Visible Props. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-529
No. COA21-398
Filed 2 August 2022
Forsyth County, No. 20 CVS 805
VISIBLE PROPERTIES, LLC, Petitioner,
v.
THE VILLAGE OF CLEMMONS, Respondent.
Appeal by petitioner from order entered 23 December 2020 by Judge Eric
Morgan in Forsyth County Superior Court. Heard in the Court of Appeals 23
February 2022.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. Justus, Jonathan
H. Dunlap, and Brian D. Gulden, for petitioner-appellant.
Blanco Tackabery & Matamoros, P.A., by Elliot A. Fus and Chad A. Archer, for
respondent-appellee.
DIETZ, Judge.
¶1 Visible Properties, LLC wants to erect a digital billboard on property bordering
a highway in Clemmons. The zoning board of adjustment denied Visible’s request on
the ground that the zoning ordinances did not permit digital billboards. The trial
court, on certiorari review, affirmed.
¶2 Our task on appeal is to determine if the zoning board and the trial court
properly interpreted the language of the ordinances.
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
¶3 This is not as easy as it sounds. Determining which zoning provisions apply
requires so much cross-referencing it is almost dizzying. There is a general provision
that permits off-premises signs such as billboards on the property at issue; a separate
overlay district regulation that, by omission, does not permit off-premises signs on
the property; and a sign-specific ordinance that permits off-premises signs on the
property and states that it supersedes other regulations concerning signs. Then, there
is a separate provision stating that, in the event of a conflict among different
provisions, the most restrictive provision prevails.
¶4 Similarly, the zoning ordinances prohibit “moving and flashing signs” and
“electronic message boards.” But, in light of the examples of “moving and flashing
signs” in the ordinance, and the descriptions of billboards in other portions of the
ordinance as either “signs” or “billboards” (not “message boards”), there are
reasonable interpretations of these provisions that both cover the type of digital
billboard proposed by Visible, and that do not.
¶5 In the end, we are guided by two overarching principles governing construction
of zoning ordinances—first, that we should strive to harmonize provisions and avoid
conflicts whenever possible; and second, that we should construe ambiguous
provisions in favor of the free use of property. Applying those principles here, we hold
that the sign-specific regulation controls the permissible locations of signs and
permits Visible’s proposed billboard on the property. We further hold that the
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
prohibitions on “moving and flashing signs” and “electronic message boards” are open
to multiple reasonable interpretations, are therefore ambiguous, and must be
construed in favor of Visible’s proposed use of the property. We therefore reverse the
trial court’s order and remand for entry of an order reversing the Board of
Adjustment’s decision.
Facts and Procedural History
¶6 Visible Properties, LLC is a North Carolina company that owns and operates
outdoor advertising signs and billboards throughout the state.
¶7 In June 2019, Visible applied to the Village of Clemmons for a zoning permit
to construct a billboard with digital technology at 2558 Lewisville-Clemmons Road.
The permit requested construction of a “10’ x 30’ Outdoor Advertising Structure with
Digital changeable copy” that would be categorized as a “Ground (off premises
freestanding)” sign. The proposed digital billboard would not contain any moving or
scrolling text or images, nor any flashing lights or images, but would change the static
image displayed on the billboard every six to eight seconds using digital technology.
¶8 Officials with the Village of Clemmons denied the permit on the grounds that
“the structure is a ‘Sign, Ground (Off-Premises),’ which is not listed as a permitted
use in the South Overlay District in which the Property is located” and that the
structure is prohibited by the sign regulations regarding “moving and flashing signs”
and “electronic message boards.”
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
¶9 Visible appealed to the Clemmons Zoning Board of Adjustment. The Board met
in December 2019 and conducted an evidentiary hearing where it considered the
application materials, testimony, and evidence presented. In January 2020, the
Board entered a written decision affirming the staff decision to reject Visible’s permit
application. Visible petitioned for a writ of certiorari, which the trial court granted.
In December 2020, the trial court affirmed the Board of Adjustment’s decision. Visible
timely appealed.
Analysis
¶ 10 Visible challenges the trial court’s legal determination that the proposed
digital billboard was prohibited by various provisions of the zoning ordinances. In
this type of administrative review, challenging the interpretation of zoning
ordinances, the trial court sits as an appellate court and reviews this legal question
de novo. Fort v. Cty. of Cumberland, 235 N.C. App. 541, 548, 761 S.E.2d 744, 749
(2014). On appeal, this Court also applies a de novo standard of review and examines
whether the trial court committed an “error of law in interpreting and applying the
municipal ordinance.” Four Seasons Mgmt. Servs., Inc. v. Town of Wrightsville Beach,
205 N.C. App. 65, 76, 695 S.E.2d 456, 463 (2010).
¶ 11 Zoning ordinances are interpreted “to ascertain and effectuate the intent of the
legislative body.” Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 138,
431 S.E.2d 183, 187 (1993). “The rules applicable to the construction of statutes are
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
equally applicable to the construction of municipal ordinances.” Four Seasons Mgmt.
Servs., 205 N.C. App. at 76, 695 S.E.2d at 463. But, as discussed in more detail below,
when there is ambiguity in a zoning regulation, there is a special rule of construction
requiring the ambiguous language to be “construed in favor of the free use of real
property.” Morris Commc’ns Corp. v. City of Bessemer, 365 N.C. 152, 157, 712 S.E.2d
868, 871 (2011).
I. Permitted uses at the property location
¶ 12 Visible first challenges the trial court’s determination that the zoning
ordinances prohibited the use of off-premises signs on the property at issue in this
case. Specifically, the trial court determined that a provision creating the “Lewisville
Clemmons Road (South Overlay District)”—an overlay district in which this property
is located—did not permit off-premises signs. Moreover, the trial court determined
that, to the extent other provisions in the ordinances permitted off-premises signs on
the property, the “Conflicting Provisions” section of the ordinances required the court
to apply “the more restrictive limitation or requirements,” which in this case is the
overlay district provision.
¶ 13 To address this argument, we must examine the series of use restrictions,
corresponding tables, and numerous cross-references that address the use of off-
premises signs on property within the Village of Clemmons.
¶ 14 We begin with the general provision of the ordinances governing permissible
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
uses of property. This general provision is found in Section B.2-4 and is titled
“Permitted Uses.” The first section of this general provision is entitled “Table B.2.6”
and explains that the corresponding table “displays the principal uses allowed in each
zoning district and references use conditions.” Village of Clemmons, N.C., Unified
Development Ordinances, § B.2-4.1 (UDO).
¶ 15 Table B.2.6 is included in the ordinances following this section. In a grid
format, the table lists particular uses of property and then indicates whether that use
is permitted in each zoning district.
¶ 16 Under the heading “Business and Personal Services” in Table B.2.6, there is
an entry for “Signs, Off-Premises.” UDO, Table B.2.6. This entry indicates that off-
premises signs generally are permissible in the zoning district in which this property
is located. This entry in the table also references a separate use condition located in
Section B.2-5.67. That subsection, titled “Signs, Off-Premises,” then cross-references
another section, discussed below, stating that “All signs must comply with the
provisions of Section B.3-2.” UDO, § B.2-5.67.
¶ 17 A later subsection of the ordinances states that these general provisions in
Table B.2.6 may be subject to additional restrictions in other subsections, including
two that are relevant to our analysis—a section governing overlay districts and the
section, referenced above, governing signs:
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
2-4.5 OTHER DEVELOPMENT REQUIREMENTS OF
THE ZONING ORDINANCE
(A) Additional Development Requirements. In addition to
the regulation of uses pursuant to Section B.2-4 and the
use conditions of Section B.2-5, the following additional
development requirements of this Ordinance may apply to
specific properties and situations.
...
(2) Section B.2-1.6 Regulations for Overlay and Special
Purpose Districts
...
(6) Section B.3-2 Sign Regulations
Id. § B.2-4.5.
¶ 18 We begin with the first of these two additional development requirements,
concerning overlay and special purpose districts. This provision creates a special
district referred to as “Lewisville Clemmons Road (South Overlay District).” Id. § B.2-
1.6(E). This overlay district includes the property at issue in this case.
¶ 19 In an introductory section titled “Vision,” this overlay district provision
explains that it is intended “to promote the redevelopment of the area into a mixed
use commercial/office/residential.” Id. § B.2-1.6(E)(A). This provision further explains
that it is “intended to foster development that improves traffic/safety, intensifies land
use and economic value, to promote a mix of uses, to enhance the livability of the
area, to enhance pedestrian connections, parking conditions, and to foster high-
quality buildings and public spaces that help create and sustain long-term economic
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
vitality.” Id.
¶ 20 Another provision in the Lewisville Clemmons Road (South Overlay District)
section states that its “standards apply to sites (including principal and accessory
buildings) that are within the Lewisville-Clemmons Road Corridor Overlay district
unless otherwise specified herein, and apply to all permitted uses allowed within the
district.” Id. § B.2-1.6(E)(C).
¶ 21 Finally, for purposes of this appeal, the operative provision of the Lewisville
Clemmons Road (South Overlay District) section lists the permissible uses of property
in the overlay district. Id. § B.2-1.6(E)(D). In a section titled “Permitted Uses,” the
ordinance states that the “overlay district provisions apply to any base zoning district
set forth in this chapter that exists within the defined overlay area.” Id.
¶ 22 The provision then includes a list of use categories corresponding to some (but
not all) of the use categories listed in Table B.2.6, discussed above. Within those use
categories, this provision again lists some, but not all, of the particular uses listed
under those categories in Table B.2.6. Relevant to this case, the “Permitted Uses”
provision includes the “Business and Personal Services” category. This is the use
category from Table B.2.6 (the general use provision) that addressed the use of off-
premises signs. In this more specific overlay provision, the Business and Personal
Services category lists some uses contained in Table B.2.6 under that category
heading, but does not list “Signs, Off-Premises” as a permitted use:
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
The overlay district provisions apply to any base zoning
district set forth in this chapter that exists within the
defined overlay area. The following permitted uses are
allowed for this proposed geographic area by use category:
...
3. Business and Personal Services. Banking and
Financial Services, Bed and Breakfast, Building
Contractors General, Car Wash, Funeral Home, Health
Services Misc., Hotel/Motel, Kennel, Medical Lab, Medical
Offices, Motor Vehicle, Leasing/Rental,
Repair/Maintenance, Body/Paint Shop, Office Misc.,
Professional Office, Service Personal, Services, Business
A/B, Veterinary Services
Id. § B.2-1.6(E)(D)(3).
¶ 23 Finally, we address the last, and most specific, of the relevant provisions—the
additional development requirements contained in Section B.3-2 that govern signs.
This provision contains lengthy rules specific to various forms of signs and lists their
permitted uses and locations:
3-2 SIGN REGULATIONS
(B) Permitted Signs
...
(2) Application of Table of Permitted Districts for
Signs. The following signs shall be permitted in the zoning
districts as indicated in Table B.3.6, and shall comply with
all regulations of the applicable district unless otherwise
regulated by specific regulations of this section.
...
(C) Off-Premises Ground Signs
(1) Zoning Districts. Ground signs (off-premises) are
permitted only in the districts as shown in Table B.3.6 and
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
only along designated roads which are not identified as
view corridors listed in Section B.3-2.1(C)(2).
(2) View Corridors. No off-premises sign shall be
permitted in any view corridor as described below [Table
B.3.7 titled “View Corridors”] and shown on the View
Corridor Map located in the office of the Planning Board.
Id. § B.3-2.1(B)(2), (C) (emphasis added).
¶ 24 Importantly, this sign provision operates differently from other portions of the
ordinances governing uses of property. Specifically, as the emphasized language
above indicates, this sign provision contains its own, more specific restrictions for
where signs may be located and states that these more specific restrictions, where
applicable, supersede other portions of the ordinances.
¶ 25 These more specific restrictions take two forms relevant to this case. First,
Table B.3.6, which accompanies and is referenced by this “Sign Regulations”
ordinance, includes a category for “Off-Premises Signs” and indicates that off-
premises signs are permitted only in specific zoning districts. The property at issue
in this case is located in a zoning district where off-premises signs are permitted
under this table.
¶ 26 Second, Table B.3.7, which also accompanies and is referenced by this “Sign
Regulations” ordinance, contains a list of the “view corridors” mentioned in this
subsection of the ordinance. These view corridors are specific areas of various streets
and highways where off-premises signs are prohibited despite otherwise being
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
permitted in the more general table, Table B.3.6. Importantly, there are portions of
Lewisville-Clemmons Road, on which this property is located, that are in these view
corridors. But this particular property is not in a view corridor and thus off-premises
signs are permitted on the property under both Table B.3.6 and Table B.3.7.
¶ 27 After walking through this dizzying sequence of provisions, tables, and
internal cross-refences, we are left with this: A general provision that permits off-
premises signs on this property; a more specific overlay provision that supersedes the
general (or “base zoning district”) regulations and, by omission, does not permit off-
premises signs on this property; and an even more specific sign provision that permits
off-premises signs on this property and further states that, where something is
”regulated by specific regulations of this section” those specific regulations supersede
other regulations of the applicable district.
¶ 28 In defending the Board of Adjustment’s ruling, the Village of Clemmons
contends that the overlay district provision should control because, at best, these
three provisions are conflicting. The Village points to a separate section of the zoning
ordinances establishing a rule of construction for conflicting provisions. It provides
that where “a conflict exists between any limitations or requirements in this
Ordinance, the more restrictive limitation or requirements shall prevail.” Id. § B.1-
7.1. Thus, the Village argues, the conflict between these provisions must be resolved
by applying the most restrictive zoning requirements within the conflicting
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
provisions, which is the overlay district provision that prohibits off-premises signs on
the property.
¶ 29 We agree that our State’s case law approves of this sort of rule-of-construction
language and that, if we determined there is a conflict among different provisions of
the ordinance, we must apply this rule of construction in favor of the most restrictive
provision. See Westminster Homes Inc. v. Town of Cary, 354 N.C. 298, 305–06, 554
S.E.2d 634, 639 (2001).
¶ 30 But we cannot reach that step unless we first determine that there is a conflict.
And, in examining that question, we are guided by two common law principles
governing interpretation of zoning ordinances. First, when interpreting provisions of
a law that are all part of the same regulatory scheme, we should strive to find a
reasonable interpretation “so as to harmonize them” rather than interpreting them
to create an irreconcilable conflict. McIntyre v. McIntyre, 341 N.C. 629, 634, 461
S.E.2d 745, 749 (1995). In other words, even in the presence of this conflicting
provisions criteria in the ordinances, we will first seek a reasonable interpretation
that has no internal conflicts because we must presume that the drafters would not
intend to create regulations that are internally inconsistent and conflicting. See
Taylor v. Robinson, 131 N.C. App. 337, 338–39, 508 S.E.2d 289, 291 (1998).
¶ 31 Second, when interpreting zoning regulations, which are “in derogation of
common law rights,” and faced with more than one reasonable interpretation of the
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
regulations, we should choose the reasonable interpretation that favors “the free use
of property.” Cumulus Broad., LLC v. Hoke Cty. Bd. of Comm’rs, 180 N.C. App. 424,
427, 638 S.E.2d 12, 15 (2006).
¶ 32 With these common law principles in mind, we hold that there is a reasonable
interpretation of these provisions that harmonizes them to avoid conflicts. We adopt
that interpretation, consistent with the principle that laws should not be construed
to be conflicting when there is a reasonable interpretation that contains no internal
conflicts. McIntyre, 341 N.C. at 634, 461 S.E.2d at 749. Under that interpretation, the
specific, express limitation on off-premises signs contained in the Sign Regulations
portion of the ordinance supersedes the other two ordinances and controls the use of
off-premises signs on this property. UDO § B.3-2.1. This is so both because these sign-
specific rules directly apply to the use at issue and because these sign-specific rules
state that other zoning restrictions do not apply if the use is “regulated by specific
regulations of this section.” Id.
¶ 33 Under these sign-specific regulations, off-premises signs are permitted at the
property on which Visible desires to install its digital billboard. We therefore reject
the Village of Clemmons’s argument and hold that the trial court erred by affirming
the Board of Adjustment’s determination that the off-premises sign was precluded by
the zoning regulations in the Lewisville Clemmons Road (South Overlay District)
provision.
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
II. Prohibited signs regulation
¶ 34 We next turn to the alternative ground on which the Board of Adjustment
relied, concerning the permissible types of off-premises signs.
¶ 35 Visible applied for approval of a digital billboard described as an “outdoor
advertising structure with digital changeable copy.” The digital billboard would
display a static image like a traditional billboard, without any moving or scrolling
images, video, blinking or flashing lights, or other animation. But, unlike a
traditional billboard, the static image displayed on the billboard would change every
six to eight seconds to a different image. Thus, the digital billboard would be capable
of rotating through a series of different images over time.
¶ 36 The Village of Clemmons contends that this type of digital billboard is
prohibited by two provisions of the Sign Regulations section of the ordinance, one
addressing “Moving and Flashing Signs” and the other addressing “Electronic
message boards.” These two prohibitions are found in Section B.3-2.1(A)(3) of the
Village’s zoning ordinances:
3-2.1 SIGN REGULATIONS
(A) General Requirements
...
(3) Prohibited Signs. The following signs or use of signs
is prohibited.
(a) Flashing Lights. Signs displaying intermittent or
flashing lights similar to those used in governmental traffic
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
signals or used by police, fire, ambulance, or other
emergency vehicles.
(b) Use of Warning Words or Symbology. Signs using the
words stop, danger, or any other word, phrase, symbol, or
character similar to terms used in a public safety warning
or traffic signs.
(c) Temporary, Nonpermanent Signs. Temporary,
nonpermanent signs, including over-head streamers, are
not permitted in any zoning district, unless otherwise
specified in these regulations.
(d) Moving and Flashing Signs (excludes electronic time,
temperature, and electronic fuel pricing). Moving and
flashing signs, excluding electronic time, temperature, and
message signs, are not permitted in any zoning district.
This includes pennants, streamers, banners, spinners,
propellers, discs, any other moving objects; strings of lights
outlining sales areas, architectural features, or property
lines; beacons, spots, searchlights, or reflectors visible from
adjacent property or rights-of-way.
(e) Exterior exposed neon signs are prohibited.
(f) Electronic message boards are prohibited.
UDO, § B.3-2.1(A)(3) (emphasis added).
¶ 37 As noted above, when interpreting these provisions, we apply the same
principles of construction used to interpret statutes. Morris Commc’ns Corp., 365
N.C. at 157, 712 S.E.2d at 872. The terms “Moving and Flashing Signs” and
“Electronic message boards” are not given special definitions in the ordinance and we
therefore assume that the drafters “intended to give them their ordinary meaning
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
determined according to the context in which those words are ordinarily used.” Id.¶ 38 We begin with the provision addressing “Moving and Flashing Signs.” The
parties present two fully contradictory interpretations of this provision, both based
on what (in that party’s view) is the plain and ordinary meaning of the words used in
the provision. The Village of Clemmons contends that Visible’s digital billboard
unquestionably is a “Moving and Flashing Sign” because the static image would
change frequently and thus, by its nature, “moves” in the sense that the image
displayed on the sign changes to something else.
¶ 39 The Village also argues that this is the only logical interpretation of the
provision, in light of the exclusion of electronic time, temperature, and message
boards contained in the provision, because if “moving and flashing” only referred to
“scrolling text, animation or blinking like ‘Rudolph’s nose’” and not “a sign that
electronically changes its content on a periodic basis,” then there would be no need to
separately exclude electronic time, temperature, and message signs—signs that, like
digital billboards, typically do not move or flash, but instead change their image over
time to reflect the updated information.
¶ 40 There are a number of problems with the Village’s argument. First, in ordinary
English usage, moving means “marked by or capable of movement” and flashing
means “to give off light suddenly or in transient bursts.” Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003). Neither of these adjectives squarely describe Visible’s
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
proposed digital billboard, which is not capable of movement and has no sudden or
transient display of lights.
¶ 41 Second, the exclusion of “electronic time, temperature, and message signs”
does not compel an interpretation that includes digital billboards within the
definition of moving and flashing signs. Likewise, a contrary interpretation does not
render this exclusion superfluous. After all, there could be categories of electronic
time, temperature, and message signs that have images in motion (a ticking clock) or
are flashing (an electronic sign flashing the phrase “slow down”) that the drafters
reasonably intended to exempt from this prohibition.
¶ 42 Indeed, another provision in the sign ordinances permits “electronic digital fuel
pricing” signs at convenience stores but states that “electronic prices shall not be
allowed to flash, blink or move at any time.” UDO, § B.3-2.1(G)(3). Notably, this
provision recognizes that the terms “moving” and “changing” are different, because
the provision then explains that the “digital technology shall solely be used to display
the numerical price of fuel and shall only be changed when the price of fuel is
modified.” Id. (emphasis added). This demonstrates that the drafters understood
some electronic signs can contain moving or flashing features and that “moving” or
“flashing” is this context is not the same as the information on the sign changing over
time.
¶ 43 Finally, there are specific examples listed after the general term “Moving and
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
Flashing Signs” and all of these examples—things such as pennants, banners,
spinners, beacons, spotlights, and searchlights—are capable of either physically
moving or shining light in a sudden or intermittent way. This reinforces the notion
that the words “moving” and “flashing” are used in their ordinary meaning. See
Jeffries v. Cty. of Harnett, 259 N.C. App. 473, 493, 817 S.E.2d 36, 49 (2018).
¶ 44 To be sure, we are not suggesting that it is unreasonable to interpret the
prohibition on “Moving and Flashing Signs” as applying to a digital billboard like the
one proposed by Visible. But that interpretation is not the only reasonable one.
Visible also asserts an alternative, reasonable interpretation of this provision—one
in which a digital billboard capable of changing its static image is not considered a
moving or flashing sign and instead, in ordinary English usage, would be described
as something else, such as a digital sign or electronic sign, or perhaps, more
specifically, a digital or electronic sign capable of changing the information displayed
over time.
¶ 45 When there are two or more reasonable interpretations of a law, the law is
ambiguous. JVC Enters., LLC v. City of Concord, 376 N.C. 782, 2021-NCSC-14, ¶ 10.
And, as discussed above, when that ambiguous law is a zoning regulation, we should
adopt the reasonable interpretation that favors “the free use of property.” Cumulus
Broad., 180 N.C. App. at 427, 638 S.E.2d at 15. Accordingly, we reject the Village of
Clemmons’s argument and hold that the trial court erred by affirming the Board of
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
Adjustment’s determination that the proposed digital billboard was prohibited
because it unambiguously fell within the definition of a “Moving and Flashing Sign”
under the zoning ordinances.
¶ 46 We next turn to the provision prohibiting “Electronic message boards.” Again,
the phrase “Electronic message board” is not defined in the ordinance. And unlike the
prohibition on “Moving and Flashing Signs,” this provision contains no explanatory
context. The Village of Clemmons correctly contends that Visible’s proposed digital
billboard is “electronic.” The Village also correctly asserts that the ordinary meaning
of a “message board” is a “a board or sign on which messages or notices are displayed.”
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Combining these two
definitions, the Village asserts that any electronic sign displaying any form of
message—including any form of electronic billboard—unambiguously fits the
definition of an “Electronic message board.”
¶ 47 There are several problems with this argument. First, the ordinance contains
a definition of the word “sign.” That definition is essentially the same as this broad
definition of message board advanced by the Village:
SIGN. Any form of publicity which is visible from any
public way, directing attention to an individual, business,
commodity, service, activity, or product, by means of words,
lettering, parts of letters, figures, numerals, phrases,
sentences, emblems, devices, designs, trade names or
trademarks, or other pictorial matter designed to convey
such information . . .
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
UDO, § A.1-3.
¶ 48 Throughout the zoning ordinances, a board on which a message is displayed is
consistently referred to as a “sign” or a “billboard.” See generally, UDO, § A.1-3
(defining “sign”); UDO, § B.2-5.70 (prohibiting “signs” and “billboards” on
transmission towers); UDO, § B.3-2.1 (providing use criteria for “off-premises signs”).
Thus, if the intent of this provision was to prohibit all digital signs and billboards,
one would expect the drafters to use the term “sign” or “billboard,” not a separate
term—“message board”—that is undefined and appears nowhere else in the
ordinance.
¶ 49 Moreover, in ordinary English usage, one would not look at a looming roadside
billboard and describe it as a “message board.” It is a sign or a billboard. Similarly,
in ordinary usage, there is a narrower category of signs that could be described as
“electronic message boards”—things such as the mobile electronic signs seen near
road construction, or the digital message boards often affixed beneath a business’s
name or logo and listing business hours or product offerings. Visible included an
example of this type of electronic message board in the record. In ordinary English
usage, one would not describe these types of electronic message boards as
“billboards.”
¶ 50 Simply put, this provision, too, has more than one reasonable interpretation.
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
It is ambiguous. As with the “Moving and Flashing Signs” provision, we must resolve
this ambiguity in favor of the reasonable interpretation that permits the free use of
property. Cumulus Broad., 180 N.C. App. at 427, 638 S.E.2d at 15. Accordingly, we
again reject the Village of Clemmons’s argument and hold that the trial court erred
by affirming the Board of Adjustment’s determination that the proposed digital
billboard was prohibited because it unambiguously fell within the definition of an
“Electronic message board” under the zoning ordinances.
¶ 51 We conclude by noting that our holding today does not impact the authority of
municipalities, through zoning ordinances, to restrict or prohibit digital billboards
like the one proposed by Visible. But the drafters of zoning ordinances that restrict
property rights have a responsibility to provide clear rules on which property owners
can rely. This is so because zoning regulations are not intended to be a system of
murky, ambiguous rules where the permitted uses of property ultimately depend on
the interpretive discretion of government bureaucrats.
¶ 52 Here, for example, the zoning ordinances could include a prohibition on “digital
billboards” or “electronic billboards,” terms that are widely used and readily
understood, or more specifically prohibit digital or electronic billboards that change
the displayed information over time. Similarly, the ordinances could include within
the overlay district regulations a statement that those rules supersede any other
regulations otherwise applicable within the overlay district, including the sign
VISIBLE PROPS., LLC V. THE VILL. OF CLEMMONS
2022-NCCOA-529
Opinion of the Court
regulations.
¶ 53 The convoluted, conflicting, ambiguous provisions at issue in this case did not
do so and instead yielded competing reasonable interpretations. When that occurs,
we will resolve this interpretive competition in favor of the free use of property.
Conclusion
¶ 54 We reverse the trial court’s order and remand this matter for entry of an order
reversing the Board of Adjustment’s decision.
REVERSED AND REMANDED.
Judges DILLON and GRIFFIN concur.