Arter v. Orange County

• Court: Supreme Court of North Carolina
• Decided: August 23, 2024
• Docket: 229A23
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 229A23

Filed 23 August 2024

ALISON ARTER

v. ORANGE COUNTY, STEPHEN M. BURT, SHARON C. BURT, JODI BAKST, and REAL ESTATE EXPERTS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 290 N.C. App. 128 (2023), affirming an order entered on 23 June

2022 by Judge R. Allen Baddour, Jr. in Superior Court, Orange County. Heard in the

Supreme Court on 10 April 2024.

Petesch Law, by Andrew J. Petesch, for petitioner-appellant.

James Bryan and Joseph Herrin for respondent-appellee Orange County.

The Brough Law Firm, PLLC, by Robert E. Hornik, Jr., for respondent- appellees Stephen M. Burt, Sharon C. Burt, Jodi Bakst, and Real Estate Experts.

DIETZ, Justice.

Local governments have a responsibility to enact clear, unambiguous zoning

rules. The increasing complexity of many local zoning ordinances can make that a

difficult task. Zoning ordinances often contain pages upon pages of indices, headings,

text, tables, and illustrative figures, all cross-referencing each other. Ensuring that

this thicket of rules is free from ambiguity and internal inconsistency is a daunting

task. ARTER V. ORANGE COUNTY

Opinion of the Court

Orange County sought to address this dilemma through an interpretive rule

in its zoning ordinances. An introductory provision in those ordinances states that

the many headings, tables, figures, and illustrations contained within are merely

“provided for convenience and reference” and if there is “any difference of meaning or

implication between the text of this Ordinance and any heading, drawing, table,

figure, or illustration, the text controls.”

This case concerns a conflict between the text and a corresponding table in

Orange County’s zoning ordinances. As explained in more detail below, we agree with

the Court of Appeals majority, which held that the interpretive instruction quoted

above resolves the conflict, leaving no ambiguity in meaning. We therefore affirm the

decision of the Court of Appeals.

Facts and Procedural History

In the mid-2000s, Alison Arter purchased land from Stephen and Sharon Burt

in Orange County. The property had a home and a horse farm. Arter continued to

operate the horse farm after buying the property. The Burts continued to own an

adjacent property.

In 2020, a real estate developer applied to subdivide the Burts’ property and

construct a number of homes. At the time, both Arter’s property and the Burts’

property were zoned “R-1” residential under Orange County’s zoning ordinances.

Because of topography and water features on the Burts’ property, the developer

planned to build the main road leading to the new subdivision along the Burts’ side

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of the property line separating that property from Arter’s property.

Upon learning of the plans for the subdivision and, in particular, the road next

to her property line, Arter raised concerns that the road would disrupt activities on

her horse farm. Arter submitted letters to Orange County asserting that the

developer had an obligation, based on the applicable zoning ordinances, to build a

thirty-foot buffer between the subdivision’s road and her property.

The Orange County Planning & Inspections Department rejected Arter’s

arguments, determining that the county’s zoning ordinances did not “require the

establishment of a land use buffer when parcels have the same/similar general use

zoning designations.”

Arter appealed to the Orange County Board of Adjustment, which entered a

written order upholding the department’s decision. Arter then sought judicial review

in Superior Court. After a hearing, the court affirmed. Arter then appealed to the

Court of Appeals.

The Court of Appeals issued a divided decision. The majority held that the

county’s zoning ordinances only required buffers between different zoning districts

and, because both properties were in the same R-1 zoning district, no buffers were

required. Arter v. Orange County, 290 N.C. App. 128, 131 (2023). The majority

therefore affirmed the lower court decision.

The dissent argued that, when also considering a table accompanying the text

that offered contradictory guidance, buffers are required “based on the zoning

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districts or land uses of the subject and adjacent properties.” Id. at 136 (Carpenter,

J., dissenting). Thus, the dissent argued, the case should be remanded for further

fact-finding concerning the land use of the properties. Id.

Arter then filed a notice of appeal with this Court based on the dissent.

Analysis

In this type of zoning appeal, the trial court sits as an appellate court and

applies “de novo review to alleged errors of law, including challenges to a board of

adjustment’s interpretation of a term in a municipal ordinance.” Morris Commc’ns

Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152, 155 (2011).

On further appellate review, both the Court of Appeals and this Court likewise apply

de novo review to legal questions concerning the proper interpretation of a disputed

provision in a zoning ordinance. Id.

Courts interpret zoning ordinances largely in the same manner as statutes and

other written laws. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of

Adjustment, 354 N.C. 298, 303 (2001). We begin with the text of the statute and, if

that text is clear and unambiguous, we “conclude that the legislature intended the

statute to be implemented according to the plain meaning of its terms.” Lanvale

Props., LLC v. County of Cabarrus, 366 N.C. 142, 154 (2012).

When a zoning ordinance’s language is ambiguous, we resort to other accepted

tools of statutory construction to “ascertain and effectuate the intent of the legislative

body.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629 (1980).

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The only difference between traditional statutory interpretation and the

interpretation of zoning laws is a special rule of construction: because zoning laws

“are in derogation of common law rights,” they “cannot be construed to include or

exclude by implication that which is not clearly their express terms.” Yancey v.

Heafner, 268 N.C. 263, 266 (1966). Moreover, when there are “well-founded doubts”

about the proper meaning of a zoning law—that is to say, an ambiguity—courts must

choose the reasonable interpretation that favors “the free use of property.” Id.

With these principles in mind, we turn to the disputed portions of Orange

County’s zoning ordinances. The crux of this case is a conflict between the text of the

applicable ordinance and the contents of a corresponding table that purports to

complement that text.

Section 6.8.6 of Orange County’s zoning ordinances is titled “Land Use

Buffers.” Subsection (A) contains a purpose statement indicating the buffers are

intended to screen certain land uses from other “incompatible” uses. Subsection (B)

contains the operative text stating that buffers are required based on the respective

zoning districts of the properties:

6.8.6 Land Use Buffers

(A) Purpose

Land use buffers are intended to screen and buffer lower intensity/density uses from incompatible higher intensity/density land uses. Buffers reduce adverse visual effects, as well as noise, dust, and odor.

(B) Applicability

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Land use buffers will be required based on the zoning district of the proposed use and the zoning district of the adjacent uses.

Orange County Unified Development Ordinance (UDO) art. 6, § 6.8.6.

Following another subsection discussing the location of required buffers, the

ordinance then contains subsection (D) which is titled “Land Use Buffer Table” and

includes the following table:

Id. § 6.8.6(D).

This table lists each of the zoning districts identified in other portions of the

ordinances. See id. art. 3. The rows represent the zoning districts of the “subject

property” and the columns represent the zoning districts of the “adjacent properties.”

The letters in the table correspond to the type of buffer required for each possible

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combination of zoning districts. Id. § 6.8.6(F).

There are two noteworthy points about this Land Use Buffer Table in

subsection (D). First, when comparing zoning districts to each other, the table is

consistent with the operative text in subsection (B), which states that buffers are

“required based on the zoning district of the proposed use and the zoning district of

the adjacent uses.” Id. § 6.8.6(B). The table identifies the type of buffer required for

each possible combination of zoning districts. Additionally, whenever the table

compares a zoning district to itself, the notation in the table is simply a dash,

indicating that no buffer is required. Id. All of this is consistent with the text of

subsection (B).

But there is a second, conflicting portion of the table. In addition to listing each

possible zoning district in the columns, the table also includes four categories that

are not zoning districts: Interstate Highway, Arterial Street, Collector Street, and

Active Farm/Agriculture. Id. § 6.8.6(D). This sets up an internal conflict within the

table. Suppose a property is zoned R-4 and the adjacent property is zoned R-2. The

table indicates that this combination requires buffer type “A”. But what if that

adjacent R-2 property is an active farm? The table requires buffer type “B” between

a property zoned R-4 and an active farm. Thus, in this example, the table is internally

inconsistent, requiring both buffer types “A” and “B”.

Moreover, there is a broader conflict between the table and the text in

subsection (B). The text states that buffers are required based on the zoning districts

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of the properties. Id. § 6.8.6(B). The additional categories in the table—highways,

active farms, and so on—are not zoning districts. Thus, requiring a buffer based on

these additional categories conflicts with the textual requirement of subsection (B).

Ordinarily, these types of internal inconsistencies would create ambiguity that

courts must resolve through the interpretive rules described above. But a

“fundamental rule of statutory construction is that when the legislature has erected

within the statute itself a guide to its interpretation, that guide must be considered

by the courts in the construction of other provisions of the act which, in themselves,

are not clear and explicit.” Williams v. Williams, 299 N.C. 174, 180 (1980).

Of course, these interpretive guides cannot override this Court’s precedent

governing how we interpret the law, because it is exclusively the judiciary’s role “to

say what the law is.” White v. Worth, 126 N.C. 570, 583 (1900) (quoting Marbury v.

Madison, 5 U.S. 137, 177 (1803)); see also N.C. Const. art. IV, § 12. But legislative

bodies are free to define terms, provide grammatical rules, and take other steps to

eliminate potential ambiguity in the text of written laws. See Williams, 299 N.C. at

179–80.

Here, Orange County’s zoning ordinances contain this sort of permissible

interpretive guide. Section 1.1.12 states that when there is a conflict between the text

of an ordinance and a table, the text controls:

Headings and illustrations contained herein are provided for convenience and reference only and do not define or limit the scope of any provision of this Ordinance. In case of any difference of meaning or implication between the

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text of this Ordinance and any heading, drawing, table, figure, or illustration, the text controls.

Orange County UDO art. 1, § 1.1.12 (2024).

This interpretive provision removes any potential conflict between the text and

the table. As the provision plainly states, “the text controls.” The text of the ordinance

provides that buffers are “based on the zoning district of the proposed use and the

zoning district of the adjacent uses.” Id. § 6.8.6(B). Thus, in discerning the meaning

of these ordinances, we ignore the four columns of the table that are not zoning

districts. A landowner’s obligation to install a “land use buffer” under this ordinance

is based solely on the zoning district of the landowner’s property and the zoning

district of the adjacent property.

Here, the parties do not dispute that the Burts’ property and Arter’s property

are both zoned R-1. Consulting the corresponding portion of the Land Use Buffer

Table that governs buffers between zoning districts, no buffer is required because the

zoning districts are the same. Id. § 6.8.6(D).

Accordingly, the Court of Appeals majority properly held that the

unambiguous language of the relevant zoning ordinances did not require any buffer

between these two properties.

Conclusion

We affirm the decision of the Court of Appeals.

AFFIRMED.

Justice RIGGS did not participate in the consideration or decision of this case.

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