NORTH CAROLINA COURT OF APPEALS
FILED: 31 December 2002
THE CITY OF HENDERSONVILLE ZONING BOARD OF ADJUSTMENT and THE
CITY OF HENDERSONVILLE,
Respondents.
Whitmire & Fritschner, by Samuel H. Fritschner, for
respondent-appellee City of Hendersonville.
Michael Egan, for respondent-appellee City of Hendersonville
Zoning Board of Adjustment.
HUDSON, Judge.
Lamar Outdoor Advertising, Inc. (“Lamar”) is an outdoor
advertising company. In April, 2000, a windstorm damaged one of
Lamar's billboards (“the Billboard”) on leased property (“the
Property”) in the City of Hendersonville. The Billboard was
originally constructed in 1981, within the federally regulated
corridor that extends to 660 feet from the nearest edge of a
federal primary highway.
On 1 May 2000, a representative of Lamar contacted Susan Cox,
the Zoning Administrator for the City of Hendersonville, and asked
her how he should proceed to make repairs to the Billboard. Ms.Cox responded by letter 2 May 2000, which advised Lamar to submit
a written request for a permit to make the repairs. The letter
explained that in its request, Lamar should include the tax value
of the Billboard, the replacement cost of one of comparable value
and an estimate of the cost of repairs. Lamar sent a letter 5 May
2000 to Ms. Cox, enclosing a Billboard Valuation Worksheet and an
estimate of the repair costs, based on the 1991 Billboard
Valuation Guide published by the North Carolina Department of
Revenue Property Tax Division Ad Valorem Tax Section.
Ms. Cox reviewed Lamar's proposal and by letter 5 July 2000
she denied Lamar's request to repair the Billboard. Specifically,
Ms. Cox found that the Billboard was a nonconforming advertising
sign and that the cost of repairs would exceed sixty percent of the
replacement cost of a sign of comparable quality, the criteria for
repairing such signs under section 13-4(b) of the City's Zoning
Ordinance. Lamar appealed Ms. Cox's decision to the City Board of
Adjustment (“BOA”).
The BOA heard evidence from both Lamar and the City. Although
Lamar submitted different evidence of lower repair costs from the
estimate Lamar earlier sent to Ms. Cox, the BOA upheld the denial
of the permit to repair.
Lamar then sought review of the BOA's decision by writ of
certiorari in the Superior Court. Superior Court Judge Dennis J.
Winner heard arguments from the parties, and upheld the decision of
the BOA. Lamar appeals to this Court. Upon review of a decision from a Board of Adjustment, the
superior court should:
(1) review the record for errors of law; (2)
ensure that procedures specified by law in
both statute and ordinance are followed; (3)
ensure that appropriate due process rights of
the petitioner are protected, including the
right to offer evidence, cross-examine
witnesses, and inspect documents; (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record; and (5) ensure that the decision
is not arbitrary and capricious.
Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C.
App. 465, 468, 513 S.E.2d 70, 73 (1999). This court, on review of
the superior court's order must determine whether the trial court
correctly applied the proper standard of review. Id.
This court applies the “whole record test” when reviewing the
sufficiency of the evidence to support the findings of fact and, in
turn, conclusions of law based thereon. Id. To do so, we must
determine “whether the Board's findings are supported by
substantial evidence contained in the whole record.” Id.
Substantial evidence is that which a reasonable mind might accept
as adequate to support a conclusion. Id. “Where the petitioner
alleges that a board decision is based on error of law, the
reviewing court must examine the record de novo, as though the
issue had not yet been determined.” Id. at 470, 513 S.E.2d at 74.
Lamar's first argument is an issue of law: it contends that
North Carolina's Outdoor Advertising Control Act, G.S. . 136-126 to-140.1 (“OACA”), preempts the City from enforcing its zoning
regulations affecting billboards. The superior court rejected this
argument, and upon de novo review, so do we.
The General Assembly has conferred upon cities the power to
enact ordinances to “define, prohibit, regulate, or abate acts,
omissions, or conditions, detrimental to the health, safety, or
welfare of its citizens and the peace and dignity of the city . .
. . N.C. Gen. Stat. § 160A-174(a). As a limitation on this power,
G.S. . 160A-174 provides that:
(b) A city ordinance shall be consistent with
the Constitution and laws of North Carolina
and of the United States. An ordinance is not
consistent with State or federal law when:
...
(5) The ordinance purports to regulate a field
for which a State or federal statute clearly
shows a legislative intent to provide a
complete and integrated regulatory scheme to
the exclusion of local regulation.
N.C. Gen. Stat. § 160A-174(b)(5) (2001). Thus, to determine
whether the General Assembly intended to provide statewide
regulation to the exclusion of local regulation, we must determine
whether the General Assembly showed a clear legislative intent to
provide such a “complete and integrated regulatory scheme.” Id.
In seeking to determine what the General Assembly intended
when it adopted the OACA, we must look to the “the language of the
statute, the spirit of the act, and what the act seeks to
accomplish.” Taylor v. Taylor, 343 N.C. 50, 56, 468 S.E.2d 321,323 (1996), reh'g denied, 343 N.C. 517, 472 S.E.2d 25 (1996).
“Where legislative intent is not readily apparent from the act, it
is appropriate to look at various related statutes in pari materia
so as to determine and effectuate the legislative intent.” Craig
v. County of Chatham, 356 N.C. 40, 46, 565 S.E.2d 172, 176 (2002).
In State v. Williams, our Supreme Court ruled that state law
preempted local regulation of malt beverages in the Town of Mount
Airy. State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973) In
that case, the defendants were arrested for the possession of an
open container of beer, in violation of a Mount Airy city
ordinance. The defendants' motion to quash the warrants was
granted because the ordinance prohibiting the possession of open
containers of beer in public places conflicted with North Carolina
statutes, which allowed possession of malt beverages by eighteen-
year-old consumers “without restriction or regulation.” Id. The
Supreme Court looked to the purpose and intent of the legislature
in enacting the statute, which was “to establish a uniform system
of control over the sale, purchase . . . and possession of
intoxicating liquors . . . to insure, as far as possible, the
proper administration of this Chapter under a uniform system
throughout the State.” Id. at 553, 196 S.E.2d at 758 (quoting N.C.
Gen. Stat. § 18A-1 (1975)) (emphasis added).
Relying in part upon Williams, the Supreme Court likewise
found a legislative intent to preempt local regulation of sprinklersystems in certain high-rise buildings. Greene v. City of Winston-
Salem, 287 N.C. 66, 75, 213 S.E.2d 231, 237 (1975). The Court
noted that the legislature indicated its intent when it vested
controlling regulatory authority in the North Carolina Building
Code Council and “provided that the installation of the sprinkler
systems required by statute must ultimately be of such design,
condition, and scope 'as may be approved by the North Carolina
Building Code Council.'” Id. at 75, 213 S.E.2d at 237. The Court
also noted that the intent to create a
complete and integrated regulatory scheme is
further evidenced by the language of [the
statute], which delegates to the Commissioner
of Insurance the responsibility of
administering and enforcing the provisions of
the North Carolina Building Code pertaining
“to plumbing, electrical systems, general
building restrictions and regulations, heating
and air conditioning, fire protection and the
construction of buildings generally.”
Id.
More recently, in Craig v. County of Chatham, the Supreme
Court found that the stated purpose and intent in the “Swine Farm
Siting Act” and the “Animal Waste Management Act” showed that the
General Assembly intended that those acts be a “complete and
integrated system” for swine farm regulation in North Carolina.
Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002). In
the Swine Farm Siting Act, the General Assembly included under the
Purpose section the following language: “[C]ertain limitations on
the siting of swine houses and lagoons for swine farms can assistin the development of pork production, which contributes to the
economic development of the State, by lessening the interference
with the use and enjoyment of adjoining property.” N.C. Gen. Stat.
§ 106-801 (2001). The Animal Waste Management Act provides in
pertinent part that “[i]t is the intention of the State to promote
a cooperative and coordinated approach to animal waste management
among the agencies of the State . . . .” N.C. Gen. Stat. § 143-
215.10A (2001) (emphasis added). Upon reviewing the stated purpose
and intent of the Swine Farm Siting Act and the Animal Waste
Management Act, the Supreme Court concluded that the General
Assembly intended to cover the entire field of swine farm
regulation in North Carolina.
Turning to the OACA, we note that the General Assembly
provided in its “Declaration of Policy” that “[i]t is the intention
of the General Assembly to provide and declare herein a public
policy and statutory basis for the regulation and control of
outdoor advertising.” N.C. Gen. Stat. § 136-127 (2001). This
provision does not contain preemptive language similar to that in
Williams, Greene or Craig. Rather, the language in the OACA
indicates simply that the General Assembly intended to proclaim a
public policy and provide a statutory basis upon which a government
entity could regulate outdoor advertising. We do not conclude
that, when it enacted these statutes, the General Assembly
expressed an intention to regulate outdoor advertising only on astatewide basis, or to preclude local entities from regulating in
this area.
Finding no express intention to preempt in the OACA, we look
to its scope and breadth, and likewise find no indication that the
General Assembly intended to preempt local regulation. See Craig.
Indeed, whereas the General Assembly in the Swine Farm Citing Act
specifically limited a county's authority to regulate swine farms,
G.S. . 153A-340(b)(1) (2001), the OACA expressly anticipates local
involvement.
The very definition of “State law” in the OACA contemplates
the involvement of local governments: “a State constitutional
provision or statute, or an ordinance, rule or regulation enacted
or adopted by a State agency or political subdivision of a State
pursuant to a State Constitution or statute.” N.C. Gen. Stat. §
136-128(6) (2001) (emphasis added). In addition, G.S. . 136-136
specifically demands local involvement in the area of outdoor
advertising regulation, by requiring that local zoning authorities
notify the Department of Transportation (“DOT”) if they establish
or change “commercial and industrial zones within 660 feet of the
[primary highway] right-of-way.” N.C. Gen. Stat. § 136-136 (2001).
Beyond the statutory scheme set out in the General Statutes, the
DOT, under authority vested in it by Article 11, even defers to
local regulation of outdoor advertising when it provides that
conforming signs, in order to be rebuilt, must “not conflict withany applicable state, federal or local rules, regulations or
ordinances.” 19A NCAC 2E .0225(b)(2) (April 2002) (emphasis
added). Thus, we conclude that the OACA does not preempt local
regulation of outdoor advertising.
Lamar next argues that both the BOA and the superior court
erred in their interpretation of section 13-4(b)(7) of the City's
zoning ordinances regarding the replacement cost of a sign of
comparable value. However, a review of the record discloses that
the BOA did not expressly interpret section 13-4(b)(7). Its only
reference to section 13-4(b)(7) is in Conclusion of Law number 1,
which reads as follows:
1. Lamar did not carry its burden, pursuant to
Hendersonville Zoning Ordinance[]. 13-4-(b)(7)
of showing that it could “repair” its
billboard for less than or equal to 60% of the
replacement cost of the sign.
On review, the superior court noted that although petitioner argued
that the court should review this conclusion de novo, it concluded
that the standard of review is whether or not the BOA's decision
was supported by the evidence. The superior court conducted the
proper review and thus, we also apply the “whole record” test to
our analysis of the sufficiency of the evidence to support the
findings and conclusions on this issue (appellants fourth
argument). See Whiteco Outdoor Adver., 132 N.C. App. at 468, 513
S.E.2d at 73.
Lamar argues that “The City presented no witness that couldcontradict or rebut [Lamar's witness Derek Collier's] testimony
with quotes of billboard components of comparable quality.”
However, the burden of proving that the billboard could be repaired
within the criteria set out in section 13-4-(b)(7) rested with
Lamar. Hendersonville's Zoning Ordinance provides that “[t]he
burden of proof shall rest with the applicant in all proceedings
required or authorized by [the Zoning Ordinance].” City of
Hendersonville, N.C., Zoning Ordinance art. 6, sec. 6-18.
In its decision, the BOA made findings of fact that included,
inter alia, that the “board did not hear complete, accurate and
credible evidence of the actual cost to 'repair' the billboard,”
and that the “board did not hear complete, accurate and credible
evidence of the replacement cost of the billboard.” In addition to
Conclusion of Law number 1, the BOA reached the following
Conclusion of Law:
2. Lamar did not carry its burden of proving
that the Zoning Administrator erred in denying
its request for a permit to “repair” the
billboard.
Our review of the record, including testimony from Lamar and
The City, discloses substantial evidence to support the BOA's
findings of fact, which in turn support its conclusions of law.
The figures that Lamar presented to the BOA to prove that it could
reconstruct the billboard for less than sixty percent of the
replacement cost of a sign of comparable value were inadequate in
several respects. Most notably, the repair cost figure that Lamarpresented to the BOA was lower than the repair cost figure that
Lamar presented to Susan Cox when it first applied for a permit to
reconstruct, due to several changes and omissions made by Lamar in
the subsequent repair cost figure. First, Lamar lowered the labor
cost estimate by $560.00 from the original estimate submitted to
Susan Cox. Second, Lamar's own witness, Derek Collier, testified
that the cost to rebuild the sign, as presented to the BOA, omitted
several essential components of the reconstruction cost including,
the costs for certain lighting parts, the costs for electrical
wires for the billboard, and the labor costs for installing the
electrical wiring. Though Lamar failed to include these lighting
and wiring costs in the figure presented to Susan Cox as well as
the BOA, without such information a true estimate of the repair
cost could not be had, and a true cost of repair was not put into
evidence.
The foregoing evidence supports the BOA's decision that, under
the Hendersonville Zoning Ordinance, Lamar did not meet its burden
of proving the ratio between the cost to repair the sign and the
replacement value of a sign of comparable quality. While Lamar may
have presented evidence in an attempt to prove these facts, the BOA
concluded it was not enough. Where the whole record supports this
determination, “neither the trial court nor this Court may
substitute its own judgment for that of the Board's.” Whiteco
Outdoor Adver., 132 N.C. App. at 469, 513 S.E.2d at 74. In lightof our holding that the BOA's decision was supported by the whole
record, we also hold that the BOA's decision was neither arbitrary
nor capricious, as the BOA reasonably concluded from the evidence
that Lamar did not carry its burden of proof.
Thus, we affirm the superior court's order upholding the
decision of the City of Hendersonville Zoning Board of Adjustment.
Affirmed.
Judges Wynn and Campbell concur.
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