Morris Communications Corp.. D/B/A Fairway Outdoor Advertising v. City of Bessemer City Zoning Bd. of Adjustment

• Decision Date: 16 June 2011
• Docket Number: No. 150A10.,150A10.
• Citation: 712 S.E.2d 868,365 N.C. 152
• Parties: MORRIS COMMUNICATIONS CORPORATION d/b/a Fairway Outdoor Advertising, Petitionerv.CITY OF BESSEMER CITY ZONING BOARD OF ADJUSTMENT, Respondent.
• Court: North Carolina Supreme Court

365 N.C. 152

712 S.E.2d 868

MORRIS COMMUNICATIONS CORPORATION d/b/a Fairway Outdoor Advertising, Petitioner

v.CITY OF BESSEMER CITY ZONING BOARD OF ADJUSTMENT, Respondent.

No. 150A10.

Supreme Court of North Carolina.

June 16, 2011.

OPINION TEXT STARTS HERE

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 689 S.E.2d 880 (2010), affirming a judgment and order entered on 31 October 2008 by Judge Thomas W. Seay, Jr. in Superior Court, Gaston County. On 26 August 2010, the Supreme Court allowed petitioner's petition for discretionary review as to an additional issue. Heard in the Supreme Court 15 November 2010.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Craig D. Justus, Ashville, for petitioner-appellant.

Gray, Layton, Kersh, Solomon, Furr & Smith, P.A., Gastonia, by David W. Smith, III and Michael L. Carpenter, for respondent-appellee.

MARTIN, Justice.

In this appeal we consider whether a local board of adjustment erred in prohibiting a company from relocating a sign as necessary to accommodate a state highway project.

In 2000 Morris Communications Corporation d/b/a Fairway Outdoor Advertising (Fairway) lawfully constructed a sign on land situated along the Gastonia Highway in Bessemer City, North Carolina. The sign stood in close proximity to the highway and a NAPA auto parts store located on the same parcel. In July 2005 the North Carolina Department of Transportation (DOT) notified Fairway that it was condemning a portion of the parcel to widen the highway. As a result, the sign had to be relocated and the NAPA building had to be renovated. To accommodate the DOT project, Fairway applied for a Bessemer City sign permit. On 31 August 2005, the Bessemer City zoning administrator met with a Fairway representative and issued a sign permit to Fairway. During their meeting the administrator and the Fairway representative discussed the sign relocation project. According to the Bessemer City sign ordinance, Fairway's permit would expire on 27 February 2006 unless Fairway began “the work described in ... [the] sign permit ... within six months from the date of issuance.” City of Bessemer City, N.C., Ordinance § 155.207. Fairway's sign permit stated that “[t]he applicant is responsible for obtaining a building permit (if required) prior to commencing work on the proposed improvement.”

In November 2005 Fairway applied for a building permit at the Gaston County building inspection department, which administers building permits for Bessemer City. The county issued Fairway a building permit on 13 December 2005. The county building permit contained language similar to the Bessemer City sign ordinance, stating that “[t]his permit becomes null and void if work or construction authorized is not commenced within 6 months, or if construction or work is suspended, or abandoned for a period of 1 year at any time after work is started.”

Soon after the sign permit was issued, Fairway began negotiating with DOT and the property owner, Ralph Dixon (Dixon). This process included communicating with DOT about the location of the highway's expanded right-of-way and discussions with Dixon about his plans for the NAPA building. As part of these negotiations, DOT indicated in a letter dated 2 December 2005 that it would pay Fairway $14,850.00 for the sign relocation. Fairway received another letter from DOT dated 21 February 2006 stating that Fairway had to remove the sign from the road widening project right-of-way “on or before” 15 March 2006. Fairway also began renegotiating the lease governing the sign with Dixon. On 27 February 2006, the day the sign permit was scheduled to expire if “work” had not commenced, Fairway issued an internal work order to remove the sign. On 9 March 2006, Fairway sent DOT a letter about its “tentative relocation plans for th[e] sign” and expressing its desire to remove the sign on or before 13 June 2006, several days before the widening project contract would be awarded. DOT orally agreed to push the removal date back to 19 June 2006. On 8 June 2006, Fairway applied for and received a renewed building permit from Gaston County. The renewed permit was scheduled to expire on 8 December 2006. On 12 June 2006, Bessemer City amended its zoning ordinance to ban most outdoor advertising.

On 13 June 2006, Fairway took down the sign in compliance with DOT's instructions. The sign, its poles, and other component parts were placed in storage off the property. The sign and related equipment remained in storage for more than five months while Fairway waited for DOT to finalize the exact location of the right-of-way and for Dixon to reconstruct the NAPA building. The right-of-way location was not finalized until the middle of November 2006. Fairway then made arrangements to install concrete footings and place the sign in its new location. On 4 and 5 December 2006, county officials inspected the footings. The next day Fairway reinstalled the sign. With the exception of the new footings, the sign was exactly the same as the one that had been previously removed.

On 16 January 2007, Bessemer City sent Fairway a Notice of Violation informing the company that the relocated sign violated the city's outdoor advertising ban and that it must be removed within thirty days. The notice asserted that Fairway's sign permit had expired because work on the relocation project had not “commenced prior” to the permit's expiration date, 27 February 2006. According to the notice, the renewed county building permit was invalid because it was issued after the city's sign permit had expired. On 14 February 2007, Fairway appealed the Notice of Violation to the Bessemer City Board of Adjustment (the BOA) pursuant to N.C.G.S. § 160A–388(b).

On 7 May 2007, the BOA conducted a public hearing and voted five to one to affirm the determination that the sign violated the city's outdoor advertising ban. The BOA Chair dissented. Following the hearing the BOA issued a written order demanding removal of the sign. Fairway filed a petition for writ of certiorari under N.C.G.S. § 160A–388(e2) requesting that the Superior Court, Gaston County, review the BOA's decision. With the consent of the parties, the trial court issued the writ on 10 August 2007. After hearing arguments on 29 October 2008, the trial court entered an order two days later affirming the BOA decision.

Fairway appealed to the Court of Appeals. On 2 March 2010, the Court of Appeals affirmed the trial court's order in a divided opinion holding that: (1) The BOA's interpretation of its ordinance was entitled to some deference under a de novo standard of review; (2) The trial court correctly concluded that the sign's re-erection violated the city's sign ordinance because Fairway had not commenced “work” within six months of the issuance of the sign permit; (3) Fairway did not have vested rights to re-erect the sign under N.C.G.S. § 160A–385(b)(i) because the sign permit expired before the building permit was renewed; (4) The BOA was not estopped from ordering the sign's removal; and (5) The trial court properly concluded that the BOA's decision was “supported by competent, material, and substantial evidence and was otherwise not arbitrary or capricious.” Morris Commc'ns Corp. v. City of Bessemer Zoning Bd. of Adjust., ––– N.C.App. ––––, 689 S.E.2d 880 (2010).

Judge Robert C. Hunter issued a dissenting opinion and argued that the BOA's interpretation of the term “work” was too narrow. Id. at ––––, 689 S.E.2d at 886 (Hunter, J., dissenting). Specifically, Judge Hunter contended that the term “ ‘work’ does not necessarily mean that a physical alteration must occur at the site.” Id. at ––––, 689 S.E.2d at 887.

We review the trial court's order for errors of law. See Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18 (2002) (citations omitted); Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjust., 334 N.C. 132, 137, 431 S.E.2d 183, 186–87 (1993). Our review asks two questions: Did the trial court identify the appropriate standard of review, and, if so, did it properly apply that standard? Mann Media, 356 N.C. at 14, 565 S.E.2d at 18; ACT–UP Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation omitted). As with any administrative decision, determining the appropriate standard of review to be applied when reviewing a board of adjustment decision depends on “the substantive nature of each assignment of error.” N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) (citations omitted); see also Mann Media, 356 N.C. at 13, 565 S.E.2d at 17; ACT–UP, 345 N.C. at 706, 483 S.E.2d at 392. Reviewing courts apply de novo review to alleged errors of law, including challenges to a board of adjustment's interpretation of a term in a municipal ordinance. See Capricorn Equity Corp., 334 N.C. at 137, 431 S.E.2d at 187; see also Mann Media, 356 N.C. at 13, 565 S.E.2d at 17 (citations omitted); In re Tadlock, 261 N.C. 120, 124–25, 134 S.E.2d 177, 180–81 (1964) (interpreting a city zoning ordinance as a question of law). De novo review applies here because Fairway alleges the BOA's interpretation of the term “ work” constituted an error of law. See Mann Media, 356 N.C. at 13, 565 S.E.2d at 17.

Fairway contends the Court of Appeals erred in determining the BOA's interpretation was entitled to deference under de novo review. We agree. Under de novo review a reviewing court considers the case anew and may freely substitute its own interpretation of an ordinance for a board of adjustment's conclusions of law. Id. (citation omitted). In Capricorn Equity Corporation, we noted that “the superior court, sitting as an appellate court, could freely substitute its judgment for that of [the Chapel Hill Board of Adjustment] and apply de novo review as could the Court of Appeals with respect to the judgment of the superior court.” 334 N.C....