2. Highways and Streets_outdoor advertising_billboard height regulation_arguments not
raised below_authority of DOT
Arguments concerning a DOT regulation limiting the height of billboards not raised below
were precluded in the Court of Appeals. In any event, petitioners did not forecast evidence to
support their contention that the regulation exceeded the authority of the DOT because of purported
difficulties in measuring the signs without violating various statutes and other regulations.
3. Highways and Streets_outdoor advertising_DOT billboard height regulation--
substantive due process_no violation
A DOT regulation limiting the height of billboards did not violate petitioners' substantive
due process rights. The regulation addresses safety as well as aesthetics concerns, and the means are
rational and not overly burdensome. Although petitioners pointed to the difficulty of measuring the
signs without violating statutes and other regulations, they submitted no evidence to support this
contention.
4. Laches_DOT billboard height regulation_signs built after effective date_regulation not
initially enforced
The doctrine of laches did not apply to DOT's enforcement of a billboard height regulation
where petitioners built their signs after the effective date of the regulation, DOT did not give them
assurances that their signs were in compliance, petitioners's conclusory statements of expenses were
not sufficiently detailed, and petitioners' generalized statements about their ongoing sign business
do not establish an issue of fact as to whether they were disadvantaged by DOT's initial non-
enforcement of the regulation.
Appeal by petitioners from judgment entered 10 September 2001
by Judge Donald W. Stephens in Wake County Superior Court. Heard
in the Court of Appeals 28 January 2003.
Waller, Stroud, Stewart & Araneda, LLP, by Betty Strother
Waller, for petitioners-appellants.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for respondents-appellees.
GEER, Judge.
Petitioners appeal from an order granting respondents' motion
for summary judgment. This appeal involves primarily a facial
constitutional challenge to N.C. Admin. Code tit. 19A, r.
2E.0203(1)(f) (December 1990). This regulation originally
provided: "The height of any portion of the sign structure as
measured vertically from the adjacent edge of pavement of the main
traveled way shall not exceed 50 feet."
(See footnote 1)
We affirm the trial
court's granting of respondents' motion for summary judgment,
holding that petitioners failed to establish the existence of
genuine issues of material fact and that this regulation is
constitutional on its face.
Petitioners are outdoor advertising companies. The regulation
at issue was promulgated by the North Carolina Department of
Transportation ("NCDOT") pursuant to the Outdoor Advertising
Control Act ("OACA"), codified at N.C. Gen. Stat. § 136-126 (2001). The OACA was passed in 1967 to control the placement, maintenance,
and removal of billboards adjacent to highways. The OACA delegates
to NCDOT authority to further promulgate rules and regulations
governing erection and maintenance of billboards, permitting
procedures, appeal procedures related to administrative decisions
denying or revoking a permit, and administrative procedures for
appealing a decision that a billboard is illegal. N.C. Gen. Stat.
§ 136-130 (2001). NCDOT first adopted such regulations effective
1 July 1978 and over the years has revised the regulations on a
number of occasions. See N.C. Admin. Code tit. 19A, r. 2E.0200
(June 2002), et seq.
The height limitation contained in N.C. Admin. Code tit. 19A,
r. 2E.0203(1)(f) (June 2002) was adopted and became effective in
December 1990, but NCDOT did not take action to enforce the
provision until 1998. Between January 1998 and June 2000, NCDOT
took inventories of the height of NCDOT controlled billboards and
revoked the billboard permits for all those that were determined to
exceed the 50-foot height limitation. Petitioners all had permits
revoked for signs more than 50 feet tall.
Petitioners appealed the revocation of their permits to the
Secretary of NCDOT, who affirmed that decision. Pursuant to N.C.
Gen. Stat. § 136-134.1 (2001), petitioners sought review in Wake
County Superior Court. N.C. Gen. Stat. § 136-134.1 provides for de
novo review by the court sitting without a jury. The court may
only consider whether the Secretary's decision (1) is in violation
of constitutional provisions, (2) is not made in accordance withOACA or NCDOT rules or regulations, or (3) is affected by other
error of law. Id.
(See footnote 2)
While the review proceedings were pending, the petitioners-
appellants' cases were consolidated. Both sides filed cross-
motions for summary judgment, which were heard on 24 May 2001. In
an order entered 10 July 2001, the court granted respondents'
motion for summary judgment. An amended order on judicial review
was entered 10 September 2001 to correct technical errors in the
original order. Petitioners have appealed the granting of summary
judgment.
On review of a grant of summary judgment, this Court must
review the whole record to determine (1) whether the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) whether the moving party is
entitled to judgment as a matter of law. Von Viczay v. Thoms, 140
N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd per curiam,
353 N.C. 445, 545 S.E.2d 210 (2001). As stated by this Court:
A genuine issue of material fact is of such a
nature as to affect the outcome of the action.
The moving party bears the burden of
establishing the lack of a triable issue of
fact. The motion must be denied where the
non-moving party shows an actual dispute as to
one or more material issues.
Johnson v. Trustees of Durham Tech. Cmty. College, 139 N.C. App.
676, 681, 535 S.E.2d 357, 361, app. dismissed and disc. reviewdenied, 353 N.C. 265, 546 S.E.2d 101 (2000) (citations omitted).
The non-movant may not "rest upon the allegations of its pleading
to create an issue of fact, even though the evidence must be
interpreted in a light favorable to the nonmovant." Smiley's
Plumbing Co., Inc. v. PFP One, Inc., 155 N.C. App. 754, 761, 575
S.E.2d 66, 70, disc. review denied, 357 N.C. 166, 580 S.E.2d 698
(2003).
In considering a motion for summary judgment, it is the trial
court's and this Court's duty to determine "whether genuine issues
of material fact exist and does not extend to resolving such
issues. . . . [T]he court's function at this juncture is to find
factual issues, not to decide them." Liberty Mut. Ins. Co. v.
Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002)
(citations omitted). "As a general principle, summary judgment is
a drastic remedy which must be used cautiously so that no party is
deprived of trial on a disputed factual issue." Johnson, 139 N.C.
App. at 681, 535 S.E.2d at 361.
The Absence of Genuine Issues of Material Fact
[1] Petitioners contend generally that the trial court
resolved disputed issues, but argue specifically only that there is
a dispute as to what the words "height" and "sign structure" mean
within the NCDOT regulation, N.C. Admin. Code tit. 19A, r.
2E.0203(1)(f). The construction of a regulation is a question of
law and not of fact. Ace-Hi, Inc. v. Dep't of Transp., 70 N.C.
App. 214, 216, 319 S.E.2d 294, 296 (1984) (interpretation of
regulation involves only "legal questions"). Petitioners have
offered no evidence that their signs were in fact less than 50 feettall. Instead, this case involves "legal questions of proper
exercise of authority and of interpretation of statutes and
regulations." Id. Consequently, this case was appropriate for
summary disposition.
Petitioners' complaint regarding the trial court's finding
that "'height' and 'sign structure,' are self-explanatory terms
used in their everyday sense" is not well-founded. Although
mislabeling its assertion as a finding of fact, the trial court was
correctly applying a principle of statutory construction. That
principle, which governs equally in the construction of
regulations, provides that "unless the words used [in the
regulation] have acquired some technical meaning or the context
otherwise dictates, they must be construed in accordance with their
common or ordinary meaning." Id. at 218, 319 S.E.2d at 297.
The record contains no indication that the words "height" or
"sign structure" have some technical meaning. The word "height" in
common usage means "the highest part of something material," the
"top part," or "the extent of elevation above a level." Webster's
Third New International Dictionary 1050 (1968). In other words,
the regulation refers to the top of the "sign structure."
Respondents' witness Lacy Love, NCDOT's State Road Maintenance
Engineer, confirmed that NCDOT interprets the regulation to mean
the top of the sign face. Contrary to petitioners' contention
otherwise, we find nothing in the record to suggest that thisinterpretation _ that the measurement refers to the top of the sign
face _ is unreasonable or incorrect.
(See footnote 3)
Authority of NCDOT to Adopt the Height Regulation
[2] Unquestionably, NCDOT had authority to promulgate a rule
governing the height of billboards. See N.C. Gen. Stat. § 136-130
(authorizing NCDOT to promulgate rules and regulations governing
the erection and maintenance of outdoor advertising). Petitioners,
however, contend that the height regulation exceeded NCDOT's
authority and conflicts with State policy as set forth in various
statutes. Petitioners do not argue that the 50-foot limitation is
in and of itself a problem, but rather claim that in order to
measure the height of the signs for purposes of complying with the
regulation, they will have to engage in unsafe behavior and will
have to violate other statutes including N.C. Gen. Stat. § 136-
89.56 (2001) (prohibiting the authorization of "commercial
enterprises or activities" on certain highways) and N.C. Gen. Stat.
§ 136-89.58 (2001) (prohibiting any person from stopping, parking,
or leaving standing any vehicle on any portion of the right-of-way
of specified highways). Petitioners also contend that their
permits could be revoked for engaging in the conduct necessary to
comply with the height requirement. See N.C. Admin. Code tit. 19A,
r. 2E.0210(9).
It appears from the record that petitioners failed to raise
these arguments below. They are, therefore, precluded fromadvancing them in this Court. N.C.R. App. P. 10(b)(1). In any
event, petitioners have not forecast evidence to support their
contentions.
This argument revolves around the technique required to obtain
height measurements. The only evidence in the record regarding
measuring techniques appears in the deposition of Mr. Love, who
testified to various techniques and safety strategies that could be
used. Additionally, Mr. Love testified that none of the
petitioners has requested any assistance from NCDOT in complying
with the height regulation and yet, of the 101 new signs built
since 1999 by petitioners, only one has failed to meet the height
limitation (and that sign was only off by eight inches). In
addition, with respect to the older, non-compliant signs,
respondents offered evidence that various sign companies, including
two of the original petitioners, were successfully able to lower
those signs to comply with the regulation. Petitioners submitted
no evidence countering Mr. Love's testimony regarding alternative
techniques and offered no evidence indicating that they had
experienced any problems in constructing new signs or lowering old
signs to conform to the height regulation. The record thus
contains no factual basis to support petitioners' contention on
appeal that they cannot comply with the regulation.
The Constitutionality of the Regulation
[3] Petitioners also argue that the regulation at issue
violates their substantive due process rights and is
unconstitutional on its face. Petitioners specifically do not
contend that the regulation is unconstitutional as applied. This Court recently dealt with a facial challenge to a
regulation promulgated by the North Carolina State Board of Dental
Examiners pursuant to the Dental Practice Act in Affordable Care,
Inc. v. N.C. State Bd. of Dental Exam'rs, 153 N.C. App. 527, 571
S.E.2d 52 (2002). As explained in Affordable Care, the first step
in analyzing whether a law violates substantive due process is to
determine "whether the right infringed upon is a fundamental
right." Id. at 535, 571 S.E.2d at 59. If the law infringes upon
a fundamental right, "then the court must apply a strict scrutiny
analysis wherein the party seeking to apply the law must
demonstrate that it serves a compelling state interest." Id. at
535-36, 571 S.E.2d at 59. If there is no fundamental right
involved, then "the party seeking to apply [the law] need only meet
the traditional test of establishing that the law is rationally
related to a legitimate state interest." Id. at 536, 571 S.E.2d at
59. Under the "rational relation" test, "the law in question is
presumed to be constitutional." Id.
While the General Assembly has declared "that outdoor
advertising is a legitimate commercial use of private property
adjacent to roads and highways," N.C. Gen. Stat. § 136-127 (2001),
petitioners appropriately do not contend that this case involves a
fundamental right. See Transylvania County v. Moody, 151 N.C. App.
389, 397, 565 S.E.2d 720, 726 (2002) (the right to construct
outdoor advertising signs is not a fundamental right). Therefore,
the height regulation need only survive a "rational basis" review.
The governmental interest in regulating outdoor advertising
is: to promote the safety, health, welfare and
convenience and enjoyment of travel on and
protection of the public investment in
highways within the State, to prevent
unreasonable distraction of operators of motor
vehicles and to prevent interference with the
effectiveness of traffic regulations and to
promote safety on the highways, to attract
tourists and promote the prosperity, economic
well-being and general welfare of the State,
and to preserve and enhance the natural scenic
beauty of the highways and areas in the
vicinity of the State highways and to promote
the reasonable, orderly and effective display
of such signs, displays and devices.
N.C. Gen. Stat. § 136-127. In short, governmental interests
include both safety and aesthetic concerns.
Petitioners do not argue that the regulation lacks a rational
relationship to these governmental interests, but instead contend
that a billboard height limit is an aesthetic regulation only and
that our Supreme Court has held that aesthetics-based regulatory
ordinances are permissible only when they are reasonable. State v.
Jones, 305 N.C. 520, 290 S.E.2d 675 (1982). We find Jones to be
inapplicable because the regulation at issue also addresses safety
concerns, such as those included in N.C. Gen. Stat. § 136-127
(preventing unreasonable distraction of motorists). See Summey
Outdoor Advertising, Inc. v. County of Henderson, 96 N.C. App. 533,
540, 386 S.E.2d 439, 444 (1989) (declining to find Jones applicable
to county ordinance regulating outdoor advertising signs in size,
height, and distance from road), disc. review denied, 326 N.C. 486,
392 S.E.2d 101 (1990).
In Affordable Care, after finding that there was a legitimate
governmental interest in the regulation promulgated by the Board of
Dental Examiners, the Court addressed the plaintiffs' argument that"even if the [r]ule furthers a legitimate purpose, the means it
provides to effectuate that purpose are not rational and the burden
outweighs any public benefit." 153 N.C. App. at 538, 571 S.E.2d at
61. In response, the Court stated:
In a facial challenge, the presumption is that
the law is constitutional, and a court may not
strike it down if it may be upheld on any
reasonable ground. "An individual challenging
the facial constitutionality of a legislative
[a]ct 'must establish that no set of
circumstances exists under which the [a]ct
would be valid.'" "The fact that a statute
'might operate unconstitutionally under some
conceivable set of circumstances is
insufficient to render it wholly invalid.'"
Id. at 539, 571 S.E.2d at 61 (citations omitted).
Petitioners in this case have similarly argued that the means
adopted to effectuate the governmental purpose is not rational and
is overly burdensome. Specifically, petitioners contend that even
assuming that the height restriction furthers a legitimate State
interest, the means chosen by NCDOT _ requiring that the height not
exceed 50 feet as measured vertically from the edge of the pavement
_ is unreasonable, cost prohibitive, unreliable, subjective, and
inconsistent.
In support of this argument, petitioners again point to
purported difficulties in measuring the signs without violating
other statutes and regulations. As indicated above, however,
petitioners submitted no evidence to the trial court in support of
these difficulties. Mr. Love's testimony referred to different
means by which petitioners could comply with the regulation;
petitioners have not demonstrated an inability to comply if they
obtained the assistance of NCDOT; and petitioners have, accordingto the record, experienced no problems with compliance since 1999.
Petitioners have thus failed to meet their considerable burden of
establishing "no set of circumstances . . . under which the [a]ct
would be valid." Id.
With respect to petitioners' claim that compliance would be
cost-prohibitive, petitioners offered no supporting evidence.
Respondents submitted the only evidence of cost: $250.00 per sign
plus expenses. Although petitioners suggested that the amount
might be higher, they made no attempt to offer evidence to create
an issue of fact as to whether the cost was prohibitive or not.
(See footnote 4)
The Doctrine of Laches
[4] Finally, petitioners argue that the doctrine of laches
applies here. That doctrine has most recently been described as
follows:
To establish the affirmative defense of
laches, our case law recognizes that 1) the
doctrine applies where a delay of time has
resulted in some change in the condition of
the property or in the relations of the
parties; 2) the delay necessary to constitute
laches depends upon the facts and
circumstances of each case; however, the mere
passage of time is insufficient to support a
finding of laches; 3) the delay must be shown
to be unreasonable and must have worked to the
disadvantage, injury or prejudice of the
person seeking to invoke the doctrine of
laches; and 4) the defense of laches will only
work as a bar when the claimant knew of the
existence of the grounds for the claim.
MMR Holdings L.L.C. v. City of Charlotte, 148 N.C. App. 208, 209-
10, 558 S.E.2d 197, 198 (2001).
As petitioners argue, North Carolina law has applied the
laches doctrine to the untimely enforcement of sign regulations.
Abernethy v. Town of Boone Bd. of Adjustment, 109 N.C. App. 459,
427 S.E.2d 875 (1993). This Court in MMR Holdings, however,
limited Abernethy to its specific facts, noting that the doctrine
of laches was appropriate in Abernethy because of assurances from
city officials that the plaintiff's signs were in compliance and
because the plaintiff had spent $250,000.00 in reliance upon those
assurances. MMR Holdings, 148 N.C. App. at 210, 558 S.E.2d at 198.
In MMR Holdings, the Court declined to apply the doctrine of laches
in the absence of express assurances of compliance from city
officials and in the absence of any evidence that the plaintiffs
had spent money or otherwise changed their position in reliance
upon such assurances. Id. at 210-11, 558 S.E.2d at 198-99.
This case closely resembles MMR Holdings. Petitioners do not
claim that NCDOT gave them any assurances that their signs were in
compliance with the regulation at issue. In fact, petitioners
acknowledge that they knew of the regulation when they erected
their signs, but elected only to have their structures "pre-
fabricated to a length which, when erected[,] would not violate the
spirit and intent of the regulation . . . ." (Emphasis supplied)
Although petitioners complain that NCDOT did not notify them that
their signs were nonconforming, since these signs were built after
the effective date of the regulation, petitioners bore the
responsibility of ensuring that their signs complied in the firstinstance. As this Court stated in Bracey Advertising Co., Inc. v.
North Carolina Dep't of Transp., 35 N.C. App. 226, 230, 241 S.E.2d
146, 148, disc. review denied, 295 N.C. 89, 244 S.E.2d 257 (1978),
"[t]hose persons or parties, including petitioner[s], who erected
outdoor advertising devices on or after [the effective date of an
ordinance] without complying with the established standards did so
at their peril."
In addition, Abernethy held that before laches may be used to
prevent a governmental body from enforcing an ordinance, the party
asserting laches must demonstrate that it suffered disadvantage
"due to the delay." 109 N.C. App. at 465, 427 S.E.2d at 878.
Here, petitioners, in virtually identical affidavits, point in
general language to various expenditures that they have made on
their signs for repairs and improvements, to the fact that they
have entered into long-term contracts with customers wishing to
rent space on the billboards, and to unspecified business decisions
made in reliance on the billboards being legal. Petitioners do
not, however, make any attempt to demonstrate how they would have
avoided these expenses or how they would have behaved differently
had NCDOT notified them of non-compliance earlier.
Even if petitioners had tied these assertions to the delay,
Rule 56(e)'s requirement that the non-moving party set forth
"specific facts" is not met by petitioners' extremely conclusory
statements. While summary judgment is a "drastic remedy," Johnson,
139 N.C. App. at 681, 535 S.E.2d at 361, without some modicum of
detail, neither the trial court nor this Court is in a position toassess whether petitioners will be able to establish that they were
wrongly prejudiced by the delay in enforcement.
Petitioners' generalized statements regarding their ongoing
sign business do not establish an issue of fact as to whether they
were disadvantaged by NCDOT's non-enforcement of the height
regulation. The trial court therefore did not err in granting
summary judgment as to petitioners' claim of laches.
Conclusion
For the reasons stated herein, we hold that the trial court
did not err in granting respondents' motion for summary judgment.
Affirmed.
Judges WYNN and BRYANT concur.
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