County of Cumberland v. Eastern Federal Corp.

269 S.E.2d 672 (1980) 48 N.C. App. 518

COUNTY OF CUMBERLAND, Plaintiff,
v.
EASTERN FEDERAL CORPORATION, Defendant.
COUNTY OF CUMBERLAND, Plaintiff,
v.
TART'S T.V. FURNITURE & APPLIANCE CO., INC. and Tart's Investment Corporation, Defendants.

No. 7912DC1195.

Court of Appeals of North Carolina.

September 2, 1980.

Heman R. Clark and Garris Neil Yarborough, Fayetteville, for plaintiff-appellee.

Williford, Person & Canady by N. H. Person, and McCoy, Weaver, Wiggins, Cleveland & Raper by Richard M. Wiggins, Fayetteville, for defendants-appellants.

CLARK, Judge.

The defendants do not challenge the applicability of the Cumberland County Zoning Ordinance to their respective signs. Rather, they challenge the constitutionality of the Ordinance as applied to their respective cases. We note at the outset that "`. . . it is the duty of the municipal authorities in their sound discretion, to determine what ordinances or regulations are reasonably necessary for the protection of the public or the better government of the town; and when * * * such * * * ordinance is adopted it is presumed to be valid; and, the courts will not declare it invalid unless it is clearly shown to be so.' (Citations omitted) This is true when the constitutionality of an ordinance is attacked, and no law or ordinance will be declared unconstitutional unless clearly so and every reasonable intendment will be made to sustain it." (Citations omitted.) Victory Cab Co. v. Shaw, 232 N.C. 138, 142, 59 S.E.2d 573, 576 (1950).

Defendants first challenge Section 5.21 of the Ordinance as permitting an unconstitutional "taking." That provision provides, inter alia, that "[a]ll nonconforming uses carried on within a structure, except those which are incidental and necessary to activities within a structure, shall be discontinued within three years from the effective date of this ordinance . . . ." The three-year rule, in effect, allows the owner of the nonconforming sign a three-year period in which he may amortize or depreciate the cost of the sign. The validity of such a provision was specifically upheld by our Supreme Court in State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975), appeal dismissed, 422 U.S. 1002, 95 S.Ct. 2618, 45 L.Ed.2d 666 (1975); Note, 11 Wake Forest L.Rev. 754 (1975). While it is true that Joyner explicitly did not decide whether the ordinance therein would be considered "reasonable" had the defendant been the owner in fee of the land upon which the salvage yard was located, we can see no compelling reason for distinguishing in the instant case between whether the owner of the sign is a lessee or an owner in fee of the land upon which the sign is situated, for it is the sign, as a real fixture, and not the underlying land, which is the subject of the amortization, and it is the visual effect of the sign, not the underlying land, which is the subject of regulation. Consequently, we hold that the amortization provision of the ordinance was reasonable as applied to defendants.

The defendants contend that the ordinance also denies them their free speech guarantees of Article I, Section 14 of the North Carolina Constitution. We do not agree. While it is true that commercial speech is protected under the First Amendment of the United States Constitution, and similarly under Article I, Section 14 of the North Carolina Constitution, Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), it is nonetheless true that commercial speech, like other varieties of speech, is subject to reasonable time, place, and manner restrictions. State v. Wiggins, 272 N.C. 147, 158, 158 S.E.2d 37 (1967); Variety Theatres, Inc. v. Cleveland County, 15 N.C.App. 512, 190 S.E.2d 227, affirmed, 282 N.C. 272, 192 S.E.2d 290 (1972), appeal dismissed, 411 U.S. 911, 93 S.Ct. 1548, 36 L.Ed.2d 303 (1973). The ordinance in this case makes no attempt to censor the content of the signs nor does it impose any prior restraints on expressions of any kind. As applied to defendants, we hold that the sign provisions of the Cumberland County Zoning Ordinance do not infringe defendants' rights of free speech.

Defendants' next argument is that the ordinance unconstitutionally attempts to regulate land uses for aesthetic purposes only. On the contrary, aesthetic considerations have long been recognized as legitimate governmental concerns. We think this is particularly true when outdoor advertising is involved. The North Carolina General Assembly, in the context of interstate and primary highways, has already articulated a forceful policy statement on outdoor advertising:

"Section 136-127. Declaration of policy.—The General Assembly hereby finds and declares that outdoor advertising is a legitimate commercial use of private property adjacent to roads and highways but that erection and maintenance of outdoor advertising signs and devices in areas in the vicinity of the right-of-way of the interstate and primary highways within the State should be controlled and regulated in order to promote the safety, health, welfare and convenience and enjoyment of travel on and protection of the public investment in highways within the State, to prevent unreasonable distraction of operators of motor vehicles and to prevent interference with the effectiveness of traffic regulations and to promote safety on the highways, to attract tourists and promote the prosperity, economic well-being and general welfare of the State, and to preserve and enhance the natural scenic beauty of the highways and areas in the vicinity of the State highways and to promote the reasonable, orderly and effective display of such signs, displays and devices. . . ." (Emphasis supplied.)

While careful to note that it was not expressing an opinion, our Supreme Court in State v. Vestal, 281 N.C. 517, 524, 189 S.E.2d 152, 157 (1972), recognized the "growing body of authority" that "the police power may be broad enough to include reasonable regulation of property use for aesthetic reasons only." As clearly and simply stated by Mr. Justice Douglas, in his majority opinion in Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27, 38 (1954):

"Public safety, public health, morality, peace and quiet, law and order-these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. . . . The concept of the public welfare is broad and inclusive. . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. . . ." (Emphasis supplied.)

See, generally, Annot., 81 A.L.R.3d 486 (1977); Annot., 80 A.L.R.3d 630 (1977); Annot., 41 A.L.R.3d 1397 (1972); Annot., 21 A.L.R.3d 1222 (1968). We recognize that several North Carolina Supreme Court cases have held that, while preserving and enhancing aesthetic qualities are legitimate governmental objectives, an ordinance may not be based solely upon the aesthetic considerations. Little Pep Delmonico Restaurant v. City of Charlotte, 252 N.C. 324, 113 S.E.2d 422 (1960); State v. Brown, 250 N.C. 54, 108 S.E.2d 74 (1959); In re Parker, 214 N.C. 51, 197 S.E. 706 (1938), appeal dismissed, 305 U.S. 568, 59 S.Ct. 150, 83 L.Ed. 358 (1938); MacRae v. City of Fayetteville, 198 N.C. 51, 150 S.E. 810 (1929). More recently, in A-S-P Associates v. City of Raleigh, 298 N.C. 207, 216, 258 S.E.2d 444, 450 (1979), our Supreme Court, while refraining from endorsing such a broad concept of the police power as that based upon aesthetic values alone, nonetheless held that aesthetic regulation constituted a legitimate governmental objective when applied to historically significant areas.

We find it hard to conceive that our constitutional founders believed that visual blight and ugliness were a fundamental aspect of our national heritage or that our state and local governments were to be powerless in protecting the beauty and harmony in our human as well as our natural environments. Given the cautious wording of our Supreme Court in A-S-P Associates, supra, we do not go so far as to say in all cases that purely aesthetic considerations may be the basis for reasonable governmental regulation of land use. We do hold, however, that the Cumberland County sign ordinance in this case could lawfully be based upon aesthetic considerations and we see no need to play with euphemisms to reach this result.

We do not, however, have to rely solely upon aesthetic considerations to uphold the Cumberland County Zoning Ordinance as within the County's legitimate police power. First, we note that the sign provisions are incorporated within a comprehensive zoning ordinance which is directly related to the public safety, health, morals or general welfare. A-S-P Associates, supra; Schloss v. Jamison, 262 N.C. 108, 136 S.E.2d 691 (1964). Second, "[t]here are areas in which aesthetics and economics coalesce, areas in which a discordant site is as hard an economic fact as an annoying odor or sound." United Advertising Corp. v. Metuchen, 42 N.J. 1, 198 A.2d 447, 449 (1964). Thus it has been held that the aesthetic impact of billboards is an economic fact that might bear heavily upon the enjoyment and value of property. Id. Third, it is common knowledge that uncontrolled display of billboards and signs can distract travelling motorists and thereby create hazards to vehicular traffic and to pedestrians. Finally, we note that the sign provisions are coupled with other zoning provisions in the ordinance, such as setbacks, land use classi-fications, parking control and density requirements.

Defendants' final argument is that the ordinance is unconstitutional because it is not uniformly enforced, and in particular, because the County refuses to enforce the ordinance within specified municipalities within the County. We see no merit in defendants' contention. First, N.C.Gen.Stat. § 153A-320, provides:

"Territorial jurisdiction.—Each of the powers granted to counties by this Article, by Chapter 157A, and by Chapter 160A, Article 19 may be exercised throughout the county except as other-wise provided in G.S. 160A-360." (Emphasis supplied.)

N.C.Gen.Stat. § 160A-360 in turn provides, in relevant part, that:

"(a) All of the powers granted by this Article [Article 19] may be exercised by any city within its corporate limits."

In particular, part 3 of Article 19 of Chapter 160A provides for the zoning authority of cities and other municipalities. By the specific wording of N.C.Gen.Stat. § 153A-320, the counties may not exercise zoning authority within a city which has enacted a zoning ordinance.

Moreover, we agree with the County that counties can defer from zoning within cities pursuant to N.C.Gen.Stat. § 153A-342, which provides that counties may zone an area less than their entire jurisdiction and that they may divide their "territorial jurisdiction into districts of any number, shape, and area that [they] may consider best suited to carry out the purposes of [part 3 of Article 18 of Chapter 153A]." N.C.Gen.Stat. § 153A-342 also specifically permits creation of zoning areas which may be regulated differently than other areas in the county. We hold that the statutory authority permitting such districting and classification of areas for purpose of land use regulation has a reasonable basis and that, as applied in the facts of this case, the zoning ordinance neither denies the defendants' equal protection under the Fourteenth Amendment of the United States Constitution nor the similar language in Article I, Section 19 of the North Carolina Constitution. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1774, 32 L.Ed.2d 119 (1972).

Affirmed.

MORRIS, C. J., and ERWIN, J., concur.