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08/22/97 MARTIN MEDIA v. DEPARTMENT TRANSPORTATION

August 22, 1997

MARTIN MEDIA, PETITIONER
v.
DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appealed From No. 251 A.D. 1995. State Agency Department of Transportation.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty *fn1 Dissenting Opinion BY Senior Judge Silvestri.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY *fn1

FILED: August 22, 1997

Martin Media (Martin) appeals from an order of the Secretary of Transportation (Secretary), dated October 21, 1996, which denied Martin's application for an outdoor advertising permit pursuant to the Outdoor Advertising Control Act of 1971 (Act). *fn2 We affirm.

The relevant facts are not disputed. On January 3, 1995, Martin filed an application with the Department of Transportation (DOT) for an advertising device permit for the placement of a sign, described as "one (1)-14' x 48' illuminated bulletin," to be erected on the Airport Parkway (Parkway), Routes 22, 30 and 60, 500 feet west of the Campbell's Run Road exit in Collier Township, Allegheny County. (R., Item No. 3 at 10.)

Campbell's Run Road, a two-lane highway, and the Parkway, a divided four-lane highway, run generally east and west. *fn3 At the area herein relevant, both roadways are substantially parallel. Approximately 250 feet separates the southerly side of Campbell's Run Road and the northerly side of the Parkway. For traffic traveling in a westerly direction on the Parkway, there is an exit ramp to Campbell's Run Road. The east-west traffic on the Parkway is separated by continuous cement barriers. For traffic on the Parkway traveling in a westerly direction, there are two lanes for through traffic separated by broken white lines ("the main-traveled way"), until a third westbound lane, the deceleration lane, begins the Campbell's Run Road exit east of the exit ramp. The deceleration lane is separated from the main-traveled way by a solid white line for a short distance between the two northerly main-traveled lanes for westbound through traffic on the Parkway and that part of the exit lane just prior to its turn to the north away from the westbound main-traveled lanes of the Parkway. *fn4 As the exit ramp begins the turn to the north, the solid white line extending east from the "neutral area" divides into two solid white lines, one of which continues westerly as the southern edge of the "neutral area" and continues westerly as the northern edge of the Parkway. At the split of the solid white line which separates the deceleration lane from the main-traveled lanes of the Parkway at the beginning of the "neutral area," it also continues on in an arc as the northerly edge of the "neutral area" after which it becomes the westerly edge of the exit lane.

In the area between the solid white line that continues along the southerly edge of the "neutral area" and thereafter as the northerly edge of the Parkway and the solid white line which is along the westerly side of the exit ramp are five separate white lines, each touching both of the aforesaid solid white lines; this area is identified as a "neutral area." *fn5 The pavement upon which the "neutral area" is painted continues westward beyond the "neutral area" until it meets the rumble strips and shoulder area abutting the northerly edge of the Parkway (at point "P" on figure 1) and the rumble strips in the exit ramp. This westerly edge of the paved portion at the exit is a continuation of the paving from the deceleration lane westward under the paint of the "neutral area" to the places where it meets the rumble strips abutting the exit ramp and the main-traveled way on the Parkway. *fn6

DOT denied Martin's application for an advertising device permit by letter dated August 29, 1995, on the ground that Martin's proposed sign is not 500 feet from the end of pavement widening at the exit as per DOT regulations at 67 Pa. Code § 445.4(b)(2)(i). *fn7 (R.R. 14a.) Martin appealed that denial and requested a hearing, which was held on March 21, 1996. The Hearing Officer, by proposed report and order of August 21, 1996, affirmed DOT's decision to deny the permit. On September 18, 1996, Martin filed exceptions to the Hearing Officer's August 21, 1996 order, as well as a Motion to Present Oral Argument on the matter. On October 21, 1996, the Secretary issued an order denying Martin's exceptions, making the order contained in the proposed report final, and denying Martin's Motion to Present Oral Argument.

The opinion of the Hearing Officer, which was adopted by the Secretary, states, in relevant part, as follows:

The Department measures from a change in the paving from main-traveled way paving to shoulder paving as best shown on P-5.[ *fn8 ] Martin, on the other hand, measures from the point of painted delineations that direct traffic.[ *fn9 ] The regulations and the Department use a solid permanent point that is easily determined on the ground and on plans. Martin chooses an ephemeral point that may not always be there or in the same location depending on weather or changing traffic control regulations. The word "pavement" in the regulations clearly supports the Department's position. The Department's interpretation of it's [sic] own regulations control unless clearly erroneous or inconsistent with the enabling statute or the regulations themselves. Popple v. Commonwealth, 133 Pa. Commw. 375, 575 A.2d 973 (1990).

(R.R. 98a-99a.)

The Hearing Officer concluded as follows: (1) DOT's interpretation of its regulation at 67 Pa. Code § 445.4(b)(2)(i) is not clearly erroneous and is consistent with the regulation and the Act in that it designates a permanent, easily identified feature of pavement; (2) Martin's interpretation is not supported by the language of the regulation and is based on a painted, rather than permanent, feature of the road; and (3) the proposed sign is within 500 feet of the ending of pavement of the main-traveled way of the exit ramp.

Section 5(c)(2)(i) of the Act, 36 P.S. ยง 2718.105(c)(2)(i), provides, in ...


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