PBK Holdings, LLC v. Cnty. of Rockingham

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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 judgment, and dismissing plaintiff s action. for For the reasons stated herein, we affirm the decision of the trial court. I. Background summary -2On 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 Rockingham Carolina, County ordinance ). Unified Adopting Zoning Development Changes Ordinance. to the ( the 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 Class I Class II USE 1. Airstrips 2. Concrete suppliers (ready-mix) 1. Chemical manufacturing and storage 2. Cement Manufacturers 3. Sawmills 4. Bulk Storage Facility of FlammablesPropane, Gasoline, Fuel Oil and Natural -3Gas 5. Scrap Metal Salvage Yards, Junkyards 6. Commercial Livestock Auction 1. Commercial Incinerators 2. Local Solid Waste Management Facilities/Landfills 3. Chip Mills 4. Airports 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) 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) Class III Class IV Class V (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. had a special use permit Plaintiff alleged that it 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- -4Privately Owned category. had a specific and Therefore, plaintiff argued that it legal personal legal interest in the Rockingham County zoning ordinances that impact its plans to develop a landfill. Plaintiff affected by argued certain that it amendments was directly adopted in and the adversely 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 Facilities/Landfills-Privately landfills ) as a Class V Solid high impact Management (hereinafter Owned Waste regional 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). complaint argued that defendant was preempted Plaintiff s 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 -5Commerce Clause of the United States Constitution. Based on the foregoing trial contentions, plaintiff argued that the 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 judgment. June 2013, defendant filed a motion for summary On 13 June 2013, plaintiff also filed a motion for summary judgment. Following Rockingham granting a hearing Superior Court, defendant s plaintiff s motion held the motion for at the trial for summary 24 June court summary 2013 entered an judgment, judgment, and term of order denying 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). -6The 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. First, entering plaintiff summary ordinance s Equal Protection Clause argues judgment distinction that in between the favor local trial of court defendant and regional erred where by the landfills violates the Equal Protection Clauses of the North Carolina and -7United States Constitutions. local and ordinance regional imposes Plaintiff asserts that although landfills more are stringent similarly requirements landfills than are imposed on local landfills. situated, on the regional 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 similarly situated be treated alike. that all persons Dobrowolska v. Wall, 138 N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000) (citations omitted). -8The 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, claimant must allege treated them Lea Grier, v. (2003). to state (1) differently 156 N.C. the an equal government protection (2) claim, arbitrarily (4) than those similarly App. 503, 509, 577 S.E.2d a (3) situated. 411, 416 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 -9same activity namely, the business of MSW disposal. on the plain language definition of the terms Relying local and regional, plaintiff states that the only difference between these two classes is that local landfills accept waste from a limited district, subdivision while often a regional community landfills or minor accept political waste from geographical region or peripheral parts of a district. a 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. common from knowledge areas typically that within larger, Defendant asserts that it is regional and landfills, outside dispose of of which accept Rockingham greater waste waste County, are 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 generated from within the local community. dispose of waste[] -10Our 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. are Local classified as Solid Waste Management Facilities/Landfills a Class III high impact use, along commercial incinerators, chip mills, and airports. with Regional Solid Waste Management Facilities/Landfills-Privately Owned are classified as a Class V high impact use, along with explosives manufacturing, extraction storage, operations, and and wholesale, quarries. as well Although as the mining, 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 meaning of significance. undefined . and . . To ambiguous appropriately consult dictionaries. ascertain terms, the ordinary courts may Morris Communs. Corp. v. -11City 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. College Dictionary 1206 (4th edition Webster s New World 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 -12or 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, 23031, 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 conceivable and legitimate government interest. uses is a 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 -13the 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 fumes, light, surrounding objectionable smoke, area, as levels traffic, opposed of noise, and/or to local odors, other impacts landfills, categorized as a Class III high impact use. vibrations, to which the were 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. -14Because defendant s purposes in enacting the ordinance are undeniably legitimate application of ordinance the leads governmental rational us to basis the purposes test conclusion to and the that because challenged 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 Constitution. the Commerce Clause of the United States 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 -15of 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 outof-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 -16Plaintiff contends discriminatory. landfills that collect MSW from ordinance is facially argument Plaintiff s the presumes that regional 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 -17of 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 outof-state location of an activity. See Webster s New College Dictionary 842 and 1206 (4th edition 2006). World 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 discriminatory design in the ordinance. demonstrate an explicit Based on the foregoing, we conclude that the ordinance is not facially discriminatory. ii. Discrimination in its Practical Effect -18In 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 Dep t of (citations omitted). Plaintiff, relying on Oregon Waste Systems v. 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. In Oregon Waste, the We disagree. 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. conjunction with the out-of-state surcharge, the In legislature imposed a fee on the in-state disposal of waste generated within -19Oregon at $0.85 per ton, considerably imposed on waste from other States. lower Id. than the fee Subsequently, the legislature conditionally extended the $0.85 per ton fee to outof-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 instate 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. L. Ed. 2d at 22 (citations and Id. at 100-01, 128 quotation marks omitted). Because respondents could not meet this burden, the surcharge was held to be in violation of the Commerce Clause. Plaintiff s misplaced since distinguishable. conclusory we find First, reliance the we facts have on Oregon of the previously Waste instant held that is case the -20ordinance 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 -21generated 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 discriminates against unconstitutional justified by protectionism. omitted). complete that state interstate unless a [a] the valid statute commerce discrimination factor that is is unrelated clearly therefore demonstrably to economic Id. at 359, 119 L. Ed. 2d at 147 (citation Because the statute afford[ed] local waste producers 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, should be why solid treated waste coming differently from from outside solid waste the county within the county, the Supreme Court held that the contested Michigan law violated the Commerce Clause. The circumstances distinguishable from of those Id. at 361, 119 L. Ed. 2d at 148. the present found in case, Fort however, Gratiot. are 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 -22waste from both within the State of North Carolina and out-ofstate. of Defendant also identified reasons, apart from the origin 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 residences, and other health and safety concerns. from 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, uniformly to and all (2) voluntary allowances supplies. Id. at 119-20, 57 L. Ed. 2d at 96. must service extend all stations it 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 -23Commerce Clause interstate because goods state companies. flows in or producers did distinguish Because interstate or it such discriminate and out-of- entire since claims against in-state between Maryland s commerce refiners, not gasoline there of and are supply no disparate local 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 heavily based on does not impact the disposal of the fact that it is crossing MSW more state lines. -24Moreover, because there is no evidence in the record that plaintiff s proposed landfill would have only accepted out-ofstate MSW, the ordinance affected both in-state and out-of-state MSW as applied to this plaintiff. Based on ordinance is the not aforementioned discriminatory reasons, in violation of the Commerce Clause. its we hold practical that the effect in Plaintiff s arguments are overruled. C. In its third argument, Preemption 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 -25field 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. c. within the 100 year floodplain. 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 -26from 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 -27regional 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 ordinance rules to regulate such disposal that is consistent with adopted by the In DENR. and and disposition supplementary addition, defendant by to any 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). is exactly what the floodplain provision of the That 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 -28landfills 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) (b) (c) 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. 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. 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 -29meters) 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 -30utility, 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 provision that rests plaintiff s upon a reading of truck entrance The 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 landfill. a landfill state law application permit for a MSW Further, plaintiff alleges that this provision places developer prohibits for a in a catch-22 the developer permit to DENR position from until the because submitting developer while the has -31obtained 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. plaintiff argues developers from that the complying ordinance with both In other words, precludes State and landfill 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 information permitting developer that of a to submit the submitted to must be MSW landfill. site the plans DENR Accordingly, we for and the 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. -32Chief Judge MARTIN and Judge ERVIN concur.

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