Editor’s Note: Derek Allen is a member of the Zoning and Land Use Planning Practice Group at Ward and Smith, P.A.

A county’s zoning ordinance prohibits cell phone towers that are over 100 feet tall. The zoning ordinance, however, allows other structures (including other types of towers) to exceed 100 feet in height. Are there any constitutional protections that can be invoked to challenge this prohibition that seems arbitrary on its face?

The freedom to contract and to engage in lawful business activity without unreasonable or arbitrary interference by the government is guaranteed by both the Fourteenth Amendment to the United States Constitution (the “Due Process Clause”) and Article I, Section 19, of the North Carolina Constitution (the “Law of the Land Clause”). This constitutional right to be free from unreasonable or arbitrary governmental interference is called “substantive due process.” Since the test for whether a zoning regulation violates the Due Process Clause of the United States Constitution is the same as the test under the North Carolina Law of the Land Clause, this article will focus on the latter.

The North Carolina Constitution provides that “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness” are among those rights of the people that are inalienable, and further that “[n]o person shall be…deprived of his…liberty, or property, but by the law of the land.” In the zoning context, substantive due process limits the state’s police power to restrict an owner’s development or use of the owner’s property to actions which have a real or substantial relation to the public health, morals, order, safety, or general welfare.

Any exercise by the state of its police power is, of course, a deprivation of liberty. Whether it is a violation of due process or a valid exercise of the police power is a question of degree and of reasonableness in relation to the public good likely to result from it. To deny a person, association, or corporation the right to engage in a business, otherwise lawful, is a far greater restriction upon liberty than to deny the right to charge in that business whatever prices the owner sees fit to charge for services provided. Consequently, a deprivation of the right to engage in a business at all requires a substantially greater likelihood of benefit to the public in order to enable it to survive an attack based upon due process concerns.

The due process protections of the Law of the Land Clause have been interpreted consistently to permit the state, through the exercise of its zoning authority, to enact ordinances, provided the regulations are rationally related to proper governmental purposes. The inquiry is twofold: first, is there a proper governmental purpose for the statute, and second, are the means chosen to effect that purpose reasonable? So, even though the particular objective of legislation may be within the proper scope of the state’s police power, the legislation is still invalid if the means used to achieve the objective is unreasonable.

Under this two-pronged test, a zoning ordinance is invalid if there is no rational or reasonable relationship between the restriction imposed and a legitimate governmental purpose. Owners frequently argue that a zoning ordinance violates due process because there is no reasonable relation between its restrictions and a legitimate governmental purpose. However, more often than not, the objectives of zoning ordinances are within the scope of what is considered a legitimate purpose.

This means that, except in very unusual situations, the analysis will boil down to whether there is a reasonable relation between the means used in the zoning ordinance and the legitimate purposes of the zoning ordinance.

In the cell phone tower situation posed above, presumably the governmental purpose in enacting the restriction is grounded in safety or some similar public welfare concern. Safety and public welfare have long been held to be, and are, legitimate governmental objectives. Thus, the first prong of the constitutional analysis is satisfied. Therefore, the owner wanting to install a 100-plus-foot cell tower will be well advised to focus the argument on the second prong of the analysis – the means used.

The best constitutional challenge to this ordinance would be based on the fact that the cell phone tower ordinance, on its face, prohibits cell phone towers that are taller than 100 feet but not other structures (including other kinds of towers, e.g., radio and TV towers). The owner’s argument should be that the government cannot articulate any rational reason for applying the height restriction to one kind of tower (cell phone) and not the others (radio and TV). If the government cannot respond with proof that there is a reasonable basis for limiting the restriction to cell phone towers only, then the ordinance would fail the means prong of the due process analysis.


When faced with a zoning ordinance that seems arbitrary on its face, a property owner should examine: (1) whether there is a reasonable relationship between the restriction imposed by the ordinance and a legitimate governmental purpose; and (2) whether the means chosen to effect that purpose was reasonable. If there is doubt as to whether one or both of these factors exist, the owner should consider challenging the validity of the ordinance under the North Carolina Law of the Land Clause and the Due Process Clause of the 14th Amendment to the United States Constitution.

© 2011, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Derek Allen practices in the Zoning and Land Use Planning Practice Group, where he is involved in representing developers at all stages of the land use and development process. Comments or questions may be sent to dja@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.