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2007-UP-541 - MCC Outdoor v. SCDOT

THIS OPINION HAS NO PRECEDENTIAL VALUE AND SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

MCC Outdoor, LLC, d/b/a Fairway Outdoor Advertising, Appellant,

v.

South Carolina Department of Transportation, Respondent.


Appeal From Administrative Law Court
 Ralph K. Anderson, III, Administrative Law Judge


Unpublished Opinion No.   2007-UP-541
Heard October 11, 2007 – Filed November 30, 2007


AFFIRMED


William James Johnson and Craig D. Justus, both of Asheville, for Appellant.

Barbara Munig Wessinger, S.C. Dept. of Transportation Legal Division, of Columbia, for Respondent.

PER CURIAM: Appellant appeals the administrative law court’s (ALC) order granting summary judgment in favor of SCDOT and denying Appellant’s motion for summary judgment.  We affirm.

FACTS

By lease agreement dated November 22, 2002, Appellant leased real estate located adjacent to U.S. Highway 176 (the road) for the purpose of constructing a billboard.  In December of 2002, Appellant applied to SCDOT for an outdoor advertising permit to allow it to erect the billboard.  On February 12, 2003, SCDOT approved the permit for the billboard.  Appellant completed construction of the billboard in July of 2003. 

In December of 2003, TNT Trucking, the qualifying business for the billboard, went out of business.  By letter dated February 4, 2004, SCDOT notified Appellant that the permit for the billboard was revoked due to the qualifying business’s termination within one year of the issuance of the permit.  Subsequent to receiving notice of SCDOT’s intent to revoke the permit, Appellant met with Joyce Gardener, a representative of SCDOT, to discuss the possibility of selecting another qualifying business.  Appellant was ultimately unable to find an alternate qualifying business, and the billboard was taken down on or around April 16, 2004.

On June 4, 2004, Appellant applied to SCDOT for a new outdoor advertising permit to allow it to erect a new billboard on the property.  By letter dated July 2, 2004, SCDOT informed Appellant that the review process for the permit request would require additional time beyond the standard thirty days for investigation.  On or around August 31, 2004, SCDOT blocked direct access to the property by placing concrete barriers along the road.  This was done as part of a planned transformation of the section of the road that borders the property into a controlled access highway.[1]

By letter dated September 16, 2004, SCDOT notified Appellant that its permit request was denied because the proposed billboard site was located within five hundred feet of an interchange on a controlled access federal-aid highway.  Appellant requested a contested case hearing before the ALC.  On March 1, 2006, the ALC held a hearing on the matter.  By order dated July 20, 2006, the ALC granted SCDOT’s motion for summary judgment and denied Appellant’s motion for summary judgment.  Appellant appeals this ruling.

STANDARD OF REVIEW

On appeal, this court may not substitute its judgment for that of an agency on questions of fact when those facts are supported by substantial evidence.  Al-Shabazz v. State, 338 S.C. 354, 380, 527 S.E.2d 742, 756 (1999).  “In determining whether the [ALC’s] decision was supported by substantial evidence, this court need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the administrative agency reached.”  DuRant v. S.C. Dep’t of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706 (Ct. App. 2004)(citation omitted).  “The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent a finding from being supported by substantial evidence.”  Id. at 420, 604 S.E.2d at 707.

LAW/ANALYSIS

Appellant raises multiple challenges to the ALC’s order.  Appellant first argues that SCDOT never acquired its right of direct access to the property from the road, and, therefore, SCDOT has failed to establish the road as a controlled access highway.  The majority of Appellant’s remaining arguments center on the status of the road at the time of filing its application.  Specifically, Appellant argues that the road was not a controlled access highway at the time of the filing of its request for the permit, and, accordingly, it is vested with a right to the permit.  Appellant also argues that it filed its permit request in good faith, and therefore, the ALC’s reliance on Sherman v. Reaves, 273 S.C. 542, 257 S.E.2d 735 (1979) constitutes error.  Appellant also argues that pursuant to the holdings in Pure Oil Division v. The City of Columbia, 254 S.C. 28, 34-35, 173 S.E.2d 140, 143 (1970) and Scott v. Greenville County, 716 F.2d 1409, 1418 (1983), its motion for summary judgment should have been granted.

Additionally, Appellant argues that SCDOT is estopped from claiming the road was established as a controlled access highway and that the issuance of an outdoor advertising permit is a ministerial act.  We find all of Appellant’s arguments to be without merit.

I) APPELLANT’S RIGHT OF DIRECT ACCESS

Appellant argues SCDOT never acquired its right of direct access to the property from the road, and, therefore, SCDOT has failed to establish the road as a controlled access highway.  The terms of Appellant’s lease specifically address the access conferred to the Appellant.  Pursuant to the lease, Appellant received a right to “sufficient access to allow [Appellant] to service and maintain” the billboard.  The ALC found Appellant had sufficient access to the property by way of the service roads.  Appellant never possessed a right of direct access to or from the road for SCDOT to acquire.  Therefore, we find this issue to be without merit.        

II) THE ROAD’S STATUS AT THE TIME OF FILING

Appellant argues its application for an outdoor advertising permit was properly filed with SCDOT before the road became a controlled access highway, and, accordingly, it is vested with a right to the permit.  We disagree.[2]

Appellant cites the cases of Pure Oil Division v. The City of Columbia, 254 S.C. 28, 34-35, 173 S.E.2d 140, 143 (1970) and Scott v. Greenville County, 716 F.2d 1409, 1418 (1983) for the proposition that it was vested with a right to the permit at the time of filing its application.  We find Appellant’s reliance on these cases to be misplaced.

Unlike the present case, both cases cited by Appellant deal with permits for land uses that were expressly allowed by the applicable zoning ordinances.  Furthermore, the aggrieved parties in both of the cases cited by Appellant detrimentally changed their positions in reliance on the zoning ordinances.  Appellant has not changed its position in reliance on the permit at issue here.  Appellant leased the property for the purpose of constructing a billboard.  Appellant was issued an outdoor advertising permit and completed construction of the billboard.  However, Appellant failed to comply with the requirements in order to keep the permit effective and, accordingly, was ordered to remove the billboard.  Appellant’s detrimental change in position was caused by its failure to satisfy the requirements of keeping the original permit in effect.  Therefore, we find the cases cited by Appellant to be inapplicable to the case before us.

We find the present case to be closer to Sherman v. Reaves, 273 S.C. 542, 257 S.E.2d 735 (1979).  In Sherman, the Supreme Court refused to apply the holding of Pure Oil Division to facts similar to those currently before us.  The distinction between the cases was Sherman had “presented little, if any, proof of expenditures or incurrence of obligations in good faith reliance upon their proposed use.” Id. at 545, 257 S.E.2d at 737.  Appellant contends the ALC committed error by citing this case in support of its order given that Appellant’s application was filed in good faith.  We are not persuaded by this argument.  Where there is no expenditure or incurrence of obligation, there is also no expenditure or incurrence of obligation made in good faith.  While the Supreme Court did address the issue of Sherman’s lack of good faith in his filing, the outcome of the case turned on the lack of detrimental reliance.       

In the present case, Appellant applied to SCDOT for an outdoor advertising permit around June 4, 2004.  By letter dated July 2, 2004, SCDOT informed Appellant that the review process for the permit request would require additional time beyond the standard 30 days for investigation.[3]  While it is unclear exactly when the road became a controlled access highway, it is clear SCDOT acquired the property owners’ rights of direct access to and from the road on June 16, 2003.  It is also clear access to and from the section of the road adjacent to the proposed site of the billboard was controlled by August 31, 2004, due to SCDOT blocking direct access to the property by placing concrete barriers along the road.  Accordingly, access to the section of the road adjacent to the proposed site became controlled before SCDOT completed its investigation.     

Section 57-25-140(E) of the South Carolina Code (the five hundred feet rule) provides: “No sign may be located on the interstate system or controlled access federal-aid primary route adjacent to or within 500 feet of an interchange….” South Carolina Code Ann. § 57-25-140(E) (Supp. 2006). Likewise, Regulation 63-346(B)(1)(b) provides: “no sign in a rural, unincorporated area may be erected within 500 feet of an interchange or rest area.”  25A S.C. Code Ann. Regs. 63-346(B)(1)(b) (Supp. 2006).  It is undisputed that the proposed site for the billboard is located within 500 feet of an interchange.  Accordingly, there is substantial evidence in the record to support the ALC’s finding that Appellant’s permit application failed to satisfy the requirements of section 57-25-140(E) and Regulation 63-346(B)(1)(b).

III) ESTOPPEL

Appellant argues SCDOT is estopped from arguing the road was established as a controlled access highway due to Joyce Gardener stating the section of the road adjacent to the property was not controlled access.  Appellant, in its brief, states it “raised this issue for the sole purpose of barring SCDOT from taking a position that controlled access was established for U.S. 176 in front of the property prior to [Appellant’s] 2004 Permit Request Application.”  Given our holding as to the time at which access to the road became controlled, this issue is irrelevant.  Moreover, while a government agency is not immune from the application of the doctrine of equitable estoppel, it cannot be estopped based on the unauthorized or erroneous statements of its officers or agents.  South Carolina Coastal Council v. Vogel, 292 S.C. 449, 452-3, 357 S.E.2d 187, 189 (Ct. App. 1987). 

IV) MINISTERIAL ACT

Appellant contends the issuance of an outdoor advertising permit is a ministerial act, and, therefore, SCDOT lacks discretion in granting such permits.  This contention is based on the language of South Carolina Code Ann. § 57-25-150(B) (Supp. 2006) which states permits for signs coming within the exception in item (8) of subsection (A) of § 57-25-140 “shall” be issued.  However, section 57-25-140(E) (the five hundred feet rule) expressly applies to signs permitted under item (8) of subsection (A) of § 57-25-140.  

The words of a statute “must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand” the statute’s operation.  Hitatchi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992).  However, “[t]he cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible.”  Strother v. Lexington County Recreation Commn., 332 S.C. 54, 62, 504 S.E.2d 117, 121 (1998).  “All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.”  Kiriakides v. United Artists Commc’ns, Inc., 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994).  Applying the “shall” in § 57-25-150(B) literally without factoring in the express limitation included in § 57-25-140 would result in the issuance of a permit for the erection of a sign that cannot legally be erected.  Clearly, this cannot be the outcome intended by the Legislature.  Accordingly, we find this argument to be without merit.

CONCLUSION

For the reasons stated above, the order of the ALC is

AFFIRMED.

STILWELL, SHORT, and WILLIAMS JJ., concur.


[1] This transformation was part of a three mile improvement project for I-585.  The project started in 1999 with funding allocations.  SCDOT started acquiring right-of-way for the project in 2001 and acquired the rights of direct access to the subject property in 2003.  Physical construction on the project began in June of 2004, but there was no physical indication of the project in the proximity of the subject property until the end of August of 2004 when SCDOT used concrete barriers to block direct access to the property.

[2] We have summarized, combined, and addressed Appellant’s arguments dealing with the status of the road at the time of filing its application into this issue.

[3] Regulation 63-349(L) provides:

Upon receipt of the permit application, the District Sign Coordinator will inspect the sign site in order to ascertain if the location legally qualifies.  The Department reserves the right to consider any application for a sign permit for up to 30 days from the date the application is submitted.  Any application not approved within that time may be deemed by the applicant to have been rejected unless the Department notifies the applicant in writing on the reasons it requires further time to investigate the application.

25A S.C. Code Ann. Regs. 63-349(L)(Supp. 2006).