                                    NO. COA14-93

                        NORTH CAROLINA COURT OF APPEALS

                            Filed:    19 August 2014

SAMUEL and DORIS FORT, JULIA
KATHERINE FAIRCLOTH, RAEFORD B.
LOCKAMY, II, OK FARMS OF CEDAR
CREEK, LLC, and ARNOLD DREW SMITH,
     Petitioners,

     v.                                     Cumberland County
                                            No. 12 CVS 8440
COUNTY OF CUMBERLAND, North
Carolina, and TIGERSWAN, INC.,
     Respondents.


      Appeal by respondents from order entered 23 October 2013 by

Judge C. Winston Gilchrist in Cumberland County Superior Court.

Heard in the Court of Appeals 4 June 2014.


      Currin & Currin, by Robin T. Currin and George B. Currin,
      for petitioners.

      Cumberland County Attorney’s Office, by Robert A. Hasty,
      Jr., for respondent-appellant County of Cumberland.

      Parker Poe Adams & Bernstein LLP, by Charles C. Meeker, for
      respondent-appellant TigerSwan, Inc.


      McCULLOUGH, Judge.


      Respondents TigerSwan, Inc., and Cumberland County appeal

an   order   of   the    trial   court,   reversing    a   decision    made   by

Cumberland    County’s      Board    of   Adjustment   that   the     TigerSwan

facility is permitted in the A1 Zoning District and remanding
                                      -2-
with instructions to revoke the site plan approval and zoning

permit for the TigerSwan facility.               Based on the reasons stated

herein, we reverse the order of the trial court.

                                I.   Background

    The Cumberland County zoning ordinance at issue in this

appeal was originally adopted on 3 July 1972, revised 20 June

2005, and amended on 18 April 2011 (“the zoning ordinance”).

Article IV, Section 402, entitled “Uses by Right” provides as

follows:

              All uses of property are allowed as a use by
              right except where this ordinance specifies
              otherwise    or    where    this    ordinance
              specifically prohibits the use.       In the
              event, a use of property is proposed that is
              not   addressed   by  the   terms   of   this
              ordinance, the minimum ordinance standards
              for the use addressed by this ordinance that
              is most closely related to the land use
              impacts of the proposed use shall apply.

    Article IV, Section 403 of the zoning ordinance includes a

“Use Matrix” which enumerates permitted and special land uses,

as well as some land uses allowed only in a conditional zoning

district.      The following land uses are enumerated in the “Use

Matrix”       and    are   pertinent        to      the   case    before   us:

“RECREATION/AMUS[E]MENT          OUTDOOR         (with    mechanized   vehicle

operations) conducted outside building for profit, not otherwise

listed    &   not   regulated   by   Sec.   924”     (“recreation/amusement”)
                                      -3-
which is a permitted use in the A1 zoning district; “SCHOOLS,

public, private, elementary or secondary” (“public or private

school”) which is a permitted use in the A1 zoning district; and

a “SCHOOL, business and commercial for nurses or other medically

oriented      professions,     trade,       vocational     &       fine    arts”

(“vocational school”) which is not a permitted use in the A1

zoning district.

    TigerSwan,      Inc.     (“TigerSwan”)     submitted       a    site    plan

application to the County of Cumberland (“County”) requesting

approval for a “Training Collaboration Center” (“the TigerSwan

facility”).     The TigerSwan facility leases a 978 acre site which

sits on a 1,521 acre parcel.          The entire site is located in the

A1 Agricultural District of the County.           Evidence in the record

established that the TigerSwan facility would be designed to

provide weapons training and firearm safety primarily to the

government,      military,      law     enforcement,       and        corporate

organizations. One day a week, the TigerSwan facility would be

open to the public.        Ninety-five (95%) percent of the activity

at the TigerSwan facility would occur on the outdoor gun ranges.

TigerSwan intends to have a pro-shop, buildings for instruction,

administrative offices, and restrooms.
                                                 -4-
       On   9    April       2012,    the    County’s         Planning    and    Inspections

Department           (“the     Planning      Department”)         issued    a     site     plan

approval for the TigerSwan facility.                            The Planning Department

held    that          the      TigerSwan         facility        was    permitted        as     a

recreation/amusement             land      use.        The    Planning    Department       also

issued a zoning permit to TigerSwan on 17 April 2012.

       Petitioners           Samuel        and        Doris     Fort,    Julia     Katherine

Faircloth, Raeford B. Lockamy, II, OK Farms of Cedar Creek, LLC,

and Arnold Drew Smith appealed the issuance of the permit to the

Cumberland            County      Board          of     Adjustment       (“the      Board”).

Specifically,           petitioners         challenged          the     approval    of        the

TigerSwan        facility        by     arguing          that     the    County’s        zoning

administrator’s classification of the TigerSwan facility as a

recreation/amusement land use was erroneous.                            Petitioners argued

that the County had never taken the position that the TigerSwan

facility        be    permitted       as    recreation/amusement            and    that       the

Planning Department’s determination was in direct conflict with

the County’s previous position, as set forth in Fort v. County

of Cumberland, __ N.C. App. __, 721 S.E.2d 350 (2012) (“Fort”),

that the TigerSwan facility be classified as a “private school.”
                                        -5-
      Petitioners relied on our Court’s holding in Fort. In Fort,

TigerSwan   sought     approval    of    a    “firearms     training   facility.”

Id. at __, 721 S.E.2d at 352.           Our Court found that TigerSwan

            [i]ntends   to    provide    instruction    to
            military, law enforcement, and security
            personnel   in   topics   such    as   weapons
            training, urban warfare, convoy security
            operations, and “[w]arrior [c]ombatives” in
            order   to   “teach,    coach,    and   mentor
            tomorrow’s   soldiers.”       TigerSwan   also
            intends to provide courses on topics such as
            first aid, firearm and hunting safety, and
            foreign languages for adults and children.

Id.   The site plan included multiple firing ranges in addition

to classroom facilities.           Id.        The Cumberland County zoning

administrator approved TigerSwan’s site plan by classifying the

business as a “private school.”                Id.    Petitioners Samuel and

Doris Fort, Julia Katherine Faircloth, and Raeford B. Lockamy,

II,   appealed   the    approval    of       the   site   plan   and   the    Board

affirmed the decision of the zoning administrator.                     Id. at __,

721 S.E.2d at 352-53.        After the Fort petitioners appealed to

the   superior   court,   the     trial      court   held    that   the   training

facility was a permitted use in the A1 zoning district.                      Id. at

__, 721 S.E.2d at 353.            The Fort petitioners appealed to our

Court.   Under section 402 of the then-existing zoning ordinance1,



1
 This case was decided under the version of the ordinance prior
to the 18 April 2011 amendment: Section 402 entitled, “Uses by
                                         -6-
our Court held that the TigerSwan facility was not a “private

school” and that the TigerSwan facility was not a permitted use

in the A1 zoning district.             Id. at __, 721 S.E.2d 354.                 Using

rules of statutory construction, our Court reasoned that the

“schools, public, private, elementary or secondary” category in

the zoning ordinance limited permissible schools, private and

public, to elementary and secondary education.                    “[T]he inclusion

of ‘elementary or secondary’ in the description of permissible

schools      was   intended    to     exclude      other     types    of   ‘SCHOOLS,’

whether they be private or public.”                  Id. at __, 721 S.E.2d at

355.      Our Court stated that “[w]ithout deciding whether the

Training     Facility    qualifies      as   either      a   trade    or   vocational

school,      we    conclude    that    the     Training      Facility      is    not     a

permitted use as it is not a public or private, elementary or

secondary school.”       Id.

       On 10 July 2012, the Board held a hearing on the issue of

whether “the staff of the Cumberland County Planning Department

erred   by    failing    to    classify      the   use     of   the   site      for    the

[TigerSwan facility] as a vocational school within one of the




Right” provided that “[a]ll uses of property are prohibited
except those that are permitted or otherwise allowed under the
terms of this ordinance.”
                                -7-
School land uses.”    The Board entered an order that made the

following pertinent findings:

         3.   The training offered at the TigerSwan
              facility is in the nature of skill level
              improvement.

         4.   Approximately 80-90% of the activities
              conducted at the TigerSwan facility occur
              outside on the firing ranges, and the
              training conducted in the meeting rooms
              is incidental to the firing of pistols
              and rifles. Twenty percent (20%) of the
              activity at the TigerSwan facility is
              recreational   in  nature   and  involves
              sportsmen and families.

         . . . .

         7.   There is no classification of firing
              ranges in the Cumberland County Zoning
              Ordinance.

         . . . .

         10. Before the submission of the request for
             a permit for the TigerSwan facility,
             Planning Director Tom Lloyd issued a
             directive to staff that any outdoor
             firing range would be considered as the
             classified use [recreation/amusement] for
             the reason that he believed this was the
             classified use under the ordinance which
             created   the  most   similar  land   use
             impacts.

         11. The Planning Department classified the
             TigerSwan facility in accordance with the
             Planning Director’s directive and issued
             the subject permit. . . .
                                              -8-
The Board concluded that the TigerSwan facility did not fall

within the classification of a vocational school.                                   The Board

also concluded that the decision of the Planning Department “to

consider the TigerSwan facility to be an outdoor firing range

most     similar             to      the      classified             use      for         outdoor

recreation[/amusement]                was     reasonable          and        was        made     in

conformance with the provision” of the zoning ordinance.                                        The

Board dismissed petitioners’ appeal and affirmed the issuance of

the permit for the TigerSwan facility.

       Petitioners then appealed the order of the Board to the

Cumberland County Superior Court by filing a petition for writ

of certiorari on 25 September 2012.

       Following a hearing held at the 26 August 2013 session of

Cumberland          County        Superior    Court        on   petitioners’            writ    of

certiorari, the trial court entered an order on 23 October 2013.

The    trial    court        found     that    the    Board’s         decision      “must       be

reversed       and    the     case     remanded       to    the      Board    .     .    .     with

instructions to revoke the Site Plan and Zoning Permit for the

TigerSwan Facility issued on April 9, 2012 and April 17, 2012.”

The    trial    court’s           decision    was    based      on    the     following,         in

pertinent part:

               4.    In its Table of Permitted Uses, the
                     Zoning Ordinance sets forth the uses that
                      -9-
     are allowed in the A1 District and those
     which are not. [Vocational schools] are
     not permitted in the A1 District.    The
     term vocational school is not defined in
     the Zoning Ordinance.

5.   [Recreation/Amusement] is a permitted use
     in the A1 District. . . .

6.   The Zoning Ordinance in effect at the
     time of the approvals by the Zoning
     Administrator (the “Zoning Ordinance”)
     does not reference a use called a “firing
     range” or “shooting range,” and neither
     of those terms are defined in the Zoning
     Ordinance.

. . . .

8.   The decisions to approve the Site Plan
     and Zoning Permit were based upon the
     Zoning Administrator’s determination that
     the TigerSwan Facility was an outdoor
     firing range, which is not addressed by
     the   Zoning  Ordinance.      The  Zoning
     Administrator then determined, pursuant
     to Zoning Ordinance Section 402, that the
     TigerSwan Facility should be regulated as
     [recreation/amusement] because the land
     use impacts of the TigerSwan Facility
     were most closely related to that use.

. . . .

13. Based on the Court’s de novo review of
    the whole record . . . this Court
    concludes that the TigerSwan Facility is
    a [vocational school], as set out in the
    Zoning   Ordinance  and   is,  therefore,
    prohibited in the A1 District.        The
    evidence in the Record established that
    the TigerSwan Facility fits within the
    definition of a vocational school and its
    purposes and activities are consistent
                             -10-
             with those of a vocational school as set
             out in the Zoning Ordinance.    The Board
             of Adjustment, thus, erred in affirming
             the decision of the Zoning Administrator
             which determined the TigerSwan Facility
             was an outdoor firing range, because it
             is not.    The TigerSwan Facility is a
             vocational   school   under  the   Zoning
             Ordinance.     The fact that TigerSwan
             operates a recreational firing range one
             day a week and uses a firing range for
             its courses does not change the nature of
             the use, which the Record establishes is
             to provide instruction to military, law
             enforcement and security personnel for
             use in their occupations.    See Fort v.
             County of Cumberland, __ N.C. App. __,
             __, 721 S.E.2d 350, 356 (2012) (while
             some uses offered by TigerSwan may be
             permitted, “the inclusion of permitted
             uses cannot offset the uses prohibited by
             the [Zoning] Ordinance.”).

         14. Because the TigerSwan Facility is a
             vocational school, which is a use that is
             specifically   prohibited   in    the  A1
             District, the Zoning Administrator had no
             authority under the Zoning Ordinance
             Section   402  to   determine   that  the
             TigerSwan Facility should be regulated
             according to the minimum standards for
             the use with the most closely related
             land use impacts.    Regardless, however,
             and in the alternative, there was no
             competent evidence in the Record that
             could support the determination that the
             TigerSwan Facility’s impacts were most
             similar to [Recreation/Amusement].

    Respondents County of Cumberland and TigerSwan filed notice

of appeal on 15 November 2013 from the 23 October 2013 order of

the trial court.
                                    -11-
                        II.   Standard of Review

    It    is   well   established   that   “[j]udicial   review   of   the

decisions of a municipal board of adjustment is authorized by

N.C. Gen. Stat. § 160A-388(e2), which provides, in pertinent

part, that ‘[e]very decision of the board shall be subject to

review by the superior court by proceedings in the nature of

certiorari.’”    Four Seasons Mgmt. Servs. v. Town of Wrightsville

Beach, 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010).               Upon

review of a decision from a Board of Adjustment, the trial court

should:

           (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.

CRLP Durham, LP v. Durham City/County Bd. of Adjustment, 210

N.C. App. 203, 207, 706 S.E.2d 317, 319-320 (2011) (citations

and quotation marks omitted).

    “If a petitioner contends the Board’s decision was based on

an error of law, de novo review is proper.”          Four Seasons, 205

N.C. App. at 75, 695 S.E.2d at 462 (citations and quotation
                                                -12-
marks    omitted).            “Under       de    novo    review       a    reviewing      court

considers      the     case       anew    and    may    freely    substitute            its   own

interpretation         of    an    ordinance       for    a    board       of     adjustment’s

conclusions of law.”               Morris Communs. Corp v. City of Bessemer,

365     N.C.    152,       156,    712     S.E.2d       868,    871       (2011)     (citation

omitted).           “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.”         Four Seasons, 205 N.C. App. at 75, 695 S.E.2d at

462 (citations omitted).                 “When utilizing the whole record test,

. . . the reviewing court must examine all competent evidence

(the whole record) in order to determine whether the agency

decision       is    supported       by    substantial         evidence.”            Templeton

Properties v. Town of Boone, __ N.C. App. __, __, __ S.E.2d __,

__ (June 3, 2014) (No. COA13-1274).

      “When this Court reviews a superior court’s order which

reviewed a zoning board’s decision, we examine the order to:

(1)   determin[e]           whether      the     [superior]      court       exercised        the

appropriate scope of review and, if appropriate, (2) decid[e]

whether the court did so properly.”                      CRLP Durham, 210 N.C. App.

at 207, 706 S.E.2d at 320 (citation omitted).

                                      III. Discussion
                                  -13-
      On appeal, respondents argue that the trial court erred by

(A) concluding, in paragraphs 13 and 14 of the 23 October 2013

order, that TigerSwan’s facility is a vocational school as set

out in the zoning ordinance and by (B) concluding in paragraph

14 that there was no competent evidence in the record that could

support the determination that the TigerSwan facility’s impacts

were most similar to the category of recreation/amusement.

 A.     Classification of the TigerSwan Facility as a Vocational

                                 School

      First, respondents argue that the trial court erred as a

matter of law by concluding that the TigerSwan facility was a

vocational school pursuant to the zoning ordinance.            Respondents

also contend that the trial court erred by failing to affirm the

determination of the Board that the TigerSwan facility was an

outdoor firing range, allowed as a use by right.

      “The    superior   court   reviews   a   board    of    adjustment’s

interpretation of a municipal ordinance de novo.”            MNC Holdings,

LLC v. Town of Matthews, __ N.C. App. __, __, 735 S.E.2d 364,

367 (2012).     Reviewing the trial court’s 23 October 2013 order,

we initially note that the trial court, while reviewing issues

involving the interpretation of the zoning ordinance, employed

the appropriate de novo standard of review.            The issue in this
                                 -14-
appeal is whether the trial court’s legal interpretation of the

zoning ordinance was correct.      Accordingly, we also employ de

novo review and “consider [the] question[s] anew.”          JWL Invs.,

Inc. v. Guilford County Bd. of Adjustment, 133 N.C. App. 426,

429, 515 S.E.2d 715, 718 (1999).        See MNC Holdings, __ N.C. App.

at __, 735 S.E.2d at 367 (stating that because the issue on

appeal is whether the trial court’s legal interpretation of a

municipal ordinance is correct, our Court also employs a de novo

review).

     In determining the meaning of a zoning ordinance, we apply

the same principles of construction used to interpret statutes.

See Morris, 365 N.C. at 157, 712 S.E.2d at 872.       In addition,

           we attempt to ascertain and effectuate the
           intent of the legislative body.     Unless a
           term is defined specifically within the
           ordinance in which it is referenced, it
           should be assigned its plain and ordinary
           meaning.        In    addition,  we     avoid
           interpretations    that   create absurd    or
           illogical results.

Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439 S.E.2d

199, 201 (1994) (citations omitted).          “[R]eviewing courts may

make independent assessments of the underlying merits of board

of   adjustment   ordinance   interpretations.       This   proposition

emphasizes the obvious corollary that courts consider, but are

not bound by, the interpretations of administrative agencies and
                                             -15-
boards.”     Morris, 365 N.C. at 156, 712 S.E.2d at 871 (citations

and quotation marks omitted).

      We first examine the intent of the zoning ordinance.                             Prior

to the 18 April 2011 amendment, the zoning ordinance provided

that “[a]ll uses of property are prohibited except those that

are   permitted      or    otherwise         allowed     under   the    terms    of    this

ordinance.”        Notably, following the 18 April 2011 amendment, the

zoning ordinance provided in Section 402 that “[a]ll uses of

property     are    allowed    as       a    use    by   right     except     where    this

ordinance         specifies    otherwise            or     where       this     ordinance

specifically prohibits the use.”                    In determining the intent of

the 18 April 2011 amendment, it is evident that the legislative

body intended to broaden the spectrum of permissible uses and

thereby, freely allowed the use of property except where it was

specifically prohibited.

      We    now    consider    the          term    “vocational     school”      and    the

Board’s     interpretation         of       that   term.     The    term      “vocational

school” is not defined in the zoning ordinance.                        “In the absence

of a contextual definition, courts may look to dictionaries to

determine the ordinary meaning of words within a[n ordinance.]”

Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 638, 528

S.E.2d     902,    904    (2000)    (citation        omitted).         “Vocational”      is
                                        -16-
defined as “of, relating to, or concerned with a vocation” or

“of, relating to, or undergoing training in a skill or trade to

be pursued as a career.”          Merriam-Webster Online Dictionary.2

        Despite    the     lack   of   a   definition     within    the   zoning

ordinance, the Board interpreted the term “vocational school” to

mean the following:

               The commonly accepted concept or definition
               of a vocational school is an institution
               like    Fayetteville   Technical    Community
               College where students gain career training
               through extended courses in classrooms.
               Vocational schools can have hundreds or
               thousands of students coming by car to the
               school each day. The TigerSwan facility has
               just a limited number of cars each day.

The Board also found that the training offered at the TigerSwan

facility was in the nature of “skill level improvement” – eighty

to ninety (80 – 90%) percent of the activities conducted at the

TigerSwan facility occurred outside on the firing ranges and

that     the    training    conducted      inside   the   meeting    rooms   was

incidental to the firing of pistols and rifles.                    Based on the

foregoing, the Board concluded that the TigerSwan facility did

not fall within the “vocational school” classification of the

zoning ordinance.




2
    http://www.merriam-webster.com/dictionary/
                                        -17-
       Considering    the    plain     and    ordinary    meaning   of    the    term

“vocational” school within the zoning ordinance, in light of the

intent of the ordinance, we hold that the Board’s determination

that   the   TigerSwan      facility    did    not    constitute    a    vocational

school was proper.          Uncontested evidence presented before the

Board on 10 July 2012 included testimony from Brian Searcy, the

Chief Operating Officer for TigerSwan, that ninety-five percent

(95%) of “everything that occurs on this facility is range fire,

outdoors.”       Searcy     testified        that    eighty   percent     (80%)      of

training is provided to military personnel, law enforcement, and

private security contractors “[t]o improve their current skills

that they have[.]”          One day a week, the firing range is opened

to the public for recreational shooters.                   Significantly, Searcy

explained    that    “[TigerSwan]       do[es]      not   qualify   people      to   do

jobs, [does not] give diplomas and [does not] give any degrees.

We give a certificate of training to people who attend two or

three day courses.          All we’re doing is helping improve skills

that they already have.”             Searcy agreed that at the TigerSwan

facility, people are “just practicing a skill which is firing a

weapon[.]”       Steve    Swierkowski,        who    coordinates    the    training

events    that   take     place   at     TigerSwan,       testified      that    “the
                                      -18-
majority of the activities takes place on the range” and that

“we can execute this range without the use of any classrooms.”

       Because the TigerSwan facility does not teach a skill or

trade to be pursued as a career, but rather, provides training

to existing members of a profession in order to practice and

refine their already-existing skills, we agree with the Board’s

conclusion that the training offered at the TigerSwan facility

is in the nature of skill level improvement.                      The TigerSwan

facility operates as a firing range, and not as a vocational

school,   where    students    gain   career    training    through    extended

courses in classrooms and receive diplomas or degrees so that

they are able to pursue a career.                Furthermore, because the

zoning ordinance fails to specifically prohibit the use of land

as a firing range, it is allowed as a use by right pursuant to

Section 402.       Based on the foregoing reasons, we hold that the

trial court improperly applied de novo review of the Board’s

decision and thus, erred by reversing the Board’s conclusion

that    the    TigerSwan      facility   does     not      fall    within   the

classification of a vocational school.

              B.   Evidence of the TigerSwan Facility as a

                      Recreation/Amusement Land Use
                                      -19-
    Next, respondents           challenge the trial court’s conclusion

that “in the alternative, there was no competent evidence in the

Record that could support the determination that the TigerSwan

Facility’s impacts were most similar to [recreation/amusement].”

Respondents     argue    that     there   was   competent      evidence    in    the

record to refute this conclusion.

    Because the trial court was reviewing whether the Board’s

decision that the TigerSwan facility’s impacts were most similar

to recreation/amusement, it should have applied the whole record

test.    It is well established that “[w]hile the county board

operates as the finder of fact, a reviewing superior court sits

in the posture of an appellate court and does not review the

sufficiency     of     evidence    presented     to   it    but    reviews      that

evidence presented to the town board.”                 Mann Media, Inc. v.

Randolph County Planning Bd., 356 N.C. 1, 12-13, 565 S.E.2d 9,

17 (2002) (citation and quotation marks omitted).                         “[I]f in

applying the whole record test, reasonable but conflicted views

emerge   from    the    evidence,    this    court    cannot      substitute     its

judgment for the administrative body’s decision.                  Ultimately, we

must decide whether the decision has a rational basis in the

evidence.”      Appalachian Outdoor Adver. Co. v. Town of Boone Bd.
                                      -20-
of    Adjustment,   128   N.C.     App.   137,   141,     493   S.E.2d   789,   792

(1997) (citations and quotation marks omitted).

       After thoughtful review, we hold that although the trial

court’s 23 October 2013 order indicates that it conducted review

under the whole record test, it failed to do so properly.

       A   recreation/amusement       land   use     is    defined   within     the

zoning ordinance as follows:

             An area or establishment, which requires the
             use of motors or engines for the operation
             of   equipment   or  participation  in   the
             activity.   This definition includes but is
             not limited to go-cart tracks, bicycle
             motorcross (BMX) courses and the like. This
             definition does not include golf courses
             (golf carts) or other low impact motorized
             activities or vehicles.

At the 10 July 2012 hearing before the Board, testimony was

offered by Thomas J. Lloyd, director of the Planning Department.

Mr. Lloyd testified that he had issued a memorandum dated 21

February    2012    wherein   he    had   made   a   determination       that   the

TigerSwan facility was a firing range, with the most similar

land use impacts of recreation/amusement.                 Mr. Lloyd, explaining

the    analysis     behind    his    determination,         testified     to    the

following:

             MR. LLOYD:   We looked at the affects [sic]
             of a firing range and noted what would be
             the biggest objection or the biggest problem
             with respect to health, safety and welfare
                                 -21-
           to neighboring properties and of course that
           would be any projectile leaving the firing
           range site.     Of course there are other
           aspects too including noise, lighting and
           traffic volume.   But most of all we had to
           look at the safety of the surrounding
           property.     When   you   look   at   outdoor
           recreation it addresses safety specifically
           Section 920F which talks about fencing,
           netting and other control measures and many
           times with firing ranges, the use permit,
           shall be provided around the perimeter of
           any areas used for hitting, flying, or
           throwing of objects to prevent the object
           from leaving the designated area.     The only
           thing we had in the ordinance that addressed
           objects of any kind leaving the site or
           leaving the area was outdoor recreation.
           With respect to that and that measure of any
           projectile on a firing range leaving the
           area as well as the less impact of lighting
           and   noise,   they   were   also    similarly
           addressed in outdoor recreation.

           MR. FLOWERS: Just so we are clear on this,
           when you issued that memo on February 21,
           2012, you were not saying that a firing
           range is outdoor recreation but that the
           impact is similar to outdoor recreation, is
           that right?

           MR. LLOYD:   Yes sir, which is exactly the
           way the ordinance amendment in Section 402
           read.

      Based on the foregoing evidence presented to the Board, we

hold that the trial court erred by concluding that there was “no

competent evidence” that could support the determination that

the TigerSwan facility’s land use impacts were most similar to

the   recreation/amusement   classification.   “It   is   neither   the
                                          -22-
superior    court’s      nor    this     Court’s    duty    to   second      guess    the

decision of [the Board] where there is a rational basis in the

evidence.”        Myers    Park       Homeowners    Ass’n.,      Inc.    v.    City   of

Charlotte, __ N.C. App __,              __, 747 S.E.2d 338, 344 (2013).

                                  IV.     Conclusion

    We     hold   that    the     Board    properly      approved      the    TigerSwan

facility    as    a   firing    range     with     the    land   use    impacts      most

similar      to        the           recreation/amusement           classification.

Accordingly,      because      the    trial   court      improperly     reversed      the

decision of the Board, we reverse the order of the trial court.

    Reversed.

    Judges STEPHENS and STROUD concur.
