BOA agenda 121018 - cancelled due to weather

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1 Government that says in other cases the board may need to consider additional evidence to make a decision. He said 2 it's important to remember that a board review of the board's decision is different from Michael Harvey's review of his 3 decision. It's a review of his determination so it's just a fact of whether something is or is not. Michael Harvey 4 determined that it is certified as something. Whether he had any rationale or reasoning is meaningless. He could have 5 written only that this was his final and binding determination that X. The board, however, is held to a different standard. 6 The board has to have findings of fact and conclusions for it. What's before this board is everything that is competent, 7 material, substantial evidence. 8 9 James Bryan said regarding res judicata and collateral estoppel, there are two things to consider. One is if the board is 10 truly concerned and not persuaded by his advice, the board can continue the hearing and tell the attorneys to brief this 11 for the board. They mentioned a lot of cases and didn't provide the cases. The board can continue this if it wants to do 12 so but James Bryan said this is a new matter; 2(a) did not exist. There are issues that have been decided. There is a 13 previous order with a finding of fact that this is a bona fide farm. So, the board cannot come back and say it's not. But 14 that is irrelevant to this discussion. All that is relevant to the discussion is the rule. Who owns the property? Do they 15 hold a tax exemption certificate from the Department of Revenue? And is the structure used for agritourism? That's all 16 that matters. 17 18 James Bryan said regarding this new law, one other case has gone up to the Court of Appeals, Jeffries v. Harnett 19 County. They had sort of the mirror image of this. That one was a gun range and the board had to look at it. The statute 20 mentions weddings but doesn't mention hunting. The court decided that most hunting is not agritourism but went on to 21 say that the property owner could go on to apply for a Conditional Use Permit. James Bryan said it is not exactly on 22 point, the property owner went for the agritourism exemption first instead of the Conditional Use Permit. But the court is 23 saying, `You didn't get this one. You are free to go for another permit.' 24 25 Randy Herman asked James Bryan, regarding the issue of looking behind the certificate, if the board thinks a certificate 26 was supposed to be issued for Wild Flora Farm, LLC, and the board thinks that Wild Flora Farm, LLC, didn't have 27 income sufficient to gain the certificate and therefore the issuance of the certificate was wrong, can we look behind it or 28 do we have to say, `No, the certificate was issued and that's the end of it."? 29 30 James Bryan answered the board is held to the exact words of the statute and to their plain meaning. What the statute 31 says is the holder of the certificate— not someone who has the attributes of someone who would qualify. He said it's not 32 shown in the photocopy very well but the letter from the Department of Revenue, there's an actual card for it. He said 33 he thinks it would be an absurd reading to say it is somebody who literally holds the card so you could pass it around 34 the table. But he thinks it says that. If you want to read something into it, there has to be some reason. There has to be 35 some statutory construction that you say, `Oh, this is probably what they meant.' And he does not think the board has 36 heard anything about that. He doesn't think it's ambiguous. He thinks the plain meaning is intended. If it's ambiguous, 37 you have to resolve it with statutory construction and if there is any ambiguity left, you have to resolve it in favor of the 38 property owner for the free use of land. The courts have been very clear for a long time. It is very settled that anything 39 done through the zoning, Chapter 153 A, Article 18 is a derogation of property rights and has to be narrowly construed 40 in favor of the property owner. So, if there's a question, that's where the tie to the runner goes. One side has to win and 41 it's the free use of property. 42 43 Barry Katz asked for clarification that the board does not get to consider res judicata and collateral estoppel. 44 45 James Bryan answered res judicata would be if this was before the board again. So, if someone applies for a kennel 46 and the board denies a kennel and then the same person comes for a kennel that would be res judicata. He does not 47 see how it applies in this matter—2(a) did not exist. 48 49 Barry Katz said James Bryan mentioned that if it's like a tie, the privilege goes to the property owner. But the board's 50 issue here is whether there is any real continuity. Isn't that so? 17