dissenting.
I respectfully dissent from the majority’s holding that the Commission had jurisdiction both to review Dominion’s premature appeal and to preempt the Town’s ordinance.
Preliminarily, because Dominion has failed to apply for a conditional use permit or variance, I would dismiss the matter for Dominion’s failure to exhaust its administrative remedies. “If a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.” Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 369, 595 S.E.2d *574773, 775 (2004) (citing Shell Island Homeowners Ass’n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999)).
Here, Dominion failed to seek a conditional use permit from the Town’s Planning Board and Board of Commissioners, failed to seek a variance from the Town’s Board of Adjustment, and, assuming adverse rulings from the local boards, failed to seek relief from the superior court. See Laurel Valley Watch, Inc. v. Mountain Enters. of Wolf Ridge, LLC, 192 N.C. App. 391, 399, 665 S.E.2d 561, 569-70 (2008) (holding this Court is without subject matter jurisdiction to hear plaintiff’s claims because plaintiff failed exhaust administrative remedies by failing to seek and to receive an adverse ruling from county zoning officials or to appeal the adverse ruling to the county Planning Board before prematurely seeking relief in the trial court); Ward v. New Hanover Cty., 175 N.C. App. 671, 679, 625 S.E.2d 598, 603 (2006) (summary judgment affirmed for defendant county when plaintiff failed to exhaust administrative remedies without having sought special use permits from the Board of Adjustment). Instead, Dominion attempted to circumvent the municipal ordinance and appropriate administrative process through the Commission. It long has been established that “plaintiffs are not permitted to change horses in the middle of the stream____” Pue v. Hood, Comr. of Banks, 222 N.C. 310, 313, 22 S.E.2d 896, 898 (1942) (citations omitted) (internal quotation marks omitted).
Next, I read North Carolina General Statutes, section 62-106 as creating in the Commission a limited power to preempt municipal ordinances only when the siting of electrical transmission lines carrying 161 kilovolts or more is at issue. Although I agree that the Commission has jurisdiction to adjudicate disputes involving less than 161 kilovolts pursuant to North Carolina General Statutes, section 62-42, I cannot believe that the General Assembly intended section 62-42 to give the Commission an implicit power to preempt a valid municipal ordinance when the siting of an electrical transmission line carrying less than 161 kilovolts is at issue. Because the Commission was not vested properly with jurisdiction over Dominion’s premature appeal, pursuant to North Carolina General Statutes, section 62-94(b)(2), I would hold the Commission’s order null and void as ultra vires. See N.C. Gen. Stat. § 62-94(b)(2) (2007).
North Carolina General Statutes, section 160A-174 enables cities and towns to enact ordinances to provide for “the health, safety, or welfare of its citizens and the peace and dignity of the [town] . . . .” N.C. Gen. Stat. § 160A-174(a) (2007). Furthermore,
*575[a] [town] ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when . . . [t]he ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation[.]
N.C. Gen. Stat. § 160A-174(b)(5) (2007) (emphasis added).
In pertinent part, North Carolina General Statutes, section 62-42 provides:
(a) ... whenever the Commission . . . finds:
(4) That it is reasonable and proper that new structures should be erected to promote the . . . convenience ... of its patrons, employees and the public, or
(5) That any other act is necessary to secure reasonably adequate service or facilities and reasonably and adequately to serve the public convenience and necessity,
the Commission shall enter and serve an order directing that such additions, . . . improvements, or additional services or changes shall be made or affected within a reasonable time prescribed in the order.
(c) For the purpose of this section, “public utility” shall include any electric membership corporation operating within this State.
N.C. Gen. Stat. § 62-42 (2007). Thus, section 62-42 grants the authority to the Commission both to make findings and to draft orders implementing the results of those findings.
This Court has held that the Commission has jurisdiction to hear complaints against the proposed siting of electrical transmission lines pursuant to section 62-42. See In re State ex rel. Util. Comm. v. Mountain Elec. Cooperative, 108 N.C. App. 283, 423 S.E.2d 516 (1992), aff’d, 334 N.C. 681, 435 S.E.2d 71 (1993) (per curiam).
In Mountain Electric, the “sole issue presented... [was] whether the ... Commission... lacked jurisdiction over a dispute arising from *576the proposed siting of an electrical transmission line.” Mountain Elec. Cooperative, 108 N.C. App. at 283, 423 S.E.2d at 516. The facts of Mountain Electric, however, did not raise the issue of whether the Commission has jurisdiction to preempt a local ordinance during a dispute involving the siting of an electrical transmission line carrying less than 161 kilovolts. In fact, this Court specifically limited its holding by explaining that
[w]e are not convinced that a conflict necessarily exists between the more general statutory framework construed hereinabove to permit the Commission to hear disputes about electrical line siting and the more recent statutes which govern in detail resolution of such disputes about lines carrying 161 or more kilovolts. Nevertheless, we leave for another day the question of whether the statutes permit the Commission after the effective date of [North Carolina General Statutes, sections] 62-100 et seq. to continue to resolve, in the same manner as before, disputes involving lines carrying less than 161 kilovolts.
Mountain Elec. Cooperative, 108 N.C. App. at 287, 423 S.E.2d at 518 (emphasis added).
Sections 62-100 et seq. form article 5A of Chapter 62 of the General Statutes, which became effective 1 December 1991. In relevant part, section 62-100(7) defines “transmission line” as “an electric line designed with a capacity of at least 161 kilovolts.” N.C. Gen. Stat. § 62-100(7) (2007). Thus, article 5A expressly concerns higher voltage lines. “No public utility or any other person may begin to construct a new transmission line [of 161 kilovolts or more] without first obtaining from the Commission a certificate of environmental compatibility and public convenience and necessity.” N.C. Gen. Stat. § 62-101(a) (2007).‘However, “[a] certificate is not required for construction of . . . [a] line designed to carry less than 161 kilovolts[.]” N.C. Gen. Stat. § 62-101(c)(1) (2007). Therefore, the more general provision of section 62-42 continues to govern electric transmission lines carrying less than 161 kilovolts.
In contrast to the broad grant of authority in section 62-42, section 62-106 provides express authority to the Commission to preempt local ordinances and sets forth the necessary procedures. Specifically, section 62-106 provides that
[w]ithin 30 days after receipt of notice of an application as provided by [North Carolina General Statutes, section] 62-102, a *577municipality or county shall file with the Commission and serve on the applicant the provisions of an ordinance that may affect the construction, operation, or maintenance of the proposed transmission line in the manner provided by the rules of the Commission. If the municipality or county does not serve notice as provided above of any such ordinance provisions, the provisions of such ordinance may not be enforced by the municipality or county. If the applicant proposes not to comply with any part of the ordinance, the applicant may move the Commission for an order preempting that part of the ordinance. Service of the motion on the municipality or county by the applicant shall make the municipality or county a party to the proceeding. If the Commission finds that the greater public interest requires it, the Commission may include in a certificate issued under this Article an order preempting any part of such county or municipal ordinance with respect to the construction, operation or maintenance of the proposed transmission line.
N.C. Gen. Stat. § 62-106 (2007).
Thus, in North Carolina General Statutes, section 62-106, the General Assembly has provided detailed procedures for the permissible preemption of local ordinances only when transmission lines carrying 161 kilovolts or more are at issue. Notwithstanding its broad scope, section 62-42 does not contain such an express grant of a power to preempt. Indeed, section 62-42 contains no synonym for, or derivative of “preempt.” See N.C. Gen. Stat. § 62-42 (2007).
Although the majority argues that section 62-106 does not implicitly repeal or otherwise abrogate section 62-42, I believe “[t]his amendment to Chapter 62 reflects an acknowledgement [sic] by the legislature that it was creating a right in the Commission that did not previously exist.” Mountain Elec. Cooperative, 108 N.C. App. at 288, 423 S.E.2d at 518 (Greene, J., dissenting) (citing Childers v. Parker’s, Inc., 274 N.C. 256, 260, 162 S.E.2d 481, 483 (1968) (“The presumption is that the legislature intended to change the original act by creating a new right or withdrawing any existing one.”) (citation and internal quotation marks omitted)). Because the only “statute [that] clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation” is North Carolina General Statutes, section 62-106,1 cannot join the majority’s view that section 62-42 enables the Commission to preempt the Town’s ordinance. N.C. Gen. Stat. § 160A-174(b)(5) (2007). The legislative bal*578anee of the scope of permissible action by the Commission with the authority of the Town allows the Commission to displace local ordinances only when siting electrical transmission lines carrying 161 kilovolts or more.
Therefore, in view of our limited holding in Mountain Electric as well as the General Assembly’s demonstrated ability to provide a limited power of preemption to the Commission in article 5A of Chapter 62 of the General Statutes — a power not expressed in the Commission’s purported jurisdictional base, section 62-42 — I would hold that the Commission did not have jurisdiction to preempt the Town’s valid municipal ordinance. “ ‘The Utilities Commission, being an administrative agency created by statute, has no regulatory authority except such as is conferred upon it by Ch[apter] 62 of the General Statutes.’ ” Mountain Elec. Cooperative, 108 N.C. App. at 284, 423 S.E.2d at 516-17 (brackets in original) (quoting Utilities Comm. v. Merchandising Corp., 288 N.C. 715, 722, 220 S.E.2d 304, 308 (1975)).
For the foregoing reasons, I respectfully dissent.