JET CHEVROLET, INC. v. CITY OF FEDERAL WAY, 120 Wn. App. 1022 (2004)

Federal Way enacted an ordinance modifying its sign standards and requiring removal of nonconforming signs. More than a year after removing their signs, several sign owners brought this suit against Federal Way, arguing that under the Scenic Vistas Act (SVA),¹the City must compensate them for signs they removed. Because the plaintiffs did not bring their suit under the Land Use Petition Act (LUPA)²and did not meet its filing requirements, we affirm the trial court's summary judgment order dismissing their suit. Chapter 47.42 RCW, the Scenic Vistas Act, applies to signs adjacent to state highways,³and provides that `[j]ust compensation shall be paid upon the removal of any existing sign pursuant to the provisions of any resolution or ordinance of any county, city, or town.'<sup>4</sup>In 1990, the City of Federal Way enacted uniform requirements for the appearance, size, and placement of all commercial signs and billboards in the city. The ordinance provided a five-year amortization period for nonconforming signs.<sup>5</sup>In 1995, Federal Way extended the amortization period for an additional five years, and provided that `[t]he city may elect not to apply any provisions of this section if the removal of a sign would require the city to pay compensation under any federal, state or other law, including Chapter 47.42 RCW.'⁶

Jet Chevrolet, Kuecker Ltd. Partnership, Clerget Management Corp., Davco Enterprises, Inc., and Beatrice A. Rhodes (plaintiffs) all owned commercial signs in Federal Way situated adjacent to a state highway. In 1996, they all received notices from Federal Way that their signs did not conform to the ordinance and were to be removed by 2000. The notices made no mention of compensation.

In mid-2000, Federal Way began issuing notices of violation ordering the plaintiffs to bring their signs into compliance or remove them. Jet received its notice in December. The notice explained that Jet was in violation of the City's sign regulations, and that Jet must remove the nonconforming sign by December 15, request an extension for removing the sign, or appeal the decision to the hearing examiner. The notice explained that failing to take one of these steps would result in monetary penalties. The notice further explained that if Jet did not take one of the three steps outlined above, the City would employ other methods, such as removing the signs at the expense of the owner, and/or revoking Jet's business license.

None of the plaintiffs requested compensation or a variance for their signs before taking them down. Several months later they initiated this suit requesting compensation on the grounds that chapter 47.42 RCW required Federal Way to pay compensation for the signs. Federal Way brought a motion for summary judgment, which the superior court granted. When reviewing an order granting summary judgment, we engage in the same inquiry as the trial court.⁷We will affirm an order granting summary judgment if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.⁸

The SVA provides for the control of signs and billboards adjacent to state highways. As enacted in 1971, it required the State to compensate sign owners when the State required removal under the chapter.⁹The Legislature amended the statute in 1977 to require that counties and municipalities compensate owners of signs removed under the SVA.¹⁰Before enacting the amendment, amortization was the sole method local governments were required to use for compensating sign owners.

By applying the SVA's compensation provisions to local governments, the SVA implicitly contemplates that cities will establish mechanisms to comply with the statute's requirements. But the statute does not set forth any explicit method or process for local governments as it does for the State.¹¹And although the SVA requires that cities compensate sign owners for their loss when removing signs, the statute does not expressly provide a private cause of action when local governments violate the SVA.

Federal Way has no mechanism for determining compensation for sign owners affected by its sign ordinance. Federal Way arguably violated the SVA's provisions by not providing sign owners with notice of the SVA or providing any means of determining compensation for signs removed under the ordinance. In fact, Federal Way acknowledged in oral argument that its hearing examiner is not authorized to provide compensation for sign owners. The plaintiffs argue that this case only concerns compensation under the SVA, and that they need not bring suit by utilizing LUPA. While it is true that they request compensation under the SVA, they also necessarily allege that Federal Way failed to follow the mandates of the SVA by not providing a mechanism for determining compensation. And suits challenging a municipality's failure to follow state law must be brought under LUPA. Under LUPA, this court `may grant relief' from a land use decision if the party seeking relief satisfies one of LUPA's standards.<sup>12</sup>The plaintiffs argue that because they only seek compensation and do not challenge the City's right to regulate their signs, they do not need to file under LUPA. They cite to language in the statute explaining that LUPA does not apply to `[c]laims provided by any law for monetary damages or compensation.'¹³But to the extent that the plaintiffs' claim goes to whether the City followed state law or procedure, they are arguing that the City `engaged in unlawful procedure or failed to follow a prescribed process' as required in a LUPA challenge.¹⁴While the plaintiffs do request compensation, they request compensation because the City failed to follow the SVA's prescribed process or procedure. That challenge must be brought under LUPA. LUPA sets forth strict requirements for challenging local action.¹⁵Courts have recognized that LUPA is the exclusive means for judicial review of land use decisions in Washington.¹⁶Any challenge or appeal must be filed and served on all parties within 21 days of the final land use decision.¹⁷The date constituting a final determination under LUPA is when each plaintiff received its final removal notice from the city.¹⁸The plaintiffs should have brought their challenge within 21 days after receiving this removal notice.¹⁹Even assuming arguendo that the final determination was when the plaintiffs removed their signs, this date also falls well beyond the 21-day period for challenges under the statute.²⁰The plaintiffs did not timely file their challenge under LUPA. Accordingly, we affirm the trial court's summary judgment.

AFFIRMED.

COLEMAN and AGID, JJ., concur.