DAVID HAMPTON, and wife, MARY D. HAMPTON, Petitioners,
CUMBERLAND COUNTY, Respondent.
in the Court of Appeals 11 January 2017.
by Respondent from order entered 13 April 2016 by Judge
Robert F. Floyd, Jr., in Cumberland County No. 15-CVS-7449
Yarborough, Winters & Neville, P.A., by Garris Neil
Yarborough, for Petitioners-Appellees.
Cumberland County Attorney's Office, by Robert A. Hasty,
Jr., for Respondent-Appellant.
appeal concerns the interpretation and application of a
county zoning ordinance to firing ranges constructed on
property without an approved site plan and permit. We hold
that a Farm Identification Number obtained by property owners
from the federal government prior to constructing firing
ranges does not, as a matter of law, establish that operation
of the ranges is a farm use exempt from zoning regulations.
We also hold that because the county board of adjustment
which first heard the matter failed to resolve material
disputed issues of fact, we must vacate the orders below and
remand for necessary findings of fact by the county board.
County (the "County") appeals from a superior
court's order reversing a decision by the Cumberland
County Board of Adjustment (the "Board") affirming
in part and modifying in part a Notice of Violations
penalizing David Hampton and his wife, Mary Hampton
(collectively the "Hamptons"), for violating the
County's zoning ordinance by operating a firing range on
their property without a site plan and permit. On appeal, the
County argues that the superior court erred in construing
certain exceptions to the ordinance in the Hamptons'
favor. After careful review, we vacate and remand for
proceedings consistent with this opinion.
Factual & Procedural Background
record tends to show the following:
Hamptons, both retired First Sergeants with the United States
Army, purchased an approximately 74-acre tract of land in
Cumberland County (the "Property") in September of
2011. The Property was zoned as rural residential. After
purchasing the Property, they obtained a Farm Identification
Number from the United States Department of Agriculture, Farm
Services Agency. Per a letter presented by the Hamptons to
the Board, they purchased the Property with the express
intent to "build our final home, a running trail and
firing/archery ranges . . . ." Beyond the Hamptons'
personal enjoyment, the firing ranges were to be constructed
"for the purpose of teaching others the fundamentals of
safe gun handling and marksmanship, and the maintenance of
firearms proficiency." In a notarized letter to the
Board, the Hamptons' real estate agent stated that the
couple "made it clear to me from the outset that they
have always planned to build ranges, so they could teach the
use of firearms to others . . . ." The Hamptons'
ranges would not be open to the public, but instead would be
available "by appointment-only" to "family,
friends and those with similar interests . . . ." In
another notarized letter submitted to the Board, a friend of
the Hamptons stated that the ranges were made available to
the Hamptons' "family, friends and formal students .
. . ."
Hamptons started clearing land for the ranges in May of 2012
and built their first range, 25 yards in length, that summer.
David Hampton then began using the range to instruct students
in defensive handgun methods, rifle and carbine training, and
tactical pistol use. The Hamptons expanded the 25-yard range
to 40 yards and allowed their friends to use the range in the
spring of 2013. In the summer of 2014, the Hamptons
constructed a 100-yard firing range adjacent to the first
range. David Hampton continued to provide training, including
instruction in firing shotguns and tactical shooting
techniques, through the beginning of 2015. The Hamptons
reported to the Board that they "introduced more than 30
people to the safe use of firearms, allowed 25 experienced
shooters to increase their proficiency, and qualified another
26 persons for their North Carolina Concealed Carry Handgun
Permit" over the course of approximately two years.
the use of firearms is integral to the facts of this case,
our review involves only the interpretation and application
of a zoning ordinance and related statutes. No argument
concerning the application or legal relevance of the Second
Amendment to the Constitution of the United States has been
advanced by either party.
May 2015, in response to a report from a North Carolina
Department of Environmental and Natural Resources official of
an unauthorized firing range on the Property, a Cumberland
County Code Enforcement Officer (the "Officer")
obtained a warrant to inspect the Property. After inspecting
the Property, the Officer issued a Notice of Violations to
the Hamptons citing a lack of an approved site plan or
permits required by the local zoning ordinance. The Notice of
Violations ordered the Hamptons to raze the firing range.
Hamptons appealed the Notice of Violations to the Board. The
Board conducted a quasi-judicial hearing on 20 August 2015.
According to the procedure provided in the County Code, the
Board heard sworn testimony from witnesses and received
documentary evidence from the parties. At the conclusion
of the hearing, the Board voted to find certain facts, to
modify the corrective action in the Notice of Violations from
removal of the range to "ceas[ing] any use of the firing
range as it conflicts with the Cumberland County Ordinance[,
]" and to affirm the Notice of Violations as modified.
These findings and conclusions were memorialized in the
Board's order dated 14 September 2015. The Board's
order contains only the following eight findings of fact:
1. The Hamptons purchased the subject property September 26,
2011, and began construction of the firing range thereafter.
2. Mrs. Hampton testified that only a small berm had been
constructed on the property in April 2013.
3. The Hamptons have continued to improve and expand the
firing range until they were contacted by DENR in May 2015.
4. The Hamptons have not used the subject property for a
residence but have obtained a permit to install a septic tank
and intend to construct a dwelling on the property.
5. The use of the property for a firing range does not
constitute a farm or a farm use on that portion of the
property on which the firing range is constructed.
6. Section 107 of the Cumberland County Zoning Ordinance has
required a zoning permit for any use of land since the
amendments of June 20, 2005.
7. The Hamptons do not have a permit for the use of their
property as a firing range.
8. The Hamptons have not applied for a permit for the use of
their property as a firing range.
Hamptons filed a Petition for Writ of Certiorari to the
Cumberland County Superior Court on 2 October 2015 and filed
an Amended Petition for Writ of Certiorari on 3 November
Hamptons' amended petition challenged the Board's
order on several grounds, alleging the Board failed to: (1)
exclude certain inadmissible evidence; (2) follow proper
procedure in making findings of fact; and (3) provide the
Hamptons with procedural due process. The Hamptons also
alleged that the Board acted arbitrarily and capriciously,
made findings without sufficient evidence, and made errors of
law in its decision. The Hamptons petitioned the Cumberland
County Superior Court to "remand this matter to the
[Board], directing it to dismiss the Notice of Violation[s]
and recognize the legal, non-conforming use of the
[Property], inter alia, for the noncommercial use of
the [Hamptons], their family and friends as a sport shooting
superior court heard the Hamptons' appeal on 28 March
2016 and entered an order reversing the Board's decision
and declaring that the Hamptons' "non-commercial use
of the 100-yard range facility for target shooting and weapon
sighting with family and friends is a legal use of their
property." The superior court also made findings of fact
not contained in the Board's order, including, among
others, the following:
8. . . . [The Hamptons] have used this portion of their
homesite and farm for target practice and weapons sighting
with family and friends . . . .
9. No commercial activity has been involved in their personal
use of this range.
. . .
14. The [Hamptons'] principal use of the subject property
is for the [Hamptons'] home and farming operations.
15. The range is incidental to the enjoyment of the
[Hamptons'] home and farm.
. . .
17. The [Hamptons'] ongoing and proposed use is to
"shoot with family and friends[.]"
superior court reversed the Board's decision for
"errors at law in its legal interpretation" of the
"occasional target practice" exception set forth in
the zoning ordinance. The superior court also concluded that
"any use of the property for a commercial firing range
would subject the property to the permit requirements of the
currently existing Firing Range Ordinance." The County
timely appealed to this Court.
Standard of Review
review a trial court's legal conclusions concerning a
board of adjustment's decision for errors of law.
Morris Commc'ns Corp. v. City of Bessemer City Zoning
Bd. of Adjustment, 365 N.C. 152, 155, 712 S.E.2d 868,
871 (2011). Appellate review of a trial court's
interpretation of a zoning ordinance is conducted de
novo, and we apply the same principles of construction
utilized in interpreting statutes. Fort v. Cnty. of
Cumberland, 235 N.C.App. 541, 549, 761 S.E.2d 744, 749
(2014). "Our review asks two questions: Did the trial
court identify the appropriate standard of review, and, if
so, did it properly apply that standard?" Morris
Commc'ns Corp., 365 N.C. at 155, 712 S.E.2d at 870
Court has no authority to make findings of fact on appellate
review. Nale v. Ethan Allen, 199 N.C.App.
511, 521, 682 S.E.2d 231, 238 (2009) ("It is not the
role of the appellate courts to make findings of
fact."). Similarly, a superior court reviewing a
decision by a board of adjustment "is not the trier
of fact but rather sits as an appellate court . . .
." Capricorn Equity Corp. v. Town of Chapel Hill Bd.
of Adjustment, 334 N.C. 132, 136, 431 S.E.2d
183, 186 (1993) (emphasis added) (citations omitted). In so
sitting, the superior court may determine only whether:
1) the [b]oard committed any errors in law; 2) the [b]oard
followed lawful procedure; 3) the petitioner was afforded
appropriate due process; 4) the [b]oard's decision was
supported by competent evidence in the whole record; and 5)
[whether] the [b]oard's decision was arbitrary and
Overton v. Camden Cnty., 155 N.C.App. 391, 393, 574
S.E.2d 157, 159 (2002) (alterations in original) (quoting
Capital Outdoor, Inc. v. Guilford Cnty. Bd. of
Adjustment, 152 N.C.App. 474, 475, 567 S.E.2d 440, 441
(2002) (citation omitted)); see also N.C. Gen. Stat.
§§ 153A-349 and 160A-393(k) (establishing the scope
of review on appeals from a board of adjustment to superior
superior court's standard of review of a board of
adjustment's decision is determined by the particular
issues raised on appeal. "If a petitioner contends the
[b]oard's decision was based on an error of law, 'de
novo' review is proper." JWL Invs., Inc. v.
Guilford Cnty. Bd. of Adjustment, 133 N.C.App. 426, 429,
515 S.E.2d 715, 717 (1999) (citation omitted). "When the
petitioner 'questions (1) whether the agency's
decision was supported by the evidence or (2) whether the
decision was arbitrary or capricious, then the reviewing
court must apply the "whole record" test.'
" ACT-UP Triangle v. Comm'n for Health Servs. of
the State of N.C. , 345 N.C. 699, 706, 483 S.E.2d 388,
392 (1997) (quoting In re Appeal by McCrary, 112
N.C.App. 161, 165, 435 S.E.2d 359, 363 (1993)).
applying de novo review, the superior court
interprets and applies the controlling law and substitutes
its judgment for that of the board of adjustment. When
applying the whole record test, the superior court examines
all competent evidence in the record to determine whether the
decision below was supported by the evidence. Myers Park
Homeowners Ass'n v. City of Charlotte, 229 N.C.App.
204, 208, 747 S.E.2d 338, 342 (2013). When a petition for
writ of certiorari from a board of adjustment decision
involves both standards, the superior court should
"apply both standards of review if required, but the
standards should be applied separately to discrete
issues." Blue Ridge Co., L.L.C. v. Town of
Pineville, 188 N.C.App. 466, 470-71, 655 S.E.2d 843, 846
(2008) (citing Sun Suites Holdings, LLC v. Bd. of
Aldermen of Town of Garner, 139 N.C.App. 269, 273-74,
533 S.E.2d 525, 528 (2000)).
160A-393(l) of the North Carolina General Statutes
provides that when reviewing a board of adjustment decision,
the superior court "may affirm the decision, reverse the
decision and remand the case with appropriate instructions,
or remand the case for further proceedings." N.C. Gen.
Stat. § 160A-393(l). The statute provides
specific procedures in the event the superior court does not
affirm a board of adjustment's decision in its entirety:
If the court concludes that the decision by the
decision-making board is . . . based upon an error of law,
then the court may remand the case with an order that directs
the decision-making board to take whatever action should have
been taken had the error not been committed or to take such
other action as is necessary to correct the error.
N.C. Gen. Stat. § 160A-393(l)(3).
[i]f the court concludes that the decision-making board has
erred by failing to make findings of fact such that the court
cannot properly perform its function, then the court may
remand the case with appropriate instructions so long as the
record contains substantial competent evidence that could
support the decision below with appropriate findings of fact.
N.C. Gen. Stat. § 160A-393(l)(2).
the superior court, per its order, reversed the Board's
decision, concluding that the Board "made errors at law
in its legal interpretation." The interpretation of a
zoning ordinance is subject to de novo review by the
superior court, Welter v. Rowan Cnty. Bd. of
Comm'rs, 160 N.C.App. 358, 362, 585 S.E.2d 472, 476
(2003), which the superior court properly recognized in its
order. We now address whether the superior court properly
applied this standard.
Applicable Sections of the Cumberland County Zoning
2005, several years before the Hamptons purchased the
Property, the County adopted a zoning ordinance section
making it "unlawful to commence the . . . use of any
land or building . . . until the [the County] issue[s] a
zoning permit for such work or use." Cumberland Cnty.,
N.C., Zoning Ordinance § 107.
2010, the County's ordinance has exempted from permitting
requirements farm uses on a bona fide farm, provided that the
property owners have received a United States Department of
Agriculture Farm Identification Number. Cumberland Cnty.,
N.C., Zoning Ordinance § 109 (2010) (the "Farm
Exemption"). However, the Farm Exemption expressly
provides that "non-farm uses are subject to the
provisions of [the zoning] ordinance." Id.
(emphasis added). This language tracks N.C. Gen. Stat. §
153A-340(b)(1) (2015), which exempts from zoning regulation
"bona fide farm[s, ]" provided the use in question
is not for "nonfarm purposes." Our courts have
acknowledged the qualified nature of this exemption. See,
e.g., Sedman v. Rijdes, 127 N.C.App. 700, 703,
492 S.E.2d 620, 622 (1997) (noting that, under N.C. Gen.
Stat. § 153A-340 (1991), "county zoning regulations
may not affect bona fide farms, but any use of farm property
for nonfarm purposes is subject to the regulations[, ]"
and observing that "[b]ona fide farm purposes" is
defined under the statute as "includ[ing] the production
and activities relating or incidental to the production of
crops, fruits, vegetables, ornamental and flowering plants,
dairy, livestock, poultry, and all other forms of
agricultural products . . ." (internal quotation marks
omitted)); see also N.C. Gen. Stat. §
153A-340(b)(2) (2015) (defining bona fide farm purposes to
"include the production and activities relating or
incidental to the production of crops, grains, fruits,
vegetables, ornamental and flowering plants, dairy,
livestock, poultry, and all other forms of agriculture, as
defined in [ N.C. Gen. Stat. §] 106-581.1").
April of 2011, several months before the Hamptons purchased
the Property, the County Board of Commissioners (the
"Commissioners") revised the zoning ordinance to
All uses of property are allowed as a use by right except
where this ordinance specifies otherwise or where this
ordinance specifically prohibits the use. In the event, [sic]
a use of property is proposed that is not addressed by the
terms of this ordinance, the minimum ordinance standards for
the use addressed by this ordinance that is most closely
related to the land use impacts of the proposed use shall
Cnty., N.C., Zoning Ordinance § 402. In 2012, the County
determined that standards for outdoor recreation "are
the most similar and more closely address the land use
impacts that would result from an outdoor firing range than
any other use specific provisions in our ordinance."
June 2013, after the Hamptons had constructed one firing
range on the Property, the Commissioners passed a Text
Amendment (the "Firing Range Amendment") to the
zoning ordinance specifically concerning the zoning and
permitting of firing ranges, which added the following
Firing Range, Outdoor: A facility,
including its component shooting ranges, safety fans or
shortfall zones, parking areas, all structures for
classrooms; administrative offices, ammunition storage
areas and other associated improvements, designed for the
purpose of providing a place for the discharge of various
types of firearms or the practice of archery. For purposes
of this ordinance, outdoor firing ranges are a principal
use of property and therefore, [sic] shall not be
considered incidental or accessory. This ordinance is
exclusive of occasional target practice by individuals on
property owned or leased by the individuals, sighting of
weapons for purposes of hunting, or temporary turkey shoots
conducted on a property no more than 12 days in any
Cumberland Cnty., N.C., Zoning Ordinance Text Amendment
P11-20 (2013) (emphasis added). The Firing Range Amendment also
added permitting requirements and restricted the operation of
outdoor firing ranges to sites no smaller than 200 acres.
ordinance sections governing the Hamptons' firing ranges
reflect a changing dynamic in the County's regulation of
outdoor firing ranges and their exemption from regulation. At
the time the Hamptons purchased the Property, no County
ordinance expressly regulated firing ranges, so except with
respect to farm uses, the Property was subject to permitting
consistent with the most analogous land use ordinance
standards. Since 17 June 2013, the operation of outdoor
firing ranges in the County requires permitting unless the
use is a farm use or falls within one of the exceptions
provided in the Firing Range Amendment. Therefore, the Firing
Range Amendment provides additional exceptions from zoning
regulation of outdoor firing ranges. The Board could not
affirm the Notice of Violations without resolving factual
disputes relating to these additional exceptions. As
explained below, the Board failed to make necessary findings
of fact regarding these exceptions and the superior court had
no authority to make those necessary findings.
The Superior Court's Interpretation of Applicable
interpreting the Firing Range Amendment, the superior court
correctly noted that "[z]oning ordinances are in
derogation of the right of private property, and where
exemptions appear in favor of the property owner, they must
be liberally construed in favor of such owner." See,
e.g., In re W. P. Rose Builders' Supply Co., 202
N.C. 496, 500, 163 S.E.2d 462, 464 (1932) ("Zoning
ordinances are in derogation of the right of private
property, and, where exemptions appear in favor of the
property owner, they should be liberally construed in favor
of such owner."); Coleman v. Town of
Hillsborough, 173 N.C.App. 560, 564, 619 S.E.2d 555, 559
(2005) ("Zoning regulation is in derogation of common
law property rights and therefore must be strictly construed
to limit such derogation to that intended by the
regulation." (citation omitted)).
Hamptons argue that the superior court's interpretation
of the Firing Range Amendment should be upheld because: (1)
it harmonizes the Firing Range Amendment with a prior
existing firearms ordinance; and (2) the distinction between
commercial and non-commercial use-crafted by the superior
court-aligns with the County's intent in passing the
Firing Range Amendment.
Hamptons' argument that the Firing Range Amendment must
be harmonized with the County's firearms ordinance is
misplaced. The firearms ordinance makes it unlawful to
discharge a firearm within certain distances of various
persons, places, and objects. Cumberland Cnty., N.C., Code of
Ordinances § 9.5-100. While it is true that
"[s]tatutes dealing with the same subject matter must be
construed in pari materia and harmonized, if
possible, to give effect to each[, ]" Bd. of
Adjustment of Town of Swansboro v. Town of Swansboro,
334 N.C. 421, 427, 432 S.E.2d 310, 313 (1993), the Firing
Range Amendment and the firearms ordinance do not govern the
same subject matter and are not in conflict.
Firing Range Amendment governs the use of land; the firearms
ordinance governs the use of firearms. The fact that a person
may run afoul of one ordinance does not create a conflict
with the other. By analogy, simply because a homeowner may
lawfully operate a motor vehicle on her private property does
not mean she is permitted to build a private racetrack in her
backyard in contravention of a zoning ordinance.
Hamptons argue that "for homeowners to comply with the
provisions of the County's Firearms Ordinance, [they are
not] require[d ] to own 200 acres of land[, ] as [required by
the] Amendment . . . ." This is not a conflict. A
homeowner can, as provided in the Firing Range Amendment,
make "occasional" use of a firearm without meeting
the Firing Range Amendment's criteria for permitting a
firing range. A homeowner can more frequently use a firearm
in many different places that he does not own-such as at a
permitted firing range. Because the Firing Range Amendment
and firearms ordinance do not concern the same subject matter
and are not in conflict, this argument is without merit.
County argues that the superior court erred in concluding
that the Board misinterpreted the exemption in the Firing
Range Amendment concerning "occasional target practice
by individuals." The County also contends that the
superior court improperly invalidated the Notice of
Violations based on findings that the Hamptons engaged in
non-commercial use of the firing ranges "for target
shooting and weapon sighting with family and friends, "
and erred in finding such use was "incidental to the[ir]
enjoyment of the [Property]" such that the Hamptons were
shielded by the County's Farm Exemption and N.C. Gen.
Stat. § 153A-340(b)(1). The County directs our attention
to evidence it contends shows that: (1) the Hamptons' use
of the Property for firearms practice and training was
routine and not occasional; (2)the ranges were not used for
"target practice" but instead for formal training;
and (3)the users were not limited to individuals owning or
leasing the Property, or even their friends or family, but
included formal students.
Unresolved Factual Issues Preclude Appellate Review
urging this Court to reverse the superior court, the County
overlooks and entreats this Court to make a critical error
that we are unwilling to repeat: basing an appellate decision
on facts not decided below. The Board made no findings as to
how frequently the Hamptons or their invitees used firearms
on the Property, whether the Property was used for target
practice or formal firearms training, or who the Hamptons
allowed to use the Property. Absent those material factual
findings, we are unable to determine on appellate review: (1)
how the Board interpreted the Farm Exemption, N.C. Gen. Stat.
§ 153A-340(b)(1), and the "occasional use"
exception in the Firing Range Amendment; and (2) how the
Board applied those interpretations to the facts before it.
Nor should the superior court have made such a determination.
We therefore must reverse the superior court-not because we
disagree with its legal conclusions, but because it lacked
the necessary factual findings to review the Board's
of a term in a zoning ordinance is a question of law.
Morris Commc'ns Corp. v. City of Bessemer City Zoning
Bd. of Adjustment, 202 N.C.App. 631, 636, 689 S.E.2d
880, 883 (2010), rev'd on other grounds, 365
N.C. 152, 712 S.E.2d 868 (2011). But whether the specific
actions of a property owner fit within that interpretation is
a question of fact. Id. at 636, 689 S.E.2d at 883
(holding that interpreting the term of a zoning ordinance is
a question of law subject to de novo review but
determining whether a party violated that interpretation is a
question of fact subject to the whole record test); see
also N.C. Dep't of Env't. and Natural Res., 358
N.C. 649, 665-66, 599 S.E.2d 888, 898 (2004) (noting that
whether a state employee engaged in certain acts is a
question of fact and whether those acts constitute "just
cause" for ...