Jack O'Lantern, Inc., In re, 7957

• Decision Date: 19 June 1978
• Docket Number: No. 7957,7957
• Citation: 118 N.H. 445,387 A.2d 1166
• Parties: In re JACK O'LANTERN, INC.
• Court: New Hampshire Supreme Court

Page 1166

387 A.2d 1166

118 N.H. 445

In re JACK O'LANTERN, INC.

No. 7957.

Supreme Court of New Hampshire.

June 19, 1978.

Stanton E. Tefft and Daniel J. Harkinson, Manchester, for plaintiff.

David H. Souter, Atty. Gen. (James E. Morris, Asst. Atty. Gen., orally), for the State.

DOUGLAS, Justice.

This is an appeal by Jack O'Lantern, Inc., d/b/a Jack O'Lantern Resort, pursuant to RSA 541:6, challenging adverse findings and rulings by the associate highway commissioner. The principal issues relate to whether a certain sign erected by a New Hampshire corporation in Woodstock, New Hampshire constitutes a valid on-premise sign and whether pressure by a federal bureaucrat unduly tainted a State administrative hearing. We reverse.

The Jack O'Lantern Resort, located along route 3 in Woodstock, New Hampshire, was established in 1948. As northward construction of interstate highway 93 continued in the late 1960s and early 1970s, that highway divided the land owned by the Resort, leaving approximately 113 acres west of the turnpike. The western part of the resort did not contain any buildings; none of the primary activity of the resort occurred there. For several years the resort brochure had, however, reflected the fact that guests of the resort could use hiking trails on and around "Mount Pumpkin," located to the west of the interstate highway. Access to the 113 acres is obtained by either crossing under the highway through a culvert or by travelling north on route 3 and doubling back along a right-of-way to the hiking trail area.

In early 1975 the president of the corporation approached the State highway department to determine whether signs might be erected on the western portion of the corporation's land. The highway department had not adopted any rules at that time, nor have they yet adopted rules pursuant to a statutory grant of authority, RSA 249-A:5 IV(b), VI (Supp.1975). See State v. Hutchins, 117 N.H. ---, 380 A.2d 257 (1977). The president of the corporation, Robert Keating, determined to attempt to sell the land. A 728 square foot sign was erected indicating that the land was for sale and that interested parties should apply at the resort.

Certain businesses adjacent to interstate highways may maintain an on-premise sign that states the name and address of the owner and an identification of the services produced or found on the property. No more than one such sign advertising activities conducted on the real property "shall be permitted more than 50 feet from the advertised activity . . . ." RSA 249-A:5 III(c) (Supp.1975). Subsection VI provides that no such sign will be permitted that does not conform to national standards set forth in the Code of Federal Regulations. Federal regulations permit on-premise signs advertising activities that are conducted upon the real property on which the signs are located. 23 C.F.R. § 750.105(a) (1977). Furthermore, no sign may exceed 150 square feet in area except on-premise signs not more than 50 feet from the advertising activity being conducted upon the real property that contains the sign. 23 C.F.R. § 750.108(g) (1977).

After the sign was erected, employees of the department of public works and highways notified the corporation that the sign went too far in advertising land for sale, in part because of a large pumpkin painted on the sign that has always been the logo of the resort. A series of conferences and negotiations ensued, culminating in a hearing on October 17, 1975, before the associate commissioner of the New Hampshire Department of Public Works and Highways. He ruled that the sign advertised an activity not conducted on the property and ordered its removal. Upon Jack O'Lantern's timely request for a rehearing, the order for removal was suspended pending modification of the sign. The sign was changed to substitute "hiking trails" for the words "land for sale," and a further hearing was held on June 30, 1977, before the associate commissioner. On October 5, 1977, he issued findings of fact and another order for removal of the sign. A timely motion for rehearing and appeal was made to the court under RSA 541:6.

At the second hearing the associate commissioner did not doubt that there are hiking trails on the western side of the highway, nor that the nearest hiking trail was less than 35 feet from the sign. Nevertheless, the associate commissioner found that "notwithstanding the sign's reference to 'Hiking Trails', its primary purpose is to advertise the Jack O'Lantern Resort, whose principal business and services are not conducted or offered on the particular parcel of property where the sign is located." The sign was found to be a nuisance within the meaning of RSA 249-A:9 (Supp.1975), and was ordered removed.

The State relies upon Mannone v. Whaland, 118 N.H. ---, 382 A.2d 918 (1978), for the proposition that there must be a showing by Jack O'Lantern that there was no evidence presented to sustain the order. As Mannone pointed out, to meet the burden of proof on appeal from a decision of a State administrative agency the appellant must show that the order appealed from is clearly unreasonable or unlawful. The presumption in favor of the administrative...