HomeMy WebLinkAboutBOA agenda 081318PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Current Planning
(919) 245-2575
(919) 644-3002 (FAX)
www.orangecountync.gov
131 W. Margaret Lane
Suite 201
P. O. Box 8181
Hillsborough, NC 27278
AGENDA
ORANGE COUNTY
BOARD OF ADJUSTMENT
300 West Tryon Street (Whitted Building) Hillsborough, NC 27278
August 13, 2018
6:00 p.m. Board Training Session
7:00 p.m. - Public Hearing Items
6:00 P.M. TRAINING SESSION:
1. CALL TO ORDER
2. INTRODUCTION – PLANNING STAFF AND COUNTY ATTORNEY
3. VIDEO – PROCESSING OF QUASI-JUDICIALAPPLICATIONS
7:00 P.M. – PUBLIC HEARING:
1. CALL TO ORDER
2. CONSIDERATION OF ADDITIONS TO AGENDA
3. APPROVAL OF MINUTES
•July 9, 2018
4. PUBLIC CHARGE:
The Board of Adjustment pledges to the citizens of Orange County its respect. The
Board asks its citizens to conduct themselves in a respectful, courteous manner, both
with the Board and with fellow citizens. At any time should any member of the Board or
any citizen fail to observe this public charge, the Chair will ask the offending person to
leave the meeting until that individual regains personal control. Should decorum fail to
be restored, the Chair will recess the meeting until such time that a genuine
commitment to this public charge is observed. All electronic devices such as cell
phones, pagers, and computers should please be turned off or set to silent/vibrate.
The Board of Adjustment is a quasi-judicial administrative body established in
accordance with the provisions of local regulations and State law to perform specified
functions essential to the County’s planning program. Action(s) taken by the board are
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based solely on competent, substantial, and material evidence presented during a
previously scheduled and advertised public hearing on a specific item. As detailed
within Section 2.12.2 of the UDO the Board chair reserves the right to exclude evidence
and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’
and therefore fails to reasonably address the issues before the Board of Adjustment.
While it should be noted there is no time limit on the presentation of evidence, the Chair
asks that the presentation of evidence be consistent with established policies, rules of
procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for
all parties.
5. A-3-18– PUBLIC HEARING TO CONTINUE REVIEW of an application
appealing the final determination of the Planning Director, as articulated
in an October 13, 2017 letter, concerning a parcel of property located at
the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50-7168)
owned/operated by Southeast Property Group LLC (a.k.a Wild Flora
FarmLLC) care off Ms. Kara Brewer.
6.ADJOURNMENT
IF UNABLE TO ATTEND THIS MEETING, PLEASE CALL THE PLANNING
DEPARTMENT(NUMBERS LISTED BELOW – PRESS 1 PLUS EXTENSION 2575
OR 2585). STAFF CAN THENDETERMINE IF A QUORUM WILL BE PRESENT FOR
THE MEETING.
HILLSBOROUGH – (919) 732-8181 ; MEBANE – (919) 227-2031
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ORANGE COUNTY
BOARD OF ADJUSTMENT
AGENDA ITEM ABSTRACTCASE A-3-18
Meeting Date:August 13, 2018
Agenda
Item No.A-3-18
SUBJECT: CASE A-3-18:Appeal of a Decisionmade by the Zoning Officer
DEPARTMENT:Planning and Inspections
ATTACHMENTS:INFORMATION CONTACT:
1.Appeal Application
2.Subpoena Responsefrom Wild Flora
Farm LLC
3.Request to Quash and Modify
Subpoenasfrom Wild Flora Farm LLC
4.Excerpt of Session Law 2017-108
5.Excerpt of Minutes from May 7 and July
9, 2018 Board of Adjustment Meetings
Michael D. Harvey, Planner III(919) 245-2597
Craig Benedict, Director (919) 245-2575
PURPOSE: To reconvene a public hearing concerning the review of an appeal (Attachment 1)
of a determination made bythe Planning Directoron October 13, 2017.
Review of this item began at the Board’s May 7, 2018 meeting where subpoenas were issued to
Wild Flora Farm LLCfor information submitted to the NC Department of Revenue as part ofan
application for a qualifying farmer exemption certificate. The subpoenas were served on Wild
Flora Farm, and other identifiedparties, by staff on May 25, 2018 via certified mail.
At its July 9, 2018 regular meetingthe Board received a responseto (Attachment 2), along with
amotion to quash and modify (Attachment 3),the subpoenas.The Board adjournedthe public
hearing until August 13, 2018.Minutes from the May 7 and July 9, 2018 meetings are contained
in Attachment 5.
BACKGROUND: On July 12, 2017, Session Law 2017-108 (hereafter ‘the Law’) became
effective. The Law included amendment(s) to North Carolina General Statute (NCGS) 153(A)
340 (b) (2a) establishing criteria for the use of structures on a bona farm foragritourism events.
A copy of the relevant sections of the Law is contained within Attachment 4.
On October 12, 2017 staff received a request from Mr. Andy Petesch for a: ‘… formal
determination classifying the use of the barn building and structure at Wild Flora Farm for
agritourism events as a bona fide farm purpose and, therefore, such use is exempt from the
County’s zoning regulation. See Session Law 2017-108, Sec. 8.(a)’. The request involved a
structure located on a parcel of property identified utilizing Orange County Parcel Identification
Number (PIN) 9729-50-7168 owned by Southeast Property Group LLC(a.k.a Wild Flora Farm)
care off Ms. Kara Brewer (hereafter ‘the property’). This is commonly referred to as the Barn of
Chapel Hill.
3
The request included:
x Documentation denoting the NC Department of Revenue had issued a qualifying farmer
exemption certificate, number 718574, to Wild Flora Farm care of Ms. Kara Brewer; and
x A Certificate of Assumed Name for a Limited Liability Corporation(LLC), recorded within
Record Book 6376 Page 596 of the Orange County Registrar of Deeds Office, indicating
South East Property Group LLC was conducting business in Orange County North
Carolina as Wild Flora Farm.
After consulting with Mr. John Roberts of the County’s Attorneyoffice,the Planning Director
made the determination the structure located on the property is classified as a bona fide farm
purpose pursuant to the provisions of NCGS 153A-340 (b) (2a) and is not subject to the land
use regulations as embodied within the Orange County Unified Development Ordinance (UDO).
A copy of this determination is contained within Attachment 1.
With respect to the review of this request,the Board needs to remember:
a.Attachment 2, specifically exhibits 5 and 6, contains documentation denoting Southeast
Property Group LLC and Wild Flora Farm LLC were merged. The certification of merger
was recorded within Record Book 6429 Page 467 of the Orange County Registrar of
Deeds on February 26, 2018;
b.While this meeting is open to the public, participation is limited to those parties with
standing;
c. Per Section 2.26.4 of the UDO all decisions of the Board of Adjustment are: ‘… subject to
review at the request of any person who has standing as detailed within NCGS 160A-393
(d) by the Superior Court by proceedings in the nature of certiorari’.
This appeal must be filed within 30 days of the availability of the notice of decision in
accordance with the UDO.
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Attachment1
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BOARD OF ADJUSTMENT SUBPOENA
(N.C.G.S.§160A-388(g)
IN THE MATTER OF:
THE APPLICATION FOR APPEALOF
INTERPRETATION OF CURRENT PLANNING
SUPERVISORTO BOARDOF ADJUSTMENT
OF HIS OCTOBER 13, 2017 DECISION
CONCERNING SOUTHEAST PROPERTY
GROUP, LLC’S PROPERTYON MORROW
MILL ROAD
)
)
)
)
)
)
)
)
)
)
)
)
TO:Southeast Property Group, LLC
c/o Kara M. Brewer, its Registered Agent
82 Jordan Hills
Chapel Hill, NC 27517-6432
Upondue petition by Gleta Carswell, Rene Quadt, Margaret
Wilkman,Alice Sandra Wilkman,Thomas Ray and Doris Ray, Appellants in
the above-referenced action, and pursuant to the authority vested in
me as Chair or person acting as Chair of the Orange County Board of
Adjustment by N.C.G.S. §160-388(g), you are hereby commanded to appear
at the Orange County Board of Adjustment Public Hearing on
_______________, 2018 at ______p.m.at
__________________________________to testify before the Board in the
matter of the Application for Appeal of Interpretation of Current
Planning Supervisor to Board of Adjustment of his October 13, 2017
Decision Concerning Southeast Property Group, LLC’s Property on Morrow
Mill Road. This subpoena is a continuing subpoena for your appearance
on subsequent dates as set by the Board of Adjustment until this
matter has been fully heard.
57
-2-
You are further commandedto produce and permit inspection and
copying of the following items at the place, date and time indicated
below:
All information Southeast Property Group, LLC has submitted or
caused to be submitted to the North Carolina Department of
Revenue and/or to Orange County (its employees, agents and
attorneys) regarding its alleged eligibilityunder and alleged
compliance with the provisions of N.C.G.S. §153-340, N.C.G.S.
§105-164.13E(a) and/or N.C.G.S. §105-277.3 as well as all
information regarding its legal relationship with Wild Flora
Farms, LLC, the Barn of Chapel Hill, LLC, Kara Brewer Designs,
LLC, KB Special Events, LLC, Kara Brewer and/or Chris Brewer.
These documents are to be submitted in advance of the hearing to
which you are subpoenaed to testify as referenced above and delivered
to LeAnn Nease Brown, Brown & Bunch, PLLC, 101 N. Columbia Street,
Chapel Hill, NC 27514. All applicable documents are to be produced
for inspection and copying onDecember 29, 2017 beginningat 9:30 a.m.
This ____ day of December, 2017.
_____________________________________
____________________________, Chair
Orange County Board of Adjustment
I certify this subpoena was received and served on the person
subpoenaed as follows:
____by personal delivery
____by registered or certified mail, return receipt requested
____by telephone communication
____by Sheriff
Date served: ________________
Name of authorized server:__________________________________________
Signature of authorized server and title:___________________________
13460\01\m\018Board of Adjustment Subpoena (Southeast Property Group)
58
BOARD OF ADJUSTMENT SUBPOENA
(N.C.G.S.§160A-388(g)
IN THE MATTER OF:
THE APPLICATION FOR APPEALOF
INTERPRETATION OF CURRENT PLANNING
SUPERVISORTO BOARDOF ADJUSTMENT
OF HIS OCTOBER 13, 2017 DECISION
CONCERNING SOUTHEAST PROPERTY
GROUP, LLC’S PROPERTYON MORROW
MILL ROAD
)
)
)
)
)
)
)
)
)
)
)
)
TO:Wild Flora Farms, LLC
c/o Kara Brewer, its Registered Agent
82 Jordan Hills
Chapel Hill, NC 27517-6432
Upondue petition by Gleta Carswell, Rene Quadt, Margaret
Wilkman,Alice Sandra Wilkman, ThomasRay and Doris Ray, Appellants in
the above-referenced action, and pursuant to the authority vested in
me as Chair or person acting as Chair of the Orange County Board of
Adjustment by N.C.G.S. §160-388(g), you are hereby commanded to appear
at the Orange County Board of Adjustment Public Hearing on
_______________, 2018 at ______ p.m.at
_____________________________________to testify before the Board in
the matter of the Application for Appeal of Interpretation of Current
Planning Supervisor to Board of Adjustment of his October 13, 2017
Decision Concerning Southeast Property Group, LLC’s Property on Morrow
Mill Road. This subpoena is a continuing subpoena for your appearance
on subsequent dates as set by the Board of Adjustment until this
matter has been fully heard.
59
-2-
You are further commandedto produce and permit inspection and
copying of the following items at the place, date and time indicated
below:
All information Wild Flora Farms, LLC has submitted or caused to
be submitted to the North Carolina Department of Revenue and/or
to Orange County (its employees, agents and attorneys) regarding
its alleged eligibility under and alleged compliance with the
provisions of N.C.G.S. §153-340, N.C.G.S.§105-164.13E(a) and/or
N.C.G.S.§105-277.3 as well as all information regarding its
legal relationship with Southeast Property Group, LLC, the Barn
of Chapel Hill, LLC, Kara Brewer Designs, LLC, KB Special Events,
LLC, Kara Brewer and/or Chris Brewer.
These documents are to be submitted in advance of the hearing to
which you are subpoenaed to testify as referenced above and delivered
to LeAnn Nease Brown, Brown & Bunch, PLLC, 101 N. Columbia Street,
Chapel Hill, NC 27514. All applicable documents areto be produced
for inspection and copying on December 29, 2017 beginningat 9:30 a.m.
This ____ day of December, 2017.
_____________________________________
____________________________, Chair
Orange County Board of Adjustment
Icertify this subpoena was received and served on the person
subpoenaed as follows:
____by personal delivery
____by registered or certified mail, return receipt requested
____by telephone communication
____by Sheriff
Date served: ________________
Name of authorized server:__________________________________________
Signature of authorized server and title:___________________________
13460\01\m\019Board of Adjustment Subpoena (Wild Flora Farms)
60
BOARD OF ADJUSTMENT SUBPOENA
(N.C.G.S.§160A-388(g))
IN THE MATTER OF:
THE APPLICATION FOR APPEALOF
INTERPRETATION OF CURRENT PLANNING
SUPERVISORTO BOARDOF ADJUSTMENT
OF HIS OCTOBER 13, 2017 DECISION
CONCERNING SOUTHEAST PROPERTY
GROUP, LLC’S PROPERTYON MORROW
MILL ROAD
)
)
)
)
)
)
)
)
)
)
)
)
TO:The Barn of Chapel Hill, LLC
c/o Kara M. Brewer, its Registered Agent
82 Jordan Hills
Chapel Hill, NC 27517-6432
Upondue petition by Gleta Carswell, Rene Quadt, Margaret
Wilkman,Alice Sandra Wilkman,Thomas Ray and Doris Ray, Appellants in
the above-referenced action, and pursuant to the authority vested in
me as Chair or person acting as Chair of the Orange County Board of
Adjustment by N.C.G.S. §160-388(g), you are hereby commanded to appear
at the Orange County Board of Adjustment Public Hearing on
_______________, 2018 at ______ p.m.at ______________________________
to testify before the Board in the matter of the Application for
Appeal of Interpretation of Current Planning Supervisor to Board of
Adjustment of his October 13, 2017 Decision Concerning Southeast
Property Group, LLC’s Property on Morrow Mill Road. This subpoena is
a continuing subpoena for your appearance on subsequent dates as set
by the Board of Adjustment until this matterhas been fully heard.
61
-2-
You are further commandedto produce and permit inspection and
copying of the following items at the place, date and time indicated
below:
All information The Barn of Chapel Hill, LLC has submitted or
caused to be submitted to the North Carolina Department of
Revenue and/or to Orange County (its employees, agents and
attorneys) regarding its alleged eligibilityunder and alleged
compliance with the provisions of N.C.G.S. §153-340, N.C.G.S.
§105-164.13E(a) and/or N.C.G.S. §105-277.3 as well as all
information regarding its legal relationship with Southeast
Property Group, LLC,Wild Flora Farms, LLC, Kara Brewer Designs,
LLC, KB Special Events, LLC, Kara Brewer and/or Chris Brewer.
Thesedocuments are to be submitted in advance of the hearing to
which you are subpoenaed to testify as referenced above and delivered
to LeAnn Nease Brown, Brown & Bunch, PLLC, 101 N. Columbia Street,
Chapel Hill, NC 27514. All applicable documents are to be produced
for inspection and copying on December 29, 2017 beginningat 9:30 a.m.
This ____ day of December, 2017.
_____________________________________
____________________________, Chair
Orange County Board of Adjustment
I certify this subpoena was received and served on the person
subpoenaed as follows:
____by personal delivery
____by registered or certified mail, return receipt requested
____by telephone communication
____by Sheriff
Date served: ________________
Name of authorized server:__________________________________________
Signature of authorized server and title:___________________________
13460\01\m\020Board of Adjustment Subpoena (The Barn of Chapel Hill)
62
BOARD OF ADJUSTMENT SUBPOENA
(N.C.G.S.§160A-388(g)
IN THE MATTER OF:
THE APPLICATION FOR APPEALOF
INTERPRETATION OF CURRENT PLANNING
SUPERVISORTO BOARDOF ADJUSTMENT
OF HIS OCTOBER 13, 2017 DECISION
CONCERNING SOUTHEAST PROPERTY
GROUP, LLC’S PROPERTYON MORROW
MILL ROAD
)
)
)
)
)
)
)
)
)
)
)
)
TO:Kara Brewera/k/a Kara M. Brewer
82 Jordan Hills
Chapel Hill, NC 27517-6432
Upondue petition by Gleta Carswell, Rene Quadt, Margaret
Wilkman,Alice Sandra Wilkman,Thomas Ray and Doris Ray, Appellants in
the above-referenced action, and pursuant to the authority vested in
me as Chair or person acting as Chair of the Orange County Board of
Adjustment by N.C.G.S. §160-388(g), you are hereby commanded to appear
at the Orange County Board of Adjustment Public Hearing on
_______________, 2018 at ______ p.m.at
____________________________________to testify before the Board in
the matter of the Application for Appeal of Interpretation of Current
Planning Supervisor to Board of Adjustment of his October 13, 2017
Decision Concerning Southeast Property Group, LLC’s Property on Morrow
Mill Road. This subpoena is a continuing subpoena for your appearance
on subsequent dates as set by the Board of Adjustment until this
matter has been fully heard.
63
-2-
Youare further commandedto produce and permit inspection and
copying of the following items at the place, date and time indicated
below:
All information you havesubmitted or caused to be submitted to
the North Carolina Department of Revenue and/or to Orange County
(its employees, agents and attorneys) regarding its alleged
eligibilityunder and alleged compliance with the provisions of
N.C.G.S.§153-340, N.C.G.S. §105-164.13E(a) and/or N.C.G.S. §105-
277.3 as well as all information regarding yourlegal
relationship with Southeast Property Group, LLC,Wild Flora
Farms, LLC,The Barn of Chapel Hill, LLC, Kara Brewer Designs,
LLC, KB Special Events, LLC and/or ChrisBrewer.
These documents are to be submitted in advance of the hearing to
which you are subpoenaed to testify as referenced above and delivered
to LeAnn Nease Brown, Brown & Bunch, PLLC, 101 N. Columbia Street,
Chapel Hill, NC 27514. All applicable documents are to be produced
for inspection and copying on December 29, 2017 beginningat 9:30 a.m.
This ____ day of December, 2017.
_____________________________________
____________________________, Chair
Orange County Board of Adjustment
I certify this subpoena was received and served on the person
subpoenaed as follows:
____by personal delivery
____by registered or certified mail, return receipt requested
____by telephone communication
____by Sheriff
Date served: ________________
Name of authorized server:__________________________________________
Signature of authorized server and title:___________________________
13460\01\m\021Board of Adjustment Subpoena (Kara Brewer)
64
BOARD OF ADJUSTMENT SUBPOENA
(N.C.G.S.§160A-388(g)
IN THE MATTER OF:
THE APPLICATION FOR APPEALOF
INTERPRETATION OF CURRENT PLANNING
SUPERVISORTO BOARDOF ADJUSTMENT
OF HIS OCTOBER 13, 2017 DECISION
CONCERNING SOUTHEAST PROPERTY
GROUP, LLC’S PROPERTYON MORROW
MILL ROAD
)
)
)
)
)
)
)
)
)
)
)
)
TO:Chris Brewer
82 Jordan Hills
Chapel Hill, NC 27517-6432
Upondue petition by Gleta Carswell, Rene Quadt, Margaret
Wilkman,Alice Sandra Wilkman,Thomas Ray and Doris Ray, Appellants in
the above-referenced action, and pursuant to the authority vested in
me as Chair or person acting as Chair of the Orange County Board of
Adjustment by N.C.G.S. §160-388(g), you are hereby commanded to appear
at the Orange County Board of Adjustment Public Hearing on
_______________, 2018 at ______ p.m.at
___________________________________to testify before the Board in the
matter of the Application for Appeal of Interpretation of Current
Planning Supervisor to Board of Adjustment of his October 13, 2017
Decision Concerning Southeast Property Group, LLC’s Property on Morrow
Mill Road. This subpoena is a continuing subpoena for your appearance
on subsequent dates as set by the Board of Adjustment until this
matter has been fully heard.
65
-2-
Youare further commandedto produce and permit inspection and
copying of the following items at the place, date and time indicated
below:
All information you havesubmitted or caused to be submitted to
the North Carolina Department of Revenue and/or to Orange County
(its employees, agents and attorneys) regarding its alleged
eligibilityunder and alleged compliance with the provisions of
N.C.G.S.§153-340, N.C.G.S. §105-164.13E(a) and/or N.C.G.S. §105-
277.3 as well as all information regarding yourlegal
relationship with Southeast Property Group, LLC,Wild Flora
Farms, LLC,The Barn of Chapel Hill, LLC, Kara Brewer Designs,
LLC, KB Special Events, LLC and/orKaraBrewer a/k/a Kara M.
Brewer.
These documents are to be submitted in advance of the hearing to
which you are subpoenaed to testify as referenced above and delivered
to LeAnn Nease Brown, Brown & Bunch, PLLC, 101 N. Columbia Street,
Chapel Hill, NC 27514. All applicable documents are to be produced
for inspection and copying on December 29, 2017 beginningat 9:30 a.m.
This ____ day of December, 2017.
_____________________________________
____________________________, Chair
OrangeCounty Board of Adjustment
I certify this subpoena was received and served on the person
subpoenaed as follows:
____by personal delivery
____by registered or certified mail, return receipt requested
____by telephone communication
____by Sheriff
Date served: ________________
Name of authorized server:__________________________________________
Signature of authorized server and title:___________________________
66
-3-
13460\01\m\022Board of Adjustment Subpoena (Chris Brewer)
67
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Attachment2
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Attachment3
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Senate Bill 615 Session Law 2017-108 Page 5
SECTION 7.G.S. 106-932 reads as rewritten:
"§ 106-932. Assent of legislature to mutual aid provisions of other compacts.
The legislature of this State hereby gives its assent to the mutual aid provisions of Articles
IV and V of the South Central Interstate Forest Fire Protection Compact Compact, the Middle
Atlantic Interstate Fire Protection Compact, and the Great Plains Wildland Fire Protection
Compact, in accordance with Article VIII of that Compact those Compacts relating to
interregional mutual aid; and the legislature of this State also hereby gives its assent to the
mutual aid provisions of Articles IV and V of the Middle Atlantic Interstate Forest Fire
Protection Compact in accordance with Article VIII of that Compact relating to interregional
mutual aid."
CLARIFY ACTIVITIES INCIDENT TO THE FARM AND AGRITOURISM
SECTION 8.(a)G.S. 153A-340(b), as amended by Section 9 of this act, reads as
rewritten:
"§ 153A-340. Grant of power.
…
(b) …
(2) Except as provided in G.S. 106-743.4 for farms that are subject to a
conservation agreement under G.S. 106-743.2, bona fide farm purposes
include the production and activities relating or incidental to the production
of crops, grains, fruits, vegetables, ornamental and flowering plants, dairy,
livestock, poultry, and all other forms of agriculture, as defined in
G.S. 106-581.1. Activities incident to the farm include existing or new
residences constructed to the applicable residential building code situated on
the farm occupied by the owner, lessee, or operator of the farm and other
buildings or structures sheltering or supporting the farm use and operation.
For purposes of this subdivision, "when performed on the farm" in
G.S. 106-581.1(6) shall include the farm within the jurisdiction of the county
and any other farm owned or leased to or from others by the bona fide farm
operator, no matter where located. For purposes of this subdivision, the
production of a nonfarm product that the Department of Agriculture and
Consumer Services recognizes as a "Goodness Grows in North Carolina"
product that is produced on a farm subject to a conservation agreement under
G.S. 106-743.2 is a bona fide farm purpose. For purposes of determining
whether a property is being used for bona fide farm purposes, any of the
following shall constitute sufficient evidence that the property is being used
for bona fide farm purposes:
a. A farm sales tax exemption certificate issued by the Department of
Revenue.
b. A copy of the property tax listing showing that the property is
eligible for participation in the present use value program pursuant to
G.S. 105-277.3.
c. A copy of the farm owner's or operator's Schedule F from the owner's
or operator's most recent federal income tax return.
d. A forest management plan.
e. A Farm Identification Number issued by the United States
Department of Agriculture Farm Service Agency.
(2a) A building or structure that is used for agritourism is a bona fide farm
purpose if the building or structure is located on a property that (i) is owned
by a person who holds a qualifying farmer sales tax exemption certificate
from the Department of Revenue pursuant to G.S. 105-164.13E(a) or (ii) is
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Attachment4-relevantsection(s)
ofSessionLaw2017-108
Page 6 Session Law 2017-108 Senate Bill 615
enrolled in the present-use value program pursuant to G.S. 105-277.3.
Failure to maintain the requirements of this subsection for a period of three
years after the date the building or structure was originally classified as a
bona fide purpose pursuant to this subdivision shall subject the building or
structure to applicable zoning and development regulation ordinances
adopted by a county pursuant to subsection (a) of this section in effect on the
date the property no longer meets the requirements of this subsection. For
purposes of this section, "agritourism" means any activity carried out on a
farm or ranch that allows members of the general public, for recreational,
entertainment, or educational purposes, to view or enjoy rural activities,
including farming, ranching, historic, cultural, harvest-your-own activities,
or natural activities and attractions. A building or structure used for
agritourism includes any building or structure used for public or private
events, including, but not limited to, weddings, receptions, meetings,
demonstrations of farm activities, meals, and other events that are taking
place on the farm because of its farm or rural setting.
…."
SECTION 8.(b)G.S. 143-138 reads as rewritten:
"§ 143-138. North Carolina State Building Code.
…
(b4) Exclusion for Certain Farm Buildings. – Building rules do not apply to (i) farm
buildings that are located outside the building-rules jurisdiction of any municipality, (ii) farm
buildings that are located inside the building-rules jurisdiction of any municipality if the farm
buildings are greenhouses,greenhouses or therapeutic equine facilities, (iii) a primitive camp, or
(iv) a primitive farm building. For the purposes of this subsection:
(1) For the purposes of this subdivision, a "farm building" means any
nonresidential building or structure that is used for a bona fide farm purpose
as provided in G.S. 153A-340. A "farm building" shall include:
a. Any structure used or associated with equine activities, including, but
not limited to, the care, management, boarding, or training of horses
and the instruction and training of riders. Structures that are
associated with equine activities include, but are not limited to, free
standing or attached sheds, barns, or other structures that are utilized
to store any equipment, tools, commodities, or other items that are
maintained or used in conjunction with equine activities. The specific
types of equine activities, structures, and uses set forth in this
subdivision are for illustrative purposes, and should not be construed
to limit, in any manner, the types of activities, structures, or uses that
may be considered under this subsection as exempted from building
rules. A farm building that might otherwise qualify for exemption
from building rules shall remain subject only to an annual safety
inspection by the applicable city or county building inspection
department of any grandstand, bleachers, or other spectator-seating
structures in the farm building. An annual safety inspection shall
include an evaluation of the overall safety of spectator-seating
structures as well as ensuring the spectator-seating structure's
compliance with any building codes related to the construction of
spectator-seating structures in effect at the time of the construction of
the spectator-seating.
b. Any structure used for the display and sale of produce, no more than
1,000 square feet in size, open to the public for no more than 180
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MINUTES1
BOARD OF ADJUSTMENT2
May 7, 20183
REGULAR MEETING4
5
MEMBERS PRESENT:Karen Barrows, Vice Chair 6
Barry Katz7
Susan Halkiotis8
Randy Herman(Alternate)9
10
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MEMBERS ABSENT:Samantha Cabe, Chair12
Holly Safi (Alternate)13
14
15
STAFFPRESENT:MichaelHarvey, Current Planning Supervisor16
Patrick Mallett, Planner II17
James Bryan, Staff Attorney18
David Hunt, Deputy Clerk/Information Specialist19
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AGENDA ITEM 1: CALL TO ORDER22
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Karen Barrowscalled the meeting to order at 7p.m.24
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26
AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA27
28
Karen Barrows asked if there are considerations of additions to the agenda.29
30
Michael Harvey, Current Planning Supervisor, said that the April 16, 2018, meeting minutes would not be voted on this 31
evening. He wanted to note that the absences of Karen Barrows and Barry Katz at that meeting had been excused prior 32
to the meeting. 33
34
He reminded board members to remember that the microphones are active at all times.35
36
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AGENDA ITEM 3: APPROVAL OF MINUTES – April 16,201838
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Asnoted by Michael Harvey, the board was not asked to take a vote to approve the minutes this evening.40
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AGENDA ITEM 4: PUBLIC CHARGE 42
43
Susan Halkiotisread the public charge. 44
45
The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct 46
themselves in a respectful, courteous manner, both with the Board and with fellow citizens.At any time should any 47
member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave the 48
meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting49
Attachment 5
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until such time that a genuine commitment to this public charge is observed.All electronic devices such ascell phones, 1
pagers, and computers should please be turned off or set to silent/vibrate.2
3
The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local 4
regulations and State law to perform specifiedfunctions essential to the County’s planning program. Action(s) taken by the 5
board are based solely on competent, substantial, and material evidence presented during a previously scheduled and 6
advertised public hearing on a specific item.As detailed within Section 2.12.2 of the UDO the Board chair reserves the 7
right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and 8
therefore fails to reasonably address the issues before the Board of Adjustment.While it should be noted there is no time 9
limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established 10
policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.11
12
13
AGENDA ITEM 5: CASE A-3-18– Public Hearing to begin reviewing an application 14
appealing the final determination of the Planning Director, as articulated in an October 15
13, 2017, letter, concerning a parcel of property located at the intersection of Morrow 16
Mill and Millikan Roads (PIN: 9729-50-7168) owned/operated by Southeast Property 17
Group LLC (a.k.a. Wild Flora Farm) care of Ms. Kara Brewer. 18
19
Review of this item at the May 7, 2018, meeting shall be limited to the Board 20
reviewing/acting on a request from the applicant to issue subpoenas compelling the 21
submittal of information deemed essential to the proceeding. 22
23
Karen Barrows asked whether there was anyonewho wishedto speak who neededto be sworn in.24
25
Michael Harvey said two attorneyswould be presenting arguments this eveningconcerning the issuance of subpoenas.26
There would be no need to swear in witnesses unless either attorney wished to call one for testimony.27
28
Michael Harvey said this is a convening of a hearing to begin reviewing anappeal application concerning the October 29
13, 2017, determination made bythe Planning Director. He noted that in the abstract the attorneysfor the applicants as 30
well as the impactedproperty owners have filed a joint request that is contained in Attachment 2 beginning onPage 62 31
of the agenda packet that the board first address the denial of the subpoena request bythevice chair. That is the sole 32
discussion pointfor this evening. Both attorneys have requested that after the Board of Adjustment has made a33
decision on the subpoenasthat action onthe appeal itself be delayeduntil a future meeting. 34
35
Barry Katz asked for clarificationthat the Board of Adjustment will hear this again. Michael Harvey said yes, the Board 36
of Adjustment will hear the merits of the appeal at a future meeting. 37
38
Karen Barrows stated that the reasonshe had decided not to sign the subpoenas was thatBarry Katz and Susan 39
Halkiotis have heard quite a bit of testimonyabout this issue. She knew if she refused, it wouldcome before this board40
andher fellow board memberswould be able to give input as well.41
42
Michael Harvey summarized the abstract: Attachment 1, pages 3-65, is the appeal application and subpoenas request. 43
Attachment 2, beginning on Page 66, is the joint correspondenceconcerning review of the subpoenas request.44
Beginning on Page 70 isthe excerpt of the session law. The background of this is as follows andis articulated in the 45
abstract:On July 12, Session Law 2017-108 became effective, which established the use of structures on a bona fide 46
farm. Orange Countyreceived a request on October12 from Andy Petesch, representing Barn of Chapel Hill/Wild Flora 47
Farm for adetermination from the county on whether the property met the requirements of the sessions lawand could 48
conduct agritourism activities. This requestinvolved thestructure located on the Orange County parcel identified as 49
PIN: 9729-50-7168 owned/operated by Southeast Property Group LLC (a.k.a. Wild Flora Farm), and is commonly 50
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referred to as the Barn of Chapel Hill. The request was reviewed with John Roberts of the county attorney’s office, and1
after review of Andy Petesch’s request, staff made adetermination that the structure located on this property is 2
classified as a bona fide farm, pursuant to the provisions in General Statutes 153A-340(b)(2)a.Itis not subject to land 3
use regulationsas embodied within the Orange County Unified Development Ordinance. Michael Harvey noted that 4
LeAnn Brown has attached a copy of the Orange Countyletter, within Attachment 1, which is the appeal application. As 5
part of the submittal, LeAnnBrown, who representsseveral adjacent property owners, had requested thechair, under 6
his or her discretion as part of local land use regulations and state statute,to issue subpoenas forrequested7
information. That request has been denied. Per request of LeAnnBrown, the full board has been askedto review that 8
denial and determine whether or not the subpoenas should be issued. 9
Michael Harveyreminded the board that attorneys representing each side, LeAnn Brown and Andy Petesch, have 10
requested that the purposeof the meeting is to review the subpoena request only. The meeting isopen to the public but 11
testimony is limited to the parties that have standing. The decision to issue or not issue the subpoenas is ultimately 12
appealable to Orange County Superior Court within 30 days. 13
14
Michael Harvey then requested that the agenda packet be entered into the record. 15
16
MOTION by Barry Katz to enter the agenda packet into the record. Seconded by Randy Herman.17
18
VOTE:UNANIMOUS19
20
Karen Barrows said the board would give each attorney 10 minutes to address the board. 21
22
LeAnn Nease Brown addressed the board. She asked that the board find that the parties she represents have standing 23
as theboard has found previously that those parties have standing. She said there is a procedure in the Board of 24
Adjustmentstatute that is designed to add a means by which information that may be relevant to a hearing can be25
obtained, and that is a subpoena process. Subpoenas, as a general principle, are a means by which documents or 26
other informationare brought before a tribunal. Admissibility of that information is decided in the context of thehearing. 27
Subpoena is the means by which the documents can be obtained. The issuanceof subpoenasis generally a ministerial 28
act. She said there are case laws in North Carolina to which she could refer but quotedBone v. Broadfor the record. 29
She continued, stating that the word relevant in the statue is informed by howthe word relevant is applied in the rules of 30
evidence. The Orange County Board of Adjustment applies relaxed rules of evidencein its hearings.She noted that the 31
North Carolina General Statues §1-401defines relevant evidenceas having any tendency to make the existence of any 32
fact that is of consequence to the determination of an action more probable or less probable than it would be without 33
the evidence. The comments to note 401 state that dealing with probabilityin the language of the rule hasadded the 34
virtueof avoiding confusion between questions of admissibility and questions of sufficiency of the evidence. It has also 35
subsumed in it the concept of materiality. 36
37
LeAnn Brown continued, stating that N.C.G.S. §160A-388(g),which is a statue that governs the Board of Adjustment, is 38
quoted in pertinent part on Page 52 of the agenda packet in herletter to Chair Samantha Cabe seeking subpoenas on 39
November 7, 2017.What N.C.G.S. §160A-388(g) allows is it allowspersons with standingto seek subpoenas. The40
procedure is to give the Board of Adjustment a written request, which she did by letter. And it provides the chair shall 41
issue the subpoena if it is determined toberelevant material and reasonable in nature and scope and not oppressive.42
The statutealsocontemplates that partiesfrom whom documents are soughtmay file motions to quash subpoenas. 43
There was no motion to quash or modify the request that she filed some six months ago. 44
45
LeAnn Brown reviewed that six months ago sheprovided a letter of appealto the Current Planning Supervisordated 46
October 13, 2017. She noted that Pages 49-51 of the agenda packet outline the errors alleged. The letter to Chair 47
Samantha Cabe that she sent sought five subpoenas to the following properties: Southeast Property Group LLC, which 48
is the legal owner of the property; Wild Flora FarmLLC,which was createdat some point in time,KaraBrewer 49
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individually;ChrisBrewer individually; and Barn of Chapel HillLLC. She noted that under the law, those are all separate 1
legal entities. What shesought from them was informationsubmitted to the North Carolina Department of Revenueor 2
to Orange County regarding theiralleged eligibility or alleged compliance with the statute regarding the farm exemption3
as it has been amended. She noted where the farm exemption provisions can be found in the state statutes, as noted 4
on Page 53 of the agenda packet, and that the session law amends several places in the statutes. The other 5
information shesought is the relationship among these entities because information has been provided to the county, 6
suggesting that a tax certificate that was received identifies Wild Flora Farms and KaraBrewersomehow applied to 7
Southeast Property Group LLC. The statute requires the tax certificate to be issued tothe owner of the property and 8
one of the errors that her party has alleged is that a certificate to Wild Flora Farmor KaraBrewer cannot apply to 9
SoutheastProperty Group LLC. On its face, it does not.Frankly, the income amounts and time increments in the two 10
statutes applying to the North Carolina Department of Revenue do not appear to have been possibly temporally to have 11
been metand so her party thinks the information she is requesting would be helpful to inform them as to whether there 12
is compliancewith those issues. That would be the issue when she comes before this board again. 13
14
LeAnn Brown reviewed that what the statues requireisan annual income from farming forthe previous tax year of15
$10,000 or an average for three years ofthat amount. There are conditional exemptions for tax purposes but that 16
provisiondoes not qualify a property owner. The letterto Kara Brewer with an exemption identification number for Wild 17
Flora Farm is dated September 22, 2017. Wild Flora Farm was created February 14,2017, so it had only existed a few 18
months. There is annual record of an assumed name certificate for Wild Flora Farm dated October 12, 2017, but it is 19
after the certificate was issued as well. The property was purchased in 2015 by Southeast Property GroupLLCand has 20
been owned by it throughout this process. 21
22
LeAnn Brown said that webelieve that in order for the Board of Adjustmentto make an intelligent and informed decision 23
on the appealing chief as to whetherOrange County has misinterpretedwhat it has received or has failed to make the 24
appropriate legal distinctions among the parties would be informed by the requested subpoenas. She and her clients25
believe that without the information, it would be difficult for her and herclients in the dark withoutunderlying information 26
to know whether what has been provided meets the statutory requirements. At a hearing on this matter, any evidence 27
that is obtained through the subpoenas can be objected to. The boardcan choose in a hearing to sustain the objections28
and LeAnn Brown can offer to make an offer of proof and have that information available so that a court can look at it 29
later.Or the other party can object and the board can sustain that and a court can look at it later. If LeAnn Brown is not 30
allowed to subpoenathe information, then it renders it very difficult under her due process rights toprepare an 31
argument before the Board of Adjustment. She appreciates Karen Barrows’s decision to not sign as she could have 32
done as vice chair. She summed up her argument by saying that it would be error indeed for the Board of Adjustmentto 33
refuse to issue the subpoenasbecause it would render her party unable to present a case to the board or to make an 34
offer of proof to this board. If the boardrefuses, a higher court would likely say let’s see what an offer of proof would 35
have been, she said.She asked that the board issue the subpoenas and that the subpoenas require that the 36
information be submitted before the next hearing andthat the persons listed are present to answer questions.37
38
Andy Petesch,of the Wake CountyBar, addressed the board and said he was here on behalf of Kara Brewerand the 39
actual property owner now, which is Wild Flora Farm LLC. He said therewas a merger between Wild Flora Farm LLC 40
and Southeast Property Group in February of this year. He passed out documents with that information. 41
42
Randy Herman asked if LeAnnBrown had been provided a copy.43
44
LeAnn Brown answered she was receiving that information just now. 45
46
Andy Peteschgave documentation tothe boardand offered itinto the record and clarified that now Wild Flora Farm 47
LLC owns the property.48
49
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Andy Peteschsaid this is not a complicated decision. There is not a need for this potentially vast amount of documents 1
that are being requested. The letter submitted on October 12, 2017, on behalf of SPG/Wild Flora/Kara Brewer included 2
the exemption certificate, which is located on Page 11 of the agenda packet;a deed at the time, which was owned by 3
SPG LLC/Southeast Property Group and now by operation of law owned by Wild Flora Farm LLC; an annual report by 4
SPG showing KaraBrewer as the loan member; and a certificate of assumed name at the timewhile SPG and Wild 5
Flora Farm were working on that merger, (SPG operatedunder the pseudonym Wild Flora Farm).6
7
Andy Petesch said what is agritourismand abonafide farm was the subject of a lot of debate and was the subject of 8
several public hearingsbefore this board.And as the Board of Adjustment has already heard, in July 2017, the General 9
Assembly tried to clarify that and they created a very straightforward compliance under the statute for a bona fide farm 10
to conduct agritourism in a structure or building on a farm under N.C.G.S. 153(A)-340(b) (2a), located at the end of the 11
agenda packet. This statute describes agritourism, which includes weddings and special events, and states that a 12
building or structure used for agritourism isa bonafide farm activity if the building or structure is located on property 13
that is owned by a person who holds a qualifyingsales tax exemption certificate. The same person or entity who owns 14
the certificate also needs to own the property. In some cases that may be a straightforward Joe Smithowns a property 15
and holds a certificate, but many farms havedifferent entitiesfor different aspects of their operations. That’s where16
Southeast Property Group, Wild Flora Farm, KaraBrewerhad to resolve some of those inconsistencies.That has been 17
brought into alignment and those documents have been presented to MichaelHarvey. That’s all there is to this case,18
Andy Petesch said. As this point, Wild Flora Farm and KaraBrewer hold the certificate. Wild Flora Farm ownsthe 19
property. There is noneed to go into all these other document requests, which is burdensome.20
21
Andy Petesch said LeAnn Brown focused on “relevant” underthe requirement ofN.C.G.S. §160A-388(g), but 22
“reasonable in nature and scope” is also part of the requirement. Requesting to go behind these documents to look at 23
personal, confidential financialinformation, tax records, and wantingto dig through that looking for some issue to 24
continue the fight against this property isan overreach at this point, he said.MichaelHarvey had those documentsand 25
this board hasall the powers that he has. This board needs tostand in hisshoes andlook at all this information fresh 26
and determine whether this meets the statute. This board can look at the statute and reverse Michael Harvey’s 27
decision. This board does not need to look at the legal relationship betweenKaraBrewerand her husband. That’s 28
invasive, burdensome and oppressive. That’s why this subpoena request should be denied. There is a list of entities in 29
the subpoena request that have not even been involved. KB Designs, for example, hasn’t been brought up at any point 30
in theseproceedings. So, in closing, this board’s authority is to review the decisions that the planning staff make with 31
respectto enforcing the UDO and specificstatutory guidance that informs that. To start looking at what the Department 32
of Revenue is doing and whether they made the right decisionis completely outside the scope of this board’s authority 33
and would be an abuse of discretion. He asked that they uphold the denial of the request. 34
35
Leann Brown asked for a rebuttal. Karen Barrows said the board did not plan to entertainrebuttals.36
37
Andy Peteschobjected to rebuttals, noting each party had 10minutes, which LeAnn Brown had used. 38
39
LeAnn Brown said she wanted to note that Andy Petesch had misspoken and the date on the document he submitted to 40
the board was February 19, 2018. 41
42
Karen Barrows asked if board members have questions. 43
44
Randy Herman asked Andy Peteschwhether he agrees with LeAnnBrown that this board had found that the45
challengers have standing. Andy Petesch said he objects to any finding of standing in this case as he has objected to it 46
at previous hearings.47
48
Randy Herman said specifically N.C.G.S. 153(A)-340 (b) (2a), the agritourism provision, it states under Subsection 1,49
that the building is a bonafide farm purpose if it is located on property owned by a person who holds a qualified farmer 50
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sales tax exemption certificate. The certificate was issued to KaraBrewer and the property owner was Southeast 1
Property Group,now Wild Flora FarmLLC.Those are not all the same person.2
3
Andy Peteschanswered the certificate is issued to Wild Flora Farm. The card itself is issued to Wild Flora Farm.The 4
addressee is Kara Brewer onthe letter to which the card isattached. 5
6
Randy Herman said the card does not have the LLCafter Wild Flora Farm. How is the Board of Adjustment toknow that 7
is the same entity or person?8
9
Andy Petesch answered that would be a matter that this board would have to decide at a hearing on that issue. 10
11
Randy Herman asked LeAnnBrownwhether this board had a specific finding that herclients have standing, as they 12
would be required to have standing to request the subpoenas.13
14
LeAnn Brown said there was detailed testimonyin one of the earlier hearings from each of her sixclients. And the 15
board made the finding of fact that the individuals have standing. She said Andy Peteschmade an appeal to Superior 16
Court on that finding. She can certainly spend a couple of hours putting these people on the standto establish these 17
people having standing. There have been at least four appeals involving this case. She asked that the board make 18
judicial notice that her clients have standing and note Andy Petesch’s objection and move forward to keep this hearing 19
brief. 20
21
Randy Herman said to LeAnn Brown, on the elementsof granting the subpoenarequest,sheaddressedrelevance, but 22
there is also the requirements that the request be reasonablein scope and not oppressive.He asked her to speak 23
briefly on those requirements.24
25
LeAnn Brown said what we have asked for from the individuals is thatif therewerematerials submitted to the 26
Departmentof Revenue,which she thinks would exist in a fairly easy way to reproduce, that her partybe allowed to see 27
them so that theycan understand to whom that certificate was issuedand whether it was the kind of certificate it needs 28
to be.An argument about what you can look behind is an argument for the hearing in chief, she said.The dates for 29
these entities do notmatch the date of the certificate. Wild Flora Farmdid not existwhen the certificate was issued, for30
example; therefore, she thinks it was unlikely that the certificate was issued to that entity.She said as far as the legal 31
relationship between Chris and KaraBrewer, the Brewerscan put down husband and wife, no big deal. She thinks it is 32
appropriate for her partyto askforthis information. She said she does not think it is oppressive to ask for this 33
information. In order to use this farm exemption, she thinks the property owner has to indicate a willingness to provide 34
this informationin order for others to support that the property owner is entitled to this exemption.She said her party 35
hasnot intended to look for deep, dark secrets. She reviewed that her party hasasked for information submitted to the 36
North Carolina Department of Revenueand OrangeCountyregarding eligibility and compliance under these statutory 37
provisions, as well as the relationship. She wants to know, for example, whether the entities were merged. She said 38
Andy Petesch has argued to Orange County and to this boardthat somehow this is all the same thing. She does not39
think it isoppressive or unreasonable to submit to this boardthe packet submitted to obtain the certificate. She said the 40
argument that Michael Harvey has all of this information is incorrect. The agenda packet includes what Michael Harvey 41
has. 42
43
Randy Herman said the board has documentation of the merger showing that Wild Flora Farm LLC andSoutheast 44
Property Group LLChavemerged andSPG was previously operating under the assumed name Wild Flora Farm, so 45
even if there was an issue about the identity at the time that the letter was issued, it seems to himthat it is possible that 46
the issue would be moot at this point because the identities have all merged. He asked if LeAnn Brown would like to 47
address that. 48
49
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LeAnn Brown said the reason we have requested thesesubpoenasis to answer some of these questions. She said the 1
questions Randy Herman asked her presupposed she knows the answers to those questions in those documents. She 2
said what she knows isthat the Department of Revenueissued a certificateon October 17, 2017, to Wild Flora Farm3
without an LLC attached to it and to KaraBrewer. She also knowsthat three weeks later, Southeast Property Group 4
LLC filed an assumed name certificate, Wild Flora Farm,no LLC. She knows that Wild Flora FarmLLC was created on 5
February 14, 2017, and that a merger occurred on February 19, 2018. That information answers no questionsfor her6
about what information was shown to the Department of Revenue – whose revenue was being used – to determine 7
whether the property owner was entitled to a certificate or what that certificate was.The document Andy Peteschgave 8
to the boardis excellent evidence of why her party needs the subpoenas so that her party and the board can 9
understand howentities that did not exist when the certificate was issued play a role in whether that certificate does 10
appropriately apply to this property. She said if there is nothing in the documents to call into question which entity it is 11
and whetherthat entity is the owner, (which she would submit to the board that it still is not), if we look at the materials 12
and the materials do notsupport anythingshe wishes to argue, then she supposed it would make her hearings 13
somewhat shorter, she said.Her party is askingthe board to let them all know what they are dealing with. She said14
Andy Petesch can argue once everyone hasseen the information.Michael Harveyand John Robertshave not seen it.15
16
Randy Herman said putting aside the issue of the identities, LeAnn Brown has also talked about the length of time the 17
income was reported, but it seems to him looking at the statute, assuming we have the correct property owner, once the 18
property owner has broughtforward a tax exemption certificate from the Department of Revenue,the statute seems to 19
require the county must accept that and cannotlook behind it. Aside from the issue of identityof the entities, what 20
authority does LeAnn Brown think the Board of Adjustment hasto look behind the certificate issued by the Department 21
of Revenue? 22
23
LeAnn Brown answeredshe thinks that is interesting andwill be a question of first impressionbecause the statute is 24
new. Whether a county has the authorityto look behind the certificate has not been litigated. She has never seen a tax 25
exemption certificate issued to the ownerof this property as Southeast Property GroupLLC or Wild Flora Farm LLC, so 26
she has not asked that question yet because she is not past the identity question. She thinks the county staff should 27
have looked at the document and said the property owner is Southeast Property Group LLC and the certificate is issued 28
to Wild Flora Farm. Done. She thinks that would have been correct. She asserts that the county looked behind the 29
certificate and made an argument that the legal formalities of corporate ownershipand individual ownershipsomehow 30
have no meaning and issued an opinion which blended together a bunch of legal entities. She added that one reason 31
she wanted to bifurcate the hearing was because itis difficultfor her to answer questions until she can see what she is 32
talking about.She is 100 percent certain that the Board of Adjustment does not hold a taxcertificate with the name of 33
the property owner on it, even if we assume that a post-issuance merger somehow has play here. 34
35
Andy Peteschsaid that was quite a bit of time that LeAnn Brown had and asked for 60 seconds.36
37
KarenBarrows granted that time.38
39
Andy Peteschsaid the question is what would this board would do with this information if they got it. Ifthis board starts 40
going behind the Department of Revenue,there will be attorneyfees awarded to Kara Brewer and SPG and Wild Flora 41
Farmbecause that is absolutely outside the scope of this board’s authority. Ifthis boardwants very specific additional 42
documentation with respect to whether Wild Flora Farm LLC is what the Department of Revenue intended when it 43
issued the certificate, that can be addressed. The rest is entirely unnecessary to determine that entity question.44
45
Karen Barrows asked whether there were anyother questions.46
47
Barry Katz asked whether he understood correctly thatregardless of the Board of Adjustment’sdecision, it was going to 48
beappealed to Superior Court. 49
50
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Andy Petesch, standing with LeAnn Brown, said they could jointly respond. AndyPetesch said it was uncharted waters1
and they are unsure how a court will treat an appeal of this decision.LeAnn Brown said it is fair to say whatever the 2
boarddoeswith this case, it will end up as an appeal somewhere. She believes there are three or four appeals on this 3
case already. She will have to appeal because without the subpoenaed documents,her hands are tied to make burden 4
of proof to this board. 5
6
Barry Katz said that was his understanding. He anticipated this. He then asked Andy Petesch whether thefees he 7
alluded towould be directed at LeAnnBrown’s clients. 8
9
Andy Peteschsaidthe county would be liable for attorney’s fees, under state statutes. 10
11
LeAnn Brown said it is troublesome to her that the board would consider thethreat of attorney’s fees when making a 12
decision on this matter. Having read the statuteseveral times, she does not think it is a foregone conclusion that the 13
county would have to pay attorney’s fees. She said the board hasto make decisions on what itthinksis right or wrong14
and not worry about that. 15
16
Barry Katz said theoretically after LeAnn Brownexamines the information she seeks,one of the primary determinations17
he thinks he hears from her isthat the Planning Department was in error in making adecision because of the lack of18
understanding of the chain of ownership and whetherthe owner was in a position to make a request fora legitimate 19
certificate. 20
21
LeAnn Brown said it is a simple question: who owns the property? Southeast Property Group LLC. Whosename is on 22
the certificate? Somebody else. The countydid a pretzel twist to say well, this entity isreally the same as this entity, 23
she said.24
25
Barry Katz said it could have been a misunderstandingto actually grant it. Whatever entityit isthat owns this property 26
did not have to appear before this boardfor a special use permit, etc., and then was granted the use of this property to 27
put the barn up in error. 28
29
LeAnn Brown said they applied for a special use permit. The boarddenied it. They appealedit and the appeal was not 30
perfected. They built the barn and took the position that the property qualified for the farm exemption. And then the 31
statute changed.32
33
Barry Katz asked whether there was any case law that if an entity applies for a special use permit, it is bound by the34
results of that application. 35
36
LeAnn Brown said she thinks there is. If the board looks at the errors she has alleged in the case in chief, she will make 37
the argument again that the event business should be stopped.38
39
Barry Katz said over the two or three years this case has been coming before the Board of Adjustment, there has been 40
anevolution in terms of how the entity presents itself. He asked whetherthereisany requirement from the entityto41
establish that they are a legitimateoperating farm thathas continuous income while theydo this event business.42
43
LeAnn Brown asked that her answer on that be saved for a hearing on the merits. 44
45
Barry Katz said he had the impression that this would be a very different kind of hearing, so he had that questionin 46
mind.47
48
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LeAnn Brown said she had asked to keep this hearing brief because she was scheduled for surgery the following 1
morning and Andy Petesch had agreed to askfor this hearing to be bifurcated out of professional courtesy to her and 2
because they both agreed that the decision tonight would be important in determining what happens next. 3
4
MOTION by Barry Katz toclose the public hearing. Seconded by Susan Halkiotis. 5
6
VOTE:UNANIMOUS7
8
Karen Barrows asked Susan Halkiotis for her thoughts. 9
10
Susan Halkitios thanked Randy Herman for hisquestions. She said she is squeamish about being overreaching. She 11
thinks Andy Petesch madegood arguments. However, she comes down ontheside of allowing the subpoenas to be 12
issued. Without the subpoenas and information, there are remaining questions to be answered. Herposition is to allow 13
the subpoenas to be issued. 14
15
Karen Barrows asked Randy Herman to expresshis thoughts.Randy Herman said he thinks it is legitimate to ask 16
whether the entitythat owned the propertywasissued the certificate. He does notthink the rest is within the scopeof 17
this board.He does not think it is within the scope of this board to look behind the Department of Revenue’s decision. 18
So, if it is possible to rewrite the request to limit the subpoenas only to the issues of identity, he would be in favor of 19
that. He deferred to the county attorney on whether or not the board can do that. 20
21
Susan Halkiotis said she had a related question. LeAnnBrown mentioned questions about thequalifying financial 22
information to gain one of the farm tax exemptions. Susan Halkiotis does not know how that is unraveled when the 23
question of the entities is resolved. Ifinformation was given to acquire a certificate and that certificate was then used to 24
base a decision on, and the certificate should nothave beenissued, then the whole thing falls apart. 25
26
Randy Herman said even if theoretically in another case fraudulent information was provided to obtain the certificate, he 27
does notthink the countycan look behind it. Hethinksthe only question this boardcan look at is whether the entity 28
issued the certificate was the one that owned the property.His opinion is that the board does not have the power to 29
look at whether the Departmentof Revenue miscalculated the revenue. 30
31
Barry Katz said this is the kind of information that the boardneedsto know and would be argued before us at the next 32
hearing we have with these parties. He then said he was not sure whether Randy Herman is a lawyerand giving a legal 33
opinion. He is in favor of issuing the subpoenas and that LeAnn Brown and her party have a legitimate right to have this 34
information. 35
36
Randy Herman said he is an attorney, but there is no case lawthat he is aware of on the interpretation of these 37
statutes.His opinion is based on what he thinks is a straightforward reading of the statutes. 38
39
Karen Barrows said she agrees withSusan Halkiotis and BarryKatzthat the boardshould allow the subpoenas to go 40
forward, for the reasons they have stated. 41
42
MOTION by Barry Katz toissues the subpoenas.Seconded by Susan Halkiotis. 43
44
VOTE:3-1(RANDY HERMANFOR REASONS PREVIOUSLY STATED) 45
46
Karen Barrows called for a vote to adjourn. 47
48
Michael Harvey said that before adjournment the board needed to set the date for the next hearing on this case, with 49
guidance from James Bryan. 50
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Page 10 of 11
1
There was agreement to give LeAnn Brown time to recover from surgery. 2
3
LeAnn Brown requested that the date that the documents requested in the subpoenas be submitted to the board be 4
before the next hearingon this case so that she would have time to prepare. Andy Petesch objected to providing the 5
documents in advance of the hearing, explaining that he believes he and his clients would be obligatedto produce the 6
documents at a hearing and not before. Randy Herman agreed with that interpretation. 7
8
There was then discussion of holding a hearing for the sole purpose of receiving the documents. 9
10
James Bryan suggested holding a Board of Adjustment meeting in July for the sole purpose of receiving the 11
documents. 12
13
There was then question of whether witnesses were required to appear in July.14
15
Andy Petesch said if witnesses were required to appear, he would need a much more specific list of questions16
consistent with discovery rules. 17
18
Karen Barrows said she thoughtonly thedocuments were being required in July. 19
20
Andy Peteschsaid he was not waiving his objection to producing the documents earlier than the hearing on the matter.21
22
LeAnn Brown said the subpoenasattached to the original request ask that witnesses appear before the Board of 23
Adjustment on a date certain and ask that the documents be produced in advance on a date certain. Rule 45 allows 24
that. She thinks it is appropriate to requirethat. 25
26
The board returned to discussing when in July the documents wouldbe required. James Bryan noted the Board of 27
Adjustment’s next meeting would be July 9. He suggested having the people who are subpoenaed appear at the 28
August Board of Adjustment meeting on August 13. 29
30
Karen Barrows asked for a motion.31
32
Susan Halktiois told the attorneys in the room that she does not know whatRule 45means and whether it does require 33
that the subpoenaed documents be submitted at a hearing of this board. 34
35
James Bryan said if there is nothing else on the agenda and that is the whole reasoneveryone has to show up, it might 36
be frustrating. 37
38
Barry Katz said he was in favor of setting the dates of July 9 for the subpoenaed documents and August 13 for the 39
subpoenaed people, acknowledging that Andy Petesch and LeAnn Brown had said that whateverthe board decided 40
this evening, there would be an appeal. Therefore, those dates may not remain the same. 41
42
Karen Barrows called for a motion. 43
44
MOTION by Barry Katz tohave the information presented on July 9, 2018, to the Board of Adjustment with a further 45
meeting of all parties August 13, 2018. Seconded by Susan Halkiotis. 46
47
VOTE:UNANIMOUS48
49
50
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Page 11 of 11
AGENDA ITEM 5: ADJOURNMENT1
2
MOTION by Barry Katzto adjournat 8:14p.m. Seconded byRandy Herman.3
4
VOTE:UNANIMOUS5
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1
MINUTES1
BOARD OF ADJUSTMENT2
July 9, 20183
REGULAR MEETING4
5
MEMBERS PRESENT:Samantha Cabe, Chair6
Karen Barrows, Vice Chair7
Susan Halkiotis8
Barry Katz9
Randy Herman 10
Leon Myers (Alternate) 11
12
STAFFPRESENT:Michael Harvey, Current Planning Supervisor 13
James Bryan, Staff Attorney14
15
AGENDA ITEM 1: CALL TO ORDER16
Chair Samantha Cabe called the meeting to order at 7:02 p.m.17
18
AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA19
Michael Harvey, Current Planning Supervisor,introducedLeon Meyers, anew alternateto this board and a professional 20
contractor whohas worked on several projects in the county. 21
22
Michael Harvey noted that Leon Meyers would not be hearing the appeals case itembecause he was not on the board 23
for the previous hearings onthis matter.Michael Harvey also noted that thevoting members for the variance case 24
would be Karen Barrows, Samantha Cabe, Susan Halkiotis, Randy Herman, and Barry Katz. 25
26
MichaelHarvey noted that staff had received a request from those involved in the appeals case to move the appeals 27
case item to be the firstitem on the agenda.The rationale wasthat it should be brief.28
29
Samantha Cabe asked for amotion to amend the agenda to hear this item next. 30
31
MOTION by Karen Barrows moved to amend the agenda to hear this item next.Randy Hermanseconded. 32
VOTE:UNANIMOUS33
34
AGENDA ITEM 3: APPROVAL OF MINUTES – April 16, 2018, and May 7, 201835
It was noted that the April minutes were on pages 3-16 of the agenda packet. 36
37
MOTION by Susan Halkiotis to approvethe April16, 2018, minutes. Randy Herman seconded.38
VOTE:UNANIMOUS (KAREN BARROWS DID NOT VOTE BECAUSE SHE HAD NOT ATTENDED THAT MEETING.)39
40
Randy Herman noted that a section of Line 136 was unnecessarily highlighted. Karen Barrows asked for an explanation 41
of the documents referred to on Page 21, Line 242. Randy Herman explained Andy Petesch was referring to 42
documents he had submitted to Michael Harvey. Michael Harvey agreed, elaborating that Andy Petesch was making an 43
argument that the statute does not allow staffto see the documents used by the Department of Revenue to make a 44
determination that a property is a farm. This is a Department of Revenue action and staff has no authority to audit, 45
challenge, or review their findings. The statute does not provide that level of oversight.46
47
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2
It was noted that, as vice chair, Karen Barrows chaired the May 7, 2018, meeting. Karen Barrows called for a vote on 1
approval of the May 7, 2018, minutes.2
3
MOTION by Barry Katz to approve the May 7, 2018, minutes with the highlighting eliminated.Randy Herman seconded. 4
VOTE:UNANIMOUS5
6
AGENDA ITEM 4: PUBLIC CHARGE 7
8
Karen Barrows read the public charge. 9
10
The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct 11
themselves in arespectful, courteous manner, both with the Board and with fellow citizens.At any time should any 12
member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave the 13
meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting 14
until such time that a genuine commitment to this public charge is observed.All electronic devices such as cell phones, 15
pagers, and computers should please be turned off or set to silent/vibrate.16
17
The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local 18
regulations and State law to perform specified functions essential to the County’s planning program. Action(s) taken by the 19
board are based solely on competent, substantial, and material evidence presented during a previously scheduled and 20
advertised public hearing on a specific item.As detailed within Section 2.12.2 of the UDO the Board chair reserves the 21
right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and 22
therefore fails to reasonably address the issues before the Board of Adjustment.While it should be noted there is no time 23
limiton the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established 24
policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.25
26
27
AGENDA ITEM 5: A-3-18 – Receipt of Subpoenaed documentation for a parcel of property28
located at the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50-7168).29
In accordance with action taken at its May 7, 2018, meeting, the Board of Adjustment shall receive 30
subpoenaedmaterial associated with the review of an appeal application concerning the status of 31
a structure located on a parcel of property, identified utilizing Orange County Parcel Identification 32
Number (PIN) 9729-50-7168, owned by Southeast Property Group LLC (a.k.a. Wild Flora Farm)33
care off Ms. Kara Brewer. The Board of Adjustment is scheduled to receive subpoenaed 34
materials. The Board of Adjustment is scheduled to continue the hearing at its August 13, 2018, 35
regular meeting.36
37
Samantha Cabe said the board will receive those documents from the council of Wild Flora Farm. 38
39
Andy Petesch, the attorney representingWild Flora Faunaand Kara Brewer,said the appeal of the decision to 40
issue the subpoenasnot withstanding, he has brought responsive documentsto the subpoena to which someof 41
the parties do not object.He said he had already provided Orange County Attorney JamesBryan and LeAnn42
Brown, attorney for the other party,copies of these documents. Andy Petesch said he would like to submit a 43
motion to quash and modify the subpoenas. 44
45
Samantha Cabe asked if this is a motion he is requesting the board heartonight. Andy Petesch answered he is 46
not requesting that the board hearittonight.47
48
Samantha Cabe said as chair she has recused herself ofanything related to this matter so any motions should 49
be directed to Karen Barrows as vice chair. 50
51
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3
Barry Katz asked for clarification. He reviewed that the board hadrequested documents and his understanding is 1
that Andy Petesch hasfiled a motion in superior court opposing the subpoenas.Andy Peteschansweredthat he 2
filed anappeal of the decision but, not withstanding that appeal, there were certain aspects of the request3
(certain information)that the parties he represents hadno objections to providing.4
5
Barry Katz asked if superior court will decide this issue and not this board. Andy Petesch answered that it is his 6
assessment that the appeal has not impacted the status of the case before the boardat this point. Prior to 7
August 13, it may.8
9
James Bryan requested that Karen Barrows askfor amotion to continuethe hearing on this matter to August13. 10
Karen Barrows asked for the motion. 11
12
MOTION by Barry Katz to continue the hearing on this item to August 13, 2018. Susan Halkiotis seconded.13
VOTE:UNANIMOUS14
15
107