Hampton v. Cumberland Cnty., No. COA16-704

Docket NºNo. COA16-704
Citation808 S.E.2d 763, 256 N.C.App. 656
Case DateDecember 05, 2017
CourtCourt of Appeal of North Carolina (US)

256 N.C.App. 656
808 S.E.2d 763

David HAMPTON, and wife, Mary D. Hampton, Petitioners,
v.
CUMBERLAND COUNTY, Respondent.

No. COA16-704

Court of Appeals of North Carolina.

Filed: December 5, 2017


Yarborough, Winters & Neville, P.A., Fayetteville, by Garris Neil Yarborough, for Petitioners-Appellees.

Cumberland County Attorney's Office, by Robert A. Hasty, Jr., for Respondent-Appellant.

INMAN, Judge.

256 N.C.App. 657

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

256 N.C.App. 658

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,

808 S.E.2d 766

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

256 N.C.App. 659

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

256 N.C.App. 660

The Hamptons’ amended petition challenged the Board's order on several grounds, alleging the Board failed to: (1) exclude certain

808 S.E.2d 767

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 non-commercial 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.

...

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4 practice notes
  • Hall v. U.S. Xpress, Inc., No. COA17-333
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 5, 2017
    ...conclude that the Commission did not err by requiring plaintiff to contribute to the cost of renting a handicapped-accessible apartment.256 N.C.App. 656 Conclusion Thus, for the reasons discussed above, we conclude that the Industrial Commission did not err and that its opinion and award sh......
  • Thompson v. Union Cnty., COA21-220
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 7, 2022
    ...decision and remand the case with appropriate instructions, or remand the case for further proceedings." Hampton v. Cumberland County, 256 N.C.App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, §51(b......
  • Thompson v. Union Cnty., COA21-220
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 7, 2022
    ...decision and remand the case with appropriate instructions, or remand the case for further proceedings." Hampton v. Cumberland County , 256 N.C. App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l ) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, § ......
  • Jeffries v. Cnty. of Harnett, No. COA17-729
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 15, 2018
    ...to the use of farm property for nonfarm purposes");1 see also 259 N.C.App. 489 Hampton v. Cumberland Cty. , ––– N.C. App. ––––, ––––, 808 S.E.2d 763, 775 (2017) (noting that "non-farm uses, even on bona fide farms, are not exempt from zoning regulation"). "[B]ona fide farm purposes include ......
4 cases
  • Hall v. U.S. Xpress, Inc., No. COA17-333
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 5, 2017
    ...conclude that the Commission did not err by requiring plaintiff to contribute to the cost of renting a handicapped-accessible apartment.256 N.C.App. 656 Conclusion Thus, for the reasons discussed above, we conclude that the Industrial Commission did not err and that its opinion and award sh......
  • Thompson v. Union Cnty., COA21-220
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 7, 2022
    ...decision and remand the case with appropriate instructions, or remand the case for further proceedings." Hampton v. Cumberland County, 256 N.C.App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, §51(b......
  • Thompson v. Union Cnty., COA21-220
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 7, 2022
    ...decision and remand the case with appropriate instructions, or remand the case for further proceedings." Hampton v. Cumberland County , 256 N.C. App. 656, 662, 808 S.E.2d 763, 768 (2017) (quoting N.C. Gen. Stat. § 160A-393(l ) (repealed by S.L. 2019-111, § 2.3 as amended by S.L. 2020-25, § ......
  • Jeffries v. Cnty. of Harnett, No. COA17-729
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 15, 2018
    ...to the use of farm property for nonfarm purposes");1 see also 259 N.C.App. 489 Hampton v. Cumberland Cty. , ––– N.C. App. ––––, ––––, 808 S.E.2d 763, 775 (2017) (noting that "non-farm uses, even on bona fide farms, are not exempt from zoning regulation"). "[B]ona fide farm purposes include ......

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