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Unpublished Opinion No. 2004-UP-029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.