Fort v. County of Cumberland
235 N.C. App. 541
N.C. Ct. App.2014Background
- Petitioners challenge TigerSwan’s site plan and zoning permit for a 978-acre firing facility on a 1,521-acre A1 agricultural parcel in Cumberland County.
- Planning Department approved TigerSwan as a recreation/amusement use and issued a zoning permit in April 2012.
- Board of Adjustment affirmed the Planning Department’s classification; petitioners appealed to Superior Court.
- Superior Court reversed, holding TigerSwan prohibited as a vocational school and misclassified as recreation/amusement.
- Appellate court reverses the superior court, affirming that TigerSwan is a firing range with land-use impacts most similar to recreation/amusement; Board’s decision stands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TigerSwan is a vocational school under the ordinance. | Fort argues TigerSwan is a vocational school and prohibited in A1. | TigerSwan County contends it is not a vocational school and should be by right. | Not a vocational school; classification proper. |
| Whether the trial court properly applied de novo vs. whole-record review to the Board’s decision on land-use impacts. | Fort asserts de novo review should apply to vocational school determination. | County contends proper de novo/whole-record analysis as to land-use impacts. | Trial court erred; Board’s land-use impacts have rational basis under whole-record review. |
| Whether there was competent evidence that TigerSwan’s impacts resembled recreation/amusement. | Fort argues no competent evidence supports recreation/amusement classification. | Board properly found impacts most similar to outdoor recreation/amusement. | There is competent evidence supporting recreation/amusement similarity. |
Key Cases Cited
- Fort v. County of Cumberland, 721 S.E.2d 350 (2012) (board classification of TigerSwan as non-private school; not decisive on use by right)
- Four Seasons Mgmt. Servs. v. Town of Wrightsville Beach, 205 N.C. App. 65 (2010) (scope of judicial review of board decisions; whole-record vs de novo)
- MNC Holdings, LLC v. Town of Matthews, 735 S.E.2d 364 (2012) (de novo review of ordinance interpretation; independent assessment allowed)
- JWL Invs., Inc. v. Guilford County Bd. of Adjustment, 515 S.E.2d 715 (1999) (de novo review for ordinance interpretation questions)
- Templeton Properties v. Town of Boone, S.E.2d (2014) (whole-record review standard and substantial evidence)