CITY OF ENTON
Planning/Building/Public Works Department
Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator
June 5, 1998
Terry Sandblast
Governmental Affair Manager
AK Media NWd ,,
715 NE Everett
R
CNN 1 n
Portland, OR 97232 fs 1`7('°3
SUBJECT: DISPLAY SURFACE CHANGES
Dear Mr. Sandblast,
The City of Renton has always considered the changes in the face of the sign that you proposed as
a structural change. The sign face itself is part of the sign structure. The structure is not limited
solely to the steel pole in the ground or the major beams.
As your company has been advised by our inspectors, the type of change you propose is not
allowed by our sign code.
If you have further questions, please contact Robert Arthur, Code Compliance Officer for the City
of Renton,at(425)277-6169.
Sincerely,
es C.Hanson, Director
Development Services
cc: Robert Arthur
JCH:ckg98-027
200 Mill Avenue South - Renton, Washington 98055
J
CITY OF RENTON
CITY TREASURER
REGIRCPT : 02-31774 C:06-22-1998
CASHIER ID : J 09:28 am A:06-22-1998
5007 APPEALS & WAIVERS 75.00
000.000.00.345.81.00.000003
TOTAL DUE 75.00
RECEIVED FROM:
BYRNES & KELLER
CHECK 75.00
TOTAL TENDERED 75.00
CHANGE DUE 0.00