Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kegerreis Outdoor Advertising Co. v. Department of Transportation

Commonwealth Court of Pennsylvania

April 3, 2017

Kegerreis Outdoor Advertising Company, Petitioner
v.
Department of Transportation, Respondent

          Argued: March 7, 2017

          BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          PATRICIA A. McCULLOUGH, Judge.

         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 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.)

         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 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.