The City of Port Orchard lost in a recent federal court case involving a media billboard company, Engley Diversified Inc.
The company applied in April 2010 for permits to place commercial billboards within Port Orchard city limits, at commercial properties along Sedgwick Road, Mile Hill Drive and Highway 16. The city denied the permits that month.
When the city’s hearing examiner affirmed the denial of the permits that November, Engley Diversified Inc. filed an appeal against the permit denial the following month. On March 22, 2011, the Port Orchard City Council dismissed Engley Diversified Inc.’s appeal as untimely, according to United States District Court documents.
Engley’s attorney, William John Crittenden, said that after the city council dismissed the appeal, the United States District Court ruled the appeal was timely and ordered the council members to make a decision on the appeal in July 2011.
That’s when things got a little complicated. The City of Port Orchard originally denied Engley Diversified Inc.’s billboard permits based upon an interpretation of the Port Orchard Municipal Code that the billboards Engley Diversified Inc. wanted to place within the city were “off premises” signs and that all such signs were “not allowed.”
When the United States District Court ordered the Port Orchard City Council to make a decision on Engley Diversified Inc.’s appeal, the council members, in September 2011, then reversed the hearing examiner’s ruling that the signs were prohibited, but stated that the company’s application for the permit to place the signs within the city were not vested to the city code since Engley Diversified Inc. applied for a “construction permit” rather than a “building permit.”
Crittenden said that he thinks the city was trying to keep his client’s permit from vesting by calling the building permit a construction permit.
“The judge ruled that a ‘building permit’ and a ‘construction permit’ was a distinction without a difference,” he said.
Judge Benjamin H. Settle ruled on Sept. 12 that the city did not show evidence of handling Engley’s permit application differently than how it handles building permits. Engley submitted various sketches, site plans, engineered drawings from a professional engineer, and structural calculations for the proposed billboards that follow the city’s code requirements for building a structure, according to the ruling. The city also charged Engley Diversified Inc. the standard $4.50 building code fee for the permits, but city attorneys didn’t explain to the federal court why the city was charging the company this fee when the permits were being labeled strictly as sign or construction permits, according to the federal court document.
Crittenden said that the litigation his client has engaged in with the city over placing his billboards within city limits tallies up to more than $150,000 in attorney’s fees.
Port Orchard Mayor Tim Matthes, who was not in office at the time that the conflict between the city and Engley Diversified Inc. began, said that he errs on the side of allowing local businesses to place billboards in the city.
“To the degree that we can, we want to help businesses advertise,” Matthes said. “It’s hard for businesses to sell goods and services unless the public knows that they are there.”
Postulating how businesses advertise without signs, Matthes said the city needed realistic sign ordinances.
“We don’t want to ruin the look of the city, but businesses need to advertise,” Matthes said.
Matthes said that for the city to initiate an appeal process to the federal court decision, the Port Orchard City Council must go into executive session at a meeting in the near future and receive advice on their options from City Attorney Gregory Jacoby.
The city is looking at the recent ruling and studying what to do next, Jacoby said.
“It’s still up in the air,” Matthes said. “We’ll decide in a reasonable amount of time.”
