             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-729

                                Filed: 15 May 2018

Harnett County, No. 11 CVS 1187

KENT JEFFRIES, Petitioner,

            and

LYNWOOD HARE, FRANCES L. HARE, BOBBIE LEWIS JEFFRIES, and
THOMAS GLENN FINCH, Intervening Petitioners,

            v.

COUNTY OF HARNETT, Respondent,

            and

DRAKE LANDING, LLC, WILLIAM DAN ANDREWS, and LINDA ANDREWS,
Intervening Respondents.


      Appeal by petitioners from order entered 10 March 2017 by Judge C. Winston

Gilchrist, and appeal by respondents from orders entered 17 March 2014 by Judge C.

Winston Gilchrist and 24 July 2012 by Judge Tanya T. Wallace, in Harnett County

Superior Court. Heard in the Court of Appeals 27 November 2017.


      Troutman Sanders LLP, by Gavin B. Parsons, for petitioner-appellant and
      petitioner-appellee Kent Jeffries, and for intervening-petitioner-appellants and
      intervening-petitioner-appellees Lynwood Hare, Frances L. Hare, Bobbie Lewis
      Jefferies, and Thomas Glenn Finch.

      No brief filed for respondent-appellee, Harnett County.

      Bryant & Ivie, PLLC, by John Walter Bryant and Amber J. Ivie, for intervening-
      respondent-appellees and intervening-respondent-appellants Drake Landing,
      LLC, William Dan Andrews, and Linda Andrews.
                           JEFFRIES V. HARNETT COUNTY

                                  Opinion of the Court




      ELMORE, Judge.


      William Dan Andrews and Linda Andrews own and operate Drake Landing,

LLC (collectively, “intervening-respondents”), a recreational hunting and shooting

enterprise operating in Harnett County. William Dan Andrews is also the sole

proprietor of Andrews Farms, a bona fide commercial crop farm. Drake Landing

operates a controlled hunting preserve and a variety of other commercial shooting

activities on several acres of property it leases from Andrews Farms. Drake Landing

has never obtained conditional-use permits to operate its hunting preserve or the

other shooting activities on the basis that these activities constituted “agritourism”

and were thus exempt from countywide zoning.             Petitioner Kent Jeffries and

intervening-petitioners Frances L. Hare, Bobbie Lewis Jeffries, and Thomas Glenn

Finch (collectively, “petitioners”) own residential property adjacent to or near Drake

Landing.   This case arose from Jeffries’ request that the local zoning authority

determine whether thirteen different shooting activities offered at Drake Landing

constituted agritourism and were thus exempt from countywide zoning, including a

conditional-use permitting requirement. After several hearings and hearings on

remand before the Harnett County Board of Adjustment (“Board”), the superior court

entered multiple orders on the matter, three of which are on appeal.

      First, intervening-respondents appeal from a 2012 superior court order that

remanded a 2011 Board decision with instructions to allow petitioners to present

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evidence to satisfy their burden of establishing that Drake Landing’s shooting

activities were unrelated to Andrews Farms’ farming operations and were thus not

shielded from zoning regulation under the statutory farm exemption. On appeal,

intervening-respondents assert the superior court misinterpreted the zoning

ordinance and our General Statutes by concluding that a nexus must exist between

the shooting activities and the farming operations, because the shooting activities

constitute agritourism and no such nexus is required for agritourism activities to be

shielded by the farm exemption from countywide zoning.

      Second, intervening-respondents appeal from a 2014 superior court order that

reversed in part a 2013 Board decision, in which the court concluded under its de novo

interpretation of the statutory farm exemption that shooting activities involving

continental shooting towers, 3D archery courses and ranges, sporting clays, skeet and

trap ranges, rifle ranges, and pistol pits were not as a matter of law activities

intended by the legislature to be shielded from zoning regulation, even when

performed on bona fide farm property, and even when done in preparation for the

rural activity of hunting. The 2014 order also remanded the case to the Board with

instructions for it to issue adequate findings and conclusions to support its

determination that the remaining challenged activity—Drake Landing’s operation of

its controlled hunting preserve for domestically raised game birds—constituted a

zoning-exempt agritourism activity. On appeal, intervening-respondents assert the



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superior court misinterpreted our General Statutes by concluding these other

shooting activities were not “agriculture” in the form of “agritourism” but, instead,

were “nonfarm purposes” as a matter of law, and were thus subject to zoning

regulation.

      Third, petitioners appeal from a 2017 superior court order that affirmed a 2016

Board decision entered on remand from the 2014 order. In its 2016 decision, the

Board determined that Drake Landing’s operation of its hunting preserve was

shielded from zoning under the statutory farm exemption. In its 2017 order, the

superior court acknowledged that intervening-respondents filed the only petition for

certiorari review of the 2016 Board decision, and that intervening-respondents

conceded they raised no issue with that decision.        The order also indicated the

superior court judge refused to consider petitioners’ challenges to the Board’s 2016

decision because they failed to timely perfect an appeal from, or to raise any written

objections to, the Board’s decision as required under N.C. Gen. Stat. § 160A-393. The

superior court thus affirmed the 2016 Board decision. On appeal, petitioners assert

the superior court misinterpreted our General Statutes by not concluding that

operating a controlled hunting preserve is excluded from the definition of

“agritourism” because it amounts to a “nonfarm purpose” as a matter of law and is

thus subject to countywide zoning. Petitioners contend, alternatively, that even if

operating a controlled hunting preserve is not precluded as a matter of law from the



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definition of “agritourism,” the Board’s determination that Drake Landing’s

particular controlled hunting preserve operation is zoning-exempt was not supported

by substantial, competent evidence in the whole record and was thus arbitrary and

capricious. Petitioners also contend the superior court erred by failing to adequately

review the merits of the Board’s 2016 decision, since it refused to address their

challenges to that decision.

      After careful review, we affirm the 2014 and 2017 orders.          We dismiss

intervening-respondents’ challenges to the 2012 order because they failed to include

in the appellate record the Harnett County Unified Development Ordinance (UDO),

upon which they primarily rely to challenge that order, and because our dispositions

of petitioners’ appeal from the 2017 order and of intervening-respondents’ appeal

from the 2014 order renders moot any remaining challenges to the 2012 order.

                                    I. Background

      William Dan Andrews is the sole proprietor of Andrews Farms, an undisputed

bona fide farm. Andrews Farms owns over 2,000 acres of property and its agricultural

operation currently consists of harvesting and producing crops, including, inter alia,

tobacco, pine straw, soybeans, timber, and grain sorghum. Since the 1990s, a tract

of around 240 acres of Andrews Farms’ property has been licensed as a controlled

hunting preserve, and fowl such as pheasants and chukars have been domestically

raised on the property for hunting purposes.



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       Around 2005, William Dan Andrews and his wife, Linda Andrews, established

Drake Landing, a recreational hunting and shooting enterprise that operates on

leased property from Andrews Farms. Drake Landing began its business by taking

over the hunting preserve operation. Over time, however, Drake Landing added clay

target throwers and other parts of the range to offer its patrons additional shooting

activities beyond that of the early morning duck hunts and the afternoon pheasant,

chukar, and quail hunts. According to the Board’s unchallenged finding on the

matter, Drake Landing uses over 2,000 acres of Andrews Farms’ property to operate

its hunting preserve but only about 100 to 120 acres to operate the other shooting

activities.

       In November 2010, petitioner Kent Jeffries, an adjacent property owner and

the president of the North Harnett Property Rights Association, Inc. (“Property

Rights Assoc.”), wrote the Harnett County Planning Department to inquire as to

whether the following shooting activities offered at Drake Landing constituted

“agritourism” and were thus exempt from countywide zoning:                (1) “hunting

preserves”; (2) “ ‘continental tower shoots’ for pheasant”; (3) “3-D archery courses and

archery shooting ranges”; (4) “sporting clays and sporting clay courses”; (5) “skeet and

trap ranges and other shotgun shooting stations”; (6) “pistol shooting pits and pistol

shooting ranges”; (7) “rifle shooting ranges”; (8) “concealed carry handgun training”;

(9) “ ‘Three Gun’ firearms competitions”; (10) “IDPA (International Defensive Pistol



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Association) competitions, both sanctioned and non-sanctioned”; (11) “shotgun

competitions, both sanctioned and non-sanctioned”; (12) “other forms of firearms

competitions”; and (13) “corporate events hosted on an agritourism farm . . . .”

      On 18 January 2011, the zoning authority responded by letter in which it

concluded (1) hunting preserves constitute agritourism; (2) continental tower shoots

and (3) 3D archery courses and ranges, as “activities related to . . . methods and

weapons customarily used in the act of hunting in North Carolina,” constituted

agritourism; (4) sporting clays, (5) trap ranges, and (6) shotgun shooting stations

constitute agritourism “when used ‘in preparation for the hunt’ ”; (7) pistol pits and

(8) rifle ranges, when “used to educate, enhance or assist in marksmanship skills for

the purpose of hunting in a traditional manner . . . would be considered a related use

to the agritourism activity” because those training activities were “considered

‘preparing for the hunt’ ”; and (9) corporate events involving these agritourism

activities were similarly zoning-exempt. However, the zoning authority concluded,

“concealed carry handgun courses, firearms competitions such as three gun and

IDPA,” and “tactical type training [were] not viewed as a form of agritourism.”

      Jeffries, individually and as president of the Property Rights Assoc., appealed

the zoning authority’s determinations to the Harnett County Board of Adjustment

(“Board”). After a hearing, the Board entered an order on 9 May 2011 upholding the

zoning authority’s agritourism conclusions as to each activity on the basis that



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petitioners failed to show reversible error in the zoning authority’s decision (“2011

Board Decision”).

      On 10 October 2011, Jeffries filed a petition in the superior court for certiorari

review of the 2011 Board Decision. He argued in relevant part that he was prevented

at the Board hearing from presenting evidence to establish that there was no nexus

between Drake Landing’s shooting activities and Andrews Farms’ farming

operations. Later, Drake Landing, William Dan Andrews, and Linda Andrews were

allowed to intervene in the case. After the certiorari review hearing, the superior

court entered an order on 24 July 2012 remanding the matter to the Board (“2012

Order”). In its 2012 Order, the superior court concluded that petitioners “were denied

the opportunity to demonstrate facts consistent with their appeal to the Board of

Adjustment” and thus remanded the 2011 Board Decision and instructed the Board

“to determine for each activity from which Petitioners appealed whether Petitioners

can demonstrate the requisite lack of connectivity between the shooting activities and

farming activities on the premises of Drake Landing” and to allow petitioners

“concerning each disputed activity, to offer evidence concerning the scope, size, hours

of operation, number of persons involved, traffic, etc. and relation to shooting

activities and farming activities as well as enterprise.”

      After the ordered remand hearing, the Board issued a decision on 11 March

2013, again upholding the zoning authority’s agritourism conclusions (“2013 Board



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Decision”). In its 2013 Board Decision, the Board concluded that (1) “[h]unting

preserves are agritourism” and concluded further that, “as used in preparation for

the hunt,” so were the following activities: (2) “Continental Tower shoots,” (3) “3D

Archery courses and ranges,” (4) “Sporting Clays,” (5) “Skeet and Trap shooting and

ranges,” (6) “Rifle Ranges,” and (7) “Pistol Pits.” The Board also concluded that (8)

“Corporate Events” constituted agritourism “when used with hunting preserves or

farming activities.”

      On 10 April 2013, Jeffries petitioned the superior court for certiorari review of

the 2013 Board Decision. Later, adjacent residential property owners Bobbie Lewis

Jeffries, Lynwood W. Hare, Frances L. Hare, and Thomas Glenn Finch were allowed

to intervene in the case. After the certiorari review hearing, the superior court

reversed in part and remanded in part the 2013 Board Decision by order entered 17

March 2014 (“2014 Order”).

      In its 2014 Order, the superior court remanded the Board’s determination as

to the (1) hunting preserve and reversed the Board’s conclusions that (2) “continental

shooting towers,” (3) “3D archery courses and ranges,” (4) “sporting clay,” (5) “skeet

and trap ranges,” (6) “rifle ranges,” (7) “pistol pits,” and (8) corporate events involving

these shooting activities were shielded from zoning regulation under the statutory

farm exemption. Under a de novo review of the farming exemption statutes, the

superior court concluded as a matter of law that those shooting activities were neither



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“agriculture” under N.C. Gen. Stat. § 106-581.1 nor “bona fide farm purposes” under

N.C. Gen. Stat. § 153A-340. Rather, the superior court concluded, those activities

were “non-farm purposes” under N.C. Gen. Stat. § 153A-340(b), “even when

conducted on property which otherwise qualifies as a bona-fide farm or when

conducted in connection with or ‘in preparation for’ hunting” and were thus subject

to zoning. It also concluded, alternatively, that under the whole-record test, the

Board’s decision was not supported by “substantial competent evidence in the whole

record” because “[a]ll of the competence evidence in the record establishes that the

activities are in fact non-farm uses which are subject to county zoning.” However,

the superior court remanded the matter in part with instructions for the Board to

issue “findings of fact and conclusions of law on [Drake Landing’s] operation of [its]

‘hunting preserve.’ ”

      On 4 April 2014, intervening-respondents filed notices of appeal from the 2012

and 2014 Orders. This Court subsequently allowed petitioners’ motion to dismiss

those appeals on the basis that the orders were interlocutory. See Order, Jeffries v.

Hare, No. 14-1022 (N.C. App. Jan. 30, 2015) (dismissing appeals).

      After remand from the 2014 Order, the Board issued a decision on 12 October

2015 in which it concluded that, because Drake Landing possessed a valid controlled

hunting preserve license from the North Carolina Wildlife Resources Commission, its

property was thus categorically exempt from zoning (“2015 Board Decision”).



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      On 13 November 2015, intervening-respondents, not petitioners, petitioned the

superior court for certiorari review of the 2015 Board Decision. In its petition,

intervening-respondents conceded they raised no issue with the 2015 Board Decision

and requested relief in the form affirming that decision so they could refile their

appeals from the 2012 and 2014 Orders. After a hearing, the superior court reversed

the 2015 Board Decision by order entered 2 June 2016 (“2016 Order”). In its 2016

Order, the superior court concluded that possessing a controlled hunting preserve

license did not categorically exempt Drake Landing’s property from countywide

zoning regulation, and it again remanded the matter with instructions for the Board

to issue findings and conclusions to “address the specific activities, if any, which the

Board finds to constitute a ‘hunting preserve’ and whether, and why, such activities

are ‘agritourism’ within the meaning of the applicable North Carolina General

Statutes.”

      After the ordered remand hearing, the Board issued a decision on 3 August

2016 with detailed findings and conclusions supporting its determination that Drake

Landing’s particular controlled hunting preserve operation was exempt from zoning

(“2016 Board Decision”). In its 2016 Board Decision, the Board concluded in relevant

part that

             controlled hunting preserves for domestically raised game
             birds, like those at Drake Landing and Andrews Farms,
             are exempt from any and all Harnett County zoning
             ordinances[ ] . . . because hunting preserves like those at


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             Drake Landing and Andrews Farms are operated on a bona
             fide farm, constitute a bona fide farm purpose under both
             N.C. Gen. Stat. § 153A-340(b)(2) and N.C. Gen. Stat. § 106-
             581.1, and are considered agritourism under N.C. Gen.
             Stat. § 99E-30.

      On 1 September 2016, intervening-respondents, not petitioners, petitioned the

superior court for certiorari review of the 2016 Board Decision.        In its petition,

intervening-respondents again conceded they raised no issue with the 2016 Board

Decision and requested relief in the form of affirming that decision, and again

explained that they “intend[ed] to refile their appeal[s from the 2012 and 2014

Orders], which was previously dismissed by the Court of Appeals as interlocutory,

and file[d] this Petition for Writ of Certiorari out of an abundance of caution in order

to preserve their right to appeal.” Petitioners never filed a petition for certiorari

review of the 2016 Board Decision, moved to intervene as “petitioners” to intervening-

respondents’ petition, nor filed any responsive pleading in which they lodged any

objections or requested any relief from that decision; rather, the first objection

petitioners raised to the 2016 Board Decision occurred at the certiorari review

hearing initiated by intervening-respondents’ petition.       After the hearing, the

superior court affirmed the 2016 Board Decision by order entered 10 March 2017

(“2017 Order”).

      In its 2017 Order, the superior court indicated that it refused to address the

merits of any challenge to the 2016 Board Decision raised by petitioners for the first



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time at the certiorari review hearing. The superior court concluded that petitioners

failed to timely preserve their objection to that decision because they failed to comply

with N.C. Gen. Stat. § 160A-393(c)’s requirement of filing a petition for certiorari

review, in which petitioners were required to state the grounds upon which they

contended the Board erred and to state the relief they sought from the 2016 Board

Decision, and because petitioners failed to file any “form of written objection or

request from relief” from that decision. The superior court also acknowledged that

intervening-respondents stated in their petition they raised no issue with the 2016

Board Decision and sought relief in the form of affirming that decision “solely to

preserve their appellate rights with respect to prior rulings of the Superior Court.”

Accordingly, the superior court concluded that intervening-respondents were entitled

as a matter of law to prevail on the issues properly before it and thus affirmed the

2016 Board Decision.

      Intervening-respondents appeal the 2012 and 2014 Orders; petitioners appeal

the 2017 Order.

                               II. Review Standards

      On certiorari review of a county zoning board of adjustment’s quasi-judicial

decision, “the superior court sits as an appellate court,” Bailey & Assocs., Inc. v.

Wilmington Bd. of Adjustment, 202 N.C. App. 177, 189, 689 S.E.2d 576, 585 (2010)

(citation and quotation marks omitted), and is tasked with the following:



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             (1) review the record for errors of law; (2) ensure that
             procedures specified by law in both statute and ordinance
             are followed; (3) ensure that appropriate due process rights
             of the petitioner are protected, including the right to offer
             evidence, cross-examine witnesses, and inspect documents;
             (4) ensure that the decision is supported by competent,
             material, and substantial evidence in the whole record; and
             (5) ensure that the decision is not arbitrary and capricious.

Cary Creek Ltd. P’ship v. Town of Cary, 207 N.C. App. 339, 341–42, 700 S.E.2d 80,

82–83 (2010) (citation omitted). The superior court should apply de novo review to a

petitioner’s allegation of error implicating one of the first three enumerations and

whole-record review to the last two. See, e.g., Four Seasons Mgmt. Servs., Inc. v. Town

of Wrightsville Beach, 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010) (“If a

petitioner contends the Board’s decision was based on an error of law, ‘de novo’ review

is proper. However, if the petitioner contends the Board’s decision was not supported

by the evidence or was arbitrary and capricious, then the reviewing court must apply

the ‘whole record’ test.” (citation and quotation marks omitted)).

      “We review a superior court’s certiorari review of a [county] zoning board’s

quasi-judicial decision to determine whether the superior court: (1) exercised the

appropriate scope of review and, if appropriate, (2) decide whether the court did so

properly.” NCJS, LLC v. City of Charlotte, ___ N.C. App. ___, ___, 803 S.E.2d 684,

688 (2017) (citation and internal quotation marks omitted).

                              III. Petitioners’ Appeal




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      On appeal from the 2017 Order, petitioners contend the superior court erred

by affirming the 2016 Board Decision because (1) as a matter of law, operating a

controlled hunting preserve does not constitute the “bona fide farm purpose[ ]” of

“agritourism” under the statutory farm exemption but instead constitutes a “nonfarm

purpose” under N.C. Gen. Stat. § 153A-340(b)(1), that is thus subject to countywide

zoning regulation; or, alternatively, (2) even if a hunting preserve is not excluded as

a matter of law from the definition of agritourism, the Board’s decision was not

supported by sufficient evidence in the whole record because petitioners presented

substantial, competent evidence that Drake Landing’s hunting preserve is wholly

unrelated to Andrews Farms’ farming operations, and that the scale of Drake

Landing’s hunting preserve operation is such that it amounts to a “nonfarm purpose”

subject to zoning regulation. Petitioners also argue (3) the superior court failed to

adequately review the 2016 Board Decision because its 2017 Order affirming that

decision was based not on the merits of the 2016 Board Decision but merely on

procedural grounds.

      As a threshold matter, intervening-respondents contend that petitioners failed

to preserve any objection to the 2016 Board Decision because they never filed a

petition for certiorari review of that decision, nor filed any responsive pleading in

which they raised an issue with, or requested any relief from, the 2016 Board




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Decision. Thus, intervening-respondents argue, the superior court properly affirmed

the 2016 Board Decision based upon the issues properly before it. We agree.

      In its 2017 Order, the superior court made the following unchallenged, and

thus binding, factual findings:

             1. On September 1, 2016, Intervening Respondents . . . filed
             a “Petition for Writ of Certiorari” from the [2016 Board
             Decision] finding the “hunting preserve” . . . to be
             agritourism and exempt from county zoning.

             2. In their petition, Intervening Respondents expressly
             stated that their petition was filed solely to preserve their
             appellate rights with respect to prior rulings of the
             Superior Court. Intervening Respondents further stated
             that they “did not appeal the most recent determination of
             the Board of Adjustment” regarding their hunting
             preserve.

             3. Intervening Respondents’ Petition did not in any way
             object to, or allege any error in, the [2016 Board Decision].

             4. Neither Petitioner Kent Jeffries nor any Intervening
             Petitioners filed a petition for writ of certiorari from the
             [2016 Board Decision].          Jeffries and Intervening
             Petitioners have not filed any written objection or request
             for relief from the [2016 Board Decision], nor have they
             asserted in any writing filed with this court, by pleading or
             Correspondence, the grounds upon which they contend any
             error was made nor requested any relief from the most
             recent decision of the Board of Adjustment.

             5. Mr. Jeffries and Intervening Petitioners did not file any
             Answer in response to the petition of [intervening-
             respondents] and did not request any alternative relief.

             6. Intervening Respondents objected at the February 21,
             2017 hearing to the court considering any contentions of


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             error now made by Kent Jeffries or Intervening Petitioners
             because such parties did not·file any form of written
             objection.

             7. North Carolina General Statute 160A-393(c), made
             applicable to county boards of adjustment by N.C. General
             Statute 153A-349, provides:

                    An appeal in the nature of certiorari shall be
                    initiated by filing with the superior court a petition
                    for writ of certiorari.

                    The petition shall:

                    (2) Set forth the grounds upon which the petitioner
                    contends that an error was made . . . .

                    (4) Set forth the relief the petitioner seeks.

             (emphasis added)

             8. Mr. Kent Jeffries and Intervening Petitioners have not
             complied with the requirements of N.C. General Statute
             160A-393 for timely preserving their objection to the [2016
             Board Decision] and for seeking relief from such order.

             9. Drake Landing, LLC, William Dan Andrews and Linda
             Andrews are entitled, as a matter of law, to prevail on the
             issues now before the court.

      N.C. Gen. Stat. § 153A-393 (2017) governs appeals in the nature of certiorari.

Upon issuing a writ for certiorari review of a board decision, the superior court “shall

hear and decide all issues raised by the petition[,]” id. § 160A-393(j) (emphasis added),

and “shall ensure that the rights of petitioners have not been prejudiced[,]” id. § 160A-

393(k)(1) (emphasis added). Following its review, the superior court “may affirm the



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decision, reverse the decision and remand the case with appropriate instructions, or

remand the case for further proceedings.” Id. § 160A-393(l).

      Here, intervening-respondents filed the only petition for certiorari review of

the 2016 Board Decision in which they contended the Board made no error in its

decision and sought relief in the form of affirming that decision.        Petitioners,

contrarily, never filed a petition for certiorari review of that decision and,

consequently, never set forth any grounds upon which they contended the Board

erred, nor requested any relief from the 2016 Board Decision; petitioners never moved

to intervene as a “petitioner” for the certiorari review hearing on the 2016 Board

Decision, see N.C. Gen. Stat. § 160A-393(h); nor did petitioners file any responsive

pleading in which they raised any objection to that decision, see id. § 160A-393(g)

(permitting but not requiring a party to file a responsive pleading). Indeed, although

the 2016 Board Decision was entered and mailed to petitioners on 3 August 2016,

petitioners lodged no formal objection to that decision until the 21 February 2017

certiorari review hearing initiated solely by intervening-respondents’ petition.

      Accordingly, because the only petition for certiorari review of the 2016 Board

Decision was filed by intervening-respondents, in which they conceded they raised no

issue with that decision and requested relief in the form of affirming that decision,

and because petitioners neither lodged any written objections to the 2016 Board

Decision, requested any alternative form of relief, nor moved to intervene as a



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“petitioner,” the superior court properly determined that the 2016 Board Decision did

not prejudice the petitioning party’s rights, and it thus did not err by affirming the

2016 Board Decision based upon intervening-respondents’ petition.

      Further, although petitioners attempted to challenge the 2016 Board Decision

for the first time at the certiorari review hearing, the superior court properly refused

to address the merits of their arguments on procedural grounds.

      “[A]n appeal is not a matter of absolute right, but the appellant must comply

with the statutes and rules of Court as to the time and manner of taking and

perfecting his appeal.” Hirschman v. Chatham Cty., ___ N.C. App. ___, ___, 792

S.E.2d 211, 216 (2016) (citations and quotation marks omitted); see also id. at ___,

792 S.E.2d at 213 (holding that the superior court properly dismissed a petition for

certiorari review of a board decision where the petitioner failed to name the

conditional-use permit applicant as a respondent as required under N.C. Gen. Stat. §

160A-393(e) and thus failed to perfect his appeal, reasoning that this noncompliance

deprived the superior court of jurisdiction to review the merits of the board decision).

Under N.C. Gen. Stat. § 160A-393, to perfect an appeal from a zoning board’s decision,

a party with standing must file a petition in the superior court for certiorari review

of that decision, which “shall[ ] . . . [s]et forth the grounds upon which the petitioner

contends that an error was made” and “[s]et forth the relief the petitioner seeks.” Id.

§§ 160A-393(c)(1), (c)(4). “Our appellate courts have consistently held that the use of



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the word ‘shall’ in a statute indicates what actions are required or mandatory.”

Hirschman, ___ N.C. App. at ___, 792 S.E.2d at 213; see also id. at ___, 792 S.E.2d at

213–16 (holding that a non-conditional-use-applicant seeking certiorari review of a

board decision never perfected an appeal because he failed to comply with N.C. Gen.

Stat. § 160A-393(e)’s requirement that such a petitioner “shall . . . name th[e]

applicant as a respondent . . . .”).

       Here, petitioners failed to comply with subsection 160A-393(c)’s petition filing

requirements and thus never perfected an appeal from the 2016 Board Decision.

Further, petitioners never moved to intervene as a “petitioner” to intervening-

respondents’ petition for certiorari review of the 2016 Board Decision, nor did they

file any responsive pleading, raise any written objection, or request any relief from

that decision. Cf. Durham Cty. v. Addison, 262 N.C. 280, 283, 136 S.E.2d 600, 603

(1964) (“The decision of the Board of Adjustment is not subject to collateral attack.”

(citation omitted)); Wil-Hol Corp. v. Marshall, 71 N.C. App. 611, 614, 322 S.E.2d 655,

657 (1984) (“[T]he statutory procedure for challenging the validity of a zoning

ordinance is to petition the Superior Court for certiorari to review the final decision

of the Board of Adjustment. A zoning ordinance may not be collaterally attacked by

a party that failed to avail herself of the judicial review that the ordinance and

statutes authorize.” (internal citation omitted)). Thus, the superior court properly

concluded that petitioners were procedurally barred from challenging the 2016 Board



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Decision for the first time at the certiorari review hearing. Accordingly, we affirm

the 2017 Order affirming the 2016 Board Decision based on these procedural grounds

and thus do not reach the merits of petitioners’ challenges to the 2016 Board Decision.

      As a secondary matter, petitioners contend the procedural posture underlying

the superior court’s certiorari merits-review of the 2015 Board Decision is identical

to that of its certiorari review of the 2016 Board Decision and, thus, the superior court

should have similarly reviewed the merits of that later decision. In both instances,

petitioners argue, intervening-respondents filed the only certiorari petition in which

they set forth no allegations of error in the Board’s decisions and requested relief in

the form of affirming those decisions for the purpose of preserving their right to refile

their appeals from the 2012 and 2014 Orders. Although the 2016 Order is not on

appeal, we reject petitioners’ argument. The postures yielding both certiorari review

hearings were procedurally different and, before the superior court’s certiorari review

of the 2015 Board Decision, petitioners unequivocally expressed their intent to appeal

that decision and lodged specific, written objections to that decision.

      The 2014 Order remanded the 2013 Board Decision, which yielded the 2015

Board Decision. On 19 October 2015, respondent Harnett County wrote a letter to

Judge Gilchrist, who issued the 2014 Order, and enclosed a courtesy copy of the 2015

Board Decision. In its letter, Harnett County wrote: “It is the belief of counsel and

the parties that procedurally, the appeal of the [2015 Board Decision] would lie in



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Harnett County Superior Court, but that Your Honor would be under no obligation

to judicially review [that decision] unless appeal is affirmatively taken by any of the

parties.” On 26 October 2015, Jeffries responded by letter to Judge Gilchrist, writing

that Hartnett County “is an adverse party in this case and does not speak for the

petitioners” and that “[i]t is my position that an appeal is not necessary because this

matter has already been appealed.” Jeffries opined that this Court, in dismissing

intervening-respondents’ prior appeals, “labeled [the 2014 Order] as an ‘interlocutory

order’ that ‘did not decide all issues before the trial court’ ” and, thus, “[t]his case is

now back in Your Honor’s court . . . .” Jeffries then objected in writing to the Board’s

decision to “adopt[ ] wholesale the County’s draft order” and not allow petitioners to

discuss or explain their proposed order, and then set forth five separate grounds upon

which he challenged the propriety of the 2015 Board Decision. Jeffries also requested

that Judge Gilchrist “set dates for the submission of written arguments and for oral

argument.” Subsequently, on 13 November 2015, intervening-respondents filed their

petition for certiorari review of the 2015 Board Decision.

      As reflected, although the certiorari reviews of both the 2015 and 2016 Board

Decisions were initiated solely by intervening-respondents’ petition, unlike their

failures to do so with the 2016 Board Decision, petitioners unambiguously expressed

their intent to appeal the 2015 Board Decision and lodged specific, written objections

to that decision before the hearing. Accordingly, we reject petitioners’ argument.



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                     IV. Intervening-Respondents’ Appeals

A. 2014 Order

      On appeal from the 2014 Order, intervening-respondents assert the superior

court erred by reversing the 2013 Board Decision with respect to its conclusions that

Drake Landing’s operation of commercial shooting activities involving “continental

shooting towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges,

rifle ranges and pistol pits” constituted “agritourism” activities shielded by the

statutory farm exemption from countywide zoning. Intervening-respondents argue

that the superior court (1) misinterpreted our General Statutes by concluding as a

matter of law that these shooting activities fall outside the farm exemption and were

thus subject to zoning; and (2) erroneously concluded that, in the alternative, the

2013 Board Decision was not supported by substantial competent evidence in the

whole record. Because we hold that the superior court properly concluded these

shooting activities as a matter of law fall outside the statutory farm exemption, we

affirm the 2014 Order on this basis.        We thus need not address intervening-

respondents’ remaining challenge to the superior court’s alternative rationale for

reversing the 2013 Board Decision.

      In its 2014 Order, the superior court concluded in relevant part:

             Issues of statutory interpretation are questions of law to be
             decided by application of a de novo standard of review.
             Applying the de novo standard, the court concludes that the
             General Assembly did not intend to include continental


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             shooting towers, 3D archery courses and ranges, sporting
             clay, skeet and trap ranges, rifle ranges and pistol pits
             within the definition of “agriculture” in N.C. Gen. Stat. §
             106-581.1 or of “bona fide farm purposes” under N.C. Gen.
             Stat. § 153A-340. These uses are instead non-farm
             purposes under N.C. Gen. Stat. § 153A-340(b) and are not
             exempt from county zoning laws, even when conducted on
             property which otherwise qualifies as a bona-fide farm or
             when conducted in connection with or ‘in preparation for’
             hunting.

      As reflected, the superior court properly identified de novo as the applicable

review standard to address issues of statutory interpretation. Our review is whether

it properly applied that standard by concluding these shooting activities do not as a

matter of law constitute activities intended to be shielded from zoning under the

statutory farm exemption.

1. Statutory Farm Exemption from Countywide Zoning

      “Statutory interpretation properly begins with an examination of the plain

words of the statute.” Lanvale Properties, LLC v. Cty. of Cabarrus, 366 N.C. 142, 154,

731 S.E.2d 800, 809 (2012) (citation and quotation marks omitted). “[W]hen the

language of a statute is clear and unambiguous, there is no room for judicial

construction, and the courts must give it its plain and definite meaning. Id. at 154,

731 S.E.2d at 809–10 (citation and quotation marks omitted). Only where statutory

language is unclear or ambiguous may courts resort to canons of judicial construction

to interpret meaning.




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       Under the statutory farm exemption, “property used for bona fide farm

purposes” is exempt from countywide zoning regulation but “the use of farm property

for nonfarm purposes” is not. See N.C. Gen. Stat. § 153A-340(b)(1) (2013) (providing

that countywide zoning “regulations may affect property used for bona fide farm

purposes,” with the exception of swine farms, but providing that “[t]his subsection

does not limit regulation . . . with respect to the use of farm property for nonfarm

purposes”);1 see also Hampton v. Cumberland Cty., ___ N.C. App. ___, ___, 808 S.E.2d

763, 775 (2017) (noting that “non-farm uses, even on bona fide farms, are not exempt

from zoning regulation”). “[B]ona fide farm purposes include the production and

activities relating or incidental to the production of crops, grains, fruits, vegetables,

ornamental and flowering plants, dairy, livestock, poultry, and all other forms of

agriculture, as defined in G.S. 106-581.1.” N.C. Gen. Stat. § 153A-340(b)(2) (2013)

(emphasis added). “Agriculture” is defined in relevant part as follows:

               When performed on the farm, ‘agriculture’ . . . also
               include[s] the marketing and selling of agricultural
               products, agritourism, the storage and use of materials for
               agricultural purposes, packing, treating, processing,
               sorting, storage, and other activities performed to add
               value to crops, livestock, and agricultural items produced
               on the farm, and similar activities incident to the operation
               of a farm.


1 Effective 12 July 2017, our General Assembly eliminated county authority to regulate swine farms
by amending N.C. Gen. Stat. § 153A-340(b)(1) to now provide that countywide zoning “regulations may
not affect property used for bona fide farm purposes; provided, however, that this subsection does not
limit regulation . . . with respect to the use of farm property for nonfarm purposes.” See Act of July
12, 2017, ch. 108, sec. 9.(a), 2017 N.C. Sess. Laws ___, ___ (eliminating county authority to regulate
swine farms).

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Id. § 106-581.1(6) (2013) (emphasis added).

      However, neither Chapter 153A, governing county authority, nor Chapter 106,

governing agriculture, defined “agritourism.” But Chapter 99E, governing special

liability provisions, defined “[a]gritourism activity” in relevant part as

              [a]ny activity carried out on a farm or ranch that allows
              members of the general public, for recreational,
              entertainment, or educational purposes, to view or enjoy
              rural activities, including farming, ranching, historic,
              cultural, harvest-your-own activities, or natural activities
              and attractions.

Id. § 99E-30(1) (2013).

2. 2017 Act

      While it was unclear when the Board and superior court decided the matter

whether the legislature intended to shield from countywide zoning regulation the

same “agritourism activities” it intended to shield from liability, after the case

reached this Court, our General Assembly enacted “An Act to Amend Certain Laws

Governing Agricultural Matters” (“2017 Act”). See Act of July 12, 2017, ch. 108, 2017

N.C. Sess. Laws ___, ___. Most pertinent here, the 2017 Act amended N.C. Gen. Stat.

§ 153A-340(b) by adding subdivision (2a), which in relevant parts incorporated N.C.

Gen. Stat. § 99E-30(1)’s “agritourism activity” definition into section 153A-340 and

described certain types of zoning-exempt agritourism buildings and structures. Ch.

108, sec. 8.(a), 2017 N.C. Sess. Laws at ___ (clarifying activities incident to the farm



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and agritourism). As a result, the applicable statutory farm exemption provisions

now provide in pertinent part:

             For purposes of this section, “agritourism” means any
             activity carried out on a farm or ranch that allows members
             of the general public, for recreational, entertainment, or
             educational purposes, to view or enjoy rural activities,
             including farming, ranching, historic, cultural, harvest-
             your-own activities, or natural activities and attractions. A
             building or structure used for agritourism includes any
             building or structure used for public or private events,
             including, but not limited to, weddings, receptions,
             meetings, demonstrations of farm activities, meals, and
             other events that are taking place on the farm because of
             its farm or rural setting.

N.C. Gen. Stat. § 153A-340(b)(2a) (2017). A threshold question is whether N.C. Gen.

Stat. § 153A-340(b)(2a) applies in this case to guide our interpretation of whether

these shooting activities were intended by the legislature to constitute agritourism

activities shielded by the statutory farm exemption.

      An amendment that substantially alters the meaning of a law applies only

prospectively. Ray v. N.C. Dep’t of Transp., 366 N.C. 1, 9, 727 S.E.2d 675, 682 (2012)

(“[T]he default rule provides statutes with a prospective effective date[.]” (citation

omitted)). But an amendment that merely clarifies the meaning of a law, rather than

alters its substance, “will apply to all claims pending or brought before our State’s

courts after the amendment’s passage.” Id. We must therefore determine whether

the addition of subdivision (2a) clarifies or alters subsection (b). Id. at 9, 727 S.E.2d




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at 68182 (“It is this Court’s job to determine whether an amendment is clarifying or

altering.” (citation omitted)).

              “To determine whether the amendment clarifies the prior
              law or alters it requires a careful comparison of the original
              and amended statutes.” If the statute initially “fails
              expressly to address a particular point” but addresses it
              after the amendment, “the amendment is more likely to be
              clarifying than altering.”

Id. at 10, 727 S.E.2d at 682 (quoting Ferrell v. Dep’t of Transp., 334 N.C. 650, 659,

435 S.E.2d 309, 315 (1993)).

       In Ferrell, our Supreme Court was presented with an issue requiring it to

interpret a statute governing the reconveyance of land taken by eminent domain but

no longer needed, which was amended while the appeal was pending, and addressed

whether that amendment was merely clarifying and thus applicable, or was

substantially altering and thus inapplicable. 334 N.C. 650, 435 S.E.2d 309 (1993).

There, when the Department of Transportation (DOT) offered its initial sell-back

price offer to the original property owner, the relevant statute did not specify at what

price the DOT was to sell back the property. Id. at 657, 435 S.E.2d at 314. But by

the time the case reached our Supreme Court, the legislature had amended that

statute by adding language that provided clear guidance on the sell-back price

calculation. Id. at 658–59, 435 S.E.2d at 315. Our Supreme Court concluded that the

amendment was clarifying, not altering, and thus relied on its calculative guidance




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in determining the propriety of the DOT’s sell-back price offer. The Ferrell Court

reasoned:

                    Since here the statute before amendment provided
                    no express guidance as to selling price, the
                    amendment which addresses the selling price is best
                    interpreted as clarifying the statute as it existed
                    before the amendment. It is, therefore, strong
                    evidence of what the legislature intended when it
                    enacted the original statute.

Id. at 659, 435 S.E.2d at 315–16 (footnote omitted).

      Here, when the Board and superior court issued their decisions, N.C. Gen. Stat.

§ 153A-340(b) exempted from zoning regulation property used for “bona fide farm

purposes,” which included “all . . . forms of agriculture” under N.C. Gen. Stat. § 106-

581.1, such as “agritourism.” But neither statute defined “agritourism.” However,

after this case reached our Court, the legislature amended N.C. Gen. Stat. § 153A-

340(b) by adding subdivision (2a), which incorporated verbatim N.C. Gen. Stat. § 99E-

30(1)’s “agritourism activity” definition into the section 153A-340 and provided

guidance on what buildings or structures might constitute agritourism buildings or

structures, providing “strong evidence” that the General Assembly intended to shield

from zoning regulation the same agritourism activities it intended to shield from

liability, and that the amendment intended to clarify what sorts of activities it

contemplated might constitute agritourism.




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      Thus, we conclude that the addition of N.C. Gen. Stat. § 153A-340(b)(2a) served

merely to clarify, rather than alter, the substance of the statutory farm exemption by

providing further guidance on what constitutes zoning-exempt agritourism activities.

See ch. 108, sec. 8.(a), 2017 N.C. Sess. Laws at ___ (labeling the heading of section

8(a), which added N.C. Gen. Stat. § 153A-340(b)(2), as “Clarify activities incident to

the farm and agritourism” (original in all caps)); see also Taylor v. Crisp, 286 N.C.

488, 497, 212 S.E.2d 381, 387 (1975) (“ ‘Whereas it is logical to conclude that an

amendment to an unambiguous statute indicates the intent to change the law, no

such inference arises when the legislature amends an ambiguous provision.’ In such

case, the purpose of the variation may be ‘to clarify that which was previously

doubtful.’ ” (citation omitted)).   We therefore rely on the clarifying language of

subdivision (2a) to guide our interpretation of whether the legislature intended these

shooting activities to constitute “agritourism” activities shielded from zoning

regulation under the statutory farm exemption.

3. N.C. Gen. Stat. § 153A-340(b)(2a)

      It is undisputed that Drake Landing operates its business on property it leases

from Andrews Farms, a bona fide farm. At issue is whether using bona fide farm

property to operate commercial shooting activities involving continental shooting

towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges, rifle




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ranges and pistol pits constitutes agritourism. As stated above, N.C. Gen. Stat. §

153A-340(b)(2a) defines “agritourism” in pertinent part as follows:

             “[A]gritourism” means any activity carried out on a farm or
             ranch that allows members of the general public, for
             recreational, entertainment, or educational purposes, to
             view or enjoy rural activities, including farming, ranching,
             historic, cultural, harvest-your-own activities, or natural
             activities and attractions.

Id. § 153A-340(b)(2a) (emphasis added).

      Based on its plain language, it is unclear whether our legislature intended for

these shooting activities, even when relating to or incidental to a rural activity such

as hunting, to constitute zoning-exempt agritourism activities. Indeed, in the 2017

Act, the General Assembly requested a Legislative Research Commission study

pertaining to what constitutes agritourism. See ch. 108, sec. 1.(a), 2017 N.C. Sess.

Laws at ___ (ordering the Agriculture and Forestry Awareness Study Commission to

study “[t]he type of activities that constitute agritourism when conducted on a bona

fide farm and other relevant matters relating to agritourism activities”). Accordingly,

we turn to the canons of judicial construction.

      N.C. Gen. Stat. § 153A-340(b)(2a)’s use of “including” to introduce examples of

acceptable “rural” agritourism activities indicates the list is meant to be illustrative

and not exhaustive. The statute does not define “rural.”

             “[U]ndefined words are accorded their plain meaning so
             long as it is reasonable to do so.” In determining the plain
             meaning of undefined terms, “this Court has used


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             ‘standard, nonlegal dictionaries’ as a guide.”

Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792

(2016) (alteration in original) (citations omitted); see also id. at 259, 794 S.E.2d at 792

(relying on the New Oxford American Dictionary to define “building,” “construction,”

and “contractor”).     The dictionary definition of “rural” is “in, relating to, or

characteristic of the countryside rather than the town.”          New Oxford American

Dictionary 1531 (Angus Stevenson & Christine A. Lindberg eds. 3d ed. 2010). As

petitioners concede in their brief, “hunting is a traditional rural activity.” Under

certain circumstances, activities incidental or relating to hunting that occur in, relate

to, and are characteristic of the countryside, which retain the spirit of the traditional

hunting, may reasonably fit within an example of a “rural” agritourism activity.

Thus, for instance, operating a controlled hunting preserve for domestically raised

game birds which supports a bona fide farm operation and allows the public “for

recreational [or] entertainment purposes[ ] to . . . enjoy [the] rural activit[y]” of

traditional hunting may constitute agritourism. But the other shooting activities at

issue here do not fit so squarely into this interpretation.

      Because N.C. Gen. Stat. § 153A-340(b)(2a) lists examples of rural activities, we

turn to associative canons of construction. The interpretative canon of noscitur a

sociis instructs that “associated words explain and limit each other” and an

ambiguous or vague term “may be made clear and specific by considering the



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company in which it is found, and the meaning of the terms which are associated with

it.” City of Winston v. Beeson, 135 N.C. 192, 198, 47 S.E. 457, 460 (1904) (citations

omitted); see also State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)

(“Noscitur a sociis is a rule of construction applicable to all written instruments.”

(citation omitted)). The interpretive canon of expressio unius est exclusio alterius

instructs that the expression of one thing implies the exclusion of another. See, e.g.,

Fort v. Cty. of Cumberland, 218 N.C. App. 401, 407, 721 S.E.2d 350, 355 (2012)

(citations omitted).

      Applying the principle of noscitur a sociis to subdivision (2a)’s rural activity

examples of “farming, ranching, historic, cultural, harvest-your-own activities, or

other natural activities and attractions” imply that other contemplated rural

agritourism activities should fit, in a categorical sense, within this grouping. The

listed examples associate in part because they allow members of the non-rural public

to view or enjoy traditional rural activities or attractions relating to agriculture that

typically occur in a rural setting. The activities listed also associate in part because

they are “natural,” in that their performance preserves the land and does not require

its alteration other than by public consumption of natural items on the land. Cf.

Friends of Hatteras Island v. Coastal Res. Comm’n, 117 N.C. App. 556, 575, 452

S.E.2d 337, 349 (1995) (“Hunting, fishing, navigation and recreation require only a

temporary presence on the Reserve and do not necessitate alteration of the Reserve’s



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undeveloped and natural state.”). In applying the principle of expressio unius est

exclusio alterius, however, that subdivision (2a) explicitly lists “farming” and

“ranching” but not “hunting” implies that shooting activities, even when related to

hunting, were not contemplated as “agritourism.”

      Moreover, N.C. Gen. Stat. § 153A-340(b)(2a) defines “[a] building or structure

used for agritourism” in relevant part as

             any building or structure used for public or private events,
             including, but not limited to, weddings, receptions,
             meetings, demonstrations of farm activities, meals, and
             other events that are taking place on the farm because of
             its farm or rural setting.

      Applying the principle of noscitur a sociis, the illustrative examples of

agritourism buildings or structures include those used for “weddings, receptions,

meetings, demonstrations of farm activities, [and] meals,” events which share no

commonality with hunting or shooting activities. Further, the inclusive phrase tying

these examples together—“and other events that are taking place on the farm because

of its farm and rural setting”—indicates the legislature did not contemplate buildings

or structures used for shooting activities to be zoning-exempt agritourism buildings

or structures. While shooting activities might require the land space that only a rural

setting can provide, unlike the other event examples, they are not purposefully

performed on a farm for the aesthetic value of the farm or its rural setting.




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      “Where legislative intent is not readily apparent from the act, it is appropriate

to look at various related statutes in pari materia so as to determine and effectuate

the legislative intent.” Craig v. Cty. of Chatham, 356 N.C. 40, 46, 565 S.E.2d 172,

176–77 (2002) (citation omitted). Further, “words and phrases of a statute may not

be interpreted out of context, but must be interpreted as a composite whole so as to

harmonize with other statutory provisions and effectuate legislative intent, while

avoiding absurd or illogical interpretations[.]” Fort, 218 N.C. App. at 407, 721 S.E.2d

at 355 (citations and quotations marks omitted).

      That N.C. Gen. Stat. § 99E-30(1)’s “agritourism activity” definition was

incorporated into N.C. Gen. Stat. § 153A-340(b)(2a) indicates the legislature intended

to shield the same agritourism activities from countywide zoning that it intended to

shield from liability. Thus, we turn to N.C. Gen. Stat. § 99E-30(3)’s explanation of

inherent risks of agritourism activity for further guidance, which provides in part:

             (3) Inherent risks of agritourism activity. – Those dangers
             or conditions that are an integral part of an agritourism
             activity including certain hazards, including surface and
             subsurface conditions, natural conditions of land,
             vegetation, and waters, the behavior of wild or domestic
             animals, and ordinary dangers of structures or equipment
             ordinarily used in farming and ranching operations.

Id. § 99E-30(3) (2017) (emphasis added). That this provision lists as examples of

inherent risks of agritourism activity “surface and subsurface conditions, natural

conditions of land, vegetation, and waters, [and] the behavior of wild or domestic



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animals,” relatively minor and rarer risks than those associated with shooting guns

that would be integral to the shooting activities at issue here, supports our

interpretation that such activities were not contemplated as “agritourism.” Further,

that the statute lists “ordinary dangers of . . . equipment ordinarily used in farming

and ranching operations” but not equipment such as guns used in hunting operations,

buttresses an interpretation that shooting activities, even when done “in preparation

for the hunt,” were not contemplated as “agritourism.”

      In summary, commercial shooting activities involving continental shooting

towers, 3D archery courses and ranges, sporting clays, skeet and trap ranges, rifle

ranges, and pistol pits neither fit as squarely within traditional notions of hunting,

the definition of a “rural” activity, nor the category of a “natural” activity. Applying

the principle of noscitur a sociis to N.C. Gen. Stat. § 153A-340(b)(2a), shooting

activities that require the construction and use of artificial structures and the

alteration of natural land, such as clearing farm property to operate gun ranges,

share little resemblance to the listed rural agritourism activity examples or the same

spirit of preservation or traditionalism. Applying that same principle to subdivision

(2a)’s examples of agritourism events yields the same interpretation. Under the

principle of expressio unius est exclusio alterius as applied to both N.C. Gen. Stat. §

153A-340(b)(2a) and N.C. Gen. Stat. § 99E-30(3), that these statutes list “farming”

and “ranching” but not “hunting” implies that these shooting activities, even when



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done in preparation for a rural activity like traditional hunting, were not

contemplated as “agritourism.” Finally, N.C. Gen. Stat. § 99E-30(3)’s illustrative list

of inherent risks of agritourism activities omits the typically greater risks of shooting

guns that would be an integral danger to operating these commercial gun shooting

activities.

       Accordingly, after our de novo review of the statutory farm exemption

provisions, we agree with the superior court that commercial shooting activities

involving the operation of continental shooting towers, 3D archery courses and

ranges, sporting clay, skeet and trap ranges, rifle ranges, and pistol pits, even when

performed on a bona fide farm, and even when done in preparation for the hunt, were

not contemplated by our legislature as types of “agritourism” activities intended to be

shielded from countywide zoning under the statutory farm exemption. We thus hold

that these shooting activities do not constitute “agritourism” as a matter of law and

are subject to zoning. Accordingly, we affirm the 2014 Order on this basis. In light

of our decision, we need not address intervening-respondents’ remaining challenge to

the 2014 Order. Intervening-respondents, of course, may freely apply for conditional-

use permits to continue operating these activities, but we hold that they do not

constitute “agritourism” as a matter of law under our General Statutes.

B. 2012 Order




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      On appeal from the 2012 Order, intervening-respondents assert the superior

court erred by remanding the 2011 Board Decision on the basis that (1) petitioners

failed to meet their burden of presenting competent, substantial, and material

evidence in support of their appeal to the Board of Adjustment; (2) the superior court

erroneously concluded that petitioners had not been given an opportunity to be heard;

and (3) the superior court misinterpreted the plain language of the Harnett County

Unified Development Ordinance (UDO) and our General Statutes by concluding that

there must be a nexus between agritourism activities offered on a bona fide farm and

its farming operations in order to be shielded by the farm exemption.

      The linchpin holding together each alleged error is the superior court’s

conclusion that petitioners burden to support their appeal from the 2011 Board

Decision was to present evidence “to establish that there was no requisite nexus

between the Respondents’ farming activities[ ] and shooting activities.” Intervening-

respondents contend that, because the shooting activities constitute “agritourism,”

no such nexus is required under the plain language of the UDO and our General

Statutes.   According to intervening-respondents, the UDO provides that “zoning

provisions . . . shall not apply to bona fide farms, as defined herein” and that the “use

of any bona fide farm property for any non-farm use purposes shall be subject to the

regulations of the Ordinance, with the exception of those uses determined to be

agritourism, as defined by this Ordinance.” (Emphasis added.) Thus, intervening-



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                                     Opinion of the Court



respondents continue, the superior court erred by finding that Drake Landing

operates “on real property of Andrews Farms” and that “Andrews Farms is a bona

fide farm pursuant to N.C. Gen. Stat. § 153A-340” but nonetheless remanding the

matter to the Board with instructions to allow petitioners to present evidence that

there was no connectivity between Drake Landing’s shooting activities and Andrews

Farms’ farming operations when no such nexus is required for agritourism activities.

       However, because intervening-respondents failed to include the UDO in the

appellate record, the authority upon which they primarily rely to support their main

challenge to the 2012 Order, these issues are not properly before us. See Town of

Scotland Neck v. W. Sur. Co., 301 N.C. 331, 338, 271 S.E.2d 501, 505 (1980) (“No

Town ordinance . . . was introduced, and we cannot take judicial notice of one if it

exists.” (citation omitted)); Beau Rivage Homeowners Ass’n v. Billy Earl, L.L.C., 163

N.C. App. 325, 327, 593 S.E.2d 120, 122 (2004) (“When no ordinance is presented to

the appellate court through the record on appeal, the appellate court is not permitted

to take judicial notice of the ordinance if it exists.” (citation omitted)); see also Cty. of

Durham v. Roberts, 145 N.C. App. 665, 671, 551 S.E.2d 494, 498 (2001) (refusing to

consider appellant’s zoning-ordinance-interpretation argument where, although the

ordinance was attached in an appendix to the appellate brief, it was not included in

the appellate record: “[E]xternal documents included in the appendix to defendant’s

brief are not considered here.”).



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                                  Opinion of the Court



      Further, the practical effect of the 2012 Order was to remand the matter to the

Board, which yielded the 2013 Board Decision and, ultimately, the 2014 Order on

appeal. Because we have already determined that the superior court in its 2014

Order properly concluded that the challenged shooting activities do not constitute

“agritourism” as a matter of law, and because we have already determined that the

superior court in its 2017 Order properly affirmed the 2016 Board Decision that

concluded the only remaining activity—Drake Landing’s operation of its controlled

hunting preserve for domestically raised game birds—is exempt from countywide

zoning, and that petitioners are procedurally barred from objecting to that decision,

no shooting activities remain to be challenged. Accordingly, we dismiss intervening-

respondents’ challenges to the 2012 Order on the grounds that they failed to include

the UDO in the appellate record and on the grounds that, in light of our dispositions

of the 2014 and 2017 Orders, their challenges to the 2012 Order are now moot.

                                   V. Conclusion

      Under N.C. Gen. Stat. §§ 160A-393(j) and (k)(1), the superior court was only

required to address those issues raised by intervening-respondents’ petition for

certiorari review of the 2016 Board Decision and to ensure that intervening-

respondents’ rights were not prejudiced, as petitioners never raised any written

objection to that decision, requested any alternative relief, or moved to intervene as

a petitioner.   The superior court also properly refused to consider petitioners’



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                                   Opinion of the Court



objections to the 2016 Board Decision for the first time at the certiorari hearing

because petitioners were procedurally barred from challenging that decision by

failing to comply with N.C. Gen. Stat. § 160A-393’s requirements. Accordingly, based

on intervening-respondents’ petition for certiorari review, and on petitioners’ failures

to timely challenge that decision, the superior court did not err by affirming the 2016

Board Decision. We thus affirm the 2017 Order.

      Additionally, based on our de novo interpretation of applicable provisions of

the statutory farm exemption from countywide zoning, we hold that the particular

outdoor shooting activities at issue here do not constitute “agritourism” as a matter

of law and are thus subject to zoning. We therefore affirm the 2014 Order.

      Finally, because intervening-respondents have failed to include in the

appellate record the UDO upon which they primarily rely to support their appeal

from the 2012 Order, and because our resolutions of petitioners’ appeal from the 2017

Order and intervening-respondents’ appeal from the 2014 Order renders moot the

issues they raised with respect to the 2012 Order, we dismiss intervening-

respondents challenges to the 2012 Order.

      AFFIRMED IN PART; DISMISSED IN PART.

      Chief Judge McGEE concurs.

      Judge MURPHY concurs in result only.




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