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

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10 1 farming activities. Some states, including North Carolina, authorize agritourism activities 2 without requiring traditional farming activities so long as same are conducted on a parcel or 3 parcels that qualify as a bona fide farm. 4 Some of the many activities recognized by the State of North Carolina as agritourism include 5 but are not limited to: 6 • Barnyard Animals, Fiber Animals, Farm Riding Trails, Walking Trails 7 • Camping, Bird Watching, Fishing, Hunting 8 • Farm Bed & Breakfasts, Country Cabins, Retreats, Parties, Weddings, Honeymoons 9 • Hay Rides, Mazes, Pumpkin Patches, Quilt Barns, Farm Craft Events 10 • Historic Farms, Reunions, Museums, Holiday Farms, Christmas Trees 11 • Pick Your Own Farms, Farm Roadside Stands, Nurseries, Flowers , Picnics 12 • School Field Trips, Summer Camps, Farm Vacations 13 • Slow Food, Dining, Vineyards, Wineries 14 Due to the broad authority for bona fide farms to host agritourism activities it has become 15 increasingly difficult for local governments to distinguish, and thus prohibit, non-agricultural 16 commercial activities from agritourism activities. In fact, local governments are specifically 17 prohibited by Article 18, Chapter 153A of the North Carolina General Statutes from enforcing 18 zoning regulations on properties that qualify as bona fide farms. 19 20 LEGISLATIVE PREEMPTION AND LOCAL RESTRICTIONS 21 Since approximately 2011 the North Carolina legislature has consistently expanded the 22 authority of bona fide farm properties and agricultural operations to engage in activities that, 23 while beneficial to the farm, have either been traditionally located in more urban or suburban 24 environments or typically require a heightened/public review and approval process. The State 25 legislature has even decided to punish local governments that attempt to enforce zoning and 26 development ordinances against uses or activities occurring on bona fide farms by giving courts 27 the authority to require the local governments to pay all the costs and the property owner's 28 attorneys' fees resulting from the enforcement action. This could result in local governments 29 facing hundreds of thousands of dollars in unbudgeted costs for enforcement actions that aren't 30 clearly and specifically supported by law. 31 In recent years North Carolina Courts have followed a similar path that restricts local 32 government authority particularly with regard to property rights. A prime example of this is the 33 case of Byrd v Franklin County, 765 S.E.2d 805 (2014) in which the Court held "Zoning 34 regulations are in derogation of common law rights and they cannot be construed to include or 35 exclude by implication that which is not clearly [within] their express terms. It has been held that 36 well-founded doubts as to the meaning of obscure provisions of a Zoning Ordinance should be 37 resolved in favor of the free use of property." 38 Session Law 2017-108 changed the law related to agritourism and also local authority by 39 adding new language to the laws related to agriculture and amending the definition of 40 agritourism. On a positive note, the law removed language that was most easily subject to 41 abuse, that being that a property with a Federal Farm Identification Number as issued by the 42 US Department of Agriculture automatically qualifies as a bona fide farm. 43 44 The new law exempts from local regulation farm buildings used for agritourism purposes if the 45 operation is on a property that "(i) is owned by a person who holds a qualifying farmer sales tax 46 exemption certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a) or(ii) 47 is enrolled in the present-use value program pursuant to G.S. 105-277.3." This language has 48 the effect of exempting from local regulation large buildings if they are situated on a farm and 49 the owner meets either of these two qualifications. 50