July 14, 1993
Sherri Evans-Stanton Counsel to the House Environment Committee North Carolina General Assembly Legislative Services Office, Legislative Office Building 300 North Salisbury Street Raleigh, North Carolina 27603-5925
Re: Request for Advisory Opinion, G.S. 130A-294(a)(4 proposed for amendment by S.B.1003
Dear Ms. Stanton:
Given the short time frame, our office has not had the opportunity fully to research and render a complete opinion on the questions of constitutionality raised regarding the G.S. 130A-294(a)(4) provision for local government approval for sanitary landfills proposed to be located within their jurisdictions or extra-territorial jurisdictions. Three constitutional issues are cited in the materials you forwarded with your request for advice: that the statute represents an unconstitutional delegation of legislative power, that the statute violates the due process and equal protection clauses of the State and United States constitutions, and that the statute may be applied in a manner violative of the commerce clause of the U.S. Constitution to exclude any landfill proposing to receive waste generated in other states. The first two issues are related, the inquiry being whether the statute is a valid exercise of the police power. The statute on its face does not violate the commerce clause. Any challenge on commerce clause grounds would have to be based upon the facts of a particular application of the statute.
An enactment by the Congress or the General Assembly is presumed constitutional; courts will not declare a statute unconstitutional unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable grounds. Strong’s North Carolina Index 4th, Volume 5, Constitutional Law, Section 45, and cases cited therein. The G.S. 130A294 (a)(4) delegation of legislative power is to the governing body of a unit of local government, which elected body is constitutionally authorized to exercise the police power within its jurisdiction, by ordinance or by resolution. The purpose of the statute appears to be to address at the local level local issues regarding a proposed sanitary landfill after full disclosure and public discussion of the proposal. Many local issues are not considered, nor are some of them capable of consideration, during the State permitting process. Presumably, the local governing body will exercise this delegated police power in a constitutionally valid manner. Implicit in the statute is that the local governing body will adopt standards for consideration of landfill proposals submitted for local government approval, will consider the proposals under existing ordinances and rules of the county board of health, or a combination of both. The General Statutes are replete with both general and specific delegation to local governments of authority to exercise police power for the health, safety or welfare of its citizens. Specific delegations of solid waste regulatory power include G.S. Sections 153A-132.1 and 136, 160A-319, and 130A-39, authorizing a local board of health to adopt a more stringent rule in an area regulated by the Commission for Health Services or the Environmental Management Commission, where in the opinion of the local board, a more stringent rule is required to protect the public health.
Geo-Tech Reclamation Industries, Inc. v. Hamrick, 886 F.2d 662 (4th Cir. 1989), is cited in the discussion of police power exercise in the article by William A. Campbell attached to Mr. Musselwhite’s memorandum. At issue in Geo-Tech was a West Virginia statute which stated that the Director of the Department of Natural Resources may deny a permit for a solid waste disposal facility if the facility "is significantly adverse to the public sentiment of the area where the solid waste facility is or will be located". The Director had terminated the Geo-Tech landfill permit application process by letter stating that the Department had received approximately 250 letters from individuals, businesses and groups in the area of the proposed landfill all "vehemently opposed" to the project, and a petition in which "similar feelings were expressed by many more hundreds of local citizens". The Director later testified that "significant" as used in the statute required that adverse sentiment be expressed by a sufficient number of local residents and that opposition from just a handful of residents would not suffice. The Fourth Circuit struck down the statute as bearing no substantial or rational relationship to the state’s interest in promoting the general public welfare. Land use regulations "must find their justification in some aspect of the police power, asserted for the public welfare". 886 F.2d at 665, citing Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 224, 118, 71 L.Ed. 303 (1926). The court did not question the state’s power to impose a broad array of restrictions on the operation of a landfill, "which was recognized as a nuisance even by the early common law." The court agreed that the concept of public welfare is broad and inclusive, and may encompass legislation to protect communities against not only such tangible effects as increased traffic, noise, odors, and health concerns, but also against the possibility of decreased community pride and fracturing of community spirit that may accompany large waste disposal operations. 886 F.2d at pp. 665-666. The court was unable to find any statutory standard or administrative policy by which the Director was to measure whether adverse community sentiment is "significant", as opposed to self-interest, bias or ignorance, and thus could find no substantial or rational relationship between the statute’s goals and its means.
Although we could not predict what a court would do, any risk that a court could find that the statute on its face or in its application lacked adequate guiding standards to accomplish its legitimate public purposes may be minimized by the addition of explicit direction that local governments adopt standards for review of sanitary landfill proposals. Alternatively, the statute itself may delineate a list of considerations for local government approval, while reserving for each governing body the option to add areas of specific local concern.
Mr. Musselwhite’s proposal to replace the local government approval statute with certification of consistency with any zoning ordinance applicable to the proposed landfill location would not achieve the objectives of the local government approval process because the solid waste permitting rules have always required certification of compliance with any applicable zoning provisions.
For the reasons discussed above, we conclude that G.S. §130A-294(a)(4), as proposed for amendment by S.B. 1003, would not be unconstitutional on its face. The constitutionality of the statute as applied by a local governing board in reviewing a permit proposal would turn on the specific conditions and standards used by the governing board in making its decision on the proposal.
Daniel C. Oakley Special Deputy Attorney General
Nancy E. Scott Assistant Attorney General