Martin Media v. Department of Transportation

SILVESTRI, Senior Judge,

dissenting.

Because, contrary to the majority, I would reverse the Department of Transportation’s (DOT) denial of Martin Media’s application for an outdoor advertising permit, I dissent.

While it is recognized that an agency’s interpretation and application of a regulatory statute must be afforded considerable weight and deference by a reviewing court, it is equally true that where the agency’s interpretation of its statute is clearly erroneous or is inconsistent with the intent or purpose of the statute, it must be disregarded by this Court. Popowsky v. Pennsylvania Public Utility Commission, 669 A.2d 1029, 1044 (Pa.Cmwlth.1995), petition for allowance of ap*568peal granted in part and denied in part, 545 Pa. 657-58, 680 A.2d 1165 (1996).

The majority relies on Popowsky as support for the proposition that this Court should give an administrative agency’s interpretation of a statute deference, and concludes that here, because DOT’s interpretation regarding where the beginning point of measure should be for purposes of Section 5(e)(2)(i) of the Outdoor Advertising Control Act of 1971(Act)1 is not clearly erroneous we should affirm its interpretation. However, it is noted that the majority fails to point out in its opinion that in Popowsky this Court stated that such deference is particularly relevant where the statutory scheme is technically complex and its application requires the agency’s expertise, or where the statutory language is ambiguous and unclear regarding its application. See Popowsky, 669 A.2d at 1046. Here, the statutory and regulatory provisions are not technically complex, nor is any expertise required to ascertain the meaning of said provisions.2 Where, the determination of the meaning of the words and phrases in a statute are neither technically complex nor require expertise, such meaning historically has been the function of the courts to ascertain and carry out the legitimate function of the legislature.

Section 105(c)(2)(i) of the Act, 36 P.S. § 2718.105(c)(2)(i), as herein relevant, provides:

(2) Spacing of signs:
(i) Along the interstate system and limited access highways on the primary system, no two sign structures shall be spaced less than five hundred feet apart; and outside the boundaries of cities of all classes and boroughs, no structure may be erected adjacent to or within five hundred feet of an interchange ..., measured along the interstate or limited access primary from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.

The foregoing statutory provision provides that no structure may be erected within 500 feet of an interchange. The 500 feet is measured along the limited access primary from, (a) the beginning of ... pavement widening at the ... entrance to the main-traveled way; or (b) the ending of pavement widening at the exit from the main-traveled way. Here, it is undisputed that the interchange involved is an exit interchange.

The foregoing words and phrases in the Act are clear and unambiguous and mean when a vehicle enters upon an exit ramp no part of which abuts or is part of the main-traveled way of the limited access highway, that is where the point measurement begins for purposes of determining the 500 foot distance to a proposed sign. That point is at the beginning of the neutral area identified in Figure 1, attached to the majority opinion.

The error presented by DOT’s beginning point of measure is that there is neither the “ending of pavement widening” nor “an exit” ramp at such point. To the contrary, at DOT’s beginning point of measure, there is only an area of concrete in the berm containing concrete rumble strips; importantly, there is no exit from the main-traveled way at such concrete area in the berm.

For purposes of Section 105(c)(2)(i) of the Act, both the terms “exit” and “entrance” must be read together with “widening” of the highway—as to an entrance, the point of measurement is to start at the beginning of the widening of the ramp; as to an exit, the point of measurement is to start from the end of the pavement widening. There is no question that the Act contemplates the beginning or ending of pavement widening only at an entrance or exit ramp.

Based on the foregoing, I would hold, contrary to the majority, that the Act requires that the beginning point of measurement, for purposes of determining the distance to a proposed sign, is at the beginning of the neutral area created by the divergence of the exit ramp and the main-traveled way. The beginning point of measurement established *569by DOT is well beyond the point at which vehicles exit from the main-traveled way, beyond the neutral area, and beyond the interchange. There is no support either in the record or in the law for DOT’s determination and the majority’s affirmance thereof.

Accordingly, I would vacate the order of DOT denying Martin’s application for an outdoor advertising permit and remand with directions that DOT issue said permit.

. Act of December 15, 1971, P.L. 596, as amended, 36 P.S. §§ 2718.101—2718.115.

. It is noted that the language of 67 Pa.Code § 445.4(b)(2)(i) is identical to the statutory language at issue here.