{ "id": 4175363, "name": "MORRIS COMMUNICATIONS CORPORATION d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner v. CITY OF BESSEMER CITY ZONING BOARD OF ADJUSTMENT, Respondent", "name_abbreviation": "Morris Communications Corp. v. City of Bessemer City Zoning Board of Adjustment", "decision_date": "2010-03-02", "docket_number": "No. COA09-440", "first_page": "631", "last_page": "646", "citations": [ { "type": "official", "cite": "202 N.C. App. 631" } ], "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": "669 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642299 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/669/0322-01" ] }, { "cite": "650 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639311 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "41-43" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0037-01" ] }, { "cite": "362 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149431 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0670-01" ] }, { "cite": "186 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154472 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/186/0044-01" ] }, { "cite": "122 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "255 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572064 ], "year": 1961, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0647-01" ] }, { "cite": "61 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1950, "pin_cites": [ { "page": "902" }, { "page": "902", "parenthetical": "citations omitted" }, { "page": "902" } ], "opinion_index": 0 }, { "cite": "232 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611765 ], "weight": 3, "year": 1950, "pin_cites": [ { "page": "635" }, { "page": "635" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0629-01" ] }, { "cite": "594 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895277 ], "year": 2004, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0024-01" ] }, { "cite": "398 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "470" } ], "opinion_index": 0 }, { "cite": "327 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493346 ], "year": 1990, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0573-01" ] }, { "cite": "683 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "230", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "538 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "622", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 784", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135955 ], "year": 2000, "pin_cites": [ { "page": "785-86", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0784-01" ] }, { "cite": "411 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520953 ], "year": 1992, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0032-01" ] }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "74", "parenthetical": "internal quotations and citations omitted" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "470", "parenthetical": "internal quotations and citations omitted" }, { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "564 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "79-80", "parenthetical": "internal quotations and citations omitted" }, { "page": "80" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081861 ], "year": 2002, "pin_cites": [ { "page": "518", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0516-01" ] }, { "cite": "638 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637340 ], "year": 2006, "pin_cites": [ { "page": "15", "parenthetical": "quoting Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966)" } ], "opinion_index": 1, "case_paths": [ "/se2d/638/0012-01" ] }, { "cite": "530 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "343" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078626 ], "year": 2000, "pin_cites": [ { "page": "86" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0079-01" ] }, { "cite": "378 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "189" }, { "page": "189" }, { "page": "190" } ], "opinion_index": 1 }, { "cite": "93 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528129 ], "year": 1989, "pin_cites": [ { "page": "485" } ], "opinion_index": 1, "case_paths": [ "/nc-app/93/0483-01" ] }, { "cite": "170 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "909" } ], "opinion_index": 1 }, { "cite": "276 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559989 ], "year": 1969, "pin_cites": [ { "page": "55" } ], "opinion_index": 1, "case_paths": [ "/nc/276/0048-01" ] }, { "cite": "578 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "691", "parenthetical": "\"Zoning ordinances derogate common law property rights and must be strictly construed in favor of the free use of property.\"" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186679 ], "year": 2003, "pin_cites": [ { "page": "354", "parenthetical": "\"Zoning ordinances derogate common law property rights and must be strictly construed in favor of the free use of property.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0349-01" ] }, { "cite": "150 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "443" } ], "opinion_index": 1 }, { "cite": "268 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561227 ], "year": 1966, "pin_cites": [ { "page": "266" } ], "opinion_index": 1, "case_paths": [ "/nc/268/0263-01" ] }, { "cite": "180 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242763 ], "year": 2006, "pin_cites": [ { "page": "427", "parenthetical": "quoting Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/180/0424-01" ] }, { "cite": "538 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "622", "parenthetical": "quoting Kirkpatrick v. Village Council, 138 N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000)" } ], "opinion_index": 1 }, { "cite": "140 N.C. App. 784", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135955 ], "year": 2000, "pin_cites": [ { "page": "785-86", "parenthetical": "quoting Kirkpatrick v. Village Council, 138 N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/140/0784-01" ] }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "74" }, { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "year": 1999, "pin_cites": [ { "page": "470" } ], "opinion_index": 1, "case_paths": [ "/nc-app/132/0465-01" ] } ], "analysis": { "cardinality": 1148, "char_count": 35044, "ocr_confidence": 0.75, "pagerank": { "raw": 5.275691599737251e-08, "percentile": 0.3309106052128908 }, "sha256": "2022f99071d70ced619e97a97cd81c95b5dbaa8eab98fddc0e841799aad92bee", "simhash": "1:012df789219bbe4a", "word_count": 5690 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge HUNTER, Robert C. dissents by separate opinion." ], "parties": [ "MORRIS COMMUNICATIONS CORPORATION d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner v. CITY OF BESSEMER CITY ZONING BOARD OF ADJUSTMENT, Respondent" ], "opinions": [ { "text": "CALABRIA, Judge.\nMorris Communications Company d/b/a Fairway Outdoor Advertising (\u201cFairway\u201d) appeals from an order affirming the decision of the City of Bessemer City Zoning Board of Adjustment\u2019s (\u201cthe BOA\u201d) decision requiring the removal of petitioner\u2019s billboard. We affirm.\nI. Facts\nFairway leases a parcel of land (\u201cthe property\u201d) in Bessemer City, North Carolina (\u201cthe City\u201d), for the purpose of using and maintaining a billboard (\u201cthe billboard\u201d). Prior to July 2005, the billboard was lawfully erected on the property. In July 2005, the North Carolina Department of Transportation (\u201cNCDOT\u201d) condemned a portion of the property for a road widening project (\u201cthe project\u201d). As a result of the condemnation, Fairway was required to move the billboard to another part of the property.\nIn order to relocate the billboard, Fairway applied to the City for a sign permit (\u201cthe sign permit\u201d). The sign permit was issued on 31 August 2005 and indicated an \u201cExpire Date\u201d of 27 February 2006. By the terms of \u00a7 155.207 of the City\u2019s Zoning Ordinance (\u201cthe Ordinance\u201d),\n[i]f the work described in any compliance or sign permit has not begun within six months from the date of issuance thereof, the permit shall expire. Upon beginning a project, work must be diligently continued until completion with some progress being apparent every three months. If such continuance or work is not shown, the permit will expire.\nOn 21 November 2005, Fairway applied to Gaston County for a building permit (\u201cthe building permit\u201d). The building permit was issued on 13 December 2005 and contained, inter alia, the following language: \u201cThis permit becomes null and void if work or construction authorized is not commenced within 6 months, or if construction or work is suspended, or abandoned for a period of 1 year at any time after work is started.\u201d The building permit additionally informs the permit holder that \u201c[granting of a permit does not presume to give authority to violate or cancel the provisions of any other state or local law regulating construction or the performance of construction.\" (Emphasis added).\nOn 8 June 2006, Gaston County renewed the building permit (\u201cthe renewed permit\u201d) until 8 December 2006. On 12 June 2006, the City passed an amendment to the Ordinance (\u201cthe amendment\u201d) that banned billboards in the City. With the adoption of the amendment, the billboard became a nonconforming sign.\nOn 13 June 2006, Fairway took down the billboard in anticipation of the project. After the project was completed, Fairway relocated the billboard in its new location on 6 December 2006. Except for the footings, the billboard was the same sign that had been previously taken down by Fairway before the project began.\nOn 16 January 2007, the City sent Fairway a Notice of Violation (\u201cthe NOV\u201d) regarding the billboard. According to the City, the relocation of the billboard violated the amendment. The NOV also stated that Fairway\u2019s sign permit had expired and that the renewed permit was void as a result. Fairway appealed the NOV to the BOA, which affirmed the NOV on 7 May 2007 and entered a written order requiring the billboard\u2019s removal.\nOn 10 August 2007, the superior court of Gaston County, by consent of the parties, issued a Writ of Certiorari in order to review the BOA\u2019s decision. On 31 October 2008, the superior court entered an order and judgment affirming the decision of the BOA. Fairway appeals.\nII. Standard of Review\nUpon reviewing a decision by a board of adjustment, the superior court\u2019s scope of review includes: (1) Reviewing the record for errors in law, (2) Insuring that procedures specified by law in both statute and ordinance are followed, (3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents, (4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and (5) Insuring that decisions are not arbitrary and capricious. Depending upon the nature of the alleged error, the superior court must apply one of two standards of review in an administrative appeal of a decision by a board of adjustment. Where the petitioner asserts that the board\u2019s decision is based on an error of law, de novo review is proper. If the petitioner contends that the board\u2019s decision is arbitrary or capricious, or is unsupported by the evidence, the court applies the whole record test.\nE. Outdoor, Inc. v. Bd. of Adjust. of Johnston Cty., 150 N.C. App. 516, 518, 564 S.E.2d 78, 79-80 (2002) (internal quotations and citations omitted). \u201cWhen this Court reviews such appeals from the superior court, our review is limited to determining whether (1) the superior court determined the appropriate scope of review and (2) whether the superior court, after determining the proper scope of review, properly applied such a standard.\u201d Id. at 518, 564 S.E.2d at 80.\nIII. De novo Review\nFairway argues that the superior court erred in finding that the BOA\u2019s interpretation of the Ordinance is entitled to some deference under a de novo standard of review. We disagree.\nIn its order, the superior court stated: \u201cIn interpreting the applicable ordinances, the [BOA]\u2019s decision is entitled to some deference so long as [the BOA] did not act arbitrarily, oppressively, manifestly abuse its authority, or commit an error of law.\u201d Fairway contends that this deference is inconsistent with a de novo review.\nWhere the petitioner alleges that a board decision is based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been determined. However, one of the functions of a Board of Adjustment is to interpret local zoning ordinances, and [the BOA]\u2019s interpretation of its own ordinance is given deference. Therefore, our'task on appeal is not to decide whether another interpretation of the ordinance might reasonably have been reached by the board, but to decide if the board acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law in interpreting the ordinance.\nWhiteco Outdoor Adver. v. Johnston Cty. Bd. of Adjust., 132 N.C. App. 465, 470, 513 S.E.2d 70, 74 (1999) (internal quotations and citations omitted). The standard of review included in the superior court\u2019s order is clearly consistent with the standard of review for interpretation of a local zoning ordinance as established by this Court. This assignment of error is overruled.\nIV. Validity of Building Permit\nFairway argues that the superior court erred by concluding that the billboard was in violation of the amendment because Fairway possessed an unexpired and unrevoked building permit from Gaston County. We disagree.\nAfter the amendment, the Ordinance \u00a7 155.163(A) stated, in relevant part:\nNo sign shall hereafter be erected, attached to, suspended from, or supported on a building or structure; nor shall any existing sign be enlarged, relocated, or otherwise altered; nor shall any building permit be issued for such purposes until a sign permit for same has been issued by the Zoning Administrator ....\n(Emphasis added). In the instant case, the parties agree a valid sign permit was issued to Fairway on 31 August 2005. The parties do not agree on whether that permit was still in effect when Fairway renewed its building permit in June 2006.\nThe validity of Fairway\u2019s sign permit at the time it obtained the renewed permit is a mixed question of law and fact. The BOA\u2019s statutory interpretation of \u201cwork\u201d in the Ordinance is a question of law reviewed under the standard articulated in Whiteco. Whether Fairway\u2019s action constituted \u201cwork\u201d as defined by the Ordinance is a question of fact that is reviewed using the whole record test.\nA. Definition of work\nUnder \u00a7 155.207 of the Ordinance, \u201c[i]f the work described in any compliance or sign permit has not begun within six months from the date of issuance thereof, the permit shall expire.\u201d The BOA concluded that Fairway did not commence any \u201cwork\u201d on the billboard in the six months after the sign permit was issued on 31 August 2005 and therefore the sign permit was expired at the time Fairway attempted to renew the building permit.\nKevin Krouse, the City Zoning Administrator (\u201cKrouse\u201d), testified that he saw no signs of work on the property until December 2006, long after the sign permit would have expired by its terms. Krouse defined \u201cwork\u201d as \u201cactually something moving on the ground . . . [construction.\u201d The BOA affirmed the opinion of Krouse and ordered the billboard removed.\nFairway argues that the BOA should not have relied upon the definition of \u201cwork\u201d offered by Krouse. As previously noted, this Court gives the BOA\u2019s interpretation of its own ordinance deference. CG&T Corp. v. Bd. of Adjust. of Wilmington, 105 N.C. App. 32, 39, 411 S.E.2d 655, 659 (1992). We need not decide whether another interpretation of the ordinance might reasonably have been reached by the BOA. Whiteco, 132 N.C. App. at 470, 513 S.E.2d at 74.\n\u201cWhen statutory language is clear and unambiguous, [w]ords in a statute must be construed in accordance with their plain meaning unless the statute provides an alternative meaning.\u201d Procter v. City of Raleigh Bd. of Adjust., 140 N.C. App. 784, 785-86, 538 S.E.2d 621, 622 (2000) (internal quotations and citation omitted). The Ordinance itself does not define \u201cwork.\u201d However, the Ordinance \u00a7 155.163 requires a sign permit to be issued any time a sign is \u201cerected, attached to, suspended from, or supported on a building or structure\u201d or when an existing sign is \u201cenlarged, relocated, or otherwise altered.\u201d Since the purpose of a sign permit is to allow the construction or physical alteration of a sign, it does not appear that the BOA\u2019s definition of \u201cwork\u201d for the purposes of maintaining a valid sign permit, \u201csomething moving on the ground . . . [construction,\u201d is an unreasonable interpretation or otherwise the result of an error of law.\nB. Fairway\u2019s \u201cwork\u201d\nUsing the BOA\u2019s definition of \u201cwork,\u201d we must now determine whether the BOA properly concluded that Fairway\u2019s actions did not constitute \u201cwork.\u201d This determination requires the use of the whole record test.\nThis test requires the reviewing court to examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the [Board\u2019s] decision is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing court should not replace the [Board\u2019s] judgment as between two reasonably conflicting views; [w]hile the record may contain evidence contrary to the findings of the [Board], this Court may not substitute its judgment for that of the [Board].\nCoucoulas/Knight Props., LLC v. Town of Hillsborough, \u2014 N.C. App.-,-, 683 S.E.2d 228, 230 (2009) (citation omitted).\nIn the instant case, there is sufficient evidence in the whole record to support the BOA\u2019s decision. Fairway does not dispute that there was no physical construction on the site during the six months after issuance of the sign permit. Fairway presented evidence that it conducted negotiations with NCDOT and the owner of the property regarding where it would move the billboard, but at the same time admitted that it did not inform the City of these ongoing negotiations. Krouse testified that he observed no work on the property until months after the sign permit expired. This is enough evidence \u201cas a reasonable mind might accept as adequate to support a conclusion\u201d and the decision of the BOA should therefore not be disturbed.\nV. Vested Rights\nBecause the sign permit had expired before Fairway renewed its building permit in June 2006, it could not validly renew its Gaston County building permit under the express terms of the Ordinance \u00a7 155.163. The BOA argues that the building permit was therefore void. Fairway argues that until the invalid permit was revoked pursuant to N.C. Gen. Stat. \u00a7 160A-422 (2007), it has established statutory vested rights under N.C. Gen. Stat. \u00a7 160A-385(b)(i) (2007).\nN.C. Gen. Stat. \u00a7 160A-422 delineates the procedure for the revocation of permits.\nThe appropriate inspector may revoke and require the return of any permit by notifying the permit holder in writing stating the reason for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable State or local laws; or for false statements or misrepresentations made in securing the permit. Any permit mistakenly issued in violation of an applicable State or local law may also be revoked.\nN.C. Gen. Stat. \u00a7 160A-422 (2007) (emphasis added). The BOA argues that revocation of the renewed permit was unnecessary because it was void ab initio. This interpretation would render the portion of N.C. Gen. Stat. \u00a7 160A-422 emphasized above superfluous. \u201cSuch statutory construction is not permitted, because a statute must be construed, if possible, to give meaning and effect to all of its provisions.\u201d HCA Crossroads Residential Ctrs. v. North Carolina Dep\u2019t of Human Res., 327 N.C. 573, 578, 398 S.E.2d 466, 470 (1990). Therefore, the proper way to revoke a building permit, even a permit issued in violation of a state or local law, is by following the statutory revocation procedure of N.C. Gen. Stat. \u00a7 160A-422.\nIn the instant case, it is undisputed that Fairway\u2019s building permit was not revoked pursuant to N.C. Gen. Stat. \u00a7 160A-422 until after the amendment was passed. Fairway argues that because it possessed an unrevoked building permit at the time of the amendment, it is entitled to vested rights under N.C. Gen. Stat. \u00a7 160A-385(b), which states, in relevant part:\nAmendments in zoning ordinances shall not be applicable or enforceable without consent of the owner with regard to buildings and uses for which .. . (i) building permits have been issued pursuant to G.S. 160A-417 prior to the enactment of the ordinance making the change or changes so long as the permits remain valid and unexpired pursuant to G.S. 160A-418 and unrevoked pursuant to G.S. 160A-422 ....\nN.C. Gen. Stat. \u00a7 160A-385(b) (2007) (emphasis added). Although the building permit was not revoked at the time of the amendment, the Gaston County building inspector who issued the renewed permit testified that because Fairway did not possess a valid sign permit, the renewed permit was issued by mistake, contrary to applicable law, and was therefore invalid. An invalid permit does not qualify for statutory rights according to the express language of N.C. Gen. Stat. \u00a7 160A-385(b)(i).\nThis result is also supported by previous holdings of this Court. \u201cPermits unlawfully or mistakenly issued do not create a vested right.\u201d Clark Stone Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 164 N.C. App. 24, 40, 594 S.E.2d 832, 842 (2004); see also Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950). Thus, Fairway cannot rely upon a mistakenly issued permit to establish vested rights in its nonconforming use of the property. This assignment of error is overruled.\nVI. Equitable Estoppel\nFairway argues that the superior court erred in concluding that the City and the BOA were not equitably estopped from ordering the removal of the billboard. We .disagree.\nIt has been established that the building permit renewal was issued by mistake, contrary to the express terms of the Ordinance. Fairway correctly argues that it relied upon this invalid renewed permit to its detriment. However, in such a situation, our Supreme Court has held, \u201ca municipality cannot be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting such violator to violate such ordinance in times past.\u201d Fisher, 232 N.C. at 635, 61 S.E.2d at 902 (citations omitted); see also Helms v. Charlotte, 255 N.C. 647, 652, 122 S.E.2d 817, 821 (1961). The Fisher Court, acknowledging the hardship that this\u2019rule can create, succinctly explained the reasoning behind it:\nUndoubtedly this conclusion entails much hardship to the defendants. Nevertheless, the law must be so written; for a contrary decision would require an acceptance of the paradoxical proposition that a citizen can acquire immunity to the law of his country by habitually violating such law with the consent of unfaithful public officials charged with the duty of enforcing it.\nFisher, 232 N.C. at 635, 61 S.E.2d at 902. This assignment of error is overruled.\nVIL Nonconforming Provisions of the Ordinance\nFairway argues that the superior court erred by failing to conclude that the nonconforming provisions of the Ordinance did not prohibit the relocation of the billboard. We disagree.\nAs previously noted, \u00a7 155.163(A) of the Ordinance provides that:\nNo sign shall hereafter be erected, attached to, suspended from, or supported on a building or structure; nor shall any existing sign be enlarged, relocated, or otherwise altered; nor shall any building permit be issued for such purposes until a sign permit for same has been issued by the Zoning Administrator. . . .\nThe parties agree that the billboard was a nonconforming sign after the amendment was passed. By the terms of the Ordinance, structural changes, including relocations, are not permitted, even for conforming uses, without a valid sign permit and a valid building permit. Fairway did not possess a valid version of either of these permits at the time it relocated its billboard.\nAdditionally, \u00a7 155.172 of the Ordinance, entitled \u201cNonconforming Signs,\u201d provides that:\n(A) Existing nonconforming sign. A non-conforming sign . . . shall not be replaced by another non-conforming sign except that the substitution or inter-change of poster panels, painted boards, or demount-able material on nonconforming signs shall be permitted. . . .\nTherefore, only the interchange of the actual changeable sign sections of a billboard are allowed in order to maintain an existing nonconforming use. The relocation of the billboard by Fairway went well beyond the interchange of sign sections and Fairway could not maintain an existing nonconforming use on this basis. This assignment of error is overruled.\nYIII. Whole Record\nFairway finally argues that the superior court erred in concluding that the BOA\u2019s decision was supported by competent, material, and substantial evidence and was otherwise not arbitrary or capricious. We disagree.\nSpecifically, Fairway argues that the superior court erred by upholding the BOA\u2019s findings that Fairway had done no \u201cwork\u201d to maintain its right to the sign permit and by upholding the BOA\u2019s finding that Fairway possessed no statutory vested rights. These contentions have been previously considered and found to be without merit. There is substantial evidence in the whole record to support the BOA\u2019s findings and its decision was the result of the application of correct legal principles. This assignment of error is overruled.\nAffirmed.\nJudge GEER concurs.\nJudge HUNTER, Robert C. dissents by separate opinion.\n. The 13 December 2005 building permit is not contained in the record on appeal. However, the record does contain a renewed building permit that indicates the original building permit was issued on 13 December 2005.\n. As an initial matter, we note that the facts of the instant case are similar to the facts in Lamar OCI South Corp. v. Stanly Cty. Zoning Bd. of Adjust., 186 N.C. App. 44, 650 S.E.2d 37 (2007), aff\u2019d per curiam in part and disc, review improvidently allowed in part, 362 N.C. 670, 669 S.E.2d 322 (2008). In Lamar, this Court held that the NCDOT\u2019s billboard regulations preempted any conflicting local zoning ordinances and allowed a nonconforming sign to be relocated under NCDOT regulations. Id. at 50-53, 650 S.E.2d at 41-43. However, the record in the instant case indicates that NCDOT regulations did not apply to the billboard at issue. Therefore, the analysis in Lamar is not applicable.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "HUNTER, Robert C., Judge,\ndissenting\nAfter careful review, I dissent from the majority opinion because I disagree with the majority\u2019s position on the definition of \u201cwork.\u201d While we give deference to the City Board of Adjustment\u2019s (\u201cBOA\u201d) own interpretation of its ordinances, we are not required to accept that interpretation, under de novo review, if it is arbitrary or constitutes an error of law. Here, the BOA committed an error of law when it accepted Kevin Krouse\u2019s (\u201cKrouse\u201d) claim that \u201cwork\u201d means construction. Work should not be so narrowly defined and can include actions that do not result in construction on the site. Under these circumstances I would remand this case to the trial court with instructions to remand to the BOA to determine if petitioner had begun \u201cwork\u201d under a broader definition. If petitioner had begun work within six months after the sign permit was originally issued, then the subsequently renewed building permit would have been valid at the time the sign was relocated.\nFacts\nOn or about 11 July 2005, the North Carolina Department of Transportation (\u201cDOT\u201d) filed a Notice of Taking and Complaint for a road widening project, which effectively condemned a portion of Gastonia Highway where Fairway\u2019s billboard was located. The roadway contract was expected to be awarded on 19 June 2006. Fairway was required by DOT to move the billboard to a new location by 15 March 2006.\nOn 26 August 2005, Fairway applied for a City of Bessemer City Zoning Permit (the \u201csign permit\u201d), which was then issued on 31 August 2005. On 21 November 2005, Fairway applied for a Gaston County Building Permit (the \u201cbuilding permit\u201d), which was then issued on 13 December 2005. Fairway contends that after the permits were issued, it continued negotiations with DOT regarding the exact location of the road widening project and where the billboard could be relocated. Fairway also claims that negotiations were taking place between Fairway and the land owner for a new lease agreement. Additionally, a \u201cNAPA\u201d building was also located on the proposed right of way and there was some uncertainty as to where that building would be relocated on the parcel.\nOn 2 March 2006, Fairway generated a Work Order to take down the existing billboard on 13 June 2006.. On 9 March 2006 Fairway sent a letter to DOT stating that it \u201cwould like to schedule the removal of this sign for (No Later Than) Tuesday, June 13th 2006. \u201d On 28 April 2006, Fairway entered into a new lease for the relocated billboard with the land owner on the same parcel of land along Gastonia Highway.\nOn 8 June 2006, Fairway received a renewal of its building permit. On 12 June 2006, the City of Bessemer (the \u201cCity\u201d) adopted a new ordinance banning billboards within the City\u2019s zoning jurisdiction. At that point, Fairway\u2019s existing billboard became a nonconforming sign. On 13 June 2006, Fairway removed the billboard from its original location and stored it. On 6 December 2006, Fairway completed relocation of the billboard. On 16 January 2007, Fairway received the first notice of violation from the City\u2019s attorney.\nDiscussion\nPursuant to Bessemer City Ordinance \u00a7 155.163(A), a building permit cannot be issued \u201cuntil a sign permit for same has been issued . ...\u201d A valid sign permit was issued to Fairway on 31 August 2005. Ordinance \u00a7 155.207 states:\nIf the work described in any compliance or sign permit has not begun within six months from the date of issuance thereof, the permit shall expire. Upon beginning a project, work must be diligently continued until completion with some progress being apparent every three months. If such continuation or work is not shown, the permit will expire.\nThe BOA held that the sign permit expired six months after it was issued because Fairway had not begun any work under Ordinance \u00a7 155.207, and, therefore, the building permit that was renewed in June 2006 was not valid. The majority holds that without a valid building permit, Fairway does not have a statutorily vested right pursuant to N.C. Gen. Stat. \u00a7 160A-385(b) (2007) to relocate the sign. It follows that if Fairway had begun work within six months of the issuance of the sign permit, the renewed building permit would be valid and Fairway would have a vested right to relocate the sign as mandated by DOT.\nThe term \u201cwork\u201d is not defined in the City\u2019s ordinances. At the hearing before the BOA, Krouse, the City Zoning Administrator, testified that, pursuant to his interpretation of the ordinance, work meant \u201cconstruction.\u201d Fairway admits that no construction occurred during the six months after the sign permit was issued because they did not have a new lease signed and final negotiations with DOT had not taken place; however, Fairway contends that \u201cwork\u201d does not necessarily mean that a physical alteration must occur at the site. I agree.\n\u201cZoning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly their express terms.\u201d Cumulus Broadcasting, LLC v. Hoke County Bd. of Comm\u2019rs, 180 N.C. App. 424, 427, 638 S.E.2d 12, 15 (2006) (quoting Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966)); see also Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 354, 578 S.E.2d 688, 691 (2003) (\u201cZoning ordinances derogate common law property rights and must be strictly construed in favor of the free use of property.\u201d).\nThe majority aptly states that the interpretation of \u201cwork\u201d is a question of law reviewed de novo, and whether Fairway\u2019s actions constituted \u201cwork\u201d is a question of fact that is reviewed using the whole record test. The majority is also correct in its assertion that the BOA\u2019s interpretation of its own ordinance is entitled to some deference under a de novo standard of review. See Whiteco Outdoor Adver. v. Johnson Cty. Bd. of Adjustment, 132 N.C. App. 465, 470, 513 S.E.2d 70, 74 (1999). \u201cTherefore, our task on appeal is not to decide whether another interpretation of the ordinance might reasonably have been reached by the board, but to decide if the board acted arbitrarily, oppressively, manifestly abused its authority, or committed an error of law in interpreting the ordinance.\u201d Id. (citation and quotation marks omitted). I find that the Board in this case committed an error of law in defining \u201cwork\u201d to be synonymous with construction.\nIn Town of Hillsborough v. Smith, 276 N.C. 48, 55, 170 S.E.2d 904, 909 (1969), our Supreme Court held that the visible commencement of construction was not the only means by which a permit holder could preserve his or her rights under a zoning permit. Entering into contractual obligations, the purchase of building materials, expenditures of money, or other activities could preserve the permit holder\u2019s rights even where there was no \u201cvisible change in the condition of the land.\u201d Id. The Court reasoned that\n[i]t is not the giving of notice to the town, through a change in the appearance of the land, which creates the vested property right in the holder of the permit. The basis of his right to build and use his land, in accordance with the permit issued to him, is his change of his own position in bona fide reliance upon the permit.\nId. Here, there was no visible change in the land before the billboard was physically moved; however, it is important to recognize that in this particular circumstance, aside from installing new \u201cfootings\u201d and re-erecting the billboard, there was no construction that could have been performed on the new site. The old billboard was simply relocated, not fully reconstructed anew. This situation is different from the building of an office or other commercial property where construction visibly begins and continues for some time. In that circumstance most of the \u201cwork\u201d conducted would be visible construction. That is not the case here. It appears from the record in this case that after the footings were installed, the billboard was re-erected in one day. The \u201cwork\u201d involved in conducting that move was, arguably, performed behind the scenes.\nIn Flowerree v. City of Concord, 93 N.C. App. 483, 485, 378 S.E.2d 188, 189 (1989), this Court considered a non-conforming duplex under the City of Concord\u2019s Zoning Ordinance, which stated that discontinuance of a non-conforming use for more than three months would result in loss of non-conforming rights. In that case, the tenants of the lawful nonconforming duplex had moved out and the utilities were turned off. Id. at 484, 378 S.E.2d at 189. This Court affirmed the trial court\u2019s decision to reverse the City of Concord\u2019s denial of plaintiffs\u2019 application for an occupancy permit and held, \u201c[w]hile there was an interruption in occupancy, there was no \u2018cessation of use within\u2019 the meaning ... of the . . . Zoning Ordinance\u201d since the \u201cnon-occupancy resulted from factors beyond petitioners [sic] control\u201d and petitioners continued to look for tenants and made some repairs to the property to make it more marketable. Id. at 486, 378 S.E.2d at 190. In Flowerree, \u201ccessation of use\u201d was not synonymous with \u201cunoccupied\u201d where efforts were being made behind the scenes to comply with the ordinance. Similarly in the present case, \u201cwork\u201d is not synonymous with \u201cconstruction\u201d as a matter of law.\nFurthermore, \u201c[w]hen statutory language is clear and unambiguous, \u2018words in a statute must be construed in accordance with their plain meaning unless the statute provides an alternative meaning.\u2019 \u201d Procter v. City of Raleigh Bd. of Adjust., 140 N.C. App. 784, 785-86, 538 S.E.2d 621, 622 (2000) (quoting Kirkpatrick v. Village Council, 138 N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000)). According to a common dictionary definition, \u201cwork\u201d means \u201c[p]hysical or mental effort or activity directed toward the production or accomplishment of something.\u201d The American Heritage Dictionary 1554 (3rd ed. 1997). \u201cConstruction\u201d is defined as \u201c[t]he act or process of constructing\u201d or \u201c[t]he way in which something is built or put together.\u201d Id. at 299. \u201cConstruction\u201d is thus limited to physical acts of assembly while the plain meaning of \u201cwork\u201d does not require a physical manifestation of one\u2019s efforts. Contrary to the BOA\u2019s determination, the two terms are not synonymous.\nAdditionally, the building permit states that the permit would expire if \u201cwork or construction authorized [was] not commenced within 6 months ...\u201d (Emphasis added.) Clearly, a distinction was made between work and construction. Had the City wanted to require the sign permit holder to begin \u201cconstruction\u201d within six months, it should have used that term in the ordinance. In sum, I find that work is not synonymous with construction alone and may include other efforts or preparations that are not visible on the site.\nFairway claims that between August 2005 and February 2006 it was actively carrying out the steps necessary in order to begin the physical relocation of the Billboard. Fairway argues that the \u201cwork\u201d performed included: (1) applying for a building permit and subsequent renewal thereof; (2) negotiating with DOT over the relocation and compensation for moving the billboard; and (3) re-negotiating its lease with the landowner. Fairway points out that it could not begin construction prior to renegotiating its lease and obtaining funding guarantees from DOT. Also, the NAPA building that was located on the same parcel had to be relocated as well, which further delayed Fairway\u2019s relocation.\nAt this juncture, I decline to determine whether Fairway\u2019s actions constituted work or whether it complied with Ordinance \u00a7 155.207; rather, I would remand this case to the trial court with instructions to remand it to the BOA so that it may re-examine the issue under a broader definition of work.\n. DOT\u2019S response is not included in the record.", "type": "dissent", "author": "HUNTER, Robert C., Judge," } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus and Lindsay P Thompson, for petitioner-appellant.", "Gray, Layton, Kersh, Solomon, Furr & Smith, P.A., by David W. Smith, III and Michael L. Carpenter, for respondent-appellee." ], "corrections": "", "head_matter": "MORRIS COMMUNICATIONS CORPORATION d/b/a FAIRWAY OUTDOOR ADVERTISING, Petitioner v. CITY OF BESSEMER CITY ZONING BOARD OF ADJUSTMENT, Respondent\nNo. COA09-440\n(Filed 2 March 2010)\n1. Zoning\u2014 board of adjustment \u2014 de novo standard of review\nThe superior court did not err by finding that a city zoning board of adjustment\u2019s interpretation of a zoning ordinance was entitled to some deference under a de novo standard of review. It was consistent with the standard of review for interpretation of a local zoning ordinance.\n2. Zoning\u2014 validity of building permit \u2014 billboard\nA whole record test revealed that the superior court did not err by concluding that a billboard was in violation of a zoning ordinance amendment even though petitioner Fairway contended it possessed an unexpired and unrevoked building permit from Gaston County. There was no physical construction on the site during the six months after issuance of the sign permit, and there was no work on the property until months after the sign permit expired.\n3. Zoning\u2014 sign permit \u2014 building permit \u2014 vested rights\nPetitioner Fairway cannot rely upon a mistakenly issued permit to establish vested rights in its nonconforming use of the property. Although the building permit was not revoked at the time of the ordinance amendment, the county building inspector who issued the renewed permit testified that because Fairway did not possess a valid sign permit, the renewed permit was issued by mistake and was thus invalid under N.C.G.S. \u00a7 160A-385(b)(i).\n4. Zoning\u2014 removal of billboard \u2014 detrimental reliance \u2014 invalid renewed permit \u2014 equitable estoppel\nThe superior court did not err by concluding that the City and the board of adjustment were not equitably estopped from ordering the removal of a billboard even though petitioner Fairway detrimentally relied upon an invalid renewed permit. A municipality cannot be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting such violator to violate such ordinance.\n5. Zoning\u2014 ordinance amendment \u2014 billboard\u2014nonconforming use\nThe superior court did not err by failing to conclude that the nonconforming provisions of an ordinance prohibited the relocation of a billboard. The pertinent billboard was a nonconforming sign after an ordinance amendment passed. Only the interchange of the actual changeable sign sections of a billboard are allowed in order to maintain an existing nonconforming use.\n6. Zoning\u2014 board of adjustment decision \u2014 competent, material, and substantial evidence \u2014 whole record test\nA whole record test revealed the superior court did not err by concluding that a board of adjustment\u2019s decision was supported by competent, material, and substantial evidence, and was otherwise not arbitrary or capricious.\nJudge HUNTER, Robert C., dissenting.\nAppeal by petitioner from order entered 31 October 2008 by Judge Thomas W. Seay, Jr. in Gaston County Superior Court. Heard in the Court of Appeals 14 October 2009.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus and Lindsay P Thompson, for petitioner-appellant.\nGray, Layton, Kersh, Solomon, Furr & Smith, P.A., by David W. Smith, III and Michael L. Carpenter, for respondent-appellee." }, "file_name": "0631-01", "first_page_order": 659, "last_page_order": 674 }