concurring in part and dissenting in part.
I concur with the majority’s conclusion that local regulation of outdoor advertising is not preempted under N.C. Gen. Stat. *54§ 160A-174(b)(5). However, I do not agree with the majority’s conclusion that the County’s zoning ordinance is preempted pursuant to N.C. Gen. Stat. § 160A-174(b)(2). Therefore, I respectfully dissent from that portion of the majority’s opinion and vote to affirm the Superior Court’s order concluding that the County’s zoning ordinance is not preempted.
The majority holds that the OACA and the corresponding DOT regulations expressly allow a permit holder to relocate a nonconforming billboard within a Sign Location/Site, but the County’s zoning ordinance prohibits such action. The majority therefore concludes that the County’s zoning ordinance is preempted pursuant to N.C.G.S. § 160A-174(b)(2). The majority also finds this Court’s decision in Morris Communications Corp. v. Board of Adjust. of Gastonia, 159 N.C. App. 598, 583 S.E.2d 419 (2003), reh’g denied, 358 N.C. 155, 592 S.E.2d 690 (2004) to require that we find the County’s zoning ordinance is preempted. I do not agree.
In Morris, the City of Gastonia required the petitioner to apply for a permit to change the frame and advertising sign on a billboard. Id. at 599, 583 S.E.2d at 420. When the petitioner applied for the permit, the City denied the application. Id. The petitioner appealed the decision, arguing that changing the frame and the advertisement on the billboard was expressly permitted by State law. Id. The Board of Adjustment upheld the denial of the permit, but the Superior Court reversed, concluding, inter alia, that State law preempted the city’s ordinance. Id. The city ordinance in effect in Morris provided:
(c) A nonconforming sign may not be moved or sign structure replaced except to bring the sign into complete conformity with this chapter. Once a nonconforming sign is removed (i.e., the removal of the structural appurtenances above the base or footing) from the premises or otherwise taken down or moved, said sign only may be replaced or placed back into use with a sign which is in conformance with the terms of this chapter.
(d) Minor repairs and maintenance of nonconforming signs necessary to keep a nonconforming sign in sound condition are permitted.
Id. at 602, 583 S.E.2d at 422. The relevant DOT regulation provided:
(c) Alteration to a nonconforming sign ... is prohibited. Reasonable repair and maintenance are permitted including *55changing the advertising message or copy. The following activities are considered to be reasonable repair and maintenance:
(1) Change of advertising message or copy on the sign face.
(2) Replacement of border and trim.
(3) Repair and replacement of a structural member, including a pole, stringer, or panel, with like material.
(4) Alterations of the dimensions of painted bulletins incidental to copy change.
Id. at 604, 583 S.E.2d at 423. As the majority recognizes in the present case, we concluded in Morris that the DOT regulation expressly permitted repair and replacement of a billboard’s structural member. Therefore, the ordinance was preempted to the extent that it conflicted with the DOT regulation. Id. at 605, 583 S.E.2d at 423-24. Further, we also concluded in Morris that N.C. Gen. Stat. § 136-131.1 did not apply because the City of Gastonia did not remove the sign or cause the sign to be removed. Id. at 605, 583 S.E.2d at 424.
In the present case, I draw the same conclusion as to N.C.G.S. § 136-131.1. Respondents did not remove the sign or cause the sign to be removed. Indeed, the County was not even aware of the change in the billboard’s location until after Lamar had relocated the billboard. Further, even if N.C.G.S. § 136-131.1 does apply to the present case, it does not prohibit local governments from removing signs, or causing signs to be removed, but prohibits local governments from doing so “without the payment of just compensation!)]” Therefore, this provision does not provide a basis for finding that the County’s zoning ordinance is preempted.
I also conclude that the definitions included in 19A N.C.A.C. 2E.0201 and the grounds for revocation contained in 19A N.C.A.C. 2E.0210 relied upon by Lamar do not expressly make lawful an act made unlawful by the County’s zoning ordinance. Although Lamar insists, and the majority agrees, that Morris requires us to conclude that the County’s zoning ordinance is preempted, I find the DOT regulations applicable in the present case to be different from the DOT regulation at issue in Morris, and I distinguish Morris on that ground. Two of the provisions relied upon by Lamar are contained in the definition section of the regulations, and the third lists situations in which DOT can revoke a permit. Furthermore, although the majority correctly states that DOT’S regulations provide that “[a] nonconform*56ing sign . . . may continue as long as it is not abandoned, destroyed, discontinued, or significantly damaged[,]” this provision does not mention relocation of a billboard. In contrast, the regulation at issue in Morris was a substantive statement of prohibited and permissible actions regarding nonconforming signs and expressly stated that “ ‘[reasonable repair and maintenance [of a nonconforming billboard] are permitted including changing the advertising message or copy.’ ” Morris, 159 N.C. App. at 604, 583 S.E.2d at 423 (quoting 19A N.C.A.C. 2E.0225(c)). I conclude that the DOT regulations relied upon by Lamar and the majority in the present case do not expressly make lawful the relocation of a nonconforming sign within the “Sign Location/Site” in violation of local zoning ordinances. Therefore, I would affirm the Superior Court’s conclusion that the County’s zoning ordinance is not preempted by the OACA or DOT’s corresponding regulations pursuant to N.C.G.S. § 160A-174(b)(2).
Lamar also briefly argues that the Board’s decision was not supported by competent evidence and was arbitrary as a matter of law. When reviewing a claim that a board’s decision was not supported by the evidence, or was arbitrary and capricious, the Superior Court must apply the whole record standard of review. Hopkins v. Nash County, 149 N.C. App. 446, 448, 560 S.E.2d 592, 594 (2002). “The ‘whole record’ test requires the reviewing court to examine all competent evidence (the ‘whole record’) in order to determine whether the agency decision is supported by ‘substantial evidence.’ ” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). “The ‘whole record’ test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo." Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
Lamar argues that the Board’s findings of fact were based upon a misapprehension of law regarding the preemption issue and, therefore, are not binding on appeal and should not be upheld. Because I conclude that the Superior Court did not err by upholding the Board’s decision, I reject this argument.
Finally, because I would affirm the Superior Court’s order from which Lamar appeals, I do not reach Respondent’s assignments of error.