Summary of a Recent
Judicial Development in
Urban Encroachment

County Ordinances Governing Hog
Farms Invalidated

Randal Busby
National AgLaw Center Research Assistant

An individual and an agribusiness association brought an action challenging two county ordinances, as well as rules issued by the county board of health, that regulated the operation, construction, and expansion of swine farms. Craig v. County of Chatham, 565 S.E.2d 172 (N.C. 2002). The Supreme Court of North Carolina held first that the county's swine ordinance and enforcement rules were preempted by state law because the county board of health did not demonstrate that the more stringent regulations were required to protect public health and second that the county's amended zoning ordinance for swine farms was invalid because it stemmed from the preempted swine ordinance. See id. at 180-81.

On April 6, 1998, the Chatham County Board of Commissioners enacted the Chatham County Ordinance Regulating Swine Farms (the "Swine Ordinance") and An Ordinance to Amend the Chatham County Zoning Ordinance to Provide for Regulation of Swine Farms (the "Zoning Ordinance"). See id. at 174. The Swine Ordinance regulated farms that were raising 250 or more swine and did so through a permitting system that affected existing farms, as well as those that would expand in the future. See id. The Zoning Ordinance applied only to swine farms that were "'served by an animal waste system having a design capacity of 600,000 pounds steady state live weight or greater'" and restricted swine farms to zoned areas in the county that were either "Light Industrial" or "Heavy Industrial." See id. The Zoning Ordinance also required swine farms to obtain a conditional use permit, with issuance contingent upon an applicant demonstrating that it had complied with the Swine Ordinance. See id.

On April 28, 1998, the Chatham County Board of Health enacted the Chatham County Board of Health Swine Farm Operation Rules ("Health Board Rules"). See id. The Health Board Rules applied to all swine farms that were raising "'250 or more animals of the porcine species'" without regard to the design capacity of the farm's animal waste management systems. See id. The Health Board Rules were basically the same as the Swine Ordinance. See id.

On September 2, 1998, plaintiffs Timothy H. Craig and the Chatham County Agribusiness Council ("CCAC") filed a complaint against defendants County of Chatham, the Chatham County Health Department, and the Chatham County Board of Health seeking a declaration that the Health Board Rules, the Zoning Ordinance, and the Swine Ordinance were invalid. See id. at 175. The trial court granted a motion for summary judgment in favor of the County. See id. The plaintiffs appealed the trial court's decision to the North Carolina Court of Appeals. See id.

The appeals court affirmed in part and reversed in part the trial court's decision. See id. It ruled that the Health Board Rules and the Swine Ordinance were preempted by state law and that the trial court was correct in granting summary judgment to the County with respect to the Zoning Ordinance. See id. Both parties appealed to the North Carolina Supreme Court. See id.

The North Carolina Supreme Court stated that an issue of preemption arises "when it is shown that the legislature intended to implement statewide regulation in the area, to the exclusion of local regulation." Id. (citation omitted). It further explained that the "law of preemption is grounded in the need to avoid dual regulation." Id. (citation omitted).

The court noted that under North Carolina law "(a) [a] county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens." Id. at 175-76. (quoting N.C. Gen. Stat. § 153A-121(a)). It also explained that counties are limited when a state or federal statute specifically demonstrates a legislative intent for exclusion of local regulation. See id. The court further explained that "'[a] local board of health is limited in its rule-making powers in that the regulation must be 'related to the promotion or protection of health.'" Id. (quoting City of Roanoke Rapids v. Peedin, 478 S.E.2d 528, 533 (N.C. Ct. App. 1996)).

The County argued that when the General Assembly intended to preempt a certain field, it did so through an express statement of intent and that without such an expression, the court would be imposing its own judgment by supposing what the General Assembly had intended. See id. The court rejected this argument, stating that the "General Assembly can create a regulatory scheme which, though not expressly exclusory [sic], is so complete in covering the field that it is clear any regulation on the county level would be contrary to the statewide regulatory purpose." Id.

The court reasoned that "[i]f each of North Carolina's one hundred counties were free to create its own particularized regulations for swine farms, the overall balance which the General Assembly [had] reached within a uniform plan for the entire state [would] be lost." Id. at 177 (citing N.C. Gen. Stat. § 143-215.10A) ("It is the intention of the State to promote a cooperative and coordinated approach to animal waste management among the agencies of the State."). The court concluded that it was clear that the legislature's intent was for the state to retain the exclusive regulation of animal waste management. See id.

Next, the court reviewed whether the Health Board Rules were valid, even though they were more stringent than those at the state level. See id. at 179. The court stated that N.C. Gen. Stat. § 130A-39 specifically granted local boards of health the power to enact rules which were more rigid when they were "'required to protect public health.'" Id. (quoting N.C. Gen. Stat. 130A-39(b)). It further stated that "county commissioners and local boards of health have no authority under the provisions of N.C. Gen. Stat. § 130A-39(b) to superimpose additional regulations without specific reasons clearly applicable to a local health need." Id. at 180. It stated that the County Health Board had not provided any rationale for making the restrictions more rigorous in Chatham County than those applicable to and followed by the rest of the states. See id. The court concluded that "Chatham County enacted its Health Board Rules in an effort to place more stringent regulations on swine farmers and has done so without any showing that such regulations are 'required to protect the public health,' as specified by . . . § 130A-39(b). This we hold is impermissible." Id. at 180.

The court also addressed whether the Court of Appeals had erred in upholding the amended Zoning Ordinance. See id. at 181. The court stated that the Zoning Ordinance was not per se invalid, but as written it could not stand. See id. It held that

the requirement in the Zoning Ordinance that the applicant must have a . . . [conditional use permit] obtained through compliance with the Swine Ordinance proves to be fatal. The Zoning Ordinance required compliance with only a portion of the Swine Ordinance; however, that specific portion of the Swine Ordinance requires compliance with all other sections of the Swine Ordinance, to the extent the other sections are applicable to swine farms. As we noted above, the Swine Ordinance cannot stand because it seeks to impose regulations on swine farmers where the State has shown an intent to cover the field of swine farm regulation. The Zoning Ordinance's attempt to incorporate the Swine Ordinance prevents us from sustaining its validity. Accordingly, we conclude that the Zoning Ordinance's incorporation of the Swine Ordinance invalidates the Zoning Ordinance.

Id.

The case was decided on June 28, 2002; this summary was posted Dec. 23, 2003.