by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A panel of the N.C. Court of Appeals split 2-1 in upholding Franklin County’s decision to block a shooting range on private property within the county. The legal dispute focused on the fact that Franklin’s Unified Development Ordinance said nothing about either permitting or banning shooting ranges. Judge Chris Dillon’s majority opinion responded to the absence of language regarding shooting ranges.
We believe that the UDO is unambiguous in prohibiting shooting ranges in the County. UDO section 6-1 states that “[u]ses not specifically listed in the Table of Permitted Uses are prohibited.” Based on a “fair and reasonable construction” of this language, the County clearly recognized that it could not list every conceivable way that property could be used, and, therefore, it sought to provide that any use not listed would be prohibited unless and until any said use not listed was added to the UDO through an amendment thereto approved by the Board of Commissioners. Otherwise, landowners would be allowed to operate a shooting range or any other use not specifically listed in the Table anywhere in the County.
Dissenting Judge Robert C. Hunter took a different approach, basing his decision on a different reading of a precedent from a case called Land v. Village of Wesley Chapel.
The Land Court made clear that the law favors uninhibited free use of private property over governmental restrictions. 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.
Based on the holding in Land, I am bound to conclude that the UDO’s provision prohibiting all uses not explicitly allowed in the ordinance is in derogation of the common law and is without legal effect.
The split ruling means the case could head to the N.C. Supreme Court.
Among other opinions released this morning from the N.C. Court of Appeals: