Appalachian Poster Advertising Co., Inc. v. Harrington

460 S.E.2d 887, 120 N.C. App. 72, 1995 N.C. App. LEXIS 700

• Court: Court of Appeals of North Carolina
• Decided: September 5, 1995
• Docket: 9410SC477
• Status: Published

Opinions

GREENE, Judge.

Appalachian Poster Advertising Company, Inc. (petitioner) appeals from the trial court’s 13 December 1993 decision to affirm the North Carolina Department of Transportation’s (the Department) revocation of a roadside sign permit issued to petitioner.

The undisputed facts are as follows: On 13 June 1973, the Department issued an outdoor advertising permit to petitioner for a “nonconforming, pre-existing sign” adjacent to Interstate 40 in McDowell County. The sign is located in a noncommercial/ nonindustrial area within 660 feet of the interstate and was in existence prior to enactment of the Outdoor Advertising Control Act (the OACA). Petitioner’s employees removed the sign face, repainted it, and altered it to conform with the requirements of a new advertiser, Western Steer/Econolodge, in September 1985. Originally, the sign was 35 feet long and 20 feet high for a total of 700 square feet.'The 1985 modification changed the sign to 47.5 feet long and 14 feet high for a total of 665 square feet. Petitioner added new cross braces to the sign and replaced the support poles which were showing signs of age and wind stress. In addition, petitioner moved the sign back approximately three to five feet.

On 28 September 1985, the district engineer for the Department observed the new alterations to the sign. The engineer inspected the sign and discovered: (1) the structure was five feet farther from the highway than the permit had originally allowed; (2) the new poles were three feet taller than the original poles; and (3) the message on the sign’s face had completely changed.

The district engineer notified petitioner on 8 October 1985 that the sign permit had been revoked because the alterations of the structure “are in violation of the Outdoor Advertising Control Act and rules and regulations promulgated thereto.” Petitioner appealed the revocation to the Secretary of the Department, who affirmed the revocation by letter dated 16 December 1985. In the letter, the Secretary stated that regulations “19A NCAC 2E.0210(6) & (12),” promulgated by the Department pursuant to the OACA, provided that the district engineer shall revoke a sign permit for the rebuilding of a sign. Petitioner petitioned the Wake County Superior Court pursuant to N.C. Gen. Stat. § 136-134.1 for review of the decision. By order dated 2 July 1987, the trial court upheld the decision of the Secretary. Petitioner appealed. In Appalachian Poster Advertising Co., Inc. v. Harrington, 89 N.C. App. 476, 366 S.E.2d 705 (1988), we remanded the case to the trial court for more specific findings of fact and conclusions of law. Without hearing additional arguments or evidence, the trial court entered an order on 13 December 1993 determining that: (1) petitioner replaced the original sign with a new sign which was not substantially the same as the original sign; (2) the Department had properly revoked petitioner’s outdoor advertising permit pursuant to the Outdoor Advertising Control Act; (3) the Department had the authority to revoke the permit; and (4) the regulations upon which the revocation was based were not unconstitutional. Petitioner appeals from the 1993 judgment.-

The dispositive issue presented is whether the Department has the authority to promulgate any regulation with respect to petitioner’s particular sign (displaying an advertisement for Western Steer/Econolodge) which is within 660 feet of an interstate, is located in a noncommercial/nonindustrial area, and is undisputed to be a nonconforming sign which was in existence prior to the enactment of the OACA.

Assuming petitioner’s rebuilding of the sign violated the Department’s regulations, we agree with petitioner that the regulations did not apply to petitioner’s sign. A study of N.C. Gen. Stat. § 136-130, the only source of authority for the enactment of rules and regulations with respect to outdoor signs, reveals that the petitioner’s sign in question is not included within those signs that can be regulated by the Department. Section 136-130 provides:

The Department of Transportation is authorized to promulgate rules and regulations in the form of ordinances governing:

(1) The erection and maintenance of outdoor advertising permitted in G.S. 136-129,

(2) The erection and maintenance of outdoor advertising permitted in G.S. 136-129.1,

(2a) The erection and maintenance of outdoor advertising permitted in G.S. 136-129.2,

(3) The specific requirements and procedures for obtaining a permit for outdoor advertising as required in G.S. 136-133 and for the administrative procedures for appealing a decision at the agency level to refuse to grant or in revoking a permit previously issued, and

(4) The administrative procedures for appealing a decision at the agency level to declare any outdoor advertising illegal and a nuisance as pursuant to G.S. 136-134, as may be necessary to carry out the policy of the State declared in this Article.

N.C.G.S. § 136-130 (1993). Petitioner’s sign does not fall within Section 136-129.1 because it is within 660 feet of 1-40 and does not fall within Section 136-129.2 because it is not adjacent to scenic highways, State and National Parks, or historic areas. The sign was not erected or maintained in violation of state law and therefore is not illegal. N.C.G.S. § 136-128(0.2) (1993) (defining illegal). Therefore, the Department has no authority to promulgate rules applying to petitioner’s sign under Sections 136-130(2), 136-130(2a) or 136-130(4).

Section 136-129 provides the following:

No outdoor advertising shall be erected or maintained within 660 feet of the nearest edge of the right-of-way of the interstate or primary highways in this State so as to be visible from the main-traveled way thereof after the effective date of this Article as determined by G.S. 136-140, except the following:

(1) Directional and other official signs and notices, which signs and notices shall include those authorized and permitted by Chapter 136 of the General Statutes, which include but are not limited to official signs and notices pertaining to natural wonders, scenic and historic attractions and signs erected and maintained by a public utility, electric or telephone membership corporation, or municipality for the purpose of giving warning of or information as to the location of an underground cable, pipeline or other installation.

(2) Outdoor advertising which advertises the sale or lease of property upon which it is located.

(2a) Outdoor advertising which advertises the sale of any fruit or vegetable crop by the grower at a roadside stand or by having the purchaser pick the crop on the property on which the crop is grown provided ....

(3) Outdoor advertising which advertises activities conducted on the property upon which it is located.

(4) Outdoor advertising, in conformity with the rules and regulations promulgated by the Department of Transportation, located in areas which are zoned industrial or commercial under authority of State law.

(5) Outdoor advertising, in conformity with the rules and regulations promulgated by the Department of Transportation, located in unzoned commercial or industrial areas.

N.C.G.S. § 136-129 (1993). This section specifies the signs which are permitted to be erected and maintained in North Carolina and petitioner’s sign is not included among those permitted. Thus, the Department had no authority to promulgate rules or regulations that apply to petitioner’s sign under Section 136-130(1).

N.C. Gen. Stat. § 136-133 provides the following:

No person shall erect or maintain any outdoor advertising within 660 feet of the nearest edge of the right-of-way of the interstate or primary highway system, except those allowed under G.S. 136-129, subdivisions (2) and (3) in this Article, or beyond 660 feet of the nearest edge of the right-of-way of the interstate or primary highway system, except those allowed under G.S. 136-129.1, subdivisions (2) and (3), without first obtaining a permit from the Department of Transportation .... The permit shall be valid until revoked for nonconformance with this Article or rules and regulations promulgated by the Department....

N.C.G.S. § 136-133 (1993). This section requires a person seeking to erect or maintain some of the outdoor advertising signs permitted under Section 130-129 to receive a permit, from the Department, before construction. Because petitioner’s sign does not fall within any of the signs permitted to be erected and maintained under Section 130-129, Section 136-133 does not apply to petitioner’s- sign. Therefore, Section 136-130(3) does not give the Department the authority to promulgate rules governing petitioner’s sign.¹

If the Department cannot apply the rules or regulations it promulgates to signs such as petitioner’s which is a nonconforming, preexisting sign, the Department argues “any permit holder in a zoned agricultural/residential area with a nonconforming or ‘grandfathered’ sign would have carte blanche to violate all outdoor advertising regulations.” The OACA, however, specifically instructs the Department on how to deal with such signs:

The Department of Transportation is authorized to acquire by purchase, gift, or condemnation all outdoor advertising and all property rights pertaining thereto which are prohibited under the provisions of G.S. 136-129, 136-129.1 or 136-129.2, provided such outdoor advertising is in lawful existence on the effective date of this Article as determined by G.S. 136-140, or provided that it is lawfully erected after the effective date of this Article as determined by G.S. 136-140.

N.C.G.S. § 136-131 (1993). This section also provides for just compensation to be paid to the owner of the outdoor advertising sign. Id. Therefore, with respect to nonconforming, pre-existing advertising signs, this section and the corresponding federal act, 23 U.S.C. § 131, specifically require cash compensation to sign owners whose signs are removed pursuant to those acts. Givens v. Town of Nags Head, 58 N.C. App. 697, 700-01, 294 S.E.2d 388, 390, cert. denied, 307 N.C. 127, 297 S.E.2d 400 (1982).

Because “[t]he agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislative grant of authority,” In re Community Assoc., 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980), the Department only had the authority under the OACA “to acquire by purchase, gift, or condemnation” petitioner’s nonconforming, pre-existing sign, and did not have the authority to require removal of petitioner’s billboard pursuant to Section 136-130 without just compensation. For these reasons, the decision of the trial court to affirm the Department’s revocation of petitioner’s permit is reversed. Because of our decision on this issue in favor of petitioner, we need not address petitioner’s remaining arguments.

Reversed.

Judge COZORT concurs. Judge LEWIS dissents.

1 . We reject the argument, adopted by the dissent, that the “petitioner essentially erected a new sign” when it repaired the sign, losing its status as a nonconforming sign and was therefore subject to the permitting process of N.C.G.S. § 136-130 and N.C.G.S. § 136-133. Although the Legislature likely could have promulgated a constitutional statute limiting the number of years the nonconforming signs could remain in place or limiting the extent of repairs to the signs, see State v. Joyner, 286 N.C. 366, 373, 211 S.E.2d 320, 324-25 (approving use of time limits on nonconforming uses), appeal dismissed Joyner v. North Carolina, 422 U.S. 1002, 45 L. Ed. 2d 666 (1975); Douglas Hale Gross, Annotation, Zoning: Right to Repair or Reconstruct Building Operating as Nonconforming Use, After Damage or Destruction by Fire or Other Casualty, 57 A.L.R. 3d 419 (1974) (statutes serving to prohibit restoration of nonconforming structures are generally held constitutional), it did not do so. In the absence of such a statute, signs retain their nonconforming status as long as the “nature and extent of the use . . . remain[s] the same as it was before the enactment” of the Outdoor Advertising Control Act. Timothy E. Travers, Annotation, Classification and Maintenance of Advertising Structure as Nonconforming Use, 80 A.L.R. 3d 630, 657 (1977). In this case there is no suggestion that the “nature and extent of the use” of the sign was altered. Furthermore to permit the Department to require removal of a reconstructed nonconforming sign would violate the specific legislative mandate that compensation be made for the removal of nonconforming signs. N.C.G.S. § 136-131.