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HomeMy WebLinkAboutBOA agenda 111218 - cancelled PLANNING & INSPECTIONS DEPARTMENT Craig N. Benedict, AICP, Director Current Planning (919) 245-2575 (919) 644-3002 (FAX) www.orangecountync.gov 131 W. Margaret Lane Suite 201 P. O. Box 8181 Hillsborough, NC 27278 AGENDA ORANGE COUNTY BOARD OF ADJUSTMENT WHITTED MEETING FACILITY 300 West Tryon Street HILLSBOROUGH, NORTH CAROLINA November 12, 2018 7:00 p.m. No. Page(s) Agenda Item 1. CALL TO ORDER 2. CONSIDERATION OF ADDITIONS TO AGENDA 3. APPROVAL OF MINUTES • August 13, 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 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 1 UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and therefore fails to reasonably address the issues before the Board of Adjustment. While it should be noted there is no time limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties. No. Page(s) Agenda Item 5. CASES: A. A-5-18 – Public Hearing to review a Class B SUP request submitted by Camp Chestnut Ridge and NC United Methodist Camp & Retreat Ministries, Inc. requesting to expand the existing Camp/Retreat Center facilities (PINs: 9843-22-1289; 9843-13-7930; 9843-05-5036; 9833-93-5222; and 9842-49-7233) along Camp Chestnut Ridge Road, west side Chestnut Ridge Church Road, and east of Mt. Willing Road. 6. ADJOURNMENT IF UNABLE TO ATTEND THIS MEETING, PLEASE CALL THE PLANNING DEPARTMENT (NUMBERS LISTED BELOW – PRESS 1 PLUS EXTENSION 2575 OR 2585). STAFF CAN THEN DETERMINE IF A QUORUM WILL BE PRESENT FOR THE MEETING. HILLSBOROUGH – (919) 732-8181 ; MEBANE – (919) 227-2031 CHAPEL HILL – (919) 967-9251 ; DURHAM – (919) 688-7331 2 MINUTES 1 BOARD OF ADJUSTMENT 2 August 13, 2018 3 REGULAR MEETING 4 5 MEMBERS PRESENT: Karen Barrows, Vice Chair 6 Susan Halkiotis 7 Barry Katz 8 Randy Herman 9 10 STAFF PRESENT: Michael Harvey, Current Planning Supervisor 11 James Bryan, Staff Attorney 12 13 AGENDA ITEM 1: CALL TO ORDER 14 Vice Chair Karen Barrows called the meeting to order at 7 p.m. 15 16 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 17 There was none. 18 19 AGENDA ITEM 3: APPROVAL OF MINUTES – July 9, 2018 Barry mentions two sets of minutes 20 It was noted that the word “statue” needed to be replaced by “statute” in several places. 21 MOTION by Barry Katz to approve the July 9, 2018, minutes. Susan Halkiotis seconded. 22 VOTE: UNANIMOUS 23 24 AGENDA ITEM 4: PUBLIC CHARGE 25 Barry Katz read the public charge. 26 27 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to conduct 28 themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time should any 29 member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending person to leave the 30 meeting until that individual regains personal control. Should decorum fail to be restored, the Chair will recess the meeting 31 until such time that a genuine commitment to this public charge is observed. All electronic devices such as cell phones, 32 pagers, and computers should please be turned off or set to silent/vibrate. 33 34 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local 35 regulations and State law to perform specified functions essential to the County’s planning program. Action(s) taken by the 36 board are based solely on competent, substantial, and material evidence presented during a previously scheduled and 37 advertised public hearing on a specific item. As detailed within Section 2.12.2 of the UDO the Board chair reserves the 38 right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or unduly repetitious’ and 39 therefore fails to reasonably address the issues before the Board of Adjustment. While it should be noted there is no time 40 limit on the presentation of evidence, the Chair asks that the presentation of evidence be consistent with established 41 policies, rules of procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties. 42 43 44 AGENDA ITEM 5: A-3-18 – PUBLIC HEARING TO CONTINUE REVIEW of an application 45 appealing the final determination of the Planning Director, as articulated in an October 13, 46 2017, letter, concerning a parcel of property located at the intersection of Morrow Mill and 47 Millikan Roads (PIN: 9729-50-7168) owned/operated by Southeast Property Group LLC (a.k.a. 48 Wild Flora Farm) care of Ms. Kara Brewer. 49 Staff Attorney James Bryan said in past cases, he has given an opening statement about what is quasi-judicial and 50 what is not to clear confusion. He explained the Board of Adjustment appeals procedure. He simplified that facts can be 51 DRAFT MINUTES 8.13.18 3 reasonably decided and rules are correctly interpreted. He noted that facts decided by this board cannot be arbitrary or 1 capricious but rather supported by competent, material, substantial evidence in the record. The rules are interpreted by 2 the law. He reviewed how the Board of Adjustment determines the facts. This board makes findings of facts if facts are 3 based on competent, material and substantial evidence that are not arbitrary or capricious and are presented in the 4 record. Competent evidence is legally fit so that it is trustworthy, and reliable and competent evidence for traffic and 5 property values must be provided by experts in those fields. James Bryan also reviewed that substantial evidence is 6 sufficient to support a specific conclusion. 7 8 James Bryan then reviewed the flow for facts and shared a diagram that explained that before the public hearing, the 9 application is submitted and the staff report is written. At the hearing, evidence is given on the record and then the 10 hearing is closed and the board deliberates. The board then takes all the evidence presented for the record at the 11 hearing and determines findings of fact based on whether it was competent, material and substantial evidence. The 12 staff attorney noted that some evidence may be uncontested and other evidence may be excluded. In cases where 13 there is evidence on both sides for a relevant standard, the board must decide based on its reasonable judgment. 14 15 James Bryan then reviewed how the board interprets a rule and presented a slide to remind everyone that if the text is 16 clear and unambiguous, its plain meaning should be enforced. If an ambiguity remains, the board must favor the 17 property owner and the free use of land. 18 19 James Bryan then established the framework for this case. Regarding jurisdiction, on Page 11 of the agenda packet, 20 there is a letter from Current Planning Supervisor Michael Harvey dated October 13, 2017, that is a final and binding 21 decision of staff, which carries the weight of law. Regarding whether the applicants have standing, the board will find on 22 Page 51 of the agenda packet the applicants’ statement of standing. James Bryan reviewed that regarding the rule, this 23 is a new statute N.C.G.S. §153A-340(b)(2a). This was passed by the General Assembly in July 2017. 24 25 Barry Katz said this is a case that predates the change in the law. He wonders how the change in the law is relevant to 26 this case. James Bryan said the parties can better speak to that. 27 28 James Bryan then reviewed that before Michael Harvey wrote his letter on October 13, 2017, he received a request. 29 James Bryan reviewed that the request was for a classification that the structure on the property is a structure for a 30 farm purpose, pursuant to N.C.G.S. §153A-340(b)(2a). He then highlighted the first sentence in a paragraph of the 31 statute that states: “A building or structure that is used for agritourism is a bona-fide farm purpose if the building or 32 structure is located on a property that is owned by a person who holds a qualifying farmer sales tax exemption 33 certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a). James Bryan said he does not think 34 either parties are arguing over the last part of that statement. James Bryan said the applicant included the property 35 owner’s original request, which is one letter with four exhibits. James Bryan referred to Page 10 of the agenda packet to 36 answer how staff responded to the rule, noting that Michael Harvey laid out four sections. 37 38 Barry Katz said the deed for the property was filed with Mark Chilton on March 24, 2015. Is it relevant for him to ask 39 when the barn itself was purchased. 40 41 James Bryan said he does not know whether it is relevant but Barry Katz will have an opportunity to ask that when the 42 applicant is before the board. 43 44 James Bryan returned to Page 10 of the agenda packet, noting there were five attachments to Michael Harvey’s letter, 45 pages 12 - 50 of the agenda packet. He noted that Page 51 is what the appellant says is wrong with the staff’s 46 determination. He noted that Page 68 is the new information that is available. This is 20 pages that were submitted by 47 the applicant upon the board’s subpoena. This information includes the application to the state for a qualifying farmer 48 exemption certificate number; the Internal Revenue Service letter issuing an employer identification number; and the 49 plan of merger of Wild Flora Farm, LLC, with Southeast Property Group, LLC. 50 4 1 James Bryan said to apply the principles to the present case, a structure is a bona fide farm purpose if the structure is 2 used for agritourism and the person who owns the property where the structure is located is the same person who 3 holds a qualifying farmer sales tax exemption certificate from the Department of Revenue pursuant to G.S. 105-4 164.13E(a). He thinks there will be three conclusions the board will have to make: 5 #1 Is the structure used for agritourism? 6 #2 Who owns the property where the structure is located? 7 #3 Does that owner have a certificate from the North Carolina Department of Revenue indicating a farmer sales tax 8 exemption? 9 10 James Bryan said when reviewing Michael Harvey’s determination for an appeal, the Board of Adjustment stands in the 11 staff person’s shoes and says this is what should have been done. That decision is made today after evidence is 12 presented. 13 14 James Bryan shared a slide repositioning all of the information. He said the current evidence in the agenda packet is 15 the building permit found on Page 19 and the farm plan summary, website, correspondence regarding weddings and 16 educational workshops, social media and other pictures found on Page 26. His slide noted the facts used by staff but 17 James Bryan noted that the board may receive additional evidence this evening or may determine that some of this 18 evidence is not competent, material or substantial. The board will determine its facts. James Bryan then reviewed that 19 the board will have to decide that the structure is used for agritourism or is not used for agritourism. 20 21 Barry Katz said it has been his impression that Kara Brewer and her attorney have been arguing that the Unified 22 Development Ordinance is not germane to this and it is essentially a state issue and not a county issue. So, why are we 23 discussing this? 24 25 James Bryan answered that the General Assembly has tried to craft what they want for many years. What they drafted 26 here isn’t the clearest but don’t let the perfect be the enemy of the good. 27 28 Barry Katz said he would like to look at the statute while James Bryan answered. It was noted that the statute starts on 29 Page 92 of the agenda packet. 30 31 James Bryan read this sentence excerpted from the statute and found at the top of Page 92 in the agenda packet: 32 “Failure to maintain the requirements of this subsection for a period of three years after the date the building or 33 structure was originally classified as a bona fide purpose pursuant to this subdivision shall subject the building or 34 structure to applicable zoning and development regulation ordinances adopted by a county pursuant to subsection (a) 35 of this section in effect on the date the property no longer meets the requirements of this subsection.” 36 37 James Bryan noted that there is a time limit of three years from the date the building or structure was originally 38 classified as a bona fide farm purpose. If not the county, who makes that classification? The applicant asked the county 39 to make that classification and Michael Harvey made that classification as a bona fide farm purpose. 40 41 Barry Katz asked for confirmation that staff made that classification because the structure is a barn on a property that 42 has an agricultural tax exemption. 43 44 James Bryan said anybody can ask for a classification and staff will make that determination if that first sentence is met. 45 46 Barry Katz asked that the property owner does not have to be a farmer to gain that classification. 47 48 James Bryan answered that you have to meet the letter of the law. 49 50 5 Barry Katz checked that this barn qualifies for agritourism because it is situated on property that qualifies for an 1 agricultural tax exemption. He asked James Bryan if that is part of the argument. 2 3 James Bryan said it was imperfectly cited, so he couldn’t say. 4 5 Randy Herman added that there is a definition of agritourism later in that section. 6 7 Barry Katz said he has read the definition. 8 9 James Bryan said the second element is who owns the property. He shared a slide that lists current evidence in the 10 agenda packet including: 11 1. Building Permit (PIN) on Page 19 12 2. Orange County Land Records showing owner as SPG, LLC, on Page 42. 13 3. Deed recorded at Orange County Register of Deeds showing SPG, LLC, on Page 45. 14 4. Articles of Merger filed with NC Secretary of State showing Wild Flora Farm, LLC, as surviving entity after being 15 merged with SPG, LLC, on Page 83. 16 5. Certification of Merger filed with Orange County Register of Deeds showing merger of SPG, LLC, into Wild 17 Flora Farm, LLC, on Page 85. 18 19 James Bryan noted Michael Harvey did not have the merger information when he made his determination in October 20 2017. 21 22 Barry Katz asked how an entity would fail to maintain requirements. 23 24 James Bryan said he would presume if you no longer hold a certificate from the North Carolina Department of Revenue, 25 no longer own the property, or no longer are engaged in agritourism. 26 27 Barry Katz asked in agritourism or agriculture? 28 29 James Bryan answered agritourism because that is explicitly what the statute requires. 30 31 James Bryan reviewed some sample motions for the board’s decision, which were shown on a slide. 32 33 Barry Katz asked if the board would be hearing about continuity of ownership. 34 35 James Bryan answered that the parties can respond to that. 36 37 Current Planning Supervisor Michael Harvey reviewed that the abstract package begins on Page 3. A public hearing 38 began at the May 7, 2018, regular meeting, where the board chose to issue subpoenas, at the request of the applicant, 39 to Wild Flora Farm, LLC, and other parties for information submitted to the North Carolina Department of Revenue as 40 part of an application for a qualifying farm exemption certificate. At the board’s July 9, 2018, meeting, those responses 41 were provided to the board along with other motions by the attorney for Kara Brewer, the owner of Wild Flora Farm, 42 LLC. As James Bryan has alluded and as covered in the abstract, what precipitated this appeal was on July 12, 2017, 43 Session Law 2017-108 became effective. The excerpt of this session law is contained in Attachment 4 of the abstract 44 package and begins on Page 92. It establishes criteria for the use of structures on a bona fide farm for agritourism 45 events. Staff received a request from the attorney for Kara Brewer, Andy Petesch, on October 12, 2017, asking for the 46 determination classifying the use of the barn building and structure at Wild Flora Farm for agritourism events as a bona 47 fide farm and therefore exempting for it from county zoning regulations. Michael Harvey said Andy Petesch based this 48 request on the relevant session law. In reviewing the request provided by Andy Petesch, staff made the determination 49 that the structure qualified for bona fide farm purpose as recently amended under the North Carolina General Statutes 50 6 and as such was not subject to county zoning regulation and the owner could engage in agritourism activities, which the 1 statute indicates includes weddings. Staff provided Andy Petesch with a copy of the determination, along with LeAnn 2 Brown, attorney for the appellants. That staff determination has been appealed. 3 4 Michael Harvey reviewed that the appeal begins on Page 5. The subpoena response begins on Page 68. The request 5 to quash or modify the subpoenas begins on Page 89. The aforementioned Attachment 4 begins on Page 92. The 6 excerpt from the May and July 2018 meetings begins on Page 94. He asked that the abstract and all attachments be 7 put in the record. 8 9 MOTION by Susan Halkiotis to enter the abstract and all attachments into the record. Barry Katz seconded. 10 VOTE: UNANIMOUS 11 12 LeAnn Brown said she represents the appellants and read their names, acknowledging they are the same people who 13 have been involved in the other appeals this board has heard regarding this property. She said that this is an appeal of 14 a decision that was made October 13, 2017. She said the appeal was dated November 7, 2017, and noted it has taken 15 awhile to get before the Board of Adjustment. She said one of the first items that the board needs to deal with is the 16 item regarding standing. She said she has a certified copy of the minutes from the first time the Orange County Board 17 of Adjustment heard an appeal regarding this property, which included detailed evidentiary materials that gave evidence 18 of standing. So, in addition to what’s in the application that Michael Harvey has introduced into evidence addressing 19 standing, she is offering into evidence those minutes so that the board does not have to receive additional hours of 20 testimony about standing. She asked that the board receive that as sworn testimony. Also included in those minutes is 21 the determination that was made by this board in connection with the Special Use Permit that the use that was 22 proposed would not maintain or enhance the value of contiguous property. She noted the board has received the 23 certified copy of the minutes twice as sworn testimony in determining whether her party has standing. 24 25 Barry Katz asked for the date of the meeting minutes regarding standing. 26 27 LeAnn Brown answered October 10 and 24, 2016. And everyone still lives in the same place and is still doing the same 28 thing. LeAnn Brown explained the circumstances whereby several people she represents could not be present this 29 evening and acknowledged that she would have to ask for this public hearing to be continued if the board determined it 30 needed testimony from the individuals in order to establish standing. 31 32 LeAnn Brown said in the October 2016 minutes she is passing out, Page 19 acknowledges the board’s earlier finding 33 that those individuals she represents have standing, in addition to what’s on Page 51 of the agenda packet. She asked 34 if the board agreed to find standing. Board members informally agreed. 35 36 Andy Petesch requested to make a brief comment regarding the submission of these materials as standing. Andy 37 Petesch does not object to the certified minutes but wanted to note for the record that he objected then and objects now 38 to the finding that the individuals LeAnn Brown represents have standing. 39 40 LeAnn Brown asked if the board finds that the individuals she represents have standing so that she can proceed. Board 41 members nodded. LeAnn Brown noted for the record that all the board members nodded assent. 42 43 LeAnn Brown said in the materials filed in the appeal, there is an error alleged that she wants to address. She said 44 Southeast Property Group, LLC, which is now called Wild Flora Farm, LLC, by merger -- a merger that occurred well 45 after this tax certificate -- Southeast Property Group, LLC, applied to this board for a Special Use Permit in 2015. The 46 facts are, as is reflected in the minutes that the board has received into evidence, that Michael Harvey originally 47 determined that a Class B Special Use Permit was required for the events center that was going to be built upon the 48 property. There was no appeal taken of his determination that a Special Use Permit was required. She was not the 49 attorney for the opposing individuals at that time, but by the time the public hearing was held by the Board of 50 7 Adjustment, evidence suggests that Kara Brewer was proceeding voluntarily. Nonetheless, Kara Brewer chose to seek 1 a Special Use Permit from the Board of Adjustment. The Board of Adjustment held hearings, received evidence, 2 considered the facts, and denied the Special Use Permit on the grounds that it did not mean the facts that the board 3 must find in order to grant one. That occurred in 2015 and one of the documents before the board is the order of the 4 decision determining that in 2015. 5 6 LeAnn Brown asked the board to receive into evidence Exhibit 2, which was handed to board members a few minutes 7 earlier. 8 9 MOTION by Randy Herman to accept Exhibit 2 into evidence. Barry Katz seconded. 10 VOTE: UNANIMOUS 11 12 LeAnn Brown noted she had just passed copies of Exhibits 3, 4 and 5 to James Bryan for distribution to the board. She 13 reviewed that Exhibit 3 is the petition to deny the Special Use Permit; Exhibit 4 is the writ of certiorari granted by the 14 court, which means the court was intending to hear it; and Exhibit 5 was a dismissal with prejudice of the appeal. The 15 building involved and the land involved is the same as before the board now. She noted this is a quasi-judicial hearing 16 and the doctrines of res judicata and collateral estoppel apply in quasi-judicial hearings. She has copies of a case, 17 Mount Ulla Historical Society v. Rowan County, that talks about the doctrine of res judicata. Res judicata in a zoning 18 case is for the purpose of protecting litigates from re-litigating previously decided matters. It applies to Board of 19 Adjustment quasi-judicial decisions. If you can show that the fact and reasons obviate the reason the denial occurred, 20 then it would not apply, but otherwise it applies. In the Mount Ulla case, there was a three-year period of time between 21 the first Board of Adjustment decision and the second. It involves a radio tower and the radio tower was 1,250 feet in 22 the first application and it was changed to 1,000 feet in the second. The board determined that it was a different tower 23 because it was a different height and the court reversed that and said res judicata that the concerns expressed by the 24 board with regard to the reasons for denial and not been obviated. 25 26 LeAnn Brown said the doctrine of collateral estoppel also applies to this proceeding. She noted collateral estoppel 27 means determination of an issue in a prior judicial or administrative proceeding precludes re-litigation of that issue. It 28 bars a subsequent adjudication of a previously determined issue even if a subsequent action is based on an entirely 29 different claim. It is designed to prevent repetitive lawsuits over matters which have been decided and which have 30 remained substantially static factually and legally. And it applies to quasi-judicial opinions. There is a 2013 Court of 31 Appeals opinion called Hillsboro Partners v. the City of Fayetteville, which is again a land use matter in which this 32 doctrine was held to apply. The filings that have occurred in this case: May 18, 2015, application for a Special Use 33 Permit, as LeAnn Brown had mentioned, Michael Harvey had originally indicated to Kara Brewer, who was seeking the 34 permit through her entity that owned the property, Southeast Property Group, LLC, that she had to have a permit. Kara 35 Brewer did proceed. It was denied on November 9, 2015. The order is included in Exhibit 2. It was appealed and it was 36 dismissed with prejudice. LeAnn Brown noted she has said “with prejudice” twice because she thinks it is very 37 significant. 38 39 Barry Katz asked what that means. 40 41 LeAnn Brown answered that it means this matter was litigated, the board had a quasi-judicial hearing, it was appealed 42 by Southeast Property Group, LLC, and Kara and Chris Brewer to Superior Court. It was never heard and when it was 43 dismissed, it was dismissed with prejudice, which means it was dismissed without an opportunity to bring it back to 44 court. She said it is her contention and has been her contention that once the decision was made to dismiss that 45 petition, that’s the end of the story and whatever has happened subsequent to that with regard to this property, whether 46 or not the statute should have applied then or now is foreclosed by that. It’s foreclosed under the doctrines of res 47 judicata and collateral estoppel, LeAnn Brown said. 48 49 Barry Katz asked if Superior Court gave a reason for dismissing it with prejudice. 50 8 1 LeAnn Brown answered that she cannot speak to that because that is not her case. It would be for Andy Petesch to 2 answer. She reiterated that the dismissal with prejudice brought an end to the recourse for appealing the Orange 3 County Board of Adjustment decision to deny the Special Use Permit. She added that she believes Southeast Property 4 Group, LLC, and Kara and Chris Brewer were without recourse before the petition to Superior Court was filed because 5 when Michael Harvey first determined that she had to file for a Special Use Permit, Kara Brewer should have appealed 6 that to the Board of Adjustment. And that never occurred. 7 8 Randy Herman said the effect of all that would be that the property owner does not qualify for a Special Use Permit and 9 he does not think that the property owner is now arguing that they do but rather that the statute has changed such that 10 the property is no longer subject to our zoning entirely. 11 12 LeAnn Brown said that under the doctrine of res judicata and collateral estoppel when you have chosen the means by 13 which you proceed before a quasi-judicial body and seek a permit and then you choose not to appeal that decision that 14 you have chosen the path that you are going to take. You have set your course of action. Once you are denied the 15 Special Use Permit, you cannot appeal that and dismiss it and then come back and say, ‘You know what, I don’t think I 16 ever needed it anyway.’ And that is exactly what has happened here. 17 18 Randy Herman said the statute under which they are proceeding did not exist at the time that they initially applied so 19 they couldn’t have chosen that path at that time. 20 21 LeAnn Brown said the statute at the time that they saw the Class B Special Use Permit is the statute that this board 22 was considering when it considered the appeal in 2016 and then the statute said what it says now about nonfarm use. 23 That zoning always applies when a farm property is being used for a nonfarm use. That sentence has not been taken 24 out of the statute. And that’s the sentence I think Michael Harvey was considering when he made the decision that Kara 25 Brewer needed a Class B Special Use Permit in the first place, or that the property owner did. The statute did exist. It 26 has been amended to delete the provision that allowed a property owner to rely upon a farm number, which is what 27 Kara Brewer was relying upon, but has added the provision that talks about structures. So, yes, the statute has 28 changed but as she said, related to the Hillsboro Partners case, the doctrine of collateral estoppel will apply even if the 29 subsequent action is based on a different claim. And she thinks that’s the only thing that’s happened here is it’s a 30 different claim. The language is still the same. The building is still the same. The property is still the same. It is still the 31 same intended use. 32 33 Barry Katz said he recalls Kara Brewer voluntarily applying for the Special Use Permit. 34 35 LeAnn Brown said the minutes show that initially the county determined that she had to apply for it. The county then 36 determined that she did not necessarily need to do that. And by the time the hearing took place, Kara Brewer had 37 decided to voluntarily proceed and in the hearing she said she was voluntarily proceeding. Voluntarily or not, she chose 38 that path. And when that didn’t work out, they’ve used different avenues and that’s what collateral estoppel says you 39 can’t do. 40 41 Randy Herman asked LeAnn Brown if she has a case that says that res judicata or collateral estoppel applies when the 42 substantive law has changed between the first proceeding and the second proceeding. 43 44 LeAnn Brown said she does not have a case that talks about a change in statute between the first proceeding and the 45 second proceeding. She said she is happy to hand out the cases she mentioned. She thinks both cases she mentioned 46 are clear that the claims can change but if the facts are still the same, the facts are still the same. We are not allowed in 47 the law to have a proceeding and be unhappy with the results and then find another theory and another theory and 48 another theory she said. There have been four appeals and her party contends that res judicata and collateral estoppel 49 bring an end to this proceeding. 50 9 1 LeAnn Brown said she has other reasons for the board to rule in her party’s favor. In March 2016 there was an 2 application for a building permit and the planning supervisor determined that a building permit was not needed. The 3 Board of Adjustment heard that and remanded it back to Michael Harvey. That was appealed and that appeal is 4 pending. Then the current planning supervisor on remand determined that it was a bona fide farm and the use of the 5 barn for weddings was incidental to the farm use. That was around November 2016. Her party appealed on December 6 1, 2016, and that case was heard on March 17, 2017. There is a pattern of taking a long time for her to get before the 7 Board of Adjustment, LeAnn Brown added. The Board of Adjustment determined that the barn was an events center 8 and reversed the current planning supervisor. That’s on appeal. There was a petition for review for that filed on May 4, 9 2017. There was an NOV (Notice of Violation) that was issued that Southeast Property Group, LLC, has appealed. Her 10 party filed an appeal of the determination that it was a rural special events center, which is one of the things that 11 happened. Those appeals have never been heard. And then we have this appeal. 12 13 LeAnn Brown said her first contention to this board is that because of the doctrines of res judicata and collateral 14 estoppel that this matter is not properly before the board and the board should determine that those doctrines should 15 prohibit Kara Brewer from seeking the opinion that she sought from Michael Harvey. LeAnn Brown plans to talk about 16 why her party believes the current planning supervisor erred and why she thinks he erred in saying that the materials 17 that he had before him were sufficient to comply with the current version of N.C.G.S. §153A-340(b)(2a). The party has a 18 pending application before the court to compel further compliance with the subpoenas this board issued. She said she 19 looked at whether to postpone this hearing because that’s pending and she wanted to preserve her rights to seek 20 additional documents and so that has been filed, but in looking at the documents that the subpoenaed parties chose to 21 produce to the board that are in Exhibit 1, she thinks the evidence is clear that Orange County erred in determining that 22 the owner of the property has an exemption certificate from the North Carolina Department of Revenue. She said she 23 thinks the last time she was before this board, Randy Herman asked her if she thought this board could look behind the 24 Department of Revenue to determine whether the information that department had was adequate to issue the 25 certificate. She does not plan to get there tonight but what Orange County did was look behind the clear language on 26 the face of the certificate and connect dots to say that a certificate issued to some entity other than the owner of the 27 property was in fact a certificate for the owner of the property. The certificate is issued in the name Wild Flora Farm. It is 28 not Wild Flora Farm, LLC. Wild Flora Farm, LLC, did not exist on the date the certificate was issued. 29 30 Karen Barrows noted that LeAnn Brown had spoken for 30 minutes and asked if she could wrap up in the next 10 31 minutes. 32 33 LeAnn Brown said she could wrap up in 10 to 15 minutes and asked that the board give her at least as much time as 34 County Attorney James Bryan and Current Planning Supervisor Michael Harvey took. LeAnn Brown said she is not 35 presenting a lot of evidence but she wants to be sure her party has the proper due process for the board to hear this 36 argument in full. 37 38 LeAnn Brown read the portion of the N.C.G.S. §153A-340(b)(2a) that states that the property owner must hold the 39 qualifying certificate of a farming sales tax exemption. She noted that the sales tax exemption certificate requires an 40 income from farming of $10,000 for the previous tax year or for an average of $10,000 a year over a three-year period. 41 The certificate is dated November 22, 2017. The preceding tax year would be 2016. The profit-and-loss sheet produced 42 identifies the tax year as 2016. That document lists Wild Flora Farm without the LLC and lists Kara Brewer’s name 43 under it. The application included in the documents that were produced in answer to the subpoena has Kara Brewer as 44 the applicant doing business as Wild Flora Farm. What that means is that the person who applied was Kara Brewer and 45 she used the DBA of Wild Flora Farm. There is no evidence that she used the DBA of Wild Flora Farm as an individual 46 but that’s what her application to the Department of Revenue says. So, LeAnn Brown thinks the board should look at 47 that at face value and say the person who applied is Kara Brewer doing business as Wild Flora Farm. The entity that 48 owned the property at the time the application was made was Southeast Property Group, LLC. There is no dispute 49 about that. Wild Flora Farm, LLC, was not created until February 14, 2017. It could not have had income in 2016. The 50 10 tax identification number was not obtained until April 12, 2017. The tax ID number on the documents was partially 1 redacted. It looks similar but the document produced shows that the ID was obtained April 12, 2017. The articles of 2 merger for Wild Flora Farm, LLC, and Southeast Property Group, LLC, were not filed until February 19, 2018, on a plan 3 of merger dated February 14, 2018. Nothing in the evidence suggests that an exemption certificate obtained was 4 obtained in the name of the owner of the property, LeAnn Brown siad. There is an assumed name certificate for 5 Southeast Property Group, LLC, to do business as Wild Flora Farm but it wasn’t recorded until October 12, 2017. Here 6 is how the staff erred. Staff determined that Kara Brewer is a member/manager of the LLC and therefore a certificate in 7 her name is the same as a certificate in the name of the LLC. And then there was the merger and the names are similar 8 so if we sort of connect the dots, it must all be the same thing. LeAnn Brown said we cannot look behind what that 9 certificate says and we likewise cannot do the work for someone who is applying and say well, if you’d done it right, it 10 would say this or this. Kara Brewer is not Southeast Property Group, LLC. The fact that she is a member of it simply 11 means she is a member of it. Just as she would not want her personal liability to be subject to any lawsuit filed against 12 Southeast Property Group, LLC, her as an individual obtaining the certificate of exemption is not adequate to meet the 13 statute. Unless the certificate said Southeast Property Group, LLC, related to income it earned in 2016, it would not be 14 a certificate that meets the requirements of the statute. 15 16 LeAnn Brown said that Michael Harvey noted in his letter from which her party appealed in the thing that is an advisory 17 opinion that changes in the property ownership could subject the property to the Unified Development Ordinance. It was 18 not part of Michael Harvey’s final and binding determination but she thinks it was an interesting point. She would ask 19 the board to find that the request to the county and the grant to the county is precluded by the doctrines of res judicata 20 and collateral estoppel. And on the merits, if the board does not find the evidence that she asks it to find, LeAnn Brown 21 noted the records on the documents do not show that the owner of the property at the time the application was made to 22 the county had a tax exemption certificate. And the county cannot look beyond what the statute requires and allow 23 someone to get a certificate in someone else’s name and apply it. That is not what the statute says you can do. The 24 statute does not say you can get the certificate in your personal name and apply it to your corporate entity. 25 26 Randy Herman requested to ask a question. Karen Barrows said she would ask Andy Petesch to speak first and then 27 give the board time to ask questions. 28 29 Andy Petesch addressed the board on behalf of Kara Brewer and Wild Flora Farm, LLC, which is the successor to 30 Southeast Property Group, LLC. Starting with the res judicata and collateral estoppel argument, LeAnn Brown brought 31 up the issue of Michael Harvey having made a determination. Andy Petesch would submit that it was not an appealable 32 determination at any point. It was never in writing. It was something that was verbally conveyed and as Barry Katz 33 noted and as reflected in the minutes, it was something that Kara Brewer had volunteered to pursue. He submitted 34 copies of an excerpt from the abstract of the Special Use Permit hearing and an excerpt from the approved minutes. He 35 took both from the certified record that went to the Superior Court. He has highlighted some key passages, starting with 36 the abstract case. In staff comments, it is noted that there has been a heightened level of concern that the property 37 meets the requirements to be classified as a farm. On the next page, the second paragraph from the bottom states that 38 when staff first met with the property owner, staff indicated that the project would require a Special Use Permit. That 39 was part of a conversation and not a written determination, which would be required for an appeal. He continued to 40 read from the same paragraph that the property owner informed staff that the property was in farm status but Kara 41 Brewer thought it was prudent to go through the Special Use Permit process. The same paragraph states that the 42 property owner had the ability to have a wedding venue or a retreat on the property as it is recognized as a farm 43 according to state law. That fact has frustrated some residents. Andy Petesch then read from the next page, under the 44 first comment from staff, it states that the farm status is completely separate and irrelevant and has no bearing on the 45 this permit process or on the applicant being allowed to pursue a Special Use Permit proposing the development of the 46 land. Andy Petesch said at the beginning of that hearing, Michael Harvey gave a preface that the board’s purpose that 47 night was not to make a determination on the property’s status as a farm as defined under General Statutes. 48 49 11 Andy Petesch said what these documents plainly show is that these were two separate issues and in fact … Andy 1 Petesch then passed out copies of an email from Orange County Planner Patrick Mallett to Kara Brewer that indicates 2 that there were always two paths: the proposed barn, as a retreat center, could be permitted in that zoning district with 3 the issuance of a Class B Special Use Permit or as a bona fide farm operation as part of the agritourism activity 4 associated with the law. Those were the two possibilities. It was always presented that she could have gone on either 5 path and one did not preclude the other, Andy Petesch said. What the case law does show is that if she were granted a 6 Special Use Permit, then she could not later attack that Special Use Permit by saying she is exempt. But she never 7 accepted that benefit. She was denied that, which left the possibility of pursuing the farm exemption completely open. 8 9 Michael Harvey asked for the exhibit number for the email from Patrick Mallett to Kara Brewer. There was brief sorting 10 out of the exhibit numbers. Andy Petesch answered the abstract would be Exhibit 6, the minutes would be Exhibit 7, 11 and the email would be Exhibit 8. 12 13 Barry Katz said if Kara Brewer had been granted the Special Use Permit, she would have had no reason to say that this 14 is not a county matter but rather a state matter. 15 16 Andy Petesch said that’s interesting that you bring that up because in the case of Marsh v. Union County Board of 17 Adjustment, a gentleman wanted to operate a rodeo and applied for a Special Use Permit, which was granted with nine 18 conditions. One of those conditions was that he could only have four events a year and that he had to open a second 19 access. When his Special Use Permit was revoked for not meeting the conditions, Marsh appealed to Superior Court 20 that his property was exempt and he did not need the Special Use Permit. The court decided to uphold the Board of 21 Adjustment’s decision. Marsh did not appeal the decision of the Superior Court but continued to operate. He was issued 22 another notice of violation. He again argued that he was exempt and the court told Marsh that he had missed his 23 chance to make an appeal. Andy Petesch said that is not what is happening here because Kara Brewer did appeal and 24 the fact that it was dismissed with prejudice adds no special effect under the law. Andy Petesch said the board will not 25 find in the petition the reason that she should be allowed to operate is because she is exempt but is limited only to the 26 Special Use Permit and not statutory exemption and that is why res judicata and collateral estoppel do not apply here. 27 28 Andy Petesch said in the case of Bailey and Associates v. Wilmington County Board of Adjustment, the court 29 referenced, in reference to judicial estoppel where a party was seeking to say an application was submitted recognizing 30 property was in a wetland area and now the applicant is changing it to say not in a wetland area, the court described 31 what the Supreme Court says are three factors useful in determining whether judicial estoppel should be invoked, with 32 only the first being essential in the doctrine’s invocation. First, the party’s subsequent position must be clearly 33 inconsistent with its earlier position. Kara Brewer, consistent with staff, has held the entire time that she can seek the 34 exemption. That she would be exempt once she starts operating a bona fide farm and can do agritourism. At that time, 35 as LeAnn Brown alluded, the agritourism was related to or incidental. Now that’s changed and the General Assembly 36 has clarified that standard. Andy Petesch referred back to the court case that the second factor is whether the party has 37 succeeded in persuading an earlier court to that position so that acceptance of a subsequent position in a later 38 proceeding might pose a threat to judicial integrity. He said that gets at the case LeAnn Brown brought up earlier with 39 respect to a cell tower because the shortened cell tower proposal was not substantially different from the first proposal 40 of a slightly taller cell tower. Andy Petesch said one of the reasons why the exemption was not pursued in the beginning 41 is that the owner had not yet begun any agricultural activities on the property so staff could not have said at that time 42 that the property was exempt. There was no agriculture was going on at that time. In order for Kara Brewer to proceed 43 faster, at that point the Special Use Permit was a more streamlined process. 44 45 Barry Katz said Kara Brewer made an error in how she pursued this and now Andy Petesch is claiming she gets a do-46 over. 47 48 12 Andy Petesch said he would disagree with that characterization of it. There was never an error made. It was indicated 1 to Kara Brewer that she could have pursued either option but one was a faster option. It did not work out but that did not 2 mean that she is precluded from pursuing the other. 3 4 Barry Katz said that the board has heard that it may be, depending on what case law you’re looking at, that she is 5 precluded. And then there is this issue that the board has heard that there is an ownership discontinuity. Would Andy 6 Petesch get to that as well? 7 8 Andy Petesch said he would. He said LeAnn Brown did not present any case that is squared on the facts of this case 9 and he has shown the board several reasons why this case is distinguished from other cases. 10 11 Barry Katz said the board has not had time to look at the cases that either Andy Petesch or LeAnn Brown has 12 presented and has not made any determination at all. 13 14 Andy Petesch said the Board of Adjustment does not have the equitable powers to make such a determination. He 15 believes the power is too broad for this board and the board’s powers are more narrowly prescribed. 16 17 Barry Katz asked if Andy Petesch believes that this would be better decided by Superior Court. 18 19 Andy Petesch answered that he believes LeAnn Brown needs to raise the issue now for it to be considered in Superior 20 Court and he does not believe this board has the authority granted by the state to adjudicate res judicata and collateral 21 estoppel issues. He said he thinks it would be potentially different in a case where you have a very clear Special Use 22 Permit being submitted because that usually is included in the language of the UDO with regards to submitting a 23 substantially similar application but in this case, we’re talking about something very different from that. 24 25 Karen Barrows asked Barry Katz to hold his questions. 26 27 Andy Petesch said to address the merits of the materials that have been submitted with respect to Michael Harvey’s 28 decision, referring to the agenda packet, the application for a qualifying farmer exemption certificate on Page 70, LeAnn 29 Brown tried to indicate that it would be unreasonable for the staff to go behind the Department of Revenue but he would 30 submit that the application clearly references that if the owner is an entity, partnership or LLC, enter the tax ID number 31 on Line 1. Kara Brewer gave the identification number of the LLC and it has been partially redacted but its last three 32 numbers clearly match that of Kara Brewer and Wild Flora Farm. It is the LLC that has made the application and that is 33 further underscored on the profit-and-loss Schedule F, the 1040 form, that again the Wild Flora Farm is the proprietor 34 and the ID number. It also includes a social security number that has been redacted. A single-member LLC Wild Flora 35 Farm, LLC, sole member, also part of plan of merger on Page 74 indicated under paragraph 4 that Kara Brewer was 36 the sole member of Southeast Property Group and Wild Flora Farm. When you have a single member LLC, it is not 37 regarded differently from Kara Brewer herself for tax purposes. From a Department of Revenue standpoint, there is 38 zero difference between Kara Brewer and Wild Flora Farm, LLC, but it is clear that the certificate is issued to Wild Flora 39 Farm, LLC, and not a DBA because the federal tax ID number is listed specifically there connecting it. Whether there 40 was a typo in terms of the pen not listing LLC or whether she put her name on the wrong line, those things are 41 irrelevant or at least it is within Michael Harvey’s power and this board’s power to look at this and make a finding of fact 42 that it was indeed Wild Flora Farm, LLC, that was issued the certificate. While Southeast Property Group, LLC, was the 43 property owner of the time, in October 2017, the merger process had been started and it became effective in February 44 of 2018. The certification of merger was recorded with the Orange County Register of Deeds February 14, 2018. This is 45 a de novo review by this board that Wild Flora Farm is the owner of this property and is also the holder of the qualifying 46 farmer exemption and therefore it meets the statutory standard. As far as it being used for agritourism, Paragraph 2 (a) 47 clearly addresses wedding, meals as being agritourism activities. He requested that this board affirm Michael Harvey’s 48 determination that Wild Flora Farm, LLC, Kara Brewer, The Barn of Chapel Hill, however you want to frame it, meets 49 the statutory requirements and is therefore exempt from the UDO and other zoning regulations of Orange County. 50 13 1 Karen Barrows invited questions from the board. 2 3 Randy Herman said he has a question to ask for both attorneys and invited Andy Petesch to answer first because he 4 was already standing. Randy Herman said it relates to the fact that we have on appeal a decision of the planning staff 5 which you have said was probably not correct at the time because at the time Southeast Property Group, LLC, and Wild 6 Flora Farm, LLC, were not the same entity, but because of the merger, Andy Petesch would now submit is correct 7 because the facts have changed, so is the board supposed to be reviewing the facts as they were presented to Michael 8 Harvey at the time or reviewing the facts as they exist today. 9 10 Andy Petesch answered that with respect to the first part of that and what was the status when SPG still was a record 11 owner of the property, he would submit that this is a brand new statute that has not been interpreted in the courts and 12 so the question about whether single member LLCs with unity of ownership satisfy the statute, that is still an open 13 question. 14 15 Randy Herman said that aside. 16 17 Andy Petesch said to get to the real part of your question, the issue is what was the question presented to Michael 18 Harvey and you assess that same question with the evidence before you. Because if we were just limited to the 19 evidence he had at the time he made the decision, we could have skipped a lot of this. But now you have additional 20 evidence. And Andy Petesch added that shortly after that merger was completed, he submitted a supplement to 21 Michael Harvey so that the current planning supervisor had that information with respect to the ownership of the 22 property by Wild Flora Farm vis-a-vis the merger. 23 24 Randy Herman said to LeAnn Brown let’s assume hypothetically that the certificate was issued to Wild Flora Farm, LLC, 25 at the time that the property was owned by Southeast Property Group, LLC, but since then they have merged and are 26 the same entity. What effect does this have on the appeal if we assume that facts were incorrect at the time but they 27 are correct today? 28 29 LeAnn Brown said that she does not think the Board of Adjustment review power over a staff member is to take an 30 appeal that was filed in 2017, allow someone to do something in 2018 and say, ‘Oh, never mind. We just didn’t get to 31 you before the facts changed.’ We are deciding based on what the facts were when Michael Harvey made the decision 32 in 2017. She also reminded the board that the profit-and-loss document is from 2016 when Wild Flora Farm, LLC, did 33 not exist. So, the argument that it is really Wild Flora Farm, LLC, cannot possibly be correct. It is her position that 34 whatever has happened subsequently, Kara Brewer would have to go back through the process and do this correctly. If 35 Kara Brewer went to the Department of Revenue, applied in the property entity, showed income in that entity’s name for 36 the period that she needed it and brought that back to Orange County, perhaps there would be a different set of facts. 37 But you can’t fix this for her. She didn’t do this right. The county can’t fix it for her and I don’t think the Board of 38 Adjustment can either, LeAnn Brown said. 39 40 Barry Katz said so on September 21, 2017, Kara Brewer filed an application that included the 2016 taxes? 41 42 LeAnn Brown answered it includes a profit-and-loss statement from 2016. 43 44 Barry Katz said and what she has here identifies herself as Kara Brewer with an LLC. But in fact in 2016 she was not 45 that entity. Is that what you are arguing? 46 47 LeAnn Brown said in 2016, Wild Flora Farm, LLC, did not exist. And it wasn’t a DBA for Southeast Property Group, 48 LLC, because that assumed name was not filed until afterward. And no one is arguing that it is because that’s not its tax 49 14 ID number. So, yes, LeAnn Brown said, it’s her contention that it is impossible for an entity that does not exist to earn 1 income the year before it exists. 2 3 Susan Halkiotis said there is not a signature or a date of when this was filed. Usually there is a signature on the 4 Schedule F. 5 6 LeAnn Brown said she is looking at it just as the board is and it was attached to Kara Brewer’s application so she does 7 not know when it was filed. 8 9 Susan Halkiotis asked if it was an amended return. 10 11 Andy Petesch said he does not know the nature of the return. What was requested on the subpoena request was the 12 document submitted to the Department of Revenue with respect to the qualifying farmer exemption. This was part of the 13 exemption application. 14 15 Susan Halkiotis said just because the profit-and-loss statement is for 2016 doesn’t mean that it was filed by April 15, 16 2017. 17 18 Andy Petesch said all he could say is he does not have more information about that but what he would submit is that 19 the Department of Revenue would be able to look and see whether a filing had been made and it was that department’s 20 determination that the filing was compliant. 21 22 Andy Petesch said he would like to respond to the contention that Wild Flora Farm did not exist in 2016 and somehow 23 makes this void. He submitted North Carolina Department of Revenue Directive CD02-1 states that a single-member 24 LLC that is not classified as a corporation is a disregarded entity from its single owner. So, the fact by 2017 when Wild 25 Flora Farm, LLC, did exist and tax returns were filed, and the application was made, there is no distinction between 26 Wild Flora Farm and Kara Brewer from a state or federal tax standpoint. 27 28 Susan Halkiotis said there is a distinction for the application. For the application that was produced for the exemption 29 certificate number, there is clearly a distinction. They are asking for the farm’s income and not Kara Brewer’s income. 30 31 LeAnn Brown said she would like to object to the document, which does not relate to the farm exemption at all. The 32 document that Andy Petesch just handed the board. She wanted to object to the board receiving it, for the record. 33 34 Karen Barrows said so we shan’t. 35 36 Susan Halkiotis said she thinks Andy Petesch has said that the employer ID that ends in 804 is the same on all 37 documents. 38 39 Andy Petesch said that’s correct. 40 41 Barry Katz asked if Kara Brewer had an employer identification number in 2015. 42 43 Andy Petesch answered it was issued in 2017. Andy Petesch said the revenue is listed as farm revenue. Whether it 44 was Kara Brewer at the time, because it’s a disregarded entity, this is a question outside this board’s purview. He 45 believes the question before this board is who was the qualifying farm tax exemption certificate issued to. And the card 46 itself says Kara Brewer and Wild Flora Farm. He believes the documents make clear that the entity that the Department 47 of Revenue issued it to is Wild Flora Farm, LLC, vis-a-vis an employer identification number. 48 49 Barry Katz checked that Andy Petesch did not think that res jurisdicta and collateral estoppel apply. 50 15 1 Andy Petesch agreed that was his argument. 2 3 Randy Herman asked LeAnn Brown if hypothetically the tax exemption was clearly issued to Wild Flora Farm, LLC, and 4 it read that way and then LeAnn Brown was able to show the board that Wild Flora Farm, LLC, did not actually have 5 any income to qualify for the certificate, in that case does LeAnn Brown believe that under the statute this board could 6 disregard the certificate? 7 8 LeAnn Brown answered that is an interesting question with this brand new statute and she should note James Bryan’s 9 observation earlier was a good one that the statute, inartfully written as it is, appears to give the county the ability to 10 look at things. Otherwise, who is making the determination whether or not it is a farm activity if not the county? LeAnn 11 Brown does think the board is allowed to look at what the statutes say and the statute says the certificate has to be 12 issued to the owner of the property. We know it wasn’t. When Michael Harvey made his decision, it was not yet merged. 13 The board is also to look at 105 and 105 states that a qualifying farmer has income from farming operations for the 14 preceding tax year of $10,000 or more. And we know the entity didn’t exist. She thinks the board can look at that. If the 15 board gives the Department of Revenue the benefit of the doubt, whether or not Kara Brewer amended her return, it is 16 impossible for Wild Flora Farm, LLC, to earn income in a year in which it did not exist. She thinks that is not the entity to 17 whom the Department of Revenue issued the certificate and that is why it is written the way it is, because that entity did 18 not exist in 2016 to have generated income. In answer to the deeper question Randy Herman is asking whether the 19 board can look at whether the Department of Revenue erred in issuing a certificate, she said she does not know that 20 she knows the answer to that but the Board of Adjustment has pretty broad power to enforce the UDO. But in this case, 21 she doesn’t think the board has to worry about it because the board knows that the entity did not have income in 2016 22 so the board knows that the Department of Revenue did not issue the entity a certificate. It must be to Kara Brewer 23 individually, DBA Wild Flora Farm. 24 25 Barry Katz said starting with this process in 2015, the board was under the impression that this was a qualified farm 26 because there were forests on it and whatnot. The whole time there was the impression that this was a qualified farm, 27 but is obtaining the exemption certificate what documents it as a qualified farm? 28 29 LeAnn Brown answered no, the statute still contains the factors it had before with the exception of one of the factors 30 she relied on earlier which was the farm number. One of the positive changes in the statute, from LeAnn Brown’s 31 perspective, is that it removed the requirement of the farm number. The other factors are still there. The forestry plan is 32 still there, although you have in your evidence that the forest isn’t still there. This is a separate thing. This is something 33 that bootstraps a building on very special facts. 34 35 Susan Halkiotis said she would like to point out, especially for Randy Herman’s benefit, that beginning in 2015, the 36 board had questions all along about the determination that we were starting with a farm and this was an agritourism 37 activity. So, in fact tonight’s meeting probably is no different in character from our first meeting in 2015 in that so much 38 circuitous information was presented at the time. Susan Halkiotis acknowledged that Andy Petesch was not present at 39 that time, but even going back nearly three years ago, this board had a lot of questions and skepticism about what was 40 being presented to qualify this property as a farm. And so, how that relates to tonight is that this is déjà vu. 41 42 Barry Katz said he can recall Kara Brewer’s testimony as she characterized the farming activities at the public hearing 43 for the Special Use Permit. She had two young children who were in grade school. She would pick them up after school 44 and take them out there to transplant seedlings. That was her farm. She had these beds of flowers and she was going 45 to transplant flowers. And then came the chestnut trees when she got advice that she needed to have something that 46 looked like a farm. The chestnut trees and the bees and all that came later. 47 48 James Bryan asked to speak. He said he would like to clarify whether the board can consider new evidence. James 49 Bryan said it is clear that the board can. He referred to a handout he has given the board from the School of 50 16 Government that says in other cases the board may need to consider additional evidence to make a decision. He said 1 it’s important to remember that a board review of the board’s decision is different from Michael Harvey’s review of his 2 decision. It’s a review of his determination so it’s just a fact of whether something is or is not. Michael Harvey 3 determined that it is certified as something. Whether he had any rationale or reasoning is meaningless. He could have 4 written only that this was his final and binding determination that X. The board, however, is held to a different standard. 5 The board has to have findings of fact and conclusions for it. What’s before this board is everything that is competent, 6 material, substantial evidence. 7 8 James Bryan said regarding res judicata and collateral estoppel, there are two things to consider. One is if the board is 9 truly concerned and not persuaded by his advice, the board can continue the hearing and tell the attorneys to brief this 10 for the board. They mentioned a lot of cases and didn’t provide the cases. The board can continue this if it wants to do 11 so but James Bryan said this is a new matter; 2(a) did not exist. There are issues that have been decided. There is a 12 previous order with a finding of fact that this is a bona fide farm. So, the board cannot come back and say it’s not. But 13 that is irrelevant to this discussion. All that is relevant to the discussion is the rule. Who owns the property? Do they 14 hold a tax exemption certificate from the Department of Revenue? And is the structure used for agritourism? That’s all 15 that matters. 16 17 James Bryan said regarding this new law, one other case has gone up to the Court of Appeals, Jeffries v. Harnett 18 County. They had sort of the mirror image of this. That one was a gun range and the board had to look at it. The statute 19 mentions weddings but doesn’t mention hunting. The court decided that most hunting is not agritourism but went on to 20 say that the property owner could go on to apply for a Conditional Use Permit. James Bryan said it is not exactly on 21 point, the property owner went for the agritourism exemption first instead of the Conditional Use Permit. But the court is 22 saying, ‘You didn’t get this one. You are free to go for another permit.’ 23 24 Randy Herman asked James Bryan, regarding the issue of looking behind the certificate, if the board thinks a certificate 25 was supposed to be issued for Wild Flora Farm, LLC, and the board thinks that Wild Flora Farm, LLC, didn’t have 26 income sufficient to gain the certificate and therefore the issuance of the certificate was wrong, can we look behind it or 27 do we have to say, ‘No, the certificate was issued and that’s the end of it.”? 28 29 James Bryan answered the board is held to the exact words of the statute and to their plain meaning. What the statute 30 says is the holder of the certificate – not someone who has the attributes of someone who would qualify. He said it’s not 31 shown in the photocopy very well but the letter from the Department of Revenue, there’s an actual card for it. He said 32 he thinks it would be an absurd reading to say it is somebody who literally holds the card so you could pass it around 33 the table. But he thinks it says that. If you want to read something into it, there has to be some reason. There has to be 34 some statutory construction that you say, ‘Oh, this is probably what they meant.’ And he does not think the board has 35 heard anything about that. He doesn’t think it’s ambiguous. He thinks the plain meaning is intended. If it’s ambiguous, 36 you have to resolve it with statutory construction and if there is any ambiguity left, you have to resolve it in favor of the 37 property owner for the free use of land. The courts have been very clear for a long time. It is very settled that anything 38 done through the zoning, Chapter 153 A, Article 18 is a derogation of property rights and has to be narrowly construed 39 in favor of the property owner. So, if there’s a question, that’s where the tie to the runner goes. One side has to win and 40 it’s the free use of property. 41 42 Barry Katz asked for clarification that the board does not get to consider res judicata and collateral estoppel. 43 44 James Bryan answered res judicata would be if this was before the board again. So, if someone applies for a kennel 45 and the board denies a kennel and then the same person comes for a kennel that would be res judicata. He does not 46 see how it applies in this matter – 2(a) did not exist. 47 48 Barry Katz said James Bryan mentioned that if it’s like a tie, the privilege goes to the property owner. But the board’s 49 issue here is whether there is any real continuity. Isn’t that so? 50 17 1 James Bryan said the Board of Adjustment needs to show where in the General Statutes it states that there has to be 2 continuity. 3 4 Barry Katz said to James Bryan that Bryan had just said that the statute doesn’t mean that you can just have this card 5 and pass around this card. If Kara Brewer was the one that actually owned this property and the LLC was formed 6 sometime after, and it’s not clear that Kara Brewer is or was at that time the LLC, then how can the board give any 7 advantage to a property owner? 8 9 James Bryan said he thinks what Barry Katz is implying is that the Department of Revenue made a mistake. That the 10 certificate on its face when it says Wild Flora Farm doesn’t mean Wild Flora Farm or shouldn’t have stated Wild Flora 11 Farm. That it was either a clerical error or a mistake on their part or maybe fraud was committed on them. Whatever it 12 is, James Bryan doesn’t think the statute clearly indicates that the board can consider that. He thinks the board has to 13 read the statute as: ‘A person who holds a qualifying farmer sales tax exemption certificate from the Department of 14 Revenue.’ 15 16 Barry Katz checked that the board is also to consider whether Michael Harvey erred. 17 18 James Bryan answered no, but rather the determination was right or wrong. 19 20 Barry Katz asked whether the board is to make any judgment on whether the determination was right or wrong. 21 22 James Bryan answered yes, the board is to determine whether the structure located on the property is classified as a 23 bona fide farm purpose under the new section of statute. 24 25 Karen Barrows asked if it was time to close the public hearing. 26 27 LeAnn Brown said that she was not sure she had requested that Exhibits 3, 4 and 5 (the petition, the writ, and the 28 dismissal) be moved into evidence. 29 30 MOTION by Randy Herman to move those exhibits into evidence. Barry Katz seconded. 31 VOTE: UNANIMOUS 32 33 LeAnn Brown said she needed to put an objection in the record, in case this case goes elsewhere, to the last bit of 34 information and argument that the board received from James Bryan. The information included in evidence indicates 35 that the county attorney’s office advised Michael Harvey as to the opinion the board is now reviewing and when the 36 county attorney’s office starts making argument with regard to the case, it’s a violation of her clients’ due process rights 37 and potentially Andy Petesch’s. 38 39 Andy Petesch requested that the board make a motion to accept all the documents he handed up into evidence. There 40 were Exhibits 6-8 and a 9 that LeAnn Brown had objected to. Andy Petesch said he did not see any reason to not enter 41 it into evidence as well. 42 43 MOTION by Barry Katz to move those exhibits into evidence. Susan Halkiotis seconded. 44 VOTE: UNANIMOUS 45 46 Susan Halkiotis asked James Bryan, regarding facts, on the slide James Bryan had put up earlier, there were three 47 requirements for facts: competent, material, substantial. In order for evidence to be competent, James Bryan had 48 indicated that it needed to be trustworthy. If members of this board were to find any of this evidence not to be 49 trustworthy based on our own questions about, for instance, how that certificate was obtained, or the name on the 50 18 certificate, etc., etc., can we do that? Can we question the trustworthiness of the evidence and therefore the 1 competence of the evidence? 2 3 James Bryan said that is nuanced. The trustworthiness speaks to a piece of evidence for what it is proffered to be. For 4 instance, if you were to have an affidavit from somebody and you don’t know whether that’s their true statement, 5 whether it’s notarized and things like that speak to the trustworthiness of the affidavit. The actual substance of it, that’s 6 not the competency that they’re talking about with the rules of evidence. For instance, if you were to have a case that 7 dealt with traffic, if you had an engineer’s sealed report that it would increase traffic tenfold, then you would have a 8 competency issue with the trustworthiness of it if he wasn’t an engineer. If he gave the same report and you just didn’t 9 believe him, saying that he was only out there one day and it was a Saturday, not a Monday, that’s a very poor report 10 and I just can’t trust your conclusions, that’s different. That goes to whether there is substantial evidence of something 11 being there. 12 13 Susan Halkiotis said then she has questions about the substantial qualifications for this evidence, I guess. 14 15 Karen Barrows said I think we can still close the public hearing and still speak with James Bryan. She asked if that is 16 correct. 17 18 James Bryan answered that she was correct. 19 20 Karen Barrows called for a motion to close the public hearing. 21 22 MOTION by Randy Herman to close the public hearing. Barry Katz seconded. 23 VOTE: UNANIMOUS 24 25 Randy Herman said not having been here for any of the previous iterations of this case, as James Bryan stated there 26 are only three issues that the board has to determine: whether a tax certificate was issued, whether the person who 27 owned the property was the holder of the certificate, and whether the structure is used for agritourism. There is a pretty 28 clear definition of agritourism in the statute. And he does not think that anyone is seriously contending that it does not 29 meet that definition and no one is really questioning whether the tax certificate was issued so really the only question 30 that remains is whether the person who owns the property is the same person who holds the certificate. And then the 31 board has to look at specifically what does the certificate say and what does the application for the certificate say. And 32 it’s interesting because it is pretty clear that if you just look at the certificate it does not say LLC, it just says Wild Flora 33 Farm, which is not necessarily the same thing. But if you go back and look at the application that was submitted, it 34 clearly shows a federal employer identification number, that it is an LLC is clearly checked, but on the other hand if you 35 look under No. 3, it says the applicant’s legal name is Kara Brewer. It doesn’t say Wild Flora Farm, LLC. So, the 36 application kind of goes both ways and it isn’t clear from the application who actually is applying. And there’s evidence 37 that could support either conclusion in there, so he doesn’t know. 38 39 Barry Katz asked Randy Herman to reiterate the three items for consideration, which he did. 40 41 Barry Katz said there has been argument that the entity in 2016 was not the same entity as what’s on the document in 42 2017. That’s a problem. 43 44 Randy Herman said there are two different ways you can look at that. You can say the certificate was issued in error 45 and shouldn’t have been issued because maybe the information provided on the return was inaccurate or was 46 fraudulent or something and he doesn’t think the board can consider that kind of argument because once the certificate 47 is issued, the board has to take it at face value. But, he does think it goes toward the question of who was the intended 48 holder of the certificate; was it Kara Brewer or was it the LLC. And if the fact is that the LLC did not have any income for 49 19 the period for which the certificate was issued, then he thinks that it tends to support the conclusion that the Department 1 of Revenue did not intend to issue the certificate to the LLC but to Kara Brewer personally. 2 3 Barry Katz asked what would the consequence of that be. 4 5 Randy Herman said if the certificate was issued Kara Brewer and she is the holder of the certificate, she is not the 6 property owner and so in that case the building would not qualify under the statute. So, really the question is: Who is 7 the holder of the certificate, which was issued in two different names and one of which was maybe supposed to say 8 LLC but doesn’t say LLC and based on the application which has two names, one of which is the name of the LLC 9 without the LLC written? The board is trying to guess at what the Department of Revenue intended when it issued this. 10 11 Barry Katz said I don’t think the department thought that much about it. 12 13 Randy Herman said that’s part of the problem. And if you look at the certificate, I think it is pretty clear that all the 14 Department of Revenue did was copy what was written on the application. 15 16 Barry Katz said it seems that Kara Brewer was the owner and the LLC was formed later. 17 18 Randy Herman said Southeast Property Group, LLC, was the owner of the property at the time. It has since merged. 19 So, if the board is taking the facts as of today, the LLCs are the same thing but Kara Brewer as an individual is not. It 20 clearly indicates on the application that it is for an LLC but the name under applicant is not an LLC. 21 22 Barry Katz asked Randy Herman for his opinion on when the LLCs existed. 23 24 Randy Herman answered Southeast Property Group, LLC, existed earlier and Wild Flora Farm, LLC, was created in 25 early 2017. So, it existed at the time that the certificate was filed but maybe didn’t have the income. 26 27 Barry Katz asked Randy Herman that it is his opinion that this is the only thing to consider and not the arguments that 28 were made considering res judicata and collateral estoppel but he does not think they are correct because the issue 29 before the board is different from what was presented in the earlier case. 30 31 Barry Katz said one of the arguments before the board is that the board has made decisions in the past on this case 32 and the property owner hasn’t appealed those decisions in a timely manner. That should have ended it. 33 34 Randy Herman said the decision that was made earlier was that the property did not qualify for a Special Use Permit. 35 And they are not arguing now that they do qualify for a Special Use Permit. They are arguing that they don’t need a 36 Special Use Permit because they are exempt from zoning. 37 38 Barry Katz said we have heard this over and over again. 39 40 Randy Herman said that the board has been told, although he hasn’t looked through the documents to verify, that the 41 Board of Adjustment at some point earlier made the determination that there was bona fide farm use on the property. 42 43 Barry Katz said he does not think the board did. 44 45 Susan Halkiotis said if the board did, it was only with opposition because this has always been the point of contention 46 with this property. 47 48 Karen Barrows said she wasn’t sure the board was contesting that farm activities were going on but … 49 50 20 Susan Halkiotis said they were added later. 1 2 Karen Barrows said right, they were incidental to the barn. 3 4 Randy Herman said the question has to be at the time that Michael Harvey reviewed whether the property was exempt 5 from zoning, was the property exempt from zoning based on the laws that existed at that time. 6 7 Susan Halkiotis said the question tonight is with regard to Michael Harvey’s determination in October 2017. 8 9 Randy Herman agreed. 10 11 Susan Halkiotis said her feeling about this is Michael Harvey made a determination based on evidence that was 12 presented to him which in his role with the Planning Department he can’t question. He was looking at a certificate and 13 the new statute and he made a determination. But the appeal is based on these questions about what was presented, 14 about the validity of the certificate to begin with. If the three questions are that the board has to find positively for the 15 questions of agritourism, who owns the property, and is the owner of the property actually who the certificate is issued 16 to, she can’t say that for sure. She can’t vote or affirm in any way that those last two items are true. She can’t say that 17 the person who owns the property is the same entity to whom the certificate was issued because of the questions that 18 have been raised. So, she wouldn’t be able to find positively for all three of those questions. She is open to someone 19 arguing a different point with her. 20 21 Barry Katz agreed with Susan Halkiotis. 22 23 Karen Barrows said she thinks she is persuaded to agree with Susan Halkiotis. She had thought at the outset that this 24 was going to be clear and easy but of course it isn’t. It is ambiguous. 25 26 Barry Katz asked for someone to succinctly define the ambiguity. 27 28 Randy Herman said the ambiguity is that in order to support the determination of staff, the board would have to find that 29 the owner of the property was also the holder of the certificate. And the way that the name is reported on the certificate 30 and the way the name is reported on the application, it is not clear that the person who holds the certificate is the same 31 person who is the owner of the property. 32 33 Susan Halkiotis asked James Bryan whether the board has to make three motions, noting that on James Bryan’s slide, 34 there were motions regarding the findings of fact, conclusions, and affirming/reversing/modifying staff determination. 35 36 James Bryan recommended that the board make three separate motions. 37 38 Randy Herman said the board can make each of the findings of fact motions separately. 39 40 Susan Halkiotis checked with James Bryan that the question still comes under the substantial qualification because she 41 is figuring out how to word the findings of fact. 42 43 Randy Herman said he doesn’t think it does. He does not think that there is any question of whether the certificate is 44 valid. He does not think there is question of whether the certificate is substantial. It is what it is. But it concerns him still 45 a little bit because he thinks all the other indicators on the application indicate that it was supposed to be an application 46 for an LLC and the wrong name was put in on Line 3 and if Kara Brewer had put the name of the LLC on Line 3 then 47 there would be no question. So, basically the board is saying that she does not qualify because she made a small error 48 in her paperwork. That may be the right decision but it is concerning to him to look at it that way, he said. 49 50 21 Barry Katz said isn’t there an issue that if the LLC didn’t exist in 2016 and they have to file a financial statement for 1 2016 that the statement is not pertinent to the LLC. 2 3 Randy Herman said maybe it is and maybe it isn’t but he is not sure that it’s a determination that the board can make. 4 Even if the application was based on a totally fraudulent tax return and the parties could appear before us and prove 5 without a doubt that it was a fraudulent tax return, he thinks if the certificate was issued the board has to rely on that 6 because that’s what the statute says. So, he doesn’t think the board can say the certificate should not have been 7 issued. The only question is who was the certificate issued to and is that the same entity as the party who owns the 8 property. 9 10 Susan Halkiotis asked how the first motion should be worded. 11 12 Randy Herman suggested starting with the ones that are not controversial. 13 14 Karen Barrows suggested starting with the finding that the structure is used for agritourism. 15 16 MOTION by Randy Herman to find as fact that the property is being used for agritourism as that term is defined in the 17 statute. There was no second. 18 19 James Bryan said that is more of a conclusion. He suggested a template that includes citing the evidence or what was 20 presented. 21 22 Randy Herman said neither parties have disputed that weddings are taking place on the property. Prior minutes could 23 be relied upon. 24 25 James Bryan said pages 26 to 41 of the agenda abstract were entered into evidence. 26 27 Randy Herman said he would include pages 19-22 also, which includes the building permit. 28 29 Barry Katz said he does not think that the board has ever challenged the farm plan summary but like a business plan, 30 what actually happens is very different from what a business plan says. 31 32 Barry Katz said he would not accept this as a fact at all. It is not a fact. It is hypothetical. He said he has done too many 33 business plans to believe one. 34 35 James Bryan said this is a very good point of what is substantial evidence. The board can refer to the minutes of the 36 prior hearings, which was entered as an exhibit. He said the board does not have to be very specific. 37 38 Barry Katz said the proposal was made last year and he doesn’t remember anyone challenging it but the farm plan 39 wasn’t the focus. He noted that originally Kara Brewer said she was going to plant flowers with her children. And then 40 she moved on to this because she got better advice. 41 42 Susan Halkiotis said she agrees with Barry Katz. 43 44 Andy Petesch and LeAnn Brown conferred with James Bryan. 45 46 Karen Barrows said that the board would like to continue to make motions. 47 48 James Bryan said the attorneys had been working out how to make it easier for the board to make a motion and the 49 board could reopen the public hearing to hear evidence if that would help. 50 22 1 MOTION by Randy Herman to find as a matter of fact that the evidence presented on pages 19-22 and pages 26-41 and 2 also the evidence presented in the minutes contained in Exhibit 3 the board finds the property is being used for 3 agritourism as the term is defined in the statute. There was no second. 4 5 Barry Katz said he does not believe the farm plan summary, adding that it’s an aspirational document and not a 6 substantive document. 7 8 Randy Herman said the board has 100 pages of minutes concerning the activities that were taking place on the 9 property and the statute defines agritourism to include weddings so he doesn’t think there is any question that weddings 10 are taking place on the property. 11 12 Barry Katz said fine, weddings are taking place on the property. 13 14 Susan Halkiotis asked Randy Herman to amend the motion to not include the farm plan summary. 15 Barry Katz said he would prefer to just say Kara Brewer is holding weddings there. 16 17 Randy Herman said the board has to point to a specific piece of evidence that supports that finding and that would be 18 the previous minutes. 19 20 Karen Barrows suggested only using pages 19-22 as evidence. 21 22 Barry Katz said that would be fine. 23 24 Randy Herman said a building permit is also aspirational and not what is actually taking place. 25 26 Barry Katz agreed and said he would be fine with including pages 19-25. 27 28 Susan Halkiotis suggested the evidence include the minutes of previous meetings where it was not contested that 29 weddings are taking place on the property rather than the building permit and the plans. 30 31 MOTION by Randy Herman to find that based on the evidence previously presented in the minutes from the October 10, 32 2016, and October 24, 2016, meetings, which the board has accepted into evidence as Exhibit 3, that there is 33 agritourism activity taking place on the property as that term is defined in the statute. Barry Katz seconded. 34 DISCUSSION: Susan Halkiotis said she would vote for it but strictly on the wording, ‘agritourism as defined by the new 35 statute.’ Barry Katz added that in the board hearings the board heard testimony but the board never accepted that this 36 was a real agricultural entity that used agritourism as a way to supplement the income of a farmer. What we were 37 experiencing was an attempt to have an events center placed in an agricultural environment where the events center 38 was a business entity and it was not in fact adjunct or supplemental to an agricultural entity, Barry Katz said. Rather, it 39 was the primary purpose if not the sole purpose of citing it where it was. 40 VOTE: UNANIMOUS 41 42 MOTION by Randy Herman to find as a matter of fact that based on the deed which was included on pages 78-80 of the 43 documents and also the Articles of Merger on pages 85-86 the property is currently owned by Wild Flora Farm, LLC. 44 DISCUSSION: Susan Halkiotis said she was thinking about it. Barry Katz asked for Randy Herman to be clearer because 45 Southeast Property Group, LLC, was the purchaser. Randy Herman said the purchaser was Southeast Property Group, 46 LLC, and then Southeast Property Group, LLC, merged with Wild Flora Farm, LLC, with Wild Flora Farm, LLC, being 47 the surviving entity. So, as of today, the owner of the property is Wild Flora Farm, LLC. Susan Halkiotis noted that was 48 as of February 14, 2018. Randy Herman agreed. 49 SECONDED by Susan Halkiotis. 50 23 VOTE: UNANIMOUS 1 2 Barry Katz said he does not know how to phrase the next finding of fact, which is the most consequential. 3 4 James Bryan said if this were to be appealed to Superior Court, the court is going to look at it and the board has to tell 5 the court very explicitly here why the board decided one way or the other. The board needs to point to documents that 6 persuaded them to decide. The court will look at that and review whether that was arbitrary or capricious. 7 8 Susan Halkiotis asked Randy Herman to make the motion. 9 10 MOTION by Randy Herman moved to find as a matter of fact, based on evidence presented in the qualifying farmer 11 exemption certificate on Page 13 and also the application for that certificate which is found on pages 71-73, that Wild 12 Flora Farm, LLC, is not the holder for a qualifying farmer exemption certificate issued by the Department of Revenue. 13 Barry Katz seconded. 14 VOTE: UNANIMOUS 15 16 MOTION by Randy Herman moved to conclude as a matter of law that the structure located on the property is being used 17 for agritourism purposes as that term is defined in the statute. Susan Halkiotis seconded. 18 DISCUSSION: Barry Katz said there is an issue of continuity -- if it is being used for agritourism purposes, then the entity 19 that is running it is not the same entity that does not have the tax certificate. Randy Herman said that’s a separate 20 conclusion. 21 VOTE: UNANIMOUS 22 23 Karen Barrows said the next conclusion is with regards to who owns the property. Susan Halkiotis said she still doesn’t 24 know who owns the property. Randy Herman said the board made a finding of fact that Wild Flora Farm, LLC, owns the 25 property so he does not mind making that motion. Barry Katz said the board can agree to that. 26 27 MOTION by Randy Herman moved to conclude as a matter of law that the property is owned by Wild Flora Farm, LLC. 28 Barry Katz seconded. 29 VOTE: UNANIMOUS 30 31 Susan Halkiotis reminded the board that the last conclusion is with regards to whether the property owner holds the 32 certificate. 33 34 MOTION by Randy Herman to conclude as a matter of law that the owner of the property, Wild Flora Farm, LLC, is not a 35 holder of a qualifying farmer exemption certificate issued by the Department of Revenue. Susan Halkiotis seconded. 36 VOTE: UNANIMOUS 37 38 Susan Halkiotis asked to make a fourth conclusion that the property did not meet the statutory requirements for the 39 issuance of the decision made on October 13, 2017. 40 41 MOTION by Randy Herman to reverse the final and binding determination of staff as set forth in the letter dated October 42 13, 2017, that the property is a bona find farm purpose as set forth in the statutes. Barry Katz seconded. 43 DISCUSSION: Karen Barrows clarified with Randy Herman that the motion is that it’s not a bona fide farm or that the 44 exemption certificate was the issue. Randy Herman said he was saying that the exemption certificate was presented to 45 support the conclusion that it was a bona fide farm and because the property owner is not the same as the holder of the 46 certificate, that certificate cannot support that conclusion. 47 VOTE: UNANIMOUS 48 49 24 Barry Katz said it is still not clear to him whether there is any relevance to the argument related to res judicata and 1 collateral estoppel. Can the board make a motion to keep that issue open to be discussed at some later date at some 2 other venue. 3 4 Randy Herman said if the board has already determined that the determination of staff was in error, then that argument 5 is moot. Barry Katz said OK. 6 78 AGENDA ITEM 7: ADJOURNMENT 9 10 MOTION by Barry Katz to adjourn at 10 p.m. Susan Halkiotis seconded. 11 VOTE: UNANIMOUS 12 13 _________________________________________ 14 NAME OF CHAIR, CHAIR 15 25 ORANGE COUNTY BOARD OF ADJUSTMENT PUBLIC HEARING AGENDA ITEM ABSTRACT CASE A-5-18 Meeting Date: November 12, 2018 Agenda Item No. A-5-18 SUBJECT: CASE A-5-18: Class B Special Use Permit Proposing Expansion of an Existing Camp/Retreat Facility Called “Camp Chestnut Ridge.” DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes ATTACHMENTS: INFORMATION CONTACT: 1. Site Assessment; 2. Application Package; 3. NIM and BOA Notification Materials; 4. Staff Comments; 5. Special Use Permit Findings of Fact; and 6. Existing and Previous Special Use Permits. Patrick R. Mallett, Planner II (919) 245-2577 Michael D. Harvey, Planner III (919) 245-2597 Craig Benedict, Director (919) 245-2575 UNDER SEPARATE COVER A. Site Plan PURPOSE: To hold a quasi-judicial public hearing, receive sworn testimony and evidence, and take action on a Class B Special Use Permit (hereafter ‘SUP’) application proposing the expansion/modification of an existing Camp/Retreat Center in accordance with the provisions of: • 2.7 Special Uses; • 5.2.2 Table of Permitted Uses; • 5.3.2 Application of Use Standards – Special Uses; and • 5.7.5 Standards for Recreational Facilities: Camp Retreat Center. of the Unified Development Ordinance (hereafter ‘UDO’). BACKGROUND: The basic facts concerning the current application are as follows: Owner/Applicant/Operator: NC United Methodist Camp & Retreat Ministries, Inc. Camp Chestnut Ridge 7000 Waterfield Place Garner, NC 27529 Consultants(s): Charlie Yokley, AICP 2905 Meridian Parkway Durham. NC 27713 26 Location: Along Camp Chestnut Ridge Road, west side Chestnut Ridge Church Road, and east of Mt. Willing Road. The primary physical address is 1058 Equestrian Center Drive (an internal named access driveway off of Camp Chestnut Ridge Road). Please refer to Attachment 1 for a map and site assessment of the subject parcel. Parcel Information: a. PIN: 9843-22-1289; 9843-13-7930; 9843-05-5036; 9833-93- 5222; and 9842-49-7233. b. Size of parcels: +/-376 acres. c. Zoning of parcels: Agricultural Residential (AR); Upper Eno Protected; and Cane Creek Protected Watersheds. d. Township: Cheeks. e. Future Land Use Map Designation: Rural Residential and Resource Protection Area. f. Growth Management System Designation: Rural Designated. g. Existing Conditions/Physical Features: Previously developed as a Camp Retreat Center consisting of multiple structures and activity areas supporting the camp. The site(s) are primarily forested with areas maintained as open fields, including several horse pastures on the southern side of the project area. Topography across the properties composing the project are generally has less than 15% slopes, and in a few places approaches 30% slopes with naturally occurring steep topography in proximity to riparian corridors sloping toward the centerline of streams. There are no steep slopes caused by human alteration. The overall site contains: 17 intermittent and perennial stream features; 38 jurisdictional wetland features; and 3 jurisdictional open water features (i.e. ponds). Forested areas are dominated by mature hardwood tree species, including southern red oak (Quercus rubra), white oak (Quercus alba), red maple (Acer rubrum), tulip poplar (Liriodendron tulipifera) and dogwood species (Cornus sp.). Approximately 60 acres are encompassed by County enforced riparian buffers along tributaries to Seven Mile Creek. Many of these buffers are protected against development by a previously established Conservation Easement held by the NC Division of Mitigation Services. Development is prohibited within these easement areas. h. Roads: Public access for proposed expansion would be via the existing camp entrance at Camp Chestnut Ridge Road at the intersection with Chestnut Ridge Church Road. i. Water and Sewer Service: The property is not located within a primary utility service area. Any development on the property would be served via existing and/or new private septic and well 27 systems. Note, the applicant has submitted further details regarding the existing Low Pressure septic system that serves the Dining Hall and other buildings and individual systems for building such as the camp cabins. Surrounding Land Uses: a. NORTH: Single-family residences, farms and undeveloped properties zoned AR. b. SOUTH: Single-family residences, farms and undeveloped properties zoned AR. c. EAST : Single-family residences and undeveloped properties zoned AR. d. WEST: Single-family residences and undeveloped properties zoned AR. Proposal: As detailed within Attachment 2, the applicant proposes to expand an existing Camp Retreat facility originally developed in 1959. This existing facility currently operates under previously approved Class B Special Use Permits issued by the Board of Adjustment on February 8, 1993 (for expansion of buildings and the Dining Hall Facility), and May 12, 2003 (for the development of an animal rehabilitation facilities) and a de facto SUP granted when the Cheeks Township was originally zoned on October 1, 1984. A copy of the previous SUPs are contained within Attachment 6. The expansion seeks to renovate, improve or expand 26 existing buildings, cabins and/or facility areas; and develop 10 additional facilities for camp, recreation a retreat activities. The request would also expand the camp capacity to for campers and pastoral retreat visitors from 200 to 350 campers/visitors per week. ORDINANCE REQUIREMENTS: A “Retreat Center” is defined within Article 10 Definitions of the UDO as: “A new or existing facility operated by a corporation or association of persons or churches for social and recreational purposes. A Retreat Center may be owned by a profit or not-for-profit Corporation.” A “Camp” is defined within Article 10 Definitions of the UDO as: “A recreation use which may include locations for tents, cabins, or other recreational sleeping structures, but would not include mobile homes. A camp may be owned by a profit or not-for profit corporation.” Section 5.2.1 Table of Permitted Uses of the UDO combines Camp and Retreat centers into the same land use category, which is a permitted use of property within the AR general use zoning district subject to the issuance of a SUP. Standards governing the development of a Camp/Retreat facility, as detailed in Section 5.7.5 of the UDO, are as follows: Standards for Class B Special Use Permit: (1) Submittal Requirements In addition to the information required by Section 2.7, the following shall be submitted as part of the application: 28 (a) A site plan prepared in accordance with Section 2.5, also showing the following (existing or proposed): (i) Buildings, (ii) Campsites, (iii) Storage areas, (iv) Fencing and gates, (iv) Outdoor recreation areas, and (v) Access road(s) to the site, as well as on site roads, with an indication of type of proposed surface. STAFF COMMENTS: A Site Plan has been submitted with this request providing required details. Please note, this is the required site plan denoting compliance with the UDO as it relates to the issuance of the SUP. A final site plan shall be required for review and approval by the County prior to the commencement of earth disturbing activities as required in Section 2.5: Site Plan Review of the UDO. The applicant has also included a detailed narrative within Attachment 2 providing additional information on the nature of the operations and activities envisioned for the property. (b) A description of the type of facility planned, the size, capacity, and use of proposed buildings; a signed statement from the owners or operators that there shall be no activity allowed that will have adverse effects on adjacent property. The statement shall also include a complete list of all recreational activities that will take place on the site. STAFF COMMENT: Provided within Attachment 2 as well as on the submitted site plan. (c) A P hasing Plan, when necessary, indicating the area to be developed in each phase with time periods for construction of each phase. This may be indicated on the site plan. STAFF COMMENT: The applicant proposes 3 phases for the development. The required information is provided on the site plan (Sheet C-6) with additional details contained within Attachment 2. (2) Standards of Evaluation (a) Unless public sewer is proposed to be extended, the adequacy for the method of sewage disposal will be determined by the lot size and oil suitability. Appropriate letters from the Orange County Environmental Health Department, local jurisdictions and/or the State Division of Environmental Management s hall be submitted to indicate preliminary approval. STAFF COMMENT: Required information is provided within Attachment 2. Note, the applicant intends to modify, expand or install new private systems to support the proposed new development. (b) The site plan shall show the distances to the nearest residential structures. STAFF COMMENT: Please refer to the attached site plan (C-1 and C-2). 29 (c) The landscape plan shall show how the facilities will be screened from the adjacent properties. STAFF COMMENT: Existing and planned facilities are several hundred feet from adjacent properties. A 100 foot wide building setback and buffer will be provided along the perimeter of the camps. Existing trees will be saved within this buffer. More detailed landscape plans will be provided at the time of Site Plan submittal. (d) If private recreational facilities are proposed, the improvements must meet the site improvement requirements in Section 7.11 of this Ordinance. The site plan for recreational facilities shall be reviewed by the Orange County DEAPER Director. 5 STAFF COMMENT: According to the submitted application and site plan private recreational facilities will be limited to the locations, frequency and timeframes indicated in Attachment 2 and the site plan. (e) Off street parking requirements shall be provided in accordance with Section 6.9 of this Ordinance. STAFF COMMENT: The site plan contains required information. Existing parking, drop-off and bus spaces will meet the majority of the planned expansion. As part of the submittal, the applicant has also voluntarily offered the imposition of the following conditions on the SUP, specifically: 1. In accordance with the provision(s) of Section(s) 5.2.1 Table of Permitted Uses and 5.7.4 Camp/Retreat Center, activities allowed to occur on the property shall be in accordance with the submitted application package, Site Plan and narrative as reviewed by the Orange County Board of Adjustment on November 12, 2018. Furthermore, these overall Site Plans shall be updated and included as part of the Site Plan submittals for future Phases or groupings of buildings that are submitted for development permits. 2. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO all lighting installed on the property shall comply with the provisions of Section 6.11 of the UDO. Under no circumstances may lighting levels exceed 0.1 foot-candles at any property line. No new outdoor on-site lighting will be located within 100’ of the property boundaries. 3. To promote public safety as required in Section 5.3.2(B)(2) of the UDO, to ensure viable vehicular access as required in Section 5.3.2 (B) (3), and in accordance with the provisions of Section 2.5 of the UDO the applicant shall submit Site Plans and with existing/projected vehicular trip generations to NC Department of Transportation (NCDOT) prior to the commencement of earth disturbing activity. 4. To ensure general design standards as required in Section 5.3.3 of the UDO, Orange County Erosion Control and Stormwater Permits shall be obtained by the Camp with the initial site plan submittal. These permits shall include an overall land 30 disturbance plan that anticipates the camp’s anticipated total land disturbance at total build-out. This plan shall be updated an included with subsequent site plan submittals. 5. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO, existing vegetation within 100’ of the property boundary (excluding property frontages along public rights-of-way ) will remain undisturbed. 6. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO, no amplified sound will be permitted on-site between the hours of 12:00am – 7:00am. 7. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and permitted by Orange County Environmental Health, the existing audible Low Pressure alarm associated with the septic system will be replaced with a SMS/MMS notification system. 8. Per Section 2.5 of the UDO, the applicant shall obtain all necessary development permits from the County prior to the initiation of and land disturbing activity associated with the camp, but not limited to: i. Building Permits; ii. Environmental Health Permits; iii. Erosion Control and Stormwater Management Permits; iv. Solid Waste Management Permit; and v. Zoning Compliance Permits. STAFF COMMENT(S): 1. The applicant has offered the above conditions of approval for this request. These conditions address potential impact (namely light, tree preservation and outdoor noise) on adjacent properties. 2. Attachment 4 contains Staff’s evaluation of the proposals compliance with the various standards detailed within these sections. While no major concerns have been expressed, staff is recommending the imposition specif ic conditions of approval offered by the applicant to ensure the project’s compliance with the provisions of the UDO in the event the Board determines the application can be approved. 3. As detailed within Attachment 5 staff has determined the application is consistent with established submittal requirements and there is sufficient documentation demonstrating compliance with established development standards. 31 4. As you are aware, staff does not make a formal recommendation on the approval of the application or on the applicant’s compliance with the general standards detailed within Section 5.3.2 (a) (2), specifically: (1) The use will maintain or promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; (2) The use will maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not maintain or enhance the value of contiguous property); and (3) The location and character of the use, if developed according to the plan submitted, will be in harmony with the area in which it is to be located and the use is in compliance with the plan for the physical development of the County as embodied in these regulations or in the Comprehensive Plan, or portion thereof, adopted by the Board of County Commissioners. 5. There are several goals/policies detailed within the adopted 2030 Comprehensive Plan addressing the development of Camp/Retreat Centers in the County including: a. Land Use Goal 1: Fiscally and environmentally responsible, sustainable growth, consistent with the provision of adequate services and facilities and a high quality of life. b. Land Use Goal 2: Land uses that are appropriate to on-site environmental conditions and features, and that protect natural resources, cultural resources, and community character. c. Land Use Goal 3: A variety of land uses that are coordinated within a program and pattern that limits sprawl, preserves community and rural character, minimizes land use conflicts, supported by an efficient and balanced transportation system. 6. Local residents were notified of the required Neighborhood Information Meeting (NIM) and the public hearing consistent with the requirements of the UDO. The Camp owners/consultants and 5 area residents attended the meeting. Please refer to Attachment 3 for additional information. 7. Review of SUP applications are carried out in a quasi-judicial format meaning that decisions relating to the approval or denial of an application are based solely on the sworn testimony of all parties involved with the case, both those for and against an application, as well as the review of the competent material and substantial evidence submitted into evidence during the Public Hearing. 8. The applicant has the burden of establishing, by the submission of competent material and substantial evidence, the existence of facts and conditions that demonstrate the projects compliance with the various requirements and standards detailed within the UDO. Those opposing approval of the application shall have the burden of establishing, also through the submission of competent material and substantial evidence, the specif ic manner in which the proposal does not satisfy the requirements for approval of the application. 32 9. As previously indicated, the Board of Adjustment shall render a decision only on the sworn testimony of all parties and on the competent material and substantial evidence submitted during the hearing relating to the approval or denial of the application. 10. Per Section 2.25.4 of the UDO, every decision of the Board of Adjustment shall be subject to review at the request of any aggrieved party by the Superior Court by proceedings in the nature of certiorari. Appeals have to be submitted with the Superior Court within 30-days of the availability of notice of decision as detailed within 2.12.5 of the UDO. 11. If approved, staff is recommending the imposition of several conditions as detailed within Attachment 5. 12. Please note if this project is approved by the Board, this approval does not exempt the applicant f rom securing all applicable permits authorizing land disturbing activities to commence including, but not limited to: • An Erosion Control/Stormwater Permits; • P ermits from the Orange County Health Department approving a proposed septic system/well for the project; • B uilding permits including review and approval of the plans by the County Fire Marshal; • A Solid Waste Management permit; • A Zoning Compliance Permit; and/or • NCDOT Driveway permits. The approval of the SUP established is that the proposed land use is permitted to be developed as proposed. If the applicant cannot secure required permits authorizing the physical development of the project, as detailed herein, the SUP may expire. 33 AddressesSTATUS ActivePreAssignedRetiredUnverified StreamsTYPE USGS StreamSoils Survey StreamOC Updated StreamStreams (Deleted) EasementsLINE_CODE Road EasementUtility EasementWater Body Buffer 80ftWater Body Stream Buffer 80ftWater Body Buffer 65ftUSGS StreamSoils Survey StreamOC Updated StreamNWI Wetlands ParcelsStreetsZoningWater BodyFIRM Conservation Easements(Others)Watershed · 0 260 520 Feet 1 inch = 1,000 feet 9833959479EDWARD JOSEPH JR MAREKAROSEMARY M MAREKA 9833810146MINKAFARM LLC 9843312285JOAN ELMORECECIL 9842373362AUDREY TOWNSEND 9843418421MICHAEL RELMORE 9843302088JIMMY JEFFERIES ELMOREFRANCES ELMORE 9833835154PERRY PCOUCHELL 9833921230LLC MINKAFARM 9833950877INEZ SHAMBLEY 9842496865KENNETHDOYLE COPPLE 9843055036RETREAT MINISTRIES INCNC UNITED METHODIST CAMP & 9842584282PETER MMAYER 9843259908TOMMY MBOYD 9842290271REBECCA PALMERWILLIAM PALMER 9843338790CHESTERH SYKES 9843338790CHESTERH SYKES 9843338790CHESTERH SYKES 9832991165EDWARD J PARKSVIVIEN I PARKS 9843319657JOANELMORE CECIL 9842485497STEPHENPAUL BACHHUBER 9842287384F STUART CARSONFRANCES W MARSHALL 9833935222RETREAT MINISTRIES INC NCUNITED METHODIST CAMP & 9842377364ASPEN DEVELOPMENTGROUP LLC 9842299098LORI ANNE SHAPIROJACK H RAMSEY 9832891832PHYLLISS KIMBALL 9833907146BRIAN D HARRYKIMBERLY K HARRY 9833737137JULIATEIXEIRA 9843308790JIMMIE JEFFRIES ELMOREFRANCES H ELMORE 9832982927MINKAFARM LLC 9842171316ANNETTEL JOHNSON 9842593770PATRICIABAGNAL 9833806144RICHARD LHOWARD 9843357605JOHN PABERNETHY INC 9843251652GRACE BROBERTS 9842481886IRVING F HOFFMANSARAH CRAIGE 9843221289RETREAT MINISTRIES INC NCUNITED METHODIST CAMP & 9843549612EAGLES NESTFOUR LLC 9843623321JOEL LROBERTS 9842081463R J HICKMANGENEVA HICKMAN 9833907846LLC MINKAFARM 9832990686GABRIELS SANCHEZ 9833807785LLC MINKAFARM 9842188731MARK DROBINSON 9842572624THOMAS ETAL STANNCARA STANN 9843424100CHURCH CHESTNUTRIDGE 9843424100CHURCHCHESTNUT RIDGE 9842188194MARION WEBBOMALLEY 9843157228JOHN C CLAYTONJOYCE P CLAYTON 9843523840HEDRICK TJR SYKES 9842179544SENGA A CARROLLMAIA J DERY 9842095625LLC MINKAFARM 9843004786LLC MINKAFARM 9843662371LOIS SBAKER 9843254957MICHAEL L CHAPMANKAREN C CHAPMAN 9843730728LLC EAGLESNEST FOUR 9843137930RETREAT MINISTRIES INC NCUNITED METHODIST CAMP & 9843137930RETREAT MINISTRIES INC NCUNITED METHODIST CAMP & 9843709133PTNS HARRISASSOCIATES LTD B R A D F O R D R I D G E R D FloodPanel:9833J FloodPanel:9843J FloodPanel:9832J FloodPanel:9842J Upper EnoProtectedWatershed Cane CreekProtectedWatershed AR BORLAND R D A R E A T H A A V E B U C K H O R N R D BEAUF O R T L N M T W IL LI N G R D COUNTR Y PINE L N BAER HIL L R D H O L M E S R D S H ADO WW O OD L N KENDRICKDR M INKA FARM LN SLIM ELMO R E LN C A M P C H E S TNU T R ID GERD EQUE S T R I A N C E N T E R D R S I M M ONS LN C H E S T N U T R I D G E C H U R C H R D R E D T A I L R U N P O N D RD CAN E R I D G E R D PARKER R I GGI N S TRL P R I V ATE A CCESS GRAYFOX TRL WESTWOOD DR MONARCHWAY PRIVATE DRIVECAMPFIRE CIR Site Data:PINs: 9843-22-1289; 9843-13-7930; 9843-05-5036; 9833-93-5222;9843-13-7930; and 9842-49-7233.Zoning: Agricultural Residential (AR)Acreage: 376 acresOverlay Districts: Upper Eno Protected; and Cane Creek ProtectedWatersheds Zoning Requirements:Min. lot width: 150'Building Setbacks: 100' around perimeterMax. Height: 25’Required Buffer 30' Type B Buffer per 5.7.5(A)(2)(c)Max. Impervious 12% (1,965,427 sq. ft. based on 376 acres) Environmental Features:Streams/Water Bodies: Yes, variable width stream buffers. 80' shownSFHA (Floodplain in): NoWetlands: YesFlood Info:Panel #: 9843JBase Flood Elevation (BFE): N/ABFE with 2’ County Freeboard: N/AFlood Depth at structure: N/A Land Disturbance Thresholds:1) Erosion Control Application/Permit required if disturbing more than10,000 sq. ft.; and2) Stormwater Management Application/Permit required if disturbingmore than 12,000 sq. ft. (Upper Eno Protected); and 21,780 (CaneCreek Protected) for non-residential structures. **Call OC Erosion Control a t (919) 245-2586 for more information** Notes:1) Private Road Justifications, Recorded Declarations, RestrictiveCovenants, Bona Fide Farm status, use and building type (e.g. duplex.units) will change subdivision and development requirements.2) Wetlands data is taken from Classification of Wetlands andDeepwater Habitats of the United States. U.S. Department of theInterior, Fish and Wildlife Service and does not constitute a forma ldelineation (i.e. survey) of the property. All wetland areas areapproximate.3) Flood boundaries are subject to change based on periodicamendments to flood maps.Determination is based on current, best available, data; and4) This does not constitute a formal land survey. Date Site Assessment Completed 12EP2018 by PRM Data shown on this map is obtained from Orange CountyGIS and is for reference only.Exact locations and boundaries should be verified.Map prepared by Orange County Planning & Inspections.09/12/2018 - pmallett 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 2 I. Introduction Chestnut Ridge Camp and Retreat Center (the Camp) is currently served by several independent on-site wastewater (septic) systems, throughout the property. Mitchell Environmental was retained to complete an evaluation of existing, permitted septic systems on the site to determine permitted sewage flowrates, and to estimate currently utilized capacity, and available capacity, if any remains. Data evaluated for this evaluation included sewage flowrate data provided by the Camp and copies of septic system permit documents provided by Orange County. II. Status of Site Improvements Structures with associated septic system permits were verified through evaluation of provided maps, sketches, and an on-site meeting with Rev. Nick Jeffries, Director of the Camp. Facilities currently served by septic systems include Morris Dining Center, the Pavilion, six camper cabins (Birch, Crane, Elm, Maple, Mebane, and Oak), one staff residence (Falcon), one staff house, one Director’s house, one bath house, and the former Piedmont Wildlife Center. Individual septic system drainfields that formerly served Morris Dining Center, the Pavilion, Elm, and Oak, have been abandoned. Wastewater produced by these facilities is now collected by gravity sewer mains that flow to a pump station north of Morris Dining Center. This pump station sends wastewater to a sand filter pretreatment system, and LPP (low-pressure pipe) drainfield near the southeast corner of the property. Other structures void of plumbing exist on the property, but none of these structures are served by septic systems. III. Septic System Permits Orange County provided digital copies of all septic system permits they have on file for the Camp, as detailed in Table 1 below: Table 1: Septic System Permit Summary Structure Name Receiving Septic System Permitted Sewage Flowrate (gallons per day) Septic Drainfield Type Pumped or Gravity Dosed Morris Dining Center Sand Filter LPP System 2,850 LPP Pumped The Pavilion Elm Cabin Oak Cabin Proposed Pastoral Retreat Staff Residence (Falcon) Individual Septic 1,560 Conventional Pumped Bath House Individual Septic 600 Conventional Gravity Director’s House Individual Septic 480 Conventional Gravity Staff House Individual Septic 360 Conventional Gravity Mebane Cabin Shared Septic w/ Bull Run Valve 360 Conventional Gravity Piedmont Wildlife Center 100 Conventional Gravity Birch Cabin Individual Septic Not Specified Conventional Gravity Crane Cabin Individual Septic Not Specified Conventional Gravity Maple Cabin Individual Septic Not Specified Conventional Gravity 91 3 Permitted sewage design flowrates range from 100 to 2,850 gallons per day (gpd), with a total specified sewage design flowrate for the entire property of 6,310 gpd. As indicated in Table 1, sewage design flowrates are not specified in the septic system permits for Birch, Crane, and Maple cabins, so permitted flows for these structures are not included in this calculation. Septic system permits provided by Orange County are attached to this report. IV. Current Usage and Available Capacity Sand Filter LPP System Septic system use data was collected for the sand filter LPP system from May 27 to October 19, 2017, covering a period of 145 days. Summer camps started Sunday, June 11, and ended Friday, August 25, with a total of 11 weeks of summer camp. Facility usage outside of this period was for staff training, year-round residences, and maintenance activities. Weekly summer camps started on either Sundays or Mondays, but always finished on Fridays. For the entire period of data collection, a total of 96,372 gallons of wastewater was pumped to the sand filter LPP system, with a resultant average daily wastewater flow of 665 gpd. To assess anticipated increased flowrates during summer camp weeks, weekly wastewater volume was calculated for every Sunday to Saturday period of record (21 total weeks; 2 with partial data). As anticipated, wastewater flowrates were highest during summer camp weeks, with weekly flows ranging from 3,095 to 10,170 gallons per week. Non-summer camp weeks produced wastewater flows ranging from 0 to 5,723 gallons per week. Resultant average daily wastewater flows for summer camp weeks ranged from 442 to 1,453 gpd. By comparison, the top 10 percent of adjusted daily wastewater volumes during summer camp weeks ranged from 1,771 to 2,921 gpd. The numerical average of the top 10 percent of adjusted daily wastewater volumes is 2,184 gpd, which represents the alternative sewage design flowrate for the sand filter LPP system, per 15A NCAC 18A .1949 (c)(1). Compared to the permitted flowrate of 2,850 gpd, current usage is only 77 percent (2,184 gpd / 2,850 gpd = 0.77, or 77%) of the available capacity of this system. Per these calculations, residual available capacity in this system is 666 gpd. Flow equalization (FE) technologies could be added to this system per Innovative Wastewater System Approval No: IWWS-2004-01 (copy attached) to further increase available capacity for new or expanded structures. FE is accomplished through the utilization of a large pump tank that is sized to hold wastewater produced over the entire FE period, minus equalized effluent doses that are disposed of in the existing nitrification field. Using the highest calculated average daily wastewater volume per week (1,453 gpd), the utilization of FE with a one week cycle could theoretically reduce current usage to only 51 percent (1,453 gpd / 2,850 gpd = 0.51, or 51%) of the available capacity of this system. Per these calculations utilizing FE, residual available capacity in this system could be as high as 1,397 gpd. 92 4 Table 2: Chronological Weekly and Average Daily Wastewater Production Week # Total Volume for Week (gallons) Average Daily Volume for Week (gallons) Order of Largest to Smallest Weekly Volume Summer Camp Week? 1 5062 723 10 No 2 5723 818 7 No 3 5993 856 6 Yes 4 7797 1114 4 Yes 5 6308 901 5 Yes 6 5194 742 9 Yes 7 5692 813 8 Yes 8 10170 1453 1 Yes 9 8016 1145 3 Yes 10 9859 1408 2 Yes 11 4811 687 12 Yes 12 3095 442 14 Yes 13 3294 471 13 Yes 14 1652 236 18 No 15 1993 285 16 No 16 1716 245 17 No 17 892 127 20 No 18 4969 710 11 No 19 1606 229 19 No 20 0 0 21 No 21 2532 362 15 Total = 96372 gallons Daily Ave. = 665 gallons / day **Summer camp weeks highlighted in green.** 93 5 Table 3: Weekly and Average Daily Wastewater Production in Order of Weekly Volume Production Order of Largest to Smallest Weekly Volume Weekly Volume in Descending Order Average Daily Volume in Descending Order Summer Camp Week? 1 10170 1453 Yes 2 9859 1408 Yes 3 8016 1145 Yes 4 7797 1114 Yes 5 6308 901 Yes 6 5993 856 Yes 7 5723 818 No 8 5692 813 Yes 9 5194 742 Yes 10 5062 723 No 11 4969 710 No 12 4811 687 Yes 13 3294 471 Yes 14 3095 442 Yes 15 2532 362 No 16 1993 285 No 17 1716 245 No 18 1652 236 No 19 1606 229 No 20 892 127 No 21 0 0 No **Summer camp weeks highlighted in green.** A proposed two bedroom pastoral retreat has been proposed to connect to the sand filter LPP system. With two bedrooms, this new structure will have a design sewage flowrate of 240 gpd per 15A NCAC 18A .1949 (a). Accordingly, the design sewage flowrate for the proposed pastoral retreat will reduce residual available capacity in the sand filter LPP system, once connected. Other Septic Systems Usage data was not provided for other septic systems on the property; hence, we are unable to assess available capacity in any septic system other than the sand filter LPP system at this time. A similar pumped volume analysis could be utilized to assess available capacity in the staff residence (Falcon), but installation of water meters would be required for accurate assessment of all other systems due to their gravity dose designs. V. Summary The sand filter LPP system currently has residual available capacity of 666 gpd, and this available capacity could be significantly increased (possibly up to 1,397 gpd) with the addition of FE technologies. Further, additional residual capacity may be available in other existing septic systems on the property, but detailed analysis of these systems is required for accurate assessment. 94 6 Exhibits 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 7 Septic System Permits 113 8 Sand Filter LPP System 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 9 Staff Residence (Falcon) 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 10 Bath House 161 162 163 164 11 Director’s House 165 166 167 168 169 170 171 172 173 12 Staff House 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 13 Mebane Cabin 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 14 Piedmont Wildlife Center 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 15 Birch, Crane, and Maple Cabins (Assumed – Not Clearly Identified) 251 252 253 254 255 256 257 258 259 260 261 262 263 264 16 Proposed Pastoral Retreat 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 31 4 31 5 31 6 31 7 31 8 31 9 32 0 32 1 32 2 32 3 32 4 32 5 32 6 32 7 32 8 32 9 33 0 33 1 33 2 33 3 33 4 33 5 33 6 33 7 33 8 33 9 340 341 342 343 344 345 346 347 348 349 35 0 35 1 35 2 35 3 35 4 35 5 35 6 35 7 35 8 35 9 36 0 36 1 36 2 36 3 36 4 36 5 36 6 36 7 36 8 36 9 FINDINGS OF THE ORANGE COUNTY BOARD OF ADJUSTMENT PERTAINING TO A REQUEST SUBMITTED BY CAMP CHESTNUT RIDGE / NC METHODIST CAMP AND RETREAT MINISTRIES INC PROPOSING EXPANSION OF A CAMP RETREAT FACILITY CALLED “CAMP CHESTNUT RIDGE” ON A PARCELS OF PROPERTY OFF OF CAMP CHESTNUT RIDGE ROAD (PINS 9843-22-1289; 9843-13-7930; 9843-05-5036; 9833-93-5222; and 9842-49-7233) As required under Section 5.2 Table of Permitted Uses of the Orange County Unified Development Ordinance (UDO), a Class B Special Use Permit is required for the development/operation of a camp/retreat center, in accordance with the provisions of Section 2.7 of the UDO. Such permits shall comply with general and specific standards as set forth in Section(s) 5.3.2 and 5.8.2 of the UDO. Section 5.3.2 (A) (2) of the UDO requires written findings certifying compliance with the following: (1) The use will maintain or promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; (2) The use will maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not maintain or enhance the value of contiguous property); and (3) The location and character of the use, if developed according to the plan submitted, will be in harmony with the area in which it is to be located and the use is in compliance with the plan for the physical development of the County as embodied in these regulations or in the Comprehensive Plan, or portion thereof, adopted by the Board of County Commissioners; In addition, the Board shall make findings certifying that the application is complaint with the following specific standards: (1) Specific standards for the submission of Special Use Permit applications as outlined within Section(s) 2.2 and 2.7 of the UDO. (2) Specific regulations governing the development of a Camp/Retreat Facility as set forth in Section 5.7.5 of the UDO. (3) Section 5.3.2 (B) relating to the method and adequacy of the provision of: a. Sewage disposal facilities, b. The adequacy of police, fire, and rescue squad protection, and c. The adequacy of vehicular access to the site and traffic conditions around the site. (4) The general findings outlined within Section 5.3.2 (A) (2). Listed below are the findings of the Orange Planning staff regarding the application in question. The findings have been presented by Article and requirement to assist the Board of Adjustment in its deliberations. Attachment 5 370 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA APPLICATION COMPONENTS Proper forms 2.2 Application (Attachment 2) Yes Fees paid 2.2.4(D) Application (Attachment 2) Yes Full description of use  Location  Appearance  Operational characteristics 2.7.3(B)(1) Application (Attachment 2) (Site plan) Yes Owner Information 2.7.3(B)(2) Application (Attachment 2) (Site plan) Yes Information needed for Use Standards 2.7.3(B)(3) Application (Attachment 2) (Site plan) Yes Site Plans (10 copies for Class B; 26 for Class A) 2.7.3(B)(4) 10 Copies of Site Plan Submitted Yes Preliminary Subdivision Plat (if necessary) 2.7.3(B)(5) N/A [No subdivision proposed.] N/A N/A List of parcels within 1,000 feet 2.7.3(B)(6) Application (Attachments 2 and 3) Yes Elevations of all structures 2.7.3(B)(7) Application (Attachment 2) Yes Environmental Assessment (or EIS)  Topography  Drainage issues  Natural or Cultural resources  Mining  Hazardous Wastes  Wastewater treatment  Water usage 2.7.3(B)(8) EIS Not Required EA provided in Application (Attachment 2) Yes Method of Debris Disposal 2.7.3(B)(9) Application (Attachment 2) (Site plan) Yes Development Schedule 2.7.3(B)(10) Application (Attachment 2) (Site plan) Yes Extended Vesting Request 2.7.3(B)(11) Not requested N/A N/A NOTIFICATION REQUIREMENTS NOTIFICATION REQUIREMENTS Public Notice  Date  Time  Place 2.7.6(a) Application (Attachment 3) Yes Published in Newspaper  Two successive weeks  First notice at least ten days prior but no more than twenty- five days prior 2.7.6(b) Staff Testimony The legal ad was published in the News of Orange and the Chapel Hill Herald on October 31, 2018 and again on November 7, 2018 Yes Sign Posting on Property (at least 10 days prior) 2.7.6(c) Staff Testimony posted sign on November 2, 2018 Yes 371 Mailed Notice  Certified mail  All adjacent property owners (within 1,000 feet)  Not less than fifteen days prior 2.7.6(d) NIM and BOA Materials (Attachment 3) NIM notices mailed September 14, 2018 BOA Public Hearing Notices mailed November 2, 2018 Yes REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA SPECIFIC STANDARDS Waste Disposal Method and adequacy of provision for sewage disposal facilities, solid waste and water service. 5.3.2(B)(1) Staff’s Abstract and Staff Comments (Attachment 4) Both Environmental Health and Solid Waste have indicated they have no concerns. Yes Safety Method and adequacy of police, fire and rescue squad protection. 5.3.2(B)(2) Staff’s Abstract and Staff Comments (Attachment 4) Fire Marshall and Sherriff’s office have indicated that they have no concerns. Yes Vehicle Access Method and adequacy of vehicle access to the site and traffic conditions around the site. 5.3.2(B)(3) The submitted site plan shows access points. NCDOT District Office has indicated that they have no concerns (Attachment 4). Yes REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA STANDARDS FOR A CHILD CARE FACILITY 5.8.2 Site Plan A site plan prepared in accordance with Section 2.5 and Standards for Camp/Retreat Facilities. 2.5; and 5.7.5(A)(1) Application (Attachment 2) (Site plan) Yes Standards of Evaluation A description of the type of facility, the size, capacity, use of proposed buildings, septic systems and recreation areas including . 5.7.5 (A) (2) (a-e) Application (Attachment 2) (Site plan) Yes 372 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA SPECIFIC STANDARDS In accordance with Section 5.3.2 (A) (2), the Board of Adjustment shall also consider the following general conditions before the application for a Special Use can be approved. The use (will / will not) maintain or promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted. Section 5.3.2 (A) (2) (a) Application package as contained in Attachment 2 inclusive including, but not limited to:  Narrative;  Environmental Assessment (EA) Application; and  Site Plan. Site Assessment (Attachment 1) Staff review comments (Attachment 4) Based on all above findings, Applicant’s Narrative, and Staff’s report, the Board finds the use will maintain or promote the public health, safety, and general welfare if located where proposed and developed and operated according to the plan as submitted. Yes The use (will / will not) maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not maintain or enhance the value of contiguous property). Section 5.3.2 (A) (2) (b) Application package as contained in Attachment 2 inclusive including, but not limited to: - Narrative; - Staff abstract; - Review comments (Attachment 4); and - Appraisal evidence submitted by applicant Based on all above findings, and a lack of competent/material evidence in the record refuting the testimony, the Board finds the use will maintain or enhance the value of contiguous property. Yes 373 The location and character of the use, if developed according to the plan submitted, (will / will not) be in harmony with the area in which it is to be located and the use is in compliance with the plan for the physical development of the County as embodied in these regulations or in the Comprehensive Plan, or portion thereof, adopted by the Board of County Commissioners. Section 5.3.2 (A) (2) (c) Application package as contained in Attachment 2 inclusive including, but not limited to: - Narrative; - Environmental Assessment (EA) Application; and - Site Plan; - Site Assessment (Attachment 1); and - Staff review comments (Attachment 4). Based on the above findings, Applicant’s Narrative, and Staff’s report, the Board finds the location and nature of the use, if developed according to the plan submitted, will be in harmony with the area in which it is to be located and the use is in compliance with the plan for the physical development of the County, as embodied in these regulations and in the Comprehensive Plan. Yes 374 Conditions of Approval: 1. In accordance with the provision(s) of Section(s) 5.2.1 Table of Permitted Uses and 5.7.4 Camp/Retreat Center, activities allowed to occur on the property shall be in accordance with the submitted application package, Site Plan and narrative as reviewed by the Orange County Board of Adjustment on November 12, 2018. Furthermore, these overall Site Plans shall be updated and included as part of the Site Plan submittals for future Phases or groupings of buildings that are submitted for development permits. 2. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO all lighting installed on the property shall comply with the provisions of Section 6.11 of the UDO. Under no circumstances may lighting levels exceed 0.1 foot-candles at any property line. No new outdoor on-site lighting will be located within 100’ of the property boundaries . 3. To promote public safety as required in Section 5.3.2(B)(2) of the UDO, to ensure viable vehicular access as required in Section 5.3.2 (B) (3), and in accordance with the provisions of Section 2.5 of the UDO the applicant shall submit Site Plans and with existing/projected vehicular trip generations to NC Department of Transportation (NCDOT) prior to the commencement of earth disturbing activity. 4. To ensure general design standards as required in Section 5.3.3 of the UDO, Orange County Erosion Control and Stormwater Permits shall be obtained by the Camp with the initial site plan submittal. These permits shall include an overall land disturbance plan that anticipates the camp’s anticipated total land disturbance at total build-out. This plan shall be updated an included with subsequent site plan submittals. RECOMMENDATION: Staff has reviewed the application, the site plan, and all supporting documentation and has found that the applicant complies with the application requirements, notice requirements, submittal requirements for camp/retreat centers, specific standards of evaluation for Camp/Retreat centers, and required regulations as outlined within the UDO Staff has not received any evidence indicating the project does not comply with the UDO, including the provisions of Section 5.3.2 (A) (2) inclusive, establishing the grounds for making a negative finding on the general standards as detailed herein. These standards include maintaining or promoting the public health, safety, and general welfare, maintaining or enhancing the value of contiguous property, the use is in harmony with the area in which it is to be located, and the use being in compliance with the general plan for the physical development of the County. The Board could make an affirmative finding on this application provided the Board of Adjustment finds in the affirmative on the specific standards of evaluation and general standards as detailed herein, and no evidence is entered into the record demonstrating the applicant has either: a. Failed to meet their burden of proof that the project complies with the specific development standards for a telecommunication facility, or b. Fails to comply with the general standards detailed within Section 5.3.2 (A) (2) of the UDO. In the event that the Board makes an affirmative finding, and issues the permit, staff recommends the attachment of the following conditions: 375 5. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO, existing vegetation within 100’ of the property boundary (excluding property frontages along public rights-of-way ) will remain undisturbed. 6. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and to ensure the proposed use is in harmony with the general area as required in Section 5.3.2 (A) (2) (c) of the UDO, no amplified sound will be permitted on-site between the hours of 12:00am – 7:00am. 7. To promote the public health, safety and general welfare as required in Section 5.3.2 (A) (2) (a), to ensure adjacent property values are maintained or enhanced as required in Section 5.3.2 (A) (2) (b), and permitted by Orange County Environmental Health, the existing audible Low Pressure alarm associated with the septic system will be replaced with a SMS/MMS notification system. 8. Per Section 2.5 of the UDO the applicant shall obtain all necessary and applicable permits from the County associated with the development of the property consistent with the approved Special Use Permit, including but not limited to: a. Building/ Solid Waste Management Permit, b. Environmental Health Permit, c. Erosion Control Management Permit, d. Stormwater Permit, and e. Zoning Compliance Permit. 9. In accordance with the provisions of Section 2.7.12 (C) of the UDO, if any condition of this Special Use Permit shall be held invalid or void, then this Special Use Permit shall be void in its entirety and of no effect. 10. In accordance with the provisions of Section 2.7.12 (D) of the UDO, the Special Use Permit will automatically expire within 12 months from the date of approval if the use has not commenced or construction has not commenced or proceeded unless a timely application for extension of this time limit is approved by the Board of Adjustment. 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391