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Clallam County v. Cbs Outdoor, Inc.

United States District Court, W.D. Washington, Tacoma

December 23, 2014

CLALLAM COUNTY, Plaintiff,
v.
CBS OUTDOOR, INC., Defendant.

ORDER GRANTING PLAINTIFF CLALLAM COUNTY'S MOTION FOR SUMMARY JUDGMENT

KAREN L. STROMBOM, Magistrate Judge.

This matter comes before the Court on the filing a motion for summary judgment by plaintiff Clallam County (the "County"). The parties have consented to have this matter heard by the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 73 and Local Rule MJR 13. After having reviewed the County's motion, the response filed by defendant CBS Outdoor, Inc. ("CBS") to that motion, the County's reply thereto and the remaining record, the Court finds that for the reason set forth below the County's motion should be granted.

FACTUAL AND PROCEDURAL HISTORY

I. The Billboards and Ordinance 694

This case involves the cancellation by the County of lease agreements for three billboards located on real property situated on the western side of Siebert Creek Road and the northern side of Highway 101, in Port Angeles, Clallam County, Washington (the "Property"). See ECF #10, p. 8, ¶¶ 1-2; ECF #25, pp. 1-2, ¶ 4. Legally constructed in 1978, the three billboards are from 50 to 100 feet from Highway 101. See ECF #10, p. 8, ¶ 1; ECF #27, Exhibit L, 26: 5-18. In June 2000, the County enacted Ordinance No. 694 ("Ordinance 694"), which requires all "[e]xisting, legally erected, non conforming freestanding signs" to be reduced to no more than 128 square feet in area and 15 feet in height. Clallam County Code Ord. § 33.57.080(1)(a).[1] Enactment of Ordinance 694 resulted in the billboards becoming existing, legally, nonconforming freestanding signs. See id.; ECF #10, p. 8, ¶ 4.

II. The Lease Agreements

In September 2000, the owner of the Property, Marvin Eng, entered into three separate lease agreements with Infinity Outdoor Advertising Inc. ("Infinity Outdoor")[2], authorizing Infinity Outdoor to erect and maintain three advertising displays on the Property. See ECF #1, p. 11, ¶ 9; ECF #1-2, Exhibit B. Each lease provides that the lease's term would commence on October 1, 2000, and continue for an initial period of 10 years. ECF #1-2, Exhibit B. Thereafter, the lease term is "from year to year, on the same terms, until terminated as of any subsequent anniversary of the effective date" of the lease agreement "by written notice of termination given not less than sixty days prior to such anniversary date by either the Lessor or the Lessee." ECF #1-2, Exhibit B. Each lease further provides that "[a]ll structures, displays and materials placed" on the Property by the Lessee are the property of the Lessee, and that the Lessee may remove them "at any time prior to or within a reasonable time after the termination of" the lease "or any extension thereof." Id . There also is no restriction under the lease agreements on the ability of the Lessor to assign its interests thereunder, "except to a party who purchases the underlying fee title to the premises." See id.

III. The County's Purchase of the Property

In July 2001, the County purchased the Property from Mr. Eng, thereby becoming the Lessor under the leases. See ECF #1-2, Exhibit C; ECF #25, p. 2, ¶ 6; ECF #27, Exhibit C. The Property was purchased as part of "a normal market transaction" with Mr. Eng. ECF #25, p.2, ¶ 6; see also ECF #27, Exhibits C-E. Further, the Property was bought "for the purpose of conducting wetland mitigation, " and contains "three wetland areas" designated as "mitigation sites along with wetland mitigation buffers." ECF #25, p. 2, ¶ 7; see also ECF #25-1; ECF #25-8. "[I]n order to use the Property for wetland mitigation, " the County must abide by a number of local, state and federal government "requirements and restrictions, " including ensuring that the Property is protected "from development in perpetuity." ECF #25, pp. 3-4, ¶¶ 8-9; see also ECF #24-5, 29:20-23, 30:4-16, 31:4-6; ECF #25-5.

One such requirement is the control of "invasive weeds" such as "reed canary grass and sulfur cinquefoil, " both of which "have been found on the Property... including in areas in and around the wetlands." ECF #25, p. 4, ¶¶ 10-11; ECF #25-8; see also ECF #24-12. Sulfur cinquefoil in particular - which is "an extremely invasive plant" - has been found in the area of the billboards, and the County has continued to engage in efforts to control its spread, as well as that of other invasive weeds. ECF #25, p. 5, ¶ 12; see also ECF #24-5, 23:21-24, 31:18-34:10, 43:3-19, 46:2-18; ECF #24-10-#24-12; ECF #25-8; ECF #27, Exhibit N, 17:6-18:22.

Another requirement is ensuring the wetland mitigation sites are "protected and that no unauthorized dumping or other similar activities occur." ECF #25, p. 4, ¶ 10. The County has found vehicle tracks "leading from Sieberts Creek Road... down to at least the middle billboard and the farthest west billboard, and then... leading all the way across the wetland." ECF #24-5, 38:14-18, 43:3-9. This "was particularly concerning" to the County, because the tracks "had actually been doing damage in the wetland, across the actual degraded wetland basin." Id. at 38:18-21. The County also "believes that sulfur cinquefoil spread[s] along" these tracks, and thus "to limit the spread of these weeds and keep trespassers of the Property, " in early 2012, it had "the Property fenced in areas where these tracks were located, " which the County also believes has limited its spread. ECF #25, p. 5, ¶12; see also ECF #24-5, 42:7-8, 19-22, 43:10-14, 21-24, 46:2-18; ECF #24-12; ECF #25-8; ECF #27, Exhibit L (32:20-33:25), Exhibit M.

IV. The Viacom Outdoor Order

In September 2002, the County issued Viacom Outdoor "an Order to Cease and Desist, seeking to require Viacom [Outdoor] to reduce the height and size of one its other existing signs in Clallam County to bring it into conformity with" Ordinance 694. ECF #10, p. 8, ¶ 5. That sign was constructed by Viacom Outdoor in March 1993, on property located along Highway 101 and owned by two private individuals, who were also plaintiff's in the case. See Viacom Outdoor, Inc. v. Clallam County, Case No. 3:03-cv-05023-RBL, Order Granting Plaintiff's Motion for Partial Summary Judgment (ECF #26), p. 1. In December 2002, Viacom Outdoor appealed the County's Order to Cease and Desist to the County Hearing Examiner - which denied the appeal, finding the sign to be noncompliant with the County's Sign Code - and then appealed that denial to state superior court. ECF #10, p. 8, ¶¶ 7-8; Viacom Outdoor, Case No. 3:03-cv-05023-RBL, ECF #26, p. 2. In January 2003, the County removed the case to this Court. See ECF #10, p. 8, ¶ 9.

The only issue before the Court was whether the County "may require the removal of [Viacom Outdoor's] sign under Ordinance 694 without paying just compensation' as required by the provisions of the Scenic Vistas Act, RCW 47.42.107." Viacom Outdoor, Case No. 3:03cv-05023-RBL, ECF #26, p. 2. The Scenic Vistas Act (the "Act") provides:

(1) Just 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 of the state of Washington by such county, city, or town if:
(a) Such sign was lawfully in existence on May 10, 1971 (the effective date of the Scenic Vistas Act of 1971); or
(b) Such sign was erected subsequent to May 10, 1971 (the effective date of the Scenic Vistas Act of 1971), in compliance with existing state and local law.
(2) Such compensation shall be paid in the same manner as specified in RCW 47.42.102(2) for the following:
(a) The taking from the owner of such sign, display, or device of all right, title, leasehold, and interest in such sign, display, or device; and
(b) The taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain such ...

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