Markham Advertising Co. v. State
| Decision Date | 26 March 1968 |
| Docket Number | No. 39770,39770 |
| Citation | 73 Wn.2d 405,439 P.2d 248 |
| Court | Washington Supreme Court |
| Parties | MARKHAM ADVERTISING COMPANY, Inc., Casey & Stone Company, Columbia Basin Outdoor Advertising Co., Northwest Outdoor Advertising Corporation, National Advertising Co., Obie Outdoor Advertising, Inc., Sunset Outdoor Advertising Company, Yakima Valley Poster Service, Inc., Grover Advertising, Inc., Individually and as a class, Appellants, Foster and Kleiser, Division of Metromedia, Inc., Plaintiff, v. The STATE of Washington, Washington State Highway Commission, and the Honorable Members Thereof, Consisting of Ernest A. Cowell, Chairman, Robert L. Mikalson, George D. Zahn, James M. Blair, Sr., and Irving Clark, Jr., their Officers, Agents and Employees, Respondents, Ira R. Grant, Intervenor, M. C. Beatie and Tranquilla Kozak, Additional Intervenors. |
Schweppe, Doolittle, Krug & Tausend, Alfred J. Schweppe, Coulter & Lee, C. Lee Coulter, Seattle, for appellants.
John J. O'Connell, Atty. Gen., Olympia, Delbert W. Johnson, Charles E. Watts, Asst. Attys., Gen., Roger A. Gerdes, Sp. Asst. Atty. Gen., for respondents.
Roberts, Shefelman, Lawrence, Gay & Moch, Harold S. Shefelman, George M. Mack, Timothy R. Clifford, Seattle, amici curiae.
The question presented by this appeal from the dismissal of plaintiffs' action for a declaratory judgment is the constitutionality of the Highway Advertising Control Act of 1961 (hereafter referred to as the Act), and certain regulations adopted thereunder (hereafter referred to as the Regulations).
The original plaintiffs (appellants) were 10 outdoor advertising companies comprising virtually the entire outdoor advertising industry in this state. Three individuals later intervened, one a sign owner and the other two representing the class of landowner-lessors.
A number of groups interested in highway beautification submitted a brief amici curiae supporting the state and the members of the Highway Commission (respondents), who we will hereafter refer to as the defendant or state. Labor organizations representing employees of outdoor advertising firms and Western Outdoor Markets, a California Corporation, appeared as amici curiae on behalf of the plaintiffs.
The original complaint alleged that the Highway Advertising Control Act of 1961, RCW 47.42 () and the Regulations adopted thereunder by the Highway Commission on May 18, 1961, 3 Washington Administrative Code, ch. 252--40, were unconstitutional. Plaintiffs filed their suit praying for a declaratory judgment and a temporary injunction on February 26, 1964. The injunction was granted on March 9, 1964, and up to the time of the filing of this appeal, the Commission has been prevented from enforcing orders, issued under the Act, requiring the removal of certain advertising signs.
The setting for the issues presented in this case includes two federal statutes in addition to the state legislation and administrative Regulations mentioned above, all of which we will discuss in some detail in order to provide a better understanding of the disposition of this appeal.
In its federal interstate highway program, Congress made provision for control of outdoor advertising. In 1958, Pub.L.No. 85--767, ch. 1, § 131, 72 Stat. 904 (Aug. 27, 1958), formerly 23 U.S.C. § 131, entitled 'Areas adjacent to the Interstate System,' (now superseded by Pub.L.No. 89--285, 79 Stat. 1028 (Oct. 22, 1965)), became law. Congress expressed the purpose of this provision as follows:
To promote the safety, convenience, and enjoyment of public travel and the free flow of interstate commerce and to protect the public investment in the National System of Interstate and Defense Highways, it is declared to be in the public interest to encourage and assist the States to control the use of and to improve areas adjacent to the Interstate System by controlling the erection and maintenance of outdoor advertising signs, displays, and devices adjacent to that system. § 131(a).
It was declared a 'national policy' that the erection and maintenance of advertising signs, displays and devices within 660 feet of the right-of-way of interstate system highways should be 'regulated, consistent with national standards to be prepared and promulgated by the Secretary (of Commerce).' Four types of signs were to be permitted within the regulated area, corresponding to the types authorized for 'protected areas' under RCW 47.42.040, infra. All other signs were prohibited in the 660-foot belt lining the right-of-way. In order to implement the section the Secretary of Commerce was empowered to negotiate agreements with the states concerning
provisions for regulation and control of the erection and maintenance of advertising signs, displays, and other advertising devices in conformity with the standards established in accordance with subsection (a) of this section and (these agreements) may include * * * provisions for preservation of natural beauty, prevention of erosion, landscaping, reforestation, development of viewpoints * * *, and the erection of markers, signs, or placques, and development of areas in appreciation of sites of historical significance. § 131(b).
Excepted from these agreements, and from the application of the section, were areas along the interstate system that were zoned for industrial or commercial uses under state law. As an inducement for entering into agreements with the Secretary of Commerce, the states were to receive an increase of 1/2 of 1 percent of the federal share payable on interstate projects.
In 1961, the state legislature enacted the Highway Advertising Control Act, RCW 47.42, the opening section of which declared:
The control of signs in areas adjacent to state highways of this state is hereby declared to be necessary to promote the public health, safety, welfare, convenience and enjoyment of public travel, to protect the public investment in the interstate system and other state highways, and to attract visitors to this state by conserving the natural beauty of areas adjacent to the interstate system, and of scenic areas adjacent to state highways upon which they travel in great numbers, and to insure that information in the specific interest of the traveling public is presented safely and effectively. RCW 47.42.010.
The Act designates 'protected areas' and 'scenic areas' within which 'no person shall erect or maintain a sign,' except as expressly permitted under the Act. A 'protected area' is the strip within 660 feet of the edge of the right-of-way of interstate system highways. A 'scenic area' includes land within 660 feet of a state highway within a public park, federal forest area, public beach, public recreation area, national monument and 'any state highway or portion thereof,' outside the boundaries of an incorporated city or town, which the legislature may designate. In 'protected areas,' the four types of signs permitted are:
(1) Directional or other official signs or notices that are required or authorized by law;
(2) Signs advertising the sale or lease of the property upon which they are located;
(3) Signs, not inconsistent with the policy of this chapter and the national policy set forth in section 131 of title 23, United States Code and the national standards promulgated thereunder by the secretary of commerce, advertising activities being conducted at a location within twelve miles of the point at which such signs are located.
(4) Signs, not inconsistent with the policy of this chapter and the national policy set forth in section 131 of title 23, United States Code and the regulations promulgated thereunder by the secretary of commerce, designed to give information in the specific interest of the traveling public. RCW 47.42.040.
In 'scenic areas,' the Act allows only signs of types 1, 2 and those of type 3 which advertise activities conducted on the premises. RCW 47.42.060 authorizes the State Highway Commission to prescribe Regulations under the Act.
The Act also provides that any 'sign erected or maintained contrary to the provisions of this chapter or regulations promulgated hereunder shall be a public nuisance,' and that the permittee or owner of the property on which the sign is located shall be notified that the sign 'must comply with the chapter or be removed.' RCW 47.42.080. Signs which are not removed within 15 days of the entry of a removal order may be destroyed. The Act declares it unlawful to maintain, after March 11, 1964, any signs erected prior to March 11, 1961 which do not comply with the Act or the Regulations. RCW 47.42.100. Where such signs are located in areas zoned for industrial and commercial uses, the grace period extends to March 11, 1965.
Except for signs of types 1, 2 and those of type 3 which advertise activities conducted on the premises where the sign is located, no sign may be erected or maintained without a permit issued by the Highway Commission. The Act sets forth the procedures for applying for and renewing permits, as well as for revocation of permits. Finally, the Act authorizes the Highway Commission to enter into agreements with the Secretary of Commerce, as provided for in Pub.L.No. 85--767, ch. 1, § 131, supra.
The Highway Commission, acting under authority granted it by the Act, issued Regulations on May 18, 1961. 3 WAC, ch. 252.40, supra. These Regulations, which are also challenged on this appeal, govern the size and spacing of permitted signs, prohibit signs which are unsightly or dangerous in construction, and limit each property owner to one for sale or lease sign and one sign advertising activities being conducted on the premises. Where a sign advertising activities conducted on the premises bears a trade name, this name may not be more conspicuous than the name of the local activity. The Regulations set forth the...
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