Appeal from the Order of the Department of Transportation, in the case of In Re: George Washington Motor Lodge Company, Advertising Device Permit, T.R. 22, Whitehall Township, Lehigh County, No.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 118 Pa. Commw. Page 553]
George Washington Motor Lodge Company (Petitioner) appeals an order of the Department of Transportation (DOT) which denied Petitioner's application for an advertising device permit (permit). We affirm.
Petitioner has a dual-faced sign structure on its property located adjacent to Traffic Route 22, a primary Federal Highway, in Whitehall Township, Lehigh County, which currently displays on-premise activity advertisements on both faces. On June 22, 1985, Petitioner requested a permit, pursuant to the Outdoor Advertising Control Act of 1971*fn1 (Act) to allow advertisement of off-premise activities on the sign face directed toward westbound traffic.*fn2 Petitioner's sign is located within 500 feet of the eastbound exit from Traffic Route 22 but more than 500 feet from the westbound exit.
[ 118 Pa. Commw. Page 554]
DOT denied the permit request. Petitioner appealed and a hearing was held on October 21, 1985. The presiding officer issued a proposed report denying the permit application on the basis that 67 Pa. Code § 445.4(b)(2)(i) prohibits the advertisement of off-premise activities within 500 feet of an interchange. The Secretary of Transportation adopted the report and on December 3, 1987, denied Petitioner's permit application. Petitioner filed a timely appeal to this court.
Petitioner argues that 67 Pa. Code § 445.4(b)(2)(i) should be interpreted as permitting its sign because the structure and the sign face are more than 500 feet from an interchange available to those motorists to whom the sign would be visible. Petitioner further contends that its interpretation of 67 Pa. Code § 445.4(b)(2)(i) is recognizable from the regulation's language, is consistent with other sections of the regulation, and would eliminate an unconstitutional use of police power. In the alternative, Petitioner maintains that the sign fits the exception listed under 67 Pa. Code § 445.4(b)(2)(iii) and therefore, the advertising device permit should be granted.
An administrative agency's interpretation of its own regulation is controlling unless (1) that interpretation is plainly erroneous or inconsistent with the regulation or (2) the regulation is inconsistent with the statute under which it is promulgated. E. Smalis Painting Company v. Department of Transportation, 70 Pa. Commonwealth Ct. 90, 452 A.2d 601 (1982).
The regulation at issue, 67 Pa. Code § 445.4(b)(2)(i), in pertinent part provides:
(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
[ 118 Pa. Commw. Page 555]
sign structures shall 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 ...