ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 1-23-600(B)
(Supp. 1998), upon the Petitioner's request for a contested case hearing to review a decision of the Respondent, South
Carolina Department of Transportation ("Department"), denying Petitioner's application to erect a 672 square foot sign in
the place of an existing sign located along Interstate 85 in Spartanburg County, South Carolina. A hearing was held at the
offices of the Division in Columbia, South Carolina, on April 21, 1999.
For the following reasons, I find that the Department's decision to deny Petitioner's application was in accordance with the
Highway Advertising Control Act, S.C. Code Ann. §§ 57-25-110, et seq. (Supp. 1998), and that the Petitioner's application
must be denied.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a
preponderance of the evidence, I make the following findings of fact:
1. Notice of the date, time, place and subject matter of the hearing was timely given to the parties.
2. The Petitioner is the owner of a sign which is located between Road 191 and U.S. 221 in Spartanburg County, South
Carolina. The sign is visible from I-85 Business and is located on property owned by Printex Corporation, Ltd. within an
unzoned commercial or industrial area. It is located approximately 350 feet from a business known as "Acro Tech."
3. The Petitioner's sign is approximately 112 square feet in size. The sign was legally erected in 1969, but did not comply
with the provisions of the Highway Advertising Control Act which was enacted in 1971, because it was not located within
600 feet of a qualifying business activity. Therefore, the Department treated the sign as a "grandfathered nonconforming"
sign, which is subject to certain restrictions as outlined in the Act and supporting regulations, including a prohibition against
alteration or rebuilding of the sign.
4. At some point subsequent to the classification of the sign as "grandfathered nonconforming," the roadbed of I-85 adjacent
to the sign location was relocated, and a new interchange of I-85 and I-85 Business was built. As a result of this
reconfiguration, the Petitioner contends that the sign is no longer a "grandfathered nonconforming" sign, but that it is now in
a location which complies with the Highway Advertising Control Act.
5. On July 16, 1998, the Petitioner submitted an application to the Department for a permit to dismantle the existing sign and
to erect a 672 square foot, lighted "V" type sign in the same location. The Department denied the Petitioner's application on
September 18, 1998, on the grounds that the sign was "adjacent to or within five hundred feet of an interchange" pursuant to
S.C. Code Ann. § 57-25-140(E) and S.C. Code Ann. Regs. 63-346 (B)(1)(b) (Supp. 1998), and therefore was prohibited by
the Act.
DISCUSSION AND CONCLUSIONS OF LAW
1. S.C. Code Ann. § 1-23-600(B) (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear
contested cases under the Administrative Procedures Act. Disputes concerning permits for outdoor advertising signs are to
be conducted as contested cases under the APA. 25A S.C. Code Ann. Regs. 63-349 (M) (Supp. 1998).
2. The "Highway Advertising Control Act" provides that the Department is the agency responsible for issuing outdoor
advertising sign permits and for prescribing regulations for their issuance. S.C. Code Ann. § 57-25-150(A) (Supp. 1998).
Specifically, Section 57-25-150(A) provides that "[t]he commission [of the Department of Transportation] shall issue
permits for the erection and maintenance of outdoor advertising signs. . . consistent with the safety and welfare of the
traveling public necessary to carry out the policy of the State declared in this article and consistent with the national
standards promulgated by the Secretary of Transportation or other appropriate federal officials pursuant to Title 23, United
States Code." Furthermore, the Commission is given the authority to promulgate regulations governing standards for the
size, spacing, lighting, and maintenance of outdoor advertising signs. S.C. Code Ann. § 57-25-150(A) and (D) (Supp.
1998).
3. S.C. Code Ann. § 57-25-140 (Supp. 1998) provides that:
(A) An outdoor advertising sign must not be erected or maintained after June 30, 1975, which is visible from the main-traveled way of the interstate or federal-aid primary highways in this State and erected with the purpose of its message being
read from the traveled way, except the following:
* * *
(8) signs located in unzoned commercial or industrial areas.
* * *
(E) No sign structure permitted under items (7) and (8) of subsection (A) on the interstate system or on a federal-aid primary
route . . . may be located . . . adjacent to or within five hundred feet of an interchange . . . measured along the interstate or
controlled access primary highways from the nearest point of the beginning or ending of pavement widening at the exit from
or entrance to the main-traveled way . . . .
(Emphasis added.)
3. The provisions of the Highway Advertising Control Act pertaining to the spacing of outdoor advertising signs permitted in
zoned and unzoned commercial and industrial areas do not apply to signs which were lawfully in place as of the effective
date of the Act, November 3, 1971. S.C. Code Ann. § 57-25-140(G) (Supp. 1998). However, "nonconforming signs,"
which are signs which were lawfully erected but which do not comply with the Act or its supporting regulations passed at a
later date, or which fail to comply with the Act or the regulations because of changed conditions at the site, see 25A S.C.
Code Ann. Regs. 63-342(P) (Supp. 1998), must remain substantially the same as they were on the effective date of the law
or regulations which rendered the sign nonconforming. 25A S.C. Code Ann. Regs. 63-350(c)(7) (Supp. 1998). Any
"extension, enlargement, replacement, rebuilding, changing the materials of the sign structure's support, adding lights to an
unilluminated sign, changing the height of the sign above ground, or re-erection of the sign will make the sign illegal." Id.
4. It is undisputed that the Petitioner's present sign is now located in an "unzoned commercial or industrial area" within the
meaning of the Act. It is further undisputed that the Petitioner's sign was lawfully erected prior to the effective date of the
Act, and that it did not comply with the provisions of the Act because its location adjacent to the then existing roadbed of I-85 was not within six hundred feet of a business. See Regs. 63-342(FF) (Supp. 1998). However, the Petitioner contends
that, as a result of the relocation of the roadbed of I-85 and the construction of the new interchange of I-85 and I-85
Business, his sign location is no longer a nonconforming location because it is now located within 600 feet of a business and
is not adjacent to or within 500 feet of an interchange, and the permit to erect a new sign at the location should therefore be
granted. The Department, on the other hand, argues that the sign has historically been treated as a "grandfathered
nonconforming" sign which is subject to the provisions of Regs. 63-350, and that the construction of the new interchange
has not changed the status of the sign location, in that although the sign is now located within 600 feet of a business, the
location is adjacent to or within 500 feet of an interchange, and is thus an illegal location.
5. "Interchange" is defined in the regulations as "an intersection or junction of highways, either open or intended to be
opened and for which the location has been approved by the Department, whether at grade or involving one or more grade
separations, together with that additional area used or needed for connecting roadways from one highway to another." 25A
S.C. Code Ann. Regs. 63-342(L) (Supp. 1998). For purposes of the Act, measurements involving interchanges are made
from the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main-traveled
way." 25A S.C. Code Ann. Regs. 63-346(A)(3) (Supp. 1998). The issue for decision in this case is whether the stretch of
roadway along which Petitioner's sign is located is part of an "interchange." In this regard, expert witnesses for the
Petitioner and for the Respondent presented opposing views. Petitioner's expert testified that, because there is no
perceptible widening of the pavement along the stretch of roadway in question, the sign is not located adjacent to an
interchange. He stated that, in his opinion, the stretch of roadway in question is a part of I-85 Business rather than a ramp
leading from I-85 Business to I-85. The Department's expert, on the other hand, testified that the entire system of roads
depicted on Respondent's Exhibit 1 (a diagram of the area in question) constitutes a "trumpet interchange" because of the
general shape of the layout of the roads. He further testified that the stretch of roadway along which the Petitioner's sign is
located is a ramp leading from I-85 Business to I-85 and is thus part of the interchange.
6. The trier of fact may give expert testimony such weight as he determines it deserves. Florence County Dep't of Social
Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992). Moreover, when presented with conflicting expert
testimony, the fact finder may give greater weight to the testimony of one expert over the other. S.C. Cable Television
Ass'n v. Southern Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In this case, I find the testimony of the
Department's expert witness to be more credible. Considering the testimony of the Department's expert, and considering the
definition of "interchange" found at Regs. 63-342(L), I conclude that the stretch of roadway along which the Petitioner's
sign is located is part of the interchange of I-85 and I-85 Business, in that it is in an "additional area used or needed for
connecting roadways from one highway to another." As the Petitioner's sign is located adjacent to an interchange and is a
"nonconforming sign" pursuant to Regs. 63-342(P), no new sign can be erected at the location and no material alterations to
the existing sign are permitted. Therefore, I conclude that the Department properly denied Petitioner's application.
ORDER
For all the foregoing reasons, the Petitioner's application for the construction of a billboard is hereby DENIED.
AND IT IS SO ORDERED.
___________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 8, 1999 |