    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

SUN OUTDOOR ADVERTISING, LLC,                       No. 75231-6-1
a Washington limited liability company,
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                     Respondent.                    FILED: August 29, 2016


      Verellen, C.J. — Sun Outdoor Advertising appeals the denial of a permit to

erect a billboard along a designated scenic highway in Okanogan County. Under the

Scenic Vistas Act, chapter 47.42 RCW, billboards are generally prohibited along scenic

roads, but an exception applies if (1) the area is zoned by the county for predominantly

commercial and industrial uses and (2) the area contains development which is visible

from the highway.1 Sun Outdoor argues that because a majority of the itemized

permitted uses in the applicable zoning designation can be categorized as commercial

or industrial in nature, those uses "predominate." But the plain meaning of

"predominate" requires a comparison of equivalent categories of use. Because the

applicable zoning designation allows broad categories of uses and prohibits very few

categories of uses, no particular category of use predominates.


       1 Only the first prong of this test is at issue here.
No. 75231-6-1/2



      Therefore, the Department of Transportation properly concluded the proposed

billboard location was not an area zoned for predominantly commercial or industrial

uses. We affirm.

                                         FACTS

      In 2014, Sun Outdoor sought a permit from the Department to erect a billboard in

Okanogan County on property along State Route 97. It is undisputed that, absent an

exception, the proposed billboard location is part ofa designated "scenic system."2 The
proposed location is zoned by the County as a "Minimum Requirement District" (MRD).
      The Department denied Sun Outdoors' application. The Department found that

the proposed location was not zoned for "predominantly commercial or industrial uses,"
noting the stated purpose of the MRD zone is to "maintain broad controls in preserving
rural character and protecting natural resources."3
       Sun Outdoor sought judicial review of the Department's decision. The trial court

affirmed the decision.

       Sun Outdoor appeals.

                                       ANALYSIS

       Sun Outdoor argues the Department erroneously interpreted and applied the law

in determining that the proposed billboard location was not zoned for "predominantly"
commercial and industrial uses. We disagree.

       Our review of this case is governed by the Administrative Procedure Act (APA),

chapter 34.05 RCW.4 "The burden of demonstrating the invalidity ofagency action is on

       2 RCW 47.39.020(22).
       3 Clerk's Papers at 12.
       4 RCW 34.05.570(3).
No. 75231-6-1/3


the party asserting invalidity."5 We will reverse if the Department "erroneously

interpreted or applied the law."6

       Interpretation of the statute defining exceptions to the general prohibition of

billboards along scenic roads is a question of law.7 We review questions of law de novo

under the error of law standard.8

       In determining the legislature's intent, we look first to the statute's plain

language.9 We examine "the language of the statute, other provisions of the same act,

and related statutes to determine the plain meaning."10 "If the plain language is

unambiguous, we enforce the statute in accordance with its plain meaning."11
       The Scenic Vistas Act was enacted "to promote the public health, safety, welfare,

convenience and enjoyment of public travel. . . 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."12 The Act provides that "no person shall erect or



       5 RCW 34.05.570(1 )(a).
       6 RCW 34.05.570(3)(d).
      7 See id.: see also Gradinaru v. Dep't of Soc. & Health Servs.. 181 Wn. App. 18,
21, 325 P.3d 209 (2014).
       8 Smith v. Emp't Sec. Dep't, 155 Wn. App. 24, 32, 226 P.3d 263 (2010).
      9 Life Care Ctrs. of Am., Inc. v. Dep't of Soc. & Health Servs., 162 Wn. App. 370,
375, 254 P.3d 919 (2011).
       10 Jdj accord City of Seattle v. Allison. 148 Wn.2d 75, 81, 59 P.3d 85 (2002)).
       11 Life Care. 162 Wn. App. at 375.
       12 RCW 47.42.010. The Act dovetails with the Federal-Aid Highway Act, whose
express purpose for controlling outdoor advertising is "to protect the public investment in
such highways, to promote the safety and recreational value of public travel, and to
preserve natural beauty." 23 U.S.C.A. § 131(a). Under the Federal-Aid Highway Act,
signs "may be erected and maintained within six hundred and sixty feet of the nearest
edge of the right-of-way within areas adjacent to the Interstate and primary systems
which are zoned industrial or commercial under authority of State law, or in unzoned
No. 75231-6-1/4


maintain a sign which is visible from the main traveled way of the interstate system, the

primary system, or the scenic system."13 The definition of "scenic system" includes:

       [A]ny state highway or portion thereof outside the boundaries of any
       incorporated city or town designated by the legislature as a part of the
       scenic and recreational highway system except for the sections of
       highways specifically excluded in RCW 47.42.025 or located within areas
       zoned by the governing county forpredominantly commercial and
       industrial uses, and having development visible to the highway, as
       determined by the departments

Thus, when this two-prong test is met, the area is no longer part of the "scenic system"

and billboards are permitted. Only the first prong of this test is at issue.15
       The term "predominantly" is not defined in the Act. "Undefined words in a statute

are accorded their ordinary meanings."16 The dictionary defines "predominant" as

"having superiorstrength, influence, authority, or position: CONTROLLING,

DOMINATING, PREVAILING."17

       Sun Outdoor's premise is that to determine whether an area is predominantly
zoned for any particular use turns on counting up the number of specific uses allowed in
a particular zoning designation. It claims that because "95 ofthe 97" itemized permitted
uses in the MRD zone can be categorized as "plainly commercial or industrial in nature,"

those uses predominate.18


commercial or industrial areas as may be determined by agreement between the
several States and the Secretary." 23 U.S.C.A. § 131(d).
       13 RCW 47.42.030.
       14 RCW 47.42.020(9)(c) (emphasis added).
       15 We agree with Sun Outdoor that the actual uses in place at the proposed
billboard location are not part of the first prong analysis.
       16 Gradinaru. 181 Wn. App. at 22.
       17 Webster's Third New Int'l Dictionary 1786 (2002).
       18 Appellant's Br. at 16.
No. 75231-6-1/5


       But the plain meaning of "predominant" requires a more carefully calibrated

comparison of uses permitted. If every use is permitted, then no particular use

predominates. Similarly, in analyzing whether a particular use predominates in a multi-

use zone, we have to compare equivalent categories of uses.

       Here, the proposed billboard location is not within an area zoned by the County
as a specific commercial or industrial district. Rather, it is zoned to permit a wide variety
of uses, including but not limited to commercial and industrial uses. For example, in
addition to a long list of commercial and industrial uses, the MRD expressly permits
agricultural (dairy farms, farms, ranges, pastures, nurseries, and orchards), residential
(single-family and multifamily), governmental (fire and police facilities, maintenance
shops, warehouses, and offices), and recreational (athletic fields) uses.19 Other varied
uses are allowed with a conditional use permit or a binding site plan (churches,

manufactured home parks, schools, RV parks, and campgrounds).20
       In this setting, broad categories such as "commercial and industrial" uses should
be compared with equivalent broad categories of uses such as "agricultural, residential,
governmental, and recreational." The question comes into focus if permitted uses are
contrasted with prohibited uses in the MRD. The only prohibited uses appear to be
"nightly rentals" and auto storage of more than five disabled automobiles.21 Because
the MRD allows such a broad range of uses and prohibits only a very few uses, there is




        19 Okanogan County Code 17.05.020.
        20 Okanogan County Code 17.05.030.
        21 Okanogan County Code 17.05.050.
No. 75231-6-1/6


no particular category of use that predominates. Commercial and industrial uses do not

predominate.22

      Although the Department looked to the broad and general purpose for the MRD

zoning designation in its decision, we do not find the statement of purpose helpful.

Okanogan County Code 17.05.010 provides, "The purpose of the minimum requirement

district is to maintain broad controls in preserving natural character and protecting

natural resources." The broad statement of purpose does not reveal whether a

particular use predominates. In this setting, the plain meaning of "predominantly" in

RCW 47.42.020(9) is determinative.

       Because Sun Outdoor fails to establish any error of law under the APA

standards, we affirm.




WE CONCUR:




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       22 Contrary to Sun Outdoor's argument, merely counting up the number of
itemized permitted uses in the MRD that are commercial or industrial in nature is not a
true measure of what uses predominate. For example, if instead of merely listing
single-family dwellings and multifamily dwellings, the County itemized bungalows, huts,
cottages, chalets, lodges, log cabins, duplexes, condominiums, and town houses as
uses permitted in the MRD, the residential category of uses would not predominate to
any greater extent.
