Wake County judge rules in favor of sign company

PNE AOA vs. Jackson County headed for appeal

Lisa Majors-Duff

The order issued by Judge Ronald Stephens in PNE AOA vs. the N.C. Department of Transportation states that "...the DOT shall issue a sign permit for the new sign effective Aug. 17, 1999."

The matter came before Judge Stephens last year after PNE AOA officials appealed DOT Secretary David McCoy's February 2000 administrative decision that the sign be brought into compliance with all outdoor advertising regulations or be removed.

After PNE AOA, a company headquartered in Delaware with a local office in Pisgah Forest, constructed a four-faced billboard on U.S. 441 Aug. 13-14, 1999, residents and business owners in Dillsboro appealed to the Jackson County Board of Commissioners, asking them to create regulations that would prevent future such structures.

Commissioners responded by enacting a 60-day moratorium on off-premise advertising at their Aug. 19, 1999, meeting. They then assigned the county planning board the task of drafting a proposed ordinance.

In the meantime, DOT District Engineer Rick Styles informed PNE AOA in a letter dated Aug. 17, 1999, that the sign near Dillsboro was in violation of the state Outdoor Advertising Control Act because it had been constructed without a permit. He went on to say that PNE AOA would have 30 days to conform to the act or the sign would be removed.

Believing they had 30 days to correct their mistakes, PNE AOA officials applied to the DOT for a permit on Aug. 20, 1999. PNE AOA officials claimed a miscommunication with their subcontractor led to the sign being constructed before a permit was granted. They addressed a second DOT concern - the proximity of previously permitted sign to the new sign - by purchasing the existing sign and agreeing to remove it.

DOT officials denied the request for a permit, this time citing their need to respect Jackson County's moratorium. PNE AOA then filed a lawsuit against Jackson County commissioners and the DOT in Sylva. They also filed an administrative appeal of the local decision not to grant a permit with DOT Secretary McCoy in Raleigh, who denied the appeal on the basis that it had not been filed in a timely manner. McCoy ordered that the "illegal sign be removed or made to conform to the previsions of the Outdoor Advertising Act and the N.C. DOT rules and regulations within 30 days of receipt of this order," which was dated Feb. 24, 2000.

PNE AOA's next appeal was filed in Wake County Superior Court, where Judge Stephens reversed the DOT's decision, saying PNE AOA should have been given 30 days to bring their sign into compliance and that Jackson County's moratorium should not have prevented DOT from issuing a permit. Stephens ordered that a permit back dated to Aug. 17, 1999, be issued as soon as PNE AOA submitted an application and showed that the older sign had been removed.

In a letter to Dale McKeel, executive director of Scenic North Carolina, a state beautification organization interested in the Dillsboro billboard, McCoy explained that the DOT would not appeal Judge Stephens' decision.

"Our legal staff has determined that the department does not have a legal basis to appeal the court order issued by Judge Stephens," McCoy wrote on Dec. 13, 2000.

A further explanation was written by DOT legal staffers earlier this month, in which they said, "DOT was mistaken in applying the moratorium such that it refused to consider a permit application for this sign. PNE had been instructed by DOT that it had an illegal sign and it had 30 days to remove it or bring it into compliance.

"A regulated party is not required to hit a moving target of changing rules and regulations," the legal summary says. "PNE was required to bring the sign into compliance with all laws as they existed (or did not exist) on Tuesday, Aug. 17, 1999, the date of the letter which notified PNE that the sign was illegal.

"PNE was required to comply with the laws as they were on that day, not later enacted laws such a moratorium. In fact, in discovery in the companion case which PNE is pursuing against the county, the county admitted in January or February 2000 that the moratorium did not apply to the sign. Thus, regardless of when the moratorium was enacted, DOT should have accepted the (PNE) application on Aug. 20, 1999."

County planning board members presented a proposed sign ordinance to commissioners in October 1999. After much debate and public comment, commissioners adopted what many called a "watered down" version of the ordinance by a vote of 3-2, with Commissioners Jay Denton and Stacy Buchanan voting in favor of the stricter version. The adopted version incorporated many changes requested by Allison Outdoor Advertising, a Jackson County billboard company whose employees requested that several standards be relaxed.

Commissioners did agree to a changed in the proposed ordinance in an attempt to specifically address the PNE AOA sign. The new language said that "all nonconforming signs legally in existence prior to the effective date of this ordinance are permitted to continue..."

Though the lawsuit involving PNE AOA vs. N.C. DOT seems to be over, the suit involving PNE AOA vs. Jackson County is continuing. On a motion for summary judgment, Superior Court Judge Marlene Hyatt ruled in favor of the county in June 2000, ordering PNE AOA to "...dismantle and remove the steel monopole sign structure..."

PNE AOA attorney Charles McDarris of Raleigh filed an appeal of Hyatt's decision; a stay to her order pending the appeal was issued by Judge Loto Caviness on Aug. 9, 2000. In her order to stay Judge Hyatt's order, Judge Caviness placed a condition that no advertising be posted on the sign during the appeal and that PNE AOA post a $10,000 bond.

Both McDarris and county attorney Raymond Large have filed briefs with the 13th District N.C. Court of Appeals. In his McDarris argues that the appellate court judges should find errors in Judge Hyatt's decision based on state law that gave the sign company 30 days to comply with the Outdoor Advertising Act.

He further contends that Judge Hyatt erred by not ruling in the sign company's favor based on a violation on the part of the county to notify interested parties that a off-premise advertising moratorium would be considered. A third basis of his argument is that Hyatt's judgment in favor of the county was flawed given that no county regulations concerning billboards were in effect at the time the Dillsboro sign was erected.

In his brief to the Court of Appeals, Large argues that Judge Hyatt's decision was proper since the county's moratorium was adopted prior to the sign company's application for a permit. He goes on to say that county acted within state statutes in exercising its right to enact a moratorium against off-premise advertising and that prior notification of the moratorium is not required by law.

Large also maintains that the trial court's decision in favor of the county was correct due to the sign company's failure to establish that it acted in good faith.

"The simple fact in this case is the (sign company) failed to obtain a permit prior to erecting the sign in question," Large said in his brief. "Had the (sign company) first obtained the permit, there would be nothing to litigate."

The case could be heard by the Court of Appeals later this year.

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