SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division (ALJD) pursuant to 25A S.C. Code Ann. Regs. 63-349M (Supp. 2000) and S.C. Code Ann. § 1-23-600(B) (Supp. 2000). Petitioner Daisy Outdoor Advertising Company, Inc. (Daisy) appeals the Department of Transportation's (Department or DOT) disapproval of its application to construct a billboard at mile marker 84.578 along the southbound lane of interstate highway I-85 in Cherokee County. The Department rejected Daisy's application on the ground that the proposed sign would not be at least 500 feet away from another sign as required by law; rather, Daisy's sign would be only 37 feet away from a sign location previously permitted to Abbott Sign Company (Abbott). Daisy contends, however, that the Department improperly granted Abbott's permit, and that the Department should, therefore, revoke Abbott's permit and grant Daisy's permit application. Having reviewed the evidence presented, the stipulated facts, and the applicable law, I find that the Department properly granted Abbott's permit and that Daisy's application to build a sign within 37 feet of Abbott's sign must be denied.

FINDINGS OF FACT

Having carefully considered all testimony and exhibits presented and stipulations of fact made by the parties at the hearing, 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 December 8, 1997, Abbott applied to the DOT for an outdoor advertising permit to build a sign at a site less than 600 feet away from buildings housing the operations of Nelson Diecutting & Packaging, Inc. (Nelson Diecutting), near mile marker 84.6 along I-85 in Cherokee County, South Carolina. The Department granted this permit to Abbott on March 12, 1998.

2. Nelson Diecutting's building is a permanent structure devoted to an industrial activity and is regularly used for that activity.

3. The site permitted for Abbott's sign is less than 600 feet from the rear corner of the building housing Nelson Diecutting, as measured between lines drawn perpendicular to I-85 and running through the rear corner of Nelson Diecutting and the center of the permitted site.

4. The rear corner of Nelson Diecutting is less than 660 feet from I-85, and is visible from I-85 at several locations. However, at the time that Abbott's permit was issued, the rear corner of the building was not visible from I-85 when viewed along a perpendicular line from the interstate.

5. The front corner of Nelson Diecutting has, from the time of Abbott's application, been visible from I-85 when viewed along a perpendicular line from the highway. However, the site permitted for Abbott's sign is more than 600 feet away from the front corner of Nelson Diecutting, as measured between lines drawn perpendicular to I-85 and running through the front corner of Nelson Diecutting and the center of the permitted site.

6. On December 21, 1997, Daisy applied to the DOT for an outdoor advertising permit to build a sign at a site less than 600 feet from Nelson Diecutting, near mile marker 84.5 along I-85 in Cherokee County, South Carolina.

7. The proposed site for Daisy's sign is 37 feet south of the site previously applied for by, and subsequently permitted to, Abbott for its sign. Daisy's proposed site is within 600 feet of Nelson Diecutting, as measured between lines drawn perpendicular to I-85 and running through the front corner of Nelson Diecutting and the center of the proposed site.

8. On March 12, 1998, the Department denied Daisy's application on the ground that the proposed location was within 500 feet of another permitted sign location. Daisy now appeals the denial of its application to the ALJD.

CONCLUSIONS OF LAW

Based on the above Findings of Fact, I conclude the following as a matter of law:

Under the South Carolina Highway Advertising Control Act (Act), S.C. Code Ann. §§ 57-25-110 et seq. (1991 & Supp. 2000), an outdoor advertising sign or billboard may not be erected or maintained along an interstate highway unless it satisfies an exception under the Act. See S.C. Code Ann. § 57-25-140(A) (Supp. 2000). One such exception permits a sign to be built along an interstate if the sign is located in an "unzoned commercial or industrial area." S.C. Code Ann. § 57-25-140(A)(8). The term "unzoned commercial or industrial area" is defined in S.C. Code Ann. § 57-25-120(4) (Supp. 2000), and that definition is expanded upon in Regulation 63-342(FF), which provides:

FF. Unzoned commercial or industrial areas, means:

(1) those areas in a political subdivision which are not zoned on which there is located one or more permanent structures devoted to a commercial or industrial activity, ⁽¹⁾ a portion of which activity is located within the control area, ⁽²⁾ and that area within 600 feet from the furthermost edge of the area within the control area regularly used for such activity and a corresponding zone directly across a primary highway which is not a freeway primary Federal-aid highway and which has not been declared to be a scenic highway.

25A S.C. Code Ann. Regs. 63-342(FF)(1) (Supp. 2000) (footnotes added). Here, the unzoned commercial or industrial area surrounding Nelson Diecutting would be that area within 600 feet of those portions of the Nelson Diecutting building that are within 660 feet of I-85 and that are visibile from the interstate. ⁽³⁾

In the instant case, both Daisy and Abbott sought a permit to build a billboard within the unzoned commercial or industrial area surrounding Nelson Diecutting, and the sole issue presented is whether the site the Department permitted to Abbott for its sign lies within that exempt area. For, if Abbott's site is within the qualifying area around Nelson Diecutting, then the Department acted properly when it issued a permit to Abbott for that site and denied Daisy's application to build on a site 37 feet away. First, the Department properly considered Abbott's permit application before Daisy's, as Abbott filed its application for the site in question before Daisy submitted its application for a conflicting site. See S.C. Code Ann. Regs. 63-349(J) (Supp. 2000) ("Permits will be considered on a first-come, first-served basis. If applications are submitted for the same or conflicting sites, each will be dealt with in turn."). Second, the Department properly granted a permit to Abbott for the site in question, if the site indeed falls within the "unzoned commercial or industrial area" exception of Section 57-25-140(A)(8). See S.C. Code Ann. § 57-25-150(B) (Supp. 2000) (requiring the Department to issue permits for the construction of signs coming within the exception contained in Section 57-25-140(A)(8)). Third, if Abbott's permit is valid, then the Department properly rejected Daisy's application to construct a sign on a site 37 feet away from the site permitted to Abbott. See S.C. Code Ann. § 57-25-140(E) (Supp. 2000) ("No sign structure permitted under [Section 57-25-140(A)(8)] . . . may be erected within five hundred feet of another sign structure on the same side of the highway."); 25A S.C. Code Ann. Regs. 63-346(B)(1)(a) (Supp. 2000) (same).

But, if Abbott's site is not within the qualifying area surrounding Nelson Diecutting, then the Department should not have granted Abbott the permit for an illegal site and should have instead granted Daisy's application to build at a proper location. If Abbott's site is not within the unzoned commercial or industrial area around Nelson Diecutting, then the Department acted improperly when it approved Abbott's application, as Abbott's site does not fall under any of the other exceptions to the general prohibition on roadside signs found in Section 57-25-140(A). And, if Abbott's permit is invalid, then the Department should have granted Daisy's application, as Daisy's site does fall within the unzoned commercial or industrial area surrounding Nelson Diecutting and would not be within 500 feet of another properly permitted sign location. Thus, the whole of Daisy's case turns upon its contention that Abbott's permitted site is not within the unzoned commercial or industrial area around Nelson Diecutting.

Daisy bases this contention entirely upon its interpretation of DOT regulations as requiring that visibility determinations be made along perpendicular lines from the highway in question. Specifically, Daisy emphasizes the language of Regulation 63-346, which provides in relevant part:

A. Measurements:

. . .

2. Involving unzoned commercial or industrial areas shall be taken within the control area from the outermost edge of the regularly used buildings and the areas regularly used and required for parking, storage, and processing, or from the property lines of the tract or tracts owned or leased by the activity on which the activity is being conducted, whichever is the narrower. Only those portions of the activity which are within the control area and which are visible from the main traveled way shall be considered.

25A S.C. Code Ann. Regs. 63-346(A)(2) (Supp. 2000) (emphasis added). Daisy argues that under this provision, in order for a portion of a commercial activity to qualify as a starting point from which one measures the 600-foot width of the unzoned commercial area in which signs may be built, that portion of the activity must be visible from the main-traveled way along a line perpendicular to the highway. To Daisy, a perpendicularity requirement like that found in the regulation governing measurements between signs ⁽⁴⁾ and the regulation describing the control area ⁽⁵⁾ should be read into the visibility requirement of Regulation 63-346(A)(2). In the case at hand, Daisy contends that because the rear corner of Nelson Diecutting was not visible from I-85 along a line perpendicular to the interstate at the time of Abbott's application, that rear corner cannot be considered for the purpose of measuring the exempt area surrounding Nelson Diecutting. Thus, under Daisy's theory, the closest portion of Nelson Diecutting that qualifies as a starting point for this measurement-i.e., that is within the control area and is visible along a perpendicular line from the roadway-is the front corner of the building, which lies over 600 feet from the site permitted for Abbott's sign.

However, Daisy's argument must fail. Neither principles of statutory construction nor considerations of public policy support Daisy's reading of the Department's regulations. First, the plain language of the outdoor advertising statutes and regulations neither explicitly states nor implicitly suggests that visibility determinations must be made along sight lines perpendicular to the relevant roadway. As South Carolina courts have consistently noted, "[w]hen the terms of a statute are clear and unambiguous, the Court must apply them according to their literal meaning. Furthermore, 'in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation.'" Brown v. State, 343 S.C. 342, 348, 540 S.E.2d 846, 850 (2001) (citations omitted); see also Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996); First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992). These rules of statutory construction apply equally to the interpretation of regulations. See Edge v. State Farm Ins. Co., 345 S.C. 136, 139, 546 S.E.2d 647, 648 (2001) ("The words of a regulation must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the regulation's operation."). Regulation 63-346(A)(2) simply requires that the portion of the commercial activity be "within the control area" and "visible from the main traveled way" in order to qualify as the starting point for measuring the unzoned commercial or industrial area. And, while the definition of "control area" found in Regulation 63-342(D) requires that the boundaries of the control area be measured on lines perpendicular to the highway, no language in the visibility requirement of Regulation 63-346(A)(2) indicates that visibility must be determined on such a perpendicular line.

Further, no other visibility provisions found in the outdoor advertising statutes and regulations require that visibility be determined only along lines perpendicular from the roadway. See, e.g., S.C. Code Ann. § 57-25-120(5)(f) ("not visible from the main-traveled way"); 25A S.C. Code Ann. Regs. 63-342(D) ("visible from the main-traveled way"); 25A S.C. Code Ann. Regs. 63-343(A)(1) (Supp. 2000) ("The sign is visible"). Nor does the regulatory definition of "visible" contain any hint of a perpendicularity requirement. See 25A S.C. Code Ann. Regs. 63-342(HH) (Supp. 2000) ("Visible, means 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."). Clearly, the outdoor advertising statutes and regulations addressing visibility are concerned with visibility from the main-traveled way in general, and not at one specific point or from one particular angle. Thus, while certain regulatory provisions relevant to placing signs along the interstate involve measurements along perpendicular lines, see, e.g., 25A S.C. Code Ann. Regs. 63-342(D) (measurement of control area) and 25A S.C. Code Ann. Regs. 63-346(A)(1) (measurement of distance between signs), the plain language of Regulation 63-346(A)(2) does not require that the visibility of the starting point for the measurement of the unzoned commercial or industrial area be determined on a line perpendicular from the highway.

Second, not only does the regulation itself not suggest the interpretation put forth by Daisy, but also the policies underlying the outdoor advertising statutes and regulations do not imply a perpendicularity requirement for visibility determinations. The visibility requirements of the Highway Advertising Control Act must be understood in the context of the balance the Act strikes between economic and aesthetic interests. The visibility provisions found in Regulation 63-346(A)(2) and other DOT regulations are not mere empty technicalities. Rather, it is clear that the purpose of these visibility requirements is to ensure that billboards are located in areas that are already commercial in nature, thereby balancing the advertising interests of businesses against the aesthetic interests of the motoring public. See S.C. Code Ann. § 57-25-130 (Supp. 2000) (noting, in the declaration of purpose for the Act, that outdoor advertising is "a business which must be allowed to exist and operate where other business and commercial activities are conducted") (emphasis added). Thus, while some DOT regulations are focused solely on measurements and how to make them, the visibility requirements for outdoor advertising are separate and distinct from those purely mathematical directions for surveyors and are instead directed at determining the character of the property in question. Accordingly, this tribunal finds no reason to impose the perpendicularity requirements associated with making measurements between signs along the roadway upon the visibility requirements aimed at determining whether the area surrounding a billboard location is commercial in nature.

Daisy cannot prevail on its interpretation of Regulation 63-346(A)(2). Nothing in the language of or purpose behind the visibility requirement of that regulation suggests that the visibility of the qualifying activity must be determined along a line perpendicular to the highway. Thus, despite the fact that the rear corner of Nelson Diecutting was not visible along a perpendicular line from I-85 at the time of Abbott's permit application, that corner is a qualifying point from which to measure the width of the "unzoned commercial or industrial area" surrounding the business. It is within the "control area" extending from I-85 and it is "visible from the main traveled way" at several points. See S.C. Code Ann. Regs. 63-346(A)(2). And, as Abbott's permitted sign location is less than 600 feet from that rear corner of Nelson Diecutting, it is within the "unzoned commercial or industrial area" surrounding Nelson Diecutting. Accordingly, the Department acted properly when it approved Abbott's permit application for the site and rejected Daisy's subsequently filed application for a conflicting site.

ORDER

IT IS THEREFORE ORDERED that the Department's denial of Petitioner's outdoor advertising permit application is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

October 25, 2001

Columbia, South Carolina

1. "Commercial or industrial activities" means "those established activities generally recognized as commercial or industrial by zoning authorities within the State." S.C. Code Ann. § 57-25-120(5) (Supp. 2000). However, there are a number of exceptions to this general definition: e.g., activities not visible from the main-traveled way and activities more than 660 feet from the nearest edge of the right-of-way of an interstate are not considered qualifying commercial or industrial activities. § 57-25-120(5)(f), (g).

2. The "control area" is that "area within 660 feet of the nearest edge of the right-of-way of Interstate or Federal-aid primary highways and visible from the main-traveled way of the Interstate." 25A S.C. Code Ann. Regs. 63-342(D) (Supp. 2000). This distance is measured "from the outer edge of the right-of-way on a line which is perpendicular to the edge of the pavement at the point in question." Id.

3. Reference to Illustration 1 of the DOT's outdoor advertising regulations is particularly helpful for a full understanding of the measurements involved in delineating this "unzoned commercial or industrial area." See 25A S.C. Code Ann. Regs. 63-353 illus. 1 (Supp. 2000).

4. See 25A S.C. Code Ann. Regs. 63-346(A)(1) (Supp. 2000) (requiring that measurements "[i]nvolving the distance between signs, shall be made along the edge of the traveled way between lines perpendicular to the edge of the traveled way").

5. See 25A S.C. Code Ann. Regs. 63-342(D) (requiring that the width of the control area be measured "from the outer edge of the right-of-way on a line which is perpendicular to the edge of the pavement at the point in question").