Where Do You Shoot YOUR Machine Guns??

            Please raise your hand if, in your humblest opinion, you think an outdoor shooting range (where fully automatic machine guns are used that shoot 900 rounds per minute) is an appropriate land use immediately adjacent to a subdivision.  Anybody? 

             I didn’t think so.

             But the North Carolina Court of Appeals has just given a green light to this insane juxtaposition of land uses in Land v. The Village of Wesley Chapel, yet another vested rights case that falls on the facts and nuances of local ordinances. And, of course, by describing it as a “vested rights” case you probably, and correctly, assumed immediately one critical fact: the shooting range was there first.

            Before I write more I should place my cards on the table.  Although I was not involved in the litigation of this matter, I did briefly represent some of the neighbors.  I was paid for that. 

            Side Bar: Journalists used to call this their “Armstrong Williams disclosure” after the Washington Post columnist was paid a quarter of a million dollars of taxpayer money (funneled through a PR firm) to write columns favoring President Bush’s No Child Left Behind law without disclosing the payments. I continue to follow the case and to communicate with neighbors whose plight I fully understand. The difference, of course, is that I write this blog for free.  Nonetheless, disclosure made. End Side Bar.

            The legal questions were whether the shooting range was classified as a use in Union County’s Table of Permitted Uses when Mr. Land bought the property in 1991, whether Mr. Land was required to obtain a special use permit under that ordinance, and whether Mr. Land “materially” altered the range to a degree that he lost his vested rights status after the incorporation of The Village of Wesley Chapel.

            As to those questions, the court held, upon de novo review, that if a use is not listed in a Table of Permitted Uses a member of the public cannot be left to guess whether his use is legal or not, and if there is ambiguity or doubt the tie is always to the runner (or the property owner).  Additionally, the materiality threshold was not met.

            But the question before the court is not the same thing as the issue before the community.  And the issue in this case was resistance to change wrought by outsiders who aren’t “one of us”.  I know.  I was there.

            The Board of Adjustment case that preceded this litigation followed the Village of Wesley Chapel’s attempt to adopt an ordinance banning shooting ranges.  Supporting the proposed ordinance at the public hearing were neighbors who could hear the shooting at all hours, one of whom held up a bullet slug dug from a tree in his backyard.  Opposing the ordinance were folks from all over the county who viscerally felt that their once-rural county had been invaded by Charlotte-employed bankers and accountants – no doubt all perceived as refugees from north of the Mason Dixon Line – who wanted Union County’s old ways to give in to their new order. 

            To these locals it wasn’t about land use.  It was about their way of life, real or perceived.

            Change and economic transition may bring new jobs or better roads and schools.  But when change threatens self-identity and unravels the local mythology of the community’s origin and purpose, those who are unable to accommodate the shifting sands will start digging the trenches and rolling out the canons.

            I would pay a great sum for a video of the approximately 15 year-old kid who wagged his finger and insolently lectured the neighbors and newcomers he called “you people.” 

            Old ways versus new.  Insider versus outsider. South versus north. Individual rights versus collective good.  It was a clash of two cultures, only this time Sherman’s army was turned back, and not with guns but with a lawyer’s argument and legal briefs.

            In a perfect world, such collisions never occur. Open air shooting ranges for machine guns are never allowed next to subdivisions.  But the world is not perfect, and growth and transitions occur in rough starts, unplanned stops, and at the ragged whims of planning boards and elected bodies.

            In almost every community you and I know, the adopted comprehensive plan is a well-considered document where land use transitions are gradual and logical, but they are overlays upon existing uses that weren’t so logically planned and where uses that made sense 40 years ago have become vested.  I know a planner who has been working for eons on a 65,000 acre project in a distant state, an entire city planned from scratch.  What an exciting opportunity to prevent in advance all the problems with land use that evolve over time everywhere else.  And a decade or more from now that planner will be able to drive into the “city” and survey the creation. Daunting or exhilarating?  You decide.

Color Commentary

            This opinion was written by the same judge (Robert N. Hunter) who wrote the opinion in the now-famous impact fee case, Amward Homes v. Town of Cary. Judge Hunter has established himself in his short judicial tenure as a conservative property rights judge.  Ironically, he is also establishing his willingness to stray into judicial activism, something he would publicly disavow, but this and a few other cases suggest otherwise.

            The question whether Mr. Land lost his vested rights by materially altering his shooting range was answered by the local ordinance, which defines “material” as more than 50% of the replacement cost at the time of the alteration.  The ordinance clearly, in context, means replacement cost of the structure. But Judge Hunter rewrites the ordinance to add the cost of the land.

            More interesting is the fact that the NRA paid for the petitioner’s litigation.  I’ve seen a letter from Mr. Land’s attorney in the town’s files where he discusses his costs and fees to the NRA.  When our nonpartisan judicial elections, despite all intentions, become subjected to partisan and single issue voting, judges become sensitive. And I do too.  Were these judges worried that the NRA would target them if they decided otherwise?  Because they made the NRA happy, we’ll never know.

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