ORDERS:
CONSENT AGREEMENT AND ORDER
STIPULATION OF FACTS
1.This proceeding involves an appeal by Blanchard Machinery
Company (Blanchard) of the South Carolina Department of
Transportation’s (SCDOT or Department) May 6, 2002 decision (Decision)
finding that Blanchard’s on-premise sign located on its property
contiguous to South Carolina Highway 22 (Highway 22) in Horry County
does not meet the criteria of the South Carolina Outdoor Advertising Act
(Act) and S.C. Code Ann. Reg. 63-352. The Decision gave Blanchard
thirty (30) days from the date of receipt to remove the sign. SCDOT
withdrew its instructions to remove the sign pending the outcome of this
contested case hearing.
2.Blanchard submitted a timely request for a contested case
hearing on this matter.
3.Blanchard is a South Carolina corporation doing business in
Horry County, South Carolina. Blanchard owns the property (Property) on
which it erected the sign. Prior to erecting the sign, Blanchard
constructed its business facility on the Property and obtained the
necessary local government permits to erect the sign on the premises
with its business.
4.A request was also made to the U.S. Army Corps of
Engineers (USACE) for a wetland determination for the Property. By letter
dated July 17, 2001, the USACE Charleston District (District) determined
that the property contained 4.32 acres of federally defined jurisdictional
freshwater wetlands or other waters of the United States. Blanchard
appealed the determination on September 14, 2001. On June 13, 2003,
the USACE, South Atlantic Division, upheld the District’s wetlands
determination.
5.The Department is an agency of the State of South Carolina
and is created pursuant to S. C. Code Ann. §§ 51-1-10 et. seq. SCDOT’s
governing board is the South Carolina Highway Commission.
6.On April 30, 2002, the Department investigated the
Blanchard sign located on its property contiguous to SC Highway 22 in
Horry County, South Carolina. On May 3. 2002, a representative from the
Department met with Bill Gregory (Gregory), Blanchard’s Vice-President of
General Construction to discuss the sign.
7.The Department specifically found that pursuant to
Regulation 63-352(C)(3), “the land occupied by the sign and the building
must be continuous and be a functionally integral unit reserved and
required for activities. The area between the activities and the advertising
devices must be improved or landscaped in a suitable manner so as to
portray a single unit, regardless of leasing arrangements.” In this
instance the Department found that the sign was illegal because the
business is completely blocked from view of the sign by a curtain of trees.
8.Blanchard disputed the allegation that the business is
completely blocked from view of the sign by a curtain of trees and raised
issues regarding the SCDOT application and/or interpretation of the Act
and regulations.
9.The trees that the Department alleges block the view of the
Blanchard building from Highway 22 are located in an area designated by
the Environmental Protection Agency as a wetlands area.
10.After the USACE June 13, 2003 determination and prior to
proceeding to a hearing on the merits of this case, the parties met several
times for the purpose of attempting to settle this matter. After additional
negotiations, the parties were able to reach a settlement to resolve this
action.
11.With this Settlement Agreement and Consent Order, the
SCDOT and Blanchard wish to resolve this matter and to compromise and
settle the disputes and allegations that have been pled or that could have
been pled in the above-captioned case.
12.In view of the foregoing, the mutual promises and
covenants set forth herein, and for such other good and valuable
consideration as set forth herein, the receipt and sufficiency of which is
hereby acknowledged, the SCDOT and Blanchard agree as follows:
THEREFORE, IT IS AGREED
1.Blanchard has agreed to remove certain trees that have proliferated in the
area designated by the USACE as wetlands and to landscape the property surrounding
the sign.
2.The landscaping around the sign will be accomplished in accordance with
the plan prepared by Southland Nursery, dated December 30, 2003, a copy of which is
attached hereto as Exhibit A and incorporated herein.
3.Blanchard will cuttrees in an area approximately 100 feet wide in the
wetland designation perpendicularly back from the existing sign site to the building with
the area being approximately 50 feet on either side of the sign site. Within the 100
foot wide strip, Blanchard will remove sufficient trees and vegetation growthso that the
sign and building are clearly visible from Highway 22.
4.Due to issues with removing vegetation in wetlands, including but not
limited to the fact that the trees and vegetation will have to be cut manually without
the use of heavy equipment and the tree root systems cannot be disturbed, Blanchard
may leave select vegetation in place at a height of no more than three feet.
Allhardwood treesidentified during the on-site reviewmay remain in place.
5.Blanchard will cut and remove what it believes is sufficient trees and
vegetation for the sign and building to be clearly visible from Highway 22 and will
contact SCDOT to send a representative to view the property to determine the
sufficiency of the clearing.
6.The SCDOT will send a representative within four (4) working days after
the date Blanchard requests that it inspect the property. The SCDOT will not
unreasonably and unnecessarily require the cutting of trees and clearing of vegetation
in the wetlands designation area.
7.Blanchard will complete the clearing of trees and vegetation on or before
April 30, 2004.
8.With the execution of this Agreement and Consent Order, Blanchard
hereby withdraws its request for a contested case hearing pending before the
Administrative Law Judge Division.
9.This Agreement and Consent Order constitutes the entire agreement
between the parties with respect to the resolution and settlement of the matters
discussed herein and supercedes all prior or contemporaneous agreements, promises,
or understandings between the parties. The parties are not relying upon any
representations, promises, understandings, or agreements except as expressly set forth
within this Agreement and Consent Order.
10.This Agreement and Consent Order only settles those matters addressed
in Docket No. 03-ALJ-07-0345-CC and does not affect or purport to affect or settle any
other action or potential action.
11.The undersigned individuals signing this Agreement and Consent Order on
behalf of the parties represent and warrant that they are duly authorized to execute
this Agreement and Consent Order and lawfully bind their principals.
12.In the event of the invalidity of any term or provision of this Agreement
and Consent Order, all terms and provisions shall be considered severable and the
balance of this Agreement shall remain in effect.
WE CONSENT:
Keith Melvin, Date
SOUTH CAROLINA DEPARTMENT
OF TRANSPORTATION
Director of Outdoor Advertising
Barbara M. Wessinger, EsquireDate
Attorney for SOUTH CAROLINA DEPARTMENT
OF TRANSPORTATION
_______________________________________________________
M. Elizabeth Crum, Esquire Date
Attorney for BLANCHARD MACHINERY COMPANY
McNair Law Firm, P.A.
P.O. Box 11390
Columbia, South Carolina 29211
Joan M. DealDate
Treasurer and Chief Financial Officer
BLANCHARD MACHINERY COMPANY
ORDER
THE UNDERSIGNED FINDS THE ARGREEMENT FAIR AND REASONABLE,
DISMISSES THE ACTION WITH PREJUDICE, AND APPROVES THE AGREEMENT AS HIS
ORDER.
AND IT IS SO ORDERED
__________________________
Ralph King Anderson, IIIAdministrative Law Judge
March 23, 2004
Columbia, South Carolina |
