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:
Blanchard Machinery Company vs. DOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioner:
Blanchard Machinery Company

Respondent:
South Carolina Department of Transportation
 
DOCKET NUMBER:
02-ALJ-07-0220-CC

APPEARANCES:
Keith Melvin
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION
Director of Outdoor Advertising

Barbara M. Wessinger, Esquire
Attorney for SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION

M. Elizabeth Crum, Esquire
Attorney for BLANCHARD MACHINERY COMPANY
McNair Law Firm, P.A.
P.O. Box 11390
Columbia, South Carolina 29211

Joan M. Deal
Treasurer and Chief Financial Officer
BLANCHARD MACHINERY COMPANY
 

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


Brown Bldg.

 

 

 

 

 

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