Appellant The Lamar Company L.L.C. and appellee Whiteway Neon-Ad, a division of the Levin Industries, both own outdoor advertising signs located along I-85 in the City of Atlanta, Fulton County. Both signs, which are located within approximately 1200 feet of each other, have been issued outdoor advertising permits by the Georgia Department of Transportation “GDOT”, the state agency charged with the regulation of outdoor advertising. OCGA § 32-6-90. As more fully set forth below, both Lamar Company and Whiteway have applied for permits to display multiple messages on their signs. However, because OCGA § 32-6-75 c 1 C provides that multiple message signs on the same side of the highway must be at least five thousand feet apart, only one of the two companies may be issued a multiple message permit. The relevant facts, most of which were stipulated, show that in May of 2005, Whiteway wrote the GDOT requesting approval to upgrade its existing sign by installing an approximately five feet by twenty feet electronic LED message center. Whiteway specifically stated that the change was being requested “with the understanding that the message will not change more than once per twenty-four hours,”1 and the GDOT granted the request based on its determination that the change did not require any modification to the existing permit provided that condition was met.
In September 2006, Whiteway submitted an application seeking to revise its existing permit to an electronic multiple message permit. The GDOT granted the application, noting that “all revisions must be completed prior to the one year expiration date. In the event the revisions are not completed within the time allotted, the permit will revert back to the original sign configuration prior to the approved revision.” It is undisputed that the reprogramming required to make the sign function as a multi-message sign was completed prior to the one year deadline, but the sign continued to change messages only once a day until approximately three weeks after the expiration of the deadline for revisions under the new permit.2
