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Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 88 of 113 “Well, wait a minute. You’re selling dirt, that’s not farming”. That’s incidental. That was a one-time thing; you 1 sold it. That’s what incidental means. It makes sense. It makes common sense. North inaudible County 2 neighbors for a rural life inaudible County is the other side of the corn. There, we have a biodiesel 3 production operation. The courts said no. Even if you’re using farm equipment to do that that is an industrial 4 use. I think you were handed, and I have included in your packet, was a copy of NCGS I9e-30 and 31. 5 That’s not a statute that is cited in 153a. It’s not the statute that the legislature sent you back to find the 6 definition of agritourism or farming or anything else. What that statute is is part of the legislation. There’s a 7 section in the statutes for special liability protection. And one of the special liability protections that is 8 offered in North Carolina is a special liability protection for agritourism. And so that statute has been 9 provided to you to say, “Look, see”. Agritourism is a kind of farming. Well let’s look at that statute more 10 carefully. It defines agritourism as any activity carried out on a farm or ranch that allowed members of the 11 general public for recreational, entertainment, or educational purposes to view or enjoy rural activities 12 including farming, ranching, historic cultural, harvest you own activities, or attractions. And you’re going to 13 have that read back to you to say, “See, we do that”. What else does that statute say? That statute then 14 goes on because this is a liability statute. They’re not trying to define for you for your purposes tonight what 15 agritourism means but, they’re trying to define it in order to say when you get liability protection. And if you 16 read on in the statute, which is in your packet in the notebook, it talks about inherent risks. And it defines 17 inherent risks and damages or hazards that are an interval part of an agritourism activity such as the 18 natural conditions of land, vegetation, and water, the behavior of wild or domestic animals, and the ordinary 19 dangers of structures or equipment ordinarily used in farming or ranching operations. In other words, within 20 this statute the legislature continues to pick up the concept that the activity has to be incidental to an 21 agricultural operation and incidental to what the agricultural activity requires. If there is no agricultural 22 activity that leads the way you don’t have agritourism, you have tourism. There’s nothing wrong with 23 tourism. But it’s not exempt from zoning. Let me speak to you once more about the North Iredale Case. I 24 mentioned it a moment ago and said I would come back to it. It’s instructive here as well. A farming 25 operation there required 100,000 gallons of biodiesel fuel per year. If they had added an industrial process 26 to produce the biodiesel fuel for their farm then maybe that would be incidental. However, they decided that 27 instead of producing 100,000 gallons they would produce 500,000 per year. And the courts said, “No, no. 28 That’s not related to the farm use. It’s not incidental to the farm use. You are now manufacturing bio diesel”. 29 I would submit to you that the concept here is really the same. If you build a facility that’s large enough to 30 accommodate your wedding planning business, if you build a facility that’s large enough to park a wedding 31 for 250 people, you build a full size service road, you give DOT figures for an event center in order to 32 determine your traffic counts then you’re really like the biodiesel farm. You’ve built a facility for a wedding 33 purpose. And you may incidentally stick some chestnuts in it from time to time. It’s the tail wagging the dog. 34 It’s not the way the statute is designed to work. It’s not the way it does work. There are other cases in the 35 packets that I won’t dwell on. The Balkum case and the Steadman case are both cases involving flowers. 36 And they were cases that looked at whether… Steadman, for example, looked at whether a driveway for 37 large trucks that was needed to take the plants in and out was for farming purposes. And the courts said, 38 “Well yeah, if that’s what you’ve got to have to take the plants in and out that road makes sense.” But if 39 your road doesn’t make sense but to accommodate your wedding guests then, again, it’s a different test. 40 And I think that all of these cases really help up see how the courts have looked at when activity is 41 essential or important to or incidental to the farming activity. All of these cases repeat the premise that the 42 non-farm use is never exempt from zoning. Another thing that I find interesting in the North Iredale case 43 that I simply want to point out to you that in that case the land owner had sought and received a re-zoning 44 and had gotten a conditional use permit and then claimed an exemption. The court admonished the land 45 over in the opinion that the new characterization offered by the landowner really undermined the exemption 46 claim. In other words, the court looked at what this land owner had done within the County and said, “Well, 47 you called this something else and now you’re doing the same thing and calling it a farming operation and 48 we’re not buying into that”. So as you begin to make your decision tonight the reason that I believe you 49