BOA agenda 011419 - cancelled - Laserfiche WebLink

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Draft August 13, 2018 Staff Attorney James Bryan said in past cases, he has given an opening statement about what is quasi-judicial and 1 what is not to clear confusion. He explained the Board of Adjustment appeals procedure. He simplified that facts can be 2 reasonably decided and rules are correctly interpreted. He noted that facts decided by this board cannot be arbitrary or 3 capricious but rather supported by competent, material, substantial evidence in the record. The rules are interpreted by 4 the law. He reviewed how the Board of Adjustment determines the facts. This board makes findings of facts if facts are5 based on competent, material and substantial evidence that are not arbitrary or capricious and are presented in the 6 record. Competent evidence is legally fit so that it is trustworthy, and reliable and competent evidence for traffic and 7 property values must be provided by experts in those fields. James Bryan also reviewed that substantial evidence is 8 sufficient to support a specific conclusion. 9 10 James Bryan then reviewed the flow for facts and shared a diagram that explained that before the public hearing, the 11 application is submitted and the staff report is written. At the hearing, evidence is given on the record and then the 12 hearing is closed and the board deliberates. The board then takes all the evidence presented for the record at the 13 hearing and determines findings of fact based on whether it was competent, material and substantial evidence. The 14 staff attorney noted that some evidence may be uncontested and other evidence may be excluded. In cases where 15 there is evidence on both sides for a relevant standard, the board must decide based on its reasonable judgment. 16 17 James Bryan then reviewed how the board interprets a rule and presented a slide to remind everyone that if the text is 18 clear and unambiguous, its plain meaning should be enforced. If an ambiguity remains, the board must favor the 19 property owner and the free use of land.20 21 James Bryan then established the framework for this case. Regarding jurisdiction, on Page 11 of the agenda packet, 22 there is a letter from Current Planning Supervisor Michael Harvey dated October 13, 2017, that is a final and binding 23 decision of staff, which carries the weight of law. Regarding whether the applicants have standing, the board will find on 24 Page 51 of the agenda packet the applicants’ statement of standing. James Bryan reviewed that regarding the rule, this 25 is a new statute N.C.G.S. §153A-340(b)(2a). This was passed by the General Assembly in July 2017. 26 27 Barry Katz said this is a case that predates the change in the law. He wonders how the change in the law is relevant to 28 this case. James Bryan said the parties can better speak to that. 29 30 James Bryan then reviewed that before Michael Harvey wrote his letter on October 13, 2017, he received a request. 31 James Bryan reviewed that the request was for a classification that the structure on the property is a structure for a 32 farm purpose, pursuant to N.C.G.S. §153A-340(b)(2a). He then highlighted the first sentence in a paragraph of the 33 statute that states: “A building or structure that is used for agritourism is a bona-fide farm purpose if the building or 34 structure is located on a property that is owned by a person who holds a qualifying farmer sales tax exemption 35 certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a). James Bryan said he does not think 36 either parties are arguing over the last part of that statement. James Bryan said the applicant included the property 37 owner’s original request, which is one letter with four exhibits. James Bryan referred to Page 10 of the agenda packet to 38 answer how staff responded to the rule, noting that Michael Harvey laid out four sections.39 40 Barry Katz said the deed for the property was filed with Mark Chilton on March 24, 2015. Is it relevant for him to ask 41 when the barn itself was purchased. 42 43 James Bryan said he does not know whether it is relevant but Barry Katz will have an opportunity to ask that when the 44 applicant is before the board.45 46 James Bryan returned to Page 10 of the agenda packet, noting there were five attachments to Michael Harvey’s letter, 47 pages 12 - 50 of the agenda packet. He noted that Page 51 is what the appellant says is wrong with the staff’s 48 determination. He noted that Page 68 is the new information that is available. This is 20 pages that were submitted by 49 the applicant upon the board’s subpoena. This information includes the application to the state for a qualifying farmer 50 4