Can Watauga County use its zoning ordinance to regulate the height and fall zone of a UNC-TV transmission tower located in the county, or is a state-owned television tower outside the county's authority?
Plain-English summary
Watauga County had a local ordinance that regulated the height of communication towers and required a "fall zone" buffer around them. The county claimed authority for the ordinance from G.S. § 153A-121, which is the general police-power statute that lets counties regulate things detrimental to public health, safety, or welfare. UNC-TV had built (or rebuilt) a transmission tower in the county. The county wanted UNC-TV to apply for a variance from the local ordinance. UNC-TV asked the state's lawyers whether it had to.
AG Mike Easley's office said no. The analysis ran in three steps.
Step one: the rule that statutes don't bind the State unless they say so. Under State v. Tenore, 280 N.C. 238 (1972), and the Court of Appeals' decision in Davidson County v. City of High Point, 85 N.C. App. 26 (1987), modified and affirmed 321 N.C. 252, North Carolina law applies a default presumption: general statutes do not bind the State unless the State is expressly mentioned in them. So when Watauga County invoked G.S. § 153A-121's general police-power language, the question was whether that statute expressly authorized regulation of state-owned structures. The opinion found that it did not.
Step two: the specific zoning chain (§§ 153A-340 and 153A-347). The legislature has expressly delegated zoning authority to counties in G.S. § 153A-340, which lets counties regulate the height and size of "buildings and other structures" for health, safety, and welfare purposes. But G.S. § 153A-347 limits how far that delegation reaches against state property: the part of the zoning authority that applies to "the erection, construction and use of buildings by the State of North Carolina and its political subdivisions" is the only piece that binds the State.
Step three: a TV tower is not a "building." Drawing on Davidson County, the AG noted that a "building" in this context is "a structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like." A TV transmission tower is none of those things. So even the carve-out in § 153A-347 didn't pull UNC-TV's tower under the county's zoning authority.
The bottom line: Watauga County's tower ordinance did not apply to the UNC-TV tower at all. The county had no power to enforce it, and UNC-TV did not need to apply for a variance.
Currency note
This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Chapter 153A's zoning provisions have been amended several times since 2000, including the addition of explicit handling of telecommunications towers under both state law and federal preemption regimes (the Telecommunications Act of 1996 and subsequent FCC orders constrain how localities can regulate wireless and broadcast towers). The general principles the AG relied on, that statutes don't bind the State by default and that counties' delegated zoning authority is strictly construed, have remained doctrinally stable, but the specific question of whether a particular state-controlled tower escapes a particular local ordinance now requires fresh analysis under the current chapter and any applicable federal regime.
Common questions readers actually have
Why don't general statutes bind the State?
It is a long-standing rule of construction in North Carolina, traceable through State v. Tenore and back to older cases, that the General Assembly does not subject the State (or, depending on context, the State's instrumentalities) to general regulatory laws unless it says so explicitly. The reasoning is part sovereignty, part separation-of-powers, and part practical: the legislature controls state agencies through other tools (the budget, governing-board appointments, statutory mandates). Subjecting state operations to every local ordinance by default would invert that structure.
Was UNC-TV considered "the State" for purposes of this rule?
Yes. UNC-TV is part of the University of North Carolina, which is a constitutionally established public institution. The opinion treats the UNC-TV tower as a state-owned and state-operated structure for purposes of the Tenore analysis, and the county did not appear to dispute that.
What about federal regulation of broadcast towers? Did the FCC have something to say?
The opinion does not discuss it. The question Watauga County raised was a state-law zoning question, not a federal preemption question. Communication towers do involve significant federal regulation (FAA marking, FCC siting rules, environmental review), but those are layered on top of, not in place of, the state-law question of whether a county ordinance reaches the tower at all.
Could Watauga County have ever regulated UNC-TV's tower?
If the General Assembly had wanted Watauga County to be able to apply local height/fall-zone rules to state communication towers, it would have had to say so in the statute. There is nothing inherent about the police power that lets a county regulate state property; the authority must come from the General Assembly. The legislature could in theory amend § 153A-121 or § 153A-347 to expressly include state-owned communication towers, but absent that, counties are limited to the existing buildings-focused delegation.
Did UNC-TV still have to worry about Watauga County at all?
For zoning, no. The opinion is squarely a no-jurisdiction holding. UNC-TV would still have had to handle other regulatory layers (FAA, FCC, environmental, NC State Historic Preservation Office where applicable, the State Construction Office). But on the question of whether the county's tower ordinance had any teeth against a UNC-TV tower, the answer was clean: no.
Background and statutory framework
The default rule: statutes don't bind the State unless expressly stated
State v. Tenore, 280 N.C. 238 (1972), is the leading articulation. Davidson County v. City of High Point, 85 N.C. App. 26 (1987), 321 N.C. 252 (1987), applied the rule in the local-government-versus-state-property context: a county claiming authority to regulate state property must point to express statutory language.
G.S. § 153A-121: the general police-power delegation
This statute lets counties enact ordinances to regulate conditions detrimental to public health, safety, or welfare. Its language is broad but generic. The AG concluded that the absence of any express reference to state property in § 153A-121 meant the State was not bound by ordinances enacted under that section alone.
G.S. § 153A-340 and § 153A-347: the zoning chain
Section 153A-340 is the specific zoning delegation: it lets counties regulate the height and size of buildings and other structures for police-power purposes. Section 153A-347 limits which county zoning reaches state property: "the provisions of Article 18, Part 3 of Chapter 153A" apply to "the erection, construction and use of buildings by the State of North Carolina and its political subdivisions." So the State is bound by some county zoning, but only the parts directed at buildings constructed by the State.
The "building" definition
The Court of Appeals in Davidson County read "building" as "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." (Black's Law Dictionary, 5th ed.) A transmission tower has none of those characteristics: it is structural support for antennas, not a habitable or sheltering envelope. So it does not fit the definition and is outside the § 153A-347 carve-out.
The signing officials
The opinion was signed by Reginald L. Watkins, Senior Deputy Attorney General; Roy A. Giles, Jr., Special Deputy Attorney General; and Jeffrey B. Parsons, Assistant Attorney General. Copies went to Lee Culpepper, Grayson Kelley, and Tom Ziko.
Source
- Landing page: https://ncdoj.gov/opinions/applicability-of-watauga-county-ordinances-to-unc-tv-tower-in-waauga-county/
Original opinion text
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, Black's 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