{
  "id": 11916351,
  "name": "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner-Appellee v. R. SAMUEL HUNT, III, as Secretary of Transportation of the State of North Carolina, Respondent-Appellant",
  "name_abbreviation": "Naegele Outdoor Advertising, Inc. v. Hunt",
  "decision_date": "1995-12-19",
  "docket_number": "No. COA95-232",
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    "judges": [
      "Judges LEWIS and JOHN concur."
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    "parties": [
      "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner-Appellee v. R. SAMUEL HUNT, III, as Secretary of Transportation of the State of North Carolina, Respondent-Appellant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nRespondent-appellant, R. Samuel Hunt III, as Secretary of Transportation of the State of North Carolina (hereinafter \u201cSecretary\u201d), appeals the trial court\u2019s judgment denying appellant\u2019s motion for summary judgment and granting summary judgment in favor of appellee, Naegele Outdoor Advertising Inc., d/b/a Fairway Outdoor Advertising (hereinafter \u201cFairway\u201d). We affirm.\nOn 16 June 1993, Fairway submitted applications for outdoor advertising permits for three billboards to be erected on property owned by Rodney Bryce Owens and Mitchell Henry Leonard (\u201cOwens/Leonard property\u201d) located in Davidson County, North Carolina. The proposed sign structures were to be located within 660 feet of Interstate 85 in accordance with N.C. Gen. Stat. \u00a7 136-129.1 (1993) of the North Carolina Advertising Control Act.\nOn 8 July 1993, the North Carolina Department of Transportation (\u201cNCDOT\u201d) issued permits to Fairway for the three sign locations. However, NCDOT later learned that the Owens/Leonard property recently had been rezoned from RA-1 (Rural-Agricultural) to HC (Highway Commercial). Based on this discovery, NCDOT concluded that the parcel had been \u201cspot zoned\u201d to permit outdoor advertising structures in violation of 23 C.F.R. \u00a7 750.708(b) (April 1991). Consequently, NCDOT revoked Fairway\u2019s three permits pursuant to N.C. Admin. Code tit. 19A, r. 2E.0210(1) (March 1993) for \u201cmistake of material facts by the issuing authority for which had the correct facts been made known, the outdoor advertising permit(s) in question would not have been issued.\u201d Fairway appealed this ruling to the Secretary.\nOn 20 December 1993, the Secretary upheld the permit revocations in accordance with T19 NCAC \u00a7 2E.0210(1) and 23 C.F.R. \u00a7 750.708(b). Thereafter, Fairway filed a petition for review in Wake County Superior Court. Following a de novo hearing, judgment was entered denying the Secretary\u2019s motion for summary judgment and granting Fairway\u2019s motion for summary judgment. The Secretary appealed.\nWe note at the outset that the standard of review for a summary judgment motion is whether the pleadings, depositions, answers to interrogatories, and submitted affidavits show there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1990); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765 (1988).\nWith the foregoing in mind, we now turn to the appellant\u2019s contentions. The Secretary contends that the trial court erred in granting summary judgment in favor of Fairway because the rezoning of the property violated 23 C.F.R. \u00a7 750.708. We disagree.\n23 C.F.R. \u00a7 750.708(b) and (d) provide in relevant part:\nState and local zoning actions must be taken pursuant to the State\u2019s zoning enabling statute or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes.\nA zone in which limited commercial or industrial activities are permitted as incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes.\nThe Secretary argues that the rezoning of the parcel of land from a residential classification to a highway commercial zone, in which outdoor advertising is permissible, violates 23 C.F.R. \u00a7 750.708(b) because the zoning was not part of a comprehensive plan and constituted \u201cspot zoning,\u201d and violates 23 C.F.R. \u00a7 750.708(d) because the area is not truly commercial. We find this argument to be without merit.\nFederal law allows the erection and maintenance of outdoor advertising within 660 feet of the right-of-way in areas which have been zoned commercial or industrial \u201cunder authority of State law.\u201d 23 U.S.C.S. \u00a7 131(d). Similarly, N.C.G.S. \u00a7 136-129(4) utilizes the same language as the federal provision and provides in pertinent part:\nNo outdoor advertising shall be erected or maintained within 660 feet of the nearest edge of the right-of-way of the interstate or primary highways in this State . . . except the following:\n(4) Outdoor advertising in conformity with the rules and regulations promulgated by the Department of Transportation, located in areas which are zoned industrial or commercial under authority of State law.\n(emphasis supplied).\nWe find N.C.G.S. \u00a7 136-129(4) to be controlling. Therefore, outdoor advertising in conformity with the rules and regulations promulgated by NCDOT is permitted \u201cin areas which are zoned industrial or commercial under authority of State law.\u201d\nThe record on appeal indicates that the Davidson County Board of Commissioners rezoned the relevant area from agricultural to commercial in accordance with state law. Indeed, the Davidson County Board of Commissioners has full statutory authority for zoning actions in Davidson County. See N.C. Gen. Stat. \u00a7 153A-340 (1991); Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971). In fact, there is no dispute that the highway commercial zone is commercial or industrial as defined in T19 NCAC \u00a7 2E.0201(b).\nFurthermore, the Board of Commissioners adopted a comprehensive zoning plan and ordinance. The zoning enabling statutes of North Carolina require that all zoning actions in this state must be accomplished in accordance with a comprehensive plan. N.C.G.S. \u00a7 153A-341 (emphasis supplied); see also Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d 739 (1986).\nHaving zoned the property as a highway commercial zone under authority of state law and in accordance with a comprehensive plan, we find that the trial court properly concluded as a matter of law that the Secretary\u2019s revocation of the permits exceeded his authority under the statutory mandate of N.C.G.S. \u00a7 136-129(4) which expressly allows advertising \u201cin areas which are zoned industrial or commercial under authority of State law.\u201d\nFor the foregoing reasons, the judgment of the trial court is,\nAffirmed.\nJudges LEWIS and JOHN concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Michael F. Easley, Attorney General, by Sarah A. Fischer, Associate Attorney General, for the State.",
      "Wilson & Waller, P.A., by Betty S. Waller, for petitioner-appellee."
    ],
    "corrections": "",
    "head_matter": "NAEGELE OUTDOOR ADVERTISING, INC., d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner-Appellee v. R. SAMUEL HUNT, III, as Secretary of Transportation of the State of North Carolina, Respondent-Appellant\nNo. COA95-232\n(Filed 19 December 1995)\nHighways, Streets, and Roads \u00a7 32 (NCI4th)\u2014 outdoor advertising \u2014 spot zoning\nSummary judgment was properly granted for plaintiff in an action involving billboards where permits were granted for three signs to be located in Davidson County, then revoked when NCDOT learned that the property had recently been rezoned from Rural-Agricultural to Highway Commercial. Although defendant contended that the rezoning was spot zoning in violation of 23 C.F.R. \u00a7 750.708(b), N.C.G.S. \u00a7 136-129(4) is controlling, and the record indicates that the Davidson County Board of Commissioners rezoned the relevant area from agricultural to commercial in accordance with State Law.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 146-159.\nSpot zoning. 51 ALR2d 263.\nAppeal by respondent-appellant from judgment entered 30 November 1994 by Judge George R. Greene in Wake County Superior Court. Heard in the Court of Appeals 17 November 1995.\nMichael F. Easley, Attorney General, by Sarah A. Fischer, Associate Attorney General, for the State.\nWilson & Waller, P.A., by Betty S. Waller, for petitioner-appellee."
  },
  "file_name": "0205-01",
  "first_page_order": 239,
  "last_page_order": 242
}