In a classic Andy Griffith “don’t that beat everything” moment, Cumberland County had to decide if a facility for training military, law enforcement and mercenary soldiers – complete with multiple firing ranges, attack helicopters and simulated urban warfare settings – was sufficiently similar to a private elementary or secondary school so that the facility would be allowed by right in an agricultural district. The zoning administrator decided that the facility was similar enough for him, and he approved the site plan.
As humorist Dave Barry sometimes has to add, “I am not making this up.”
Tigerswan is a private company that trains “warrior combatives” and mentors “tomorrow’s soldiers.” It leased 1,000 acres in Cumberland County and filed a site plan that included multiple firing ranges (with designated 2 ½ mile “surface danger zones” to protect neighbors from ricocheting bullets) and other indoor and outdoor facilities to train private combatives in convoy security, urban warfare in a “mock village,” heavy weaponry, helicopter assaults and other similar activities.
In addition to the use of explosives and helicopters (sometimes at night), the company estimated that it would fire at least 15 million rounds of ammunition each year, at least some of them from a 60’ sniper tower.
Tigerswan’s motto, which has been prominently displayed on local billboards, is “FOR THOSE WHO HAVE HUNTED ARMED MEN . . . TRAINING WILL NEVER BE THE SAME.”
Cumberland County’s Zoning Ordinance provides that one of the uses allowed in the A1 Agricultural district is “SCHOOLS, public, private, elementary or secondary.” The zoning administrator reasoned that this facility fell into the category of “private school.”
When a zoning administrator interprets the local ordinance, his or her decision is appealable to the Board of Adjustment. Several neighbors appealed his interpretation saying, essentially, that “SCHOOLS” obviously applied to the kinds of schools listed and not this type of military training ground. The board voted 3-2 to reverse. However, Boards of Adjustment are odd creatures in that all decisions must be by 4/5ths vote, so the decision was actually affirmed.
The neighbors then appealed the Board of Adjustment’s decision to superior court under what is called a “writ of certiorari.” On certiorari review, a judge reviews a board’s decisions for errors of law and determines whether there is sufficient evidence to support the board’s findings.
The trial court affirmed the board’s decision, so the neighbors appealed to the Court of Appeals, which reversed the trial court in Fort v. County of Cumberland and Tigerswan.
What the Court Said
Judge Robert C. Hunter’s opinion is an excellent primer in the laws governing interpretations of ordinances.
First, Judge Hunter correctly noted that courts are not obligated to defer to boards of adjustment on ordinance interpretations, which are questions of law. Legal interpretations are conducted under what is called de novo review where a court may freely substitute its judgment. On the other hand, courts are required to defer to the board on questions of fact. Not rubber stamp, but defer.
Second, the basic rule for deciphering the meaning of an ordinance or statute is the governing body’s intent. And the Cumberland zoning ordinance described the “general intent” of the A1 Agricultural district as agricultural uses “free from most private urban development” except for large lot residential uses and a “limited list of commercial uses.” Plus, Judge Hunter noted, the title of the district itself (“Agricultural”) provides yet another clue as to how the “school” category should be interpreted.
Within that framework (plus a couple other canons of construction) the Court decided that Tigerswan’s facility was not the type of use intended when the drafters of the ordinance allowed “private schools” by right in agricultural districts.
Tigerswan’s brief included a footnote which called foul because its opponents actually used information from Tigerswan’s own promotional materials to describe what Tigerswan did, thereby sensationalizing what Tigerswan itself already had sensationalized. Tigerswan, instead, wanted the court to focus on the fact that it would also open its doors to teach children first aid and leadership skills.
At most, such activities – if they in fact would occur – are what we call “ancillary uses.”
The county and Tigerswan objected to the petition being filed, claiming that petitioners lacked standing.
Before a court has jurisdiction, the persons bringing the action must be sufficiently interested in the outcome to be accorded the right of judicial review. In North Carolina, only those who are “aggrieved” and who will sustain “special damages” have standing to appeal a quasi-judicial land use decision.
The petitioners claimed that their property values would be lowered, that all the lead from the bullets would contaminate their wells, that they were in physical danger from straying bullets, and that the noise alone would grant them standing.
In years past, N.C. courts issued many opinions stating, essentially, that you were only aggrieved when you used certain magic words to demonstrate loss of property value. This position, of course, was ridiculous when some of the key findings related to harm in quasi-judicial land use decisions were unrelated to property value but instead pertained to danger to health and safety and harmony with the surrounding area.
Fortunately, the N.C. Supreme Court ended this wayward analysis in 2008 with Mangum v. Bd. of Adjustment. Mangum involved an appeal of a BOA decision related to a topless bar. The court found that other harms (such as water runoff, parking, etc.) could also establish standing.
Side bar: The attorney who lost Mangum (even though she was correct as to what the law had been) was Robin Currin. However, Ms. Currin also represented petitioners in this case, and Judge Hunter cited Mangum as the basis for finding her clients had standing here. What goes around comes around. End side bar.
According to a February 16 news article, there are hints of a re-do by changing the zoning ordinance to allow military training facilities in A1 Agricultural districts. Tigerswan is also making the issue a question of jobs and income, not land use.
In the meantime, last week Tigerswan filed a Petition for Discretionary Review with the N.C. Supreme Court. If the Court of Appeals decision had been split, appeal is automatic if requested. However, if the opinion is unanimous, appeal to the N.C. Supreme Court is by permission. I predict that the Supreme Court will refuse to hear the case, allowing the Court of Appeals decision to stand.
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