State Supreme Court skeptical of mandatory buffer for Orange County horse farm

Justice Trey Allen asks a question during oral arguments at the North Carolina Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

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  • North Carolina Supreme Court justices appeared skeptical Wednesday of an Orange County horse farm owner's plea for a government-mandated 30-foot buffer between her property and a neighboring subdivision.
  • Much of the hourlong oral arguments focused on ambiguity in the county's Unified Development Ordinance. Questions suggested that the ambiguity hurt plaintiff Alison Arter's case.
  • An Orange County staff attorney admitted that the ordinance is ambiguous. He argued that the county should not compel a buffer requirement until the county develops clearer rules.

Questions during oral arguments Wednesday suggest the North Carolina Supreme Court does not favor mandating a 30-foot buffer between an Orange County subdivision and a neighboring horse farm.

Plaintiff Alison Arter sued the county and property owners involved with the Array subdivision in 2021. She argued that county rules mandated the buffer because of her 12-acre property’s status as an active farm.

A trial judge and a split state Court of Appeals panel ruled against Arter.

“This is a case about an error made by the Court of Appeals that impacts a fundamental issue for property owners in North Carolina — specifically, the impartial, fair, and equal enforcement of lawfully adopted zoning laws,” argued Andrew Petesch, Arter’s lawyer.

Bob Hornik, representing neighboring property owners named as defendants, reminded the court that the Array subdivision features 12 lots on 55 acres. The property includes 31 acres of open space, including 27 acres designated for a conservation easement.

“The uses of land that we’re talking about here are compatible uses,” Hornik said. “They’re both residential uses.”

“The purpose of even having buffers to begin with doesn’t necessarily apply in this case because you have compatible uses right next door to each other,” Hornik added.

Much of the legal dispute stems from disagreements about the requirements of Orange County’s Unified Development Ordinance.

Justice Richard Dietz explained why that confusion hurts Arter’s case.

“Our case law says if there’s any ambiguity in a zoning ordinance, we have to construe it in favor of the free use of property,” Dietz said. “We’re essentially saying to government — to municipal governments — you have to write clear zoning rules. If you don’t, then whatever people want to do with their property is fine.”

“If we apply that principle here, it would mean your client’s going to lose,” Dietz said to Petesch. “Not because the government’s going to win, but because the property owner who just wants to use their property for whatever they want is the subdivision.”

Petesch urged the court to consider Orange County’s intent in setting buffer requirements for farms. Justice Trey Allen responded that a zoning case differs from a case involving state legislators’ intent when they drafted a law.

“The presumption in favor of the free use of property means, whether I like it or not, my neighbor can do whatever she wants on her property unless there’s some valid regulatory prohibition,” Allen said. “So that’s just a fact of life.”

Justice Phil Berger Jr. questioned why Arter didn’t negotiate an acceptable buffer with neighboring property owners.

“If you’re relying on government, then you have to take the bitter with the sweet,” Berger said. “One, they might not always do things the right way. And two, you’re in essence relying on them to compel someone to do something on their property for which your client could have bargained.”

Dietz noted that Orange County presented an unusual defense against Arter’s suit.

“It’s somewhat awkward for the government to stand up and say, ‘We win this case because we can’t write an unambiguous ordinance,’” Dietz said.

Allen asked Orange County staff attorney James Bryan about the UDO’s ambiguity.

“Has the ordinance been amended?” the justice asked.

“No, it has not, your honor,” Bryan responded.

“So you’re content to allow the ambiguity to persist,” Allen said.

Bryan explained why the county has not prioritized clarifying the buffer requirement. “One might see this as a neighbor dispute — since it hasn’t been applied before this case, and we’re not expecting this to come up again any time soon,” he said.

Like Arter’s neighbors, the county is asking the court not to require a buffer. “I know that this is a weird situation, where the local government — Orange County — is saying this, but we are recognizing that if we are going to … liberally construe this for the … free use of property, we’re going to need to rewrite our ordinance,” Bryan said.

“Until then, we’re going to let the free use of property go ahead,” he added.

The state Appeals Court split 2-1 in an August 2023 ruling against Arter.

“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.”

“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.

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.”

Justice Allison Riggs will not take part in the state Supreme Court’s decision in the case. She served on the three-judge appellate panel, concurring with Gore’s majority opinion.