Wednesday, September 19, 2007, 9:26 AM

In Second Preemption Case This Week, COA Held County Ordinance Preempted By State Law

In a second county ordinance case, Lamar OCI South Corporation v. Stanly County Zoning Board of Adjustment, the COA held that an ordinance in conflict with state law was preempted.

Lamar is an outdoor advertising company that leases land in Stanly County for a billboard. Several years after the billboard was put up, the County amended a zoning ordinance that would have prohibited Lamar's sign. But the sign was grandfathered in under a special provision and therefore legal. Later, the State decided to widen the road next to the billboard and informed Lamar that the billboard would need to be moved. Lamar moved and repaired the billboard. The County decided that when Lamar moved and repaired the billboard, the billboard lost its legal status.

On appeal, Lamar argued that state law (the NC Outdoor Advertising Control Act and Department of Transportation regulations) essentially completely preempts the field, to the exclusion of local regulation. This argument had, however, already been rejected by the COA, which here again stated that the Outdoor Advertising Control Act does not prohibit local regulation of outdoor advertising.

However, the COA held that the local ordinance here prohibited the billboard relocation that was expressly allowed by state regulations. The COA indicated that when a state law conflicts with a local regulation, the local regulation must yield. The majority held, among other things, that the State regulations allowed for Lamar's billboard to be moved within the sign location/site, or 1/100th of a mile, while the local regulation prohibited any movement at all except to bring the billboard into full compliance with the local ordinance, which Lamar's move did not do. The COA held that the State regulations, which conflicted with the local regulation, ruled.

Judge McGee disagreed and dissented. Judge McGee would have held that the local ordinance is not preempted. Judge McGee focused on the specific state regulations at issue and indicated that those regulations are in part definitional and in any case not clear substantive statements allowing the relocation of a nonconforming sign. As such, the local ordinance would not conflict with state law and there would be no conflict preemption.


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