Whiteco Outdoor Advertising v. Johnston County Bd. of Adjustment, COA98-580.

Citation132 NC App. 465,513 S.E.2d 70
Decision Date02 March 1999
Docket NumberNo. COA98-580.,COA98-580.
PartiesWHITECO OUTDOOR ADVERTISING, a division of Whiteco Industries, Inc., Petitioner, v. JOHNSTON COUNTY BOARD OF ADJUSTMENT, Respondent.
CourtCourt of Appeal of North Carolina (US)

Wilson & Waller, P.A., by Betty S. Waller, Raleigh, for petitioner-appellant.

J. Mark Payne and W.A. Holland, Jr., Smithfield, for respondent-appellee.

MARTIN, Judge.

Petitioner Whiteco Outdoor Advertising ("Whiteco") appeals from an order of the superior court affirming a decision of respondent Johnston County Board of Adjustment ("Board") denying Whiteco a use permit to rebuild two damaged billboard signs. The facts underlying this appeal are summarized from the record as follows:

In May 1996, Whiteco managed two billboard signs at different sites adjacent to Interstate 95 in Johnston County, North Carolina. One billboard is located on property owned by Joe Austin ("the Austin sign") and was constructed in January 1960; the other billboard was constructed in September 1982 and is located on property owned by William Kawecki ("the Kawecki sign"). The billboard signs are subject to regulation by both Johnston County and the North Carolina Department of Transportation ("DOT"), and, prior to May 1996, were nonconforming with Johnston County Zoning Ordinance, Article 5.5, Spacing of Signs. The Austin sign was also nonconforming with DOT regulations and the North Carolina Outdoor Advertising Act.

On 6 May 1996, a windstorm damaged both billboards. Whiteco immediately undertook repairs to restore the signs. On 7 May 1996 the Johnston County Assessment Team for storm damage examined the signs and reported both signs as being "totally destroyed." On 8 May, Greg Smith, a Johnston County building inspector, examined both sites and noted the presence of destroyed sign poles, new sign building materials, including new poles erected at each site, as well as the absence of the old billboard faces. Based on this inspection, a notice was placed at each site informing Whiteco that building permits were required prior to replacing the signs. However, Whiteco continued replacement efforts without obtaining building permits.

On 22 May 1998, C.P. Thompson, Chief Building Inspector for Johnston County, informed Whiteco that the signs had been replaced in violation of stop work orders posted at both sites on 8 and 9 May, and that the signs should be removed. Whiteco was also notified by Calvin Genereux, Johnston County Planning Director, that the signs had been damaged in excess of 50% of their initial value, and that the Johnston County Zoning Ordinance prohibited their replacement. Mr. Genereux informed Whiteco that the County would not issue use permits for the signs to be rebuilt and instructed Whiteco to remove the signs. Whiteco denied that it had been made aware of the stop work orders prior to proceeding with the repairs and contended the cost of repairs to the signs did not exceed 50% of their respective values.

Whiteco appealed Mr. Genereux's decision to respondent Board. After a hearing, the Board determined that both signs had been damaged more than 50% of the original cost of erecting them, rejecting Whiteco's contentions that valuations of the signs should be determined by the income method or by the fair market value method. Whiteco petitioned the Johnston County Superior Court for a writ of certiorari to review the Board's decision. Whiteco now appeals from the superior court's order affirming the Board's decision.

In support of the six assignments of error contained in the record, Whiteco advances four arguments on appeal. Whiteco contends the trial court erred in (1) concluding the Board's decision was supported by substantial competent evidence; (2) concluding that the Board's decision was not arbitrary or capricious; (3) finding that the Board's decision was free from errors of law; and (4) finding that Whiteco's right to due process was not violated by the consideration of evidence which Whiteco had no opportunity to cross-examine. After careful consideration of Whiteco's arguments, we affirm the order of the trial court.

While the Administrative Procedure Act ("APA") does not apply to decisions of town boards or local municipalities, the principles embodied in the APA are "highly pertinent" to a review of such boards. Coastal Ready-Mix Concrete Co., Inc. v. Board of Commissioners, 299 N.C. 620, 265 S.E.2d 379, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). When reviewing the decision of such a board, 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. Id. at 626, 265 S.E.2d at 383. See also, Appeal of Willis, 129 N.C.App. 499, 500 S.E.2d 723 (1998). Our task, in reviewing a superior court order entered after a review of a board decision is two-fold: (1) to determine whether the trial court exercised the proper scope of review, and (2) to review whether the trial court correctly applied this scope of review. Willis at 502, 500 S.E.2d at 726 (quoting ACT-UP Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).

In this case, Whiteco contends the whole record does not contain substantial competent evidence to support the Board's decision. When the decisions of a board of adjustment are challenged as either unsupported by substantial competent evidence or arbitrary and capricious, the reviewing court conducts a "whole record test" to determine whether the Board's findings are supported by substantial evidence contained in the whole record. Willis at 501, 500 S.E.2d at 725. Substantial evidence is "evidence a reasonable mind might accept as adequate to support a conclusion." Hayes v. Fowler, 123 N.C.App. 400, 405, 473 S.E.2d 442, 445 (1996). Moreover, a decision may be reversed as arbitrary and capricious only where the petitioner establishes that the decision was whimsical, made patently in bad faith, indicates a lack of fair and careful consideration, or "fail[s] to indicate `any course of reasoning and the exercise of judgment....'" Adams v. N.C. State Bd. of Registration for Professional Engineers and Land Surveyors, 129 N.C.App. 292, 297, 501 S.E.2d 660, 663 (1998) (citation omitted). In this case the Board's order cites the pertinent sections of Section 7.5 of the Johnston County Ordinance, which provides that a permit is required when "[m]aking repairs to a nonconforming sign ... which exceeds 50 percent of the initial value of the sign as determined by the District Engineer." Section 7.7 of the ordinance states, "[n]o nonconforming sign shall be erected, replaced or otherwise modified in such a way as to increase its nonconformity. Reasonable repair and maintenance of nonconforming signs ... is permitted, provided that a nonconforming sign which is damaged or deteriorated to the extent of fifty (50) percent or more of its value shall not be replaced unless it conforms to all provisions of this ordinance."

During the Board's hearing of this matter, the Planning Director was presented a letter from the DOT District Engineer stating that he had determined that the Austin sign was damaged in excess of 50% of its initial value, and that the Engineer observed that the sign had been replaced by all new materials. Evidence was also presented establishing that the County Damage Assessment Team determined...

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