A recent appellate court decision has reversed the approval of a 141-lot residential development after finding that the project did not comply with all required purposes outlined in local zoning regulations. The ruling affects how conservation subdivisions are approved and could impact future land use decisions in the area.
The complaint was filed by Robin Barefoot, Harold Koenig, Juanita Pearce, Marty Pearce, Russell Scott Riggs, and Jai G. Riggs in Durham County Superior Court on December 28, 2022, against Durham County. The plaintiffs live within 650 feet of the proposed Mason Farms subdivision and contested the Board of Commissioners’ unanimous approval of both the site plan and special use permit for community water and wastewater systems granted on November 28, 2022.
According to court documents, the dispute centers on Section 6.2.4A of Durham County’s Unified Development Ordinance (UDO), which lists twelve specific purposes for establishing a conservation subdivision. Plaintiffs argued that all twelve purposes must be met for such a development to receive approval. They claimed that the Mason Farms site plan satisfied only six out of twelve required purposes, rendering its approval void under county law. The complaint sought a declaratory judgment stating that the Board’s action was ultra vires—beyond its legal authority—and arbitrary and capricious.
Durham County countered by asserting that Section 6.2.4A merely outlines general goals rather than mandatory requirements for every conservation subdivision application. The county maintained that actual technical standards are set forth in subsequent sections of the UDO and that these were met by Mason Farms.
Both parties filed motions for summary judgment: the county moved for judgment on May 26, 2023; plaintiffs followed with their own motion on July 12, 2023. At a hearing held July 24, 2023, both motions were considered together after conversion to summary judgment status to allow consideration of additional affidavits. On August 16, 2023, Judge Beecher Reynolds Gray denied plaintiffs’ motion and granted summary judgment to Durham County, dismissing all claims.
On appeal heard June 11, 2024 before Judge Stroud at the North Carolina Court of Appeals, plaintiffs reiterated their argument that Section 6.2.4A’s use of “shall” made each purpose mandatory based on explicit language elsewhere in the UDO stating “the word ‘shall’ is mandatory.” The appellate opinion notes: “Because there is no ambiguity in the meaning of ‘shall’ in Section 6.2.4A… we need look no further.”
The appellate court rejected Durham County’s reliance on prior case law involving more general statements of intent within ordinances as distinguishable from this case’s more specific language listing discrete requirements joined by “and.” Citing statutory construction principles and recent Supreme Court precedent regarding conjunctive requirements (“and”), the opinion concluded: “the plain language in Section 6.2.4A… establishes that the twelve purposes… are requirements for conservation subdivisions.”
The ruling also addressed arguments about past practices and potential absurd results if all twelve criteria must be met—such as requiring unique natural resources or historic sites on every project—but found these policy considerations could not override clear ordinance language: “Although… it is absurd to interpret the UDO to require conservation subdivisions to meet all twelve… even if that is what the plain language… requires—absurdity is often in the eye of the beholder.”
Notably, since this appeal was filed, Durham County amended Section 6.2.4A to remove “shall,” changing it from mandatory language to suggestive purpose statements—a move characterized by county attorneys as clarifying rather than altering past practice.
Ultimately, because Mason Farms did not satisfy all twelve stated purposes at time of approval under then-existing rules, “the Board’s approval was erroneous,” according to Judge Stroud’s majority opinion. The appellate court reversed summary judgment for Durham County and remanded with instructions for entry of summary judgment in favor of plaintiffs—including a determination by the trial court regarding attorneys’ fees under North Carolina General Statute Section 6-21.7 (2023).
Judge Collins dissented from this decision, arguing that Section 6.2.4A should be read as an overview or framework rather than imposing twelve strict requirements per project.
Plaintiffs were represented by Brady N. Herman and T.C. Morphis Jr., while Patrick M. Kane, Kip D. Nelson, La-Deidre Matthews (Fox Rothschild LLP), and Curtis Massey (Durham County Attorney’s Office) appeared for Durham County as defendant-appellee.
The case identification number is COA23-1083.
Source: COA231083_Barefoot_v_Durham_County_Opinion_North_Carolina_Court_of_Appeals.pdf
