IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-1083
Filed 18 March 2026
Durham County, No. 22CVS004521-310
ROBIN BAREFOOT, HAROLD KOENIG, JUANITA PEARCE, MARTY PEARCE, RUSSELL SCOTT RIGGS, and JAI G. RIGGS, Plaintiffs,
v.
DURHAM COUNTY, Defendant.
Appeal by plaintiffs from order entered 16 August 2023 by Judge Beecher
Reynolds Gray in Superior Court, Durham County. Heard in the Court of Appeals
11 June 2024.
The Brough Law Firm, PLLC, by Brady N. Herman and T.C. Morphis Jr., for plaintiff-appellants Robin Barefoot, Harold Koenig, Juanita Pearce, Marty Pearce, Russell Scott Riggs, and Jai G. Riggs.
Fox Rothschild LLP, by Patrick M. Kane, Kip D. Nelson, and La-Deidre Matthews, and Durham County Attorney’s Office, by Curtis Massey, for defendant-appellee Durham County.
STROUD, Judge.
Plaintiffs Robin Barefoot, Harold Koenig, Juanita Pearce, Marty Pearce,
Russell Scott Riggs, and Jai G. Riggs appeal from the trial court’s order denying their
motion for summary judgment and granting Defendant Durham County’s motion for
summary judgment. Because the trial court’s order fails to comply with the plain
language in Defendant’s unified development ordinance (“UDO”), and because BAREFOOT V. DURHAM CNTY.
Opinion of the Court
Plaintiffs may be entitled to attorneys’ fees, we reverse and remand.
I. Background
In 2006, Durham County’s (“the County’s”) UDO was amended to add Section
6.2.4, which provided for the creation of conservation subdivisions. An alternative to
conventional subdivisions, a conservation subdivision allows for clustered
development, higher residential density, and flexible lot sizes to protect larger,
undeveloped spaces.
Generally, the approval of a conservation subdivision site plan is an
administrative process that does not require a public hearing. However, the proposed
conservation subdivision in this case, a 141-lot subdivision called Mason Farms,
required the approval of a special use permit for its community water and wastewater
systems in addition to its site plan, which required a public hearing. On 28 November
2022, following a hearing, the Board of Commissioners (“the Board”) unanimously
approved the site plan and special use permit for Mason Farms.
On 28 December 2022, Plaintiffs, who all live within 650 feet of the proposed
development, filed a complaint contesting the Board’s approval of the site plan.
Plaintiffs sought a declaratory judgment that the approval of the site plan was void
because the Board failed to comply with the requirements of the UDO. Specifically,
Plaintiffs argued the site plan failed to meet all twelve of the stated purposes in
Section 6.2.4A, so the Board’s approval was ultra vires and arbitrary and capricious.
On 26 May 2023, the County moved for a judgment on the pleadings. The
-2- BAREFOOT V. DURHAM CNTY.
County argued that Section 6.2.4A merely listed twelve “various purposes for which
a conservation subdivision [was] appropriate[,]” and approval of a conservation
subdivision did not mandate all twelve purposes be fulfilled. Instead, the County
argued the “actual requirements” were found in subsequent sections and as these
requirements were met, the Board properly approved the site plan.
On 12 July 2023, Plaintiffs moved for summary judgment. Both motions were
heard on 24 July 2023, with the trial court converting the County’s motion into a
motion for summary judgment to consider a subsequent affidavit. By order entered
16 August 2023, the court denied Plaintiffs’ motion for summary judgment, granted
the County’s motion for summary judgment, and dismissed Plaintiffs’ claims.
Plaintiffs timely appealed.
II. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2023). We review
the lower court’s summary judgment ruling de novo. See Brown v. City of Winston-
Salem, 171 N.C. App. 266, 270, 614 S.E.2d 599, 602 (2005).
Underlying the trial court’s summary judgment ruling is the Board’s
interpretation and application of the UDO when it approved the Mason Farms site
plan. “Questions involving the interpretation of ordinances are questions of law.”
-3- BAREFOOT V. DURHAM CNTY.
Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439 S.E.2d 199, 201 (1994). “[O]n
appeal of the judgment of the superior court, this Court must apply a de novo
standard of review in determining whether ‘the superior court committed error of law
in interpreting and applying the municipal ordinance,’ and may also freely substitute
its judgment for that of the superior court.” Hayes v. Fowler, 123 N.C. App. 400, 404,
473 S.E.2d 442, 445 (1996) (quoting Capricorn Equity Corp. v. Town of Chapel Hill
Bd. of Adjustment, 334 N.C. 132, 137, 431 S.E.2d 183, 187 (1993)).
III. Analysis
Both Plaintiffs and the County acknowledge that the outcome hinges upon
appropriately interpreting and applying Section 6.2.4A, which states that a
conservation subdivision shall be established for the following purposes:
1. To provide flexibility of design in order to promote environmentally sensitive and efficient uses of the land;
2. To preserve in perpetuity unique or sensitive natural resources such as groundwater, floodplains, wetlands, streams, steep slopes, woodlands and wildlife habitat;
3. To preserve important historic and archaeological sites;
4. To permit clustering of houses and structures on less environmentally sensitive soils which will reduce the amount of infrastructure, including paved surfaces and utility easements, necessary for residential development;
5. To reduce erosion and sedimentation by minimizing land disturbance and removal of vegetation in residential development;
6. To promote interconnected greenways and corridors
-4- BAREFOOT V. DURHAM CNTY.
throughout the community;
7. To promote contiguous green space with adjacent jurisdictions;
8. To encourage interaction in the community by clustering houses and orienting them closer to the street, providing public gathering places and encouraging use of parks and community facilities as focal points in the neighborhood;
9. To encourage street designs that reduce traffic speeds and reliance on main arteries;
10. To promote construction of landscaped walking trails and bike paths conveniently located both within the subdivision and connected to neighboring communities, businesses and facilities to reduce reliance on automobiles;
11. To conserve scenic views from public roadways and reduce perceived density; and
12. To protect prime agricultural land and preserve farming as an economic activity.
Plaintiffs contend that Section 6.2.4A establishes twelve requirements, each of which
must be met for a conservation subdivision to be approved. As the site plan only met
six of the twelve requirements, Plaintiffs argue the Board’s approval was erroneous,
and the trial court erred in granting summary judgment for the County. Plaintiffs
assert the trial court’s ruling should be reversed because they are entitled to
summary judgment on all their claims—that the Board’s decision to approve the site
plan was void, as well as arbitrary, capricious, and ultra vires. We agree.
A. Statutory Construction
-5- BAREFOOT V. DURHAM CNTY.
It is well-established that “[t]he rules applicable to the construction of statutes
are equally applicable to the construction of municipal ordinances.” Cogdell v. Taylor,
264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) (citations omitted). Thus, “[t]he basic
rule is to ascertain and effectuate the intent of the legislative body[.]” Coastal Ready-
Mix Concrete Co., Inc. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385
(1980) (citations omitted). Intent is determined “by examining (i) language, (ii) spirit,
and (iii) goal of the ordinance.” Capricorn Equity Corp. v. Chapel Hill, 334 N.C. 132,
138, 431 S.E.2d 183, 188 (1993) (citation omitted). Where the language of the
ordinance is “clear and unambiguous, there is no room for judicial construction and
the courts must give it its plain and definite meaning, and are without power to
interpolate, or superimpose, provisions and limitations not contained therein.” In re
Town of Smithfield, 230 N.C. App. 252, 255, 749 S.E.2d 293, 295 (2013) (quoting In
re Miller, 357 N.C. 316, 324, 584 S.E.2d 772, 780 (2003)).
Plaintiffs first contend that the use of the word “shall” at the opening of Section
6.2.4A—“[t]he conservation subdivision shall be established for the following
purposes”—establishes the intent to make the listed purposes mandatory. The
County contends Section 6.2.4A is merely an extended purpose statement, based on
the section being titled “Purpose,” that provides “an overview of the potential goals”
for a conservation subdivision, not necessarily twelve “specific requirements” to be
imposed “on each and every conservation subdivision.” The County further argues
that a consideration of Section 6.2.4 as a whole confirms the use of “shall” in Section
-6- BAREFOOT V. DURHAM CNTY.
6.2.4A was not intended to mandate additional requirements for approval of a
conservation subdivision.
While it is true that the use of “shall” does not always evince an intention to
make a provision mandatory, see State v. House, 295 N.C. 189, 203, 244 S.E.2d 654,
662 (1978), the UDO itself bars any other interpretation. UDO Section 17.1(C)
provides that “[t]he word ‘shall’ is mandatory.” Because there is no ambiguity in the
meaning of “shall” in Section 6.2.4A, we “need look no further” to determine that the
twelve purposes for conservation subdivisions in Section 6.2.4A are not merely
suggestions. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354
N.C. 298, 304, 554 S.E.2d 634, 638 (2001). However, even considering the
conservation subdivision ordinance holistically, the County’s argument fails.
The County contends that the sections following Sections 6.2.4A, including
Sections 6.2.4B “Applicability of Regulations,” 6.2.4D “Density Calculation,” and
6.2.4F “Open Space Requirements,” contain the “technical requirements” a developer
must satisfy for the approval of a conservation subdivision. And these specific
requirements supersede the general requirements outlined in Section 6.2.4A, citing
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645, 182 L. Ed.
2d 967, 974 (2012) (“It is a commonplace of statutory construction that the specific
governs the general.” (citations, quotation marks, and brackets omitted)). The
County contends our appellate courts specifically applied this principle to a land use
-7- BAREFOOT V. DURHAM CNTY.
ordinance purpose statement in Guilford Financial Services, LLC v. City of Brevard,
150 N.C. App. 1, 563 S.E.2d 27 (2002).
In Guilford Financial, the city council rejected a proposed subdivision
containing fifteen duplexes based, in part, on a purported requirement that duplexes
be “unconcentrated.” Id. at 2-5, 563 S.E.2d at 29-30. The use of the word
“unconcentrated” was only found in the section titled “Purpose,” which stated that a
subdivision should “protect areas in which the principal use of the land is for medium
density single and unconcentrated two-family dwellings[.]” Id. at 15, 563 S.E.2d at
36 (Tyson, J., concurring in part and dissenting in part). The dissenting judge argued
this general statement could not be used to reject the proposed duplex development
because it complied with the specific minimum lot area requirement of another
section. See id. at 15-17, 563 S.E.2d at 36-37. Our Supreme Court agreed with the
dissent and reversed the subdivision denial. See Guilford Fin. Servs. v. City of
Brevard, 356 N.C. 655, 576 S.E.2d 325 (2003) (per curiam).
However, Guilford Financial is inapplicable to the facts before us. Beyond
being located under a section titled “Purpose,” there are no similarities between the
challenged ordinance in Guilford Financial and Section 6.2.4A. The ordinance in
Guilford Financial was undeniably general, providing a broad overview of the
intention behind creating subdivisions. See Guilford Fin. Servs., 150 N.C. App. at 14-
15, 563 S.E.2d 35-36. The word “unconcentrated” was similarly general, and there
was no definition for that term in the ordinances. Id. Here, Section 6.2.4A uses
-8- BAREFOOT V. DURHAM CNTY.
appreciably specific language for twelve discrete purposes of a conservation
subdivision, such as “[t]o promote construction of landscaped walking trails and bike
paths conveniently located both within the subdivision and connected to neighboring
communities, businesses and facilities to reduce reliance on automobiles[.]” Again,
Section 6.2.4A also states these “shall” be the purposes of a conservation subdivision,
with “shall” a defined, mandatory term in the UDO. The fact that Section 6.2.4A is
titled “Purpose” cannot override the plain, specific language in the Section itself. See
First Bank v. S&R Grandview, L.L.C., 232 N.C. App. 544, 551, 755 S.E.2d 393, 397
(2014) (“Although we agree that the title of an Article in which a statute is placed can
be relevant when interpreting the statute, the placement of a statute within an Act
is less probative of legislative intent than the plain language of the statute itself.”).
Moreover, the County disproves its own argument by pointing to other sections
as containing the “specific standards and regulations that govern the approval of a
conservation subdivision.” The County explicitly includes Section 6.2.4B as
containing these specific requirements. That section, “Applicability of Regulations,”
originally allowed for a conservation subdivision “as a use by right subject to
subdivision approval in accordance with Sec. 3.6, Subdivision Review.” However,
since its amendment in 2008, Section 6.2.4B allows for a conservation subdivision “as
a use by right subject to subdivision approval in accordance with Sec. 3.6, Subdivision
Review, and in accordance with the standards set forth in Sec. 6.2.4A, Purpose, and
Sec. 6.2.4F, Primary and Secondary Conservation Areas.” (Emphasis added.)
-9- BAREFOOT V. DURHAM CNTY.
Further, unlike with Section 6.2.4A, the drafters of the UDO specifically disclaimed
the use of general purpose statements as regulations in other sections of the
ordinance.
Indeed, to arrive at the County’s preferred interpretation that the
requirements of Section 6.2.4A are mere suggestions, we would need to do the very
thing the County disclaims: analyze Section 6.2.4A in a vacuum and not within the
full context of the UDO. Moreover, we would have to ignore the plain language within
Section 6.2.4A and construe the use of “shall” to actually mean “may,” which we
cannot do. “When the language of a statute is clear and unambiguous, it must be
given effect and its clear meaning may not be evaded by an administrative body or a
court under the guise of construction.” State ex rel. Util. Comm’n v. Edmisten, 291
N.C. 451, 465, 232 S.E.2d 184, 192 (1977). Thus, we conclude the plain language in
Section 6.2.4A, considered along with the plain language throughout the UDO,
establishes that the twelve purposes in Section 6.2.4A are requirements for
conservation subdivisions, not suggestions.
However, this conclusion does not necessarily make the site plan approval
erroneous. It is uncontested that the Mason Farms site plan met six of the twelve
purposes in Section 6.2.4A. But Plaintiffs contend this compliance is insufficient for
approval because the use of the conjunctive “and” between the last two purposes in
Section 6.2.4A indicates that all twelve are mandatory:
11. To conserve scenic views from public roadways and
- 10 - BAREFOOT V. DURHAM CNTY.
reduce perceived density; and
12. To protect prime agricultural land and preserve farming as an economic activity.
(Emphasis added.) In a seeming about-face, the County argues that a conservation
subdivision can be established if “at least one of” the previously argued non-
mandatory purposes in Section 6.2.4A is met. The County contends that the use of
“and” is merely used to connect the elements, not to “connote cumulative
conditions[,]” citing the recent United States Supreme Court ruling in Pulsifer v.
United States, 601 U.S. 124, 218 L. Ed. 2d 77 (2024).
At issue in Pulsifer was the criminal history requirement, referred to as
Paragraph (f)(1), in the “safety valve” provision of federal sentencing law that
“exempts certain defendants from mandatory minimum penalties, thus enabling
courts to give them lighter prison terms.” Id. at 127, 218 L. Ed. 2d at 83. To meet
the requirements in Paragraph (f)(1), a defendant cannot have: “(A) more than 4
criminal history points,” “(B) a prior 3-point offense,” “and (C) a prior 2-point violent
offense[.]” Id. at 129, 218 L. Ed. 2d at 84 (citing 18 U.S.C. § 3553(f)(1)) (emphasis
added).
The defendant in Pulsifer had two prior convictions, each for a three-point
offense. See id. at 130, 218 L. Ed. 2d. at 85. He argued that he met the Paragraph
(f)(1) requirements because he did not have a two-point violent offense, and only a
combination of subparagraphs (A), (B), and (C) would disqualify him from relief. See
- 11 - BAREFOOT V. DURHAM CNTY.
id. at 130-31, 218 L. Ed. 2d at 85. The government argued that each specification
under Paragraph (f)(1) must be met, and because the defendant did not meet either
subparagraph (A) or (B), he had no right to relief. See id. at 130, 218 L. Ed. 2d at 85.
The Supreme Court adopted the government’s argument and held that a
defendant was only eligible for relief if he did not have “all three of the items listed—
or said more specifically, does not have four criminal-history points, does not have a
prior three-point offense, and does not have a prior two-point violent offense.” Id. at
132, 218 L. Ed. 2d at 86. Thus, Paragraph (f)(1) created “an eligibility checklist, and
demands that a defendant satisfy every one of its conditions.” Id.
The County presents the defendant’s argument in Pulsifer as “the word ‘and’
meant that simultaneous fulfillment of all three conditions was required, while the
government argued that only one condition was required.” (Emphasis in original.)
This odd phrasing is then used to support the County’s assertion that “and” is often
“a connector, not a multiplier[,]” so the fulfillment of any one of the twelve
enumerated purposes is sufficient. But this is contrary to the Supreme Court’s
holding. The “and” in Paragraph (f)(1) was also a connector, which connected three
distinct checks on sentencing relief: “Only a defendant with none of those markers—
a defendant who can check off every one of the three ‘does not have’ requirements—
is eligible for relief.” Id. at 147, 218 L. Ed. 2d at 95.
Unaddressed by the County, the Supreme Court also considered Paragraph
(f)(1) in the context of the “safety valve” statute as a whole. See id. at 149-150, 218
- 12 - BAREFOOT V. DURHAM CNTY.
L. Ed. 2d at 97. In addition to the criminal history requirement in Paragraph (f)(1),
18 United States Code Section 3553(f) lists four other requirements for minimum
sentencing relief, all joined with an “and.” Id. at 150, 218 L. Ed. 2d at 97. All parties
agreed that sentencing relief was only available if a defendant fulfilled each
requirement, (f)(1) through (f)(5). Id. Thus, the “and” between Paragraphs (f)(4) and
(f)(5) connected all the requirements a defendant must meet to get relief: “So again,
the ‘and’ joins several individually necessary conditions for safety-valve relief.” Id.
at 150, 218 L. Ed. 2d at 97.
As Plaintiffs note, much like Section 6.2.4A, Section 3553(f) provides that a
court “shall” provide sentencing relief if the court finds all five requirements are met.
Id. at 153-54, 218 L. Ed. 2d at 99-100. We agree with Plaintiffs that the benefit
accorded criminal defendants in Section 3553(f)—relief from otherwise mandatory
minimum sentencing—is analogous to the benefit developers obtain through a
conservation subdivision—relief from otherwise mandatory development restrictions.
And as criminal defendants must meet each of the requirements provided in 18
United States Code Section 3553(f), including each of the requirements in Paragraph
(f)(1), the site plan for Mason Farms needed to meet each requirement listed in
Section 6.2.4A to be approved as a conservation subdivision.
B. Application
Despite the plain language requiring a conservation subdivision to meet all
twelve purposes in Section 6.2.4A, the Board approved the Mason Farms site plan
- 13 - BAREFOOT V. DURHAM CNTY.
that met only six. The County contends this is in line with the past application of the
UDO: none of the fifteen conservation subdivisions approved since 2006 have satisfied
all twelve purposes. The County contends the Board’s prior application of the UDO
“is entitled to great consideration[,]” citing MacPherson v. Asheville, 283 N.C. 299,
307, 196 S.E.2d 200, 206 (1973).
However, MacPherson concerned an ambiguous term that was not defined in
the zoning ordinance. See id. at 307-08, 196 S.E.2d at 206. But where, as here, the
language is clear and unambiguous, “this Court must give effect to that unambiguous
language regardless of the agency’s interpretation.” Total Renal Care of N.C., LLC
v. N.C. Dep’t of Health & Hum. Servs., 242 N.C. App. 666, 672, 776 S.E.2d 322, 326
(2015). For the same reason, we reject the County’s arguments regarding the alleged
“absurd result” that would follow from a strict adherence to the language of the UDO.
See Union Carbide Corp. v. Offerman, 351 N.C. 310, 314, 526 S.E.2d 167, 170 (2000)
(“It is well settled that where the language of a statute is clear and unambiguous,
there is no room for judicial construction and the courts must give the statute its
plain and definite meaning, and are without power to interpolate, or superimpose,
provisions and limitations not contained therein.” (citation, quotation marks, and
brackets omitted)). Although the County, and our dissenting colleague, would
contend that it is absurd to interpret the UDO to require conservation subdivisions
to meet all twelve of the listed purposes—even if that is what the plain language of
the UDO requires—absurdity is often in the eye of the beholder. Plaintiffs note that
- 14 - BAREFOOT V. DURHAM CNTY.
the UDO grants conservation subdivisions additional benefits not allowed for
conventional subdivisions, such as higher residential density, clustering of homes,
flexibility of lot sizes, and mass grading. Logically, in exchange for the additional
benefits, the UDO also imposes additional requirements on conservation
subdivisions. Thus, Plaintiffs contend it would be “illogical and absurd” to ignore the
plain language of the UDO and to interpret the UDO to allow the development of
conservation subdivisions with fewer restrictions than conventional subdivisions.
Ultimately, the argument of absurdity comes down to the parties’ dispute over the
policy choices made by the County in adopting the UDO provisions governing
conservation subdivisions, so we must apply the UDO as written.
The County is always free to make new policy choices by amending the UDO.
And indeed, since the filing of this appeal, Section 6.2.4A was amended and “shall”
was removed, with the introductory phrase now providing that “[t]he conservation
subdivision standards are established for the following purpose[.]” (Emphasis in
original.)
The County asserts these changes are merely clarifying amendments, made to
address “issues raised in threatened, actual, or potential litigation” under the
provisions outlined in UDO Section 3.19.5.B.3. Despite what the County seems to
imply, there is nothing in the UDO that discusses or defines a “clarifying
amendment”, and Section 3.19 addresses the “Text Amendment” process generally.
See UDO sec. 3.19 (2024),
- 15 - BAREFOOT V. DURHAM CNTY.
https://www.durhamnc.gov/DocumentCenter/View/54014/Durham-Unified-
Development-Ordinance-UDO-Print-Version?bidId=. The County’s circular
reasoning—that the 2024 changes were clarifying amendments because they
provided “a clarification”—is supported by one cursory citation to Ray v. North
Carolina Department of Transportation, 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012): “A
clarifying amendment, unlike an altering amendment, is one that does not change
the substance of the law but instead gives further insight into the way in which the
legislature intended the law to apply from its original enactment.” The County
contends the 2024 “clarifying” changes established the County’s “consistent
application of” the UDO, and affirmed “that the Purpose statement was never
intended to impose an additional set of 12 requirements[.]”
Again, the County can only achieve its preferred outcome by neglecting the
foundational rule of statutory construction: “If the language used is clear and
unambiguous, the Court does not engage in judicial construction but must apply the
statute to give effect to the plain and definite meaning of the language.” Id. at 8, 727
S.E.2d at 681 (citation omitted).
Despite the County’s past practice or repeated assertions as to what Section
6.2.4A was supposed to do, the plain language in Section 6.2.4A—that a conservation
subdivision “shall be established” for twelve enumerated purposes joined with
“and”—unambiguously required a conservation subdivision to meet all twelve
purposes. Because the site plan for Mason Farms did not, the Board’s approval was
- 16 - BAREFOOT V. DURHAM CNTY.
erroneous. For the same reason, the trial court “committed error of law in
interpreting and applying the municipal ordinance[,]” Hayes, 123 N.C. App. at 404,
473 S.E.2d at 445, and in granting the County’s motion for summary judgment.
However, given there is no issue of material fact, summary judgment is the
proper disposition. N.C. Gen. Stat. § 1A-1, Rule 56(c). Under the UDO, site plan
approval is an administrative decision made by the Board, based on compliance with
the relevant requirements and standards. “Administrative decisions are routine,
nondiscretionary zoning ordinance implementation matters[.]” Cnty. of Lancaster v.
Mecklenburg Cnty., 334 N.C. 496, 507, 434 S.E.2d 604, 612 (1993). While the
administrator may engage in some fact finding to arrive at their conclusion, “this
involves determining objective facts that do not involve an element of discretion.” Id.
Because the Board approved a site plan that failed to comply with the plain language
of Section 6.2.4A, its approval is void, and Plaintiffs are entitled to a declaratory
judgment so stating.
For the same reason, the Board’s decision was arbitrary and capricious.
Administrative “decisions may be reversed as arbitrary or capricious if they are
patently in bad faith, or whimsical in the sense that they indicate a lack of fair and
careful consideration or fail to indicate any course of reasoning and the exercise of
judgment[.]” Lewis v. N.C. Dep’t of Human Res., 92 N.C. App. 737, 740, 375 S.E.2d
712, 714 (1989) (citations and quotations omitted). The evidence here shows the
Board failed to conduct fair and careful consideration of the conservation subdivision
- 17 - BAREFOOT V. DURHAM CNTY.
requirements, and exercised their judgment in approving the site plan. Despite being
informed that the Mason Farms site plan only met six of the twelve purposes listed
in Section 6.2.4A, the Board approved the site plan under an agency report that
indicated the site plan “was ordinance compliant[.]” As detailed above, a careful
consideration of Section 6.2.4A would have revealed the report was erroneous and the
site plan was not “ordinance compliant.” Thus, Plaintiffs are entitled to a judgment
declaring the Board’s approval was arbitrary and capricious.
IV. Conclusion
We conclude that the plain language of Section 6.2.4A establishes that the
twelve enumerated purposes included therein are mandatory, and a conservation
subdivision site plan may be approved only if it meets each stated purpose. Because
the Mason Farms site plan only met six of the twelve purposes, the Board’s approval
was erroneous. Thus, we reverse the trial court’s order granting summary judgment
upholding that approval.
As Plaintiffs are entitled to judgment as a matter of law, we remand for entry
of summary judgment in favor of Plaintiffs. On remand, the trial court should also
determine the amount of attorneys’ fees Plaintiffs are entitled to recover under North
Carolina General Statute Section 6-21.7 (2023).
REVERSED AND REMANDED.
Judge STADING concurs.
Judge COLLINS dissents by separate opinion.
- 18 - No. COA23-1083–Barefoot v. Durham Cnty.
COLLINS, Judge, dissenting.
I disagree with the majority’s analysis and conclusions. I therefore respectfully
dissent.
As the majority notes, the parties acknowledge that the outcome hinges upon
appropriately interpreting and applying Section 6.2.4.A of the UDO. This section of
the UDO reads as follows:
6.2.4. Conservation Subdivision A. Purpose The conservation subdivision shall be established for the following purposes: 1. To provide flexibility of design in order to promote environmentally sensitive and efficient uses of the land; 2. To preserve in perpetuity unique or sensitive natural resources such as groundwater, floodplains, wetlands, streams, steep slopes, woodlands and wildlife habitat; 3. To preserve important historic and archaeological sites; 4. To permit clustering of houses and structures on less environmentally sensitive soils which will reduce the amount of infrastructure, including paved surfaces and utility easements, necessary for residential development; 5. To reduce erosion and sedimentation by minimizing land disturbance and removal of vegetation in residential development; 6. To promote interconnected greenways and corridors throughout the community; BAREFOOT V. DURHAM CNTY.
COLLINS, J., dissenting
7. To promote contiguous green space with adjacent jurisdictions; 8. To encourage interaction in the community by clustering houses and orienting them closer to the street, providing public gathering places and encouraging use of parks and community facilities as focal points in the neighborhood; 9. To encourage street designs that reduce traffic speeds and reliance on main arteries; 10. To promote construction of landscaped walking trails and bike paths conveniently located both within the subdivision and connected to neighboring communities, businesses and facilities to reduce reliance on automobiles; 11. To conserve scenic views from public roadways and reduce perceived density; and 12. To protect prime agricultural land and preserve farming as an economic activity.
As established by its title, the Purpose subsection in the UDO outlines the
various acceptable purposes for which the Ordinance was enacted and sets forth the
scenarios in which a conservation subdivision would be suitable. The Purpose
subsection is an overview of the potential goals that such a project could accomplish.
The enumerated purposes do not impose, and were not intended to impose, twelve
specific requirements on each and every conservation subdivision. Rather, such
requirements are specified in subsequent subsections of the Conservation
Subdivision Ordinance. See UDO §§ 6.2.4.B (“Applicability of Regulations”), 6.2.4.D
2 BAREFOOT V. DURHAM CNTY.
(“Density Calculation”), 6.2.4.F (“Open Space Requirements”). When multiple
provisions make up a statutory scheme, a generalized statement of intent that is
followed by specific provisions is subject to the well-established principle that “the
specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639, 645 (2012) (citation omitted); see Guilford Fin. Servs., LLC v. City of
Brevard, 150 N.C. App. 1 (2023), rev’d per curiam for the reasons stated in the dissent,
356 N.C. 655 (2023). The dissent in Guilford, adopted by our Supreme Court,
explained that “a generalized purpose statement cannot add requirements not
otherwise specified in the ordinance” and “a generalized statement of intent of the
specifications that follow cannot be used as a basis to reject a permit that meets all
of the requirements.” 150 N.C. App. at 14, 16 (quotation marks and citations
omitted).
Furthermore, the majority’s opinion leads to non-sensical results. Under the
majority’s reasoning, a conservation subdivision must include all of the following:
• Unique sensitive natural resources (that are capable of being preserved in perpetuity) such as groundwater, floodplains, wetlands, streams, steep slopes, woodlands, and wildlife habitats (UDO § 6.2.4.A.2); • At least one important historic or archaeological site (UDO § 6.2.4.A.3); • Green space shared with adjacent jurisdictions (UDO § 6.2.4.A.7); • Walking trails and bike paths that connect to neighboring communities, business, and facilities (UDO § 6.2.4.A.10); • A scenic view from a public roadway (UDO § 6.2.4.A.11); • Prime agricultural land (UDO § 6.2.4.A.12); and
• Farming as an economic activity (UDO § 6.2.4.A.12).
3 BAREFOOT V. DURHAM CNTY.
It is doubtful, and more likely impossible, that any project could encompass all
of these scenarios simultaneously. The majority’s reasoning effectively renders a
conservation subdivision under the Ordinance impossible–something the Ordinance
drafters surely did not intend. See Four Seasons Mgmt. Servs. v. Town of Wrightsville
Beach, 205 N.C. App. 65, 82 (2010) (“It is well settled that ‘in construing statutes
courts normally adopt an interpretation which will avoid absurd or bizarre
consequences, the presumption being that the legislature acted in accordance with
reason and common sense and did not intend untoward results.’” (citations omitted)).
The Purpose statement articulated in Section 6.2.4.A provides a framework
within which applications for conservation subdivisions are considered; it does not to
create additional hurdles for development. I would thus affirm the trial court’s
judgment. And in light of this, I would conclude that Plaintiffs’ request for remand
for a determination of their entitlement to attorney’s fees is moot.