Opinion
2012-07-18
JOYCE OUTDOOR ADVERTISING, LLC, Petitioner v. DEPARTMENT OF TRANSPORTATION, Respondent.
Karoline Mehalchick, Clarks Summit, for petitioner. Eric J. Jackson, Assistant Counsel, Harrisburg, for respondent.
Karoline Mehalchick, Clarks Summit, for petitioner. Eric J. Jackson, Assistant Counsel, Harrisburg, for respondent.
Sean P. McDonough, Moosic, for intervenor Lamar Advertising Company.
BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and COLINS, Senior Judge.
OPINION BY Judge SIMPSON.
In this appeal involving the Outdoor Advertising Control Act of 1971 (OAC Act), 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).
Act of December 15, 1971, P.L. 596, as amended,36 P.S. §§ 2718.101–2718.115. The purpose of the OAC 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. Dep't of Transp., 533 Pa. 188, 620 A.2d 1125 (1993). Essentially, the OAC Act's goal is to limit the proliferation of outdoor advertising devices in areas adjacent to the Commonwealth's interstate and primary highways. Id.
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 operatingoutdoor 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 its application for an outdoor advertising device permit.
First, Joyce argued that at the time it applied for a permit, Lamar had abandoned its existing sign at permit # 04–0062. Pursuant to DOT regulations, the following signs are presumed abandoned:
(1) A sign which has remained without bona fide advertising for 12 months or which has been without a current lease or license from the landowner for more than 90 days.
67 Pa.Code § 445.8(b)(1) (emphasis added).
In his proposed report, DOT's hearing officer recognized that Lamar's sign, following its removal in 2008, obviously remained without bona fide advertising for more than 12 months. Proposed Report, 3/21/11, at 4. However, this regulation is not dispositive; it merely raises a rebuttable presumption. Id. Here, the hearing officer observed, the application of the presumption was problematic because DOT knew Lamar intended to take the sign down and replace it. In other words, Lamar effectively rebutted the presumption in 67 Pa.Code § 445.8(b)(1). Thereafter, DOT and Lamar met and agreed that Lamar would relinquish permit # 04–0062 in exchange for a new permit for the same location. The hearing officer found this process preserved Lamar's vested interests in its permit and precluded the grant of a permit for Joyce. Proposed Report at 4.
Second, Joyce argued its application remained pending at the time Lamar applied for a new permit. Where two or more signs conflict with the spacing provisions in the OAC Act, DOT regulations pertinently provide (with emphasis added):
In the case of a conflict among two or more signs with the same priority, a permit will be issued for the sign which the Secretary determines is most in the interest of the traveling public, or, at the option of the Secretary, the sign for which application was first received by [DOT].
67 Pa.Code § 445.6(d)(4).
Here, both permits would be for advertising signs of private, for-profit entities. Accordingly, they share the same priority. See67 Pa.Code § 445.6(d)(1)(viii). Thus, Joyce urged, its application should be granted as first received.
However, the hearing officer observed, the preference for first-received is optional and, in this case, not appropriate. Proposed Report at 5–6. When Joyce submitted its application in January 2010, Lamar's permit # 04–0062 remained valid and active. This precluded the issuance of a permit to Joyce. Id. The hearing officer observed that Lamar applied for a new permit before DOT finalized the revocation of Lamar's existing permit. Again, the hearing officer found DOT acted properly in preserving Lamar's vested interest in the permit location. Id. at 6.
Third, Joyce argued that it, and not Lamar, holds a valid City permit for the subject location. A local permit is a prerequisite for a DOT permit. However, the hearing officer recognized, Lamar challenged the validity of Joyce's local permit in a letter to the City's solicitor. See DOT Ex. 9; R.R. at 81a–82a. In its letter, Lamar advanced several reasons why the City should revoke Joyce's permit, which it argues was mistakenly issued. Id.
Nonetheless, the hearing officer noted, the record does not establish a resolution by the City; it is a local matter for the City to determine. Proposed Report at 6. Further, the issue of which party is entitled to a City permit for the subject location is irrelevant to Joyce's present appeal. Id. DOT did not deny Joyce's application based on the existence of a valid local permit. Id. Therefore, the validity of Lamar's local permit was not at issue in Joyce's appeal. Id.
In summarizing, the hearing officer acknowledged the process appears unfair to Joyce. Id. at 7. Nonetheless, it would be wrong to deprive Lamar of its vested interests in a sign location where it engaged in no culpable conduct. Id. Further, it is beyond DOT's authority to remedy this situation by issuing Joyce a sign permit in violation of the spacing restrictions in Section 105(c)(2)(i) of the OAC Act. Id.
For the above reasons, the hearing officer concluded DOT properly denied Joyce's application for an advertising device permit because the proposed location fell within 500 feet of Lamar's active, valid permit. Id. at 7–8. Therefore, the hearing officer entered an order affirming DOT's denial of Joyce's outdoor advertising device permit. Id. at 8.
Joyce filed exceptions to the proposed report based on the arguments it presented in its administrative appeal. In June 2011, the Secretary entered an order denying Joyce's exceptions and finalizing the proposed report. Joyce petitions for review.
Our review of an agency order is limited to determining whether the agency's findings are supported by substantial evidence, whether the agency erred or violated a party's constitutional rights. Harbor Adver., Inc. v. Dep't of Transp., 6 A.3d 31 (Pa.Cmwlth.2010). Substantial evidence is such relevant evidence as a reasonable person would accept as sufficient to support a conclusion. Adams Outdoor Adver., Ltd., v. Dep't of Transp., 860 A.2d 600 (Pa.Cmwlth.2004). In performing a substantial evidence analysis, a reviewing court must view the evidence in a light most favorable to the party who prevailed before the fact finder. Id.
II. Issues
Joyce contends the Secretary erred in denying its permit application for the followingreasons: the Secretary's conclusion that Lamar had not abandoned its advertising sign at permit # 04–0062 is unsupported by substantial evidence; Joyce's pending application had priority over Lamar's later-filed application for a new permit; and, the evidence shows that at the time Joyce filed its application, it was the only applicant to hold a valid local permit for the proposed location.
III. Discussion
A. Abandonment
1. Argument
Joyce first contends the Secretary's determination that Lamar had not abandoned its advertising sign at permit # 04–0062 is erroneous and unsupported by substantial evidence. Joyce asserts the undisputed facts establish that at the time it applied for a permit in January 2010, Lamar's sign remained without advertising for at least 12 months. As discussed above, Lamar took the sign down in September 2008. As of December 2009, the sign remained down. Therefore, Joyce maintains Lamar abandoned its sign prior to the date of Joyce's permit application.
Joyce further contends that the presumption in 67 Pa.Code § 445.8(b)(1), that a sign which remains without bona fide advertising for 12 months is abandoned, does not provide for rebuttal. As support for its position, Joyce cites 67 Pa.Code § 445.8(c), which provides:
(c) Removal of abandoned signs. Signs that are abandoned shall be removed by the persons responsible for the erection and maintenance thereof within 30 days after notice by [DOT] of the abandonment. Upon 30 days notice [DOT] may remove signs that are abandoned at the expense of those responsible for the erection and maintenance of the signs.
Rather than ordering removal pursuant to this regulation, Joyce asserts DOT entered into a circuitous agreement with Lamar wherein Lamar consented to the revocation of its existing permit, based on abandonment, in exchange for a new permit for the same location. Thus, Joyce urges, the Secretary erred in determining that Lamar did not abandon permit # 04–0062 and that the evidence does not support that conclusion.
2. Analysis
The Secretary did not err in determining that Lamar successfully rebutted the administrative presumption in 67 Pa.Code § 445.8(b)(1), that a sign which remains without bona fide advertising for 12 months is abandoned. Nothing in the language of 67 Pa.Code § 445.8(b)(1) indicates this presumption is irrebuttable. In addition, “an administrative agency's interpretation of its own statutes and regulations [is] controlling unless (1) that interpretation is plainly erroneous or inconsistent with the statute or regulation or (2) the regulation is inconsistent with the statute under which it is promulgated.” Penn Adver., Inc. v. Dep't of Transp., 730 A.2d 1060, 1061–62 (Pa.Cmwlth.1999) (citing Miller's Smorgasbord v. Dep't of Transp., 139 Pa.Cmwlth. 385, 590 A.2d 854 (1991)).
In rejecting Joyce's argument that the presumption of abandonment in 67 Pa.Code § 445.8(b)(1) precludes rebuttal, the Secretary reasoned (with emphasis added):
The problem with this argument is that [DOT's] regulation is not dispositive of the sign's status but, rather, creates a presumption. While the presumption may provide a reasonable basis for [DOT] to begin the process of revocation, the regulation does not provide for automatic termination or preclude rebuttal of the presumption. Here, the application of the presumption was problematicfrom the outset because [DOT] knew (and apparently acquiesced in the proposal) that Lamar intended to take the sign down and replace it sometime later. Thus, it is clear that, at the time Joyce submitted its application, Lamar had no intent of abandoning the sign or relinquishing its permit, and it had no reason to believe that its actions would be construed contrary to its intentions.
Although [DOT] would have been justified in denying Joyce's application based on the existence of the Lamar permit, it decided to proceed with a notice of intent to revoke Lamar's permit. That notice produced a response from Lamar confirming its interest and investment in the sign site and expressing its intent to replace the sign within 30 days. If the passage of time had created a presumption of abandonment, Lamar effectively rebutted that presumption.
Sec'y Op. at 4–5.
As DOT argues, the Secretary's interpretation of the presumption in 67 Pa.Code § 445.8(b)(1) is consistent with the abandoned signs regulation in its entirety, 67 Pa.Code § 445.8(a)-(c). Nothing in the language of the regulation indicates this presumption is irrebuttable.
Moreover, the Secretary's interpretation of the abandoned sign presumption is also consistent with the law on abandonment of nonconforming uses in the land use context, which provides that a presumption of abandonment may be rebutted by actions or statements. See Finn v. Zoning Hearing Bd. of Beaver Borough, 869 A.2d 1124 (Pa.Cmwlth.2005) (abandonment is a question of fact that depends on all the circumstances in the case; abandonment is proved only when both essential elements are established: intent to abandon and implementation of that intent, or actual abandonment).
Here, Lamar twice notified DOT in writing that it needed to dismantle the existing sign for safety reasons, but that it intended to keep its permit active and replace the sign. Lamar's September 2008 letter confirmed that DOT understood that Lamar intended to keep permit # 04–0062 active until it could replace the sign structure. DOT Ex. 1; R.R. at 55a. Lamar's May 2009 letter further confirmed its intention to keep the permit active until it could replace the sign. DOT Ex. 2; R.R. at 56a.
In addition to its vested interest in maintaining a valid permit at this location, Lamar informed DOT in March 2010 correspondence that it had a valued client for the sign location at permit # 04–0062. DOT Ex. 5; R.R. at 72a. Until that sign could be replaced, Lamar provided its client with an alternative billboard, located 2,500 feet north of the permit location, at no charge. Id. Lamar further explained that as a result of the economic downturn, its capital expenditures budget was essentially frozen, which impacted the timing of the replacement of the sign. Id. In rebutting a presumption of abandonment, adverse financial circumstances may explain a period of non-use. See Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Twp., Westmoreland Cnty., 553 Pa. 583, 720 A.2d 127 (1998).
Summarizing, we recognize “[f]ailure to use the property for a designated time provided under a discontinuance provision is evidence of the intention to abandon.” Id. at 592, 720 A.2d at 132 (quoting Pappas v. Zoning Bd. of Adjustment, 527 Pa. 149, 156, 589 A.2d 675, 678 (1991)). “The burden of persuasion then rests with the party challenging the claim of abandonment.” Id. “If evidence of a contrary intent is introduced, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment.” Id.
Here, we discern no error in the Secretary's determination that 67 Pa.Code § 445.8(b)(1) created only a presumption of abandonment and that Lamar successfully rebutted this presumption. Latrobe Speedway;Pappas;Finn.
B. Pending Permit Application
1. Argument
Next, Joyce contends the Secretary erred in denying its permit application because Joyce's pending application had priority over Lamar's later-filed application for a new permit. Joyce explains that in March 2010, DOT mailed Lamar a notice of intent to revoke permit # 04–0062. See DOT Ex. 4; R.R. at 70a–71a. On April 8, 2010, DOT notified Lamar that it revoked permit # 04–0062. DOT Ex. 6; R.R. at 74a. Upon this revocation, Joyce asserts its January 2010 permit application for the same location remained pending, and thus had priority over any new permit application. Nevertheless, DOT granted Lamar a new permit in exchange for relinquishing its previous permit.
Joyce first argues both its application and Lamar's new application were for advertising signs of private, for-profit entities. Accordingly, they share the same priority. See67 Pa.Code § 445.6(d)(1)(viii). Thus, Joyce urges, its application should be granted as first received. Joyce relies on 67 Pa.Code § 445.6(d)(4), which provides (with emphasis added):
(4) In the case of a conflict among two or more signs with the same priority, a permit will be issued for the sign which the Secretary determines is most in the interest of the traveling public, or, at the option of the Secretary, the sign for which application was first received by the Department.
Joyce argues DOT circumvented this regulation by arranging Lamar's agreement to a revocation of its existing permit on the condition it received a new permit for the same location. Joyce contends 67 Pa.Code § 445.6(d)(4) does not provide for the issuance of permit based on Lamar's vested interest in its previous permit. Rather, the regulation provides only for the Secretary's consideration of the interests of the traveling public, which were not considered.
In response, DOT asserts the Secretary's interpretation of DOT's OAC regulations is controlling unless plainly erroneous or inconsistent with the regulation or statute under which it was promulgated. See Penn Adv.; Miller's Smorgasbord; George Washington Motor Lodge Co. v. Dep't of Transp., 118 Pa.Cmwlth. 552, 545 A.2d 493 (1988). DOT urges the Secretary's determination that the preference for the application first received is optional under 67 Pa.Code § 445.6(d)(4) and, in this case, inappropriate, is neither plainly erroneous nor inconsistent with the regulation.
To that end, DOT asserts, the April 8, 2010 revocation of Lamar's existing permit # 04–0062 expressly provided for an appeal period of 30 days. Thus, the revocation of Lamar's did not become final until the appeal period expired after the denial of Joyce's application on April 28, 2010.
Alternatively, DOT asserts 67 Pa.Code § 445.6(d)(4) does not require the Secretary to grant a permit for the application first received. Rather, the regulation allows the Secretary to do so at his option. Here, the Secretary properly exercised his discretion to deny Joyce's application in light of: Lamar's vested interest in a conforming permit at that location since 1998; Lamar's demonstration of intent not to abandon its rights; and, Lamar's acquiescencein DOT's request to file a new permit application for replacement of the sign.
In addition to joining in DOT's argument on this issue, Lamar asserts 67 Pa.Code § 445.6(d)(4) does not come into play because it had a valid existing permit at the time Joyce applied for a permit. Lamar maintains its existing permit has priority over Joyce's application under 67 Pa.Code § 445.6(d)(2)(i) (priority given to existing conforming signs, either upon initial application or renewal).
2. Analysis
Given the circumstances here, the Secretary did not err or abuse his discretion in rejecting Joyce's argument that its application deserved preference as first received under 67 Pa.Code § 445.6(d)(4). This regulation provides that in the case of a conflict between two or more signs with the same priority, a permit will be awarded, at the option of the Secretary, to the application first received. Here, Lamar had a valid permit for that location since 1998. Further, Lamar's permit remained valid at the time of Joyce's application in January 2010. AS the Secretary noted, this alone precluded the issuance of a permit to Joyce, and DOT could have denied Joyce's application for that reason. Sec'y Op. at 5–6.
In addition, we agree with DOT that at the time of its denial of Joyce's permit application on April 28, 2010, DOT's April 8 revocation of Lamar's existing permit had not become final. Lamar had 30 days to request a hearing, which would stay the revocation pending disposition of the hearing. See DOT Ex. 6; R.R. at 74a. Thus, the Secretary reasoned, “At the time Lamar applied for the new permit, it had a valid permit for the sign previously erected because [DOT's] revocation notice was not final.” Sec'y Op. at 6. Consequently, the Secretary did not err or abuse his discretion in determining that the optional preference for the first received application in 67 Pa.Code § 445.6(d)(4) did not apply here.
Moreover, Lamar agreed to relinquish its existing permit in exchange for the issuance of a new permit for the same location, again demonstrating its intent not to abandon the sign location it occupied since 1998. In immediately obtaining a new permit for the same location pursuant to an agreement with DOT, Lamar had no reason to believe it actions resulted in the loss of its vested right to a DOT permit at this location.
For these reasons, the Secretary's determination that the preference in 67 Pa.Code § 445.6(d)(4) for first received applications did not apply here is neither plainly erroneous nor inconsistent with the Act or its regulations. As such, it must be upheld. Penn Adv.; Miller's Smorgasbord.
C. Local Permit
1. Argument
Joyce also contends the Secretary erred in denying its permit application where 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. Citing its Application for Off–Premise Outdoor Advertising Device Permit, Part J (Local Regulations), DOT Form RW–745, Joyce asserts a local permit is a prerequisite for a DOT advertising device permit. See DOT Ex. 3; R.R. at 61a. Here, Section 445–58(B) of the Scranton City Code (zoning regulations relating to signs) requires a permit for the structure at issue. In December 2009, Joyce secured a City permit for a sign at the subject location. See id.; R.R. at 68a. Joyce further asserts its local permit remains valid until July 2013 in accord with development permit extension legislation enacted in 2010.
Joyce further asserts Lamar does not have a valid local permit for the sign permitted by DOT's permit # 04–0289. As such, DOT erred in granting Lamar's permit and in denying Joyce's application.
DOT acknowledges that it may inquire into the existence of and compliance with local sign regulations. See Phila. Outdoor Adver. v. Dep't of Transp., 690 A.2d 789 (Pa.Cmwlth.1997) (DOT acted reasonably in denying sign permit based on applicant's failure to comply with borough's sign regulations). However, jurisdiction to resolve disputes concerning the issuance or denial of local zoning permits vests with the local zoning hearing board. See Section 909.1(a)(3) of the Pennsylvania Municipalities Planning Code (MPC) (zoning hearing board has jurisdiction over appeals from a determination of the zoning officer, including the granting or denial of any permit). Thus, DOT asserts it is without authority to adjudicate the validity of local permits.
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended,53 P.S. § 10909.1(a)(3).
Further, DOT asserts, the status of Lamar's local permit is irrelevant to DOT's denial of Joyce's application. DOT denied Joyce's permit in accord with the 500–foot spacing requirement in Section 105(c)(2)(i) of the OAC Act based on Lamar's DOT permit, not whether Lamar had a valid local permit. Thus, any questions regarding Lamar's local permit are beyond the scope of this appeal.
Alternatively, DOT argues, even if the validity of Lamar's local permit was at issue, the record lacks evidence supporting Joyce's position that Lamar's permit is no longer valid. DOT's August 2010 letter to Lamar seeking clarification that Lamar's local permit remained valid is not substantial evidence of the status of Lamar's local permit. See DOT Ex. 10; R.R. at 83a. In fact, Joyce presented no evidence in this proceeding that Lamar did not have a valid local permit for the location.
DOT further suggests that Joyce should intervene in DOT's separate action initiated by the notice of intent to revoke Lamar's new permit # 04–0289. See DOT Ex. 8; R.R. at 77a–78a. If, in that proceeding, Joyce presents something in writing from the City that Lamar lacks a local permit, DOT will defer to the City's decision and revoke Lamar's permit # 04–0289. Joyce would then be free to apply for a DOT permit because there would be no competing DOT permit for that location.
For its part, Lamar contends that Joyce falsely asserts that Lamar does not have a local permit. In addition, Lamar claims Joyce obtained its local permit by failing to inform the City's zoning officer of the existence of Lamar's valid existing DOT permit. Had Joyce done so at the time of the permit application, the City would not have issued Joyce's permit.
In any event, Lamar joins DOT's argument that the status of Lamar's local permit is irrelevant to the denial of Joyce's application. DOT denied Joyce's application based on the Act's 500–foot spacing requirement between signs. Any questions regarding Lamar's local permit are beyond the scope of DOT's denial.
2. Analysis
The Secretary correctly determined that Lamar's local permit was not at issue in the present case. This appeal concerns DOT's denial of Joyce's permit application based on the 500–foot spacing requirement in Section 105(c)(2)(i) of the OAC Act, 36 P.S. § 2718.105(c)(2)(i) and 67 Pa.Code § 445.4(b)(2)(i) (along the interstate and primary highways, no two signs may be spaced less than 500 feet apart). DOT did not deny Joyce's application based on the existence or validity of local permits. Consequently, the Secretary properly determined the validity of Lamar's local permit was not at issue.
Even assuming, for sake of argument, that the validity of Lamar's local permit was at issue, the record lacks evidence supporting Joyce's position that Lamar's permit is no longer valid. DOT's August 2010 letter to Lamar seeking clarification that Lamar's local permit remained valid is not substantial evidence of the status of Lamar's local permit. Joyce presented no evidence in this proceeding that Lamar did not have a valid local permit for the location.
In any event, a dispute over the validity of the local permits falls within the exclusive jurisdiction of the City's zoning hearing board. Section 909.1(a)(3) of the MPC, 53 P.S. § 10909.1(a)(3). Here, the record indicates that Lamar raised the validity of Joyce's local permit with the City. See DOT Ex. 9; R.R. at 79a–82a. The record, however, does not establish any resolution by the City.
Therefore, Joyce's contention, that DOT erred in granting Lamar a new permit because it lacks a valid local permit for that location, fails.
IV. Conclusion
For the above reasons, we discern no error or abuse of discretion in the Secretary's determination that DOT properly denied Joyce's application for an outdoor advertising device permit under the 500–foot spacing requirement in Section 105(c)(2)(i) of the OAC Act, 36 P.S. § 2718.105(c)(2)(i), because Lamar had a valid DOT advertising device permit for the same location. Accordingly, we affirm.
ORDER
AND NOW, this 18th day of July, 2012, for the reasons stated in the foregoing opinion, the order of the Secretary of the Department of Transportation is AFFIRMED.