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Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 92 of 113 from claiming in this case that you qualify for the exemption. That has had to have been heard and litigated 1 before and a decision made on it, in order for estoppel to apply. If that issue has never been raised and 2 heard by a judicial body, and decided, then estoppel isn’t applicable. So that reliance on the Marsh case 3 and the entire estoppel argument here completely fails because this is the first time that Ms. Brewer has 4 sought approval under the exemption. And I will specifically ask you to turn your attention to the Special 5 Use Agenda abstract. This is for case A2-15, heard on November 9th 2015. So what was introduced by the 6 applicants as a staff report? They’re exhibit number 8. I’ll read the relevant sections quickly. This is on page 7 8, staff comment: “That farm status of the property is completely separate and irrelevant and has no 8 bearing on this permit process or on the applicant being allowed to pursue a SUP proposing the 9 development of the land issue.” It goes on to say, “Staff comment, understands the frustration”.. This is 10 under a note that says a permanent process is irrelevant given the farm size of the property and local 11 property owners are being forced to spend money to fight the permit. Staff says, “They understand the 12 community’s frustration. From our standpoint we required the applicant, who consented, to go though the 13 SUP process as no agricultural activity currently exists on the property” and then on page 6 they illustrate 14 this point a little further where it says that “it should be noted that the staff first met with the applicant when 15 we determined the project would require the issuance of a SUP. It was during this meeting that the 16 applicant informed staff that the property was in farm status that she believed it was prudent to go through 17 with the permanent review process to ensure local concerns could be address”. The Bona fide farm 18 exemption was not ever part of this Special Use process. Again, in the Minutes page 3, this is Mr. Harvey’s 19 testimony before this Board. 20 21 Barry Katz: What’s the date of all this? 22 23 Andy Petesch: I’m sorry, these are the approved Minutes from the November 9th SUP hearing. This is Mr. 24 Harvey’s testimony on page 3 beginning at line 22. “Your charge tonight is not to review, interrupt, or make 25 a decision on this property’s status as a farm as defined by the General Statute.” A few lines later, 26 “Whether this property is or is not a farm is not material to the discussion that is about to occur. Whether or 27 not this project can be considered part of a farming operation is also not material to the discussion that is 28 about to occur.”. A few lines later, line 31, “You will be basing your decision with respect to the issuance to 29 this permit solely on the competent material evidence and sworn testimony entered into the record as to 30 whether or not this project meets the standards of the UDO.”. And then finally, on page 40 of same 31 approved Minutes, “It was our determination that we question whether or not any farm activity on the 32 property that warranted it being classified as such.” and then Mr. Hughes said, “Just the nature of that land. 33 Does it get any kind of tax break going into those issues?” But what Mr. Harvey said previously was that 34 “there is an argument that can be made that the farm can engage in agritourism activity as part of the 35 common, acceptable, everyday use of a farm parcel. When we first met with Kara we obviously indicated 36 that the information she needed to go through was a SUP process. She agreed and has further indicated 37 she has a responsibility to through that”. This is at the end of the hearing at the point where it was denied. 38 You went on to say, “Can an argument can be made that a farm can have a wedding venue as an 39 agritourism activity? The answer is yes. But I want to caution as I indicated at the onset of the meeting 40 Board of Adjustment doesn’t have to legal ability whether or not the parcel should or should not be 41 considered farm. The Board of Adjustment should not determine and comment on the appropriateness of 42 the agritourism activity being Inaudible part of the farm operation”. So it is clear from both the staff report 43 and the testimony before the Board that the consideration of that exemption was not part of that process 44 and therefore the idea of estoppel simply doesn’t apply in this case. And so the issue number one outlined 45 in their appeal must fail. I will just go over briefly the prohibition against filing after denial that was the 46 second issue that was raised. I don’t believe Ms. Brown addressed it but I will simply bring to the Board’s 47 attention section 2.2.8, which, I believe is included under tab 4 of my presentation notebook. No, it is not. 48 But hopefully I have it here. 2.2.8 discusses the effective denial and subsequent application that reads here 49