Arter v. Orange County illustrates inconsistent language in local governing documents

Local governing documents are often used in civil court cases, some of which challenge county ordinances or policies, Orange County Attorney John Roberts said  in an email.

Nearly four years ago, a real estate developer sought to subdivide Stephen and Sharon Burt’s property in Orange County to build a new home development. The proposed development required the construction of a road adjacent to their neighbor’s property.

Their neighbor Alison Arter argued that there should be a 30-foot land buffer between her property and the road, based on Orange County’s zoning ordinance document, the Unified Development Ordinance. The Orange County Planning and Inspections Department disagreed. 

Arter appealed the department's decision to the Orange County Board of Adjustment, then to the Superior Court, again to the Court of Appeals and finally to the N.C. Supreme Court. Every step along the way, the planning and inspections department’s decision was upheld — there was no need for a land buffer.  

The Arter v. Orange County case is just one example of issues with local governing documents, where ambiguous language has led to inconsistent decisions and confusion among citizens, legal officials and developers.

“Local governments have a responsibility to enact clear, unambiguous zoning rules,” N.C. Supreme Court Justice Richard Dietz wrote in the court's opinion. “Ensuring that this thicket of rules is free from ambiguity and internal inconsistency is a daunting task.”

Arter v. Orange County

Back in the mid-2000s, the Burts hired Jodi Bakst, a real estate agent in Orange County, to sell their house and horse farm to Arter. According to Bakst, the Burts remained the owners of the adjacent 17.5-acre property and were notified when the 38-acre land behind their property went on the market. 

Stephen Burt ended up purchasing the 38 acres and entered a partnership with Bakst to develop what is now called the Array neighborhood. However, the newly purchased land was landlocked, which meant that the developers would have to build a road alongside Arter’s property, causing concern that her horse farm would be disrupted, Bakst said.

“We proceeded to walk down the path of developing the most environmentally sustainable neighborhood that we could, but Alison Arter is very opposed,” Bakst said. 

Outlined in the UDO, a table determines which type of land use buffer is needed based on the subject property — the Burt’s property — and the adjacent property — Arter’s property. The planning and inspections department ruled that both properties were considered R-1 (rural residential property), so according to the table, no land buffer was necessary.

One conflict with the UDO are the four categories listed in the table that are not zoning districts, one being an active farm/agriculture. 

When Arter purchased her land from the Burts, the property included a horse farm with a barn and a dressage ring. While the proposed development on the Burt’s property was underway, Arter argued that her property should be labeled as an active farm/agriculture instead of R-1. 

As an active farm, Arter would get the land buffer she wanted according to the table. However, since the active farm/agriculture category is not a zoning district, the table conflicts with written text in the ordinance. It states that land use buffers will only be approved based on the zoning district of the proposed and adjacent properties.

There is an interpretive statement in the UDO which states that text supersedes figure in the ordinance if there is any difference of meaning or implication. This was the basis on which the Board of Adjustment ruled there was no need for a land buffer between Arter and the Burt’s properties. 

Impact on Orange County

Cy Stober, the planning and inspections director for Orange County, said his role alongside the planning staff is to use their better judgment to bring the best legal practices into each ordinance the county creates, to ensure it is the law of the county.  

He said a current topic of discussion in his job is figuring out how to construct legal documents that serve public interest and allow members of the public to read these documents without needing an attorney to translate. 

“We really should be striving for an ordinance that can be read by nearly everyone who picks it up,” Stober said. 

For land use cases in North Carolina, the courts have determined that ambiguity in governing documents must be resolved in favor of the landowner or permit applicant, according to Roberts. 

He said the zoning officer in this case recognized the ambiguity and followed the UDO and law by making his decision in favor of the permit applicant. 

“It’s very important that ordinances and laws are clear and unambiguous so members of the public understand their rights and responsibilities,” he said.

Roberts said the ambiguous issue in this case is scheduled for presentation to the Board of Commissioners for resolution in October. 

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