Naegele Outdoor Advertising, Inc. v. Harrelson

• Decision Date: 21 September 1993
• Docket Number: No. 9210SC913,9210SC913
• Citation: 112 N.C.App. 98,434 S.E.2d 244
• Parties: NAEGELE OUTDOOR ADVERTISING, INC., Petitioner v. Thomas J. HARRELSON, as Secretary of Transportation of the State of North Carolina.
• Court: North Carolina Court of Appeals

Page 244

434 S.E.2d 244

112 N.C.App. 98

NAEGELE OUTDOOR ADVERTISING, INC., Petitioner v. Thomas J. HARRELSON, as Secretary of Transportation of the State of North Carolina.

No. 9210SC913.

Court of Appeals of North Carolina.

Sept. 21, 1993.

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

Atty. Gen., Lacy H. Thornburg by Asst. Atty. Gen., Elizabeth N. Strickland, Raleigh, for the State.

LEWIS, Judge.

On 12 June 1991 Naegele Outdoor Advertising, Inc. (hereafter "Naegele") filed a petition seeking judicial review of a final decision of the North Carolina Department of Transportation (hereafter "DOT") denying its requests for outdoor advertising permits. The trial court granted Naegele's motion for summary judgment, denied DOT's motion for summary judgment, and ordered DOT to issue two permits to Naegele. DOT now appeals.

When DOT began construction on new N.C. Highway 16 in Gaston County in 1989, it exposed a previously hidden junkyard to view from the road. According to its duties set forth in the Junkyard Control Act, DOT attempted to remove or screen the site from view. In February 1990 District Engineer C.S. Ledbetter wrote to Mr. Tony Drum, owner of the junkyard, Sports Car Salvage, Ltd., advising him that the junkyard was nonconforming and would have to be removed or screened. In September 1990 DOT authorized the use of project funds for the screening, and in March and April 1991, DOT planted 50 Cypress trees in front of the junkyard to act as a natural screen.

On 20 October 1989, prior to the installment of any screening devices, Naegele applied for three outdoor advertising permits along Highway 16 in the area of the junkyard, claiming that the view of the junkyard rendered the unzoned area commercial for the purposes of outdoor advertising. Ledbetter returned Naegele's deposit on 25 October 1989 because the highway construction was not completed. On 20 July 1990 Naegele again applied for two permits in the same area, and Ledbetter again returned Naegele's checks, explaining that DOT was in the process of obtaining federal funds to screen the junkyard. Naegele submitted its third application for permits on 18 January 1991. On 8 February 1991 Ledbetter denied these applications for failure to comply with the North Carolina Administrative Code and the Outdoor Advertising Control Act, stating that the commercial activities were not visible from the roadway and that the business was scheduled to be screened.

Naegele appealed the denial of its third request on 8 March 1991 to the Secretary of DOT, Thomas J. Harrelson. On 2 May 1991, Harrelson upheld the denial of the permits because the commercial activity was not normally visible from the roadway, but was only temporarily visible due to a construction project and had been screened. Naegele filed its petition for judicial review of Harrelson's decision on 12 June 1991. As stated above, the trial court ruled in favor of Naegele, and DOT now appeals to this Court.

The issue before us is whether the temporary exposure of a junkyard to view by highway construction work is sufficient to render an unzoned area commercial for the purposes of outdoor advertising laws, even though the junkyard must eventually be screened from view or removed. Analysis of this issue involves examination of the inter-relationship, if any, between the Outdoor Advertising Control Act, N.C.G.S. §§ 136-126 to -140 (hereafter "OACA"), and the Junkyard Control Act, N.C.G.S. §§ 136-141 to -155 (hereafter "JCA").

According to section 136-129 of the OACA, outdoor advertising is not permitted "within 660 feet of the nearest edge of the right-of-way of the interstate or primary highways in this State so as to be visible from the main-traveled way thereof ...," except in designated situations, which include "[o]utdoor advertising, ..., located in unzoned commercial or industrial areas." § 136-129(5) (Cum.Supp.1992). Unzoned commercial or industrial areas are defined by the rules and regulations as "[t]hose areas which are not zoned ... and which are within 660 feet of the nearest edge of the right-of-way ... in which there are located one or more permanent structures devoted to a commercial or industrial activity or on which a commercial or industrial activity is actually conducted...." N.C.Admin. Code tit. 19A, r. 2E.0201(c)(1) (Nov. 1990). However, an activity is not commercial or industrial if it is "not visible from the main traveled way." N.C.Admin.Code tit. 19A, r. 2E.0201(a)(9)(D) (Nov. 1990).

The JCA states that

[n]o junkyard shall be established, operated or maintained, any portion of which is within 1,000 feet of the nearest edge of the right-of-way of any interstate or primary highway, except ... [t]hose which are screened by natural objects ... so as not to be visible from the main-traveled way of the highway at any season of the year or otherwise removed from sight or screened in accordance with the rules and regulations promulgated by the Department of Transportation.

N.C.G.S. § 136-144(1) (1986). A junkyard lawfully in existence along any highway "which may be hereafter designated as an interstate or primary highway and which does not conform to the requirements for exception under G.S. 136-144 hereof, shall be screened, if feasible, by the Department of Transportation...." N.C.G.S. § 136-147 (1986).

According to DOT, because the junkyard "was only fortuitously and temporarily opened up by [DOT's] construction project," and because DOT had a duty under section 136-147 to screen the junkyard, that site could not qualify as a commercial activity under the OACA. DOT claims it is "clearly the intent of the JCA and the OACA to keep outdoor advertisers from claiming such junkyards as activities for qualifying unzoned areas as commercial or industrial when [DOT] is in the process of screening such junkyards."

Naegele defends ...