Posted by: Patricia Salkin | September 25, 2018


This post was authored by Edward J. Sullivan, Esq.

Most land use lawyers were unaware that the United States Supreme Court has taken up a significant takings case from Pennsylvania, a case that may revolutionize takings law for years to come.  Since the Hamilton Bank decision in 1985, the Court has generally discouraged federal courts from considering claims for just compensation for government takings of private property arising at the state and local level until after state courts have weighed in.  However, failure to succeed at the state level has usually resulted in the same result in federal courts as well, as discussed below.  Property rights advocates have long sought the means to have federal courts hear more of these takings claims directly without first seeking state court review.   And with this most recent case, they might succeed.

The case, Knick v. Township of Scott, involves a local government’s attempt to deal with the protection of archeological resources.  Noting a great number of “home burials” since colonial times and desiring public access to gravesites, the Township passed an ordinance requiring public and private cemeteries to be open to the public during daylight hours.  A Township inspector then asserted that one or more private gravesites existed on Knick’s property, although there was no evidence of the same, and that town personnel and the public could visit that alleged gravesite by traveling over Knick’s private property.  The inspector threatened penalties under the ordinance if Knick obstructed access to the asserted gravesite area.

Knick filed takings claims against the Township in state and federal courts, but this case only involves the federal action.  Under Hamilton Bank, a takings claimant could not proceed directly in a federal court.  Instead, the claimant was required to “ripen” her claim in two ways.  First, she must obtain a “final” decision from the state or local government.  This means that if there are any available remedies to reduce the scope of the claim (think of seeking a variance to zoning requirements that inordinately increase the costs of development), she must seek that relief  (and the failure to do so may be fatal to the claim).  This step was not at issue in Knick.

But the second step, which requires a claimant to seek resolution of federal takings claims in state courts, was at issue.  In this case, Knick’s federal case was dismissed because she did not complete her state court takings claim.  Unlike the typical takings claims that arises from action on a permit and requires governmental action, Knick involves a “facial” takings claim that asserts that an ordinance or regulation is unconstitutional in all of its applications.  Lower federal courts have split on whether this type of claim must first be heard by a state court and the Supreme Court has determined to resolve this conflict.

There were several theories under which this claim might proceed.  The Township required access to the alleged gravesites over Knick’s private property and a “physical taking” claim (in the nature of trespass) could be advanced by the allegedly unconstitutional obligation that Knick open her property to the world.  Also, Knick could claim a “facial” taking, that the access obligation was unconstitutional and should be invalidated immediately. Either of these challenges to Williamson County would be a significant departure from the existing practice. It is possible the Supreme Court will go further and reconsider whether it is appropriate to limit federal takings claims to those previously decided in state courts.

Property rights advocates often dislike going to state courts first.  If they lose the federal claims in state courts, the notion of collateral estoppel (that you can’t take two bites at the apple) almost always terminates the federal claim.  Even if the takings claim is raised only under their state constitutions, a loss here will likely also result in a loss of a federal takings claim, because the facts are the same and most states interpret their state constitutional provisions on takings consistent with the  federal takings clause, so the two bites of the apple rule also applies.

Local governments, and their insurance companies, may not have helped their cause by taking advantage of a practice called “removal,” in which a municipal defendant may seek to have a case involving a federal takings claim brought in state court “removed” to federal court, followed by a Motion to Dismiss by the defendant because the case was not “ripe” in that there was no state court resolution of the claim.  Some federal courts have denied the Motion to Dismiss because it reeks of game playing.  Nevertheless, the resultant effects on costs, time and uncertainty have discouraged takings claims from being litigated.

The Supreme Court has several choices to dispose of Knick – it could keep the existing ripeness rule of Williamson County rule and thus greatly limit the number of takings claims brought in federal courts.  Or it could do away with the rule completely and open federal courts to takings litigation.  Neither of these alternatives is likely.  The Court would not have taken this case if it did not desire a serious examination of ripeness.  However, neither is it likely the Court will allow a flood of federal takings claims to be brought in federal courts in the first instance.

What may happen is something in the middle.  The Court could declare that facial takings claims (such as in this case where a local government authorizes a trespass) may be heard in federal courts without ripening those claims in state courts.  Or it may decide that state courts may hear takings cases first if those courts have a constitutionally adequate procedure to examine those claims and continue to insist that those state courts hear those claims first, as Williamson County now provides.  However the court decides this case, the results will be significant.

The complete docket is available here:

The Land Use Committee of the ABA State and Local Government Law Section offers monthly webinars. This month features a discussion on the implementation of the Mt Laurel doctrine (details below).

Here are the details:
“Mt. Laurel: An Update,” by Judge (retired) Peter A. Buchsbaum & Kevin D. Walsh, Exec. Dir. of the Fair Share Housing Center
Fri., Sept. 14, 2-3 pm ET
To attend, simply join the online meeting on September 14 at 2 pm ET, by clicking (or copying and pasting into your browser):
(You can also join the meeting from a mobile device by downloading the Zoom app and then clicking, or from your phone by calling either +1 669 900 6833 (US Toll) or +1 929 436 2866 (US Toll) and entering the Meeting ID: 801-354-9496. International numbers are available at

This post was authored by Matthew Loeser, Esq.


Amazon Park owned 95 trailer-occupied sites, each of which was fitted with a three-way hook-up to water, electric, and sewer. Trailers were rented on a month-to-month basis, generally without written leases, but occupants were typically permitted to stay as long as they wished so long as they paid rent and abided by park rules. The record reflected that some tenants have resided at Amazon Park for several years. In July 2015, the City issued a written notice of violations and threatened legal action if the Weedens continued to unlawfully permit occupants to maintain permanent residency at Amazon Park. Following this, the Weedens petitioned the court seeking declaratory relief. The trial court granted the Weedens’ petition, and found that the doctrine of laches precluded the City from bringing an enforcement action. In this case, the defendants, the City of Rochester and the City of Rochester Department of Building, Zoning and Licensing Services, appealed an order of the Superior Court awarding a declaratory judgment to John W. Weeden and Debra J. Weeden, d/b/a Amazon Park.
On appeal, the court found that the trial court properly identified and analyzed each of the four factors relevant to whether laches applied: the plaintiff’s knowledge; the defendant’s conduct; the interests to be vindicated; and the resulting prejudice. As to the first two factors, the trial court found that the Weedens’ use of the park had been “open and obvious.” The court also found that the City had “been aware for decades of the occupants’ use of Amazon Park as a residence as far back as the early 1980’s and 1990’s.” With regard to the interests to be vindicated, the court determined that the public’s interest in preventing the continued use of Amazon Park in the manner that it has operated for decades was minimal at best. Finally, as to the resulting prejudice, the court found that an abrupt change in the decades-long use of the property would result in unacceptable and inequitable prejudice. Accordingly, the court found the City was barred from bringing any potential action or claim based on the use of the property.
Weeded v City of Rochester, 2018 WL 3237949 (NH 6/4/2018)

Editor’s Note: This excerpt appears in the USDOJ’s Religious Freedom in Focus newsletter available:

On August 30, a U.S. District Court in Kansas ruled that a Roman Catholic church had presented sufficient evidence to proceed to trial on its claim that the City of Mission Woods violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), when it denied the church a permit to expand.  The court adopted the two-step analysis for analyzing the substantial burden claim urged by the United States in a Statement of Interest filed with the court on May 24.

RLUIPA, enacted in 2000, protects places of worship and other religious uses of land from discriminatory or unduly burdensome application of land-user regulations.  On June 13, the Attorney General announced the Place to Worship Initiative, focused on expanding the Department’s RLUIPA enforcement efforts and increasing awareness of RLUIPA through community education outreach events around the country and dissemination of educational materials.  More information about the initiative is available on the initiative homepage.  Recent RLUIPA cases include the filing of a suit against a New Jersey town alleging that it interfered with the ability of an Orthodox Jewish group to build a synagogue, a brief supporting a Hindu association’s suit against Howard County, Maryland (see article below), and a brief supporting an African Christian church’s suit against Baltimore County, Maryland.

The Mission Woods, Kansas, case involves the efforts of Rose Philippine Duchesne Catholic Church to convert a dilapidated house next to its church building for youth and adult education and meetings.  The property is in a zone that permits houses of worship as-of-right, subject to development standards such as density, parking, and landscaping and screening requirements. While the church presented evidence that it complied with all requirements, the city denied the permit, citing concerns about noise and traffic.  St. Rose filed suit under RLUIPA.

The United States’ Statement of Interest contended that a court analyzing a substantial burden claim should first look at whether there is an “actual, practical impact . . . on the institution’s religious exercise,” and if so, then determine whether that burden was caused by the Defendant, such as whether “the institution had a reasonable expectation of obtaining the approval, whether there are reasonable alternatives available to the institution, and whether pursuing alternatives would cause undue delay, uncertainty, and expense for the institution.”

The court agreed, holding that to establish that a land use regulation has imposed a substantial burden under RLUIPA, a plaintiff must show first that it has “a need to expand or relocate.”  Then, a plaintiff must show that the defendant inhibited the plaintiff’s ability to expand or relocate by such actions as denying plaintiff’s “reasonable expectation” of building or expanding at that location, that there are no reasonable alternatives, that the defendant imposed “economically infeasible or disingenuous” conditions, or that the defendant’s actions had created “delay, uncertainty or expense” for the ability of the plaintiff to relocate or expand.

The court held that the plaintiff had presented sufficient evidence of both a need to expand and that their attempts to do so were thwarted by the actions of the defendant.  The court also held that the church had presented sufficient evidence that the defendant did not have a compelling reason for its actions.  It thus denied summary judgment to the defendant and allowed the substantial burden claim to proceed.  The court also allowed the church’s claim that it was treated less favorably than nonreligious assemblies under RLUIPA Section 2(b)(1) to proceed, along with other federal and state law claims, and granted judgment for the Defendant on a RLUIPA Section 2(b)(3) claim that the city had imposed a unreasonable limitation on building churches in the city as a general matter.  The United States’ brief addressed only the substantial burden issue.


Roman Catholic Archdiocese of Kansas City in Kansas v. City of Mission Woods, 2018 WL 4154034(D. KS 8/30/2018)

This post was authored by Amy Lavine, Esq.

Colorado River abstention was found to be appropriate in a case decided in April by the District Court for the District of New Mexico. The case involved the construction of a telecommunications tower, which the plaintiff had commenced without obtaining a city permit based on the belief that its application had been deemed approved under the Telecommunications Act when the city failed to issue a decision within 60 days. CNSP, Inc. v. City of Santa Fe, 2018 WL 1737549 (D. N.M. 4/9/18).

Regarding the issue of abstention, the court found that the first factor, whether either court had assumed jurisdiction over the property, was inapplicable, and the second factor, the inconvenience of the federal forum, was neutral because any inconvenience was minimal. The third and fourth factors, avoiding piecemeal litigation and the order in which the courts obtained jurisdiction, weighed in favor of abstention, because all of the progress regarding substantive legal issues had occurred in the state court litigation, while little progress had been made in the federal forum. Additionally, because the parties and issues in the state and federal suits were the same, the maintenance of both suits would be duplicative and a waste of judicial resources. With respect to the role of federal law, the court noted that the applicability of the Telecommunications Act was central to the state court action, and thus weighed against a stay. Nevertheless, the court found that the state court was competent to apply federal law in this case, which tilted the balance back in favor of a stay.

Summarizing its analysis, the court explained that “four factors, including the most important—the avoidance of piecemeal litigation—weigh in favor of a stay, while the other factors are either inapplicable, neutral, or weigh slightly against a stay. Although the Court recognizes its obligation to exercise its jurisdiction except in “exceptional circumstances,” it finds that a stay is appropriate here in light of the high potential for duplicative litigation and waste of judicial resources.”

CNSP, Inc. v. City of Santa Fe, 2018 WL 1737549 (D. N.M. 4/9/18).

This post was authored by Amy Lavine, Esq.
The North Carolina Court of Appeals dismissed a declaratory judgment action regarding the repeal of a dune protection ordinance in its recent decision in Fleischhauer v. Town of Topsail Beach. The court found that the plaintiffs’ claims were unripe, and thus there was no justiciable case or controversy, because there had not yet been any final decision as to what development the town would permit on the affected oceanfront properties. Fleischhauer v. Town of Topsail Beach, 810 S.E.2d 416 (N.C. App. 3/6/18).

The plaintiffs owned properties that were separated from the Atlantic Ocean by a group of 28 undeveloped oceanfront lots, and they claimed that the town’s repeal of its Dune Protection Ordinance would result in development on the oceanfront lots and thereby create an increased potential for flood damage on their properties. The lawsuit sought a declaratory judgment that any excavation or manmade alterations of the dunes on the oceanfront lots would violate local ordinances, the town’s land use plan, and federal law. A temporary restraining order was issued that prohibited the town from issuing any building permits or otherwise allowing alteration of the dunes, but the trial court subsequently dismissed the plaintiffs’ complaint for lack of subject matter jurisdiction on the basis that the plaintiffs’ claims were unripe and failed to establish standing.

The court began its analysis with a review of the relevant coastal land regulation framework. The North Carolina Coastal Area Management Act, it noted, requires coastal property owners to obtain development permits from the Division of Coastal Management prior to developing oceanfront land, after which they’re required to obtain necessary zoning and building permits. In the Town of Topsail Beach, the local permitting process included compliance with the Flood Damage Prevention Ordinance, which provided that “[t]here shall be no alteration of sand dunes which would increase potential flood damage.” The town was had opted in to the National Flood Insurance Program, which required it to adopt minimum regulations to reduce the risk of flooding, including prohibiting man-made alterations to naturally occurring sand dunes that would increase potential flood risks.

With this regulatory framework in mind, the court affirmed the decision to dismiss on ripeness grounds, explaining that the “speculative possibility that land development might proceed in the future does not constitute a justiciable case or controversy.” The plaintiffs, the court noted, had requested declaratory relief that development of the oceanfront lots would violate various coastal laws and regulations, including the town’s Flood Damage Prevention Ordinance, the North Carolina Coastal Area Management Act, and the National Flood Insurance Program, yet they’d failed to make any showing that the town had made a final determination as to what development would be permitted on the oceanfront lots, if any. As the court pointed out, there wasn’t even any evidence that the owners of the oceanfront lots had submitted applications for zoning or development permits, nor had the town received any notification regarding changes to its status under the National Flood Insurance Program. “In essence,” the court explained, “plaintiffs ask us to rule that they may challenge the permissible uses of neighboring oceanfront lots based on a speculative possibility that development will proceed in the future.” The court declined to grant such a request, as any challenge would simply be unripe until the town had an opportunity to make a final decision on the issue.

The court also disagreed with the plaintiffs that the approval of a beach house on an oceanfront lot prior to the repeal of the Dune Protection Ordinance necessarily meant that the town would approve similar developments going forward. As the court explained, it would be “precipitous to presume Topsail Beach has made a final decision as to the permissible development of the oceanfront lots because defendant previously authorized a building permit for an oceanfront property.” As with their primary arguments in the case, the court found this claim to be too speculative to establish a justiciable case or controversy.

Fleischhauer v. Town of Topsail Beach, 810 S.E.2d 416 (N.C. App. 3/6/18).

This post was authored by Amy Lavine, Esq.

The Rhode Island Superior Court held in April that a property owner lacked standing to appeal the denial of her request for a zoning certificate, given that zoning certificates are nonbinding and advisory in nature and therefore cannot establish any basis for aggrievement. Biggs v. Bongiolatti, 2018 WL 1832007 (4/11/18).

Gretchen Biggs owned a nonconforming property in a medium-density residential district in the Town of Westerly. She obtained a special use permit in 2011 to expand her residence on the condition that no future development or additions would be permitted. She subsequently applied for a zoning certificate in 2015 in order to construct a “widow’s walk” recessed into her roof, but the zoning official denied her request on the basis of the restriction contained in her 2011 permit. Rather than apply to the zoning board for a use variance, as the zoning official recommended, Biggs requested administrative review, but the zoning board affirmed the decision denying the zoning certificate. Biggs then filed this appeal, claiming that the board exceeded its authority and misapplied the restrictive language in her earlier special use permit.

The Superior Court began its analysis by noting that zoning certificates are “nonbinding and exist to provide guidance or clarification.” As the statute provided, a zoning certificate was defined as “”[a] document signed by the zoning-enforcement officer, as required in the zoning ordinance, that acknowledges that a use, structure, building, or lot either complies with, or is legally nonconforming to, the provisions of the municipal zoning ordinance or is an authorized variance or modification therefrom.” In this sense, the court explained, zoning certificates are fundamentally distinct from permits in that they do not authorize any construction or development, nor do they vest any rights in the applicant.

Significantly, the court also explained that due to their nonbinding nature, zoning certificates are not appealable. This is because they cannot injure a property owner, as they have no legal effect on the subject property, and the enabling act only provides a right of appeal to “aggrieved parties.” In other words, “because a homeowner cannot be aggrieved by an “advisory” zoning certificate, the homeowner cannot have standing to bring an appeal of the zoning certificate in this Court.” The court additionally noted that there was no provision in the zoning statutes that would allow a zoning board to exercise appellate jurisdiction over the issuance or denial of a zoning certificate. Accordingly, the board erred in this case by hearing Biggs’ appeal at all, as it lacked any authority to do so.

Despite the advisory nature of zoning certificates and the lack of any statutory authority to bring an appeal, Biggs contended that the denial in this case should have been appealable because the town required a zoning certificate in order to grant a building permit. Although the town conceded that it wouldn’t have acted on a building permit application without a valid zoning certificate, the court still rejected this argument, emphasizing that Biggs hadn’t actually applied for a building permit. This was significant, the court explained, because had she applied for a building permit, the denial of her permit application would have constituted an appealable order from which she could have sought further relief.

Biggs v. Bongiolatti, 2018 WL 1832007 (4/11/18).

This post was authored by Amy Lavine, Esq.

The Court of Appeals of New Mexico held in May that the cultivation of medical cannabis was the cultivation of plants or crops, and as an agricultural use it was permitted as of right in a conservation district and did not require conditional use approval. Filippi v. Board of County Commissioners of Torrance County, 2018 N.M. App. LEXIS 28, 2018 WL 2328075 (5/22/18).

The property at issue was located in a “conservation district” and had been purchased for the purpose of growing and harvesting medical marijuana that would be sold at a dispensary located outside the county. The relevant zoning ordinance provided that the “cultivation and harvesting of plants and croplands” was a permissive use, but another section of the ordinance provided that “commercial uses” were only permissible on a case-by-case basis. When the property owner sought an opinion from the Torrance County Zoning Officer as to whether it would need a conditional use permit, the zoning officer determined that growing medical marijuana was a permissible cultivation use, not a commercial use requiring a conditional use permit. Several neighboring property owners then sought review of this determination, claiming that the use was in fact commercial in nature, but the zoning board denied the neighbors’ appeal on the basis that “[c]ommercial use, as contemplated by Section 8 of the Zoning Ordinance, does not include the production of plants and crops for sale offsite.” On further appeal, however, the district court reversed, finding that “[w]hen permissive uses are commercial in nature and require building any structures, the owner of the property must apply to the Planning and Zoning Board for a permit.” The New Mexico Court of Appeals then reversed again and affirmed the decision of the zoning board that marijuana cultivation was a permissible use without any need for conditional use approval.

Regarding the merits, the Court of Appeals noted as a first point that the ordinance specifically allowed accessory uses and structures for permissive uses located in the conservation district. This provision conflicted with the district court’s conclusion that a conditional use permit was needed for permissive uses that were commercial in nature and required the construction of any buildings or structures. The zoning board’s decision, on the other hand, was consistent with the ordinance’s accessory use provisions, and the court accordingly found that it should have been affirmed.

Next, although the Court of Appeals found that the district court properly applied a de novo standard of review, it concluded that the district court adopted an erroneous interpretation of the ordinance’s “commercial use” provision. The district court had relied on an earlier case, San Pedro Neighborhood Ass’n, in reaching its determination that marijuana cultivation should be classified as a “commercial use,” but the Court of Appeals found that San Pedro Neighborhood Ass’n was distinguishable because it involved a residential zoning ordinance that entirely prohibited commercial uses except home occupations. While the court in that case had simply applied a plain meaning definition of “commercial” in ruling that stockpiling gravel was a prohibited use, the decision did not “establish a definition of the term “commercial use” that would apply to every zoning ordinance enacted by every county in the state.” The court explained further that San Pedro Neighborhood Ass’n didn’t address situations such as this case where applying the plain meaning of the term “commercial” could render other provisions of the ordinance ineffective. In particular, the ordinance at issue here included a variety of permissible uses that appeared to be commercial in nature, such as horse breeding and woodcutting, and the court found that this suggested that the term “commercial use” was intended to have a more limited scope. The court also noted that this interpretation gave effect to all of the sections of the zoning ordinance, and was more harmonious than the district court’s more restrictive reading of the “commercial use” provision.

Filippi v. Board of County Commissioners of Torrance County, 2018 WL 2328075 (5/22/18).

This post was authored by Amy Lavine, Esq.

A Georgia court held in March that a recycled paper mill constituted an “agricultural support facility” covered by the state’s right to farm law. The case arose when several nearby property owners filed a nuisance claim against Georgia Pacific, the operator of a recycled paper mill, which they claimed had interfered with the use and enjoyment of their homes. The paper mill was built and began operating prior to the construction of the plaintiffs’ homes, however, and because the court found that the paper mill was covered by the state’s right to farm law, the plaintiffs’ nuisance claims were barred. Georgia Pacific Consumer Prods. v. Ratner, 345 Ga. App. 434 (3/8/18).

The paper mill facility was built in 1986 and converted waste paper products into recycled tissue, towels, and napkins using mixed amounts of recycled and virgin fibers. The property also included a 130-acre sludge disposal site, which produced hydrogen sulfide gas. After the plaintiffs’ homes were built nearby in the early 2000s, they began complaining about the smell of the hydrogen sulfide as well as its corrosive effect on metal components on their property. The paper mill attempted to remediate the emissions and began paying to have the sludge removed from its property, but the plaintiffs nevertheless commenced this lawsuit.

Although the plaintiffs owned homes that were built across the street from a pre-existing paper mill, the court noted that Georgia generally doesn’t recognize the defense of “coming to the nuisance” as a complete bar to nuisance liability. Rather, the state’s “right to farm law” codified the “coming to the nuisance” defense for a limited class of agricultural land uses. The statute provided this protection, in particular, to “agricultural support facilities,” and so the question was whether or not this term included the paper mill property. Relevant to this issue, the term “agricultural support facility” was defined to include “forest products processing plants,” which was further defined as “a commercial operation that manufactures, packages, labels, distributes, or stores any forest product.” The court found that these terms could reasonably be interpreted to include the recycled paper mill. Moreover, protecting the mill from nuisance liability by finding that it was a “forest products processing plant” was consistent with the purpose of the right to farm law. As the court explained, “encouraging recycling conserves forest land and enables continued development of additional markets for distributing products made from wood fibers. Stated otherwise, recycling extends the useful life of wood fibers, which has both economic and conservation benefits that advance the stated purpose of the “right to farm” statute.”

The court next considered whether the paper mill was operated in manner that might have excluded it from the protection of the right to farm law, which specified that it would not apply to negligently or illegally operated facilities. Although the plaintiffs contended that the paper mill was operating in a negligent manner because of its hydrogen sulfide emissions, the court did not agree and found that the record failed to demonstrate any improper operation of the mill. As the court noted, no permits were necessary for the paper mill’s hydrogen sulfide emissions, and thus it was not in violation of any environmental regulations or permitting requirements. The paper mill had also undertaken numerous mitigation measures in excess of anything it was required to do by law, and its expert testified that there was nothing else it could have done to reduce the impacts of its hydrogen sulfide emissions.

The court also dismissed the plaintiffs’ trespass claims because they failed to show that the injuries to their property had resulted from any unlawful operation of the paper mill. As the court explained, “any relevant injuries to the Plaintiffs are the consequences that flow from an act that is not wrongful in and of itself, i.e., a nuisance and not a trespass.” And because the paper mill was exempt from nuisance liability under the right to farm law, the plaintiffs’ attempt to rephrase their nuisance claims as actions for trespass necessarily failed.

Georgia Pacific Consumer Prods. v. Ratner, 345 Ga. App. 434 (3/8/18).

This post was authored by Amy Lavine, Esq.

The North Carolina Court of Appeals decided in May that a commercial shooting range operation didn’t qualify for an “agritourism” zoning exemption under the state’s zoning exemption statute, regardless of the fact that it was located on a bona fide farm property. Jeffries v. Cty. of Harnett, 2018 WL 2206370 (N.C. App. 5/15/18)

Drake Landing operated a recreational hunting and shooting preserve on part of a commercial crop farm located in Harnett County, but rather than obtaining a conditional use permit, it contended that its hunting and shooting activities were exempt from county zoning as “agritourism” land uses. Several nearby property owners disagreed with this position, however, and they requested a determination as to whether Drake Landing’s shooting operation was an exempt agritourism use under the state agricultural zoning exemption. After a protracted series of decisions and remands between the county board of adjustment and the superior court, the litigation eventually made its way to the North Carolina Court of Appeals. At issue before the court were challenges raised by both Drake Landing and the opposing property owners appealing the various decisions below.

The court first addressed the neighboring property owners’ appeal from the superior court’s 2017 decision and found that their objections were untimely. Next, the court considered Drake Landing’s appeal from the superior court’s 2014 order, which had determined that its commercial shooting activities did not qualify as “agritourism” land uses and thus were not exempt from county zoning. Key to the court’s determination of this appeal was the fact that although the statutory zoning exemption included “agritourism” at the time of the superior court’s 2014 decision, the only definition of “agritourism” provided under state law was located in a separate statute governing liability. After the superior court’s decision, however, the legislature amended the zoning exemption law in 2017 and added a definition of “agritourism,” which specified that it included “any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, or natural activities and attractions.” Because the 2017 amendments incorporated verbatim the definition of agritourism included in the liability statute, the court determined that the 2017 amendments to the zoning exemption statute should be interpreted as merely clarifying the substance of the statutory exemption for agricultural land uses rather than changing how the exemption should apply to “agritourism” activities. It was therefore appropriate for the court to rely on the language in the 2017 amendments in reviewing the superior court’s earlier decision as to whether Drake Landing’s shooting range activities qualified for the exemption.

Because Drake Landing’s commercial shooting operation was located on property it leased from a bona fide farm, the court was required to decide whether the use of bona fide farm land for shooting activities such as continental shooting towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges, rifle ranges, and pistol pits qualified as “agritourism” under the statutory zoning exemption. The court sought guidance from to the language of the 2017 amendments, which defined “agritourism” as “any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, or natural activities and attractions.” The court emphasized the terms “rural” and “natural” in its interpretation of this provision, and it ultimately concluded that Drake Landing’s commercial shooting activities did not fall within the meaning of “agritourism.” As the court explained: “commercial shooting activities involving continental shooting towers, 3D archery courses and ranges, sporting clays, skeet and trap ranges, rifle ranges, and pistol pits neither fit as squarely within traditional notions of hunting, the definition of a “rural” activity, nor the category of a “natural” activity…. that these statutes list “farming” and “ranching” but not “hunting” implies that these shooting activities, even when done in preparation for a rural activity like traditional hunting, were not contemplated as “agritourism.””

Jeffries v. Cty. of Harnett, 2018 WL 2206370 (5/15/18).

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