Today, the North Carolina Court of Appeals issued a decision giving legal operation to the common, catchall zoning ordinance provision stating that “[u]ses not specifically listed in the Table of Permitted Uses are prohibited.” The case is Byrd v. Franklin County, No. COA13-1457 (November 18, 2014).
At its core, the issues are (1) whether a shooting range is permitted on petitioners’ property because it is not an identified use in the County’s zoning ordinance, or (2) whether a shooting range is permitted as a “special use” pursuant to a quasi-judicial special use permit as a “Grounds and Facilities for Open Air Games and Sporting Events”, or (3) whether the shooting range is prohibited on petitioners’ property because it is not listed as a regulated use in the County’s zoning ordinance and the zoning ordinance contains a provision that any ““[u]ses not specifically listed in the Table  are prohibited.”
Ultimately, the Court agrees with the petitioner that the shooting range use is not a “Grounds and Facilities for Open Air Games and Sporting Events”, and, thus, petitioner does not need a special use permit to operate. But, critically, the Court also disagrees with petitioner that an unidentified use is not regulated by the County’s zoning ordinance because of the “catchall” provision. The Court’s conclusion:
We believe that the UDO is unambiguous in prohibiting shooting ranges in the County. UDO section 6-1 states that “[u]ses not specifically listed in the Table of Permitted Uses are prohibited.” Based on a “fair and reasonable construction” of this language, the County clearly recognized that it could not list every conceivable way that property could be used, and, therefore, it sought to provide that any use not listed would be prohibited unless and until any said use not listed was added to the UDO through an amendment thereto approved by the Board of Commissioners. Otherwise, landowners would be allowed to operate a shooting range or any other use not specifically listed in the Table anywhere in the County.
The Court of Appeals distinguishes a recent case — Land v. Village of Wesley Chapel — which also involved a shooting range and which allowed the shooting range as a permitted use. The Byrd Court believes the difference between the zoning ordinance in Franklin County and the zoning ordinance in the Village of Wesley Chapel is significant and distinguishing, in that the Wesley Chapel zoning law contains these provisions: “those uses that are listed shall be interpreted liberally to include other uses that have similar impacts to the listed use,” and that “uses that are not listed  and that do not have impacts that are similar to those of the listed uses are prohibited”.
On this note, we’re reminded by John Cooke — another editor of this blog — of Judge Tyson’s analysis in Robins v. Town of Hillsborough, 176 N.C. App. 1 (2006) , rev’d on other grounds, 361 N.C. 193 (2007): “Courts in other jurisdictions require a municipality to demonstrate a much greater substantial relationship between the ordinance and the public welfare where a total prohibition of a lawful activity is involved rather than an ordinance which merely confines a use to a particular district.”
In Byrd‘s wake, are we left with the understanding that despite the admonition of Yancey v. Heafner, 268 N.C. 263 (1966) — from which Byrd quotes — that “[z]oning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly [within] their express terms”, a use not identified in a zoning ordinance may be prohibited entirely from locating in a jurisdiction if the ordinance contains a provision that “[u]ses not specifically listed in the Table of Permitted Uses are prohibited”?
We’ll see, as Judge Hunter’s dissent affords an opportunity for the Supreme Court to review the issue.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.
Categories: Commercial Zoning