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AGLO 1974 No. 47 - April 16, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

HIGHWAYS ‑- BILLBOARDS ‑- SIGNS ‑- MAINTENANCE OF SIGNS IN COMMERCAL AND INDUSTRIAL AREAS

If a person has lawfully erected and maintained a sign visible from the main traveled way of the primary highway system within commercial and industrial areas on June 1, 1971, such sign is permitted to remain and be maintained after May 10, 1974 because of RCW 47.42.063, even though it does not comply with such provisions as RCW 47.42.040, RCW 47.42.045 and RCW 47.42.060.

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                                                                   April 16, 1974
 
Honorable Jonathan Whetzel
State Senator, 43rd District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 47
 
Dear Sir:
 
            This is written in response to your recent request for our opinion on the following question:
 
            "If a person has lawfully erected and maintained a sign visible from the main traveled way of the primary system within commercial and industrial areas on June 1, 1971, but such sign does not comply with provisions of the law such as RCW 47.42.040 as to the permissible type of signs, RCW 47.42.045 as to the permissible number of signs of RCW 47.42.060 as to other requirements for signs, is such sign permitted to remain and be maintained after May 10, 1974?"
 
            You have indicated that you believe the foregoing question to be answerable in the affirmative, and we concur.
 
                                                                     ANALYSIS
 
            Chapter 47.42 RCW codifies the highway advertising control act of 1961, chapter 96, Laws of 1961, as amended by the scenic vistas act of 1971, chapter 62, Laws of 1971, 1st Ex. Sess.  The basic thrust of this act is to prohibit all signs along certain state highways that are not specifically permitted by the act to be erected or maintained.  See, RCW 47.42.030 which provides:
 
            "Except as permitted under this chapter, no person shall erect or maintain a sign which is visible from the main traveled way of the interstate system, the primary system, or the scenic system.  In case a highway or a section of highway is both a part of the primary system and the scenic system, only those signs permitted along the scenic system shall be erected or maintained."
 
             [[Orig. Op. Page 2]]
            Certain permissible signs are delineated in RCW 47.42.040 as follows:
 
            "It is declared to be the policy of the state that no signs which are visible from the main traveled way of the interstate system, primary system, or scenic system shall be erected or maintained except the following types:
 
            "(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 advertising activities conducted on the property on which they 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 as codified and enacted by Public Law 85-767 and amended only by section 106, Public Law 86-342, and the national standards promulgated thereunder by the secretary of commerce or the secretary of transportation, advertising activities being conducted at a location within twelve miles of the point at which such signs are located:  Provided, That no sign lawfully erected pursuant to this subsection adjacent to the interstate system and outside commercial and industrial areas shall be maintained by any person after three years from May 10, 1971;
 
            "(5) Signs, not inconsistent with the policy of this chapter and the national policy set forth in section 131 of title 23, United States Code as codified and enacted by Public Law 85-767 and amended only by section 106, Public Law 86-342, and the regulations promulgated thereunder by the secretary of commerce or the secretary of transportation, designed to give information in the specific  [[Orig. Op. Page 3]] interest of the traveling public: Provided, That no sign lawfully erected pursuant to this subsection adjacent to the interstate system and outside commercial and industrial areas shall be maintained by any person after three years from May 10, 1971.
 
            "Only signs of type 1, 2 and 3 shall be erected or maintained within view of the scenic system."
 
            As you will note, the provisos to both subsections (4) and (5) of this statute granted three‑year moratoriums due to expire on May 10, 1974, to the types of signs described in those subsections.  Likewise, a similar three‑year moratorium was provided for in § 11, chapter 62, Laws of 1971, 1st Ex. Sess., now codified as RCW 47.42.100(4), which reads as follows:
 
            "(4) No sign visible from the main traveled way of the interstate system, the primary system, or the scenic system which was there lawfully maintained immediately prior to May 10, 1971, but which does not comply with the provisions of chapter 47.42 RCW as amended by this 1971 amendatory act, shall be maintained by any person (a) after three years from May 10, 1971, or (b) with respect to any highway hereafter designated by the legislature as a part of the scenic system, after three years from the effective date of the designation."
 
            On the other hand, no such termination date is contained in another moratorium granted by § 8 of the foregoing 1971 act, now codified as RCW 47.42.063, which reads as follows:
 
            "(1) Signs lawfully erected and maintained which are visible from the main traveled way of the primary system within commercial and industrial areas on June 1, 1971 shall be permitted to remain and be maintained.
 
            "(2) Signs visible from the main traveled way of the primary system within commercial and industrial areas whose size, lighting, and spacing are consistent with customary use as set forth in RCW 47.42.062 may be erected and maintained.  Signs lawfully erected and maintained on June 1, 1971 shall be included in the determination of spacing requirements for additional signs."
 
             [[Orig. Op. Page 4]]
            Our affirmative answer to your question is based upon subsection (1) of this statute.  Under its provisions, a sign which is visible from the main traveled way of a primary system1/ within a commercial or industrial area2/ may remain and be maintained if it was already in existence at that location on June 1, 1971.
 
            In so advising you we should further comment breifly upon Governor Evans' partial veto of House Bill No. 916 earlier this year.  It is true, as critics of that veto have asserted, that if this bill had been signed into law as passed by the legislature a further exemption from the restraints of the scenic vistas act would have been granted to some signs that will now become illegal on May 10, 1974, unless the veto is overridden or some other change in the applicable statutes is made by the legislature in the meantime.3/   But because of the absnece of any durational limitation upon the moratorium granted to signs in commercial and industrial areas which were already in existence on June 1, 1971, it follows that it will not be necessary for the legislature to take any action with respect to the governor's veto of House Bill No. 916 in order to permit those signs to continue to remain and be maintained after that approaching date.
 
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***
 
1/A primary system is defined by RCW 47.42.020(6) to mean
 
            ". . . any state highway which is or does become part of the federal-aid primary system as described in section 103(b) of title 23, United States Code;"
 
2/See, RCW 47.42.020(9).
 
3/I.e., signs within incorporated cities and towns but outside of commercial and industrial areas.  See, §§ 1-3 of House Bill No. 916, all of which were vetoed by the governor for the reasons set forth in his message of February 15, 1974, copy enclosed.

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