Does North Carolina's Junkyard Control Act apply in Ashe County, and who can enforce it?

Plain-English summary

The Ashe County Board of Commissioners asked whether the Junkyard Control Act applies there, whether the county can pursue misdemeanor enforcement in the absence of state action, and whether affected individuals have enforcement rights.

The Act applies in Ashe County. The opinion quotes N.C. Gen. Stat. § 136-144, which reaches a North Carolina route in a county with no interstate or federal-aid primary highways. According to the North Carolina Department of Transportation, Ashe County met that description and had four NC routes: NC 16, NC 88, NC 163, and NC 194. The restriction covers junkyards within 1,000 feet of those routes, subject to the four exceptions the opinion lists for screening, industrial zoning, actual industrial use, and lack of visibility.

Criminal enforcement is available. The opinion says N.C. Gen. Stat. § 136-145 makes a violation a Class 1 misdemeanor. Sworn law enforcement officers write citations, and the local district attorney decides the merits of prosecuting cases based on them. It does not specify which county official may initiate a warrant.

Private enforcement is unresolved. The Act does not expressly give individuals a private right of action, and the opinion says courts had not addressed whether one exists. The AG also says the Act does not preempt local municipal or county restrictions or bans on junkyards. It cites County of Hoke v. Byrd and Byrd for the narrower holding that there was no preemption at least for local regulation near federal-aid secondary roads. The opinion gives no examples of permissible local penalties or requirements.

Currency note

This opinion was issued in 2002. Check current N.C. Gen. Stat. § 136-144 and § 136-145, the relevant highway classifications, and any applicable local ordinance before relying on it today.

Common questions

Q: Which Ashe County routes did the opinion identify?

A: NCDOT identified NC 16, NC 88, NC 163, and NC 194. The opinion applied the 1,000-foot rule to those routes, subject to statutory exceptions.

Q: What are the four exceptions described in the opinion?

A: The opinion lists junkyards screened from view during any season, those in locally zoned industrial areas, those in areas actually used for industrial purposes as defined by NCDOT regulation, and those otherwise not visible from the main-traveled way during any season. It does not supply the regulation's detailed criteria.

Q: Can a neighbor sue to enforce the Act?

A: The opinion says the Act provides no express private right of action and that courts had not decided whether one is implied. It gives no affirmative private enforcement remedy.

Q: Can the county adopt its own junkyard restrictions?

A: The AG says the Act does not preempt local restrictions or bans. Its cited junkyard case, County of Hoke v. Byrd and Byrd, held there was no preemption at least for regulation near federal-aid secondary roads. The opinion does not evaluate a particular Ashe County ordinance.

Background and statutory framework

The opinion quotes N.C. Gen. Stat. § 136-144 for the route-based restriction and lists its four exceptions. It also says NCDOT's May 21, 1973 agreement with the United States Department of Transportation defined "unzoned industrial" areas and, together with available federal funds, activated the Act. Under N.C. Gen. Stat. § 136-155, NCDOT was not required to spend money regulating junkyards before those funds became available.

For enforcement, the opinion points to the Class 1 misdemeanor in N.C. Gen. Stat. § 136-145 and separates the officer's citation role from the district attorney's prosecution decision. On private rights and local authority, it distinguishes the absence of an express individual cause of action from the Act's lack of preemption of local regulation.

Citations

• N.C. Gen. Stat. § 136-144 (route restriction and exceptions)
• N.C. Gen. Stat. § 136-145 (Class 1 misdemeanor)
• N.C. Gen. Stat. § 136-152 (NCDOT agreement)
• N.C. Gen. Stat. § 136-155 (federal funds)
• N.C. Gen. Stat. § 136-126 et seq. (Outdoor Advertising Control Act)
• County of Hoke v. Byrd and Byrd, 107 N.C. App. 658, 421 S.E.2d 800 (1992)
• R.O. Givens, Inc. v. Nags Head, 58 N.C. App. 697, 294 S.E.2d 388 (1982)

Source

• Landing page: https://ncdoj.gov/opinions/junkyard-control-act-applicability-to-ashe-county/

Original opinion text

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.

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 located within areas which, regardless of zoning, are actually used 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 Control Act 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.

Sincerely,

Reginald L. Watkins
Senior Deputy Attorney General

Robert O. Crawford, III
Special Deputy Attorney General

Gaines M. Weaver
Assistant Attorney General

Enclosure