noting that the county’s Board of Health and Board of Commissioners “are not entities capable of being sued”
How later courts described this case
- noting that the county’s Board of Health and Board of Commissioners “are not entities capable of being sued”
Written by the judges who cited it.
The opinion
HUDSON, Judge
concurring.
I concur with the result reached by the majority. I write separately because, although I agree that the Swine Ordinance regulations and the Health Board Rules may be identical in substance, I believe the reason the Health Board Rules may not stand is distinct from the reason the Swine Ordinance may not stand.
I agree with the majority that the General Assembly has preempted the field of swine farm regulations. I also agree with the proposition that the regulations in question therefore may not stand unless they are found to have been enacted pursuant to some specific statutory exception, such as N.C.G.S. § 153A-340(b)(3) (1999). However, in addition to G.S. § 153A-340(b)(3), I believe the General Assembly has carved out a specific exception to the state swine farm laws in enacting N.C.G.S. § 130A-39 (1999) (“Powers and duties of a local board of health”). Section (b) of this statute permits a local board of health to “adopt a more stringent rule in an area regulated by the Commission for Health Services or the Environmental Management Commission where, in the opinion of the local board of health, a more stringent rule is required to protect the public health.” G.S. § 130A-39(b). I believe this statute provides an express grant of authority to a local board of health to enact more stringent regulations, even where the General Assembly has preempted the area of regulation. I further believe that the Health Board Rules in question fall within this exception because they provide for more stringent regulations than the state swine farm laws enacted by the General Assembly. Thus, I do not believe the Health Board Rules are preempted by State Law.
*43 However, I believe the Health Board Rules may not stand for a different reason. In enacting the Health Board Rules, I believe the Board of Health exceeded its authority and infringed on the legislative power of the General Assembly by taking into consideration not only health related issues but economic issues as well. Determining the proper balance between health concerns and economic concerns is a role reserved for the legislature and, therefore, a local board of health exceeds its authority when it enacts rules based on a balancing of factors other than health. See City of Roanoke Rapids v. Peedin, 124 N.C. App. 578 , 478 S.E.2d 528 (1996). For this reason, rather than the doctrine of preemption relied upon by the majority, I would deny summary judgment for defendants and grant summary judgment for plaintiffs on the issue of the Health Board Rules.