BOA minutes 101016 - Laserfiche WebLink

Browse Search

Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 93 of 113 that if the Board Of County Commissioners denies an application or the application is withdrawn 1 subsequent to notice of the public hearing thereon. Neither of those things happened in this case. This was 2 a Board of Adjustment that ruled on the application, denied the application for the SUP, and the 3 application was not withdrawn. No application can be filed for the following year. North Carolina case law is 4 clear that local governments are required to follow the procedural requirements of their ordinances. And in 5 this case the plain language of this ordinance that that only applies to denials by the Board Of County 6 Commissioners or when it’s withdrawn after the public hearing’s been noticed and 168-388a clearly 7 indicates despite the appeals indication that the Board Of County Commissioners simply has their authority 8 delegated inaudible Class B SUP from the Board Of County Commissioners. It’s actually the opposite. 9 That authority is granted to the Board of Adjustment by statute if one is created and it specifically says the 10 ordinance may designate a Planning Board or governing Board to perform any of the duties of a Board of 11 Adjustment in addition to its other duties and designate specialized Boards to hear technical appeals. So 12 that’s not a delegated responsibility that can somehow fit under the heading of the Board Of County 13 Commissioners. Now moving on to the key issue here, as I addressed before, of what is the use here? How 14 do we define the use? We’ve already talked about this jurisdictional issue looking too far into the future. 15 You would be rendering an advisory opinion as to the uses there. One thing I do want to not and I’ll get into 16 this quickly; none of the cases that Ms. Brown relied on in her argument dealt with agritourism. They dealt 17 with bona fide farm issues but did not deal with agritourism and that makes a difference once you look into 18 the definitions and we’ll get into those definitions in just a moment. So again we’ve gone through the claim 19 in the email. The question is they determined that these activities that are proposed based on the affidavit 20 and the building permit application are exempt. And the staff themselves, under tab 10 of my notebook, has 21 created a very helpful brochure that really gives a great outline for doing the analysis that’s required here. 22 And I’ve tried to outline in some different colors here to kind of move from step one to step two to step 23 three. Step one is simply just deciding if you’re a bona fide farm. And again we talk about those 5 factors 24 that are sufficient evidence to show bona fide farm. Ms. Brewer’s presented 3 of those. Those are under 25 tab 17. Interestingly it goes on to say, “ Does the County have the right to question or reject any of these 26 methods?” and the answer is a resounding no. State law does not give local governments the authority to 27 question, interpret, or challenge the evidence submitted substantiating a parcel of property as a farm. And it 28 also states, and this is part of 153a-340, please note a farm operation can include multiple parcels of 29 property that are either adjacent to or separate from one another. They don’t even have to be in the same 30 County. Which is part of the analysis here in terms of the scope of the operation. The Caswell County 31 property is included in that as if this is one operation, in one place. The second step here addresses the 32 non-farm versus the bona fide farm purposes. Do farms have to comply with any plan use regulations? 33 Generally, no. These are broad exemptions but any number of uses and activities on a property that is 34 otherwise used for bona fide farm purposes may be regulated and restricted by the County. There’s some 35 examples given: commercial activities unrelated and adding no value to a bona fide farm activity, purely 36 recreational and/or cultural activities unrelated and adding no value to a bona fide farm activity. Those 37 could be subject to County regulation. And then it references the definitions of farm activities. Bona Fide 38 farm purposes include the production and activities relating to or… And this is where it was cleared during 39 Ms. Brown’s arguments. She focused almost entirely on that word incidental. But that is not relating to “and 40 incidental”. It is relating to “Or incidental”. So if it’s relating to it doesn’t matter if it’s incidental or not. That’s 41 an either one qualifies, not… This is the language and this is under tab 1 of my notebook. 153a-340 42 subsection b2: Bona fide farm purposes include the production and activities relating to or incidental to the 43 production of crops, grains, fruits, vegetables, ornamental and flowering plant, dairy, livestock, poultry, and 44 all other forms of agriculture as defined in 106-581.1 subsection 6. So there under the rules of statutory 45 interpretation if there is an “or” then only one of those needs to be complied with for it to be satisfied. If 46 there’s an “and” both have to be satisfied. The pamphlet goes on to say that NCGS 106-581.1 further 47 expands the definition of farming agriculture to include marketing and selling agricultural products, 48 agritourism, etcetera. What is considered agritourism is the next step. Although Ms. Brown is correct that 49