STEEN OUTDOOR ADVERTISING, INC. v. NEW JERSEY DEPARTMENT OF TRANSPORTATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1424-06T11424-06T1

STEEN OUTDOOR ADVERTISING, INC.,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

TRANSPORTATION,

Respondent-Respondent.

_____________________________________________________________

 

Argued November 8, 2007 - Decided

Before Judges Cuff, Lihotz and Simonelli.

On appeal from a Final Decision of the Office of Administrative Law, Docket No. TRP 08228-05.

Nicola G. Suglia argued the cause for appellant (Fleischer, Fleischer & Suglia, attorneys; Brian M. Fleischer, on the brief).

Nicole T. Minutoli, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Minutoli, on the brief).

PER CURIAM

Petitioner Steen Outdoor Advertising, Inc. (Steen) appeals from the final decision of the Commissioner of the Department of Transportation (the DOT) issued on September 28, 2006. That order revoked a permit, which allowed Steen to modify an existing outdoor advertising sign, commonly called a billboard, located on Route 30 in Pennsauken Township. Steen's application for modification sought not only to increase the size and height of the existing sign, but also to allow advertising on both faces of the structure.

Steen's proposed elevated, double-faced sign was directed to the same highway traffic as an outdoor advertising site on Route 30 operated by Clear Channel. The two billboards were spaced closer than the required 300 feet. After the agency determined Steen's proposed sign violated regulations limiting the distance between signs facing the same highway, the DOT revoked Steen's permit. Following a hearing, the DOT's decision was affirmed by an Administrative Law Judge (ALJ) and the ALJ's Initial Decision was adopted by the Commissioner as a Final Decision.

Steen argues that when the DOT approved construction of Clear Channel's sign, it disregarded the regulations mandating minimum distances between the billboards. Therefore, the DOT cannot now impose the regulations to prevent Steen's sign modifications. The DOT explains that the regulations were inapplicable when Steen's sign was single faced and not raised because the two signs were not directed toward the same flow of traffic. Steen's proposed modifications to targeted traffic from two directions requires compliance with the minimum separation distance of 300 feet between billboards on each highway the new sign would face. We affirm.

In April 1964, the DOT issued permit number 07836, allowing Steen to erect a six foot by twelve foot, single-faced outdoor advertising sign, pursuant to the Roadside Sign Control and Advertising Act, N.J.S.A. 27:5-5 to -28 (Act). The sign's height makes it visible only to the westbound traffic on Route 30 in Pennsauken, located immediately after a confluence of highways, known as the "Airport Circle."

On November 15, 2004, Steen applied to replace its current sign. Specifically, Steen sought to increase the sign-face size to sixty feet by sixteen feet and to elevate the sign an additional thirty feet. Also, the new sign would be double-faced with advertising visible not only to the westbound but also to the eastbound traffic on Route 30.

On February 8, 2005, the DOT issued permit number 68821 and conditionally approving Steen's request to modify its sign. The notification letter stated, "You are also advised that the issuance of this permit indicates only that the application appears to meet the requirements of N.J.A.C. 16:41C, the State regulations governing outdoor advertising . . . ." Prior to commencement of construction, Steen was required to pay all fees to the DOT, present its application to the municipality for a public hearing, and obtain all other required municipal or agency approvals. Steen paid the $550 permit fee and a conditional permit was issued on February 15, 2005.

After reinspection, the DOT realized that Steen's proposed double-faced sign would be only 270 feet from a double-faced outdoor advertising sign operated by Clear Channel. One side of Clear Channel's sign faces the southbound Route 130 traffic and the other side faces the eastbound lanes of Route 30.

The DOT alerted Steen to the problem by correspondence dated February 22, 2005. On March 29, 2005, the DOT then sent Steen a "Notice of Revocation" intending to revoke the permit because Steen's and Clear Channel's signs were on the same side of the eastbound lanes of Route 30, see N.J.A.C. 16:41C-8.7(a)(2) yet, the signs were not separated by the minimum distance of 300 feet, as proscribed by N.J.S.A. 16:41C-8.7(c)(2).

After an informal hearing, the matter was certified as a contested case and forwarded to the Office of Administrative Law. During the May 10, 2005 hearing, the DOT presented testimony from Michael J. McGuire, a supervisor in the DOT's Office of Outdoor Advertising. McGuire stated the existing Steen sign is small and low, visible only to Route 30 westbound traffic. In 1997, Clear Channel requested a permit for an elevated sign visible to traffic traveling southbound on Route 130 and eastbound on Route 30. The permit request was granted because the sign posed no visibility conflict or regulatory violation with Steen's existing sign.

Terry Steen challenged the DOT's position stating that in the winter you can "see" the existing Steen sign from the Clear Channel location. He stated that Steen was never notified of or afforded the opportunity to object to Clear Channel's permit request.

The ALJ affirmed the DOT's revocation of Steen's permit, finding a legitimate basis for the agency's action and rejected Steen's argument that the Clear Channel permit was issued in error. After Steen filed exceptions to the ALJ's Initial Decision, the matter was reviewed by the Commissioner of Transportation. The Commissioner rendered a Final Decision revoking Steen's permit approval to modify its sign. This appeal followed.

When considering the actions of administrative agencies, our scope of review is narrow. Aqua Beach Condo. Ass'n. v. Dep't of Cmty. Affairs, 186 N.J. 5, 15 (2006). We will not overturn an agency's decision unless convinced the determination "'was arbitrary, capricious, or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the [enabling legislation].'" Id. at 16 (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Nevertheless, we are obliged to accord "'substantial deference to the interpretation an agency gives to a statute that the agency is charged with enforcing.'" Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005) (quoting Smith v. Dir., Div. of Taxation, 108 N.J. 19, 25-26 (1987)).

On appeal, Steen argues the DOT admits it was mistaken when it approved Steen's permit request for a sign modification. However, "mistake" is not a valid basis for permit revocation under N.J.A.C. 16:41C-10.2(b)(1) to (11). Steen maintains that revocation must be bottomed on "some type of improper action or conduct by the permit holder." We reject such a narrow view of the regulations.

The DOT's regulations provide that an outdoor advertising sign permit may be revoked for any of the following reasons:

1. Whenever any statement made in the permit application or in a disclosure statement is materially false, or whenever the permittee has failed to submit a disclosure statement pursuant to N.J.A.C. 16:41C-5.5;

2. Whenever a sign has been erected contrary to the approved application and conditions of the permit;

3. Whenever any provision of the law or rules contained in this chapter is violated;
 
4. Whenever any dimension of the advertising surface area is in excess of the dimensions authorized by the approved application;
 
5. Whenever a permitted structure has not been kept in a safe and well-maintained condition;
 
6. Whenever a permit is being maintained upon public property without the express permission of the governing authority;
 
7. Whenever a permit is being maintained upon private property without the consent of the property owner. A valid lease establishes the consent of the property owner;
 
8. Whenever the existing natural landscape of the right-of-way has been trimmed, altered or destroyed in any way by the permittee or agent thereof without complying with N.J.A.C. 16:41;

9. Whenever a permittee fails to place his name and the sign's application number on the sign as required by this chapter;
 
10. Whenever a sign remains abandoned for a period of four months after being so cited by the Department; or

11. Whenever a permittee has failed to pay a penalty pursuant to N.J.A.C. 16:41C-10.4(e).
 
[N.J.A.C. 16:41C-10.2(b).]

Although many bases for revocation result after improper affirmative conduct of a permittee, subparagraph 3 requires revocation when the requested action violates "the law or rules contained in this chapter[.]"

The DOT's reinspection revealed that Steen's proposed double-sided sign faced the same traffic flow as Clear Channel's, thus invoking issues of visibility. The regulations define "visible" to mean "the advertisement can be seen and comprehended without visual aid by persons traveling in the motor vehicle on the highway." N.J.A.C. 16:41C-2.1. Thus, the visibility of outdoor advertising and its impact on traffic safety is the agency's paramount regulatory concern. In that regard, N.J.A.C. 16:41C-8.7(c) states, in pertinent part:

Off-premise signs that are visible to the main-traveled way of any portion of a non-limited access highway on the Primary System within 660 feet of the right-of-way shall comply with the following:

. . . .

2. The minimum spacing between permitted locations shall be 300 feet.

The parties stipulated that the distance between the signs is 270 feet. The proposed modified Steen sign directly violates the above regulation, justifying the DOT's revocation of the issued permit.

We additionally reject Steen's suggestion that the DOT ignored the regulations when it approved Clear Channel's permit request in 1997. Arguing that the DOT has "failed to uniformly implement the regulations," Steen maintains that the agency action was arbitrary and capricious as "it seeks to revoke [Steen's] permit for the very reasons it should have denied Clear Channel's application." We concur with the Commissioner that the regulation's applicability came into play because Steen proposes a dual-faced sign, visible to both the east and the westbound traffic on Route 30. Steen's request to alter its existing structure to erect a double-sided billboard triggered, for the first time, the distance requirement between signs. The agency is not free to ignore the promulgated regulations directed to traffic safety.

Our review of the record discloses that the findings upon which the Commissioner's decision was based were supported by sufficient credible evidence. The DOT's interpretation of its regulations is consistent with the statutory policy of the Act, which balances traffic safety, the enjoyment of highway travel, the preservation of the natural scenic beauty and aesthetic features of the highways, as well as promotes "the development and economic vitality and facilitat[es] the flow of speech and expression . . . conveyed through the medium of . . . outdoor advertising." N.J.S.A. 27:5-6(a). Accordingly, we affirm.

Affirmed.

(continued)

(continued)

10

A-1424-06T1

January 14, 2008