If the headline offends you, well, it offends me too.  It’s also offensive when governmental actions move from plausible defense to citizen abuse in defiance of court order and honest dealings, but that’s what just happened in Cumberland County.

             On March 19, 2012, I published a post titled “Training School Kids to be Mercenary Soldiers which chronicled Cumberland County’s attempt to categorize a 1000 acre training camp for private armies as though it were an elementary school.

             In that post I described the training camp, owned by a company called TigerSwan, as follows:

             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.”

             The North Carolina Court of Appeals held that this use – described by the company itself in language similar to the above – did not fit the definition of a “school” as “school” was defined in the Cumberland zoning ordinance.  Importantly, the zoning administrator’s decision to categorize it as a school, although tough to defend, could at least be reasonably defended.

             But after the court’s decision the company was not shut down and was allowed to continue its operations. Although its attorneys were filing briefs with the N.C. Supreme Court claiming that the use was, in fact, a school, the Court of Appeals decision is final until overturned.  In other words, further appeal does not operate as a temporary stay of the decision.

 The New Interpretation

             Now, the same zoning administrator who was convinced that this training camp for “today’s private armies” is a “school” has issued the company a new permit that classifies it as “Outdoor Recreation/Amusement.”

             I am not making this up.

             The descriptions of these two categories from the Cumberland Zoning Ordinance are below.  Both indicate that the intent for uses classified as “recreation” is for the uses that you and I and every other reasonable person consider to be “recreation.”

  Recreation, Outdoor: An area free of buildings except for restrooms, dressing rooms, equipment storage, maintenance buildings, open-air pavilions and similar structures used primarily for recreational activities.

 Recreation, Outdoor (with mechanized vehicle operations): 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 motocross (BMX) courses and the like.  This definition does not include golf courses (golf carts) or other low impact motorized activities or vehicles. (Emphasis added).

            Thus, the zoning administrator has determined that TigerSwan’s activities, which are described above, fit into these categories as “outdoor recreation/amusement.”

             There are sanitized words one could use to describe the administrator’s logic, such as “ill-conceived” and “misguided” but these terms would miss the target entirely.  I prefer stupid and arrogant.  “Stupid” should be apparent on its face when you read the definitions above.  There is no rational argument to support this new classification.  If you think you can find one, meet me in the public debate chamber.

             It’s arrogant because the county staff has taken an opposite position in current court filings, and because the decision displays an air of disdain for both the Court’s decision and the ordinary taxpaying citizens who rely upon county employees to do their jobs with some semblance of honorable intention.

             Although my clients tend to be developers and governments, I litigate these types of cases across the state all the time.  I know how expensive they are and how difficult it is for ordinary citizens to hire lawyers.  When a governmental employee toys with the county’s citizens as though it is a game, forcing the plaintiffs to dig even deeper into their savings and retirements to prepare for a second appeal over something as facially ridiculous as this, someone in charge of that employee should be embarrassed and offended and take action.

             Let me put this into a clearer perspective.  A few years ago I spread a map of North Carolina across my desk and counted the number of counties and municipalities in which I had litigated or handled some sort of land use or environmental case.  The number was slightly north of 150 and it is even higher today.  After 27 years and 150+ jurisdictions, I cannot recall a routine zoning interpretation that is so abusive in its intellectual dishonesty.

             In my opinion, if the plaintiffs in this case are forced to sue again, newly enacted N.C.G.S. 6-21.7 would allow them to be awarded attorneys’ fees.  Further, if the plaintiffs can establish a property right, and if this were found to be a knowing and intentional violation of those citizens’ due process rights, then the zoning administrator individually, as well as the county, could be liable for attorneys’ fees and damages under 42 U.S.C. Sec. 1983 and 1988.  Although the latter is more difficult for a plaintiff to establish, my gut and my experience tell me that a public records request – plus a forensic search of all electronic communications to the administrator and other officials – would provide an embarrassing amount of legal ammunition.

             In my world – as in TigerSwan’s – it doesn’t take but one bullet properly placed to eliminate an opponent.  I’m proud to state that I fire my bullets not from a gun but from the small nib of a pen.

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