{
  "id": 11652214,
  "name": "WILLIAM WHITEHEART, d/b/a Whiteheart Outdoor Advertising Company, Petitioner v. GARLAND B. GARRETT, JR., as Secretary of Transportation of the State of North Carolina, Respondent",
  "name_abbreviation": "Whiteheart v. Garrett",
  "decision_date": "1997-12-02",
  "docket_number": "No. COA97-108",
  "first_page": "78",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "300 N.C. 247",
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      "reporter": "N.C.",
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      "cite": "N.C. Gen. Stat. \u00a7 136-129",
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  "last_updated": "2023-07-14T19:05:25.972365+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges WYNN and SMITH concur."
    ],
    "parties": [
      "WILLIAM WHITEHEART, d/b/a Whiteheart Outdoor Advertising Company, Petitioner v. GARLAND B. GARRETT, JR., as Secretary of Transportation of the State of North Carolina, Respondent"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nOn 7 July 1995, petitioner Whiteheart (Whiteheart) applied for an outdoor advertising permit for a billboard owned by Whiteheart located near the intersection of Peter\u2019s Creek Parkway and 1-40 Business in Winston-Salem. A measurement was made by an employee of the North Carolina Department of Transportation (NCDOT), for the district engineer, to determine whether the sign fell within the NCDOT\u2019s jurisdiction, as the NCDOT only controls outdoor advertising within 660 feet of the nearest edge of right-of-way along the interstate system. See N.C. Gen. Stat. \u00a7 136-129 (1993). A measurement made from the location of Whiteheart\u2019s sign to the line showing the edge of the right-of-way of 1-40 Business on the Winston-Salem Tax Map was 890 feet. Whiteheart, however, argued that the sign was within the 660 feet jurisdictional requirement if the distance was measured from the location of the sign to the right-of-way of the interchange ramp connecting Peter\u2019s Creek Parkway and 1-40 Business. On the basis of the district engineer\u2019s measurement, the sign did not fall within the jurisdiction of the NCDOT outdoor advertising regulations and the permit was denied.\nWhiteheart appealed to the Secretary of Transportation to reverse the decision of the district engineer. The Secretary\u2019s staff instructed the district engineer to conduct a more detailed investigation. During this investigation, it was learned that there was a pre-existing sign, located approximately 53 feet from Whiteheart\u2019s sign, which had already been granted a permit from the NCDOT. The Secretary was informed that if the Whiteheart sign was within the jurisdiction of the NCDOT, it would be illegal to grant a permit because another sign with a permit was there first, as NCDOT regulations require that permitted signs be at least 500 feet apart. See 19A N.C.A.C. 2E.0203 (2)(b)(i) (1993).\nBoth parties moved for summary judgment. Following a hearing, the trial court granted Whiteheart\u2019s motion for summary judgment.\nSummary judgment is proper if there is no genuine issue as to any material facts and the moving party is entitled to a judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). Here, the parties do not argue that any question of fact exists, thus we must examine the applicable law to determine whether summary judgment in favor of Whiteheart was proper.\nRespondent first argues the trial court erred in granting summary judgment for Whiteheart on the basis that respondent\u2019s method of determining the right-of-way was arbitrary and capricious.\nN.C. Gen. Stat. \u00a7 136-129 (1993), \u201cLimitations of outdoor advertising devices\u201d 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 so as to be visible from the main-traveled way thereof. . . except the following ....\nFurther, N.C. Gen. Stat. \u00a7 136-133 (1993) requires that in order to maintain any outdoor advertising within 660 feet of the nearest edge of the right-of-way of the primary highway as allowed under N.C. Gen. Stat. \u00a7 136-129, a permit must first be acquired.\nRespondent contends the original map for the Peter\u2019s Creek Parkway project ended where it intersected with 1-40 (now 1-40 Business), with the interchange ramps built as a part of the Parkway project and after the construction of 1-40. Therefore, respondents argue that no portion of the Parkway project, including the ramps and right-of-way adjacent to the ramps, could be considered part of the interstate system.\nOn the other hand, Whiteheart argues that the right-of-way of 1-40 Business encompasses the interchange ramps at the junction of 1-40 Business and Peter\u2019s Creek Parkway.\nWe do not find any authority interpreting what constitutes the \u201cnearest edge of the right-of-way of the interstate or primary highways\u201d under N.C. Gen. Stat. \u00a7 136-129. However, in Abdalla v. Highway Commission, 261 N.C. 114, 120, 134 S.E.2d 81, 86 (1964), our Supreme Court in interpreting the term \u201chighway\u201d in a right-of-way agreement between the parties stated:\nThe ramp has a specific purpose and function. It is not established for the accommodation of abutting landowners; it is for the interchange of traffic between two heavily travelled highways (one overpassing the other). It is indeed the junction or joinder of the two highways. For all practical purposes it is part of the main highway within the meaning of the word \u2018highway\u2019 as set out in the \u2018Right of Way Agreement.\u2019\nWe find the reasoning of the Court in Abdalla to be applicable to the instant case. The interchange ramp constructed as part of the Peter\u2019s Creek Parkway project was built to manage the interchange of traffic between Peter\u2019s Creek Parkway and 1-40 Business and should be considered part of 1-40 Business. As such, the right-of-way adjacent to the interchange ramps is included as part of the \u201cright-of-way of the interstate or primary highway system\u201d as contemplated under N.C. Gen. Stat. \u00a7 136-129.\nIt is undisputed that Whiteheart\u2019s sign is located within 660 feet of the right-of-way adjacent to the interchange ramp. Thus, the trial court did not err in determining that the respondent\u2019s method of defining interstate right-of-way based solely on the respective dates of construction to be completely arbitrary.\nRespondent next argues that the trial court committed error because it did not address respondent\u2019s argument that even if Whiteheart\u2019s sign was located within 660 feet of the interstate right-of-way, Whiteheart would still be ineligible for a permit as his sign is located too close to a pre-existing permitted sign.\nWe find this argument to be without merit as the trial court\u2019s order explicitly states, \u201cthe only contention argued by the parties was whether the petitioner\u2019s outdoor advertising in question is within 660 feet of the nearest edge of the right of way of Business 1-40 so as to invoke the control of N.C. DOT over the billboard [.]\u201d\nThe order of the trial court is\nAffirmed.\nJudges WYNN and SMITH concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Wilson & Waller, P.A., by Betty S. Waller, for petitioner-appellee.",
      "Attorney General Michael F. Easley, by Associate Attorney General Gaines M. Weaver, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM WHITEHEART, d/b/a Whiteheart Outdoor Advertising Company, Petitioner v. GARLAND B. GARRETT, JR., as Secretary of Transportation of the State of North Carolina, Respondent\nNo. COA97-108\n(Filed 2 December 1997)\nHighways, Streets, and Roads \u00a7 31 (NCI4th)\u2014 outdoor advertising \u2014 DOT jurisdiction \u2014 measured from interstate highway ramp\nThe trial court did not err by determining that respondent-NCDOT\u2019s method of defining interstate right-of-way based solely on dates of construction was arbitrary in an action to determine whether an outdoor advertising sign was within the required distance from an interstate highway to be within DOT\u2019S jurisdiction where the sign is not within the required distance as measured from the highway; the sign is within the jurisdictional requirement if measured from the right-of-way of the interchange ramp; DOT contends that the interchange was built as a part of the intersecting Peter\u2019s Creek Parkway project after construction of 1-40 (now 1-40 Business) and cannot be considered part of the interstate system; and the interchange ramp was built to manage traffic between the Parkway and the 1-40 Business and should be considered part of the interstate system. Respondent\u2019s argument that the sign would be too close to an existing sign was without merit because the trial court\u2019s order explicitly states that the only contention argued by the parties was whether the sign was within the required distance of the right-of-way.\nAppeal by respondent from order signed 12 December 1996 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 21 October 1997.\nWilson & Waller, P.A., by Betty S. Waller, for petitioner-appellee.\nAttorney General Michael F. Easley, by Associate Attorney General Gaines M. Weaver, for respondent-appellant."
  },
  "file_name": "0078-01",
  "first_page_order": 114,
  "last_page_order": 117
}