Posted by: Patricia Salkin | July 7, 2011

NC Supreme Court Funds Board of Appeals’ Interpretation of Sign Ordinance Incorrect

Fairway had lawfully constructed a sign on a portion of property in Bessemer City, but in July 2005, the North Carolina Department of Transportation notified Fairway that they were condemning the property to accommodate a highway-widening project.  As a result, Fairway had to relocate the sign.  In August 2005, Fairway obtained a sign permit under a Bessemer ordinance, § 155.207, which required Fairway to begin “work described in the sign permit” within six months (in this case, by February 27, 2006) or the permit would expire.  In November 2005 Fairway obtained a building permit.  Between this time and early June 2006, Fairway participated in a series of negotiations and transactions to schedule the removal of the sign as well as coordinate with other demolition projects resulting from the condemnation.  Fairway removed the sign, and put it in storage in mid-June, then re-installed it in December 2006.  At that time, Fairway received a violation notice from the BOA, saying their sign violated an outdoor advertising ban that had been implemented during the relocating process.  The city said that the sign permit was invalid because they hadn’t begun “work” within six months, and therefore, building permit was also invalid because it had been renewed after the expiration of the sign permit.

Fairway brought suit after the BOA issued an order to remove the sign.  The trial court and Court of Appeals affirmed the BOA’s decision.  The Court of Appeals gave deference to the BOA’s decision, which the Supreme Court deemed inappropriate as claims of errors of law receive de novo review.  The BOA argued that “work” in § 155.207 includes only physical construction.  Fairway argued that it encompasses a broader range of activities that are necessary to complete the whole process of sign relocation.  The court agreed with Fairway that its negotiations and acquisition of a county permit constitute “work” within the meaning of the ordinance.  They construed the statute in favor of the free use of real property, a well-settled principle regarding governmental restrictions on the use of land.  The court also looked at a dictionary definition of “work” and found it to include both physical and mental effort, further supporting their broad interpretation of the term.  As a result, the Supreme Court of North Carolina found that there had been errors of law and reversed the decisions of the lower court.

Morris Communications Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 150A10, 2011 WL 2409867 (N.C. June 16, 2011)

The opinion can be accessed at:

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