{ "id": 8524541, "name": "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a Naegele Outdoor Advertising Company of the Triad, Plaintiff-Appellant v. CITY OF WINSTON-SALEM, Defendant-Appellee", "name_abbreviation": "Naegele Outdoor Advertising, Inc. v. City of Winston-Salem", "decision_date": "1994-03-01", "docket_number": "No. 9221SC1137", "first_page": "758", "last_page": "764", "citations": [ { "type": "official", "cite": "113 N.C. App. 758" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "58 ALR2d 1314", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "1163" } ], "opinion_index": 0 }, { "cite": "118 L.Ed.2d 593", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "947 F.2d 1158", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525307 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/947/1158-01" ] }, { "cite": "45 L.Ed.2d 666", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "422 U.S. 1002", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9441, 9507, 9667, 9669, 9577, 9484 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/1002-06", "/us/422/1002-05", "/us/422/1002-02", "/us/422/1002-01", "/us/422/1002-04", "/us/422/1002-03" ] }, { "cite": "211 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566789 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0366-01" ] }, { "cite": "392 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308416, 5304771, 5309702, 5307243, 5304989 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0486-04", "/nc/326/0486-03", "/nc/326/0486-01", "/nc/326/0486-05", "/nc/326/0486-02" ] }, { "cite": "386 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "96 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523434 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/96/0533-01" ] }, { "cite": "297 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560900, 8560934, 8560883, 8560952, 8560924 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0127-02", "/nc/307/0127-04", "/nc/307/0127-01", "/nc/307/0127-05", "/nc/307/0127-03" ] }, { "cite": "294 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526010 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0697-01" ] }, { "cite": "118 L.Ed.2d 547", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 1 }, { "cite": "412 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "306" } ], "opinion_index": 1 }, { "cite": "330 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512760 ], "year": 1991, "pin_cites": [ { "page": "245" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0227-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "615" } ], "opinion_index": 1 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "pin_cites": [ { "page": "721" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "372 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "743-44" } ], "opinion_index": 1 }, { "cite": "91 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526229 ], "year": 1988, "pin_cites": [ { "page": "572" } ], "opinion_index": 1, "case_paths": [ "/nc-app/91/0570-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 }, { "cite": "947 F.2d 1158", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525307 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1163" } ], "opinion_index": 1, "case_paths": [ "/f2d/947/1158-01" ] } ], "analysis": { "cardinality": 666, "char_count": 14758, "ocr_confidence": 0.765, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5195316406477752 }, "sha256": "3a8ba5c41341ccfde94c2175fbdd6c2d1ab5ac2dccf9a5dd49ac5e5153ac37af", "simhash": "1:4d42d7f2427526ba", "word_count": 2340 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCRODDEN concurs.", "Judge COZORT dissents." ], "parties": [ "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a Naegele Outdoor Advertising Company of the Triad, Plaintiff-Appellant v. CITY OF WINSTON-SALEM, Defendant-Appellee" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis case concerns a zoning ordinance dealing with the regulation of signs which was adopted by the Winston-Salem Board of Aldermen on 15 April 1985. The part of the ordinance which is the subject of this appeal is the portion dealing with \u201coff-premise grounded signs,\u201d defined in the ordinance by reference to size, zones, height, spacing, setback, distance from residential zones, number of faces, measurement, illumination, and C.B.D. view corridors. This ordinance contains an amortization schedule for these off-premise grounded signs stating that \u201c[a]ll non-conforming off-premise signs shall be removed or brought into compliance with all requirements of this ordinance . . . within 7 years of the date of its adoption.\u201d The ordinance further stated \u201c[t]his ordinance shall become effective upon adoption.\u201d\nBy letter to plaintiff dated 31 October 1986, defendant stated, in pertinent part, \u201cthat the following signs are in violation of the City of Winston-Salem Sign Ordinance and must be removed by April 15, 1992, in accordance with Section 25-12(f) of the Winston-Salem City Code.\u201d This letter made reference to signs located along 1-40, Highway 52 and Corporation Freeway (those being Federal Aid Interstate and Federal Aid Primary Highways), and these were attached as Exhibit A. The letter further noted that those signs may be eligible for compensation pursuant to North Carolina General Statutes \u00a7 136-131.1 (1993). Also attached to the letter was Exhibit B, a list of plaintiffs other billboards \u201crequired to be removed.\u201d\nOn 22 November 1991, defendant notified plaintiff by letter that removal of those billboards located along Federal Aid Interstate and Federal Aid Primary Highways (Exhibit A) required compensation upon removal, pursuant to North Carolina General Statutes \u00a7 136-131.1, and that therefore, those signs would not have to be removed until defendant appropriated the money to pay compensation, or until the law changed to no longer require compensation. However, this letter again gave notice that the signs listed in Exhibit B had to be removed by 15 April 1992 if they were still in violation of the ordinance on that date.\nBy letter dated 22 April 1992, defendant notified plaintiff that they were still in violation of the zoning ordinance, and that criminal charges may be brought if plaintiff permitted the violation to continue for as long as ten (10) days after receiving the letter.\nOn 11 May 1992, plaintiff filed an action against defendant seeking damages, due to the enactment of this ordinance which regulated signs within the city. Defendant filed an answer moving to dismiss plaintiff\u2019s motion for lack of subject matter jurisdiction and failure to exhaust administrative remedies, and to dismiss all claims for failure to state a claim upon which relief could be granted based upon the statute of limitations. The trial judge allowed defendant\u2019s motion to dismiss pursuant to North Carolina General Statutes \u00a7 1A-1, Rule 12(b)(6) (1990) on statute of limitations grounds. From this dismissal, plaintiff appeals to our Court.\nPlaintiff argues that its \u201cinverse condemnation claim for the taking of its sign properties by enforcement of the Winston-Salem zoning ordinance is not barred by the applicable statute of limitations.\u201d Specifically, plaintiff argues the date of \u201ctaking\u201d should be the date the City required the removal of the signs, the last date of the amortization period, and that as a result, the statute of limitations should run from that date. Further, plaintiff argues that even if the \u201ctaking\u201d occurred at some earlier date, the running of the statute of limitations does not begin to run until the date of completion of the \u201cproject.\u201d For reasons which follow, we find that plaintiff\u2019s argument fails.\nAs an initial matter, we note that zoning ordinances involving billboard removal after an amortization period have been held to be lawful and to not constitute a taking. See Givins v. Town of Nags Head, 58 N.C. App. 697, 294 S.E.2d 388, cert. denied and appeal dismissed by 307 N.C. 127, 297 S.E.2d 400 (1982), where our Court found that the town\u2019s prohibition (with a five and one half year amortization period) of off-premise commercial signs, while permitting on-premise signs, did not violate equal protection. See also Summey Outdoor Advertising v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, disc. review denied, 326 N.C. 486, 392 S.E.2d 101 (1990); State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed by 422 U.S. 1002, 45 L.Ed.2d 666 (1975), where our Supreme Court found a zoning ordinance valid which provided for termination of certain non-conforming uses after an amortization period. Similarly, the enactment of the ordinance in the case sub judice does not constitute a taking.\nTherefore, this case turns on a determination of the statute of limitations. We note that this issue was presented in a Fourth Circuit case arising out of Raleigh on facts quite similar to the facts in this appeal. In National Advertising Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991), cert. denied by 118 L.Ed.2d 593 (1992), the plaintiff sign company brought suit against the city of Raleigh alleging that a city ordinance restricting off-premise outdoor advertising signs resulted in an unconstitutional taking of its property. The plaintiff argued that the trial court erred in finding that the cause of action accrued upon enactment of the ordinance in 1983, rather than when the amortization period expired. Although this case dealt with a 42 U.S.C. \u00a7 1983 action alleging an unconstitutional taking, the Court\u2019s reasoning as to when the statute of limitations accrued is persuasive:\nNational [plaintiff sign company] contends that its 'cause of action did not accrue until the expiration of the 572 year amortization period . . . when it faced the City\u2019s demand that the nonconforming signs be removed. Until then, National asserts, it suffered no actual injury because the . . . ordinance was neither applied nor enforced against it. . . .\nNational\u2019s contentions miss the mark. Immediately upon enactment, the . . . ordinance interfered in a clear, concrete fashion with the property\u2019s primary use. Thus, [on the date the ordinance was enacted] National\u2019s signs became \u201cnonconforming outdoor advertising signs.\u201d ... The ordinance therefore interfered in a concrete fashion with National\u2019s primary use of its existing signs by mandating that this use change or cease within five years.\nId. at 1163. We adopt the reasoning of the Court in National Advertising Co. and hold that plaintiff\u2019s cause of action in the appeal before us accrued when the ordinance was adopted on 15 April 1985.\nThe applicable statute of limitations as to zoning ordinances is found in North Carolina General Statutes \u00a7 160A-364.1 (1987) which states \u201c[a] cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within nine months as provided in G.S. \u00a7 1-54.1.\u201d Therefore, in the case at hand, we find the statute of limitations on this cause of action has run, and that the trial judge properly dismissed this case pursuant to North Carolina General Statutes \u00a7 1A-1, Rule 12(b)(6) on statute of limitations grounds.\nWe need not address plaintiff\u2019s remaining arguments.\nThe decision of the trial court is affirmed.\nJudge McCRODDEN concurs.\nJudge COZORT dissents.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge COZORT\ndissenting.\nI disagree with the majority\u2019s decision affirming the trial court\u2019s dismissal of plaintiff\u2019s action based on the statute of limitations. The majority determined that the applicable statute of limitations in this case, located in N.C. Gen. Stat. \u00a7 160A-364.1 (1987), began to run when the Winston-Salem Board of Aldermen enacted the zoning ordinance on 15 April 1985. The statute provides, \u201c[a] cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within nine months as provided in G.S. 1-54.1.\u201d Relying on National Advertising Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991), the majority concludes the plaintiff should have filed its action within nine months of the adoption of the ordinance.\nIn its complaint, plaintiff\u2019s first claim for relief alleged a cause of action for inverse condemnation. Later claims challenged the validity of the ordinance. In its brief, plaintiff argues only the inverse condemnation claim, thereby abandoning its challenge of the validity of the zoning ordinance. As a result, the applicable statute of limitations at issue here is not found in N.C. Gen. Stat. \u00a7 160A-364.1. The controlling statute of limitations is located in N.C. Gen. Stat. \u00a7 40A-51 (1984), which provides that an action for inverse condemnation \u201cmay be initiated within twenty-four (24) months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall accrue later.\u201d\nAt first glance, the National Advertising case appears to resolve the statute of limitations issue below. I find National Advertising distinguishable from this case. First, as the majority notes, National Advertising \u201cdealt with a 42 U.S.C. \u00a7 1983 action alleging an unconstitutional taking,\u201d rather than an action for damages for inverse condemnation. The holding in National Advertising was based on a federal accrual statute, rather than a state statute of limitations. The federal law governing a \u00a7 1983 claim utilizes a different standard for determining an accrual date: the action\u2019s accrual date is at the time the plaintiff \u201cknows or has reason to know\u201d of the injury which is the foundation for the action.\nFurthermore, the Fourth Circuit\u2019s reasoning in National Advertising, holding that a \u201ctaking\u201d of the property occurred at the time of the adoption of the ordinance, is unpersuasive. I find the \u201ctaking of the affected property\u201d did not occur when the ordinance was enacted; rather it occurred at the termination of the amortization period. Since the City of Winston-Salem had the ability to amend the ordinance at any time during the amortization period, both plaintiff\u2019s right to seek compensation under the ordinance and the City\u2019s right to enforce it did not vest, or fix, until the end of the amortization period. I do not agree with the proposition outlined in National Advertising and cited by the majority that \u201c[ijmmediately upon enactment, the . . . ordinance interfered in a clear, concrete fashion with the property\u2019s primary use.\u201d National Advertising, 947 F.2d at 1163. Here, no actual interference occurred until plaintiff was compelled to pull down all billboards not in compliance on the last day of the amortization period.\nAssuming arguendo, that a taking did occur at the time of the ordinance\u2019s enactment, the project was not completed until the signs were due to be removed on 15 April 1992. N.C. Gen. Stat. \u00a7 40A-51 provides for the statute to run at the later date of either the taking or the \u201ccompletion of the project involving the taking.\u201d Here, the completion of the project obviously did not transpire until 15 April 1992. The purpose for the accrual date being at the \u201ccompletion of the project\u201d is \u201cto provide plaintiffs adequate opportunity to discover damage.\u201d McAdoo v. City of Greensboro, 91 N.C. App. 570, 572, 372 S.E.2d 742, 743-44 (1988). In the present case, plaintiff could not determine the amount of damage or change in value of its property until the billboards were to be extracted at the project\u2019s completion \u2014 the end of the amortization period. Accordingly, I vote to reverse the trial court\u2019s order dismissing plaintiff\u2019s complaint based on the statute of limitations, since the complaint complied with N.C. Gen. Stat. \u00a7 40A-51 by being filed within two years of 15 April 1992.\nHaving found the trial court erred by dismissing the complaint on statute of limitation grounds, I am compelled to consider defendant\u2019s cross-assignment of error that plaintiff\u2019s claims were subject to dismissal on the grounds that the plaintiff failed to exhaust its administrative remedies pursuant to N.C. Gen. Stat. \u00a7 160A-388. In general, when the legislature had provided for an effective administrative remedy to address a complaint, the remedy must be exhausted before a party may result to action in court. See, i.e., Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979). However, in the case below, an appeal to the Board of Adjustment would have been an ineffective remedy because plaintiff\u2019s complaint contained constitutional claims based on the conduct of city officials; the claims would have reached beyond the Board\u2019s authority to review. The law does not provide for the review of constitutional questions by administrative boards. Bailey v. State, 330 N.C. 227, 245, 412 S.E.2d 295, 306 (1991), cert. denied, \u2014 U.S. ---, 118 L.Ed.2d 547 (1992).\nI vote to reverse the trial court\u2019s order and to remand the matter for further proceedings.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Smith Helms Mulliss & Moore, by William Sam Byassee and J. Donald Hobart, Jr., of counsel, for plaintiff-appellant.", "City Attorney\u2019s Office, by City Attorney Ronald G. Seeber and Assistant City Attorney Charles C. Green, Jr., for defendant-appellee.", "Wornble Carlyle Sandridge & Rice, by Roddy M. Lig\u00f3n, Jr., of counsel, for defendant-appellee." ], "corrections": "", "head_matter": "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a Naegele Outdoor Advertising Company of the Triad, Plaintiff-Appellant v. CITY OF WINSTON-SALEM, Defendant-Appellee\nNo. 9221SC1137\n(Filed 1 March 1994)\n1. Municipal Corporations \u00a7 30.13 (NCI3d)\u2014 zoning ordinance \u2014 billboard removal after amortization period \u2014no taking\nZoning ordinances involving billboard removal after an amortization period have been held to be lawful and to not constitute a taking.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 322-339.\nMunicipal power as to billboards and outdoor advertising. 58 ALR2d 1314.\n2. Municipal Corporations \u00a7 30.13 (NCI3d(\u2014 zoning ordinance regulating signs \u2014sign company\u2019s action accrued on date of enactment of ordinance\nPlaintiff\u2019s inverse condemnation claim for the taking of its sign properties by enforcement of defendant\u2019s zoning ordinance accrued when the ordinance was adopted on 15 April 1985, and plaintiff\u2019s action was therefore barred by the statute of limitations.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 322-339.\nMunicipal power as to billboards and outdoor advertising. 58 ALR2d 1314.\nJudge COZORT dissenting.\nAppeal by plaintiff from order entered 14 August 1992 by Judge James M. Webb in Forsyth County Superior Court. Heard in the Court of Appeals 7 October 1993.\nSmith Helms Mulliss & Moore, by William Sam Byassee and J. Donald Hobart, Jr., of counsel, for plaintiff-appellant.\nCity Attorney\u2019s Office, by City Attorney Ronald G. Seeber and Assistant City Attorney Charles C. Green, Jr., for defendant-appellee.\nWornble Carlyle Sandridge & Rice, by Roddy M. Lig\u00f3n, Jr., of counsel, for defendant-appellee." }, "file_name": "0758-01", "first_page_order": 788, "last_page_order": 794 }