Ordinance requires compliance with all conservation subdivision purposes

A conservation subdivision approval was invalid because the governing ordinance unambiguously required compliance with all enumerated purposes, not just some.

The plaintiffs, neighboring landowners, challenged Durham County’s approval of a 141-lot conservation subdivision, arguing that the site plan failed to comply with the County’s Unified Development Ordinance. The ordinance provides that conservation subdivisions “shall be established for the following purposes,” followed by 12 objectives addressing environmental preservation, community design and land use.

The North Carolina Court of Appeals reversed summary judgment for the county. The court held that the ordinance’s plain language made all 12 purposes mandatory, particularly because the ordinance expressly defined “shall” as mandatory. The court rejected the county’s argument that the listed purposes were merely aspirational, finding that their specificity and placement in the ordinance showed they were substantive approval requirements.

The court also rejected reliance on the county’s past practice of approving conservation subdivisions that did not satisfy every purpose. Administrative interpretation, the court said, cannot override unambiguous ordinance language. Nor could concerns about impractical results justify ignoring clear statutory text.

Because the proposed development satisfied only six of the 12 required purposes, the Board of Commissioners lacked authority to approve the site plan. The court held the approval was ultra vires, arbitrary and capricious, and contrary to the ordinance. The case was remanded for entry of summary judgment for the plaintiffs and consideration of attorneys’ fees.

The 22 page opinion is Barefoot v. Durham County, Lawyers Weekly No. 011-079026.