Orange County NC Website
Approved January 14, 2019 <br /> 1 Staff Attorney James Bryan said in past cases, he has given an opening statement about what is quasi-judicial and <br /> I <br /> 2 what is not to clear confusion. He explained the Board of Adjustment appeals procedure. He simplified that facts can be <br /> 3 reasonably decided and rules are correctly interpreted. He noted that facts decided by this board cannot be arbitrary or <br /> 4 capricious but rather supported by competent, material, substantial evidence in the record. The rules are interpreted by <br /> 5 the law. He reviewed how the Board of Adjustment determines the facts. This board makes findings of facts if facts are <br /> 6 based on competent, material and substantial evidence that are not arbitrary or capricious and are presented in the <br /> 7 record. Competent evidence is legally fit so that it is trustworthy, and reliable and competent evidence for traffic and <br /> 8 property values must be provided by experts in those fields. James Bryan also reviewed that substantial evidence is <br /> 9 sufficient to support a specific conclusion. <br /> 10 <br /> 11 James Bryan then reviewed the flow for facts and shared a diagram that explained that before the public hearing, the <br /> 12 application is submitted and the staff report is written. At the hearing, evidence is given on the record and then the j <br /> 13 hearing is closed and the board deliberates. The board then takes all the evidence presented for the record at the <br /> 14 hearing and determines findings of fact based on whether it was competent, material and substantial evidence. The <br /> 15 staff attorney noted that some evidence may be uncontested and other evidence may be excluded, In cases where <br /> 16 there is evidence on both sides for a relevant standard,the board must decide based on its reasonable judgment. <br /> 17 <br /> 18 James Bryan then reviewed how the board interprets a rule and presented a slide to remind everyone that if the text is <br /> 19 clear and unambiguous, its plain meaning should be enforced. If an ambiguity remains, the board must favor the <br /> 20 property owner and the free use of land. <br /> 21 <br /> 22 James Bryan then established the framework for this case. Regarding jurisdiction, on Page 11 of the agenda packet, <br /> 23 there is a letter from Current Planning Supervisor Michael Harvey dated October 13, 2017, that is a final and binding <br /> 24 decision of staff, which carries the weight of law. Regarding whether the applicants have standing, the board will find on <br /> 25 Page 51 of the agenda packet the applicants'statement of standing. James Bryan reviewed that regarding the rule, this <br /> 26 is a new statute N.C.G.S. §153A-340(b)[2a).This was passed by the General Assembly in July 2017. <br /> 27 <br /> 28 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 3 <br /> 29 this case. James Bryan said the parties can better speak to that, <br /> 30 <br /> 31 James Bryan then reviewed that before Michael Harvey wrote his letter on October 13, 2017, he received a request, <br /> 32 James Bryan reviewed that the request was for a classification that the structure on the property is a structure for a ? <br /> 33 farm purpose, pursuant to N.C.G,S. §153A-340(b)(2a). He then highlighted the first sentence in a paragraph of the <br /> 34 statute that states: "A building or structure that is used for agritourism is a bona-fide farm purpose if the building or <br /> 35 structure is located on a property that is owned by a person who holds a qualifying farmer sales tax exemption <br /> 36 certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a). James Bryan said he does not think <br /> 37 either parties are arguing over the last part of that statement. James Bryan said the applicant included the property <br /> 38 owner's original request, which is one letter with four exhibits. James Bryan referred to Page 10 of the agenda packet to <br /> 39 answer how staff responded to the rule, noting that Michael Harvey laid out four sections. <br /> 40 <br /> 41 Barry Katz said the deed for the property was filed with Mark Chilton on March 24, 2015. Is it relevant for him to ask <br /> 42 when the barn itself was purchased. <br /> 43 <br /> 44 James Bryan said he does not know whether it is relevant but Barry Katz will have an opportunity to ask that when the <br /> 45 applicant is before the board. <br /> 46 <br /> 47 James Bryan returned to Page 10 of the agenda packet, noting there were five attachments to Michael Harvey's letter, <br /> 48 pages 12 - 50 of the agenda packet. He noted that Page 51 is what the appellant says is wrong with the staffs <br /> 49 determination. He noted that Page 68 is the new information that is available. This is 20 pages that were submitted by <br /> 50 the applicant upon the board's subpoena. This information includes the application to the state for a qualifying farmer <br />