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Andy Petesch said what these documents plainly show is that these were two separate issues and in fact … Andy 1 Petesch then passed out copies of an email from Orange County Planner Patrick Mallett to Kara Brewer that indicates 2 that there were always two paths: the proposed barn, as a retreat center, could be permitted in that zoning district with 3 the issuance of a Class B Special Use Permit or as a bona fide farm operation as part of the agritourism activity 4 associated with the law. Those were the two possibilities. It was always presented that she could have gone on either 5 path and one did not preclude the other, Andy Petesch said. What the case law does show is that if she were granted a 6 Special Use Permit, then she could not later attack that Special Use Permit by saying she is exempt. But she never 7 accepted that benefit. She was denied that, which left the possibility of pursuing the farm exemption completely open. 8 9 Michael Harvey asked for the exhibit number for the email from Patrick Mallett to Kara Brewer. There was brief sorting 10 out of the exhibit numbers. Andy Petesch answered the abstract would be Exhibit 6, the minutes would be Exhibit 7, 11 and the email would be Exhibit 8. 12 13 Barry Katz said if Kara Brewer had been granted the Special Use Permit, she would have had no reason to say that this 14 is not a county matter but rather a state matter. 15 16 Andy Petesch said that’s interesting that you bring that up because in the case of Marsh v. Union County Board of 17 Adjustment, a gentleman wanted to operate a rodeo and applied for a Special Use Permit, which was granted with nine 18 conditions. One of those conditions was that he could only have four events a year and that he had to open a second 19 access. When his Special Use Permit was revoked for not meeting the conditions, Marsh appealed to Superior Court 20 that his property was exempt and he did not need the Special Use Permit. The court decided to uphold the Board of 21 Adjustment’s decision. Marsh did not appeal the decision of the Superior Court but continued to operate. He was issued 22 another notice of violation. He again argued that he was exempt and the court told Marsh that he had missed his 23 chance to make an appeal. Andy Petesch said that is not what is happening here because Kara Brewer did appeal and 24 the fact that it was dismissed with prejudice adds no special effect under the law. Andy Petesch said the board will not 25 find in the petition the reason that she should be allowed to operate is because she is exempt but is limited only to the 26 Special Use Permit and not statutory exemption and that is why res judicata and collateral estoppel do not apply here. 27 28 Andy Petesch said in the case of Bailey and Associates v. Wilmington County Board of Adjustment, the court 29 referenced, in reference to judicial estoppel where a party was seeking to say an application was submitted recognizing 30 property was in a wetland area and now the applicant is changing it to say not in a wetland area, the court described 31 what the Supreme Court says are three factors useful in determining whether judicial estoppel should be invoked, with 32 only the first being essential in the doctrine’s invocation. First, the party’s subsequent position must be clearly 33 inconsistent with its earlier position. Kara Brewer, consistent with staff, has held the entire time that she can seek the 34 exemption. That she would be exempt once she starts operating a bona fide farm and can do agritourism. At that time, 35 as LeAnn Brown alluded, the agritourism was related to or incidental. Now that’s changed and the General Assembly 36 has clarified that standard. Andy Petesch referred back to the court case that the second factor is whether the party has 37 succeeded in persuading an earlier court to that position so that acceptance of a subsequent position in a later 38 proceeding might pose a threat to judicial integrity. He said that gets at the case LeAnn Brown brought up earlier with 39 respect to a cell tower because the shortened cell tower proposal was not substantially different from the first proposal 40 of a slightly taller cell tower. Andy Petesch said one of the reasons why the exemption was not pursued in the beginning 41 is that the owner had not yet begun any agricultural activities on the property so staff could not have said at that time 42 that the property was exempt. There was no agriculture was going on at that time. In order for Kara Brewer to proceed 43 faster, at that point the Special Use Permit was a more streamlined process. 44 45 Barry Katz said Kara Brewer made an error in how she pursued this and now Andy Petesch is claiming she gets a do-46 over. 47 48 12