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1 Karen Barrows: Thank you. Why don’t we hear Andy and then inaudible. 2 3 Andy Petesch: Before I begin, would it be possible for us to have a short break? 4 5 Karen Barrows: Certainly. We’ll adjourn for 10 minutes please… Andy? 6 7 Andy Petesch: Thank you very much. I think that Ms. Brown covered a lot of ground in her arguments. It 8 still leaves a bit of a question in terms of what is this case about? It’s not about a building. First of all. It’s 9 not about judging the validity of a business plan where flaws maybe in it. No business plan at this stage at 10 its stage of its life is perfect. It’s not about trying, for this Board, to gauge the validity of any of the approvals 11 given by different agencies or government organizations with respect to qualifying as a bona fide farm. It’s 12 not about the ownership structure. Those are all out of the jurisdiction of this Board , and it doesn’t get at 13 what the real issue is here. Which is the use. Specifically, bona fide farm purposes. Now the Brewers’ have 14 started operating a farm. A bona fide farm. That’s indisputable given the 3 different pieces of evidence that 15 they have with respect to satisfying the 5 options under 153a-340. The Brewers’ made clear on their 16 building permit application, in March, which is the once that has been approved that they intended this for a 17 barn for farm and agritourism. Agriculture and agritourism related purposes. The key question, as I said, is 18 this a bona fide farm purpose? If so, the project is exempt and Mr. Harvey’s decision must be affirmed. So 19 what is the difference between a bona fide farm purpose and a non-farm purpose? There is no definition of 20 a non-farm purpose. To understand that you’ve got to look at what is a bona fide farm purpose. Looking at 21 the plain language of the statute. Looking at rules of interpretation, state policy, county policy and plans, the 22 NCGS, case law, secondary authorities such as the American Farmland Trust report and Mr. Whites’ 23 testimony and report. So turning to the specific legal arguments. First of all, with respect to some of the 24 jurisdictional issues in whether this is a final determination I think that that’s one of the aspects that this 25 Board has to look at because they have no jurisdiction over rendering advisory opinions. And looking at Mr. 26 Harvey’s email, which is the basis of this appeal, that’s on page 76 of the agenda. He states that as a result 27 of the affidavit being filed indicating the structure will be for agricultural purposes along with the building 28 permit application they have determined that no zoning approval would be required and in the future zoning 29 enforcement would be dependent on the actual use. So here we’re looking at 2 different issues: What is the 30 decision to be made right now? And what’s the decision to be made in the future as events start actually 31 happening, as the agritourism actually starts coming online and other uses that may occur on that 32 property? So I would ask the Board to look, first, at that question: What is the decision being made here, 33 right now, given the evidence that the staff has provided? Is their decision that they’re exempt from zoning 34 valid? And I would submit that it is. At this point it is absolutely valid. For you to look into the future as to 35 what activities may happen on that site would be rendering n advisory opinion as to the activities that they 36 plan to do and whether that is going to be valid in the future or not. And I would refer the Board to Supreme 37 Court’s decision. This is over 60 years of good law in North Carolina, this is Mitchell V Garfield. It’s a 38 Supreme Court case, 1950. It says here at the bottom of the first page it is to be noted that municipal 39 authorities and the General Statutes generally make applications of similar provisions applicable to 40 Counties as well have no legal power to refuse a building permit for a cause assigned, even if they had 41 grounds to believing such a cause exists, the law declares that it’s the right of the applicant to erect the 42 building for which the permit is sought as otherwise absolute. It is no ground of denial of the permit or 43 mandate to compel its issuance that the applicant intends to put a building when erected to an improper 44 use. The question as to legality of the alleged intended use must await determination and proper 45 proceedings. After such use is attempted to be made use of the building. So to try and analyze and look 46 behind and dig into facts at this stage, when it’s still being planned and worked out and evolving, is an 47 advisory decision. They have an absolute right to construct a barn on their property and what the barn 48 94