Granville Farms v. County of Granville, COA04-234.

• Decision Date: 03 May 2005
• Docket Number: No. COA04-234.,COA04-234.
• Parties: GRANVILLE FARMS, INC., Plaintiff, v. COUNTY OF GRANVILLE, Defendant.
• Court: North Carolina Supreme Court

612 S.E.2d 156

GRANVILLE FARMS, INC., Plaintiff, v. COUNTY OF GRANVILLE, Defendant.

No. COA04-234.

Court of Appeals of North Carolina.

May 3, 2005.

Appeal by defendant from judgment entered 17 December 2003 by Judge Kenneth C. Titus in Granville County Superior Court. Heard in the Court of Appeals 13 October 2004.

Parker, Poe, Adams & Bernstein, LLP, by John J. Butler, Raleigh, for plaintiff-appellee.

Hopper & Hicks, LLP, by William L. Hopper and James C. Wrenn, Jr., Oxford, for defendant-appellant.

North Carolina Association of County Commissioners, by General Counsel James B. Blackburn, III, amicus curiae.

STEELMAN, Judge.

Defendant, Granville County (County), appeals the trial court's entry of summary judgment in favor of plaintiff, Granville Farms, Inc. For the reasons discussed herein, we affirm the trial court.

Plaintiff, Granville Farms, is a farming and biosolids application company located in Granville County, North Carolina. It applies biosolids to land. Biosolids, also known as residuals, consist of the sludge generated from the treatment of domestic sewage in wastewater treatment plants. The predominant use of biosolids is land application to farms for fertilizer. At the time plaintiff instituted this lawsuit, it was applying biosolids to lands in Granville County including, but not limited to its own lands, pursuant to a permit issued by the North Carolina Department of Environment and Health (DENR). On 6 October 2003, the County adopted the Granville County Sludge and Septage Ordinance (ordinance). This ordinance imposed an additional layer of regulation, which required those in the business of land application of residuals to: (1) obtain a permit from the county in addition to the state permit; (2) pay substantial permitting fees; (3) record a warning in the chain of title of the property that biosolids had been applied to the land; (4) keep more extensive records than required by state regulations; and (5) provide additional and more detailed notice of the application of biosolids to local authorities. On 7 November 2003, plaintiff filed this action seeking to have the ordinance declared unlawful. Although the complaint contained eight separate claims for relief, plaintiff moved for summary judgment only as to its first claim, which alleged the ordinance was preempted by the existing scheme of comprehensive regulation by the State of North Carolina. The County also filed a motion for summary judgment relating only to plaintiff's first claim. The trial court granted plaintiff's motion for summary judgment, declaring the ordinance invalid and enjoining the County from enforcing it against plaintiff. Granville County appeals.

Summary judgment is proper when the pleadings, considered together with depositions, answers to interrogatories, admissions on file, and supporting affidavits show there to be no genuine issue regarding any material fact and that a party is entitled to judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56(c) (2004). The trial court may grant a party's motion for summary judgment in cases requiring the interpretation of ordinances and statutes. See Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002). As with all matters involving the granting or denial of summary judgment, an appellate court reviews the trial court's decision de novo, with the evidence to be viewed in the light most favorable to the non-movant. Stafford v. County of Bladen, 163 N.C.App. 149, 151, 592 S.E.2d 711, 713 (2004).

The sole issue before this Court is whether the ordinance was preempted because it purports to regulate a field for which a state or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation. Accord Craig, 356 N.C. at 45, 565 S.E.2d at 176.

We first review the state rules, regulations, and permit requirements pertaining to the land application of biosolids. Before a person or entity can apply sludge resulting from the operation of a treatment works to land, it must obtain a permit issued by the state. N.C. Gen.Stat. § 143-215.1(a)(9) (2004). The state agency responsible for issuing the permit and promulgating the rules for such application is the North Carolina Department of Environment and Natural Resources (DENR). The General Assembly created DENR to "administer a program of water and air pollution control and water resource management." N.C. Gen.Stat. § 143-211(c) (2004). By this statute, the General Assembly vested DENR with the authority "to administer a complete program of water and air conservation, pollution abatement and control and to achieve a coordinated effort of pollution abatement and control with other jurisdictions." Id. The legislature also gave the North Carolina Environmental Management Commission (EMC) the authority to adopt rules necessary to fulfill the purposes of Article 21, which governs water and air resources. See N.C. Gen.Stat. § 143-215.3(a)(1) (2004). The state regulations involved in this case were not imposed directly by statute, but were promulgated by two state agencies, DENR and EMC. However, it is not necessary that state regulations preempting a county ordinance be imposed directly by the legislature in the form of a statute as long as the government agency imposing the regulations is authorized to do so. See Greene v. City of Winston-Salem, 287 N.C. 66, 75, 213 S.E.2d 231, 237 (1975). Nor is it required that this authority be vested solely in one agency. Id.

Counties enjoy the power and authority to enact ordinances and by-laws relating to the "health, safety, or welfare of its citizens," N.C. Gen.Stat. § 153A-121 (2004). This power is limited where the ordinance is inconsistent with state or federal law. N.C. Gen.Stat. § 160A-174(b) (2004).¹ Although this statute is found in the statutes dealing with cities and towns, its provisions are also applicable to counties. Craig, 356 N.C. at 45, 565 S.E.2d at 176. An ordinance is deemed inconsistent where it "purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation[.]" N.C. Gen.Stat. § 160A-174(b)(5). If local ordinances are deemed inconsistent or conflict with state or federal laws, the ordinance will be deemed invalid. Craig, 356 N.C. at 44, 565 S.E.2d at 175. Ordinances and the laws of the state need to be in accord to avoid confusion among the state's citizens and to avoid dual regulation. Id.

In determining whether the General Assembly intended to provide statewide regulation of the land application of biosolids to the exclusion of local regulation, this Court must ascertain if the General Assembly "has shown a clear legislative intent to provide a `complete and integrated regulatory scheme.'" Id. at 45, 565 S.E.2d at 176 (referring to N.C. Gen.Stat. § 160A-174(b)(5)).

Plaintiff's permit states that its activities are regulated pursuant to "the provisions of Article 21 of Chapter 143" of the General Statutes. The statement of purpose in Article 21 reads as follows:

It is the purpose of this Article to create an agency which shall administer a program of water and air pollution control and water resource management. It is the intent of the General Assembly, ... to confer such authority ... as shall be necessary to administer a complete program of water and air conservation, pollution abatement and control and to achieve a coordinated effort of pollution abatement and control with other jurisdictions.

N.C. Gen.Stat. § 143-211(c). This statement of intent to provide a "complete program" strongly indicates the legislature intended to create a "complete and comprehensive statute." See e.g., Craig, 356 N.C. at 48-9, 565 S.E.2d at 178 (finding statement that legislature intended to "promote a cooperative and coordinated approach to animal waste management among the agencies of the State" showed "an intention to cover the entire field of swine farm regulation in North Carolina"); State v. Williams, 283 N.C. 550, 553-54, 196 S.E.2d 756, 758-59 (1973) (finding the statement of purpose "to establish a uniform system of control" exhibited the legislature's intent to preempt local regulation).

If each county were free to create its own particularized regulations regarding land application of biosolids, the coordinated effort which the General Assembly referred to in the statute would fail. There can be no coordinated program if there exists a patchwork of local regulations governing the application of biosolids. The County's ordinance imposes a number of additional requirements upon an entity seeking to apply biosolids to farm lands. The state statute caps the annual fee for a permit to dispose of biosolids on 300 or more acres of land at $1,090.00. N.C. Gen.Stat. § 143-215.3D(a)(6) (2004). The ordinance requires an additional permit fee of $10.00 per acre. Plaintiff applies biosolids to 2774 acres in Granville County, which includes 515 acres of its own land. In order for plaintiff to obtain a county permit it would have to pay a total of $27,740.00 each year. In addition, the state regulations require the permit holder to give general notice to the local governmental agency (i.e. county manager, city manager, etc.) at least twenty-four hours prior to the application to any new land application site, and such notice need not be in writing. However, the County's ordinance requires the permittee to give written notice within four hours after any application of biosolids to any land in Granville County. The County's notice requirement also requires that the permit holder's written notice include the following information, which the state does not:

(a) The type of sludge or septage applied.

(b) The source of the sludge or septage land applied, including the address of the generator and the name and telephone number of the contact person for the generator.

(c)...