Kegerreis Outdoor Advertising Company v. DOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kegerreis Outdoor Advertising :
Company, :
Petitioner :
: No. 1256 C.D. 2016
v. :
: Argued: March 7, 2017
Department of Transportation, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: April 3, 2017
Kegerreis Outdoor Advertising Company (Petitioner) petitions for
review of the June 27, 2016 order of the Secretary of the Department of
Transportation (DOT) which denied Petitioner’s exceptions to the proposed report of
a hearing officer and finalized the hearing officer’s order revoking Petitioner’s sign
permit for the southern face of its sign.
Facts and Procedural History
The underlying facts of this case are not in dispute and were stipulated to
at earlier stages in these proceedings.1 On July 6, 2011, Petitioner applied for an
1
The record includes a Stipulation of Settlement filed with DOT on February 1, 2012, as
well as a Joint Stipulation of Facts filed on October 15, 2013.
outdoor advertising device permit from DOT, seeking to erect a sign on property
located at 4200 Paxton Street, Harrisburg, Pennsylvania.2 This property is also
located in Swatara Township, Dauphin County, and Petitioner had previously
received a permit from Swatara Township to erect the sign. The proposed sign was a
“V-shaped” structure with two sign faces, each measuring 300 square feet and
consisting of LED displays, supported by a steel monopole approximately 57 feet off
the ground. The proposed sign would be within 660 feet of, and visible from,
Interstates 83 and 283 (I-83, I-283, respectively). (Findings of Fact Nos. 1-5;
Stipulation of Settlement at ¶¶1-6.)
On September 20, 2011, DOT’s Engineering District 8-0 (the District)
denied Petitioner’s permit application on the stated basis that the proposed sign was
to be located within 500 feet of the interchange area of I-83 and I-283 in violation of
section 5(c)(2)(i) of the Outdoor Advertising Control Act of 1971 (Act), Act of
December 15, 1971, P.L. 596, as amended, 36 P.S. § 2718.105(c)(2)(i), and section
445.4(b)(2)(i) of DOT’s regulations, 67 Pa. Code §445.4(b)(2)(i).3 On October 3,
2011, Petitioner filed an appeal of the District’s denial. On December 30, 2011, the
District issued a supplemental denial on the basis that the proposed sign was to be
located within 500 feet of the interchange area of State Route (SR) 322 in violation of
the same statute and regulation. Petitioner again filed an appeal relating to this
supplemental denial. (Findings of Fact Nos. 6-9; Stipulation of Settlement at ¶¶6-9.)
2
This area is locally known as the Eisenhower Interchange.
3
Section 5(c)(2)(i) of the Act, known as the “Interchange Prohibition,” as well as the
accompanying regulation, contain identical language stating that “no structure may be erected
adjacent to or within five hundred feet of an interchange.”
2
On February 1, 2012, the parties submitted a Stipulation of Settlement to
DOT whereby the District agreed to the issuance of a sign permit to Petitioner. The
Stipulation of Settlement noted Petitioner’s assertion that the sign would be visible
only from I-83 and I-283 and no other controlled highway, and reserved the District’s
right to inspect the sign after it is constructed and in operation. The Stipulation of
Settlement further reserved the District’s right to take administrative action should
any of the sign’s advertising be visible from any controlled highway other than I-83
and I-283 and noted Petitioner’s agreement that it would not seek to preclude the
District from revoking its permit or from presenting evidence or testimony
concerning such visibility. (Findings of Fact Nos. 9-10; Stipulation of Settlement at
¶¶10-15.)
Petitioner constructed the sign in late March 2012. On December 27,
2012, after completing an investigation of the as-built sign, the District revoked
Petitioner’s permit because the southern face of the sign was visible from SR 322,
and within 500 feet of Ramps E and F on SR 322 in violation of section 5(c)(2)(i) of
the Act and section 445.4(b)(2)(i) of DOT’s regulations. On January 28, 2013,
Petitioner timely appealed the District’s revocation of its permit. (Findings of Fact
Nos. 11-13; Joint Stipulation of Facts at ¶¶19-21.)
The matter was assigned to a DOT hearing officer. The parties filed a
joint stipulation of facts on October 15, 2013, reciting all of the facts above.
(Reproduced Record (R.R.) at 51a-52a.) The hearing officer subsequently conducted
a hearing on October 22, 2013, which included testimony from Timothy Ketterer, an
outdoor advertising supervisor manager for the District; Christopher Drda, a design
3
services engineer for the District; and Austin Kegerreis, Petitioner’s General
Manager.4 (R.R. at 53a-184a.)
For reasons not evident in the record, a proposed report was issued by a
different hearing officer on September 24, 2015, which affirmed the District’s
revocation of Petitioner’s permit. The hearing officer found as fact that SR 322 was
part of the primary system of roadways, it was a limited access road in Swatara
Township, the southern face of the sign was visible from the main-traveled way of
SR 322 and Ramps E and F, and the sign was within 500 feet of Ramp E. (Findings
of Fact Nos. 15-17.) Based on these findings, the hearing officer concluded that the
District properly revoked Petitioner’s permit. (Conclusion of Law No. 7.) The
hearing officer directed that the southern face of the sign be removed. Petitioner filed
exceptions. By order dated June 27, 2016, the Secretary denied the exceptions and
made the hearing officer’s proposed report final. (R.R. at 327a.) Petitioner thereafter
filed a petition for review with this Court.
On appeal,5 Petitioner argues that the Secretary erred in adopting the
proposed report because: (1) I-83 and I-283, the more restrictive highways with
respect to regulation of outdoor signs, and not SR 322, are the controlling highways
in this matter; (2) neither Ramp E nor Ramp F are interchanges; and (3) DOT failed
4
In his decision, the hearing officer noted that DOT conceded that the “Interchange
Prohibition” does not prohibit the sign’s presence with respect to I-83 or I-283 because there is no
interchange between those roads; rather, they simply merge without entrance or exit ramps.
(Proposed Report at 7.)
5
Our scope of review from an administrative agency decision is whether necessary findings
of fact are supported by substantial evidence, whether an error of law has been committed, or
whether constitutional rights were violated. Adams Outdoor Advertising, Ltd. v. Department of
Transportation, 860 A.2d 600, 604 (Pa. Cmwlth. 2004), appeal denied, 887 A.2d 1242 (Pa. 2005).
4
to produce substantial evidence that the sign was within 500 feet of Ramp E or Ramp
F. We disagree with Petitioner’s arguments.
Discussion
The purpose of the Act is to protect the Commonwealth’s interest in
receiving federal highway funds and, at the same time, to further the national policy
of highway beautification. See Section 102 of the Act, 36 P.S. §2718.102; Patrick
Media Group v. Department of Transportation, 620 A.2d 1125 (Pa. 1991). We have
described the Act’s goal as to limit the proliferation of outdoor advertising devices in
areas adjacent to the Commonwealth’s interstate and primary highways. Patrick
Media Group, 602 A.2d at 1126.
Section 4 of the Act addresses control of outdoor advertising and
provides in relevant part as follows:
To effectively control outdoor advertising, while
recognizing it to be a legitimate commercial use of property
and an integral part of the business and marketing function,
no outdoor advertising device shall be erected or
maintained: (1) within six hundred sixty feet of the
nearest edge of the right-of-way if any part of the
advertising or informative contents is visible from the
main-traveled way of an interstate or primary highway .
...
36 P.S. §2718.104 (emphasis added). Section 104 goes on to list numerous
exceptions, none of which are applicable to this case.
Section 5(c)(2)(i) of the Act further limits the spacing of signs, providing
that:
(c) In all other zoned and unzoned commercial or industrial
areas, the criteria set forth below shall apply:
...
5
(2) Spacing of signs:
(i) Along the interstate system and limited
access highways on the primary system, no
two sign structures shall be spaced less than
five hundred feet apart; and outside the
boundaries of cities of all classes and
boroughs, no structure may be erected
adjacent to or within five hundred feet of an
interchange or safety rest area, measured
along the interstate or limited access primary
from the beginning or ending of pavement
widening at the exit from or entrance to the
main-traveled way.
36 P.S. §2718.105(c)(2)(i) (emphasis added). As noted above, this so-called
“Interchange Prohibition” is repeated in section 445.4(b)(2)(i) of DOT’s regulations,
which states as follows:
(b) Maintenance. A sign may not be erected or maintained
inconsistent with the following criteria:
...
(2) Spacing of signs. Spacing of signs shall include
the following:
(i) Along the interstate system and limited access
highways on the primary system, no two sign
structures may be spaced less than 500 feet apart; and
outside the boundaries of cities of all classes and
boroughs, no structure may be erected adjacent to
or within 500 feet of an interchange or safety rest
area, measured along the interstate or limited access
primary from the beginning or ending of pavement
widening at the exit from or entrance to the main-
traveled way.
67 Pa. Code §445.4(b)(2)(i) (emphasis added).
6
We have described this “Interchange Prohibition” as specifically
intended “to control the proximity of certain-size signs at the exits from high-speed
highways where vehicles are in the process of maneuvering to change directions
while reducing speed, so that the distraction such signs would create for the exiting
operator would be greatly reduced or diminished, if not eliminated.” Martin Media v.
Department of Transportation, 700 A.2d 563, 567 (Pa. Cmwlth. 1997), appeal
denied, 725 A.2d 184 (Pa. 1998). Moreover, the contents of a sign need not be
legible to be subject to control under the Act; rather, mere visibility is sufficient. See
Section 3(10) of the Act, 36 P.S. §2718.103(10) (defining “visible” as meaning
“capable of being seen (whether or not legible) without visual aid by a person of
normal visual acuity.”)
More Restrictive Regulations
Petitioner relies on language in DOT’s Highway Beautification Manual
and DOT’s sign permit application, Form RW-745, regarding application of the more
restrictive requirements when a sign is visible from more than one controlled
highway, in support of its argument that I-83 and I-283, and not SR 322, are the
controlling highways in this matter. More specifically, DOT’s Highway
Beautification Manual provides that “[i]f a sign is erected adjacent to the primary
system, but is within 660 feet of the right-of-way and visible from the main-traveled
way of an interstate highway, the more restrictive interstate requirements apply.”
(R.R. at 251a.) DOT’s Form RW-745 similarly states that “[i]f a sign message is
visible from more than one controlled highway, the more restrictive requirements (if
any) apply.” (R.R. at 188a.) However, such reliance ignores the express language
and purpose of the “Interchange Prohibition” provision of the Act.
7
By its very terms, the “Interchange Prohibition” is applicable to both
highways “[a]long the interstate system and limited access highways on the primary
system,” such as SR 322. Section 5(c)(2)(i) of the Act, 36 P.S. §2718.105(c)(2)(i).
As noted above, this prohibition is repeated in section 445.4(b)(2)(i) of DOT’s
regulations. The language of the Act and its accompanying regulation expressly
prohibit the placement of a sign within 500 feet of an interchange. The obvious
purpose of such a prohibition is to protect the safety of the traveling public by
reducing distractions to the operators of motor vehicles at significant decision points.
In Martin Media, DOT denied an application for a sign permit on the
basis that a proposed sign was not 500 feet from the end of pavement widening at a
highway exit, as required by the “Interchange Prohibition.” The parties disagreed on
where the point of measurement began, with DOT measuring from a change in the
paving from main-traveled way paving to shoulder paving and applicant measuring
from the point of painted delineations that directed traffic. Ultimately, we affirmed
the order of DOT’s Secretary denying the application, stating that DOT’s
interpretation of the statute was more plausible and consistent with the purposes of
the statute than was the interpretation offered by applicant. In so doing, we explained
the legislative intent behind the enactment of the “Interchange Prohibition” as
seeking “to control the proximity of certain-size signs at the exits from high-speed
highways where vehicles are in the process of maneuvering to change directions
while reducing speed, so that the distraction such signs would create for the exiting
operator would be greatly reduced or diminished, if not eliminated.” 700 A.2d at
567.
Moreover, an agency’s interpretation of a regulatory statute must be
afforded considerable weight and deference by a reviewing court. Martin Media, 700
8
A.2d at 566 (citing Popowsky v. Pennsylvania Public Utility Commission, 669 A.2d
1029, 1044 (Pa. Cmwlth. 1995), rev’d on other grounds, 706 A.2d 1197 (Pa. 1997)).6
Indeed, the agency’s interpretation of its statute may not be disregarded by this Court
unless it is clearly erroneous or is inconsistent with the intent or purpose of the
statute. Id. Here, DOT’s interpretation of the Act, that the location of a given sign
must satisfy the requirements of the “Interchange Prohibition” for both interstate and
primary highways when both are part of the interchange, is not clearly erroneous and
in fact is consistent with the intent and purpose of the Act as noted above.
Further, any such purported reliance by Petitioner on DOT’s Highway
Beautification Manual and Form RW-745 is belied by the February 1, 2012
Stipulation of Settlement. In this Stipulation, Petitioner noted that its application for
a sign permit asserted, under penalty of perjury, that “the sign would be visible only
from Interstates 83 and 283 and no other controlled highway, including [SR] 322.”
(R.R. at 16a) (emphasis added). Additionally, Petitioner noted that its witnesses
would testify that the sign would only be visible from I-83 and I-283 “and no other
controlled highway.” Id. Further, Petitioner agreed not to “seek to exclude . . . any
evidence or testimony concerning the visibility of the advertising contents from [SR]
322” in any subsequent legal proceeding. Id. (emphasis added). While the parties
6
In Popowsky, petitioners contested the Pennsylvania Public Utility Commission’s (PUC’s)
approval of a telephone company’s application for alternative form of regulation, filed pursuant to
former section 3003 of the Public Utility Code, 66 Pa.C.S. §3003, repealed by the Act of November
30, 2004, P.L. 183. In rendering its decision, the PUC engaged in an interpretation of former
Chapter 30 of the Public Utility Code to determine whether that chapter requires competitive
safeguards to be in place before services are deregulated, or whether the PUC may find the services
to be competitive and impose the required safeguards at some future time. The PUC opted for the
latter interpretation. In reviewing the PUC’s decision, this Court recognized that the PUC’s
interpretation of its regulating statute was entitled to great weight and deference, unless it was
“clearly erroneous” or “inconsistent with the intent or purpose of that statute.” 669 A.2d at 1044.
9
further agreed that the Stipulation would not preclude, prevent, or estop Petitioner
from presenting any defense or response to any administrative action, (R.R. at 17a),
the multiple references to SR 322 reflects Petitioner’s awareness where its sign had to
be located with respect to other controlled highways, including SR 322, consistent
with the spacing requirements in the Act.
Ramps E and F
Alternatively, Petitioner argues that the sign does not violate the
“Interchange Prohibition” with respect to SR 322 because Ramps E and F are not
interchanges, but merely merge points and/or simply points at which SR 322
continues in a different direction. We disagree.
The term “interchange” is not defined in the Act or DOT’s regulations.
In such cases, section 1903(a) of the Statutory Construction Act of 1972 provides that
“[w]ords and phrases shall be construed according to rules of grammar and according
to their common and approved usage. . . .” 1 Pa.C.S. §1903(a). “Moreover, in
ascertaining the common and approved usage or meaning, we may have to resort to
the dictionary definitions of the terms left undefined by the legislature.” P.R. v.
Department of Public Welfare, 759 A.2d 434, 437 (Pa. Cmwlth. 2000), aff’d, 801
A.2d 478 (2002) (citations omitted). The Merriam-Webster Collegiate Dictionary
defines “interchange” as “a junction of two or more highways by a system of separate
levels that permit traffic to pass from one to another without the crossing of traffic
streams.” Merriam-Webster Collegiate Dictionary 630 (9th ed. 1983).
Additionally, while not defined in the Act, the language of the
“Interchange Prohibition” itself provides guidance wherein it discusses the
measurement of 500 feet as being calculated “from the beginning or ending of the
10
pavement widening at the exit from or entrance to the main-traveled way.” 36
P.S. §2718.105(c)(2)(i) (emphasis added). Further, this Court has previously
affirmed DOT’s interpretation of the terms “exit” or “entrance” within the
“Interchange Prohibition” to mean any or all exits or entrances from the main-
traveled way. George Washington Motor Lodge Co. v. Commonwealth, Department
of Transportation, 545 A.2d 493, 495 (Pa. Cmwlth. 1988) (rejecting applicant’s
interpretation of the 500 feet requirement in the “Interchange Prohibition” as only
applying to the side of the roadway from where the sign is visible and accepting
DOT’s interpretation of this requirement as applying to any and all exits or entrances
from the sign). As noted above, an agency’s interpretation of its governing statute is
entitled to considerable weight and deference. Martin Media.
In this case, there can be no dispute that the Eisenhower Interchange is a
junction of two or more highways where travelers can enter or exit I-83, I-283, SR
322, and the general road system. Indeed, traffic can pass from one highway to
another without crossing traffic streams. Ramp E is an exit off of the main-traveled
way of SR 322 westbound and onto I-83 northbound. Ramp F is an entrance onto the
main-traveled way of SR 322 eastbound from I-83 southbound. While Petitioner
correctly notes that the roadway immediately following these exit/entrance ramps
remains SR 322, but in an opposite direction, it does so only for a short distance and
serves as the only means to connect SR 322 and I-83. Thus, Ramps E and F serve as
a means to permit a motorist to pass from the main-traveled way of SR 322 to I-83
without the crossing of traffic streams. Applying the dictionary definition above, we
conclude that Ramps E and F constitute interchanges.
11
Substantial Evidence
Finally, Petitioner argues that DOT failed to present substantial evidence
that the sign was within 500 feet of any interchange. Again, we disagree.
We note first that in the February 1, 2012 Stipulation of Settlement,
Petitioner stipulated that the property upon which the sign is located is adjacent to I-
83, I-283, and SR 322. (R.R. at 15a.) Before the hearing officer, Timothy Ketterer,
an outdoor advertising supervisor manager for the District, testified that he drafted
the District’s December 27, 2012 letter to Petitioner revoking the permit insofar as it
relates to the southern face of the sign on the basis of its visibility from SR 322 and
its proximity, within 500 feet, to Ramps E and F. (R.R. at 70a-71a.) Ketterer
explained that he drove through the entire Eisenhower Interchange area, marked all
locations on a Google Maps image from where the sign was visible, and noted that
the sign was within 500 feet of Ramps E and F. (R.R. at 79a-81a.)
Regarding the 500 feet, while Ketterer acknowledged that he never
conducted an actual measurement from the beginning of the widening on Ramp E or
the ending of the widening on Ramp F to the location of the sign, as set forth in the
“Interchange Prohibition,” he noted that such a measurement was unnecessary
because the sign is adjacent to both ramps and easily visible when physically standing
on either ramp. (R.R. at 82a, 105a.) More importantly, however, during the
testimony of Austin Kegerreis, Petitioner’s General Manager, Petitioner introduced a
copy of a site plan, drawn to scale, with respect to the location of the sign. This site
plan clearly reveals that the sign is well within 500 feet of Ramp E. Thus, there is
substantial evidence in the record that Petitioner’s sign was in violation of the
“Interchange Prohibition.”
12
Conclusion
Consistent with the language of section 5(c)(2)(i) of the Act and section
445.4(b)(2)(i) of DOT’s regulations, as well as DOT’s interpretation of the same, the
“Interchange Prohibition” is applicable to both interstate and limited access highways
on the primary system, such as SR 322. Because the southern face of Petitioner’s
sign is located within 500 feet of Ramp E, an interchange, the sign is violative of the
“Interchange Prohibition.” Thus, the Secretary of DOT did not err in denying
Petitioner’s exceptions and finalizing the hearing officer’s order revoking Petitioner’s
sign permit for the southern face of its sign.
Accordingly, the order of the Secretary is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kegerreis Outdoor Advertising :
Company, :
Petitioner :
: No. 1256 C.D. 2016
v. :
:
Department of Transportation, :
Respondent :
ORDER
AND NOW, this 3rd day of April, 2017, the order of the Secretary of
the Department of Transportation, dated June 27, 2016, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge