Appeal by plaintiffs from judgment entered 25 October 1999 by
Judge J.B. Allen, Jr. in Chatham County Superior Court. Heard in
the Court of Appeals 8 January 2001.
Ward and Smith, P.A., by Catherine Ricks Piwowarski, Kenneth
R. Wooten and Frank H. Sheffield Jr., for plaintiff-appellants.
The Brough Law Firm, by G. Nicholas Herman, for defendant-
appellees.
EAGLES, Chief Judge.
This appeal presents the issue of whether Chatham County
exceeded its authority to enact certain swine farm regulations.
At the outset, we note that the Chatham County Board of Health
and the Chatham County Board of Commissioners are not entities
capable of being sued. See G.S. § 153A-11 (1999)(granting counties
the right to sue and be sued). The present action concerns three
sets of Chatham County regulations. The Chatham County Board of
Commissioners enacted two ordinances, one entitled “Chatham County
Ordinance Regulating Swine Farms” (Swine Ordinance) and another
entitled “An Ordinance to Amend the Chatham County Zoning Ordinance
to Provide for the Regulation of Swine Farms” (Zoning Ordinance).
In addition, the Chatham County Board of Health adopted a set of
rules entitled “Chatham County Board of Health Swine Farm Operation
Rules” (Health Board Rules).
The Swine Ordinance and the Health Board Rules are identical.
The Swine Ordinance and Health Board Rules each set up a system to
regulate the operation, construction and expansion of swine farms
in Chatham County. The regulations both define swine farms as, “any
tract or contiguous tracts of land . . . under common ownership or
control which is devoted to raising 250 or more animals of the
porcine species.” Operators of farms meeting this definition must
obtain permits to expand, operate or construct a swine farm.Generally, to obtain a permit the operator must show that he or she
has complied with the minimum applicable state and federal
requirements for animal waste management systems and the other
provisions of the swine ordinance.
The regulations do not merely establish a permitting system.
They also establish various requirements for setback distances and
buffer zones for farms and spray fields. In each category, the
county's regulatory requirements are more stringent than those of
the State. Additionally, the county regulations contain a financial
responsibility provision that requires an operator of a swine farm
to guarantee “$2500 per acre feet of [the farm's] waste lagoon
capacity.” The purpose is to guarantee availability of funds to pay
for any necessary clean up costs or to remedy any violations. The
operator must guarantee availability of these funds through cash or
a cash equivalent placed in escrow or through a promissory note or
deed of trust. Finally, the county requires semi-annual tests on
wells located on the property of a swine farm.
The Zoning Ordinance makes swine farms a conditional use
requiring compliance with the swine ordinance. Unlike the other
county enactments, the Zoning Ordinance defines swine farms as:
Any tract or contiguous tracts of land in
Chatham County which is devoted to raising
animals of the porcine species and which is
served by an animal waste management system
having a design capacity of 600,000 pounds
steady state live weight (SSLW) or greater,
regardless of the actual number of swine on
the farm.
Plaintiffs, Timothy H. Craig and the Chatham County
Agribusiness Council, allege that the State has preempted
regulation of this area by “covering the field.” Specifically,plaintiffs cite to the Swine Farm Siting Act G.S. § 106-800 (1
999),
the Animal Waste Management Systems Act G.S. § 143-215.10A (1999)
and the regulations of the North Carolina Department of Environment
and Natural Resources 15A NCAC 2H .0200 (2000) as demonstrating
that the General Assembly has intended to preempt the field.
Additionally, plaintiffs allege that the County Board of
Commissioners and the Health Board had no authority to enact their
respective regulations, that the Health Board went beyond its rule-
making authority by considering non-health factors and that the
regulations violated the Pollution Control Act, G.S. § 143-215.105
(1999).
The trial court granted defendant's motion for summary
judgment and denied the plaintiffs' motion for summary judgment.
Plaintiffs appeal.
Summary judgment is appropriate if (1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law. G.S. § 1A-1 N.C.R. Civ. P. 56(c)
(1999); see also Moore v. Coachmen Industries, Inc., 129 N.C. App.
389, 393-94, 499 S.E.2d 772, 775 (1998). The parties both argue and
we agree that there are no issues of material fact. Therefore, our
only considerations are whether the trial court erred as a matter
of law in granting the defendant's motion for summary judgment and
in denying the plaintiffs' motion for summary judgment.
Plaintiffs contend that the General Assembly has preempted the
field of swine farm regulation. Although plaintiffs acknowledgethat the General Assembly did not include an explicit declaration
of preemption in the text of the General Statutes, they argue that
the General Assembly has created a “complete and integrated system
of regulation.” This type of regulation would bar any local action
regulating swine farms in the absence of an explicit statutory
exception. Defendant counters that the county and Health Board's
police power and the county's zoning power are sufficient to enable
them to enact these regulations. G.S. § 153A-121 (1999); G.S. §
130A-39 (1999) and G.S. § 153A-340 (1999).
We note at the outset that our Supreme Court has already
determined that the more specific police power limitations of G. S.
§ 160A-174 (1999) also apply to county ordinances. See State v.
Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972). G.S. § 160A-174 states
that:
(b) 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:
. . . .
(5) The ordinance purports to regulate a 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.
In our analysis, Greene v. City of Winston-Salem, 287 N.C. 66,
213 S.E.2d 231 (1975) is instructive. Greene concerned a Winston-
Salem ordinance that required sprinklers in all high rise
buildings. The plaintiff argued that the General Assembly had
preempted the field by creating the State Building Code. Id. at 75,
213 S.E.2d at 237. The Supreme Court agreed and held that theGeneral Assembly had created a “complete and integrated regulatory
scheme.” Id. The Court arrived at this conclusion despite the
absence of express language from the General Assembly stating a
legislative intent to preempt the field. The Supreme Court stated:
“We do not think that the Legislature must retain sole authority,
or completely delegate to one agency all authority, in order to
provide a complete and integrated regulatory scheme which would
exclude local regulation.” Id. According to the Court, a contextual
reading of all the relevant statutes compelled the conclusion that
the State had preempted the field. Id. Specifically, the General
Assembly's delegation of enforcement power to the Commissioner of
Insurance as well as the sheer breadth and scope of the regulations
impressed the Supreme Court that the State had covered the field.
Id.
Likewise, in State v. Williams, 283 N.C. 550, 196 S.E.2d 756
(1973), the Supreme Court invalidated a local ordinance that
purported to make it unlawful for a person to possess beer on the
public streets of Mount Airy. At that time, the General Statutes
provided that individuals eighteen or older could purchase,
transport or possess malt beverages for their own use without
restriction. Id. at 554, 196 S.E.2d at 758. The Supreme Court
concluded that the General Assembly had completely regulated the
field. Id. at 554, 196 S.E.2d at 759. In explaining its decision
the Court noted that the General Assembly had stated that it
intended to create a uniform system for the control of alcoholic
beverages. Id. The Court then stated: The General Assembly clearly intended to pre-
empt the regulation of malt beverages in order
to prevent local governments from enacting
ordinances such as the one in question. . . .
The ordinance in question is not consistent
with the general law in that . . . the
ordinance purports to regulate a field in
which a state statute has provided a complete
and integrated regulatory scheme to the
exclusion of local regulations.
Id.
More recent cases have resulted in similar holdings. In Onslow
County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, disc. review
denied, 349 N.C. 361, 525 S.E.2d 453 (1998), this Court considered
a county ordinance that prohibited the operation of an adult
business within 1000 feet of another adult business. Ultimately,
the Court held that the State had preempted the county's authority
to regulate through the enactment of a statute that prohibited the
operation of two adult businesses within the same building. Moore,
129 N.C. App. at 386, 499 S.E.2d at 787. Although the General
Assembly later amended the statute to allow counties to regulate,
the following language is relevant here.
We conclude that N.C. Gen. Stat. § 14-202.11
does in fact preempt the ordinance's
requirement regarding the distance that must
be kept between two adult and/or sexually
oriented businesses. . . . Thus, because the
General Assembly has already addressed the
issue of the distance required between these
types of businesses, to the extent that the
ordinance attempts to increase that distance
to 1000 feet, it is preempted by N.C. Gen.
Stat. § 14-202.11.
Id. (emphasis added); see also In Re Application of Melkonian, 85
N.C. App. 351, 355 S.E.2d 503, disc. review denied, 320 N.C. 631,360 S.E.2d 91 (1987).
[1]In light of these precedents we will now consider the
current state swine farm regulations and determine whether the
General Assembly has fully addressed and preempted this field. The
Swine Farm Siting Act's stated purpose is to assist the development
of pork production “by lessening the interference with the use and
enjoyment of adjoining property.” G.S. § 106-801 (1999). The Act
carries out this purpose through a series of setback and notice
requirements. Like the Chatham County regulations, this Act applies
only to farms that have 250 or more hogs. The setback provisions in
G.S. § 106-803 read in pertinent part:
(a) A swine house or a lagoon that is a
component of a swine farm shall be located:
(1) At least 1,500 feet from any occupied
residence.
(2) At least 2,500 feet from any school;
hospital; church; outdoor recreational
facility; national park; State Park, . . .
historic property . . . .
(3) At least 500 feet from any property
boundary.
(4) At least 500 feet from any well supplying
water to a public water system as defined in
G.S. 130A-313.
(5) At least 500 feet from any other well that
supplies water for human consumption. . . .
(a1) The outer perimeter of the land area onto
which waste is applied from a lagoon that is a
component of a swine farm shall be at least 75
feet from any boundary of property on which an
occupied residence is located and from any
perennial stream or river other than an
irrigation ditch or canal.
The notice provisions impose the following additional requirements.
Any person who intends to construct a swine
farm whose animal waste management system is
subject to a permit under Part 1 or 1A of
Article 21 of Chapter 143 of the General
Statutes shall, after completing a site
evaluation and before the farm site is
modified, notify all adjoining propertyowners; all property owners who own property
located across a public road, street, or
highway from the swine farm; the county or
counties in which the farm site is located;
and the local health department or departments
having jurisdiction over the farm site of that
person's intent to construct the swine farm.
This notice shall be by certified mail sent to
the address on record at the property tax
office in the county in which the land is
located. Notice to a county shall be sent to
the county manager or, if there is no county
manager, to the chair of the board of county
commissioners. Notice to a local health
department shall be sent to the local health
director. The written notice shall include all
of the following:
(1) The name and address of the person
intending to construct a swine farm.
(2) The type of swine farm and the design
capacity of the animal waste management
system.
(3) The name and address of the technical
specialist preparing the waste management
plan.
(4) The address of the local Soil and Water
Conservation District office.
(5) Information informing the adjoining
property owners and the property owners who
own property located across a public road,
street or highway from the swine farm that
they may submit written comments to the
Division of Water Quality, Department of
Environment and Natural Resources.
G.S. § 106-805 (1999).
While not limited to swine farms, the Animal Waste Management
Systems Act and the regulations enacted pursuant to it apply only
to farms with 250 or more swine. G.S. § 143-215.10B (1999). In the
act's statement of purpose the General Assembly noted:
It is critical that the State balance growth
with prudent environmental safeguards. It is
the intention of the State to promote a
cooperative and coordinated approach to animal
waste management among the agencies of the
State with a primary emphasis on technical
assistance to farmers. To this end, the
General Assembly intends to establish apermitting program for animal waste management
systems that will protect water quality and
promote innovative systems and practices while
minimizing the regulatory burden. Technical
assistance, through operations reviews will be
provided by the Division of Soil and Water
Conservation. Permitting, inspection and
enforcement will be vested in the Division of
Water Quality.
G.S. § 143-215.10A (1999)(emphasis added). The Act goes on to
require a permit for construction or operation of an animal waste
management system and directs the Environmental Management
Commission to create a permitting system. G.S. § 143-215.10C
(1999). In directing the creation of these regulations, the General
Assembly mandated that the E.M.C. should:
[E]ncourage the development of alternative and
innovative animal waste management
technologies. The Commission shall provide
sufficient flexibility in the regulatory
process to allow for the timely evaluation of
alternative and innovative animal waste
management technologies and shall encourage
operators of animal waste management systems
to participate in the evaluation of these
technologies. The Commission shall provide
sufficient flexibility in the regulatory
process to allow for the prompt implementation
of alternative and innovative animal waste
management technologies that are demonstrated
to provide improved protection to public
health and the environment.
G.S. § 143-215.10C(g) (1999). The Commission has created this
system for operators to obtain approval for an animal waste
management system plan in 15A NCAC 2H. 0200 (2000) et seq.
Specifically, 15A NCAC 2H .0217 (2000) sets out the procedures for
operators to develop an approved animal waste management plan.
These regulations mandate (1) required setbacks and vegetative
buffers from perennial waters; (2) compliance with the minimumspecifications of the U.S. Department of Agriculture's Soil
Conservation Service; (3) certification of a technical specialist
designated by the Soil and Water Conservation Commission; (4) a
required on-site inspection to ensure that animal waste storage and
treatment structures meet all standards and specifications; and (5)
a required procedure for notifying the Division of Environmental
Management of a change in ownership and a statement that the new
owner has read, understands and will follow the waste management
system plan.
The General Assembly has also directed that an operator
include certain things in an animal waste management plan. G.S. §
143-215.10C(e) states:
(e) Animal waste management plans shall
include all of the following components:
(1) A checklist of potential odor sources and
a choice of site-specific, cost-effective
remedial best management practices to minimize
those sources.
(2) A checklist of potential insect sources
and a choice of site-specific, cost-effective
best management practices to minimize insect
problems.
(3) Provisions that set forth acceptable
methods of disposing of mortalities.
(4) Provisions regarding best management
practices for riparian buffers or equivalent
controls, particularly along perennial
streams.
(5) Provisions regarding the use of emergency
spillways and site-specific emergency
management plans that set forth operating
procedures to follow during emergencies in
order to minimize the risk of environmental
damage.
(6) Provisions regarding periodic testing of
waste products used as nutrient sources asclose to the time of application as practical
and at least within 60 days of the date of
application and periodic testing, at least
annually, of soils at crop sites where the
waste products are applied. . . .
(7) Provisions regarding waste utilization
plans that assure a balance between nitrogen
application rates and nitrogen crop
requirements, that assure that lime is applied
to maintain pH in the optimum range for crop
production, and that include corrective
action, including revisions to the waste
utilization plan based on data of crop yields
and crop analysis, that will be taken if this
balance is not achieved as determined by
testing conducted pursuant to subdivision (6)
of this subsection.
(8) Provisions regarding the completion and
maintenance of records on forms developed by
the Department, which records shall include
information addressed in subdivisions (6) and
(7) of this subsection, including the dates
and rates that waste products are applied to
soils at crop sites, and shall be made
available upon request by the Department.
Additionally, the Act sets up two separate inspection requirements.
In G.S. § 143-215.10D, the General Assembly requires an annual
operations review. As part of this operations review, a technical
specialist from the Division of Soil and Water Conservation must
review each animal waste management system. The specialist must
then report any violations under G.S. § 143-215.10E and any
recommended corrective action. Additionally, G.S. § 143-215.10F
requires the Division to conduct an annual inspection “to determine
whether the system is causing a violation of water quality
standards and whether the system is in compliance with its animal
waste management plan or any other condition of the permit.”
Finally, the General Assembly has expressly limited the
county's authority to zone swine farms with one exception. G.S. §153A-340(b)(1) (1999) prevents a county from zoning a bona fide
farm. Bona fide farms include those farms on which livestock is
raised. G.S. § 153A-340(b)(2). However, the General Assembly has
now given counties the authority to zone swine farms larger than a
certain size. The statute reads:
(3) . . . A county may adopt zoning
regulations governing swine farms served by
animal waste management systems having a
design capacity of 600,000 pounds steady state
live weight (SSLW) or greater provided that
the zoning regulations may not have the effect
of excluding swine farms served by an animal
waste management system having a design
capacity of 600,000 pounds SSLW or greater
from the entire zoning jurisdiction.
G.S. § 153A-340(b)(3). Other than as authorized by that limited
statutory exception, counties may not act to zone a swine farm.
When read together, these statutes compel the conclusion that
the General Assembly has provided a “complete and integrated
regulatory scheme” of swine farm regulations. See Greene, 287 N.C.
at 75, 213 S.E.2d at 237. The General Assembly has provided for a
system of permitting, inspection, setbacks, buffers and waste
management. Further, the General Assembly has directed that
specific state agencies oversee those regulations. An examination
of the county's actions here reveals that the county has attempted
to regulate in areas where the State has already enacted
comprehensive regulations. Under Greene and Onslow County the
county's actions may not stand unless the county enacted its
regulations pursuant to the specific exception in G.S. § 153A-
340(b)(3).
The legislative purpose sections in G.S. § 106-801 and G.S. §143-215.10A only reinforce this conclusion.
In G.S. § 106-801, the
General Assembly's enactment refers to the necessary balance
between economic and environmental considerations. In G.S. § 143-
215.10A, the General Assembly notes the necessity for providing a
cooperative and coordinated approach to animal waste management.
Most important for our purposes, the General Assembly stresses the
necessity of minimizing the regulatory burden on farmers. To allow
the county commissioners and the county board of health to act here
would be wholly inconsistent to the General Assembly's stated
goals. Specifically, the county could undermine the State's
attempts to minimize the regulatory burden and the balance of
economic and environmental interests. Additionally, the county's
actions would make it more difficult to provide farmers with the
regulatory flexibility needed to develop “alternative and
innovative technologies.” See G.S. § 143-215.10C(g) (1999).
[2]Accordingly, we hold that the county Swine Ordinance and
the county Health Board Rules are preempted by State law. The
county Zoning Ordinance requires a different analysis. The General
Assembly has carved out a specific exception to the laws
surrounding swine farms. G.S. § 153A-340(b)(3) permits counties to
zone swine farms “having a design capacity of 600,000 pounds steady
state live weight (SSLW) or greater.” However, the statute forbids
counties from completely eliminating from the zoning jurisdiction
a farm under that section. Here, Chatham County made the Zoning
Ordinance applicable only to swine farms “served by an animal waste
management system having a design capacity of 600,000 pounds steady
state live weight (SSLW) or greater.” Accordingly, the countyenacted the zoning ordinance pursuant to the express statement of
power given by the State and it is not preempted.
[3]The county argues that the General Assembly may not
restrict local action without an express declaration to that
effect. We disagree. The Supreme Court in Greene made it clear that
the General Assembly does not have to retain sole authority or
“completely delegate to one agency all authority, in order to
provide a complete and integrated regulatory scheme.” Greene, 287
N.C. at 75, 213 S.E.2d at 237. Rather, the creation of a complete
and integrated regulatory scheme bars local action. G.S. § 160A-
174(b)(5). We do not believe that In re Application of Melkonian,
85 N.C. App. 351, 355 S.E.2d 503 (1987) or Southern Railway Co. v.
City of Winston-Salem, 4 N.C. App. 11, 165 S.E.2d 751, aff'd, 275
N.C. 465, 168 S.E.2d 396 (1969) require an opposite conclusion. In
re Melkonian involved the plaintiff's attempt to obtain a special
use permit to operate a tavern after the ABC Commission had granted
plaintiff a license to sell alcoholic beverages. The Court held
that the State had preempted the city's permitting system by
expressly prohibiting local regulation of alcoholic beverages.
Melokonian, 85 N.C. App. at 360, 355 S.E.2d at 509. While an
express legislative statement is clearly adequate to bar local
action, the implementation of a complete and integrated system is
also sufficient. We do not read Melkonian to hold that an express
legislative statement is necessary.
In Southern Railway, the Court held that local action was notpreempted by a statute that “clearly negat
ive[d] any intention that
the statute should be construed as the adoption of a statewide
policy.” Southern Railway, 4 N.C. App. at 20, 165 S.E.2d at 757.
The statute in question expressly limited its application to
certain streets and roads. Id. Here, the defendant points to no
language in the regulatory structure that negatives the intent to
provide a complete and integrated system or limits its application.
Therefore, the county's argument fails.
[4]Finally, the county argues that they are not precluded
from setting the regulations' higher setback and buffer distances
because “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.” G.S. § 160A-174(b) (1999). In this context, we
disagree. As we held in Onslow County, the State's and county's
regulations deal with issues of distance and not conduct. Further,
the General Assembly has addressed the issue of distance as it
relates to swine farms. Therefore, the State's action precludes the
county from any further regulation.
Accordingly, we hold that the trial court erred in granting
summary judgment for the defendant and in denying summary judgment
for the plaintiffs on the issues of the Swine Ordinance and Health
Board Rules. However, the trial court was correct in granting
summary judgment to the defendant as to the Zoning Ordinance. We
now remand this case for further proceedings not inconsistent with
this opinion. Affirmed in part, reversed in part and remanded.
Judge SMITH concurs.
Judge HUDSON concurs with a separate opinion.
==============================
HUDSON, Judge concurring.
I concur with the result reached by the majority. I write
separately because, although I agree that the Swine Ordinance
regulations and the Health Board Rules may be identical in
substance, I believe the reason the Health Board Rules may not
stand is distinct from the reason the Swine Ordinance may not
stand.
I agree with the majority that the General Assembly has
preempted the field of swine farm regulations. I also agree with
the proposition that the regulations in question therefore may not
stand unless they are found to have been enacted pursuant to some
specific statutory exception, such as N.C.G.S. § 153A-340(b)(3)
(1999). However, in addition to G.S. § 153A-340(b)(3), I believe
the General Assembly has carved out a specific exception to the
state swine farm laws in enacting N.C.G.S. § 130A-39 (1999)
(“Powers and duties of a local board of health”). Section (b) of
this statute permits a local board of health to “adopt a more
stringent rule in an area regulated by the Commission for Health
Services or the Environmental Management Commission where, in the
opinion of the local board of health, a more stringent rule is
required to protect the public health.” G.S. § 130A-39(b). I
believe this statute provides an express grant of authority to a
local board of health to enact more stringent regulations, evenwhere the General Assembly has preempted the area of regulation.
I further believe that the Health Board Rules in question fall
within this exception because they provide for more stringent
regulations than the state swine farm laws enacted by the General
Assembly. Thus, I do not believe the Health Board Rules are
preempted by State Law.
However, I believe the Health Board Rules may not stand for a
different reason. In enacting the Health Board Rules, I believe
the Board of Health exceeded its authority and infringed on the
legislative power of the General Assembly by taking into
consideration not only health related issues but economic issues as
well. Determining the proper balance between health concerns and
economic concerns is a role reserved for the legislature and,
therefore, a local board of health exceeds its authority when it
enacts rules based on a balancing of factors other than health.
See City of Roanoke Rapids v. Peedin, 124 N.C. App. 578, 478 S.E.2d
528 (1996). For this reason, rather than the doctrine of
preemption relied upon by the majority, I would deny summary
judgment for defendants and grant summary judgment for plaintiffs
on the issue of the Health Board Rules.
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