Zoning – Zones & Uses – Horse Farm & Subdivision – Ambiguity – Text & Table

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A table in the respondent-county’s uniform development ordinance (UDO) would require a buffer between a horse farm and a neighboring subdivision. However, the text of the UDO says no buffer is required between properties that have the same zoning designation – like a horse farm and a rural subdivision. The UDO § 1.1.12 says that, in the event of such a conflict, the text controls. Accordingly, the superior court correctly affirmed the county’s decision that no buffer was required between petitioner’s horse farm and a neighboring subdivision.

Affirmed.

Dissent

(Carpenter, J.) Resolving the conflict pursuant to UDO § 1.1.12 disregards the columns in the Land Use Buffer Table in UDO § 6.8.6(D) that are not apparent zoning districts—including “active farm/agriculture,” “interstate highway,” “arterial street,” and “collector street”—rendering an illogical result. For example, under this construction, the county’s 100-footwide buffer requirement between any zoning district and an interstate highway would be extinguished. For these reasons, UDO § 1.1.12 does not resolve the apparent conflict in UDO § 6.8.6 because the text of UDO § 6.8.6(B) does not, on its own, state when or how land use buffers are required.

The Land Use Buffer Table specifically includes an “active farm/agriculture” column, which is not labeled as either a zoning-district type or a land-use type. Moreover, the plain language of the Land Use Buffer Table, “zoning districts or uses,” and the use of the term “land use” throughout UDO § 6.8.6 supports the interpretation that UDO § 6.8.6 applies to zoning districts or land uses.

This interpretation is further supported by the express purpose of the buffer requirement under the UDO. According to UDO § 6.8.6(A), a land use buffer is used to “buffer lower intensity uses from incompatible higher intensity/density land uses.”

Finally, the goals of the county’s Comprehensive Plan emphasize the desire to preserve agricultural areas from incompatible uses as well as to recognize and support the right to farm. By specifically including zoning districts and land uses in the Land Use Buffer Table, when viewed in the context of the entire UDO and Comprehensive Plan, the intent of including UDO § 6.8.6 was, in part, to establish land buffers based on zoning districts or land uses in an effort to protect agriculture.

Because there exists a question of fact as to whether the petitioner’s property constitutes “active farm/agriculture” under the UDO, I would remand to the superior court to make a finding as to that issue.

Arter v. Orange County (Lawyers Weekly No. 011-143-23, 13 pp.) (Fred Gore, J.) (Jeffery Carpenter, J., dissenting) Appealed from Orange County Superior Court (Allen Baddour, J.) Andrew Petesch for petitioner; James Bryan, Joseph Herrin and Robert Hornik for respondents. North Carolina Court of Appeals