Eldridge v. South Carolina Department of Transportation

Justice PLEICONES.

I respectfully dissent. Because an intervening landowner separates the Property Between the Roads and the Adjacent Property, I would find that a sign placed on the former would not have constituted an “on-premises identification sign” under the Greenwood County ordinances. Consequently, the Court of Appeals correctly upheld the determination of the special referee that the Property Between the Roads could not be used for identification signs.

In my view, neither Sonoco v. South Carolina Dep’t of Revenue, 378 S.C. 385, 662 S.E.2d 599 (2008), nor case law on municipal annexation are dispositive. The special referee first invoked the word “contiguous” in attempting to determine whether a sign placed on the Property Between the Roads would be considered “on premises” of the Adjacent Property, for purposes of a Greenwood County Regulation. The referee took the term from Young v. South Carolina Dep’t of Highways and Pub. Transp., 287 S.C. 108, 336 S.E.2d 879 (Ct.App.1985), which cited South Carolina Regulation 63-342(Z). The Regulation provided in part:

On-Premise Sign, shall consist of any outdoor sign, display, device, figure, painting, drawing, message, plaque, poster, billboard, or other thing which is designed, intended or used to advertise or inform of the activity taking place on the property where located, and any additional surrounding land which is under lease or is owned in fee simple and is specifically reserved for use by said activity. Land considered for this purpose shall be contiguous with the land occupied by the commercial or industrial activity and shall not be connected by narrow bands or strips of land. The area between the main building and the advertising device must be improved and landscaped in a suitable manner so as to portray a single unit.

25A S.C.Code Ann. Regs. 63-342(Z) (1985).

In my view, the broad definition of “contiguous” developed in annexation statutes and case law is not relevant to and does not comport with the term as it was used in defining an “on-premise” sign. Given that SCDOT holds title to the roadway *555separating the properties rather than a mere easement,4 I would hold that a sign placed on the Property Between the Roads is not an “on-premises identification sign” of any business located on the Adjacent Property.

The dispute over this land began over two decades ago and I would take this opportunity to bring it to a close. I would affirm the Court of Appeals.5

. The Court of Appeals found that because Petitioners did not appeal from Judge Macaulay’s 1996 order, it became the law of the case. Eldridge v. South Carolina Dep't of Transp., Op. No.2007-UP-351 (Ct.App. filed July 11, 2007). The Court of Appeals interpreted the order as holding that SCDOT owns the portion of the land upon which the roads are situated. Id. On certiorari, Petitioners do not challenge the Court of Appeals interpretation of the order and it therefore must be accepted as the law of the case. See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (holding that an unchallenged ruling, right or wrong, is the law of the case).

. See Rule 220(c), SCACR (2008) (appellate court may affirm upon any ground appearing in the Record on Appeal).