Sam's Commercial Props. v. Town of Mooresville

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SAM'S COMMERCIAL PROPERTIES, LLC, Petitioner, v. TOWN OF MOORESVILLE, Respondent.

No. COA22-1006

Court of Appeals of North Carolina

November 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 7 June 2023.

Appeal by Petitioner from order entered 13 September 2022 by Judge Joseph N. Crosswhite in Iredell County No. 21 CVS 2693 Superior Court.

Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D Justus, Jonathan H. Dunlap, and Brian D. Gulden, for petitioner-appellant.

Cranfill Sumner, LLP, by Stephen A. Bader, Patrick H Flanagan, and Kayla N. McDaniel, for respondent-appellee.

MURPHY, Judge.

A Superior Court's-and, by extension, our-review of a zoning board's permit denial is limited to the bases on which the board rendered its decision. Furthermore, the appropriate remedy in the event of a permit denial that was predicated on an error of law is to remand to the zoning board for issuance of the permit. Here, where the sole basis for the Mooresville Board of Adjustment's denial of Petitioner's billboard permit application was predicated on an erroneous interpretation of the Town of Mooresville's zoning ordinance, we reverse and remand to the Superior Court with instructions to further remand the case to the Board of Adjustment for issuance of Petitioner's permit.

BACKGROUND

This case arises from the denial of Petitioner's billboard permit application by the Mooresville Board of Adjustment ("BOA"). In 2021, Petitioner submitted a permit application to the Town of Mooresville ("the Town") to erect a digital billboard within city limits in a heavily commercialized road corridor near the intersections of Highway 150 and Highway 77. On 22 February 2021, the Planning and Community Development Director of Mooresville denied Petitioner's application. Petitioner appealed the director's decision to the BOA, which affirmed the permit denial on 12 August 2021.

In its order, the BOA listed three reasons for the denial of Petitioner's permit application:

First, Section III(b) of page six of the Agreement between the State of North Carolina and the federal government states that local zoning authorities may establish effective control of outdoor advertising signs within zoned commercial areas through regulations or ordinances with respect to size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use when the Federal Highway Administrator has been notified of such control by the local zoning authority.... Second, since the proposed sign is to be an electronic billboard, Section III(a)(3)(b) of page six of the Agreement between the State of North Carolina and the federal government prohibits signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of . . . [a] Federal Aid Primary highway which . . . impair the vision of driver[s].... [A]nd third, no evidence was presented specifically defining a Federal Aid Primary sign.

(Marks and citations omitted). The BOA further noted that "it [did] not appear there [were] any contested facts to be resolved" since the case turned strictly on the interpretation of the ordinance.

After receiving the BOA's decision, Petitioner filed a petition for writ of certiorari with the Iredell County Superior Court pursuant to N.C. G.S. § 160D-1402. See generally N.C. G.S. § 160D-1402 (2021); see also N.C. G.S. § 160D-406(k) (2021) ("Every quasi-judicial decision shall be subject to review by the [S]uperior [C]ourt by proceedings in the nature of certiorari pursuant to [ N.C. G.S. §] 160D-1402."). The Superior Court granted certiorari on 29 September 2021 and, on 22 September 2022, affirmed the BOA's decision and denied an outstanding motion for attorney fees by Petitioner in a one-page order.^[1]

ANALYSIS

Petitioner raises several distinctly enumerated arguments on appeal. However, in substance, all of Petitioner's arguments concern (A) whether the BOA erred in denying Petitioner's request to place a billboard and (B) whether, if the Superior Court erred with respect to the allowance of the billboard it further erred in denying Petitioner's request for attorney fees. The parties also disagree as to (C) the remedy in the event of an improper denial by the BOA. For the reasons discussed below, we hold the BOA incorrectly denied Petitioner's permit application and remand for issuance of the permit.

A. Permit Denial

When reviewing a decision of a county board of adjustment, the Superior Court must:

(1) Review[] the record for errors of law,

(2) [E]nsur[e] that procedures specified by law in both statutes and ordinances are followed,

(3) [E]nsur[e] that appropriate due process rights of a Plaintiff are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(4) [E]nsur[e] that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and

(5) [E]nsur[e] that decisions are not arbitrary or capricious.

JWL Invs., Inc. v. Guilford Cnty. Bd. of Adjustment, 133 N.C.App. 426, 428-29 (citations omitted), disc. rev. denied, 351 N.C. 357 (1999). "If a [p]laintiff contends the [b]oard's decision was based on an error of law, de novo review is proper." Id. at 429 (marks omitted). Meanwhile, "if the [petitioner] contends the [b]oard's decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the 'whole record' test." Id. "An appellate court's review of the [Superior] [C]ourt's zoning board determination is limited to determining whether the [S]uperior [C]ourt applied the correct standard of review, and . . . whether the [S]uperior [C]ourt correctly applied that standard." Bailey & Assocs., Inc. v. Wilmington Bd. Of Adjustment, 202 N.C.App. 177, 190 (2010). Furthermore, the Superior Court's review-and, by extension, our own review-is limited to the bases for the denial actually articulated by the BOA. See Godfrey v. Zoning Bd. Of Adjustment of Union Cnty., 317 N.C. 51, 63-64 (1986) (marks omitted) ("[It was not] appropriate in this context for the panel below to affirm the decision of the Zoning Board of Adjustment by substituting for its basis a legal theory not relied upon by the Board. A court cannot affirm the administrative action of a board by substituting its own premises in sustaining that action for those which served as the basis of the agency's action.").

At the time of the BOA hearing, Chapter 8 of the Town's ordinance stated, in relevant part, that "no sign allowed by this chapter shall be constructed, erected, moved, enlarged, illuminated, altered, maintained, or displayed without first being issued a [permit] . . . in accordance with the standards of this chapter." MOORESVILLE, N.C., ZONING ORDINANCE ch. 8.2 (2020). Chapter 8 provided examples of "[a]llowable [p]ermanent [s]igns" subject to permit requirements, including arm signs, awning signs, pole signs, and projecting signs, as well as "allowable temporary signs" subject to permit requirements, including "signs, flags, inflatables and streamers for special events[.]" MOORESVILLE, N.C., ZONING ORDINANCE ch. 8.3-8.4 (2020). It further provided examples of signs which "shall be prohibited, except as otherwise allowed in [the] [o]rdinance[,]" which included, in relevant part, "[o]ff-premise commercial advertising signs (e.g. billboards) of any size and in any area except those signs part of the Federal Aid Primary System (FAP) and subject to the requirements of the [Highway] Beautification [A]ct [('HBA')]."^[2]MOORESVILLE, N.C., ZONING ORDINANCE ch. 8.7 (2020). Mooresville's ordinance further defined "billboard" as "[a]n advertising sign which exceeds the maximum height and/or sign message area limitations of this [o]rdinance and directs the attention of the public to a commodity, product, service, activity or any other person, place or thing which is not located, found, or sold on the premises upon which such sign is located." MOORESVILLE, N.C., ZONING ORDINANCE ch. 13.2 (2020).

In its denial, the BOA determined the Town's ordinance generally prohibited billboards as a matter of law and interpreted the ordinance as definitively placing Petitioner's billboard permit request outside its exception. The BOA further noted that "it [did] not appear there [were] any contested facts to be resolved since the matter before [it could] be decided" entirely by determining whether the digital billboard Petitioner desired was prohibited under the language of the ordinance.

Reviewing the BOA's interpretation of the ordinance de novo and limiting our review to that issue, we disagree. JWL Invs., Inc., 133 N.C.App. at 429; Godfrey, 317 N.C. at 63-64. When interpreting a municipal ordinance, a court applies the same principles of construction which it uses to interpret statutes. Morris Commc'ns Corp. v. City of Bessemer City Zoning Bd. of Adj., 365 N.C. 152, 157 (2011). To interpret the meaning of a statute, a court begins with the relevant statutory text. U.S. v. Quality Stores, Inc., 572 U.S. 141, 145 (2014). "[A court's] job is to follow the [statutory] text[,] even if doing so will supposedly undercut a basic objective of the statute[.]" Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 135 (2015) (marks omitted). Thus, we review the BOA's decision de novo and interpret the relevant ordinance in accordance with its plain language.

Here the ordinance is broken into two parts. First, the...