Fort v. County of Cumberland

NO. COA14-93

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

SAMUEL and DORIS FORT, JULIA

KATHERINE FAIRCLOTH, RAEFORD B.

LOCKAMY, II, OK FARMS OF CEDAR

CREEK, LLC, and ARNOLD DREW SMITH,

Petitioners,

v. Cumberland County

No. 12 CVS 8440

COUNTY OF CUMBERLAND, North

Carolina, and TIGERSWAN, INC.,

Respondents.

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, 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, 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

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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”)

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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.

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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, __ N.C. App. __, 721 S.E.2d 350 (2012) (“Fort”),

that the TigerSwan facility be classified as a “private school.”

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Petitioners relied on our Court’s holding in Fort. In Fort,

TigerSwan sought approval of a “firearms training facility.”

Id. at __, 721 S.E.2d at 352. Our Court found that TigerSwan

[i]ntends to provide instruction to

military, law enforcement, and security

personnel in topics such as weapons

training, urban warfare, convoy security

operations, and “[w]arrior [c]ombatives” in

order to “teach, coach, and mentor

tomorrow’s 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 __,

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

__, 721 S.E.2d at 353. The Fort petitioners appealed to our

Court. Under section 402 of the then-existing zoning ordinance1,

1

This case was decided under the version of the ordinance prior

to the 18 April 2011 amendment: Section 402 entitled, “Uses by

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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 __, 721 S.E.2d 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 __, 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

Right” provided that “[a]ll uses of property are prohibited

except those that are permitted or otherwise allowed under the

terms of this ordinance.”

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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. . . .

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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

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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 a “firing

range” or “shooting range,” and neither

of those terms are defined in the Zoning

Ordinance.

. . . .

8. The decisions to approve the Site Plan

and Zoning Permit were based upon the

Zoning Administrator’s determination that

the TigerSwan Facility was an outdoor

firing range, which is not addressed by

the Zoning Ordinance. The Zoning

Administrator then determined, pursuant

to Zoning Ordinance Section 402, that the

TigerSwan Facility should be regulated as

[recreation/amusement] because the land

use impacts of the TigerSwan Facility

were most closely related to that use.

. . . .

13. Based on the Court’s de novo review of

the whole record . . . this Court

concludes that the TigerSwan Facility is

a [vocational school], as set out in the

Zoning Ordinance and is, therefore,

prohibited in the A1 District. The

evidence in the Record established that

the TigerSwan Facility fits within the

definition of a vocational school and its

purposes and activities are consistent

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with those of a vocational school as set

out in the Zoning Ordinance. The Board

of Adjustment, thus, erred in affirming

the decision of the Zoning Administrator

which determined the TigerSwan Facility

was an outdoor firing range, because it

is not. The TigerSwan Facility is a

vocational school under the Zoning

Ordinance. The fact that TigerSwan

operates a recreational firing range one

day a week and uses a firing range for

its courses does not change the nature of

the use, which the Record establishes is

to provide instruction to military, law

enforcement and security personnel for

use in their occupations. See Fort v.

County of Cumberland, __ N.C. App. __,

__, 721 S.E.2d 350, 356 (2012) (while

some uses offered by TigerSwan may be

permitted, “the inclusion of permitted

uses cannot offset the uses prohibited by

the [Zoning] Ordinance.”).

14. Because the TigerSwan Facility is a

vocational school, which is a use that is

specifically prohibited in the A1

District, the Zoning Administrator had no

authority under the Zoning Ordinance

Section 402 to determine that the

TigerSwan Facility should be regulated

according to the minimum standards for

the use with the most closely related

land use impacts. Regardless, however,

and in the alternative, there was no

competent evidence in the Record that

could support the determination that the

TigerSwan Facility’s impacts were most

similar to [Recreation/Amusement].

Respondents County of Cumberland and TigerSwan filed notice

of appeal on 15 November 2013 from the 23 October 2013 order of

the trial court.

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II. Standard of Review

It is well established that “[j]udicial review of the

decisions of a municipal board of adjustment is authorized by

N.C. Gen. Stat. § 160A-388(e2), which provides, in pertinent

part, that ‘[e]very decision of the board shall be subject to

review by the superior court by proceedings in the nature of

certiorari.’” Four Seasons Mgmt. Servs. v. Town of Wrightsville

Beach, 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010). Upon

review of a decision from a Board of Adjustment, the trial court

should:

(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.

CRLP Durham, LP v. Durham City/County Bd. of Adjustment, 210

N.C. App. 203, 207, 706 S.E.2d 317, 319-320 (2011) (citations

and quotation marks omitted).

“If a petitioner contends the Board’s decision was based on

an error of law, de novo review is proper.” Four Seasons, 205

N.C. App. at 75, 695 S.E.2d at 462 (citations and quotation

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marks omitted). “Under de novo review a reviewing court

considers the case anew and may freely substitute its own

interpretation of an ordinance for a board of adjustment’s

conclusions of law.” Morris Communs. Corp v. City of Bessemer,

365 N.C. 152, 156, 712 S.E.2d 868, 871 (2011) (citation

omitted). “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.” Four Seasons, 205 N.C. App. at 75, 695 S.E.2d at

462 (citations omitted). “When utilizing the whole record test,

. . . the reviewing court must examine all competent evidence

(the whole record) in order to determine whether the agency

decision is supported by substantial evidence.” Templeton

Properties v. Town of Boone, __ N.C. App. __, __, __ S.E.2d __,

__ (June 3, 2014) (No. COA13-1274).

“When this Court reviews a superior court’s order which

reviewed a zoning board’s decision, we examine the order to:

(1) determin[e] whether the [superior] court exercised the

appropriate scope of review and, if appropriate, (2) decid[e]

whether the court did so properly.” CRLP Durham, 210 N.C. App.

at 207, 706 S.E.2d at 320 (citation omitted).

III. Discussion

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On appeal, respondents argue that the trial court erred by

(A) concluding, in paragraphs 13 and 14 of the 23 October 2013

order, that TigerSwan’s facility is a vocational school as set

out in the zoning ordinance and by (B) concluding in paragraph

14 that there was no competent evidence in the record that could

support the determination that the TigerSwan facility’s impacts

were most similar to the category of recreation/amusement.

A. Classification of the TigerSwan Facility as a Vocational

School

First, respondents argue that the trial court erred as a

matter of law by concluding that the TigerSwan facility was a

vocational school pursuant to the zoning ordinance. Respondents

also contend that the trial court erred by failing to affirm the

determination of the Board that the TigerSwan facility was an

outdoor firing range, allowed as a use by right.

“The superior court reviews a board of adjustment’s

interpretation of a municipal ordinance de novo.” MNC Holdings,

LLC v. Town of Matthews, __ N.C. App. __, __, 735 S.E.2d 364,

367 (2012). Reviewing the trial court’s 23 October 2013 order,

we initially note that the trial court, while reviewing issues

involving the interpretation of the zoning ordinance, employed

the appropriate de novo standard of review. The issue in this

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appeal is whether the trial court’s legal interpretation of the

zoning ordinance was correct. Accordingly, we also employ de

novo review and “consider [the] question[s] anew.” JWL Invs.,

Inc. v. Guilford County Bd. of Adjustment, 133 N.C. App. 426,

429, 515 S.E.2d 715, 718 (1999). See MNC Holdings, __ N.C. App.

at __, 735 S.E.2d at 367 (stating that because the issue on

appeal is whether the trial court’s legal interpretation of a

municipal ordinance is correct, our Court also employs a de novo

review).

In determining the meaning of a zoning ordinance, we apply

the same principles of construction used to interpret statutes.

See Morris, 365 N.C. at 157, 712 S.E.2d at 872. In addition,

we attempt to ascertain and effectuate the

intent of the legislative body. Unless a

term is defined specifically within the

ordinance in which it is referenced, it

should be assigned its plain and ordinary

meaning. In addition, we avoid

interpretations that create absurd or

illogical results.

Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439 S.E.2d

199, 201 (1994) (citations omitted). “[R]eviewing courts may

make independent assessments of the underlying merits of board

of adjustment ordinance interpretations. This proposition

emphasizes the obvious corollary that courts consider, but are

not bound by, the interpretations of administrative agencies and

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boards.” Morris, 365 N.C. at 156, 712 S.E.2d at 871 (citations

and quotation marks omitted).

We first examine the intent of the zoning ordinance. Prior

to the 18 April 2011 amendment, the zoning ordinance provided

that “[a]ll uses of property are prohibited except those that

are permitted or otherwise allowed under the terms of this

ordinance.” Notably, following the 18 April 2011 amendment, the

zoning ordinance provided in Section 402 that “[a]ll 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 determining the intent of

the 18 April 2011 amendment, it is evident that the legislative

body intended to broaden the spectrum of permissible uses and

thereby, freely allowed the use of property except where it was

specifically prohibited.

We now consider the term “vocational school” and the

Board’s interpretation of that term. The term “vocational

school” is not defined in the zoning ordinance. “In the absence

of a contextual definition, courts may look to dictionaries to

determine the ordinary meaning of words within a[n ordinance.]”

Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 638, 528

S.E.2d 902, 904 (2000) (citation omitted). “Vocational” is

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defined as “of, relating to, or concerned with a vocation” or

“of, relating to, or undergoing training in a skill or trade to

be pursued as a career.” Merriam-Webster Online Dictionary.2

Despite the lack of a definition within the zoning

ordinance, the Board interpreted the term “vocational school” to

mean the following:

The commonly accepted concept or definition

of a vocational school is an institution

like Fayetteville Technical Community

College where students gain career training

through extended courses in classrooms.

Vocational schools can have hundreds or

thousands of students coming by car to the

school each day. The TigerSwan facility has

just a limited number of cars each day.

The Board also found that the training offered at the TigerSwan

facility was in the nature of “skill level improvement” – eighty

to ninety (80 – 90%) percent of the activities conducted at the

TigerSwan facility occurred outside on the firing ranges and

that the training conducted inside the meeting rooms was

incidental to the firing of pistols and rifles. Based on the

foregoing, the Board concluded that the TigerSwan facility did

not fall within the “vocational school” classification of the

zoning ordinance.

2

http://www.merriam-webster.com/dictionary/

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Considering the plain and ordinary meaning of the term

“vocational” school within the zoning ordinance, in light of the

intent of the ordinance, we hold that the Board’s determination

that the TigerSwan facility did not constitute a vocational

school was proper. Uncontested evidence presented before the

Board on 10 July 2012 included testimony from Brian Searcy, the

Chief Operating Officer for TigerSwan, that ninety-five percent

(95%) of “everything that occurs on this facility is range fire,

outdoors.” Searcy testified that eighty percent (80%) of

training is provided to military personnel, law enforcement, and

private security contractors “[t]o improve their current skills

that they have[.]” One day a week, the firing range is opened

to the public for recreational shooters. Significantly, Searcy

explained that “[TigerSwan] do[es] not qualify people to do

jobs, [does not] give diplomas and [does not] give any degrees.

We give a certificate of training to people who attend two or

three day courses. All we’re doing is helping improve skills

that they already have.” Searcy agreed that at the TigerSwan

facility, people are “just practicing a skill which is firing a

weapon[.]” Steve Swierkowski, who coordinates the training

events that take place at TigerSwan, testified that “the

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majority of the activities takes place on the range” and that

“we can execute this range without the use of any classrooms.”

Because the TigerSwan facility does not teach a skill or

trade to be pursued as a career, but rather, provides training

to existing members of a profession in order to practice and

refine their already-existing skills, we agree with the Board’s

conclusion that the training offered at the TigerSwan facility

is in the nature of skill level improvement. The TigerSwan

facility operates as a firing range, and not as a vocational

school, where students gain career training through extended

courses in classrooms and receive diplomas or degrees so that

they are able to pursue a career. Furthermore, because the

zoning ordinance fails to specifically prohibit the use of land

as a firing range, it is allowed as a use by right pursuant to

Section 402. Based on the foregoing reasons, we hold that the

trial court improperly applied de novo review of the Board’s

decision and thus, erred by reversing the Board’s conclusion

that the TigerSwan facility does not fall within the

classification of a vocational school.

B. Evidence of the TigerSwan Facility as a

Recreation/Amusement Land Use

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Next, respondents challenge the trial court’s conclusion

that “in the alternative, there was no competent evidence in the

Record that could support the determination that the TigerSwan

Facility’s impacts were most similar to [recreation/amusement].”

Respondents argue that there was competent evidence in the

record to refute this conclusion.

Because the trial court was reviewing whether the Board’s

decision that the TigerSwan facility’s impacts were most similar

to recreation/amusement, it should have applied the whole record

test. It is well established that “[w]hile the county board

operates as the finder of fact, a reviewing superior court sits

in the posture of an appellate court and does not review the

sufficiency of evidence presented to it but reviews that

evidence presented to the town board.” Mann Media, Inc. v.

Randolph County Planning Bd., 356 N.C. 1, 12-13, 565 S.E.2d 9,

17 (2002) (citation and quotation marks omitted). “[I]f in

applying the whole record test, reasonable but conflicted views

emerge from the evidence, this court cannot substitute its

judgment for the administrative body’s decision. Ultimately, we

must decide whether the decision has a rational basis in the

evidence.” Appalachian Outdoor Adver. Co. v. Town of Boone Bd.

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of Adjustment, 128 N.C. App. 137, 141, 493 S.E.2d 789, 792

(1997) (citations and quotation marks omitted).

After thoughtful review, we hold that although the trial

court’s 23 October 2013 order indicates that it conducted review

under the whole record test, it failed to do so properly.

A recreation/amusement land use is defined within the

zoning ordinance as follows:

An area or establishment, which requires the

use of motors or engines for the operation

of equipment or participation in the

activity. This definition includes but is

not limited to go-cart tracks, bicycle

motorcross (BMX) courses and the like. This

definition does not include golf courses

(golf carts) or other low impact motorized

activities or vehicles.

At the 10 July 2012 hearing before the Board, testimony was

offered by Thomas J. Lloyd, director of the Planning Department.

Mr. Lloyd testified that he had issued a memorandum dated 21

February 2012 wherein he had made a determination that the

TigerSwan facility was a firing range, with the most similar

land use impacts of recreation/amusement. Mr. Lloyd, explaining

the analysis behind his determination, testified to the

following:

MR. LLOYD: We looked at the affects [sic]

of a firing range and noted what would be

the biggest objection or the biggest problem

with respect to health, safety and welfare

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to neighboring properties and of course that

would be any projectile leaving the firing

range site. Of course there are other

aspects too including noise, lighting and

traffic volume. But most of all we had to

look at the safety of the surrounding

property. When you look at outdoor

recreation it addresses safety specifically

Section 920F which talks about fencing,

netting and other control measures and many

times with firing ranges, the use permit,

shall be provided around the perimeter of

any areas used for hitting, flying, or

throwing of objects to prevent the object

from leaving the designated area. The only

thing we had in the ordinance that addressed

objects of any kind leaving the site or

leaving the area was outdoor recreation.

With respect to that and that measure of any

projectile on a firing range leaving the

area as well as the less impact of lighting

and noise, they were also similarly

addressed in outdoor recreation.

MR. FLOWERS: Just so we are clear on this,

when you issued that memo on February 21,

2012, you were not saying that a firing

range is outdoor recreation but that the

impact is similar to outdoor recreation, is

that right?

MR. LLOYD: Yes sir, which is exactly the

way the ordinance amendment in Section 402

read.

Based on the foregoing evidence presented to the Board, we

hold that the trial court erred by concluding that there was “no

competent evidence” that could support the determination that

the TigerSwan facility’s land use impacts were most similar to

the recreation/amusement classification. “It is neither the

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superior court’s nor this Court’s duty to second guess the

decision of [the Board] where there is a rational basis in the

evidence.” Myers Park Homeowners Ass’n., Inc. v. City of

Charlotte, __ N.C. App __, __, 747 S.E.2d 338, 344 (2013).

IV. Conclusion

We hold that the Board properly approved the TigerSwan

facility as a firing range with the land use impacts most

similar to the recreation/amusement classification.

Accordingly, because the trial court improperly reversed the

decision of the Board, we reverse the order of the trial court.

Reversed.

Judges STEPHENS and STROUD concur.