HomeMy WebLinkAboutBOA agenda 061217
PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Current Planning
(919) 245-2575
(919) 644-3002 (FAX)
www.orangecountync.gov
131 W. Margaret Lane
Suite 201
P. O. Box 8181
Hillsborough, NC 27278
AGENDA
ORANGE COUNTY
BOARD OF ADJUSTMENT
LOWER LEVEL MAIN CONFERENCE ROOM – WEST CAMPUS
OFFICE BUILDING
131 W. Margaret Lane
HILLSBOROUGH, NORTH CAROLINA
June 12, 2017
7:30 p.m.
No. Page(s) Agenda Item
1. CALL TO ORDER
2. CONSIDERATION OF ADDITIONS TO AGENDA
3. APPROVAL OF MINUTES – March 13, 2017
4. PUBLIC CHARGE:
The Board of Adjustment pledges to the citizens of Orange County its respect.
The Board asks its citizens to conduct themselves in a respectful, courteous
manner, both with the Board and with fellow citizens. At any time should any
member of the Board or any citizen fail to observe this public charge, the
Chair will ask the offending person to leave the meeting until that
individual regains personal control. Should decorum fail to be restored, the
Chair will recess the meeting until such time that a genuine commitment to
this public charge is observed. All electronic devices such as cell phones,
pagers, and computers should please be turned off or set to silent/vibrate.
The Board of Adjustment is a quasi-judicial administrative body established
in accordance with the provisions of local regulations and State law to
perform specified functions essential to the County’s planning program.
Action(s) taken by the board are based solely on competent, substantial, and
material evidence presented during a previously scheduled and advertised
public hearing on a specific item. As detailed within Section 2.12.2 of the
UDO the Board chair reserves the right to exclude evidence and testimony that
is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and
therefore fails to reasonably address the issues before the Board of
Adjustment. While it should be noted there is no time limit on the
presentation of evidence, the Chair asks that the presentation of evidence be
consistent with established policies, rules of procedure, and acceptable
levels of decorum to ensure a fair and equitable hearing for all parties.
No. Page(s) Agenda Item
5. There are no cases to be heard.
6. ADJOURNMENT
IF UNABLE TO ATTEND THIS MEETING, PLEASE CALL THE PLANNING DEPARTMENT
(NUMBERS LISTED BELOW – PRESS 1 PLUS EXTENSION 2575 OR 2585). STAFF CAN THEN
DETERMINE IF A QUORUM WILL BE PRESENT FOR THE MEETING.
HILLSBOROUGH – (919) 732-8181 ; MEBANE – (919) 227-2031
CHAPEL HILL – (919) 967-9251 ; DURHAM – (919) 688-7331
DRAFT
1
MINUTES 1
BOARD OF ADJUSTMENT 2 MARCH 13, 2017 3
REGULAR MEETING 4
5
MEMBERS PRESENT: Karen Barrows (Vice Chair) 6
Matt Hughes 7
Barry Katz 8
Susan Halkiotis 9
10 *MEMBER RECUSED FOR CONFLICT OF INTEREST: Samantha Cabe (Chair) 11
12
STAFF PRESENT: Michael Harvey, Current Planning Supervisor 13
Patrick Mallet, Planner II 14
James Bryan, Staff Attorney 15
Elaina Cheek, Board Secretary 16
17
AGENDA ITEM 1: CALL TO ORDER 18
19
Karen Barrows called the meeting to order. 20
21
AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 22
23
No additions. 24
25
AGENDA ITEM 3: APPROVAL OF MINUTES 26
- DECEMBER 12, 2016- REGULAR MEETING 27
- JANUARY 23, 2017- RECONVENED MEETING 28
29
Michael Harvey: Madam Chair, there’s a couple of changes that the staff would like to point out. 30
Ms. Halkiotis was not at the meeting. The minute’s transcriber has her present. Also, as we 31
reminded you in our email, the tape recorder ended at the end of the meeting. We have Ms. 32
Halkiotis versus Ms. Barrows seconding the motion to adjourn so we would like to make those 33
corrections before you all begin with your review. 34
35
Karen Barrows: Thanks. I had noticed that. Page 81, line number 1: We’re meeting at the wooded 36
facility, I think we mean Whitted. 37
38
Michael Harvey: Which line? 39
40
Karen Barrows: The first one. On page 158 the vote was not unanimous. I voted against the tower 41
application. Any other corrections? Additions? If not, Michael? 42
43
Motion made by Matt Hughes to adopt the minutes from both meeting as with the suggested 44
changes. Seconded by Barry Katz. 45
VOTE: Unanimous 46
47
DRAFT
2
AGENDA ITEM 4: PUBLIC CHARGE 1
2
Matt Hughes read the public charge. 3
4
The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to 5
conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any 6
time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the 7
offending person to leave the meeting until that individual regains personal control. Should decorum fail to 8
be restored, the Chair will recess the meeting until such time that a genuine commitment to this public 9
charge is observed. All electronic devices such as cell phones, pagers, and computers should please be 10
turned off or set to silent/vibrate. 11
12
The Board of Adjustment is a quasi-judicial administrative body established in accordance with the 13
provisions of local regulations and State law to perform specified functions essential to the County’s 14
planning program. Action(s) taken by the Board are based solely on competent, substantial, and material 15
evidence presented during a previously scheduled and advertised public hearing on a specific item. As 16
detailed within Section 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and 17
testimony that is deemed “incompetent, irrelevant, immaterial, or unduly repetitious” and therefore fails to 18
reasonably address the issues before the Board of Adjustment. While it should be noted there is no time 19
limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with 20
established policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable 21
hearing for all parties. 22 23
AGENDA ITEM 5: A-1-17 – Appeal of a decision concerning a parcel of property 24
located at the intersection of Morrow Mill Road and Millikan Road. 25
(PIN: 9729-50-7168) 26
27
In accordance with the provisions of Section 2.11 and 2.26 of the Orange County Unified 28
Development Ordinance (UDO) the applicants have appealed the decision of the Zoning Officer as 29
articulated within a November 7, 2016 letter addressed to Michael Rettie, Orange County Building 30
Official, related to the Zoning Compliance Permit review for building permit number CB16-0020. 31
This aforementioned permit involved development on a parcel of property identified utilizing 32
Orange County Parcel Identification Number (PIN) 9729-50-7168 owned by Southeast Property 33
Group LLC care of Ms. Kara Brewer. 34
35
Specifically the applicants allege staff erred in determining the property, and the structure being 36
erected on same consistent with building permit application CB16-0020, is being used for bona fide 37
farm purposes. 38
39
Karen Barrows: Michael, you didn’t want to? Ok. We are here tonight to review and appeal 40
application submitted by several local property owners concerning a November 7th letter to the 41
Zoning Officer. We are to determine whether his action was correct or incorrect. And I understand 42
that the attorneys may have more comments. I would ask if anyone would like to speak tonight if 43
they would come forward and be sworn in please. 44
45
Michael Harvey: Grouped in as best we can. Left hand raise right. Do we solemnly swear to tell the 46
truth to the best of our ability? 47
48
DRAFT
3
Michael Harvey: When you come up please state your name and that you have been sworn. 1
2
Karen Barrows: Thank you. Is there a protocol as to who goes first here James? 3
4
James Bryan: I would suggest having Mr. Harvey give an overview like he typically does, and then 5
letting the appellant go. 6
7
Karen Barrows: Excellent. Michael? 8
9
Michael Harvey: Good evening. Michael Harvey, Current Planning Supervisor, Orange County. 10
And yes I have been sworn. As has already been articulated this evening we are here to review an 11
appeal of decision made by the zoning officer as it relates to the processing of a building permit 12
application CB16-0020. The abstract for this item begins on page 159 of your packet, as pages 3-13
158 were minutes from your last meeting. At this time I would request that the Board enter staff’s 14
abstract, which includes as it’s attachment the appeal application filed on behalf of several property 15
owners by LeAnn Brown into the record and that includes the application and the November 7, 16
2016 letter authored by myself to Michael Rettie concerning a zoning compliance permit review of 17
CB16-0020. 18
19
Karen Barrows: That’s it? 20
21
Michael Harvey: I need a motion to enter it in the record. 22
23
Karen Barrows: Ok. 24
25
Motion made by Matt Hughes to enter staff’s abstract into the record. Seconded by Barry Katz. 26
VOTE: Unanimous 27
28
Michael Harvey: Also for purposes of establishing the record you have two items at your place and 29
both attorneys have the provided copy as well. You have the order from your last Board of 30
Adjustment hearing on this matter as County Exhibit 2. You also have as County Exhibit 3 the 31
separate provisions of the General Statute dealing with bona fide farm regulation, including 153a-32
340 the grant of power. North Carolina General Statute (NCGS) 106-581.1: agricultural defined. 33
And NCGS 99e-30: definitions agro-tourism activity liability. I’d also like these entered into the 34
record. 35
36
Motion made by Matt Hughes to enter County Exhibit 3 into the record. Seconded by Barry Katz. 37
VOTE: Unanimous 38
39
Michael Harvey: As articulated in the abstract the Board of Adjustment held a hearing on October 40
the 24th, 2016 to review an appeal of a determination made by the zoning officer concerning the 41
zoning permit review of CB16-0020. The Board determined that staff had erred in its determination 42
that a zoning compliance permit review was not required. And as articulated in the abstract and 43
within your order, which is again attached as County Exhibit 2, this Board directed the Orange 44
County planning director or their designee, of which I am the designee, to review the March 16, 45
2016 building permit application and make a determination as to whether the structure identified 46
(there)in will be used for bona fide farm purposes and whether its use as a wedding and event 47
DRAFT
4
center is related to or incidental to such bona fide farm purposes, if any. You also granted a 1
requested stay of the building permit until this issue had been adjudicated by staff. On November 2
the 7th of 2016 we authored a letter to Michael Rettie making the following determination. The first 3
question that was posed to us was, “Is the property a bona fide farm”. As articulated in our letter, 4
which begins on page 167, in utilizing NCGS 152a-340(b), the applicant, in this case Southeast 5
Properties LLC care of Kara Brewer, had submitted documentation outlining the property’s status 6
as a farm, specifically a USDA farm number 3963, which we have attached in the letter as 7
attachment 1, attachment 2, excuse me, the issuance of a farm sales tax exemption by the State 8
Department of Revenue, and a forest management plan. Our conclusion was that the property met 9
three out of the (five) criteria’s defined by the Statute to qualify (the property) as a farm and as 10
such determined it was a farm based on State law. 11
12
Two, “Is the structure being developed on the property being used for bona fide farm purposes?”. 13
As we articulate in the letter, the following facts were available to us: According to the application, 14
again that is CB16-0020, the applicant defined the use of the proposed structure as a barn for 15
agricultural use, including but not limited to the storage and processing of agricultural products and 16
equipment, agro-tourism such as educational workshops, school field trips, weddings, retreats, and 17
farm dinners. Support for all other activities related and incidental to the operation of a farm. Our 18
conclusion, as articulated again in this letter, is that the structure is going to be used for agricultural 19
purposes. 20
21
The next question, “Is the use of the structure as a wedding and event center related or incidental 22
to the property being used for bona fide farm purposes?”. In making a determination County staff 23
relied on the following facts and available information: We first relied on the definition of the term of 24
agricultural, agricultural and farming. As defined by the NCGS 106-581.1 indicating that when 25
conducted on a farm, agro-tourism activities are farming and therefore exempt from review. Agro-26
tourism while being a specifically undefined term within the parameters of the General Statute, 27
specifically section 106-581.1, is defined in several other venues, and I’m on page 170 for those 28
needing to follow along. Staff relied on an existing definition within the UDO, which defines agro-29
tourism as a business directly related or incidental to agricultural activities occurring on the bona 30
fide farm on which it is located and conducted for the enjoyment or education of the public. 31
Definition from Merriam Webster’s dictionary defining agro-tourism as the practice of touring 32
agricultural areas to see farms and often to participate in farm activities. The website, maintained 33
by the North Carolina Department of Agriculture, providing examples of agro-tourism activities, the 34
list of which includes wedding venues is a viable agro-tourism activity. And the definition of an 35
agro-tourism activity, as provided under NCGS 99e-30, defining agro-tourism as any activity 36
carried out on a farm or ranch that allows members of the general public for recreation, 37
entertainment, or educational purposes to view or enjoy rural activities including farming, ranching, 38
historic, cultural, harvest your own activities, or natural activities and attractions. An activity is an 39
agro-tourism activity whether or not the participant paid to participate in the activity. Agro-tourism 40
activity includes an activity involving any animal exhibition at an agricultural fair licensed by the 41
commissioner of agriculture pursuant to General Statute 106-520.3. Based on this information it 42
was our determination that the barn structure to be used in support of wedding activities is related 43
and incidental to the property being used for bona fide farm purposes and is consistent with what 44
constitutes farming and agricultural activities as defined within the General Statutes. 45
46
DRAFT
5
This letter concluded by offering an advisory opinion as it relates to requirement for building permit 1
for farm structures. I will note that this is an advisory opinion. It was not a formal determination and 2
is not subject to your review here this evening in terms of a determination. Put simply, State law 3
exempts farm structures from having to comply with certain components of the building code. And 4
the argument that we presented or the finding we presented herein indicated that in the practical 5
sense Ms. Brewer did not have to apply for a building permit in the first place as this is a farm 6
structure. The remainder of the various attachments including on page 173 the actual application 7
CB16-0020, attachment 2 the UDSA farm number, which is on page 80. 180, excuse me. 8
Attachment 3, which is the sales tax exemption letter authored by the North Carolina Department of 9
Revenue, that’s on page 181. On page 182 we have attachment 4; dealings of findings of the North 10
Carolina Department Insurance Office, State Fire Marshall, Engineering Division as it relates to the 11
advisory opinion we proffered on the building permit status of the structure. The adjacent property 12
owners have appealed this determination alleging that I have erred with respect to the 13
interpretation of the ordinance and erred in not requiring the Brewers’ Southeast Property Group 14
LLC to obtain a zoning compliance permit and that I erred in not requiring a zoning compliance 15
permit as well. Unless you all have any questions I think it’d be appropriate to turn it over to Ms. 16
Brewer, who is represent… I’m sorry, my apologies. Ms. LeAnn Brown, who is representing the 17
appellants here this evening. 18
19
Karen Barrows: Any questions for Michael? 20
21
Susan Halkiotis: I don’t have any. 22
23
Barry Katz: I know we’ve been through this before so in other words Ms. Brewer never had to be 24
here in the first place. Is that what you’re saying? Are you not saying anything right now? Is anyone 25
going to answer that? 26
27
Michael Harvey: When you say is not required to be here, not supposed to be here, can you 28
expand on that question a little bit? 29
30
Barry Katz: What I mean is did she need a zoning permit or anything to build the structure? 31
32
Michael Harvey: As the Board will recall, and I testified in other hearings before this Board, we 33
determined Ms. Brewer had to get a Class B (Special Use Permit). That permit was denied. 34
Subsequently building permit was filed, which we rejected. 35
36
Barry Katz: Oh, ok. 37
38
Michael Harvey: Ms. Brewer in March of 2016 filed a revised building permit with information 39
indicating the property was a bona fide farm, would be used for a bona fide, and that the structure 40
was going to be used for farm purposes. Based on the current wording of the Statute and on 41
advice proffered by the County’s Attorney Office we were not permitted to review this use given its 42
farm exempt status. 43
44
Susan Halkiotis: On which occasion? The March… 45
46
Michael Harvey: The March 16th application. Or the March 2016 application. 47
DRAFT
6
1
Susan Halkiotis: But to answer Barry’s question. Should it ever have come to us to begin with? The 2
answer is yes because it came to us under Special Use Permit? 3
4
Michael Harvey: My comment to that is it came before you because that was our determination that 5
was never appealed. 6
7
Barry Katz: Ok. 8
9
Karen Barrows: Any further questions? Ms. Brown? 10
11
LeAnn Brown: Thank you. If I could begin please with some evidentiary… I want to get some 12
evidentiary issues out of the way and then move on to the next thing. Mr. Harvey has introduced 13
and you have received into evidence the information that he prepared as the record the 160A-388 14
(b)15. Is the Statute that establishes your procedures for these hearings and it requires the official 15
who made the decision, which would be Mr. Harvey to transmit to the Board documents and 16
exhibits that constitute the record from which the action for appeal is taken. And originally what was 17
proffered to you, as the package was the staff review and my application for appeal, which included 18
Mr. Harvey’s ruling and that was that was it. 19
20
Karen Barrows: LeAnn? 21
22
LeAnn Brown: Yes? 23
24
Karen Barrows: Could we ask you to use the microphone please? 25
26
LeAnn Brown: Sure. Would you like me to stand? Would that be better? We don’t have mics at our 27
desk so… 28
29
Karen Barrows: I see that. 30
31
LeAnn Brown: So if… We’ll be happy to stand and maybe the public can hear us better. 32
33
Karen Barrows: Thank you. 34
35
LeAnn Brown: So from the standpoint of the record, he has introduced in the record as the record 36
the items that I identified he has since asked you and you have received a copy of your order and 37
particular pieces of the Statute. In the appeal that we filed we incorporated into that appeal by 38
reference the materials that were before you. At your two prior hearings you had the Special Use 39
Permit hearing and then the two part hearing on the first appeal. We believe that by incorporating 40
those into… by reference in our application that they would be before you as part of our 41
applications since they’re incorporated. We certainly believe that while this is not an appeal of that 42
decision that the information you had before you that night is relevant in material to any record that 43
would go from here to any other tribunal in order for the tribunal to have before them the full 44
panoply of materials that you have reviewed. The short story here is that following some 45
communication with Mr. Bryan, who represents your Board at this hearing but does not represent 46
Mr. Harvey at this hearing or in the preparation of the record. I spoke with Mr. Harvey and Mr. 47
DRAFT
7
Harvey has in the ream all of those materials that would include the evidence that you received, the 1
files that you received from the County, the minutes of your meeting on the Special Use Permit 2
application, the file from that application, the minutes of the two meetings that you had. Mr. 3
Harvey’s determination in your subsequent order in your hearing and I would ask that, as a 4
housekeeping matter, you receive that material into evidence for the purpose of the record in this 5
case. 6
7
Andy Petesch: I would like to note an objection to the incorporation of the Special Use Permit 8
hearing record on the grounds of relevance. This is a completely different standard that’s being 9
applied here and not all of that information, that evidence is relevant to this proceeding to the 10
extent that the evidence from that hearing was included in the last hearing. I don’t… I have no 11
objection to the inclusion of the record from the previous hearing in October of 2016 on an appeal 12
of the decision about the same issue and same standards apply there. But I just want to register 13
my objection. 14
15
Barry Katz: Is there much difference between the records from that Special Use Permit and what 16
was entered in by reference at our last hearing? 17
18
LeAnn Brown: It’s my recollection that the file from the Special Use Permit hearing was introduced 19
into evidence at the last hearing along with the minutes and was technically before you at the time, 20
so I believe that all of that material was introduced previously. 21
22
Barry Katz: And is Mr. Harvey the person who would confirm that or Mr. Bryan? 23
24
LeAnn Brown: I think the minutes of the meeting should confirm that. The County is the custodian 25
of all of the exhibits. 26
27
Andy Petesch: I don’t intend my objection to hold up the proceedings here but I want to make sure 28
it was logged for the record going forward. 29
30
Karen Barrows: So noted, thank you. 31
32
Barry Katz: So then… Did you want to then proceed and then when Mr. Harvey might find it he can 33
interject it? 34
35
LeAnn Brown: I would ask that the Board receive into evidence all of the material that was before it 36
at the last meeting, which I believe includes that. 37
38
Barry Katz: Thank you. 39
40
Karen Barrows: So received. 41
42
LeAnn Brown: And the procedure you followed a minute ago with Mr. Harvey was you had a 43
motion and a second to receive evidence. So I don’t know if you’re following that same procedure 44
or not. 45
46
Karen Barrows: Is there a motion to receive this evidence? 47
DRAFT
8
1
Motion made by Susan Halkiotis to accept LeAnn Brown’s evidence. Seconded by Barry Katz. 2 VOTE: Unanimous 3
4
LeAnn Brown: As a second housekeeping matter you may recall from the last hearing that we 5
introduced a significant amount of evidence before the Board to establish standing for the purpose 6
for that hearing it’s important that that be established, particularly if a matter may in fact go 7
elsewhere. Now that you have received that information into evidence I believe that without 8
repeating that three hour hearing you have all of that same information before you tonight and in 9
addition I would point out to the Board that as the appellants in the prior hearing my clients are 10
actually parties to the subsequent decision in this appeal and so they would have standing from 11
that ground as well and we’d like the Board to find that they have standing. 12
13
Barry Katz: Just to clarify, we’re talking about the people who had standing in the previous meeting 14
in addition to the people who have standing tonight? 15
16
LeAnn Brown: I continue to represent the following individuals who are the same applicants from 17
the prior proceeding: Gleta Carswell, Rene Quadt, Doris Ray, Thomas Ray, Margaret Wilkman, 18
and Alice Sandra Wilkman. Those are the precisely… It’s the same people. 19
20
Barry Katz: Ok. 21
22
Karen Barrows: Is there a motion that these folks have standing? 23
24
Motion made by Barry Katz that the appellants have standing. Seconded by Susan Halkiotis. 25
VOTE: Unanimous 26
27
LeAnn Brown: For the next item I have a very, very short piece of evidence, just to assist the Board 28
in visualizing the property that we’re discussing. One of my clients had the occasion to be a 29
passenger in a private plane that flew over the property and was able to take some aerial 30
photographs. We have not had in the record previously pictures that actually showed it to you on 31
the ground. I do not plan for this to be a large evidentiary hearing. I think this is really a technical, 32
legal appeal. But I do think you would find them instructive. And if I could call Mr. Quadt up he will 33
authenticate them and I would ask that you receive them into evidence. 34
35
Michael Harvey: LeAnn before you begin, just as a general announcement… We unfortunately 36
have to inform everyone in attendance the staff has no ability to alter the temperature of the room. 37
We apologize in advance. 38
39
LeAnn Brown: Thank you for the public service announcement Mr. Harvey. 40
41
LeAnn Brown: Mr. Quadt, would you state your name, address for the record please? 42
43
Rene Quadt: Rene Quadt. 2700 Millikan Road, Chapel Hill. And I have been sworn in. 44
45
DRAFT
9
LeAnn Brown: Did you have an opportunity to be in a private passenger plane and take 1
photographs of the property that’s commonly known as the Barn Of Chapel Hill that’s next door to 2
your property? 3
4
Rene Quadt: I have. 5
6
LeAnn Brown: Are you familiar generally with the property in the area and with how it might look 7
from a plane? 8
9
Rene Quadt: I am not, until this morning. 10
11
LeAnn Brown: When you were in the plane could you look down at the property and identify your 12
barn and your house? 13
14
Rene Quadt: I could. 15
16
LeAnn Brown: Could you look down at the property and identify the Wilkmans’ house? 17
18
Rene Quadt: I could. 19
20
LeAnn Brown: Could you look down at the properties and identify the Rays’ house? 21
22
Rene Quadt: I could. 23
24
LeAnn Brown: Could you look down at the properties and identify the development called the Barn 25
of Chapel Hill? 26
27
Rene Quadt: I did. 28
29
LeAnn Brown: Did you have the occasion to take pictures while you were in the airplane today? 30
31
Rene Quadt: I could. 32
33
LeAnn Brown: I’m going to mark this document as Exhibit 1. And with permission of the Board I 34
would like to hand you copies so you can follow along with what he points out. 35
36
Karen Barrows: Ok. Thank you. 37
38
LeAnn Brown: May I approach the Board? 39
40
Karen Barrows: Sure. 41
42
Barry Katz: Thank you. 43
44
Karen Barrows: Thank you. 45
46
DRAFT
10
LeAnn Brown: We begin with the first picture. Will you please describe where on that picture is the 1
property that’s the Barn at Chapel Hill? 2
3
Rene Quadt: It’s approximately a little 4 o’clock off the central of the page. 4
5
LeAnn Brown: And there’s a gray looking line that comes across toward the right of the page. Do 6
you see that? 7
8
Rene Quadt: I can. 9
LeAnn Brown: And what is that? 10
11
Rene Quadt: That’s an access road. 12
13
LeAnn Brown: Is that the service entrance that runs next to your property line? 14
15
Rene Quadt: That would be the entrance that runs from Morrow Mill to the barn. 16
17
LeAnn Brown: Alright. And would you identify where your house is located on this particular 18
picture? 19
20
Rene Quadt: If you’ll look at the left of this picture you would see a straight line. That’s my 21
driveway. At the end of that driveway is my residence and in the pasture there’s my barn horse 22
barn. 23
24
LeAnn Brown: So and if you see, there’s an additional gray line coming down. Is that the service 25
road next to your property? 26
27
Rene Quadt: Correct. 28
29
LeAnn Brown: And the other road that we identified the first time; is that the… that runs to Morrow 30
Mill across from the Rays’ house? 31
32
Rene Quadt: Correct. 33
34
LeAnn Brown: Alright. The second picture that is here. That is another picture of the property. Is 35
that correct? 36
37
Rene Quadt: Correct. 38
39
LeAnn Brown: And where is the barn located on this picture? 40
41
Rene Quadt: The barn is located approximately 8 o’clock from the center. 42
43
LeAnn Brown: And then the third picture the barn is located in the? 44
45
Rene Quadt: It’s in the lower right corner. 46
47
DRAFT
11
LeAnn Brown: Ok. The fourth picture’s a slightly different angle. 1
2
Rene Quadt: Dead center. 3
4
LeAnn Brown: Alright. And in that picture the service road comes out at the little subdivision. Is that 5
correct? 6
7
Rene Quadt: Correct. Comes out at Millikan Road. 8
9
LeAnn Brown: And then the final picture is very similar to that one and the barn is approximately in 10
the middle. 11
12
Rene Quadt: Correct. 13
14
LeAnn Brown: And are these pictures true and accurate depictions of what you viewed today when 15
you were on the plane? 16
17
Rene Quadt: They are. 18
19
LeAnn Brown: And you took these pictures yourself? 20
21
Rene Quadt: I did. 22
23
LeAnn Brown: Alright, I’m going to ask the Board to receive this Exhibit into evidence. 24
25
Karen Barrows: Thank you. We’ll receive it in evidence. 26
27
LeAnn Brown: Thank you. 28
29
Karen Barrows: Mm-Hmm. 30
31
LeAnn Brown: Thank you. Alright. I have no further questions of the witness. Andy, did you have 32
any? 33
34
LeAnn Brown: Ok. Thank you. 35
36
LeAnn Brown: The next witness I’d like to call is Michael Harvey. 37
38
Michael Harvey: Yes ma’am? 39
40
LeAnn Brown: Good afternoon. And Mr. Harvey, you have been sworn. Is that correct? 41
42
Michael Harvey: Correct ma’am. 43
44
LeAnn Brown: And you cannot do anything about the temperature in the room, is that correct? 45
46
Michael Harvey: That’s also correct. 47
DRAFT
12
1
LeAnn Brown: Mr. Harvey, when you prepared the record in this case why did you only include the 2
abstract in the appeal application? 3
4
Michael Harvey: The abstract and the appeal application represented the synopsis of the 5
information we utilized to render our decision based on the order as issued by the Board of 6
Adjustment. 7
8
LeAnn Brown: So as NCGS 160A-388 requires your duties you viewed those documents as all of 9
the documents and exhibits that constituted the record from which you took an action? 10
11
Michael Harvey: Yes ma’am, as it related to complying with the Board’s action. 12
13
LeAnn Brown: And so even though it’s subsequently been introduced into evidence the actual 14
order of the Board of Adjustment of Orange County was not one of the documents you reviewed at 15
the time you prepared this. Is that correct? 16
17
Michael Harvey: No. It was not germane, except for the action requested by the Board. 18
19
LeAnn Brown: Alright. So the actual findings of fact that this Board made after two long meetings of 20
hearings were not what you considered to be germane in your decision making. Is that? Am I? 21
22
Michael Harvey: We reviewed the order to determine what our direction was as this Board 23
articulated. We then reviewed the proposal and made a determination based on what we were 24
asked to do. 25
26
LeAnn Brown: And the Board’s order was actually entered and signed when? 27
28
Michael Harvey: December the 22nd of 2016. 29
30
LeAnn Brown: And your opinion was actually entered when? 31
32
Michael Harvey: November the 7th of 2016. 33
34
LeAnn Brown: And in fact the… My clients had had to appeal before the Board of Adjustment ever 35
actually had their order even entered. Is that correct? 36
37
Michael Harvey: Correct. Before it was signed, correct. 38
39
LeAnn Brown: Alright. Do you know who drafted the order for the Board of Adjustment by chance? 40
41
Michael Harvey: It was a joint effort between the County staff and the County’s Attorney Office. 42
43
LeAnn Brown: Alright. And how about the opinion that you issued? Who drafted that? 44
45
Michael Harvey: I drafted it. 46
47
DRAFT
13
LeAnn Brown: Did anybody review it? 1
2
Michael Harvey: It was reviewed by staff, specifically the Planning Director for Orange County, as 3
well as representatives of the County’s Attorney Office. 4
5
LeAnn Brown: Without telling me any advice you may have received were you given advice and 6
counsel about the content of the order from the County Attorney’s Office. 7
8
Michael Harvey: I’m sorry, can you specify? You’re talking about the order or the letter? 9
10
LeAnn Brown: The letter. 11
12
Michael Harvey: I was given advice in direction from both the Planning Director and options from 13
the County’s Attorney Office in terms of solidifying the order, which is County Exhibit 2. And 14
information was provided in terms of articulating staff’s response from both the Director and the 15
County’s Attorney Office, with respect to the November 7th letter. 16
17
LeAnn Brown: Is your? And if you answered a question from Mr. Katz a few moments ago about 18
the fact that you had at one time been of the opinion that this particular use did require a Special 19
Use Permit, is that correct? 20
21
Michael Harvey: Correct. 22
23
LeAnn Brown: Was that opinion based on your interpretation of North Carolina law at the time? 24
25
Michael Harvey: It was based on my interpretation not only North Carolina law, but the evidence I 26
had at my disposal the times the determination was made. 27
28
LeAnn Brown: And your current decision is based upon our belief that you are bound by the 29
statements made in an affidavit as to use? 30
31
Michael Harvey: My determination at this time is based on interpretation of existing State law and 32
consultation with advice presented by the County’s Attorney’s Office and the record of CB16-0020 33
to which, yes ma’am, did include an affidavit, as well as documentation articulating the status of the 34
property as a farm as defined by NCGS. 35
36
LeAnn Brown: And did you consider in forming your determination in response to the remand from 37
the Board of Adjustment any of the evidence that was given during their two-day hearing? 38
39
Michael Harvey: No. 40
41
LeAnn Brown: None of the evidence whatsoever was considered by you in making that 42
determination? 43
44
Michael Harvey: For my determination relied on the definition as prescribed by Statutes, the 45
information we had on record at the time, as well as the direction provided by the Board of 46
Adjustment in terms of what they had asked staff to do. Specifically, whether the structure identified 47
DRAFT
14
in (the building permit) will be used for bona fide farm purposes and whether the use as a wedding 1
and event center is related to or incidental to such bona fide farm purposes, if any. 2
3
LeAnn Brown: And so when I look at your determination when you opined that the structure’s being 4
used for a farm purpose you recite to the building permit application and no other documents; is 5
that the sole source of your information about how the structural and property’s being used? 6
7
Michael Harvey: We relied on the information, correct, containing the application, as well as what’s 8
contained in the affidavit. 9
10
LeAnn Brown: Thank you. 11
12
Michael Harvey: Thank you. 13
14
LeAnn Brown: And that’s the entirety of it. I’m just trying to understand what you relied upon. 15
16
Michael Harvey: I understand. 17
18
LeAnn Brown: Alright. 19
20
LeAnn Brown: I have no further questions of Mr. Harvey. 21
22
LeAnn Brown: Andy, do you need a turn? 23
24
Andy Petesch: Good evening. I’m sorry I didn’t introduce myself earlier. I’m Andy Petesch, attorney 25
on behalf of SPG LLC the property owner and Kara and Chris Brewer. Mr. Harvey, I just want to 26
follow up briefly. We addressed this at the October 2016 hearing but to clarify for the record; the 27
determination that you made, with respect to Ms. Brewer, the Brewers’ and SPG needing to seek a 28
Special Use Permit for certain aspects of the agro-tourism that they seek to do on the property. 29
That was never made in writing. That was never placed in writing, correct? 30
31
Michael Harvey: That is a correct statement. 32
33
Andy Petesch: And this was. These discussions. The Brewers’ came to you in approximately the 34
spring of 2015 to discuss this and what compliance issues they needed to address in order to 35
make use of this property? 36
37
Michael Harvey: Spring and summer, yes sir. 38
39
Andy Petesch: Ok. And so your communication of that decision that they needed to proceed on the 40
path of receiving/seeking a Special Use Permit was just communicated orally. Is that correct? 41
42
Michael Harvey: That’s a correct statement. 43
44
Andy Petesch: And they pursued, they chose to proceed on that voluntarily to proceed on the 45
Special Use Permit application path, although there was discussions of… Well, I’ll… Before I… 46
They chose voluntarily to proceed in submitting a Special Use Permit? 47
DRAFT
15
1
Michael Harvey: Correct. They were obviously… 2
3
LeAnn Brown: I object 4
5
Michael Harvey: I’m sorry, what was? 6
7
LeAnn Brown: I’m just wanted to object for the record to the characterization of. 8
9
Andy Petesch: You can go ahead. You can go ahead and answer. 10
11
Michael Harvey: It is correct. The Brewers’ elected to go through the Special Use Permitting 12
process and there were several meetings where we discussed what I believed would be necessary 13
to establish farm use prior to establishing what essentially they were arguing was agro-tourism 14
activity. And from my standpoint you have to have the farm before you have the tourism. They 15
elected then to go through the Special Use Permit process, but you are correct; it was never in 16
writing, and they went through the SUP process based on that conversation. 17
18
Andy Petesch: And during that same time period, the spring and the summer, those conversations 19
included the possibility you just eluded to that, that they would, could, proceed as a bona fide farm 20
and not need any zoning approval. Is that correct? 21
22
Michael Harvey: If there was sufficient documentation substantiating the claim per the Statute, yes 23
sir. 24
25
Andy Petesch: But those discussions took place at that time… 26
27
Michael Harvey: Yes sir. 28
29
Andy Petesch: They were considering that’s something they were interested in. 30
31
Michael Harvey: Yes, they did. 32
33
Andy Petesch: As an alternative. Thank you. 34
35
LeAnn Brown: I just have one follow up question. Mr. Harvey, during this process and during the 36
Special Use Permit process I realize Mr. Petesch was not involved but was there in fact counsel of 37
record for the Brewers’ through the process? 38
39
Michael Harvey: There was. 40
41
LeAnn Brown: So they were represented by an attorney throughout that process? 42
43
Michael Harvey: Correct. 44
45
LeAnn Brown: I have no other questions. Thank you. 46
47
DRAFT
16
Karen Barrows: Andy, is there anything else you’d like to bring forward? 1
2
LeAnn Brown: In terms of evidence, I think. 3
4
Andy Petesch: Yes I… You’re… I just want to make sure that you’re… Have no more evidence. 5
6
LeAnn Brown: We reserve the right to bring up any rebuttal evidence I would need to bring up. I 7
have no further evidence at this time. I do have argument I’d like to make to the Board. 8
9
Karen Barrows: Ok. Are we ready for arguments? 10
11
Barry Katz: Oh no, he’s got. He has evidence. I think. 12
13
Andy Petesch: I’d like to ask Kara Brewer to come forward and testify and I’m going to see if I can 14
move this. 15
16
James Bryan: If we could. It might be better to have her sit, either at one of those chairs or over 17
here. Whatever the Board wants. You can come over here and then you both have mics. 18
19
Andy Petesch: Before I get started, and to address a little bit of housekeeping I would like to hand 20
up notebooks and those notebooks contain, they are identical to the notebooks that I presented 21
before. I will be using in my argument. They were admitted into the record at the last hearing. They 22
include the…….. All the exhibits and illustrative items of reference materials. I’d like to go ahead 23
and hand those up. Because I’ve hole punched my additional evidentiary documents and it 24
hopefully will make it easier for you to track all that information. 25
26
Karen Barrows: Okay 27
28
LeAnn Brown: Is there stuff in here that’s new? 29
30
Andy Petesch: There’s nothing new. This is exactly what was introduced at… 31
32
LeAnn Brown: The same number already have? 33
34
Andy Petesch: Ms. Brewer, could you state your full name and address for the record? 35
36
Kara Brewer: Yes. Kara Brewer. 82 Jordan Hills, Chapel Hill, North Carolina. 27517. 37
38
Andy Petesch: And you are sworn? 39
40
Kara Brewer: I am. 41
42
Barry Katz: Thank you. 43
44
Andy Petesch: Could you provide the Board with an update of your, or the progress on the farm 45
with respect to the flour, cut flour, and other related farming activities? 46
47
DRAFT
17
LeAnn Brown: Um, I object. I… This is not a hearing about… This is a hearing about whether a 1
determination that Mr. Harvey made… 2
3
Karen Barrows: Right. 4
5
LeAnn Brown: Is correct or incorrect, and anything that’s happened after that is not relevant to the 6
issue of whether Mr. Harvey made a mistake in not following your order, and so I object to this line 7
of questioning completely. Ask that you not hear it. 8
9
Karen Barrows: What do we think? 10
11
Andy Petesch: This is relevant to the question of use and this Board has the right to take on 12
evidence to make a determination. If we are going to limit it to Mr. Harvey’s determination and what 13
he analyzed, which in that case then the evidence that came in at the prior hearings and certainly 14
at the SUP hearing are not relevant. So I... 15
16
Barry Katz: But Mr. Harvey didn’t consider all that, what our determinations were from the previous 17
hearings when he made his determination. And so, why should we hear anything else? It’s really 18
about the determination he made. 19
20
Matt Hughes: I hear what Barry is saying but in previous hearings of this Board we’ve been very 21
liberal in terms of what we allowed into the record and I think it would be completely okay to do the 22
same here. I mean, we accepted these pictures, which I’m not sure exactly how that will reflect on 23
the appeal thus far, so you know, if we’re going to do something for one party we should do it for 24
the other. 25
26
Barry Katz: Fine. 27
28
Karen Barrows: Good point. Ok. 29
30
LeAnn Brown: So that I don’t bounce up and down, I’d like a standing objection to any evidence 31
you receive. The pictures you received are for illustrative purposes because you’ve never been 32
able to see the barn, on which you’ve been talking about so that I don’t bounce up and down if I 33
could have a standing objection to anything that is information about activities subsequent to Mr. 34
Harvey’s determination then we’ll let the record reflect that and I will be still so you can hear it. 35
36
Karen Barrows: Ok. Thank you LeAnn. 37
38
Andy Petesch: Ms. Brewer, did you prepare a document that provides an illustration of the planting 39
beds that you’re doing? 40
41
Kara Brewer: Yes I did. And we can… 42
43
Andy Petesch: Is this a… 44
45
Kara Brewer: Yes. 46
47
DRAFT
18
Andy Petesch: Accurate copy of that? 1
2
Kara Brewer: Yes, that’s it. And it actually relates to the photo that they introduced. I can show 3
where the planting beds are in the photo to sort of illustrate that. So it is part of the evidence that 4
they introduced. 5
6
Andy Petesch: I would like to introduce that as SPG 1. 7
8
Karen Barrows: Ok… Thank you. 9
10
Andy Petesch: If you could go ahead and tell the Board about that briefly? 11
12
Kara Brewer: Sure. So what we’ve done since we last met is we have started planting beds, and as 13
you can see from what we had established, we have put in ten 4 by 70 foot planting rows, plus 14
three half rows. I call it Zone A, and actually you can see it in the picture. It’s that black section, it’s 15
where we put the landscape fabric down. So that’s on one side. We do do our plantings in different 16
spacing, depending on the type of flower. So it’s either 6 inch, 9 inch, 12 inch, or 18 inch spacing 17
and I take those, the fabric, and I burn holes into the fabric so that when we have the plants going 18
in or the seeds going in we’re able to easily do the correct spacing. So in Zone A, and I’ll just go 19
through this very briefly, we won’t have to spend long on it, I listed out the different beds and the 20
different flowers that we have going in each bed. It was spread 1-13. And that is what they show in 21
the photo. Zone B, which is on the other side, I don’t know… May I use this? 22
23
James Bryan: Yeah. 24
25
Kara Brewer: Zone B, which is on the other side, here; is about the same length, as you can see, 26
as the black, which is our landscape fabric. What’s currently there that you can’t see is we have 27
two 70-foot trellises. I did put up a trellis in the meadow for our vines, which you’ll see in the 28
planting beds. And then what’s not shown on here, these are just our annual planting beds. What’s 29
not shown on here is our perennial plan. So in this area here that you see cleared we’re actually 30
prepping it for a peonies, which we’ll be planting in the fall. So that’s just an overview of what 31
you’re actually seeing from the air. 32
33
LeAnn Brown: Would you turn it so I could also see what you pointed out where you said you’re 34
putting peonies? 35
36
Kara Brewer: Sure. On this side. On that clearing right there. 37
38
LeAnn Brown: Thank you. 39
40
James Bryan: Andy, do you have an extra copy of the plan? 41
42
Andy Petesch: Of which? Do you… pass that to everybody. 43
44
LeAnn Brown: Not the entire cleared area. 45
46
DRAFT
19
Kara Brewer: There to there, that’s our landscape fabric currently, so yeah, that is the entire 1
cleared area that we’re planting things. And then you can also see, in between here, there’s our 2
raised planting beds and we’re putting lavender in there. 3
4
Andy Petesch: And Ms. Brewer, have you prepared a planting, seasonal planting, schedule? 5
6
Kara Brewer: Yes. I have planned. I have planned a seasonal planting schedule. 7
8
Andy Petesch: And is this an accurate copy of that schedule? If you’ll look through it just quickly? 9
10
Kara Brewer: Yes sir. Yes. 11
12
Andy Petesch: I’d like to introduce this as SPG Exhibit 2. And if you’ll go ahead and tell the 13
Board… 14
15
Kara Brewer: Sure. 16
17
Andy Petesch: about… 18
19
Michael Harvey: Madame chair, can I interrupt please? Just to keep things straight, Mr. Petesch 20
has entered, re-entered into this record this evening the notebook. That is technically Exhibit 1. The 21
planting plan will be Brewer Exhibit 2. This is going to be Brewer Exhibit 3. Just so we’re keeping 22
things straight. 23
24
James Bryan: I think what Andy was saying is that the book is what they were given last time. 25
26
James Bryan: It’s already in the record from last time. 27
28
Michael Harvey: I misunderstood. So that’s fine. 29
30
Kara Brewer: So this is our seasonal planting schedule and it just goes through the different 31
varieties of flowers and it shows when we’re actually starting the seeds in the barn for each 32
different one. It’s just different dates. It helps keep it straight for us as we go through the season, 33
and what we have to start, and when we have to start it. And this is for 2017. Of course, it will 34
change a little bit in 2018. 35
36
Andy Petesch: And Ms. Brewer, did you have prepared a field trip curriculum for school children 37
visiting your center? 38
39
Kara Brewer: We have, yes, that meet State standards. 40
41
Andy Petesch: I was destructed during your… I didn’t know how the exhibit numbers were resolved 42
Mr. Harvey, are we on… 43
44
Michael Harvey: Mr. Bryans confirmed that the notebook was just for the edification or their 45
remembrance, and so 1 is the planting plan, 2 is the seasonal planting schedule, now this would be 46
3. 47
DRAFT
20
1
Andy Petesch: Once you review that, and is that the school curriculum? 2
3
Kara Brewer: It is. 4
5
Andy Petesch: Do you have a copy? 6
7
Kara Brewer: I do not. Thank you. 8
9
Barry Katz: Mm-Hmm Mm-Hmm, right. 10
11
Andy Petesch: Would you go ahead and tell the Board briefly about the field trip curriculum? 12
13
Kara Brewer: Sure. This is just an example of our K-1st field trip offering. It does meet State 14
standards for North Carolina and I mean, I won’t go through everything but you can see the 15
different activities that we have listed, parts of a plant, what plants need to grow, pollination station, 16
whats in the dirt. So the kids circle through each of the different activities when they arrive. 17
18
Andy Petesch: Ms. Brewer, did you prepare a list of resource reference items that you refer to in 19
your education on growing flowers? 20
21
Kara Brewer: I did. 22
23
Andy Petesch: And is this that list? 24
25
Kara Brewer: Yes. 26
27
Andy Petesch: A copy. 28
29
Kara Brewer: Thank you. 30
31
Andy Petesch: Would you tell the Board about how you use this, these materials? 32
33
Kara Brewer: It’s just what I used in my overall flower research, and then I have gone to workshops 34
and growing schools and things like that that in addition, there’s just some really great resources in 35
North Carolina, specifically, over at NC State. And then of course there’s just a lot of different 36
books and things like that that help with the process so. 37
38
Andy Petesch: And did you recently attend the Orange County Ag Summit? 39
40
Kara Brewer: I did. 41
42
Andy Petesch: And could you tell the Board a little bit about what that is? 43
44
Kara Brewer: Ag Summit is just a yearly gathering of findings in Orange County and this year’s Ag 45
Summit was specifically focused, or part was focused, on agro-tourism. 46
47
DRAFT
21
Andy Petesch: And do you know who Professor David Owens is? 1
2
Kara Brewer: Yes, with UNC. 3
4
Andy Petesch: And he… He’s… I’m sorry, he’s a professor at UNC, is that? 5
6
Kara Brewer: Correct. 7
8
Andy Petesch: And was he a speaker at that conference? 9
10
Kara Brewer: He was. 11
12
Andy Petesch: And did you see him speak? 13
14
Kara Brewer: I did. 15
16
LeAnn Brown: I… I object to this line of questioning on grounds of relevance, on the grounds of 17
hearsay, and on countless other grounds I won’t even name. 18
19
Karen Barrows: I think I’ll have to agree. 20
21
Barry Katz: Yep. 22
23
Susan Halkiotis: I do too. 24
25
Andy Petesch: And then, my last exhibit… Did you have an email correspondence with Patrick 26
Mallet of Orange County Planning Inspections Department on September 28th 2015? 27
28
Kara Brewer: I did. 29
30
Andy Petesch: Is this an accurate copy of that email correspondence? 31
32
Kara Brewer: It is. 33
34
Karen Barrows: Thank you. 35
36
Andy Petesch: Would you just tell the Board briefly what you requested and what it says here is Mr. 37
Mallett’s response was? 38
39
Kara Brewer: I just requested what my options were in moving forward, and it was the two different 40
paths. So there’s two different ways that the barn use is permitted in Orange County and the first 41
one of the ways is the issuance of a Class B SUP and then the other way is as part of a bona fide 42
operation or part of an agro-tourism activity associated with, with our farm. 43
44
Andy Petesch: Now it was discussed at the September, I mean the October 26 hearings on this 45
same issue Ms. Brown had asked you about some language on your website with respect to 46
marketing and there was a line that was included on your website that discussed parties having 47
DRAFT
22
exclusive use of the farm on their wedding day. Could you, and that’s on page 54 lines 21-24 of the 1
2016 minutes. Could you explain what you meant by the language in that? 2
3
Kara Brewer: Yes. All that means is that we have one agro-tourism event during any given time. 4
We do not do multiple agro-tourism events on the same day. There is other language on the 5
website and it is in a contract they do realize that it’s a working farm and that as such there will be 6
things going on while they’re on the farm. We are very clear about that. 7
8
Andy Petesch: Ok. And in the Special Use Permit you were also asked at the October 2016 9
hearings about some language, some testimony that you gave at the Special Use Permit hearing 10
with respect to what the status, the use, of the barn in between events, and that testimony was on 11
page 56 of the October 2016 minutes lines 36-45. Could you explain your testimony to the Board 12
with respect to the use of the barn in between events? 13
14
Kara Brewer: Sure. Yeah, I was just speaking to events themselves. That’s all that I was referring 15
to. It of course did not have anything to do with other activities that we’d be doing in the barn, as 16
well. It’s just specifically referring to special events. 17
18
Andy Petesch: And that’s because at the time of the Special Use Permit hearing it was your 19
understanding you were not supposed to address any farm issues, any agricultural issues, just the 20
events issues? 21
22
Kara Brewer: Right. Because it was a… Yeah, exactly. 23
24
LeAnn Brown: Andy, what page are you on in the. 25
26
Karen Barrows: page 56. 27
28
LeAnn Brown: Where are you referencing? 29
30
Andy Petesch: The approved minutes from the October hearing. 31
32
LeAnn Brown: What two pages did you just reference in the testimony ……. 33
34
Andy Petesch: I’ve got page 54 lines 21-24. And I’ll read this… 35
36
Andy Petesch: All I have on marked up copy but I’m happy, it’s a short, I’ll be happy to read the 37
testimony. 38
39
LeAnn Brown: I don’t have a copy of it in my hand. 40
41
Barry Katz: It’s not, no. I had the wrong minutes here. 42
43
Karen Barrows: Find it. 44
45
Andy Petesch: I’ll be glad to let you… 46
47
DRAFT
23
LeAnn Brown: Ok. Why don’t… Let me look at it and then I can find my place and look when I need 1
to ask for questions. What tab did you reference? 2 3
Andy Petesch: Yep, well… 4
5
LeAnn Brown: Here you go. 6
7
Andy Petesch: Oh. Thanks… I have no further questions. I will… 8
9
LeAnn Brown: Need to mark those two so I can look at them. Ms. Brewer, I just have a few 10
questions for you. Your… This cut flowers Zone A and B plan in SPG 1, has any of this been 11
planted as of this day? 12
13
Kara Brewer: No, not yet. All of our beds have been laid out and we’re starting our seeds next 14
week actually. It all happens this month and next. It’s just the time of year. 15
16
LeAnn Brown: So none of this. This is the plan. This… 17
18
Kara Brewer: Well actually my plugs are in and just because of the weather I couldn’t get them into 19
the ground, today, actually. 20
21
LeAnn Brown: And were they in the ground when we had the hearings in the fall? 22
23
Kara Brewer: Yes. We did have flowers in the ground in the fall. 24
25
LeAnn Brown: So your testimony that you had some flowers in the ground in the fall is still correct 26
and you’ve subsequently come up with this plan for planting flowers, is that correct? 27
28
Kara Brewer: Correct 29
30
LeAnn Brown: How many flowers, total, are you planting? 31
32
Kara Brewer: How many flowers total? Well, indicated through the different beds. It depends on the 33
spacing, there are different amounts of flowers and it’s listed, it’s listed in that document. So in 34
some cases, for example there’s 400 and maybe 5 plants per bed, sometimes there’s 900 plants 35
per bed. It just depends on the particular bed. 36
37
LeAnn Brown: Now, as a person who is farming flowers, you must have some rough number of 38
flowers that you have, plan to have and when you plan to have them seasonally. 39
40
Kara Brewer: Yes. They’re on. All listed on that list. 41
42
LeAnn Brown: Alright, and can you tell me what that number is, without asking me to do the math 43
off your list? Because if you’re getting ready to plant them you must have some sense of that? 44
45
Kara Brewer: I do have a sense of that and as I stated it’s on the plan. It depends on which 46
individual bed. We can sit here and go through and add each one if you would like to do that. You 47
DRAFT
24
can’t really say how many plants, how many flowers each plant is going to produce. It depends. For 1
example, a sunflower produces 1 stem, so if you plant 200 sunflowers, you have 200 stems. Other 2
flowers are cut and come again. So the more you cut them the more you grow. You might get 20, 3
30 blooms, 40 blooms. It just depends. So that’s a tough question to answer. 4
5
LeAnn Brown: I’m sure. Let me try it this way. 6
7
Kara Brewer: Yes. 8
9
LeAnn Brown: When’s your first wedding planned? 10
11
Kara Brewer: May. 12
13
LeAnn Brown: May what? 14
15
Kara Brewer: The very beginning of May. The first weekend. I don’t know off the top of my head, 16
but it’s the beginning of May. 17
18
LeAnn Brown: The first weekend in May. How many flowers do you anticipate would be available to 19
a bride for any aspect of her wedding for a wedding in May? From your farm, how many? 20
21
Kara Brewer: We should be able to provide 75 percent of that bride’s flowers. 75-80 percent. 22
23
LeAnn Brown: 75 percent would be how many different? What would that include? 24
25
Kara Brewer: It depends on what the bride wants. 26
27
LeAnn Brown: Then… If you’re using the number 75 percent you have to have some assumption in 28
your mind as to approximately what she might want. 29
30
Kara Brewer: We do. And that’s actually part of why we chose weddings as part of agro-tourism. 31
Because a definite tying between a flower farm and having weddings, the bride comes to us, we’re 32
actually able to sell our flowers to that bride. It’s very much related and we’re actually able… 33
34
LeAnn Brown: Alright, excuse me, but I ask you a question and I would like for you to answer my 35
question and my question is, if you are contending that you could provide 75 percent of the flowers 36
necessary for a May wedding from your farm I am asking you what, how many different things 37
would that be? Is it a bouquet? Is it table flowers? Is it corsages? Is it the other bouquets? Is it the 38
full panoply of flowers? 39
40
Kara Brewer: Yes. There’s… It’s whatever the bride… You know, we sit down and consult with 41
them? 42
43
LeAnn Brown: So no matter what she wants, no matter how many flowers she might want, whether 44
she’s having a simple wedding or whether she’s having an elaborate, flowered wedding you 45
believe that you could provide 75 percent of that? 46
47
DRAFT
25
Kara Brewer: So what we do is we, because we’re locally grown flowers, we push local flowers that 1
are coming off of our farm. Now, obviously, if a bride wants something that we don’t grow, like 2
roses, we don’t grow roses, we would have to source that from other places. We would source that 3
from other local flower farms, which is part of the beauty of what we’re doing, we get to promote 4
local, there’s a wholesale flower movement. So that’s also something that we tie in as well, but 5
yeah. 6
7
LeAnn Brown: I think it could help me by answering the question I’m asking, I would appreciate it, 8
but what I am understanding is that it’s fair to say that when you answer the question that I have 9
ask that you are actually assuming, as a recent article I read suggested, that you would be getting 10
flowers from other growers other than your farm in order to provide the wedding flowers. 11
12
Kara Brewer: Of course, we don’t grow every single flower in every single color. If we don’t have it 13
on our farm then we’ll source it locally. It’s part of supporting the local community and supporting 14
other flower farmers as well. 15
16
LeAnn Brown: So the answer to my question is, yes, we would source flowers from the other farm. 17
Is that correct? 18
19
Kara Brewer: That is correct, yes; in addition to the flowers we produced on our own farm. 20
21
LeAnn Brown: How many years experience do you have as a flower farmer? 22
23
Kara Brewer: Well, what… we’ve been planting there for a year and a half, almost a year and a 24
half. 25
26
LeAnn Brown: How many flowers did you grow last year? 27
28
Kara Brewer: We did two test beds, so two 70-foot by 4-foot rows. 29
30
LeAnn Brown: Alright, so you grew two flower beds last year and you’ve got a page, Exhibit 4, is a 31
page of resource of what you have consulted in order to become a flower farmer. Is that correct? 32
33
Kara Brewer: Well that’s just some resources, but correct. 34
35
LeAnn Brown: Your Exhibit 5, which is a letter from Patrick Mallet, there’s in fact a long email chain 36
back and forth with Patrick Mallet and you, is that correct? 37
38
Kara Brewer: I mean I’d have to see, probably. 39
40
LeAnn Brown: Do you have in your possession for introduction into evidence tonight the full chain 41
of communications between you and Patrick Mallett and other members of Orange Orange County 42
government that led to this particular email? 43
44
Kara Brewer: No I do not. 45
46
DRAFT
26
LeAnn Brown: I’d ask the Board to strike this piece of evidence because you have not been 1
provided the full communication between Orange County and I would contend that without that 2
information you can’t draw any conclusion whatsoever from this line email that’s been picked in 3
that chain. Andy, where’s your minutes? 4
5
LeAnn Brown: Are these yours Andy, this, these are the ones on your… 6
7
Andy Petesch: That…… that’s a clean copy 8
9
Barry Katz: Do we have to make… 10
11
Karen Barrows: I don’t think so. 12
13
LeAnn Brown: Ok thanks. 14
15
LeAnn Brown: You were asked by Mr. Petesch about a line of questioning in the earlier hearing 16
and you had testified that that contrary to what we may have had had you had in our conversation 17
that evening that that language simply meant that you had one wedding at a time. Is that correct? 18
Is that what you testified to a minute ago? 19
20
Kara Brewer: That’s when we have one agro-tourism event on the farm per day. 21
22
LeAnn Brown: When you say agro-tourism event, what what do you mean agro-tourism event? Is 23
that a wedding? 24
25
Kara Brewer: It could be a wedding or an educational event for kids, a floral workshop, a farm 26
dinner, things like that. 27
28
LeAnn Brown: How many farm dinners do you have planned for your facility at this moment? 29
30
Kara Brewer: We do not have any farm dinners planned. We will probably do some in the fall, once 31
we have our chestnut harvest we’re gonna… 32
33
LeAnn Brown: So the answer to my question is none, is that correct? 34
35
Kara Brewer: Correct. 36
37
LeAnn Brown: How many educational events do you have planned on your property? 38
39
Kara Brewer: We’re starting this summer so we’re going to do …… probably try to do four or five 40
and then ramp up in the fall. 41
42
LeAnn Brown: How many are currently scheduled? 43
44
Kara Brewer: None. 45
46
LeAnn Brown: Ok. How many weddings are currently scheduled for your property? 47
DRAFT
27
1
Kara Brewer: Seventeen. 2
3
LeAnn Brown: Do you recall in the line of testimony that that we were having about the 4
adversement that people have full run of your farm during their weddings, do you recall a 5
conversation about equipment and whether you would move equipment from the barn? 6
7
Kara Brewer: I do not. We’d have to. Can you repeat that? I’m not sure what you’re… 8
9
LeAnn Brown: Do you recall us having a conversation in that hearing about how much space it 10
would take to store flour in the barn, which at the time you told the Board was what you would be 11
doing with it? 12
13
Kara Brewer: Oh, yes. I do have some information about that if you’d like me to introduce that. 14
15
LeAnn Brown: I’m not I’m not interested in gleaning from you how your testimony’s changed 16
between this time and the last hearing, I’ll leave that to. 17
18
Kara Brewer: My testimony has not changed. 19
20
LeAnn Brown: I just wanted to know if you recalled that line of questioning. Do you recall Mr. 21
Petesch asked you about your testimony in the on page what he had identified as page 56? I had 22
asked you about the minutes of the Board of Adjustment hearing regarding your SUP and I had 23
asked you the question, “is this an accurate reflection of your testimony of the hearing?”, your 24
attorney asked you, “And Kara why did you choose this specific property at this site?” and you 25
testified, “Right, so I had looked probably over the course of two years 20-30 properties walking 26
different ones when we came across this particular property it is a just, it’s just a beautiful property 27
and like I said, the size itself was very important to me. The fact that it was 22-acres it allows me to 28
have a very private events in the middle of the property and that was important to me, it’s important 29
to clients, and also I think it will benefit the neighbors as well”. And I ask you if you recall that 30
testimony and you said, “That is correct”. That’s part of the testimony that Mr. Petesch had marked. 31
I then asked you the question or just before that question, I then asked you, “Do you recall the 32
following testimony? You were asked by your attorney and can you just tell us a little bit about how 33
often you expect to be holding events at the barn, like weddings”. And then I asked if you recall the 34
following testimony: “So wedding season is primarily May to October so it does run about six 35
months during that time. I do expect 1-3 events per week at the property. Off-season, which is 36
November through April will be less on where there isn’t going to be there, I apologize but that’s the 37
way it’s written, with the occasional winter wedding. Perhaps the early spring wedding. When the 38
barn isn’t used for weddings and wedding related events that’s when I anticipate we could do more 39
charity and fundraiding raising events on Friday or Saturday night when it isn’t being used for 40
weddings. During the off season there will be weeks where there is nothing going on, there will be 41
a few weeks where there’s one or two events per week”. And I ask if you recall that testimony and 42
you said, “That is correct”. I then ask you how those events were incidental to your farming 43
operation and you answered that, “What we are specific doing specifically with the weddings is 44
we’re offering farm tours. It’s what attracts people to book the farm itself. So we offer farm tours, 45
we offer honey tastings, we offer floral workshops. That’s what they want. That’s why they come 46
out to the farm so it’s just a part of that”. I then ask you if those activities were incidental to the 47
DRAFT
28
weddings and you testified that farming was your primary activity. Well, what about that line of 1
testimony were you changing today when Mr. Petesch was asking you questions? 2
3
Kara Brewer: I’m not sure what you mean. What have I changed? I don’t… 4
5
LeAnn Brown: You clarified in your testimony. You clarified that testimony. I’m trying to understand 6
what’s different. 7
8
Kara Brewer: What’s different with what? 9
10
LeAnn Brown: Why did you clarify that testimony? You you answered the question to clarify, that 11
he asked you to clarify, you clarified, why? What’s different? 12
13
Kara Brewer: What I just clarified with Andy? I’m not sure what you’re. I’m not sure what you’re 14
asking. 15
16
LeAnn Brown: Well… 17
18
LeAnn Brown: When you testified previously before this Board you testified that the barn would be 19
available for your wedding parties, that you had not at that time thought about where you were 20
putting farm equipment or where you would put chestnut flowers, you had planted a very few 21
flowers at the time. What it seems that you have done today before the Board is suggested that 22
you’re planting more flowers and that you will be using flowers. We’ve not heard much about 23
chestnuts tonight, and I’m trying to understand what it was that you wanted to clarify to that 24
testimony. 25
26
Kara Brewer: I don’t think I need to clarify anything. I’m not sure what you’re… 27
28
LeAnn Brown: So if I were to book your barn for a wedding I’d still have the full barn, is that right? 29
Could use the entire barn when I was there for my wedding, is that right? 30
31
Kara Brewer: When you are booking the property for a wedding, yes you’ll be able to use the barn. 32
Not the entire barn, there are portions of the barn that will be in storage and there’s other things 33
going on but, yes, you will be able to use the barn. 34
35
LeAnn Brown: And I recall us having some questions about that storage piece last time. You had 36
no idea in the last hearing how much area you’ll be using for storage. How much area is going to 37
be used for storage now? 38
39
Kara Brewer: We can certainly talk about that if you’d like. 40
41
LeAnn Brown: How much area is going to be used for storage? 42
43
Kara Brewer: Yes. 44
45
LeAnn Brown: I. It’s a question. Answer the question. How much area is going to be used for 46
storage? 47
DRAFT
29
1
Kara Brewer: Sure. So we have folding tables during the week set up in the barn. The folding 2
tables are 8 feet by 40 and there’s ten tables total. More can be used as needed. So 70 soil blocks 3
sit on an 11-inch by 21-inch tray. There’s eight trays per table, two rows of four down the middle. 4
So that’s 560 blocks per table. On the barn you can kind of see it. In the barn you kind of see 5
where that is. So the four tables have enough space to hold up to 2,240 solar blocks. During the 6
chestnut harvest we can also use tables for shelling, sorting, and bagging the chestnuts. Chestnuts 7
also used to cure for 3 days in the full of the barn so we have an area set aside for that. We have 8
two tables set aside for making the soil blocks, we have two tables set aside for flour harvesting, 9
prep works, stem cutting and stripping, hydration, two tables for floral design and four stainless 10
steel rolling racks with six adjustable shelves. So if somebody is using the barn we can put the 11
flowers on the soil blocks into the rolling racks, bring them outside, which they need to go outside 12
anyway because they have to be (inaudible) enough. They have the event and then were are able 13
to bring the soil blocks back into the barn. So that is how we are doing it. 14
15
LeAnn Brown: How many square feet of your barn do you use for those folding tables? 16
17
Kara Brewer: It takes up, what… 80, 75 percent of the floor space in the barn. 18
19
LeAnn Brown: How many folding table do you have? 20
21
Kara Brewer: I just said we had ten 8-foot by 30 and then we also have a 20-foot section set aside 22
for the chestnuts. 23
24
LeAnn Brown: How many square feet’s your barn again? 25
26
Kara Brewer: This particular space is 3200 square feet. 27
28
LeAnn Brown: How many tables? 29
30
Kara Brewer: Ten 8-foot tables. 31
32
LeAnn Brown: Ok. So it takes 3200 square feet to have ten tables? 33
34
Kara Brewer: Yes. 35
36
LeAnn Brown: Alright, how about farm equipment? Do you still have? Do you have farm 37
equipment? 38
39
Kara Brewer: We do. 40
41
LeAnn Brown: What do you have? 42
43
Kara Brewer: We have a lot of stuff. We have a tractor, we have shovels, clippers, rakes, pruners, I 44
mean the list goes on and on. 45
46
Kara Brewer: Landscape fabric, soil blocks, soil. 47
DRAFT
30
1
LeAnn Brown: Alright, how many square feet of your barn does it take to store that? 2
3
Kara Brewer: I don’t have the exact square footage but the… It’s big enough, it’s big enough, it’s 4
flexible enough that we have plenty of storage space. 5
6
LeAnn Brown: And where does that go during weddings? 7
8
Kara Brewer: It goes in different areas. We do have an office in the back that we can store most of 9
our stuff. There is a processing area where we’re holding a lot of our flowers and where some of 10
our floral stuff goes so it can go in there as well. As I said, we move out the soil blocks. So yeah. 11
12
LeAnn Brown: And what about that chestnut flour? Where is it going during the weddings? 13
14
Kara Brewer: We do not have any chestnut flour at this time. 15
16
LeAnn Brown: I see. So the testimony we had last time about the chestnut flour, we’ve moved on 17
from that, is that… 18
19
Kara Brewer: I think you misunderstood. We were looking in the future to produce chestnut flour 20
but we just haven’t gotten that far yet. 21
22
LeAnn Brown: I see. 23
24
LeAnn Brown: So the chestnut flour isn’t there yet either? Is not there yet? 25
26
Kara Brewer: Yes. As I just said, we do not produce chestnut flour yet, but we will be producing 27
chestnut flour in the future. I think that was very clear from previous… 28
29
Karen Barrows: Excuse me, Matt. Matt would like to… 30
31
Matt Hughes: Yes. I would just, as much as I have enjoyed learning more about Ms. Brewer’s 32
business plan and the trip down memory lane, I think that… 33
34
Karen Barrows: We’ve heard it. 35
36
Matt Hughes: It would be good to get to the arguments that the appellant and Ms. Brewer’s counsel 37
has, if we could just move in that direction. 38
39
LeAnn Brown: I. I. Mr. Hughes, I’m happy to move on, but I will point out that I objected to her 40
having this testimony and that my need to ask her follow up questions is solely because the Board 41
decided to receive it. 42
43
Matt Hughes: Understood. 44
45
LeAnn Brown: I too would like to have avoided a trip down memory lane. I have no further 46
questions of the witness. 47
DRAFT
31
1
Kara Brewer: Thank you. 2
3
Karen Barrows: Any questions of Ms. Brewer from the Board? 4
5
Barry Katz: Ok. So. Wait, I did. I had a question. 6
7
Karen Barrows: Ok. 8
9
Barry Katz: Maybe I’m missing something. You’re tables are 60-feet long? Tell me, 30-feet? 10
11
Kara Brewer: The tables, or the flowerbeds? Which? 12
13
Barry Katz: The tables that you have on wheels. 14
15
Kara Brewer: No, the tables are just regular folding tables, that are 8 feet long. 16
17
Barry Katz: Folding tables. 18
19
Kara Brewer: Regular folding tables. 20
21
Barry Katz: 8-feet long? 22
23
Kara Brewer: Yes. 24
25
Barry Katz: Ok. I heard a number, a different number than that. A long tables, long something. 10. 26
What was that? 27
28
Kara Brewer: Maybe you’re thinking of the bed, like the flowerbed. 29
30
Barry Katz: The outside beds? 31
32
Kara Brewer: Maybe. 33
34
Barry Katz: No. I. I. I misunderstood something there because I thought you had very long tables 35
inside that you were processing things with. 36
37
Kara Brewer: No. But I mean you can put the tables together. 38
39
Barry Katz: You said just folding tables. Alright, ok. 40
41
Kara Brewer: Yeah. 42
43
Karen Barrows: Thank you Ms. Brewer for you testimony. 44
45
Kara Brewer: Thank you. 46
47
DRAFT
32
Andy Petesch: I’d like to ask Chris Brewer to come up and address the chestnuts, whereas Ms. 1
Brown asked about and believe that his testimony, at least from my questioning, should be only 2
two minutes. 3
4
LeAnn Brown: I think for… for due process purposes if the Board has indicated to me that it wished 5
for me to cease a line of questioning of a witness that it would be appropriate to not receive further 6
evidence that continues the, what Mr. Hughes referred to as, the walk down memory lane. 7
Otherwise, the appellant has been asked to not proceed with evidence that now the property owner 8
is allowed to proceed with. 9
10
Matt Hughes: I certainly agree with that. 11
12
Karen Barrows: I think we’ve heard Mr. Brewer, so. 13
14
Andy Petesch: Alright. Now I just would would ask the record to show that Mr. Brewer was 15
available and prepared to testify about update on chestnuts, I’ll leave it at that. Thank you. 16
17
Karen Barrows: Thank you. 18
19
Matt Hughes: Thank you. 20
21
Karen Barrows: So from here do you each tidy it up with a closing statement? 22
23
LeAnn Brown: Despite the fact that you’ve heard some additional evidence this evening this is 24
really not a hearing that’s about receiving more evidence. You made a decision before, which is 25
actually on appeal by Ms. Brewer. We’ve got an odd procedural part posture because Mr. Harvey’s 26
opinion was issued before you could even get an order done and start the clock ring for us to deal 27
with it. Be that as it may I’d like to turn to Mr. Harvey’s, ask you to turn to Mr. Harvey’s, November 28
7th 2016 opinion. And I want to go through with you what he decided and why that’s wrong. I want 29
to advise you as I begin this process that under 160a388 you are empowered to substitute your 30
judgment for Mr. Harvey’s. You are this evening the people who make the determination about the 31
legal meaning of the various statutes involved. I realize that most of you are not judges by training 32
during the day, the one who is had to recuse herself from this hearing. Just as Mr. Harvey is not an 33
attorney and not a judge either, but you are tasked with deciding whether this is correct and you 34
are free to substitute your judgment for him, which means just as it meant at our last hearing you 35
could decide what this statute means and you can decide whether or not this property fits in it. And 36
so with that in mind I want to go through the process. I do want to raise for the record, I don’t want 37
to talk about it much, but I do want to raise for the record cause I am certain that we are going to 38
be elsewhere with this case before it’s over that I have serious due process concerns about the 39
fact that we have had members of the Orange County staff, including the legal staff, involved in 40
representing you and advising Michael twice and we have a situation where you’re being advised, 41
as my judges, as to procedure and I think to some degree as to what the law is while the County is 42
also advising in other ways and it’s giving me some heartburn and I want to raise it so that I have it 43
on appeal, and I’m through discussing that for tonight, that’s not your issue to decide. Moving on to 44
the opinion. The first question that Mr. Harvey addresses in his opinion is whether the property is a 45
bona fide farm. You have before you a copy of 153a-340b that Mr. Harvey introduced into 46
evidence. Chapter 153a section 340 is the grant of power of zoning. I say that to you because I 47
DRAFT
33
want you to understand that that is where this is located. It is part of the zoning power. Section a is 1
the grant of power and section b1 begins the process of talking about the farm exemption. This 2
particular section of chaptern153a is called “Part 3 Zoning”. Now, why on earth did I just tell you 3
something as boring as that? Well, here’s why. If you look at the statute that you have before you 4
and the statute that Mr. Harvey was looking at, what the statute says about farms is that 5
regulations; what kind of regulations? Regulations may effect property used for bona fide farm. 6
Used for a bona fide farm. Only for the purposes set out in paragraph three. But, this subdivision 7
does not limit regulation under this part with respect to the use of farm property for non-farm 8
purposes. 9
10
Barry Katz: Where does it say? Oh there it is. 11
12
LeAnn Brown: Do you have the copy there in front of you? Can you see it? 13
14
Barry Katz: Yeah. I got it. 15
16
LeAnn Brown: So what that means in a more common way of speaking is that the legislature does 17
not intend the farm exemption that it is telling you about here to apply to the zoning regulations, this 18
part, all zoning in the Counties in the State of North Carolina, to the extent that someone is making 19
a non farm use of farm property. In other words, under this statutory structure delightfully written as 20
it may be, what the statute means is that there is a multipart test. First question; is the property 21
farm property at all? Is it a bona fide farm? An the legislature spends a great deal of that statute 22
telling us what things a County can look at or must look at to decide whether it’s farm property at 23
all. If it’s not farm property at all we don’t have the rest of this conversation. So we go through and 24
look at whether it’s farm property. And the test is very simple. The legislatures made the test pretty 25
easy. If you’ve got a farm number then you get to walk down the path of being a farm property. If 26
you’ve got a forestry plan, even if it’s on top of your septic system, you get to be considered a farm 27
property. And so, we have not contended that Ms. Brewer doesn’t have either of those things and 28
some other things that fit those statutory tests. We, we’re not… they then went out and bought a 29
farm in another County and had some chestnuts there and I’m not contending that whatever they 30
did there couldn’t apply back to determine whether this is farm property. So we are not here to take 31
issue with whether the dirt is farm property. It’s got all the requisites to be farm property. That does 32
not mean that this property is exempt from the zoning ordinance of Orange County in a vacuum. 33
What that means is that you get to look at whether the exemption applies. And what happened in 34
this case originally is that Michael Harvey did exactly that. He looked at the issue of whether this 35
property could be considered farm property and then he looked at the use that was proposed and 36
he looked at the paperwork that had been provided to him and he said, you know, this is a non 37
farm use. And because this is a non-farm use this individual needs a Special Use Permit in order to 38
have this use on this property that might otherwise be farm property. Mr. Harvey was absolutely 39
right. Mr. Harvey’s decision that this particular use is a non-farm use and required a Special Use 40
Permit is absolutely correct. And the logic of that decision then follows through with the decision 41
that you made as a Board. Because you looked at this use and you looked at the impact of this 42
use. Look at that picture again. Look at that asphalt farm, with that gigantic barn sitting on it. You 43
look at that picture and you know that this particular use is not related to farming at all. It may be on 44
farm property, but it is not related to farming at all. It is a wedding venue. It was advertised as a 45
wedding venue, you analyzed it as a wedding venue, and you were given an honest application 46
saying, here’s my wedding venue, can I do this? And you decided that based upon the enormous 47
DRAFT
34
impacts that a wedding venue would have on this neighborhood that you could not make the 1
requisite four findings that would have allowed you to grant a Special Use Permit and nobody 2
appealed your decision. So that decision stands today. This property does not meet the four 3
findings of a Special Use Permit and therefore could not be used for a wedding venue. So, as I 4
say, Mr. Harvey was right about it when he made that particular decision. He goes through his 5
analysis here about whether it’s going back to this current analysis, it’s a bona fide farm, but he 6
doesn’t really talk about the sentence that really matters here, the sentence that he relied on 7
before. That the subdivision does not limit. The sub. This subsection. This. This statute. This 8
language in this statute is not intended to limit regulation by the County under the zoning law with 9
respect to the use of the farm for a non-farm purpose. I want to point that out to you because I think 10
it’s helpful to us as we go through the next analysis. Mr. Harvey then goes through the analysis of 11
whether this dirt would have a farm, have the ability to be looked at for a farm exemption and he 12
determines that it does and he goes through a great deal there to talk about why it does. And he 13
concludes not that the property is bona fide farm, which is the first conclusion you need to reach: is 14
it a bona fide farm or not? If it’s not a bona fide farm we’re not even going to talk about the rest of 15
the statute. He then goes on and he blends, this is his first error, he blends the question of whether 16
it’s a bona fide farm under the test that are put forth in the statute with whether it’s actually being 17
used for farming purposes or whether whether the use proposed is for a non-farm purpose. And 18
that is error one. He ignores the non-farm purpose process there. Even if you have a farm number, 19
and even if you have a bona fide farm under the under the statute Orange County is obligated for 20
the sake of the other neighbors to look at the use proposed to see if that use is for a farm purpose 21
or a non-farm purpose. And Mr. Harvey did not do that in this particular analysis. He actually then 22
concludes not that it’s a bona fide farm, which is step one, but that the use is is is bona fide 23
farming. So that’s his first error. And it would be appropriate for this Board, instead of making that 24
mistake, to say yes it has the bona fide it has the it has the farm number, it has the things that will 25
make it a bona fide farm, now let’s go on and ask the follow up questions. And the follow up 26
questions are, is it a farm use or not? If you go on and look, Mr. Harvey then gives you an advisory 27
opinion. I’m not sure why we have advisory opinions in his order. It’s unusual, I think, to include an 28
advisory opinion but this particular advisory opinion I find troublesome because what Mr. Harvey 29
stated here, I guess an explanation as to why he didn’t consider your findings of fact, is that there’s 30
no authority to interpret or eject the viability of a property owners claim of use. You’ll recall that I 31
asked Mr. Harvey a line of questions, and the question I asked him was, did he consider anything 32
that this Board had done? In listening to all this evidence about this use did he consider any of 33
that? And he said no, because he’s he’s stuck with looking at this affidavit. Let’s think about that a 34
minute. I’m I’m not aware of any statutory authority or case law that says he can’t look. I am aware 35
of a few cases under the farm use where the court talks about what the evidence shows about the 36
use so I think that’s an indicia to me that you can look. I think you must look. If you go back to your 37
findings of fact, what you found is that if you look at Ms. Brewer’s first application for the SUP, her 38
second application that Mr. Harvey rejected, and her third application the Mr. Harvey now feels 39
constrained to just take her word for everything that’s there what you will see is that that the the 40
actual scope the building, the actual size of things, the actual layout of things never changes 41
through that process. And so what Mr. Harvey’s advisory opinion means is that the County has no 42
authority to look behind what a citizen tells them in an application to see if the facts are different. 43
Really? Really? Let’s think about that. Orange County and any other county, and municipal 44
government that is looking at applications has the ability to look at whether the information in the 45
application comports with reality. They have the right to ask questions, they have the right to know 46
what’s going on, they have the right to go out and look at property, they have the right to see how 47
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35
property’s being used, and so the suggestion that your detailed findings of fact, including finding of 1
fact number nine that all these applications are really same, is something that Michael Harvey was 2
required to take into consideration. And his concern that he could not consider that leads him to 3
error number two. Because if he only looks at what Ms. Brewer wrote after re-doing her application 4
three or four times, after re-doing her legal documents with the secretary of state, after re-doing 5
everything to try to cram it into the farm exemption to get her permit, then what this Board found 6
and what this Board instructed is those applications are really the same, and you have to really 7
look at it and say, is it farming out there? Is it a farm use? It may be a bona fide farm piece of dirt, 8
but is there farming going on on it? Is it a farm use? And so the second mistake Mr. Harvey made 9
is that he failed to take that into consideration and felt constrained not to consider the facts and the 10
reality of what this Board had looked at. He then went on to determine that the structure was being 11
used for a bona fide farm purpose and he concludes that, again, based solely on her application. 12
Not on the evidence, or facts that you found. He so states in his finding, he didn’t hide it from you, 13
he said, based on what she what she signed on her affidavit it it the structure is for a farm use. He 14
then goes on to say, if it’s for farm use we’re still not through asking the questions. You know, is it a 15
farm? Ok well look at the statute. Is it a non-farm use? We’re through. Even if it may be a farm use, 16
even if there’s some tangible relationship, a person who is engaged in activities on a farm such as 17
this has to be able to show that the particular use is incidental to their farming. My ice cream store 18
is incidental to my milking cows and making ice cream. My tomato stand is incidental to my 19
tomatoes growing behind me. My Walmart is not incidental to whether I have tomatoes growing. I 20
used that argument before but I think that’s exactly right. We have to determine whether the use is 21
incidental to the farming or whether farming is incidental to the use. And what we have here is a 22
situation where we have a wedding venue and we’re going to grow a few flowers, some of which 23
may be able to be used, augment by flowers other people grow on their farms to create bouquets. 24
Weddings and music venues are going to actually be the cases where our courts finally give us 25
detail guidance on the farm exception because it’s very difficult to tie getting married back to any 26
kind of farm activity. Weddings can be agro-tourism. I mean that that’s that’s not incorrect, I could 27
have somebody come out and get married in my barn and it’d be incidental to everything that goes 28
on but when I’m running a full time business with weddings, trying to have a wedding every single 29
solid weekend, that is the business. That is the business. It’s not a, it’s not incidental to any farming 30
that’s taking place. And the statute intends. The statute intends that what is agro-tourism and 31
incidental to agriculture. If the statute intended that tourism could be done on farms they would talk 32
about agro-tourism, they’d just talk about tourism and say, well you know you do anything you want 33
on a farm in North Carolina. That’s not what our statute says. And so the next mistake that Mr. 34
Harvey made was that he determined that this structure as wedding and event center is related to 35
or incidental to the property being used for bona fide purposes. He doesn’t really tell us how it’s 36
incidental but he does go in and begin to look at definitions of agricultural and farming and various 37
incendiary statutes. He quotes from NCGS section 106-581.1, now first of all I want you to 38
understand that that particular statute is part of the agricultural development act, and it relates to a 39
statute that’s designed to get federal funding for agricultural purposes and to give counties some 40
power to do that so while the definition is interesting the definition is not a definition that the general 41
assembly gave you to help you define what those terms mean under the zoning power, in 153a. 42
Chapter 106 is not the same. And so from that point of view that definition, while interesting, is not 43
totally controlling. What is interesting about it, however, that it is it is referenced in the zoning 44
statute as a statute to look back at and what is interesting about it is if you look at the actual 45
definition in NCGS 106-581.1 what you will see there is that it carries forward this concept of being 46
incidental to. I think you have it before you and if you look at 106581.1 paragraph 6 it says when 47
DRAFT
36
performed on the farm agricultural and farming also include the marketing and selling of agricultural 1
products, agro-tourism, the storage and use of materials for agricultural purposes, packing, trading, 2
processing, sorting, storage, and other activities performed to add value to crops, livestock, and 3
agricultural items produced on the farm and similar activities that are incident to the operation of 4
the farm. Let me go back to my tomato stand. My tomato stand is incident to my growing tomatoes 5
on my farm. I’m just going sell me some of them. That makes perfectly good sense. You cannot 6
skip, when you go to this as your next definition, you cannot skip this cogent incidental, it’s 7
incidental to. And so the finding that Mr. Harvey made that the that the this is incidental to is really 8
without explanation as to how that ties back to the particular facts. And so that is your next error. 9
Mr. Harvey then talks about article 10 in the definitions of the UDO, and it defines agro-tourism as 10
a business directly related or incidental to agricultural activities occurring on a bona fide farm, 11
which is located and conducted for employment or education of the public. He then uses the 12
Merriam-Webster dictionary definition of agro-tourism as a practice of touring agricultural areas to 13
see farms and often to participate in farm activities. Well I suppose when you’re having a wedding I 14
guess you see the farm, kind of. I’m not concerned about the kindergarten children. You’ll notice I 15
didn’t ask any questions about the exhibit about the kindergarten children go out there and look at 16
flowers. Perhaps that’s some form of agro-tourism if there’s farming going on. But this wedding 17
venue concept, an event center concept, is not about coming out and looking at a farm. It’s not 18
about coming out and commuting with the chestnuts, or picking a few flowers for your wedding, it is 19
a wedding venue. It’s about the weddings. Of the seventeen brides coming out there I bet every 20
one of them thinks it’s about their wedding. Because that’s what it is. It’s a wedding envue. It’s a 21
wedding venue. So again, in the concept of what agro-tourism is, an occasional wedding on you 22
farm. If you want to get married on a farm and a farmer has an occasional wedding on a farm that’s 23
a very different concept. I live next door to Brenda Leeper’s wedding venue and people get married 24
out there from time to time. Not terribly often. She lives off of the main thoroughfare. She lives on 25
top of a whole bunch of subdivisions. There’s not much farming going on around her that’s for sure. 26
She’s about the only farm out there. She owns an urban farm. But when people get married out 27
there they’re getting married out there with the goats wandering around and they have an 28
occasional wedding, it’s out in an open building and lovely though it is, it’s designed not for every 29
kind of wedding. This is truly a wedding venue. We looked at some of the website picture before 30
and it’s designed for lovely weddings, it’s designed for formal weddings, it’s designed for weddings 31
that involve lace shoes and roses for flowers. It’s not a wedding that’s, a wedding venue that’s 32
about being on a farm. And so the determination by Mr. Harvey that somehow this wedding and 33
event center venue that use, that’s the only use I’m here talking about, weddings and events, that 34
are of that kind of magnitude are not incidental to anything going on that property, either when you 35
heard it or as it was supplemented tonight. So Mr. Harvey’s conclusion that the use of the barn 36
structure for weddings is related and incidental to the property being used for a bona fide farm 37
purpose is not tied back to any facts to support it in his opinion. And it’s not tied back to facts, 38
because if you tie it back to the facts you found that you can’t get there. We then have Mr. Harvey’s 39
advisory opinion about the building code, which I think is also a very serious thing and I want to 40
speak to it briefly. Actually, I want to back up and just mention 99e-30, which is the other place that 41
we see mention of agro-tourism and I want to point out to the Board that that particular statute is 42
fairly broad because it’s the agricultural activity, agro-tourism activity liability act, and it’s designed 43
to help people get exemptions from liability under certain things. It’s not a definition that’s even 44
incorporated into 150a. So, just want to mention that to you as we use that. The building code 45
issue is again not the issue that’s before you. The building code requirements stand separate and 46
apart as they are currently written to the zoning power. The zoning power is the power given by the 47
DRAFT
37
legislature to government to zone and what the legislature said about farms is that you have, you 1
do not have the power to impose your zoning on the, unless the use is for a non-farm purpose and 2
that’s what the deal is here. The building code statute stands separately. The opinions that are 3
attached to the building code information are… is an opinion that involve an actually functioning 4
barn that was then being used for weddings. There was a farm there first. I think factually it’s very 5
different. There’s an AG opinion there as well, which does not have the force of law, which again 6
interprets the building code statute and nothing else. I’m not sure why Mr. Harvey provided us an 7
advisory opinion there because, again, I don’t think that that information it’s A: not appealable and 8
B: wasn’t before you and C: doesn’t really get to the ultimate question that you have. I suppose it’s 9
designed to say, look you know in some other context the rules may may not be what they are. I 10
don’t have an appeal before you about the building permit. My appeal is about the zoning piece of 11
it. And I want you to make your decision based on the zoning power and what those exceptions 12
mean. So in conclusion, I think you’re hearing from me today what you heard from me before. 13
Three-part test, and we failed two parts. First test is, can it be considered a farm? Yes. Second test 14
is, is this a farm use or a non-farm use? And the third test is; is what’s going on in this wedding and 15
event center incidental? What I am asking you to do as a Board is to take the information that you 16
found in your order as facts and to go look at that information, use that information to make your 17
determinations that while this may have a farm number and it may be a bona fide farm for the 18
purpose of determining whether the statutory exemption could apply, that the statutory exemption 19
does not apply in this case to any use of that structure that is wedding and event center use. And 20
that in order to have a wedding and event center there this applicant was required to have a Class 21
B SUP, which she does not have, for which she did not appeal, and that accordingly Mr. Harvey 22
has erred and that this property may not be used as a wedding and event venue. If somebody 23
wants to use this barn to store tobacco. We’re not talking about that. I’m not talking about the 24
building code piece. I’m not talking about whether she need a building permit to have a barn. I’m 25
talking about whether you can use this barn in a way that is contrary to your ordinance and in a 26
way that is not incidental to any kind of farming purpose. And so I would ask you to both reverse 27
Michael’s decision and to substitute your own tonight so that it doesn’t bounce back and forth 28
anymore, and that the decision that you make be that it is neither incidental nor is it a farm use. 29
And I thank you very much for your time and attention. I know you are exhausted from hearing 30
about this barn and we appreciate your attention tonight, thank you. 31
32
Karen Barrows: Thank you LeAnn. Andy? 33
34
James Bryan: Madame chair? Madame chair, if I may? Can I ask for a small recess? 35
36
Karen Barrows: We can, and I wanted to just say Andy, I think we’re going to have to close the 37
public hearing around 10 because we’re going to adjourn probably at 10:30 as we’re allowed to so, 38
will that give you enough time? 39
40
Andy Petesch: I certainly will do my best. 41
42
Karen Barrows: Ok. Ok. We’ll have a break for ten minutes. 43
44
RECESS 45
46
DRAFT
38
Karen Barrows: Since it has been ten minutes I think we’ll go ahead and reconvene. And Andy I 1
think you’re up. 2
3
Andy Petesch: Thank you. So beginning with Mr. Harvey’s decision, the process that he went 4
through, the conclusions that he reached. Again, those were made in consultation with the planning 5
director or Orange County, and the County attorney’s office. And that applies to the first decision 6
that was made for which the appeal was taken and then we’re here in October and then again in 7
this case. Ms. Brown without citing any authority says that Mr. Harvey’s required to look at as much 8
information as he can possibly, I don’t know what the limits are by what he’s required to go behind 9
and test what the applicant’s submitted. But it was the County that prepared an affidavit form and 10
submitted to my client, Kara Brewer, and she filled that out and they said this is what we need to 11
determine whether your use is a bona fide farm use or not. And so to go back to that to that exact 12
point here is that when you talk about the three-part test that she characterized as a three-part test, 13
never been identified of that, but roughly there are those steps that you go through. The first is it’s 14
a bona fide farm. That’s incontrovertible. Those. There’s… meet three of the five criteria under the 15
statute. The second question is whether it’s a bona fide farm use or a non-farm use. There is no 16
definition of non-farm use to determine whether something is a bona fide farm use you have to 17
follow the definitions that are in the statute. Mr. Harvey did that. That’s the exact process that he 18
went through. That’s what his decision indicates. And when it comes to comparing the concerns 19
over this Board’s order and the timing of this order and whether he reviewed this order or went 20
ahead with the decision, if you look, I’m looking at exactly what the order says, and it says that the 21
Orange County planning director or their designee shall review the March 16th, 2016 building 22
permit application and make a determination. So it doesn’t say review all findings of fact, review 23
these other documents. There’s no direction there. It says specifically, “review the application and 24
make these determinations”, which he did. And he follows that and you can see that exact 25
instruction that he utilizes in that exact language in his decision. His original assessment of what 26
was being proposed; that was based on at the initial time when they had first purchased the 27
property, nothing had been done at that point, it was just a raw piece of undeveloped property, at 28
that point he indicated orally that if you want to do a retreat or event use, which would include 29
weddings as a use and other events, gatherings that they would need to proceed with a Special 30
Use Permit. But the record is absolutely clear from Mr. Ortoski’s email that was that was admitted 31
and that’s under tab 21 of the notebook that is part of the October hearings, that where he’s on 32
October 19th 2015 ahead of the Special Use Permit hearing that he’s introducing Kara Brewer to 33
Annie Bagget, who is with agro-tourism with the Department of Agriculture. And so clearly that was 34
the interest in pursuing a bona fide farm option was available, she was interested in pursuing 35
agriculture at the time. It was not purely a event space, wedding space project. That is again 36
underscored by the Patrick Mallett email that was introduced tonight. That was, took place even 37
prior to that. And Ms. Brewer filing for a farm ID number and that being awarded in May of 2015 by 38
the USDA. And Mr. Harvey’s own testimony that there were clear discussions about the two paths 39
of proceeding and that they were interested in doing those agriculture products. The farm, the farm 40
was a key part of it. And then Ms. Brewer was instructed not to address the farm aspect of it in the 41
Special Use Permit. And so then Ms. Brown focuses on her testimony as a Special Use Permit 42
here that’s only addressing the event aspect of what her project is. See you look at the timing of of 43
this, the history of this, and it’s, I understand, it is difficult for this Board to have gone through that 44
Special Use Permit hearing of different standards and high standards, but also very discretionary 45
standards that this Board is able to review in terms of the impact on the community, adjacent 46
property owners, etcetera. That is not outside of the standing question, which you’ve already 47
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39
decided, that is irrelevant to what you’re deciding here tonight. You have a very specific 1
interpretation of the law and that is the statute surrounding agro-tourism and it’s relation to farm, 2
bona fide farm, use and operations. But that timing, even if it was a factor is again not something 3
that defeats this because even if they hadn’t done any of those things prior to the Special Use 4
Permit there is no law, there is no authority, there’s no legal authority that says she can’t just 5
change. And after that whole thing, decided ok, well then, the way I can do this is through agro-6
tourism, through bona-fide farm. There is nothing that stops that. That’s not what the record shows 7
at all. The record specifically shows that this was all part of what her vision was and what the plan 8
was, both her and her husband, Kara and Chris Brewer. But, for arguments sake, it wouldn’t even 9
matter if that was the case. There is no authority that says they can’t do that. Where they put in 10
their building permits, how that changed, and again you heard Mr. Harvey’s testimony that they 11
rejected her January permit. They sent that back and asked for her to do it over again. That was 12
not her changing it or that wasn’t her own actions in trying to gain the system. That’s absolutely not 13
what’s going on here. The Brewer’s have started a bona fide farm. That is incontrovertible. The 14
evidence of what of what their operations are as introduced at the last hearing and supplemented 15
tonight show that they have substantial investments already in agricultural activities from the 16
$50,000 that they’d invested in chestnut operations, the hundreds of trees that they’re putting into 17
the ground, both in Caswell County and on this site combined, and the extensive flower, cut 18
flowerbeds that are being installed, bees that are being cultivated on the property, the 19
incorporation. So this kind of leads to our second fallacy that Ms. Brown has constructed around 20
this what I like to think of is the straw barn argument in this case, is that she’s reduced this down to 21
the four corners of this structure and what is the use of the barn. But again, there is no legal 22
authority for narrowing the analysis to those four corners of that structure. But even if that were the 23
case there is. It could be zero percent of that barn is being used for farm activities, because while 24
she constantly hit on the word incidental to she omitted in most cases the word related. It’s related 25
or incidental to. And as you can see under tab 2 David Owen’s book, land use law in North 26
Carolina, he goes into, on page 182, rules of interpretation. This is under tab 2. And on page 183, 27
at the top, on the second column, first sentence is, “it’s all terms within a provision and all 28
provisions within an ordinance must be considered and should be considered as a whole”. You 29
can’t read just incidental and ignore related. Related is a very broad term. She also referred to the 30
intent. And Mr. Owen’s addresses intent, he’s got a whole section on intent, and I would draw your 31
attention to those from Professor Richard Ducker, who wrote an article on this topic. It’s dated 32
2011. 33
34
James Bryan: That’s ok. Which one is it? I’ve got that one. 35
36
Andy Petesch: And I will point out he repeatedly indicates throughout this article the expanding 37
nature of the farm exemption in a statute so it’s increasingly, with almost every new amendment 38
draft that’s adopted to this new provision that’s adopted it’s an expansion of the exemption and not 39
a contraction. Again, you can see the intent of this is to broaden what’s included within it and not 40
contract and not look more restrictively at it. So again, we don’t have a definition of non-farm use. 41
We do have definitions of bona fide farm purposes. Those are again, and this was referred to by 42
Ms. Brown and I believe this was County Exhibit number 3 earlier tonight, the grant of power 43
153a340, 106581.1, and 99e-30. I would point out Ms. Brown did note this, although she had 44
indicated that it was not incorporated, not that one, the definition agriculture defined was not 45
directly implicated in section 153a340 in here. You’re actually directed by the statute the grant of 46
power to look at 106581.1, this is in tab one, as defined in that section. And that goes on to include 47
DRAFT
40
when performed on a farm agriculture, agricultural farming includes agro-tourism. And she focused 1
in on this language here at the very end, similar activities incident to that, but that’s not when you 2
read that paragraph, that’s incident to the operation of the farm. That’s not modified there, that’s 3
modifying in similar activities related to agricultural items produced on the farm. It’s clear that it’s, in 4
reading that in context, it is when performing the farm. Agriculture, agricultural, and farming also 5
includes agro-tourism, period. Now, she also pointed out that 99e-30, which does define agro-6
tourism and it’s not, it defines agro-tourism activity, that’s not directly linked to the zoning powers or 7
106, chapter 106. However, again, this is Professor Owen’s citing, this is under tab 2, under rules 8
of interpretation, if you look on page 183 and this is footnote 24. He cites, development associates 9
versus Wake County Board of Adjustment, 1981, Court of Appeals case, North Carolina Court of 10
Appeals case for the proposition that a it is appropriate to examine other statutes defining 11
agriculture in reviewing the scope of bone fide farm exemption from County zoning. So he directly 12
points to another case where the court went and looked beyond the specific section that they were 13
looking at in terms of zoning, and agriculture, and bona fide farms to other chapters in the statutes 14
that weren’t directly linked to try and find that, you know, understand better that definition and 15
whether in that case should they the applicant was trying to claim, the property owner was trying to 16
claim that their dogs were, should, be considered as livestock. And so the courts went through an 17
exhaustive examination of the statutes looking in about four different chapters. None of which were 18
addressed or cited in that zoning section to try and understand, interpret the definition of livestock. 19
So it makes. It’s perfectly consistent with that decision in this case to look at chapter 99e in 20
identifying how agro-tourism should be defined. And again, I have that walk through under tab 11 21
of the notebook. It breaks it down very clearly. Any activity. Can’t be more broad than that. Carried 22
out on a farm that allows members of the general public for recreational, entertainment, or 23
education purposes. And in this case the record is clear that there are recreational, entertainment, 24
and education. Because even education when it comes to weddings, because they’re doing flower 25
picking, arranging, workshops, learning about different flowers, doing honey tasting, learning about 26
the bees, doing farm tours, learning about the farming operation, and that if you’ll recall, that’s 27
exactly what Erin White testified to, is that the purpose of agro-tourism is to bring people to rural 28
areas so they can learn about the cultural economic and other values that agriculture brings to this 29
state, and this community. And then the next clause to view or enjoy rural activities, clearly being 30
done here including farming, ranching, historic, cultural, harvest your own activities, those are 31
those are part of this operation and part of weddings, and natural activities and attractions. So it fits 32
that definition. The definition is broad. Both of the cases that I cited last time and Mr., Professor, 33
Ducker’s broad article underscore that the policy of this state is to be broad and encouraging of 34
agricultural activities and not constricting and reductive. And that is consistent with the idea of 35
property rights and that zoning, zoning laws, zoning regulations are in derogation of property rights 36
and vote it should be looked at very narrowly as to when those zoning laws apply. When they do 37
apply they apply of full force, but they the preference is for those regulations not to interfere with 38
property rights to works, those are all consistent policies within this state that are counter to Ms. 39
Brown’s argument. I’ll point out also as was identified that weddings are included on the North 40
Carolina Department of Agriculture’s website that specifically defines agro-tourism, it’s included. To 41
the activities are absolutely related, the record is unequivocal about that. And I would also point 42
out, finally, Ms. Brewer attended the Orange County Ag Summit and Professor Owen’s quoted at 43
that summit. 44
45
DRAFT
41
LeAnn Brown: I object and ask that the Board not look at this. This is a copy of a news article and if 1
you are going to consider this I would like a recess to call David Owen’s as a witness about what 2
this happens to say. 3
4
Karen Barrows: will not consider it. 5
6
Andy Petesch: I’m sorry, I’m. 7
8
Karen Barrows: We can’t consider it I don’t think Andy. Thank you though. 9
Andy Petesch: So in closing, the Applicant’s here to this appeal, they were a part of the Special 10
Use Permit hearing. The Opponents in that case to the Brewer’s application took an all or none 11
approach at that time. This Board could have approved it with conditions that addressed the 12
number of guests, and a number of other issues that dealt with the intensity of the use. The Staff 13
report, Mr. Harvey’s testimony at that hearing indicate that he had communicated with the 14
Opponents, that there was an option that the Special Use Permit wasn’t the only way that they 15
could do, that the Brewers’ could do, an event facility. That it could also be done as a bona fide 16
farm. They knew that, and yet they focused on having that Special Use Permit, which was their 17
opportunity to have conditions placed on this to minimize the affects that they are concerned are 18
going to impact them. This is not a case of the Brewers’ trying to get a second bite at the apple 19
somehow. They were told early on that there were two paths for them. This is a case of the 20
neighbors wanting a second bite at the apple because they missed their opportunity to have to 21
affects addressed mitigated through this Board’s conditions in a Special Use Permit. And because 22
Ms. Brewer veiled herself with that process there’s an argument she would have been bound by 23
that and not at that point, not had that opportunity any longer to seek the bona fide farm exemption. 24
25
Barry Katz: Could, may I ask you a question? 26
27
Andy Petesch: Yes. 28
29
Barry Katz: First, there were the Brewers’ elected to go for a Special Use Permit. Right? Now, 30
they’re claiming that it’s a bona fide farm and they don’t need a Special Use Permit. Am I, Am I 31
right about that? Is that what’s being said? 32
33
Andy Petesch: There, yes, they… 34
35
Barry Katz: Are suddenly not subject to zoning and you’re telling us this is not a second bite of the 36
apple when in fact they had two options, they went through one option, and we made our 37
judgment, and now they’re saying that’s not really relevant because we’re a bona fide farm. So 38
that’s a second bite as far as I’m concerned. 39
40
Andy Petesch: I appreciate you’re your perspective on it, I would submit that they had two, a 41
second bite, meaning that they are trying, that they’re getting something that they, another chance 42
when they already had their chance. There were two chances on different paths in this case and so 43
they’re not trying to get another shot at something that they could’ve gotten, should’ve gotten 44
earlier, that’s, I would argue what the adjacent property owners are seeking in this case because 45
they could’ve had those protections as part of the Special Use Permit if they had presented that to 46
the Board at that hearing. They did not suggest that certain conditions be placed on it so that they, 47
DRAFT
42
and allow it, and then the County at that point would’ve been in charge of enforcement. They 1
instead took the approach that they wanted all or none, they wanted it turned down, and that left 2
them in a position now where they’re trying to fight on the grounds of the bona fide farm exemption 3
and they’re clearly exempt. I’m sorry that the threat of that exemption is so wide, but that’s the 4
policy of this state. As simply the policy of this state and you must affirm Mr. Harvey’s decision. 5
6
Karen Barrows: Thank you. 7
8
LeAnn Brown: Madame Chair, as the Appellant may I have my rebuttal? I think I’m entitled with the 9
party of proof to be last? I’ll be very quick. Very quick. 10
11
Karen Barrows: We have till 10 o’clock, that’s it. 12
13
LeAnn Brown: And I promise you I’ll be through by 10 o’clock. Number one, Mr. Petesch said that 14
there is no authority to look behind the affidavit. The authority to look behind that affidavit starts 15
with 160a388, which allows my client to appeal Mr. Harvey’s decisions and which requires you to 16
take evidence. We went through that process, you took evidence and apparently it made no 17
difference whatsoever in his opinion and that’s an error. And if you want authority you can start 18
there. The cases that have dealt with the farm exemption have all looked at evidence and looked at 19
evidence deeper than an affidavit. You can also go there. But the statement to you that there’s no 20
authority for evidence to be taken is absolutely and patently false, and it starts with 160a388. What 21
Mr. Petesch did not argue you to you that I think is very important is he never explained to you how 22
this use is in fact related to or incidental to this wedding venue. So we heard a lot of argument 23
about that but it was really, there’s really nothing there that that answered that question. The 24
Drucker article that you were handed deals with expansion of the farm exception to allow people to 25
have multiple tracks has nothing to do with the question before you today. The argument, I don’t 26
know what to do with the argument that says if the people who opposed the SUP had decided to let 27
you grant it with conditions they wouldn’t be here today. That’s an amazing argument to me. I just 28
don’t even know where to go with that. They were not required, they were not required to say well 29
we’re scared you may go some other way, let us go see if we can get you to condition up our SUP. 30
They put on evidence as to impact and you decided what that impact meant and you decided it 31
was too much, and so I can’t do much with that argument, except to say that’s ridiculous. I I did not 32
say to you, if I did I misspoke but, 160a581.1 was not referenced in the Statute, what I said is that 33
that Statute when you read it picks up that concept of incidental use in the definition. 99e, which 34
relates to liability is the one that’s not incorporated and while you can certainly look at it, it’s written 35
very broadly because it’s designed to address something completely differently. With that being 36
said, you have the power and the authority to take evidence. You have to power and authority to 37
act on it. You’ve done it. You remanded it. It didn’t work. I’m going to ask you to take what you 38
decided before, apply your judgment to the decision, and ask you to reverse Mr. Harvey, and thank 39
you. I have three minutes left. 40
41
Karen Barrows: Let’s go wild. Any questions from the Board for staff or lawyers? Barry? 42
43
Barry Katz: My question is to our attorney. We’re going to need. I think, possibly, need some 44
guidance in how to frame whatever it is that we decide and how to go about this. So, that’s just a 45
general prayer for some assistance, ok? 46
47
DRAFT
43
James Bryan: Yes sir. 1
2
Karen Barrows: If there are no questions for Michael or lawyers, is there a motion to close the 3
public hearing? 4
5
Motion made by Barry Katz to close the public hearing. Seconded by Susan Halkiotis. 6
VOTE: Unanimous 7
8
Karen Barrows: So. Where are we? What are we thinking? 9
10
Barry Katz: So Mr. Harvey’s decision was based on Statute, on the State’s Statutes as he saw 11
them, and that this was considered a use that was that was viable and acceptable for a farm. Is, 12
sums up. Seems to me. That was as far as it went. What we’re hearing, and of course so all the 13
time that we spent reviewing all of this in two hearings was not considered, it’s not relevant, it’s not 14
germane because the State laws are the determining factor in this case and that’s as far as it goes. 15
I suppose we could have known this if that were the case, before we went through those two 16
hearings. 17
18
Barry Katz: It might have been good if that were the, true. So really, all along the real question is is 19
this event center, this wedding venue a non-farm use or a farm use in and of itself. It’s the scale of 20
the thing, it’s the history of it; does it bear any evidence that this is not a farm use? If it’s a farm use 21
then there’s nothing need to be said. It would be, it would’ve been done. And we have considered 22
this in a Special Use Permit, and then we considered it again through two more hearings when the 23
argument was made that it was a use incidental to farming. In both cases we basically decided that 24
the scale of this, the, it was not in proportion to what, where ordinarily expect a wedding venue and 25
a farm to be. It’s, what is it, 150-year old farm, that barn that was transported at great expense to a 26
location in part of Orange County, 125 parking spaces, it’s a full blown event center is what it is. 27
And is this, again, according to, what is it? 153a340b1? Again, as the unmentioned use of farm 28
property for non-farm purposes. To me, that’s what we have to consider. Are there other things we 29
need to consider? 30
31
Karen Barrows: Well I was thinking about this in seeing how often incidental came up. And it’s 32
and/or incidental and it appears and it appears. So I looked up incidental in Webster’s dictionary: of 33
a minor, casual, or subordinate nature, a minor occurrence or circumstance, event item or 34
expense. We’ve heard evidence that the cost of the barn was almost $735,000 just electricity was 35
$74,615; is that a minor expense? And then Mr. Brewer was asked how much was invested in the 36
chestnut operation at Morrow Mill site: he said five to seven thousand dollars. Cost of processing 37
was asked: five to eight thousand dollars. When you compare those figures, it doesn’t sound to me 38
like it’s incidental. And to your point, wastewater and well permits for 250 guests; is this a minor 39
circumstance? I don’t think so. It doesn’t feel like it to me. And the parking lot, 150. So. 40
41
Susan Halkiotis: I think that my processing of all the evidence that’s been presented is following the 42
same train that you just mentioned Karen. I’ve listened very carefully at all of these hearings, all 43
three. And at this one particularly. And I’m not convinced that this is either related or incidental. I 44
think it’s the other way around. I think that the planting is what’s incidental. I believe that it’s farm 45
property being used for non-farm purposes primarily. And as Karen pointed out, the majority of the 46
investment in the property is in the wedding venue. And I don’t think that that barn and the wedding 47
DRAFT
44
venue is incidental. And I understand that it includes the term related. So I’m not inclined to support 1
it’s, the present plan that’s been approved. And I don’t know what our motion should be but I still 2
have lots of questions about this. 3
4
Matt Hughes: Well I understand some peoples belief, primarily based on the plan regarding parking 5
and planning for, you know, significant number of people on this property, and the cost. And I 6
believe that if they, if the Brewers’ had decided to build a barn that conceivably the cost to build a 7
barn, rather than move a barn, would still be much more than the cost to plant the flowers, plant the 8
chestnuts, that expense would still be greater that the cost to build a new barn would still be 9
greater than than the planting. But I can also see why they would plan for a facility that even if you 10
wanted, say was incidental to their, that the event space was incidental to the flower business, we 11
don’t build highways for traffic at 2am, right? We don’t build a four-lane highway because it’s not 12
going to get, based on a usage at 2am where you’re going to have very few, if any, cars. What I 13
think they were doing was planning for the times where they would have a lot of volume, and I think 14
that’s perfectly understandable. What, what I do believe is that when we did this order back in 15
October having the line of acknowledgment that this issue in one way shape or form was probably 16
going to come back to us. It was just a matter of if and when, and here we are in March about six 17
months, five six months later, and it’s before us again. As I believed then as I do now, I do believe 18
that having this event space is part of a farming operation. And I can see folks in the audience 19
disagree with me, but I believe that what the Statute says and I believe what the North Carolina 20
Department of Agriculture has promoted as agro-tourism is under those definitions a farm use, and 21
until the courts, as Ms. Brown said earlier, until they weigh in and are very specific or the General 22
Assembly clears up their language then I believe this is a perfectly acceptable farm use. And I 23
understand why people would not support this in this community. It’s not a large community; it’s a 24
community that if you visit it you have to purposefully go there. I wound up in the community by 25
accident driving through rural Orange County, I took a wrong turn thinking I remembered the roads 26
a little bit better than I did, and so this this could be a big disturbance, or would be a big 27
disturbance, but I believe that the issue before us is whether or not I think staff erred in making its 28
determination; I don’t believe they erred. And you know the thing is though, I feel as though we’re 29
in an age where we’re not trusting professionals to use their professional judgment in making 30
decisions and so, you know, I believe that Mr. Harvey made the right decision when we remanded 31
it back to him or remanded it back to the planning director, who then in turn designated him to 32
weigh in on this, and he has the working professional knowledge as our entire planning staff does 33
to make these determinations with the information that’s out there with the school of government 34
and the Department of Agriculture. And so, I come from the education field where we have to trust 35
our teachers to be the professionals in the classroom and so I understand that and I trust the 36
professionals in our planning department. 37
38
Susan Halkiotis: I just, I need to, I appreciate. 39
40
Matt Hughes: I don’t appreciate the hisses by the way. 41
42
Susan Halkiotis: I appreciate and respect what Matt had to say, and I want to follow up on that just 43
to make sure that I state that I have great respect for Mr. Harvey and in no way would I want any of 44
my comments to be taken to indicate anything other than my respect and appreciation for what he 45
does. 46
47
DRAFT
45
Matt Hughes: Absolutely. 1
2
Barry Katz: Well again, I believe the question then is; do we just look at these, do we, do we look at 3
these issues here in a vacuum? Do we look at 153a340 or 1065811 or any of these things here? 4
Just on the page? We know a lot about this, this particular plan, we know a lot about how things 5
came to be and what the real focus is, the focus is not on agriculture itself, it’s on agro-tourism and 6
you have to have an ag in order to have the agro-tourism, and so there’s an attempt to create an 7
ag or on face value because they have a permit, you know? Then they’re ag. But in fact I really 8
believe that this, the motive and the facts that were presented to us indicate to me that the intent is 9
a non-farm purpose. That, I really believe that. And I would support reversing the decision made by 10
the planning supervisor in this case. 11
12
Karen Barrows: So in that case, I think you were asking James how to word a motion so that… 13
14
Barry Katz: Do we have to go beyond reversing the decision? 15
16
James Bryan: Yeah, I think it’d probably be in your best interest to clarify that. Because, so what’s 17
going to happen if this were to be appealed to Superior Court, Superior Court’s going to look at two 18
different things; that the law and the facts. And the facts, you guys get a lot of discretion. That’s like 19
at a Special Use Permit hearing and whether something’s going to be safe or not. As long as you 20
have something competent, you know, competent evidence you might get some discretion there 21
but the law you have no discretion on. Same thing Mr. Harvey has no discretion on and so if he 22
had a reasonable interpretation of the UDO and said I think this is what it means, that might be a 23
reasonable interpretation but it’s either right or wrong and this Board has the authority and duty to 24
step in and say somebody has appealed your determination, your interpretation of the UDO; it’s 25
either right or wrong. If it’s right it’s pretty clear, you could just rely on why do I think it’s right, 26
because what you told me, ok. If it’s wrong you have to say, ok that was wrong; this is what you 27
should have done. LeAnn gave her three steps, is that your three steps, then walk through those 28
three steps and say you should have asked whether this is a farm and it’s uncontested that it is, 29
you should have asked whether it is a farm purpose or non-farm purpose, and then you could use 30
that framework and then apply the facts to that. I think, I know for myself I’ve worked on this for a 31
long time in many different cases related to this. It helps to write it out and have my thinking and I 32
read it differently different times that I read it. The Statute is not clear. But have in your mind, and I 33
wouldn’t rush this decision. I know you all have spent a lot of time but you know, this is very 34
important that you all get this right so, look at what does the UDO require. 35
36
Barry Katz: My understanding is the UDO is not relevant, is not pertinent to this. 37
38
James Bryan: I believe there was testimony that. So Michael’s letter, the November 7th one, is to 39
Michael Rettie, who’s a building inspector, so there’s a process in place. What it was was there 40
was a building permit and as you heard there is testimony that the building code is separate, it 41
stands alone, it’s not the zoning power. So the building code, a separate thing, was going to issue 42
a permit and they… 43
44
Barry Katz: Wow. 45
46
DRAFT
46
James Bryan: Long ago said, hey, we got an affidavit from this owner, that’s all we’re going to use. 1
Then this Board at this last hearing said, no, no, Michael Harvey, you need to step in and 2
determine whether a zoning compliance permit is necessary. So that’s what this hearing is, is 3
whether the zoning compliance permit is necessary. Zoning compliance permits is from 2.4.1 of the 4
UDO and it says before any structure is erected you need a zoning compliance permit. Now, 5
there’s no debate about that, it’s uncontested. Now, if you look at, I believe it is, UDO 1.1.8, that 6
says, hey, this whole UDO doesn’t apply to farm purposes except for non-farm purposes and it 7
references the Statute. So that’s what kicks us back to the Statute and says ok the UDO wants to 8
mirror the Statute, what does the Statute say? 9
10
Barry Katz: Ok. 11
12
Matt Hughes: So, under the UDO what would be a non-farm purpose? 13
14
James Bryan: Ok so, it’s very interesting; it does not define that any place. It has an earlier 15
reference to as defined in the Statute. So you would look at the Statute. You’ve heard in arguments 16
from Mr. Petesch that said that non-farm purposes are not defined, but farm purposes are defined 17
so I believe what he was arguing was look at that list, if it’s anything other than that list it’s non-18
farm. 19
20
Matt Hughes: Ok, so conceivably if we were to make a decision about farm uses versus non-farm 21
use, conceivable someone could, in our position, say well they’re not proposing an oil refinery on 22
this land therefore that might be a non-farm use, but something related to agro-tourism would be a 23
farm use, possibly? 24
25
James Bryan: Right, yeah. So in the Statute lays out what is, I refer to it as bona fide farm 26
purposes. That’s the four-word phrase that pops up every place. Bona fide farm purposes. And it 27
says it in the 153a340, it says, bona fide farm purposes, and then it lists all the typical things you 28
thinks of; crops, blah, blah, blah. And agriculture as defined in 106, so that kicks you over to 106. 29
What’s 106? Oh, 106 says all these different things and then that’s the part where it says and agro-30
tourism and then you heard an argument that, ah but it’s only agro-tourism if it’s incidental to the 31
operation of a farm, and you heard a counter argument that no no it’s agro-tourism and then you 32
also heard, I believe, another argument that or incidental to the farm. 33
34
Matt Hughes: So one of the things that in the appeal we’re being asked to consider is determining 35
whether or not the property is being used for bona fide purposes and then whether or not the 36
structure that has been proposed on the property is for bona fide farm purposes, so those seem 37
like two different questions. To me it would seem as though because SPG is in the fall tested some 38
flower crops have their, I’ll call it, research and development piece that the property, the land itself 39
is being used for bona fide farming but there could be a contention among some of our Board 40
members who would say the structure is not for bona fide farm purpose. Is that? 41
42
Barry Katz: You’re on to something I believe because I don’t think that anyone could doubt that 43
they have a, that it’s a farm, essentially, but is this structure a non-farm use? Even though agro-44
tourism include weddings. Is the, is the fact that there are weddings incidental to the farm? By 45
claiming that people will pick a flower, that’s the justification for the fact, or you know, flowers would 46
be used in the wedding, or someone might taste some honey, that this makes it a farm use? 47
DRAFT
47
1
Matt Hughes: Well, and I think the flaw in this in some ways, and I think it’s what’s getting us 2
caught up to a certain extent is that there’s really, I don’t want to talk about business plans because 3
I feel like I admonished some folks for talking about business plans, but there really seems as 4
though there are two business plans. And they’re running concurrent with one another. The farming 5
and the event space. Conceivably if the farming took place first and then the venue came at a later 6
date then maybe we wouldn’t be caught up so much on it. But we are taking all the passion that we 7
know folks feel about this issue and that’s why I point out in the, what the appellants are asking us 8
to do some of those questions are completely different about what is being done on the land versus 9
the structure and I think the structure is really what is the issue with the appellants, more so than 10
using the land for flower cultivation. 11
12
Barry Katz: With the structure there’s also the scale of the operation in relation to the agricultural 13
component. And, again, since we went through a Special Use Permit on this we realize that we 14
came to agree that the neighbors would be harmed in some way; their property values, or their 15
quality of life, by light, by sound, by traffic, etcetera, would influence and diminish; it wasn’t in 16
keeping with the area. Ok. And that had to do with the scale. If somebody has a farm and has a 17
wedding on it, well, that’s just how it is. But actually, this is, this is a business, this is a wedding 18
business, or an event business, that’s what it is. And it’s happening on a farm. 19
20
Susan Halkiotis: And just to point out that scale, and Barry kind of touched on it, but scale included 21
not only the numbers of people involved but the frequency of the events, which I think that the goal 22
is to fill up every weekend and even use some earlier, that was the testimony. To schedule every 23
weekend and maybe even some Friday dates that were people were beginning to, brides were 24
beginning to look at weekday weddings to be cost efficient. So I want to point out that it wasn’t just 25
people, scale in terms of numbers, scale in terms of frequency. 26
27
Barry Katz: Here, when you make an investment of this size you want to return on your investment. 28
I ran businesses and I look at this from a business perspective and say this is an event business. 29
That’s what it is. And is this event business happening on a farm a non-farm use? And all that we 30
know about it I would say that it’s a non-farm use. That it’s a business in and of itself that happens 31
to happen, occur, on a farm. Do I have to point to the evidence that we heard or is it already in the 32
record from the fact that we’ve come to this conclusion in the past? 33
34
James Bryan: It’d probably be best to holler a few things. But before that I want you all to make 35
sure. State the rules first, and then get to the facts, because so, as I understand it Barry, for yours, 36
you’re saying that, you’re agreeing that that it is farm property but this structure will be used for 37
non-farm purposes? 38
39
Barry Katz: Yes. 40
41
James Bryan: Because while agricultural is a bona fide farm purpose agro-tourism is not. 42
43
Karen Barrows: I don’t think we’re saying that James. I think we’re saying this use is not incidental 44
to the farm. 45
46
James Bryan: But why must it be incidental? 47
DRAFT
48
1
Susan Halkiotis: Because it says so. 2
3
James Bryan: Ok. 4
5
Susan Halkiotis: Isn’t that a definition of agro-tourism? 6
7
James Bryan: So. 8
9
Barry Katz: Bona fide farm purposes. 10
11
Karen Barrows: Right. 169 of our packet, number two. Related and incidental to the operation of a 12
farm. Number three, five, incident to the farming operation. I think my point was I can’t feel like this 13
is incidental. Number six, incidental to the operation of a farm. 14
15
Barry Katz: So you identified sites that we can use to justify what it is that we’re saying from the 16
perspective that we’re both told the obligations that we have according to our counsel, correct? 17
18
James Bryan: Yeah I think so. 19
20
Barry Katz: Thank you. 21
22
James Bryan: So, I’m. Never mind. 23
24
Karen Barrows: So would we like to try to craft a motion? 25
26
Barry Katz: Counsel, are we ready to craft a motion, based on those points? 27
28
Karen Barrows: We do agree it’s a farm. 29
30
James Bryan: Let’s… Yeah, let’s start. I can start writing it down. So, when Michael gets a building 31
permit sent over to him and he has to determine whether it’s exempt or not, first he’ll look at 32
whether it is farm property or not. Is that right, is that what the Board’s general feeling is? 33
34
Susan Halkiotis: I think so. 35
36
Barry Katz: It’s a farm. 37
38
Karen Barrows: Mm-Hmm. 39
40
James Bryan: And that’s uncontested, as I understood it. Because of the farm ID number and the 41
forestry plan. And the second task I believe LeAnn proffered was whether it’s farm-use or non-farm 42
use. 43
44
Susan Halkiotis: Right. 45
46
Barry Katz: And that would be incidental. 47
DRAFT
49
1
Karen Barrows: Mm-Hmm. 2
3
Barry Katz: In this case the fact that whether it was incidental or not would be important as far as 4
whether it’s a farm use. 5
6
James Bryan: Ok because we’re looking at 340, 158a, or 153a340 b2, it says all other forms of 7
agriculture as defined in 106 and 106 says all of these things and we’re reading that all of these 8
things have to be incidental to. 9
Karen Barrows: Right. 10
11
Barry Katz: Ok. 12
13
Susan Halkiotis: I had written the three items that we needed to come to agreement on as being 14
number one, whether or not it’s a farm, which it is. Number two, whether it was a farm or a non-15
farm use. And number three was whether or not it was incidental. And I think that I got that right. 16
Related or incidental. 17
18
James Bryan: So can I ask the Board, how does it figure in, you heard testimony that there will be 19
the flour processing in the future, but not now. So what about the time component? Does Michael 20
and you all look at it as it’s being used now? Or well it can’t be used now because when you get 21
the building the application for the immediate use of the building? 22
23
Susan Halkiotis: I’m not sure I understood the, your question. 24
25
Barry Katz: I know. 26
27
Michael Harvey: I’m sorry, I need to interrupt; it is 10:29 in 30 seconds. 28
29
Barry Katz: Right… Extend 20 minutes. 30
31
Karen Barrows: Exactly. 32
33
Michael Harvey: There needs to be a motion to extend the hearing for. 34
35
Barry Katz: 20 minutes. 36
37
Michael Harvey: 20 minutes, that’s your call but I only interrupt for that purpose. 38
39
Motion made by Barry Katz to extend the hearing for 20 minutes. Seconded by Susan Halkiotis. 40
VOTE: Unanimous 41
42
Barry Katz: Well Matt made, had made the point that there were, that’s a two business buyouts 43
going on. There’s the agricultural and then there was the wedding venue, or the event business. 44
And that, so when you ask about the use of the building it may be that there’s a dual use where 45
there’s, where the main business is is events, and then there’s the use of the building to do the 46
agricultural part. Well, well I don’t know. 47
DRAFT
50
1
Matt Hughes: Well, I think that also speaks to something else and that is if we determine that the 2
structure is not being used for a bona fide or won’t be used for a bona fide agricultural purpose or 3
farming purpose my. I mean, even under what the appellant is asking for, as I read it, the farm is 4
already erected. The farm is already there. Even if. Or the barn is already erected; the barn is 5
already there. So even if we issue a stay the building is still there. It’s just it cannot be used for 6
wedding or event space. So all the pieces for a future event space are already present. So really, 7
whatever y’all determine today, I mean the facility is there. So, really, it’s just whether or not, in my 8
opinion we are allowing them to move forward in using the. Allowing the different components of 9
their business plan to operate concurrently or not. 10
11
Karen Barrows: I think you’re right. 12
13
James Bryan: I’m sorry Matt, to clarify your point. So the application, are you saying that there’s 14
any farm purpose being used for the structure? And. 15
16
Matt Hughes: Well based on, well based on what we’ve heard, yes. The building itself would be at 17
some point in time during the year, whether it’s used for storage of flowers, or processing of, I think 18
we heard at a previous hearing, chestnut flour, and other things. So the structure itself would at 19
some point be used for a bona fide farm purpose. I think where the hang up is is the event space 20
purpose. And so if there is a motion, one of the things I’m going to ask for is a division of the 21
question and vote on each component of it individually. If that, if that comes up. Because I would 22
like to register opinion on the various components of a motion where I may agree with the majority 23
on the Board, but I do think it’s a more complicated issue than, than maybe it’s even been 24
presented to us because we do have really these two different businesses on the same piece of 25
property. 26
27
James Bryan: So, I’m sorry. It’s late. I’m tired. So you’re saying, you would be saying that an 28
exemption exists for A, B, C; the honey tasting, but a zoning compliance permit would be required 29
for weddings, the children’s tours, or? 30
31
Matt Hughes: I mean, I can see conceivably that is where we could. 32
33
Barry Katz: I’m sort of cold on that myself. 34
35
Matt Hughes: We could come down. 36
37
James Bryan: I think that’s one thing the Board has to consider is whether any non-farm use pulls 38
the entire structure out of the exemption. 39
40
Susan Halkiotis: Well, you know, the way that Matt phrased that suggestion is interesting because 41
what he said was that he could see how there were two separate businesses that are running in… 42
43
Matt Hughes: And as Ms. Brown said, they’re not contesting the agricultural, if I heard her correctly, 44
the agricultural component of this, which is the flower business. 45
46
DRAFT
51
Susan Halkiotis: Right. Because, and the word separate, I mean specifically means not related or 1
incidental to. So it’s an interesting way of putting it. 2
3
Karen Barrows: Mm-Hmm. 4
5
Susan Halkiotis: That I hadn’t really considered before. But you’re right, it’s two separate 6
businesses and one of them, they’re not incidental or related to each other. You know, in fact, as I 7
said earlier I think one of them if we would, if we had to make that determination then the flower 8
and chestnut and honey business to me are the ones that, you know, are subjugated. So I don’t 9
know if that does anything for anybody else on the Board or not. 10
11
Karen Barrows: Makes sense. 12
13
Susan Halkiotis: And I don’t know what options that gives us to consider that. To consider it as two 14
separate businesses. 15
16
James Bryan: I think you could look at the question as when Michael Rettie, the building inspector, 17
sends over the building permit application and says to Michael, Michael Harvey, look at this. And 18
now you guys are in that place. 19
20
Barry Katz: You can’t have a wedding. 21
22
James Bryan: You can say it is exempt for these purposes and a zoning compliance permit would 23
be required for these purposes. So the, I believe that in you, you’ve got the building permit 24
application; it has a little section for purposes where there are several different things mentioned 25
and then you’ve had three nights, two hearings of all these different purposes. So I think you’ve got 26
enough evidence to say you know, for these purposes it is exempt for these purposes, a zoning 27
compliance permit is required. 28
29
Barry Katz: Can we put that under motion? Is that? Are we ready to do that from you perspective? 30
31
James Bryan: Yeah let’s start figuring it out. So. 32
33
Barry Katz: We’re talking now about a building permit, and about parameters for a building permit, 34
correct? 35
36
James Bryan: We are, we are not talking about a building permit in a technical sense in that that is 37
outside of this Board’s jurisdiction. You all are merely stepping into the shoes of the zoning 38
administration saying whether a zoning compliance permit is required for a particular use or if that 39
use is exempt by the UDO and the Statutes as being a farm purpose. 40
41
Barry Katz: Fine. Our motion would, considering what the consensus seems to be, what majority of 42
the Board feels is that zoning permit; a zoning permit? 43
44
Susan Halkiotis: A zoning permit. 45
46
James Bryan: Zoning compliance permit. 47
DRAFT
52
1
Barry Katz: Compliance permit would be required for the use of this facility as an event venue, 2
including weddings, or whatever other things they intend to do in it. Because we consider all that 3
we know about this that these are non-farm uses in this context. We’ve been through. We know a 4
lot about this. Unfortunately that’s not coming into a sentence or two. We can’t. I can’t find myself 5
distilling it in there. I think we have to. Here’s what I think we have to say is we have to have, again, 6
the finding that the wedding venue, we determined that the wedding venue isn’t, is a non-farm use, 7
and then we can state that a zoning compliance permit would be required to use this building for 8
the as an event space. Does that make sense? Are we closer? 9
10
Susan Halkiotis: Well that’s what I thought that James said. 11
12
James Bryan: I think… 13
14
Barry Katz: That’s what you just said? 15
16
James Bryan: So, is it going to be unilateral that there’s no weddings or 17 weddings or what is? Is 17
there a line drawn? Or are you just saying that? 18
19
Barry Katz: I would say no weddings. I would say no use as an event space, that this is, would be a 20
non-farm purpose. 21
22
James Bryan: Can I? So you’re deciding on it that weddings, as proposed, aren’t incidental? 23
24
Karen Barrows: Right. 25
26
Barry Katz: Exactly. 27
28
James Bryan: But they could be incidental. 29
30
Karen Barrows: They could be. It doesn’t sound like it. 31
32
James Bryan: Is that what? 33
34
Barry Katz: They could be, yes, they could be but from, from what we’ve heard we’re only looking 35
at this from the point of view of whether that they’re not incidental. The the the way, what we’ve 36
been discussing is not incidental, you know? 37
38
James Bryan: Ok. 39
40
Karen Barrows: Thank you Bryan. 41
42
Barry Katz: We’ve looked at this a lot. 43
44
Susan Halkiotis: You know, and maybe that’s not the way to go. I don’t know. You know, I. 45
46
Barry Katz: Somebody make a motion on this, I can’t do it. 47
DRAFT
53
1
Susan Halkiotis: Well if I knew what the motion should be I would, you know, how it should be 2
worded and what it should be included, what should be included in the motion I would make it. 3
4
James Bryan: So what was… 5
6
Karen Barrows: I thought we were supposed to decide whether Michael had erred in his decision. 7
8
James Bryan: Where is Michael’s? 9
10
Susan Halkiotis: Well I. You know, I’ve got one more thing to say about that. You know I, because 11
we have looked at that decision and based on Michael Harvey’s handling of it after our directive to 12
look at the March 2016 application and I just don’t know how I lost this particular part of what we 13
did but I don’t remember restricting our directive to him to the March 2016 application. I mean, just 14
for the record. 15
16
Karen Barrows: Mm-Hmm. 17
18
James Bryan: And the Board’s not bound by that, but. So the only thing’s that can be appealed are 19
final and binding determinations. Michael made three here. And I think you can look at his first one; 20
is the property a bona fide farm? And he says that it is. 21
22
Susan Halkiotis: See; let me clarify what I just said. 23
24
James Bryan: Ok. 25
26
Susan Halkiotis: I understand that that’s the directive that was heard, but I’m, that’s certainly not 27
what I intended. I mean I understand, but what he did, these are his findings based on the 28
paperwork he’s got in his hand from March 2016 and I’m not arguing with that but that certainly 29
wasn’t my intent, and I don’t know whether it was everybody else’s intent or not. So there may be 30
other people that have the, have a different… 31
32
Karen Barrows: So James, you want us to just go through the abstract and address each one of 33
Michael’s? 34
35
James Bryan: Well I think you can start by affirming his decision that it is a farm. 36
37
Karen Barrows: I think we can agree. 38
39
Barry Katz: Well yes. It’s a farm. 40
41
Karen Barrows: It’s a farm. 42
43
James Bryan: And then the second one; is the structure being developed on the property being 44
used for bona fide farm purposes? I think you could modify that and say if you were to use Matt’s 45
suggestion that there are bona fide farm purposes of drawing chestnuts and then use Barry’s, I 46
believe, suggestion that, but weddings as described by the property owner would be non-farm use. 47
DRAFT
54
1
Karen Barrows: Ok. 2
3
Barry Katz: Events. 4
5
James Bryan: Events. 6
7
Barry Katz: Events. Not simply weddings. 8
9
Matt Hughes: How are you going to word that though? I would say, you know, the idea to have 10
school children on the grounds would be incidental. I don’t know if there’s a charge for that but that 11
would be conceivably part of an agricultural use. 12
13
Barry Katz: Is that pertinent? 14
15
Matt Hughes: Yeah I think so, if you say events. I mean, someone could say… 16
17
Barry Katz: Oh right, the building… 18
19
Matt Hughes: That’s an event. 20
21
Barry Katz: Interesting, sure. 22
23
Matt Hughes: I think. That’s just my way of saying however it’s phrased needs to be, I think, you 24
know is an educational workshop an event? Is that incidental to the farm? Is a school trip incidental 25
to the farm versus a wedding versus a retreat versus a farm dinner? 26
27
Barry Katz: See you can elaborate on non-wedding uses that are not educational. That might help 28
in this clarification. 29
30
Matt Hughes: Yeah, I think so. 31
32
Barry Katz: Retreat you mentioned; what else? 33
34
Matt Hughes: Well, pulling from Michael’s, whatever we’re calling this, Zoning Compliance Permit 35
Review from November; it pulls right from the permit application where it says barn for agricultural 36
use including but not necessarily limited to the storage and processing of agricultural products and 37
equipment, agro-tourism such as educational workshops, school field trips, weddings, retreats, and 38
farm dinners. So to me a few of those would definitely be more incidental to the farm under what 39
I’m hearing from you all incidental more so than… 40
41
Karen Barrows: Exactly. 42
43
Matt Hughes: Maybe farm dinners and weddings. I’ve never been to a farm dinner so I don’t know 44
what that means; I’m not hip enough. 45
46
DRAFT
55
Karen Barrows: Number three is the wedding event center related or incidental to the property. I 1
think this is here where we… 2
3
Karen Barrows: 169. 4
5
Barry Katz: Did we do 2? Ok. Fine. 6
7
Karen Barrows: That was just talking about it. 8
9
Barry Katz: Ok. 3. 10
11
Karen Barrows: That’s where I would have an issue that it doesn’t feel like it’s incidental. 12
13
Barry Katz: And would require a permit. Or it simply, it’s not, it’s not incidental, period. 14
15
Karen Barrows: Period. I don’t know about permits. 16
17
Barry Katz: Ok. Yeah. Fine. Did you get that? We would say on number three that it’s not incident, 18
that the use of this as a wedding venue is not incidental to the farming. 19
20
James Bryan: Right, so… Can you put? You didn’t want to limit it to weddings; it’s weddings and 21
events. 22
23
Barry Katz: Yeah. 24
25
James Bryan: And educational work shops and farm dinners. These are all non-farm uses and not 26
incidental? 27
28
Barry Katz: Someone else. 29
30
Susan Halkiotis: Well my response would be I don’t see how we could split off wedding from other 31
events. It either is incidental or it’s not, as a wedding and event center. And I, you know, I’m not 32
willing to split of wedding specifically. I think that it’s wedding and event center that’s not related or 33
incident. 34
35
Matt Hughes: I. Call me crazy. Based on these three things and as we’re discussing it I think I 36
could probably craft a motion. It’ll be a wordy motion but I’ll craft it nonetheless. 37
38
Barry Katz: Thanks. 39
40
Matt Hughes: If you want to follow along James. 41
42
Matt Hughes: I move that the Board of Adjustment finds that the property is a bona fide farm, that 43
the structure being developed on the property as proposed in the building permit application is for 44
bona fide farm purposes pertaining to education work shops, school field trips, and other education 45
activities, but not for weddings, retreats, and farm dinners, and that we find that the structure, as a 46
DRAFT
56
wedding and event centers, is not related or incidental to the property being used bona-fide farm 1
purposes. 2
3
Barry Katz: I like that. 4
5
James Bryan: And may I suggest, I believe you left off the chestnut and flour processing. 6
7
Matt Hughes: That’s correct, yes. So that would be included in that. Sorry. 8
9
James Bryan: Was there any honey? 10
11
Matt Hughes: Honey production, yeah, we can add that as well. 12
13
James Bryan: So the property is a bona fide farm, the structure as proposed in the building permit 14
application is for bona fide farming purposes for chestnut flour, and honey packaging, processing… 15
16
James Bryan: But is not a bona fide farming purpose for weddings, retreats, and event center uses, 17
the structure… 18
19
James Bryan: Is not incidental. Is that what? 20
21
Karen Barrows: Mm-Hmm. 22
23
James Bryan: Is not incidental. 24
25
Barry Katz: non-farm. 26
27
Karen Barrows: Well those uses would not be incidental, not the structure. 28
29
James Bryan: So, the property’s a bona fide farm property, the structure as proposed in the 30
building permit application is for bona fide farm purposes for chestnut flour, honey, packaging and 31
processing, education workshops and school trips, but not for weddings, retreats, and as an event 32
center. The use of the structure is not incidental as a wedding and event center. 33
34
LeAnn Brown: I think he said James the use of the structure as a wedding and event is not related 35
to or incidental to the farm use. 36
37
Matt Hughes: I think that’s about right. 38
39
James Bryan: Well as I was, for… 40
41
Matt Hughes: It’s a wordy motion. 42
43
James Bryan: And I apologize. The use of the structure as a wedding and event center is not 44
related or incidental to the bona fide farming purposes. 45
46
Matt Hughes: That’s correct. 47
DRAFT
57
1
Barry Katz: What? 2
3
James Bryan: Can we call out a few, the findings of facts as an addendum to that motion that Barry 4
and Susan said about the scale. 5
6
Karen Barrows: The scale of the infrastructure is clearly to support an anticipated 250 guests, 7
wastewater and well permits, parking. 8
9
Barry Katz: Yeah. 10
11
Karen Barrows: Which is not incidental. 12
13
Matt Hughes: Is there something I need to do or do I just need a second? 14
15
Barry Katz: I’m not sure, are we ready for a second? We need to fill that out further. 16
17
Karen Barrows: Alright, I need to go. 18
19
Barry Katz: Ok, then we’re good. 20
21
Matt Hughes: Are you seconding that motion? 22
23
Barry Katz: I’ll second that motion. 24
25
Matt Hughes: Ok. 26
27
Karen Barrows: Any further discussion? 28
29
Matt Hughes: Well the only further discussion I have is even though I did make the motion I do 30
want to make another motion, which is to divide the question so that we can vote on each 31
component individually. 32
33
Karen Barrows: Should we vote on this motion first? 34
35
Matt Hughes: Well there are components of the motion I’d like to vote for and components I’d like 36
to vote against by dividing the question, which is a non-debatable motion that does require a 37
majority vote and a second; it would just allow us to vote on each individual item, however I have 38
the feeling that each individual item will prevail anyway so the motion will pass. If I had to look into 39
the metaphorical crystal ball, but that’s my additional motion is that we divide the question. 40
41
LeAnn Brown: James, I don’t mean to intercede but so we don’t have a procedural problem; if 42
Matt’s desire of splitting the motion it might be better procedurally now that you’ve written down 43
what he says for someone who’s going to vote for the motion to make it or someone who’s going to 44
vote for it to second it for Matt to then move to separate the three questions and the Board can 45
then take the questions because I think under most procedures it would be improper for a person 46
DRAFT
58
to make the motion and then vote against parts of it and that way you wouldn’t have that, we don’t 1
have that issue. 2
3
Matt Hughes: So Karen would you like to make the motion? 4
5
Karen Barrows: As Chair I’m not supposed to. 6
7
Matt Hughes: Oh, well then. 8
9
Susan Halkiotis: I’ll be happy to make it. 10
LeAnn Brown: I think it would be cleaner for all of us. 11
12
Karen Barrows: So Susan’s making the motion, is there a second? 13
14
Motion made by Susan Halkiotis that the property’s a bona fide farm property, the structure as 15
proposed in the building permit application is for bona fide farm purposes for chestnut flour, honey, 16
packaging and processing, education workshops and school trips, but not for weddings, retreats, 17
and as an event center. The use of the structure as a wedding and event center is not related or 18
incidental to the bona fide farming purposes due to the scale of the infrastructure is clearly to 19
support an anticipated 250 guests, wastewater and well permits, and parking. Seconded by Barry 20
Katz. 21
22
Karen Barrows: Why don’t we just vote on this? 23
24
Barry Katz: Yes. 25
26
VOTE: 3-1 (Matt Hughes) 27
28
Karen Barrows: And you have stated your reasons, I think. 29
30
Matt Hughes: Yes. 31
32
Karen Barrows: Ok. Well we are approaching 11 o’clock. Do you want to continue Matt? 33
34
Barry Katz: I have a question, general question. Where does this go from here? 35
36
Michael Harvey: You need to direct it to James, I can’t. 37
38
Barry Katz: James, the next step on this is there a next step within Orange County. Is anyone 39
going to listen to what we said or is this going to go back and just be superseded by the fact that 40
you know the law says something about farms and farm uses? Do you know? 41
42
James Bryan: All decisions by this Board are appealable to Superior Courts. 43
44
Barry Katz: Ok. 45
46
DRAFT
59
James Bryan: There’s nothing precluding anybody from making new applications to the County, 1
either through the building department, the zoning department, or anything like that. 2
3
Barry Katz: I understand. 4
5
James Bryan: Any final and binding determinations by either of those are also appealable. 6
7
AGENDA ITEM 6: ADJOURNMENT 8 9 Motion made by Barry Kat to adjourn. Seconded by Karen Barrows. 10
VOTE: Unanimous 11 12