BOA agenda 121216 - Laserfiche WebLink

Browse Search

didn't know she did. But she in fact appealed the decision, did not serve a copy to Orange County, which is 1 required, and then on March 6th dismissed with prejudice the appeal. A dismissal with prejudice means that 2 you cannot take that back before the courts. You couldn’t have taken it back anyway, as appointed fact, 3 because it had not been time and perfected since it was served on Orange County. But the concept that 4 you get your day for your hearing, you've got your day before this Board , you did your best shot, you 5 presented a full hearing, your SUP was denied, you started to take it to court, and then you decided just to 6 simply reapply in violation of your UDO is not conduct that is appropriate for proceeding. The Brewers’ took 7 your time and went before you. The neighbors took their time and they came before you. You made a very 8 difficult decision on the evidence and this applicant is a estopped from erasing something on this 9 application and bringing it back to you and under the doctrine of estoppel alone I think that you can 10 determine that this application should have never been received by Orange County. Before you ever get to 11 the question about a farm and what's incidental to a farm, which I'm going to talk about in a moment. So 12 that's the first thing that I really want you to think about as you deliberate tonight on this application. Can 13 you come in, be told you need an SUP, not appeal that decision, and Mr. Petesch is going to argue that 14 that decision wasn't in writing so she didn't have to appeal it, but she knew that a decision had been made, 15 she needed to apply and she went forward with the application process. I don't think you stand on the form 16 of whether that was a written decision. She knew that was the decision and she went forward with it, came 17 before you and lost, appealed and then decided to just reapply. That should not work under your ordinance 18 and I encourage you to think about that as you are deliberating tonight. Let me go on to the second thing 19 that we need to think about tonight and that's the farm exemption, which you've heard a great deal about. 20 And we've had a lot of conversation about whether this is a farm. I have included in your materials a copy of 21 a portion of NCGS 153a-340. 153a-340 is the grant of the zoning power to counties. Under North Carolina 22 law the legislature has the zoning power. It grant's back that power to counties and to municipalities and to 23 different statutes right now. And when it granted the power to Zone to all of the counties in North Carolina in 24 1959 it contained a farm exemption. As do many states. And so what you're here looking at is what that 25 means. What does that farm exemption mean to Orange County? Why do we have a farm exemption? Let 26 me ask that question first because I want you to be thinking about that as you deliberate tonight. We have a 27 farm exemption trying to strike a balance between the need of the farmer to be able to move fairly freely in 28 a controlled zoning environment. And you balance that against the need of the county to control land use 29 and growth. And so the legislature struck a balance in thinking about that. What balance did they strike? 30 Well the balance that they struck is a nuanced balance that no one wants to talk to you about, but I'm going 31 to talk to you about it. And this is how it works. The legislature said, look there are certain things we do that 32 makes something a farm. And after some case law they actually came up and they have a little list of things 33 that make you a bona fide farm. SPG has obtained a farm number for this piece of property. Under the list 34 that made it makes it a bona fide farm. And everybody wants you to then say okay well that's all I have to 35 do. But it's not. That's step one. That's the easy step. We are not here talking about whether she has a farm 36 number. We are not talking about whether she has a forestry plan. Although I'm curious about a forestry 37 plan that keeps it all forested while we're doing everything else on the property. Be that as it may, we are 38 not here talking about whether it meets that threshold test. That threshold test is the test that causes the 39 County to say, okay I have to look beyond this, I now have to look and say does it need the farm 40 exemption? And the farm exemption is broad and I'm not going to argue that it's not broad. There is one 41 exception to the farm exemption. Zoning power still applies when the use is for a non-farm purpose. That 42 has always been the law. It is the law today. So if the use is going on, on a bona fide farm, but it is for a 43 non-farm purpose the zoning power still applies. The county has the authority to exercise its zoning power. 44 Orange County's UDO pick up that language out of the statute and it acknowledges that in the statute. The 45 affidavit that Miss Brewer signed about her farm contains the caveat that the farm exemption does not 46 apply to non-farm use. Okay, what does that mean? What that means is that when you are looking at 47 whether the farm exemption applies you have to look to see if the activity has a farming purpose. You 48 90