NO. COA13-865

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

PBK HOLDINGS, LLC,

Plaintiff,

v. Rockingham County

No. 13 CVS 417

COUNTY OF ROCKINGHAM,

Defendant.

Appeal by plaintiff from order entered 25 June 2013 by 

Judge Richard L. Doughton in Rockingham County Superior Court. 

Heard in the Court of Appeals 9 December 2013.

Brooks Pierce McLendon Humphrey & Leonard, L.L.P., by 

Daniel F.E. Smith, S. Leigh Rodenbough IV, and Darrell A. 

Fruth, for plaintiff-appellant.

The Brough Law Firm, by G. Nicholas Herman, and Rockingham 

County by Robert V. Shaver, Jr., County Attorney, for 

defendant-appellee.

McCULLOUGH, Judge.

Plaintiff PBK Holdings, LLC, appeals from an order of the 

trial court, granting summary judgment in favor of defendant 

County of Rockingham, denying plaintiff’s motion for summary 

judgment, and dismissing plaintiff’s action. For the reasons 

stated herein, we affirm the decision of the trial court.

I. Background
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On 13 March 2012, defendant Rockingham County, by and 

through the Rockingham County Board of Commissioners, adopted an 

ordinance entitled “An Ordinance of the County of Rockingham, 

State of North Carolina, Adopting Zoning Changes to the 

Rockingham County Unified Development Ordinance.” (“the 

ordinance”). The stated purpose of the ordinance was to:

define high impact uses, to allow certain 

high impact uses to be approved through 

conditional zoning, to delete special use 

requirements for those uses now identified 

as high impact uses and to delete and add 

text to the table of permitted uses and 

other zoning sections to effect these 

changes.

“High impact uses” were defined as:

those which by their nature produce 

objectionable levels of noise, odors, 

vibrations, fumes, light, smoke, traffic 

and/or other impacts upon the lands adjacent 

to them.

The following uses were considered high impact uses, “[e]ach use 

. . . grouped into categories based on the projected impact to 

the surrounding area[:]”

CLASSIFICATION USE

Class I 1. Airstrips

2. Concrete suppliers (ready-mix)

Class II 1. Chemical manufacturing and storage

2. Cement Manufacturers

3. Sawmills

4. Bulk Storage Facility of FlammablesPropane, Gasoline, Fuel Oil and Natural 
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Gas

5. Scrap Metal Salvage Yards, Junkyards

6. Commercial Livestock Auction

Class III 1. Commercial Incinerators

2. Local Solid Waste Management 

Facilities/Landfills

3. Chip Mills

4. Airports

Class IV 1. Asphalt Plants

2. Hazardous Waste Facilities

3. Slaughtering and Processing Plants

4. Pulp and Paper Mills

5. Motor Sports Activities (i.e. 

racetracks and dragstrips)

Class V 1. Explosives Manufacturing, Storage and 

Wholesale

2. Regional Solid Waste Management 

Facilities/Landfills-Privately Owned

3. Mining, Extraction Operations and 

Quarries (including sand, gravel and 

clay pits)

(emphasis added).

On 12 March 2013, plaintiff PBK Holdings, LLC, filed a 

complaint against defendant. Plaintiff is a limited liability 

company, formed “for the purpose of acquiring, permitting, and 

developing a regional municipal solid waste (“MSW”) landfill” in 

Rockingham County, North Carolina. Plaintiff alleged that it 

had a special use permit application pending in Rockingham 

County to develop a sanitary landfill and recycling facility

that would accept more than 100,000 tons of MSW per year. 

Plaintiff stated that the proposed landfill would fall within 

the “Regional Solid Waste Management Facilities/Landfills-
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Privately Owned” category. Therefore, plaintiff argued that it 

had a “specific and legal personal legal interest in the 

Rockingham County zoning ordinances that impact its plans to 

develop a landfill.”

Plaintiff argued that it was directly and adversely 

affected by certain amendments adopted in the ordinance and 

challenged the following provisions: Chapter 2, Article VII, § 

7-2.B (classifies “Local Solid Waste Management 

Facilities/Landfills” (hereinafter “local landfills”) as a Class 

III high impact use and “Regional Solid Waste Management 

Facilities/Landfills-Privately Owned” (hereinafter “regional 

landfills”) as a Class V high impact use); § 7-4.B (lists 

setback requirements from property line, rights-of-way, zoning 

districts and structures based on Class); and § 7-5.G (sets 

forth additional factors to be considered in approving Regional 

Municipal Solid Waste-Privately Owned Landfills). Plaintiff’s 

complaint argued that defendant was preempted from adopting 

provisions in conflict with North Carolina law, that certain 

provisions exceeded the authority of the Board of Commissioners 

to adopt and defendant to enforce, that the ordinance violated 

the Equal Protection clauses of the United States and North 

Carolina Constitutions, and that the ordinance violated the 
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Commerce Clause of the United States Constitution. Based on the 

foregoing contentions, plaintiff argued that the trial court 

should enter declaratory judgment in favor of plaintiff, stating 

that the challenged portions of the ordinance were invalid.

On 22 April 2013, defendant filed an answer to the 

complaint.

On 10 June 2013, defendant filed a motion for summary 

judgment. On 13 June 2013, plaintiff also filed a motion for 

summary judgment.

Following a hearing held at the 24 June 2013 term of 

Rockingham Superior Court, the trial court entered an order 

granting defendant’s motion for summary judgment, denying 

plaintiff’s motion for summary judgment, and dismissing

plaintiff’s action on 25 June 2013.

Plaintiff appeals.

II. Standard of Review

"Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record 

shows that there is no genuine issue as to any material fact and 

that any party is entitled to a judgment as a matter of law."

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 

(2008) (citation and quotation marks omitted).
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The moving party bears the burden of 

establishing the lack of a triable issue of 

fact. If the movant meets its burden, the 

nonmovant is then required to produce a 

forecast of evidence demonstrating that the 

[nonmoving party] will be able to make out 

at least a prima facie case at trial.

Furthermore, the evidence presented by the 

parties must be viewed in the light most 

favorable to the non-movant.

Thompson v. First Citizens Bank & Trust Co., 151 N.C. App. 704, 

706, 567 S.E.2d 184, 187 (2002) (internal citations and 

quotation marks omitted).

III. Discussion

On appeal, plaintiff argues that the trial court erred by 

entering summary judgment in favor of defendant where (A) the 

ordinance’s distinction between “local” and “regional” landfills

violates the Equal Protection Clauses of the North Carolina and 

United States Constitutions; (B) the ordinance violates the 

Commerce Clause of the United States Constitution; and (C) the 

airport radius, floodplain, truck entrance, and “catch-22”

provisions are preempted by State and Federal law.

A. Equal Protection Clause

First, plaintiff argues that the trial court erred by 

entering summary judgment in favor of defendant where the 

ordinance’s distinction between local and regional landfills

violates the Equal Protection Clauses of the North Carolina and 
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United States Constitutions. Plaintiff asserts that although

local and regional landfills are similarly situated, the 

ordinance imposes more stringent requirements on regional 

landfills than are imposed on local landfills. Furthermore, 

plaintiff argues that there is no legitimate purpose justifying 

the difference in landfill classifications and that distinctions 

between local and regional landfills are not rationally related 

to defendant’s stated interests. We find plaintiff’s arguments

unpersuasive.

We note that

[a] municipal ordinance is presumed to be 

valid . . . . [T]he burden is upon the 

complaining party to show its invalidity or 

inapplicability. And a municipal ordinance 

promulgated in the exercise of the police 

power will not be declared unconstitutional 

unless it is clearly so, and every 

intendment will be made to sustain it.

Standley v. Town of Woodfin, 186 N.C. App. 134, 140, 650 S.E.2d 

618, 623 (2007) (citations and quotation marks omitted).

“The principle of equal protection of the law is explicit 

in both the Fourteenth Amendment to the United States 

Constitution and Article I, Section 19 of the Constitution of 

North Carolina. This principle requires that all persons 

similarly situated be treated alike.” Dobrowolska v. Wall, 138 

N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000) (citations omitted).
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The United States Supreme Court has 

explained that the purpose of the equal 

protection clause . . . is to secure every 

person within the State’s jurisdiction 

against intentional and arbitrary 

discrimination, whether occasioned by 

express terms of a statute or by its 

improper execution through duly constituted 

agents. . . . Of course, most laws 

differentiate in some fashion between 

classes of persons. The Equal Protection 

Clause does not forbid classifications. It 

simply keeps governmental decision makers 

from treating differently persons who are in 

all relevant respects alike.

Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 202-03, 

716 S.E.2d 646, 657-58 (2011) (citations and quotation marks 

omitted).

“Accordingly, to state an equal protection claim, a 

claimant must allege (1) the government (2) arbitrarily (3) 

treated them differently (4) than those similarly situated.” 

Lea v. Grier, 156 N.C. App. 503, 509, 577 S.E.2d 411, 416 

(2003). “Thus, [i]n addressing an equal protection challenge, 

we first identify the classes involved and determine whether 

they are similarly situated.” Yan-Min Wang, 216 N.C. App. at 

204, 716 S.E.2d at 658 (citation and quotation marks omitted).

In the present case, the two classes at issue are local and 

regional landfills. Plaintiff alleges that local and regional 

landfills are similarly situated because they are engaged in the 
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same activity – namely, the business of MSW disposal. Relying 

on the plain language definition of the terms “local” and 

“regional,” plaintiff states that the only difference between 

these two classes is that local landfills accept waste from a 

“limited district, often a community or minor political 

subdivision” while regional landfills accept waste from “a 

geographical region” or “peripheral parts of a district.” Based 

on the foregoing, plaintiff argues that the ordinance violates 

the Equal Protection Clause since “characterizations of waste

based on its geographic origin have repeatedly been found 

groundless by the United States Supreme Court.”

On the other hand, defendant contends that there is no 

dispute about the definitions of local versus regional 

landfills, arguing that the distinctions are made based on the 

general nature of their uses. Defendant asserts that it is 

common knowledge that regional landfills, which accept waste 

from areas within and outside of Rockingham County, are 

“typically larger, dispose of greater waste tonnage, and 

therefore may pose the risk of having greater adverse impacts 

upon the health, safety and welfare in contrast to purely local 

and less-intensive landfills that merely dispose of waste[] 

generated from within the local community.”
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Our review indicates that the ordinance defines high impact 

uses as “those which by their nature produce objectionable 

levels of noise, odors, vibrations, fumes, light, smoke, traffic 

and/or other impacts upon the lands adjacent to them.” The 

categorization of high impact uses are based on the “projected 

impact to the surrounding area,” resulting in five different 

classes. “Local Solid Waste Management Facilities/Landfills” 

are classified as a Class III high impact use, along with 

commercial incinerators, chip mills, and airports. “Regional

Solid Waste Management Facilities/Landfills-Privately Owned” are 

classified as a Class V high impact use, along with explosives 

manufacturing, storage, and wholesale, as well as mining, 

extraction operations, and quarries. Although the ordinance 

distinguishes between local and regional landfills, it fails to 

provide a definition for “local” and “regional” landfills.

“When interpreting a municipal ordinance we apply the same 

principles of construction used to interpret statutes. Undefined 

and ambiguous terms in an ordinance are given their ordinary 

meaning and significance. . . . To ascertain the ordinary 

meaning of undefined and ambiguous terms, courts may 

appropriately consult dictionaries.” Morris Communs. Corp. v. 
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City of Bessemer, 365 N.C. 152, 157-58, 712 S.E.2d 868, 872 

(2011) (citations omitted).

“Local” is defined as “1. relating to place 2. of, 

characteristic of, or confined to a particular place or district 

3. not broad; restricted; narrow.” Webster’s New World College 

Dictionary 842 (4th edition 2006). “Regional” is defined as “1. 

of a whole region not just a locality 2. of some particular 

region, district, etc.; local; sectional.” Webster’s New World 

College Dictionary 1206 (4th edition 2006). Applying these 

definitions to the ordinance, the use of the terms “local” and 

“regional” in reference to landfills suggests that the 

distinction lies in the size and location of the areas that the 

landfills serve.

However, assuming without deciding that the two classes 

involved in the present appeal are similarly situated for equal 

protection purposes, the next step in our analysis would be a 

determination of whether “the difference in treatment made by 

the law has a reasonable basis in relation to the purpose and 

subject matter of the legislation.” A-S-P Associates v. 

Raleigh, 298 N.C. 207, 226, 258 S.E.2d 444, 456 (1979) (citation 

omitted).

When a governmental classification does not 

burden the exercise of a fundamental right 
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or operate to the peculiar disadvantage of a 

suspect class, the lower tier of equal 

protection analysis requiring that the 

classification be made upon a rational basis 

must be applied. The “rational basis” 

standard merely requires that the 

governmental classification bear some 

rational relationship to a conceivable 

legitimate interest of government. 

Additionally, in instances in which it is 

appropriate to apply the rational basis 

standard, the governmental act is entitled 

to a presumption of validity. 

Classifications are presumed valid; “under 

the lower tier, rational basis test, the 

party challenging the legislation has a 

tremendous burden in showing that the 

questioned legislation is unconstitutional.”

Huntington Props. v. Currituck County, 153 N.C. App. 218, 230-

31, 569 S.E.2d 695, 704 (2002) (citations omitted). Because the 

ordinance at issue here neither burdens a suspect class, nor 

affects a fundamental right, the ordinance need only to satisfy 

the rational basis level of scrutiny to withstand plaintiff’s 

Equal Protection Clause challenges.

Defendant asserts, and we agree, that the objective of 

protecting the health, safety, and environment of the community 

by mitigating the adverse impacts of high impact uses is a 

conceivable and legitimate government interest. The differences 

in requirements set out in the ordinance between regional and 

local landfills, with regional landfills being subject to more 

stringent regulation based on their projected higher impact to 
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the surrounding area, are clearly rationally related to further 

defendant’s conceivable, legitimate interest.

The ordinance provided that the purpose of its enactment 

was to

define high impact uses, to allow certain 

high impact uses to be approved through 

conditional zoning, to delete special use 

requirements for those uses now identified 

as high impact uses and to delete and add 

text to the table of permitted uses and 

other zoning sections to effect these 

changes.

“High impact uses” are “those which by their nature produce 

objectionable levels of noise, odors, vibrations, fumes, light, 

smoke, traffic and/or other impacts upon the lands adjacent to 

them.” The ordinance categorized regional landfills as a Class 

V high impact use along with “Explosive Manufacturing, Storage 

and Wholesale” and “Mining, Extraction Operations and Quarries 

(including sand, gravel and clay pits)” based on the higher 

impact of “objectionable levels of noise, odors, vibrations, 

fumes, light, smoke, traffic, and/or other impacts” to the 

surrounding area, as opposed to local landfills, which were 

categorized as a Class III high impact use. In addition, the 

affidavit of Kevan Combs, plaintiff’s sole manager, member, and 

registered agent, indicated that plaintiff’s proposed regional 

landfill would bring in more than 100,000 tons of MSW per year.
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Because defendant’s purposes in enacting the ordinance are 

undeniably legitimate governmental purposes and because 

application of the rational basis test to the challenged 

ordinance leads us to the conclusion that defendant’s 

distinction between regional and local landfills furthers that 

purpose, we reject plaintiff’s arguments that the ordinance 

violated the Equal Protection Clauses of the United States and 

North Carolina Constitutions. Accordingly, we hold that the 

trial court did not err by granting summary judgment in favor of 

defendant on this issue.

B. Commerce Clause

Next, plaintiff argues that the trial erred by entering 

summary judgment in favor of defendant on the grounds that the 

ordinance violates the Commerce Clause of the United States 

Constitution. We are not persuaded by plaintiff’s arguments.

The United States Constitution 

expressly grants to Congress the power to 

“regulate [c]ommerce with foreign [n]ations, 

and among the several [s]tates[.] [T]he 

Commerce Clause is more than an affirmative 

grant of power; it has a negative sweep as 

well” in that “‘by its own force’ [it] 

prohibits certain state actions that 

interfere with interstate commerce.” The 

United States Supreme Court has explained 

that the “dormant” Commerce Clause means 

that “[a] State is . . . precluded from 

taking any action which may fairly be deemed 

to have the effect of impeding the free flow 
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of trade between States.”

It is well established that a law is 

discriminatory if it “tax[es] a transaction 

or incident more heavily when it crosses 

state lines than when it occurs entirely 

within the State. “Discrimination” for 

purposes of the dormant Commerce Clause is

"differential treatment of in-state and 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
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Plaintiff contends that the ordinance is facially 

discriminatory. Plaintiff’s argument presumes that regional 

landfills collect MSW from surrounding counties within North 

Carolina as well as southern Virginia, while local landfills 

collect MSW from only Rockingham County. By applying more 

stringent requirements for regional landfills, plaintiff asserts 

that the ordinance discriminates against out-of-state use of 

North Carolina landfill space.

It is well established that 

[a] state tax law is facially discriminatory 

where it (1) explicitly refers to state 

boundaries or uses other terminology that 

inherently indicates the tax is based on the 

in-state or out-of-state location of an 

activity; and (2) applies to entities 

similarly situated for Commerce Clause 

purposes. A facial challenge to a 

legislative act is . . . the most difficult 

challenge to mount successfully. The 

challenger must establish that no set of 

circumstances exists under which [the 

ordinance] would be valid. Moreover, the 

challenger must demonstrate there is an 

“explicit discriminatory design to the 

[ordinance].”

DirecTV, Inc., 178 N.C. App. at 663, 632 S.E.2d at 547 

(citations omitted).

We note that the failure of the ordinance to define the 

terms “local” and “regional” compels us to apply the ordinary 

meanings of those words. Based on the plain language definition 
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of those terms – “local” meaning “1. relating to place 2. of, 

characteristic of, or confined to a particular place or district 

3. not broad; restricted; narrow” and “regional” meaning “1. of 

a whole region not just a locality 2. of some particular region, 

district, etc.; local; sectional” – we hold that although the 

terms make a geographical distinction, they do not explicitly 

refer to state boundaries or inherently indicate that the

applicability of the ordinance is based on the in-state or outof-state location of an activity. See Webster’s New World 

College Dictionary 842 and 1206 (4th edition 2006). Facially, 

this ordinance does not explicitly put greater burdens on MSW 

solely because it is generated from out-of-state because, as 

plaintiff acknowledges, regional landfills accept MSW from 

counties within North Carolina as well as MSW from out-of-state. 

In addition, the category of regional landfills also includes 

privately-owned landfills without distinguishing whether the 

privately-owned landfills accept in-state or out-of-state MSW. 

Furthermore, plaintiff has failed to demonstrate an explicit 

discriminatory design in the ordinance. Based on the foregoing, 

we conclude that the ordinance is not facially discriminatory.

ii. Discrimination in its Practical Effect
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In order to successfully argue that the ordinance is 

discriminatory in its practical effect,

[p]laintiff[] bear[s] the initial burden of 

showing that a[n ordinance] has a 

discriminatory effect on interstate 

commerce. If Plaintiff[] meet[s] that 

burden, [defendant] bears the burden of 

establishing that the challenged [ordinance]

“advances a legitimate local purpose that 

cannot be adequately served by reasonable 

nondiscriminatory alternatives.”

DirecTV, Inc., 178 N.C. App. at 665, 632 S.E.2d at 548

(citations omitted).

Plaintiff, relying on Oregon Waste Systems v. Dep’t of 

Envtl. Quality, 511 U.S. 93, 128 L. Ed. 2d 13 (1994), argues

that the “more numerous and rigorous zoning provisions 

[applicable] to regional landfills” are akin to heightened fees 

assessed on the disposal of out-of-state waste which have been 

held to violate the Commerce Clause. We disagree.

In Oregon Waste, the petitioners, who were solid waste 

disposers, challenged Or. Rev. Stat. § 459.297(1) which imposed 

a “surcharge” on “every person who disposes of solid waste 

generated out-of-state in a disposal site or regional disposal 

site” at $2.25 per ton. Id. at 96, 128 L. Ed. 2d at 19. “In 

conjunction with the out-of-state surcharge, the legislature 

imposed a fee on the in-state disposal of waste generated within 
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Oregon” at $0.85 per ton, “considerably lower than the fee 

imposed on waste from other States.” Id. “Subsequently, the 

legislature conditionally extended the $0.85 per ton fee to 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.” Id. at 100-01, 128 

L. Ed. 2d at 22 (citations and quotation marks omitted). 

Because respondents could not meet this burden, the surcharge 

was held to be in violation of the Commerce Clause.

Plaintiff’s conclusory reliance on Oregon Waste is 

misplaced since we find the facts of the instant case 

distinguishable. First, we have previously held that the 
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ordinance is not facially discriminatory like the surcharge in 

Oregon Waste. Second, whereas it was clear to the Supreme Court 

in Oregon Waste that “the differential charge favor[ed] shippers 

of Oregon waste over their counterparts handling waste generated 

in other States,” here, the ordinance is not explicitly based on 

in-state or out-of-state location of an activity. Id.

Plaintiff also argues that there is a discriminatory 

practical effect because the “restrictions applied to regional 

landfills also make it more difficult for out-of-state waste to 

be disposed of in landfills located in Rockingham County.” As 

examples, plaintiff states that the “increased landscape buffer, 

fencing requirement, and need for dust control would increase 

the capital and operating costs for a regional landfill, which 

would increase the fees for such waste disposal.” Plaintiff 

relies on Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t 

of Nat. Res. et al, 504 U.S. 353, 119 L. Ed. 2d 139 (1992), and 

Exxon Corp v. Governor of Maryland, 437 U.S. 117, 57 L. Ed. 2d 

91 (1978) for his contentions.

In Fort Gratiot, the petitioner challenged a Michigan law 

that “prohibits private landfill operators from accepting solid 

waste that originates outside the county in which their 

facilities are located” unless the acceptance of solid waste not 
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generated in the county was explicitly authorized in the 

approved county solid waste management plan. Fort Gratiot, 504 

U.S. at 355-57, 119 L. Ed. 2d at 144-45. The United States 

Supreme Court provided that “[a] state statute that clearly 

discriminates against interstate commerce is therefore 

unconstitutional ‘unless the discrimination is demonstrably 

justified by a valid factor unrelated to economic 

protectionism.’” Id. at 359, 119 L. Ed. 2d at 147 (citation 

omitted). Because “the statute afford[ed] local waste producers 

complete protection from competition from out-of-state waste 

producers who seek to use local waste disposal areas[,]” and 

because “Michigan [had] not identified any reason, apart from 

its origin, why solid waste coming from outside the county 

should be treated differently from solid waste within the 

county,” the Supreme Court held that the contested Michigan law 

violated the Commerce Clause. Id. at 361, 119 L. Ed. 2d at 148.

The circumstances of the present case, however, are 

distinguishable from those found in Fort Gratiot. Most 

importantly, in Fort Gratiot, there was an outright prohibition 

against in-state disposal of waste that was generated outside of 

the state. In the present case, the ordinance merely imposed 

more stringent requirements on regional landfills that accepted 
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waste from both within the State of North Carolina and out-ofstate. Defendant also identified reasons, apart from the origin

of the waste to be disposed of and unrelated to economic 

protectionism, as to why there should be a distinction between 

local and regional landfills, including achieving the 

ordinance’s objective to “mitigate[e] [the] traditional adverse 

impacts of a highly intensive use on water supplies, airport 

safety, access to public roads, noise, dust, distance from 

residences, and other health and safety concerns.” Because the 

regional landfills are typically larger in size and dispose of 

greater amounts of waste, with this plaintiff accepting more 

than 100,000 tons of MSW per year, they pose a greater risk to

the health, safety, and welfare of the community.

In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 57 L. 

Ed. 2d 91 (1978), a Maryland statute provided that “a producer 

or refiner of petroleum products (1) may not operate any retail

service station within the State, and (2) must extend all 

‘voluntary allowances’ uniformly to all service stations it

supplies.” Id. at 119-20, 57 L. Ed. 2d at 96. The petitioners, 

who were producers of petroleum products, contended that the 

Maryland statute violated the Commerce Clause. The United 

States Supreme Court held that the statute did not violate the 
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Commerce Clause because it did not discriminate against

interstate goods or distinguish between in-state and out-ofstate companies. Because “Maryland’s entire gasoline supply 

flows in interstate commerce and since there are no local 

producers or refiners, such claims of disparate treatment 

between interstate and local commerce would be meritless.” Id.

at 125, 57 L. Ed. 2d at 100.

Despite the holding, plaintiff cites to a footnote found in 

Exxon Corp. in support of the contention that “[if] the effect 

of a state regulation is to cause local goods to constitute a 

larger share, and goods with an out-of-state source to 

constitute a smaller share, of the total sales in the market . . 

. the regulation may have a discriminatory effect on interstate 

commerce.” Id. at 126, 57 L. Ed. 2d at 100 n.16. Here, 

however, the effect of the ordinance is not to reduce the flow 

of out-of-state MSW and increase the share of in-state MSW, but 

rather to place more stringent requirements on landfills that 

are considered a higher class of high impact uses which by their 

nature produce higher levels of noise, odors, vibrations, fumes, 

light, smoke, traffic, etc.

The ordinance does not impact the disposal of MSW more 

heavily based on the fact that it is crossing state lines.
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Moreover, because there is no evidence in the record that 

plaintiff’s proposed landfill would have only accepted out-ofstate MSW, the ordinance affected both in-state and out-of-state 

MSW as applied to this plaintiff.

Based on the aforementioned reasons, we hold that the 

ordinance is not discriminatory in its practical effect in 

violation of the Commerce Clause. Plaintiff’s arguments are 

overruled.

C. Preemption

In its third argument, plaintiff argues that the trial 

court erred by entering summary judgment in favor of defendant 

where the airport radius, floodplain, truck entrance, and 

“catch-22” provisions of the ordinance, applicable to regional 

landfills, are preempted by State and Federal law.

A city ordinance shall be consistent 

with the Constitution and laws of North 

Carolina and of the United States. An 

ordinance is not consistent with State or 

federal law when:

. . . . 

(2) The ordinance makes unlawful an act, 

omission or condition which is 

expressly made lawful by State or 

federal law;

. . . . 

(5) The ordinance purports to regulate a 
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field for which a State or federal 

statute clearly shows a legislative 

intent to provide a complete and 

integrated regulatory scheme to the 

exclusion of local regulation[.]

. . . .

The fact that a State or federal law, 

standing alone, makes a given act, omission, 

or condition unlawful shall not preclude 

city ordinances requiring a higher standard 

of conduct or condition.

N.C. Gen. Stat. § 160A-174(b)(2) and (5) (2013).

First, plaintiff challenges § 7-5.G.4.b (hereinafter 

“floodplain provision”) and subsection c (hereinafter “airport 

radius provision”) of the ordinance, which provides as follows:

4. A landfill shall not be located:

. . . .

b. within the 100 year floodplain.

c. within five statute miles of the 

Rockingham County (Shiloh) Airport.

Specifically, plaintiff argues that the floodplain provision is 

preempted by N.C. Gen. Stat. § 130A-295.6(c)(1) and N.C. Gen. 

Stat. § 130A-294(a)(4)(c)(5).

N.C. Gen. Stat. § 130A-295.6(c)(1) (2013) provides that 

“[a] waste disposal unit of a sanitary landfill shall not be 

constructed within: (1) A 100-year floodplain or land removed 
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from a 100-year floodplain designation. . . .” N.C. Gen. Stat. 

§ 130A-294(a)(4)(c)(5) (2013) provides the following:

(a) The Department [of Environment and 

Natural Resources (“DENR”)] is authorized 

and directed to engage in research, 

conduct investigations and surveys, make 

inspections and establish a state-wide 

solid waste management program. In 

establishing a program, the [DENR] shall 

have authority to (4) a. Develop a permit 

system governing the establishment and 

operation of solid waste management 

facilities. . . . c. The [DENR] shall 

deny an application for a permit for a 

solid waste management facility if the 

[DENR] finds that: 5. The proposed 

facility would be located in a natural 

hazard area, including a floodplain, a 

landslide hazard area, or an area subject 

to storm surge or excessive seismic 

activity, such that the facility will 

present a risk to public health or 

safety.

Plaintiff argues that while N.C. Gen. Stat. § 130A295.6(c)(1) prohibits a landfill from being constructed within 

an 100-year floodplain, other portions of the landfill facility, 

“i.e. portions aside from the waste disposal unit,” could be 

constructed in the 100-year floodplain so long as there is no 

public health or safety risk. In addition, plaintiff argues 

that since it is DENR’s discretion to judge whether a landfill 

may be developed in a floodplain, the floodplain provision 

applies a “blunt, blanket prohibition against any portion of a 
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regional landfill from being built in a 100-year flood plain, 

even if the development is authorized by DENR.” We find 

plaintiff’s arguments meritless.

Pursuant to N.C. Gen. Stat. § 153A-136(a)-(b) (2013), a 

county has the authority to regulate “the storage, collection, 

transportation, use, disposal and other disposition” of solid 

wastes and to regulate such disposal and disposition by 

ordinance that is “consistent with and supplementary to any 

rules” adopted by the DENR. In addition, defendant is not 

prevented “from providing by ordinance or regulation for solid 

waste management standards which are stricter or more extensive

than those imposed by the State solid waste management program 

and rules and orders issued to implement the State program.” 

N.C. Gen. Stat. § 130A-309.09C(c) (2013) (emphasis added). That 

is exactly what the floodplain provision of the challenged 

ordinance does.

Next, plaintiff argues that the airport radius provision is 

preempted by state and federal law. Plaintiff asserts that 

although collectively, these state and federal laws provide a 

specific regulatory scheme addressing the siting of landfills 

near airports, the airport radius provision attempts to prohibit 
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landfills in locations where they are expressly permitted by 

state and federal law.

Plaintiff directs our attention to the following State 

regulations regarding MSW landfills near airports:

(a) A new MSWLF unit shall be located no 

closer than 5,000 feet from any airport 

runway used only by piston-powered 

aircraft and no closer than 10,000 feet 

from any runway used by turbine-powered 

aircraft.

(b) Owners or operators proposing to site a 

new MSWLF unit or lateral expansion 

within a five-mile radius of any 

airport runway used by turbine-powered 

or piston-powered aircraft shall notify 

the affected airport and the Federal 

Aviation Administration prior to 

submitting a permit application to the 

Division.

(c) The permittee of any existing MSWLF

unit or a lateral expansion located 

within 5,000 feet from any airport 

runway used by only piston-powered 

aircraft or within 10,000 feet from any 

runway used by turbine-powered aircraft 

shall demonstrate that the existing 

MSWLF unit does not pose a bird hazard 

to aircraft. The owner or operator 

shall place the demonstration in the 

operating record and notify the 

Division that it has been placed in the 

operating record.

15A N.C. Admin. Code 13B.1622(1)(a) – (c) (2012). In addition 

40 C.F.R. § 258.10(a) (2013) states that 

Owners or operators of new MSWLF units, 

existing MSWLF units, and lateral expansions 

that are located within 10,000 feet (3,048 
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meters) of any airport runway end used by 

turbojet aircraft or within 5,000 feet 

(1,524 meters) of any airport runway end 

used by only piston-type aircraft must 

demonstrate that the units are designed and 

operated so that the MSWLF unit does not 

pose a bird hazard to aircraft.

Our review indicates that defendant is correct in its 

argument that there is “nothing in the language of these State 

or federal regulations expressly or impliedly demonstrat[ing] 

any intent to preclude more stringent regulations on the siting 

of MSW landfills near airports.” Thus, we reject plaintiff’s 

assertions.

Next, plaintiff challenges the following provision of the 

ordinance applicable to regional landfills as being preempted by 

state law:

a. The Truck entrance driveway shall be 

located on or within two thousand (2000) 

feet of a major arterial highway.

(hereinafter “truck entrance provision”). Plaintiff argues that 

the county does not have authority to regulate vehicular traffic 

on a State highway pursuant to N.C. Gen. Stat. § 153A-121(b) 

(2013) which provides as follows:

This section does not authorize a county to 

regulate or control vehicular or pedestrian 

traffic on a street or highway under the 

control of the Board of Transportation, nor 

to regulate or control any right-of-way or 

right-of-passage belonging to a public 
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utility, electric or telephone membership 

corporation, or public agency of the State. 

In addition, no county ordinance may 

regulate or control a highway right-of-way 

in a manner inconsistent with State law or 

an ordinance of the Board of Transportation.

We find that plaintiff’s reading of the truck entrance 

provision rests upon a misapprehension. The truck entrance 

requirement does not regulate any vehicular traffic on a street 

or highway, but rather regulates the location of a driveway 

placed on a landfill. Therefore, we reject plaintiff’s 

argument.

Lastly, plaintiff challenges the following provision of the 

ordinance as being preempted by State law:

3. An application for development approval 

shall include all the site plans and 

information submitted to the Department 

of Environment and Natural Resources for 

the permitting of a solid waste 

management facility.

Plaintiff argues that this provision is preempted by N.C. Gen. 

Stat. § 13A-294(b1)(4) and 15A NCAC Admin. Code 13B.1618 which 

sets forth requirements for an applicant’s permit for a MSW 

landfill. Further, plaintiff alleges that this provision places 

a landfill developer in a “catch-22” position because while 

state law prohibits the developer from submitting the 

application for a permit to DENR until the developer has 
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obtained local zoning approval, the ordinance prohibits local 

zoning approval for the landfill developer until after it has 

submitted the application for a permit to DENR. In other words, 

plaintiff argues that the ordinance precludes landfill 

developers from complying with both State and local law by 

requiring a developer to submit its permit application to DENR

at a time when DENR prohibits such submission.

We find plaintiff’s arguments to be based on a misreading 

of the challenged ordinance. The challenged provision does not 

require the developer to submit an application to the DENR but 

requires the developer to submit the “site plans and 

information” that must be submitted to the DENR for the 

permitting of a MSW landfill. Accordingly, we reject 

plaintiff’s argument as it has no merit.

IV. Conclusion

Based on the reasons stated above, we reject plaintiff’s 

argument that the ordinance violates the Equal Protection and 

Commerce Clauses of the North Carolina and United States 

Constitutions and also reject plaintiff’s arguments that certain 

provisions of the ordinance are preempted by state and federal 

law. The judgment of the trial court is affirmed.

Affirmed.
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Chief Judge MARTIN and Judge ERVIN concur.