033-11 - Resolution - Engley Diversified for Permit Applications to Construct BillboardsIntroduced by: City Attorney
Requested by: City Attorney
Drafted by: City Attorney
Closed Record Hearing: September 13, 2011
Introduced: September 13, 2011
Adopted: September 27, 2011
RESOLUTION NO. 033-11
A RESOLUTION OF THE CITY OF PORT ORCHARD,
WASHINGTON, ON THE APPEAL OF ENGLEY DIVERSIFIED,
INC. d/b/a GOTCHA COVERED MEDIA FOR EIGHT
CONSTRUCTION PERMIT APPLICATIONS TO CONSTRUCT
BILLBOARDS, GRANTING THE APPEAL IN PART AND
DENYING IT IN PART
WHEREAS, on December 16, 2010, Rick Engley of Engley Diversified (d/b/a
Gotcha Covered Media, hereinafter "Engley") filed an appeal to the City Council of the
Hearing Examiner's decision affirming the Planning Director's denial of eight
Construction Permit Applications ("CAPs"), for billboards to be erected on property
owned by third parties; and
WHEREAS, on March 22, 2011, the City Council dismissed the appeal as
untimely; and
WHEREAS, on April 11, 2011, Engley filed an appeal of the City's decision to the
Kitsap County Superior Court, which was later removed to federal court (U.S. District
Court Cause No. 11-5324BHS); and
WHEREAS, the federal court dismissed and remanded the case back to the Port
Orchard City Council; and
WHEREAS, the City did not immediately reschedule the closed record hearing
before the City Council, based on Engley's attorney's request in a letter dated August 1,
2011; and
WHEREAS, the closed record hearing was scheduled before the City Council on
September 13, 2011; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The City Council enters the following Findings of Fact and Conclusions of Law.
FINDINGS of FACT
Section 1. Closed Record Public Hearing.
Resolution No. 033-11
Page 2 of 13
A. Notice. Notice of the closed record public hearing of September 13, 2011,
was provided in the City's official newspaper as required by POMC Section 2.76.150.
Notice of the closed record hearing was provided in a letter dated September 2, 2011 to
the City's attorney and Engley's attorney. The notice letter was sent by electronic and
regular mail on September 2, 2011.
B. A12vearance of Fairness. At the outset of the hearings, the City Attorney
asked the decision-makers to disclose any appearance of fairness, ex-parte
communications and conflict of interest matters, and there was no response. The public
was asked whether any member of the public was interested in challenging any member
of the decision-making body, and there was no response.
C. Exhibits. As provided in Port Orchard Municipal Code Section
2. 76.150(5), the record on appeal consists of the official file of the Hearing Examiner
and the documents identified in the City Council's Findings, Conclusions and Decision
on Appeal (dated March 22, 2011).'
Section 2. Relevant Facts. The following facts and dates are relevant to this
appeal:
A. On March 25, 2010, Rick Engley of Engley Diversified/Gotcha Covered
Media submitted six construction permit applications to erect billboards on property
owned by third parties.2
B. Within a week, the City Planning staff notified Mr. Engley that he needed
to provide evidence to show that he had permission to submit the construction permit
applications for processing on behalf of the property owners.3 In response, Mr. Engley
provided the City with copies of "owner consents" and four "leases."4 Almost all of the
information in these "leases" was redacted, including the beginning or termination date
of the "lease." The City did not send Engley any further notice requesting additional
information.
C. On April 7, 2010, the City Planning Director denied the construction
permit applications, finding that "each of the submitted application[s] is lacking in
additional site and building specification information that would be required for
approval of such a structure at this site, if the application were allowed by the Port
Orchard Municipal Code."s All of the construction permit applications were denied
because they were "off-premises" signs not allowed under Port Orchard Municipal Code
' References to the documents in the Administrative Record will be referenced as "AR" followed by the
exhibit number or the title of the document.
' AR25.
' AR 25, letter dated March 31, 2010 from Katherine Woodside.
4 Ex. 25 and 26.
s Ex. 54·
Resolution No. 033-11
Page 3 of 13
("POMC") Section 16.65.110(12) in effect at the time.6 Two more construction permit
applications submitted by Engley to the City for the same purpose on different
properties (none owned by Engley) were also denied.
D. On April19, 2010, Engley filed a timely appeal of the Director's decision to
the Hearing Examiner.? The Hearing Examiner identified the appeal issues as:
Did the City err in making an Administrative Decision that an application
for eight general advertisement billboards within the city limits of Port
Orchard and zoned for commercial purposes is not allowed?
Is the City's sign ordinance an invalid prior restraint on free speech?8
E. On June 22,2010, the City adopted Ordinance No. 011-10, which prohibits
billboards within the City.9
F. The City filed its First Motion to Dismiss the Appeal, arguing that the
adoption of Ordinance No. 011-10, rendered Engley's appeal moot. Engley responded
that the appeal was not moot because the applications vested prior to the enactment of
Ordinance No. 011-10.10
G. On September 23, 2010, The Hearing Examiner denied the City's First
Motion to Dismiss the Appeal.11 In this decision, the Hearing Examiner determined
that: (1) the construction permit applications were complete; and (2) the construction
permit applications vested prior to the effective date of Ordinance No. 011-10.12
H. The City filed its Second Motion to Dismiss the Appeal, arguing that
because the Examiner found that the construction permit applications were building
permit applications subject to the vested rights doctrine, and the denial of a building
permit is appealed to the Board of Appeals, the Examiner had no jurisdiction to grant
relief under Engley's appeal.'3
I. On October 25, 2010, the Examiner denied the City's Second Motion to
Dismiss, stating that he found that the construction permit applications were similar to
building permits for purposes of vesting under the vested rights doctrine and that
because the building official did not issue any decision on the construction permit
applications, he had jurisdiction over the appeal.
6 Id.
' Ex. 1. The appeal was later amended to add all of the denied construction permit applications to the
same appeal, for a total of eight. Ex. 123.
B Ex. 5 and 10.
• Ex. 507.
'" Ex. 507
" Ex. 513.
'2 Id.
'3 Ex. 665.
Resolution No. 033-11
Page 4 of 13
J. On November 9, 2010, the Hearing Examiner issued a decision denying
Engley's appeal.14 The Examiner determined that the Planning Director's decision
denying the eight construction permit applications as "off-premises signs" was not
"clearly erroneous." He did not rule on the second issue (whether the City's sign
ordinance was an invalid prior restraint on free speech).
K. Engley requested an amended decision specifying the procedures
applicable to an appeal of the Examiner's decision.15 The Examiner issued a "Response
to Procedural Inquiry."'6
L. On November 16, 2010, Engley filed a motion for reconsideration to the
Hearing Examiner.'? The motion for reconsideration was denied by the Examiner on
December 6, 2010.18
M. On December 16, 2010, Engley filed an appeal of the Examiner's decision
to the City Council.'9 After a closed record hearing, the City Council issued its decision
on March 22, 2011, finding that the appeal was untimely and affirming the Hearing
Examiner.
N. On April 11, 2011, Engley filed a Land Use Petition and Complaint for
Damages with Kitsap County Superior Court.2° Contrary to the representations in the
LUPA Petition, Engley never filed any building permit applications with the City.21 The
case was removed to federal court.2 2
0. On July 7, 2011, the court determined that the City Council's decision on
the untimeliness of Engley's appeal was erroneous and remanded the matter back to the
Council for consideration of the merits of Engley's appeal of the Hearing Examiner's
decision. 23
P. On July 12, 2011, Engley's attorney contacted the City's attorney, asking
for a delay in the City Council's closed record hearing on the appeal until further notice.
On August 1, 2011, the City received a letter from Engley's attorney, apparently
indicating that the City was free to schedule the hearing.
'4 Ex. 669 through 68o.
'' Ex. 681.
•6 Ex. 681-82.
'' Ex. 683.
'8 Ex. 699.
'9 Ex. 704.
'0 Kitsap County Superior Court Cause No. 11-2-00808-o.
" Engley's claim that building permit applications were tiled appears in the Petition on p. 4, paragraph
5·1.
" U.S. District Court Cause No. 11-5324 BHS.
'' Order Denying Plaintiffs' Motion, Denying Defendant's Motion and Remanding to City Council for
Final Decision on the Merits, filed July 7, 2011, Docket 45.
Resolution No. 033-11
Page 5 of13
Q. On September 13, 2011, the City Council held the closed record hearing on
the appeal, under the procedures set forth in Port Orchard Municipal Code Section
2.76.150.
Section 3· Findings of Fact and Conclusions ofLaw.2 4
A. Complete Application. In his decision, the Examiner correctly described
the process for the City Planning Department to provide notice to an applicant that the
construction permit applications were incomplete, which must include a description of
what is needed for a complete application.2 S The City sent a letter to Engley on March
31, 2010, requesting additional information in the form of permissions from the
property owners for processing of the applications relating to their properties. Once
Engley submitted additional information, the City did not respond within fourteen days
by stating that the applications were still incomplete. However, the letter from the City
dated April 7, 2010, denying the applications, stated that "the submitted application is
lacking additional site and building information that would be required for approval of
such a structure at this site, if this application were allowed by the Port Orchard
Municipal Code."26
Failure to notify the applicant that an application is incomplete within the
statutory time period means that the applications are "deemed complete." RCW
36.70B.070(4); Schultz v. Snohomish County, 101 Wn. App. 693, 696, 5 P.3d (2000).
That portion of the Hearing Examiner's decision finding that the applications were
"deemed complete" is correct, regardless of the statement in the April 7, 2010, letter that
additional information was lacking.
B. Vesting of the Construction Permit Applications. Contrary to Engley's
"statement of facts" in the Land Use Petition he filed with Kitsap County Superior Court,
Engley did not apply for or submit building permit applications to the City; rather, he
submitted construction permit applications.27 Certain dates are pertinent to the issue
whether Engley's construction permit applications are subject to the vested rights
doctrine. First, the Planning Director denied these applications on April 7, 2010.
Engley appealed this decision to the Hearing Examiner on April 19, 2010. The City
adopted Ordinance No. 011-10, prohibiting billboards in the City on June 22, 2010.
The City filed its first Motion to Dismiss, arguing that the appeal was moot,
because of the adoption of Ordinance No. 011-10. Even though the City acknowledged
that Ordinance No. 011-10, was not retroactive, the Examiner considered the question
whether denied construction permit applications were vested. He determined that these
'4 Because only one issue is fact dependent (whether the construction permit applications were
complete), the findings of fact and conclusions oflaw are combined.
'' Ex. 511-512.
'6 Ex. 512.
'7 Although the LUPA Petition is not an exhibit in this Appeal, the Council may take official notice of a
lawsuit filed against the City and the documents submitted for record with the Kitsap County Superior
Court.
Resolution No. 033-11
Page 6 of13
denied construction permit applications were subject to the vested rights doctrine and
that they vested to the City's codes in place at the time they were "deemed" complete.2 s
This determination on vesting was made months before the Examiner issued his
decision finding that the Planning Director correctly denied the applications as
inconsistent with Port Orchard Municipal Code (POMC) Section 16.65.110(12).
The Examiner's decision on vesting of the construction permit applications was
erroneous and premature. Even if a permit is subject to the vested rights doctrine, no
rights vest if the permit applied for is inconsistent with the zoning ordinances in place at
the time the application was determined complete.2 9 Hull v. Hunt, 53 Wn.2d 125, 130,
331 P.2d 856 (1958); Allenbach v. Tukwila, 101 Wn.2d 193, 199, 676 P.2d 473 (1984) (a
complete building permit application doesn't vest unless it complies with the zoning
ordinances and applicable codes in force at the time of application). Therefore, the
Examiner should not have issued any decision on vesting before he determined whether
the construction permit applications were consistent with the pertinent code.
The Examiner also incorrectly determined that "in the absence of a local vesting
ordinance specifying an earlier vesting date, RCW 19.27.095(1)3° is the applicable
vesting rule,"3 1 for the construction permit applications, citing to Abbey Road Group
LLC v. City of Bonney Lake, 167 Wn.2d 242, 251, 218 P.3d 180 (2009). This is a
misquote of the Abbey Road court's summary of yet another court's holding (Erickson &
Assoc. v. McLerran, 123 Wn.2d 864, 872 P.2d 1090 (1994)).
Both the Erickson and Abbey Road cases are similar to this case, because none of
the developers in these two cases submitted building permit applications for processing.
In Erickson, the developer submitted a master use permit application, which the court
held vested upon issuance (because there was a specific Seattle code provision allowing
master use permits to vest upon issuance). In Abbey Road, the developer submitted a
site plan application for processing, which the court held was not subject to the vested
rights doctrine at all because the city did not have a code vesting rule allowing site plans
to vest.
Significantly, the Abbey Road court did not find that because the city didn't have
a code provision addressing vesting of site plans, that "in the absence of a local vesting
ordinance specifying an earlier vesting date, RCW 19.27.095(1) is the applicable vesting
rule." Instead, the court held that because the City of Bonny Lake had no ordinance
precluding the developer from simultaneously filing a site plan and building permit
application, the developer could have vested his/her rights at any time by filing a
complete building permit application with the site plan application (or while the site
'8 Ex. 513.
'' While we reverse the Hearing Examiner and the Planning Director's decision finding that the
construction permit applications are inconsistent with POMC Section 16.65.110(1), the issue whether the
construction permit applications vested to the old code is still pertinent to the issue raised by the City, or
whether this appeal is moot.
'0 This is the statute applicable to the vesting of building permit applications.
''Ex. 666.
Resolution No. 033-11
Page 7 of 13
plan application was being processed). Abbey Road, 167 Wn.2d at 254. Similarly,
because Port Orchard has no ordinance preventing anyone from submitting a building
permit application together with a construction permit application, Engley could have
submitted building permit applications at any time to vest his rights under the old
ordinance.
It appears the Examiner believed that Erickson and Abbey Road should be
interpreted to apply the vested rights rule for building permits (RCW 19.27.095(1) to
every application that deals with "structures and buildings" as some kind of "default"
rule.3 2 This is contrary to the specific holding of the court in Abbey Road, which made
no attempt to shoehorn RCW 19.27.095(1) to fit every type of development application.
Contrary to the Examiner's determination, there is simply no authority that would
require the City to review Engley's construction permit applications under the vested
rights rule for building permits (RCW 19.27.095(1)), because the City has no vested
rights rule for construction permit applications, and Engley did not submit any building
permit applications.
Furthermore, there is no authority that allows the Examiner to simply adopt new
vested rights rules for applications in Port Orchard. The fact that "there is nothing in
the State Building Code that precludes sign permits from vesting under RCW
19.27.0195(1)"33 does not provide the Examiner with such authority. Furthermore, the
Examiner's decision to adopt such a rule was based on an erroneous interpretation of
"state policy."34 The rationale he cited in support of his attempt to create a new rule is
actually contrary to the policy enunciated by the Washington courts:
Development interests and due process rights protected by the vested
rights doctrine come at a cost to the public interest. The practical effect of
recognizing a vested right is to sanction the creation of a new
nonconforming use. A proposed new development which does not
conform to newly adopted laws is, by definition, inimical to the public
interest embodied in those laws. If a vested right is too easily granted, the
public interest is subverted.
The court recognized the tension between public and private interests
when it adopted Washington's vested rights doctrine. The court balanced
the private property and due process rights against the public interest by
selecting a vesting point which prevents 'permit speculation', and which
demonstrates substantial commitment by the developer, such that the
good faith of the applicant is generally assured. The application for a
building permit demonstrates the requisite level of commitment.3s
32 See, Ex. 666.
33 See, Ex. 514.
34 According to the Examiner, his adoption of a vested rights rule applicable to construction permit
applications in Port Orchard would "further a state policy to add certainty and predictability in land use
regulations." Ex. 666.
35 Erickson, 123 Wn.2d at 873-74.
Resolution No. 033-11
Page 8 of 13
Again, it should be noted that in the cases cited by the Examiner in his decision to apply
the building permit vested rights rule to Engley's construction permit applications,
neither support this approach.
In his comparison of construction permit applications to building permit
applications, the Examiner also erred on two important points. First, the Examiner
failed to note that no building permit applications had been submitted by Engley, even
though they would be required for construction of the billboards. Under Section 105.1 of
the International Building Code,36 "any owner or authorized agent who intends to
construct . . . a structure . . . shall first make application to the building official and
obtain the required permit." The word "structure" is defined in the IBC as "that which is
built or constructed." There is a list of exemptions from the building permit
requirement in IBC Sec. 105.2, but signs are not listed. As a result, Engley can't
construct the signs without submitting building permit applications (which he has not
done) and receiving building permits for each sign.
In the City's motion to dismiss, the City also argued that a building permit was
required. As confirmed by the Examiner:
The City argues that the proposed signs require both a building permit and
a sign permit, although not all sign permits require a building permit. The
City code does not explain the interaction between sign permit
applications and building permit applications. It may be that not all signs
are structures requiring a building permit. However, the sign permit
applications submitted to the City in this matter are for structures as
described in the State Building Code and are referred to in the applications
as building permit applications (Exhibit C-1 B). Although the City's March
31 letter of incompleteness references six sign applications, none of the
City's exhibits indicate that it notified the Applicant that a building permit
would also be required.37
Here, the Examiner erred in a number of his assumptions. First, nothing requires that
the City's code must "explain the interaction between sign permit applications and
building permit applications." Instead, the building code requires that a building permit
application be submitted unless the structure is exempt. Next, he erroneously assumed
that if someone submits a "construction permit application" to the City for review under
the Zoning Code, but calls the construction permit application a building permit
application, that it becomes a building permit application. As stated by the City, there
are separate processes for building permit applications, including separate application
'' The explanation regarding the need for building permits to construct the signs reflects the 2006
Edition of the International Building Code adopted by the City in Ordinance 012-07 on June 11, 2007.
This was in effect at the time Engley submitted his construction permit applications. Currently, the City
enforces the 2009 Edition of the IBC.
37 Exhibit 515, p. 11.
Resolution No. 033-11
Page 9 of 13
forms, separate fees, a different review process and review under a different code (the
Building Code vs. the Zoning Code). Finally, the Examiner erroneously assumed that
the City was required to notify the applicant that a building permit would also be
required.38
Most importantly, a construction permit application is very similar to a site plan,
not a building permit. Engley's construction permit applications were not submitted for
actual construction of the billboards under the Building Code. Instead, they were
submitted so that the City could determine consistency with the Zoning Code (similar to
a site plan). Assuming that Engley is correct and that the provisions of POMC Section
16.65.170 are applicable to billboards, the construction permit applications would be
reviewed for consistency with the Zoning Code's requirements (such as: the proposed
location of the billboards in the permitted zones; the location of the billboards on the
property; the distance from intersections, residential zones, and public rights-of-way;
the dimensions of the billboards (such as height and length); requirements for
lighting)to determine whether certain types of proposed displays are acceptable. In
other words, construction permit applications for signs are most similar to a site plan
for any type of development, and approval is based on compliance with the Zoning
Code, not the Building Code.
In contrast, a building permit is required before a sign can actually be
constructed in the location approved in the construction permit application. As stated
above, the Port Orchard Building Code requires a building permit for the installation of
a structure such as a sign, because it is not exempt. The building permit application
would provide details relating to location of power lines, proximity of other structures
and utilities, easements, slopes, and other improvements in relation to the proposed
billboards (Section 107.2 of IBC). Information in the permit application regarding wind
loads would be checked for consistency with the City's requirements.
In sum, the Examiner should have determined that: (1) the City had no vested
rights rule applicable to construction permit applications, which are similar to site
plans; (2) under Abbey Road, the lack of any rule relating to vesting of construction
permits meant that they did not vest; (3) there was a vested rights rule applicable to the
building permits (RCW 19.27.0195(1)); (4) Engley was required to submit building
permit applications to actually construct the signs; (5) the City had no ordinance
prohibiting the submission of construction permit applications together with a building
permit applications, and so all Engley had to do to vest his rights under the City's codes
was to submit the building permit applications.
Engley didn't submit any building permit applications for the actual construction
of the signs and consequently he is not vested to the old code. See, Deer Creek
'' See, RCW 36.7oB.070(3l, which describes the additional information that a city may, at its option,
decide to include in a notice of incomplete application, none of which include a description of what
additional permits will be required for the proposed development.
Resolution No. 033-11
Page 10 of 13
Developers, LLC, 157 Wn. App. 1, 236 P.3d 906 (2010).39 If and when he does submit
building permit applications for the billboards, the question will be whether the City's
new ordinance (Ord. 011-10) prohibiting billboards will result in a denial of the building
permit applications. (The City cannot approve any building permit application unless
the "proposed work conforms to the requirements of this code and laws and ordinances
applicable thereto ... "Sec. 105.3.1 of the IBC.)
C. Standard of Review. The Examiner determined that the standard of
review in this case was whether the Planning Director's decision is "clearly erroneous,
after allowing for such deference as is due for the interpretation of a law by the agency
with expertise."4° He stated that "under the clearly erroneous standard of review, the
Hearing Examiner reviews the entire record in light of the policy set forth in the
ordinance and reverses the decision only if he has definite and firm evidence that the
City has improperly applied the law."4 1 However, the Hearing Examiner did not cite to
any evidence in the record that he relied upon to make his decision. It appears that his
decision was based solely on the code and other applicable law.
This appeal hinges on the proper interpretation of the City's code -whether
billboards are allowed under POMC Section 16.75.110 (which provides that: "in all
commercial districts, the following regulations shall apply: (1) Billboards: See POMC
16.75.170 ... (12) Off-premises signs: Not allowed.)4 2 Interpretation of statutes and
ordinances is a question of law reviewed de novo.43 The Examiner was required to
review the Planning Director's legal conclusions de novo, giving substantial weight to
the interpretation of the ordinances he administers."44 Therefore, the Examiner erred
when he ruled that the "clearly erroneous" standard of review applied.
D. Statutory Interpretation. In order to review the Planning Director's
decision, the Hearing Examiner was required to use the rules of statutory construction.
" In Deer Creek Developers, a developer obtained a "unified site plan for a residential project
contemplating the construction of 23 buildings to be built in two phases. Id., 236 P.3d at 907. The
developer obtained a building permit for the first phase. Then, the County amended the code to prohibit
residential uses in the zone which covered the property in the second phase of the development. Once the
developer submitted an application for a conditional use permit for the second phase of the development,
the County denied the permit because the second phase was not vested. The Deer Creek court agreed with
Abbey Road and Erickson, finding that "even if Deer Creek received assurances from the County that the
proposed development had vested, these representations could not operate to vest the proposed
development unless a building permit or plat permit had been submitted." ld. 236 P.3d at 911.
4° Ex. 669, p. 9·
4' Id.
42 Ex. 669, p. 9·
43 Manke Lumber Co. Inc. v. Cent. Puget Sound Growth Management Hearings Ed., 113 Wash. App.
615, 622, 53 P.3d 1011 (2002).
44 Suquamish Tribe v. Central Puget Sound Growth Management Hearings Board, 156 Wn.App. 743,
760, 235 P.3d 812 (2010); Brunson v. Pierce County, 149 Wn. App. 855, 860, 205 P.3d 963 (2009); Lund
v. Department of Ecology, 93 Wn. App. 239, 333, 969 P.2d 1072 (1998).
Resolution No. 033-11
Page 11 of 13
"Statutory construction begins by reading the text of the statutes involved."4s If the
language is unambiguous, a reviewing court is to rely solely on the statutory language."46
The first question presented is whether POMC 16.65.110 is ambiguous, such that the
rules of statutory construction must be used.
POMC 16.65.110 provides that "off-premise signs" are "not allowed," so the
Examiner correctly reviewed the definition of "billboards" and "off-premise" signs in the
code. A "billboard" is defined as:
An outdoor advertising sign or poster panel which advertises products,
businesses and/ or services not connected with the site on which the sign is
located, and which sign is a substantial permanent structure with display
services of a type which are customarily leased for commercial purposes.
POMC Section 16.08.528. An "off-premise" sign is defined as:
An outdoor advertising, informational, directional, or identification sign
which relates to products, businesses, services or premises not located on
or otherwise directly associated with the site on which the sign is erected.
POMC Section 16.08.512. Again, Engley submitted construction permit applications to
construct billboards on properties that were located in the commercial zone under
POMC 16.65.110, which provided that: "In all commercial districts, the following
regulations shall apply: (1) Billboards: See POMC 16.65.170 ... (12) Off-premises signs:
Not allowed."47
Because billboards will always be a subset of off-premise signs, POMC 16.65.110
is ambiguous --it appears to allow billboards (by directing the reader to POMC
16.65.170 where there are additional regulations applicable to billboards) but prohibits
them as off-premise signs. Therefore, the rules of statutory interpretation apply.
"The fundamental objective in construing ordinances and statutes is to ascertain
the legislative ... intent."48 Another rule of statutory construction is that "if possible,
all provisions should be harmonized, no words or phrases should be rendered
superfluous or meaningless."49 "In the event of conflicting provisions, the more clearly
expressed will control."so
45 Municipal ordinances are the equivalent of statutes, so they are evaluated under the same rules of
construction. Faben Point Neighbors v. City of Mercer Island, 102 Wn. App. 775, _, 11 P.3d 233
(2000).
46 Jd.
47 Under POMC 16.65.170, the section governing billboards, there are lengthy rules regarding billboard
placement, size, material and other restrictions.
48 Williams v. Pierce County, 13 Wash. App. 755, 758, 537 P.2d 856, 858 (1975).
49 Davis v. Washington Toll Bridge Authority, 57 Wash.2d 428, 357 P.2d 710 (1960).
so State ex rei. Graham v. San Juan County, 102 Wn.2d 311, 320, 686 P.2d 1073 (1984).
Resolution No. 033-11
Page 12 of 13
Engley has argued that if billboards are prohibited, then all of the regulations
applicable to billboards (in 16.65.170, relating to size, dimension, location on the
property, etc.) will be rendered superfluous. It is true that if the Council intended to
prohibit billboards in Port Orchard under POMC Section 16.65.110(12), there would not
have been any need to specifically describe the many restrictions on billboards in
16.65.170. Also, as between the two definitions, the definition of "billboard" is more
clearly expressed (both definitions describe the fact that the sign relates to a business or
service not located on the premises where the sign is installed, but the definition of
"billboard" also describes the sign as a "substantial permanent structure" as well as the
fact that they are "customarily leased for commercial purposes").
The Hearing Examiner considered POMC Section 16.01.040(1), which provides
that "regulations, conditions or procedural requirements that are specific to an
individual land use shall supersede regulations, conditions or procedural requirements
of general application." In addition, the Examiner reviewed POMC Section 16.01.040(5)
(which is applicable when there is a conflict in two code provisions), which provides in
part that: "if two or more code sections dealing with the same subject matter pertain to
a specific parcel of property, then the most stringent or specific provisions shall
control"). The Hearing Examiner concluded, after reviewing POMC Section
16.01.040(1) and 16.01.040(5), that because POMC Section 16.65.110(1) allows
billboards in commercial zones but 16.65.110(12) prohibits off-premises signs in
commercial zones, then 16.65.110(12) was more stringent. However, POMC 16.65.110(1)
and 16.65.110(12) do not deal with any specific parcel of property. Of the two, the
definition of "billboard" is more specific than the general definition of "off premise"
signs, as are the detailed regulations for billboards in POMC Section 16.65.170.51
Applying the rules of statutory interpretation leads us to conclude that the
Hearing Examiner erred when he ruled that the eight construction permit applications
are prohibited under the relevant sections of Chapter 16.65 POMC.
E. Constitutional Challenge. Engley also asked the Examiner to determine
whether "the City's sign ordinance is an invalid prior restraint on free speech."s 2 The
Examiner determined that he had no jurisdiction to address constitutional issues when
he could decide the matter on non-constitutional grounds. We agree that the Examiner
did not have such authority. The Examiner only has the authority delegated to him by
the City Council in POMC Section 2.76.080, none of which allow him to decide
constitutional issues. "The city council is a legislative body, and it does not have the
power to enforce, interpret or rule on constitutional challenges."s3
5' In POMC Section 16.65.170, there are regulations for the proposed location of the billboard on the
property, the distance from intersections, residential zones, pnblic rights-of-way, the dimensions of the
billboards (height, length), rules for lighting, etc.
52 Ex. 5 and 10.
53 See, Wash. Canst. art. IV, Section 1; Exendine v. Sammamish, 127 Wash. App. 574, 586, 113 P.3d 494
(2005), footnote 26. See also, Wells v. Whatcom County Water Dist. No. 10, 105 Wash. App. 143, 156,19
P.3d 453 (2001).
DECISION
Resolution No. 033-11
Page 13 of13
As to the issues raised by this appeal, the City Council makes the following
decision :
A. Did the City err in making an Administrative Decision that applications
for eight gen eral advertisement billboards within the city limits of Port Orchard and
zoned for commercial purposes are not allowed?
Answer: Yes. The denials of the eight construction permit
applications are reversed.
B. Are Eng ley's construction permit applications vested?
Answer: No.
C. Are building permits neededfor th e construction of th e billboards?
Answer: Yes.
D. I s th e City's sign ordinance (in existen ce prior to th e adoption of
Ordinance No. 011-10) an invalid prior res traint on free speech?
Answer: Neither the Council nor the Hearing Examiner have
authority to address this constitutional challenge.
APPEAL INSTRUCTIONS
As provided in POMC 2.76.170, a final decision of the City Council may be
appealed by a party of record pursuant to Chapter 36. 70C RCW in the Kitsap County
superior court. The land use p etition must be fil ed within 21 calendar d ays aft er the
decision by the Council.
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and
attested by the City Clerk in authentication of s uch passage this 27th day of September
2011. ? ~ ...... --.'?
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