Samuel & Doris Fort, Julia Katherine Faircloth, Raeford B. Lockamy, Ii, Ok Farms of Cedar Creek, LLC v. Cnty. of Cumberland, N.C., & Tigerswan, Inc.

• Decision Date: 19 August 2014
• Docket Number: No. COA14–93.,COA14–93.
• Citation: 761 S.E.2d 744
• Court: North Carolina Court of Appeals
• Parties: Samuel and Doris FORT, Julia Katherine Faircloth, Raeford B. Lockamy, II, Ok Farms of Cedar Creek, LLC, and Arnold Drew Smith, Petitioners, v. COUNTY OF CUMBERLAND, North Carolina, and Tigerswan, Inc., Respondents.

761 S.E.2d 744

Samuel and Doris FORT, Julia Katherine Faircloth, Raeford B. Lockamy, II, Ok Farms of Cedar Creek, LLC, and Arnold Drew Smith, Petitioners,

v.COUNTY OF CUMBERLAND, North Carolina, and Tigerswan, Inc., Respondents.

No. COA14–93.

Court of Appeals of North Carolina.

Aug. 19, 2014.

Appeal by respondents from order entered 23 October 2013 by Judge C. Winston Gilchrist in Cumberland County Superior Court. Heard in the Court of Appeals 4 June 2014.

Currin & Currin, Raleigh, by Robin T. Currin and George B. Currin, for petitioners.

Cumberland County Attorney's Office, by Robert A. Hasty, Jr., for respondent-appellant County of Cumberland.

Parker Poe Adams & Bernstein LLP, Raleigh, by Charles C. Meeker, for respondent-appellant TigerSwan, Inc.

McCULLOUGH, Judge.

Respondents TigerSwan, Inc., and Cumberland County appeal an order of the trial court, reversing a decision made by Cumberland County's Board of Adjustment that the TigerSwan facility is permitted in the A1 Zoning District and remanding with instructions to revoke the site plan approval and zoning permit for the TigerSwan facility. Based on the reasons stated herein, we reverse the order of the trial court.

I. Background

The Cumberland County zoning ordinance at issue in this appeal was originally adopted on 3 July 1972, revised 20 June 2005, and amended on 18 April 2011 (“the zoning ordinance”). Article IV, Section 402, entitled “Uses by Right” provides as follows:

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, 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.

Article IV, Section 403 of the zoning ordinance includes a “Use Matrix” which enumerates permitted and special land uses, as well as some land uses allowed only in a conditional zoning district. The following land uses are enumerated in the “Use Matrix” and are pertinent to the case before us: “RECREATION/AMUS[E]MENT OUTDOOR (with mechanized vehicle operations) conducted outside building for profit, not otherwise listed & not regulated by Sec. 924” (“recreation/amusement”) which is a permitted use in the A1 zoning district; “SCHOOLS, public, private, elementary or secondary” (“public or private school”) which is a permitted use in the A1 zoning district; and a “SCHOOL, business and commercial for nurses or other medically oriented professions, trade, vocational & fine arts” (“vocational school”) which is not a permitted use in the A1 zoning district.

TigerSwan, Inc. (“TigerSwan”) submitted a site plan application to the County of Cumberland (“County”) requesting approval for a “Training Collaboration Center” (“the TigerSwan facility”). The TigerSwan facility leases a 978 acre site which sits on a 1,521 acre parcel. The entire site is located in the A1 Agricultural District of the County. Evidence in the record established that the TigerSwan facility would be designed to provide weapons training and firearm safety primarily to the government, military, law enforcement, and corporate organizations. One day a week, the TigerSwan facility would be open to the public. Ninety-five (95%) percent of the activity at the TigerSwan facility would occur on the outdoor gun ranges. TigerSwan intends to have a pro-shop, buildings for instruction, administrative offices, and restrooms.

On 9 April 2012, the County's Planning and Inspections Department (“the Planning Department”) issued a site plan approval for the TigerSwan facility. The Planning Department held that the TigerSwan facility was permitted as a recreation/amusement land use. The Planning Department also issued a zoning permit to TigerSwan on 17 April 2012.

Petitioners Samuel and Doris Fort, Julia Katherine Faircloth, Raeford B. Lockamy, II, OK Farms of Cedar Creek, LLC, and Arnold Drew Smith appealed the issuance of the permit to the Cumberland County Board of Adjustment (“the Board”). Specifically, petitioners challenged the approval of the TigerSwan facility by arguing that the County's zoning administrator's classification of the TigerSwan facility as a recreation/amusement land use was erroneous. Petitioners argued that the County had never taken the position that the TigerSwan facility be permitted as recreation/amusement and that the Planning Department's determination was in direct conflict with the County's previous position, as set forth in Fort v. County of Cumberland, 218 N.C.App. 401, 721 S.E.2d 350 (2012) (“ Fort ”), that the TigerSwan facility be classified as a “private school.”

Petitioners relied on our Court's holding in Fort. In Fort, TigerSwan sought approval of a “firearms training facility.” Id. at 403, 721 S.E.2d at 352. Our Court found that TigerSwan

[i]ntends military, personnel training, operations, order to tomorrow's to provide instruction to law enforcement, and security in topics such as weapons urban warfare, convoy security and “[w]arrior [c]ombatives” in “teach, coach, and mentor soldiers.” TigerSwan also intends to provide courses on topics such as first aid, firearm and hunting safety, and foreign languages for adults and children.

Id. The site plan included multiple firing ranges in addition to classroom facilities. Id. The Cumberland County zoning administrator approved TigerSwan's site plan by classifying the business as a “private school.” Id. Petitioners Samuel and Doris Fort, Julia Katherine Faircloth, and Raeford B. Lockamy, II, appealed the approval of the site plan and the Board affirmed the decision of the zoning administrator. Id. at 401–05, 721 S.E.2d at 352–53. After the Fort petitioners appealed to the superior court, the trial court held that the training facility was a permitted use in the A1 zoning district. Id. at 404–05, 721 S.E.2d at 353. The Fort petitioners appealed to our Court. Under section 402 of the then-existing zoning ordinance ¹, our Court held that the TigerSwan facility was not a “private school” and that the TigerSwan facility was not a permitted use in the A1 zoning district. Id. at 407, 721 S.E.2d at 354. Using rules of statutory construction, our Court reasoned that the “schools, public, private, elementary or secondary” category in the zoning ordinance limited permissible schools, private and public, to elementary and secondary education. “[T]he inclusion of ‘elementary or secondary’ in the description of permissible schools was intended to exclude other types of ‘SCHOOLS,’ whether they be private or public.” Id. at 407, 721 S.E.2d at 355. Our Court stated that “[w]ithout deciding whether the Training Facility qualifies as either a trade or vocational school, we conclude that the Training Facility is not a permitted use as it is not a public or private, elementary or secondary school.” Id.

On 10 July 2012, the Board held a hearing on the issue of whether “the staff of the Cumberland County Planning Department erred by failing to classify the use of the site for the [TigerSwan facility] as a vocational school within one of the School land uses.” The Board entered an order that made the following pertinent findings:

3. The training offered at the TigerSwan facility is in the nature of skill level improvement.

4. Approximately 80–90% of the activities conducted at the TigerSwan facility occur outside on the firing ranges, and the training conducted in the meeting rooms is incidental to the firing of pistols and rifles. Twenty percent (20%) of the activity at the TigerSwan facility is recreational in nature and involves sportsmen and families.

....

7. There is no classification of firing ranges in the Cumberland County Zoning Ordinance.

....

10. Before the submission of the request for a permit for the TigerSwan facility, Planning Director Tom Lloyd issued a directive to staff that any outdoor firing range would be considered as the classified use [recreation/amusement] for the reason that he believed this was the classified use under the ordinance which created the most similar land use impacts.

11. The Planning Department classified the TigerSwan facility in accordance with the Planning Director's directive and issued the subject permit....

The Board concluded that the TigerSwan facility did not fall within the classification of a vocational school. The Board also concluded that the decision of the Planning Department “to consider the TigerSwan facility to be an outdoor firing range most similar to the classified use for outdoor recreation[/amusement] was reasonable and was made in conformance with the provision” of the zoning ordinance. The Board dismissed petitioners' appeal and affirmed the issuance of the permit for the TigerSwan facility.

Petitioners then appealed the order of the Board to the Cumberland County Superior Court by filing a petition for writ of certiorari on 25 September 2012.

Following a hearing held at the 26 August 2013 session of Cumberland County Superior Court on petitioners' writ of certiorari, the trial court entered an order on 23 October 2013. The trial court found that the Board's decision “must be reversed and the case remanded to the Board ... with instructions to revoke the Site Plan and Zoning Permit for the TigerSwan Facility issued on April 9, 2012 and April 17, 2012.” The trial court's decision was based on the following, in pertinent part:

4. In its Table of Permitted Uses, the Zoning Ordinance sets forth the uses that are allowed in the A1 District and those which are not. [Vocational schools] are not permitted in the A1 District. The term vocational school is not defined in the Zoning Ordinance.

5. [Recreation/Amusement] is a permitted use in the A1 District....

6. The Zoning Ordinance in effect at the time of the approvals by the Zoning Administrator (the “Zoning Ordinance”) does not reference a use called...