PBK Holdings, LLC v. County of Rockingham

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
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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
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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-
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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
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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).
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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
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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).
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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
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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.”
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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Chief Judge MARTIN and Judge ERVIN concur.