The North Carolina Court of Appeals in December upheld a Cabarrus County Zoning Board’s revocation of a building permit for a barn set inside a Waterbody Buffer Zone. At issue in the case of Arstark v. Cabarrus County (COA24-362) was whether North Carolina’s Bona Fide Farm zoning exemption (N.C.G.S. §160D-903) applies within a riparian buffer created by county ordinance. Though the court does not explore whether the parcel in question was indeed a Bona Fide Farm – as that term is now understood – the opinion does explore the intersection between federal water quality law, state and local government authority, and an agricultural land disturbance exemption. The case also illustrates that – when it comes to zoning law – the cultural maxim of “it is better to seek forgiveness than ask permission” does not apply. The “unpublished” opinion is not binding law on Superior Court review of similar disputes, but may be cited as persuasive authority in such future disputes. [citation note: all quotations come from the case]

The Facts

The landowners/purchasers contracted in 2020 to purchase a 11.5-acre subdivision from an 84-acre parcel, bordering a perennial stream shown as “a solid blue line on the (United States Geological Survey[USGS]) map.” Prior to closing, the purchasers applied for the building permit to construct a residence, and closed their purchase of the property thereafter. At some point, the purchasers constructed a “43-foot by 30-foot metal barn” without applying for a permit. Following the building of the barn, the purchasers inquired with the planning office whether the building required a permit, and were told that it did.

As it happens, in 1990 Cabarrus County applied for and received a Clean Water Act §404 permit for the construction of a dam. A condition of permit approval was that the County adopt a stream buffer ordinance. (Such mitigation is required of applicants for waterbody-disturbing activities – building of a dam to impound a waterway – to offset water quality impacts [e.g. sedimentation] caused by such projects; see Mitigation Requirements Under Section 404 [EPA, 2024]). The stream buffer ordinance contained these relevant provisions:

1. A minimum 50-foot buffer . . . from the stream bank on all sides of perennial streams[.] Perennial streams include all rivers, streams, lakes, ponds or waterbodies shown on the USGS Quadrangle Maps as a solid blue line or identified in the Cabarrus County Geographic Information System. . . . . 
2. The Waterbody Buffer Zone shall be determined and clearly delineated on site prior to any development or predevelopment activity occurring in order to protect the required buffer from encroachment or damage. No development, including soil disturbing activities or grading, shall occur within the established buffer area. . . . . 
3. All buffer areas shall remain in a natural, vegetated state. If the buffer area is wooded, it shall remain undisturbed.

The ordinance also contained the following language: “[t]he provisions of [the] Ordinance shall not affect bona fide farms…” and “North Carolina law exempts bona fide farms from local zoning regulations[.]”

Upon an inspection of the parcel after its purchase (in response to the barn permit inquiry), the zoning department determined that the barn would require a use permit. The investigating staff also expressed concern about the barn’s location in proximity to the stream (within 50 feet). The landowners applied for both a zoning compliance permit and a building permit for the new barn which they had already built. 

Some months after purchase (September), the zoning department received a “complaint” concerning the construction of the barn in the buffer zone. (The landowners received the permits around the same time as the complaint; the court opinion did not elaborate on the source of the complaint.) The complaint triggered further county planning staff inspection of the parcel, which noted further land disturbance and tree removal within the 50-foot Waterbody Buffer Zone, in addition to the new barn that (which now had permits). The inspection noted the landowners had also built some “additional structures” without permits in the buffer zone. The planning department now issued a notice of violation for constructing “an accessory structure within the required water body buffer prior to acquiring a zoning permit.” (Again: the landowners built the barn without permit, then afterwards applied and received the permit.)

The landowners appealed the notice of violation, but making no claim of “bona fide farm” exemption status in their appeal. After the appeal hearing before the Cabarrus County Planning Zoning Commission, the violations were upheld. The landowner appealed to the Cabarrus County Superior Court and upon hearing (pursuant to N.C.G.S. §160D-1402), the zoning board’s ruling was upheld. The county court concluded that the Waterbody Buffer Zone was ascertainable on maps that were presented in the zoning board hearing and that the bona fide farm exemption did not apply to the Waterbody Buffer Zone. Landowners appealed to the North Carolina Court of Appeals.

Court’s Analysis

The landowner/petitioners argued that the county superior court improperly denied their appeal of the zoning violation as the parcel should be exempt from the buffer zone as a bona fide farm; and that the ordinance is unconstitutionally vague. Petitioners also argued a procedural matter that the approved permit for the barn should have been withdrawn prior to the violation notification, and that the buffer ordinance did not include an officially adopted map.

The Bona Fide Farm. As an element of counties’ environmental law-making authority, N.C.G.S §903-920 allows that counties may “adopt and enforce local ordinances . . . to the extent necessary to comply with State and federal law, rules, and regulations or permits consistent with the interpretations and directions of the State or federal agency issuing the permit[.]” (emphasis added) Yet another statute [§143-214.23A(b)] grants to a county the authority to establish riparian buffer areas, such as the one at issue in the dispute. However, that authority – to pass the riparian buffer ordinance – is also limited to the point where the ordinance “exceeds riparian buffer requirements necessary to comply with or implement federal or State law or a condition of a permit, certificate, or other approval issued by a federal or State agency.” (emphasis in original)

The concept of the bona fide farm has been a traditional exemption for working farms from a county’s ordinance authority (e.g. zoning). Some years back, the NC General Assembly tied this exemption status to objective evidence of commercial production (see N.C.G.S. §160D-903). (The bona fide farm exemption is explained further in this fact sheet.)

Noting that the Cabarrus County stream buffer ordinance itself contained an exemption for “bona fide farms” (noted above), the Court of Appeals nonetheless reasoned that the county was without authority to allow such an exemption in its stream buffer ordinance. In the Court’s words: “[T]he County lacks the power to enact an ordinance that would modify or dispense with the riparian buffer area required by the Permit, because the County may enforce the Ordinance only ‘to the extent necessary’ to comply with the Permit.” In other words: the statute that authorizes a county to establish a stream buffer expressly states that if such buffer is being implemented as a condition in a federal permit, the language of the federal permit controls; lacking an exception for bona fide farms in the 404 permits buffer requirements, the county could not invent its own authority to exempt bona fide farms from the buffer restrictions. 

[Having reached its conclusion, the Court declined to address whether the parcel met the requirements of a bona fide farm.]

Unconstitutional Vagueness. The petitioners also argued that the stream buffer ordinance was unconstitutionally vague. The Court wrote that – from the lower court record – it was not clear whether the petitioners argued that the ordinance was unconstitutional on its face, or unconstitutional as applied to them (e.g. as a violation of due process or other property right). Not noted in the facts above, it appears that the petitioners knew as early as April 2020 – during their purchase due diligence period – that a zoning compliance permit was required to build a barn. [What the court does not address is the nature of the bona fide farm exemption: that apparently even if a bona fide farm status is proven, a parcel owner still may be required to obtain a permit to build a structure, which the county may not deny because of the bona fide farm exemption.] Even after being made aware of the stream buffer set back, the petitioners apparently continued grading and tree removal within the buffer. In the end, the Court determined that – given such advance awareness and thus no lack of due process – the ordinance is “constitutional as applied” to the landowners in this particular case. As such, the language of the ordinance cannot be considered facially vague because the “as applied” case has provided an example of the context in which such an ordinance may be applied, so it is not vague on its face. (citing Letendre v. Currituck Cnty., 259 N.C. App. 512, 534–35, 817 S.E.2d 73, 89 [2018]) (The rule of that case: “A statute is unconstitutionally vague if it . . . fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”)

The Lack of Permit Withdrawal. As to petitioners’ argument about not repealing the permit before issuing a violation notice, the Court found no authority to suggest the County was required to first revoke the permit, and also reasoning that the permit itself stated that the County could still enforce zoning violations (i.e. the buffer setback violations).

The Lack of a Map in the Ordinance. Here, the petitioners argued that the stream buffer ordinance must contain a map in compliance with state statute which states: “Zoning district boundaries adopted pursuant to this Chapter shall be drawn on a map that is adopted or incorporated. . . . The maps may be in paper or a digital format approved by the local government.” (N.C. Gen. Stat. § 160D-105[a]). To this, the Court noted that the ordinance contained the following: “Perennial streams include all rivers, streams, lakes, ponds or waterbodies as shown on the USGS Quadrangle Maps as a solid blue line or identified in the Cabarrus County Geographic Information System.” The Court interpreted this language to refer to a “digital format” that was readily available in USGS quadrangle map, which is available online.

The Takeaway

The principle of this state appeals court decision is not that federal environmental law constitutionally preempts state law (which is likely outside this court’s jurisdiction to decide); rather, the decision is an affirmation of state statutory deference – in its grant of local law-making (ordinance) authority – to federal environmental law (and federal agency interpretation of mitigation measures to ensure water quality protection). That said, decision is a de facto recognition that federal clean water mitigation decisions (via project permits) are controlling on local land use.

Paraphrasing the Court’s reasoning, federal water quality protection policy – as expressed through the Clean Water Act §404 permit’s legal requirements for the dam construction mitigation (the permit presumably issued by the federal Army Corps of Engineers) – effectively preempted the state’s grant of authority to local government, by way of a state limitation that defers to federal agency decisions on measures sufficient to achieve federal water quality protection in the face of local land use exemptions. The §404 permit dictated that the Waterbody Buffer Zone ordinance require a 50 foot buffer on all USGS blueline streams, that in the Corps’ interpretation (perhaps coming from a procedurally approved manual), would serve as an effective mitigation measure against water quality disturbance caused by the dam project in that watershed. The Corps’ interpretation of its clean water protection mandate, expressed in the permit, contained no language that would allow the county (as an extension of state policy and resulting authority) to exempt land disturbances within the buffer, without qualification. The bona fide farm building use permission, perhaps itself an expression of state policy to reduce local interference to farm production, was secondary to federal water quality protection policy.

It is worth noting that when the ordinance was passed in 1990, the term “bona fide farm” did not have an objective definition as it does now in 160D-903. The expression in 1990 was an undefined term employed in zoning codes to describe without detail the allowable uses within “RA Rural Agricultural Districts” of a county’s uniform development ordinance (zoning plan). The term proved susceptible to subjective interpretation by local authorities of what passed for a legitimate farm enterprise, based more on traditional notions of farm production and as described in state statutory definition of the time.