North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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[475] September 20, 2000

Mr. Jeffery M. Hedrick Watauga County Attorney Post Office Box 465 Boone, North Carolina 28607

Re: Advisory Opinion; Applicability of Watauga County Ordinances to UNC-TV Tower in Watauga County; G.S. Sections 153A-121; 153A-340 and 153A-347

Dear Mr. Hedrick:

You requested that the State of North Carolina through the University of North Carolina apply for a variance from Watauga County ordinances (regulating communication towers). We have discussed this matter with UNC-Television, the UNC General Administration Counsel’s Office, and various attorneys within the Attorney General’s Office to determine the State’s position with respect to whether a county can regulate a State-owned and operated television tower.

We understand that your ordinance, on its face, states it was enacted pursuant to G.S. § 153A-121. As you know, G.S. § 153A-121(a) allows counties to regulate conditions detrimental to the health, safety or welfare of its citizens. The county claims that the regulation of the height and fall zone for towers is part of its general delegation of police power. It is our understanding that the tower in question replaced a previous television tower similar in height and design.

As a general rule, a county board of commissioners has no legislative authority not otherwise granted expressly or by necessary implication from expressly granted powers. State v. Tenore, 280 N.C. 238 (1972). Likewise, general statutes do not bind the State unless the State is expressly mentioned therein. Davidson County v. City of High Point, 85 N.C. App. 26, 37, modified and affirmed, 321 N.C. 252 (1987). Further, “[s]tatutorily granted powers are to be strictly construed.” Id., at 257.

Nowhere in G.S. § 153A-121 has the General Assembly expressly delegated to Watauga County the authority to regulate the height of state owned and operated structures under its general police power. Instead, the express delegation from the General Assembly to regulate and restrict the height and size of buildings and other structures for the purpose of promoting health, safety, morals or the general welfare is found in G.S. § 153A-340(a). Consequently, the question is whether Watauga County may regulate UNC-TV’s tower under its express delegation of authority in G.S. § 153A

340.

The expressed delegation of authority under G.S. § 153A-340 is not unlimited. In G.S. § 153A-347, the General Assembly made applicable the provisions of Article 18, Part 3 of Chapter 153A only to the erection, construction and use of buildings by the State of North Carolina and its political subdivisions. G.S. § 153A-347. The definition of a building, however, is not all inclusive. In Davidson County, the Court of Appeals held that the definition of a building is a "structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls and usually but not necessarily covered with a roof." Davidson County, 85 N.C.App. at 38, quoting, Blacks’ Law Dictionary, 176, (5th Ed. 1979).

Significantly, structures outside the Davidson County definition are not considered buildings as the term is used in G.S. § 153A-347. A television tower is not a habitable building. Nor is it used for shelter, storage, trade, manufacture, etc. Thus, it cannot be considered a building falling within the General Assembly’s express delegation of zoning authority to counties set forth in G.S. § 153A-347. If a television tower is outside the express delegation of Part 3, Article 18, Chapter 153A, it cannot be regulated under the height requirements found in G.S. § 153A-340. To put it plainly, counties lack the express delegation of authority to regulate state owned and operated television towers. Accordingly, we conclude that the Watauga County ordinance does not apply to the UNC-TV tower in question.

If you have any questions about this analysis, please call. With best wishes,

Signed by:

Reginald L. Watkins Senior Deputy Attorney General

Roy A. Giles, Jr. Special Deputy Attorney General

Jeffrey B. Parsons Assistant Attorney General

cc: Lee Culpepper Grayson Kelley Tom Ziko