Split Appeals Court rejects Orange County horse farm owner’s development dispute

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  • A split state Appeals Court panel ruled 2-1 against the owner of an Orange County horse farm. The owner argued that local development rules required a 30-foot buffer between her farm and a new housing development.
  • The local Board of Adjustment and a Superior Court judge had ruled against plaintiff Alison Arter. The Appeals Court majority affirmed those earlier decisions.
  • Judge Jeffery Carpenter dissented in the case. He would have sent the case back to a trial judge to determine whether Arter's property constituted an "active farm" that would trigger the buffer requirement.

The state Appeals Court split 2-1 in ruling Tuesday against the owner of a horse farm in Orange County. The owner had argued that county rules required a buffer that would shield her property from a new housing development.

Plaintiff Alison Arter bought her property in 2007.  She raised concerns in 2021 about plans to convert the adjacent 55-acre property into the 12-lot Array subdivision.

“The primary concern petitioner expressed regarding the Array Subdivision is that the gravel road entrance into the subdivision — Array Drive — runs generally parallel in some areas to the common boundary line between the Arter Property and Array Subdivision,” wrote Judge Fred Gore. “Petitioner claimed that the proximity of Array Drive to her horse stable would be injurious to her horses, and that a buffer should have been required between her property and the road.”

As operator of an “active farm,” Arter argued that Orange County rules required a “30-foot wide … vegetated buffer along the common boundary line,” Gore explained. Yet the county planning supervisor determined that no land-use buffer is required “when parcels have the same or similar general use designations.” The issue of Arter’s active farm use “was irrelevant and of no effect.”

Both the Orange County Board of Adjustment and Superior Court Judge Allen Baddour ruled against Arter.

“In this case, it is undisputed that ambiguity exists” between two sections of Orange County’s Unified Development Ordinance, Gore wrote. After reviewing all sections of the ordinance, the Appeals Court majority determined that buffers would be required only between properties with different zoning districts.

“Accordingly, we conclude that the BOA properly interpreted the UDO as requiring buffers based on zoning districts,” Gore concluded. “Any issue of fact regarding land use is inconsequential where the text of the ordinance controls. The superior court properly upheld the BOA’s determination on this basis.”

Judge Allison Riggs joined Gore’s decision. Judge Jeffery Carpenter dissented.

“After careful consideration of the provisions of the UDO, I conclude UDO § 6.8.6 requires land use buffers according to zoning districts or land uses,” Carpenter wrote. “Accordingly, I would reverse and remand the matter to the superior court with instructions to determine whether Alison Arter’s (‘Petitioner’) property (the ‘Arter Property’) constitutes an ‘active farm/agriculture’ within the meaning of UDO § 6.8.6, and thus, necessitates a buffer to separate it from an adjacent subdivision.”

Carpenter emphasized the “intent of the local legislative body.” “[T]he goals of the Comprehensive Plan emphasize the desire to preserve agricultural areas from incompatible uses as well as to recognize and support the right to farm,” he wrote. “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.”

“The majority correctly notes that ‘if the Arter Property qualifies as an “active farm,” then a 30-foot-wide buffer would be required under section 6.8.6(D) based on land use designation,’” according to the dissent. “Nevertheless, UDO § 6.8.6(D) does not define an ‘active farm’ as a land use or a zoning district. Because there exists a question of fact as to whether the Arter Property constitutes ‘active farm/agriculture’ under the UDO, I would remand to the superior court to make a finding as to that issue.”

Barring further appeals, the lawsuit would end with no buffer requirement.