Opinion
45787 Record No. 860094
November 18, 1988
Present: Carrico, C.J., Compton, Stephenson, Russell, and Thomas, JJ., and Gordon and Harman, Retired Justices
A billboard which is "near the edge" of an interstate highway, but separated from the highway by a city street, is "adjacent to" the highway and, therefore, regulated by Code Sec. 33.1-370, and the trial court's injunction barring removal of the billboard is vacated.
Statutory Construction — Code Sec. 33.1-370 — Interstate Highways — Billboards
Plaintiff owns a billboard located 123.31 feet from the nearest edge of the right-of-way of Interstate Highway 664 and visible from it, but separated from the highway by a city street. Code Sec. 33.1-370 provides that "no sign or advertisement adjacent to any interstate or federal-aid primary highway shall be erected, maintained, or displayed which is visible from the main-traveled way within 660 ' of the nearest edge of the right-of-way." The billboard owner brought suit against the State Highway and Transportation Commissioner of Virginia seeking declaratory and injunctive relief, alleging that its billboard is not regulated by Code Sec. 33.1-370, because it is not "adjacent to" the interstate. After an ore tenus hearing, the trial court enjoined the Commissioner from removing the billboard. The Commissioner appeals.
1. The General Assembly's policy, purpose, and intent in regulating outdoor advertising is set forth in Code Sec. 33.1-351(a), which is part of the "Outdoor Advertising in Sight of Public Highways" chapter; the purposes include safety, convenience and enjoyment of travel on and protection of the investment in highways within the Commonwealth, and concern for their natural scenic beauty.
2. Code Sec. 33.1-378 provides that Code Sec. 33.1-351 through -378 must be liberally construed, with emphasis on the effective accomplishment of the purposes stated therein.
3. Code Sec. 33.1-351, which defines many of the terms in this chapter of legislation, contains no definition of "adjacent to", as used in the 1976 amendment to Sec. 33.1-370; other sources clearly differentiate "adjacent" from "adjoining" and "contiguous."
4. "Contiguous" is not the primary meaning of "adjacent," and to give it such primary meaning would violate the directive in Code Sec. 33.1-378 that the outdoor advertising statute be liberally construed "with a view to the effective accomplishment" of the purposes and intents of the General Assembly.
5. The billboard is adjacent to the interstate and is regulated by Code Sec. 33.1-370. The judgment of the trial court is therefore reversed, the injunction vacated, and final judgment entered for the Commissioner.
Appeal from a judgment of the Circuit Court of the City of Newport News. Hon. Douglas M. Smith, judge presiding.
Reversed and final judgment.
Richard L. Walton, Jr., Senior Assistant Attorney General (Mary Sue Terry, Attorney General; Walter A. McFarlane, Deputy Attorney General, on brief), for appellant.
Stephen E. Noona (Hunter W. Sims, Jr.; Albert H. Poole; Kaufman Canoles, P.C., on brief), for appellee.
This appeal involves the application of Code Sec. 33.1-370, which provides in pertinent part that "no sign or advertisement adjacent to any interstate or federal-aid primary highway shall be erected, maintained, or displayed which is visible from the main-traveled way within 660 ' of the nearest edge of the right-of-way." (Emphasis added.) The narrow issue is whether a billboard located 123.31 feet from the nearest edge of an interstate highway, but separated from the highway by a city street, is "adjacent to" the highway within the meaning of Code Sec. 33.1-370.
Creative Displays of Norfolk, Ltd. (Creative), which owns and displays the billboard at issue, brought suit against the State Highway and Transportation Commissioner of Virginia (the Commissioner) seeking declaratory and injunctive relief. In its motion, Creative alleged that its billboard is not regulated by Code Sec. 33.1-370 because the billboard is not "adjacent to" Interstate Highway 664. Following an ore tenus hearing, the trial court ruled in Creative's favor. Accordingly, the court enjoined the Commissioner from removing the billboard, and the Commissioner appeals.
The relevant facts are undisputed. Creative's billboard is 12 feet by 25 feet and is located at the intersection of 39th Street and Acorn Avenue in the City of Newport News. The billboard is situated on the south side of 39th Street and on the east side of Acorn Avenue. Thirty-ninth Street runs virtually parallel to Interstate 664 and lies between the billboard and the interstate. The billboard is 123.31 feet from the nearest edge of the right-of-way of the interstate and is visible from the main-traveled way of the highway.
[1-2] Chapter 7 of Title 33.1 is entitled "Outdoor Advertising in Sight of Public Highways." The General Assembly's policy, purpose, and intent respecting the regulation of outdoor advertising is set forth in Code Sec. 33.1-351(a):
In order to promote the safety, convenience and enjoyment of travel on and protection of the public investment in highways within this Commonwealth, to attract tourists and promote the prosperity, economic well-being and general welfare of the Commonwealth, and to preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas, the General Assembly declares it to be the policy of this Commonwealth that the erection and maintenance of outdoor advertising in areas adjacent to the rights-of-way of the highways within this Commonwealth shall be regulated in accordance with the terms of this article and regulations promulgated by the State Highway and Transportation Commission pursuant thereto.
(Emphasis added.) Code Sec. 33.1-378 provides that Code Sections 33.1-351 through -378 "shall be liberally construed with a view to the effective accomplishment of its purposes."
Creative contends that its billboard is not regulated by Code Sec. 33.1-370 because it is not "adjacent to" Interstate 664. This is so, Creative argues, because 39th Street lies between the billboard and the interstate. To support its contention, Creative points to the fact that in 1976 the General Assembly amended Code Sec. 33.1-370 by adding the words "adjacent to." Acts 1976, c. 14. Creative asserts that the General Assembly would not have added the words if it had not "meant for them to have meaning."
Although Code Sec. 33.1-351 contains the definition of numerous words and phrases, it does not define "adjacent." Thus, we must look to other sources for a definition.
Black's Law Dictionary 38 (5th Ed.1979) defines "adjacent" as "[l]ying near or close to; sometimes, contiguous; neighboring. Adjacent implies that the two objects are not widely separated, though they may not actually touch . . . while adjoining imports that they are so joined or united to each other that no third object intervenes." The " 'natural and primary meaning of [adjacent] is, near to or neighboring. It is not inconsistent with the idea of something intervening.' " Southern Ry. Co. v. Southgate, 149 Va. 683, 687, 140 S.E. 661, 662 (1927).
The primary meaning of "contiguous," on the other hand, is " 'in actual contact' or 'touching.' " Holston S. P. Co. v. Campbell, Trustee, et al., 89 Va. 396, 398, 16 S.E. 274, 274 (1892). "It is not synonymous with 'adjacent,' although sometimes used in that sense, and vice versa.'What is adjacent . . . may be separated by the intervention of some other object; what is contiguous must touch on one side.' " Id.
Thus, although "adjacent" sometimes is used to mean "contiguous," this is not its primary meaning. We need not speculate why the General Assembly added to Code Sec. 33.1-370 the words "adjacent to." We are convinced, however, that if we were to give "adjacent" its secondary meaning and thereby reach the conclusion urged by Creative, we would fail to construe the outdoor advertising statute "liberally. . . with a view to the effective accomplishment" of the purposes and intent of the General Assembly as stated in Code Sec. 33.1-351(a).
We conclude, therefore, that Creative's billboard is adjacent to Interstate 664 and is, therefore, regulated by Code Sec. 33.1-370. Accordingly, we will reverse the judgment of the trial court, vacate the injunction, and enter final judgment for the Commissioner.
Reversed and final judgment.