On appeal from a Final Decision of the Office of Administrative Law, Docket No. TRP 08228-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
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 ...