Appeals Court renews decision against 141-lot Durham subdivision

The North Carolina Court of Appeals has ruled for a second time against a proposed 141-lot Durham subdivision. The split 2-1 decision arrived six months after the court pulled its original opinion in the case Barefoot v. Durham County.

Neighbors of the proposed Mason Farms project argued that the county failed to follow its rules for approving a “conservation subdivision.”

“Plaintiffs contend that Section 6.2.4A establishes twelve requirements, each of which must be met for a conservation subdivision to be approved,” wrote Judge Donna Stroud on Wednesday for the Appeals Court majority. “As the site plan only met six of the twelve requirements, Plaintiffs argue the Board’s approval was erroneous, and the trial court erred in granting summary judgment for the County. Plaintiffs assert the trial court’s ruling should be reversed because they are entitled to summary judgment on all their claims — that the Board’s decision to approve the site plan was void, as well as arbitrary, capricious, and ultra vires. We agree.”

An action that is “ultra vires” is beyond the government agency’s power or authority.

Stroud also wrote the Appeals Court’s original August 2025 decision against Durham County. Judge Michael Stading joined her in 2025 and again Wednesday in making up the three-judge panel’s majority. Both are Republicans.

Judge Allegra Collins, a Democrat, dissented for a second time.

“The enumerated purposes do not impose, and were not intended to impose, twelve specific requirements on each and every conservation subdivision,” Collins wrote.

“It is doubtful, and more likely impossible, that any project could encompass all of these scenarios simultaneously,” the dissent added. “The majority’s reasoning effectively renders a conservation subdivision under the Ordinance impossible – something the Ordinance drafters surely did not intend.”

A Sept. 8 court order pulled back the Appeals Court’s original ruling in the case. “This cause is retained by this Court for disposition by the panel to which it is assigned,” according to the order.

Durham County had filed motions on Sept. 4 seeking to stay the original ruling and to have the full 15-member Appeals Court reconsider the case. Appellate judges dismissed both of those motions on Sept. 9 after withdrawing the original decision.

The original split 2-1 decision in August 2025 reversed a trial judge’s ruling favoring the county over six neighbors of the Mason Farms project.

“Because the trial court’s order fails to comply with the plain language in Defendant’s unified development ordinance (‘UDO’), and because Plaintiffs are entitled to attorneys’ fees, we reverse and remand,” Stroud wrote in 2025 for the appellate panel’s majority.

Mason Farms was proposed as a “conservation subdivision,” a type of project Durham County added to its UDO in 2006 under Section 6.2.4. “An alternative to conventional subdivisions, a conservation subdivision allows for clustered development, higher residential density, and flexible lot sizes to protect larger, undeveloped spaces,” Stroud wrote.

Durham County commissioners approved the Mason Farms plan in November 2022. The six plaintiffs filed suit one month later.

“Plaintiffs sought a declaratory judgment that the approval of the site plan was void because the Board failed to comply with the requirements of the UDO,” Stroud wrote. “Specifically, Plaintiffs argued the site plan failed to meet all twelve of the stated purposes in Section 6.2.4A, so the Board’s approval was ultra vires and arbitrary and capricious.”

County officials responded that “approval of a conservation subdivision did not mandate all twelve purposes be fulfilled,” Stroud explained. “Instead, the County argued the ‘actual requirements’ were found in subsequent sections and as these requirements were met, the Board properly approved the site plan.”

A trial judge ruled for the county and against the neighbors in August 2023.

“Both Plaintiffs and the County acknowledge that the outcome hinges upon appropriately interpreting and applying Section 6.2.4A,” Stroud wrote. It states a conservation subdivision “shall be established” for 12 purposes. They include promoting “environmentally sensitive and efficient uses of the land,” preserving unique natural resources, preserving important historic sites, and reducing erosion and sedimentation.

“Plaintiffs contend that Section 6.2.4A establishes twelve requirements, each of which must be met for a conservation subdivision to be approved,” Stroud wrote. “As the site plan only met six of the twelve requirements, Plaintiffs argue the Board’s approval was erroneous, and the trial court erred in granting summary judgment for the County.”

“Plaintiffs assert the trial court’s ruling should be reversed because they are entitled to summary judgment on all their claims — that the Board’s decision to approve the site plan was void, as well as arbitrary, capricious, and ultra vires. We agree,” Stroud added.

The plaintiffs and county officials disagreed about the importance of the word “shall” when discussing the purposes of a conservation subdivision.

“[T]o arrive at the County’s preferred interpretation that the requirements of Section 6.2.4A are mere suggestions, we would need to do the very thing the County disclaims: analyze Section 6.2.4A in a vacuum and not within the full context of the UDO,” Stroud wrote. “Moreover, we would have to ignore the plain language within Section 6.2.4A and construe the use of ‘shall’ to actually mean ‘may,’ which we cannot do.”

“Despite the plain language requiring a conservation subdivision to meet all twelve purposes in Section 6.2.4A, the Board approved the Mason Farms site plan that met only six. The County contends this is in line with the past application of the UDO: none of the fifteen conservation subdivisions approved since 2006 have satisfied all twelve purposes,” the majority opinion noted.

“Although the County, and our dissenting colleague, would contend that it is absurd to interpret the UDO to require conservation subdivisions to meet all twelve of the listed purposes — even if that is what the plain language of the UDO requires — absurdity is often in the eye of the beholder,” Stroud wrote.

“Plaintiffs note that the UDO grants conservation subdivisions additional benefits not allowed for conventional subdivisions, such as higher residential density, clustering of homes, flexibility of lot sizes, and mass grading. Logically, in exchange for the additional benefits, the UDO also imposes additional requirements on conservation subdivisions. Thus, Plaintiffs contend it would be ‘illogical and absurd’ to ignore the plain language of the UDO and to interpret the UDO to allow the development of conservation subdivisions with fewer restrictions than conventional subdivisions,” her opinion continued.

“Ultimately, the argument of absurdity comes down to the parties’ dispute over the policy choices made by the County in adopting the UDO provisions governing conservation subdivisions, so we must apply the UDO as written,” Stroud added.

“The County is always free to make new policy choices by amending the UDO,” she explained. Amendments in 2024 removed the “shall” and explained that future conservation subdivisions would not have to meet all 12 requirements.

Stroud and Stading rejected Durham County’s argument that the 2024 amendments clarified the ordinance’s existing requirements.

“Despite the County’s past practice or repeated assertions as to what Section 6.2.4A was supposed to do, the plain language in Section 6.2.4A — that a conservation subdivision ‘shall be established’ for twelve enumerated purposes joined with ‘and’— unambiguously required a conservation subdivision to meet all twelve purposes. Because the site plan for Mason Farms did not, the Board’s approval was erroneous,” Stroud wrote.

“Appeals Court renews decision against 141-lot Durham subdivision” was originally published on www.carolinajournal.com.