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Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 87 of 113 number. We are not talking about whether she has a forestry plan. Although I'm curious about a forestry 1 plan that keeps it all forested while we're doing everything else on the property. Be that as it may, we are 2 not here talking about whether it meets that threshold test. That threshold test is the test that causes the 3 County to say, okay I have to look beyond this, I now have to look and say does it need the farm 4 exemption? And the farm exemption is broad and I'm not going to argue that it's not broad. There is one 5 exception to the farm exemption. Zoning power still applies when the use is for a non-farm purpose. That 6 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 7 non-farm purpose the zoning power still applies. The county has the authority to exercise its zoning power. 8 Orange County's UDO pick up that language out of the statute and it acknowledges that in the statute. The 9 affidavit that Miss Brewer signed about her farm contains the caveat that the farm exemption does not 10 apply to non-farm use. Okay, what does that mean? What that means is that when you are looking at 11 whether the farm exemption applies you have to look to see if the activity has a farming purpose. You 12 cannot rely alone on whether there's farming activity going on, but is the use that is proposed for a non-13 farm purpose? I've provided you several cases. I'm going to talk about a few of them here. One of them I'd 14 like to point out now is the case called Ball B. Rooter, Randolph County, in your materials. In the Ball case 15 the person who own the property was using farm equipment to till petroleum-contaminated soil. And the 16 court looked at that and said, well you know there's a farm there and that's where equipment and it's 17 making some money for the farm, but it is a non-farm used because it was really soil remediation. It was 18 not farming. What the ball case tells us is twofold. Number one is just because it is happening on the farm 19 does not mean that it is a farm purpose. And number two, the courts have demonstrated that we need to 20 look behind the use to be sure that the use is not a use for a non-farm purpose. That then causes you to 21 ask the question of what is a farm purpose? You look at 150a-340 and it talks about activities related to and 22 incidental to the production of agricultural products. Is the activity related to and incidental to production of 23 agricultural products? This statute then incorporates the definition of agricultural in NCGS 106-581.1. I've 24 given you a copy of that as well. That statute makes clear it has a litany of things that constitute farm 25 purposes. But if you read it all the way through that statute also says those things are farm purposes when 26 they are related to or incidental to a bona fide farm purpose. One of those things is agritourism. What does 27 it mean to be related to or incidental to? Well the dictionary definition, which you use of your capacity as 28 interpreters of this statute, is it happens as a minor part or as a result of something else. So in the context 29 of the statute the activity that is claimed to be exempt must be a minor part. Let me say that again. It must 30 be a minor part or directly related to the exempt farm purpose. If not it falls under the zoning regulations. It 31 falls under the zoning regulations that an event center in Orange County in the AR zone must have the 32 special use permit. You will recall just a moment ago facts not listed in my findings of facts that I had asked 33 Ms. Brewer on the 10th how many square feet of this 4,600 and some odd square foot structure were 34 needed to store any of her farm products and in your findings of fact indicate that she couldn't answer that 35 question as to flowers, or as to chestnut flour, or chestnuts. She couldn't answer as to equipment. She 36 couldn't tell us what she was going to do with the equipment and the flour in order to keep her promise to 37 brides that she had a full run of the farm. Mr. Brewer tonight answered the question about the machine. Let 38 me go back to my note. He indicated that the machine that we need to do store in this 4600 square foot 39 barn would be possibly 5 feet by 5 feet. Just going to stick in the kitchen. With the caterers. Who may or 40 may not be in the kitchen. A 4,600 square foot barn, with a septic system designed to accommodate 250 41 people 3 days a week, with a parking lot designed to accommodate 125 cars, with a service entrance 42 identified in the plans for things like caterers and florists is not a barn that was built for farm purposes. 43 We’re not going to clean out the barn and have an occasional wedding. We're going to clean out the farm 44 all the time to have a wedding event center. It is not incidental. A couple of the other cases I’ve included in 45 your packet; there’s a case called County of Durham V Robert. This case is instructed as is the next one 46 I’m going to speak about because in County of Durham V Roberts there was a one time sale of excavated 47 soil incidental to improving pasture land and expanding the farm. This is somebody who had a horse farm. 48 They flattened it, they dug the pond, and they took the dirt, and they sold it. The Durham County said, 49