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Byrd v. Franklin County

Court of Appeals of North Carolina

November 18, 2014

AARON BYRD and ERIC COOMBS, Petitioners,
v.
FRANKLIN COUNTY, NORTH CAROLINA, Respondent

Heard in the Court of Appeals August 13, 2014

Appeal by Petitioners from order entered 24 September 2013 by Judge Robert H. Hobgood in Franklin County Superior Court, No. 13 CVS 450.

Currin & Currin, by Robin T. Currin, George B. Currin, and Catherine A. Hofmann, for petitioners-appellants.

Davis Sturges and Tomlinson, by Aubrey S. Tomlinson, Jr., for respondent-appellee.

DILLON, Judge. Judge DAVIS concurs. Judge HUNTER, Robert C., concurs in part and dissents in part.

OPINION

Page 806

DILLON, Judge.

Aaron Byrd and Eric Coombs (" Petitioners" ) appeal from a superior court's order affirming a decision by Franklin County, made by its Board of Adjustment, determining that Petitioners could not operate a shooting range on their property without a special use permit, requiring approval by the County's Board of Commissioners. For the foregoing reasons, we affirm, in part, and reverse, in part, the superior court's order.

I. Background

This appeal involves the application of the Franklin County Unified Development Ordinance (" UDO" ) to a shooting range. Pursuant to the UDO, property in the County is divided into zoning districts. The UDO contains a Table of Permitted Uses (the " Table" ) and identifies in which zoning districts each use set out in the list may be allowed. For each use listed, the Table provides (1) in which zoning districts said use is allowed as a matter of right, without any further approval by the County; (2) in which zoning districts said use is a " conditional" use, requiring approval by the County Board of Adjustment; (3) in which zoning districts said use is a " special" use, requiring approval by the County Board of Commissioners; and (4) in which zoning districts said use is not allowed at all. The UDO further provides that any " [u]ses not specifically listed in the Table [] are prohibited." The Table does not specifically list shooting ranges or gun ranges.

Petitioners desire to operate a shooting range on a tract of land they own in Franklin County (the " Property" ). In the Spring of 2012, Petitioners contacted County officials to determine whether the UDO regulated their proposed shooting range.

Initially, the County Planning Director verbally informed Petitioners that the UDO did not allow a shooting range to operate in the County since this use was not listed in the UDO Table. The Planning Director recommended that Petitioners make a request to the County Board of Commissioners to amend the UDO to include shooting ranges as a use in the Table.

Subsequently, however, sometime prior to November 2012, the Planning Director had another conversation with Petitioners in which he informed them that their proposed shooting range did fall within a use category listed in the Table, namely the category entitled " Grounds and Facilities for Open Air Games and Sporting Events" (hereinafter " Open Air Games" ). He informed Petitioners that an Open Air Game was considered a special use in the Property's zoning district, and, therefore, Petitioners would need to apply to the Board of Commissioners for a special use permit to operate a shooting range on the Property.

Based on this subsequent conversation, Petitioners applied for a special use permit; however, on 3 December 2012, Petitioners' application was denied by the Board of Commissioners.[1]

Also, in December 2012, Petitioners received two written communications (the " December Letters" ) from a County code enforcement officer. The first communication, dated 9 December 2012, informed Petitioners that " in order to conduct the proposed shooting club a Special Use Permit must be obtained" and ordered Petitioners to " cease and desist any and all activity associated with a shooting range" on the Property. The second communication, dated 11 December 2012, stated that it was a " Final Notice of Violation"

Page 807

and ordered Petitioners to " halt all activities of the proposed shooting range immediately" or face " civil penalties," " legal action seeking injunction[,] and/or possible criminal action."

On 2 January 2013, Petitioners appealed from the December Letters to the Board of Adjustment. After conducting a hearing on the matter, the Board of Adjustment upheld the code enforcement officer's decisions in the December Letters, and ordered Petitioners to cease and desist all activities regarding the shooting range. The Board of Adjustment's order was affirmed by the Franklin County Superior Court by ...


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