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Media v. Pennsylvania Department of Transportation2/17/1999
Argued: November 16, 1998
Martin Media (Martin) has filed petitions for review of two orders of the Department of Transportation (DOT). The first order made final the proposed decision and order (PDO) of a hearing officer affirming DOT's denial of Martin's application for an outdoor advertising permit; the second order denied Martin's petition to file exceptions nunc pro tunc to the hearing officer's PDO.
Martin leased a sign location on the property of Joseph Tlumac, which is located in Mt. Pleasant Township, Westmoreland County (the property). The property is adjacent to the Pennsylvania Turnpike and Tlumac and his wife use the property to store raw materials for their rag rug manufacturing business, known as Rag Woven Rugs. The Tlumacs, on average, keep an inventory of 30 to 40 tons of raw materials on the property, valued at approximately $40,000, which are warehoused in a one-story green metal building (the building) that the Tlumacs' originally constructed as a stable and storage shed for their race horse business. The Tlumacs' building is visible to travelers on the Turnpike and, looking from that highway, the building appears to be a barn or a shed. There is no identification of any kind on the building.
The Tlumacs do not operate their rug business on the property, but rather they manufacture the rugs in the basement of their residence which is located in Acme, Pennsylvania. All the rug looms and business records are kept at the Tlumacs' Acme home. While the business is run from their residence, the Tlumacs sell raw materials to wholesale buyers on the property, and they accept deliveries of materials at the warehouse. The Tlumacs are present on the property a "couple" hours each week, generally in fifteen minute intervals.
On July 1, 1996, Martin filed an application with DOT for an outdoor advertising device permit to erect a sign in an unzoned commercial or industrial area. Such signs are governed by the Outdoor Advertising Control Act of 1971, Act of December 15, 1971, P.L. 596, as amended, 36 P.S. §§2718.101-2718.115 (Act 160). Under Section 4 of Act 160, 36 P.S. §2718.104, an applicant desiring to erect a sign on unzoned property along the main highways of the Commonwealth must show that the proposed sign is to be located in a commercial or industrial area. On October 15, 1996, DOT denied Martin's application, because (1) it did not establish that commercial or industrial activity was visible on the property to travelers on the Turnpike, and (2) the building is not contiguous to the commercial activity at the Tlumacs' residence.
Martin appealed DOT's decision to deny their application, and a hearing was conducted by a DOT hearing officer. On December 24, 1997, the hearing officer issued a proposed decision and order, which affirmed DOT's decision to deny Martin's application. The hearing officer accepted DOT's interpretation that, to show that the property was a commercial area for purposes of Act 160, the building had to be recognized as commercial by the travelling public. The hearing officer found that the building did not appear to be a warehouse or commercial structure to the public, but instead looked to passers-by like a barn "set in a meadow next to a grove of trees." (Proposed Opinion at 5.) Accordingly, the hearing officer concluded that DOT correctly denied the application.
Martin did not file exceptions to the PDO within 30 days of its December 24, 1997 mailing date, and on February 3, 1998, the hearing officer issued an order making the proposed decision and order final. By letter dated February 4, 1998, Martin filed a "Motion to File Exceptions Nunc Pro Tunc," along with attached exceptions and a supporting br
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