{ "id": 8154472, "name": "LAMAR OCI SOUTH CORPORATION, d/b/a Lamar Advertising of Asheville, Petitioner v. STANLY COUNTY ZONING BOARD OF ADJUSTMENT and STANLY COUNTY, Respondents", "name_abbreviation": "Lamar OCI South Corp. v. Stanly County Zoning Board of Adjustment", "decision_date": "2007-09-18", "docket_number": "No. COA06-993", "first_page": "44", "last_page": "56", "citations": [ { "type": "official", "cite": "186 N.C. App. 44" } ], "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": "592 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631136, 12631135 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0690-01", "/se2d/592/0690-02" ] }, { "cite": "358 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631136, 12631137, 12631106, 12631138, 12631141, 12631135 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0690-01", "/se2d/592/0692-01", "/se2d/592/0202-02", "/se2d/592/0693-02", "/se2d/592/0694-01", "/se2d/592/0690-02" ] }, { "cite": "590 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631077 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/se2d/590/0269-01" ] }, { "cite": "270 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626-27" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "quoting Coastal Ready-Mix Concrete Co. v. Board of Comm'rs of Nags Head, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "12", "parenthetical": "quoting Coastal Ready-Mix Concrete Co. v. Board of Comm'rs of Nags Head, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-131.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-133", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "142 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "264 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574837 ], "year": 1965, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0650-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-129", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "587 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491681, 491748, 491590, 491718, 491627, 491664, 491741, 491550 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0504-08", "/nc/357/0504-01", "/nc/357/0504-06", "/nc/357/0504-02", "/nc/357/0504-03", "/nc/357/0504-07", "/nc/357/0504-04", "/nc/357/0504-05" ] }, { "cite": "582 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "719" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8953904 ], "year": 2003, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0055-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-127", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "357 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491585, 491845, 491527, 491825, 491633, 491739 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0658-01", "/nc/357/0658-05", "/nc/357/0658-06", "/nc/357/0658-03", "/nc/357/0658-04", "/nc/357/0658-02" ] }, { "cite": "583 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "423" }, { "page": "422" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957634 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/159/0598-01" ] }, { "cite": "573 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "642" }, { "page": "641" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250852 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/155/0516-01" ] }, { "cite": "360 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723558, 4724691, 4730039, 4730552, 4729849 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0631-05", "/nc/320/0631-03", "/nc/320/0631-04", "/nc/320/0631-01", "/nc/320/0631-02" ] }, { "cite": "355 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169925 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0351-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "year": 1999, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "560 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "593-94" }, { "page": "593" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128799 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "447" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0446-01" ] }, { "cite": "592 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631136, 12631135 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/592/0690-01", "/se2d/592/0690-02" ] }, { "cite": "358 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631136, 12631137, 12631106, 12631138, 12631141, 12631135 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/592/0690-01", "/se2d/592/0692-01", "/se2d/592/0202-02", "/se2d/592/0693-02", "/se2d/592/0694-01", "/se2d/592/0690-02" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 1 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 1, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-131.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "605" } ], "opinion_index": 1 }, { "cite": "583 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2003, "pin_cites": [ { "page": "420" }, { "page": "422" }, { "page": "423" }, { "page": "423-24" }, { "page": "424" }, { "page": "423", "parenthetical": "quoting 19A N.C.A.C. 2E.0225(c)" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957634 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/159/0598-01" ] }, { "cite": "560 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "594" } ], "opinion_index": 1 }, { "cite": "149 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128799 ], "year": 2002, "pin_cites": [ { "page": "448" } ], "opinion_index": 1, "case_paths": [ "/nc-app/149/0446-01" ] } ], "analysis": { "cardinality": 936, "char_count": 29533, "ocr_confidence": 0.758, "pagerank": { "raw": 2.9676781736223544e-07, "percentile": 0.8500642315440012 }, "sha256": "9bc87d95d544af11e038b6d828c037b721f3d75b9a9a557f22b50c4d12e0a223", "simhash": "1:9099a130763f6e53", "word_count": 4746 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge McGEE concurs in part and dissents in part by separate opinion." ], "parties": [ "LAMAR OCI SOUTH CORPORATION, d/b/a Lamar Advertising of Asheville, Petitioner v. STANLY COUNTY ZONING BOARD OF ADJUSTMENT and STANLY COUNTY, Respondents" ], "opinions": [ { "text": "STEPHENS, Judge.\nLamar OCI South Corporation, d/b/a Lamar Advertising of Asheville (\u201cLamar\u201d), appeals from an order of the Superior Court affirming a decision of the Stanly County Board of Adjustment (\u201cthe Board\u201d). The Board and Stanly County (collectively \u201cRespondents\u201d) appeal from an order of the Superior Court denying Respondents\u2019 motion to supplement the record before the Superior Court.\nLamar is an outdoor advertising company that leases a parcel of real estate in Stanly County, located along N.C. Highway 24/27, for an outdoor advertising sign (\u201cthe billboard\u201d). The relevant parcel of real estate is zoned Highway Business (\u201cHB\u201d). The billboard was constructed in 1997, at which time Stanly County (\u201cthe County\u201d) and the Department of Transportation (\u201cDOT\u201d) issued permits for the billboard. At that time, the County\u2019s zoning ordinance permitted outdoor advertising signs in HB zoning districts. In 2001, the County amended its zoning ordinance. As amended, the zoning ordinance prohibited outdoor advertising signs in HB zoning districts. Because it was located in an area in which outdoor advertising signs were prohibited by the amended ordinance, the billboard acquired the status of a legal nonconforming sign under a grandfathering provision of the zoning ordinance.\nBobby Soule, Lamar\u2019s Vice-President and General Manager, testified before the Board that DOT notified Lamar in early 2004 that DOT planned to widen N.C. Highway 24/27, that the billboard was located in the right-of-way of the proposed road widening, and that DOT would require the billboard to be relocated. Accordingly, Lamar relocated the billboard approximately fifty feet back from N.C. Highway 24/27. When Lamar relocated the billboard, it replaced the four poles of the billboard with four new poles. Otherwise, the billboard remained the same. Lamar did not inform the County of the relocation or request any permit from the County. DOT reimbursed Lamar for the costs of relocating the billboard.\nLamar received a letter dated 19 August 2004 from the County\u2019s zoning enforcement officer stating that Lamar\u2019s relocation of the billboard violated the County\u2019s zoning ordinance. Lamar contacted Ritchie Hearne (\u201cHearne\u201d), a DOT district engineer, about the status of Lamar\u2019s DOT permit. In a letter dated 23 August 2004, Hearne stated that DOT regulations permitted a\nsign owner to relocate [a] sign from its original location off new right of way as long as it remains in the \u201csign location/ site\u201d as defined by [DOT\u2019s] regulations. The subject sign met [DOT\u2019s] criteria and will keep the same application, milepost and permit numbers.\nIn a letter dated 30 August 2004, Lamar\u2019s attorney responded to the County, stating Lamar\u2019s position that the County could not prevent Lamar from taking any action authorized by DOT under DOT\u2019s sign regulatory program. Lamar also indicated it' was willing to submit a permit application and fee to the County. Michael Sandy (\u201cSandy\u201d), Planning Director and Zoning Administrator for the County, responded to Lamar by letter dated 28 February 2005. The letter informed Lamar that the billboard violated the County\u2019s zoning ordinance. Lamar timely appealed the decision to the Board.\nThe Board heard Lamar\u2019s appeal on 12 April 2005. Sandy testified that the County cited Lamar for failing to obtain a permit to erect a sign at the location where the billboard presently stood. He also stated that had Lamar submitted a permit application, the County would not have granted a permit since the zoning ordinance no longer allowed outdoor advertising in HB zoning districts.\nHearne also testified at the hearing. He stated that, at the time of the hearing, Lamar had a valid permit for the billboard from DOT. He also testified that DOT regulations allowed a permit holder, without DOT\u2019s permission or knowledge, to move a sign \u201cback\u201d from a right-of-way as long as the sign was not moved more than l/100th of a mile parallel to the right-of-way. If a sign did not conform to DOT regulations, then DOT would not allow the sign to be relocated, although DOT would be required to compensate the sign owner.\nThe Board unanimously affirmed Sandy\u2019s zoning decision. The Board concluded that when Lamar relocated the billboard, it lost its status as a legal nonconforming sign under the County\u2019s zoning ordinance because of the restriction of signs in areas zoned HB.\nLamar filed a petition for writ of certiorari in Superior Court on 12 May 2005, and an amended petition on 5 July 2005. Lamar contended that its relocation of the billboard was expressly authorized by DOT and, pursuant to N.C. Gen. Stat. \u00a7\u00a7 160A-174(b)(2) and (5), Respondents were preempted from enforcing any ordinances that prohibited relocation of the billboard within DOT regulations. Lamar also contended that (1) the Board had committed errors of law; (2) the record did not contain substantial, competent, and material evidence to support the Board\u2019s decision; and (3) the Board\u2019s decision was not based upon substantial, competent, and material evidence and was arbitrary and capricious. Respondents filed an answer to the petition on 5 August 2005. The Superior Court allowed the writ of cer-tiorari on 2 February 2006, finding that Lamar was entitled to a review of the Board\u2019s decision. The writ also required the County to certify the record of the proceedings to the Superior Court within sixty days.\nRespondents filed a motion to supplement the record on 30 March 2006. Respondents sought to include in the record sworn affidavits by (1) Sandy; (2) the Outdoor Advertising Representative for DOT, Terry Morgan; and (3) the Right-of-Way Agent for DOT, Charles D. Napier. Lamar filed objections to Respondents\u2019 motion, contending (1) that Respondents were improperly attempting to introduce evidence that was not part of the record before the Board; (2) that if the motion was allowed, Lamar would be unable to cross-examine the witnesses contrary to its right of cross-examination in a quasi-judicial hearing; and (3) that Sandy\u2019s affidavits improperly raised zoning violations which were not part of the Board\u2019s decision.\nThe Superior Court heard arguments on Lamar\u2019s appeal and Respondents\u2019 motion on 10 April 2006: In an order entered 19 April 2006, the Superior Court found that when Lamar relocated the billboard without the involvement of the County, the billboard became a newly erected and illegal sign which violated the County\u2019s zoning ordinance. The Superior Court concluded that Lamar was required to comply with the County\u2019s zoning ordinance when the billboard was relocated and that Lamar had not done so. The Superior Court also concluded that the County was not preempted from regulating outdoor advertising signs because (1) the County\u2019s zoning ordinance did not purport to regulate a field for which State law provided a complete and integrated regulatory scheme to the exclusion of local regulation; and (2) the County\u2019s zoning ordinance did not make unlawful an act, omission, or condition which was expressly made lawful by State law. The Superior Court further concluded that the Board did not commit any errors of law, that there was competent, material, and substantial evidence to support the Board\u2019s decision, and that the Board\u2019s decision was not arbitrary or capricious. Lamar appeals this order.\nIn a separate order entered 28 April 2006, the Superior Court denied Respondents\u2019 motion to supplement the record, concluding that Respondents sought to supplement the record with evidence that would inappropriately add to the evidence that was before the Board. Respondents appeal this order.\nI. Lamar\u2019s Appeal\nLamar brings before this Court two main arguments: (1) the Superior Court erred by concluding that the County\u2019s regulations were not preempted by State law regulating outdoor advertising; and (2) the Superior Court erred by concluding that the Board\u2019s decision was supported by competent evidence and was not arbitrary and capricious.\n\u201cWhen the Superior Court grants certiorari to review a decision of [a] Board, it functions as an appellate court rather than a trier of fact.\u201d Hopkins v. Nash County, 149 N.C. App. 446, 447, 560 S.E.2d 592, 593-94 (2002). The Superior Court must\n(1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.\nWhiteco Outdoor Adver. v. Johnston County Bd. of Adjust, 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999). When reviewing a Superior Court\u2019s decision, \u201cthis Court must determine: 1) whether the [superior] court used the correct standard of review; and, if so, 2) whether it properly applied this standard.\u201d Hopkins, 149 N.C. App. at 447, 560 S.E.2d at 593. If a petitioner asserts that a board committed an error of law, the Superior Court must apply a de novo standard of review. Hopkins, 149 N.C. App. 446, 560 S.E.2d 592. If a petitioner asserts that a board\u2019s decision was not supported by the evidence, or was arbitrary and capricious, then the Superior Court must apply the whole record standard of review. Id.\nA. Preemption\nLamar argues that the County\u2019s zoning ordinance prohibiting the relocation of the billboard is preempted by the North Carolina Outdoor Advertising Control Act (\u201cOACA\u201d), N.C. Gen. Stat. \u00a7 136-126 et seq., and corresponding DOT regulations. Specifically, Lamar argues that the zoning ordinance purports to regulate a field for which State law provides a complete and integrated regulatory scheme to the exclusion of local regulation and that the County\u2019s zoning ordinance makes unlawful an act, omission, or condition which is expressly made lawful by State law. Because Lamar alleges an error of law, we conclude the Superior Court correctly applied a de novo standard of review. We now review whether the Superior Court did so properly.\nWhere a local ordinance conflicts with State law, the ordinance must yield. In re Application of Melkonian, 85 N.C. App. 351, 355 S.E.2d 503, disc. review denied, 320 N.C. 631, 360 S.E.2d 91 (1987). N.C. Gen. Stat. \u00a7 160A-174(b) (2005) provides, in part, that a local ordinance conflicts with State law when:\n(2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law; [or]\n(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation[.]\nLamar contends that the County\u2019s zoning ordinance is preempted under N.C. Gen. Stat. \u00a7 160A-174(b)(5). We disagree. In Lamar Outdoor Adver., Inc. v. City of Hendersonville Zoning Bd. of Adjust., 155 N.C. App. 516, 573 S.E.2d 637 (2002), this Court examined the legislative intent of the OACA and concluded that \u201cthe OACA does not preempt local regulation of outdoor advertising.\u2019-\u2019 Id. at 521, 573 S.E.2d at 642. We rejected the conclusion that when enacting the OACA, \u201cthe General Assembly expressed an intention to regulate outdoor advertising only on a statewide basis, or to preclude local entities from regulating in this area.\u201d Id. at 520, 573 S.E.2d at 641. In Morris Communications Corp. v. Bd. of Adjust. for City of Gastonia, 159 N.C. App. 598, 583 S.E.2d 419, appeal dismissed, 357 N.C. 658, 590 S.E.2d 269 (2003), reh\u2019g denied, 358 N.C. 155, 592 S.E.2d 690 (2004), we cited Lamar and again rejected the argument that the OACA was a \u201ccomplete and integrated regulatory scheme\u201d pursuant to N.C. Gen. Stat. \u00a7 160A-174(b)(6). Id. at 604, 583 S.E.2d at 423. We conclude that these cases control determination of this issue in the present case and dictate the conclusion that the OACA and its corresponding regulations do not preempt local regulation of outdoor advertising under N.C. Gen. Stat. \u00a7 160A-174(b)(5).\nLamar also contends that DOT\u2019S outdoor advertising regulations expressly authorize the relocation of a billboard within certain limitations, and that the County\u2019s zoning ordinance makes such action unlawful. Therefore, according to Lamar, N.C. Gen. Stat. \u00a7 160A-174(b)(2) provides that the DOT regulations preempt the County\u2019s zoning ordinance. We agree.\nThe General Assembly enacted the OACA \u201cto provide and declare herein a public policy and statutory basis for the regulation and control of outdoor advertising.\u201d N.C. Gen. Stat. \u00a7 136-127 (2005). \u201cThe OACA delegates to [DOT] authority to further promulgate rules and regulations governing erection and maintenance of billboards, permitting procedures, appeal procedures related to administrative decisions denying or revoking a permit, and administrative procedures for appealing a decision that a billboard is illegal.\u201d Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 57, 582 S.E.2d 717, 719, disc. review denied, 357 N.C. 504, 587 S.E.2d 662 (2003).\nDOT\u2019S regulations enacted pursuant to the OACA define a \u201cNonconforming Sign\u201d as:\nA sign which was lawfully erected but which does not comply with the provisions of State law or rules passed at a later date or which later fails to comply with State law or rules due to changed conditions. . . .\n19A N.C.A.C. 2E.0200(16) (June 2004). The OACA defines \u201cState law\u201d as \u201ca State constitutional provision or statute, or an ordinance, rule or regulation enacted or adopted by a State agency or political subdivision of a State pursuant to a State Constitution or statute.\u201d N.C. Gen. Stat. \u00a7 136-129(6) (2005). As \u201c[c]ounties are instrumentalities and agencies of the State government[,]\u201d High Point Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965), the billboard became a nonconforming sign within the meaning of DOT\u2019s regulations when the County amended its zoning ordinance preventing signs from being erected in areas zoned HB.\nDOT\u2019s regulations provide that \u201c[a] nonconforming sign . . . may continue as long as it is not abandoned, destroyed, discontinued, or significantly damaged.\u201d 19A N.C.A.C. 2E.0225(e) (June -2004). The regulations also provide that a \u201cSign Location/Site\u201d \u201cshall be measured to the closest l/100th of a mile, in conformance with [DOT] methods of measurement for all state roads.\u201d 19A N.C.A.C. 2E.0201(27) (June 2004). We therefore read 19A N.C.A.C. 2E.0225(e) to mean that \u201ca nonconforming sign . . . may continue [at a Sign Location/Site] as long as it is not abandoned, destroyed, discontinued, or significantly damaged.\u201d Such a reading is bolstered by 19A N.C.A.C. 2E.0210 which sets forth the grounds for revocation of a permit. Pursuant to that regulation,\n[t]he [DOT] district engineer shall revoke a permit for a lawful outdoor advertising structure based on any of the following:\n(16) moving or relocating a nonconforming sign . . . which changes the location of the sign as determined by Rule .0201(27) of this Section[.]\n19A N.C.A.C. 2E.0210 (June 2004) (emphasis added). We interpret the revocation regulation to mean that DOT can only revoke a permit for a nonconforming sign on the ground that the sign was moved or relocated if the sign is moved or relocated outside the sign location/site. Accordingly, the OACA and DOT\u2019s regulations promulgated thereunder allow a permit holder to move a nonconforming sign within the bounds of the \u201cSign Location/Site\u201d as defined by 19A N.C.A.C. 2E.0201(27).\nConversely, Article IV Section 406.4(G) of Stanly County\u2019s zoning ordinance provides that \u201c[a] nonconforming sign . . . shall not be moved or replaced except to bring the sign into complete conformity with [the County\u2019s ordinance].\u201d This provision is in conflict with DOT\u2019S regulations, and we analyze the conflict as we did under similar circumstances in Morris, 159 N.C. App. 598, 583 S.E.2d 419. The local ordinance in effect in Morris provided:\n(c) A nonconforming sign may not be moved or sign structure replaced except to bring the sign into complete conformity with this chapter. Once a nonconforming sign is removed (i.e., the removal of the structural appurtenances above the base or footing) from the premises or otherwise taken down or moved, said sign only may be replaced or placed back into use with a sign which is in conformance with the terms of this chapter.\n(d) Minor repairs and maintenance of nonconforming signs necessary to keep a nonconforming sign in sound condition are permitted.\nId. at 602, 583 S.E.2d at 422. The relevant DOT regulation provided:\n(c) Alteration to a nonconforming sign ... is prohibited. Reasonable repair and maintenance are permitted including changing the advertising message or copy. The following activities are considered to be reasonable repair and maintenance:\n(1) Change of advertising message or copy on the sign face.\n(2) Replacement of border and trim.\n(3) Repair and replacement of a structural member, including a pole, stringer, or panel, with like material.\n(4) Alterations of the dimensions of painted bulletins incidental to copy change.\nId. at 604, 583 S.E.2d at 423. On appeal to this Court, we concluded that the DOT regulation expressly permitted repair and replacement of a billboard\u2019s structural member, and therefore, the ordinance was preempted to the extent that it conflicted with the DOT regulation. Morris is indistinguishable from the case at bar.\nThe Stanly County ordinance at issue in this case makes unlawful an act, omission, or condition expressly made lawful by State law and is preempted. The Superior Court erred in concluding otherwise. Lamar was not required to apply for a new permit from the County. In reaching this determination, we note that at all times Lamar had a valid DOT permit and that a permit issued by DOT \u201cshall be valid until revoked for nonconformance with [the OACA] or rules adopted by the [DOT].\u201d N.C. Gen. Stat. \u00a7 136-133(a) (2005). Furthermore, we note that the County\u2019s denial of a permit to Lamar would in effect cause the billboard to be removed. This the County cannot do \u201cwithout the payment of just compensation[.]\u201d N.C. Gen. Stat. \u00a7 136-131.1 (2005).\nBecause we conclude that the County\u2019s ordinance is preempted by State law, we need not reach Lamar\u2019s contention that the Board\u2019s decision was not supported by competent evidence and was arbitrary as a matter of law.\nII. Respondent\u2019s Appeal\nRespondents contend that the Superior Court erred in denying their motion to supplement the record before that court with the affidavits of Sandy and two people who did not testify before the Board. We disagree.\nA superior court reviewing a decision of a board of adjustment \u201c \u2018sits in the posture of an appellate court\u2019 \u201d and \u201c \u2018does not review the sufficiency of evidence presented to it but reviews that evidence presented to the town board.' \u201d Mann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002) (quoting Coastal Ready-Mix Concrete Co. v. Board of Comm\u2019rs of Nags Head, 299 N.C. 620, 626-27, 265 S.E.2d 379, 383, reh\u2019g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)) (emphasis added).\nThe affidavits with which Respondents attempted to supplement the record before the Superior Court were not before the Board. As such, the trial court did not err in denying Respondents\u2019 motion to supplement the record before the Superior Court.\nAFFIRMED IN PART, REVERSED IN PART.\nJudge HUNTER concurs.\nJudge McGEE concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "McGEE, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s conclusion that local regulation of outdoor advertising is not preempted under N.C. Gen. Stat. \u00a7 160A-174(b)(5). However, I do not agree with the majority\u2019s conclusion that the County\u2019s zoning ordinance is preempted pursuant to N.C. Gen. Stat. \u00a7 160A-174(b)(2). Therefore, I respectfully dissent from that portion of the majority\u2019s opinion and vote to affirm the Superior Court\u2019s order concluding that the County\u2019s zoning ordinance is not preempted.\nThe majority holds that the OACA and the corresponding DOT regulations expressly allow a permit holder to relocate a nonconforming billboard within a Sign Location/Site, but the County\u2019s zoning ordinance prohibits such action. The majority therefore concludes that the County\u2019s zoning ordinance is preempted pursuant to N.C.G.S. \u00a7 160A-174(b)(2). The majority also finds this Court\u2019s decision in Morris Communications Corp. v. Board of Adjust. of Gastonia, 159 N.C. App. 598, 583 S.E.2d 419 (2003), reh\u2019g denied, 358 N.C. 155, 592 S.E.2d 690 (2004) to require that we find the County\u2019s zoning ordinance is preempted. I do not agree.\nIn Morris, the City of Gastonia required the petitioner to apply for a permit to change the frame and advertising sign on a billboard. Id. at 599, 583 S.E.2d at 420. When the petitioner applied for the permit, the City denied the application. Id. The petitioner appealed the decision, arguing that changing the frame and the advertisement on the billboard was expressly permitted by State law. Id. The Board of Adjustment upheld the denial of the permit, but the Superior Court reversed, concluding, inter alia, that State law preempted the city\u2019s ordinance. Id. The city ordinance in effect in Morris provided:\n(c) A nonconforming sign may not be moved or sign structure replaced except to bring the sign into complete conformity with this chapter. Once a nonconforming sign is removed (i.e., the removal of the structural appurtenances above the base or footing) from the premises or otherwise taken down or moved, said sign only may be replaced or placed back into use with a sign which is in conformance with the terms of this chapter.\n(d) Minor repairs and maintenance of nonconforming signs necessary to keep a nonconforming sign in sound condition are permitted.\nId. at 602, 583 S.E.2d at 422. The relevant DOT regulation provided:\n(c) Alteration to a nonconforming sign ... is prohibited. Reasonable repair and maintenance are permitted including changing the advertising message or copy. The following activities are considered to be reasonable repair and maintenance:\n(1) Change of advertising message or copy on the sign face.\n(2) Replacement of border and trim.\n(3) Repair and replacement of a structural member, including a pole, stringer, or panel, with like material.\n(4) Alterations of the dimensions of painted bulletins incidental to copy change.\nId. at 604, 583 S.E.2d at 423. As the majority recognizes in the present case, we concluded in Morris that the DOT regulation expressly permitted repair and replacement of a billboard\u2019s structural member. Therefore, the ordinance was preempted to the extent that it conflicted with the DOT regulation. Id. at 605, 583 S.E.2d at 423-24. Further, we also concluded in Morris that N.C. Gen. Stat. \u00a7 136-131.1 did not apply because the City of Gastonia did not remove the sign or cause the sign to be removed. Id. at 605, 583 S.E.2d at 424.\nIn the present case, I draw the same conclusion as to N.C.G.S. \u00a7 136-131.1. Respondents did not remove the sign or cause the sign to be removed. Indeed, the County was not even aware of the change in the billboard\u2019s location until after Lamar had relocated the billboard. Further, even if N.C.G.S. \u00a7 136-131.1 does apply to the present case, it does not prohibit local governments from removing signs, or causing signs to be removed, but prohibits local governments from doing so \u201cwithout the payment of just compensation!)]\u201d Therefore, this provision does not provide a basis for finding that the County\u2019s zoning ordinance is preempted.\nI also conclude that the definitions included in 19A N.C.A.C. 2E.0201 and the grounds for revocation contained in 19A N.C.A.C. 2E.0210 relied upon by Lamar do not expressly make lawful an act made unlawful by the County\u2019s zoning ordinance. Although Lamar insists, and the majority agrees, that Morris requires us to conclude that the County\u2019s zoning ordinance is preempted, I find the DOT regulations applicable in the present case to be different from the DOT regulation at issue in Morris, and I distinguish Morris on that ground. Two of the provisions relied upon by Lamar are contained in the definition section of the regulations, and the third lists situations in which DOT can revoke a permit. Furthermore, although the majority correctly states that DOT\u2019S regulations provide that \u201c[a] nonconforming sign . . . may continue as long as it is not abandoned, destroyed, discontinued, or significantly damaged[,]\u201d this provision does not mention relocation of a billboard. In contrast, the regulation at issue in Morris was a substantive statement of prohibited and permissible actions regarding nonconforming signs and expressly stated that \u201c \u2018[reasonable repair and maintenance [of a nonconforming billboard] are permitted including changing the advertising message or copy.\u2019 \u201d Morris, 159 N.C. App. at 604, 583 S.E.2d at 423 (quoting 19A N.C.A.C. 2E.0225(c)). I conclude that the DOT regulations relied upon by Lamar and the majority in the present case do not expressly make lawful the relocation of a nonconforming sign within the \u201cSign Location/Site\u201d in violation of local zoning ordinances. Therefore, I would affirm the Superior Court\u2019s conclusion that the County\u2019s zoning ordinance is not preempted by the OACA or DOT\u2019s corresponding regulations pursuant to N.C.G.S. \u00a7 160A-174(b)(2).\nLamar also briefly argues that the Board\u2019s decision was not supported by competent evidence and was arbitrary as a matter of law. When reviewing a claim that a board\u2019s decision was not supported by the evidence, or was arbitrary and capricious, the Superior Court must apply the whole record standard of review. Hopkins v. Nash County, 149 N.C. App. 446, 448, 560 S.E.2d 592, 594 (2002). \u201cThe \u2018whole record\u2019 test requires the reviewing court to examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\" Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).\nLamar argues that the Board\u2019s findings of fact were based upon a misapprehension of law regarding the preemption issue and, therefore, are not binding on appeal and should not be upheld. Because I conclude that the Superior Court did not err by upholding the Board\u2019s decision, I reject this argument.\nFinally, because I would affirm the Superior Court\u2019s order from which Lamar appeals, I do not reach Respondent\u2019s assignments of error.", "type": "concurring-in-part-and-dissenting-in-part", "author": "McGEE, Judge," } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus, for Petitioner.", "Hamilton Moon Stephens Steele & Martin, PLLC, by Robert C. Stephens and Mark R. Kutny; The Law Office of Joshua J. Morton, by Joshua J. Morton, Jr., for Respondents." ], "corrections": "", "head_matter": "LAMAR OCI SOUTH CORPORATION, d/b/a Lamar Advertising of Asheville, Petitioner v. STANLY COUNTY ZONING BOARD OF ADJUSTMENT and STANLY COUNTY, Respondents\nNo. COA06-993\n(Filed 18 September 2007)\n1. Zoning\u2014 outdoor advertising billboard \u2014 county ordinance preempted by State law\nThe superior court erred by concluding that a county\u2019s zoning ordinance prohibiting the relocation of the pertinent billboard was not preempted by State law regulating outdoor advertising, because: (1) although the North Carolina Outdoor Advertising Control Act (OACA) and its corresponding regulations do not preempt local regulation of outdoor advertising under N.C.G.S. \u00a7 160A-174(b)(5), N.C.G.S. \u00a7 160A-174(b)(2) provides that Department of Transportation (DOT) regulations preempt the county\u2019s zoning ordinance; (2) OACA and DOT\u2019s regulations allow a permit holder to move a nonconforming sign within the bounds of the sign location/site as defined by 19A N.C.A.C. 2E.0201(27) while in contrast Article IV Section 406.4(G) of the county\u2019s zoning ordinance provides that a nonconforming sign shall not be moved or replaced except to bring the sign into complete conformity with the county\u2019s ordinance; (3) the county ordinance makes unlawful an act, omission, or condition expressly made lawful by State law; (4) petitioner was not required to apply for a new permit from the county when at all times it had a valid DOT permit, and a permit issued by DOT shall be valid until revoked for non-conformance with the OACA or rules adopted by DOT; and (5) the county\u2019s denial of a permit to petitioner would in effect cause the billboard to be removed, which could not be done without the payment of just compensation.-\n2. Appeal and Error\u2014 superior court \u2014 motion to supplement record \u2014 affidavits\nThe superior court did not err by denying respondents\u2019 motion to supplement the record before the superior court with the affidavits of the Planning Director and Zoning Administrator for the County, and two people who did not testify before the board, because the affidavits were not before the board.\nJudge McGEE concurring in part and dissenting in part.\nAppeal by Petitioner from order entered 19 April 2006 and by Respondents from order entered 28 April 2006 by Judge Mark E. Klass in Stanly County Superior Court. Heard in the Court of Appeals 10 April 2007.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus, for Petitioner.\nHamilton Moon Stephens Steele & Martin, PLLC, by Robert C. Stephens and Mark R. Kutny; The Law Office of Joshua J. Morton, by Joshua J. Morton, Jr., for Respondents." }, "file_name": "0044-01", "first_page_order": 74, "last_page_order": 86 }