Minutes 09-11-2017 - Laserfiche WebLink

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3 • NC General Statute 153A-340 prohibits local governments from applying zoning regulations to bona fide farms and bona fide farm purposes including agriculture • NC Session Law 2017-108 clarified what constitutes a bona fide farm • General Statute 106-581.1 includes agritourism within the definition of agriculture • NC Session Law 2017-108—Bona fide farm status may be proved by the production of o A farm sales tax exemption certificate issued by the Department of Revenue. o A copy of the property tax listing showing that the property is eligible for participation in the present use value program pursuant to G.S. 105-277.3. o A copy of the farm owner's or operator's Schedule F from the owner's or operator's most recent federal income tax return. o A forest management plan. • By statute, production of any of these items is sufficient evidence to prove a property is used for farm purposes. However, a property owner may also produce evidence outside statutory requirements to demonstrate farm purposes. • LeByrd v Franklin County, 765 S.E.2d 805 (2014) "Zoning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly [within] their express terms. It has been held that well-founded doubts as to the meaning of obscure provisions of a Zoning Ordinance should be resolved in favor of the free use of property." • Penalties for application of zoning ordinances against exempt property • Court Costs • Award of Attorneys fees. NCGS 6-21.7. (From the School of Government) o If a court finds that a city or county has acted outside the scope of its authority but did not abuse its discretion, the award of attorneys' fees and costs is up to the discretion of the trial judge. o A mandatory award is triggered only if the trial court makes a separate finding of abuse of discretion. o A finding of abuse of discretion appears to involve consideration of whether the city or county made a reasoned decision, factoring in how the decision was made and the circumstances surrounding it. But it cannot be based solely on the fact that the unlawful action was taken. • Damages- In addition to the potential responsibility for attorneys' fees and court costs there is the possibility of responsibility for other penalties such as money damages for lost income and business opportunities. Sovereign immunity may apply. Legal Issues Conclusion • For the past 5-6 years the legislature has repeatedly expanded the breadth of the agritourism exemption from local zoning authority • The Courts also view zoning authority to be subservient to the free use of property • There are serious penalties to local governments for exceeding the scope of their authority • Local governments must exercise great care in balancing the rights of property owners and the rights of neighboring property owners while acknowledging state law favors the free use of property Commissioner Marcoplos asked if there is a specific process for the present use value program. John Roberts said there is a statutory list of the exact means of qualification.