Have an article out for Carolina Journal on a recent N.C. Court of Appeals article on the limits of zoning regulations. The article in full:

RALEIGH — In November, the state’s second-highest court ruled that landowners in Franklin County may not operate a shooting range on their property because the county’s zoning scheme does not mention shooting ranges as a potential land use. The ruling drew notice because in 2010 the same court held that it was OK for a shooting range to operate in Union County, which has a similar zoning code.

The seemingly contradictory rulings make it likely that the state Supreme Court will have to settle the matter, giving the justices an opportunity to take either an expansive or very narrow interpretation of the rights of property owners.

Aaron Byrd and Eric Coombs hoped to operate a shooting range in Franklin County. Franklin County’s zoning ordinance divides the county into zoning districts and contains a table of permitted uses, identifying the specific uses of land that are permitted in each zoning district. A specific use may be allowed as either a matter of right, requiring no additional zoning act; a “conditional use,” requiring approval of the County Board of Adjustment; a “special use,” requiring approval of the county commission; or not allowed in a certain zoning district at all. The ordinance also states that any “[u]ses not specifically listed in the table … are prohibited.” The zoning ordinance doesn’t mention shooting ranges by name.

County zoning officials initially told Byrd and Coombs that the county didn’t allow shooting ranges at all, since they weren’t listed on the zoning table. Officials later changed their minds, saying shooting ranges fell under the category “Grounds and Facilities for Open Air Games and Sporting Events,” a special use allowed in the area where the property is located.

The county commission turned down Byrd and Coombs’ request for a special-use permit. The landowners sued, claiming that the shooting range isn’t really an “open air game” and that they should be allowed to operate a shooting range, exactly because it wasn’t mentioned in the zoning ordinance. They brought the matter to the Court of Appeals after a Superior Court ruled for the county.

The Land decision

The critical issue before the appeals court was its 2010 ruling in Land v. Village of Wesley Chapel, in which a landowner sought to operate a shooting range in a jurisdiction with a zoning scheme that made no reference to shooting ranges. The Court of Appeals ruled in favor of the landowner.

A majority of the three-judge appeals court distinguished the Franklin County zoning scheme from that in Wesley Chapel and found Land was not on point.

“Petitioners argue that our holding in Land compels us to conclude that since shooting ranges are not expressly excluded by the [Franklin County zoning ordinance], they must be allowed. We believe that petitioners’ interpretation of Land is overly broad and would lead to absurd results,” wrote Judge Chris Dillon for the appeals court.

“We construe this Court’s holding in Land narrowly to the language of the ordinance that was before it, namely one which states that permitted uses are those uses which are listed and ‘other uses that have similar impacts to’ those listed while prohibiting all other uses,” Dillon wrote. “We believe that the language in the UDO is clear in prohibiting shooting ranges even though it does not specifically mention ‘shooting ranges’ by name. Unlike the ordinance in Land, the UDO does not contain a similarity provision. It would be absurd to state that a use is allowed as a matter of right everywhere in a county, simply because the county failed to list the use expressly by name in its ordinance. Otherwise where an ordinance provides that property within a residential district can only be used for residential purposes and for no other purpose and under petitioners’ interpretation, the residential property owner could use his property not only for residential purposes but also for any commercial use [that] the ordinance fails to specifically mention.”

The appeals court also noted that the North American Industry Classification System — the standard used by federal agencies to classify businesses for the purpose of gathering statistics — that a shooting range does not fall under the code of “open air games and sporting events.” (Shooting ranges are classified under “amusement and recreation.”)

Judge Robert C. Hunter dissented in part from the majority holding. While agreeing that a shooting range doesn’t fall into the open air games category, he found Land directly on point.

“The Land Court made clear that the law favors uninhibited free use of private property over governmental restrictions,” Hunter wrote.

“Despite this principle, the majority asserts that it would be absurd for a use to be allowed as a matter of right because the county failed to expressly restrict the use in its zoning ordinance. I believe that it would be similarly absurd, but more importantly, unlawful, to support the notion that an otherwise legal use of private property is automatically disallowed simply because the government failed to identify it by name in a zoning ordinance.”

Court of Appeals decisions are binding interpretations of state law unless overruled by the state Supreme Court. Because of Hunter’s dissent, the high court is required to hear the case if Byrd and Coombs choose to appeal the ruling.

The case is Byrd, et al v. Franklin County (13-1457).