42552 - 19A Ncac 02 With Comments

[[SCAN_REGION_16_40_230_100_460|Van Winkle Law Firm logo]]

April 25, 2016

Via Overnight Delivery

North Carolina Department of Transportation
c/o Helen Landi
NCDOT APA Coordinator
1501 Mail Service Center
Raleigh, NC 27699-1501

Re: Notice of Periodic Review of Existing Rules – Public Comment

To Whom It May Concern:

I represent the North Carolina Outdoor Advertising Association ("NCOAA"). The purpose of this letter is to set out in writing several comments to the North Carolina Department of Transportation ("DOT")'s notice of periodic review and expiration of existing rules mandated by N.C. Gen. Stat. §150B-21.3A. It is plain that the purpose of this statute is to streamline agency rules, make them more business friendly and to eliminate rules which are "obsolete, redundant, or otherwise not needed." We believe that included within the latter category would be rules that are either without statutory authority or are in conflict with statutory authority.

N.C. Gen. Stat. §150B-21.3A is relatively new legislation. Its scope is not fully explored. Although this may not be the forum to raise questions about rules that either lack statutory authority or are in conflict with statutory authority, it should be helpful for the DOT and the Rules Review Commission to continue to understand the outdoor advertising industry's position since it is the one primarily impacted by several of the regulations. Here are my client's comments:

1. 19A NCAC 02E .0202 AGREEMENT appears to be obsolete. First, the second sentence states that in the event that federal regulations are more restrictive than DOT rules related to outdoor advertising, the federal rules will be expressly incorporated by reference, and presumably enforced. This provision is not authorized by the North Carolina Outdoor Advertising Control Act, N.C. Gen. Stat.

§136-126 et seq. ("OACA") and, more specifically, N.C. Gen. Stat. §136-138, which specifically covers the subject matter of agreements with the federal government without mention of federal regulations being controlling. N.C. Gen. Stat. 150B-19(1) plainly directs the agency not to adopt a rule that "implements or interprets a law unless that law or another law specifically authorizes the agency to do so." The federal-state agreement related to the control of outdoor advertising sets the "floor" for regulations in this State. Nothing therein suggests that the Federal Highway Administrator and/or the federal DOT can change that agreement unilaterally and impose stricter standards.

2. 19 NCAC 02E .0204 LOCAL ZONING AUTHORITIES appears to be obsolete. In 2013, the North Carolina General Assembly passed House Bill 74, entitled "AN ACT TO IMPROVE AND STREAMLINE THE REGULATORY PROCESS IN ORDER TO STIMULATE JOB CREATION, TO ELIMINATE UNNECESSARY REGULATION, TO MAKE VARIOUS OTHER STATUTORY CHANGES, AND TO AMEND CERTAIN ENVIRONMENTAL AND NATURAL RESOURCES LAWS." ("HB 74"). HB 74 is an extremely important new law that, as the above title indicates, stimulates job creation and eliminates unnecessary regulation in the field of outdoor advertising. HB 74 is codified in North Carolina Gen. Stat. §136-131.2 and provides that no municipality or county can "regulate or prohibit the repair or reconstruction of any outdoor advertising from which there is in effect a valid permit issued by the Department of Transportation." Obviously, the term "regulate" is very broad and would include any regulatory efforts by the City to impose its set of standards on the Billboard's modernization. Moreover, the only statutory limitation in the new law is that the "square footage of the advertising surface" cannot be increased. The well-established rule of statutory construction is that mentioning a specific exception implies the exclusion of others. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498-499 (1987)(espousing the doctrine of expressio unius est exclusion alterius); Granville Farms, Inc. v. County of Granville, 170 N.C. App. 109, 114, 612 S.E.2d 156, 160 (2005). Notably, there are no additional exceptions in the statute addressing a sign's conformity to local standards or mentioning development restrictions related to height, setback, etc.

The clear intent of HB 74 is to streamline the regulation of existing outdoor advertising signs along the interstates and primary highways of this State.

Modernization efforts are not to be measured by or judged according to local standards, except to the extent of increases in advertising square footage.

In addition to HB 74, N.C. Gen. Stat. §136-131.1 provides that a local government, in the exercise of its regulatory authority, cannot cause the removal of outdoor advertising for which there is in effect a DOT permit.

There is nothing in the OACA that suggests that local governments can be delegated through administrative action any authority to administer that statutory framework and any regulations promulgated pursuant thereto. The statute that the rule references as authority, N.C. Gen. Stat. §136-130, expressly and exclusively delegates rule making authority to the DOT only.

Moreover, this rule does not implement or conform to any federal regulation. The federal regulations provide in §750.706(c) that "State law", in this case being the North Carolina General Assembly, must authorize the exercise of control by local zoning authorities over outdoor advertising. This is not the case in North Carolina. In fact, the opposite is true as stated above in N.C. Gen. Stat. §§136-131.1 and 136-131.2 implementing HB 74.

3. 19 NCAC 02E .0206 APPLICATIONS. A portion of this rule appears to be obsolete. Section (a)(5) indicates that as part of an application for an outdoor advertising permit the following is needed: a "sign permit of (sic) zoning permit, if required by the local government having jurisdiction over the proposed location." In those cases where the DOT may request the outdoor advertiser to obtain a new permit for any repair and/or reconstruction activities falling with N.C. Gen. Stat. §136-131.2, local government permitting is expressly disavowed in that statute implementing HB 74.

4. 19 NCAC 02E .0225 REPAIR/MAINTENANCE/ALTERATION OF SIGNS. A portion of this rule appears to be obsolete. Section (b)(2) states that for any "conforming sign structures" being reconstructed, that activity must not be in conflict with any applicable state, federal or local rules, regulations or ordinances." The reference to "local rules, regulations or ordinances" is in direct conflict with N.C. Gen. Stat. §136-131.2, implementing HB 74. Moreover, there is nothing in the OACA that directs the DOT to dictate the application of its State-wide standards based on the standards set forth by any particular locality. Additionally, there is

nothing that suggests that conformity with federal rules, regulations or ordinances is required. See N.C. Gen. Stat. 150B-19(1).

My client and I appreciate the time that the DOT has spent in analyzing the rules in light of §150B-21.3A. We hope you will agree with our comments and begin the process of bringing the above mentioned rules in compliance with State law.

Sincerely,

[[SCAN_REGION_19_315_420_355_550|Signature of Craig D. Justus]]

(Signed Electronically)
Craig D. Justus
Attorney for NCOAA

cc. Ebony Pittman, Esq.
Scott Capps
Bobby Soule, President, NCOAA