HomeMy WebLinkAboutBOA minutes 0313171
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MINUTES
BOARD OF ADJUSTMENT
MARCH 13, 2017
REGULAR MEETING
Karen Barrows (Vice Chair)
Matt Hughes
Barry Katz
Susan Halkiotis
APPROVED 6/12/17
*MEMBER RECUSED FOR CONFLICT OF INTEREST: Samantha Cabe (Chair)
STAFF PRESENT: Michael Harvey, Current Planning Supervisor
Patrick Mallet, Planner II
James Bryan, Staff Attorney
Elaina Cheek, Board Secretary
AGENDA ITEM 1: CALL TO ORDER
Karen Barrows called the meeting to order.
AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA
No additions.
AGENDA ITEM 3: APPROVAL OF MINUTES
- DECEMBER 12, 2016- REGULAR MEETING
- JANUARY 23,2017- RECONVENED MEETING
Michael Harvey: Madam Chair, there's a couple of changes that the staff would like to point out.
Ms. Halkiotis was not at the meeting. The minute's transcriber has her present. Also, as we
reminded you in our email, the tape recorder ended at the end of the meeting. We have Ms.
Halkiotis versus Ms. Barrows seconding the motion to adjourn so we would like to make those
corrections before you all begin with your review.
Karen Barrows: Thanks. I had noticed that. Page 81, line number 1: We're meeting at the wooded
facility, I think we mean Whitted.
Michael Harvey: Which line?
Karen Barrows: The first one. On page 158 the vote was not unanimous. I voted against the tower
application. Any other corrections? Additions? If not, Michael?
Motion made by Matt Hughes to adopt the minutes from both meeting as with the suggested
changes. Seconded by Barry Katz.
VOTE: Unanimous
1
APPROVED 6/12/17
1 AGENDA ITEM 4: PUBLIC CHARGE
2
3 Matt Hughes read the public charge.
4
5 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to
6 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any
7 time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the
8 offending person to leave the meeting until that individual regains personal control. Should decorum fail to
9 be restored, the Chair will recess the meeting until such time that a genuine commitment to this public
10 charge is observed. All electronic devices such as cell phones, pagers, and computers should please be
11 turned off or set to silent/vibrate.
12
13 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the
14 provisions of local regulations and State law to perform specified functions essential to the County's
15 planning program. Action(s) taken by the Board are based solely on competent, substantial, and material
16 evidence presented during a previously scheduled and advertised public hearing on a specific item. As
17 detailed within Section 2.12.2 of the UDO the Board chair reserves the right to exclude evidence and
18 testimony that is deemed "incompetent, irrelevant, immaterial, or unduly repetitious" and therefore fails to
19 reasonably address the issues before the Board of Adjustment. While it should be noted there is no time
20 limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with
21 established policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable
22 hearing for all parties.
23
24 AGENDA ITEM 5: A -1.17 — Appeal of a decision concerning a parcel of property
25 located at the intersection of Morrow Mill Road and Millikan Road.
26 (PIN: 9729 -50 -7168)
27
28 In accordance with the provisions of Section 2.11 and 2.26 of the Orange County Unified
29 Development Ordinance (UDO) the applicants have appealed the decision of the Zoning Officer as
30 articulated within a November 7, 2016 letter addressed to Michael Rettie, Orange County Building
31 Official, related to the Zoning Compliance Permit review for building permit number CB16 -0020.
32 This aforementioned permit involved development on a parcel of property identified utilizing
33 Orange County Parcel Identification Number (PIN) 9729 -50 -7168 owned by Southeast Property
34 Group LLC care of Ms. Kara Brewer.
35
36 Specifically the applicants allege staff erred in determining the property, and the structure being
37 erected on same consistent with building permit application CB16 -0020, is being used for bona fide
38 farm purposes.
39
40 Karen Barrows: Michael, you didn't want to? Ok. We are here tonight to review and appeal
41 application submitted by several local property owners concerning a November 7th letter to the
42 Zoning Officer. We are to determine whether his action was correct or incorrect. And I understand
43 that the attorneys may have more comments. I would ask if anyone would like to speak tonight if
44 they would come forward and be sworn in please.
45
46 Michael Harvey: Grouped in as best we can. Left hand raise right. Do we solemnly swear to tell the
47 truth to the best of our ability?
48
2
APPROVED 6/12/17
1 Michael Harvey: When you come up please state your name and that you have been sworn.
2
3 Karen Barrows: Thank you. Is there a protocol as to who goes first here James?
4
5 James Bryan: I would suggest having Mr, Harvey give an overview like he typically does, and then
6 letting the appellant go,
7
8 Karen Barrows: Excellent. Michael?
9
10 Michael Harvey: Good evening, Michael Harvey, Current Planning Supervisor, Orange County.
11 And yes I have been sworn, As has already been articulated this evening we are here to review an
12 appeal of decision made by the zoning officer as it relates to the processing of a building permit
13 application C1316 -0020. The abstract for this item begins on page 159 of your packet, as pages 3-
14 158 were minutes from your last meeting. At this time I would request that the Board enter staff's
15 abstract, which includes as it's attachment the appeal application filed on behalf of several property
16 owners by LeAnn Brown into the record and that includes the application and the November 7,
17 2016 letter authored by myself to Michael Rettie concerning a zoning compliance permit review of
18 CB16 -0020.
19
20 Karen Barrows: That's it?
21
22 Michael Harvey: I need a motion to enter it in the record.
23
24 Karen Barrows: Ok.
25
26 Motion made by Matt Hughes to enter staff's abstract into the record, Seconded by Barry Katz,
27 VOTE: Unanimous
28
29 Michael Harvey: Also for purposes of establishing the record you have two items at your place and
30 both attorneys have the provided copy as well. You have the order from your last Board of
31 Adjustment hearing on this matter as County Exhibit 2. You also have as County Exhibit 3 the
32 separate provisions of the General Statute dealing with bona fide farm regulation, including 153a-
33 340 the grant of power. North Carolina General Statute (NCGS) 106 - 581.1: agricultural defined.
34 And NCGS 99e -30: definitions agro- tourism activity liability. I'd also like these entered into the
35 record.
36
37 Motion made by Matt Hughes to enter County Exhibit 3 into the record. Seconded by Barry Katz.
38 VOTE: Unanimous
39
40 Michael Harvey: As articulated in the abstract the Board of Adjustment held a hearing on October
41 the 24th, 2016 to review an appeal of a determination made by the zoning officer concerning the
42 zoning permit review of CB16 -0020. The Board determined that staff had erred in its determination
43 that a zoning compliance permit review was not required. And as articulated in the abstract and
44 within your order, which is again attached as County Exhibit 2, this Board directed the Orange
45 County planning director or their designee, of which I am the designee, to review the March 16,
46 2016 building permit application and make a determination as to whether the structure identified
47 (there)in will be used for bona fide farm purposes and whether its use as a wedding and event
APPROVED 6/12/17
1 center is related to or incidental to such bona fide farm purposes, if any. You also granted a
2 requested stay of the building permit until this issue had been adjudicated by staff. On November
3 the 7th of 2016 we authored a letter to Michael Rettie making the following determination. The first
4 question that was posed to us was, "Is the property a bona fide farm ". As articulated in our letter,
5 which begins on page 167, in utilizing NCGS 152a- 340(b), the applicant, in this case Southeast
6 Properties LLC care of Kara Brewer, had submitted documentation outlining the property's status
7 as a farm, specifically a USDA farm number 3963, which we have attached in the letter as
8 attachment 1, attachment 2, excuse me, the issuance of a farm sales tax exemption by the State
9 Department of Revenue, and a forest management plan. Our conclusion was that the property met
10 three out of the (five) criteria's defined by the Statute to qualify (the property) as a farm and as
11 such determined it was a farm based on State law.
12
13 Two, "Is the structure being developed on the property being used for bona fide farm purposes ? ".
14 As we articulate in the letter, the following facts were available to us: According to the application,
15 again that is CB16 -0020, the applicant defined the use of the proposed structure as a barn for
16 agricultural use, including but not limited to the storage and processing of agricultural products and
17 equipment, agro- tourism such as educational workshops, school field trips, weddings, retreats, and
18 farm dinners. Support for all other activities related and incidental to the operation of a farm. Our
19 conclusion, as articulated again in this letter, is that the structure is going to be used for agricultural
20 purposes,
21
22 The next question, "Is the use of the structure as a wedding and event center related or incidental
23 to the property being used for bona fide farm purposes ? ". In making a determination County staff
24 relied on the following facts and available information: We first relied on the definition of the term of
25 agricultural, agricultural and farming. As defined by the NCGS 106 -581.1 indicating that when
26 conducted on a farm, agro- tourism activities are farming and therefore exempt from review. Agro-
27 tourism while being a specifically undefined term within the parameters of the General Statute,
28 specifically section 106 - 581.1, is defined in several other venues, and I'm on page 170 for those
29 needing to follow along. Staff relied on an existing definition within the UDO, which defines agro-
30 tourism as a business directly related or incidental to agricultural activities occurring on the bona
31 fide farm on which it is located and conducted for the enjoyment or education of the public.
32 Definition from Merriam Webster's dictionary defining agro- tourism as the practice of touring
33 agricultural areas to see farms and often to participate in farm activities. The website, maintained
34 by the North Carolina Department of Agriculture, providing examples of agro- tourism activities, the
35 list of which includes wedding venues is a viable agro- tourism activity. And the definition of an
36 agro- tourism activity, as provided under NCGS 99e -30, defining agro- tourism as any activity
37 carried out on a farm or ranch that allows members of the general public for recreation,
38 entertainment, or educational purposes to view or enjoy rural activities including farming, ranching,
39 historic, cultural, harvest your own activities, or natural activities and attractions. An activity is an
40 agro- tourism activity whether or not the participant paid to participate in the activity. Agro- tourism
41 activity includes an activity involving any animal exhibition at an agricultural fair licensed by the
42 commissioner of agriculture pursuant to General Statute 106 - 520.3. Based on this information it
43 was our determination that the barn structure to be used in support of wedding activities is related
44 and incidental to the property being used for bona fide farm purposes and is consistent with what
45 constitutes farming and agricultural activities as defined within the General Statutes.
46
Id
APPROVED 6/12/17
1 This letter concluded by offering an advisory opinion as it relates to requirement for building permit
2 for farm structures. I will note that this is an advisory opinion. It was not a formal determination and
3 is not subject to your review here this evening in terms of a determination, Put simply, State law
4 exempts farm structures from having to comply with certain components of the building code. And
5 the argument that we presented or the finding we presented herein indicated that in the practical
6 sense Ms. Brewer did not have to apply for a building permit in the first place as this is a farm
7 structure. The remainder of the various attachments including on page 173 the actual application
8 C1316 -0020, attachment 2 the UDSA farm number, which is on page 80. 180, excuse me.
9 Attachment 3, which is the sales tax exemption letter authored by the North Carolina Department of
10 Revenue, that's on page 181. On page 182 we have attachment 4; dealings of findings of the North
11 Carolina Department Insurance Office, State Fire Marshall, Engineering Division as it relates to the
12 advisory opinion we proffered on the building permit status of the structure. The adjacent property
13 owners have appealed this determination alleging that I have erred with respect to the
14 interpretation of the ordinance and erred in not requiring the Brewers' Southeast Property Group
15 LLC to obtain a zoning compliance permit and that I erred in not requiring a zoning compliance
16 permit as well. Unless you all have any questions I think it'd be appropriate to turn it over to Ms.
17 Brewer, who is represent.., I'm sorry, my apologies. Ms. LeAnn Brown, who is representing the
18 appellants here this evening,
19
20 Karen Barrows: Any questions for Michael?
21
22 Susan Halkiotis: I don't have any.
23
24 Barry Katz: I know we've been through this before so in other words Ms. Brewer never had to be
25 here in the first place, Is that what you're saying? Are you not saying anything right now? Is anyone
26 going to answer that?
27
28 Michael Harvey: When you say is not required to be here, not supposed to be here, can you
29 expand on that question a little bit?
30
31 Barry Katz: What I mean is did she need a zoning permit or anything to build the structure?
32
33 Michael Harvey: As the Board will recall, and I testified in other hearings before this Board, we
34 determined Ms. Brewer had to get a Class B (Special Use Permit). That permit was denied.
35 Subsequently building permit was filed, which we rejected.
36
37 Barry Katz: Oh, ok.
38
39 Michael Harvey: Ms. Brewer in March of 2016 filed a revised building permit with information
40 indicating the property was a bona fide farm, would be used for a bona fide, and that the structure
41 was going to be used for farm, purposes. Based on the current wording of the Statute and on
42 advice proffered by the County's Attorney Office we were not permitted to review this use given its
43 farm exempt status.
44
45 Susan Halkiotis: On which occasion? The March...
46
47 Michael Harvey: The March 16th application, Or the March 2016 application.
5
APPROVED 6/12/17
1
2 Susan Halkiotis: But to answer Barry's question. Should it ever have come to us to begin with? The
3 answer is yes because it came to us under Special Use Permit?
4
5 Michael Harvey: My comment to that is it came before you because that was our determination that
6 was never appealed.
7
8 Barry Katz: Ok,
9
10 Karen Barrows: Any further questions? Ms. Brown?
11
12 LeAnn Brown: Thank you. If I could begin please with some evidentiary... I want to get some
13 evidentiary issues out of the way and then move on to the next thing. Mr. Harvey has introduced
14 and you have received into evidence the information that he prepared as the record the 160A -388
15 (b)15. Is the Statute that establishes your procedures for these hearings and it requires the official
16 who made the decision, which would be Mr. Harvey to transmit to the Board documents and
17 exhibits that constitute the record from which the action for appeal is taken. And originally what was
18 proffered to you, as the package was the staff review and my application for appeal, which included
19 Mr. Harvey's ruling and that was that was it.
20
21 Karen Barrows: LeAnn?
22
23 LeAnn Brown: Yes?
24
25 Karen Barrows: Could we ask you to use the microphone please?
26
27 LeAnn Brown: Sure. Would you like me to stand? Would that be better? We don't have mics at our
28 desk so...
29
30 Karen Barrows: I see that.
31
32 LeAnn Brown: So if... We'll be happy to stand and maybe the public can hear us better.
33
34 Karen Barrows: Thank you.
35
36 LeAnn Brown: So from the standpoint of the record, he has introduced in the record as the record
37 the items that I identified he has since asked you and you have received a copy of your order and
38 particular pieces of the Statute. In the appeal that we filed we incorporated into that appeal by
39 reference the materials that were before you. At your two prior hearings you had the Special Use
40 Permit hearing and then the two part hearing on the first appeal. We believe that by incorporating
41 those into... by reference in our application that they would be before you as part of our
42 applications since they're incorporated. We certainly believe that while this is not an appeal of that
43 decision that the information you had before you that night is relevant in material to any record that
44 would go from here to any other tribunal in order for the tribunal to have before them the full
45 panoply of materials that you have reviewed. The short story here is that following some
46 communication with Mr. Bryan, who represents your Board at this hearing but does not represent
47 Mr. Harvey at this hearing or in the preparation of the record. I spoke with Mr. Harvey and Mr.
I
APPROVED 6/12/17
1 Harvey has in the ream all of those materials that would include the evidence that you received, the
2 files that you received from the County, the minutes of your meeting on the Special Use Permit
3 application, the file from that application, the minutes of the two meetings that you had, Mr.
4 Harvey's determination in your subsequent order in your hearing and I would ask that, as a
5 housekeeping matter, you receive that material into evidence for the purpose of the record in this
6 case.
7
8 Andy Petesch: I would like to note an objection to the incorporation of the Special Use Permit
9 hearing record on the grounds of relevance. This is a completely different standard that's being
10 applied here and not all of that information, that evidence is relevant to this proceeding to the
11 extent that the evidence from that hearing was included in the last hearing. I don't... I have no
12 objection to the inclusion of the record from the previous hearing in October of 2016 on an appeal
13 of the decision about the same issue and same standards apply there. But I just want to register
14 my objection.
15
16 Barry Katz: Is there much difference between the records from that Special Use Permit and what
17 was entered in by reference at our last hearing?
18
19 LeAnn Brown: It's my recollection that the file from the Special Use Permit hearing was introduced
20 into evidence at the last hearing along with the minutes and was technically before you at the time,
21 so I believe that all of that material was introduced previously.
22
23 Barry Katz: And is Mr. Harvey the person who would confirm that or Mr. Bryan?
24
25 LeAnn Brown: I think the minutes of the meeting should confirm that. The County is the custodian
26 of all of the exhibits.
27
28 Andy Petesch: I don't intend my objection to hold up the proceedings here but I want to make sure
29 it was logged for the record going forward.
30
31 Karen Barrows: So noted, thank you.
32
33 Barry Katz: So then... Did you want to then proceed and then when Mr. Harvey might find it he can
34 interject it?
35
36 LeAnn Brown: I would ask that the Board receive into evidence all of the material that was before it
37 at the last meeting, which I believe includes that.
38
39 Barry Katz: Thank you.
40
41 Karen Barrows: So received.
42
43 LeAnn Brown: And the procedure you followed a minute ago with Mr. Harvey was you had a
44 motion and a second to receive evidence. So I don't know if you're following that same procedure
45 or not.
46
47 Karen Barrows: Is there a motion to receive this evidence?
7
APPROVED 6/12/17
1
2 Motion made by Susan Halkiotis to accept LeAnn Brown's evidence. Seconded by Barry Katz.
3 VOTE: Unanimous
4
5 LeAnn Brown: As a second housekeeping matter you may recall from the last hearing that we
6 introduced a significant amount of evidence before the Board to establish standing for the purpose
7 for that hearing it's important that that be established, particularly if a matter may in fact go
8 elsewhere. Now that you have received that information into evidence I believe that without
9 repeating that three hour hearing you have all of that same information before you tonight and in
10 addition I would point out to the Board that as the appellants in the prior hearing my clients are
11 actually parties to the subsequent decision in this appeal and so they would have standing from
12 that ground as well and we'd like the Board to find that they have standing.
13
14 Barry Katz: Just to clarify, we're talking about the people who had standing in the previous meeting
15 in addition to the people who have standing tonight?
16
17 LeAnn Brown: I continue to represent the following individuals who are the same applicants from
18 the prior proceeding: Gleta Carswell, Rene Quadt, Doris Ray, Thomas Ray, Margaret Wilkman,
19 and Alice Sandra Wilkman. Those are the precisely... It's the same people.
20
21 Barry Katz: Ok.
22
23 Karen Barrows: Is there a motion that these folks have standing?
24
25 Motion made by Barry Katz that the appellants have standing. Seconded by Susan Halkiotis.
26 VOTE: Unanimous
27
28 LeAnn Brown: For the next item I have a very, very short piece of evidence, just to assist the Board
29 in visualizing the property that we're discussing. One of my clients had the occasion to be a
30 passenger in a private plane that flew over the property and was able to take some aerial
31 photographs. We have not had in the record previously pictures that actually showed it to you on
32 the ground. I do not plan for this to be a large evidentiary hearing. I think this is really a technical,
33 legal appeal. But I do think you would find them instructive. And if I could call Mr. Quadt up he will
34 authenticate them and I would ask that you receive them into evidence.
35
36 Michael Harvey: LeAnn before you begin, just as a general announcement... We unfortunately
37 have to inform everyone in attendance the staff has no ability to alter the temperature of the room.
38 We apologize in advance,
39
40 LeAnn Brown: Thank you for the public service announcement Mr. Harvey.
41
42 LeAnn Brown: Mr. Quadt, would you state your name, address for the record please?
43
44 Rene Quadt: Rene Quadt. 2700 Millikan Road, Chapel Hill. And I have been sworn in.
45
i
APPROVED 6/12/17
1 LeAnn Brown: Did you have an opportunity to be in a private passenger plane and take
2 photographs of the property that's commonly known as the Barn Of Chapel Hill that's next door to
3 your property?
4
5 Rene Quadt: I have.
6
7 LeAnn Brown: Are you familiar generally with the property in the area and with how it might look
8 from a plane?
9
10 Rene Quadt: I am not, until this morning.
11
12 LeAnn Brown: When you were in the plane could you look down at the property and identify your
13 barn and your house?
14
15 Rene Quadt: I could.
16
17 LeAnn Brown: Could you look down at the property and identify the Wilkmans' house?
18
19 Rene,Quadt: I could.
20
21 LeAnn Brown: Could you look down at the properties and identify the Rays' house?
22
23 Rene Quadt: I could.
24
25 LeAnn Brown: Could you look down at the properties and identify the development called the Barn
26 of Chapel Hill?
27
28 Rene Quadt: I did.
29
30 LeAnn Brown: Did you have the occasion to take pictures while you were in the airplane today?
31
32 Rene Quadt: I could.
33
34 LeAnn Brown: I'm going to mark this document as Exhibit 1. And with permission of the Board I
35 would like to hand you copies so you can follow along with what he points out.
36
37 Karen Barrows: Ok. Thank you.
38
39 LeAnn Brown: May I approach the Board?
40
41 Karen Barrows: Sure,
42
43 Barry Katz: Thank you.
44
45 Karen Barrows: Thank you.
46
D
APPROVED 6/12/17
1 LeAnn Brown: We begin with the first picture, Will you please describe where on that picture is the
2 property that's the Barn at Chapel Hill?
3
4 Rene Quadt: It's approximately a little 4 o'clock off the central of the page,
s
6 LeAnn Brown: And there's a gray looking line that comes across toward the right of the page. Do
7 you see that?
8
9 Rene Quadt: I can.
10 LeAnn Brown: And what is that?
11
12 Rene Quadt: That's an access road.
13
14 LeAnn Brown: Is that the service entrance that runs next to your property line?
1s
16 Rene Quadt: That would be the entrance that runs from Morrow Mill to the barn.
17
18 LeAnn Brown: Alright. And would you identify where your house is located on this particular
19 picture?
20
21 Rene Quadt: If you'll look at the left of this picture you would see a straight line. That's my
22 driveway. At the end of that driveway is my residence and in the pasture there's my barn horse
23 barn.
24
2S LeAnn Brown: So and if you see, there's an additional gray line coming down. Is that the service
26 road next to your property?
27
28 Rene Quadt: Correct,
29
30 LeAnn Brown: And the other road that we identified the first time; is that the... that runs to Morrow
31 Mill across from the Rays' house?
32
33 Rene Quadt: Correct.
34
3S LeAnn Brown: Alright. The second picture that is here. That is another picture of the property. Is
36 that correct?
37
38 Rene Quadt: Correct.
39
40 LeAnn Brown: And where is the barn located on this picture?
41
42 Rene Quadt: The barn is located approximately 8 o'clock from the center.
43
44 LeAnn Brown: And then the third picture the barn is located in the?
4S
46 Rene Quadt: It's in the lower right corner.
47
10
APPROVED 6/12/17
1 LeAnn Brown: Ok, The fourth picture's a slightly different angle,
2
3 Rene Quadt: Dead center.
4
5 LeAnn Brown: Alright, And in that picture the service road comes out at the little subdivision. Is that
6 correct?
7
8 Rene Quadt: Correct. Comes out at Millikan Road,
9
10 LeAnn Brown: And then the final picture is very similar to that one and the barn is approximately in
11 the middle.
12
13 Rene Quadt: Correct.
14
15 LeAnn Brown: And are these pictures true and accurate depictions of what you viewed today when
16 you were on the plane?
17
18 Rene Quadt: They are.
19
20 LeAnn Brown: And you took these pictures yourself?
21
22 Rene Quadt: I did.
23
24 LeAnn Brown: Alright, I'm going to ask the Board to receive this Exhibit into evidence.
25
26 Karen Barrows: Thank you, We'll receive it in evidence.
27
28 LeAnn Brown: Thank you.
29
30 Karen Barrows: Mm -Hmm.
31
32 LeAnn Brown: Thank you. Alright. I have no further questions of the witness. Andy, did you have
33 any?
34
35 LeAnn Brown: Ok. Thank you,
36
37 LeAnn Brown: The next witness I'd like to call is Michael Harvey.
38
39 Michael Harvey: Yes ma'am?
40
41 LeAnn Brown: Good afternoon, And Mr. Harvey, you have been sworn. Is that correct?
42
43 Michael Harvey: Correct ma'am.
44
45 LeAnn Brown: And you cannot do anything about the temperature in the room, is that correct?
46
47 Michael Harvey: That's also correct.
11
APPROVED 6/12/17
1
2 LeAnn Brown: Mr. Harvey, when you prepared the record in this case why did you only include the
3 abstract in the appeal application?
4
5 Michael Harvey: The abstract and the appeal application represented the synopsis of the
6 information we utilized to render our decision based on the order as issued by the Board of
7 Adjustment.
8
9 LeAnn Brown: So as NCGS 160A -388 requires your duties you viewed those documents as all of
10 the documents and exhibits that constituted the record from which you took an action?
11
12 Michael Harvey: Yes ma'am, as it related to complying with the Board's action.
13
14 LeAnn Brown: And so even though it's subsequently been introduced into evidence the actual
15 order of the Board of Adjustment of Orange County was not one of the documents you reviewed at
16 the time you prepared this. Is that correct?
17
18 Michael Harvey: No. It was not germane, except for the action requested by the Board.
19
20 LeAnn Brown: Alright. So the actual findings of fact that this Board made after two long meetings of
21 hearings were not what you considered to be germane in your decision making. Is that? Am I?
22
23 Michael Harvey: We reviewed the order to determine what our direction was as this Board
24 articulated. We then reviewed the proposal and made a determination based on what we were
25 asked to do.
26
27 LeAnn Brown: And the Board's order was actually entered and signed when?
28
29 Michael Harvey: December the 22nd of 2016.
30
31 LeAnn Brown: And your opinion was actually entered when?
32
33 Michael Harvey: November the 7th of 2016.
34
35 LeAnn Brown: And in fact the... My clients had had to appeal before the Board of Adjustment ever
36 actually had their order even entered. Is that correct?
37
38 Michael Harvey: Correct. Before it was signed, correct.
39
40 LeAnn Brown: Alright. Do you know who drafted the order for the Board of Adjustment by chance?
41
42 Michael Harvey: It was a joint effort between the County staff and the County's Attorney Office,
43
44 LeAnn Brown: Alright. And how about the opinion that you issued? Who drafted that?
45
46 Michael Harvey: I drafted it.
47
12
APPROVED 6/12/17
1 LeAnn Brown: Did anybody review it?
2
3 Michael Harvey: It was reviewed by staff, specifically the Planning Director for Orange County, as
4 well as representatives of the County's Attorney Office,
5
6 LeAnn Brown: Without telling me any advice you may have received were you given advice and
7 counsel about the content of the order from the County Attorney's Office.
8
9 Michael Harvey: I'm sorry, can you specify? You're talking about the order or the letter?
10
11 LeAnn Brown: The letter,
12
13 Michael Harvey: I was given advice in direction from both the Planning Director and options from
14 the County's Attorney Office in terms of solidifying the order, which is County Exhibit 2. And
15 information was provided in terms of articulating staff's response from both the Director and the
16 County's Attorney Office, with respect to the November 7th letter.
17
18 LeAnn Brown: Is your? And if you answered a question from Mr. Katz a few moments ago about
19 the fact that you had at one time been of the opinion that this particular use did require a Special
20 Use Permit, is that correct?
21
22 Michael Harvey: Correct,
23
24 LeAnn Brown: Was that opinion based on your interpretation of North Carolina law at the time?
25
26 Michael Harvey: It was based on my interpretation not only North Carolina law, but the evidence 1
27 had at my disposal the times the determination was made.
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29 LeAnn Brown: And your current decision is based upon our belief that you are bound by the
30 statements made in an affidavit as to use?
31
32 Michael Harvey: My determination at this time is based on interpretation of existing State law and
33 consultation with advice presented by the County's Attorney's Office and the record of CB16 -0020
34 to which, yes ma'am, did include an affidavit, as well as documentation articulating the status of the
35 property as a farm as defined by NCGS.
36
37 LeAnn Brown: And did you consider in forming your determination in response to the remand from
38 the Board of Adjustment any of the evidence that was given during their two -day hearing?
39
40 Michael Harvey: No.
41
42 LeAnn Brown: None of the evidence whatsoever was considered by you in making that
43 determination?
44
45 Michael Harvey: For my determination relied on the definition as prescribed by Statutes, the
46 information we had on record at the time, as well as the direction provided by the Board of
47 Adjustment in terms of what they had asked staff to do. Specifically, whether the structure identified
13
APPROVED 6/12/17
1 in (the building permit) will be used for bona fide farm purposes and whether the use as a wedding
2 and event center is related to or incidental to such bona fide farm purposes, if any.
3
4 LeAnn Brown: And so when I look at your determination when you opined that the structure's being
5 used for a farm purpose you recite to the building permit application and no other documents; is
6 that the sole source of your information about how the structural and property's being used?
7
8 Michael Harvey: We relied on the information, correct, containing the application, as well as what's
9 contained in the affidavit.
10 ,
11 LeAnn Brown: Thank you.
12
13 Michael Harvey: Thank you.
14
15 LeAnn Brown: And that's the entirety of it. I'm just trying to understand what you relied upon.
16
17 Michael Harvey: I understand.
18
19 LeAnn Brown: Alright,
20
21 LeAnn Brown: I have no further questions of Mr. Harvey.
22
23 LeAnn Brown: Andy, do you need a turn?
24
25 Andy Petesch: Good evening. I'm sorry I didn't introduce myself earlier. I'm Andy Petesch, attorney
26 on behalf of SPG LLC the property owner and Kara and Chris Brewer, Mr. Harvey, I just want to
27 follow up briefly. We addressed this at the October 2016 hearing but to clarify for the record; the
28 determination that you made, with respect to Ms. Brewer, the Brewers' and SPG needing to seek a
29 Special Use Permit for certain aspects of the agro- tourism that they seek to do on the property.
30 That was never made in writing. That was never placed in writing, correct?
31
32 Michael Harvey: That is a correct statement.
33
34 Andy Petesch: And this was, These discussions. The Brewers' came to you in approximately the
35 spring of 2015 to discuss this and what compliance issues they needed to address in order to
36 make use of this property?
37
38 Michael Harvey: Spring and summer, yes sir.
39
40 Andy Petesch: Ok, And so your communication of that decision that they needed to proceed on the
41 path of receiving /seeking a Special Use Permit was just communicated orally. Is that correct?
42
43 Michael Harvey: That's a correct statement.
44
45 Andy Petesch: And they pursued, they chose to proceed on that voluntarily to proceed on the
46 Special Use Permit application path, although there was discussions of... Well, I'll... Before I...
47 They chose voluntarily to proceed in submitting a Special Use Permit?
14
APPROVED 6/12/17
1
2 Michael Harvey: Correct. They were obviously...
3
4 LeAnn Brown: I object
5.
6 Michael Harvey: I'm sorry, what was?
7
8 LeAnn Brown: I'm just wanted to object for the record to the characterization of,
9
10 Andy Petesch: You can go ahead. You can go ahead and answer.
11
12 Michael Harvey: It is correct. The Brewers' elected to go through the Special Use Permitting
13 process and there were several meetings where we discussed what I believed would be necessary
14 to establish farm use prior to establishing what essentially they were arguing was agro- tourism
15 activity. And from my standpoint you have to have the farm before you have the tourism. They
16 elected then to go through the Special Use Permit process, but you are correct; it was never in
17 writing, and they went through the SUP process based on that conversation,
18
19 Andy Petesch: And during that same time period, the spring and the summer, those conversations
20 included the possibility you just eluded to that, that they would, could, proceed as a bona fide farm
21 and not need any zoning approval. Is that correct?
22
23 Michael Harvey: If there was sufficient documentation substantiating the claim per the Statute, yes
24 sir.
25
26 Andy Petesch: But those discussions took place at that time...
27
28 Michael Harvey: Yes sir.
29
30 Andy Petesch: They were considering that's something they were interested in.
31
32 Michael Harvey: Yes, they did.
33
34 Andy Petesch: As an alternative. Thank you.
35
36 LeAnn Brown: I just have one follow up question. Mr. Harvey, during this process and during the
37 Special Use Permit process I realize Mr. Petesch was not involved but was there in fact counsel of
38 record for the Brewers' through the process?
39
40 Michael Harvey: There was,
41
42 LeAnn Brown: So they were represented by an attorney throughout that process?
43
44 Michael Harvey: Correct.
45
46 LeAnn Brown: I have no other questions. Thank you.
47
15
APPROVED 6/12/17
1 Karen Barrows: Andy, is there anything else you'd like to bring forward?
2
3 LeAnn Brown: In terms of evidence, I think.
4
5 Andy Petesch: Yes I... You're... I just want to make sure that you're... Have no more evidence.
6
7 LeAnn Brown: We reserve the right to bring up any rebuttal evidence I would need to bring up. 1
8 have no further evidence at this time. I do have argument I'd like to make to the Board.
9
10 Karen Barrows: Ok. Are we ready for arguments?
11
12 Barry Katz: Oh no, he's got. He has evidence. I think.
13
14 Andy Petesch: I'd like to ask Kara Brewer to come forward and testify and I'm going to see if I can
15 move this.
16
17 James Bryan: If we could. It might be better to have her sit, either at one of those chairs or over
18 here. Whatever the Board wants. You can come over here and then you both have mics.
19
20 Andy Petesch: Before I get started, and to address a little bit of housekeeping I would like to hand
21 up notebooks and those notebooks contain, they are identical to the notebooks that I presented
22 before. I will be using in my argument. They were admitted into the record at the last hearing. They
23 include the........ All the exhibits and illustrative items of reference materials. I'd like to go ahead
24 and hand those up. Because I've hole punched my additional evidentiary documents and it
25 hopefully will make it easier for you to track all that information.
26
27 Karen Barrows: Okay
28
29 LeAnn Brown: Is there stuff in here that's new?
30
31 Andy Petesch: There's nothing new. This is exactly what was introduced at...
32
33 LeAnn Brown: The same number already have?
34
35 Andy Petesch: Ms. Brewer, could you state your full name and address for the record?
36
37 Kara Brewer: Yes. Kara Brewer. 82 Jordan Hills, Chapel Hill, North Carolina. 27517.
38
39 Andy Petesch: And you are sworn?
40
41 Kara Brewer: I am.
42
43 Barry Katz: Thank you.
44
45 Andy Petesch: Could you provide the Board with an update of your, or the progress on the farm
46 with respect to the flour, cut flour, and other related farming activities?
47
16
APPROVED 6/12/17
1 LeAnn Brown: Um, I object. I... This is not a hearing about... This is a hearing about whether a
2 determination that Mr. Harvey made...
3
4 Karen Barrows: Right.
5
6 LeAnn Brown: Is correct or incorrect, and anything that's happened after that is not relevant to the
7 issue of whether Mr. Harvey made a mistake in not following your order, and so I object to this line
8 of questioning completely. Ask that you not hear it.
9
10 Karen Barrows: What do we think?
11
12 Andy Petesch: This is relevant to the question of use and this Board has the right to take on
13 evidence to make a determination. If we are going to limit it to Mr. Harvey's determination and what
14 he analyzed, which in that case then the evidence that came in at the prior hearings and certainly
15 at the SUP hearing are not relevant. So I...
16
17 Barry Katz: But Mr. Harvey didn't consider all that, what our determinations were from the previous
18 hearings when he made his determination. And so, why should we hear anything else? It's really
19 about the determination he made.
20
21 Matt Hughes: I hear what Barry is saying but in previous hearings of this Board we've been very
22 liberal in terms of what we allowed into the record and I think it would be completely okay to do the
23 same here. I mean, we accepted these pictures, which I'm not sure exactly how that will reflect on
24 the appeal thus far, so you know, if we're going to do something for one party we should do it for
25 the other.
26
27 Barry Katz: Fine,
28
29 Karen Barrows: Good point. Ok.
30
31 LeAnn Brown: So that I don't bounce up and down, I'd like a standing objection to any evidence
32 you receive. The pictures you received are for illustrative purposes because you've never been
33 able to see the barn, on which you've been talking about so that I don't bounce up and down if 1
34 could have a standing objection to anything that is information about activities subsequent to Mr.
35 Harvey's determination then we'll let the record reflect that and I will be still so you can hear it.
36
37 Karen Barrows: Ok. Thank you LeAnn.
38
39 Andy Petesch: Ms, Brewer, did you prepare a document that provides an illustration of the planting
40 beds that you're doing?
41
42 Kara Brewer: Yes I did. And we can...
43
44 Andy Petesch: Is this a...
45
46 Kara Brewer: Yes.
47
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APPROVED 6/12/17
Andy Petesch: Accurate copy of that?
Kara Brewer: Yes, that's it. And it actually relates to the photo that they introduced. I can show
where the planting beds are in the photo to sort of illustrate that. So it is part of the evidence that
they introduced.
Andy Petesch: I would like to introduce that as SPG 1.
Karen Barrows: Ok... Thank you.
Andy Petesch: If you could go ahead and tell the Board about that briefly?
Kara Brewer: Sure. So what we've done since we last met is we have started planting beds, and as
you can see from what we had established, we have put in ten 4 by 70 foot planting rows, plus
three half rows. I call it Zone A, and actually you can see it in the picture. It's that black section, it's
where we put the landscape fabric down. So that's on one side. We do do our plantings in different
spacing, depending on the type of flower. So it's either 6 inch, 9 inch, 12 inch, or 18 inch spacing
and I take those, the fabric, and I burn holes into the fabric so that when we have the plants going
in or the seeds going in we're able to easily do the correct spacing. So in Zone A, and I'll just go
through this very briefly, we won't have to spend long on it, I listed out the different beds and the
different flowers that we have going in each bed. It was spread 1 -13. And that is what they show in
the photo. Zone B, which is on the other side, I don't know... May I use this?
James Bryan: Yeah.
Kara Brewer: Zone B, which is on the other side, here; is about the same length, as you can see,
as the black, which is our landscape fabric. What's currently there that you can't see is we have
two 70 -foot trellises. I did put up a trellis in the meadow for our vines, which you'll see in the
planting beds. And then what's not shown on here, these are just our annual planting beds. What's
not shown on here is our perennial plan. So in this area here that you see cleared we're actually
prepping it for a peonies, which we'll be planting in the fall. So that's just an overview of what
you're actually seeing from the air.
LeAnn Brown: Would you turn it so I could also see what you pointed out where you said you're
putting peonies?
Kara Brewer: Sure. On this side. On that clearing right there,
LeAnn Brown: Thank you.
James Bryan: Andy, do you have an extra copy of the plan?
Andy Petesch: Of which? Do you... pass that to everybody.
LeAnn Brown: Not the entire cleared area.
APPROVED 6/12/17
1 Kara Brewer: There to there, that's our landscape fabric currently, so yeah, that is the entire
2 cleared area that we're planting things. And then you can also see, in between here, there's our
3 raised planting beds and we're putting lavender in there.
4
5 Andy Petesch: And Ms. Brewer, have you prepared a planting, seasonal planting, schedule?
6
7 Kara Brewer: Yes. I have planned. I have planned a seasonal planting schedule.
8
9 Andy Petesch: And is this an accurate copy of that schedule? If you'll look through it just quickly?
10
11 Kara Brewer Yes sir. Yes.
12
13 Andy Petesch: I'd like to introduce this as SPG Exhibit 2. And if you'll go ahead and tell the
14 Board...
15
16 Kara Brewer: Sure,
17
18 Andy Petesch: about...
19
20 Michael Harvey: Madame chair, can I interrupt please? Just to keep things straight, Mr. Petesch
21 has entered, re- entered into this record this evening the notebook. That is technically Exhibit 1. The
22 planting plan will be Brewer Exhibit 2. This is going to be Brewer Exhibit 3. Just so we're keeping
23 things straight.
24
25 James Bryan: I think what Andy was saying is that the book is what they were given last time.
26
27 James Bryan: It's already in the record from last time.
28
29 Michael Harvey: I misunderstood. So that's fine.
30
31 Kara Brewer: So this is our seasonal planting schedule and it just goes through the different
32 varieties of flowers and it shows when we're actually starting the seeds in the barn for each
33 different one. It's just different dates. It helps keep it straight for us as we go through the season,
34 and what we have to start, and when we have to start it. And this is for 2017. Of course, it will
35 change a little bit in 2018.
36
37 Andy Petesch: And Ms. Brewer, did you have prepared a field .trip curriculum for school children
38 visiting your center?
39
40 Kara Brewer: We have, yes, that meet State standards.
41
42 Andy Petesch: I was destructed during your... I didn't know how the exhibit numbers were resolved
43 Mr. Harvey, are we on...
44
45 Michael Harvey: Mr. Bryans confirmed that the notebook was just for the edification or their
46 remembrance, and so 1 is the planting plan, 2 is the seasonal planting schedule, now this would be
47 3.
19
APPROVED 6/12/17
1
2 Andy Petesch: Once you review that, and is that the school curriculum?
3
4 Kara Brewer: It is.
5
6 Andy Petesch: Do you have a copy?
7
8 Kara Brewer: I do not. Thank you.
9
10 Barry Katz: Mm -Hmm Mm -Hmm, right.
11
12 Andy Petesch: Would you go ahead and tell the Board briefly about the field trip curriculum?
13
14 Kara Brewer: Sure. This is just an example of our K -1St field trip offering. It does meet State
15 standards for North Carolina and I mean, I won't go through everything but you can see the
16 different activities that we have listed, parts of a plant, what plants need to grow, pollination station,
17 whats in the dirt. So the kids circle through each of the different activities when they arrive.
18
19 Andy Petesch: Ms. Brewer, did you prepare a list of resource reference items that you refer to in
20 your education on growing flowers?
21
22 Kara Brewer: I did.
23
24 Andy Petesch: And is this that list?
25
26 Kara Brewer: Yes.
27
28 Andy Petesch: A copy.
29
30 Kara Brewer: Thank you.
31
32 Andy Petesch: Would you tell the Board about how you use this, these materials?
33
34 Kara Brewer: It's just what I used in my overall flower research, and then I have gone to workshops
35 and growing schools and things like that that in addition, there's just some really great resources in
36 North Carolina, specifically, over at NC State. And then of course there's just a lot of different
37 books and things like that that help with the process so.
38
39 Andy Petesch: And did you recently attend the Orange County Ag Summit?
40
41 Kara Brewer: I did.
42
43 Andy Petesch: And could you tell the Board a little bit about what that is?
44
45 Kara Brewer: Ag Summit is just a yearly gathering of findings in Orange County and this year's Ag
46 Summit was specifically focused, or part was focused, on agro- tourism.
47
20
APPROVED 6/12/17
1 Andy Petesch: And do you know who Professor David Owens is?
2
3 Kara Brewer: Yes, with UNC.
4
5 Andy Petesch: And he... He's... I'm sorry, he's a professor at UNC, is that?
6
7 Kara Brewer: Correct.
8
9 Andy Petesch: And was he a speaker at that conference?
10
11 Kara Brewer: He was.
12
13 Andy Petesch: And did you see him speak?
14
15 Kara Brewer: I did.
16
17 LeAnn Brown: I... I object to this line of questioning on grounds of relevance, on the grounds of
18 hearsay, and on countless other grounds I won't even name.
19
20 Karen Barrows: I think I'll have to agree.
21
22 Barry Katz: Yep,
23
24 Susan Halkiotis: I do too.
25
26 Andy Petesch: And then, my last exhibit... Did you have an email correspondence with Patrick
27 Mallet of Orange County Planning Inspections Department on September 28th 2015?
28
29 Kara Brewer: I did.
30
31 Andy Petesch: Is this an accurate copy of that email correspondence?
32
33 Kara Brewer: It is.
34
35 Karen Barrows: Thank you.
36
37 Andy Petesch: Would you just tell the Board briefly what you requested and what it says here is Mr.
38 Mallett's response was?
39
40 Kara Brewer: I just requested what my options were in moving forward, and it was the two different
41 paths. So there's two different ways that the barn use is permitted in Orange County and the first
42 one of the ways is the issuance of a Class B SUP and then the other way is as part of a bona fide
43 operation or part of an agro- tourism activity associated with, with our farm.
44
45 Andy Petesch: Now it was discussed at the September, I mean the October 26 hearings on this
46 same issue Ms. Brown had asked you about some language on your website with respect to
47 marketing and there was a line that was included on your website that discussed parties having
21
APPROVED 6/12/17
1 exclusive use of the farm on their wedding day. Could you, and that's on page 54 lines 21 -24 of the
2 2016 minutes. Could you explain what you meant by the language in that?
3
4 Kara Brewer: Yes. All that means is that we have one agro- tourism event during any given time.
5 We do not do multiple agro- tourism events on the same day. There is other language on the
6 website and it is in a contract they do realize that it's a working farm and that as such there will be
7 things going on while they're on the farm. We are very clear about that.
8
9 Andy Petesch: Ok. And in the Special Use Permit you were also asked at the October 2016
10 hearings about some language, some testimony that you gave at the Special Use Permit hearing
11 with respect to what the status, the use, of the barn in between events, and that testimony was on
12 page 56 of the October 2016 minutes lines 36 -45. Could you explain your testimony to the Board
13 with respect to the use of the barn in between events?
14
15 Kara Brewer: Sure. Yeah, I was just speaking to events themselves. That's all that I was referring
16 to. It of course did not have anything to do with other activities that we'd be doing in the barn, as
17 well. It's just specifically referring to special events.
18
19 Andy Petesch: And that's because at the time of the Special Use Permit hearing it was your
20 understanding you were not supposed to address any farm issues, any agricultural issues, just the
21 events issues?
22
23 Kara Brewer: Right. Because it was a... Yeah, exactly.
24
25 LeAnn Brown: Andy, what page are you on in the.
26
27 Karen Barrows: page 56.
28
29 LeAnn Brown: Where are you referencing?
30
31 Andy Petesch; The approved minutes from the October hearing.
32
33 LeAnn Brown: What two pages did you just reference in the testimony .......
34
35 Andy Petesch: I've got page 54 lines 21 -24. And I'll read this...
36
37 Andy Petesch: All I have on marked up copy but I'm happy, it's a short, I'll be happy to read the
38 testimony.
39
40 LeAnn Brown: I don't have a copy of it in my hand,
41
42 Barry Katz: It's not, no. I had the wrong minutes here.
43
44 Karen Barrows: Find it.
45
46 Andy Petesch: I'll be glad to let you...
47
22
APPROVED 6/12/17
1 LeAnn Brown: Ok. Why don't... Let me look at it and then I can find my place and look when I need
2 to ask for questions. What tab did you reference?
3
4 Andy Petesch: Yep, well...
5
6 LeAnn Brown: Here you go.
7
8 Andy Petesch: Oh. Thanks... I have no further questions. I will...
9
10 LeAnn Brown: Need to mark those two so I can look at them. Ms. Brewer, I just have a few
11 questions for you. Your... This cut flowers Zone A and B plan in SPG 1, has any of this been
12 planted as of this day?
13
14 Kara Brewer: No, not yet. All of our beds have been laid out and we're starting our seeds next
15 week actually. It all happens this month and next. It's just the time of year.
16
17 LeAnn Brown: So none of this. This is the plan. This...
18
19 Kara Brewer: Well actually my plugs are in and just because of the weather I couldn't get them into
20 the ground, today, actually.
21
22 LeAnn Brown: And were they in the ground when we had the hearings in the fall?
23
24 Kara Brewer: Yes. We did have flowers in the ground in the fall.
25
26 LeAnn Brown: So your testimony that you had some flowers in the ground in the fall is still correct
27 and you've subsequently come up with this plan for planting flowers, is that correct?
28
29 Kara Brewer: Correct
30
31 LeAnn Brown: How many flowers, total, are you planting?
32
33 Kara Brewer: How many flowers total? Well, indicated through the different beds. It depends on the
34 spacing, there are different amounts of flowers and it's listed, it's listed in that document. So in
35 some cases, for example there's 400 and maybe 5 plants per bed, sometimes there's 900 plants
36 per bed. It just depends on the particular bed.
37
38 LeAnn Brown: Now, as a person who is farming flowers, you must have some rough number of
39 flowers that you have, plan to have and when you plan to have them seasonally.
40
41 Kara Brewer: Yes. They're on. All listed on that list.
42
43 LeAnn Brown: Alright, and can you tell me what that number is, without asking me to do the math
44 off your list? Because if you're getting ready to plant them you must have some sense of that?
45
46 Kara Brewer: I do have a sense of that and as I stated it's on the plan. It depends on which
47 individual bed. We can sit here and go through and add each one if you would like to do that. You
23
APPROVED 6/12/17
1 can't really say how many plants, how many flowers each plant is going to produce. It depends. For
2 example, a sunflower produces 1 stem, so if you plant 200 sunflowers, you have 200 stems. Other
3 flowers are cut and come again. So the more you cut them the more you grow. You might get 20,
4 30 blooms, 40 blooms. It just depends. So that's a tough question to answer.
5
6 LeAnn Brown: I'm sure. Let me try it this way.
7
8 Kara Brewer: Yes.
9
10 LeAnn Brown: When's your first wedding planned?
11
12 Kara Brewer: May.
13
14 LeAnn Brown: May what?
15
16 Kara Brewer: The very beginning of May. The first weekend. I don't know off the top of my head,
17 but it's the beginning of May.
18
19 LeAnn Brown: The first weekend in May. How many flowers do you anticipate would be available to
20 a bride for any aspect of her wedding for a wedding in May? From your farm, how many?
21
22 Kara Brewer: We should be able to provide 75 percent of that bride's flowers. 75 -80 percent.
23
24 LeAnn Brown: 75 percent would be how many different? What would that include?
25
26 Kara Brewer: It depends on what the bride wants.
27
28 LeAnn Brown: Then... If you're using the number 75 percent you have to have some assumption in
29 your mind as to approximately what she might want.
30
31 Kara Brewer: We do. And that's actually part of why we chose weddings as part of agro- tourism.
32 Because a definite tying between a flower farm and having weddings, the bride comes to us, we're
33 actually able to sell our flowers to that bride. It's very much related and we're actually able...
34
35 LeAnn Brown: Alright, excuse me, but I ask you a question and I would like for you to answer my
36 question and my question is, if you are contending that you could provide 75 percent of the flowers
37 necessary for a May wedding from your farm I am asking you what, how many different things
38 would that be? Is it a bouquet? Is it table flowers? Is it corsages? Is it the other bouquets? Is it the
39 full panoply of flowers?
40
41 Kara Brewer: Yes. There's... It's whatever the bride... You know, we sit down and consult with
42 them?
43
44 LeAnn Brown: So no matter what she wants, no matter how many flowers she might want, whether
45 she's having a simple wedding or whether she's having an elaborate, flowered wedding you
46 believe that you could provide 75 percent of that?
47
ffid
APPROVED 6/12/17
1 Kara Brewer: So what we do is we, because we're locally grown flowers, we push local flowers that
2 are coming off of our farm. Now, obviously, if a bride wants something that we don't grow, like
3 roses, we don't grow roses, we would have to source that from other places. We would source that
4 from other local flower farms, which is part of the beauty of what we're doing, we get to promote
5 local, there's a wholesale flower movement. So that's also something that we tie in as well, but
6 yeah.
7
8 LeAnn Brown: I think it could help me by answering the question I'm asking, I would appreciate it,
9 but what I am understanding is that it's fair to say that when you answer the question that I have
10 ask that you are actually assuming, as a recent article I read suggested, that you would be getting
11 flowers from other growers other than your farm in order to provide the wedding flowers.
12
13 Kara Brewer: Of course, we don't grow every single flower in every single color. If we don't have it
14 on our farm then we'll source it locally. It's part of supporting the local community and supporting
15 other flower farmers as well.
16
17 LeAnn Brown: So the answer to my question is; yes, we would source flowers from the other farm,
18 Is that correct?
19
20 Kara Brewer: That is correct, yes; in addition to the flowers we produced on our own farm.
21
22 LeAnn Brown: How many years experience do you have as a flower farmer?
23
24 Kara Brewer: Well, what... we've been planting there for a year and a half, almost a year and a
25 half.
26
27 LeAnn Brown: How many flowers did you grow last year?
28
29 Kara Brewer: We did two test beds, so two 70 -foot by 4 -foot rows.
30
31 LeAnn Brown: Alright, so you grew two flower beds last year and you've got a page, Exhibit 4, is a
32 page of resource of what you have consulted in order to become a flower farmer. Is that correct?
33
34 Kara Brewer: Well that's just some resources, but correct.
35
36 LeAnn Brown: Your Exhibit 5, which is a letter from Patrick Mallet, there's in fact a long email chain
37 back and forth with Patrick Mallet and you, is that correct?
38
39 Kara Brewer: I mean I'd have to see, probably.
40
41 LeAnn Brown: Do you have in your possession for introduction into evidence tonight the full chain
42 of communications between you and Patrick Mallett and other members of Orange Orange County
43 government that led to this particular email?
44
45 Kara Brewer: No I do not.
46
25
APPROVED 6/12/17
1 LeAnn Brown: I'd ask the Board to strike this piece of evidence because you have not been
2 provided the full communication between Orange County and I would contend that without that
3 information you can't draw any conclusion whatsoever from this line email that's been picked in
4 that chain. Andy, where's your minutes?
5
6 LeAnn Brown: Are these yours Andy, this, these are the ones on your...
7
8 Andy Petesch: That...... that's a clean copy
9
10 Barry Katz: Do we have to make...
11
12 Karen Barrows: I don't think so.
13
14 LeAnn Brown: Ok thanks.
15
16 LeAnn Brown: You were asked by Mr. Petesch about a line of questioning in the earlier hearing
17 and you had testified that that contrary to what we may have had in our conversation that evening
18 that that language simply meant that you had one wedding at a time. Is that correct? Is that what
19 you testified to a minute ago?
20
21 Kara Brewer: That's when we have one agro- tourism event on the farm per day.
22
23 LeAnn Brown: When you say agro- tourism event, what do you mean agro- tourism event? Is that a
24 wedding?
2S
26 Kara Brewer: It could be a wedding or an educational event for kids, a floral workshop, a farm
27 dinner, things like that.
28
29 LeAnn Brown: How many farm dinners do you have planned for your facility at this moment?
30
31 Kara Brewer: We do not have any farm dinners planned. We will probably do some in the fall, once
32 we have our chestnut harvest we're gonna...
33
34 LeAnn Brown: So the answer to my question is none, is that correct?
3S
36 Kara Brewer: Correct.
37
38 LeAnn Brown: How many educational events do you have planned on your property?
39
40 Kara Brewer: We're starting this summer so we're going to do ...... probably try to do four or five
41 and then ramp up in the fall.
42
43 LeAnn Brown: How many are currently scheduled?
44
45 Kara Brewer: None.
46
47 LeAnn Brown: Ok. How many weddings are currently scheduled for your property?
26
APPROVED 6/12/17
1
2 Kara Brewer: Seventeen,
3
4 LeAnn Brown: Do you recall in the line of testimony that we were having about the adversement
5 that people have full run of your farm during their weddings, do you recall a conversation about
6 equipment and whether you would move equipment from the barn?
7
8 Kara Brewer: I do not. We'd have to. Can you repeat that? I'm not sure what you're,,,
9
10 LeAnn Brown: Do you recall us having a conversation in that hearing about how much space it
11 would take to store flour in the barn, which at the time you told the Board was what you would be
12 doing with it?
13
14 Kara Brewer: Oh, yes. I do have some information about that if you'd like me to introduce that.
15
16 LeAnn Brown: I'm not interested in gleaning from you how your testimony's changed between this
17 time and the last hearing, I'll leave that to.
18
19 Kara Brewer: My testimony has not changed,
20
21 LeAnn Brown: I just wanted to know if you recalled that line of questioning. Do you recall Mr.
22 Petesch asked you about your testimony in the on page what he had identified as page 56? 1 had
23 asked you about the minutes of the Board of Adjustment hearing regarding your SUP and I had
24 asked you the question, "is this an accurate reflection of your testimony of the hearing ? ", your
25 attorney asked you, "And Kara why did you choose this specific property at this site ?" and you
26 testified, "Right, so I had looked probably over the course of two years 20 -30 properties walking
27 different ones when we came across this particular property it is a just, it's just a beautiful property
28 and like I said, the size itself was very important to me, The fact that it was 22 -acres it allows me to
29 have a very private events in the middle of the property and that was important to me, it's important
30 to clients, and also I think it will benefit the neighbors as well And I ask you if you recall that
31 testimony and you said, "That is correct ". That's part of the testimony that Mr. Petesch had marked.
32 1 then asked you the question or just before that question, I then asked you, "Do you recall the
33 following testimony? You were asked by your attorney and can you just tell us a little bit about how
34 often you expect to be holding events at the barn, like weddings ". And then I asked if you recall the
35 following testimony: "So wedding season is primarily May to October so it does run about six
36 months during that time. I do expect 1 -3 events per week at the property. Off- season, which is
37 November through'April will be less on where there isn't going to be there, I apologize but that's the
38 way it's written, with the occasional winter wedding. Perhaps the early spring wedding. When the
39 barn isn't used for weddings and wedding related events that's when I anticipate we could do more
40 charity and fundraiding raising events on Friday or Saturday night when it isn't being used for
41 weddings, During the off season there will be weeks where there is nothing going on, there will be
42 a few weeks where there's one or two events per week ". And I ask if you recall that testimony and
43 you said, "That is correct ". I then ask you how those events were incidental to your farming
44 operation and you answered that, "What we are specific doing specifically with the weddings is
45 we're offering farm tours. It's what attracts people to book the farm itself. So we offer farm tours,
46 we offer honey tastings, we offer floral workshops. That's what they want. That's why they come
47 out to the farm so it's just a part of that ". I then ask you if those activities were incidental to the
27
APPROVED 6/12/17
1 weddings and you testified that farming was your primary activity. Well, what about that line of
2 testimony were you changing today when Mr. Petesch was asking you questions?
3
4 Kara Brewer: I'm not sure what you mean. What have I changed? I don't...
5
6 LeAnn Brown: You clarified in your testimony. You clarified that testimony. I'm trying to understand
7 what's different.
8
9 Kara Brewer: What's different with what?
10
11 LeAnn Brown: Why did you clarify that testimony? You answered the question to clarify, that he
12 asked you to clarify, you clarified, why? What's different?
13
14 Kara Brewer: What I just clarified with Andy? I'm not sure what you're. I'm not sure what you're
15 asking.
16
17 LeAnn Brown: Well...
18
19 LeAnn Brown: When you testified previously before this Board you testified that the barn would be
20 available for your wedding parties, that you had not at that time thought about where you were
21 putting farm equipment or where you would put chestnut flowers, you had planted a very few
22 flowers at the time. What it seems that you have done today before the Board is suggested that
23 you're planting more flowers and that you will be using flowers. We've not heard much about
24 chestnuts tonight, and I'm trying to understand what it was that you wanted to clarify to that
25. testimony.
26
27 Kara Brewer: I don't think I need to clarify anything. I'm not sure what you're...
28
29 LeAnn Brown: So if I were to book your barn for a wedding I'd still have the full barn, is that right?
30 Could use the entire barn when I was there for my wedding, is that right?
31
32 Kara Brewer: When you are booking the property for a wedding, yes you'll be able to use the barn.
33 Not the entire barn, there are portions of the barn that will be in storage and there's other things
34 going on but, yes, you will be able to use the barn.
35
36 LeAnn Brown: And I recall us having some questions about that storage piece last time. You had
37 no idea in the last hearing how much area you'll be using for storage. How much area is going to
38 be used for storage now?
39
40 Kara Brewer: We can certainly talk about that if you'd like.
41
42 LeAnn Brown: How much area is going to be used for storage?
43
44 Kara Brewer: Yes,
45
46 LeAnn Brown: I. It's a question. Answer the question. How much area is going to be used for
47 storage?
APPROVED 6/12/17
1
2 Kara Brewer: Sure. So we have folding tables during the week set up in the barn. The folding
3 tables are 8 feet by 40 and there's ten tables total. More can be used as needed. So 70 soil blocks
4 sit on an 11 -inch by 21 -inch tray. There's eight trays per table, two rows of four down the middle,
5 So that's 560 blocks per table. On the barn you can kind of see it. In the barn you kind of see
6 where that is. So the four tables have enough space to hold up to 2,240 solar blocks. During the
7 chestnut harvest we can also use tables for shelling, sorting, and bagging the chestnuts. Chestnuts
8 also used to cure for 3 days in the full of the barn so we have an area set aside for that. We have
9 two tables set aside for making the soil blocks, we have two tables set aside for flour harvesting,
10 prep works, stem cutting and stripping, hydration, two tables for floral design and four stainless
11 steel rolling racks with six adjustable shelves. So if somebody is using the barn we can put the
12 flowers on the soil blocks into the rolling racks, bring them outside, which they need to go outside
13 anyway because they have to be (inaudible) enough. They have the event and then were are able
14 to bring the soil blocks back into the barn. So that is how we are doing it.
15
16 LeAnn Brown: How many square feet of your barn do you use for those folding tables?
17
18 Kara Brewer: It takes up, what,,, 80, 75 percent of the floor space in the barn.
19
20 LeAnn Brown: How many folding table do you have?
21
22 Kara Brewer: I just said we had ten 8 -foot by 30 and then we also have a 20 -foot section set aside
23 for the chestnuts,
24
25 LeAnn Brown: How many square feet's your barn again?
26
27 Kara Brewer: This particular space is 3200 square feet.
28
29 LeAnn Brown: How many tables?
30
31 Kara Brewer: Ten 8 -foot tables,
32
33 LeAnn Brown: Ok. So it takes 3200 square feet to have ten tables?
34
35 Kara Brewer: Yes.
36
37 LeAnn Brown: Alright, how about farm equipment? Do you still have? Do you have farm
38 equipment?
39
40 Kara Brewer: We do.
41
42 LeAnn Brown: What do you have?
43
44 Kara Brewer: We have a lot of stuff. We have a tractor, we have shovels, clippers, rakes, pruners, 1
45 mean the list goes on and on.
46
47 Kara Brewer: Landscape fabric, soil blocks, soil,.
29
APPROVED 6/12/17
1
2 LeAnn Brown: Alright, how many square feet of your barn does it take to store that?
3
4 Kara Brewer: I don't have the exact square footage but the... It's big enough, it's big enough, it's
5 flexible enough that we have plenty of storage space.
6
7 LeAnn Brown: And where does that go during weddings?
8
9 Kara Brewer: It goes in different areas. We do have an office in the back that we can store most of
10 our stuff. There is a processing area where we're holding a lot of our flowers and where some of
11 our floral stuff goes so it can go in there as well. As I said, we move out the soil blocks. So yeah.
12
13 LeAnn Brown: And what about that chestnut flour? Where is it going during the weddings?
14
15 Kara Brewer: We do not have any chestnut flour at this time.
16
17 LeAnn Brown: I see. So the testimony we had last time about the chestnut flour, we've moved on
18 from that, is that...
19
20 Kara Brewer: I think you misunderstood. We were looking in the future to produce chestnut flour
21 but we just haven't gotten that far yet.
22
23 LeAnn Brown: I see.
24
25 LeAnn Brown: So the chestnut flour isn't there yet either? Is not there yet?
26
27 Kara Brewer: Yes, As I just said, we do not produce chestnut flour yet, but we will be producing
28 chestnut flour in the future. I think that was very clear from previous...
29
30 Karen Barrows: Excuse me, Matt. Matt would like to...
31
32 Matt Hughes: Yes. I would just, as much as I have enjoyed learning more about Ms. Brewer's
33 business plan and the trip down memory lane, I think that...
34
35 Karen Barrows: We've heard it.
36
37 Matt Hughes: It would be good to get to the arguments that the appellant and Ms. Brewer's counsel
38 has, if we could just move in that direction.
39
40 LeAnn Brown: I. I. Mr. Hughes, I'm happy to move on, but I will point out that I objected to her
41 having this testimony and that my need to ask her follow up questions is solely because the Board
42 decided to receive it.
43
44 Matt Hughes: Understood.
45
46 LeAnn Brown: I too would like to have avoided a trip down memory lane. I have no further
47 questions of the witness.
30
APPROVED 6/12/17
1
2 Kara Brewer: Thank you.
3
4 Karen Barrows: Any questions of Ms. Brewer from the Board?
5
6 Barry Katz: Ok. So, Wait, I did. I had a question.
7
8 Karen Barrows: Ok.
9
10 Barry Katz: Maybe I'm missing something. You're tables are 60 -feet long? Tell me, 30 -feet?
11
12 Kara Brewer: The tables, or the flowerbeds? Which?
13
14 Barry Katz: The tables that you have on wheels,
15
16 Kara Brewer: No, the tables are just regular folding tables, that are 8 feet long.
17
18 Barry Katz: Folding tables.
19
20 Kara Brewer: Regular folding tables.
21
22 Barry Katz: 8 -feet long?
23
24 Kara Brewer: Yes,
25
26 Barry Katz: Ok. I heard a number, a different number than that. A long tables, long something. 10.
27 What was that?
28
29 Kara Brewer: Maybe you're thinking of the bed, like the flowerbed,
30
31 Barry Katz: The outside beds?
32
33 Kara Brewer: Maybe,
34
35 Barry Katz: No. I. I. 1 misunderstood something there because I thought you had very long tables
36 inside that you were processing things with.
37
38 Kara Brewer: No. But I mean you can put the tables together,
39
40 Barry Katz: You said just folding tables, Alright, ok.
41
42 Kara Brewer: Yeah,
43
44 Karen Barrows: Thank you Ms. Brewer for you testimony.
45
46 Kara Brewer: Thank you.
47
31
APPROVED 6/12/17
1 Andy Petesch: I'd like to ask Chris Brewer to come up and address the chestnuts, whereas Ms.
2 Brown asked about and believe that his testimony, at least from my questioning, should be only
3 two minutes.
4
5 LeAnn Brown: I think for... for due process purposes if the Board has indicated to me that it wished
6 for me to cease a line of questioning of a witness that it would be appropriate to not receive further
7 evidence that continues the, what Mr. Hughes referred to as, the walk down memory lane.
8 Otherwise, the appellant has been asked to not proceed with evidence that now the property owner
9 is allowed to proceed with.
10
11 Matt Hughes: I certainly agree with that.
12
13 Karen Barrows: I think we've heard Mr. Brewer, so.
14
15 Andy Petesch: Alright. Now I just would ask the record to show that Mr. Brewer was available and
16 prepared to testify about update on chestnuts, I'll leave it at that. Thank you.
17
18 Karen Barrows: Thank you.
19
20 Matt Hughes: Thank you.
21
22 Karen Barrows: So from here do you each tidy it up with a closing statement?
23
24 LeAnn Brown: Despite the fact that you've heard some additional evidence this evening this is
25 really not a hearing that's about receiving more evidence. You made a decision before, which is
26 actually on appeal by Ms. Brewer. We've got an odd procedural part posture because Mr. Harvey's
27 opinion was issued before you could even get an order done and start the clock ring for us to deal
28 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
29 7th 2016 opinion. And I want to go through with you what he decided and why that's wrong. I want
30 to advise you as I begin this process that under 160a388 you are empowered to substitute your
31 judgment for Mr. Harvey's. You are this evening the people who make the determination about the
32 legal meaning of the various statutes involved. I realize that most of you are not judges by training
33 during the day, the one who is had to recuse herself from this hearing. Just as Mr. Harvey is not an
34 attorney and not a judge either, but you are tasked with deciding whether this is correct and you
35 are free to substitute your judgment for him, which means just as it meant at our last hearing you
36 could decide what this statute means and you can decide whether or not this property fits in it. And
37 so with that in mind I want to go through the process. I do want to raise for the record, I don't want
38 to talk about it much, but I do want to raise for the record cause I am certain that we are going to
39 be elsewhere with this case before it's over that I have serious due process concerns about the
40 fact that we have had members of the Orange County staff, including the legal staff, involved in
41 representing you and advising Michael twice and we have a situation where you're being advised,
42 as my judges, as to procedure and I think to some degree as to what the law is while the County is
43 also advising in other ways and it's giving me some heartburn and I want to raise it so that I have it
44 on appeal, and I'm through discussing that for tonight, that's not your issue to decide. Moving on to
45 the opinion. The first question that Mr. Harvey addresses in his opinion is whether the property is a
46 bona fide farm. You have before you a copy of 153a -340b that Mr. Harvey introduced into
47 evidence. Chapter 153a section 340 is the grant of power of zoning. I say that to you because I
32
APPROVED 6/12/17
1 want you to understand that that is where this is located. It is part of the zoning power. Section a is
2 the grant of power and section b1 begins the process of talking about the farm exemption. This
3 particular section of chaptern153a is called "Part 3 Zoning ". Now, why on earth did I just tell you
4 something as boring as that? Well, here's why. If you look at the statute that you have before you
5 and the statute that Mr. Harvey was looking at, what the statute says about farms is that
6 regulations; what kind of regulations? Regulations may effect property used for bona fide farm.
7 Used for a bona fide farm. Only for the purposes set out in paragraph three. But, this subdivision
8 does not limit regulation under this part with respect to the use of farm property for non -farm
9 purposes.
10
11 Barry Katz: Where does it say? Oh there it is.
12
13 LeAnn Brown: Do you have the copy there in front of you? Can you see it?
14
15 Barry Katz: Yeah. I got it.
16
17 LeAnn Brown: So what that means in a more common way of speaking is that the legislature does
18 not intend the farm exemption that it is telling you about here to apply to the zoning regulations, this
19 part, all zoning in the Counties in the State of North Carolina, to the extent that someone is making
20 a non farm use of farm property. In other words, under this statutory structure delightfully written as
21 it may be, what the statute means is that there is a multipart test. First question; is the property
22 farm property at all? Is it a bona fide farm? An the legislature spends a great deal of that statute
23 telling us what things a County can look at or must look at to decide whether it's farm property at
24 all. If it's not farm property at all we don't have the rest of this conversation. So we go through and
25 look at whether it's farm property. And the test is very simple. The legislatures made the test pretty
26 easy. If you've got a farm number then you get to walk down the path of being a farm property. If
27 you've got a forestry plan, even if it's on top of your septic system, you get to be considered a farm
28 property. And so, we have not contended that Ms. Brewer doesn't have either of those things and
29 some other things that fit those statutory tests. We, we're not... they then went out and bought a
30 farm in another County and had some chestnuts there and I'm not contending that whatever they
31 did there couldn't apply back to determine whether this is farm property. So we are not here to take
32 issue with whether the dirt is farm property. It's got all the requisites to be farm property. That does
33 not mean that this property is exempt from the zoning ordinance of Orange County in a vacuum.
34 What that means is that you get to look at whether the exemption applies. And what happened in
35 this case originally is that Michael Harvey did exactly that, He looked at the issue of whether this
36 property could be considered farm property and then he looked at the use that was proposed and
37 he looked at the paperwork that had been provided to him and he said, you know, this is a non
38 farm use. And because this is a non -farm use this individual needs a Special Use Permit in order to
39 have this use on this property that might otherwise be farm property. Mr. Harvey was absolutely
40 right. Mr. Harvey's decision that this particular use is a non -farm use and required a Special Use
41 Permit is absolutely correct. And the logic of that decision then follows through with the decision
42 that you made as a Board. Because you looked at this use and you looked at the impact of this
43 use. Look at that picture again. Look at that asphalt farm, with that gigantic barn sitting on it. You
44 look at that picture and you know that this particular use is not related to farming at all. It may be on
45 farm property, but it is not related to farming at all. It is a wedding venue. It was advertised as a
46 wedding venue, you analyzed it as a wedding venue, and you were given an honest application
47 saying, here's my wedding venue, can I do this? And you decided that based upon the enormous
33
APPROVED 6/12/17
1 impacts that a wedding.venue would have on this neighborhood that you could not make the
2 requisite four findings that would have allowed you to grant a Special Use Permit and nobody
3 appealed your decision. So that decision stands today. This property does not meet the four
4 findings of a Special Use Permit and therefore could not be used for a wedding venue. So, as I
5 say, Mr. Harvey was right about it when he made that particular decision. He goes through his
6 analysis here about whether it's going back to this current analysis, it's a bona fide farm, but he
7 doesn't really talk about the sentence that really matters here, the sentence that he relied on
8 before. That the subdivision does not limit. The sub. This subsection. This. This statute. This
9 language in this statute is not intended to limit regulation by the County under the zoning law with
10 respect to the use of the farm for a non -farm purpose. I want to point that out to you because I think
11 it's helpful to us as we go through the next analysis. Mr. Harvey then goes through the analysis of
12 whether this dirt would have a farm, have the ability to be looked at for a farm exemption and he
13 determines that it does and he goes through a great deal there to talk about why it does. And he
14 concludes not that the property is bona fide farm, which is the first conclusion you need to reach: is
15 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
16 the statute. He then goes on and he blends, this is his first error, he blends the question of whether
17 it's a bona fide farm under the test that are put forth in the statute with whether it's actually being
18 used for farming purposes or whether the use proposed is for a non -farm purpose. And that is error
19 one. He ignores the non -farm purpose process there. Even if you have a farm number, and even if
20 you have a bona fide farm under the under the statute Orange County is obligated for the sake of
21 the other neighbors to look at the use proposed to see if that use is for a farm purpose or a non -
22 farm purpose. And Mr. Harvey did not do that in this particular analysis. He actually then concludes
23 not that it's a bona fide farm, which is step one, but that the use is bona fide farming. So that's his
24 first error. And it would be appropriate for this Board, instead of making that mistake, to say yes it
25 has the bona fide it has the farm number, it has the things that will make it a bona fide farm, now
26 let's go on and ask the follow up questions. And the follow up questions are, is it a farm use or not?
27 If you go on and look, Mr. Harvey then gives you an advisory opinion. I'm not sure why we have
28 advisory opinions in his order. It's unusual, I think, to include an advisory opinion but this particular
29 advisory opinion I find troublesome because what Mr. Harvey stated here, I guess an explanation
30 as to why he didn't consider your findings of fact, is that there's no authority to interpret or eject the
31 viability of a property owners claim of use. You'll recall that I asked Mr. Harvey a line of questions,
32 and the question I asked him was, did he consider anything that this Board had done? In listening
33 to all this evidence about this use did he consider any of that? And he said no, because he's he's
34 stuck with looking at this affidavit. Let's think about that a minute. I'm I'm not aware of any statutory
35 authority or case law that says he can't look. I am aware of a few cases under the farm use where
36 the court talks about what the evidence shows about the use so I think that's an indicia to me that
37 you can look. I think you must look. If you go back to your findings of fact, what you found is that if
38 you look at Ms. Brewer's first application for the SUP, her second application that Mr. Harvey
39 rejected, and her third application the Mr. Harvey now feels constrained to just take her word for
40 everything that's there what you will see is that that the the actual scope the building, the actual
41 size of things, the actual layout of things never changes through that process. And so what Mr.
42 Harvey's advisory opinion means is that the County has no authority to look behind what a citizen
43 tells them in an application to see if the facts are different. Really? Really? Let's think about that.
44 Orange County and any other county, and municipal government that is looking at applications has
45 the ability to look at whether the information in the application comports with reality. They have the
46 right to ask questions, they have the right to know what's going on, they have the right to go out
47 and look at property, they have the right to see how property's being used, and so the suggestion
34
APPROVED 6/12/17
1 that your detailed findings of fact, including finding of fact number nine that all these applications
2 are really same, is something that Michael Harvey was required to take into consideration. And his
3 concern that he could not consider that leads him to error number two. Because if he only looks at
4 what Ms. Brewer wrote after re -doing her application three or four times, after re -doing her legal
5 documents with the secretary of state, after re -doing everything to try to cram it into the farm
6 exemption to get her permit, then what this Board found and what this Board instructed is those
7 applications are really the same, and you have to really look at it and say, is it farming out there? Is
8 it a farm use? It may be a bona fide farm piece of dirt, but is there farming going on on it? Is it a
9 farm use? And so the second mistake Mr. Harvey made is that he failed to take that into
10 consideration and felt constrained not to consider the facts and the reality of what this Board had
11 looked at. He then went on to determine that the structure was being used for a bona fide farm
12 purpose and he concludes that, again, based solely on her application, Not on the evidence, or
13 facts that you found. He so states in his finding, he didn't hide it from you, he said, based on what
14 she what she signed on her affidavit it it the structure is for a farm use. He then goes on to say, if
15 it's for farm,use we're still not through asking the questions. You know, is it a farm? Ok well look at
16 the statute. Is it a non -farm use? We're through. Even if it may be a farm use, even if there's some
17 tangible relationship, a person who is engaged in activities on a farm such as this has to be able to
18 show that the particular use is incidental to their farming. My ice cream store is incidental to my
19 milking cows and making ice cream. My tomato stand is incidental to my tomatoes growing behind
20 me. My Walmart is not incidental to whether I have tomatoes growing. I used that argument before
21 but I think that's exactly right. We have to determine whether the use is incidental to the farming or
22 whether farming is incidental to the use. And what we have here is a situation where we have a
23 wedding venue and we're going to grow a few flowers, some of which may be able to be used,
24 augment by flowers other people grow on their farms to create bouquets. Weddings and music
25 venues are going to actually be the cases where our courts finally give us detail guidance on the
26 farm exception because it's very difficult to tie getting married back to any kind of farm activity.
27 Weddings can be agro- tourism. I mean that that's that's not incorrect, I could have somebody come
28 out and get married in my barn and it'd be incidental to everything that goes on but when I'm
29 running a full time business with weddings, trying to have a wedding every single solid weekend,
30 that is the business. That is the business. It's not a, it's not incidental to any farming that's taking
31 place. And the statute intends. The statute intends that what is agro- tourism and incidental to
32 agriculture. If the statute intended that tourism could be done on farms they would talk about agro-
33 tourism, they'd just talk about tourism and say, well you know you do anything you want on a farm
34 in North Carolina. That's not what our statute says. And so the next mistake that Mr. Harvey made
35 was that he determined that this structure as wedding and event center is related to or incidental to
36 the property being used for bona fide purposes. He doesn't really tell us how it's incidental but he
37 does go in and begin to look at definitions of agricultural and farming and various incendiary
38 statutes. He quotes from NCGS section 106 - 581.1, now first of all I want you to understand that
39 that particular statute is part of the agricultural development act, and it relates to a statute that's
40 designed to get federal funding for agricultural purposes and to give counties some power to do
41 that so while the definition is interesting the definition is not a definition that the general assembly
42 gave you to help you define what those terms mean under the zoning power, in 153a. Chapter 106
43 is not the same. And so from that point of view that definition, while interesting, is not totally
44 controlling. What is interesting about it, however, that it is referenced in the zoning statute as a
45 statute to look back at and what is interesting about it is if you look at the actual definition in NCGS
46 106 -581.1 what you will see there is that it carries forward this concept of being incidental to. I think
47 you have it before you and if you look at 106581.1 paragraph 6 it says when performed on the farm
35
APPROVED 6/12/17
1 agricultural and farming also include the marketing and selling of agricultural products, agro-
2 tourism, the storage and use of materials for agricultural purposes, packing, trading, processing,
3 sorting, storage, and other activities performed to add value to crops, livestock, and agricultural
4 items produced on the farm and similar activities that are incident to the operation of the farm. Let
5 me go back to my tomato stand. My tomato stand is incident to my growing tomatoes on my farm.
6 I'm just going sell me some of them. That makes perfectly good sense. You cannot skip, when you
7 go to this as your next definition, you cannot skip this cogent incidental, it's incidental to. And so
8 the finding that Mr. Harvey made that the that the this is incidental to is really without explanation
9 as to how that ties back to the particular facts. And so that is your next error. Mr. Harvey then talks
10 about article 10 in the definitions of the UDO, and it defines agro- tourism as a business directly
11 related or incidental to agricultural activities occurring on a bona fide farm, which is located and
12 conducted for employment or education of the public. He then uses the Merriam - Webster
13 dictionary definition of agro- tourism as a practice of touring agricultural areas to see farms and
14 often to participate in farm activities. Well I suppose when you're having a wedding I guess you see
15 the farm, kind of. I'm not concerned about the kindergarten children. You'll notice I didn't ask any
16 questions about the exhibit about the kindergarten children go out there and look at flowers.
17 Perhaps that's some form of agro- tourism if there's farming going on. But this wedding venue
18 concept, an event center concept, is not about coming out and looking at a farm. It's not about
19 coming out and commuting with the chestnuts, or picking a few flowers for your wedding, it is a
20 wedding venue. It's about the weddings. Of the seventeen brides coming out there I bet every one
21 of them thinks it's about their wedding. Because that's what it is. It's a wedding eevue. It's a
22 wedding venue. So again, in the concept of what agro- tourism is, an occasional wedding on you
23 farm. If you want to get married on a farm and a farmer has an occasional wedding on a farm that's
24 a very different concept. I live next door to Brenda Leeper's wedding venue and people get married
25 out there from time to time. Not terribly often. She lives off of the main thoroughfare. She lives on
26 top of a whole bunch of subdivisions. There's not much farming going on around her that's for sure.
27 She's about the only farm out there. She owns an urban farm. But when people get married out
28 there they're getting married out there with the goats wandering around and they have an
29 occasional wedding, it's out in an open building and lovely though it is, it's designed not for every
30 kind of wedding. This is truly a wedding venue. We looked at some of the website picture before
31 and it's designed for lovely weddings, it's designed for formal weddings, it's designed for weddings
32 that involve lace shoes and roses for flowers. It's not a wedding that's, a wedding venue that's
33 about being on a farm. And so the determination by Mr. Harvey that somehow this wedding and
34 event center venue that use, that's the only use I'm here talking about, weddings and events, that
35 are of that kind of magnitude are not incidental to anything going on that property, either when you
36 heard it or as it was supplemented tonight. So Mr. Harvey's conclusion that the use of the barn
37 structure for weddings is related and incidental to the property being used for a bona fide farm
38 ` purpose is not tied back to any facts to support it in his opinion. And it's not tied back to facts,
39 because if you tie it back to the facts you found that you can't get there. We then have Mr. Harvey's
40 advisory opinion about the building code, which I think is also a very serious thing and I want to
41 speak to it briefly. Actually, I want to back up and just mention 99e -30, which is the other place that
42 we see mention of agro- tourism and I want to point out to the Board that that particular statute is
43 fairly broad because it's the agricultural activity, agro- tourism activity liability act, and it's designed
44 to help people get exemptions from liability under certain things. It's not a definition that's even
45 incorporated into 150a. So, just want to mention that to you as we use that. The building code
46 issue is again not the issue that's before you. The building code requirements stand separate and
47 apart as they are currently written to the zoning power. The zoning power is the power given by the
36
APPROVED 6/12/17
1 legislature to government to zone and what the legislature said about farms is that you have, you
2 do not have the power to impose your zoning on the, unless the use is for a non -farm purpose and
3 that's what the deal is here. The building code statute stands separately. The opinions that are
4 attached to the building code information are... is an opinion that involve an actually functioning
5 barn that was then being used for weddings. There was a farm there first. I think factually it's very
6 different. There's an AG opinion there as well, which does not have the force of law, which again
7 interprets the building code statute and nothing else. I'm not sure why Mr. Harvey provided us an
8 advisory opinion there because, again, I don't think that that information it's A: not appealable and
9 B: wasn't before you and C: doesn't really get to the ultimate question that you have. I suppose it's
10 designed to say, look you know in some other context the rules may may not be what they are. I
11 don't have an appeal before you about the building permit. My appeal is about the zoning piece of
12 it. And I want you to make your decision based on the zoning power and what those exceptions
13 mean. So in conclusion, I think you're hearing from me today what you heard from me before.
14 Three -part test, and we failed two parts. First test is, can it be considered a farm? Yes. Second test
15 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
16 event center incidental? What I am asking you to do as a Board is to take the information that you
17 found in your order as facts and to go look at that information, use that information to make your
18 determinations that while this may have a farm number and it may be a bona fide farm for the
19 purpose of determining whether the statutory exemption could apply, that the statutory exemption
20 does not apply in this case to any use of that structure that is wedding and event center use. And
21 that in order to have a wedding and event center there this applicant was required to have a Class
22 B SUP, which she does not have, for which she did not appeal, and that accordingly Mr. Harvey
23 has erred and that this property may not be used as a wedding and event venue. If somebody
24 wants to use this barn to store tobacco. We're not talking about that. I'm not talking about the
25 building code piece. I'm not talking about whether she need a building permit to have a barn. I'm
26 talking about whether you can use this barn in a way that is contrary to your ordinance and in a
27 way that is not incidental to any kind of farming purpose. And so I would ask you to both reverse
28 Michael's decision and to substitute your own tonight so that it doesn't bounce back and forth
29 anymore, and that the decision that you make be that it is neither incidental nor is it a farm use.
30 And I thank you very much for your time and attention. I know you are exhausted from hearing
31 about this barn and we appreciate your attention tonight, thank you.
32
33 Karen Barrows: Thank you LeAnn. Andy?
34
35 James Bryan: Madame chair? Madame chair, if I may? Can I ask for a small recess?
36
37 Karen Barrows: We can, and I wanted to just say Andy, I think we're going to have to close the
38 public hearing around 10 because we're going to adjourn probably at 10:30 as we're allowed to so,
39 will that give you enough time?
40
41 Andy Petesch: I certainly will do my best.
42
43 Karen Barrows: Ok. Ok. We'll have a break for ten minutes.
44
45 RECESS
46
37
APPROVED 6/12/17
1 Karen Barrows: Since it has been ten minutes I think we'll go ahead and reconvene. And Andy 1
2 think you're up.
4 Andy Petesch: Thank you. So beginning with Mr. Harvey's decision, the process that he went
5 through, the conclusions that he reached. Again, those were made in consultation with the planning
6 director or Orange County, and the County attorney's office. And that applies to the first decision
7 that was made for which the appeal was taken and then we're here in October and then again in
8 this case. Ms. Brown without citing any authority says that Mr. Harvey's required to look at as much
9 information as he can possibly, I don't know what the limits are by what he's required to go behind
10 and test what the applicant's submitted. But it was the County that prepared an affidavit form and
11 submitted to my client, Kara Brewer, and she filled that out and they said this is what we need to
12 determine whether your use is a bona fide farm use or not. And so to go back to that to that exact
13 point here is that when you talk about the three -part test that she characterized as a three -part test,
14 never been identified of that, but roughly there are those steps that you go through. The first is it's
15 a bona fide farm. That's incontrovertible. Those. There's... meet three of the five criteria under the
16 statute. The second question is whether it's a bona fide farm use or a non -farm use. There is no
17 definition of non -farm use to determine whether something is a bona fide farm use you have to
18 follow the definitions that are in the statute. Mr. Harvey did that. That's the exact process that he
19 went through. That's what his decision indicates. And when it comes to comparing the concerns
20 over this Board's order and the timing of this order and whether he reviewed this order or went
21 ahead with the decision, if you look, I'm looking at exactly what the order says, and it says that the
22 Orange County planning director or their designee shall review the March 16th, 2016 building
23 permit application and make a determination. So it doesn't say review all findings of fact, review
24 these other documents. There's no direction there. It says specifically, "review the application and
25 make these determinations ", which he did. And he follows that and you can see that exact
26 instruction that he utilizes in that exact language in his decision. His original assessment of what
27 was being proposed; that was based on at the initial time when they had first purchased the
28 property, nothing had been done at that point, it was just a raw piece of undeveloped property, at
29 that point he indicated orally that if you want to do a retreat or event use, which would include
30 weddings as a use and other events, gatherings that they would need to proceed with a Special
31 Use Permit. But the record is absolutely clear from Mr. Ortoski's email that was that was admitted
32 and that's under tab 21 of the notebook that is part of the October hearings, that where he's on
33 October 19th 2015 ahead of the Special Use Permit hearing that he's introducing Kara Brewer to
34 Annie Bagget, who is with agro- tourism with the Department of Agriculture. And so clearly that was
35 the interest in pursuing a bona fide farm option was available, she was interested in pursuing
36 agriculture at the time. It was not purely a event space, wedding space project. That is again
37 underscored by the Patrick Mallett email that was introduced tonight. That was, took place even
38 prior to that. And Ms. Brewer filing for a farm ID number and that being awarded in May of 2015 by
39 the USDA. And Mr. Harvey's own testimony that there were clear discussions about the two paths
40 of proceeding and that they were interested in doing those agriculture products. The farm, the farm
41 was a key part of it. And then Ms. Brewer was instructed not to address the farm aspect of it in the
42 Special Use Permit. And so then Ms. Brown focuses on her testimony as a Special Use Permit
43 here that's only addressing the event aspect of what her project is. See you look at the timing of of
44 this, the history of this, and it's, I understand, it is difficult for this Board to have gone through that
45 Special Use Permit hearing of different standards and high standards, but also very discretionary
46 standards that this Board is able to review in terms of the impact on the community, adjacent
47 property owners, etcetera. That is not outside of the standing question, which you've already
APPROVED 6/12/17
1 decided, that is irrelevant to what you're deciding here tonight. You have a very specific
2 interpretation of the law and that is the statute surrounding agro- tourism and it's relation to farm,
3 bona fide farm, use and operations. But that timing, even if it was a factor is again not something
4 that defeats this because even if they hadn't done any of those things prior to the Special Use
5 Permit there is no law, there is no authority, there's no legal authority that says she can't just
6 change. And after that whole thing, decided ok, well then, the way I can do this is through agro-
7 tourism, through bona -fide farm. There is nothing that stops that. That's not what the record shows
8 at all. The record specifically shows that this was all part of what her vision was and what the plan
9 was, both her and her husband, Kara and Chris Brewer. But, for arguments sake, it wouldn't even
10 matter if that was the case. There is no authority that says they can't do that. Where they put in
11 their building permits, how that changed, and again you heard Mr. Harvey's testimony that they
12 rejected her January permit. They sent that back and asked for her to do it over again. That was
13 not her changing it or that wasn't her own actions in trying to gain the system. That's absolutely not
14 what's going on here. The Brewer's have started a bona fide farm. That is incontrovertible. The
15 evidence of what of what their operations are as introduced at the last hearing and supplemented
16 tonight show that they have substantial investments already in agricultural activities from the
17 $50,000 that they'd invested in chestnut operations, the hundreds of trees that they're putting into
18 the ground, both in Caswell County and on this site combined, and the extensive flower, cut
19 flowerbeds that are being installed, bees that are being cultivated on the property, the
20 incorporation. So this kind of leads to our second fallacy that Ms. Brown has constructed around
21 this what I like to think of is the straw barn argument in this case, is that she's reduced this down to
22 the four corners of this structure and what is the use of the barn. But again, there is no legal
23 authority for narrowing the analysis to those four corners of that structure. But even if that were the
24 case there is. It could be zero percent of that barn is being used for farm activities, because while
25 she constantly hit on the word incidental to she omitted in most cases the word related. It's related
26 or incidental to. And as you can see under tab 2 David Owen's book, land use law in North
27 Carolina, he goes into, on page 182, rules of interpretation. This is under tab 2. And on page 183,
28 at the top, on the second column, first sentence is, "it's all terms within a provision and all
29 provisions within an ordinance must be considered and should be considered as a whole ". You
30 can't read just incidental and ignore related. Related is a very broad term. She also referred to the
31 intent. And Mr. Owen's addresses intent, he's got a whole section on intent, and I would draw your
32 attention to those from Professor Richard Ducker, who wrote an article on this topic. It's dated
33 2011.
34
35 James Bryan: That's ok. Which one is it? I've got that one.
36
37 Andy Petesch: And I will point out he repeatedly indicates throughout this article the expanding
38 nature of the farm exemption in a statute so it's increasingly, with almost every new amendment
39 draft that's adopted to this new provision that's adopted it's an expansion of the exemption and not
40 a contraction. Again, you can see the intent of this is to broaden what's included within it and not
41 contract and not look more restrictively at it. So again, we don't have a definition of non -farm use.
42 We do have definitions of bona fide farm purposes. Those are again, and this was referred to by
43 Ms. Brown and I believe this was County Exhibit number 3 earlier tonight, the grant of power
44 153a340, 106581.1, and 99e -30. I would point out Ms. Brown did note this, although she had
45 indicated that it was not incorporated, not that one, the definition agriculture defined was not
46 directly implicated in section 153a340 in here. You're actually directed by the statute the grant of
47 power to look at 106581.1, this is in tab one, as defined in that section. And that goes on to include
39
APPROVED 6/12/17
1 when performed on a farm agriculture, agricultural farming includes agro- tourism. And she focused
2 in on this language here at the very end, similar activities incident to that, but that's not when you
3 read that paragraph, that's incident to the operation of the farm. That's not modified there, that's
4 modifying in similar activities related to agricultural items produced on the farm. It's clear that it's, in
5 reading that in context, it is when performing the farm. Agriculture, agricultural, and farming also
6 includes agro- tourism, period. Now, she also pointed out that 99e -30, which does define agro-
7 tourism and it's not, it defines agro- tourism activity, that's not directly linked to the zoning powers or
8 106, chapter 106. However, again, this is Professor Owen's citing, this is under tab 2, under rules
9 of interpretation, if you look on page 183 and this is footnote 24. He cites, development associates
10 versus Wake County Board of Adjustment, 1981, Court of Appeals case, North Carolina Court of
11 Appeals case for the proposition that a it is appropriate to examine other statutes defining
12 agriculture in reviewing the scope of bone fide farm exemption from County zoning. So he directly
13 points to another case where the court went and looked beyond the specific section that they were
14 looking at in terms of zoning, and agriculture, and bona fide farms to other chapters in the statutes
15 that weren't directly linked to try and find that, you know, understand better that definition and
16 whether in that case should they the applicant was trying to claim, the property owner was trying to
17 claim that their dogs were, should, be considered as livestock. And so the courts went through an
18 exhaustive examination of the statutes looking in about four different chapters. None of which were
19 addressed or cited in that zoning section to try and understand, interpret the definition of livestock.
20 So it makes. It's perfectly consistent with that decision in this case to look at chapter 99e in
21 identifying how agro- tourism should be defined. And again, I have that walk through under tab 11
22 of the notebook. It breaks it down very clearly. Any activity. Can't be more broad than that. Carried
23 out on a farm that allows members of the general public for recreational, entertainment, or
24 education purposes. And in this case the record is clear that there are recreational, entertainment,
25 and education. Because even education when it comes to weddings, because they're doing flower
26 picking, arranging, workshops, learning about different flowers, doing honey tasting, learning about
27 the bees, doing farm tours, learning about the farming operation, and that if you'll recall, that's
28 exactly what Erin White testified to, is that the purpose of agro- tourism is to bring people to rural
29 areas so they can learn about the cultural economic and other values that agriculture brings to this
30 state, and this community. And then the next clause to view or enjoy rural activities, clearly being
31 done here including farming, ranching, historic, cultural, harvest your own activities, those are
32 those are part of this operation and part of weddings, and natural activities and attractions. So it fits
33 that definition. The definition is broad. Both of the cases that I cited last time and Mr., Professor,
34 Ducker's broad article underscore that the policy of this state is to be broad and encouraging of
35 agricultural activities and not constricting and reductive. And that is consistent with the idea of
36 property rights and that zoning, zoning laws, zoning regulations are in derogation of property rights
37 and vote it should be looked at very narrowly as to when those zoning laws apply. When they do
38 apply they apply of full force, but they the preference is for those regulations not to interfere with
39 property rights to works, those are all consistent policies within this state that are counter to Ms.
40 Brown's argument. I'll point out also as was identified that weddings are included on the North
41 Carolina Department of Agriculture's website that specifically defines agro- tourism, it's included. To
42 the activities are absolutely related, the record is unequivocal about that. And I would also point
43 out, finally, Ms. Brewer attended the Orange County Ag Summit and Professor Owen's quoted at
44 that summit.
45
%1
APPROVED 6/12/17
1 LeAnn Brown: I object and ask that the Board not look at this, This is a copy of a news article and if
2 you are going to consider this I would like a recess to call David Owen's as a witness about what
3 this happens to say,
4
5 Karen Barrows: will not consider it,
6
7 Andy Petesch: I'm sorry, I'm,
8
9 Karen Barrows: We can't consider it I don't think Andy. Thank you though,
10 Andy Petesch: So in closing, the Applicant's here to this appeal, they were a part of the Special
11 Use Permit hearing, The Opponents in that case to the Brewer's application took an all or none
12 approach at that time. This Board could have approved it with conditions that addressed the
13 number of guests, and a number of other issues that dealt with the intensity of the use, The Staff
14 report, Mr. Harvey's testimony at that hearing indicate that he had communicated with the
15 Opponents, that there was an option that the Special Use Permit wasn't the only way that they
16 could do, that the Brewers' could do, an event facility, That it could also be done as a bona fide
17 farm, They knew that, and yet they focused on having that Special Use Permit, which was their
18 opportunity to have conditions placed on this to minimize the affects that they are concerned are
19 going to impact them. This is not a case of the Brewers' trying to get a second bite at the apple
20 somehow. They were told early on that there were two paths for them. This is a case of the
21 neighbors wanting a second bite at the apple because they missed their opportunity to have to
22 affects addressed mitigated through this Board's conditions in a Special Use Permit. And because
23 Ms. Brewer veiled herself with that process there's an argument she would have been bound by
24 that and not at that point, not had that opportunity any longer to seek the bona fide farm exemption.
25
26 Barry Katz: Could, may I ask you a question?
27
28 Andy Petesch: Yes.
29
30 Barry Katz: First, there were the Brewers' elected to go for a Special Use Permit, Right? Now,
31 they're claiming that it's a bona fide farm and they don't need a Special Use Permit, Am I, Am 1
32 right about that? Is that what's being said?
33
34 Andy Petesch: There, yes, they..,
35
36 Barry Katz: Are suddenly not subject to zoning and you're telling us this is not a second bite of the
37 apple when in fact they had two options, they went through one option, and we made our
38 judgment, and now they're saying that's not really relevant because we're a bona fide farm. So
39 that's a second bite as far as I'm concerned,
40
41 Andy Petesch: I appreciate you're your perspective on it, I would submit that they had two, a
42 second bite, meaning that they are trying, that they're getting something that they, another chance
43 when they already had their chance. There were two chances on different paths in this case and so
44 they're not trying to get another shot at something that they could've gotten, should've gotten
45 earlier, that's, I would argue what the adjacent property owners are seeking in this case because
46 they could've had those protections as part of the Special Use Permit if they had presented that to
47 the Board at that hearing. They did not suggest that certain conditions be placed on it so that they,
41
APPROVED 6/12/17
1 and allow it, and then the County at that point would've been in charge of enforcement. They
2 instead took the approach that they wanted all or none, they wanted it turned down, and that left
3 them in a position now where they're trying to fight on the grounds of the bona fide farm exemption
4 and they're clearly exempt. I'm sorry that the threat of that exemption is so wide, but that's the
5 policy of this state. As simply the policy of this state and you must affirm Mr. Harvey's decision.
6
7 Karen Barrows: Thank you.
8
9 LeAnn Brown: Madame Chair, as the Appellant may I have my rebuttal? I think I'm entitled with the
10 party of proof to be last? I'll be very quick. Very quick.
11
12 Karen Barrows: We have till 10 o'clock, that's it.
13
14 LeAnn Brown: And I promise you I'll be through by 10 o'clock. Number one, Mr. Petesch said that
15 there is no authority to look behind the affidavit. The authority to look behind that affidavit starts
16 with 160a388, which allows my client to appeal Mr. Harvey's decisions and which requires you to
17 take evidence. We went through that process, you took evidence and apparently it made no
18 difference whatsoever in his opinion and that's an error. And if you want authority you can start
19 there. The cases that have dealt with the farm exemption have all looked at evidence and looked at
20 evidence deeper than an affidavit. You can also go there. But the statement to you that there's no
21 authority for evidence to be taken is absolutely and patently false, and it starts with 160a388. What
22 Mr. Petesch did not argue you to you that I think is very important is he never explained to you how
23 this use is in fact related to or incidental to this wedding venue. So we heard a lot of argument
24 about that but it was really, there's really nothing there that that answered that question'. The
25 Drucker article that you were handed deals with expansion of the farm exception to allow people to
26 have multiple tracks has nothing to do with the question before you today. The argument, I don't
27 know what to do with the argument that says if the people who opposed the SUP had decided to let
28 you grant it with conditions they wouldn't be here today. That's an amazing argument to me. I just
29 don't even know where to go with that. They were not required, they were not required to say well
30 we're scared you may go some other way, let us go see if we can get you to condition up our SUP.
31 They put on evidence as to impact and you decided what that impact meant and you decided it
32 was too much, and so I can't do much with that argument, except to say that's ridiculous. I I did not
33 say to you, if I did I misspoke but, 160a581.1 was not referenced in the Statute, what I said is that
34 that Statute when you read it picks up that concept of incidental use in the definition. 99e, which
35 relates to liability is the one that's not incorporated and while you can certainly look at it, it's written
36 very broadly because it's designed to address something completely differently. With that being
37 said, you have the power and the authority to take evidence. You have to power and authority to
38 act on it. You've done it. You remanded it. It didn't work. I'm going to ask you to take what you
39 decided before, apply your judgment to the decision, and ask you to reverse Mr. Harvey, and thank
40 you. I have three minutes left.
41
42 Karen Barrows: Let's go wild. Any questions from the Board for staff or lawyers? Barry?
43
44 Barry Katz: My question is to our attorney. We're going to need. I think, possibly, need some
45 guidance in how to frame whatever it is that we decide and how to go about this. So, that's just a
46 general prayer for some assistance, ok?
47
iM
APPROVED 6/12/17
1 James Bryan: Yes sir.
2
3 Karen Barrows: If there are no questions for Michael or lawyers, is there a motion to close the
4 public hearing?
5
6 Motion made by Barry Katz to close the public hearing. Seconded by Susan Halkiotis.
7 VOTE: Unanimous
8
9 Karen Barrows: So. Where are we? What are we thinking?
10
11 Barry Katz: So Mr. Harvey's decision was based on Statute, on the State's Statutes as he saw
12 them, and that this was considered a use that was that was viable and acceptable for a farm. Is,
13 sums up. Seems to me. That was as far as it went. What we're hearing, and of course so all the
14 time that we spent reviewing all of this in two hearings was not considered, it's not relevant, it's not
15 germane because the State laws are the determining factor in this case and that's as far as it goes.
16 1 suppose we could have known this if that were the case, before we went through those two
17 hearings.
18
19 Barry Katz: It might have been good if that were the, true. So really, all along the real question is is
20 this event center, this wedding venue a non -farm use or a farm use in and of itself. It's the scale of
21 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
22 then there's nothing need to be said. It would be, it would've been done. And we have considered
23 this in a Special Use Permit, and then we considered it again through two more hearings when the
24 argument was made that it was a use incidental to farming. In both cases we basically decided that
25 the scale of this, the, it was not in proportion to what, where ordinarily expect a wedding venue and
26 a farm to be. It's, what is it, 150 -year old farm, that barn that was transported at great expense to a
27 location in part of Orange County, 125 parking spaces, it's a full blown event center is what it is.
28 And is this, again, according to, what is it? 153a340b1? Again, as the unmentioned use of farm
29 property for non -farm purposes. To me, that's what we have to consider. Are there other things we
30 need to consider?
31
32 Karen Barrows: Well I was thinking about this in seeing how often incidental came up. And it's
33 and /or incidental and it appears and it appears. So I looked up incidental in Webster's dictionary: of
34 a minor, casual, or subordinate nature, a minor occurrence or circumstance, event item or
35 expense, We've heard evidence that the cost of the barn was almost $735,000 just electricity was
36 $74,615; is that a minor expense? And then Mr. Brewer was asked how much was invested in the
37 chestnut operation at Morrow Mill site: he said five to seven thousand dollars. Cost of processing
38 was asked: five to eight thousand dollars. When you compare those figures, it doesn't sound to me
39 like it's incidental. And to your point, wastewater and well permits for 250 guests; is this a minor
40 circumstance? I don't think so. It doesn't feel like it to me. And the parking lot, 150. So,
41
42 Susan Halkiotis: I think that my processing of all the evidence that's been presented is following the
43 same train that you just mentioned Karen, I've listened very carefully at all of these hearings, all
44 three. And at this one particularly. And I'm not convinced that this is either related or incidental. I
45 think it's the other way around. I think that the planting is what's incidental. I believe that it's farm
46 property being used for non -farm purposes primarily. And as Karen pointed out, the majority of the
47 investment in the property is in the wedding venue. And I don't think that that barn and the wedding
43
APPROVED 6/12/17
1 venue is incidental. And I understand that it includes the term related. So I'm not inclined to support
2 it's, the present plan that's been approved. And I don't know what our motion should be but I still
3 have lots of questions about this.
4
5 Matt Hughes: Well I understand some peoples belief, primarily based on the plan regarding parking
6 and planning for, you know, significant number of people on this property, and the cost. And 1
7 believe that if they, if the Brewers' had decided to build a barn that conceivably the cost to build a
8 barn, rather than move a barn, would still be much more than the cost to plant the flowers, plant the
9 chestnuts, that expense would still be greater that the cost to build a new barn would still be
10 greater than than the planting. But I can also see why they would plan for a facility that even if you
11 wanted, say was incidental to their, that the event space was incidental to the flower business, we
12 don't build highways for traffic at 2am, right? We don't build a four -lane highway because it's not
13 going to get, based on a usage at 2am where you're going to have very few, if any, cars. What 1
14 think they were doing was planning for the times where they would have a lot of volume, and I think
15 that's perfectly understandable. What, what I do believe is that when we did this order back in
16 October having the line of acknowledgment that this issue in one way shape or form was probably
17 going to come back to us. It was just a matter of if and when, and here we are in March about six
18 months, five six months later, and it's before us again. As I believed then as I do now, I do believe
19 that having this event space is part of a farming operation. And I can see folks in the audience
20 disagree with me, but I believe that what the Statute says and I believe what the North Carolina
21 Department of Agriculture has promoted as agro- tourism is under those definitions a farm use, and
22 until the courts, as Ms. Brown said earlier, until they weigh in and are very specific or the General
23 Assembly clears up their language then I believe this is a perfectly acceptable farm use. And 1
24 understand why people would not support this in this community. It's not a large community; it's a
25 community that if you visit it you have to purposefully go there. I wound up in the community by
26 accident driving through rural Orange County, I took a wrong turn thinking I remembered the roads
27 a little bit better than I did, and so this this could be a big disturbance, or would be a big
28 disturbance, but I believe that the issue before us is whether or not I think staff erred in making its
29 determination; I don't believe they erred. And you know the thing is though, I feel as though we're
30 ' in an age where we're not trusting professionals to use their professional judgment in making
31 decisions and so, you know, I believe that Mr. Harvey made the right decision when we remanded
32 it back to him or remanded it back to the planning director, who then in turn designated him to
33 weigh in on this, and he has the working professional knowledge as our entire planning staff does
34 to make these determinations with the information that's out there with the school of government
35 and the Department of Agriculture. And so, I come from the education field where we have to trust
36 our teachers to be the professionals in the classroom and so I understand that and I trust the
37 professionals in our planning department.
38
39 Susan Halkiotis: I just, I need to, I appreciate.
40
41 Matt Hughes: I don't appreciate the hisses by the way.
42
43 Susan Halkiotis: I appreciate and respect what Matt had to say, and I want to follow up on that just
44 to make sure that I state that I have great respect for Mr. Harvey and in no way would I want any of
45 my comments to be taken to indicate anything other than my respect and appreciation for what he
46 does.
47
44
APPROVED 6/12/17
1 Matt Hughes: Absolutely,
3 Barry Katz: Well again, I believe the question then is; do we just look at these, do we, do we look at
4 these issues here in a vacuum? Do we look at 153a340 or 1065811 or any of these things here?
5 Just on the page? We know a lot about this, this particular plan, we know a lot about how things
6 came to be and what the real focus is, the focus is not on agriculture itself, it's on agro- tourism and
7 you have to have an ag in order to have the agro- tourism, and so there's an attempt to create an
8 ag or on face value because they have a permit, you know? Then they're ag. But in fact I really
9 believe that this, the motive and the facts that were presented to us indicate to me that the intent is
10 a non -farm purpose. That, I really believe that. And I would support reversing the decision made by
11 the planning supervisor in this case.
12
13 Karen Barrows: So in that case, I think you were asking James how to word a motion so that...
14
15 Barry Katz: Do we have to go beyond reversing the decision?
16
17 James Bryan: Yeah, I think it'd probably be in your best interest to clarify that. Because, so what's
18 going to happen if this were to be appealed to Superior Court, Superior Court's going to look at two
19 different things; that the law and the facts. And the facts, you guys get a lot of discretion. That's like
20 at a Special Use Permit hearing and whether something's going to be safe or not. As long as you
21 have something competent, you know, competent evidence you might get some discretion there
22 but the law you have no discretion on. Same thing Mr. Harvey has no discretion on and so if he
23 had a reasonable interpretation of the UDO and said I think this is what it means, that might be a
24 reasonable interpretation but it's either right or wrong and this Board has the authority and duty to
25 step in and say somebody has appealed your determination, your interpretation of the UDO; it's
26 either right or wrong. If it's right it's pretty clear, you could just rely on why do I think it's right,
27 because what you told me, ok, If it's wrong you have to say, ok that was wrong; this is what you
28 should have done. LeAnn gave her three steps, is that your three steps, then walk through those
29 three steps and say you should have asked whether this is a farm and it's uncontested that it is,
30 you should have asked whether it is a farm purpose or non -farm purpose, and then you could use
31 that framework and then apply the facts to that. I think, I know for myself I've worked on this for a
32 long time in many different cases related to this. It helps to write it out and have my thinking and 1
33 read it differently different times that I read it. The Statute is not clear. But have in your mind, and 1
34 wouldn't rush this decision. I know you all have spent a lot of time but you know, this is very
35 important that you all get this right so, look at what does the UDO require.
36
37 Barry Katz: My understanding is the UDO is not relevant, is not pertinent to this.
38
39 James Bryan: I believe there was testimony that. So Michael's letter, the November 7th one, is to
40 Michael Rettie, who's a building inspector, so there's a process in place. What it was was there
41 was a building permit and as you heard there is testimony that the building code is separate, it
42 stands alone, it's not the zoning power. So the building code, a separate thing, was going to issue
43 a permit and they...
44
45 Barry Katz: Wow.
46
45
APPROVED 6/12/17
1 James Bryan: Long ago said, hey, we got an affidavit from this owner, that's all we're going to use.
2 Then this Board at this last hearing said, no, no, Michael Harvey, you need to step in and
3 determine whether a zoning compliance permit is necessary. So that's what this hearing is, is
4 whether the zoning compliance permit is necessary. Zoning compliance permits is from 2.4.1 of the
5 UDO and it says before any structure is erected you need a zoning compliance permit. Now,
6 there's no debate about that, it's uncontested. Now, if you look at, I believe it is, UD0 1.1.8, that
7 says, hey, this whole UDO doesn't apply to farm purposes except for non -farm purposes and it
8 references the Statute. So that's what kicks us back to the Statute and says ok the LIDO wants to
9 mirror the Statute, what does the Statute say?
10
11 Barry Katz: Ok.
12
13 Matt Hughes: So, under the UDO what would be a non -farm purpose?
14
15 James Bryan: Ok so, it's very interesting; it does not define that any place. It has an earlier
16 reference to as defined in the Statute. So you would look at the Statute. You've heard in arguments
17 from Mr. Petesch that said that non -farm purposes are not defined, but farm purposes are defined
18 so I believe what he was arguing was look at that list, if it's anything other than that list it's non -
19 farm.
20
21 Matt Hughes: Ok, so conceivably if we were to make a decision about farm uses versus non -farm
22 use, conceivable someone could, in our position, say well they're not proposing an oil refinery on
23 this land therefore that might be a non -farm use, but something related to agro- tourism would be a
24 farm use, possibly?
25
26 James Bryan: Right, yeah. So in the Statute lays out what is, I refer to it as bona fide farm
27 purposes. That's the four -word phrase that pops up every place. Bona fide farm purposes. And it
28 says it in the 153a340, it says, bona fide farm purposes, and then it lists all the typical things you
29 thinks of; crops, blah, blah, blah. And agriculture as defined in 106, so that kicks you over to 106.
30 What's 106? Oh, 106 says all these different things and then that's the part where it says and agro-
31 tourism and then you heard an argument that, ah but it's only agro- tourism if it's incidental to the
32 operation of a farm, and you heard a counter argument that no no it's agro- tourism and then you
33 also heard, I believe, another argument that or incidental to the farm.
34
35 Matt Hughes: So one of the things that in the appeal we're being asked to consider is determining
36 whether or not the property is being used for bona fide purposes and then whether or not the
37 structure that has been proposed on the property is for bona fide farm purposes, so those seem
38 like two different questions. To me it would seem as though because SPG is in the fall tested some
39 flower crops have their, I'll call it, research and development piece that the property, the land itself
40 is being used for bona fide farming but there could be a contention among some of our Board
41 members who would say the structure is not for bona fide farm purpose. Is that?
42
43 Barry Katz: You're on to something I believe because I don't think that anyone could doubt that
44 they have a, that it's a farm, essentially, but is this structure a non -farm use? Even though agro-
45 tourism include weddings. Is the, is the fact that there are weddings incidental to the farm? By
46 claiming that people will pick a flower, that's the justification for the fact, or you know, flowers would
47 be used in the wedding, or someone might taste some honey, that this makes it a farm use?
we
APPROVED 6/12/17
1
2 Matt Hughes: Well, and I think the flaw in this in some ways, and I think it's what's getting us
3 caught up to a certain extent is that there's really, I don't want to talk about business plans because
4 1 feel like I admonished some folks for talking about business plans, but there really seems as
5 though there are two business plans. And they're running concurrent with one another, The farming
6 and the event space. Conceivably if the farming took place first and then the venue came at a later
7 date then maybe we wouldn't be caught up so much on it, But we are taking all the passion that we
8 know folks feel about this issue and that's why I point out in the, what the appellants are asking us
9 to do some of those questions are completely different about what is being done on the land versus
10 the structure and I think the structure is really what is the issue with the appellants, more so than
11 using the land for flower cultivation,
12
13 Barry Katz: With the structure there's also the scale of the operation in relation to the agricultural
14 component, And, again, since we went through a Special Use Permit on this we realize that we
15 came to agree that the neighbors would be harmed in some way; their property values, or their
16 quality of life, by light, by sound, by traffic, etcetera, would influence and diminish; it wasn't in
17 keeping with the area. Ok. And that had to do with the scale. If somebody has a farm and has a
18 wedding on it, well, that's just how it is. But actually, this is, this is a business, this is a wedding
19 business, or an event business, that's what it is, And it's happening on a farm.
20
21 Susan Halkiotis: And just to point out that scale, and Barry kind of touched on it, but scale included
22 not only the numbers of people involved but the frequency of the events, which I think that the goal
23 is to fill up every weekend and even use some earlier, that was the testimony. To schedule every
24 weekend and maybe even some Friday dates that were people were beginning to, brides were
25 beginning to look at weekday weddings to be cost efficient. So I want to point out that it wasn't just
26 people, scale in terms of numbers, scale in terms of frequency.
27
28 Barry Katz: Here, when you make an investment of this size you want to return on your investment.
29 1 ran businesses and I look at this from a business perspective and say this is an event business.
30 That's what it is. And is this event business happening on a farm a non -farm use? And all that we
31 know about it I would say that it's a non -farm use. That it's a business in and of itself that happens
32 to happen, occur, on a farm. Do I have to point to the evidence that we heard or is it already in the
33 record from the fact that we've come to this conclusion in the past?
34
35 James Bryan: It'd probably be best to holler a few things. But before that I want you all to make
36 sure, State the rules first, and then get to the facts, because so, as I understand it Barry, for yours,
37 you're saying that, you're agreeing that that it is farm property but this structure will be used for
38 non -farm purposes?
39
40 Barry Katz: Yes,
41
42 James Bryan: Because while agricultural is a bona fide farm purpose agro- tourism is not,
43
44 Karen Barrows: I don't think we're saying that James. I think we're saying this use is not incidental
45 to the farm.
46
47 James Bryan: But why must it be incidental?
47
APPROVED 6/12/17
1
2 Susan Halkiotis: Because it says so.
3
4 James Bryan: Ok.
5
6 Susan Halkiotis: Isn't that a definition of agro- tourism?
7
8 James Bryan: So,
9
10 Barry Katz: Bona fide farm purposes.
11
12 Karen Barrows: Right. 169 of our packet, number two, Related and incidental to the operation of a
13 farm. Number three, five, incident to the farming operation. I think my point was I can't feel like this
14 is incidental. Number six, incidental to the operation of a farm.
15
16 Barry Katz: So you identified sites that we can use to justify what it is that we're saying from the
17 perspective that we're both told the obligations that we have according to our counsel, correct?
18
19 James Bryan: Yeah I think so.
20
21 Barry Katz: Thank you.
22
23 James Bryan: So, I'm. Never mind,
24
25 Karen Barrows: So would we like to try to craft a motion?
26
27 Barry Katz: Counsel, are we ready to craft a motion, based on those points?
28
29 Karen Barrows: We do agree it's a farm.
30
31 James Bryan: Let's... Yeah, let's start. I can start writing it down. So, when Michael gets a building
32 permit sent over to him and he has to determine whether it's exempt or not, first he'll look at
33 whether it is farm property or not. Is that right, is that what the Board's general feeling is?
34
35 Susan Halkiotis: I think so.
36
37 Barry Katz: It's a farm.
38
39 Karen Barrows: Mm -Hmm.
40
41 James Bryan: And that's uncontested, as I understood it. Because of the farm ID number and the
42 forestry plan, And the second task I believe LeAnn proffered was whether it's farm -use or non -farm
43 use,
44
45 Susan Halkiotis: Right.
46
47 Barry Katz: And that would be incidental.
APPROVED 6/12/17
1
2 Karen Barrows: Mm -Hmm.
3
4 Barry Katz: In this case the fact that whether it was incidental or not would be important as far as
5 whether it's a farm use.
6
7 James Bryan: Ok because we're looking at 340, 158a, or 153a340 b2, it says all other forms of
8 agriculture as defined in 106 and 106 says all of these things and we're reading that all of these
9 things have to be incidental to.
10 Karen Barrows: Right,
11
12 Barry Katz: Ok,
13
14 Susan Halkiotis: I had written the three items that we needed to come to agreement on as being
15 number one, whether or not it's a farm, which it is. Number two, whether it was a farm or a non -
16 farm use. And number three was whether or not it was incidental. And I think that I got that right.
17 Related or incidental.
18
19 James Bryan: So can I ask the Board, how does it figure in, you heard testimony that there will be
20 the flour processing in the future, but not now. So what about the time component? Does Michael
21 and you all look at it as it's being used now? Or well it can't be used now because when you get
22 the building the application for the immediate use of the building?
23
24 Susan Halkiotis: I'm not sure I understood the, your question.
25
26 Barry Katz: I know.
27
28 Michael Harvey: I'm sorry, I need to interrupt; it is 10:29 in 30 seconds.
29
30 Barry Katz: Right... Extend 20 minutes.
31
32 Karen Barrows: Exactly,
33
34 Michael Harvey: There needs to be a motion to extend the hearing for.
35
36 Barry Katz: 20 minutes.
37
38 Michael Harvey: 20 minutes, that's your call but I only interrupt for that purpose.
39
40 Motion made by Barry Katz to extend the hearing for 20 minutes, Seconded by Susan Halkiotis.
41 VOTE: Unanimous
42
43 Barry Katz: Well Matt made, had made the point that there were, that's a two business buyouts
44 going on. There's the agricultural and then there was the wedding venue, or the event business.
45 And that, so when you ask about the use of the building it may be that there's a dual use where
46 there's, where the main business is is events, and then there's the use of the building to do the
47 agricultural part. Well, well I don't know.
APPROVED 6/12/17
1
2 Matt Hughes: Well, I think that also speaks to something else and that is if we determine that the
3 structure is not being used for a bona fide or won't be used for a bona fide agricultural purpose or
4 farming purpose my. I mean, even under what the appellant is asking for, as I read it, the farm is
5 , already erected. The farm is already there. Even if. Or the barn is already erected; the barn is
6 already there. So even if we issue a stay the building is still there. It's just it cannot be used for
7 wedding or event space. So all the pieces for a future event space are already present. So really,
8 whatever y'all determine today, I mean the facility is there. So, really, it's just whether or not, in my
9 opinion we are allowing them to move forward in using the. Allowing the different components of
10 their business plan to operate concurrently or not.
11
12 Karen Barrows: I think you're right.
13
14 James Bryan: I'm sorry Matt, to clarify your point. So the application, are you saying that there's
15 any farm purpose being used for the structure? And.
16
17 Matt Hughes: Well based on, well based on what we've heard, yes. The building itself would be at
18 some point in time during the year, whether it's used for storage of flowers, or processing of, I think
19 we heard at a previous hearing, chestnut flour, and other things. So the structure itself would at
20 some point be used for a bona fide farm purpose. I think where the hang up is is the event space
21 purpose. And so if there is a motion, one of the things I'm going to ,ask for is a division of the
22 question and vote on each component of it individually. If that, if that comes up. Because I would
23 like to register opinion on the various components of a motion where I may agree with the majority
24 on the Board, but I do think it's a more complicated issue than, than maybe it's even been
25 presented to us because we do have really these two different businesses on the same piece of
26 property.
27
28 James Bryan: So, I'm sorry. It's late. I'm tired. So you're saying, you would be saying that an
29 exemption exists for A, B, Q the honey tasting, but a zoning compliance permit would be required
30 for weddings, the children's tours, or?
31
32 Matt Hughes: I mean, I can see conceivably that is where we could.
33
34 Barry Katz: I'm sort of cold on that myself.
35
36 Matt Hughes: We could come down.
37
38 James Bryan: I think that's one thing the Board has to consider is whether any non -farm use pulls
39 the entire structure out of the exemption.
40
41 Susan Halkiotis: Well, you know, the way that Matt phrased that suggestion is interesting because
42 what he said was that he could see how there were two separate businesses that are running in...
43
44 Matt Hughes: And as Ms. Brown said, they're not contesting the agricultural, if I heard her correctly,
45 the agricultural component of this, which is the flower business.
46
50
APPROVED 6/12/17
1 Susan Halkiotis: Right. Because, and the word separate, I mean specifically means not related or
2 incidental to. So it's an interesting way of putting it.
3
4 Karen Barrows: Mm -Hmm.
5
6 Susan Halkiotis: That I hadn't really considered before. But you're right, it's two separate
7 businesses and one of them, they're not incidental or related to each other. You know, in fact, as 1
8 said earlier I think one of them if we would, if we had to make that determination then the flower
9 and chestnut and honey business to me are the ones that, you know, are subjugated. So I don't
10 know if that does anything for anybody else on the Board or not.
11
12 Karen Barrows: Makes sense.
13
14 Susan Halkiotis: And I don't know what options that gives us to consider that. To consider it as two
15 separate businesses.
16
17 James Bryan: I think you could look at the question as when Michael Rettie, the building inspector,
18 sends over the building permit application and says to Michael, Michael Harvey, look at this. And
19 now you guys are in that place.
20
21 Barry Katz: You can't have a wedding.
22
23 James Bryan: You can say it is exempt for these purposes and a zoning compliance permit would
24 be required for these purposes. So the, I believe that in you, you've got the building permit
25 application; it has a little section for purposes where there are several different things mentioned
26 and then you've had three nights, two hearings of all these different purposes. So I think you've got
27 enough evidence to say you know, for these purposes it is exempt for these purposes, a zoning
28 compliance permit is required.
29
30 Barry Katz: Can we put that under motion? Is that? Are we ready to do that from you perspective?
31
32 James Bryan: Yeah let's start figuring it out. So.
33
34 Barry Katz: We're talking now about a building permit, and about parameters for a building permit,
35 correct?
36
37 James Bryan: We are, we are not talking about a building permit in a technical sense in that that is
38 outside of this Board's jurisdiction. You all are merely stepping into the shoes of the zoning
39 administration saying whether a zoning compliance permit is required for a particular use or if that
40 use is exempt by the UDO and the Statutes as being a farm purpose.
41
42 Barry Katz: Fine. Our motion would, considering what the consensus seems to be, what majority of
43 the Board feels is that zoning permit; a zoning permit?
44
45 Susan Halkiotis: A zoning permit.
46
47 James Bryan: Zoning compliance permit.
51
APPROVED 6/12/17
1
2 Barry Katz: Compliance permit would be required for the use of this facility as an event venue,
3 including weddings, or whatever other things they intend to do in it. Because we consider all that
4 we know about this that these are non -farm uses in this context. We've been through. We know a
5 lot about this. Unfortunately that's not coming into a sentence or two. We can't. I can't find myself
6 distilling it in there. I think we have to. Here's what I think we have to say is we have to have, again,
7 the finding that the wedding venue, we determined that the wedding venue isn't, is a non -farm use,
8 and then we can state that a zoning compliance permit would be required to use this building for
9 the as an event space. Does that make sense? Are we closer?
10
11 Susan Halkiotis: Well that's what I thought that James said.
12
13 James Bryan: I think...
14
15 Barry Katz: That's what you just said?
16
17 James Bryan: So, is it going to be unilateral that there's no weddings or 17 weddings or what is? Is
18 there a line drawn? Or are you just saying that?
19
20 Barry Katz: I would say no weddings. I would say no use as an event space, that this is, would be a
21 non -farm purpose.
22
23 James Bryan: Can I? So you're deciding on it that weddings, as proposed, aren't incidental?
24
25 Karen Barrows: Right.
26
27 Barry Katz: Exactly.
28
29 James Bryan: But they could be incidental.
30
31 Karen Barrows: They could be. It doesn't sound like it.
32
33 James Bryan: Is that what?
34
35 Barry Katz: They could be, yes, they could be but from, from what we've heard we're only looking
36 at this from the point of view of whether that they're not incidental. The the the way, what we've
37 been discussing is not incidental, you know?
38
39 James Bryan: Ok.
40
41 Karen Barrows: Thank you Bryan.
42
43 Barry Katz: We've looked at this a lot.
44
45 Susan Halkiotis: You know, and maybe that's not the way to go. I don't know. You know, I.
46
47 Barry Katz: Somebody make a motion on this, I can't do it.
52
APPROVED 6/12/17
1
2 Susan Halkiotis: Well if I knew what the motion should be I would, you know, how it should be
3 worded and what it should be included, what should be included in the motion I would make it.
4
5 James Bryan: So what was_
6
7 Karen Barrows: I thought we were supposed to decide whether Michael had erred in his decision.
8
9 James Bryan: Where is Michael's?
10
11 Susan Halkiotis: Well I. You know, I've got one more thing to say about that. You know I, because
12 we have looked at that decision and based on Michael Harvey's handling of it after our directive to
13 look at the March 2016 application and I just don't know how I lost this particular part of what we
14 did but I don't remember restricting our directive to him to the March 2016 application. I mean, just
15 for the record.
16
17 Karen Barrows: Mm -Hmm,
18
19 James Bryan: And the Board's not bound by that, but. So the only thing's that can be appealed are
20 final and binding determinations. Michael made three here. And I think you can look at his first one;
21 is the property a bona fide farm? And he says that it is.
22
23 Susan Halkiotis: See; let me clarify what I just said.
24
25 James Bryan: Ok.
26
27 Susan Halkiotis: I understand that that's the directive that was heard, but I'm, that's certainly not
28 what I intended. I mean I understand, but what he did, these are his findings based on the
29 paperwork he's got in his hand from March 2016 and I`m not arguing with that but that certainly
30 wasn't my intent, and I don't know whether it was everybody else's intent or not. So there may be
31 other people that have the, have a different...
32
33 Karen Barrows: So James, you want us to just go through the abstract and address each one of
34 Michael's?
35
36 James Bryan: Well I think you can start by affirming his decision that it is a farm.
37
38 Karen Barrows: I think we can agree.
39
40 Barry Katz: Well yes. It's a farm.
41
42 Karen Barrows: It's a farm.
43
44 James Bryan: And then the second one; is the structure being developed on the property being
45 used for bona fide farm purposes? I think you could modify that and say if you were to use Matt's
46 suggestion that there are bona fide farm purposes of drawing chestnuts and then use Barry's, 1
47 believe, suggestion that, but weddings as described by the property owner would be non -farm use.
53
APPROVED 6/12/17
1
2 Karen Barrows: Ok.
3
4 Barry Katz: Events,
5
6 James Bryan: Events,
7
8 Barry Katz: Events. Not simply weddings.
9
10 Matt Hughes: How are you going to word that though? I would say, you know, the idea to have
11 school children on the grounds would be incidental. I don't know if there's a charge for that but that
12 would be conceivably part of an agricultural use.
13
14 Barry Katz: Is that pertinent?
15
16 Matt Hughes: Yeah I think so, if you say events. I mean, someone could say...
17
18 Barry Katz: Oh right, the building...
19
20 Matt Hughes: That's an event.
21
22 Barry Katz: Interesting, sure.
23
24 Matt Hughes: I think. That's just my way of saying however it's phrased needs to be, I think, you
25 know is an educational workshop an event? Is that incidental to the farm? Is a school trip incidental
26 to the farm versus a wedding versus a retreat versus a farm dinner?
27
28 Barry Katz: See you can elaborate on non - wedding uses that are not educational. That might help
29 in this clarification.
30
31 Matt Hughes: Yeah, I think so.
32
33 Barry Katz: Retreat you mentioned; what else?
34
35 Matt Hughes: Well, pulling from Michael's, whatever we're calling this, Zoning Compliance Permit
36 Review from November; it pulls right from the permit application where it says barn for agricultural
37 use including but not necessarily limited to the storage and processing of agricultural products and
38 equipment, agro- tourism such as educational workshops, school field trips, weddings, retreats, and
39 farm dinners. So to me a few of those would definitely be more incidental to the farm under what
40 I'm hearing from you all incidental more so than...
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42 Karen Barrows: Exactly.
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44 Matt Hughes: Maybe farm dinners and weddings. I've never been to a farm dinner so I don't know
45 what that means; I'm not hip enough.
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APPROVED 6/12/17
1 Karen Barrows: Number three is the wedding event center related or incidental to the property. 1
2 think this is here where we,,.
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4 Karen Barrows: 169,
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6 Barry Katz: Did we do 2? Ok, Fine.
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8 Karen Barrows: That was just talking about it.
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10 Barry Katz: Ok, 3,
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12 Karen Barrows: That's where I would have an issue that it doesn't feel like it's incidental.
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14 Barry Katz: And would require a permit. Or it simply, it's not, it's not incidental, period.
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16 Karen Barrows: Period. I don't know about permits.
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18 Barry Katz: Ok. Yeah. Fine, Did you get that? We would say on number three that it's not incident,
19 that the use of this as a wedding venue is not incidental to the farming.
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21 James Bryan: Right, so... Can you put? You didn't want to limit it to weddings; it's weddings and
22 events,
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24 Barry Katz: Yeah,
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26 James Bryan: And educational work shops and farm dinners. These are all non -farm uses and not
27 incidental?
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29 Barry Katz: Someone else.
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31 Susan Halkiotis: Well my response would be I don't see how we could split off wedding from other
32 events. It either is incidental or it's not, as a wedding and event center. And I, you know, I'm not
33 willing to split of wedding specifically. I think that it's wedding and event center that's not related or
34 incident.
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36 Matt Hughes: I. Call me crazy, Based on these three things and as we're discussing it I think 1
37 could probably craft a motion. It'll be a wordy motion but I'll craft it nonetheless,
38
39 Barry Katz: Thanks,
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41 Matt Hughes: If you want to follow along James.
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43 Matt Hughes: I move that the Board of Adjustment finds that the property is a bona fide farm, that
44 the structure being developed on the property as proposed in the building permit application is for
45 bona fide farm purposes pertaining to education work shops, school field trips, and other education
46 activities, but not for weddings, retreats, and farm dinners, and that we find that the structure, as a
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APPROVED 6/12/17
1 wedding and event centers, is not related or incidental to the property being used bona -fide farm
2 purposes,
3
4 Barry Katz: I like that.
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6 James Bryan: And may I suggest, I believe you left off the chestnut and flour processing,
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8 Matt Hughes: That's correct, yes. So that would be included in that. Sorry.
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10 James Bryan: Was there any honey?
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12 Matt Hughes: Honey production, yeah, we can add that as well.
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14 James Bryan: So the property is a bona fide farm, the structure as proposed in the building permit
15 application is for bona fide farming purposes for chestnut flour, and honey packaging, processing...
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17 James Bryan: But is not a bona fide farming purpose for weddings, retreats, and event center uses,
18 the structure...
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20 James Bryan: Is not incidental. Is that what?
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22 Karen Barrows: Mm -Hmm.
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24 James Bryan: Is not incidental.
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26 Barry Katz: non -farm.
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28 Karen Barrows: Well those uses would not be incidental, not the structure.
29
30 James Bryan: So, the property's a bona fide farm property, the structure as proposed in the
31 building permit application is for bona fide farm purposes for chestnut flour, honey, packaging and
32 processing, education workshops and school trips, but not for weddings, retreats, and as an event
33 center. The use of the structure is not incidental as a wedding and event center.
34
35 LeAnn Brown: I think he said James the use of the structure as a wedding and event is not related
36 to or incidental to the farm use.
37
38 Matt Hughes: I think that's about right.
39
40 James Bryan: Well as I was, for...
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42 Matt Hughes: It's a wordy motion.
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44 James Bryan: And I apologize. The use of the structure as a wedding and event center is not
45 related or incidental to the bona fide farming purposes.
46
47 Matt Hughes: That's correct.
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APPROVED 6/12/17
1
2 Barry Katz: What?
3
4 James Bryan: Can we call out a few, the findings of facts as an addendum to that motion that Barry
5 and Susan said about the scale,
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7 Karen Barrows: The scale of the infrastructure is clearly to support an anticipated 250 guests,
8 wastewater and well permits, parking,
9
10 Barry Katz: Yeah.
11
12 Karen Barrows: Which is not incidental.
13
14 Matt Hughes: Is there something I need to do or do I just need a second?
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16 Barry Katz: I'm not sure, are we ready for a second? We need to fill that out further.
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18 Karen Barrows: Alright, I need to go.
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20 Barry Katz: Ok, then we're good.
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22 Matt Hughes: Are you seconding that motion?
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24 Barry Katz: I'll second that motion,
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26 Matt Hughes: Ok,
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28 Karen Barrows: Any further discussion?
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30 Matt Hughes: Well the only further discussion I have is even though I did make the motion I do
31 want to make another motion, which is to divide the question so that we can vote on each
32 component individually.
33
34 Karen Barrows: Should we vote on this motion first?
35
36 Matt Hughes: Well there are components of the motion I'd like to vote for and components I'd like
37 to vote against by dividing the question, which is a non - debatable motion that does require a
38 majority vote and a second; it would just allow us to vote on each individual item, however I have
39 the feeling that each individual item will prevail anyway so the motion will pass. If I had to look into
40 the metaphorical crystal ball, but that's my additional motion is that we divide the question.
41
42 LeAnn Brown: James, I don't mean to intercede but so we don't have a procedural problem; if
43 Matt's desire of splitting the motion it might be better procedurally now that you've written down
44 what he says for someone who's going to vote for the motion to make it or someone who's going to
45 vote for it to second it for Matt to then move to separate the three questions and the Board can
46 then take the questions because I think under most procedures it would be improper for a person
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to make the motion and then vote against parts of it and that way you wouldn't have that, we don't
have that issue.
Matt Hughes: So Karen would you like to make the motion?
Karen Barrows: As Chair I'm not supposed to.
Matt Hughes: Oh, well then.
Susan Halkiotis: I'll be happy to make it.
LeAnn Brown: I think it would be cleaner for all of us.
Karen Barrows: So Susan's making the motion, is there a second?
Motion made by Susan Halkiotis that the property's a bona fide farm property, the structure as
proposed in the building permit application is for bona fide farm purposes for chestnut flour, honey,
packaging and processing, education workshops and school trips, but not for weddings, retreats,
and as an event center. The use of the structure as a wedding and event center is not related or
incidental to the bona fide farming purposes due to the scale of the infrastructure is clearly to
support an anticipated 250 guests, wastewater and well permits, and parking. Seconded by Barry
Katz.
Karen Barrows: Why don't we just vote on this?
Barry Katz: Yes.
VOTE: 3.1 (Matt Hughes)
Karen Barrows: And you have stated your reasons, I think.
Matt Hughes: Yes.
Karen Barrows: Ok. Well we are approaching 11 o'clock. Do you want to continue Matt?
Barry Katz: I have a question, general question. Where does this go from here?
Michael Harvey: You need to direct it to James, I can't.
Barry Katz: James, the next step on this is there a next step within Orange County. Is anyone
going to listen to what we said or is this going to go back and just be superseded by the fact that
you know the law says something about farms and farm uses? Do you know?
James Bryan: All decisions by this Board are appealable to Superior Courts.
Barry Katz: Ok.
APPROVED 6/12/17
1 James Bryan: There's nothing precluding anybody from making new applications to the County,
2 either through the building department, the zoning department, or anything like that,
3
4 Barry Katz: I understand.
5
6 James Bryan: Any final and binding determinations by either of those are also appealable.
7
8 AGENDA ITEM 6: ADJOURNMENT
9
10 Motion made by Barry Katz to adjourn. Seconded by Karen Barrows,
11 VOTE: Unanimous
12
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14 KAR N BARROWS, VICE CHAIR
59