{ "id": 9249787, "name": "COUNTY OF WAKE, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES, and JERRY FRANKS and JOHN SCHIFANO, et al., Respondents and TOWN OF HOLLY SPRINGS, Respondent-Intervenor", "name_abbreviation": "County of Wake v. North Carolina Department of Environment & Natural Resources", "decision_date": "2002-12-31", "docket_number": "No. COA01-847", "first_page": "225", "last_page": "251", "citations": [ { "type": "official", "cite": "155 N.C. App. 225" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "542 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440718 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0290-01" ] }, { "cite": "117 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "817", "parenthetical": "\"Every town has by statute, G.S. 160-2(6" } ], "opinion_index": 0 }, { "cite": "253 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626613 ], "year": 1961, "pin_cites": [ { "page": "604", "parenthetical": "\"Every town has by statute, G.S. 160-2(6" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0596-01" ] }, { "cite": "152 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561904 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0090-01" ] }, { "cite": "386 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "325 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491680 ], "year": 1989, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0634-01" ] }, { "cite": "29 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553557 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "4, 222" }, { "page": "91-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0001-01" ] }, { "cite": "293 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "169" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "306 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568700 ], "year": 1982, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0357-01" ] }, { "cite": "75 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "237 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613809 ], "year": 1953, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0449-01" ] }, { "cite": "49 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165796 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0313-01" ] }, { "cite": "336 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519625 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0085-01" ] }, { "cite": "265 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "898-99" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551011 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "360" }, { "page": "360-62" }, { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0350-01" ] }, { "cite": "131 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "446", "parenthetical": "quoting 3 C.J.S. Aggrieved, at 509 (1973)" } ], "opinion_index": 0 }, { "cite": "259 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561548 ], "year": 1963, "pin_cites": [ { "page": "595", "parenthetical": "quoting 3 C.J.S. Aggrieved, at 509 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0589-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "779", "parenthetical": "citing N.C. Gen. Stat. \u00a7\u00a7 150B-23(a) (2001)" }, { "page": "779" }, { "page": "780-81" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "588", "parenthetical": "citing N.C. Gen. Stat. \u00a7\u00a7 150B-23(a) (2001)" }, { "page": "588" }, { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "543 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441143 ], "year": 2001, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0338-01" ] }, { "cite": "357 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128931 ], "year": 1987, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0308-01" ] }, { "cite": "426 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525139 ], "year": 1993, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0265-01" ] }, { "cite": "560 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9126704 ], "year": 2002, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0211-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118" }, { "page": "118", "parenthetical": "quoting Professional Food, Services Mgmt. v. N.C. Dept. of Admin., 109 N.C. App. 265, 268, 426 S.E.2d 447, 449 (1993" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "674" }, { "page": "675", "parenthetical": "quoting Professional Food, Services Mgmt. v. N.C. Dept. of Admin., 109 N.C. App. 265, 268, 426 S.E.2d 447, 449 (1993" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "546 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435233 ], "year": 2001, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0470-01" ] }, { "cite": "513 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 704", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239996 ], "year": 1999, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0704-01" ] }, { "cite": "504 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "holding an administrative agency is only entitled to one extension of time in which to render its final decision under N.C.G.S. \u00a7 150B-44" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470233 ], "year": 1998, "pin_cites": [ { "parenthetical": "holding an administrative agency is only entitled to one extension of time in which to render its final decision under N.C.G.S. \u00a7 150B-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0721-01" ] } ], "analysis": { "cardinality": 1643, "char_count": 64201, "ocr_confidence": 0.762, "pagerank": { "raw": 3.231141341920902e-07, "percentile": 0.8677104340832226 }, "sha256": "d567fb14890c06915486bde3a81f8ff4cfb625e0a3c1529224abf1af69af95bd", "simhash": "1:a1a8898ed77c1170", "word_count": 10219 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge WALKER concurs in a separate opinion." ], "parties": [ "COUNTY OF WAKE, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES, and JERRY FRANKS and JOHN SCHIFANO, et al., Respondents and TOWN OF HOLLY SPRINGS, Respondent-Intervenor" ], "opinions": [ { "text": "CAMPBELL, Judge.\nJerry Franks, John Schifano, et al., and the Town of Holly Springs (collectively, \u201crespondents\u201d), appeal the superior court\u2019s reversal of a judicially-imposed final agency decision of the North Carolina Department of Environment and Natural Resources (\u201cDENR\u201d). The judicially-imposed final agency decision had ordered the withdrawal of a permit to construct a municipal solid waste landfill (\u201cFacility Permit 92-22\u201d) that had been issued to Wake County.\nThis appeal deals with numerous issues involving the interpretation and application of North Carolina statutory and regulatory law pertaining to solid waste management. This body of law impacts decisions on where solid waste landfills are to be located in this State and the relationships between counties and municipalities in making and implementing such decisions.\nIn 1990, Wake County began pursuing plans to expand its South Wake Sanitary Landfill, commonly referred to as the Feltonsville Landfill, in order to provide additional space for the disposal and storage of solid waste. The Feltonsville Landfill is located just outside the Town of Holly Springs (\u201cTown\u201d).\nIn October 1990, the Wake County Board of Commissioners (\u201cCounty Board\u201d) authorized the purchase of a 162.37-acre tract of land adjacent to the Feltonsville Landfill. In July 1991, an engineering consulting firm hired by Wake County informed the County Board that the 162.37-acre tract was insufficient to handle the long-term solid waste disposal needs of the County and recommended that several tracts near the 162.37-acre tract also be purchased for additional landfill space. On 5 August 1991, the County Board directed County staff to pursue the acquisition of additional property adjacent to the initial 162.37-acre expansion area for the Feltonsville Landfill. The County Board subsequently approved the purchase of four additional tracts of land, totaling approximately 311 acres, all located within the zoning jurisdiction of the Town.\nIn December 1991, Wake County officials met with the Town of Holly Springs Board of Commissioners (\u201cTown Board\u201d) to explain the County\u2019s plans for expansion of the Feltonsville Landfill. County officials delivered a detailed explanation of the landfill expansion plans, provided maps showing the size and scope of the project, and made themselves available for questions from the Town Board. The minutes of the Town Board meeting recite that the expansion is to \u201cinclude a total of 482 acres, 400 of which [are] to be located within Holly Springs.\u201d The minutes of the meeting indicate no objections from the Town Board to the landfill expansion plans as presented.\nOn 1 September 1992, County officials attended a second Town Board meeting and again provided a detailed explanation of the landfill expansion plans. The Town Board was informed that the project would cover approximately 471 acres, with approximately 189 acres used for municipal solid waste disposal, with the remaining acreage used for buffers, sedimentation basins, access roads, borrow areas, construction waste disposal, and ancillary facilities. At the meeting, the Town Board voted to approve a resolution granting \u201cprior approval for the issuance of a sanitary landfill permit by the Division of Solid Waste Management to Wake County, said landfill to be established on approximately 380 acres shown on the attached map, part of which acreage is located within the extra-territorial zoning jurisdiction of the Town of Holly Springs, North Carolina.\u201d Approximately 320 acres of the proposed landfill was to be located within the Town\u2019s zoning jurisdiction.\nOn 4 December 1992, Wake County submitted a site plan application for the proposed landfill facility to DENR pursuant to the applicable solid waste management regulations. The cover letter accompanying the site plan application referred to its contents as an application for site approval for \u201cthe new South Wake Solid Waste Management Facility.\u201d The submission of the site plan application was accompanied by the required local government approval from the Town Board, but was not accompanied by the required approval from the County Board. The County Board\u2019s approval was subsequently submitted to DENR\u2019s Division of Solid Waste Management, Solid Waste Section.\nIn 1993, after Wake County had submitted its site plan application, the law governing the construction of municipal solid waste landfills changed to address the groundwater contamination problem caused by \u201cleachate seepage.\u201d \u201cLeachate\u201d is \u201cliquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.\u201d 15A NCAC 13B. 1602(15) (2002). The new law and implementing regulations required that all landfills be lined; that is, have a system to capture and collect leachate for treatment at a local wastewater treatment plant. In addition, all existing unlined landfills, such as the Feltonsville Landfill, were required to cease operations by 1 January 1998. As a result, the County\u2019s proposed landfill facility could no longer accurately be referred to as an \u201cexpansion\u201d of the Feltonsville Landfill. Thereafter, the proposed facility began to properly be referred to as a \u201cnew\u201d landfill. However, neither the size, location, anticipated years of operation, location of roads, location of buffer areas, nor any other factor related to the operation of the proposed facility changed in any material respect from the plans presented to and approved by the Town Board on 1 September 1992 and subsequently submitted in the County\u2019s site plan application. The only thing that changed was the law, which now mandated that the County\u2019s proposed facility be considered a \u201cnew\u201d landfill instead of an \u201cexpansion\u201d of the existing Feltonsville Landfill, which was now set for closure in 1998.\nOn 15 December 1994, the County and the Town entered into an Interlocal Agreement under which the Town agreed to provide the County 50,000 gallons per day of wastewater treatment capacity in the Town\u2019s wastewater treatment plant for the treatment of leachate generated by the new landfill. In return, the County agreed to forgive $298,291.00 in debt owed by the Town and pay $228,800.00 to the Town for construction of a wastewater collection system and pumping station to service the landfill site. The Interlocal Agreement reiterated the Town\u2019s approval of the construction and operation of the proposed landfill facility within the Town\u2019s zoning jurisdiction.\nOn 14 March 1995, DENR approved the County\u2019s site plan application and authorized the County to prepare an application for a permit to construct the proposed landfill. The County then authorized its engineering consultants to prepare the documents required to obtain the permit to construct. Those documents were filed with DENR on 31 December 1996.\nIn the interim, on 17 April 1995, the Town and the County amended their Interlocal Agreement to require the County to forthwith pay the $228,800.00 to the Town for construction of the wastewater collection system and pumping station instead of waiting for approval of its permit to construct. The County paid the Town accordingly.\nOn 20 May 1997, the Town Board adopted Resolution 97-23, approving the Wake County Ten Year Comprehensive Solid Waste Management Plan (\u201cPlan\u201d). The Plan stated that all municipal solid waste generated in Wake County between the years 2003 and 2023 would be disposed of and stored at the proposed new facility partially located in the Town of Holly Springs.\nOn 19 May 1998, the Town Board passed a resolution revoking its prior approval of the issuance of a sanitary landfill permit for the County\u2019s proposed landfill facility. The reasons given for the Town Board\u2019s decision to revoke its approval included the following: (1) the Town had only approved an \u201cexpansion\u201d of the Feltonsville Landfill, not a \u201cnew\u201d landfill facility; (2) conditions within the Town had changed dramatically since the Town Board\u2019s grant of approval and the proposed landfill site was now unsuitable; and (3) numerous procedural requirements related to the permitting of the landfill had not been followed by the County.\nOn 18 February 1999, DENR issued Facility Permit 92-22, allowing the County to begin construction of the landfill facility. This permit, which is the focus of this case, grants specific approval for the actual construction of Phase I of the municipal solid waste disposal area (\u201cMSW Phase I\u201d), which is to be constructed in five phases. MSW Phase I covers approximately 47 acres plus infrastructure such as a sediment pond and access roads. MSW Phase I will be permitted to accept household, industrial, and commercial solid waste, and has a projected life of approximately four years. Facility Permit 92-22 also grants general approval of the overall facility concept and layout. However, no other phase of the landfill may be constructed without additional approval from DENR. To construct any phase beyond MSW Phase I, Wake County must receive an amendment to Facility Permit 92-22.\nOn 19 March 1999, respondent Jerry Franks filed a petition for a contested case hearing with the Office of Administrative Hearings (\u201cOAH\u201d), alleging DENR had issued Facility Permit 92-22 (1) without approval from the Town and County as required under 15A NCAC 13B. 1618(c)(5)(A); (2) without the Town and County holding the required public meetings under 15A NCAC 13B.1618(c)(5)(A)(i); (3) based on inaccurate and incomplete application data; (4) in violation of N.C. Gen. Stat. \u00a7 130A-294(b1)(2); and (5) in violation of N.C. Gen. Stat. \u00a7 153A-136(c).\nOn 23 March 1999, John Schifano, et al. also filed a contested case petition with OAH, alleging DENR had issued the permit (1) in violation of N.C. Gen. Stat. \u00a7\u00a7 160A-325 and 153A-292; and (2) without the Town\u2019s required approval.\nDENR and Wake County were both named as respondents in the petition filed by Franks. However, Wake County was not named as a respondent in the petition filed by Schifano et al. Wake County was allowed to intervene in the Schifano, et al. contested case and the OAH consolidated the contested cases for hearing. Thereafter, all parties moved for summary disposition.\nOn 28 September 1999, the administrative law judge (\u201cALJ\u201d) issued a recommended decision granting summary judgment in favor of respondents Franks and Schifano et al. and ordering withdrawal of Facility Permit 92-22 until all applicable procedural requirements were met. The ALJ concluded: (1) respondents Franks and Schifano, et al. were \u201cpersons aggrieved\u201d under the North Carolina Administrative Procedure Act (\u201cNCAPA\u201d) with standing to bring a contested case petition challenging DENR\u2019s issuance of Facility Permit 92-22; (2) respondents Franks and Schifano, et al. also had taxpayer standing; (3) the Town\u2019s 1 September 1992 resolution only granted approval for a \u201clateral expansion\u201d to the Feltonsville Landfill and not a \u201cnew\u201d landfill facility; (4) the Town\u2019s approval on 1 September 1992, however classified, was properly and legally withdrawn prior to DENR\u2019s issuance of the permit; (5) the County failed to obtain a franchise for operation of a solid waste landfill pursuant to N.C. Gen. Stat. \u00a7 160A-319; (6) issuance of the permit violated 15A NCAC 13B.1618; (7) issuance of the permit violated N.C. Gen. Stat. \u00a7 130A-294; and (8) issuance of the permit violated N.C. Gen. Stat. \u00a7 153A-136(c).\nOn 3 November 1999, the sealed record in this matter was transmitted from OAH to DENR for a final agency decision. DENR had 90 days from that date to render its final agency decision under N.C. Gen. Stat. \u00a7 150B-44. On 1 February 2000, a few days before the final agency decision was due, DENR unilaterally declared \u201cgood cause\u201d shown for an extension of time to render its final agency decision up to and including 2 March 2000. On 1 March 2000, DENR again unilaterally declared \u201cgood cause\u201d for an extension of time up to and including 31 March 2000. On 30 March 2000, DENR for a third time extended the time for rendering its final agency decision up to and including 7 April 2000.\nOn 6 April 2000, the individual respondents filed a petition for judicial intervention alleging DENR had violated N.C. Gen. Stat. \u00a7 150B-44 by taking multiple extensions of time in which to render its final agency decision. On 7 April 2000, DENR issued a final agency decision modifying the ALJ\u2019s recommended decision, withdrawing Facility Permit 92-22, and remanding the matter to the Division of Waste Management, Solid Waste Section, to await Wake County\u2019s compliance with N.C. Gen. Stat. \u00a7 153A-136(c). However, on 4 October 2000, the individual respondents\u2019 petition for judicial intervention was granted and the superior court ordered that the recommended decision of the ALJ be treated as DENR\u2019s final agency decision. See Holland Group v. N.C. Dept. of Administration, 130 N.C. App. 721, 504 S.E.2d 300 (1998) (holding an administrative agency is only entitled to one extension of time in which to render its final decision under N.C.G.S. \u00a7 150B-44).\nOn 11 October 2000, Wake County filed a petition for judicial review of the final agency decision pursuant to N.C. Gen. Stat. \u00a7 150B-45. Wake County asserted the final agency decision was \u201c1) in excess of the statutory authority or jurisdiction of the Agency, 2) made upon unlawful procedure, 3) affected by error of law, 4) unsupported by substantial evidence in view of the entire record and/or 5) arbitrary and capricious.\u201d\nOn 28 November 2000, the parties entered into a consent order allowing the Town of Holly Springs to intervene in the matter.\nOn 19 March 2001, the superior court entered an order reversing the final agency decision and ordering Facility Permit 92-22 be reissued. The superior court concluded: (1) respondents Franks and Schifano, el al. lacked standing under the NCAPA to raise the issue of whether the Town approved the location of the proposed landfill; (2) by its 1 September 1992 resolution, the Town approved the location of a \u201cnew\u201d landfill within its jurisdiction as required by N.C.G.S. \u00a7 130A-294 and 15A NCAC 13B.0504(1)(e) as they existed at the time; (3) once DENR issued site plan approval to Wake County on 14 March 1995, the Town was prevented from \u201cwithdraw[ing] [its] approval absent a showing that the approval was obtained by fraud or material misrepresentation, or that construction plan documents subsequently filed demonstrate [d] that the facility being submitted for a permit [was] substantially different from that which was presented to the [Town] for its approval[;]\u201d (4) the Interlocal Agreement between the County and Town was an enforceable contract by which the Town released its right to withdraw approval for the proposed landfill; (5) Wake County was not required to obtain a franchise from the Town under N.C.G.S. \u00a7 160A-319; (6) the provisions of 15A NCAC 13B.1618 did not apply to Wake County\u2019s application; (7) N.C.G.S. \u00a7 130A-294(b1)(1)-(3) did not apply to Wake County\u2019s application; and (8) N.C.G.S. \u00a7 153A-136(c) did not apply to Wake County\u2019s application. Respondents Franks, Schifano et al., and the Town of Holly Springs appeal to this Court.\nUnder the NCAPA, a final administrative agency decision may be reversed or modified by the superior court if the agency\u2019s findings, inferences, conclusions or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nN.C. Gen. Stat. \u00a7 150B-51(b) (2001). The standard of review to be employed by the superior court is dictated by the nature of the error asserted by the party seeking review. Dillingham v. N.C. Dep\u2019t of Human Res., 132 N.C. App. 704, 708, 513 S.E.2d 823, 826 (1999). If the petitioner contends the agency\u2019s decision was affected by errors of law, N.C.G.S. \u00a7 150B-51(1)(2)(3) & (4), de novo review is required; if the petitioner contends the agency decision was not supported by the evidence, N.C.G.S. \u00a7 150B-51(5), or was arbitrary, capricious, or an abuse of discretion, N.C.G.S. \u00a7 150B-51(6), the whole record test is utilized. Id. \u201cDe novo review requires a court to consider the question anew, as if the agency has not addressed it.\u201d Blalock v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001). Under the whole record test, the reviewing court must examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)). In reviewing a superior court order entered upon review of an administrative agency decision, this Court has a two-fold task: \u201c(1) determine whether the trial court exercised the appropriate scope of review and, if appropriate; (2) decide whether the court did so properly.\u201d Deep River Citizen\u2019s Coalition v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 149 N.C. App. 211, 213, 560 S.E.2d 814, 816 (2002). In performing this task, this Court need only consider \u201c \u2018those grounds for reversal or modification argued by the petitioner before the superior court and properly assigned as error on appeal to this Court.\u2019 \u201d Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118 (1994) (quoting Professional Food, Services Mgmt. v. N.C. Dept. of Admin., 109 N.C. App. 265, 268, 426 S.E.2d 447, 449 (1993).\nHaving reviewed the superior court\u2019s order, we conclude it properly exercised de novo review in examining the substantive issues raised by respondents\u2019 appeal. We now determine whether it did so properly.\nAs an initial matter, respondents contend the superior court erred in concluding the individual respondents lacked standing to raise the issue of whether the Town approved the location of the County\u2019s proposed solid waste landfill within its jurisdiction. The superior court concluded the right of approval belonged exclusively to the Town Board and, since the Town Board had expressly refused to file an administrative appeal of DENR\u2019s issuance of Facility Permit 92-22, the individual respondents lacked standing. In contrast, DENR, through the judicially-imposed decision of the ALJ, concluded the individual respondents were \u201cpersons aggrieved\u201d under the NCAPA with standing to file a contested case petition.\nIn its petition for judicial review, Wake County failed to assert as error the agency\u2019s conclusion that the individual respondents were \u201cpersons aggrieved\u201d under the NCAPA with a right to challenge DENR\u2019s issuance of the permit. Nevertheless, \u201c[w]hether one has standing to obtain judicial review of an administrative decision is a question of subject matter jurisdiction!,]\u201d Carter v. N.C. State Bd. for Professional Engineers, 86 N.C. App. 308, 313, 357 S.E.2d 705, 708 (1987), which \u201ccan be raised at any time, even for the first time on appeal and even by a court sua sponte. \u201d Hedgepeth v. N. C. Div. of Servs. for the Blind, 142 N.C. App. 338, 341, 543 S.E.2d 169, 171 (2001).\n\u201cUnder the NCAPA, any \u2018person aggrieved\u2019 within the meaning of the organic statute is entitled to an administrative hearing to determine the person\u2019s rights, duties, or privileges.\u201d Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 588, 447 S.E.2d 768, 779 (1994) (citing N.C. Gen. Stat. \u00a7\u00a7 150B-23(a) (2001)). \u2018\u201cPerson aggrieved\u2019 means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.\u201d N.C. Gen. Stat. \u00a7 150B-2(6) (2001). Under the predecessor judicial review statute, which did not define the term, the Supreme Court gave it an expansive interpretation:\nThe expression \u201cperson aggrieved\u201d has no technical meaning. What it means depends on the circumstances involved. It has been variously defined: \u201cAdversely or injuriously affected; damni-fied, having a grievance, having suffered a loss or injury, or injured; also having cause for complaint. More specifically the word(s) may be employed meaning adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights.\u201d\nIn re Assessment of Sales Tax, 259 N.C. 589, 595, 131 S.E.2d 441, 446 (1963) (quoting 3 C.J.S. Aggrieved, at 509 (1973)); accord Empire Power, 337 N.C. at 588, 447 S.E.2d at 779; Orange County v. Dept. of Transportation, 46 N.C. App. 350, 360, 265 S.E.2d 890, 898-99 (1980). For the following reasons, we conclude the individual respondents are \u201cpersons aggrieved\u201d within the meaning of the NCAPA.\nRespondents Franks and Schifano et al. allege DENR issued Facility Permit 92-22 in violation of statutory and regulatory requirements; specifically, without the approval of the Town and County, without the Town and County holding public hearings, and without the Town and County considering alternative sites and socioeconomic and demographic data.\nThe individual respondents further allege that, as owners of property located adjacent to the site of the proposed landfill \u2014 the construction of which will result in noise, pollution, inalterable landscape changes, and other negative environmental consequences\u2014 they will suffer interference with the use and enjoyment of their property and diminution in the value of their property.\nIn the solid waste management provisions of the North Carolina General Statutes, the General Assembly mandated the Department of Environment and Natural Resources maintain a Division of Waste Management \u201cto promote sanitary processing, treatment, disposal, and statewide management of solid waste,\u201d \u201c[f]or the purpose of promoting and preserving an environment that is conducive to public health and welfare, and preventing the creation of nuisances and the depletion of our natural resources.\u201d N.C. Gen. Stat. \u00a7 130A-291(a) (2001) (emphasis added). The General Assembly further required the Environmental Management Commission to adopt, and the Department of Environment and Natural Resources to enforce, rules to implement a comprehensive statewide solid waste management program. N.C. Gen. Stat. \u00a7 130A-294(b).\nThe rules shall be consistent with applicable State and federal law; and shall be designed to protect the public health, safety, and welfare-, preserve the environment; and provide for the greatest possible conservation of cultural and natural resources.\nId. (emphasis added). In concluding that a comprehensive statewide solid waste management program was desirable, the General Assembly found that:\n(1) Inefficient and improper methods of managing solid waste create hazards to public health, cause pollution of air and water resources, constitute a waste of natural resources, have an adverse effect on land values, and create public nuisances.\nN.C. Gen. Stat. \u00a7 130A-309.03(a)(1) (2001) (emphasis added).\nClearly, the individual respondents alleged sufficient injury in fact to interests within the zone of those to be protected and regulated by the solid waste management statutes, and rules and regulations promulgated pursuant thereto, the procedural requirements of which they assert the agency violated when it issued Facility Permit 92-22. As adjacent property owners, the individual respondents may be expected to suffer whatever adverse environmental consequences arise from construction of the landfill. The individual respondents may also experience a decrease in the value of their property caused by construction and eventual operation of the landfill. The individual respondents therefore are \u201cpersons aggrieved\u201d within the meaning and intent of the solid waste management statutes, with standing to assert that the permit was issued in violation of statutory and regulatory requirements, including the requirement that the Town grant prior approval for location of a landfill in its jurisdiction. See Empire Power, 337 N.C. at 589-90, 447 S.E.2d at 780-81 (individual petitioner was \u201cperson aggrieved,\u201d within the meaning of the NCAPA, by DENR\u2019s issuance of a permit allowing the construction and operation of sixteen combustion turbine electric generating units where the petitioner owned property immediately adjacent to and downwind of the site of the proposed units); Orange County, 46 N.C. App. at 360-62, 265 S.E.2d 899 (plaintiffs were all \u201cpersons aggrieved\u201d by a decision of the State Board of Transportation on the location of an interstate highway where the individual plaintiffs were property owners within the proposed corridor of the highway, the members of plaintiff non-profit corporation were citizens and taxpayers who lived in or near the proposed highway corridor, and plaintiff county\u2019s tax base and planning jurisdiction would be affected; further, the \u201cprocedural injury\u201d implicit in the failure of an agency to prepare an environmental impact statement was itself a sufficient \u201cinjury in fact\u201d to support standing as an \u201caggrieved party\u201d under former N.C. Gen. Stat. \u00a7 150A-43, as long as such injury was alleged by a plaintiff having sufficient geographical nexus to the site of the challenged project that he might be expected to suffer whatever environmental consequences the project might have).\nIn addition, we conclude the Town, which was added to the case by consent of the parties following Wake County\u2019s filing of its petition for judicial review, also qualifies as a \u201cperson aggrieved\u201d under the NCAPA because its tax base and planning jurisdiction will be affected by the proposed landfill. See Orange County, 46 N.C. App. at 361, 265 S.E.2d at 899; see also N.C. Gen. Stat. \u00a7 150B-2(7) (2001) (defining \u201cperson\u201d under the NCAPA as any \u201cnatural person, partnership, corporation, body politic and any unincorporated association, organization, or society which may sue or be sued under a common name\u201d) (emphasis added)). Therefore, the issue of whether the Town of Holly Springs approved the location of the proposed landfill facility within its jurisdiction, along with all other issues raised by respondents on appeal, was properly before the OAH and the superior court, and is properly presented for review by this Court.\nRespondents argue the Town\u2019s initial approval, contained in its 1 September 1992 resolution, was only for an \u201cexpansion\u201d of the existing Feltonsville Landfill and not the construction of a \u201cnew\u201d and separate facility. In the judicially-imposed final agency decision, the ALJ agreed, relying on the distinction between a \u201clateral expansion\u201d of an \u201cexisting municipal solid waste landfill unit,\u201d and a \u201cnew municipal solid waste landfill unit,\u201d see 15A NCAC 13B.1602 (7), (14), (18) (2002), to support its conclusion that the Town had not granted approval for a \u201cnew\u201d landfill facility. However, the superior court concluded the Town gave Wake County approval to site the proposed landfill within the Town\u2019s jurisdiction as required by N.C. Gen. Stat. \u00a7 130A-294 and 15A NCAC 13B.0504(1)(e) as they existed at the time the Town passed the approval resolution. For the reasons discussed herein, we agree with the superior court\u2019s reasoning.\nOn 1 September 1992, the Town Board passed a resolution granting \u201cprior approval for the issuance of a sanitary landfill permit by the Division of Solid Waste Management to Wake County, said landfill to be established on approximately 380 acres,\u201d part of which was located in the Town\u2019s zoning jurisdiction. At the time, there was no legal distinction between a \u201cnew\u201d landfill and a \u201clateral expansion\u201d of a landfill under the applicable solid waste management statutes and regulations governing landfill permit applications. See 15A NCAC 13B.0101 through .0204 (effective 1 April 1982); 15A NCAC 13B.0501 through .0510 (effective 1 April 1982); N.C. Gen. Stat. \u00a7 130A-290 through 310.23 (1992).\nThe distinction between a \u201clateral expansion\u201d of an existing landfill and a \u201cnew\u201d landfill did not appear in the solid waste management regulations until the passage of Title 15A, Subchapter 13B, Section .1600, which became effective 9 October 1993. Under these new regulations, the term \u201c \u2018lateral expansion\u2019 means a horizontal expansion of the waste boundaries of an existing MSWLF [municipal solid waste landfill] unit.\u201d 15A NCAC 13B.1602(14). An \u201c \u2018existing MSWLF unit\u2019 means any municipal solid waste landfill unit that is receiving solid waste as of October 9, 1993 and is not a new MSWLF unit.\u201d 15A NCAC 13B.1602(7). A \u201c \u2018new MSWLF unit\u2019 means any solid waste landfill unit that has not received waste prior to October 9, 1993.\u201d 15A NCAC 13B.1602(18).\nBecause the Town granted approval for the proposed landfill on 1 September 1992, prior to the effective date of the new solid waste management regulations, we agree with the superior court that the AU erred in concluding the Town only approved a \u201clateral expansion\u201d to the existing Feltonsville Landfill. The term \u201clateral expansion\u201d was not a legal term of art with a definite meaning at that time. Further, the record on appeal does not indicate Wake County ever used the term \u201clateral expansion\u201d when referring to the proposed landfill facility.\nWe also agree with the superior court that the County\u2019s references to the proposed landfill as an \u201cexpansion\u201d of the Feltonsville Landfill, which became inaccurate in 1993 when it was mandated that the Feltonsville Landfill be closed by 1 January 1998, were simply a method of identifying the location of the proposed landfill adjacent to the Feltonsville Landfill. The term \u201cexpansion\u201d was not a legal term of art with any particular legal significance under the solid waste management statutes and regulations applicable at the time the Town granted its approval in September 1992.\nThe record shows the County proceeded with its landfill plans in accordance with the applicable regulations in existence at the time. The County sought and was granted local government approval from the Town as required by N.C. Gen. Stat. \u00a7 130A-294(a)(4), as it existed at the time, and 15A NCAC 13B.0504(1)(e). The County then filed its site plan application with DENR on 4 December 1992, beginning the permitting process. See 15A NCAC 13B.0202 (stating permit applications must contain both site and construction plans); 15A NCAC 13B.0504 (enumerating the requirements for a site plan application for a proposed sanitary landfill before the requirements for a construction plan application).\nIn addition, there is no evidence in the record that the County misled or deceived the Town in any way in securing the Town\u2019s approval. In fact, the plans for the proposed landfill contained in the construction permit application approved by DENR do not differ in any material respect from the plans presented to and approved by the Town Board on 1 September 1992. In short, the landfill facility approved by the Town in September 1992 is the same landfill facility permitted to be constructed under Facility Permit 92-22. Accordingly, the superior court did not err in concluding the Town gave approval for the proposed landfill facility at issue here.\nRespondents next contend that, even if the Town granted approval for a \u201cnew\u201d landfill facility on 1 September 1992, the Town at all times possessed the inherent power to withdraw its approval pursuant to its discretionary governmental authority. Thus, the Town maintains its withdrawal of approval for the landfill on 19 May 1998 was valid and effective.\nHowever, subsequent to 1 S\u00e9ptember 1992, the Town Board took several actions which explicitly ratified its previous approval of the County\u2019s proposed landfill. We conclude that these multiple acts of ratification equitably estopped the Town from withdrawing its approval for the proposed landfill following DENR\u2019s acceptance of the County\u2019s site plan application on 14 March 1995.\nAs a general rule, the doctrine of equitable estoppel is not applicable to municipal corporations in matters pertaining to governmental functions. 12 McQuillan Municipal Corporations \u00a7 34.85 (3d ed. 1995). However, courts in many jurisdictions have applied \u201cthe doctrine in exceptional cases, where, upon all the circumstances of the case, right and justice require it.\u201d Id. at 251. In Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C. App. 85, 336 S.E.2d 653 (1985), this Court addressed the application of the doctrine of equitable estoppel to a municipal corporation as follows:\nWe recognize that counties [and municipalities] are not subject to an estoppel to the same extent as a private individual or a private corporation. See Henderson v. Gill, Comr. of Revenue, 229 N.C. 313, 49 S.E.2d 754 (1948). Otherwise a county [or municipality] could be estopped from exercising a governmental right. Id. However, a governmental entity may be estopped if it is necessary to prevent loss to another and the estoppel will not impair the exercise of governmental powers. Washington v. McLawhorn, 237 N.C. 449, 454, 75 S.E.2d 402, 406 (1953).\nEstoppel is a means whereby a party may be prevented from asserting a legal defense contrary to or inconsistent with previous conduct. Godley v. County of Pitt, 306 N.C. 357, 360, 293 S.E.2d 167, 169 (1982). In Godley, the court determined that detrimental reliance need not be established to invoke the remedial doctrine of quasi estoppel. Id. at 361, 293 S.E.2d at 170. Quasi estoppel \u201cis directly grounded upon a party\u2019s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.\u201d Id. One who has the right to accept or reject the benefits flowing from a transaction or instrument and does not do so but instead accepts these benefits has ratified that transaction. Redevelopment Comm. of City of Greenville v. Hannaford, 29 N.C. App. 1, 4, 222, S.E.2d 752, 754 (1976)\nId. at 91-92, 336 S.E.2d at 657.\nApplying the equitable principles stated in Land-of-Sky, we conclude the Town repeatedly ratified its initial approval of the County\u2019s proposed landfill. On 15 December 1994, the Town agreed to provide Wake County 50,000 gallons of wastewater treatment capacity in the Town\u2019s treatment plant in exchange for forgiveness of $298,291.00 in debt and payment of $228,800.00 for construction of a wastewater collection system and pumping station to service the landfill site. This agreement reiterated the Town\u2019s approval of the construction, as well as operation, of the County\u2019s proposed landfill.\nOn 17 April 1995, the agreement between the Town and Wake County was amended to require Wake County to forthwith pay the Town $228,800.00 for construction of the wastewater collection system and pumping station instead of waiting until Wake County received a permit to construct. Wake County subsequently paid the Town. In sum, counting debt forgiveness and payment, the Town received a financial benefit of approximately $527,000.00 as a result of its approval of the proposed landfill site.\nFinally, on 20 May 1997, over four-and-a-half years after giving its approval for the new landfill, the Town approved Wake County\u2019s Ten Year Solid Waste Management Plan which stated that all municipal solid waste generated in Wake County between 2003 and 2023 would be disposed of at the proposed new facility.\nWake County relied upon the Town\u2019s ratification of its 1 September 1992 approval of the proposed landfill. Not only did Wake County provide the Town a large financial benefit following its grant of approval, but Wake County proceeded with the steps required to make the proposed landfill a reality. Wake County filed and received approval of a site plan application and a permit to construct. These steps required large financial investments on Wake County\u2019s part. To allow the Town to withdraw its approval and take a position inconsistent with its actions running over a period of nearly six years would be inequitable under the circumstances. It would create needless instability in the permitting process for the siting and construction of solid waste management facilities within this State, a process which is necessarily time consuming due to the significant public interest and highly-technical complexities involved, by allowing local governments to grant prior approval for a landfill site then withdraw that approval prior to the completion of the permitting process. The superior court refused to countenance such a result, as do we. We conclude, under the circumstances here, that the Town was equitably estopped from withdrawing its prior approval for the County\u2019s proposed landfill facility.\nRespondents next contend the superior court erred in concluding Wake County was not required to obtain a franchise from the Town for operation of the landfill prior to receiving Facility Permit 92-22. Respondents argue a franchise was required under both Chapter 160A, Article 16 of the General Statutes, entitled \u201cPublic Enterprises,\u201d and N.C. Gen. Stat. \u00a7 130A-294(b1)(3). It is undisputed that Wake County did not obtain a franchise from the Town. Thus, respondents maintain the Town\u2019s approval was a mere license which was revocable at any time. Wake County counters by arguing that the statutes relied upon by respondents did not require the County to obtain a franchise prior to starting construction of the landfill pursuant to Facility Permit 92-22.\nWe first address respondents\u2019 argument as to N.C.G.S. \u00a7 130A-294(b1)(3), which reads in pertinent part:\n(3) An applicant for a new permit, the renewal of a permit, or a substantial amendment to a permit for a sanitary landfill shall obtain, prior to applying for a permit, a franchise for the operation of the sanitary landfill from each local government having jurisdiction over any part of the land on which the sanitary landfill and its appurtenances are located or to be located. A local government shall adopt a franchise ordinance under G.S. 153A-136 or G.S. 160A-319 prior to the submittal by an applicant of an application for a new permit, the renewal of a permit, or a substantial amendment to a permit for a sanitary landfill. A franchise granted for a sanitary landfill shall include:\na. A statement of the population to be served, including a description of the geographic area.\nb. A description of the volume and characteristics of the waste stream.\nc. A projection on the useful life of the landfill.\nN.C. Gen. Stat. \u00a7 130A-294(b1)(3) (2001).\nIf Wake County was to begin today the permitting process for a new landfill to be located in the Town, N.C.G.S. \u00a7 130A-294(b1)(3) would require it to secure a franchise from the Town to operate the new landfill facility prior to applying for a permit from DENR. However, N.C.G.S. \u00a7 130A-294 (b1)(3) was added to the General Statutes by Session Laws 1993 (Reg. Sess. 1994), c. 722, and became effective on 7 July 1994. Section 3 of this Act states that it is \u201ceffective upon ratification and applies to applications submitted on or after the effective date.\u201d Here, Wake County began the permitting process for the proposed landfill by submitting its site plan application on 4 December 1992, prior to the effective date of N.C.G.S. \u00a7 130A-294(b1)(3). Accordingly, Wake County was not required to secure a franchise for operation of the landfill pursuant to N.C.G.S. \u00a7 130A-294(b1)(3).\nRespondents also contend Wake County was required to obtain a franchise from the Town pursuant to the Public Enterprise Statutes set forth in Chapter 160A, Article 16. N.C. Gen. Stat. \u00a7 160A-319, entitled \u201cUtility Franchises,\u201d reads in pertinent part:\n(a) A city shall have authority to grant upon reasonable terms franchises for the operation within the city of any of the enterprises listed in G.S. 160A-311 and for the operation of telephone systems . . . Except as otherwise provided by law, when a city operates an enterprise, or upon granting a franchise, a city may by ordinance make it unlawful to operate an enterprise without a franchise.\nN.C. Gen. Stat. \u00a7 160A-319(a) (2001) (emphasis added). Included among the list of \u201cpublic enterprises\u201d is \u201c[s]olid waste collection and disposal systems and facilities.\u201d N.C. Gen. Stat. \u00a7 160A-311(6) (2001). Pursuant to N.C.G.S. \u00a7 160A-76, any such ordinance granting a \u201cpublic enterprise\u201d franchise must be passed at two regular meetings of the city or town council. N.C. Gen. Stat. \u00a7 160A-76(a) (\u201cNo ordinance making a grant, renewal, extension, or amendment of any franchise shall be finally adopted until it has been passed at two regular meetings of the council, and no such grant, renewal, extension, or amendment shall be made otherwise than by ordinance.\u201d).\nRespondents contend that these statutes, when read in \"pari materia, required Wake County to obtain a franchise from the Town of Holly Springs prior to receiving Facility Permit 92-22.\nWe first note that the language used in the statutes is not mandatory in nature. N.C.G.S. \u00a7 160A-319 states that cities and towns shall have the authority to grant franchises for public enterprises and, when they choose to do so, they may pass an ordinance making it unlawful to operate a public enterprise within the city or town without a franchise. The statute does not by its language require the grant of a franchise from a city or town prior to the operation of a public utility not owned and operated by the city or town.\nHowever, case law interpreting Chapter 160A, and its predecessor, indicates that a franchise is mandatory for the operation of a \u201cpublic enterprise.\u201d See Madison Cablevision v. City of Morganton, 325 N.C. 634, 654, 386 S.E.2d 200, 212 (1989) (\u201cA city needs no grant from itself to own and operate public enterprises, including operating a CATV [cable television] system; it does so in its own right pursuant to the authority granted to it by the legislature under General Statutes chapter 160A, article 16, part 1. It needs no franchise or other grant of authority from itself as do non-municipal suppliers of the same enterprise.\u201d); Shaw v. Asheville, 269 N.C. 90, 152 S.E.2d 139 (1967); Power Co. v. Membership Co., 253 N.C. 596, 604, 117 S.E.2d 812, 817 (1961) (\u201cEvery town has by statute, G.S. 160-2(6) [nowN.C.G.S. \u00a7 160A-311], the power to grant franchises to public utilities, that is, the right to engage within the corporate boundaries in business of a public nature. Businesses requiring sovereign permission to operate are multitudinous: transportation of goods and persons by railroad or by motor carrier, transmission of telegrams, transmission and distribution of electric power, water and sewerage systems, telephone systems . . . and street railways are but illustrative of the many kinds of businesses which may require sovereign approval.\u201d). Based on this case law, we are constrained to conclude that a city or town is required to pass an ordinance granting a franchise any time a third party, be it a private individual or corporation, another municipality, or a county, seeks to operate a public utility such as a solid waste disposal facility.\nNonetheless, we conclude the Town of Holly Springs is equitably estopped from arguing that Wake County has failed to receive a franchise from the Town for operation of the proposed landfill. When the Town granted its approval of the County\u2019s proposed landfill, on 1 September 1992, the Town had no ordinance requiring a franchise for the operation of a public utility within its jurisdiction. Over the ensuing period of nearly six years, the Town took several steps to ratify this approval, including: (1) entering into an Interlocal Agreement, and subsequent amendment thereto, reiterating its approval of the construction and operation of the landfill and receiving a significant financial benefit, and (2) approving Wake County\u2019s Ten Year Solid Waste Management Plan calling for the disposal of all solid waste generated in Wake County between 2003 and 2023 at the proposed landfill.\nWake County relied on the Town\u2019s conduct in proceeding with its plans to construct the landfill. In so doing, Wake County made large financial investments. To allow the Town to now, or in the future, pass an ordinance requiring a franchise for the operation of a public utility within its jurisdiction, and subsequently attempt to prevent Wake County from operating the proposed landfill on the grounds that a franchise has not been secured, would be grossly inequitable under the circumstances of the instant case. Accordingly, we hold the Town is equitably estopped from contending that a franchise is currently, or in the future, required for operation of the proposed landfill.\nRespondents next contend the superior court erred in concluding 15A NCAC 13B.1618 did not apply to Wake County\u2019s permit to construct the landfill. Respondents further maintain the County failed to adhere to the public notice and public hearing requirements set forth in 15A NCAC 13B.1618(c)(5)(A)(i-iv).\nWhile respondents correctly contend that 15A NCAC 13B.1618(c)(5)(A)(i-iv) require a public hearing with sufficient public notice prior to the granting of local government approval for a site plan application for a new landfill, these provisions do not apply to the permitting process in the instant case due to the grandfather provision found in 15A NCAC 13B. 1618(e), which states:\n(e) New facility applications in transition. Site plan applications for a new facility submitted in accordance with Rule .0504 (1) of this Section after January 15, 1992 and prior to April 9, 1993 and approved by the Division consistent with Subparagraph (a)(1) of this Rule are not subject to the requirements of this Rule.\n15ANCAC 13B. 1618(e) (2002).\nHere, the County filed its site plan application with DENR on 4 December 1992. The site plan application was submitted in accordance with the requirements of Rule .0504(1), including the approval of the Town Board. The County\u2019s site plan application was subsequently approved, on 14 March 1995, by the Division of Solid Waste Management and the County was authorized to prepare an application for a permit to construct. See 15A NCAC 13B.1618(a)(1). Accordingly, the County\u2019s site plan application was not subject to 15ANCAC 13B.1618(c)(5)(A).\nRespondents next contend the superior court erred in concluding N.C. Gen. Stat. \u00a7 153A-136(c) was inapplicable to Wake County\u2019s selection of the site for the proposed new landfill. We disagree.\nN.C.G.S. \u00a7 I53A-136(c), effective 22 July 1992, sets forth requirements that must be satisfied by a county prior to the selection or approval of certain landfill sites.\n\u00a7 153A-136 Regulation of solid wastes.\n(c) The board of commissioners of a county shall consider alternative sites and socioeconomic and demographic data and shall hold a public hearing prior to selecting or approving a site for a new sanitary landfill that receives residential solid waste that is located within one mile of an existing sanitary landfill within the State. The distance between an existing and a proposed site shall be determined by measurement between the closest points on the outer boundary of each site. The definitions set out in G.S. 130A-290 apply to this subsection. As used in this subsection:\n(1) \u201cApproving a site\u201d refers to prior approval of a site under G.S. 130A-294(a)(4).\n(2) \u201cExisting sanitary landfill\u201d means a sanitary landfill that is in operation or that has been in operation within the five-year period immediately prior to the date on which an application for a permit is submitted.\n(3) \u201cNew sanitary landfill\u201d means a sanitary landfill that includes areas not within the legal description of an existing sanitary landfill as set out in the permit for the existing sanitary landfill.\n(4) \u201cSocioeconomic and demographic data\u201d means the most recent socioeconomic and demographic date compiled by the United States Bureau of the Census and any additional socioeconomic and demographic data submitted at the public hearing.\nN.C. Gen. Stat. \u00a7 153A-136(c) (2001).\nHere, it is undisputed that the proposed landfill facility constitutes a \u201cnew sanitary landfill\u201d under N.C.G.S. \u00a7 153A-136(c), since the area of the proposed landfill is not within the legal description of an existing sanitary landfill. It is likewise undisputed that the proposed landfill is located within one mile of the Feltonsville Landfill, which was in operation when the County\u2019s site plan application was submitted. It is further uncontested that Wake County did not meet the requirements of N.C.G.S. \u00a7 153A-136(c) in selecting or approving the site for the proposed landfill. Wake County argues that it is excused from compliance with N.C.G.S. \u00a7 153A-136(c) by the exemption enacted contemporaneously therewith, which provides in pertinent part:\nG.S. 153A-136(c) . . . shall not apply to the selection or approval of a site for a new sanitary landfill if, prior to the effective date of this act [22 July 1992]:\n(1) The site was selected or approved by the board of commissioners of a county or the governing board of a city;\n(2) A public hearing on the selection or approval of the site has been held;\n(3) A long-term contract was approved by the Department of Environment, Health, and Natural Resources [now the Department of Environment and Natural Resources] under Part 4 of Article 15 of Chapter 153A of the General Statutes; or\n(4) An application for a permit for a sanitary landfill to be located on the site has been submitted to the Department of Environment, Health and Natural Resources [now the Department of Environment and Natural Resources].\nSession Laws 1991 (Reg. Sess., 1992), c. 1013, s. 9 (emphasis added).\nWake County contends the actions of the County Board constituted selection or approval of the proposed landfill site prior to 22 July 1992, the effective date of N.C.G.S. \u00a7 153A-136(c). Respondents however contend Wake County had not selected or approved a site for a \u201cnew\u201d landfill prior to 22 July 1992. According to respondents, all Wake County had done at that time was authorize the \u201clateral expansion\u201d of the existing Feltonsville Landfill. Since a \u201cnew\u201d landfill had not been authorized prior to 22 July 1992, respondents insist N.C.G.S. \u00a7 153A-136(c) applies to the selection of the proposed landfill site. Respondents further contend the County could not have selected or approved the proposed landfill site prior to 22 July 1992, whether it be considered a \u201cnew\u201d landfill or a \u201clateral expansion,\u201d because the Town\u2019s approval of the site was a condition precedent to the County\u2019s approval and the Town did not grant its approval until 1 September 1992, after the effective date of N.C.G.S. \u00a7 153A-136(c).\nAs earlier noted, the distinction between a \u201cnew\u201d municipal solid waste landfill and a \u201clateral expansion\u201d of an existing landfill did not appear in the solid waste management rules and regulations until 9 October 1993, after both the Town and the County had clearly selected and approved the proposed landfill site. Further, the record shows that th\u00e9 County\u2019s plans for the landfill did not change in any material respect following the Town\u2019s approval on 1 September 1992. Because the County initially referred to its proposed plans as an \u201cexpansion\u201d of the Feltonsville Landfill does not change the fact that the plans approved by the County and Town were at all times for the construction of a \u201cnew sanitary landfill\u201d facility, as defined under N.C.G.S. \u00a7 153A-136(c). Accordingly, we must determine whether the County selected or approved the site prior to the effective date of N.C.G.S. 153A-136(c).\nIn Grassy Creek Neighborhood Alliance, Inc. v. City of Winston-Salem, 142 N.C. App. 290, 542 S.E.2d 296 (2001), this Court faced a similar question. In Grassy Creek, the plaintiffs argued that the City of Winston-Salem Board of Alderman had not selected or approved the site for a landfill prior to 22 July 1992, the effective date of N.C.G.S. \u00a7 160A-325, which sets forth the same requirements for cities and towns as does N.C.G.S. \u00a7 153A-136(c) for counties.\nThe Court noted that, prior to 22 July 1992, the City had entered into an interlocal agreement with Forsyth County creating a Utility Commission with responsibility over, inter alia, solid waste management and disposal. On 12 August 1991, the Utility Commission approved a resolution to proceed with the landfill. The resolution created access restrictions and buffer requirements for the landfill site and identified the site by tax lots and block numbers. The resolution also stated the approximate price of the property for the landfill site and resolved that the City undertake to acquire the property.\nOn 9 September 1991, the Finance Committee of the Board of Alderman approved a resolution entitled \u201cRESOLUTION OF THE CITY OF WINSTON-SALEM, NORTH CAROLINA APPROVING THE LEASE AGREEMENT WITH NORTH CAROLINA MUNICIPAL LEASING CORPORATION AND RELATED MATTERS.\u201d Under the terms of the lease, North Carolina Municipal Leasing Corporation would purchase the property for the landfill and lease it to the City. The Finance Committee attached a \u201cBoard of Alderman-Action Request Form\u201d to the resolution stating that the lease was, in part, for the acquisition of \u201cland for future solid waste disposal.\u201d\nOn 16 September 1991, the Finance Committee resolution and the Action-Request Form were brought before the Board of Alderman. The Board approved the following resolution:\nthe Mayor, the City Manager, the City Secretary, and the Director of Finance of the City are hereby authorized, empowered and directed to do any and all other acts and to execute any and all other documents, which they in their discretion, deem necessary and appropriate in order to consummate the transactions contemplated by (I) this Resolution, (ii) the Lease, and (iii) the documents presented to this meeting . . .\nThis Court concluded the actions of the Board of Alderman \u2014 approving the lease agreement for the property that had previously been identified as \u201cland for solid waste disposal\u201d \u2014 were sufficient to constitute a selection or approval of the landfill expansion site on 16 September 1991, prior to the effective date of N.C.G.S. \u00a7 160A-325.\nHere, the County Board, on 29 October 1990, authorized the purchase of the 162.37-acre tract of land for the landfill. On 5 August 1991, the County Board directed staff to pursue acquisition of additional property for the landfill. Finally, on 6 April 1992, the County Board authorized the purchase of the four additional tracts of land to be used for the landfill.\nWe hold these actions of the County Board to be sufficient to constitute selection of the landfill site as of 6 April 1992, prior to the effective date of N.C.G.S. \u00a7 153A-136(c). Accordingly, the exemption found in Session Laws 1991 (Reg. Sess., 1992), c. 1013, s. 9 applies and the County was not required to consider alternative sites and socioeconomic and demographic data, or to hold a public hearing prior to selecting the site.\nRespondents correctly point out that the Town, under N.C. Gen. Stat. \u00a7 160A-325(a), has a separate and independent duty to consider alternative sites and socioeconomic and demographic data prior to granting its approval of the location of a \u201cnew sanitary landfill.\u201d Because the Town\u2019s approval was not granted until 1 September 1992, after the effective date of N.C.G.S. \u00a7 160A-325, and the Town did not meet the requirements of the statute, respondents maintain Facility Permit 92-22 was issued in violation of N.C.G.S. \u00a7 160A-325 and must be set aside.\nHowever, consideration of the requirements found in N.C.G.S. \u00a7\u00a7 153A-136(c) and 160A-325(a) are not part of the permitting process for a solid waste management landfill. DENR is authorized to issue permits \u201cgoverning the establishment and operation of solid waste management facilities.\u201d N.C. Gen. Stat. \u00a7 130A-294(4)a (2001). DENR\u2019s authority to promulgate rules and regulations and to develop a permitting system for landfills is therefore derived from N.C.G.S. \u00a7 130A-294(a)(4)a. The administrative rules promulgated pursuant to N.C.G.S. \u00a7 130A-294 specify detail requirements that applicants must meet and state specifically that applications for permits shall be reviewed \u201cto assure that all provisions of these Rules, the Solid Waste Management Act [N.C. Gen. Stat. \u00a7 130A, Article 9], and the Federal Act [the Resource Conservation and Recovery Act of 1976], will be met.\u201d 15A NCAC 13B.0203 (2002). Neither the Rules, the Solid Waste Management Act, nor the Federal Act incorporates N.C.G.S. \u00a7 153A-136(c), or N.C.G.S. \u00a7 160A-325(a), as a requirement which must be met by landfill permit applicants.\nGenerally, an administrative agency may exercise its authority only as specifically delegated by the legislature. North Carolina has embraced this principle in N.C. Gen. Stat. \u00a7 150B-19 (2001), which reads in pertinent part:\nAn agency may not adopt a rule that does one or more of the following:\n(1) Implements or interprets a law unless that law or another law specifically authorizes the agency to do so.\nBecause neither N.C.G.S. \u00a7 160A-325(a) nor any other statute specifically authorizes DENR to implement or interpret Section 160A-325(a), it is not part of DENR\u2019s regulatory permitting scheme for solid waste management landfills, and assuming, arguendo, the Town was required to adhere to its requirements, failure to do so does not require withdrawal of Facility Permit 92-22.\nFinally, even if a municipality\u2019s failure to comply with N.C.G.S. \u00a7 160A-325(a) could warrant withdrawal of a landfill permit issued by DENR, we would still conclude, based on the facts of the instant case, that here the Town of Holly Springs and the individual respondents are equitably estopped from raising such a failure in contesting Facility Permit 92-22.\nFor the reasons discussed herein, we agree with the able and learned superior court judge, and affirm his reissuance of Facility Permit 92-22 to Wake County.\nAffirmed.\nJudge McGEE concurs.\nJudge WALKER concurs in a separate opinion.\n. DENR did not file a brief as a party to this appeal due to the unique procedural posture created by the administrative law judge\u2019s recommended decision being adopted as the final agency decision by court order pursuant to N.C. Gen. Stat. \u00a7 150B-44. However, DENR did file an amicus brief in support of the superior court\u2019s reversal of the administrative law judge\u2019s judicially-imposed decision.\n. N.C.G.S. \u00a7 150B-44 has since been amended to provide that a final agency decision is due 60 days after the record is transmitted from OAH to the agency. N.C. Gen. Stat. \u00a7 150B-44 (2001).\n. Having concluded that all respondents here are \u201cpersons aggrieved\u201d within the meaning of the NCAPA, we do not address whether the individual respondents also have taxpayer standing to contest DENR\u2019s issuance of Facility Permit 92-22.\n. As a result of this conclusion, we do not consider the vested rights argument presented by DENR and the North Carolina Association of County Commissioners in their amicus briefs. We also do not consider Wake County\u2019s argument that the Town contractually waived its right to withdraw its approval by entering into the Interlocal Agreement.", "type": "majority", "author": "CAMPBELL, Judge." }, { "text": "WALKER, Judge,\nconcurring.\nI concur in this well-reasoned opinion and I further agree with the following conclusion of the trial court:\n24. Additionally this Court concludes as a matter of law that the Interlocal Agreements between Wake County and the Town of Holly Springs entered into on December 12, 1994, and April 17, 1995, are valid, enforceable contracts between the parties. In those agreements the Town specifically approved Wake County\u2019s \u201cconstruction and operation\u201d of the MSW landfill within the Town\u2019s jurisdiction. By those agreements the Town contractually released any right it might have had to withdraw its approval for Wake County to locate the MSW landfill within the Town\u2019s jurisdiction. Because the Town had contractually surrendered any such right of withdrawal it might have had, the Decision\u2019s conclusion that DENR was required not to issue the MSW landfill construction permit to Wake County because of the Town\u2019s withdrawal of approval is erroneous as a matter of law.", "type": "concurrence", "author": "WALKER, Judge," } ], "attorneys": [ "Wake County Attorney\u2019s Office, by Michael R. Ferrell, for petitioner-appellee County of Wake.", "Land Loss Prevention Project, by Katherine Carpenter and Marcus Jimison; John Schifano; and John D. Runkle, for respondent-appellants Jerry Franks and John Schifano, et al.", "The Sanford Holshouser Law Firm, by Anna K. Baird and Ernest C. Pearson, for respondent-intervenor-appellant Town of Holly Springs.", "Attorney General Roy Cooper, by Assistant Attorneys General Nancy E. Scott and Lauren M. Clemmons, for North Carolina Department of Environment and Natural Resources, amicus curiae.", "James B. Blackburn, General Counsel; and Jordan Price Wall Gray Jones & Carlton, by R. Frank Gray and Hope Derby Carmichael, for North Carolina Association of County Commissioners, amicus curiae." ], "corrections": "", "head_matter": "COUNTY OF WAKE, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES, and JERRY FRANKS and JOHN SCHIFANO, et al., Respondents and TOWN OF HOLLY SPRINGS, Respondent-Intervenor\nNo. COA01-847\n(Filed 31 December 2002)\n1. Administrative Law \u2014 final agency decision \u2014 de novo review\nThe trial court properly exercised a de novo review in examining the substantive issues raised by respondent individuals\u2019 appeal concerning the reversal of a final administrative agency decision that ordered the withdrawal of a permit to construct a municipal solid waste landfill that had been issued to petitioner county.\n2. Administrative Law \u2014 North Carolina Administrative Procedures Act \u2014 standing\u2014persons aggrieved\nIndividual respondents who were adjacent property owners to a proposed landfill and respondent-intervenor town qualify as \u201cpersons aggrieved\u201d under the North Carolina Administrative Procedures Acts and issues raised by respondents on appeal including the issue of whether respondent-intervenor town approved the location of the proposed landfill facility within its jurisdiction were properly before the trial court.\n3. Public Health \u2014 solid waste management regulations \u2014 new and separate facility \u2014 lateral expansion\nThe trial court did not err by concluding that respondent-intervenor town\u2019s initial approval contained in its 1 September 1992 resolution included the construction of a new and separate sanitary landfill facility and was not only for a lateral expansion of the existing landfill.\n4. Estoppel \u2014 equitable\u2014municipal corporation \u2014 ratification\nThe trial court did not err by concluding that respondent-intervenor town could not withdraw its approval for petitioner county\u2019s landfill facility on 19 May 1998 even though respondent individuals contend the town at all times possessed the inherent power to withdraw its approval pursuant to its discretionary governmental authority because the town\u2019s multiple acts of ratification of its prior approval equitably estopped the town from withdrawing its approval.\n5. Franchise \u2014 solid waste management regulations \u2014 sanitary landfill\nThe trial court did not err by concluding that petitioner county was not required to obtain a franchise under N.C.G.S. \u00a7 130A-294(bl)(3) or N.C.G.S. \u00a7 160A-319 from respondent-intervenor town for operation of a sanitary landfill prior to receiving Facility Permit 92-22.\n6. Public Health \u2014 solid waste management regulations \u2014 sanitary landfill \u2014 applicability of administrative rule\nThe trial court did not err by concluding that 15A N.C.A.C. 13B.1618 did not apply to petitioner county\u2019s permit to construct a sanitary landfill.\n7. Public Health \u2014 solid waste management regulations \u2014 sanitary landfill \u2014 applicability of statute\nThe trial court did not err by concluding that N.C.G.S. \u00a7 153A-136(c) was inapplicable to petitioner county\u2019s selection of the site for a proposed new sanitary landfill.\nJudge Walker concurring.\nAppeal by respondents and respondent-intervenor from order entered 19 March 2001 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 17 April 2002.\nWake County Attorney\u2019s Office, by Michael R. Ferrell, for petitioner-appellee County of Wake.\nLand Loss Prevention Project, by Katherine Carpenter and Marcus Jimison; John Schifano; and John D. Runkle, for respondent-appellants Jerry Franks and John Schifano, et al.\nThe Sanford Holshouser Law Firm, by Anna K. Baird and Ernest C. Pearson, for respondent-intervenor-appellant Town of Holly Springs.\nAttorney General Roy Cooper, by Assistant Attorneys General Nancy E. Scott and Lauren M. Clemmons, for North Carolina Department of Environment and Natural Resources, amicus curiae.\nJames B. Blackburn, General Counsel; and Jordan Price Wall Gray Jones & Carlton, by R. Frank Gray and Hope Derby Carmichael, for North Carolina Association of County Commissioners, amicus curiae." }, "file_name": "0225-01", "first_page_order": 255, "last_page_order": 281 }