Tigerswan, a North Carolina Company, planned to open a training facility on about 1,000 acres of agriculturally zoned land. The training facility would provide training to military, law enforcement and security personnel in firearms, urban warfare and other related areas. They also planned to offer classes to the public in first aid, firearm safety and foreign languages. According to the zoning ordinance in Cumberland County, agricultural zones have a list of permitted uses. Included as permitted uses are “schools, public, private, elementary or secondary,” the zoning administrator classified the training facility as a private school and approved Tigerswan’s site plan.
Petitioners appealed the approval to the zoning board, concerned about the effect that the training facility could have on their property. The board decided that the petitioners had standing to challenge the approval and voted three to two in favor of reversing the decision. However, a four-fifths vote was required to reverse the decision of the zoning administrator. Petitioners appealed to the trial court which again held that the petitioners had standing but held that the training facility was a permitted use according to the zoning ordinance. The petitioners again appealed.
In North Carolina, a party has standing to challenge the board’s decision where they will suffer “special damages as a result of the decision being appealed. The court recognized, however, that a property owner does not have standing to challenge another’s lawful use of her land merely because it will reduce the value of their property. Rather, standing does exist where the challenged land use is prohibited by the zoning ordinance and the owner will sustain special damages from the use through a reduction in the value of their property. The court ruled that the petitioners alleged sufficient evidence to meet the requirements for standing.
The next question was whether the trial court erred in affirming the board’s decision to uphold the zoning administrator’s decision to classify the training facility as a permitted use. In interpreting a municipal ordinance, it is the basic rule to ascertain and effectuate the intent of the legislative body. The court determined that the inclusion of “elementary or secondary” in the description of permissible schools was intended to exclude other types of schools, whether public or private. Because the training facility was not an elementary or secondary school, it was not a permitted use.
Tigerswan relied heavily on the testimony of the Planning Director in making their case as to the original intent of the ordinance, however, it is clearly stated by the Supreme Court that the intent of the drafters cannot be established in this manner.
As a result, the court affirmed the decision of the trial court in concluding the petitioners had standing, but reversed their decision that the training facility was a permitted use within the agricultural district according to the zoning ordinance.
Fort v. County of Cumberland, 721 S.E.2d 350 (N.C. Ct. App. 2012)
The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMi8xMS03NTgtMS5wZGY=
Filed under: Current Caselaw, Standing, Zoning - Interpretation Tagged: Schools