OFFICES AND OFFICERS ‑- STATE ‑- HIGHWAY COMMISSION ‑- AUTHORITY TO REGULATE THE ERECTION OR LOCATION OF DRIVE‑IN MOVIE SCREENS ALONG STATE HIGHWAYS

OFFICES AND OFFICERS ‑- STATE ‑- HIGHWAY COMMISSION ‑- AUTHORITY TO REGULATE THE ERECTION OR LOCATION OF DRIVE‑IN MOVIE SCREENS ALONG STATE HIGHWAYS.

The state highway commission does not have the statutory authority to regulate the erection or location of drive‑in theaters along state highways unless such structures constitute a nuisance under RCW 47.32.130 or 47.36.180.

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                                                                February 13, 1959

Mr. Lorenz Goetz, Secretary
Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                  Cite as:  AGO 59-60 No. 10

Dear Sir:

            On behalf of the State Highway Commission you have requested an opinion from this office on several questions which, for convenience, we combine and paraphrase as follows:

            Does the Highway Commission have the authority to prohibit the erection or in any way regulate the erection or location of drive‑in movie screens visible from vehicles being operated on state highway routes?

            We answer your question in the negative as qualified in the analysis.

                                                                     ANALYSIS

            We find nothing in the laws of this state which expressly, or by implication, confers any direct power upon the commission to enable it to establish any restrictions or limitations with regard to the erection or location of drive‑in movie theaters.

            Certain legislative prohibitions have been established, however, with regard to the creation of nuisances.  RCW 47.32.130 reads, in part, as follows:

             [[Orig. Op. Page 2]]

            "(1) Whenever there exists upon the right-of-way of any primary state highway or off the right-of-way thereof in sufficiently close proximity thereto, any structure, device, or natural or artificial thing which threatens or endangers such primary state highway or portion thereof, or which tends to endanger persons traveling thereon, or obstructs or tends to obstruct or constitutes a hazard to vehicles or persons traveling thereon, such structure, device, or natural or artificial thing is hereby declared to be a public nuisance and the director may take such action as is necessary to abate the same.  Any such structure, device or natural or artificial thing considered by the director to be immediately or eminently dangerous to travel upon a primary state highway may be forthwith removed and such removal shall in no event constitute a breach of the peace or trespass."

            RCW 47.36.180 provides, in part, as follows:

            "It shall be unlawful to erect or maintain at or near a city street, county road or state highway any structure, sign, or device:

            ". . .

            "(3) Visible from a city street, county road or state highway and displaying any lights tending to blind persons operating vehicles upon the highway, city street or county road, or any glaring light, or any light likely to be mistaken for a vehicle upon the highway or otherwise to be so mistaken as to constitute a danger; . . ."

           ". . .

            "Any structure or device erected or maintained contrary to the provisions of this section is a public nuisance, and the Washington state highway commission, the chief of the Washington state patrol, the county sheriff or the chief of police of any city or town shall notify the owner thereof that it constitutes a public nuisance and must be removed, and if the owner fails to do so, the Washington state highway commission, the chief of the Washington state patrol, the county sheriff or the chief of police of any city or town may abate the nuisance."

             [[Orig. Op. Page 3]]

            Whether or not a particular screen is a nuisance is a factual question and no general statement of legal principle will cover all situations.  The determination must be made by the commission based on all of the facts in the particular case.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HERBERT TIMBLIN
Assistant Attorney General