Monumedia II, LLC v. Dep't of Transp.

• Decision Date: 04 October 2017
• Docket Number: A17A0647,A17A1127
• Citation: 343 Ga.App. 49,806 S.E.2d 215
• Parties: MONUMEDIA II, LLC v. DEPARTMENT OF TRANSPORTATION. Monumedia II, LLC v. City of Atlanta Board of Zoning Adjustment et al.
• Court: Georgia Court of Appeals

343 Ga.App. 49

806 S.E.2d 215

MONUMEDIA II, LLC

v.DEPARTMENT OF TRANSPORTATION.

Monumedia II, LLC

v.City of Atlanta Board of Zoning Adjustment et al.

A17A0647

A17A1127

Court of Appeals of Georgia.

October 4, 2017

Troutman Sanders, Pete Robinson, Charles F. Palmer, Kevin G. Meeks, for appellant.

Christopher M. Carr, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Mary Jo Volkert, Senior Assistant Attorney General, Ronald J. Freeman, Sr., Assistant Attorney General, for appellee (case no. A17A0647). Cathy Hampton, Susan M. Garrett, Jeffrey S. Haymore, Anamaria Hazard, for appellee (case no. A17A1127).

Dillard, Chief Judge.

In 2013, Monumedia, II LLC ("Monumedia"), installed three signs inside the windows of a building located in the Buckhead area of Atlanta that were visible to traffic on Peachtree Road. Not long after that, the City of Atlanta informed Monumedia that the signs violated City ordinances. And one month later, the Georgia Department of Transportation ("DOT") similarly informed Monumedia that the signs violated the Georgia Outdoor Advertising Control Act ("OACA"), OCGA § 32-6-70 et seq. Monumedia challenged the City's decision before the Board of Zoning Adjustment ("BZA"), and challenged the DOT's decision before an administrative law judge ("ALJ") from the Office of State Administrative Hearings ("OSAH"), but was unsuccessful on both fronts. Monumedia then, separately, sought review of these decisions in the Superior Court of Fulton County, which affirmed the agencies' decisions in both cases.

Monumedia now appeals both decisions, and because these cases arise from the same set of facts, we have consolidated the separate appeals for review. Specifically, in Case No. A17A0647, Monumedia contends that the superior court erred in concluding that OACA regulates signs located inside a building, that its signs can be characterized as "multiple message signs" under the Act, and that the DOT did not bear the burden of showing that an exemption to the permit requirement under the Act was not applicable. In Case No. A17A1127, Monumedia contends that the superior court erred in concluding that the City's sign ordinances prohibited its signs, that the City's violation of the Open Meetings Act did not invalidate the BZA's ruling, and that ex parte contacts between City officials and the BZA did not invalidate the latter's ruling. For the reasons set forth infra, we reverse in both cases.

The facts relevant to these cases are not significantly disputed. In February 2013, Monumedia began installing three light-emitting diode signs inside windows of the Franco building located at 3075 Peachtree Road in the Buckhead area of Atlanta. After obtaining building and electrical permits from the City, Monumedia completed installation of the signs in August 2013 and began using them at that time. Although the City did not require Monumedia to obtain a permit for the signs prior to their installation, on January 15, 2014, the City notified Monumedia that its signs in the Franco building violated the City sign ordinance applicable to that zoning district, and it ordered Monumedia to remove the signs within 15 days or face fines for failure to do so. On February 18, 2014, the DOT similarly notified Monumedia that two of the signs in the Franco building visible to traffic on Peachtree Road violated the OACA and, thus, directed it to remove them.

Monumedia challenged both the City and the DOT's determinations. With regard to the City's determination, Monumedia appealed to the BZA, arguing that the City's relevant sign ordinance did not require permits for signs visible from the outside but located inside a building. On June 5, 2014, the BZA held an evidentiary hearing on the matter, and on June 10, 2014, it issued a letter denying Monumedia's challenge. Subsequently, Monumedia sought judicial review of that decision in the Fulton County Superior Court. But the case was stayed pending Monumedia's simultaneous challenge of the DOT's determination that the signs also violated the OACA.

In the meantime, as noted supra, Monumedia also challenged the DOT's determination that its signs were prohibited, and therefore, the DOT submitted the issue to an OSAH ALJ. On February 16, 2015, the ALJ conducted an evidentiary hearing on the matter, and on November 12, 2015, she issued an initial decision ruling that Monumedia's signs violated the OACA and had to be removed. On January 8, 2016, the DOT issued a final agency decision, adopting the ALJ's ruling. Monumedia then sought judicial review in the Fulton County Superior Court, where its appeal of the BZA decision was pending.

Thereafter, all the parties filed briefs, and on May 19, 2016, the superior court held a hearing on Monumedia's challenge to both the BZA and DOT's rulings. On July 15, 2016, the superior court issued two final orders, affirming the BZA and DOT's decisions prohibiting the signs. Subsequently, Monumedia filed applications for discretionary appeal in both cases, which we granted. These appeals follow.

Case No. A17A0647

We first address Monumedia's challenge to the superior court's ruling affirming the DOT's decision that the signs in question are prohibited by the OACA. In doing so, we note that the Supreme Court of Georgia has held that

judicial review of an administrative decision is a two-step process: because the court reviewing an administrative decision must accept the agency's findings of fact if there is any evidence to support the findings, the court must first determine if there is evidence to support the factual findings; the court then is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence.¹

But importantly, both the superior court and this Court "review conclusions of law de novo."² Bearing these guiding principles in mind, we turn now to Monumedia's specific claims of error in this appeal.

1. Monumedia contends that the superior court erred in concluding that the OACA regulates, and thus prohibits, signs located inside a building. We agree.

Tasked with interpreting statutory language, we necessarily begin our analysis with "familiar and binding canons of construction."³ Indeed, in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."⁴ And toward that end, we must afford the statutory text its plain and ordinary meaning,⁵ consider the text contextually,⁶ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"⁷ and seek to "avoid a construction that makes some language mere surplusage."⁸ In summary, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."⁹

Turning to the statute at issue, in explaining the legislative policy behind the OACA, OCGA § 32-6-70 (a) provides:

The General Assembly declares it to be the policy of this state that the erection or maintenance of outdoor advertising in areas adjacent to the rights of way of roads of the state highway system, which roads are also a part of the interstate and primary systems of highways within the state, shall be regulated in accordance with the terms of this part and the regulations promulgated by the commissioner pursuant thereto and that all outdoor advertising which does not conform to the requirements of this part is a public nuisance.¹⁰

And in defining the types of signs to be regulated, OCGA § 32-6-71 (14) provides:

"Outdoor advertising" or "sign" means any outdoor sign, light, display, device, figure, painting, drawing, message, placard, poster, billboard, or other thing which is designed, intended, or used to advertise or inform, any part of the advertising or information contents of which are visible from any place on the main traveled way of the interstate or primary highway systems.

Construing this statute according to its plain meaning, the word "outdoor" is commonly understood as "[t]hat is done, exists, lives, or is used, out of doors, without the house, or in the open air."¹¹ And applying the rules of English grammar,¹² the term "outdoor" in this statute modifies "sign," as well as all the other enumerated terms. Indeed, as Monumedia's expert in English grammar explained during the hearing before the ALJ, the "word ‘outdoor’ controls [the] whole list, including the phrase ‘other thing.’ " But here, it is undisputed that Monumedia's signs are located inside the Franco building. Given these particular circumstances, Monumedia's signs cannot be characterized as outdoor signs that are subject to regulation or prohibition under the OACA.¹³

Nevertheless, the DOT argues that the adjective "other" immediately preceding the word "thing" in OCGA § 32-6-71 (14) displaces the adjective "outdoor" as a modifier of "thing," and therefore, "other thing" can be construed as including indoor signs. But putting aside the fact that this construction tortures logic and the rules of English grammar, the DOT's attempt to task the term "other" with such heavy lifting runs afoul of the statutory-construction canon "ejusdem generis," which provides:

[W]hen a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis [i.e., of the same kind or class] with the things specifically named, unless, of course, there is something to show that a wider sense was intended.¹⁴

Specifically, the word "other" will generally be read as "other such like," so that "persons or things therein comprised may be read as ejusdem generis with, and not of a quality superior to or different from, those specifically enumerated."¹⁵ Consequently, the phrase "other thing" in OCGA § 32-6-71 (14) is more appropriately construed as referring to other modes of outdoor advertising.¹⁶

Finally, the DOT argues...