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APPROVED 5/10/2010 OC Board of Adjustment – 3/8/2010 Page 47 of 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Rob Maitland: Only because they said once chance that somebody teamed me up like this, I gotta do it. You are telling me there is not one factor that you think of that is a negative impact on the Southerland’s property from this Lonsway commercial dog kennel operation, not one? What are we here for? You can’t think of one, how about the smell of a dog, can you think of that? How about the sounds of the dogs? How about let’s make it simple, you are a realtor, aren’t you? Vic Knight: Yes sir. Rob Maitland: Would the existence or the potential existence of a commercial dog kennel operation be a material fact that you would have to disclose as a realtor to any potential buyer of this property? Vic Knight: Only if it is that property. Rob Maitland: What do you mean only if it is that property? If someone was going to buy the Southerland property right now and there was no dog, we don’t even know that there is proof, but there is a pending application for it. If someone wanted to buy the Southerland property, would not the Southerland’s be obligated under North Carolina law and particularly at a higher level, you as a realtor, be obligated to disclose that as a material fact? Vic Knight: If it is the property that is being sold, yes you have to disclose those things. If is the property down the street, if it is not having a material effect on the property. Rob Maitland: You are saying Mr. Lonsway would have to disclose this? Vic Knight: If he sold the property. Rob Maitland: You are telling me that if you took the listing of any one of these homes that touch this property, you, as a realtor, would not have to disclose the potential change of circumstance. Vic Knight: First, you could only disclose what you knew. Rob Maitland: It is public record. You are here testifying so I am asking you if you took the listing on any one of these homes right here, and remember your report is based on your credibility tonight. I want to know, do you have an obligation, as a realtor, to disclose this as material fact? Vic Knight: If this county issues the Special Use Permit and those, the further you get away from the property, the less the material factor comes. But if it is a piece …. Rob Maitland: What is a material fact? By definition it is a significant factor almost always negative on someone wanting to buy a piece of property. You talk about common sense and using our eyes and our ears. I am asking you, as a board, to have some common sense. Here is an email from the attorney, Tom Miller, Legal Counsel to the North Carolina Real Estate Commission answering this specific question. “A kennel with 20 or more dogs”. Nick Herman: That is hearsay. Rob Maitland: It is not hearsay. It is an email written directly to someone who will testify at a later time. The email basically says what everybody here would know is common sense. If the Southerland’s tried to sell their property right now and didn’t tell the potential buyer that, hey, we there is going to be a dog kennel next door to them, you don’t think they will have some kind of legal claim? All these neighbors, everybody here, everybody in this subdivision now have to disclose this. They don’t have to but their realtors do, why, because they have to protect people from buying into a piece of property not knowing about a potentially devastating factor that would in any way materially affect their property. Rob Maitland: Defendant’s Exhibit 4. I have a problem here tonight when you just said you tried to do the best you could and we can’t even agree and yet earlier your counsel just wanted us to go on your common sense and you are not able to tell me that as a realtor, with an attorney for the North Carolina Real Estate Commission, says of course it is. You can read it