City of Myrtle Beach v. SC Department of Transportation

THE STATE OF SOUTH CAROLINA In The Court of Appeals City of Myrtle Beach, Appellant, v. South Carolina Dept. of Transportation, and Topp, Inc. d/b/a Mr. Sub, Respondents. Appeal From Horry County J. Stanton Cross, Jr., Master-in-Equity Unpublished Opinion No. 2004-UP-029 Heard November 6, 2003 – Filed January 16, 2004 AFFIRMED Charles B. Jordan, Jr., of Myrtle Beach, for Appellant. Howell V. Bellamy, Jr. and Rob Shelton, both of Myrtle Beach; John B. McCutcheon, Jr., Mary Ruth Baxter and Arrigo P. Carotti, all of Conway; for Respondents. PER CURIAM: In this declaratory judgment action, the master-in-equity ruled the South Carolina Department of Transportation (SCDOT) was authorized by S.C. Code Ann. § 57-25-190(E) (Supp. 2002) of the Highway Advertising Control Act to relocate a non-conforming sign owned by Topp, Inc, d/b/a Mr. Sub, (Mr. Sub), which absent the statute would lose its grandfathered status under the City of Myrtle Beach’s zoning ordinances upon relocation. The City appeals, arguing SCDOT failed to fully comply with section 57-25-190(E). We affirm. FACTS Mr. Sub is a restaurant located where Broadway and U.S. Highway 17 intersect, in the vicinity of 10th Avenue North in Myrtle Beach. Mr. Sub constructed a freestanding on-site outdoor advertising sign prior to the City passing an ordinance governing the size and placement of outdoor advertising signs. Mr. Sub’s sign became a grandfathered nonconforming use because its height and area are greater than the ordinance allows. According to the ordinance, if the sign is relocated, it loses its grandfathered status. As part of a highway improvement project to widen and realign 10th Avenue North, SCDOT condemned the portion of Mr. Sub’s property that contained the sign and proposed to move the sign. The City filed a declaratory judgment action seeking a ruling that SCDOT did not have the authority to move the sign. It asserted the sign would lose its grandfathered status if moved and SCDOT did not have the authority to violate the City’s zoning ordinances. It also sought an injunction prohibiting SCDOT from relocating the sign. SCDOT answered asserting it had statutory authority to relocate the sign notwithstanding the City’s ordinance. It asked the City be enjoined from interfering with its relocation of the sign. The circuit court granted SCDOT’s motion enjoining the City from enforcing its ordinances and referred the case to the master-in-equity. SCDOT relocated the sign eight feet back from its original location. After a hearing on the merits, the master found that the Highway Advertising Control Act provides SCDOT with express authority to relocate applicable signs, such as the Mr. Sub sign, regardless of any municipal ordinance to the contrary. He held SCDOT fully complied with section 57-25-190(E) in its relocation of the sign. Accordingly, he enjoined the City from interfering with SCDOT’s relocation of the sign. In response to the City’s motion to alter or amend, the master amended his order to state, “SCDOT’s relocation of the sign is in violation of the City’s zoning/sign ordinance.” He denied the remainder of the motion. [1] The City appealed. STANDARD OF REVIEW “When an appeal involves stipulated or undisputed facts, an appellate court is free to review whether the trial court properly applied the law to those facts.” WDW Props. v. City of Sumter, 342 S.C. 6, 10, 535 S.E.2d 631, 632 (2000). A dispute regarding the interpretation of a statute is a matter of law for the court. Stewart v. Richland Mem’l Hosp., 350 S.C. 589, 593, 567 S.E.2d 510, 512 (Ct. App. 2002). LAW/ANALYSIS The City argues the master erred in finding S.C. Code Ann. 57-25-190(E) (Supp. 2002) gave SCDOT authority to move Mr. Sub’s nonconforming sign. We disagree. As part of the Highway Advertising Control Act, S.C. Code Ann. § 57-25-110 et seq. (1991 & Supp. 2002) the general assembly enacted section 57-25-190(E), which provides: Notwithstanding a county or municipal zoning plan, ordinance, or resolution, outdoor advertising signs conforming to [the Highway Advertising Control Act] affected by state highway projects may be relocated . . . to a position which is perpendicular to the right of way of the original sign site, or may be altered so that no portion of the sign overhangs the right of way. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). The words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). The language of the statute must also be read in a sense which harmonizes with its subject matter and accords with its general purpose. Id. “Statutes, as a whole, must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers.” TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998). Furthermore, “[t]he construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.” Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987). The first subsections of S.C. Code Ann. 57-25-190 (Supp. 2002) concern the requirement that SCDOT provide landowners with compensation for the removal of outdoor advertising signs. Subsection (E) provides a mechanism for SCDOT to avoid paying compensation by relocating the sign, even when the relocation would violate local ordinances. Section 57-25-190(E) clearly contemplates allowing the movement of a sign when SCDOT commences road projects that require its removal. The City argues SCDOT was not in strict compliance with the statute and therefore it could not relocate the sign in violation of the City’s ordinances. It asserts that under its interpretation of the statute, the line formed by connecting the two points represented by the original sign site and the relocated position must be perpendicular to the right of way. We find this strained interpretation does not comport with the purpose of the statute. Rather, we agree with SCDOT engineer, Michael Dennis, who testified he considers the face of the sign in determining whether the sign is perpendicular. The trial court’s interpretation of the statute also focused on the location of the face of the sign. Relocating the sign where the sign’s face is perpendicular to same right of way of its original site enables the same traffic to view the sign. Thus, the owner of the sign receives the same benefit as it did from the sign’s original location, eliminating the need for SCDOT to provide the owner with compensation. Dennis testified that before the relocation, the Mr. Sub sign’s face was perpendicular to Highway 17. After the relocation, the sign’s face was still perpendicular to Highway 17. We agree with the trial court that SCDOT fully complied with all statutory provisions concerning the relocation of the Mr. Sub sign. Thus, SCDOT has the right and authority to relocate the Mr. Sub sign to its present location. AFFIRMED. 2 GOOLSBY, HUFF, and BEATTY, JJ., concur. [1] The master also denied Mr. Sub’s request for attorney’s fees. [2] In its Respondent’s brief, Mr. Sub states that its motion for reconsideration of its petitions for fees and costs has been stayed pending this appeal. Mr. Sub then argues fees and costs are warranted under the circumstances and continue to accrue during this appeal. We do not address this contention as it is not properly before this court.