Orange County NC Website
Browse       Search
1 <br /> 2 LeAnn Brown answered that she cannot speak to that because that is not her case. It would be for Andy Petesch to <br /> 3 answer. She reiterated that the dismissal with prejudice brought an end to the recourse for appealing the Orange <br /> 4 County Board of Adjustment decision to deny the Special Use Permit. She added that she believes Southeast Property <br /> 5 Group, LLC, and Kara and Chris Brewer were without recourse before the petition to Superior Court was filed because <br /> 6 when Michael Harvey first determined that she had to file for a Special Use Permit, Kara Brewer should have appealed <br /> 7 that to the Board of Adjustment. And that never occurred. <br /> 8 <br /> 9 Randy Herman said the effect of all that would be that the property owner does not qualify for a Special Use Permit and <br /> 10 he does not think that the property owner is now arguing that they do but rather that the statute has changed such that <br /> 11 the property is no longer subject to our zoning entirely. <br /> 12 <br /> 13 LeAnn Brown said that under the doctrine of res judicata and collateral estoppel when you have chosen the means by <br /> 14 which you proceed before a quasi-judicial body and seek a permit and then you choose not to appeal that decision that <br /> 15 you have chosen the path that you are going to take. You have set your course of action. Once you are denied the <br /> 16 Special Use Permit, you cannot appeal that and dismiss it and then come back and say, `You know what, I don't think 1 <br /> 17 ever needed it anyway.'And that is exactly what has happened here. <br /> 18 <br /> 19 Randy Herman said the statute under which they are proceeding did not exist at the time that they initially applied so <br /> 20 they couldn't have chosen that path at that time. <br /> 21 <br /> 22 LeAnn Brown said the statute at the time that they saw the Class B Special Use Permit is the statute that this board <br /> 23 was considering when it considered the appeal in 2016 and then the statute said what it says now about nonfarm use. <br /> 24 That zoning always applies when a farm property is being used for a nonfarm use. That sentence has not been taken <br /> 25 out of the statute. And that's the sentence I think Michael Harvey was considering when he made the decision that Kara <br /> 26 Brewer needed a Class B Special Use Permit in the first place, or that the property owner did. The statute did exist. It <br /> 27 has been amended to delete the provision that allowed a property owner to rely upon a farm number, which is what <br /> 28 Kara Brewer was relying upon, but has added the provision that talks about structures. So, yes, the statute has <br /> 29 changed but as she said, related to the Hillsboro Partners case, the doctrine of collateral estoppel will apply even if the <br /> 30 subsequent action is based on a different claim. And she thinks that's the only thing that's happened here is it's a <br /> 31 different claim. The language is still the same. The building is still the same. The property is still the same. It is still the <br /> 32 same intended use. <br /> 33 <br /> 34 Barry Katz said he recalls Kara Brewer voluntarily applying for the Special Use Permit. <br /> 35 <br /> 36 LeAnn Brown said the minutes show that initially the county determined that she had to apply for it. The county then <br /> 37 determined that she did not necessarily need to do that. And by the time the hearing took place, Kara Brewer had <br /> 38 decided to voluntarily proceed and in the hearing she said she was voluntarily proceeding. Voluntarily or not, she chose <br /> 39 that path. And when that didn't work out, they've used different avenues and that's what collateral estoppel says you <br /> 40 can't do. <br /> 41 <br /> 42 Randy Herman asked LeAnn Brown if she has a case that says that res judicata or collateral estoppel applies when the <br /> 43 substantive law has changed between the first proceeding and the second proceeding. <br /> 44 <br /> 45 LeAnn Brown said she does not have a case that talks about a change in statute between the first proceeding and the <br /> 46 second proceeding. She said she is happy to hand out the cases she mentioned. She thinks both cases she mentioned <br /> 47 are clear that the claims can change but if the facts are still the same, the facts are still the same. We are not allowed in <br /> 48 the law to have a proceeding and be unhappy with the results and then find another theory and another theory and <br /> 49 another theory she said. There have been four appeals and her party contends that res judicata and collateral estoppel <br /> 50 bring an end to this proceeding. <br /> 9 <br />