MeCULLOUGH, 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.
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:
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 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. AirportsClass 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-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 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.
"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).
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).
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.
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 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
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).
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 same activity — namely, the business
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."
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." Moms Communs. Corp. v. 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).
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 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
"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.
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.
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.
DirecTV, Inc. v. State of North Carolina, 178 N.C. App. 659, 661-62, 632 S.E.2d 543, 546 (2006) (citations omitted).
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).
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
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 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 instate 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.
In order to successfully argue that the ordinance is discriminatory in its practical effect,
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, 114 S.Ct. 1345, 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
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, 114 S.Ct. at 1348, 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 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, 114 S.Ct. at 1348, 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, 114 S.Ct. at 1351, 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 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 instate 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, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992), and Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 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 generated in the county was explicitly authorized in the approved county solid waste management plan. Fort Gratiot, 504 U.S. at 355-57, 112 S.Ct. at 2021, 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, 112 S.Ct. at 2024, 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, 112 S.Ct. at 2024, 119 L.Ed.2d at 148.
The circumstances of the present case, however, are distinguishable from those found in Fort Gratiot. Most importantly, in
In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 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, 98 S.Ct. at 2211, 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 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, 98 S.Ct. at 2213, 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, 98 S.Ct. at 2214, 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. 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.
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.
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:
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 from a 100-year floodplain designation...." N.C. Gen.Stat. § 130294(a)(4)(c)(5) (2013) provides the following:
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 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. § 130309.09C(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 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:
15A N.C. Admin. Code 13B. 1622(1)(a)-(c) (2012). In addition 40 C.F.R. § 258.10(a) (2013) states that
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:
(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:
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:
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 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
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.
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.
Chief Judge MARTIN and Judge ERVIN concur.
