An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1702


Filed: 6 January 2004

CHARLOTTE, a Minnesota Limited

v .                                 Wake County
                                    No. 00-CVS-04650
DAVID McCOY, Secretary of the
Department of Transportation
of the State of North Carolina,

    Appeal by petitioner from an order entered 12 August 2002 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 9 October 2003.

    Waller, Stroud, Stewart & Araneda, L.L.P., by Betty S. Waller, for petitioner-appellant.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Gaines M. Weaver, for respondent-appellee.

    HUNTER, Judge.

    Adams Outdoor Advertising of Charlotte (“petitioner”) appeals from the trial court's ruling of summary judgment, upholding the North Carolina Department of Transportation's (“NCDOT”) revocation of petitioner's outdoor advertising permit. For the reasons stated herein, we reverse.
    The undisputed facts are as follows: Petitioner is a business engaged in outdoor advertising in various areas of North Carolina. It obtained a leasehold interest in private property adjacent to Interstate 85 (“I-85”) in Charlotte, Mecklenburg County, foradvertising purposes. On that property, pursuant to an outdoor advertising permit issued by NCDOT, petitioner erected and maintained a billboard subject to the Outdoor Advertising Control Act (“OACA”).
    NCDOT employs Michael McIntosh (“McIntosh”) and Willard Conley (“Conley”). McIntosh is an Assistant District Engineer, and his duties with NCDOT include administering the outdoor advertising control laws. At approximately 8:45 a.m. on 8 May 1998, McIntosh and Conley saw a clearly marked Adams Outdoor Advertising truck parked on the right-of-way of I-85 in Mecklenburg County. McIntosh and Conley observed a crew servicing a billboard. The crew had driven its truck off of I-85 onto the shoulder, and then up onto the embankment adjacent to the billboard. A fence separated the state right-of-way (the shoulder and embankment beside I-85) from the property on which the billboard was located. The crew used a ladder to climb from where its truck was parked in the state right- of-way, over the barrier fence, and up to the billboard to change the display.
    McIntosh and Conley photographed the crew as it engaged in the above actions. After doing so, McIntosh and Conley informed the crew that it is illegal to stop along the highway to service a billboard. The crew then packed up its materials and drove away from the site.
    On 12 May 1998, D. W. Spence, a NCDOT Engineer in Mecklenburg County, mailed a notice to petitioner, advising that its outdoor advertising permit was being revoked pursuant to N.C. Admin. Codetit. 19A, r. 2E.0210(9) for violation of the control of access. Petitioner submitted its administrative appeal to the secretary of NCDOT, who upheld the permit revocation by final decision entered 16 September 1998. Thereafter, petitioner petitioned the superior court to review the final decision de novo. In response, NCDOT filed a motion for summary judgment, which was heard on 8 July 2002. By order entered 12 August 2002, the superior court granted NCDOT's motion for summary judgment. Petitioner appeals.
    On an appeal from a grant of summary judgment, this Court reviews the trial court's decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
    Here, the material facts are as follows: A truck parked on the state right-of-way along I-85 was clearly identified as belonging to petitioner. The truck exited and entered the interstate outside designated areas for exit and entry. A crew employed by petitioner serviced a billboard outside the state right-of-way, for which petitioner had a permit. The crew crossed back and forth over the barrier fence to the right-of-way toservice the billboard. Since these facts are undisputed by petitioner, they establish no genuine issue of material fact.
    Petitioner argues that, despite there being no genuine issue of material fact, NCDOT was not entitled to judgment as a matter of law. We agree. We do not, however, accept petitioner's argument that NCDOT violates substantive due process, or acts ultra vires of its authority, in promulgating rules that allow NCDOT to revoke outdoor advertising permits.
    The General Assembly enacted the OACA to control the placement, maintenance, and removal of billboards adjacent to state (and interstate) highways pursuant to the joint purposes of facilitation of outdoor advertisements as well as public safety concerns surrounding such signs. N.C. Gen. Stat. § 136-127 (2003). The OACA delegates substantial authority to NCDOT to promulgate rules and regulations to further the act's purposes. N.C. Gen. Stat. § 136-130 (2003). Our case law makes clear that NCDOT can revoke a holder's outdoor advertising permit when those rules and regulations are violated. See Outdoor East v. Harrelson, 123 N.C. App. 685, 476 S.E.2d 136 (1996) (concluding that NCDOT had authority to revoke a permit upon violation of control of access); Whiteco Industries, Inc. v. Harrington, 111 N.C. App. 839, 843-44, 434 S.E.2d 234, 237 (1993) (ruling that NCDOT was substantially justified to revoke a permit if NCDOT could “(1) clearly identify persons (2) who committed a violation for which revocation is permissible and (3) show a sufficient connection between those persons and the permit holder”). However, that NCDOT had theauthority to revoke a holder's permit, such as petitioner's, does not guarantee that the revocation was proper.
    The instant case is governed by NCDOT regulations that were in effect as of 1998, the year of petitioner's permit revocation. At that time, the procedural scheme regarding permit revocation was laid out between N.C. Admin. Code tit. 19A, r. 2E.0210 and .0213. Specifically, N.C. Admin. Code tit. 19A, r. 2E.0210 (June 1998) provided numerous reasons for which “[a]ny valid permit issued for a lawful outdoor advertising structure shall be revoked by the appropriate district engineer[.]” Pursuant to N.C. Admin. Code tit. 19A, r. 2E.0212 (June 1998):
            (a)    When a violation of Rule .0210 of this Section occurs, the district engineer shall so notify the owner of the outdoor advertising structure by certified mail, return receipt requested, in the form of a letter setting forth the reasons why the outdoor advertising structure in question does not comply. The letter notifying the owner of the outdoor advertising structure in question shall also state that because the structure is in violation of the provisions of the Outdoor Advertising Control Act or these Rules, the structure is unlawful and a nuisance and that if the structure is not removed or made to conform to the provisions of the act or the rules within 30 days after receipt of the letter, the Department of Transportation or its agents shall, at the expense of the owner, remove the nonconforming outdoor advertising.

However, the regulation further stated: “An outdoor advertising structure cannot be made to conform to the Outdoor Advertising Control Act when the permit is revoked under 19A NCAC 2E.0210 (2), (4) or (8).” N.C. Admin. Code tit. 19A, r. 2E.0212(b). Respectively, those violations that could not be made to conformwere those involving misrepresentation of facts on a permit application, failure to construct the billboard within 180 days of obtaining the permit, and unlawful destruction of vegetation around the billboard. Since those violations were exempted from the thirty-day correction period, N.C. Admin. Code tit. 19A, r. 2E.0212 effectively created two kinds of permit revocation -- reparable and automatic -- the automatic revocations being those listed in subsection (b).
    In the case sub judice, NCDOT found petitioner in violation of N.C. Admin. Code tit. 19A, r. 2E.0210(9), which prohibited “unlawful violation of the control of access on interstate, freeway, and other controlled access facilities[.]” This subsection was not included as one of the violations listed above that could not be corrected within thirty days. As such, the violation was technically a reparable, non-automatic revocation. Yet, the letter of notice sent to petitioner by NCDOT stated that petitioner's billboard had to be permanently removed within thirty days. The letter mentioned no route of correction that would have saved petitioner's permit from revocation. Rather, the revocation of petitioner's permit was complete upon petitioner being notified of its violation by NCDOT, and petitioner's only option was to appeal the revocation to the secretary of NCDOT. Thus, NCDOT automatically revoked petitioner's permit instead of providing it thirty days during which to correct the violation, an act done contrary to the regulations in effect at the time of the revocation.    It should be noted that the issue presented to this Court by petitioner is restricted to the instant case. Under current NCDOT regulations, the petitioner's violation of the control of access is explicitly listed amongst those that result in automatic revocations, allowing for no thirty-day correction period.   (See footnote 1)  We recognize NCDOT's decision to amend the regulations in such a manner because a violation of the control of access cannot be subsequently corrected by the permit holder. Nevertheless, we cannot uphold the trial court's ruling as a matter of law because (1) the 1998 NCDOT regulations explicitly exempted this type of violation from automatic revocation, and (2) we have found no evidence that the 2000 amendments to the regulations were to be applied retroactively. See generally State ex rel. Utilities Comm. v. Public Service Co., 307 N.C. 474, 480, 299 S.E.2d 425, 429 (1983). Since we are reversing the trial court's grant of summary judgment, this Court need not address the other arguments raised by petitioner.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
     Since its amendment, effective 1 August 2000, the pertinent subsection of N.C. Admin. Code tit. 19A, r. 2E.0212(c) (June 2002) now provides: “An outdoor advertising structure cannot be made to conform to the Outdoor Advertising Control Act . . . when the permit is revoked under 19A NCAC 2E.0210 (2), (3), (11), or (12)[,]” where N.C. Admin. Code tit. 19A, r. 2E-0210(12) (June 2002) refers to “unlawful use of a controlled access facility for purposes of repairing, maintaining or servicing an outdoor advertising sign . . . .” (Emphasis added.)

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