Posted by: Patricia Salkin | November 18, 2014

NC Appeals Court Finds Ordinance Prohibited Shooting Ranges Where Language Stated that Uses Not Specifically Listed in Table of Permitted Uses were Prohibited

Aaron Byrd and Eric Coombs appealed from a superior court’s order affirming a decision by the Franklin County Board of Adjustment determining that Petitioners could not operate a shooting range on their property without a special use permit that required approval by the County’s Board of Commissioners. This Unified Development Ordinance (“UDO”) identifies in which zoning districts each use set out in the list may be allowed. Petitioners argued that the UDO does not regulate shooting ranges and, therefore, they did not need any approval from the County to operate a shooting range on the Property.

The category at issue in the UDO Table describes the use as property used for “Grounds and Facilities for Open Air Games and Sporting Events[.]” However, the Table further qualifies this category description as those uses which fall within the NAICS code 713940. Shooting ranges, though, do not fall within NAICS code 713904, but rather under NAICS code 713990, labeled “All Other Amusement and Recreational Industries,” a code which the County did not use as a reference for the Open Air Games category. Accordingly, the court found that the proper interpretation is that shooting ranges are not Open Air Games in the Table. Petitioners then argued that since the Table does not contain a category for shooting ranges, the UDO does not regulate shooting ranges, and, therefore, the County cannot prevent them from operating a shooting range on their Property.

However, UDO section 6–1 states that “[u]ses not specifically listed in the Table of Permitted Uses are prohibited.” The court therefore held that the language in the UDO was clear in prohibiting shooting ranges even though it did not specifically mention “shooting ranges” by name. Even though the court reversed the portion of the trial court’s order determining that the UDO required Petitioners to obtain a special use permit to operate their shooting range, it reached the same conclusion: that the Petitioners’ shooting range was not a permitted use.

Byrd v Franklin County, 2014 WL 6435679 (NC App. 11/18/2014)

The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=31807


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