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:
Abbott Sign Company, Inc vs. DOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioner:
Abbott Sign Company, Inc

Respondent:
South Carolina Department of Transportation

In Re: National Guard Armory
 
DOCKET NUMBER:
02-ALJ-19-0462-CC

APPEARANCES:
Michael N. Duncan, Esquire
For Petitioner

Barbara M. Wessinger, Esquire
For Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before this tribunal upon the request of Petitioner Abbott Sign Company, Inc. (Abbott) for a contested case hearing to challenge the decision of Respondent South Carolina Department of Transportation (DOT or Department) to deny Abbott’s application for an outdoor advertising permit. Specifically, Abbott seeks a permit to construct a sign within the vicinity of a National Guard Armory along Interstate 85 in Cherokee County, South Carolina. The Department denied the permit application on the ground that the qualifying commercial or industrial activities identified by Petitioner for the sign are not readily recognizable as such from the main-traveled way and thus are not “visible” from the main-traveled way as required by S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2002) and defined by 25A S.C. Code Ann. § 63-342(HH) (Supp. 2002).

After timely notice to the parties, a hearing of this matter was held on April 16, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence and arguments offered by the parties and upon the applicable law, I find that Petitioner’s application for an outdoor advertising permit must be denied.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1.On April 15, 2002, Petitioner Abbott Sign Company, Inc. submitted an application for an outdoor advertising permit to the Department. Abbott seeks to construct a lighted, stacked double-faced sign on the south side of Interstate 85 in Cherokee County, South Carolina, near milepost 94, between S.C. Highway 150 and S.C. Highway 18. It is undisputed that the proposed location for the sign is within six hundred feet of the South Carolina National Guard’s Gaffney Armory. Further, it is undisputed that the proposed location for the sign, and, in fact, Cherokee County as a whole, is unzoned.

2.On its application, Abbott listed the National Guard Armory and Welch Associates, Inc., which leases space in the armory, as the qualifying commercial or industrial activities for the proposed sign. Welch Associates, Inc. is a business consulting firm that provides both on-site and off-site leadership and confidence training for employees of its clients. Welch Associates conducts this off-site training at its offices in the Gaffney National Guard Armory and on the surrounding armory grounds. Under the terms of its lease with the National Guard, Welch Associates has the exclusive use of two rooms in the armory, which it uses as an office and a storage room, and has access to a classroom, the drill floor, and the armory grounds for its training activities. The South Carolina National Guard conducts regular military training exercises at the armory and houses a National Guard recruiting office in the armory along with other Guard offices. In addition to these National Guard activities, the Guard leases full-time offices in the armory to Welch Associates, Inc. and the Fellowship of Christian Athletes and periodically rents space in the armory’s drill room for dances, banquets, wedding receptions, reunions, and other special events. In 2002, the Guard leased the armory approximately twenty-five times for such events.

The armory building is open to the public throughout the week during normal business hours. During those hours, visitors may access the business and organizational offices in the armory through the front entrance of the building. However, because the armory is a government military installation, when the country is on heightened alert, as determined by the United States Department of Homeland Security, the front entrance is locked and visitors must ring a door bell to gain access to the armory.

3.The armory building consists, in relevant part, of a central, two-story drill room situated behind an entrance lobby, which is flanked by two, one-story office wings. The building is contemporary in design and has a brick facade with a blue metal roof. The front of the building is dominated by a brick entrance portico and the windowed exteriors of the two office wings. As such, the armory resembles a number of familiar structures. Consequently, a person of normal visual acuity viewing the building from Interstate 85 would perceive the armory as some sort of public building, but would not be able to readily determine whether the building was a commercial office complex, a school, a church, a nursing home, or a governmental administrative building, among other structures. And, as noted above, the armory is, in fact, used for a variety of functions, both commercial and non-commercial, including the private business activities of Welch Associates, the non-profit organizational activities of the Fellowship of Christian Athletes, and the military training activities of the South Carolina National Guard.

4.The Department denied Petitioner’s application for an outdoor advertising permit for a sign near the armory on two grounds: (1) the National Guard activities at the armory do not constitute commercial, business, or industrial activities so as to qualify the area surrounding the armory as an unzoned commercial or industrial area; and (2) the other activities contained within the armory, including the business activities of Welch Associates, Inc., are not qualifying commercial or industrial activities for the area, because those activities are not visible from the main-traveled way, as the armory building is not readily recognizable as commercial or industrial activity from I-85. (Pet’r Ex. #8.) Petitioner Abbott contends that the business activities at the armory, including the operations of Welch Associates and the Guard’s leasing of space within the armory, do qualify as commercial activities and that, given the unique design of the armory, the building is readily recognizable from the main-traveled way as a commercial building.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2002) and 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2002).

The South Carolina Highway Advertising Control Act (Act), S.C. Code Ann. §§ 57-25-110 et seq. (Supp. 2002), “provide[s] a statutory basis for [the] regulation of outdoor advertising consistent with the public policy relating to areas adjacent to interstate and federal-aid primary systems” in South Carolina. S.C. Code Ann. § 57-25-130 (Supp. 2002). Accordingly, the Act prohibits the construction or maintenance of an outdoor advertising sign or billboard along an interstate highway unless it satisfies one of nine enumerated exceptions. See S.C. Code Ann. § 57-25-140(A) (Supp. 2002). The direct regulation of the erection and maintenance of signs under these exceptions is entrusted to the Department, which is empowered to promulgate regulations to further define the exceptions, and which is responsible for issuing permits for the construction of signs under the exceptions. See S.C. Code Ann. § 57-25-150(A), (B) (Supp. 2002).

In the instant matter, Petitioner Abbott seeks a permit from the Department for the construction of a sign under one of the exceptions found in Section 57-25-140(A). Therefore, Abbott, as the applicant and the party affirmatively asserting its eligibility for an outdoor advertising permit, bears the burden of proof in this matter. 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2002) (“The applicant shall bear the burden of showing that the Department should issue the permit.”); see also Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 73A C.J.S. Public Administrative Law and Procedure § 128, at 35 (1983) (“In administrative proceedings, the general rule is that an applicant for relief, benefits, or a privilege has the burden of proof, and the burden of proof rests upon one who files a claim with an administrative agency to establish that required conditions of eligibility have been met.”). Consequently, Abbott must establish, by a preponderance of the evidence, that the sign it wishes to construct meets the applicable standards and that it should be issued an outdoor advertising permit. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

Here, Abbott contends its proposed billboard should be permitted for construction under the exception found in Section 57-25-140(A)(8) for “signs located in unzoned commercial or industrial areas.” The Act defines this “unzoned commercial or industrial area” as “the land occupied by the regularly used building, parking lot, and storage and processing area of a commercial, business, or industrial activity and land within six hundred feet of it on both sides of the highway.” S.C. Code Ann. § 57-25-120(4) (Supp. 2002); see also 25A S.C. Code Ann. Regs. 63-342(FF)(1) (Supp. 2002). The Act goes on to further define the qualifying commercial and industrial activities, and to exclude activities not visible from the main-traveled way, among certain other activities, from that definition:

“Commercial or industrial activities” means those established activities generally recognized as commercial or industrial by zoning authorities within the State, except that none of the following are considered commercial or industrial activities: . . . (f) activities not visible from the main-traveled way . . . .”

S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2002). Stated another way, an area cannot qualify as an unzoned commercial or industrial area solely because some business activities are occurring on the land; rather, those business activities not only must be present, but must also be visible from the highway in order to render an unzoned commercial area eligible for a sign.

Under the Department’s regulations, to be considered “visible” from the main-traveled way, a sign or an activity must be “capable of being seen (whether or not legible) and readily recognized as a sign or commercial or industrial activity by a person of normal visual acuity.” 25A S.C. Code Ann. Regs. 63-342(HH) (Supp. 2002) (emphasis added); see also U.S. Outdoor Advertising, Inc. v. S.C. Dep’t of Transp., 324 S.C. 1, 481 S.E.2d 112 (1997) (upholding this regulatory definition of “visibility” as consistent with the underlying policies of the Highway Advertising Control Act). Further, “[t]he presence of a sign, whether attached to the building or free-standing shall not be considered in determining whether or not a commercial or industrial activity is visible.” Id. These visibility requirements ensure that billboards and other signs will be located in areas that are already visibly commercial and industrial in nature, and thereby strikes a balance between the economic interests of local businesses and the aesthetic interests of the motoring public. See S.C. Code Ann. § 57-25-130 (Supp. 2002) (noting that outdoor advertising is “a business which must be allowed to exist and operate where other business and commercial activities are conducted”).

The crux of the instant matter is whether the proposed qualifying commercial or industrial activities at the National Guard Armory are visible, as defined by DOT regulations, from Interstate 85. For, regardless of the character of the activities occurring at the armory, if those activities are not both (1) capable of being seen and (2) readily recognizable as commercial or industrial activities from I-85 by a person of normal visual acuity, then those activities cannot qualify the armory and the land surrounding it as an unzoned commercial or industrial area.

Here, there is no question that the Gaffney National Guard Armory is capable of being seen by travelers on Interstate 85. However, the armory does not meet the second prong of the visibility standard set forth in the regulations. While commercial activity is undeniably ongoing in the armory, most clearly in the form of Welch Associates’ business activities, these activities cannot be readily recognized as such from the interstate. In this case, the armory building can reasonably be perceived by a prudent person with normal eyesight traveling on I-85 as a public building resembling a range of structures including office complexes, schools, churches, nursing homes, and governmental administrative buildings. Footnote Moreover, as noted above, the regulation precludes consideration of the armory’s sign, which indicates that the building is an armory and that the building houses Welch Associates, when making this visibility determination. Accordingly, this inherent ambiguity in the appearance of the armory building and in the character of the activities occurring in the building prevents the armory from being “readily recognized” as a commercial or industrial activity. Footnote Put simply, a reasonable person traveling on Interstate 85 would not, upon viewing the armory, easily or immediately know that commercial activity is being conducted in the armory building. Rather, this observer, without reference to the armory’s sign, would be left guessing as to whether the armory building was a school, church, nursing home, long-term care facility, governmental administrative building, or commercial office building. And, this sort of guesswork is not the ready recognition of commercial or industrial activities required for visibility under the regulations.

Given the ambiguous appearance of the Gaffney National Guard Armory, the armory building and the activities occurring within it do not satisfy the visibility requirements of Regulation 63-342(HH), and therefore cannot be considered as qualifying commercial or industrial activities under Section 57-25-120(5). Further, beyond the particular requirements of the Act and the Department’s regulations, this finding comports with the Act’s general policy of placing outdoor advertising signs in areas–unlike that surrounding the armory–that are already clearly commercial or industrial in character. As the qualifying commercial or industrial activities identified by Petitioner for its proposed sign are not visible from the main-traveled way, Petitioner’s application for an outdoor advertising permit based upon those activities must be denied.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner’s application for an outdoor advertising permit to construct a sign near the Gaffney National Guard Armory along Interstate 85 in Cherokee County, South Carolina is DENIED.

AND IT IS SO ORDERED.




______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667


June 19, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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