Fairway Outdoor Advertising v. Town of Cary

739 S.E.2d 579, 225 N.C. App. 676, 2013 WL 791576, 2013 N.C. App. LEXIS 218
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2013
DocketNo. COA12-518
StatusPublished

This text of 739 S.E.2d 579 (Fairway Outdoor Advertising v. Town of Cary) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fairway Outdoor Advertising v. Town of Cary, 739 S.E.2d 579, 225 N.C. App. 676, 2013 WL 791576, 2013 N.C. App. LEXIS 218 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

The Town of Cary, North Carolina and the Town of Cary Zoning Board of Adjustment appeal the trial court’s 28 November 2011 order and judgment. For the following reasons, we reverse in part and remand in part.

I. Background

The trial court briefly summarized the background of this case and its decision in its memorandum of decision:

This matter involves an outdoor advertising sign (the “Sign”, its “Sign”, or “Fairway’s Sign”) located at [678]*678844 East Chatham Street, Cary, Wake County, North Carolina. Petitioners Fairway Outdoor Advertising, a division of MCC Outdoor, LLC and MCC Outdoor, LLC (collectively “Fairway”) own the Sign. Fairway sought review and reversal of the ZBOA’s March 26, 2008, “Resolution Deciding Appeals of Fairway Outdoor Advertising” (the “ZBOA’s Decision”) relating to the Sign. Fairway asserts the ZBOA erred in concluding that the continued existence of Fairway’s Sign is a violation of the Town of Cary Land Development Ordinance (the “LDO”), that the Sign must be removed, that Fairway must pay civil penalties for such violation, and that Fairway is not entitled to approval of its Sign as an “Unlisted Use” under the LDO. Respondent Town of Cary, North Carolina (the “Town”) asserts that the foregoing conclusions by the ZBOA were correct, but contends that the ZBOA erroneously concluded that Fairway timely appealed the Town’s determination that Fairway’s Sign is a violation of the LDO and must be removed.
As set forth below, the Court has determined that the ZBOA correctly concluded that Fairway timely appealed from the Town’s determination that Fairway’s Sign is a violation of the LDO and must be removed. Therefore, as to the ZBOA’s conclusion that Fairway’s appeal was timely, the ZBOA’s Decision is affirmed. However, the Court has determined that the ZBOA’s conclusions that Fairway’s Sign is a violation of the LDO and must be removed, that Fairway must pay civil penalties for such violation, and that Fairway is not entitled to approval of its application for an “Unlisted Use” under the LDO are erroneous. With respect to these conclusions, the ZBOA’s Decision is reversed.

The Town of Cary, North Carolina and the Town of Cary Zoning Board of Adjustment (“Cary”) appealed.

II. Timeliness of Appeal Regarding Sign Compliance

Cary first contends that Fairway’s initial appeal of the Town’s determination that its sign was not in compliance was untimely. “Generally, municipal ordinances and statutes enacted by the legislature are to be construed according to the same rules.” Clark v. City [679]*679of Charlotte, 66 N.C. App. 437, 439, 311 S.E.2d 71, 72 (1984). Thus, we turn to our law regarding construing statutes. See id.

Questions of statutory interpretation are ultimately questions of law for the courts and are reviewed de novo.
Statutory interpretation begins with the cardinal principle of statutory construction that the intent of the legislature is controlling. In ascertaining the legislative intent, courts should consider the language of the statute, the spirit of the statute, and what it seeks to accomplish. Where the statutory language is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language. If the language is ambiguous or unclear, the reviewing court must construe the statute in an attempt not to defeat or impair the object of the statute if that can reasonably be done without doing violence to the legislative language.

Dayton v. Dayton,__ N.C. App,_,_, 725 S.E.2d 439, 442 (2012) (citations, quotation marks, ellipses, and brackets omitted). Furthermore, “[o]ur courts have consistently held that statutes dealing with the same subject matter must be construed in pari materia, and harmonized, if possible, to give effect to each[.]” Dougherty Equip. v. M.C. Precast Concrete, _N.C. App._,_, 711 S.E.2d 505, 507 (2011) (citation and quotation marks omitted).

The binding, uncontested facts as found by the trial court state that “[o]n June 23, 2006, one week before expiration of the amortization period, the Town sent Fairway the first official notice that the Town considered Fairway’s Sign to be subject to . . . LDO § 10.5.2.” See Peters v. Pennington,_N.C. App._,_, 707 S.E.2d 724, 733 (2011) (“Unchallenged findings of fact are binding on appeal.”) In its recitation of the facts the court names LDO § 10.5.2 at least six times as the ordinance at issue between the parties. Despite these findings, when determining whether Fairway made a timely appeal the trial court relies on LDO Chapters 9 and 11, and does not refer to LDO Chapter 10.

[680]*680LDO Chapter 9 is entitled “SIGNS[.]” See Cary, N.C., Land Development Ordinance ch. 9 (2003).1 LDO § 9.13 entitled “VIOLATIONS AND ENFORCEMENT],]” provides that “[violations of this chapter and enforcement procedures are addressed in Chapter 11.” LDO § 9.13. Indeed, LDO Chapter 11 entitled “ENFORCEMENT” has specific provisions regarding “General Appeals of Enforcement Decisions[.]” See LDO ch. 11; § 11.2.2. Thus, LDO Chapters 9 and 11 would appear to be potentially applicable to the issue before us. See LDO chs. 9, 11.

Nonetheless, the dispute between Fairway and Cary arises not from Chapter 9 but from LDO § 10.5.2 entitled “Nonconforming Pole Signs[.]”2 See LDO § 10.5.2. This is confirmed not only by the uncontested facts, but also by the trial court’s order and judgment which twice determines the merits of this case based upon LDO § 10.5.2 without mention of any other provision on this issue. Neither party has challenged the applicability of LDO § 10.5.2, and this ordinance provides,

Signs or signage which meet the definition of a pole sign (including billboards) in this Ordinance are considered to be nonconforming, and shall be removed or replaced with signage which conforms to the requirements of this Ordinance no later than July 1, 2006. Existing lawfully-placed signs associated with an approved Uniform Sign Plan shall be exempt from this provision. Owners of record for such signs shall be notified of the nonconformity via mailed notice.

LDO § 10.5.2. LDO § 10.5.2 is the basis for the Town’s demand for removal of the sign. But LDO Chapter 10 has no provision regarding appeals from a decision that a pole sign is nonconforming pursuant to LDO § 10.5.2. In fact, LDO Chapter 10 does not contain any appeal provisions.

Because LDO Chapter 10 has no appeal provision, and no direction to handle appeals under LDO Chapter 11, LDO Chapter 11 does not control an issue regarding LDO § 10.5.2. LDO Chapter 9 specifi[681]*681cally requires that for issues arising under LDO Chapter 9 appeals must be taken pursuant to LDO Chapter 11. See LDO § 9.13.

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Related

Terry v. Ricci
128 S. Ct. 616 (Supreme Court, 2007)
Clark v. City of Charlotte
311 S.E.2d 71 (Court of Appeals of North Carolina, 1984)
Peters v. Pennington
707 S.E.2d 724 (Court of Appeals of North Carolina, 2011)
Dayton v. Dayton
725 S.E.2d 439 (Court of Appeals of North Carolina, 2012)
Dougherty Equipment Co. v. M.C. Precast Concrete, Inc.
711 S.E.2d 505 (Court of Appeals of North Carolina, 2011)
In re R.L.C.
643 S.E.2d 920 (Supreme Court of North Carolina, 2007)

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Bluebook (online)
739 S.E.2d 579, 225 N.C. App. 676, 2013 WL 791576, 2013 N.C. App. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairway-outdoor-advertising-v-town-of-cary-ncctapp-2013.