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Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 86 of 113 plans because I think the Loft got a little bit bigger. But basically what was ultimately granted a building 1 permit is ultimately the same set of plans that you reviewed and that you denied a SUP. Under the Orange 2 County UDO there is a provision of the UDO that prohibits you from filing an application for the same or 3 similar project for at least one year after denial. What happened here is that you denied this project and 4 within a couple of months you had a building permit application back before the county that Mr. Harvey 5 reviewed and still felt required a special use permit in January. Undeterred you have a property owner that 6 goes on forward with permits, with NCDOT and applying and then comes back and changes a couple more 7 words, adds some information which purports that the wedding venue is no longer the chief purpose of the 8 very design we looked at for wedding venue, and moves forward. I believe under the holding in the Marsh 9 case in the spirit of the Marsh case and under the provisions of 2.2.7 and 2.2.8 of the UDO this property 10 owner is estopped from proceeding with this building within the application. She went through the special 11 use permit process and she was denied. When I filed the original appeal what I said to you in the appeal 12 was that she did not appeal your decision. I was wrong. I didn't know she did because Orange County 13 didn't know she did. But she in fact appealed the decision, did not serve a copy to Orange County, which is 14 required, and then on March 6th dismissed with prejudice the appeal. A dismissal with prejudice means that 15 you cannot take that back before the courts. You couldn’t have taken it back anyway, as appointed fact, 16 because it had not been time and perfected since it was served on Orange County. But the concept that 17 you get your day for your hearing, you've got your day before this Board , you did your best shot, you 18 presented a full hearing, your SUP was denied, you started to take it to court, and then you decided just to 19 simply reapply in violation of your UDO is not conduct that is appropriate for proceeding. The Brewers’ took 20 your time and went before you. The neighbors took their time and they came before you. You made a very 21 difficult decision on the evidence and this applicant is a estopped from erasing something on this 22 application and bringing it back to you and under the doctrine of estoppel alone I think that you can 23 determine that this application should have never been received by Orange County. Before you ever get to 24 the question about a farm and what's incidental to a farm, which I'm going to talk about in a moment. So 25 that's the first thing that I really want you to think about as you deliberate tonight on this application. Can 26 you come in, be told you need an SUP, not appeal that decision, and Mr. Petesch is going to argue that 27 that decision wasn't in writing so she didn't have to appeal it, but she knew that a decision had been made, 28 she needed to apply and she went forward with the application process. I don't think you stand on the form 29 of whether that was a written decision. She knew that was the decision and she went forward with it, came 30 before you and lost, appealed and then decided to just reapply. That should not work under your ordinance 31 and I encourage you to think about that as you are deliberating tonight. Let me go on to the second thing 32 that we need to think about tonight and that's the farm exemption, which you've heard a great deal about. 33 And we've had a lot of conversation about whether this is a farm. I have included in your materials a copy of 34 a portion of NCGS 153a-340. 153a-340 is the grant of the zoning power to counties. Under North Carolina 35 law the legislature has the zoning power. It grant's back that power to counties and to municipalities and to 36 different statutes right now. And when it granted the power to Zone to all of the counties in North Carolina in 37 1959 it contained a farm exemption. As do many states. And so what you're here looking at is what that 38 means. What does that farm exemption mean to Orange County? Why do we have a farm exemption? Let 39 me ask that question first because I want you to be thinking about that as you deliberate tonight. We have a 40 farm exemption trying to strike a balance between the need of the farmer to be able to move fairly freely in 41 a controlled zoning environment. And you balance that against the need of the county to control land use 42 and growth. And so the legislature struck a balance in thinking about that. What balance did they strike? 43 Well the balance that they struck is a nuanced balance that no one wants to talk to you about, but I'm going 44 to talk to you about it. And this is how it works. The legislature said, look there are certain things we do that 45 makes something a farm. And after some case law they actually came up and they have a little list of things 46 that make you a bona fide farm. SPG has obtained a farm number for this piece of property. Under the list 47 that made it makes it a bona fide farm. And everybody wants you to then say okay well that's all I have to 48 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 49