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Joyce Outdoor Advertising, LLC v. Department of Transportation

July 18, 2012

JOYCE OUTDOOR ADVERTISING, LLC, PETITIONER
v.
DEPARTMENT OF TRANSPORTATION, RESPONDENT



The opinion of the court was delivered by: Robert Simpson, Judge

Argued: June 4, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY JUDGE SIMPSON

In this appeal involving the Outdoor Advertising Control Act of 1971 (OAC Act),*fn1 Joyce Outdoor Advertising, LLC (Joyce) petitions for review of a final order of the Secretary of the Department of Transportation (DOT) that affirmed the denial of Joyce's application for an outdoor advertising device permit for a sign along Interstate 81 in the City of Scranton (City). The Secretary determined Joyce's proposed sign violated the 500-foot spacing requirement in Section 105(c)(2)(i) of the OAC Act, 36 P.S. §2718.105(c)(2)(i) (no two sign structures along an interstate or limited access primary highway shall be spaced less than 500 feet apart).

Joyce contends the Secretary erred in denying Joyce's permit application because: the Secretary's conclusion that Lamar Advertising Company (Lamar) had not abandoned its sign permit is unsupported by substantial evidence; Joyce's pending application had priority over Lamar's later-filed application for a new permit for the same location; and, the evidence shows that at the time Joyce submitted its application, it was the only applicant to hold a valid local permit for the proposed location. For the reasons that follow, we affirm.

I. Background

A. Generally

Joyce is a Pennsylvania limited liability company engaged in the business of operating outdoor advertising displays. It formed in 2008 and is located at 800 James Avenue in the City.

Since 1998, Lamar, a large outdoor advertising company, maintained an advertising sign (DOT permit #04-0062) on a rear parcel located at 800 James Avenue, which is visible from the southbound lanes of Interstate 81. Lamar's ground lease for the location remains in effect until 2018. In 2008, Lamar removed the sign structure for safety reasons due to its deterioration. Noticing that Lamar removed its sign, Joyce began seeking the required permits for an advertising sign at that location.

B. Permit Proceedings

In September 2008, Lamar submitted a letter to DOT's Engineering District 4-0 confirming a conversation between Lamar's real estate manager and DOT's district outdoor advertising control manager, Don Refice (OAC Manager) regarding Lamar's permit #04-0062. Lamar's letter stated:

As discussed, [Lamar] has been advised by its consulting engineers that the above referenced existing sign structure is in need of replacement. As such, it is Lamar's intent to dismantle the sign as soon as possible. We have been further advised by our Regional office that, due to logistical constraints, the replacement sign structure for this location will likely not be available to us until early-to-mid 2009.

The purpose of this correspondence is to confirm that Lamar's [DOT] permit #04-0062 is and will remain an active permitted sign location until such time as our replacement sign structure has been erected and is in place. It is my understanding from you that [DOT] is in agreement with this circumstance, and that all of Lamar's rights under permit #04-0062 will not be affected in any way.

DOT Ex. 1; Reproduced Record (R.R.) at 55a (emphasis added).

In May 2009, Lamar submitted a letter to OAC Manager again expressing its desire to renew permit #04-0062. In this letter, Lamar stated:

Attached is a copy of the application to renew Lamar's [DOT] permits that were due to expire on April 30, 2009. The second permit, #04-0062 was inadvertently removed from the application.

This board has been temporarily dismantled because its physical condition had deteriorated to a point that it became a safety hazard to anyone trying to access the board. However, it is our intention to keep the permit active until such a time as we are able to replace the board.

DOT Ex. 2; R.R. at 56a (emphasis added).

In December 2009, Joyce obtained a City permit to erect an outdoor sign along Interstate 81 near the location of Lamar's sign. In January 2010, Joyce applied for a DOT permit for that location.

In March 2010, DOT sent Lamar a notice of intent to revoke permit #04-0062, which provided in part:

Indicated Violations:

Pursuant to 67 Pa. Code §445.8(b)(1), "A sign which has remained without bona fide advertising for 12 month [sic] or which has been without a current lease or license from the landowner for more than 90 days" is presumed abandoned and must be removed.

According to our records, you informed the District that Device #04-0062 would be removed in September 2008 for repairs. The device has not been re-erected and has been without bona fide advertising for at least twelve (12) months. The device is therefore presumed abandoned.

This Notice does not revoke your outdoor advertising device permit. If you believe this Notice is in error, please provide evidence to refute the alleged violation or propose specific means to correct the alleged violation.

DOT Ex. 4; R.R. at 71a.

Lamar timely responded that it intended to begin repair of the structure within 10 days and complete the project within 30 days, weather permitting. See DOT Ex. 5; R.R. at 72a-73a. Also, Lamar indicated it provided its client with another billboard 2,500 feet north of that location at no cost until the sign structure at permit #04-0062 is replaced. Id. Lamar further indicated it had a ground lease for the location until May 2018. Id.

Pursuant to an agreement between DOT and Lamar, DOT revoked permit #04-0062 in early April 2010. Ex. D-6; R.R. at 74a. In exchange for Lamar's agreement to relinquish its existing permit, DOT issued Lamar a new permit, #04-0289, for the same location.

In late April 2010, DOT ultimately denied Joyce's permit application under Section 105(c)(2)(i) of the OAC Act based on a spacing conflict with an active permit. See Ex. D-7; R.R. at 75a. DOT indicated a permit existed within 500 feet of Joyce's proposed location. Id. Joyce filed an administrative appeal. Lamar intervened.

C. Administrative Appeal

In October 2010, the case proceeded to an administrative hearing at which the parties presented evidence before a hearing officer. Joyce advanced three arguments in support of its position that DOT erred in denying ...


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