Administrative – Billboard Permit – Revocation – DOT Authority – Whiteco Requirements

Powell v. N.C. DOT. (Lawyers Weekly No. 11-07-0067, 20 pp.) (Wanda G. Bryant, J.) Appealed from Wake County Superior Court. (Hight, Henry W., J.). N.C. App. Click here for the full text of the opinion.

Holding: Where the DOT failed to find a link between the cutting of shrubbery and billboard visibility in denying or revoking a permit for a sign under Rule 2E.0211, it failed to show that its action was within the scope of its authority under the OACA. In addition, because DOT made no finding that the destruction of vegetation was performed or ordered by a person listed in or subject to Rule 2E.0210(11), the agency failed to show a sufficient connection between those persons who cut the vegetation and the permit holder.

Facts

Petitioner is the owner of a billboard on his approximately 27-acre property along Interstate 95 in Johnston County. He obtained a permit to erect a billboard and constructed it in compliance with all state and local regulations.

Petitioner’s property is also the site of a truck stop business operated by corporation in which petitioner is the sole shareholder. Petitioner’s son manages the truck stop’s day-to-day operations. He hired a contractor to clear brush from various parts of the property, including thick vines and saplings on DOT’s right of way along a bank below I-95, in order to improve the truck stop’s visibility to passing motorists.

A DOT employee saw contractors clearing brush and called petitioner’s son to inform him that this was a violation of DOT rules. The son took responsibility for the cutting and offered to pay for any damages.

DOT revoked petitioner’s billboard permit, citing Title 19A of the N.C. Admin. Code, Rule 2E .0210(11), which provides a that a permit shall be revoked when there has been destruction of vegetation on a state-owned right of way without DOT permission, and the destruction was conducted by one among a list of persons described in subsection (c) of the rule.

Petitioner pursued an administrative appeal, arguing that he was unaware of the actions of his son and did not in any way authorize the brush clearing.

DOT issued a final agency decision affirming the revocation of petitioner’s permit. Petitioner then sought judicial review in superior court. The superior court denied his motion for summary judgment, granted DOT’s motion for summary judgment, and affirmed DOT’s final agency decision revoking his permit.

Insufficient Nexus

Petitioner argued that there is not a sufficient nexus between billboard erection and maintenance and the clearing of vegetation from the right of way here to allow DOT authority to revoke its permit.

We reject the contention that DOT cannot under any circumstance revoke permits for the destruction of vegetation on its right of way. DOT’s authority under the OACA is no more and no less than regulation and control of outdoor advertising, including controlling permits for the erection and maintenance of billboards.

Petitioner’s permit was revoked for a violation based on the destruction of vegetation on the right of way. Subsection 11, unlike each of the other grounds for revocation listed, does not specify any connection between the permitted billboard and the act or omission constituting a violation.

DOT has chosen to make such a connection explicit in Rule 2E.0211, which governs denial of billboard permits for the cutting of vegetation on the DOT right of way. Rule 2E.0211 requires a link between the cutting and billboard visibility in denying permits for new signs.

In this case, the final agency decision does not contain any finding of fact showing a connection between the destruction of vegetation and the billboard. Without such a finding, DOT fails to show that its action was within the scope of its authority under the OACA.

Petitioner specifically raised this issue, contending that any destruction of vegetation did not improve visibility of the billboard and was not connected to the use or maintenance of the billboard. Our review reveals no evidence in the record that could support a finding of a connection between the cutting of vegetation by agents or employees of petitioner’s son and the erection or maintenance of the billboard.

DOT’s engineer stated that there was no evidence that the cutting improved visibility of the billboard or had any connection to its maintenance. An affidavit from the owner of a nursery and landscaping business said the cutting did not improve the billboard’s visibility. Thus, the superior court erred in granting summary judgment to DOT, and we reverse and remand for further proceedings in superior court.

Covered Parties

Petitioner argued that the superior court erred in granting summary judgment to DOT because that agency failed to prove that vegetation on the right of way was cut by any party covered in Rule 2E.0210.

In determining whether there has been a violation of an outdoor advertising regulation sufficient to support a permit revocation, this court has held that DOT must (1) clearly identify persons (2) who committed a violation for which revocation is permissible and (3) show a sufficient connection between those persons and the permit holder.” Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815 (1993).

DOT failed to comply with the third Whiteco requirement because a crucial finding of fact is not supported by competent evidence. It appears that DOT may have been acting under the mistaken belief that petitioner, rather than his son, had acknowledged ordering the vegetation to be cut.

Because DOT made no finding that the destruction of vegetation was performed or ordered by a person listed in or subject to Rule 2E.0210(11), the agency failed to “show a sufficient connection between those persons [who cut the vegetation] and the permit holder.”

Reversed and remanded.