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Harbor Advertising, Inc. v. Dep't of Transportation

October 15, 2010

HARBOR ADVERTISING, INC., PETITIONER
v.
DEPARTMENT OF TRANSPORTATION, RESPONDENT



The opinion of the court was delivered by: Judge Butler

Argued: September 14, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

Harbor Advertising, Inc. (Harbor) petitions for review of the November 30, 2009 order of the Secretary of the Department of Transportation (PennDOT) denying the Exceptions of Harbor, and adopting and finalizing the PennDOT Hearing Officer's Proposed Report denying Harbor's application for an outdoor advertising device permit pursuant to the Outdoor Advertising Control Act of 1971 (Act).*fn1

The issues before this Court are: 1) whether the Secretary improperly determined that the property on which Harbor applied to construct a billboard was not an "area clearly established by law as industrial or commercial" because it was not "zoned industrial or commercial" as of September 21, 1959; 2) whether PennDOT's determination that issuance of a mining permit is different and distinguishable from zoning an area as commercial or industrial is consistent with the Act and PennDOT's regulations; and 3) whether the Secretary improperly determined that PennDOT's regulatory interpretation of Section 4 of the Act conforms with Section 131 of the Federal Highway Beautification Act of 1965*fn2 (Beautification Act), where a 1968 amendment to the Beautification Act recognized that a state may make a determination of customary use in the absence of a local zoning law. For the following reasons, the Secretary's order is affirmed.

On June 11, 2008, Harbor submitted an application to construct a billboard on property located adjacent to Interstate 79 in North Strabane Township, Washington County. The proposed billboard would be located on property owned and/or controlled by Coca-Cola Enterprises and Jones & Hall Ventures, Inc. North Strabane Township is a second class township, and had no zoning ordinance until 1962. The property on which the proposed billboard is to be located is currently zoned industrial. Prior to September 21, 1959, the site was used for mining purposes pursuant to a state-issued mining permit.

On December 17, 2008, PennDOT issued a letter denying Harbor's application for the billboard permit on the following grounds:

Your application to erect an off-premise advertising sign on land owned by Coca-Cola Enterprises/Jones & Hall Ventures Inc., in North Strabane Township, adjacent to Interstate 79, is denied because the documentation does not support that the sign site was zoned industrial or commercial as of September 21, 1959.

The Outdoor Advertising Control Act No. 160 of 1970 36 P.S. [§]2718.104(1)(V) allows signs to be erected adjacent to an interstate highway in Townships where the location of the sign site was zoned industrial or commercial as of September 21, 1959.

Reproduced Record (R.R.) at 6a, 14a.

Harbor filed an appeal on January 14, 2009 challenging PennDOT's denial. A hearing was conducted on March 26, 2009, and on August 20, 2009, the Hearing Officer filed a Proposed Report. The Hearing Officer concluded, as a matter of law, that the proposed billboard would not be a permitted use under the Act, and more specifically, that the property on which the proposed billboard was to be constructed was "not a Kerr Area[*fn3 ] -- Type 2 because the use of the property for mining pursuant to a permit issued under state mining regulations does not establish it as a 'zoned commercial or industrial area.'" R.R. at 22a.

Harbor filed Exceptions and a supporting brief to the Hearing Officer's Proposed Report. On November 30, 2009, the Secretary of PennDOT (Secretary) denied Harbor's Exceptions, adopting and rendering final the Proposed Report. Harbor appealed to this Court.*fn4

Harbor argues that PennDOT improperly construed the phrase "clearly established by law as industrial or commercial" as requiring that the property be zoned commercial or industrial. It also argues that if the rules of statutory construction are properly applied, the phrases are not interchangeable as implied by PennDOT's regulation. Harbor further argues that PennDOT's regulation violates Section 1921(a) of the Statutory Construction Act by failing to give effect to all of the statutory provisions and rendering a portion of Section 4(1)(v) of the Act mere surplusage. Finally, Harbor contends that PennDOT misconstrued the holding in Kasha v. Department of Transportation, 782 A.2d 15 (Pa. Cmwlth. 2001), because the Commonwealth Court did not rule on the substantive legal issues, but held only that Kasha had not met his burden of proving that PennDOT abused its discretion; while ...


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