                                  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
                                          -2-
    On     13    March    2012,    defendant    Rockingham   County,   by     and

through the Rockingham County Board of Commissioners, adopted an

ordinance entitled “An Ordinance of the County of Rockingham,

State     of    North    Carolina,       Adopting   Zoning   Changes   to    the

Rockingham       County        Unified     Development   Ordinance.”        (“the

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

               define high impact uses, to allow certain
               high impact uses to be approved through
               conditional zoning, to delete special use
               requirements for those uses now identified
               as high impact uses and to delete and add
               text to the table of permitted uses and
               other   zoning  sections to  effect  these
               changes.

    “High impact uses” were defined as:

               those   which   by   their  nature   produce
               objectionable   levels   of  noise,   odors,
               vibrations, fumes, light, smoke, traffic
               and/or other impacts upon the lands adjacent
               to them.

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

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

the surrounding area[:]”

CLASSIFICATION           USE

Class I                    1. Airstrips
                           2. Concrete suppliers (ready-mix)
Class II                   1. Chemical manufacturing and storage
                           2. Cement Manufacturers
                           3. Sawmills
                           4. Bulk Storage Facility of Flammables-
                              Propane, Gasoline, Fuel Oil and Natural
                                         -3-
                              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-
                                              -4-
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
                                           -5-
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).
                                            -6-
               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
                                       -7-
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).
                                            -8-
            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
                                                -9-
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.”
                                             -10-
       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.
                                          -11-
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
                                    -12-
           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
                                       -13-
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.
                                         -14-
    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
                              -15-
         of trade between States.”

              It is well established that a law is
         discriminatory if it “tax[es] a transaction
         or incident more heavily when it crosses
         state lines than when it occurs entirely
         within the State.       “Discrimination” for
         purposes of the dormant Commerce Clause is
         "differential treatment of in-state and out-
         of-state economic interests that benefits
         the former and burdens the latter.”

DirecTV, Inc. v. State of North Carolina, 178 N.C. App. 659,

661-62, 632 S.E.2d 543, 546 (2006) (citations omitted).

              Commerce Clause claims are subject to a
         two-tiered analysis.     The first tier, a
         virtually per se rule of invalidity, applies
         where a state law discriminates facially, in
         its practical effect, or in its purpose.
         The second tier applies if a statute
         regulates evenhandedly and only indirectly
         affects interstate commerce.    In that case,
         the law is valid unless the burdens on
         commerce are clearly excessive in relation
         to the putative local benefits.

Waste Indus. USA, Inc. v. State, __ N.C. App. __, __, 725 S.E.2d

875, 881 (2012) (citations omitted).    “In either situation the

critical consideration is the overall effect of the statute on

both local and interstate activity.”    North Carolina Ass’n of

Elec. Tax Filers v. Graham, 333 N.C. 555, 565-66, 429 S.E.2d

544, 550 (1993) (citation omitted).

                 i.     Facial Discrimination
                                          -16-
       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
                                       -17-
of those terms – “local” meaning “1. relating to place 2. of,

characteristic of, or confined to a particular place or district

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

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

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

terms make a geographical distinction, they do not explicitly

refer   to    state     boundaries    or   inherently      indicate    that    the

applicability of the ordinance is based on the in-state or out-

of-state     location    of   an   activity.        See   Webster’s   New     World

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

this ordinance does not explicitly put greater burdens on MSW

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

plaintiff     acknowledges,        regional    landfills     accept    MSW    from

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

In addition, the category of regional landfills also includes

privately-owned       landfills      without   distinguishing     whether      the

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

Furthermore,    plaintiff      has    failed   to   demonstrate   an    explicit

discriminatory design in the ordinance.              Based on the foregoing,

we conclude that the ordinance is not facially discriminatory.

              ii. Discrimination in its Practical Effect
                                           -18-
       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
                                               -19-
Oregon”    at    $0.85       per    ton,   “considerably            lower    than    the    fee

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

legislature conditionally extended the $0.85 per ton fee to out-

of-state waste, in addition to the $2.25 per ton surcharge . . .

with    the     proviso       that    if       the     surcharge      survived      judicial

challenge, the $0.85 per ton fee would again be limited to in-

state waste.”         Id.      The United States Supreme Court held that

the statute was facially discriminatory because the surcharge

was based upon a geographic distinction, discriminating against

interstate commerce.               Id. at 100, 128 L. Ed. 2d at 22.                        Since

the Oregon surcharge was held to be facially discriminatory, the

Oregon Waste Court held that the “per se rule of invalidity” was

the proper legal standard.                 “As a result, the surcharge must be

invalidated unless respondents can sho[w] that it advances a

legitimate local purpose that cannot be adequately served by

reasonable nondiscriminatory alternatives.”                          Id. at 100-01, 128

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

Because respondents could not meet this burden, the surcharge

was held to be in violation of the Commerce Clause.

       Plaintiff’s        conclusory           reliance        on     Oregon       Waste     is

misplaced       since     we       find    the        facts    of    the     instant       case

distinguishable.             First,       we    have     previously         held    that    the
                                  -20-
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
                                               -21-
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
                                        -22-
waste from both within the State of North Carolina and out-of-

state.     Defendant also identified reasons, apart from the origin

of   the   waste    to    be   disposed    of    and       unrelated     to   economic

protectionism, as to why there should be a distinction between

local      and     regional       landfills,         including       achieving      the

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

impacts of a highly intensive use on water supplies, airport

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

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

regional landfills are typically larger in size and dispose of

greater amounts of waste, with this plaintiff accepting more

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

the health, safety, and welfare of the community.

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

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

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

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

‘voluntary       allowances’      uniformly     to    all    service     stations    it

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

who were producers of petroleum products, contended that the

Maryland    statute      violated    the   Commerce         Clause.       The   United

States Supreme Court held that the statute did not violate the
                                               -23-
Commerce      Clause       because       it      did        not     discriminate       against

interstate     goods      or     distinguish          between      in-state     and    out-of-

state    companies.            Because    “Maryland’s             entire   gasoline       supply

flows    in   interstate         commerce        and       since    there     are    no   local

producers     or    refiners,          such      claims       of     disparate       treatment

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

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

    Despite the holding, plaintiff cites to a footnote found in

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

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

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

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

. the regulation may have a discriminatory effect on interstate

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

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

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

rather to place more stringent requirements on landfills that

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

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

light, smoke, traffic, etc.

    The ordinance              does not impact the disposal of                        MSW more

heavily    based    on     the    fact        that    it    is     crossing    state      lines.
                                          -24-
Moreover,      because      there    is   no   evidence     in    the    record      that

plaintiff’s proposed landfill would have only accepted out-of-

state MSW, the ordinance affected both in-state and out-of-state

MSW as applied to this plaintiff.

    Based       on    the    aforementioned       reasons,       we   hold    that    the

ordinance      is    not    discriminatory       in   its   practical        effect    in

violation of the Commerce Clause.                     Plaintiff’s arguments are

overruled.

                                    C.    Preemption

    In    its       third   argument,     plaintiff     argues        that   the   trial

court erred by entering summary judgment in favor of defendant

where    the    airport      radius,      floodplain,       truck      entrance,      and

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

landfills, are preempted by State and Federal law.

                 A city ordinance shall be consistent
            with the Constitution and laws of North
            Carolina and of the United States.     An
            ordinance is not consistent with State or
            federal law when:

                      . . . .

                     (2) The ordinance makes unlawful an act,
                         omission   or  condition   which  is
                         expressly made lawful by State or
                         federal law;

                     . . . .

                     (5) The ordinance purports to regulate a
                                     -25-
                       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
                                    -26-
from a 100-year floodplain designation. . . .”              N.C. Gen. Stat.

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

            (a) The   Department    [of  Environment   and
                Natural Resources (“DENR”)] is authorized
                and directed to engage in research,
                conduct investigations and surveys, make
                inspections and establish a state-wide
                solid waste management program.         In
                establishing a program, the [DENR] shall
                have authority to (4) a. Develop a permit
                system governing the establishment and
                operation   of   solid  waste   management
                facilities. . . .     c. The [DENR] shall
                deny an application for a permit for a
                solid waste management facility if the
                [DENR] finds that:       5. The proposed
                facility would be located in a natural
                hazard area, including a floodplain, a
                landslide hazard area, or an area subject
                to storm surge or excessive seismic
                activity, such that the facility will
                present a risk to public health or
                safety.

      Plaintiff   argues    that    while     N.C.   Gen.   Stat.   §   130A-

295.6(c)(1) prohibits a landfill from being constructed within

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

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

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

public health or safety risk.          In addition, plaintiff argues

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

may   be   developed   in   a   floodplain,    the   floodplain     provision

applies a “blunt, blanket prohibition against any portion of a
                                             -27-
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
                                -28-
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
                                -29-
          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
                                           -30-
             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
                                           -31-
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.
                         -32-
Chief Judge MARTIN and Judge ERVIN concur.
