APP-05-08 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of an Administrative Determination, )
issued by the City Community Development )
Department, in the I-1 Zoning District; ) FINDINGS OF FACT,
Applicant/Appellant: Young Electric Sign ) CONCLUSIONS OF LAW,
Company, and Rude Enterprises, LLC ) AND DECISION
File No APP-05-08 )
I. SUMMARY OF DECISION
Hearing Matter: Appeal of an administrative determination issued by the City Community
Development Department, denying an application for a sign permit; in the I-1 zone.
Summary of Decision: Deny appeal.
II. FINDINGS OF FACT
1. On July 11,2008, the applicant submitted a complete application for a sign permit; to allow
alteration of a nonconforming, freestanding sign for International Gateway Corporate Park,
located at 10102 E. Knox Avenue; in the Light Industrial (I-1) zoning district. See application
#08-00268.
2. The applicant is Young Electric Sign Company, and Rude Enterprises, LLC; do Jeff Rade,
5000 East Seltice Way, Post Falls, ID 83854.
3. On July 23,2008, Kathy McClung, Director of the Spokane Valley Community
Development Department("Department"), denied the application; after meeting with the
applicant and discussing the application. See letter dated 7-23-08 from Kathy McClung to Jeff
Rade.
4. On August 6, 2008, the applicant filed a written appeal of the administrative decision with
the Department.
5. On October 23, 2008, the Hearing Examiner conducted a public hearing on the appeal.
Notice of the hearing was duly provided. The Examiner conducted a site visit on October 23,
2008;prior to the hearing.
6. The following persons testified at the public hearing:
Christina Jannsen Wm. Scott Hislop
Spokane Valley Planning Dept. Attorney at Law
11707 E. Sprague, Suite 106 12209 E. Mission, Suite 5
Spokane Valley, WA 99206 Spokane Valley, WA 99206
HE Findings, Conclusions and Decision APP-05-08 Page 1
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7. The Examiner heard the appeal pursuant to Chapter 17.90 of the Spokane Valley Municipal
Code (SVMC), and the City Hearing Examiner Rules of Procedure.
8. The Hearing Examiner takes notice of the City Comprehensive Plan, SVMC, City
ordinances, and Hearing Examiner Rules of Procedure; former Spokane County Zoning Code;
and prior land use decisions for the site
9. The record includes the documents in the appeal file at the time of the appeal hearing, the
documents and testimony submitted at the appeal hearing, and the items taken notice of by the
Examiner.
10. The site consists of several acres of land improved with a multiple business complex of
retail/office uses, developed before incorporation of the City in 2003. The complex lies between,
and adjacent to,the north side of Interstate 90 and the south side of Knox Avenue; between
Woodruff Avenue and Felts Road.
11. On July 5, 2000, Spokane County issued a building permit for the construction of a
freestanding, on-premises sign to serve the multiple business complex on the site; in the Light
Industrial (I-2)zone of the County Zoning Code. The 1-2 zone permitted all uses allowed in the
Regional Business (B-3) zone, subject to meeting the development standards of the B-3 zone of
the County Zoning Code.
12. The sign, as constructed, is located near the north side of Interstate 90, a few hundred feet
south of Woodruff Avenue; and is oriented to both eastbound and westbound traffic. The sign is
42 feet and 8 inches tall, 34 feet wide, and has a copy area of 397 square feet on each face.
13. The sign includes a 7-foot high, 34-foot long,high-voltage electronic, changeable
"message center"; which has a copy area of 238 square feet on each side, and is elevated 21 feet
above the ground.
14. The sign also includes an unchanging, non-electronic copy area of 160 square feet on each
side,which is located both above and below the electronic message center. Such copy area
ranges from 18 feet above grade to 42 feet and 8 inches above grade; and advertises the name,
location and logo for the business complex.
15. The sign is supported by two (2)metal poles that extend almost to the top of the sign, and
are embedded in concrete.
16. At the time the County issued the building permit for the sign, Section 14.804.120 of the
County Zoning Code permitted a freeway oriented, on-premises sign for a multiple business
complex in the B-3 zone (and commercial uses in the 1-2 zone)to have a maximum height of 60
feet above grade and a maximum sign area of 400 square feet on each side. This included
electronically changeable message signs, but not flashing signs. See Chapter 14.804 of County
Zoning Code.
HE Findings, Conclusions and Decision APP-05-08 Page 2
17. Section 14.804.220 of the County Zoning Code permitted nonconforming signs to continue
in use so long as they were continuously maintained, were not relocated, and were not
"...structurally altered or made more nonconforming in any way."
18. On March 31, 2003, the City incorporated; and adopted the County Zoning Code by
reference as its Interim Zoning Code, subject to certain revisions. Chapter 14.804 of the County
Zoning Code was codified as Section 10.30.660 of the SVMC (i.e. City Interim Sign Code),
pursuant to City Ordinance No. 05-016.
19. On June 14, 2005, the City made certain changes to its Interim Sign Code. See City
Ordinance No 05-016.
20. In 2006,the City adopted new sign regulations. See City Ordinance No. 06-009. Section
10.07.09.05 of such regulations limited freeway-oriented signs for commercial and industrial
uses in the I-2 zone, including electronic signs,to a maximum height of 50 feet and a maximum
sign area of 250 square feet. These changes made the existing sign on the site nonconforming as
to area, in the I-2 zone, by a factor of 147 square feet.
21. On October 28, 2007, the City repealed the City Interim Zoning Code and Interim Sign
Code, implemented a Uniform Development Code (UDC) in Title 17-25 of the SVMC, adopted
new zoning districts under the UDC, and reclassified the land in the City under the new zoning
districts. This resulted in the zoning of the site being reclassified to the Light Industrial (I-1)
district of the UDC.
22. Section 22.110.040 of the SVMC limits freestanding signs for non-residential uses located
adjacent to I-90 to a maximum height of 50 feet and a maximum sign area of 250 feet. This
includes electronic signs. See Section 22.110.060 of SVMC. The sign located on the site is
nonconforming as to area in the I-1 district, by a factor of 147 square feet.
23. Section 22.110.120 of the SVMC provides, in pertinent part, that a permanent sign made
nonconforming as a result of the adoption of the sign regulations in Chapter 22.110 of the SVMC
"...may be repaired, but not structurally altered or made more nonconforming in any way".
[underlining added].
24. Section 22.110.120 of the SVMC reads the same as Section 10.07.09.11 of the former City
Interim Sign Code, adopted by City Ordinance No. 06-009; regarding existing nonconforming
signs.
25. The current sign permit application proposed to replace the existing sign with a LED (light
emitting diode)type sign; with no unchangeable signage except for a globe logo feature located
at the top of the sign, similar to the existing sign; and using the same concrete fittings and pipe
supports. The total sign copy area for the proposed sign would be approximately 394 square
feet, and housed in new sign cabinets.
26. The proposed sign would have a maximum height of 41 feet, at the top of the logo feature.
The copy area(sign cabinet) for the LED display would be elevated 19 feet and 1 inch above the
HE Findings, Conclusions and Decision APP-05-08 Page 3
ground, 25 feet and 4 inches wide, 15 feet tall, and approximately 375 square feet in area The
logo globe feature would be located within a copy area of approximately 19 square feet,
positioned above the LED sign area
27. The LED portion of the proposed sign has 216 rows and 368 columns to advertise sign
copy in LED color display, within a copy area of 375 square feet. The electronic portion of the
existing sign has 15 rows and 93 columns to advertise sign copy area in high-voltage,
monochromatic display; within a copy area of 238 square feet.
28. The power consumption of the proposed sign is approximately one-fourth(1/4) the existing
sign, in terms of wattage and monthly electrical costs.
-29. The letter from the Department's Director dated July 23, 2008 found that the proposed sign
would reconfigure the shape, lighting and setbacks for the existing sign; the proposed sign may
have other nonconforming features; and the existing nonconforming sign would be "structurally
altered"by the proposed sign in a manner prohibited by Section 22.110.120 of the SVMC.
30. The applicant's appeal contended that the reference to "structurally altered" in Section
22.110.120 of the SVMC applies only to modification of a"structure"; the only portions of a
sign that meets the definition of"structure" in Appendix A(Definitions) of the SVMC, or are
"structural", are the"sign support structures"; the sign support structures will not be altered; the
proposed sign does not make the existing sign more nonconforming, in regard to the maximum
area permitted for the sign under Section 22.110.040 of the SVMC; and the changes to the
existing sign comply with the nonconforming sign provisions of Section 22.110.120 of the
SVMC.
31. The appeal, and the applicant at the appeal hearing, advised that the existing electronic sign
is obsolete, less energy efficient than the proposed sign, more difficult and costly to maintain,
less aesthetically appealing and environmentally conscious, and taller and larger than the
proposed sign.
32. The Department's planner testified at the appeal hearing that the existing sign is being
"structurally altered" in violation of Section 22.110.120 of the SVMC; because the existing sign
cabinet would be removed and replaced with a different sign cabinet, and the replacement
cabinet has different dimensions and structures. The planner commented that technological
changes could potentially be allowed to the existing sign, including conversion of the
monochromatic, high-voltage electronic display to a full color, LED display; provided the sign
cabinet and other structural parts of the sign were not altered.
III. CONCLUSIONS OF LAW
1. The Hearing Examiner is authorized to hear and decide appeals of an administrative
determination by the Director of the City Community Development Department. This includes
an appeal of the Director's decision denying a sign permit application, and an appeal of the
Director's interpretation of the City Uniform Development Code (UDC) formally requested by
an applicant. See Chapter 17.50, 17.80 and 17.90 of SVMC.
HE Findings, Conclusions and Decision APP-05-08 Page 4
2. The applicant timely appealed the current administrative determination to the I Icaring
Examiner, under Chapter 17.90 of the SVMC.
3. The appeal meets the contents requirements for administrative appeals set forth in Section
17.90.040 of the SVMC.
4. Under Washington case law, zoning ordinances are to be given a reasonable construction in
order to serve their purpose and scope; and to avoid a literal reading of an ordinance that would
result in unlikely, absurd or strained consequences. The primary objective in interpreting a
zoning ordinance is to ascertain the legislative intent. Undefined words in an ordinance are to be
given their plain and ordinary meaning. The ordinance should be construed as a whole, giving
effect to each of its parts, and, if possible, construing all parts in harmony. A zoning ordinance is
ambiguous if it is susceptible to more than one reasonable interpretation. In a doubtful case, a
court gives great weight to the contemporaneous construction of a zoning ordinance by the
officials charged with its enforcement. See Development Services v. City of Seattle, 138 Wn.2d
107 (1999); Whatcom County v. City of Bellingham, 128 Wn.2d 537 (1996); and State v.
Bellingham, 25 Wn. App. 33; review denied 93 Wn.2d 1018 (1979).
5. The City Community Development Department("Department") is responsible for
enforcing the UDC, including Chapter 22.100 of the SVMC relating to signage. Appendix A of
the UDC defines "Director of Community Development"as "The individual or designee,
appointed by the City Manager responsible for interpretation and enforcement of all or part of
the provisions of Spokane Valley Uniform Development Code. "
6. Appendix A of the UDC ("Appendix A")defines various words used in the UDC.
Appendix A provides that words not defined therein shall be construed as defined in Webster's
New Collegiate Dictionary. Meriam Webster's Collegiate Dictionary(11th Edition),referred to
hereafter as"Webster's Collegiate Dictionary", can be accessed online without charge.
7. Appendix A defines "sign, nonconforming"as: "Any sign which was lawfully erected and
maintained on private property which now, as a result of code amendments, does not conform to
all applicable regulations and restrictions in this code."
8. The existing sign on the site is nonconforming as to area, under Section 22.110.040 of the
SVMC. Section 22.110.120 prohibits a nonconforming sign from being "structurally altered",or
made nonconforming in any ways; but allows repairs to a nonconforming sign.
9. The UDC, and Appendix A of the UDC, do not define the terms "structurally altered"or
"structurally", but do define the terms "altered" and"structure".
10. The applicant contended that a"sign"does not constitute a"structure", as such terms are
defined in Appendix A; because a sign is not erected for the purpose of support, shelter or
enclosure of persons, animals or property. The applicant contended that only the "sign support
structure(s)"portion of a sign, as such term is defined in Appendix A, can be considered a
"structure"or"structural".
HE Findings, Conclusions and Decision APP-05-08 Page 5
11. The Director of the Department, in her July 23, 2008 letter, construed the term "structural",
with regard to Section 22.110.120 of the SVMC, in a broader sense than implied by the
definition of"structure" in Appendix A.
12. Appendix A defines a"sign" as: "A visual communication device, structure, or fixture
which is visible from any right of way and is intended to aid in promoting the sale of products,
goods, services, events or to identify a building using graphics, letters,figures, trademarks or
written copies. " [underlining added]. The definition of"sign"then sets forth examples of signs,
as "...including any board,poster,placard, banner,flag,pennant, streamer or similar structure
electronic or otherwise which is constructed,placed, attached,painted or fastened in any
manner for the purpose of attracting attention of the public to any place,person, entity, or
business. " [underlining added]
13. A pp endix A defines "sign, copy area" as: "The area of the sig n containing any copy,
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symbol, sign, logo or graphic." Also see definition of"sign, copy" in Appendix A. The housing
for the sign copy area is generally referenced in the sign industry as the "sign cabinet".
14. Appendix A defines "sign support structure(s)"as: "Posts or columns and the anchors and
bolts that structurally support the sign attached to it."
15. Appendix A defines "sign, freestanding" as: "A permanent sign not attached to or forming
part of a building."
16. Appendix A defines "sign,pole"as: "A permanent free-standing sign supported wholly by
a pole or poles permanently affixed to the ground and not attached to a building or structure. "
This definition is in conflict with the definition of"sign, freestanding", by the addition of the
words"or structure".
17. Appendix A defines "structure" as: "Any construction, including a building or any portion
thereof erected for the purposes of support, shelter or enclosure of persons, animals or property
of any kind, including swimming pools, decks in excess of thirty (30) inches in height, and roof
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overhangs exceeding three (3)feet. A fence of six (6)feet or less in height is not a structure, nor
masonry, brick, concrete, or cinder block wall of less than four (4)feet in height. "
18. The Staff Report submitted by the Department, on the Director's behalf, noted that the
definition of"sign" in Appendix A states that a sign can be a structure; and found that the
definition of"sign"considers the copy area/cabinet of the sig n, as well as the sig n support
structure(s), to be part of the sign structure.
19. The definition of"structure"in Appendix A is a term of art, and may not be intended to
include a"sign" for any or all purposes of the UDC. Chapter 22.110 of the SVMC contains
stand alone provisions for signs that are separate from the zoning standards for other types of
development, i.e. height, area, number, setbacks, type, maintenance, nonconforming provisions,
etc.
HE Findings, Conclusions and Decision APP-05-08 Page 6
20. The definition of"sign" in Appendix A includes the sign copy area (cabinet), and the sign
support structure(s), as elements of the overall "structure"or construction of a sign.
21. Appendix A does not define the word"structurally", as referenced in Section 22.110.120 of
the SVMC. Webster's Collegiate Dictionary references the word "structurally"as an adverb,
and then provides a definition for"structural". The word"structural" is defined, in pertinent
part, as: "of or relating to, or affecting structure <structural stability>", or"used in building
structures <structural clay>".
22. Webster's Collegiate Dictionary defines "structure", in pertinent part, as: "the action of
building: construction", "something arranged in a definite pattern of organization <a rigid
totalitarian structure>", "something(as a building) that is constructed", "manner of
construction: makeup", "the arrangement of particles or parts in a substance or body <soil
structure> <molecular structure>", or "the arrangement of elements of an entity in their
relationship to each other <the structure of a language. ".
23. Appendix A of the UDC defines "altered/alteration"as: "Any change, addition or
modification in construction or any change of occupancy from one (1) use to another or from
one (1) division of a trade to another."
24. Appendix A does not define the term"construction". Webster's Collegiate Dictionary
defines"construction", in pertinent part, as: "the process, art, or manner of constructing
something". Webster's Collegiate Dictionary references the word"constructing", and then
provides a definition of"construct", in pertinent part, as: "to make or form by combining or
arranging parts or elements: build; also, contrive, devise".
25. Based on the above definitions, and giving due weight to the interpretation of the Director
of the Department, the existing nonconforming sign on the site will be "structurally altered",
within the meaning of Section 22.110.120 of the SVMC, by the structural changes proposed to
the sign cabinet for the existing sign. This includes replacement of the sign cabinet; and changes
to the dimensions, lighting characteristics, etc. of the existing sign cabinet(s).
26. The applicant too narrowly construes the term "structurally altered" in Section 22.110.120
of the SMC to mean the alteration of a"structure"as defined in Appendix A. This is not a
reasonable interpretation of such term, which term is not ambiguous.
27. The general rule under local zoning laws throughout the United States is that structural or
substantial alterations of nonconforming structures and signs are prohibited. The prohibition
does not extend to structural alterations that render a nonconforming sign completely
conforming, but does pertain to structural alterations that only render a nonconforming sign or
other structure less nonconforming. The intent of prohibiting structural alterations to a
nonconforming sign is to discourage the life of nonconforming signs, which are not favored in
the law. See McQuillin Mun. Corp. #25.205 (3rd Edition).
28. Some local jurisdictions attempt to regulate the alteration of a nonconforming sign by
limiting the maximum amount of money that may be spent to alter it, or prohibiting alterations
HE Findings, Conclusions and Decision APP-05-08 Page 7
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that turn the sign into something new or substantially different. Other jurisdictions may require
that a nonconforming sign or billboard be phased out over a certain period of time See 83 Am
Jur 2d#605.
29. The applicant contended that the proposed sign implements the intent and meaning of the
City Council with regard to signage regulations; which can be used to help construe Section
22.110.120 of the SVMC, relating to nonconforming signs. See Section 17.40.010 of SVMC.
Section 22.110.010 of the SVMC states, in pertinent part: "Signage regulations are intended to
promote commerce, traffic safety and community identity while improving the visual environment
of residential, commercial and industrial areas... "
30. The proposed sign proposes a minor reduction to the nonconforming area of the sign, from
397 square feet to 394 square feet. This is still 144 square feet, or 58% larger than the 250
square foot sign permitted by the UDC. The alterations to the proposed sign will extend the
useful life of the sign, and also significantly increase the amount of actual sign copy that is
displayed compared to the existing sign. See definition of"sign copy" in Appendix A.
31. The extension of the life of the sign, with such a large nonconformity remaining as to sign
area, arguably overrides the energy, environmental, business, and certain aesthetic benefits from
the proposed sign extolled by the applicant. These same benefits can be derived if the applicant
simply replaces the existing sign with a conforming sign that has the same new features.
32. The applicant cites the Washington case of Keller v. Bellingham; but only the Washington
appellate decision, and not the State Supreme Court decision that reversed the appellate court in
favor of the landowner. The correct citation is 92 Wn.2d 726 (1979). The appellant also cites
the Washington case of Summit-Waller Ass'n v. Pierce County, 77 Wn. App. 384, 387 (1995).
33. Both the Keller v. Bellingham and the Summit-Waller Ass'n v. Pierce County cases pertain
to nonconforming uses, or a building that is part of a nonconforming use; and not to a
nonconforming sign for a conforming use, such as the existing sign for the multiple business
complex located on the current site.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the appeal is hereby
denied.
DATED this 22nd day of December, 2008
CITY HEARING EXAMINER PRO TEM
Mich.el C. Dempsey, WSBA#82 /
HE Findings, Conclusions and Decision APP-05-08 Page 8
NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC), the
decision of the Hearing Examiner on the appeal of an administrative determination is final
and conclusive unless within twenty-one(21) calendar days from the date of issuance of the
Examiner's decision, a party with standing files a land use petition in superior court
pursuant to chapter 36.70C RCW. Pursuant to chapter 36.70C RCW, the date of issuance
of the Hearing Examiner's decision is three (3) days after it is mailed.
This decision was mailed by regular mail to the Applicant, and to all government
agencies and persons entitled to notice under Section 17.80.130(4) of the SVMC, on
December 22,2008. The date of issuance of the Hearing Examiner's decision is therefore
December 29,2008, counting to the next business day when the last day for mailing falls on
a weekend or holiday. THE APPEAL CLOSING DATE IS JANUARY 20,2009,counting
to the next business day when the last day for mailing falls on a weekend or holiday.
The complete record in this matter, including this decision, is on file during the
appeal period with the Office of the Hearing Examiner,Third Floor, Public Works
Building, 1026 West Broadway Avenue, Spokane, Washington,99260-0245; and may be
inspected by contacting Leslie Busch at(509) 477-7490. The file may be inspected during
normal working hours,listed as Monday-Friday of each week, except holidays, between the
hours of 8:30 a.m. and 5:00 p.m. After the appeal period,the file may be inspected at the
City of Spokane Valley Department of Community Development, 11707 E. Sprague
Avenue, Spokane Valley,WA, 99206; by contacting Christina Janssen at(509) 921-1000.
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Copies of the documents in the record will be made available at the cost set by the City of
Spokane Valley.
HE Findings, Conclusions and Decision APP-05-08 Page 9