Charleston Television, Inc. v. South Carolina Budget and Control Bd., 1210

• Decision Date: 19 January 1988
• Docket Number: No. 1210,1210
• Citation: 373 S.E.2d 892,296 S.C. 444
• Court: South Carolina Court of Appeals
• Parties: CHARLESTON TELEVISION, INC., Respondent, v. SOUTH CAROLINA BUDGET AND CONTROL BOARD, South Carolina Educational Television, and Tall Tower, Inc., Appellants. . Heard

Page 892

373 S.E.2d 892

296 S.C. 444

CHARLESTON TELEVISION, INC., Respondent, v. SOUTH CAROLINA BUDGET AND CONTROL BOARD, South Carolina Educational Television, and Tall Tower, Inc., Appellants.

No. 1210.

Court of Appeals of South Carolina.

Heard Jan. 19, 1988.

Decided Aug. 8, 1988.

T. Travis Medlock, Atty. Gen., Joseph D. Shine, Chief Deputy Atty. Gen., Charles W. Gambrell, Jr., Asst. Atty. Gen., Samuel L. Wilkins, Staff Attorney, D. Reece Williams, III, of Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford, M. Elizabeth Crun, of McNair Law Firm, P.A., Columbia, and Robert L. Clement, Jr., of Young, Clement, Rivers & Tisdale, Charleston, for appellants.

Dwight F. Drake, Williams C. Hubbard and Barbara H. McArthur, of Nelson, Mullins, Riley & Scarborough, and Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, for respondent.

GARDNER, Judge:

The appealed order was the result of an appeal taken under § 1-23-150, Code of Laws of South Carolina (1976), as amended, and held that the regulations of the South Carolina Budget and Control Board (the Board) do not comply with § 11-35-1590, Code of Laws of South Carolina (1976), as amended, and that a lease hereinafter described awarded by South Carolina Educational Television Commission (SCETV) to Tall Tower, Inc., (Tall Tower) is null and void as not having been awarded and approved in conformance with statutory law. We reverse and remand. The result of this case hinges upon this Court's interpretation of the following statutes quoted in pertinent part with the identification of the corresponding sections of the Code of Laws of South Carolina (1976), as amended:

§ 11-35-1510. Methods of source selection.

Unless otherwise provided by law, all state contracts shall be awarded by competitive sealed bidding, pursuant to § 11-35-1520, except as provided in: [Emphasis ours.]

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(10) Section 11-35-1590 (Leasing of Real Property for Governmental Bodies);....

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§ 11-35-1590. Leasing of real property for governmental bodies.

(1) Designation of Board as Single Central Broker. The board is hereby designated as the single central broker for the leasing of real property for governmental bodies. No governmental body shall enter into any lease agreement or renew any existing lease except in accordance with the provisions of this Section.

(2) Notification as to Need When State-Owned Property is Unavailable. When any governmental body needs to acquire real property for its operations or any part thereof and state-owned property is not available, it shall notify the Division of General Services of its requirement on rental request forms prepared by the division. Such forms shall indicate the amount and location of space desired, the purpose for which it shall be used, the proposed date of occupancy and such other information as the division may require.

Upon receipt of any such request, the division shall conduct an investigation of available rental space which would adequately meet the governmental body's requirements, including specific locations which may be suggested and preferred by the governmental body concerned. When suitable space has been located which the governmental body and the division agree meets necessary requirements and standards for state leasing as prescribed in regulations of the board as provided for in subsection (3) of this Section, the division shall give its written approval to the governmental body to enter into a lease agreement. In the event the governmental body and the division fail to reach agreement with regard to the appropriate property for leasing, the controversy shall be referred to the board which shall make a final determination of the matter. All proposed lease renewals shall be submitted to the division by the time specified by the division. (Emphasis ours.)

(3) Promulgation of Regulations. The board shall promulgate regulations to implement the provisions of this Section which shall include:

(a) Procedures for governmental bodies to apply for rental space.

(b) Flexible cost standards for rental space.

(c) Procedures for competitive bidding ¹ where feasible. (Emphasis ours.)

(The conclusion we reach, and, we think, a proper analysis of this case, is the result Additionally, S.C.Code Regs. 19-445.2120 (1976) of the Budget and Control Board (the Board) is most relevant because the question of whether this regulation exceeded the authority of the Board is a question which we address but which was not expressly addressed by the appealed order. The regulation provides:

of a synthesis of the above-emphasized portions of the statute.)

19-445.2120 Lease and/or Rental of Office Space and Other Real Property.

A. Lease of Non-State-owned Real Property.

No governmental body shall contract for the lease, rental, or use of non-State-owned real property without approval of the Division of General Services, except as specified in Subsection C. Requests shall be directed to the Division of General Services, Real Property Management Section. The Division of General Services shall negotiate all leases of non-State-owned real property unless the governmental body has been certified by the Materials Management Office.

In addition to the above statutes and Reg. 19-445.2120 we hold that § 1-23-126, Code of Laws of South Carolina (1976), as amended, is applicable to this decision; this statute provides:

§ 1-23-126. Petition requesting promulgation, amendment or repeal of regulation.

An interested person may petition an agency in writing requesting the promulgation, amendment or repeal of a regulation. Within thirty days after submission of such petition, the agency shall either deny the petition in writing (stating its reasons for the denial) or shall initiate the action in such petition.

This action was brought under § 1-23-150, Code of Laws of South Carolina (1976), as amended; this statute provides:

§ 1-23-150. Appeals contesting authority of agency to promulgate regulation.

(a) Any person may petition an agency in writing for a declaratory ruling as to the applicability of any regulation of the agency or the authority of the agency to promulgate a particular regulation. The agency shall, within thirty days after receipt of such petition, issue a declaratory ruling thereon.

(b) After compliance with the provisions of paragraph (a) of this section, any person affected by the provisions of any regulation of an agency may petition the Circuit Court for a declaratory judgment and/or injunctive relief if it is alleged that the regulation or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff or that the regulation exceeds the regulatory authority of the agency. The agency shall be made a party to the action. [Emphasis ours.]

With the above statutes in mind, we review the facts of this case and the related case of Tall Tower, Inc. v. South Carolina Procurement Review Panel, 294 S.C. 225, 363 S.E.2d 683 (1987).

The cases arise from the long-standing efforts and desires of ETV to have its Charleston television station broadcast antenna located on a 2,000-foot television tower, the maximum height allowable under federal regulations, and much higher than any existing tower in the Charleston area. In late 1966 and early 1967, the three commercial television stations in Charleston, WCSC (Tall Tower and Channel 5), WCBD (Media General or Charleston Television and Channel 2) and WCIV, Inc. (Channel 4), entered into a joint venture agreement to construct a 2,000-foot tower in the Charleston area. In 1969, ETV became a joint venturer with the three stations but later withdrew and participated only as a potential lessee of the tall tower venture of the three commercial stations. From the time of the initial joint venture agreement until July 1985, the only person The joint venture agreement eventually was abandoned. In January 1984, Tall Tower proposed that it construct the tower and lease broadcast antenna space on the tower to ETV and the other two commercial stations, including Charleston Television. From January 1984 to June 1985, Tall Tower and Charleston Television had extensive negotiations regarding the lease of antenna space on the 2,000-foot tower to be built on property which was jointly owned by the two parties. Tall Tower also negotiated during that period with ETV and the other commercial station for lease of space. After an exchange of letters between Tall Tower and Charleston Television, both of these parties determined that each would proceed with construction of their respective 2,000-foot tower projects.

                or persons or legal entity known attempting to build a 2,000-foot television tower in the Charleston area was this joint venture.   Throughout this period, much negotiation took place among ETV, Tall Tower, Charleston Television and WCIV, Inc., regarding the construction of a 2,000-foot television tower on a joint venture basis.   It took years of litigation to obtain the appropriate Federal Communications Commission and Federal Aviation Administration licenses and approvals for a tower of this height.   This litigation was completed on May 17, 1985, and approval of the construction of the 2,000-foot tower was received
                

From that point forward, the web of this litigation began to be woven.

In the 1985-1986 General Appropriations Bill, ETV was allocated funds to lease space on a 2,000-foot tower in Charleston. In June 1985, ETV, in consultation with the Attorney General's Office and the Property Management Office of the Budget and Control Board, began specific negotiations with Tall Tower to lease space on its 2,000-foot tower. These negotiations continued through the fall of 1985.

On August 5, 1985, after learning that Charleston Television had determined to build a second 2,000-foot tower in the Charleston area, the Assistant Attorney General representing ETV contacted Charleston Television's...