Opinion

PBK Holdings, LLC v. County of Rockingham

  • 233 N.C. App. 353
  • 756 S.E.2d 821
  • 2014 N.C. App. LEXIS 313
  • 2014 WL 1366198
Court
Court of Appeals of North Carolina
Filed
Apr 1, 2014
Status
Published
Author
McCullough
On the bench
McCullough, Martin, Ervin
Cited by
0 cases
Authority
More cited than 33.0%

The opinion

NO. COA13-865

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

PBK HOLDINGS, LLC,

Plaintiff,

v. Rockingham County

No. 13 CVS 417

COUNTY OF ROCKINGHAM,

Defendant.

Appeal by plaintiff from order entered 25 June 2013 by

Judge Richard L. Doughton in Rockingham County Superior Court.

Heard in the Court of Appeals 9 December 2013.

Brooks Pierce McLendon Humphrey & Leonard, L.L.P., by

Daniel F.E. Smith, S. Leigh Rodenbough IV, and Darrell A.

Fruth, for plaintiff-appellant.

The Brough Law Firm, by G. Nicholas Herman, and Rockingham

County by Robert V. Shaver, Jr., County Attorney, for

defendant-appellee.

McCULLOUGH, Judge.

Plaintiff PBK Holdings, LLC, appeals from an order of the

trial court, granting summary judgment in favor of defendant

County of Rockingham, denying plaintiff’s motion for summary

judgment, and dismissing plaintiff’s action. For the reasons

stated herein, we affirm the decision of the trial court.

I. Background

-2-

On 13 March 2012, defendant Rockingham County, by and

through the Rockingham County Board of Commissioners, adopted an

ordinance entitled “An Ordinance of the County of Rockingham,

State of North Carolina, Adopting Zoning Changes to the

Rockingham County Unified Development Ordinance.” (“the

ordinance”). The stated purpose of the ordinance was to:

define high impact uses, to allow certain

high impact uses to be approved through

conditional zoning, to delete special use

requirements for those uses now identified

as high impact uses and to delete and add

text to the table of permitted uses and

other zoning sections to effect these

changes.

“High impact uses” were defined as:

those which by their nature produce

objectionable levels of noise, odors,

vibrations, fumes, light, smoke, traffic

and/or other impacts upon the lands adjacent

to them.

The following uses were considered high impact uses, “[e]ach use

. . . grouped into categories based on the projected impact to

the surrounding area[:]”

CLASSIFICATION USE

Class I 1. Airstrips

2. Concrete suppliers (ready-mix)

Class II 1. Chemical manufacturing and storage

2. Cement Manufacturers

3. Sawmills

4. Bulk Storage Facility of Flammables-

Propane, Gasoline, Fuel Oil and Natural

-3-

Gas

5. Scrap Metal Salvage Yards, Junkyards

6. Commercial Livestock Auction

Class III 1. Commercial Incinerators

2. Local Solid Waste Management

Facilities/Landfills

3. Chip Mills

4. Airports

Class IV 1. Asphalt Plants

2. Hazardous Waste Facilities

3. Slaughtering and Processing Plants

4. Pulp and Paper Mills

5. Motor Sports Activities (i.e.

racetracks and dragstrips)

Class V 1. Explosives Manufacturing, Storage and

Wholesale

2. Regional Solid Waste Management

Facilities/Landfills-Privately Owned

3. Mining, Extraction Operations and

Quarries (including sand, gravel and

clay pits)

(emphasis added).

On 12 March 2013, plaintiff PBK Holdings, LLC, filed a

complaint against defendant. Plaintiff is a limited liability

company, formed “for the purpose of acquiring, permitting, and

developing a regional municipal solid waste (“MSW”) landfill” in

Rockingham County, North Carolina. Plaintiff alleged that it

had a special use permit application pending in Rockingham

County to develop a sanitary landfill and recycling facility

that would accept more than 100,000 tons of MSW per year.

Plaintiff stated that the proposed landfill would fall within

the “Regional Solid Waste Management Facilities/Landfills-

-4-

Privately Owned” category. Therefore, plaintiff argued that it

had a “specific and legal personal legal interest in the

Rockingham County zoning ordinances that impact its plans to

develop a landfill.”

Plaintiff argued that it was directly and adversely

affected by certain amendments adopted in the ordinance and

challenged the following provisions: Chapter 2, Article VII, §

7-2.B (classifies “Local Solid Waste Management

Facilities/Landfills” (hereinafter “local landfills”) as a Class

III high impact use and “Regional Solid Waste Management

Facilities/Landfills-Privately Owned” (hereinafter “regional

landfills”) as a Class V high impact use); § 7-4.B (lists

setback requirements from property line, rights-of-way, zoning

districts and structures based on Class); and § 7-5.G (sets

forth additional factors to be considered in approving Regional

Municipal Solid Waste-Privately Owned Landfills). Plaintiff’s

complaint argued that defendant was preempted from adopting

provisions in conflict with North Carolina law, that certain

provisions exceeded the authority of the Board of Commissioners

to adopt and defendant to enforce, that the ordinance violated

the Equal Protection clauses of the United States and North

Carolina Constitutions, and that the ordinance violated the

-5-

Commerce Clause of the United States Constitution. Based on the

foregoing contentions, plaintiff argued that the trial court

should enter declaratory judgment in favor of plaintiff, stating

that the challenged portions of the ordinance were invalid.

On 22 April 2013, defendant filed an answer to the

complaint.

On 10 June 2013, defendant filed a motion for summary

judgment. On 13 June 2013, plaintiff also filed a motion for

summary judgment.

Following a hearing held at the 24 June 2013 term of

Rockingham Superior Court, the trial court entered an order

granting defendant’s motion for summary judgment, denying

plaintiff’s motion for summary judgment, and dismissing

plaintiff’s action on 25 June 2013.

Plaintiff appeals.

II. Standard of Review

"Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that there is no genuine issue as to any material fact and

that any party is entitled to a judgment as a matter of law."

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576

(2008) (citation and quotation marks omitted).

-6-

The moving party bears the burden of

establishing the lack of a triable issue of

fact. If the movant meets its burden, the

nonmovant is then required to produce a

forecast of evidence demonstrating that the

[nonmoving party] will be able to make out

at least a prima facie case at trial.

Furthermore, the evidence presented by the

parties must be viewed in the light most

favorable to the non-movant.

Thompson v. First Citizens Bank & Trust Co., 151 N.C. App. 704,

706, 567 S.E.2d 184, 187 (2002) (internal citations and

quotation marks omitted).

III. Discussion

On appeal, plaintiff argues that the trial court erred by

entering summary judgment in favor of defendant where (A) the

ordinance’s distinction between “local” and “regional” landfills

violates the Equal Protection Clauses of the North Carolina and

United States Constitutions; (B) the ordinance violates the

Commerce Clause of the United States Constitution; and (C) the

airport radius, floodplain, truck entrance, and “catch-22”

provisions are preempted by State and Federal law.

A. Equal Protection Clause

First, plaintiff argues that the trial court erred by

entering summary judgment in favor of defendant where the

ordinance’s distinction between local and regional landfills

violates the Equal Protection Clauses of the North Carolina and

-7-

United States Constitutions. Plaintiff asserts that although

local and regional landfills are similarly situated, the

ordinance imposes more stringent requirements on regional

landfills than are imposed on local landfills. Furthermore,

plaintiff argues that there is no legitimate purpose justifying

the difference in landfill classifications and that distinctions

between local and regional landfills are not rationally related

to defendant’s stated interests. We find plaintiff’s arguments

unpersuasive.

We note that

[a] municipal ordinance is presumed to be

valid . . . . [T]he burden is upon the

complaining party to show its invalidity or

inapplicability. And a municipal ordinance

promulgated in the exercise of the police

power will not be declared unconstitutional

unless it is clearly so, and every

intendment will be made to sustain it.

Standley v. Town of Woodfin, 186 N.C. App. 134, 140, 650 S.E.2d

618, 623 (2007) (citations and quotation marks omitted).

“The principle of equal protection of the law is explicit

in both the Fourteenth Amendment to the United States

Constitution and Article I, Section 19 of the Constitution of

North Carolina. This principle requires that all persons

similarly situated be treated alike.” Dobrowolska v. Wall, 138

N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000) (citations omitted).

-8-

The United States Supreme Court has

explained that the purpose of the equal

protection clause . . . is to secure every

person within the State’s jurisdiction

against intentional and arbitrary

discrimination, whether occasioned by

express terms of a statute or by its

improper execution through duly constituted

agents. . . . Of course, most laws

differentiate in some fashion between

classes of persons. The Equal Protection

Clause does not forbid classifications. It

simply keeps governmental decision makers

from treating differently persons who are in

all relevant respects alike.

Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 202-03,

716 S.E.2d 646, 657-58 (2011) (citations and quotation marks

omitted).

“Accordingly, to state an equal protection claim, a

claimant must allege (1) the government (2) arbitrarily (3)

treated them differently (4) than those similarly situated.”

Lea v. Grier, 156 N.C. App. 503, 509, 577 S.E.2d 411, 416

(2003). “Thus, [i]n addressing an equal protection challenge,

we first identify the classes involved and determine whether

they are similarly situated.” Yan-Min Wang, 216 N.C. App. at

204, 716 S.E.2d at 658 (citation and quotation marks omitted).

In the present case, the two classes at issue are local and

regional landfills. Plaintiff alleges that local and regional

landfills are similarly situated because they are engaged in the

-9-

same activity – namely, the business of MSW disposal. Relying

on the plain language definition of the terms “local” and

“regional,” plaintiff states that the only difference between

these two classes is that local landfills accept waste from a

“limited district, often a community or minor political

subdivision” while regional landfills accept waste from “a

geographical region” or “peripheral parts of a district.” Based

on the foregoing, plaintiff argues that the ordinance violates

the Equal Protection Clause since “characterizations of waste

based on its geographic origin have repeatedly been found

groundless by the United States Supreme Court.”

On the other hand, defendant contends that there is no

dispute about the definitions of local versus regional

landfills, arguing that the distinctions are made based on the

general nature of their uses. Defendant asserts that it is

common knowledge that regional landfills, which accept waste

from areas within and outside of Rockingham County, are

“typically larger, dispose of greater waste tonnage, and

therefore may pose the risk of having greater adverse impacts

upon the health, safety and welfare in contrast to purely local

and less-intensive landfills that merely dispose of waste[]

generated from within the local community.”

-10-

Our review indicates that the ordinance defines high impact

uses as “those which by their nature produce objectionable

levels of noise, odors, vibrations, fumes, light, smoke, traffic

and/or other impacts upon the lands adjacent to them.” The

categorization of high impact uses are based on the “projected

impact to the surrounding area,” resulting in five different

classes. “Local Solid Waste Management Facilities/Landfills”

are classified as a Class III high impact use, along with

commercial incinerators, chip mills, and airports. “Regional

Solid Waste Management Facilities/Landfills-Privately Owned” are

classified as a Class V high impact use, along with explosives

manufacturing, storage, and wholesale, as well as mining,

extraction operations, and quarries. Although the ordinance

distinguishes between local and regional landfills, it fails to

provide a definition for “local” and “regional” landfills.

“When interpreting a municipal ordinance we apply the same

principles of construction used to interpret statutes. Undefined

and ambiguous terms in an ordinance are given their ordinary

meaning and significance. . . . To ascertain the ordinary

meaning of undefined and ambiguous terms, courts may

appropriately consult dictionaries.” Morris Communs. Corp. v.

-11-

City of Bessemer, 365 N.C. 152, 157-58, 712 S.E.2d 868, 872

(2011) (citations omitted).

“Local” is defined as “1. relating to place 2. of,

characteristic of, or confined to a particular place or district

3. not broad; restricted; narrow.” Webster’s New World College

Dictionary 842 (4th edition 2006). “Regional” is defined as “1.

of a whole region not just a locality 2. of some particular

region, district, etc.; local; sectional.” Webster’s New World

College Dictionary 1206 (4th edition 2006). Applying these

definitions to the ordinance, the use of the terms “local” and

“regional” in reference to landfills suggests that the

distinction lies in the size and location of the areas that the

landfills serve.

However, assuming without deciding that the two classes

involved in the present appeal are similarly situated for equal

protection purposes, the next step in our analysis would be a

determination of whether “the difference in treatment made by

the law has a reasonable basis in relation to the purpose and

subject matter of the legislation.” A-S-P Associates v.

Raleigh, 298 N.C. 207, 226, 258 S.E.2d 444, 456 (1979) (citation

omitted).

When a governmental classification does not

burden the exercise of a fundamental right

-12-

or operate to the peculiar disadvantage of a

suspect class, the lower tier of equal

protection analysis requiring that the

classification be made upon a rational basis

must be applied. The “rational basis”

standard merely requires that the

governmental classification bear some

rational relationship to a conceivable

legitimate interest of government.

Additionally, in instances in which it is

appropriate to apply the rational basis

standard, the governmental act is entitled

to a presumption of validity.

Classifications are presumed valid; “under

the lower tier, rational basis test, the

party challenging the legislation has a

tremendous burden in showing that the

questioned legislation is unconstitutional.”

Huntington Props. v. Currituck County, 153 N.C. App. 218, 230-

31, 569 S.E.2d 695, 704 (2002) (citations omitted). Because the

ordinance at issue here neither burdens a suspect class, nor

affects a fundamental right, the ordinance need only to satisfy

the rational basis level of scrutiny to withstand plaintiff’s

Equal Protection Clause challenges.

Defendant asserts, and we agree, that the objective of

protecting the health, safety, and environment of the community

by mitigating the adverse impacts of high impact uses is a

conceivable and legitimate government interest. The differences

in requirements set out in the ordinance between regional and

local landfills, with regional landfills being subject to more

stringent regulation based on their projected higher impact to

-13-

the surrounding area, are clearly rationally related to further

defendant’s conceivable, legitimate interest.

The ordinance provided that the purpose of its enactment

was to

define high impact uses, to allow certain

high impact uses to be approved through

conditional zoning, to delete special use

requirements for those uses now identified

as high impact uses and to delete and add

text to the table of permitted uses and

other zoning sections to effect these

changes.

“High impact uses” are “those which by their nature produce

objectionable levels of noise, odors, vibrations, fumes, light,

smoke, traffic and/or other impacts upon the lands adjacent to

them.” The ordinance categorized regional landfills as a Class

V high impact use along with “Explosive Manufacturing, Storage

and Wholesale” and “Mining, Extraction Operations and Quarries

(including sand, gravel and clay pits)” based on the higher

impact of “objectionable levels of noise, odors, vibrations,

fumes, light, smoke, traffic, and/or other impacts” to the

surrounding area, as opposed to local landfills, which were

categorized as a Class III high impact use. In addition, the

affidavit of Kevan Combs, plaintiff’s sole manager, member, and

registered agent, indicated that plaintiff’s proposed regional

landfill would bring in more than 100,000 tons of MSW per year.

-14-

Because defendant’s purposes in enacting the ordinance are

undeniably legitimate governmental purposes and because

application of the rational basis test to the challenged

ordinance leads us to the conclusion that defendant’s

distinction between regional and local landfills furthers that

purpose, we reject plaintiff’s arguments that the ordinance

violated the Equal Protection Clauses of the United States and

North Carolina Constitutions. Accordingly, we hold that the

trial court did not err by granting summary judgment in favor of

defendant on this issue.

B. Commerce Clause

Next, plaintiff argues that the trial erred by entering

summary judgment in favor of defendant on the grounds that the

ordinance violates the Commerce Clause of the United States

Constitution. We are not persuaded by plaintiff’s arguments.

The United States Constitution

expressly grants to Congress the power to

“regulate [c]ommerce with foreign [n]ations,

and among the several [s]tates[.] [T]he

Commerce Clause is more than an affirmative

grant of power; it has a negative sweep as

well” in that “‘by its own force’ [it]

prohibits certain state actions that

interfere with interstate commerce.” The

United States Supreme Court has explained

that the “dormant” Commerce Clause means

that “[a] State is . . . precluded from

taking any action which may fairly be deemed

to have the effect of impeding the free flow

-15-

of trade between States.”

It is well established that a law is

discriminatory if it “tax[es] a transaction

or incident more heavily when it crosses

state lines than when it occurs entirely

within the State. “Discrimination” for

purposes of the dormant Commerce Clause is

"differential treatment of in-state and out-

of-state economic interests that benefits

the former and burdens the latter.”

DirecTV, Inc. v. State of North Carolina, 178 N.C. App. 659,

661-62, 632 S.E.2d 543, 546 (2006) (citations omitted).

Commerce Clause claims are subject to a

two-tiered analysis. The first tier, a

virtually per se rule of invalidity, applies

where a state law discriminates facially, in

its practical effect, or in its purpose.

The second tier applies if a statute

regulates evenhandedly and only indirectly

affects interstate commerce. In that case,

the law is valid unless the burdens on

commerce are clearly excessive in relation

to the putative local benefits.

Waste Indus. USA, Inc. v. State, __ N.C. App. __, __, 725 S.E.2d

875, 881 (2012) (citations omitted). “In either situation the

critical consideration is the overall effect of the statute on

both local and interstate activity.” North Carolina Ass’n of

Elec. Tax Filers v. Graham, 333 N.C. 555, 565-66, 429 S.E.2d

544, 550 (1993) (citation omitted).

i. Facial Discrimination

-16-

Plaintiff contends that the ordinance is facially

discriminatory. Plaintiff’s argument presumes that regional

landfills collect MSW from surrounding counties within North

Carolina as well as southern Virginia, while local landfills

collect MSW from only Rockingham County. By applying more

stringent requirements for regional landfills, plaintiff asserts

that the ordinance discriminates against out-of-state use of

North Carolina landfill space.

It is well established that

[a] state tax law is facially discriminatory

where it (1) explicitly refers to state

boundaries or uses other terminology that

inherently indicates the tax is based on the

in-state or out-of-state location of an

activity; and (2) applies to entities

similarly situated for Commerce Clause

purposes. A facial challenge to a

legislative act is . . . the most difficult

challenge to mount successfully. The

challenger must establish that no set of

circumstances exists under which [the

ordinance] would be valid. Moreover, the

challenger must demonstrate there is an

“explicit discriminatory design to the

[ordinance].”

DirecTV, Inc., 178 N.C. App. at 663, 632 S.E.2d at 547

(citations omitted).

We note that the failure of the ordinance to define the

terms “local” and “regional” compels us to apply the ordinary

meanings of those words. Based on the plain language definition

-17-

of those terms – “local” meaning “1. relating to place 2. of,

characteristic of, or confined to a particular place or district

3. not broad; restricted; narrow” and “regional” meaning “1. of

a whole region not just a locality 2. of some particular region,

district, etc.; local; sectional” – we hold that although the

terms make a geographical distinction, they do not explicitly

refer to state boundaries or inherently indicate that the

applicability of the ordinance is based on the in-state or out-

of-state location of an activity. See Webster’s New World

College Dictionary 842 and 1206 (4th edition 2006). Facially,

this ordinance does not explicitly put greater burdens on MSW

solely because it is generated from out-of-state because, as

plaintiff acknowledges, regional landfills accept MSW from

counties within North Carolina as well as MSW from out-of-state.

In addition, the category of regional landfills also includes

privately-owned landfills without distinguishing whether the

privately-owned landfills accept in-state or out-of-state MSW.

Furthermore, plaintiff has failed to demonstrate an explicit

discriminatory design in the ordinance. Based on the foregoing,

we conclude that the ordinance is not facially discriminatory.

ii. Discrimination in its Practical Effect

-18-

In order to successfully argue that the ordinance is

discriminatory in its practical effect,

[p]laintiff[] bear[s] the initial burden of

showing that a[n ordinance] has a

discriminatory effect on interstate

commerce. If Plaintiff[] meet[s] that

burden, [defendant] bears the burden of

establishing that the challenged [ordinance]

“advances a legitimate local purpose that

cannot be adequately served by reasonable

nondiscriminatory alternatives.”

DirecTV, Inc., 178 N.C. App. at 665, 632 S.E.2d at 548

(citations omitted).

Plaintiff, relying on Oregon Waste Systems v. Dep’t of

Envtl. Quality, 511 U.S. 93, 128 L. Ed. 2d 13 (1994), argues

that the “more numerous and rigorous zoning provisions

[applicable] to regional landfills” are akin to heightened fees

assessed on the disposal of out-of-state waste which have been

held to violate the Commerce Clause. We disagree.

In Oregon Waste, the petitioners, who were solid waste

disposers, challenged Or. Rev. Stat. § 459.297(1) which imposed

a “surcharge” on “every person who disposes of solid waste

generated out-of-state in a disposal site or regional disposal

site” at $2.25 per ton. Id. at 96, 128 L. Ed. 2d at 19. “In

conjunction with the out-of-state surcharge, the legislature

imposed a fee on the in-state disposal of waste generated within

-19-

Oregon” at $0.85 per ton, “considerably lower than the fee

imposed on waste from other States.” Id. “Subsequently, the

legislature conditionally extended the $0.85 per ton fee to out-

of-state waste, in addition to the $2.25 per ton surcharge . . .

with the proviso that if the surcharge survived judicial

challenge, the $0.85 per ton fee would again be limited to in-

state waste.” Id. The United States Supreme Court held that

the statute was facially discriminatory because the surcharge

was based upon a geographic distinction, discriminating against

interstate commerce. Id. at 100, 128 L. Ed. 2d at 22. Since

the Oregon surcharge was held to be facially discriminatory, the

Oregon Waste Court held that the “per se rule of invalidity” was

the proper legal standard. “As a result, the surcharge must be

invalidated unless respondents can sho[w] that it advances a

legitimate local purpose that cannot be adequately served by

reasonable nondiscriminatory alternatives.” Id. at 100-01, 128

L. Ed. 2d at 22 (citations and quotation marks omitted).

Because respondents could not meet this burden, the surcharge

was held to be in violation of the Commerce Clause.

Plaintiff’s conclusory reliance on Oregon Waste is

misplaced since we find the facts of the instant case

distinguishable. First, we have previously held that the

-20-

ordinance is not facially discriminatory like the surcharge in

Oregon Waste. Second, whereas it was clear to the Supreme Court

in Oregon Waste that “the differential charge favor[ed] shippers

of Oregon waste over their counterparts handling waste generated

in other States,” here, the ordinance is not explicitly based on

in-state or out-of-state location of an activity. Id.

Plaintiff also argues that there is a discriminatory

practical effect because the “restrictions applied to regional

landfills also make it more difficult for out-of-state waste to

be disposed of in landfills located in Rockingham County.” As

examples, plaintiff states that the “increased landscape buffer,

fencing requirement, and need for dust control would increase

the capital and operating costs for a regional landfill, which

would increase the fees for such waste disposal.” Plaintiff

relies on Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t

of Nat. Res. et al, 504 U.S. 353, 119 L. Ed. 2d 139 (1992), and

Exxon Corp v. Governor of Maryland, 437 U.S. 117, 57 L. Ed. 2d

91 (1978) for his contentions.

In Fort Gratiot, the petitioner challenged a Michigan law

that “prohibits private landfill operators from accepting solid

waste that originates outside the county in which their

facilities are located” unless the acceptance of solid waste not

-21-

generated in the county was explicitly authorized in the

approved county solid waste management plan. Fort Gratiot, 504

U.S. at 355-57, 119 L. Ed. 2d at 144-45. The United States

Supreme Court provided that “[a] state statute that clearly

discriminates against interstate commerce is therefore

unconstitutional ‘unless the discrimination is demonstrably

justified by a valid factor unrelated to economic

protectionism.’” Id. at 359, 119 L. Ed. 2d at 147 (citation

omitted). Because “the statute afford[ed] local waste producers

complete protection from competition from out-of-state waste

producers who seek to use local waste disposal areas[,]” and

because “Michigan [had] not identified any reason, apart from

its origin, why solid waste coming from outside the county

should be treated differently from solid waste within the

county,” the Supreme Court held that the contested Michigan law

violated the Commerce Clause. Id. at 361, 119 L. Ed. 2d at 148.

The circumstances of the present case, however, are

distinguishable from those found in Fort Gratiot. Most

importantly, in Fort Gratiot, there was an outright prohibition

against in-state disposal of waste that was generated outside of

the state. In the present case, the ordinance merely imposed

more stringent requirements on regional landfills that accepted

-22-

waste from both within the State of North Carolina and out-of-

state. Defendant also identified reasons, apart from the origin

of the waste to be disposed of and unrelated to economic

protectionism, as to why there should be a distinction between

local and regional landfills, including achieving the

ordinance’s objective to “mitigate[e] [the] traditional adverse

impacts of a highly intensive use on water supplies, airport

safety, access to public roads, noise, dust, distance from

residences, and other health and safety concerns.” Because the

regional landfills are typically larger in size and dispose of

greater amounts of waste, with this plaintiff accepting more

than 100,000 tons of MSW per year, they pose a greater risk to

the health, safety, and welfare of the community.

In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 57 L.

Ed. 2d 91 (1978), a Maryland statute provided that “a producer

or refiner of petroleum products (1) may not operate any retail

service station within the State, and (2) must extend all

‘voluntary allowances’ uniformly to all service stations it

supplies.” Id. at 119-20, 57 L. Ed. 2d at 96. The petitioners,

who were producers of petroleum products, contended that the

Maryland statute violated the Commerce Clause. The United

States Supreme Court held that the statute did not violate the

-23-

Commerce Clause because it did not discriminate against

interstate goods or distinguish between in-state and out-of-

state companies. Because “Maryland’s entire gasoline supply

flows in interstate commerce and since there are no local

producers or refiners, such claims of disparate treatment

between interstate and local commerce would be meritless.” Id.

at 125, 57 L. Ed. 2d at 100.

Despite the holding, plaintiff cites to a footnote found in

Exxon Corp. in support of the contention that “[if] the effect

of a state regulation is to cause local goods to constitute a

larger share, and goods with an out-of-state source to

constitute a smaller share, of the total sales in the market . .

. the regulation may have a discriminatory effect on interstate

commerce.” Id. at 126, 57 L. Ed. 2d at 100 n.16. Here,

however, the effect of the ordinance is not to reduce the flow

of out-of-state MSW and increase the share of in-state MSW, but

rather to place more stringent requirements on landfills that

are considered a higher class of high impact uses which by their

nature produce higher levels of noise, odors, vibrations, fumes,

light, smoke, traffic, etc.

The ordinance does not impact the disposal of MSW more

heavily based on the fact that it is crossing state lines.

-24-

Moreover, because there is no evidence in the record that

plaintiff’s proposed landfill would have only accepted out-of-

state MSW, the ordinance affected both in-state and out-of-state

MSW as applied to this plaintiff.

Based on the aforementioned reasons, we hold that the

ordinance is not discriminatory in its practical effect in

violation of the Commerce Clause. Plaintiff’s arguments are

overruled.

C. Preemption

In its third argument, plaintiff argues that the trial

court erred by entering summary judgment in favor of defendant

where the airport radius, floodplain, truck entrance, and

“catch-22” provisions of the ordinance, applicable to regional

landfills, are preempted by State and Federal law.

A city ordinance shall be consistent

with the Constitution and laws of North

Carolina and of the United States. An

ordinance is not consistent with State or

federal law when:

. . . .

(2) The ordinance makes unlawful an act,

omission or condition which is

expressly made lawful by State or

federal law;

. . . .

(5) The ordinance purports to regulate a

-25-

field for which a State or federal

statute clearly shows a legislative

intent to provide a complete and

integrated regulatory scheme to the

exclusion of local regulation[.]

. . . .

The fact that a State or federal law,

standing alone, makes a given act, omission,

or condition unlawful shall not preclude

city ordinances requiring a higher standard

of conduct or condition.

N.C. Gen. Stat. § 160A-174(b)(2) and (5) (2013).

First, plaintiff challenges § 7-5.G.4.b (hereinafter

“floodplain provision”) and subsection c (hereinafter “airport

radius provision”) of the ordinance, which provides as follows:

4. A landfill shall not be located:

. . . .

b. within the 100 year floodplain.

c. within five statute miles of the

Rockingham County (Shiloh) Airport.

Specifically, plaintiff argues that the floodplain provision is

preempted by N.C. Gen. Stat. § 130A-295.6(c)(1) and N.C. Gen.

Stat. § 130A-294(a)(4)(c)(5).

N.C. Gen. Stat. § 130A-295.6(c)(1) (2013) provides that

“[a] waste disposal unit of a sanitary landfill shall not be

constructed within: (1) A 100-year floodplain or land removed

-26-

from a 100-year floodplain designation. . . .” N.C. Gen. Stat.

§ 130A-294(a)(4)(c)(5) (2013) provides the following:

(a) The Department [of Environment and

Natural Resources (“DENR”)] is authorized

and directed to engage in research,

conduct investigations and surveys, make

inspections and establish a state-wide

solid waste management program. In

establishing a program, the [DENR] shall

have authority to (4) a. Develop a permit

system governing the establishment and

operation of solid waste management

facilities. . . . c. The [DENR] shall

deny an application for a permit for a

solid waste management facility if the

[DENR] finds that: 5. The proposed

facility would be located in a natural

hazard area, including a floodplain, a

landslide hazard area, or an area subject

to storm surge or excessive seismic

activity, such that the facility will

present a risk to public health or

safety.

Plaintiff argues that while N.C. Gen. Stat. § 130A-

295.6(c)(1) prohibits a landfill from being constructed within

an 100-year floodplain, other portions of the landfill facility,

“i.e. portions aside from the waste disposal unit,” could be

constructed in the 100-year floodplain so long as there is no

public health or safety risk. In addition, plaintiff argues

that since it is DENR’s discretion to judge whether a landfill

may be developed in a floodplain, the floodplain provision

applies a “blunt, blanket prohibition against any portion of a

-27-

regional landfill from being built in a 100-year flood plain,

even if the development is authorized by DENR.” We find

plaintiff’s arguments meritless.

Pursuant to N.C. Gen. Stat. § 153A-136(a)-(b) (2013), a

county has the authority to regulate “the storage, collection,

transportation, use, disposal and other disposition” of solid

wastes and to regulate such disposal and disposition by

ordinance that is “consistent with and supplementary to any

rules” adopted by the DENR. In addition, defendant is not

prevented “from providing by ordinance or regulation for solid

waste management standards which are stricter or more extensive

than those imposed by the State solid waste management program

and rules and orders issued to implement the State program.”

N.C. Gen. Stat. § 130A-309.09C(c) (2013) (emphasis added). That

is exactly what the floodplain provision of the challenged

ordinance does.

Next, plaintiff argues that the airport radius provision is

preempted by state and federal law. Plaintiff asserts that

although collectively, these state and federal laws provide a

specific regulatory scheme addressing the siting of landfills

near airports, the airport radius provision attempts to prohibit

-28-

landfills in locations where they are expressly permitted by

state and federal law.

Plaintiff directs our attention to the following State

regulations regarding MSW landfills near airports:

(a) A new MSWLF unit shall be located no

closer than 5,000 feet from any airport

runway used only by piston-powered

aircraft and no closer than 10,000 feet

from any runway used by turbine-powered

aircraft.

(b) Owners or operators proposing to site a

new MSWLF unit or lateral expansion

within a five-mile radius of any

airport runway used by turbine-powered

or piston-powered aircraft shall notify

the affected airport and the Federal

Aviation Administration prior to

submitting a permit application to the

Division.

(c) The permittee of any existing MSWLF

unit or a lateral expansion located

within 5,000 feet from any airport

runway used by only piston-powered

aircraft or within 10,000 feet from any

runway used by turbine-powered aircraft

shall demonstrate that the existing

MSWLF unit does not pose a bird hazard

to aircraft. The owner or operator

shall place the demonstration in the

operating record and notify the

Division that it has been placed in the

operating record.

15A N.C. Admin. Code 13B.1622(1)(a) – (c) (2012). In addition

40 C.F.R. § 258.10(a) (2013) states that

Owners or operators of new MSWLF units,

existing MSWLF units, and lateral expansions

that are located within 10,000 feet (3,048

-29-

meters) of any airport runway end used by

turbojet aircraft or within 5,000 feet

(1,524 meters) of any airport runway end

used by only piston-type aircraft must

demonstrate that the units are designed and

operated so that the MSWLF unit does not

pose a bird hazard to aircraft.

Our review indicates that defendant is correct in its

argument that there is “nothing in the language of these State

or federal regulations expressly or impliedly demonstrat[ing]

any intent to preclude more stringent regulations on the siting

of MSW landfills near airports.” Thus, we reject plaintiff’s

assertions.

Next, plaintiff challenges the following provision of the

ordinance applicable to regional landfills as being preempted by

state law:

a. The Truck entrance driveway shall be

located on or within two thousand (2000)

feet of a major arterial highway.

(hereinafter “truck entrance provision”). Plaintiff argues that

the county does not have authority to regulate vehicular traffic

on a State highway pursuant to N.C. Gen. Stat. § 153A-121(b)

(2013) which provides as follows:

This section does not authorize a county to

regulate or control vehicular or pedestrian

traffic on a street or highway under the

control of the Board of Transportation, nor

to regulate or control any right-of-way or

right-of-passage belonging to a public

-30-

utility, electric or telephone membership

corporation, or public agency of the State.

In addition, no county ordinance may

regulate or control a highway right-of-way

in a manner inconsistent with State law or

an ordinance of the Board of Transportation.

We find that plaintiff’s reading of the truck entrance

provision rests upon a misapprehension. The truck entrance

requirement does not regulate any vehicular traffic on a street

or highway, but rather regulates the location of a driveway

placed on a landfill. Therefore, we reject plaintiff’s

argument.

Lastly, plaintiff challenges the following provision of the

ordinance as being preempted by State law:

3. An application for development approval

shall include all the site plans and

information submitted to the Department

of Environment and Natural Resources for

the permitting of a solid waste

management facility.

Plaintiff argues that this provision is preempted by N.C. Gen.

Stat. § 13A-294(b1)(4) and 15A NCAC Admin. Code 13B.1618 which

sets forth requirements for an applicant’s permit for a MSW

landfill. Further, plaintiff alleges that this provision places

a landfill developer in a “catch-22” position because while

state law prohibits the developer from submitting the

application for a permit to DENR until the developer has

-31-

obtained local zoning approval, the ordinance prohibits local

zoning approval for the landfill developer until after it has

submitted the application for a permit to DENR. In other words,

plaintiff argues that the ordinance precludes landfill

developers from complying with both State and local law by

requiring a developer to submit its permit application to DENR

at a time when DENR prohibits such submission.

We find plaintiff’s arguments to be based on a misreading

of the challenged ordinance. The challenged provision does not

require the developer to submit an application to the DENR but

requires the developer to submit the “site plans and

information” that must be submitted to the DENR for the

permitting of a MSW landfill. Accordingly, we reject

plaintiff’s argument as it has no merit.

IV. Conclusion

Based on the reasons stated above, we reject plaintiff’s

argument that the ordinance violates the Equal Protection and

Commerce Clauses of the North Carolina and United States

Constitutions and also reject plaintiff’s arguments that certain

provisions of the ordinance are preempted by state and federal

law. The judgment of the trial court is affirmed.

Affirmed.

-32-

Chief Judge MARTIN and Judge ERVIN concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.