|STATE OF NORTH CAROLINA|
|DEPARTMENT OF JUSTICE|
|ROY COOPER ATTORNEY GENERAL||October 9, 2002||REPLY TO: Gaines M. Weaver Transportation Section|
John T. Kilby KILBY & HURLEY 122 North Jefferson Avenue Post Office Box 24 West Jefferson, NC 28694
Re: Advisory Opinion: Application of Junkyard Control Act to Ashe County;
N.C. Gen. Stat. § 136-141 et seq.
Dear Mr. Kilby:
By letter dated August 2, 2002, you requested, on behalf of the Ashe County Board of Commissioners, an advisory opinion concerning the application and enforcement of the Junkyard Control Act (Chapter 136, Article 12, of the North Carolina General Statutes) in Ashe County. You asked several questions which will be addressed in turn below.
(1) Does the Junkyard Control Act apply to Ashe County?
N.C. Gen. Stat. § 136-144 states in pertinent part as follows:
No junkyard shall be established, operated or maintained, any portion of which is within 1,000 feet of the nearest edge of right-of-way of any interstate or primary highway, or a North Carolina route in a county that has no interstate or federal aid primary highways, except the following . . . [emphasis added]
According to the North Carolina Department of Transportation (hereinafter “NCDOT”), Ashe County has no interstate or federal-aid primary highways. Thus, the ban (with exceptions) on junkyards applies to all areas in Ashe County that are within 1,000 feet of a North Carolina route. According to NCDOT, the North Carolina routes in Ashe County are: NC 16, NC 88, NC 163, and NC 194. The statute bans all junkyards in these areas except for those which fall under one of the four exceptions.
|DEPARTMENT OF TRANSPORTATION||FACSIMILE:||919-733-9329||TRANSPORTATION BUILDING|
|ATTORNEY GENERAL’S OFFICE||1 SOUTH WILMINGTON STREET|
|1505MAIL SERVICE CENTER||RALEIGH,NC 27601|
The four exceptions are junkyards which, though within the 1,000 feet zone, are either:
1) screened by natural objects, plantings, fences or other means in a way that renders them not visible from the main-traveled way (of a North Carolina route in Ashe County) during any season;
2) located in areas which local authorities have zoned for industrial use;
3) those locatedwithin areas which, regardless of zoning, are actuallyused for industrial purposes, as defined by NCDOT regulation; or
4) are not visible from the main-traveled way of a North Carolina route in Ashe County during any season.
Pursuant to N.C. Gen. Stat. § 136-152, NCDOT entered into an Agreement regarding junkyard control with the United States Department of Transportation on May 21, 1973. The effect of the Agreement was to define “unzoned industrial” areas and, coupled with federal funds made available at the time, trigger the activation of the Junkyard ControlAct as a whole. NCDOT was not required to expend any funds for regulation of junkyards until federal funds were made available pursuant to the Agreement. N.C. Gen. Stat. § 136-155. A copy of the Agreement is attached hereto.
(2) In the absence of State action, can Ashe County enforce the Junkyard Control Act by initiating a misdemeanor criminal warrant?
N.C. Gen. Stat. § 136-145 makes violation of the Junkyard Control Act a Class 1 misdemeanor. It is the responsibility of sworn law enforcement officers to write citations for the criminal enforcement of N.C. Gen. Stat. § 136-145. The local district attorney ultimately determines the merits of prosecuting cases based on such citations.
(3) Do individuals adversely affected by the violation of the Junkyard Control Act have any civil or criminal enforcement rights?
The Act does not expressly give a private right of action to individual citizens, though this question has not been addressed by the courts. However, the Act does not preempt the authority of local municipal and county governments to enact their own restrictions or bans on junkyards. County of Hoke v. Byrd and Byrd, 107 N.C. App. 658, 421 S.E.2d 800 (1992) specifically held that at least as to local regulation of junkyards in proximity to federal-aid secondary roads, there was no preemption by the Act. Additionally, it has been held that the Outdoor Advertising Control Act
(N.C. Gen. Stat. § 136-126 et seq.), upon which the Junkyard Control Act is modeled, does not preempt local regulation of outdoor advertising. R.O. Givens, Inc. v. Nags Head, 58 N.C. App. 697, 294 S.E.2d 388 (1982).
We trust that this Advisory Opinion will be of assistance to Ashe County.
Reginald L. Watkins Senior Deputy Attorney General
Robert O. Crawford, III Special Deputy Attorney General
Gaines M. Weaver Assistant Attorney General