Ackerley Communications, Inc. v. City of Seattle
| Decision Date | 21 November 1979 |
| Docket Number | No. 45281,45281 |
| Citation | 92 Wn.2d 905,602 P.2d 1177 |
| Parties | , 14 ERC 1302 ACKERLEY COMMUNICATIONS, INC., and Maronco, Inc., corporations, Respondents, v. CITY OF SEATTLE and Alfred Petty, Superintendent of Buildings, Appellants. DIAMOND PARKING, INC., Respondents, v. CITY OF SEATTLE, and Alfred Petty, Appellants. |
| Court | Washington Supreme Court |
Douglas N. Jewett, City Atty., Charles D. Brown, Asst. Corp. Counsel, Seattle, for appellants.
Lycette, Diamond & Sylvester, Lyle L. Iversen, Bogle & Gates, Ronald T. Schaps, Dale B. Ramerman, Seattle, for respondents.
This appeal in consolidated actions for a declaratory judgment and injunctive relief raises the question whether Seattle Ordinance 90138 as amended by Ordinance 97025 (the Ordinance) is valid as applied to respondent billboard owners. We hold that it is, and therefore reverse.
The Seattle Ordinance, enacted in 1968, is a part of the coordinated efforts of federal, state and local governments to preserve the natural beauty of our nation's scenic vistas and to protect the public health and safety on the highways by means of regulating the placement, size, etcetera of outdoor advertising signs and billboards (signs) along the highways. The Ordinance regulates those signs which are within 660 feet of, and visible from, designated scenic or landscaped sections of highway within the City. It requires removal of certain of these signs which do not meet the Ordinance's specifications after a 3-year amortization period. The City's Board of Adjustment may grant extensions of the amortization period for an additional period up to 7 years under the provisions of the Ordinance. It may also grant variances which would allow the maintenance of signs which otherwise do not conform to all the Ordinance's regulations. The Ordinance does not provide for compensation to the owners of signs which are removed pursuant to its terms.
Respondents in this action, Ackerley Communications, Inc., Maronco, Inc., and Diamond Parking Inc., (or their predecessors in interest), were all notified by the City in 1974 or 1975 that their signs were in violation of the Ordinance and would have to be brought into compliance or removed. Respondents then sought (1) declaratory judgments that the Ordinance was in conflict with state law and unconstitutional, and (2) orders restraining the City from enforcing it, in the Superior Court for King County. The actions were consolidated in 1976. Various continuances postponed trial of the matter until 1977, when respondents moved for summary judgment on the ground the Ordinance conflicted with the newly-enacted provisions of RCW 47.42.107. In November 1977 summary judgment was granted in respondents' favor on the ground the Ordinance conflicted with the new statutory provision and that it was unconstitutional as applied to respondents. The City was enjoined from requiring removal of respondents' signs without compensation. The City appealed, and we reverse.
We note at the outset that under the rule stated in Lange v. Woodway, 79 Wash.2d 45, 483 P.2d 116 (1971) respondents have no standing to maintain an action for declaratory and injunctive relief for they have failed to exhaust their administrative remedies and show conclusively that the ordinance they challenge will harm them. In Lange v. Woodway the court applied this well-settled rule requiring exhaustion of administrative remedies to a challenge to a zoning ordinance. It held the failure to seek a variance was fatal to the action for a declaratory judgment:
If such alleviation (a variance) is available, then one must seek it before he will be heard to say that the ordinance injuriously affects him. If one cannot show that enforcement of the challenged ordinance harmfully affects him, then he has no standing to challenge the constitutionality of that ordinance.
Lange v. Woodway, supra at 48, 483 P.2d at 118.
Respondents contend this rule does not apply because constitutional issues are raised which cannot be disposed of by the administrative appeal process. It is true that a party may always raise the question of the constitutionality of an administrative action As a defense in a judicial proceeding to enforce the administrative rule, and in such cases prior exhaustion of administrative remedies will not be required. Yakima Clean Air Authority v. Glascam Builders, Inc., 85 Wash.2d 255, 257, 534 P.2d 33 (1975). See also United States v. Kissinger, 250 F.2d 940 (3rd Cir.) Cert. denied sub nom. Kissinger v. United States, 356 U.S. 958, 78 S.Ct. 995, 2 L.Ed.2d 1066 (1958). In such cases, of course, the party has no need to show it is harmed by administrative action because it is already a defendant in enforcement proceedings. Where a party affirmatively seeks declaratory or injunctive relief, however, it must show that its remedies have been exhausted in order to show it has standing to raise even a constitutional issue. As noted by the court in Lange v. Woodway :
The fact that administrative variance procedures do not address themselves to the underlying constitutional validity of the ordinance in question has no bearing on the question of whether a party has standing to urge the unconstitutionality of the ordinance in the courts. The question is not whether the administrative procedure can respond to the charge of unconstitutionality, but whether the procedure can alleviate any harmful consequence of the ordinance to the complaining party.
Lange v. Woodway, supra 79 Wash.2d at 48, 483 P.2d at 118.
This distinction has also been noted and applied by the United States Supreme Court. In Public Utilities Comm'n of California v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958) the court noted:
If . . . an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued.
We recognize that where no administrative remedy is available, or where such remedy is patently inadequate, a party may be allowed to raise constitutional issues in a declaratory judgment proceeding without being required to exhaust administrative channels needlessly or to the party's injury. See Bare v. Gorton, 84 Wash.2d 380, 382, 526 P.2d 379 (1974). See also Aircraft & Diesel Equipment Corporation v. Hirsch, supra 331 U.S. at 773, 67 S.Ct. 1493. Respondents have not shown that such is the case here.
The Seattle Ordinance provides two forms of administrative relief. Section 4 of Ordinance 97025, amending Section 3 of Ordinance 90138, defines those signs which shall be unlawful by such criteria as location, visibility, size, and type of business advertised. Pursuant to Section 7 of Ordinance 97025, nonconforming signs must either be made to conform or removed within 3 years. As one form of administrative relief, this section provides for an extension of time for removal, at the discretion of the City's Board of Adjustment, for an additional period of up to 7 years. Such an extension would allow an even greater period of time over which the signs owner could recover his investment in the sign. It would not necessarily completely avoid the burden of terminating the sign, though, if the useful life of the sign structure would extend beyond the termination date under the Ordinance.
Section 6 of the Ordinance provides a second form of relief, however, a variance. Variances may be issued by the Board of Adjustment for signs falling within any of nine designated categories, where to do so would not violate the intent and purposes of the Ordinance. The Section provides:
Upon written application and payment of a filing fee of $50.00, the Board of Adjustment is authorized to issue sign variances in the following instances, but only when the issuance of such sign variance is within the intent and purposes of this ordinance and will not be contrary to the public interest, detrimental to the public welfare or safety, injurious to property in the vicinity, and will not make difficult the viewing and comprehending by motorists and pedestrians of official or conforming signs, or increase the density of signs along a designated landscaped and/or scenic view section to an extent tending to constitute a hazard to traffic safety or a detriment to the appearance of the neighborhood, or impinge upon a view of scenic interest . . .
If a sign falls within one of the designated categories, the Board may authorize a modification of the regulations created by the Ordinance. Such a modification, according to the definition of a variance found in Section 2, would be a "less literal interpretation or strict application of the provisions and requirements" of the Ordinance. Under Section 3B.2 of the Ordinance as amended the Board may attach such conditions to the variance as are deemed necessary in the public interest. Although the Ordinance is not explicit in this regard, the only reasonable interpretation of the variance provisions appears to be that a variance would allow an otherwise nonconforming sign to remain standing presumably indefinitely as long as the requirements of the variance provision are met. This remedy appears to provide a means by which a sign owner may completely avoid the requirement that a sign be removed.
Respondent Ackerley alleges it was not eligible for a variance under the terms of the Ordinance, but points to no facts in the record to support its allegation. In fact, the City has insisted throughout the course of this litigation that respondents should first pursue their administrative remedies. The record discloses that neither Ackerley nor its predecessor in interest sought a variance. Neither Ackerley nor respondent Maronco has made any showing that the administrative remedy of a variance is either unavailable or inadequate. Furthermore, while respondent Diamond was...
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