Appalachian Poster Advertising Co., Inc. v. Harrington

Judge Lewis

dissenting.

I disagree with the majority’s conclusion that the Department of Transportation (hereinafter “Department”) does not have the authority to regulate petitioner’s sign.

N.C.G.S. section 136-130 confers permitting power, specifically authorizing the Department to promulgate rules and regulations governing, inter alia,:

*79(3) The specific requirements and procedures for obtaining a permit for outdoor advertising as required in G.S. 136-133 and for the administrative procedures for appealing a decision at the agency level to refuse to grant or in revoking a permit previously issued, ....

N.C.G.S. § 136-130 (1993) (emphasis added). N.C.G.S. section 136-133, referenced in the authorizing section above, further delineates this permitting power:

No person shall erect or maintain any outdoor advertising . . . without first obtaining a permit from the Department... pursuant to the procedures set out by rules and regulations promulgated by the Department.... The permit shall be valid until revoked for nonconformance with this Article or rules and regulations promulgated by the Department. . . thereunder.

N.C.G.S. § 136-133 (1993) (emphasis added). Read together, these two sections grant the Department the authority to grant new permits, to revoke existing permits, and to promulgate rules and regulations for this purpose. As discussed below, instead of making repairs to an existing sign, petitioner essentially erected a new sign. Thus, petitioner’s “new” sign was subject to the permitting process set up by these sections. I do not agree that the Department can only regulate signs “permitted” under N.C.G.S. sections 136-129, 136-129.1, 136-129.2. The Department is given, both directly and implicitly, the authority to determine which signs meet the requirements set forth in these sections and which signs do not. The power to make this determination in essence is the power to regulate.

The language of a statute will be construed, whenever possible, “so as to avoid an absurd consequence.” State v. Spencer, 276 N.C. 535, 547, 173 S.E.2d 765, 773 (1970). It is absurd to conclude that the Legislature intended to permit advertisers to circumvent the purposes of the Outdoor Advertising Control Act by converting old, nonconforming signs into new signs thereby avoiding regulation of these “new” signs. This would allow the unending converting of all existing nonconforming signs into “new” signs. Under the majority opinion, these new signs could be erected in different locations, be of increased or decreased size, the same or another message, and of any shape and construction. This would be the ultimate loophole for roadside advertising. For those who believe:

*80I think that I shall never see A billboard lovely as a tree Indeed, unless the billboards fall I’ll never see a tree at all
Ogden Nash, Song of the Open Road,
the majority is bad news indeed. Since I find the above issue not to be dispositive, I necessarily address the remaining issues: (1) whether the trial court erred in upholding the decision of the Secretary of Transportation; (2) whether the pertinent regulations are unconstitutionally vague; and (3) whether the regulations are an unconstitutional delegation of legislative power. I find all of petitioner’s arguments on these issues unpersuasive.

The General Assembly enacted the Outdoor Advertising Control Act (“OACA”) in 1967 in order, inter alia, “to promote the safety, health, welfare, and convenience and enjoyment of travel on and protection of the public investment in highways within the State.’,’ N.C.G.S. § 136-127 (1993). The OACA authorizes the Department to promulgate rules and regulations regarding outdoor advertising. See N.C.G.S. § 136-130 (1993). The regulations which applied at the time of the revocation and which were applied by the trial court in its de novo review provided in pertinent part:

Any valid permit issued for a lawful outdoor advertising structure shall be revoked by the appropriate district engineer for any one of the following reasons:
* * * *
(6) any alteration of a nonconforming sign or a sign conforming by virtue of the grandfather clause which would cause it to be other than substantially the same as it was on the date of issuance of a valid permit; examples of alterations which are not allowed for nonconforming signs or signs conforming by virtue of the grandfather clause include: extension, enlargement, replacement, rebuilding, re-erecting or addition of illumination;
* * * *
(12) abandonment, discontinuance, or destruction of a sign; ....

N.C. Admin. Code tit. 19Ar. 2E.0210 (August 1986) (emphasis added).

Petitioner first contends the trial court erred by finding and concluding the sign was substantially changed. I disagree.

*81We have previously interpreted “substantially” as used in this regulation to mean “ ‘essentially, in the main, or for the most part’ ” and as “ ‘[i]n a substantial manner, in substance, essentially.’ ” Appalachian Poster Advertising Co. v. Bradshaw, 65 N.C. App. 117, 121, 308 S.E.2d 764, 766 (1983) (internal citations omitted). “Substantially” does not mean “an accurate or exact copy.” Id.

The sign in Bradshaw underwent the following alterations: (1) the dimensions had changed from 25 feet by 12 feet to 30 feet by 10 feet; (2) the height of the poles increased from 20 feet to 30 feet; and (3) the number of poles increased from three to four. Id. at 118, 308 S.E.2d at 765. The wording on the face of the sign was not changed, although it was rearranged, and the advertiser remained the same. Id. After the changes, the sign retained the same square footage and remained in the same location. Id. at 121, 308 S.E.2d at 766. In light of these facts, we affirmed the trial court’s holding that the changes to the sign were not substantial.

The facts here are distinguishable from those in Bradshaw, and I would affirm the trial court’s finding that the changes were “substantial.” First, the sign here was completely replaced, distinguishing it from the sign in Bradshaw. The original facing of the sign was removed and taken to petitioner’s shop where it was repainted and altered to conform with the requirements of a new advertiser. New cross braces were added to the sign. Petitioner also replaced the support poles with new ones which were three feet taller. The whole structure was moved three to five feet farther from the highway. The dimensions were changed and the square footage altered. These changes are much more significant than those found not substantial in Bradshaw. As such, these changes constitute “replacement, rebuilding, and re-erecting,” alterations prohibited by N.C. Admin. Code tit. 19A r. 2E.0210(6). The changes to the sign also violated N.C. Admin. Code tit. 19A r. 2E.0210(12). Petitioner destroyed and discontinued the permitted sign and replaced it with the new creation. Instead of making repairs to an existing sign, petitioner erected an entirely new sign in a new location.

The trial court’s review of the decision of the Secretary of Transportation is without a jury and is de novo. N.C.G.S. § 136-134.1 (1993). The court may affirm the decision, or the court may reverse or modify the decision if it finds the decision to be: (1) in violation of a constitutional provision; or (2) not made in accordance with the OACA or the rules or regulations promulgated by the Department; or

*82(3) affected by other error of law. Id. The standard by which this court reviews the findings of fact of a trial court sitting without a jury is whether any competent evidence exists in the record to support the findings. Hollerbach v. Hollerbach, 90 N.C. App 384, 387, 368 S.E.2d 413, 415 (1988).

The trial court in the present case made the following pertinent finding of fact:

8. The new sign structure had all new support poles, a new cross bracing and an entirely new sign face. The dimensions of the new structure had different dimensions from the originally permitted nonconforming sign. The dimensions of the original sign were 35 feet in length and 20 feet in height. The new sign’s dimensions are 47 and 1/2 feet in length and 14 feet in height. The shape of the sign had changed due to the difference in the dimensions of the original sign and the new sign. The new sign was located in a different location approximately three to five feet behind the location of petitioner’s originally permitted sign. The words on the sign face changed from the original sign face to the new sign face.

There is sufficient evidence in the record to support this finding and the other findings of fact. In turn, the findings support the court’s conclusions of law, succinctly stated in conclusion number six:

6. The Secretary properly upheld the District Engineer’s revocation of petitioner’s permit due to discontinuance of the original sign and due to substantial alteration of the originally permitted nonconforming sign which caused it to be other than substantially the same as it was on the date the permit was issued, and that decision was in accordance with the Outdoor Advertising Control Act and rules and regulations promulgated by the Board of Transportation thereto.

We agree that the sign, as altered, was not substantially the same as when the permit was issued. The trial court properly upheld the decision of the Secretary of Transportation to revoke petitioner’s permit.

Petitioner also contends it was denied due process of law because N.C. Admin. Code tit. 19A r.2E.0210(6) is unconstitutionally void for vagueness. I disagree. “ . . . [A] statute is void for vagueness if its terms are so vague, indefinite, and uncertain that a person cannot determine its meaning and therefore cannot determine how to order his behavior to meet its dictates.” Nestler v. Chapel Hill/Carrboro City Schools Bd. of Educ., 66 N.C. App. 232, 238, 311 *83S.E.2d 57, 60, disc. review denied, 310 N.C. 745, 315 S.E.2d 703 (1984). Our previous definition in Bradshaw of “substantially” as used in N.C. Admin. Code tit. 19A r.2E.0210(6) demonstrates that the regulation is not vague, indefinite or uncertain. Requiring the owner of an outdoor advertising sign to maintain the sign “essentially, in the main, or for the most part” as it was when it became nonconforming gives sufficient notice for the ordinary, reasonable and prudent person to avoid revocation of the permit. Further, the regulation gives examples of changes deemed to be “substantial.” The regulation is not unconstitutional.

Petitioner next argues the regulation in question is void, asserting that the regulations are the result of an unconstitutional delegation of legislative power. Specifically, petitioner contends the General Assembly failed to set forth sufficient standards for the control of billboards by which the Department may be guided in adopting the rules and regulations in questions. I do not agree.

The process of determining whether an act unconstitutionally delegates authority to an agency was set forth in explicit detail by Justice Huskins for our Supreme Court in Adams v. Dept. of N.E.R., 295 N.C. 683, 696-98, 249 S.E.2d 402, 410-11 (1978). Without repeating all the criteria there, I simply note that “the primary sources of legislative guidance” are “the declarations by the General Assembly of the legislative goals and policies which an agency is to apply when exercising its delegated powers.” Id., 295 N.C. at 698, 249 S.E.2d at 411. The declaration of policy for the Outdoor Advertising Control Act is found in N.C.G.S. section 136-127 (1993):

The General Assembly hereby finds and declares that outdoor advertising is a legitimate commercial use of private property adjacent to roads and highways but that the erection and maintenance of outdoor advertising signs and devices in areas in the vicinity of the right-of-way of the interstate and primary highways within the State should be controlled and regulated in order 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 *84areas in the vicinity of the State highways and to promote the reasonable, orderly and effective display of such signs, displays and devices. It is the intention of the General Assembly to provide and declare herein a public policy an statutory basis for the regulation and control of outdoor advertising.

(Emphasis added). The section of the General Statutes following § 136-127 provides for limitation of outdoor advertising devices (§ 136-129); limitations of advertising beyond 660 feet (§ 136-129.1); limitations of advertising adjacent to scenic highways, State and National Parks, and historic areas (§ 136-129.2); removal of existing non-conforming advertising (§ 136-131); a permitting process (§ 136-133); and judicial review of final administrative decisions (§ 136-134.1). Further, N.C. Gen. Stat. § 136-130 specifically authorizes the Department to promulgate rules and regulations governing §§ 136-129, -129.1, -129.2 and -133.

The declarations of findings and goals set forth in § 136-127 and the provisions of the sections referenced above are as specific as reason requires and give adequate guidance to the Department in implementing its delegated powers. I would find these regulations a rational, reasonable and constitutional delegation of legislative power.

I would affirm the judgment in all respects.