Barefoot v. Durham Cnty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1083

Filed 18 March 2026

Durham County, No. 22CVS004521-310

ROBIN BAREFOOT, HAROLD KOENIG, JUANITA PEARCE, MARTY PEARCE,

RUSSELL SCOTT RIGGS, and JAI G. RIGGS, Plaintiffs,

v.

DURHAM COUNTY, Defendant.

Appeal by plaintiffs from order entered 16 August 2023 by Judge Beecher

Reynolds Gray in Superior Court, Durham County. Heard in the Court of Appeals

11 June 2024.

The Brough Law Firm, PLLC, by Brady N. Herman and T.C. Morphis Jr., for

plaintiff-appellants Robin Barefoot, Harold Koenig, Juanita Pearce, Marty

Pearce, Russell Scott Riggs, and Jai G. Riggs.

Fox Rothschild LLP, by Patrick M. Kane, Kip D. Nelson, and La-Deidre

Matthews, and Durham County Attorney’s Office, by Curtis Massey, for

defendant-appellee Durham County.

STROUD, Judge.

Plaintiffs Robin Barefoot, Harold Koenig, Juanita Pearce, Marty Pearce,

Russell Scott Riggs, and Jai G. Riggs appeal from the trial court’s order denying their

motion for summary judgment and granting Defendant Durham County’s motion for

summary judgment. Because the trial court’s order fails to comply with the plain

language in Defendant’s unified development ordinance (“UDO”), and because

BAREFOOT V. DURHAM CNTY.

Opinion of the Court

Plaintiffs may be entitled to attorneys’ fees, we reverse and remand.

I. Background

In 2006, Durham County’s (“the County’s”) UDO was amended to add Section

6.2.4, which provided for the creation of conservation subdivisions. An alternative to

conventional subdivisions, a conservation subdivision allows for clustered

development, higher residential density, and flexible lot sizes to protect larger,

undeveloped spaces.

Generally, the approval of a conservation subdivision site plan is an

administrative process that does not require a public hearing. However, the proposed

conservation subdivision in this case, a 141-lot subdivision called Mason Farms,

required the approval of a special use permit for its community water and wastewater

systems in addition to its site plan, which required a public hearing. On 28 November

2022, following a hearing, the Board of Commissioners (“the Board”) unanimously

approved the site plan and special use permit for Mason Farms.

On 28 December 2022, Plaintiffs, who all live within 650 feet of the proposed

development, filed a complaint contesting the Board’s approval of the site plan.

Plaintiffs sought a declaratory judgment that the approval of the site plan was void

because the Board failed to comply with the requirements of the UDO. Specifically,

Plaintiffs argued the site plan failed to meet all twelve of the stated purposes in

Section 6.2.4A, so the Board’s approval was ultra vires and arbitrary and capricious.

On 26 May 2023, the County moved for a judgment on the pleadings. The

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County argued that Section 6.2.4A merely listed twelve “various purposes for which

a conservation subdivision [was] appropriate[,]” and approval of a conservation

subdivision did not mandate all twelve purposes be fulfilled. Instead, the County

argued the “actual requirements” were found in subsequent sections and as these

requirements were met, the Board properly approved the site plan.

On 12 July 2023, Plaintiffs moved for summary judgment. Both motions were

heard on 24 July 2023, with the trial court converting the County’s motion into a

motion for summary judgment to consider a subsequent affidavit. By order entered

16 August 2023, the court denied Plaintiffs’ motion for summary judgment, granted

the County’s motion for summary judgment, and dismissed Plaintiffs’ claims.

Plaintiffs timely appealed.

II. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2023). We review

the lower court’s summary judgment ruling de novo. See Brown v. City of Winston-

Salem, 171 N.C. App. 266, 270, 614 S.E.2d 599, 602 (2005).

Underlying the trial court’s summary judgment ruling is the Board’s

interpretation and application of the UDO when it approved the Mason Farms site

plan. “Questions involving the interpretation of ordinances are questions of law.”

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Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439 S.E.2d 199, 201 (1994). “[O]n

appeal of the judgment of the superior court, this Court must apply a de novo

standard of review in determining whether ‘the superior court committed error of law

in interpreting and applying the municipal ordinance,’ and may also freely substitute

its judgment for that of the superior court.” Hayes v. Fowler, 123 N.C. App. 400, 404,

473 S.E.2d 442, 445 (1996) (quoting Capricorn Equity Corp. v. Town of Chapel Hill

Bd. of Adjustment, 334 N.C. 132, 137, 431 S.E.2d 183, 187 (1993)).

III. Analysis

Both Plaintiffs and the County acknowledge that the outcome hinges upon

appropriately interpreting and applying Section 6.2.4A, which states that a

conservation subdivision shall be established for the

following purposes:

1. To provide flexibility of design in order to promote

environmentally sensitive and efficient uses of the land;

2. To preserve in perpetuity unique or sensitive natural

resources such as groundwater, floodplains, wetlands,

streams, steep slopes, woodlands and wildlife habitat;

3. To preserve important historic and archaeological sites;

4. To permit clustering of houses and structures on less

environmentally sensitive soils which will reduce the

amount of infrastructure, including paved surfaces and

utility easements, necessary for residential development;

5. To reduce erosion and sedimentation by minimizing land

disturbance and removal of vegetation in residential

development;

6. To promote interconnected greenways and corridors

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throughout the community;

7. To promote contiguous green space with adjacent

jurisdictions;

8. To encourage interaction in the community by clustering

houses and orienting them closer to the street, providing

public gathering places and encouraging use of parks and

community facilities as focal points in the neighborhood;

9. To encourage street designs that reduce traffic speeds

and reliance on main arteries;

10. To promote construction of landscaped walking trails

and bike paths conveniently located both within the

subdivision and connected to neighboring communities,

businesses and facilities to reduce reliance on automobiles;

11. To conserve scenic views from public roadways and

reduce perceived density; and

12. To protect prime agricultural land and preserve

farming as an economic activity.

Plaintiffs contend that Section 6.2.4A establishes twelve requirements, each of which

must be met for a conservation subdivision to be approved. As the site plan only met

six of the twelve requirements, Plaintiffs argue the Board’s approval was erroneous,

and the trial court erred in granting summary judgment for the County. Plaintiffs

assert the trial court’s ruling should be reversed because they are entitled to

summary judgment on all their claims—that the Board’s decision to approve the site

plan was void, as well as arbitrary, capricious, and ultra vires. We agree.

A. Statutory Construction

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It is well-established that “[t]he rules applicable to the construction of statutes

are equally applicable to the construction of municipal ordinances.” Cogdell v. Taylor,

264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) (citations omitted). Thus, “[t]he basic

rule is to ascertain and effectuate the intent of the legislative body[.]” Coastal Ready-

Mix Concrete Co., Inc. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385

(1980) (citations omitted). Intent is determined “by examining (i) language, (ii) spirit,

and (iii) goal of the ordinance.” Capricorn Equity Corp. v. Chapel Hill, 334 N.C. 132,

138, 431 S.E.2d 183, 188 (1993) (citation omitted). Where the language of the

ordinance is “clear and unambiguous, there is no room for judicial construction and

the courts must give it its plain and definite meaning, and are without power to

interpolate, or superimpose, provisions and limitations not contained therein.” In re

Town of Smithfield, 230 N.C. App. 252, 255, 749 S.E.2d 293, 295 (2013) (quoting In

re Miller, 357 N.C. 316, 324, 584 S.E.2d 772, 780 (2003)).

Plaintiffs first contend that the use of the word “shall” at the opening of Section

6.2.4A—“[t]he conservation subdivision shall be established for the following

purposes”—establishes the intent to make the listed purposes mandatory. The

County contends Section 6.2.4A is merely an extended purpose statement, based on

the section being titled “Purpose,” that provides “an overview of the potential goals”

for a conservation subdivision, not necessarily twelve “specific requirements” to be

imposed “on each and every conservation subdivision.” The County further argues

that a consideration of Section 6.2.4 as a whole confirms the use of “shall” in Section

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6.2.4A was not intended to mandate additional requirements for approval of a

conservation subdivision.

While it is true that the use of “shall” does not always evince an intention to

make a provision mandatory, see State v. House, 295 N.C. 189, 203, 244 S.E.2d 654,

662 (1978), the UDO itself bars any other interpretation. UDO Section 17.1(C)

provides that “[t]he word ‘shall’ is mandatory.” Because there is no ambiguity in the

meaning of “shall” in Section 6.2.4A, we “need look no further” to determine that the

twelve purposes for conservation subdivisions in Section 6.2.4A are not merely

suggestions. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354

N.C. 298, 304, 554 S.E.2d 634, 638 (2001). However, even considering the

conservation subdivision ordinance holistically, the County’s argument fails.

The County contends that the sections following Sections 6.2.4A, including

Sections 6.2.4B “Applicability of Regulations,” 6.2.4D “Density Calculation,” and

6.2.4F “Open Space Requirements,” contain the “technical requirements” a developer

must satisfy for the approval of a conservation subdivision. And these specific

requirements supersede the general requirements outlined in Section 6.2.4A, citing

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645, 182 L. Ed.

2d 967, 974 (2012) (“It is a commonplace of statutory construction that the specific

governs the general.” (citations, quotation marks, and brackets omitted)). The

County contends our appellate courts specifically applied this principle to a land use

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ordinance purpose statement in Guilford Financial Services, LLC v. City of Brevard,

150 N.C. App. 1, 563 S.E.2d 27 (2002).

In Guilford Financial, the city council rejected a proposed subdivision

containing fifteen duplexes based, in part, on a purported requirement that duplexes

be “unconcentrated.” Id. at 2-5, 563 S.E.2d at 29-30. The use of the word

“unconcentrated” was only found in the section titled “Purpose,” which stated that a

subdivision should “protect areas in which the principal use of the land is for medium

density single and unconcentrated two-family dwellings[.]” Id. at 15, 563 S.E.2d at

36 (Tyson, J., concurring in part and dissenting in part). The dissenting judge argued

this general statement could not be used to reject the proposed duplex development

because it complied with the specific minimum lot area requirement of another

section. See id. at 15-17, 563 S.E.2d at 36-37. Our Supreme Court agreed with the

dissent and reversed the subdivision denial. See Guilford Fin. Servs. v. City of

Brevard, 356 N.C. 655, 576 S.E.2d 325 (2003) (per curiam).

However, Guilford Financial is inapplicable to the facts before us. Beyond

being located under a section titled “Purpose,” there are no similarities between the

challenged ordinance in Guilford Financial and Section 6.2.4A. The ordinance in

Guilford Financial was undeniably general, providing a broad overview of the

intention behind creating subdivisions. See Guilford Fin. Servs., 150 N.C. App. at 14-

15, 563 S.E.2d 35-36. The word “unconcentrated” was similarly general, and there

was no definition for that term in the ordinances. Id. Here, Section 6.2.4A uses

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appreciably specific language for twelve discrete purposes of a conservation

subdivision, such as “[t]o promote construction of landscaped walking trails and bike

paths conveniently located both within the subdivision and connected to neighboring

communities, businesses and facilities to reduce reliance on automobiles[.]” Again,

Section 6.2.4A also states these “shall” be the purposes of a conservation subdivision,

with “shall” a defined, mandatory term in the UDO. The fact that Section 6.2.4A is

titled “Purpose” cannot override the plain, specific language in the Section itself. See

First Bank v. S&R Grandview, L.L.C., 232 N.C. App. 544, 551, 755 S.E.2d 393, 397

(2014) (“Although we agree that the title of an Article in which a statute is placed can

be relevant when interpreting the statute, the placement of a statute within an Act

is less probative of legislative intent than the plain language of the statute itself.”).

Moreover, the County disproves its own argument by pointing to other sections

as containing the “specific standards and regulations that govern the approval of a

conservation subdivision.” The County explicitly includes Section 6.2.4B as

containing these specific requirements. That section, “Applicability of Regulations,”

originally allowed for a conservation subdivision “as a use by right subject to

subdivision approval in accordance with Sec. 3.6, Subdivision Review.” However,

since its amendment in 2008, Section 6.2.4B allows for a conservation subdivision “as

a use by right subject to subdivision approval in accordance with Sec. 3.6, Subdivision

Review, and in accordance with the standards set forth in Sec. 6.2.4A, Purpose, and

Sec. 6.2.4F, Primary and Secondary Conservation Areas.” (Emphasis added.)

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Further, unlike with Section 6.2.4A, the drafters of the UDO specifically disclaimed

the use of general purpose statements as regulations in other sections of the

ordinance.

Indeed, to arrive at the County’s preferred interpretation that the

requirements of Section 6.2.4A are mere suggestions, we would need to do the very

thing the County disclaims: analyze Section 6.2.4A in a vacuum and not within the

full context of the UDO. Moreover, we would have to ignore the plain language within

Section 6.2.4A and construe the use of “shall” to actually mean “may,” which we

cannot do. “When the language of a statute is clear and unambiguous, it must be

given effect and its clear meaning may not be evaded by an administrative body or a

court under the guise of construction.” State ex rel. Util. Comm’n v. Edmisten, 291

N.C. 451, 465, 232 S.E.2d 184, 192 (1977). Thus, we conclude the plain language in

Section 6.2.4A, considered along with the plain language throughout the UDO,

establishes that the twelve purposes in Section 6.2.4A are requirements for

conservation subdivisions, not suggestions.

However, this conclusion does not necessarily make the site plan approval

erroneous. It is uncontested that the Mason Farms site plan met six of the twelve

purposes in Section 6.2.4A. But Plaintiffs contend this compliance is insufficient for

approval because the use of the conjunctive “and” between the last two purposes in

Section 6.2.4A indicates that all twelve are mandatory:

11. To conserve scenic views from public roadways and

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reduce perceived density; and

12. To protect prime agricultural land and preserve

farming as an economic activity.

(Emphasis added.) In a seeming about-face, the County argues that a conservation

subdivision can be established if “at least one of” the previously argued non-

mandatory purposes in Section 6.2.4A is met. The County contends that the use of

“and” is merely used to connect the elements, not to “connote cumulative

conditions[,]” citing the recent United States Supreme Court ruling in Pulsifer v.

United States, 601 U.S. 124, 218 L. Ed. 2d 77 (2024).

At issue in Pulsifer was the criminal history requirement, referred to as

Paragraph (f)(1), in the “safety valve” provision of federal sentencing law that

“exempts certain defendants from mandatory minimum penalties, thus enabling

courts to give them lighter prison terms.” Id. at 127, 218 L. Ed. 2d at 83. To meet

the requirements in Paragraph (f)(1), a defendant cannot have: “(A) more than 4

criminal history points,” “(B) a prior 3-point offense,” “and (C) a prior 2-point violent

offense[.]” Id. at 129, 218 L. Ed. 2d at 84 (citing 18 U.S.C. § 3553(f)(1)) (emphasis

added).

The defendant in Pulsifer had two prior convictions, each for a three-point

offense. See id. at 130, 218 L. Ed. 2d. at 85. He argued that he met the Paragraph

(f)(1) requirements because he did not have a two-point violent offense, and only a

combination of subparagraphs (A), (B), and (C) would disqualify him from relief. See

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id. at 130-31, 218 L. Ed. 2d at 85. The government argued that each specification

under Paragraph (f)(1) must be met, and because the defendant did not meet either

subparagraph (A) or (B), he had no right to relief. See id. at 130, 218 L. Ed. 2d at 85.

The Supreme Court adopted the government’s argument and held that a

defendant was only eligible for relief if he did not have “all three of the items listed—

or said more specifically, does not have four criminal-history points, does not have a

prior three-point offense, and does not have a prior two-point violent offense.” Id. at

132, 218 L. Ed. 2d at 86. Thus, Paragraph (f)(1) created “an eligibility checklist, and

demands that a defendant satisfy every one of its conditions.” Id.

The County presents the defendant’s argument in Pulsifer as “the word ‘and’

meant that simultaneous fulfillment of all three conditions was required, while the

government argued that only one condition was required.” (Emphasis in original.)

This odd phrasing is then used to support the County’s assertion that “and” is often

“a connector, not a multiplier[,]” so the fulfillment of any one of the twelve

enumerated purposes is sufficient. But this is contrary to the Supreme Court’s

holding. The “and” in Paragraph (f)(1) was also a connector, which connected three

distinct checks on sentencing relief: “Only a defendant with none of those markers—

a defendant who can check off every one of the three ‘does not have’ requirements—

is eligible for relief.” Id. at 147, 218 L. Ed. 2d at 95.

Unaddressed by the County, the Supreme Court also considered Paragraph

(f)(1) in the context of the “safety valve” statute as a whole. See id. at 149-150, 218

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L. Ed. 2d at 97. In addition to the criminal history requirement in Paragraph (f)(1),

18 United States Code Section 3553(f) lists four other requirements for minimum

sentencing relief, all joined with an “and.” Id. at 150, 218 L. Ed. 2d at 97. All parties

agreed that sentencing relief was only available if a defendant fulfilled each

requirement, (f)(1) through (f)(5). Id. Thus, the “and” between Paragraphs (f)(4) and

(f)(5) connected all the requirements a defendant must meet to get relief: “So again,

the ‘and’ joins several individually necessary conditions for safety-valve relief.” Id.

at 150, 218 L. Ed. 2d at 97.

As Plaintiffs note, much like Section 6.2.4A, Section 3553(f) provides that a

court “shall” provide sentencing relief if the court finds all five requirements are met.

Id. at 153-54, 218 L. Ed. 2d at 99-100. We agree with Plaintiffs that the benefit

accorded criminal defendants in Section 3553(f)—relief from otherwise mandatory

minimum sentencing—is analogous to the benefit developers obtain through a

conservation subdivision—relief from otherwise mandatory development restrictions.

And as criminal defendants must meet each of the requirements provided in 18

United States Code Section 3553(f), including each of the requirements in Paragraph

(f)(1), the site plan for Mason Farms needed to meet each requirement listed in

Section 6.2.4A to be approved as a conservation subdivision.

B. Application

Despite the plain language requiring a conservation subdivision to meet all

twelve purposes in Section 6.2.4A, the Board approved the Mason Farms site plan

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that met only six. The County contends this is in line with the past application of the

UDO: none of the fifteen conservation subdivisions approved since 2006 have satisfied

all twelve purposes. The County contends the Board’s prior application of the UDO

“is entitled to great consideration[,]” citing MacPherson v. Asheville, 283 N.C. 299,

307, 196 S.E.2d 200, 206 (1973).

However, MacPherson concerned an ambiguous term that was not defined in

the zoning ordinance. See id. at 307-08, 196 S.E.2d at 206. But where, as here, the

language is clear and unambiguous, “this Court must give effect to that unambiguous

language regardless of the agency’s interpretation.” Total Renal Care of N.C., LLC

v. N.C. Dep’t of Health & Hum. Servs., 242 N.C. App. 666, 672, 776 S.E.2d 322, 326

(2015). For the same reason, we reject the County’s arguments regarding the alleged

“absurd result” that would follow from a strict adherence to the language of the UDO.

See Union Carbide Corp. v. Offerman, 351 N.C. 310, 314, 526 S.E.2d 167, 170 (2000)

(“It is well settled that where the language of a statute is clear and unambiguous,

there is no room for judicial construction and the courts must give the statute its

plain and definite meaning, and are without power to interpolate, or superimpose,

provisions and limitations not contained therein.” (citation, quotation marks, and

brackets omitted)). Although the County, and our dissenting colleague, would

contend that it is absurd to interpret the UDO to require conservation subdivisions

to meet all twelve of the listed purposes—even if that is what the plain language of

the UDO requires—absurdity is often in the eye of the beholder. Plaintiffs note that

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the UDO grants conservation subdivisions additional benefits not allowed for

conventional subdivisions, such as higher residential density, clustering of homes,

flexibility of lot sizes, and mass grading. Logically, in exchange for the additional

benefits, the UDO also imposes additional requirements on conservation

subdivisions. Thus, Plaintiffs contend it would be “illogical and absurd” to ignore the

plain language of the UDO and to interpret the UDO to allow the development of

conservation subdivisions with fewer restrictions than conventional subdivisions.

Ultimately, the argument of absurdity comes down to the parties’ dispute over the

policy choices made by the County in adopting the UDO provisions governing

conservation subdivisions, so we must apply the UDO as written.

The County is always free to make new policy choices by amending the UDO.

And indeed, since the filing of this appeal, Section 6.2.4A was amended and “shall”

was removed, with the introductory phrase now providing that “[t]he conservation

subdivision standards are established for the following purpose[.]” (Emphasis in

original.)

The County asserts these changes are merely clarifying amendments, made to

address “issues raised in threatened, actual, or potential litigation” under the

provisions outlined in UDO Section 3.19.5.B.3. Despite what the County seems to

imply, there is nothing in the UDO that discusses or defines a “clarifying

amendment”, and Section 3.19 addresses the “Text Amendment” process generally.

See UDO sec. 3.19 (2024),

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https://www.durhamnc.gov/DocumentCenter/View/54014/Durham-Unified-

Development-Ordinance-UDO-Print-Version?bidId=. The County’s circular

reasoning—that the 2024 changes were clarifying amendments because they

provided “a clarification”—is supported by one cursory citation to Ray v. North

Carolina Department of Transportation, 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012): “A

clarifying amendment, unlike an altering amendment, is one that does not change

the substance of the law but instead gives further insight into the way in which the

legislature intended the law to apply from its original enactment.” The County

contends the 2024 “clarifying” changes established the County’s “consistent

application of” the UDO, and affirmed “that the Purpose statement was never

intended to impose an additional set of 12 requirements[.]”

Again, the County can only achieve its preferred outcome by neglecting the

foundational rule of statutory construction: “If the language used is clear and

unambiguous, the Court does not engage in judicial construction but must apply the

statute to give effect to the plain and definite meaning of the language.” Id. at 8, 727

S.E.2d at 681 (citation omitted).

Despite the County’s past practice or repeated assertions as to what Section

6.2.4A was supposed to do, the plain language in Section 6.2.4A—that a conservation

subdivision “shall be established” for twelve enumerated purposes joined with

“and”—unambiguously required a conservation subdivision to meet all twelve

purposes. Because the site plan for Mason Farms did not, the Board’s approval was

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erroneous. For the same reason, the trial court “committed error of law in

interpreting and applying the municipal ordinance[,]” Hayes, 123 N.C. App. at 404,

473 S.E.2d at 445, and in granting the County’s motion for summary judgment.

However, given there is no issue of material fact, summary judgment is the

proper disposition. N.C. Gen. Stat. § 1A-1, Rule 56(c). Under the UDO, site plan

approval is an administrative decision made by the Board, based on compliance with

the relevant requirements and standards. “Administrative decisions are routine,

nondiscretionary zoning ordinance implementation matters[.]” Cnty. of Lancaster v.

Mecklenburg Cnty., 334 N.C. 496, 507, 434 S.E.2d 604, 612 (1993). While the

administrator may engage in some fact finding to arrive at their conclusion, “this

involves determining objective facts that do not involve an element of discretion.” Id.

Because the Board approved a site plan that failed to comply with the plain language

of Section 6.2.4A, its approval is void, and Plaintiffs are entitled to a declaratory

judgment so stating.

For the same reason, the Board’s decision was arbitrary and capricious.

Administrative “decisions may be reversed as arbitrary or capricious if they are

patently in bad faith, or whimsical in the sense that they indicate a lack of fair and

careful consideration or fail to indicate any course of reasoning and the exercise of

judgment[.]” Lewis v. N.C. Dep’t of Human Res., 92 N.C. App. 737, 740, 375 S.E.2d

712, 714 (1989) (citations and quotations omitted). The evidence here shows the

Board failed to conduct fair and careful consideration of the conservation subdivision

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requirements, and exercised their judgment in approving the site plan. Despite being

informed that the Mason Farms site plan only met six of the twelve purposes listed

in Section 6.2.4A, the Board approved the site plan under an agency report that

indicated the site plan “was ordinance compliant[.]” As detailed above, a careful

consideration of Section 6.2.4A would have revealed the report was erroneous and the

site plan was not “ordinance compliant.” Thus, Plaintiffs are entitled to a judgment

declaring the Board’s approval was arbitrary and capricious.

IV. Conclusion

We conclude that the plain language of Section 6.2.4A establishes that the

twelve enumerated purposes included therein are mandatory, and a conservation

subdivision site plan may be approved only if it meets each stated purpose. Because

the Mason Farms site plan only met six of the twelve purposes, the Board’s approval

was erroneous. Thus, we reverse the trial court’s order granting summary judgment

upholding that approval.

As Plaintiffs are entitled to judgment as a matter of law, we remand for entry

of summary judgment in favor of Plaintiffs. On remand, the trial court should also

determine the amount of attorneys’ fees Plaintiffs are entitled to recover under North

Carolina General Statute Section 6-21.7 (2023).

REVERSED AND REMANDED.

Judge STADING concurs.

Judge COLLINS dissents by separate opinion.

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COLLINS, Judge, dissenting.

I disagree with the majority’s analysis and conclusions. I therefore respectfully

dissent.

As the majority notes, the parties acknowledge that the outcome hinges upon

appropriately interpreting and applying Section 6.2.4.A of the UDO. This section of

the UDO reads as follows:

6.2.4. Conservation Subdivision

A. Purpose

The conservation subdivision shall be established for

the following purposes:

1. To provide flexibility of design in order to

promote environmentally sensitive and

efficient uses of the land;

2. To preserve in perpetuity unique or

sensitive natural resources such as

groundwater, floodplains, wetlands,

streams, steep slopes, woodlands and

wildlife habitat;

3. To preserve important historic and

archaeological sites;

4. To permit clustering of houses and

structures on less environmentally

sensitive soils which will reduce the

amount of infrastructure, including paved

surfaces and utility easements, necessary

for residential development;

5. To reduce erosion and sedimentation by

minimizing land disturbance and removal

of vegetation in residential development;

6. To promote interconnected greenways and

corridors throughout the community;

BAREFOOT V. DURHAM CNTY.

COLLINS, J., dissenting

7. To promote contiguous green space with

adjacent jurisdictions;

8. To encourage interaction in the community

by clustering houses and orienting them

closer to the street, providing public

gathering places and encouraging use of

parks and community facilities as focal

points in the neighborhood;

9. To encourage street designs that reduce

traffic speeds and reliance on main

arteries;

10. To promote construction of landscaped

walking trails and bike paths

conveniently located both within the

subdivision and connected to neighboring

communities, businesses and facilities to

reduce reliance on automobiles;

11. To conserve scenic views from public

roadways and reduce perceived density;

and

12. To protect prime agricultural land and

preserve farming as an economic activity.

As established by its title, the Purpose subsection in the UDO outlines the

various acceptable purposes for which the Ordinance was enacted and sets forth the

scenarios in which a conservation subdivision would be suitable. The Purpose

subsection is an overview of the potential goals that such a project could accomplish.

The enumerated purposes do not impose, and were not intended to impose, twelve

specific requirements on each and every conservation subdivision. Rather, such

requirements are specified in subsequent subsections of the Conservation

Subdivision Ordinance. See UDO §§ 6.2.4.B (“Applicability of Regulations”), 6.2.4.D

2

BAREFOOT V. DURHAM CNTY.

COLLINS, J., dissenting

(“Density Calculation”), 6.2.4.F (“Open Space Requirements”). When multiple

provisions make up a statutory scheme, a generalized statement of intent that is

followed by specific provisions is subject to the well-established principle that “the

specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 645 (2012) (citation omitted); see Guilford Fin. Servs., LLC v. City of

Brevard, 150 N.C. App. 1 (2023), rev’d per curiam for the reasons stated in the dissent,

356 N.C. 655 (2023). The dissent in Guilford, adopted by our Supreme Court,

explained that “a generalized purpose statement cannot add requirements not

otherwise specified in the ordinance” and “a generalized statement of intent of the

specifications that follow cannot be used as a basis to reject a permit that meets all

of the requirements.” 150 N.C. App. at 14, 16 (quotation marks and citations

omitted).

Furthermore, the majority’s opinion leads to non-sensical results. Under the

majority’s reasoning, a conservation subdivision must include all of the following:

• Unique sensitive natural resources (that are capable of being preserved

in perpetuity) such as groundwater, floodplains, wetlands, streams,

steep slopes, woodlands, and wildlife habitats (UDO § 6.2.4.A.2);

• At least one important historic or archaeological site (UDO § 6.2.4.A.3);

• Green space shared with adjacent jurisdictions (UDO § 6.2.4.A.7);

• Walking trails and bike paths that connect to neighboring communities,

business, and facilities (UDO § 6.2.4.A.10);

• A scenic view from a public roadway (UDO § 6.2.4.A.11);

• Prime agricultural land (UDO § 6.2.4.A.12); and

• Farming as an economic activity (UDO § 6.2.4.A.12).

3

BAREFOOT V. DURHAM CNTY.

COLLINS, J., dissenting

It is doubtful, and more likely impossible, that any project could encompass all

of these scenarios simultaneously. The majority’s reasoning effectively renders a

conservation subdivision under the Ordinance impossible–something the Ordinance

drafters surely did not intend. See Four Seasons Mgmt. Servs. v. Town of Wrightsville

Beach, 205 N.C. App. 65, 82 (2010) (“It is well settled that ‘in construing statutes

courts normally adopt an interpretation which will avoid absurd or bizarre

consequences, the presumption being that the legislature acted in accordance with

reason and common sense and did not intend untoward results.’” (citations omitted)).

The Purpose statement articulated in Section 6.2.4.A provides a framework

within which applications for conservation subdivisions are considered; it does not to

create additional hurdles for development. I would thus affirm the trial court’s

judgment. And in light of this, I would conclude that Plaintiffs’ request for remand

for a determination of their entitlement to attorney’s fees is moot.

4