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Hampton v. Cumberland County

Court of Appeals of North Carolina

December 5, 2017

DAVID HAMPTON, and wife, MARY D. HAMPTON, Petitioners,
v.
CUMBERLAND COUNTY, Respondent.

          Heard in the Court of Appeals 11 January 2017.

         Appeal by Respondent from order entered 13 April 2016 by Judge Robert F. Floyd, Jr., in Cumberland County No. 15-CVS-7449 Superior Court.

          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.

          INMAN, JUDGE

         This 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.

         Cumberland 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.

         I. Factual & Procedural Background

         The record tends to show the following:

         The 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 . . . ."

         The 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.

         Although 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.

         On 6 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. [1]

         The 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.[2] 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.

         The 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 2015.[3]

         The 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 range."

         The 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[.]"

         The 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.

         II. Standard of Review

         We 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 (citation omitted).

         This 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 capricious.

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 court).

         The 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)).

         When 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)).

         Section 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). Alternatively,

[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).

         Here, 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.

         III. Analysis

         A. Applicable Sections of the Cumberland County Zoning Ordinance

         In 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.

         Since 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").

         In April of 2011, several months before the Hamptons purchased the Property, the County Board of Commissioners (the "Commissioners") revised the zoning ordinance to provide:

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 apply.

         Cumberland 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."

         On 17 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 definition:

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 calendar year.

Cumberland Cnty., N.C., Zoning Ordinance Text Amendment P11-20 (2013) (emphasis added).[4] The Firing Range Amendment also added permitting requirements and restricted the operation of outdoor firing ranges to sites no smaller than 200 acres. Id.

         The 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.

         B. The Superior Court's Interpretation of Applicable Law

         In 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)).

         The 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.[5]

         The 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.

         The 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.

         The 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.

         The 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.

         C. Unresolved Factual Issues Preclude Appellate Review

         In 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 decision.

         Interpretation 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 ...


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