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Jeffries v. County of Harnett

Court of Appeals of North Carolina

May 15, 2018

KENT JEFFRIES, Petitioner,
v.
COUNTY OF HARNETT, Respondent, and LYNWOOD HARE, FRANCES L. HARE, BOBBIE LEWIS JEFFRIES, and THOMAS GLENN FINCH, Intervening Petitioners, and DRAKE LANDING, LLC, WILLIAM DAN ANDREWS, and LINDA ANDREWS, Intervening Respondents.

          Heard in the Court of Appeals 27 November 2017.

          Appeal by petitioners from order entered 10 March 2017 by Judge C. Winston Gilchrist, and appeal by respondents from orders entered 17 March 2014 by Judge C. Winston Gilchrist and 24 July 2012 by Judge Tanya T. Wallace, in Harnett County No. 11 CVS 1187 Superior Court.

          Troutman Sanders LLP, by Gavin B. Parsons, for petitioner-appellant and petitioner-appellee Kent Jeffries, and for intervening-petitioner-appellants and intervening-petitioner-appellees Lynwood Hare, Frances L. Hare, Bobbie Lewis Jefferies, and Thomas Glenn Finch.

          No brief filed for respondent-appellee, Harnett County.

          Bryant & Ivie, PLLC, by John Walter Bryant and Amber J. Ivie, for intervening-respondent-appellees and intervening-respondent-appellants Drake Landing, LLC, William Dan Andrews, and Linda Andrews.

          ELMORE, JUDGE.

         William Dan Andrews and Linda Andrews own and operate Drake Landing, LLC (collectively, "intervening-respondents"), a recreational hunting and shooting enterprise operating in Harnett County. William Dan Andrews is also the sole proprietor of Andrews Farms, a bona fide commercial crop farm. Drake Landing operates a controlled hunting preserve and a variety of other commercial shooting activities on several acres of property it leases from Andrews Farms. Drake Landing has never obtained conditional-use permits to operate its hunting preserve or the other shooting activities on the basis that these activities constituted "agritourism" and were thus exempt from countywide zoning. Petitioner Kent Jeffries and intervening-petitioners Frances L. Hare, Bobbie Lewis Jeffries, and Thomas Glenn Finch (collectively, "petitioners") own residential property adjacent to or near Drake Landing. This case arose from Jeffries' request that the local zoning authority determine whether thirteen different shooting activities offered at Drake Landing constituted agritourism and were thus exempt from countywide zoning, including a conditional-use permitting requirement. After several hearings and hearings on remand before the Harnett County Board of Adjustment ("Board"), the superior court entered multiple orders on the matter, three of which are on appeal.

         First, intervening-respondents appeal from a 2012 superior court order that remanded a 2011 Board decision with instructions to allow petitioners to present evidence to satisfy their burden of establishing that Drake Landing's shooting activities were unrelated to Andrews Farms' farming operations and were thus not shielded from zoning regulation under the statutory farm exemption. On appeal, intervening-respondents assert the superior court misinterpreted the zoning ordinance and our General Statutes by concluding that a nexus must exist between the shooting activities and the farming operations, because the shooting activities constitute agritourism and no such nexus is required for agritourism activities to be shielded by the farm exemption from countywide zoning.

         Second, intervening-respondents appeal from a 2014 superior court order that reversed in part a 2013 Board decision, in which the court concluded under its de novo interpretation of the statutory farm exemption that shooting activities involving continental shooting towers, 3D archery courses and ranges, sporting clays, skeet and trap ranges, rifle ranges, and pistol pits were not as a matter of law activities intended by the legislature to be shielded from zoning regulation, even when performed on bona fide farm property, and even when done in preparation for the rural activity of hunting. The 2014 order also remanded the case to the Board with instructions for it to issue adequate findings and conclusions to support its determination that the remaining challenged activity-Drake Landing's operation of its controlled hunting preserve for domestically raised game birds-constituted a zoning-exempt agritourism activity. On appeal, intervening-respondents assert the superior court misinterpreted our General Statutes by concluding these other shooting activities were not "agriculture" in the form of "agritourism" but, instead, were "nonfarm purposes" as a matter of law, and were thus subject to zoning regulation.

         Third, petitioners appeal from a 2017 superior court order that affirmed a 2016 Board decision entered on remand from the 2014 order. In its 2016 decision, the Board determined that Drake Landing's operation of its hunting preserve was shielded from zoning under the statutory farm exemption. In its 2017 order, the superior court acknowledged that intervening-respondents filed the only petition for certiorari review of the 2016 Board decision, and that intervening-respondents conceded they raised no issue with that decision. The order also indicated the superior court judge refused to consider petitioners' challenges to the Board's 2016 decision because they failed to timely perfect an appeal from, or to raise any written objections to, the Board's decision as required under N.C. Gen. Stat. § 160A-393. The superior court thus affirmed the 2016 Board decision. On appeal, petitioners assert the superior court misinterpreted our General Statutes by not concluding that operating a controlled hunting preserve is excluded from the definition of "agritourism" because it amounts to a "nonfarm purpose" as a matter of law and is thus subject to countywide zoning. Petitioners contend, alternatively, that even if operating a controlled hunting preserve is not precluded as a matter of law from the definition of "agritourism, " the Board's determination that Drake Landing's particular controlled hunting preserve operation is zoning-exempt was not supported by substantial, competent evidence in the whole record and was thus arbitrary and capricious. Petitioners also contend the superior court erred by failing to adequately review the merits of the Board's 2016 decision, since it refused to address their challenges to that decision.

         After careful review, we affirm the 2014 and 2017 orders. We dismiss intervening-respondents' challenges to the 2012 order because they failed to include in the appellate record the Harnett County Unified Development Ordinance (UDO), upon which they primarily rely to challenge that order, and because our dispositions of petitioners' appeal from the 2017 order and of intervening-respondents' appeal from the 2014 order renders moot any remaining challenges to the 2012 order.

         I. Background

         William Dan Andrews is the sole proprietor of Andrews Farms, an undisputed bona fide farm. Andrews Farms owns over 2, 000 acres of property and its agricultural operation currently consists of harvesting and producing crops, including, inter alia, tobacco, pine straw, soybeans, timber, and grain sorghum. Since the 1990s, a tract of around 240 acres of Andrews Farms' property has been licensed as a controlled hunting preserve, and fowl such as pheasants and chukars have been domestically raised on the property for hunting purposes.

         Around 2005, William Dan Andrews and his wife, Linda Andrews, established Drake Landing, a recreational hunting and shooting enterprise that operates on leased property from Andrews Farms. Drake Landing began its business by taking over the hunting preserve operation. Over time, however, Drake Landing added clay target throwers and other parts of the range to offer its patrons additional shooting activities beyond that of the early morning duck hunts and the afternoon pheasant, chukar, and quail hunts. According to the Board's unchallenged finding on the matter, Drake Landing uses over 2, 000 acres of Andrews Farms' property to operate its hunting preserve but only about 100 to 120 acres to operate the other shooting activities.

         In November 2010, petitioner Kent Jeffries, an adjacent property owner and the president of the North Harnett Property Rights Association, Inc. ("Property Rights Assoc."), wrote the Harnett County Planning Department to inquire as to whether the following shooting activities offered at Drake Landing constituted "agritourism" and were thus exempt from countywide zoning: (1) "hunting preserves"; (2) " 'continental tower shoots' for pheasant"; (3) "3-D archery courses and archery shooting ranges"; (4) "sporting clays and sporting clay courses"; (5) "skeet and trap ranges and other shotgun shooting stations"; (6) "pistol shooting pits and pistol shooting ranges"; (7) "rifle shooting ranges"; (8) "concealed carry handgun training"; (9) " 'Three Gun' firearms competitions"; (10) "IDPA (International Defensive Pistol Association) competitions, both sanctioned and non-sanctioned"; (11) "shotgun competitions, both sanctioned and non-sanctioned"; (12) "other forms of firearms competitions"; and (13) "corporate events hosted on an agritourism farm . . . ."

         On 18 January 2011, the zoning authority responded by letter in which it concluded (1) hunting preserves constitute agritourism; (2) continental tower shoots and (3) 3D archery courses and ranges, as "activities related to . . . methods and weapons customarily used in the act of hunting in North Carolina, " constituted agritourism; (4) sporting clays, (5) trap ranges, and (6) shotgun shooting stations constitute agritourism "when used 'in preparation for the hunt' "; (7) pistol pits and (8) rifle ranges, when "used to educate, enhance or assist in marksmanship skills for the purpose of hunting in a traditional manner . . . would be considered a related use to the agritourism activity" because those training activities were "considered 'preparing for the hunt' "; and (9) corporate events involving these agritourism activities were similarly zoning-exempt. However, the zoning authority concluded, "concealed carry handgun courses, firearms competitions such as three gun and IDPA, " and "tactical type training [were] not viewed as a form of agritourism."

         Jeffries, individually and as president of the Property Rights Assoc., appealed the zoning authority's determinations to the Harnett County Board of Adjustment ("Board"). After a hearing, the Board entered an order on 9 May 2011 upholding the zoning authority's agritourism conclusions as to each activity on the basis that petitioners failed to show reversible error in the zoning authority's decision ("2011 Board Decision").

         On 10 October 2011, Jeffries filed a petition in the superior court for certiorari review of the 2011 Board Decision. He argued in relevant part that he was prevented at the Board hearing from presenting evidence to establish that there was no nexus between Drake Landing's shooting activities and Andrews Farms' farming operations. Later, Drake Landing, William Dan Andrews, and Linda Andrews were allowed to intervene in the case. After the certiorari review hearing, the superior court entered an order on 24 July 2012 remanding the matter to the Board ("2012 Order"). In its 2012 Order, the superior court concluded that petitioners "were denied the opportunity to demonstrate facts consistent with their appeal to the Board of Adjustment" and thus remanded the 2011 Board Decision and instructed the Board "to determine for each activity from which Petitioners appealed whether Petitioners can demonstrate the requisite lack of connectivity between the shooting activities and farming activities on the premises of Drake Landing" and to allow petitioners "concerning each disputed activity, to offer evidence concerning the scope, size, hours of operation, number of persons involved, traffic, etc. and relation to shooting activities and farming activities as well as enterprise."

         After the ordered remand hearing, the Board issued a decision on 11 March 2013, again upholding the zoning authority's agritourism conclusions ("2013 Board Decision "). In its 2013 Board Decision, the Board concluded that (1) "[h]unting preserves are agritourism" and concluded further that, "as used in preparation for the hunt, " so were the following activities: (2) "Continental Tower shoots, " (3) "3D Archery courses and ranges, " (4) "Sporting Clays, " (5) "Skeet and Trap shooting and ranges, " (6) "Rifle Ranges, " and (7) "Pistol Pits." The Board also concluded that (8) "Corporate Events" constituted agritourism "when used with hunting preserves or farming activities."

         On 10 April 2013, Jeffries petitioned the superior court for certiorari review of the 2013 Board Decision. Later, adjacent residential property owners Bobbie Lewis Jeffries, Lynwood W. Hare, Frances L. Hare, and Thomas Glenn Finch were allowed to intervene in the case. After the certiorari review hearing, the superior court reversed in part and remanded in part the 2013 Board Decision by order entered 17 March 2014 ("2014 Order").

         In its 2014 Order, the superior court remanded the Board's determination as to the (1) hunting preserve and reversed the Board's conclusions that (2) "continental shooting towers, " (3) "3D archery courses and ranges, " (4) "sporting clay, " (5) "skeet and trap ranges, " (6) "rifle ranges, " (7) "pistol pits, " and (8) corporate events involving these shooting activities were shielded from zoning regulation under the statutory farm exemption. Under a de novo review of the farming exemption statutes, the superior court concluded as a matter of law that those shooting activities were neither "agriculture" under N.C. Gen. Stat. § 106-581.1 nor "bona fide farm purposes" under N.C. Gen. Stat. § 153A-340. Rather, the superior court concluded, those activities were "non-farm purposes" under N.C. Gen. Stat. § 153A-340(b), "even when conducted on property which otherwise qualifies as a bona-fide farm or when conducted in connection with or 'in preparation for' hunting" and were thus subject to zoning. It also concluded, alternatively, that under the whole-record test, the Board's decision was not supported by "substantial competent evidence in the whole record" because "[a]ll of the competence evidence in the record establishes that the activities are in fact non-farm uses which are subject to county zoning." However, the superior court remanded the matter in part with instructions for the Board to issue "findings of fact and conclusions of law on [Drake Landing's] operation of [its] 'hunting preserve.' "

         On 4 April 2014, intervening-respondents filed notices of appeal from the 2012 and 2014 Orders. This Court subsequently allowed petitioners' motion to dismiss those appeals on the basis that the orders were interlocutory. See Order, Jeffries v. Hare, No. 14-1022 ( N.C. App. Jan. 30, 2015) (dismissing appeals).

         After remand from the 2014 Order, the Board issued a decision on 12 October 2015 in which it concluded that, because Drake Landing possessed a valid controlled hunting preserve license from the North Carolina Wildlife Resources Commission, its property was thus categorically exempt from zoning ("2015 Board Decision").

         On 13 November 2015, intervening-respondents, not petitioners, petitioned the superior court for certiorari review of the 2015 Board Decision. In its petition, intervening-respondents conceded they raised no issue with the 2015 Board Decision and requested relief in the form affirming that decision so they could refile their appeals from the 2012 and 2014 Orders. After a hearing, the superior court reversed the 2015 Board Decision by order entered 2 June 2016 ("2016 Order"). In its 2016 Order, the superior court concluded that possessing a controlled hunting preserve license did not categorically exempt Drake Landing's property from countywide zoning regulation, and it again remanded the matter with instructions for the Board to issue findings and conclusions to "address the specific activities, if any, which the Board finds to constitute a 'hunting preserve' and whether, and why, such activities are 'agritourism' within the meaning of the applicable North Carolina General Statutes."

         After the ordered remand hearing, the Board issued a decision on 3 August 2016 with detailed findings and conclusions supporting its determination that Drake Landing's particular controlled hunting preserve operation was exempt from zoning ("2016 Board Decision"). In its 2016 Board Decision, the Board concluded in relevant part that

controlled hunting preserves for domestically raised game birds, like those at Drake Landing and Andrews Farms, are exempt from any and all Harnett County zoning ordinances[ ] . . . because hunting preserves like those at Drake Landing and Andrews Farms are operated on a bona fide farm, constitute a bona fide farm purpose under both N.C. Gen. Stat. § 153A-340(b)(2) and N.C. Gen. Stat. § 106-581.1, and are considered agritourism under N.C. Gen. Stat. § 99E-30.

         On 1 September 2016, intervening-respondents, not petitioners, petitioned the superior court for certiorari review of the 2016 Board Decision. In its petition, intervening-respondents again conceded they raised no issue with the 2016 Board Decision and requested relief in the form of affirming that decision, and again explained that they "intend[ed] to refile their appeal[s from the 2012 and 2014 Orders], which was previously dismissed by the Court of Appeals as interlocutory, and file[d] this Petition for Writ of Certiorari out of an abundance of caution in order to preserve their right to appeal." Petitioners never filed a petition for certiorari review of the 2016 Board Decision, moved to intervene as "petitioners" to intervening-respondents' petition, nor filed any responsive pleading in which they lodged any objections or requested any relief from that decision; rather, the first objection petitioners raised to the 2016 Board Decision occurred at the certiorari review hearing initiated by intervening-respondents' petition. After the hearing, the superior court affirmed the 2016 Board Decision by order entered 10 March 2017 ("2017 Order").

         In its 2017 Order, the superior court indicated that it refused to address the merits of any challenge to the 2016 Board Decision raised by petitioners for the first time at the certiorari review hearing. The superior court concluded that petitioners failed to timely preserve their objection to that decision because they failed to comply with N.C. Gen. Stat. § 160A-393(c)'s requirement of filing a petition for certiorari review, in which petitioners were required to state the grounds upon which they contended the Board erred and to state the relief they sought from the 2016 Board Decision, and because petitioners failed to file any "form of written objection or request from relief" from that decision. The superior court also acknowledged that intervening-respondents stated in their petition they raised no issue with the 2016 Board Decision and sought relief in the form of affirming that decision "solely to preserve their appellate rights with respect to prior rulings of the Superior Court." Accordingly, the superior court concluded that intervening-respondents were entitled as a matter of law to prevail on the issues properly before it and thus affirmed the 2016 Board Decision.

         Intervening-respondents appeal the 2012 and 2014 Orders; petitioners appeal the 2017 Order.

         II. Review Standards

         On certiorari review of a county zoning board of adjustment's quasi-judicial decision, "the superior court sits as an appellate court, " Bailey & Assocs., Inc. v. Wilmington Bd. of Adjustment, 202 N.C.App. 177, 189, 689 S.E.2d 576, 585 (2010) (citation and quotation marks omitted), and is tasked with the following:

(1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5)ensure that the decision is not arbitrary and capricious.

Cary Creek Ltd. P'ship v. Town of Cary, 207 N.C.App. 339, 341-42, 700 S.E.2d 80, 82-83 (2010) (citation omitted). The superior court should apply de novo review to a petitioner's allegation of error implicating one of the first three enumerations and whole-record review to the last two. See, e.g., Four Seasons Mgmt. Servs., Inc. v. Town of Wrightsville Beach, 205 N.C.App. 65, 75, 695 S.E.2d 456, 462 (2010) ("If a petitioner contends the Board's decision was based on an error of law, 'de novo' review is proper. However, if the petitioner contends the Board's decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the 'whole record' test." (citation and quotation marks omitted)).

         "We review a superior court's certiorari review of a [county] zoning board's quasi-judicial decision to determine whether the superior court: (1) exercised the appropriate scope of review and, if appropriate, (2) decide whether the court did so properly." NCJS, LLC v. City of Charlotte, ___ N.C. App. ___, ___, 803 S.E.2d 684, 688 (2017) (citation and internal quotation marks omitted).

         III. Petitioners' Appeal

         On appeal from the 2017 Order, petitioners contend the superior court erred by affirming the 2016 Board Decision because (1) as a matter of law, operating a controlled hunting preserve does not constitute the "bona fide farm purpose[ ]" of "agritourism" under the statutory farm exemption but instead constitutes a "nonfarm purpose" under N.C. Gen. Stat. § 153A-340(b)(1), that is thus subject to countywide zoning regulation; or, alternatively, (2) even if a hunting preserve is not excluded as a matter of law from the definition of agritourism, the Board's decision was not supported by sufficient evidence in the whole record because petitioners presented substantial, competent evidence that Drake Landing's hunting preserve is wholly unrelated to Andrews Farms' farming operations, and that the scale of Drake Landing's hunting preserve operation is such that it amounts to a "nonfarm purpose" subject to zoning regulation. Petitioners also ...


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