Capital Outdoor Advertising, Inc. v. City of Raleigh

• Decision Date: 29 July 1994
• Docket Number: No. 136PA93,136PA93
• Court: North Carolina Supreme Court
• Parties: CAPITAL OUTDOOR ADVERTISING, INC., Carolina Posters Corporation, Harris Signs, Inc., Hogan Outdoor of Raleigh, Inc., and Whiteco Industries, Inc., t/a Whiteco Metrocom, Inc. v. The CITY OF RALEIGH, a North Carolina Municipal Corporation.

Page 289

446 S.E.2d 289

337 N.C. 150

CAPITAL OUTDOOR ADVERTISING, INC., Carolina Posters

Corporation, Harris Signs, Inc., Hogan Outdoor of

Raleigh, Inc., and Whiteco Industries, Inc., t/a Whiteco Metrocom, Inc. v. The CITY OF RALEIGH, a North Carolina Municipal Corporation.

No. 136PA93.

Supreme Court of North Carolina.

July 29, 1994.

Wilson & Waller, P.A. by Betty S. Waller and Brian E. Upchurch, Raleigh, for plaintiffs-appellees.

Thomas A. McCormick, City Atty. by Ira J. Botvinick, Deputy City Atty., for defendant-appellant.

MEYER, Justice.

The dispositive issues before this Court are (1) whether the trial judge had jurisdiction to enter the order dismissing plaintiffs' complaint, and (2) whether the trial judge erred in dismissing plaintiffs' complaint for the reason that it was time-barred. The Court of Appeals panel below (1) held that the trial judge erred in signing the dismissal order in question because he lacked jurisdiction to sign the order out of term, and (2) did not reach the issue of the timeliness of the filing of the complaint.

Having determined that the trial judge did not err in entering the order of dismissal out of term and that the plaintiffs' complaint was not timely filed, we now reverse the decision of the Court of Appeals and remand the case for reinstatement of Judge Hight's order dismissing the plaintiffs' complaint.

Plaintiffs are five outdoor advertising companies that own fifty-six billboards in Raleigh. On 18 October 1983, the City of Raleigh adopted an ordinance, Ordinance No. (1983) 210 TC 198, codified as section 10-2066 (presently section 10-284) of the Raleigh City Code (hereinafter "the October 1983 ordinance"), which became effective 23 October 1983. The ordinance amended an earlier 1979 ordinance that established zoning regulations for signs in Raleigh by reducing the size of permissible off-premises signs and restricting their location to "industrial zones" as defined in the ordinance, declared existing over-sized signs to be nonconforming uses, established an amortization period for nonconforming signs in lieu of any form of compensation, and prohibited the construction of any new nonconforming signs.

The October 1983 ordinance was entitled "An Ordinance Regulating the Placement, Area, and Height of Outdoor Advertising Signs." Since its effective date, all decisions relating to the permitting, locating, sizing, spacing, zoning conformance status, and amortization of billboards have been made according to this ordinance. The October 1983 ordinance, in pertinent part, requires that all nonconforming outdoor advertising signs be made to conform to the ordinance or be discontinued by 24 April 1989 unless application of the ordinance is specifically prohibited by state statute.

The nature of the issues raised on this appeal makes it unnecessary to set forth the contents of the ordinance in this opinion. We briefly characterize its contents only for the purpose of clarifying the issues. The October 1983 ordinance limits the area of off-premise outdoor advertising signs (billboards) facing four-lane streets to 150 square feet and limits the area of off-premise billboards facing streets with less than four lanes to 75 square feet. Outdoor advertising signs are restricted to a maximum height of 30 feet. Each billboard must generally be spaced at least 1,000 feet from another billboard and must be located at least 400 feet from a zoning district that permits dwellings. The ordinance is not a total prohibition of outdoor advertising signs. Subject to the spacing and locational standards, outdoor advertising signs may be located in Industrial-I and Industrial-II districts. The ordinance established a five and one-half year amortization period for removal of nonconforming signs. The ordinance specifically states that the amortization does not apply to billboards adjacent to highways on the National System of Interstate and Defense Highways or to the Federal-Aid Primary Highway System because regulation of such signs is prohibited by North Carolina statute. N.C.G.S. § 136-131.1 (1993). The five and one-half year amortization period ended on 24 April 1989.

Except for ordinary maintenance and poster panel replacements, nonconforming billboards, by virtue of other zoning regulations that are not the subject of this case, could not be altered, reerected, or removed during or after the amortization period unless the entire billboard was brought into conformity with the October 1983 ordinance.

Some preexisting billboards continued to meet the size and height requirements of the October 1983 ordinance, but others did not. None of the fifty-six billboards owned by the plaintiff billboard companies conformed to the requirements of the ordinance. The entire sign inventory of four of the five plaintiff companies was well in excess of the ordinance's allowable size limits. Of the plaintiffs' fifty-six billboards, twenty-seven had to be amortized on or before the expiration of the five and one-half year amortization period. Their remaining signs were exempted from the amortization requirements pursuant to N.C.G.S. § 136-131.1 because of their proximity to federal highway system roads.

Plaintiffs received a notification letter dated 6 January 1989 from the City demanding the removal of their nonconforming billboards by the April 1989 deadline. They filed a complaint on 12 April 1989 challenging the constitutionality of the ordinance. Specifically, plaintiffs contend that the ordinance constitutes a regulatory taking of plaintiffs' property for which no remedy is provided and is therefore illegal, void, and unconstitutional. Plaintiffs also contend that the spacing, height, and size restrictions in the ordinance and the "amortization clause" contained therein were enacted solely for aesthetic purposes and take the most substantial part of the value of plaintiffs' property. Consequently, the same is outside the police power delegated to the City and violates the laws and constitutions of North Carolina and the United States.

Plaintiffs brought this claim under 42 U.S.C. § 1983 and sought a declaratory judgment that the ordinance enacted by the City and, in particular, the amortization provisions thereof are void and requested an injunction permanently enjoining the City from enforcing any existing or subsequently enacted criminal and civil penalties. As previously indicated herein, the trial judge dismissed the action as being time-barred, and plaintiffs appealed. The Court of Appeals reversed the trial court, holding that the trial judge erred in signing the dismissal order out of term. The Court of Appeals did not address the issue of the timeliness of the filing of the complaint. We allowed discretionary review of the Court of Appeals' decision and therefore have before us the issue of whether the trial court had jurisdiction to enter the order dismissing the complaint. Because we reverse the Court of Appeals on that issue, we necessarily reach the issue of the timeliness of the filing of the complaint. We do not address the other issues raised by the complaint.

We first address the issue of whether the trial judge had jurisdiction to enter the order dismissing the plaintiffs' complaint. As did the Court of Appeals, we take judicial notice of the assignment of Judge Hight to hold court, Baker v. Varser, 239 N.C. 180, 186, 79 S.E.2d 757, 761-62 (1954), and that during the fall term ¹ of 1991 (1 July 1991 to 1 January 1992), Judge Hight was assigned to the Tenth Judicial District (a single-county district consisting of Wake County); he was assigned to hold the 28 October 1991 session 2 of Wake County Superior Court, a one- week session; this session of superior court was adjourned by Judge Hight on 1 November 1991; and Judge Hight was assigned to hold the 4 November 1991 session of Wake County Superior Court, a one-week session. Nothing in the record of this proceeding in the trial court indicates that Judge Hight extended the 28 October 1991 session pursuant to N.C.G.S. § 15-167 or that the parties or their attorneys consented to entry of the order of dismissal in a session of court other than the session in which the motion was heard. Judge Hight heard the City's Rule 12(b)(6) motion on 29 October but made no ruling on the motion until 4 November, the Monday following the expiration on the previous Friday of the 28 October session. Thus, his order was entered within the proper county, within the proper judicial district, but out of session.

While lamenting the necessity of its decision and suggesting that the problem deserved legislative inquiry, the Court of Appeals nevertheless held that because the parties did not consent on the record and in a timely fashion, Judge Hight's dismissal order was null and void. We disagree.

In its opinion, the Court of Appeals noted the following oft-repeated rules: Except by agreement of the parties, an order of the superior court must be entered "during the term, during the session, in the county and in the judicial district where the hearing was held." State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). An order entered inconsistent with this rule is "null and void and of no legal effect." Id. We have held that, to be valid, consent to entry of an order outside the county in which the action is pending must appear "in a writing signed by the parties or their counsel, or the judge should recite the fact of consent in the order or judgment he directs to be entered of record--which is the better way; or such consent should appear by fair implication from what appears in the record." Godwin v. Monds, 101 N.C. 354, 355, 7 S.E. 793, 794 (1888). The same is true for consent to an entry of an order out of term, session, or district. Failure to object to the entry of an order out of the session does not, however, constitute consent. See Boone, 310 N.C. at 288, 311 S.E.2d at 555-56. Likewise, preparation of a proposed order for...