South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
James Raih vs. SCDOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioner:
James Raih

Respondent:
South Carolina Department of Transportation
 
DOCKET NUMBER:
05-ALJ-19-0124-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

In the above-captioned matter, Petitioner James Raih requested a contested case hearing to challenge the decision of Respondent South Carolina Department of Transportation (Department) to deny his application for an outdoor advertising permit to construct a sign adjacent to Interstate 526 in Charleston County, South Carolina. On June 17, 2005, the Department filed a motion for summary judgment, in which it argues that there is no genuine issue of material fact that Petitioner failed to satisfy certain application requirements and, therefore, that the Department’s decision to deny Petitioner’s application should be sustained as a matter of law. Petitioner did not submit a response to this motion. For the reasons set forth below, I find that the Department’s motion for summary judgment should be granted.

BACKGROUND

In November 2004, Petitioner applied to the Department for an outdoor advertising permit to erect a billboard near Interstate 526 in Charleston County, South Carolina. With his application, Petitioner submitted a letter from the Charleston County Planning Department indicating the proposed location for the sign was zoned as an industrial area. Resp’t Mot. for Summ. J., Ex. #1. The one-sentence letter did not, however, make any reference as to whether the sign proposed by Petitioner complied with Charleston County’s local outdoor advertising regulations. Id. On February 10, 2005, the Department denied Petitioner’s application on several grounds, including his failure to submit documentation from Charleston County demonstrating that the proposed sign complies with local outdoor advertising regulations and permitting standards as required by 25A S.C. Code Ann. Regs. 63-349(F) (Supp. 2004).[1] Resp’t Mot. for Summ. J., Ex. #2. On March 9, 2005, Petitioner brought the instant contested case proceeding to challenge the Department’s denial of his application. Subsequently, on June 14, 2005, the Department received a letter from the Charleston County Planning Department, stating that, while the proposed location of Petitioner’s sign is within an area zoned for industrial uses, the proposed sign is also located within the Mount Pleasant Overlay District, in which off-premises signs like Petitioner’s are prohibited. Resp’t Mot. for Summ. J., Ex. #3. Accordingly, the County concluded that “no permit would be issued for an off-premises sign at this location.” Id. Based upon Petitioner’s failure to submit documentation of his compliance with local regulations with his application and upon the June letter from Charleston County indicating that the County could not grant a permit for Petitioner’s sign, the Department moved for summary judgment of this case because there is no genuine issue of material fact that Petitioner did not—and cannot—satisfy the requirements of Regulation 63-349(F) and, therefore, its decision to deny Petitioner’s application on that basis should be sustained as a matter of law.

DISCUSSION

Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gadson v. Hembree, 364 S.C. 316, ___, 613 S.E.2d 533, 535 (2005). Having carefully considered the documents submitted by the Department in support of its motion and the applicable law, I find that the Department’s motion for summary judgment should be granted because there is no genuine issue of material fact regarding Petitioner’s failure to satisfy Regulation 63-349(F) and the Department is entitled to judgment in its favor as a matter of law.

Regulation 63-349 sets forth the procedures to be used by the Department in considering applications for outdoor advertising permits. 25A S.C. Code Ann. Regs. 63-349 (Supp. 2004). Included among these procedures is the requirement that the permit applicant provide the Department with documentation indicating that the proposed sign complies with local government outdoor advertising regulations and permitting standards:

Where local government regulation exists, no permit shall be issued unless the applicant submits along with the application either (1) a copy of the permit issued for the site by the local government or (2) a statement from the appropriate local government official indicating that the sign complies with all local government requirements and that the local government will issue a permit to that applicant upon issuance of the state permit by the Department.

 

25A S.C. Code Ann. Regs. 63-349(F) (Supp. 2004). Without question, Petitioner’s application failed to satisfy the requirements of this regulation.

There is no dispute that the proposed location of Petitioner’s sign is governed by local outdoor advertising regulations from Charleston County. See Resp’t Mot. for Summ. J., Ex. #3; Pet’r Prehearing Statement at 2. However, Petitioner’s application did not contain a copy of a permit from Charleston County approving his proposed sign, nor did it contain a statement from the County that the sign “complies with all local government requirements” and would be issued a permit upon the issuance of the state permit. Rather, the application only contained a letter indicating that the proposed location of the sign is zoned for industrial uses—a statement which, standing alone, does not constitute local approval of the proposed sign. See Resp’t Mot. for Summ. J., Ex. #1. Further, a subsequent letter from the Charleston County Planning Department noted that, under local zoning regulations, the sign proposed by Petitioner is prohibited at the location in question and, therefore, cannot receive County approval. See Resp’t Mot. for Summ. J., Ex. #3. Therefore, based upon these uncontroverted documents,[2] there is no genuine issue of material fact that Petitioner did not—and could not—satisfy the requirements of Regulation 63-349(F).

Because Petitioner’s application failed to satisfy the provisions of Regulation 63-349(F), the Department’s decision to deny that application must be sustained as a matter of law. Regulation 63-349(F) plainly states that, where local sign regulations are in effect, “no permit shall be issued” by the Department unless the applicant presents one of two types of documentation to establish that the proposed sign complies with those local regulations. S.C. Code Ann. Regs. 63-349(F). In the case at hand, Petitioner did not submit the required documentation, and thus, the Department was prohibited, by regulation, from issuing an outdoor advertising permit to Petitioner for his proposed sign. Accordingly, the Department’s decision to deny Petitioner’s application must be sustained.

ORDER

For the reasons discussed above,

IT IS HEREBY ORDERED that the Department’s Motion for Summary Judgment is GRANTED and its denial of Petitioner’s application for an outdoor advertising permit, Application Number A0009403, is SUSTAINED. Accordingly, the hearing of this matter scheduled for September 13, 2005, is CANCELED.

AND IT IS SO ORDERED.

 

______________________________

JOHN D. GEATHERS

Administrative Law Judge

 

July 28, 2005

Columbia, South Carolina

 



[1] The Department also denied Petitioner’s application because the proposed location for the sign is impermissibly situated within the interchange between Longpoint Road and Interstate 526, see S.C. Code Ann. § 57-25-140(E) (Supp. 2004) (prohibiting the location of a sign with 500 feet of an interstate interchange), and the proposed sign is not located within a requisite commercial or industrial area because the qualifying business, a nearby Waffle House, is not visible from Interstate 526, see S.C. Code Ann. §§ 57-25-140(A)(8), 57-25-120(5)(f) (Supp. 2004) (allowing signs in commercial and industrial areas provided the qualifying commercial or industrial activities are visible from the “main-traveled way”).

[2] As noted above, Petitioner did not file a response to the Department’s motion for summary judgment, and nothing in his prior filings in this case appears to contradict the documents submitted by the Department in support of its motion. Moreover, to the extent any statements in Petitioner’s Prehearing Statement imply a question of fact regarding whether his sign complies with local regulations, these bare allegations are insufficient to defeat the Department’s well-supported motion for summary judgment. See George v. Empire Fire & Marine Ins. Co., 344 S.C. 582, 593, 545 S.E.2d 500, 506 (2001) (holding that, once a party moving for summary judgment has met its burden, “[t]he party opposing summary judgment cannot simply rest on mere allegations or denials contained in the pleadings.”).


Brown Bldg.

 

 

 

 

 

Copyright © 2022 South Carolina Administrative Law Court