Davidson County Broadcasting, Inc., and Richard and Dorcas Parker,
Petitioners, v. Rowan County Board of Commissioners, Respondent,
Mt. Ulla Historical Preservation Society, and Interested Citizens,
Prospective-Alternative Cross Petitioner
No. COA06-1444
FILED: 18 September 2007
1. Zoning_radio tower_local ordinances--not preempted by federal aviation law
The trial court judge properly concluded that Rowan County's zoning ordinances are not
preempted by federal aviation law in an action involving a conditional use permit for a radio
broadcast tower. The Rowan County Board of Adjustment's decision was an exercise of precisely
the type of local control over private use airports that the FAA specifically endorsed and encouraged.
2. Zoning_radio tower_safety hazard_whole record test_evidence sufficient
There was substantial evidence to support the Rowan County Board of Adjustment's decision
that a radio broadcast tower would be a safety hazard to a private use airport, although petitioners
presented evidence from which the opposite could be found, and the superior court correctly upheld
the Board.
Appeal from Petitioners Davidson County Broadcasting, Inc.,
and Richard and Dorcas Parker from Order entered 7 June 2006
by Judge W. David Lee in Superior Court, Rowan County. Heard in
the Court of Appeals 10 May 2007.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by
Derek J. Allen for Petitioner-Appellants.
Kluttz, Reamer, Hayes, Randolph, Adkins & Carter, LLP by
Richard R. Reamer for Cross-Petitioner Appellee.
Parker, Poe, Adams & Bernstein, LLP by Anthony Fox for
Respondent-Appellee.
STROUD, Judge.
Petitioners Davidson County Broadcasting, Inc., and Richard
and Dorcas Parker instituted this action against respondent Rowan
County Board of Commissioners to review respondent's denial of
petitioners' application for a conditional use permit to construct
a 1,350 foot radio broadcast tower on Richard and Dorcas Parkers'property in Rowan County, North Carolina. In this appeal, we must
consider both whether Rowan County is precluded from regulating air
safety under the doctrine of federal preemption and whether the
superior court correctly concluded that there was competent,
material, and substantial evidence to support respondent's decision
to deny petitioners' conditional use permit. For the following
reasons, we hold that federal law does not preempt Rowan County's
regulations in this situation and we affirm the superior court's
order upholding the decision of the Rowan County Board of
Commissioners.
I. Background
On 18 January 2005, petitioner Davidson County Broadcasting,
Inc. (“DCBI”) applied for a conditional use permit (“CUP”) to
construct a 1,350 foot radio tower (“tower”) on property owned by
petitioners Richard and Dorcas Parker (“Parkers”). Respondent
Rowan County Board of Commissioners (“Board”) conducted a public
hearing to consider the application on 13 October, 24 October, and
7 November 2005. The Board voted to deny the CUP on 7 November
2005 and adopted a written decision denying the CUP on 21 November
2005.
DCBI and the Parkers filed a petition for writ of certiorari
with the Superior Court, Rowan County on 9 December 2005, seeking
review under N.C. Gen. Stat. § 153A-340(c) (2005) of the Board's
denial of the CUP. The petition was allowed on the same date. On
21 December 2005, Mt. Ulla Historical Preservation Society and
Interested Citizens (“Mt. Ulla”) filed a cross alternative petitionfor certiorari and motion to intervene before the superior court.
The court allowed the petition on the same date.
(See footnote 1)
The petition for
certiorari was heard in Superior Court, Rowan County, before the
Honorable Judge W. David Lee, on 13 March 2006. The superior court
entered its order on 7 June 2006,
nunc pro tunc to 13 March 2006,
affirming the Board's decision to deny the CUP. Petitioners appeal
from this order.
The Rowan County zoning ordinance requires that an applicant
for a CUP demonstrate that
(1) Adequate transportation access to the site
exists;
(2) The use will not significantly detract
from the character of the surrounding area;
(3) Hazardous safety conditions will not
result;
(4) The use will not generate significant
noise, odor, glare, or dust;
(5) Excessive traffic or parking problems will
not result; and
(6) The use will not create significant visual
impacts for adjoining properties or passersby.
(Ord. of 1-19-98, § IV)
Rowan County, N.C., Code § 21-59 (1991). Rowan County Code § 21-60
(3) contains additional specific requirements for communications
and telecommunications towers. Rowan County, N.C., Code § 21-60
(1991). The Board's denial of the CUP was based upon Rowan CountyCode § 21-59(3), as the decision found that “hazardous safety
conditions
will result from the approval of the use.” (emphasis in
original).
The Board further found as follows
(19) Marshall Sanderson with the Division of
Aviation of the North Carolina Department of
Transportation testified on behalf of the
NCDOT Aviation Division and asked that the
construction of the tower at the proposed
location not be allowed.
(20) Mr. Sanderson further testified that the
proposed tower location will be a hazard to
aircraft using Miller Air Park and would
penetrate air traffic patterns.
(21) Mr. Phil Loftin, a commercially-rated
pilot in single and multi-engine aircraft with
over 5000 hours, also testified that the
location of the tower would be a hazard to the
flying public.
(22) Captain John Cox, a master pilot with
more than 35 years experience and 14,000
hours, testified that the construction of a
1350' broadcast tower on the property will be
on the extended center line of Miller Air Park
runway and within five statute miles of the
air park. He further testified that the tower
will not meet adequate safety criteria and
will pose significant risks to air traffic
during take offs and landings.
(23) Mr. Cox discussed the normal flight
operations at and around Miller Airpark and
pointed out that pilots will not be able to
see the tower on hazy days. He also presented
documentation detailing past airplane crashes
into comparable towers.
(24) Staff and the Applicant provided a
letter, “Determination of No Hazard”, from the
FAA indicating that the proposed tower would
offer no threat to aircraft operation.
However, it was pointed out that the FAA's
review included only flight operations to and
from public airports. Miller Airpark is aprivate airport to which the FAA regulations
do not apply.
(25) Further, the study done by the FAA prior
to issuing its letter of no impact did not
consider the private Miller Airpark.
(26) Sonny Schumacher, an expert witness,
testified about the normal operation of
aircraft at Miller Airpark and indicated that
most departures were to the south and that
landings were to the north, which would make
the tower less of a problem. But, he admitted
that this could be reversed based on wind
direction. His report explained the FAA
standards that apply to obstructions like
towers.
(27) Mr. Loftin, a long time pilot, presented
a videotape showing the conditions an operator
of a small plane flying out of Miller Airpark
would experience. The video demonstrated that
towers are difficult to see, pose dangers to
the flying public and that upon departing the
airport to the north, due to the nose attitude
[sic] of the plane during a normal climb, a
pilot will not see the tower when the tower is
positioned directly ahead of the plane, which
occurs during normal departures or missed
approaches.
(28) Several experienced pilots (Wayne
McConnell, Michael Henry, Louis Dunn and Jack
Edwards) testified about the impact the tower
would have on air traffic safety, especially
into and out of Miller Airpark.
(29) Chris Hudson, the regional representative
of the Aircraft Owners and Pilots Association
also testified about the negative impacts of
the tower and its proposed location on safety.
(30) Overwhelming evidence was presented
concerning the impact of the proposed tower on
air safety.
(31) This tower unnecessarily will reduce the
safety of flight operations in the area and
result in hazardous safety conditions if
approved.
The superior court, based upon review of the whole record,
determined that the above findings of fact were based upon
“competent and substantial evidence in the record, including the
testimony of numerous pilots, an aviation expert, and a NCDOT
representative.” The superior court also considered the question
of federal preemption
de novo and determined that
federal regulation of airspace management is
not so broad as to preclude Respondent from
exercising its traditional role of regulating
the use of structures in Rowan County . . . .
Respondent's role as land use determiner under
its sovereign power to impose reasonable land
use restrictions does not impede or interfere
with the federal authority to regulate flights
in navigable airspace, to insure the efficient
use of airspace, and to insure the safety of
aircraft in the air or on the ground
consistent with its obligations to regulate
the frequency, routes, price, or service of
air carriers.
II. Standards of Review
A particular standard of review applies at each of the three
levels of this proceeding _ the Board, the superior court, and
this Court. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356
N.C. 1, 12-14, 565 S.E.2d 9, 16-18 (2002). First, the Board is the
finder of fact in its consideration of the application for a
special use permit. Id., 356 N.C. at 12, 565 S.E.2d at 17. The
Board is required, as the finder of fact, to
follow a two-step decision-making process in
granting or denying an application for a
special use permit. If an applicant has
produced competent, material, and substantial
evidence tending to establish the existence of
the facts and conditions which the ordinance
requires for the issuance of a special use
permit, prima facie he is entitled to it. If
a prima facie case is established, a denial ofthe permit then should be based upon findings
contra which are supported by competent,
material, and substantial evidence appearing
in the record.
. . . .
Any decision of the town board has to be based
on competent, material, and substantial
evidence that is introduced at a public
hearing.
Id., 356 N.C. at 12, 565 S.E.2d at 16-17. A Board's “findings of
fact and decisions based thereon are final, subject to the right of
the courts to review the record for errors in law and to give
relief against its orders which are arbitrary, oppressive or
attended with manifest abuse of authority.” Id., 356 N.C. at 12,
565 S.E.2d at 17 (citation and quotations omitted).
Upon appeal from the Board to the superior court, the superior
court acts as a court of appellate review. Id. The superior
court's task is:
(1) Reviewing the record for errors in law,
(2) Insuring that procedures specified by law
in both statute and ordinance are followed,
(3) Insuring that appropriate due process
rights of a petitioner are protected including
the right to offer evidence, cross-examine
witnesses, and inspect documents,
(4) Insuring that decisions of . . . boards
are supported by competent, material and
substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary
and capricious.
Id., 356 N.C. at 13, 565 S.E.2d at 17 (citation omitted).
The standard of review to be applied by the superior court
depends upon the type of error assigned. Id. “If the errorassigned is that a board's decision is not supported by the
evidence or is arbitrary or capricious, the superior court must
apply the whole record test. Id. De novo review is appropriate
“if a petitioner contends the board's decision was based on an
error of law,” Id. (citations and quotations omitted). Whether
federal law preempts state law is a question of a law which is
reviewed de novo. Cox v. Shalala, 112 F.3d 151, 153 (4th Cir.
1997).
When using de novo review,
the superior court considers the matter anew
and freely substitutes its own judgment for
the [board's] judgment. When utilizing the
whole record test, however, the reviewing
court must examine all competent evidence
(the “whole record”) in order to determine
whether the [board's] decision is supported by
“substantial evidence.” The “whole record”
test does not allow the reviewing court to
replace the board's judgment as between two
reasonably conflicting views, even though the
court could justifiably have reached a
different result had the matter been before it
de novo.
Mann Media, Inc., 356 N.C. at 13-14, 565 S.E.2d at 17-18 (internal
citations and quotations omitted). Also, the superior court “must
set forth sufficient information in its order to reveal the scope
of review utilized and the application of that review.” Id., 356
N.C. at 13, 565 S.E.2d at 17 (citations and quotations omitted).
When this Court reviews a superior court's order regarding a
zoning decision by a Board of Commissioners, we examine the order
to: “(1) determin[e] whether the [superior] court exercised the
appropriate scope of review and, if appropriate, (2) decid[e]whether the court did so properly.” Id., 356 N.C. at 14, 565
S.E.2d at 18 (citations and quotations omitted).
III. Preemption by Federal Law
[1] Petitioners first argue that the federal regulations of
navigable airspace administered by the Federal Aviation
Administration (“FAA”) preempt Rowan County's authority under its
zoning ordinances to regulate the location of the proposed tower.
Petitioners contend that the FAA has the duty and authority to
regulate air safety for the entire nation and that the federal
government made the determination that the proposed tower would not
pose a hazard to air safety, as stated in the FAA's “Determination
of No Hazard to Air Navigation”
(See footnote 2)
issued regarding the proposed
tower. Respondent contends that there is no conflict between theFAA's regulations and Rowan County's ordinances and that local
governments are permitted to make aviation-related land use
decisions.
Federal preemption of state or local land-use regulation
involving tall structures such as radio towers by the FAA is an
issue of first impression before this Court. Federal preemption is
constitutionally based upon the Supremacy Clause, U.S.
Constitution, art. VI, which “may entail pre-emption of state law
. . . by express provision . . . .”
N.Y. State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654
131 L.Ed. 2d 695, 704 (1995). “The constitutional principle
underlying the doctrine of preemption is the avoidance of
conflicting regulation of conduct by various official bodies . . .,
each of which has a degree of authority over the subject matter at
issue.”
State ex rel. Utilities Comm'n v. Carolina Power & Light
Co., 359 N.C. 516, 524, 614 S.E.2d 281, 287 (2005). In this case,
the question is not the scope of the FAA's authority, but it is
“the other legal question that can arise in the context of
preemption, that is, 'whether a given state authority conflicts
with, and thus has been displaced by, the existence of Federal
Government authority.'”
Id., 359 N.C. at 525, 614 S.E.2d at 287
(citation omitted).
We must begin our analysis with “a presumption against federal
preemption.”
Id. “'Where . . . the field that Congress is said to
have pre-empted has been traditionally occupied by the States 'we
start with the assumption that the historic police powers of theStates were not to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress.'”
Hillsborough Cty. v.
Automated Med. Labs., Inc., 471 U.S. 707, 715, 85 L.Ed. 2d 714,
722-23 (1985) (citations omitted).
Federal aviation law contains an express preemption provision
which does permit some types of state and local regulation. 49
U.S.C. § 41713(b)(1)(2004). Specifically, 49 U.S.C. § 41713(b)(1)
provides that
[e]xcept as provided in this subsection, a
State, political subdivision of a State, or
political authority of at least 2 States may
not enact or enforce a law, regulation, or
other provision having the force and effect of
law related to a price, route, or service of
an air carrier that may provide air
transportation under this subpart.
Id. Some courts have held that the state or local zoning
regulation of radio towers is preempted by the federal aviation
regulations.
(See footnote 3)
However, a majority of courts in the United States
which have considered the issue have held that federal aviation law
does not preempt all local or state land use regulation which may
affect aviation.
(See footnote 4)
Therefore, we must consider whether there is an actual
conflict between the Rowan County zoning ordinance and federal law.
“Such a conflict arises when compliance with both federal and state
regulations is a physical impossibility, or where state law stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”
State ex rel. Utilities
Comm'n, 359 N.C. 516, 525, 614 S.E.2d 281, 287 (quoting
Pac. Gas &
Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S.
190, 204, 75 L.Ed. 2d 752, 765 (1983) (citations and internal
quotations omitted).
In this case, there is no conflict between the federal
aviation law and Rowan County's zoning law. Petitioners argue that
the FAA's “no hazard” determination conflicts with and overrules
the zoning ordinance, since the FAA found that the tower would not
be a hazard to air navigation. However, the “no hazard” letter
itself states that it “does not relieve the sponsor of compliance
responsibilities relating to any law, ordinance, or regulation of
any Federal, State, or local government body.” In addition, the
aeronautical study upon which the “no hazard” letter was basedspecifically did not consider Miller Air Park, because it was a
“private use airport.” The Board's findings of fact relate to
safety considerations for air traffic to or from Miller Air Park,
which was specifically not addressed by the FAA's study.
The FAA's position regarding preemption is that federal
regulations not only permit, but encourage, this type of local
regulation to maintain the safety of private use airports. The
record contains a letter from the FAA's Airports District Office
manager, Scott Seritt, to the Board's Chairman, Gus Andrews, dated
10 March 2004. The letter regarding Rowan County's development of
“land use regulations that would protect the airspace of the Rowan
County Airport and approximately 17 private-use airports from tall
structures” stated:
As you know, Rowan County is obligated,
through your federal grant agreements, to
protect the terminal airspace of the Rowan
County Airport.
This is control that must be
exercised at the local and/or state level as
the federal government does not have the power
to protect that airspace for you.
While there are no requirements that you
protect the airspace of private-use airports,
it is certainly a wise decision. Small
airports are the backbone of aviation in the
United States . . . . Their airspace is a
precious commodity and, once it is lost, it is
seldom regained. Tall structures can have
significant effects on the approaches into
airports and in extreme cases can cause
airports to close.
The protection of our nations [sic]
airports is vital.
It is important that local
communities recognize these assets and provide
the necessary protection both in terms of land
usages and height restrictions. With
appropriate regulations in place, local
officials can make informed decisions as to
the need to protect their aviation assets inbalance with needs for economic development
and private enterprise.
Thus, the Board's decision regarding the CUP was an exercise of
precisely the type of local control over private use airports that
the FAA specifically endorsed and encouraged, because the FAA did
not have the authority to provide this protection. The superior
court therefore properly conducted
de novo review of this issue and
correctly concluded that Rowan County's zoning ordinances are not
preempted by federal law in this instance.
IV. Decision Supported by Substantial Evidence
[2] Petitioners next contend that the Board's decision was not
supported by substantial, competent, and material evidence in the
whole record and that the decision was arbitrary and capricious.
On this issue, the superior court was required to use the “whole
record” test, and the order specifically states that the court used
this test.
Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17.
Thus our role is to determine if the superior court properly
applied the “whole record” test.
See id., 356 N.C. at 14, 565
S.E.2d at 18.
Petitioners correctly note that the Board's findings were all
in favor of the petitioners, except on the issue of air safety. As
we have determined that the Board is not preempted from making its
determination based upon air safety, we are also aware that
“[z]oning ordinances derogate common law property rights and must
be strictly construed in favor of the free use of property.”
Lambeth v. Town of Kure Beach, 157 N.C. App. 349, 354, 578 S.E.2d
688, 691. “Every person owning property has the right to make anylawful use of it he sees fit, and restrictions sought to be imposed
on that right must be carefully examined to prevent arbitrary,
capricious or oppressive action under the guise of law.”
Vance S.
Harrington & Co. v. Renner, 236 N.C. 321, 324, 72 S.E.2d 838, 840
(1952).
If an applicant produces competent, material, and substantial
evidence which establishes the facts and conditions required by the
ordinance for the issuance of a conditional use permit, the
applicant is
prima facie entitled to issuance of the permit.
Humble Oil & Refining Co. v. Bd. of Alderman, 284 N.C. 458, 468,
202 S.E.2d 129, 136 (1974). “Denial of a conditional use permit
must be based upon findings which are supported by competent,
material, and substantial evidence appearing in the record.”
Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221,
227 (2002). In the case
sub judice, we have therefore carefully
examined the evidence regarding the air safety issues relevant to
Miller Air Park to determine if the Board's findings on this issue
were supported by “substantial evidence” and were not arbitrary or
capricious.
As correctly noted by the superior court, the evidence
included the “testimony of numerous pilots, an aviation expert, and
a NCDOT representative” as well as extensive documentary evidence,
all of which supported the Board's findings regarding the safety
hazards posed by the tower to air traffic of Miller Air Park.
Petitioners argue that the testimony of the pilots and other
witnesses presented by appellees was erroneous, anecdotal, orinadequate in various respects. However, in applying the whole
record test, “the trial court may not weigh the evidence presented
to the agency or substitute its own judgment for that of the
agency.”
Bellsouth Carolinas PCS, L.P. v. Henderson Cty. Zoning
Bd. of Adjustment, 174 N.C. App. 574, 576, 621 S.E.2d 270, 272
(2005).
Although the petitioners did present evidence from which the
Board could have found that the tower would not pose an
unreasonable or unjustifiable safety hazard, there was also
substantial evidence to support the Board's findings that the tower
would be a safety hazard. We therefore affirm the order of the
superior court.
AFFIRMED.
Judges McCULLOUGH and BRYANT concur.
Footnote: 1