A zoning fight over a digital billboard is unlikely to generate many headlines. But a recent N.C. court case dealing with that issue deserves extra attention.

The case highlights one state Supreme Court candidate’s admirable approach to property rights.

In June 2019, a company called Visible Properties applied to the Village of Clemmons for a permit to set up a digital billboard. Officials denied the permit, Visible sued, and a trial judge upheld Clemmons’ decision in December 2020.

“Our task on appeal is to determine if the zoning board and the trial court properly interpreted the language of the ordinances,” wrote Judge Richard Dietz on Aug. 2. “This is not as easy as it sounds.”

Dietz, a Republican, faces fellow Appeals Court Judge Lucy Inman, a Democrat, in a race this fall for an open state Supreme Court seat. The winner will help determine which party holds a majority on the state’s highest court next year.

The Visible Properties case offers useful information for voters assessing their choices in the important November election contest.

Appellate judges addressing the case had to take account of multiple factors, Dietz explained.

“Determining which zoning provisions apply requires so much cross-referencing it is almost dizzying,” he wrote. “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.”

That’s not all. Clemmons’ zoning rules also cover “moving and flashing signs” and “electronic message boards.” “[T]here are reasonable interpretations of these provisions that both cover the type of digital billboard proposed by Visible, and that do not.”

How should a judge proceed?

“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.”

It’s the second principle — favoring the “free use of property” — that attracted this observer’s attention. When government’s rules become so complex and contradictory that it’s hard to tell what’s permitted and what’s banned, it’s better to allow property owners to use their property as they wish.

Dietz highlighted that theme again later in his opinion.

Clemmons officials argued that three provisions of the village’s rules conflicted with each other. “Thus, the Village argues, the conflict between these provisions must be resolved by applying the most restrictive zoning requirements within the conflicting provisions, which is the overlay district provision that prohibits off-premises signs on the property,” Dietz wrote.

Appeals Court judges disagreed. Dietz and two colleagues first sought an interpretation of Clemmons’ rules that did not “create an irreconcilable conflict.”

Second, “faced with more than one reasonable interpretation of the regulations, we should choose the reasonable interpretation that favors ‘the free use of property,’” he wrote.

The “free use” language crops up a third time as Dietz describes a dispute between Visible Properties and Clemmons over the definition of “moving and flashing signs.” Both parties in the case put forward reasonable definitions, Dietz wrote. “When there are two or more reasonable interpretations of a law, the law is ambiguous.”

“[W]hen that ambiguous law is a zoning regulation, we should adopt the reasonable interpretation that favors ‘the free use of property,’” he asserted again.

The Appeals Court took no stance on Clemmons’ policy decision about accepting or rejecting digital billboards.

“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,” Dietz explained. “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,” the judge added.

Clearer rules could have allowed Clemmons to ban digital billboards. “The convoluted, conflicting, ambiguous provisions at issue in this case did not do so and instead yielded competing reasonable interpretations,” Dietz wrote. “When that occurs, we will resolve this interpretive competition in favor of the free use of property.”

In this particular case, Visible Properties won. The decision was unanimous.

Regardless of one’s stance on digital billboards or zoning regulations, it’s good to know that support for “the free use of property” guides some members of our state’s second-highest court.

Dietz would like to take that same philosophy to the highest court in 2023.

Mitch Kokai is senior political analyst for the John Locke Foundation.