Agenda - 10-03-2017 - 8-a - Minutes

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3 1 • NC Session Law 2017-108 clarified what constitutes a bona fide farm 2 • General Statute 106-581.1 includes agritourism within the definition of agriculture 3 • NC Session Law 2017-108—Bona fide farm status may be proved by the production of 4 o A farm sales tax exemption certificate issued by the Department of Revenue. 5 o A copy of the property tax listing showing that the property is eligible for 6 participation in the present use value program pursuant to G.S. 105-277.3. 7 o A copy of the farm owner's or operator's Schedule F from the owner's or 8 operator's most recent federal income tax return. 9 o A forest management plan. 10 • By statute, production of any of these items is sufficient evidence to prove a property is 11 used for farm purposes. However, a property owner may also produce evidence outside 12 statutory requirements to demonstrate farm purposes. 13 14 • LeByrd v Franklin County, 765 S.E.2d 805 (2014) "Zoning regulations are in derogation 15 of common law rights and they cannot be construed to include or exclude by implication 16 that which is not clearly [within] their express terms. It has been held that well-founded 17 doubts as to the meaning of obscure provisions of a Zoning Ordinance should be 18 resolved in favor of the free use of property." 19 • Penalties for application of zoning ordinances against exempt property 20 • Court Costs 21 • Award of Attorneys fees. NCGS 6-21.7. (From the School of Government) 22 o If a court finds that a city or county has acted outside the scope of its authority 23 but did not abuse its discretion, the award of attorneys' fees and costs is up to 24 the discretion of the trial judge. 25 o A mandatory award is triggered only if the trial court makes a separate finding of 26 abuse of discretion. 27 o A finding of abuse of discretion appears to involve consideration of whether the 28 city or county made a reasoned decision, factoring in how the decision was 29 made and the circumstances surrounding it. But it cannot be based solely on the 30 fact that the unlawful action was taken. 31 • Damages- In addition to the potential responsibility for attorneys' fees and court costs 32 there is the possibility of responsibility for other penalties such as money damages for 33 lost income and business opportunities. Sovereign immunity may apply. 34 35 Legal Issues Conclusion 36 • For the past 5-6 years the legislature has repeatedly expanded the breadth of the 37 agritourism exemption from local zoning authority 38 • The Courts also view zoning authority to be subservient to the free use of property 39 • There are serious penalties to local governments for exceeding the scope of their 40 authority 41 • Local governments must exercise great care in balancing the rights of property owners 42 and the rights of neighboring property owners while acknowledging state law favors the 43 free use of property 44 45 Commissioner Marcoplos asked if there is a specific process for the present use value 46 program. 47 John Roberts said there is a statutory list of the exact means of qualification. 48 Commissioner Price asked if John Roberts could identify from where the list of items on 49 the Department of Agriculture slide came.