*1 mоst favorable to the cases appellees presenting questions evidence, to show a substantial and the burden is on the appellant an administrative lack of substantial evidence to agency’s support at To decision. 57 Ark. at 941 S.W.2d 455. Bryant, App. decision, establish an absence of substantial evidence to support must demonstrate that the before the admin- proof istrative tribunal was so that fair-minded nеarly persons undisputed Id. The on review is not could not reach its conclusion. whether the would have testimony supported contrary finding Id.; but whether it that was made. Arkansas supports finding Comm’n, Elec. Consumersv. ArkansasPub. Serv. Energy App. 47, 72, 813 S.W.2d 277 (1991).
Affirmed.
Hart, Gladwin, Vaught, Baker, JJ., agree. Roaf, LAMAR v. OUTDOOR ADVERTISING ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT CA 03-411
Court of of Arkansas Appeals
Divisions II and III 26, 2004 delivered Opinion May
283 Pike, E. for Jr., George appellant. Wilson, Counsel; Hurlbut,
Robert L. Chief and BruceP. Staff for Attorney, appellee. Lamar Outdoor Judge. Advertising appeals
Olly Neal, from thе State Commission’s denial of Highway its ap- to erect a billboard 67/167 near plication along Highway Jackson- ville.1 Lamar that the Commission erred in argues denying when the Commission’s decision was appealed Court, to Pulaski Circuit the court erred in to conduct County failing a de novo We affirm in all hearing. respects.
The statutes and
to this case
regulations
were
pertinent
to the federal and state
Beautifi-
promulgаted pursuant
Highway
cation Acts.
the federal
Congress
Beautification
passed
Highway
Act in
for
investment in
purpose
protecting
public
and recreational value of
highways, promoting
safety
public
travel, and
natural
See 23 U.S.C.
preserving
beauty.
131(a)
§
Files v.
(2001);
Arkansas State
&
325 Ark.
Highway Transp. Dep’t,
291,
to,
The Arkansas Beautification like the Federal Highway Act, within the 660-foot permits outdoor-advertising signs param- eter “within those unzoned commercial or industrial areas which be determined may between commission and the by agreement United States See Ark. Code Ann. Secretary Transportation.” 27-74-204(a)(2) 1994). The Arkansas State (Repl. Highway 1 In prior appeals, three we affirmed the applications Commission’sdenial of Lamar’s to erect billboardsat other locations. Lamar Outdoor State & Highway Inc. v. Arkаnsas Advertising, Ark.App. (2003); 72, S.W.3d412 Outdoor Transp. Dep’t, Lamar Inc. v.Arkansas Advertising, (Ark. 2004); App., May No. CA03-412 State & and Lamar Outdoor Highway Transp. Dep’t, (Ark. App., May No. CA03-413 & State Highway Transp. Dep’t, Inc. v.Arkansas Advertising, 2004). *5 with the federal Secretary an entered into agreement
Commission in the that resulted adoption in 1972 of Transportation On Arkansas Highways. Outdoor Advertising For Control Regulations Of business, commercial, or an unzoned defines 1(H)(2) Regulation — — follows: as billboards are area where permitted industrial lot, and used regularly building,рarking the land occupiedby commercial,business,or industrial of a area storage processing on both sidesof within 600feet thereof and that land activity, include: land shallnot The unzoned highway. residentialpurposes. Land usedfor 2. predominantly that formed the basis for Commission’s It was this regulation determined that the denial of Lamar’s Commission application. an did not as to erect a billboard site where Lamar qualify proposed for used area” because it was “unzoned commercial residential purposes. revealed that at the administrative hearing The evidence business, Andrews commercial site was owned aby
proposed Beau- the Commission’s Highway Company. Ingram, Paving Jeff Coordinator, determined the site and tification inspected and 600 the area feet from the right-of-way within highway lot, were two there either sidе of the commercial feet along also of two others. residences and yards Ingram parts as of a entire area had been discovered that the platted part no there had been subdivision in residential although due to in the area since 1979 flooding problems. development filed with the subdivi- a Bill of Assurance further located Ingram for lot would be used which that no except sion plat, provided lot, that nо could be any residential signs displayed purposes; that the Bill certain small or specialized signs; with exception date; it recordation and that for from its thirty years binding successive renewed for ten-year periods would be automatically landowners.2 of the unless by majority changed denied the Commission Following Ingram’s investigation, that the area was Lamar’s on the ground the definition of an unzoned thus did not meet residential and placed lot came to be how the Andrews commercial The record does not reveal subdivision. this
285 Thereafter, held before an admin- area. a commercial hearing who is the head of officer. Both istrative Ingram Larry Long, Section, testified that the Com- the Beautification Commission’s more rule of thumb that if there were mission under a operated area, in an the area would be considered houses than businesses rule, that determined residential. they Applying predominantly it had area was residential because that the subject predominantly four residences to oné business. a ratio of evidence, Lamar an To counter the Commission’s presented letter a civil and environ- Robert Holloway, opinion prepared by that, the mental stated flooding prob- designer. Holloway given area, not be further lеms in the the subdivision could developed residentially. rul-
The administrative officer denied Lamar’s application, area that was that the billboard site was an ing proposed did not as an residential and therefore qualify area. Lamar the administrative unzoned commercial appealed Court, af- to the Pulaski Circuit where it was County finding firmed. of a was then taken to this court by filing timely Appeal notice of aрpeal. first, as it did at the administrative that
Lamar
hearing,
argues
Ark.
Ann.
27-74-204(a)
the Commission
Code
misinterpreted
mean
could not be
that
billboard
1(H)(2)
Regulation
a commercial lot if the area
the lot was
on
surrounding
placed
residential. Lamar contends
so
as the
long
to be
on the commercial lot rather than on one
billboard is
placed
lots,
character of the
of the
the residential
surround-
surrounding
considered. We
lots should not be
disagree.
ing
Issues of
construction are reviewed denovo.
statutory
316,
Holland v.
80 Ark.
(1997);
Nursing
Dep’t of
Inc.,
The Arkansas
Home,
Arkansas Code Annotated section in an that billboards be 1(H)(2) may placed Regulation recognize area, that area as and the defines unzoned commercial regulation lot, land the commercial and its by building parking occupied area, feet thereof on the land within 600 storage, plus processing It is within this entire area that the law both sides of highway.3 is made сlear an a billboard to be erected. This generally permits On illustration in the For Control Outdoor Regulations Advertising Of that an “unzoned commercial area” as Arkansas Highways depicts box, feet either side business being measuring feet back The illustration then from describes highway. area within the box as “where will be Under the terms signs legal.” *7 however, of an area is from Regulation 1(H)(2), being precluded classified as unzoned commerсial if it includes land predominantly used for residential to Lamar’s con- Contrary purposes. proposed struction, the statute and do not a different regulation require if the billboard is on the as commercial lot analysis placed directly area; to a lot in the it is the character of the surrounding opposed considered, entire “boxed” that is area to be of where regardless is billboard in that areа. placed Given state and federal purposes Highway Acts, it Beautification is reasonable to conclude that the Acts where, intended to billboards in areas a com prohibit although exists, mercial use there also exists a residential use. To the statute and as Lamar would interpret regulation suggests mean that a billboard could be on a unzoned placed single commercial lot even if that lot were surrounded resi closely by use, dential which would be at odds with the Acts. purpose We therefore the Commission’s uphold interpretation.
Lamar next even if we the statute argues interpret it, and as the Commission would have the Commission regulation erred in that the area determining question issue, used for residential Unlike the which purposes. previous involved a de novo review of this issue statutory interpretation, Thus, involves a factual the Commission. we by finding employ the standard of review the Administrative Procedure required by Act, as we did in Lamar Outdoor Inc. v. Arkansas State Advertising, 72, 133 & S.W.3d 412 Highway Transp.Dep’t, (2003). App. There, we that our review is directed not toward the recognized circuit court but toward the decision of the because agency parts regulations clarify highway” Other of the that “on both sides of the means on along highway. both sides of the business administrative are better in- agencies equipped by specialization, and sight more flexible through experience, than procedures courts to determine and issues their analyze legal affecting agen- cies. Id. We also observed that our review of administrative decisions is limited in and decisions will be scope, administrative if are substantial upheld they evidence and are not supported by or characterized an abuse of arbitrary, capricious, discretion. Id. valid, Substantial evidence is evidence that is legal, and that a reasonable mind persuasive might accept support conclusion force the mind to pass beyond speculation Williamsv. conjecture. Arkansas State Bd. Physical Therapy, (2003). is not whether the evidence would have but whether it supported contrary finding, would that was made. Seeid. The supрort finding has the burden of that there an is absence of proving substantial evidence. id. See To establish an absence of substantial evidence to the decision the
support must demonstrate that challenging party before the administrative proof tribunal was so undis nearly that fair-minded puted could not reach its conclusion. Id. persons
An administrative decision should be reversed as arbi when it trary is not capricious only rational supportable any *8 basis, not because the court simply would have acted reviewing Moorev. differently. King, S.W.2d 358 (1997). the action party must that such challenging agency’s prove unreasonable, action consideration, was willful and without and with a of the facts or disregard circumstances of the case. Id.
Given the strict standard of review and the great deference accorded to an administrative we agency’s findings, affirm the Commission’s action in this case. in The area use, has more residential use than commercial there two full being residences and of two others as to one commercial parts opposed lot. A use is if it is “most common or “predominate” conspicu Further, ous.” American at 976 ed. the HeritageDictionary (2d 1985). lots in the area are for residential use and served a Bill of platted by Thus, Assurаnce that restricts the area to residential use. we cannot that the Commission had no reasonable say basis for its denial of Lamar’s or that its action was willful and unreasonable in of the facts and circumstances. some evi disregard Certainly, dence was that would a presented support contrary finding, the fact for the last the particular subdivi- twenty-five years, sion has not of residential been capablе supporting development However, due to our is not flooding problems. inquiry appeal whether the evidence have would supported contrary finding, but whether it the that was made. Williams v. supports finding Bd. Arkansas State The evidence in this Physical Therapy, supra. of Commission, case that was made the and supports finding we therefore affirm.
Before this we discuss a matter that is leaving point, troublesome to the and us some concern as dissenting judges gives well. In Act 735 of defined term “land legislature used for residential as follows: predominantly purposes” It (a) is intent and of this section to legislative purpose specifi- define cally a certain term used in the entered into agreement between the State Highway Commission and the of Secretary to the Transportation in this as pursuant authority granted chapter, amended, the term “land рarticularly used for resi- dential as that term is used in purposes” exclusions in enumerating commercial, business, the definition of “unzoned or industrial areas,” in order to the terms of clarify agreement to enable the commission to more ad- effectively efficiently uniformly minister the of this provisions as chapter, implemented by entered into agreement between commission and the Secretary of Transportation.
(b) As used in the entered agreement into between the commission and the of Secretary Transportation pursuant provisions this “land chapter, used residential means purposes” for commercial, those only business, tracts land within an unzoned industrialarea on a or interstate whichare primary highway occupiedby usedas a buildingregularly residenceand thosetracts land principally to thoseresidential adjacent tractswhichareunderthesame as the ownership residentialtractsand whichare usedand maintained actively residential for purposes. Ann. Code 27-74-210 1994) Lamar (Repl. added). (emphasis *9 that we should this definition in argues whether apply determining the land in used for residential question being However, Lamar did not the of this statute purposes. argue application Commission, to the the statute was cited in the briefs filеd in although circuit It court. is an raise to an at the appellant’s duty argument level Commission before it on See Arkansas Health raising appeal.
289 Desiderata, 144, 958 7 In (1998). v. S.W.2d Servs.Agency Desiderata, to a constitutional the court declined consider supreme first the circuit that raised for the time in court the argument occasions, the court has On numerous other supreme proceeding. it reach either constitutiоnal other held that will not arguments, wise, See, that made at the level. Franklin were not administrative e.g., Servs., 468, Ark. v. Arkansas Human 319 Dep’t of that she was denied to review arguments (1995) appellant’s (declining her to a under Ark. Code Ann. due right hearing process not to the adminis- 25-15-208 where such were made arguments Bd., v. Plant Ark. 842 trative ArkansasState 311 tribunal); Wright that 42 to reach “several were S.W.2d (1992) (declining arguments” Barnett, Bev. Div. v. Board); not raised before the Alcоholic Control to to reach (1985) S.W.2d (declining challenge because the was not the two local elections timing argument option The behind rule is the raised before the rationale this if Board). court were to set aside an administrative determination on appellate not to the it the would ground presented agency, usurp agency’s the of the to consider the function deprive agency opportunity matter, make the for its action. its state reasons See ruling, Franklin, Bd., v. Plant ArkansasState supra; Wright supra. case, was never
In the the Commission present given to and rule the consider upon opportunity application note an would have section 27-74-210. We that ruling agency is this case because there been in some particularly important of the statute. Arkansas Code Anno about validity an section states thаt the definition of unzoned 27-74-211(b) tated “shall be determined an between commercial area agreement Thus, the commission and the there Secretary Transportation.” whether action was is a legislative question regarding proper event, In means of an unzoned commercial area. any defining of the to the Commis Lamar did not statute argue sion, rule on There did not its Commission application. cases, fore, in we will not as the court has done like supreme the first time on address Lamar’s for argument appeal. whether circuit court erred issue is remaining a de novo an from conduct failing hearing upon appeal and resolved in This issue was
Commission. fully developed de first where held that a novo was not hearing Lamar’s we appeal, these circumstances. SeeLamar Outdoor Advertising, under required *10 Inc. v. Arkansas State & Highway We thеrefore Transp. Dep’t, supra. affirm that without further discussion. point
Affirmed.
Gladwin, Bird, Crabtree, JJ., agree. Roaf, dissent. Robbins JJ., John B. Robbins, I with the Judge, dissenting. agree majori to the extent ty’s that it opinion affirms the decision of the Court, Pulaski Circuit County which denied a de novo on all judicial issues that had hearing been addressed the State by however, I Commission. Highway that the disagree, Commission’s construction of the Arkansas Beautification Act and Highway regu- lations thereunder promulgated issue, should have been affirmed. The issue, the. before the only Commission was whether the site proposed billboard was on “land appellant’s used for residen- predominantly tial The purposes.” Beautification Act within permits advertising signs a 660-foot with “unzoned parameter commercial or industrial areas” as be determined may between by agreement the Commission and States, the United Ann Sеcretary Code Transportation. 27-74-204(a)(2) (Repl. 1994). Regulation 1(H)(2), which was thereafter, commercial, defined an promulgated business, unzoned or — — industrial area where billboards are as permitted follows: The land occupied by lot, used regularly building, parking commercial, storage business, area of a processing or industrial activity, that land within 600 feet thereof on both sides of the highway. The unzoned land shallnot include: 2. Land used for residentialpurposes. not, however, did regulation define the term “land predomi- used for nantly residential purposes.” The Commission construed the Act and this regulation mean that land is used for residential if purposes there are two residential and the properties of two partial yards residential within 600 feet of the properties proposed qualifying business, and the site is on a lot within a proposed residential subdivision where billboard structures are prohibited. As noted by issues of majority, construction are statutory reviewed de novo. While deference is to the given construction given execution, by with its agency charged we are not construction. as in the bound absolutely agency’s Especially, bar, intent on an issue has been at where the legislative case *11 so to-wit: articulated clearly, this and of section to It thе intent
(a) legislative purpose is a certain term .... define specifically As in the entered into between commis-
(b) agreement used to the of Secretary pursuant provisions sion Transportation used this “land for residential purposes” of chapter, commercial, tracts of land within an unzoned means those only business, or industrial area on a interstate which highway primary used as a are building regularly principаlly occupied tracts land those residential tracts adjacent residence and those to as the residential tracts and which are under same ownership used for residential which are and maintained actively purposes. statute, In Code Ann. 27-74-210 1994). construing any (Repl. to in we it beside other statutes relevant matter subject place and ascribe and effect to be derived from whole. meaning State, 772, 2 to Bush v. S.W.3d 761 Statutes (1999). relating be and in if the same must construed subject together harmony, aid, of the Beautifica- Id. With this construction possible. conclusion, i.e., one that tion Act regulations permit only appel- location not on “land used for lant’s proposed sign residential purposes.” law to statutes and case
Reference precedential de novo con- of our review appellate statutory performance does violate the new issues on struction not raising prohibition We cite authorities in our that were routinely opinions appeal. briefs cited the trial court nor times in the before neither to many have men- and the Commission should us. While Act, the Beautification we are not tioned this 1979 amendment to de novo review of construction foreclosed our statutory I the trial court and Commis- address it. would do so reverse sion. in this
I am to state that Roaf dissent. authorized Judge joins