Jeffries v. Cty. of Harnett , 259 N.C. App. 473 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-729
Filed: 15 May 2018
Harnett County, No. 11 CVS 1187
KENT JEFFRIES, Petitioner,
and
LYNWOOD HARE, FRANCES L. HARE, BOBBIE LEWIS JEFFRIES, and
THOMAS GLENN FINCH, Intervening Petitioners,
v.
COUNTY OF HARNETT, Respondent,
and
DRAKE LANDING, LLC, WILLIAM DAN ANDREWS, and LINDA ANDREWS,
Intervening Respondents.
Appeal by petitioners from order entered 10 March 2017 by Judge C. Winston
Gilchrist, and appeal by respondents from orders entered 17 March 2014 by Judge C.
Winston Gilchrist and 24 July 2012 by Judge Tanya T. Wallace, in Harnett County
Superior Court. Heard in the Court of Appeals 27 November 2017.
Troutman Sanders LLP, by Gavin B. Parsons, for petitioner-appellant and
petitioner-appellee Kent Jeffries, and for intervening-petitioner-appellants and
intervening-petitioner-appellees Lynwood Hare, Frances L. Hare, Bobbie Lewis
Jefferies, and Thomas Glenn Finch.
No brief filed for respondent-appellee, Harnett County.
Bryant & Ivie, PLLC, by John Walter Bryant and Amber J. Ivie, for intervening-
respondent-appellees and intervening-respondent-appellants Drake Landing,
LLC, William Dan Andrews, and Linda Andrews.
JEFFRIES V. HARNETT COUNTY
Opinion of the Court
ELMORE, Judge.
William Dan Andrews and Linda Andrews own and operate Drake Landing,
LLC (collectively, “intervening-respondents”), a recreational hunting and shooting
enterprise operating in Harnett County. William Dan Andrews is also the sole
proprietor of Andrews Farms, a bona fide commercial crop farm. Drake Landing
operates a controlled hunting preserve and a variety of other commercial shooting
activities on several acres of property it leases from Andrews Farms. Drake Landing
has never obtained conditional-use permits to operate its hunting preserve or the
other shooting activities on the basis that these activities constituted “agritourism”
and were thus exempt from countywide zoning. Petitioner Kent Jeffries and
intervening-petitioners Frances L. Hare, Bobbie Lewis Jeffries, and Thomas Glenn
Finch (collectively, “petitioners”) own residential property adjacent to or near Drake
Landing. This case arose from Jeffries’ request that the local zoning authority
determine whether thirteen different shooting activities offered at Drake Landing
constituted agritourism and were thus exempt from countywide zoning, including a
conditional-use permitting requirement. After several hearings and hearings on
remand before the Harnett County Board of Adjustment (“Board”), the superior court
entered multiple orders on the matter, three of which are on appeal.
First, intervening-respondents appeal from a 2012 superior court order that
remanded a 2011 Board decision with instructions to allow petitioners to present
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Opinion of the Court
evidence to satisfy their burden of establishing that Drake Landing’s shooting
activities were unrelated to Andrews Farms’ farming operations and were thus not
shielded from zoning regulation under the statutory farm exemption. On appeal,
intervening-respondents assert the superior court misinterpreted the zoning
ordinance and our General Statutes by concluding that a nexus must exist between
the shooting activities and the farming operations, because the shooting activities
constitute agritourism and no such nexus is required for agritourism activities to be
shielded by the farm exemption from countywide zoning.
Second, intervening-respondents appeal from a 2014 superior court order that
reversed in part a 2013 Board decision, in which the court concluded under its de novo
interpretation of the statutory farm exemption that shooting activities involving
continental shooting towers, 3D archery courses and ranges, sporting clays, skeet and
trap ranges, rifle ranges, and pistol pits were not as a matter of law activities
intended by the legislature to be shielded from zoning regulation, even when
performed on bona fide farm property, and even when done in preparation for the
rural activity of hunting. The 2014 order also remanded the case to the Board with
instructions for it to issue adequate findings and conclusions to support its
determination that the remaining challenged activity—Drake Landing’s operation of
its controlled hunting preserve for domestically raised game birds—constituted a
zoning-exempt agritourism activity. On appeal, intervening-respondents assert the
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Opinion of the Court
superior court misinterpreted our General Statutes by concluding these other
shooting activities were not “agriculture” in the form of “agritourism” but, instead,
were “nonfarm purposes” as a matter of law, and were thus subject to zoning
regulation.
Third, petitioners appeal from a 2017 superior court order that affirmed a 2016
Board decision entered on remand from the 2014 order. In its 2016 decision, the
Board determined that Drake Landing’s operation of its hunting preserve was
shielded from zoning under the statutory farm exemption. In its 2017 order, the
superior court acknowledged that intervening-respondents filed the only petition for
certiorari review of the 2016 Board decision, and that intervening-respondents
conceded they raised no issue with that decision. The order also indicated the
superior court judge refused to consider petitioners’ challenges to the Board’s 2016
decision because they failed to timely perfect an appeal from, or to raise any written
objections to, the Board’s decision as required under N.C. Gen. Stat. § 160A-393. The
superior court thus affirmed the 2016 Board decision. On appeal, petitioners assert
the superior court misinterpreted our General Statutes by not concluding that
operating a controlled hunting preserve is excluded from the definition of
“agritourism” because it amounts to a “nonfarm purpose” as a matter of law and is
thus subject to countywide zoning. Petitioners contend, alternatively, that even if
operating a controlled hunting preserve is not precluded as a matter of law from the
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Opinion of the Court
definition of “agritourism,” the Board’s determination that Drake Landing’s
particular controlled hunting preserve operation is zoning-exempt was not supported
by substantial, competent evidence in the whole record and was thus arbitrary and
capricious. Petitioners also contend the superior court erred by failing to adequately
review the merits of the Board’s 2016 decision, since it refused to address their
challenges to that decision.
After careful review, we affirm the 2014 and 2017 orders. We dismiss
intervening-respondents’ challenges to the 2012 order because they failed to include
in the appellate record the Harnett County Unified Development Ordinance (UDO),
upon which they primarily rely to challenge that order, and because our dispositions
of petitioners’ appeal from the 2017 order and of intervening-respondents’ appeal
from the 2014 order renders moot any remaining challenges to the 2012 order.
I. Background
William Dan Andrews is the sole proprietor of Andrews Farms, an undisputed
bona fide farm. Andrews Farms owns over 2,000 acres of property and its agricultural
operation currently consists of harvesting and producing crops, including, inter alia,
tobacco, pine straw, soybeans, timber, and grain sorghum. Since the 1990s, a tract
of around 240 acres of Andrews Farms’ property has been licensed as a controlled
hunting preserve, and fowl such as pheasants and chukars have been domestically
raised on the property for hunting purposes.
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Opinion of the Court
Around 2005, William Dan Andrews and his wife, Linda Andrews, established
Drake Landing, a recreational hunting and shooting enterprise that operates on
leased property from Andrews Farms. Drake Landing began its business by taking
over the hunting preserve operation. Over time, however, Drake Landing added clay
target throwers and other parts of the range to offer its patrons additional shooting
activities beyond that of the early morning duck hunts and the afternoon pheasant,
chukar, and quail hunts. According to the Board’s unchallenged finding on the
matter, Drake Landing uses over 2,000 acres of Andrews Farms’ property to operate
its hunting preserve but only about 100 to 120 acres to operate the other shooting
activities.
In November 2010, petitioner Kent Jeffries, an adjacent property owner and
the president of the North Harnett Property Rights Association, Inc. (“Property
Rights Assoc.”), wrote the Harnett County Planning Department to inquire as to
whether the following shooting activities offered at Drake Landing constituted
“agritourism” and were thus exempt from countywide zoning: (1) “hunting
preserves”; (2) “ ‘continental tower shoots’ for pheasant”; (3) “3-D archery courses and
archery shooting ranges”; (4) “sporting clays and sporting clay courses”; (5) “skeet and
trap ranges and other shotgun shooting stations”; (6) “pistol shooting pits and pistol
shooting ranges”; (7) “rifle shooting ranges”; (8) “concealed carry handgun training”;
(9) “ ‘Three Gun’ firearms competitions”; (10) “IDPA (International Defensive Pistol
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Opinion of the Court
Association) competitions, both sanctioned and non-sanctioned”; (11) “shotgun
competitions, both sanctioned and non-sanctioned”; (12) “other forms of firearms
competitions”; and (13) “corporate events hosted on an agritourism farm . . . .”
On 18 January 2011, the zoning authority responded by letter in which it
concluded (1) hunting preserves constitute agritourism; (2) continental tower shoots
and (3) 3D archery courses and ranges, as “activities related to . . . methods and
weapons customarily used in the act of hunting in North Carolina,” constituted
agritourism; (4) sporting clays, (5) trap ranges, and (6) shotgun shooting stations
constitute agritourism “when used ‘in preparation for the hunt’ ”; (7) pistol pits and
(8) rifle ranges, when “used to educate, enhance or assist in marksmanship skills for
the purpose of hunting in a traditional manner . . . would be considered a related use
to the agritourism activity” because those training activities were “considered
‘preparing for the hunt’ ”; and (9) corporate events involving these agritourism
activities were similarly zoning-exempt. However, the zoning authority concluded,
“concealed carry handgun courses, firearms competitions such as three gun and
IDPA,” and “tactical type training [were] not viewed as a form of agritourism.”
Jeffries, individually and as president of the Property Rights Assoc., appealed
the zoning authority’s determinations to the Harnett County Board of Adjustment
(“Board”). After a hearing, the Board entered an order on 9 May 2011 upholding the
zoning authority’s agritourism conclusions as to each activity on the basis that
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Opinion of the Court
petitioners failed to show reversible error in the zoning authority’s decision (“2011
Board Decision”).
On 10 October 2011, Jeffries filed a petition in the superior court for certiorari
review of the 2011 Board Decision. He argued in relevant part that he was prevented
at the Board hearing from presenting evidence to establish that there was no nexus
between Drake Landing’s shooting activities and Andrews Farms’ farming
operations. Later, Drake Landing, William Dan Andrews, and Linda Andrews were
allowed to intervene in the case. After the certiorari review hearing, the superior
court entered an order on 24 July 2012 remanding the matter to the Board (“2012
Order”). In its 2012 Order, the superior court concluded that petitioners “were denied
the opportunity to demonstrate facts consistent with their appeal to the Board of
Adjustment” and thus remanded the 2011 Board Decision and instructed the Board
“to determine for each activity from which Petitioners appealed whether Petitioners
can demonstrate the requisite lack of connectivity between the shooting activities and
farming activities on the premises of Drake Landing” and to allow petitioners
“concerning each disputed activity, to offer evidence concerning the scope, size, hours
of operation, number of persons involved, traffic, etc. and relation to shooting
activities and farming activities as well as enterprise.”
After the ordered remand hearing, the Board issued a decision on 11 March
2013, again upholding the zoning authority’s agritourism conclusions (“2013 Board
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Opinion of the Court
Decision”). In its 2013 Board Decision, the Board concluded that (1) “[h]unting
preserves are agritourism” and concluded further that, “as used in preparation for
the hunt,” so were the following activities: (2) “Continental Tower shoots,” (3) “3D
Archery courses and ranges,” (4) “Sporting Clays,” (5) “Skeet and Trap shooting and
ranges,” (6) “Rifle Ranges,” and (7) “Pistol Pits.” The Board also concluded that (8)
“Corporate Events” constituted agritourism “when used with hunting preserves or
farming activities.”
On 10 April 2013, Jeffries petitioned the superior court for certiorari review of
the 2013 Board Decision. Later, adjacent residential property owners Bobbie Lewis
Jeffries, Lynwood W. Hare, Frances L. Hare, and Thomas Glenn Finch were allowed
to intervene in the case. After the certiorari review hearing, the superior court
reversed in part and remanded in part the 2013 Board Decision by order entered 17
March 2014 (“2014 Order”).
In its 2014 Order, the superior court remanded the Board’s determination as
to the (1) hunting preserve and reversed the Board’s conclusions that (2) “continental
shooting towers,” (3) “3D archery courses and ranges,” (4) “sporting clay,” (5) “skeet
and trap ranges,” (6) “rifle ranges,” (7) “pistol pits,” and (8) corporate events involving
these shooting activities were shielded from zoning regulation under the statutory
farm exemption. Under a de novo review of the farming exemption statutes, the
superior court concluded as a matter of law that those shooting activities were neither
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Opinion of the Court
“agriculture” under N.C. Gen. Stat. § 106-581.1 nor “bona fide farm purposes” under
N.C. Gen. Stat. § 153A-340. Rather, the superior court concluded, those activities
were “non-farm purposes” under N.C. Gen. Stat. § 153A-340(b), “even when
conducted on property which otherwise qualifies as a bona-fide farm or when
conducted in connection with or ‘in preparation for’ hunting” and were thus subject
to zoning. It also concluded, alternatively, that under the whole-record test, the
Board’s decision was not supported by “substantial competent evidence in the whole
record” because “[a]ll of the competence evidence in the record establishes that the
activities are in fact non-farm uses which are subject to county zoning.” However,
the superior court remanded the matter in part with instructions for the Board to
issue “findings of fact and conclusions of law on [Drake Landing’s] operation of [its]
‘hunting preserve.’ ”
On 4 April 2014, intervening-respondents filed notices of appeal from the 2012
and 2014 Orders. This Court subsequently allowed petitioners’ motion to dismiss
those appeals on the basis that the orders were interlocutory. See Order, Jeffries v.
Hare, No. 14-1022 (N.C. App. Jan. 30, 2015) (dismissing appeals).
After remand from the 2014 Order, the Board issued a decision on 12 October
2015 in which it concluded that, because Drake Landing possessed a valid controlled
hunting preserve license from the North Carolina Wildlife Resources Commission, its
property was thus categorically exempt from zoning (“2015 Board Decision”).
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Opinion of the Court
On 13 November 2015, intervening-respondents, not petitioners, petitioned the
superior court for certiorari review of the 2015 Board Decision. In its petition,
intervening-respondents conceded they raised no issue with the 2015 Board Decision
and requested relief in the form affirming that decision so they could refile their
appeals from the 2012 and 2014 Orders. After a hearing, the superior court reversed
the 2015 Board Decision by order entered 2 June 2016 (“2016 Order”). In its 2016
Order, the superior court concluded that possessing a controlled hunting preserve
license did not categorically exempt Drake Landing’s property from countywide
zoning regulation, and it again remanded the matter with instructions for the Board
to issue findings and conclusions to “address the specific activities, if any, which the
Board finds to constitute a ‘hunting preserve’ and whether, and why, such activities
are ‘agritourism’ within the meaning of the applicable North Carolina General
Statutes.”
After the ordered remand hearing, the Board issued a decision on 3 August
2016 with detailed findings and conclusions supporting its determination that Drake
Landing’s particular controlled hunting preserve operation was exempt from zoning
(“2016 Board Decision”). In its 2016 Board Decision, the Board concluded in relevant
part that
controlled hunting preserves for domestically raised game
birds, like those at Drake Landing and Andrews Farms,
are exempt from any and all Harnett County zoning
ordinances[ ] . . . because hunting preserves like those at
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Opinion of the Court
Drake Landing and Andrews Farms are operated on a bona
fide farm, constitute a bona fide farm purpose under both
N.C. Gen. Stat. § 153A-340(b)(2) and N.C. Gen. Stat. § 106-
581.1, and are considered agritourism under N.C. Gen.
Stat. § 99E-30.
On 1 September 2016, intervening-respondents, not petitioners, petitioned the
superior court for certiorari review of the 2016 Board Decision. In its petition,
intervening-respondents again conceded they raised no issue with the 2016 Board
Decision and requested relief in the form of affirming that decision, and again
explained that they “intend[ed] to refile their appeal[s from the 2012 and 2014
Orders], which was previously dismissed by the Court of Appeals as interlocutory,
and file[d] this Petition for Writ of Certiorari out of an abundance of caution in order
to preserve their right to appeal.” Petitioners never filed a petition for certiorari
review of the 2016 Board Decision, moved to intervene as “petitioners” to intervening-
respondents’ petition, nor filed any responsive pleading in which they lodged any
objections or requested any relief from that decision; rather, the first objection
petitioners raised to the 2016 Board Decision occurred at the certiorari review
hearing initiated by intervening-respondents’ petition. After the hearing, the
superior court affirmed the 2016 Board Decision by order entered 10 March 2017
(“2017 Order”).
In its 2017 Order, the superior court indicated that it refused to address the
merits of any challenge to the 2016 Board Decision raised by petitioners for the first
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Opinion of the Court
time at the certiorari review hearing. The superior court concluded that petitioners
failed to timely preserve their objection to that decision because they failed to comply
with N.C. Gen. Stat. § 160A-393(c)’s requirement of filing a petition for certiorari
review, in which petitioners were required to state the grounds upon which they
contended the Board erred and to state the relief they sought from the 2016 Board
Decision, and because petitioners failed to file any “form of written objection or
request from relief” from that decision. The superior court also acknowledged that
intervening-respondents stated in their petition they raised no issue with the 2016
Board Decision and sought relief in the form of affirming that decision “solely to
preserve their appellate rights with respect to prior rulings of the Superior Court.”
Accordingly, the superior court concluded that intervening-respondents were entitled
as a matter of law to prevail on the issues properly before it and thus affirmed the
2016 Board Decision.
Intervening-respondents appeal the 2012 and 2014 Orders; petitioners appeal
the 2017 Order.
II. Review Standards
On certiorari review of a county zoning board of adjustment’s quasi-judicial
decision, “the superior court sits as an appellate court,” Bailey & Assocs., Inc. v.
Wilmington Bd. of Adjustment, 202 N.C. App. 177, 189, 689 S.E.2d 576, 585 (2010)
(citation and quotation marks omitted), and is tasked with the following:
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(1) review the record for errors of law; (2) ensure that
procedures specified by law in both statute and ordinance
are followed; (3) ensure that appropriate due process rights
of the petitioner are protected, including the right to offer
evidence, cross-examine witnesses, and inspect documents;
(4) ensure that the decision is supported by competent,
material, and substantial evidence in the whole record; and
(5) ensure that the decision is not arbitrary and capricious.
Cary Creek Ltd. P’ship v. Town of Cary, 207 N.C. App. 339, 341–42, 700 S.E.2d 80,
82–83 (2010) (citation omitted). The superior court should apply de novo review to a
petitioner’s allegation of error implicating one of the first three enumerations and
whole-record review to the last two. See, e.g., Four Seasons Mgmt. Servs., Inc. v. Town
of Wrightsville Beach, 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010) (“If a
petitioner contends the Board’s decision was based on an error of law, ‘de novo’ review
is proper. However, if the petitioner contends the Board’s decision was not supported
by the evidence or was arbitrary and capricious, then the reviewing court must apply
the ‘whole record’ test.” (citation and quotation marks omitted)).
“We review a superior court’s certiorari review of a [county] zoning board’s
quasi-judicial decision to determine whether the superior court: (1) exercised the
appropriate scope of review and, if appropriate, (2) decide whether the court did so
properly.” NCJS, LLC v. City of Charlotte, ___ N.C. App. ___, ___, 803 S.E.2d 684,
688 (2017) (citation and internal quotation marks omitted).
III. Petitioners’ Appeal
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On appeal from the 2017 Order, petitioners contend the superior court erred
by affirming the 2016 Board Decision because (1) as a matter of law, operating a
controlled hunting preserve does not constitute the “bona fide farm purpose[ ]” of
“agritourism” under the statutory farm exemption but instead constitutes a “nonfarm
purpose” under N.C. Gen. Stat. § 153A-340(b)(1), that is thus subject to countywide
zoning regulation; or, alternatively, (2) even if a hunting preserve is not excluded as
a matter of law from the definition of agritourism, the Board’s decision was not
supported by sufficient evidence in the whole record because petitioners presented
substantial, competent evidence that Drake Landing’s hunting preserve is wholly
unrelated to Andrews Farms’ farming operations, and that the scale of Drake
Landing’s hunting preserve operation is such that it amounts to a “nonfarm purpose”
subject to zoning regulation. Petitioners also argue (3) the superior court failed to
adequately review the 2016 Board Decision because its 2017 Order affirming that
decision was based not on the merits of the 2016 Board Decision but merely on
procedural grounds.
As a threshold matter, intervening-respondents contend that petitioners failed
to preserve any objection to the 2016 Board Decision because they never filed a
petition for certiorari review of that decision, nor filed any responsive pleading in
which they raised an issue with, or requested any relief from, the 2016 Board
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Decision. Thus, intervening-respondents argue, the superior court properly affirmed
the 2016 Board Decision based upon the issues properly before it. We agree.
In its 2017 Order, the superior court made the following unchallenged, and
thus binding, factual findings:
1. On September 1, 2016, Intervening Respondents . . . filed
a “Petition for Writ of Certiorari” from the [2016 Board
Decision] finding the “hunting preserve” . . . to be
agritourism and exempt from county zoning.
2. In their petition, Intervening Respondents expressly
stated that their petition was filed solely to preserve their
appellate rights with respect to prior rulings of the
Superior Court. Intervening Respondents further stated
that they “did not appeal the most recent determination of
the Board of Adjustment” regarding their hunting
preserve.
3. Intervening Respondents’ Petition did not in any way
object to, or allege any error in, the [2016 Board Decision].
4. Neither Petitioner Kent Jeffries nor any Intervening
Petitioners filed a petition for writ of certiorari from the
[2016 Board Decision]. Jeffries and Intervening
Petitioners have not filed any written objection or request
for relief from the [2016 Board Decision], nor have they
asserted in any writing filed with this court, by pleading or
Correspondence, the grounds upon which they contend any
error was made nor requested any relief from the most
recent decision of the Board of Adjustment.
5. Mr. Jeffries and Intervening Petitioners did not file any
Answer in response to the petition of [intervening-
respondents] and did not request any alternative relief.
6. Intervening Respondents objected at the February 21,
2017 hearing to the court considering any contentions of
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error now made by Kent Jeffries or Intervening Petitioners
because such parties did not·file any form of written
objection.
7. North Carolina General Statute 160A-393(c), made
applicable to county boards of adjustment by N.C. General
Statute 153A-349, provides:
An appeal in the nature of certiorari shall be
initiated by filing with the superior court a petition
for writ of certiorari.
The petition shall:
(2) Set forth the grounds upon which the petitioner
contends that an error was made . . . .
(4) Set forth the relief the petitioner seeks.
(emphasis added)
8. Mr. Kent Jeffries and Intervening Petitioners have not
complied with the requirements of N.C. General Statute
160A-393 for timely preserving their objection to the [2016
Board Decision] and for seeking relief from such order.
9. Drake Landing, LLC, William Dan Andrews and Linda
Andrews are entitled, as a matter of law, to prevail on the
issues now before the court.
N.C. Gen. Stat. § 153A-393 (2017) governs appeals in the nature of certiorari.
Upon issuing a writ for certiorari review of a board decision, the superior court “shall
hear and decide all issues raised by the petition[,]” id. § 160A-393(j) (emphasis added),
and “shall ensure that the rights of petitioners have not been prejudiced[,]” id. § 160A-
393(k)(1) (emphasis added). Following its review, the superior court “may affirm the
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decision, reverse the decision and remand the case with appropriate instructions, or
remand the case for further proceedings.” Id. § 160A-393(l).
Here, intervening-respondents filed the only petition for certiorari review of
the 2016 Board Decision in which they contended the Board made no error in its
decision and sought relief in the form of affirming that decision. Petitioners,
contrarily, never filed a petition for certiorari review of that decision and,
consequently, never set forth any grounds upon which they contended the Board
erred, nor requested any relief from the 2016 Board Decision; petitioners never moved
to intervene as a “petitioner” for the certiorari review hearing on the 2016 Board
Decision, see N.C. Gen. Stat. § 160A-393(h); nor did petitioners file any responsive
pleading in which they raised any objection to that decision, see id. § 160A-393(g)
(permitting but not requiring a party to file a responsive pleading). Indeed, although
the 2016 Board Decision was entered and mailed to petitioners on 3 August 2016,
petitioners lodged no formal objection to that decision until the 21 February 2017
certiorari review hearing initiated solely by intervening-respondents’ petition.
Accordingly, because the only petition for certiorari review of the 2016 Board
Decision was filed by intervening-respondents, in which they conceded they raised no
issue with that decision and requested relief in the form of affirming that decision,
and because petitioners neither lodged any written objections to the 2016 Board
Decision, requested any alternative form of relief, nor moved to intervene as a
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“petitioner,” the superior court properly determined that the 2016 Board Decision did
not prejudice the petitioning party’s rights, and it thus did not err by affirming the
2016 Board Decision based upon intervening-respondents’ petition.
Further, although petitioners attempted to challenge the 2016 Board Decision
for the first time at the certiorari review hearing, the superior court properly refused
to address the merits of their arguments on procedural grounds.
“[A]n appeal is not a matter of absolute right, but the appellant must comply
with the statutes and rules of Court as to the time and manner of taking and
perfecting his appeal.” Hirschman v. Chatham Cty., ___ N.C. App. ___, ___, 792
S.E.2d 211, 216 (2016) (citations and quotation marks omitted); see also id. at ___,
792 S.E.2d at 213 (holding that the superior court properly dismissed a petition for
certiorari review of a board decision where the petitioner failed to name the
conditional-use permit applicant as a respondent as required under N.C. Gen. Stat. §
160A-393(e) and thus failed to perfect his appeal, reasoning that this noncompliance
deprived the superior court of jurisdiction to review the merits of the board decision).
Under N.C. Gen. Stat. § 160A-393, to perfect an appeal from a zoning board’s decision,
a party with standing must file a petition in the superior court for certiorari review
of that decision, which “shall[ ] . . . [s]et forth the grounds upon which the petitioner
contends that an error was made” and “[s]et forth the relief the petitioner seeks.” Id.
§§ 160A-393(c)(1), (c)(4). “Our appellate courts have consistently held that the use of
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the word ‘shall’ in a statute indicates what actions are required or mandatory.”
Hirschman, ___ N.C. App. at ___, 792 S.E.2d at 213; see also id. at ___, 792 S.E.2d at
213–16 (holding that a non-conditional-use-applicant seeking certiorari review of a
board decision never perfected an appeal because he failed to comply with N.C. Gen.
Stat. § 160A-393(e)’s requirement that such a petitioner “shall . . . name th[e]
applicant as a respondent . . . .”).
Here, petitioners failed to comply with subsection 160A-393(c)’s petition filing
requirements and thus never perfected an appeal from the 2016 Board Decision.
Further, petitioners never moved to intervene as a “petitioner” to intervening-
respondents’ petition for certiorari review of the 2016 Board Decision, nor did they
file any responsive pleading, raise any written objection, or request any relief from
that decision. Cf. Durham Cty. v. Addison, 262 N.C. 280, 283, 136 S.E.2d 600, 603
(1964) (“The decision of the Board of Adjustment is not subject to collateral attack.”
(citation omitted)); Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 614, 322 S.E.2d 655,
657 (1984) (“[T]he statutory procedure for challenging the validity of a zoning
ordinance is to petition the Superior Court for certiorari to review the final decision
of the Board of Adjustment. A zoning ordinance may not be collaterally attacked by
a party that failed to avail herself of the judicial review that the ordinance and
statutes authorize.” (internal citation omitted)). Thus, the superior court properly
concluded that petitioners were procedurally barred from challenging the 2016 Board
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Decision for the first time at the certiorari review hearing. Accordingly, we affirm
the 2017 Order affirming the 2016 Board Decision based on these procedural grounds
and thus do not reach the merits of petitioners’ challenges to the 2016 Board Decision.
As a secondary matter, petitioners contend the procedural posture underlying
the superior court’s certiorari merits-review of the 2015 Board Decision is identical
to that of its certiorari review of the 2016 Board Decision and, thus, the superior court
should have similarly reviewed the merits of that later decision. In both instances,
petitioners argue, intervening-respondents filed the only certiorari petition in which
they set forth no allegations of error in the Board’s decisions and requested relief in
the form of affirming those decisions for the purpose of preserving their right to refile
their appeals from the 2012 and 2014 Orders. Although the 2016 Order is not on
appeal, we reject petitioners’ argument. The postures yielding both certiorari review
hearings were procedurally different and, before the superior court’s certiorari review
of the 2015 Board Decision, petitioners unequivocally expressed their intent to appeal
that decision and lodged specific, written objections to that decision.
The 2014 Order remanded the 2013 Board Decision, which yielded the 2015
Board Decision. On 19 October 2015, respondent Harnett County wrote a letter to
Judge Gilchrist, who issued the 2014 Order, and enclosed a courtesy copy of the 2015
Board Decision. In its letter, Harnett County wrote: “It is the belief of counsel and
the parties that procedurally, the appeal of the [2015 Board Decision] would lie in
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Harnett County Superior Court, but that Your Honor would be under no obligation
to judicially review [that decision] unless appeal is affirmatively taken by any of the
parties.” On 26 October 2015, Jeffries responded by letter to Judge Gilchrist, writing
that Hartnett County “is an adverse party in this case and does not speak for the
petitioners” and that “[i]t is my position that an appeal is not necessary because this
matter has already been appealed.” Jeffries opined that this Court, in dismissing
intervening-respondents’ prior appeals, “labeled [the 2014 Order] as an ‘interlocutory
order’ that ‘did not decide all issues before the trial court’ ” and, thus, “[t]his case is
now back in Your Honor’s court . . . .” Jeffries then objected in writing to the Board’s
decision to “adopt[ ] wholesale the County’s draft order” and not allow petitioners to
discuss or explain their proposed order, and then set forth five separate grounds upon
which he challenged the propriety of the 2015 Board Decision. Jeffries also requested
that Judge Gilchrist “set dates for the submission of written arguments and for oral
argument.” Subsequently, on 13 November 2015, intervening-respondents filed their
petition for certiorari review of the 2015 Board Decision.
As reflected, although the certiorari reviews of both the 2015 and 2016 Board
Decisions were initiated solely by intervening-respondents’ petition, unlike their
failures to do so with the 2016 Board Decision, petitioners unambiguously expressed
their intent to appeal the 2015 Board Decision and lodged specific, written objections
to that decision before the hearing. Accordingly, we reject petitioners’ argument.
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IV. Intervening-Respondents’ Appeals
A. 2014 Order
On appeal from the 2014 Order, intervening-respondents assert the superior
court erred by reversing the 2013 Board Decision with respect to its conclusions that
Drake Landing’s operation of commercial shooting activities involving “continental
shooting towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges,
rifle ranges and pistol pits” constituted “agritourism” activities shielded by the
statutory farm exemption from countywide zoning. Intervening-respondents argue
that the superior court (1) misinterpreted our General Statutes by concluding as a
matter of law that these shooting activities fall outside the farm exemption and were
thus subject to zoning; and (2) erroneously concluded that, in the alternative, the
2013 Board Decision was not supported by substantial competent evidence in the
whole record. Because we hold that the superior court properly concluded these
shooting activities as a matter of law fall outside the statutory farm exemption, we
affirm the 2014 Order on this basis. We thus need not address intervening-
respondents’ remaining challenge to the superior court’s alternative rationale for
reversing the 2013 Board Decision.
In its 2014 Order, the superior court concluded in relevant part:
Issues of statutory interpretation are questions of law to be
decided by application of a de novo standard of review.
Applying the de novo standard, the court concludes that the
General Assembly did not intend to include continental
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shooting towers, 3D archery courses and ranges, sporting
clay, skeet and trap ranges, rifle ranges and pistol pits
within the definition of “agriculture” in N.C. Gen. Stat. §
106-581.1 or of “bona fide farm purposes” under N.C. Gen.
Stat. § 153A-340. These uses are instead non-farm
purposes under N.C. Gen. Stat. § 153A-340(b) and are not
exempt from county zoning laws, even when conducted on
property which otherwise qualifies as a bona-fide farm or
when conducted in connection with or ‘in preparation for’
hunting.
As reflected, the superior court properly identified de novo as the applicable
review standard to address issues of statutory interpretation. Our review is whether
it properly applied that standard by concluding these shooting activities do not as a
matter of law constitute activities intended to be shielded from zoning under the
statutory farm exemption.
1. Statutory Farm Exemption from Countywide Zoning
“Statutory interpretation properly begins with an examination of the plain
words of the statute.” Lanvale Properties, LLC v. Cty. of Cabarrus, 366 N.C. 142, 154,
731 S.E.2d 800, 809 (2012) (citation and quotation marks omitted). “[W]hen the
language of a statute is clear and unambiguous, there is no room for judicial
construction, and the courts must give it its plain and definite meaning. Id. at 154,
731 S.E.2d at 809–10 (citation and quotation marks omitted). Only where statutory
language is unclear or ambiguous may courts resort to canons of judicial construction
to interpret meaning.
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Under the statutory farm exemption, “property used for bona fide farm
purposes” is exempt from countywide zoning regulation but “the use of farm property
for nonfarm purposes” is not. See N.C. Gen. Stat. § 153A-340(b)(1) (2013) (providing
that countywide zoning “regulations may affect property used for bona fide farm
purposes,” with the exception of swine farms, but providing that “[t]his subsection
does not limit regulation . . . with respect to the use of farm property for nonfarm
purposes”);1 see also Hampton v. Cumberland Cty., ___ N.C. App. ___, ___, 808 S.E.2d
763, 775 (2017) (noting that “non-farm uses, even on bona fide farms, are not exempt
from zoning regulation”). “[B]ona fide farm purposes include the production and
activities relating or incidental to the production of crops, grains, fruits, vegetables,
ornamental and flowering plants, dairy, livestock, poultry, and all other forms of
agriculture, as defined in G.S. 106-581.1.” N.C. Gen. Stat. § 153A-340(b)(2) (2013)
(emphasis added). “Agriculture” is defined in relevant part as follows:
When performed on the farm, ‘agriculture’ . . . also
include[s] the marketing and selling of agricultural
products, agritourism, the storage and use of materials for
agricultural purposes, packing, treating, processing,
sorting, storage, and other activities performed to add
value to crops, livestock, and agricultural items produced
on the farm, and similar activities incident to the operation
of a farm.
1 Effective 12 July 2017, our General Assembly eliminated county authority to regulate swine farms
by amending N.C. Gen. Stat. § 153A-340(b)(1) to now provide that countywide zoning “regulations may
not affect property used for bona fide farm purposes; provided, however, that this subsection does not
limit regulation . . . with respect to the use of farm property for nonfarm purposes.” See Act of July
12, 2017, ch. 108, sec. 9.(a), 2017 N.C. Sess. Laws ___, ___ (eliminating county authority to regulate
swine farms).
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Id. § 106-581.1(6) (2013) (emphasis added).
However, neither Chapter 153A, governing county authority, nor Chapter 106,
governing agriculture, defined “agritourism.” But Chapter 99E, governing special
liability provisions, defined “[a]gritourism activity” in relevant part as
[a]ny activity carried out on a farm or ranch that allows
members of the general public, for recreational,
entertainment, or educational purposes, to view or enjoy
rural activities, including farming, ranching, historic,
cultural, harvest-your-own activities, or natural activities
and attractions.
Id. § 99E-30(1) (2013).
2. 2017 Act
While it was unclear when the Board and superior court decided the matter
whether the legislature intended to shield from countywide zoning regulation the
same “agritourism activities” it intended to shield from liability, after the case
reached this Court, our General Assembly enacted “An Act to Amend Certain Laws
Governing Agricultural Matters” (“2017 Act”). See Act of July 12, 2017, ch. 108, 2017
N.C. Sess. Laws ___, ___. Most pertinent here, the 2017 Act amended N.C. Gen. Stat.
§ 153A-340(b) by adding subdivision (2a), which in relevant parts incorporated N.C.
Gen. Stat. § 99E-30(1)’s “agritourism activity” definition into section 153A-340 and
described certain types of zoning-exempt agritourism buildings and structures. Ch.
108, sec. 8.(a), 2017 N.C. Sess. Laws at ___ (clarifying activities incident to the farm
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Opinion of the Court
and agritourism). As a result, the applicable statutory farm exemption provisions
now provide in pertinent part:
For purposes of this section, “agritourism” means any
activity carried out on a farm or ranch that allows members
of the general public, for recreational, entertainment, or
educational purposes, to view or enjoy rural activities,
including farming, ranching, historic, cultural, harvest-
your-own activities, or natural activities and attractions. A
building or structure used for agritourism includes any
building or structure used for public or private events,
including, but not limited to, weddings, receptions,
meetings, demonstrations of farm activities, meals, and
other events that are taking place on the farm because of
its farm or rural setting.
N.C. Gen. Stat. § 153A-340(b)(2a) (2017). A threshold question is whether N.C. Gen.
Stat. § 153A-340(b)(2a) applies in this case to guide our interpretation of whether
these shooting activities were intended by the legislature to constitute agritourism
activities shielded by the statutory farm exemption.
An amendment that substantially alters the meaning of a law applies only
prospectively. Ray v. N.C. Dep’t of Transp., 366 N.C. 1, 9, 727 S.E.2d 675, 682 (2012)
(“[T]he default rule provides statutes with a prospective effective date[.]” (citation
omitted)). But an amendment that merely clarifies the meaning of a law, rather than
alters its substance, “will apply to all claims pending or brought before our State’s
courts after the amendment’s passage.” Id. We must therefore determine whether
the addition of subdivision (2a) clarifies or alters subsection (b). Id. at 9, 727 S.E.2d
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at 68182 (“It is this Court’s job to determine whether an amendment is clarifying or
altering.” (citation omitted)).
“To determine whether the amendment clarifies the prior
law or alters it requires a careful comparison of the original
and amended statutes.” If the statute initially “fails
expressly to address a particular point” but addresses it
after the amendment, “the amendment is more likely to be
clarifying than altering.”
Id. at 10, 727 S.E.2d at 682 (quoting Ferrell v. Dep’t of Transp., 334 N.C. 650, 659,
435 S.E.2d 309, 315 (1993)).
In Ferrell, our Supreme Court was presented with an issue requiring it to
interpret a statute governing the reconveyance of land taken by eminent domain but
no longer needed, which was amended while the appeal was pending, and addressed
whether that amendment was merely clarifying and thus applicable, or was
substantially altering and thus inapplicable. 334 N.C. 650, 435 S.E.2d 309 (1993).
There, when the Department of Transportation (DOT) offered its initial sell-back
price offer to the original property owner, the relevant statute did not specify at what
price the DOT was to sell back the property. Id. at 657, 435 S.E.2d at 314. But by
the time the case reached our Supreme Court, the legislature had amended that
statute by adding language that provided clear guidance on the sell-back price
calculation. Id. at 658–59, 435 S.E.2d at 315. Our Supreme Court concluded that the
amendment was clarifying, not altering, and thus relied on its calculative guidance
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Opinion of the Court
in determining the propriety of the DOT’s sell-back price offer. The Ferrell Court
reasoned:
Since here the statute before amendment provided
no express guidance as to selling price, the
amendment which addresses the selling price is best
interpreted as clarifying the statute as it existed
before the amendment. It is, therefore, strong
evidence of what the legislature intended when it
enacted the original statute.
Id. at 659, 435 S.E.2d at 315–16 (footnote omitted).
Here, when the Board and superior court issued their decisions, N.C. Gen. Stat.
§ 153A-340(b) exempted from zoning regulation property used for “bona fide farm
purposes,” which included “all . . . forms of agriculture” under N.C. Gen. Stat. § 106-
581.1, such as “agritourism.” But neither statute defined “agritourism.” However,
after this case reached our Court, the legislature amended N.C. Gen. Stat. § 153A-
340(b) by adding subdivision (2a), which incorporated verbatim N.C. Gen. Stat. § 99E-
30(1)’s “agritourism activity” definition into the section 153A-340 and provided
guidance on what buildings or structures might constitute agritourism buildings or
structures, providing “strong evidence” that the General Assembly intended to shield
from zoning regulation the same agritourism activities it intended to shield from
liability, and that the amendment intended to clarify what sorts of activities it
contemplated might constitute agritourism.
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Thus, we conclude that the addition of N.C. Gen. Stat. § 153A-340(b)(2a) served
merely to clarify, rather than alter, the substance of the statutory farm exemption by
providing further guidance on what constitutes zoning-exempt agritourism activities.
See ch. 108, sec. 8.(a), 2017 N.C. Sess. Laws at ___ (labeling the heading of section
8(a), which added N.C. Gen. Stat. § 153A-340(b)(2), as “Clarify activities incident to
the farm and agritourism” (original in all caps)); see also Taylor v. Crisp, 286 N.C.
488, 497, 212 S.E.2d 381, 387 (1975) (“ ‘Whereas it is logical to conclude that an
amendment to an unambiguous statute indicates the intent to change the law, no
such inference arises when the legislature amends an ambiguous provision.’ In such
case, the purpose of the variation may be ‘to clarify that which was previously
doubtful.’ ” (citation omitted)). We therefore rely on the clarifying language of
subdivision (2a) to guide our interpretation of whether the legislature intended these
shooting activities to constitute “agritourism” activities shielded from zoning
regulation under the statutory farm exemption.
3. N.C. Gen. Stat. § 153A-340(b)(2a)
It is undisputed that Drake Landing operates its business on property it leases
from Andrews Farms, a bona fide farm. At issue is whether using bona fide farm
property to operate commercial shooting activities involving continental shooting
towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges, rifle
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Opinion of the Court
ranges and pistol pits constitutes agritourism. As stated above, N.C. Gen. Stat. §
153A-340(b)(2a) defines “agritourism” in pertinent part as follows:
“[A]gritourism” means any activity carried out on a farm or
ranch that allows members of the general public, for
recreational, entertainment, or educational purposes, to
view or enjoy rural activities, including farming, ranching,
historic, cultural, harvest-your-own activities, or natural
activities and attractions.
Id. § 153A-340(b)(2a) (emphasis added).
Based on its plain language, it is unclear whether our legislature intended for
these shooting activities, even when relating to or incidental to a rural activity such
as hunting, to constitute zoning-exempt agritourism activities. Indeed, in the 2017
Act, the General Assembly requested a Legislative Research Commission study
pertaining to what constitutes agritourism. See ch. 108, sec. 1.(a), 2017 N.C. Sess.
Laws at ___ (ordering the Agriculture and Forestry Awareness Study Commission to
study “[t]he type of activities that constitute agritourism when conducted on a bona
fide farm and other relevant matters relating to agritourism activities”). Accordingly,
we turn to the canons of judicial construction.
N.C. Gen. Stat. § 153A-340(b)(2a)’s use of “including” to introduce examples of
acceptable “rural” agritourism activities indicates the list is meant to be illustrative
and not exhaustive. The statute does not define “rural.”
“[U]ndefined words are accorded their plain meaning so
long as it is reasonable to do so.” In determining the plain
meaning of undefined terms, “this Court has used
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‘standard, nonlegal dictionaries’ as a guide.”
Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792
(2016) (alteration in original) (citations omitted); see also id. at 259, 794 S.E.2d at 792
(relying on the New Oxford American Dictionary to define “building,” “construction,”
and “contractor”). The dictionary definition of “rural” is “in, relating to, or
characteristic of the countryside rather than the town.” New Oxford American
Dictionary 1531 (Angus Stevenson & Christine A. Lindberg eds. 3d ed. 2010). As
petitioners concede in their brief, “hunting is a traditional rural activity.” Under
certain circumstances, activities incidental or relating to hunting that occur in, relate
to, and are characteristic of the countryside, which retain the spirit of the traditional
hunting, may reasonably fit within an example of a “rural” agritourism activity.
Thus, for instance, operating a controlled hunting preserve for domestically raised
game birds which supports a bona fide farm operation and allows the public “for
recreational [or] entertainment purposes[ ] to . . . enjoy [the] rural activit[y]” of
traditional hunting may constitute agritourism. But the other shooting activities at
issue here do not fit so squarely into this interpretation.
Because N.C. Gen. Stat. § 153A-340(b)(2a) lists examples of rural activities, we
turn to associative canons of construction. The interpretative canon of noscitur a
sociis instructs that “associated words explain and limit each other” and an
ambiguous or vague term “may be made clear and specific by considering the
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company in which it is found, and the meaning of the terms which are associated with
it.” City of Winston v. Beeson, 135 N.C. 192, 198, 47 S.E. 457, 460 (1904) (citations
omitted); see also State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)
(“Noscitur a sociis is a rule of construction applicable to all written instruments.”
(citation omitted)). The interpretive canon of expressio unius est exclusio alterius
instructs that the expression of one thing implies the exclusion of another. See, e.g.,
Fort v. Cty. of Cumberland, 218 N.C. App. 401, 407, 721 S.E.2d 350, 355 (2012)
(citations omitted).
Applying the principle of noscitur a sociis to subdivision (2a)’s rural activity
examples of “farming, ranching, historic, cultural, harvest-your-own activities, or
other natural activities and attractions” imply that other contemplated rural
agritourism activities should fit, in a categorical sense, within this grouping. The
listed examples associate in part because they allow members of the non-rural public
to view or enjoy traditional rural activities or attractions relating to agriculture that
typically occur in a rural setting. The activities listed also associate in part because
they are “natural,” in that their performance preserves the land and does not require
its alteration other than by public consumption of natural items on the land. Cf.
Friends of Hatteras Island v. Coastal Res. Comm’n, 117 N.C. App. 556, 575, 452
S.E.2d 337, 349 (1995) (“Hunting, fishing, navigation and recreation require only a
temporary presence on the Reserve and do not necessitate alteration of the Reserve’s
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Opinion of the Court
undeveloped and natural state.”). In applying the principle of expressio unius est
exclusio alterius, however, that subdivision (2a) explicitly lists “farming” and
“ranching” but not “hunting” implies that shooting activities, even when related to
hunting, were not contemplated as “agritourism.”
Moreover, N.C. Gen. Stat. § 153A-340(b)(2a) defines “[a] building or structure
used for agritourism” in relevant part as
any building or structure used for public or private events,
including, but not limited to, weddings, receptions,
meetings, demonstrations of farm activities, meals, and
other events that are taking place on the farm because of
its farm or rural setting.
Applying the principle of noscitur a sociis, the illustrative examples of
agritourism buildings or structures include those used for “weddings, receptions,
meetings, demonstrations of farm activities, [and] meals,” events which share no
commonality with hunting or shooting activities. Further, the inclusive phrase tying
these examples together—“and other events that are taking place on the farm because
of its farm and rural setting”—indicates the legislature did not contemplate buildings
or structures used for shooting activities to be zoning-exempt agritourism buildings
or structures. While shooting activities might require the land space that only a rural
setting can provide, unlike the other event examples, they are not purposefully
performed on a farm for the aesthetic value of the farm or its rural setting.
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“Where legislative intent is not readily apparent from the act, it is appropriate
to look at various related statutes in pari materia so as to determine and effectuate
the legislative intent.” Craig v. Cty. of Chatham, 356 N.C. 40, 46, 565 S.E.2d 172,
176–77 (2002) (citation omitted). Further, “words and phrases of a statute may not
be interpreted out of context, but must be interpreted as a composite whole so as to
harmonize with other statutory provisions and effectuate legislative intent, while
avoiding absurd or illogical interpretations[.]” Fort, 218 N.C. App. at 407, 721 S.E.2d
at 355 (citations and quotations marks omitted).
That N.C. Gen. Stat. § 99E-30(1)’s “agritourism activity” definition was
incorporated into N.C. Gen. Stat. § 153A-340(b)(2a) indicates the legislature intended
to shield the same agritourism activities from countywide zoning that it intended to
shield from liability. Thus, we turn to N.C. Gen. Stat. § 99E-30(3)’s explanation of
inherent risks of agritourism activity for further guidance, which provides in part:
(3) Inherent risks of agritourism activity. – Those dangers
or conditions that are an integral part of an agritourism
activity including certain hazards, including surface and
subsurface conditions, natural conditions of land,
vegetation, and waters, the behavior of wild or domestic
animals, and ordinary dangers of structures or equipment
ordinarily used in farming and ranching operations.
Id. § 99E-30(3) (2017) (emphasis added). That this provision lists as examples of
inherent risks of agritourism activity “surface and subsurface conditions, natural
conditions of land, vegetation, and waters, [and] the behavior of wild or domestic
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animals,” relatively minor and rarer risks than those associated with shooting guns
that would be integral to the shooting activities at issue here, supports our
interpretation that such activities were not contemplated as “agritourism.” Further,
that the statute lists “ordinary dangers of . . . equipment ordinarily used in farming
and ranching operations” but not equipment such as guns used in hunting operations,
buttresses an interpretation that shooting activities, even when done “in preparation
for the hunt,” were not contemplated as “agritourism.”
In summary, commercial shooting activities involving continental shooting
towers, 3D archery courses and ranges, sporting clays, skeet and trap ranges, rifle
ranges, and pistol pits neither fit as squarely within traditional notions of hunting,
the definition of a “rural” activity, nor the category of a “natural” activity. Applying
the principle of noscitur a sociis to N.C. Gen. Stat. § 153A-340(b)(2a), shooting
activities that require the construction and use of artificial structures and the
alteration of natural land, such as clearing farm property to operate gun ranges,
share little resemblance to the listed rural agritourism activity examples or the same
spirit of preservation or traditionalism. Applying that same principle to subdivision
(2a)’s examples of agritourism events yields the same interpretation. Under the
principle of expressio unius est exclusio alterius as applied to both N.C. Gen. Stat. §
153A-340(b)(2a) and N.C. Gen. Stat. § 99E-30(3), that these statutes list “farming”
and “ranching” but not “hunting” implies that these shooting activities, even when
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done in preparation for a rural activity like traditional hunting, were not
contemplated as “agritourism.” Finally, N.C. Gen. Stat. § 99E-30(3)’s illustrative list
of inherent risks of agritourism activities omits the typically greater risks of shooting
guns that would be an integral danger to operating these commercial gun shooting
activities.
Accordingly, after our de novo review of the statutory farm exemption
provisions, we agree with the superior court that commercial shooting activities
involving the operation of continental shooting towers, 3D archery courses and
ranges, sporting clay, skeet and trap ranges, rifle ranges, and pistol pits, even when
performed on a bona fide farm, and even when done in preparation for the hunt, were
not contemplated by our legislature as types of “agritourism” activities intended to be
shielded from countywide zoning under the statutory farm exemption. We thus hold
that these shooting activities do not constitute “agritourism” as a matter of law and
are subject to zoning. Accordingly, we affirm the 2014 Order on this basis. In light
of our decision, we need not address intervening-respondents’ remaining challenge to
the 2014 Order. Intervening-respondents, of course, may freely apply for conditional-
use permits to continue operating these activities, but we hold that they do not
constitute “agritourism” as a matter of law under our General Statutes.
B. 2012 Order
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On appeal from the 2012 Order, intervening-respondents assert the superior
court erred by remanding the 2011 Board Decision on the basis that (1) petitioners
failed to meet their burden of presenting competent, substantial, and material
evidence in support of their appeal to the Board of Adjustment; (2) the superior court
erroneously concluded that petitioners had not been given an opportunity to be heard;
and (3) the superior court misinterpreted the plain language of the Harnett County
Unified Development Ordinance (UDO) and our General Statutes by concluding that
there must be a nexus between agritourism activities offered on a bona fide farm and
its farming operations in order to be shielded by the farm exemption.
The linchpin holding together each alleged error is the superior court’s
conclusion that petitioners burden to support their appeal from the 2011 Board
Decision was to present evidence “to establish that there was no requisite nexus
between the Respondents’ farming activities[ ] and shooting activities.” Intervening-
respondents contend that, because the shooting activities constitute “agritourism,”
no such nexus is required under the plain language of the UDO and our General
Statutes. According to intervening-respondents, the UDO provides that “zoning
provisions . . . shall not apply to bona fide farms, as defined herein” and that the “use
of any bona fide farm property for any non-farm use purposes shall be subject to the
regulations of the Ordinance, with the exception of those uses determined to be
agritourism, as defined by this Ordinance.” (Emphasis added.) Thus, intervening-
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respondents continue, the superior court erred by finding that Drake Landing
operates “on real property of Andrews Farms” and that “Andrews Farms is a bona
fide farm pursuant to N.C. Gen. Stat. § 153A-340” but nonetheless remanding the
matter to the Board with instructions to allow petitioners to present evidence that
there was no connectivity between Drake Landing’s shooting activities and Andrews
Farms’ farming operations when no such nexus is required for agritourism activities.
However, because intervening-respondents failed to include the UDO in the
appellate record, the authority upon which they primarily rely to support their main
challenge to the 2012 Order, these issues are not properly before us. See Town of
Scotland Neck v. W. Sur. Co., 301 N.C. 331, 338, 271 S.E.2d 501, 505 (1980) (“No
Town ordinance . . . was introduced, and we cannot take judicial notice of one if it
exists.” (citation omitted)); Beau Rivage Homeowners Ass’n v. Billy Earl, L.L.C., 163
N.C. App. 325, 327, 593 S.E.2d 120, 122 (2004) (“When no ordinance is presented to
the appellate court through the record on appeal, the appellate court is not permitted
to take judicial notice of the ordinance if it exists.” (citation omitted)); see also Cty. of
Durham v. Roberts, 145 N.C. App. 665, 671, 551 S.E.2d 494, 498 (2001) (refusing to
consider appellant’s zoning-ordinance-interpretation argument where, although the
ordinance was attached in an appendix to the appellate brief, it was not included in
the appellate record: “[E]xternal documents included in the appendix to defendant’s
brief are not considered here.”).
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Further, the practical effect of the 2012 Order was to remand the matter to the
Board, which yielded the 2013 Board Decision and, ultimately, the 2014 Order on
appeal. Because we have already determined that the superior court in its 2014
Order properly concluded that the challenged shooting activities do not constitute
“agritourism” as a matter of law, and because we have already determined that the
superior court in its 2017 Order properly affirmed the 2016 Board Decision that
concluded the only remaining activity—Drake Landing’s operation of its controlled
hunting preserve for domestically raised game birds—is exempt from countywide
zoning, and that petitioners are procedurally barred from objecting to that decision,
no shooting activities remain to be challenged. Accordingly, we dismiss intervening-
respondents’ challenges to the 2012 Order on the grounds that they failed to include
the UDO in the appellate record and on the grounds that, in light of our dispositions
of the 2014 and 2017 Orders, their challenges to the 2012 Order are now moot.
V. Conclusion
Under N.C. Gen. Stat. §§ 160A-393(j) and (k)(1), the superior court was only
required to address those issues raised by intervening-respondents’ petition for
certiorari review of the 2016 Board Decision and to ensure that intervening-
respondents’ rights were not prejudiced, as petitioners never raised any written
objection to that decision, requested any alternative relief, or moved to intervene as
a petitioner. The superior court also properly refused to consider petitioners’
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JEFFRIES V. HARNETT COUNTY
Opinion of the Court
objections to the 2016 Board Decision for the first time at the certiorari hearing
because petitioners were procedurally barred from challenging that decision by
failing to comply with N.C. Gen. Stat. § 160A-393’s requirements. Accordingly, based
on intervening-respondents’ petition for certiorari review, and on petitioners’ failures
to timely challenge that decision, the superior court did not err by affirming the 2016
Board Decision. We thus affirm the 2017 Order.
Additionally, based on our de novo interpretation of applicable provisions of
the statutory farm exemption from countywide zoning, we hold that the particular
outdoor shooting activities at issue here do not constitute “agritourism” as a matter
of law and are thus subject to zoning. We therefore affirm the 2014 Order.
Finally, because intervening-respondents have failed to include in the
appellate record the UDO upon which they primarily rely to support their appeal
from the 2012 Order, and because our resolutions of petitioners’ appeal from the 2017
Order and intervening-respondents’ appeal from the 2014 Order renders moot the
issues they raised with respect to the 2012 Order, we dismiss intervening-
respondents challenges to the 2012 Order.
AFFIRMED IN PART; DISMISSED IN PART.
Chief Judge McGEE concurs.
Judge MURPHY concurs in result only.
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