HomeMy WebLinkAboutBOA minutes 050718 APPROVED JULY 9, 2018
1 MINUTES
2 BOARD OF ADJUSTMENT
3 May 7,2018
4 REGULAR MEETING
5
6 MEMBERS PRESENT: Karen Barrows, Vice Chair
7 Barry Katz
8 Susan Halklotis
9 Randy Herman (Alternate)
10
11
12 MEMBERS ABSENT: Samantha Cabe, Chair
13 Holly Safi (Alternate)
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15
16 STAFF PRESENT: Michael Harvey, Current Planning Supervisor
17 Patrick Maliett, Planner 11
18 James Bryan, Staff Attorney
19 David Hunt, deputy Clerk/Information Specialist
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22 AGENDA ITEM 1: CALL TO ORDER
23
24 Karen Barrows called the meeting to order at 7 p.m.
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26
27 AGENDA ITEM 2, CONSIDERATION OF ADDITIONS TO AGENDA
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29 Karen Barrows asked if there are considerations of additions to the agenda.
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31 Michael Harvey, Current Planning Supervisor, said that the April 16, 2018, meeting minutes would not be
32 voted on this evening. He wanted to note that the absences of Karen Barrows and Barry Katz at that
33 meeting had been excused prior to the meeting.
34
35 He reminded board members to remember that the microphones are active at all times.
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37
38 AGENDA ITEM 3; APPROVAL ❑F MINUTES—April 16,2018
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40 As noted by Michael Harvey, the board was not asked to take a vote to approve the minutes this evening.
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42 AGENDA ITEM 4; PUBLIC CHARGE
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44 Susan Halkiotis read the public charge.
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46 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to
47 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any
48 time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the
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49 offending person to leave the meeting until that individual regains personal control. Should decorum fail to be
50 restored, the Chair will recess the meeting until such time that a genuine commitment to this public charge is
51 observed. All electronic devices such as cell phones, pagers, and computers should please be turned off or
52 set to silent/vibrate.
53
54 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions
55 of local regulations and State law to perform specified functions essential to the County's planning program.
56 Action(s) taken by the board are based solely on competent, substantial, and material evidence presented
57 during a previously scheduled and advertised public hearing on a specific item. As detailed within Section
58 2.12.2 of the UFO the Board chair reserves the right to exclude evidence and testimony that is deemed:
59 incompetent, irrelevant, immaterial, or unduly repetitious'and therefore fails to reasonably address the issues
60 before the Board of Adjustment. While it should be noted there is no time limit on the presentation of
61 evidence, the Chair asks that the presentation of evidence be consistent with established policies, rules of
62 procedure, and acceptable levels of decorum to ensure a fair and equitable hearing for all parties.
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64
65 AGENDA ITEM 5; CASE A-3-18 — Public Hearing to begin reviewing an
66 application appealing the final determination of the Planning Director, as
67 articulated in an October 13, 2017, letter, concerning a parcel of property
68 located at the intersection of Morrow Mill and Millikan Roads (PIN: 9729-50-
69 7168) owned/operated by Southeast Property Group LLC (a.k.a. Wild Flora
70 Farm) care of Ms. Kara Brewer.
71
72 Review of this item at the May 7, 2018, meeting shall be limited to the Board
73 reviewinglacting on a request from the applicant to issue subpoenas
74 compelling the submittal of information deemed essential to the proceeding.
75
76 Karen Barrows asked whether there was anyone who wished to speak who needed to be sworn in.
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78 Michael Harvey said two attorneys would be presenting arguments this evening concerning the issuance of
79 subpoenas. `there would be no need to swear in witnesses unless either attorney wished to call one for
80 testimony.
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82 Michael Harvey said this is a convening of a hearing to begin reviewing an appeal application concerning
83 the October 13, 2017, determination made by the Planning Director. He noted that in the abstract the
84 attorneys for the applicants as well as the impacted property owners have filed a joint request that is
85 contained in Attachment 2 beginning on Page 62 of the agenda packet that the board first address the
86 denial of the subpoena request by the vice chair. That is the sole discussion point for this evening. Both
87 attorneys have requested that after the Board of Adjustment has made a decision on the subpoenas that
88 action on the appeal itself be delayed until a future meeting.
89
90 Barry Katz asked for clarification that the Board of Adjustment will hear this again. Michael Harvey said yes,
91 the Board of Adjustment will hear the merits of the appeal at a future meeting.
92
93 Karen Barrows stated that the reason she had decided not to sign the subpoenas was that Barry Katz and
94 Susan Halkiotis have heard quite a bit of testimony about this issue. She knew if she refused, it would
95 come before this board and her fellow board members would be able to give input as well.
96
97 Michael Harvey summarized the abstract;Attachment 1, pages 3-65, is the appeal application and
98 subpoenas request. Attachment 2, beginning on Page 66, is the joint correspondence concerning review of
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99 the subpoenas request. Beginning on Page 70 is the excerpt of the session law, The background of this is
100 as follows and is articulated in the abstract: On July 12, Session Law 2017-108 became effective,which
o
101 established the use of structures on a bona fide farm. OrangeCounty received a request on October 12
102 from Andy Petesch, representing Barn of Chapel Hill/Wild Flora Farm for a determination from the county
103 on whether the property met the requirements of the sessions law and could conduct agritourism activities.
104 This request involved the structure located on the Orange County parcel identified as PIN: 9729-50-7168
105 ownedloperated by Southeast Property Group LLC (a.k.a. Wild Flora Farm), and is commonly referred to
106 as the Barn of Chapel Hill. The request was reviewed with John Roberts of the county attorney's office, and
107 after review of Andy Petesch's request, staff made a determination that the structure located on this
108 property is classified as a bona fide farm, pursuant to the provisions in General Statutes 153A-340(b)(2)a. It
109 is not subject to land use regulations as embodied within the Orange County Unified Development
110 Ordinance. Michael Harvey noted that LeAnn Brown has attached a copy of the Orange County letter,
111 within Attachment 1,which is the appeal application.As part of the submittal, LeAnn Brown, who
112 represents several adjacent property owners, had requested the chair, under his or her discretion as part of
113 local land use regulations and state statute,to issue subpoenas for requested information. That request
114 has been denied. Per request of LeAnn Brown, the full board has been asked to review that denial and
115 determine whether or not the subpoenas should be issued.
116 Michael Harvey reminded the board that attorneys representing each side, LeAnn Brown and Andy
117 Petesch, have requested that the purpose of the meeting is to review the subpoena request only. The
118 meeting is open to the public but testimony is limited to the parties that have standing. The decision to
119 issue or not issue the subpoenas is ultimately appealable to Orange County Superior Court within 30 days.
120
121 Michael Harvey then requested that the agenda packet be entered into the record.
122
123 MOTION by Barry Katz to enter the agenda packet into the record. Seconded by Randy Herman.
124
125 VOTE: UNANIMOUS
126
127 Karen Barrows said the board would give each attorney 10 minutes to address the board.
128
129 LeAnn Nease Brown addressed the board. She asked that the board find that the parties she represents
130 have standing as the board has found previously that those parties have standing. She said there is a
131 procedure in the Board of Adjustment statute that is designed to add a means by which information that
132 may be relevant to a hearing can be obtained, and that is a subpoena process. Subpoenas, as a general
133 principle, are a means by which documents or other information are brought before a tribunal, Admissibility
134 of that information is decided in the context of the hearing. Subpoena is the means by which the documents
135 can be obtained. The issuance of subpoenas is generally a ministerial act. She said there are case laws in
136 North Carolina to which she could refer but quoted Bone v. Broad for the record. She continued, stating that
137 the word relevant in the statue is informed by how the word relevant is applied in the rules of evidence. The
138 Orange County Board of Adjustment applies relaxed rules of evidence in its hearings. She noted that the
139 North Carolina General Statues §1-401 defines relevant evidence as having any tendency to make the
140 existence of any fact that is of consequence to the determination of an action more probable or less
141 probable than it would be without the evidence. The comments to note 401 state that dealing with
142 probability in the language of the rule has added the virtue of avoiding confusion between questions of
143 admissibility and questions of sufficiency of the evidence. It has also subsumed in it the concept of
144 materiality.
145
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146 LeAnn Brown continued, stating that N.C.G.S. §160A-388(g), which is a statue that governs the Board of
147 Adjustment, is quoted in pertinent part on Page 52 of the agenda packet in her letter to Chair Samantha
148 Cabe seeking subpoenas on November 7, 2017. What N.C.G.S. §160A-388(g) allows is it allows persons
149 with standing to seek subpoenas.The procedure is to give the Board of Adjustment a written request,
150 which she did by letter, And it provides the chair shall issue the subpoena if it is determined to be relevant
151 material and reasonable in nature and scope and not oppressive. The statute also contemplates that
152 parties from whom documents are sought may file motions to quash subpoenas. There was no motion to
153 quash or modify the request that she filed some six months ago.
154
155 LeAnn Brown reviewed that six months ago she provided a letter of appeal to the Current Planning
156 Supervisor dated October 13, 2017, She noted that Pages 49-51 of the agenda packet outline the errors
157 alleged, The letter to Chair Samantha Cabe that she sent sought five subpoenas to the following properties:
158 Southeast Property Group LLC, which is the legal owner of the property; Wild Flora Farm LLC, which was
159 created at some point in time, Kara Brewer individually; Chris Brewer individually, and Barn of Chapel Hill
160 LLC. She noted that under the law, those are all separate legal entities. What she sought from them was
161 information submitted to the North Carolina Department of Revenue or to Orange County regarding their
162 alleged eligibility or alleged compliance with the statute regarding the farm exemption as it has been
163 amended. She noted where the farm exemption provisions can be found in the state statutes, as noted on
164 Page 53 of the agenda packet, and that the session law amends several places in the statutes. The other
166 information she sought is the relationship among these entities because information has been provided to
166 the county, suggesting that a tax certificate that was received identifies Wild Flora Farms and Kara Brewer
167 somehow applied to Southeast Property Group LLC. The statute requires the tax certificate to be issued to
168 the owner of the property and one of the errors that her party has alleged is that a certificate to Wild Flora
169 Farm or Kara Brewer cannot apply to Southeast Property Group LLC. On its face, it does not, Frankly, the
170 income amounts and time increments in the two statutes applying to the North Carolina department of
171 Revenue do not appear to have been possibly temporally to have been met and so her party thinks the
172 information she is requesting would be helpful to inform them as to whether there is compliance with those
173 issues. That would be the issue when she comes before this board again,
174
175 LeAnn Brown reviewed that what the statues require is an annual income from farming for the previous tax
176 year of$10,000 or an average for three years of that amount. There are conditional exemptions for tax
177 purposes but that provision does not qualify a property owner. The letter to Kara Brewer with an exemption
178 identification number for Wild Flora Farm is dated September 22, 2017. Wild Flora Farm was created
179 February 14, 2017, so it had only existed a few months. There is annual record of an assumed name
180 certificate for Wild Flora Farm dated October 12, 2017, but it is after the certificate was issued as well. The
181 property was purchased in 2015 by Southeast Property Group LLC and has been owned by it throughout
182 this process.
183
184 LeAnn Brown said that we believe that in order for the Board of Adjustment to make an intelligent and
185 informed decision on the appealing chief as to whether Orange County has misinterpreted what it has
186 received or has failed to make the appropriate legal distinctions among the parties would be informed by
187 the requested subpoenas. She and her clients believe that without the information, it would be difficult for
188 her and her clients in the dark without underlying information to know whether what has been provided
189 meets the statutory requirements. At a hearing on this matter, any evidence that is obtained through the
190 subpoenas can be objected to, The board can choose in a hearing to sustain the objections and LeAnn
191 Brown can offer to make an offer of proof and have that information available so that a court can look at it
192 later, Or the other party can object and the board can sustain that and a court can look at it later. If LeAnn
193 Brown is not allowed to subpoena the information, then it renders it very difficult under her due process
194 rights to prepare an argument before the Board of Adjustment, She appreciates Karen Barrows's decision
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195 to not sign as she could have done as vice chair. She summed up her argument by saying that it would be
196 error indeed for the Board of Adjustment to refuse to issue the subpoenas because it would render her
197 party unable to present a case to the board or to make an offer of proof to this board. if the board refuses, a
198 higher court would likely say let's see what an offer of proof would have been, she said. She asked that the
199 board issue the subpoenas and that the subpoenas require that the information be submitted before the
200 next hearing and that the persons listed are present to answer questions.
201
202 Andy Petesch,of the Wake County Bar, addressed the board and said he was here on behalf of Kara
203 Brewer and the actual property owner now, which is Wild Flora Farm LLC. He said there was a merger
204 between Wild Flora Farm LLC and Southeast Property Group in February of this year. He passed out
205 documents with that information.
206
207 Randy Herman asked if LeAnn Brown had been provided a copy.
208
209 LeAnn Brown answered she was receiving that information just now.
210
211 Andy Petesch gave documentation to the board and offered it into the record and clarified that now Wild
212 Flora Farm LLC owns the property,
213
214 Andy Petesch said this is not a complicated decision, There is not a need for this potentially vast amount of
215 documents that are being requested. The letter submitted on October 12, 2017, on behalf of SPG/Wild
216 Flora/Kara Brewer included the exemption certificate, which is located on Page 11 of the agenda packet; a
217 deed at the time,which was owned by SPG LLC/Southeast Property Group and now by operation of law
218 owned by Wild Flora Farm LLC; an annual report by SPG showing Kara Brewer as the loan member; and a
219 certificate of assumed name at the time while SPG and Wild Flora Farm were working on that merger,
220 (SPG operated under the pseudonym Wild Flora Farm).
221
222 Andy Petesch said what is agritourism and a bona fide farm was the subject of a lot of debate and was the
223 subject of several public hearings before this board.And as the Board of Adjustment has already heard, in
224 July 2017, the General Assembly tried to clarify that and they created a very straightforward compliance
225 under the statute for a bona fide farm to conduct agritourism in a structure or building on a farm under
226 N.C.G.S. 153(A)-340 (b) (2a), located at the end of the agenda packet. This statute describes agritourism,
227 which includes weddings and special events, and states that a building or structure used for agritourism is a
228 bona fide farm activity if the building or structure is located on property that is owned by a person who holds
229 a qualifying sales tax exemption certificate. The same person or entity who owns the certificate also needs
230 to own the property. In some cases that may be a straightforward Joe Smith owns a property and holds a
231 certificate, but many farms have different entities for different aspects of their operations. That's where
232 Southeast Property Group, Wild Flora Farm, Kara Brewer had to resolve some of those inconsistencies.
233 That has been brought into alignment and those documents have been presented to Michael Harvey,
234 That's all there is to this case, Andy Petesch said. As this point, Wild Flora Farm and Kara Brewer hold the
235 certificate. Wild Flora Farm owns the property. There is no need to go into all these other document
236 requests, which is burdensome.
237
238 Andy Petesch said LeAnn Brown focused on"relevant' under the requirement of N.C.G.S, §1 60A-388(g),
239 but"reasonable in nature and scope" is also part of the requirement. Requesting to g❑ behind these
240 documents to look at personal, confidential financial information, tax records, and wanting to dig through
241 that looking for some issue to continue the fight against this property is an overreach at this point, he said,
242 Michael Harvey had those documents and this board has all the powers that he has. This board needs to
243 stand in his shoes and look at all this information fresh and determine whether this meets the statute. This
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244 board can look at the statute and reverse Michael Harvey's decision, This board does not need to look at
245 the legal relationship between Kara Brewer and her husband. That's invasive, burdensome and oppressive,
246 That's why this subpoena request should be denied. There is a list of entities in the subpoena request that
247 have not even been involved. KB Designs, for example, hasn't been brought up at any point in these
248 proceedings. So, in closing, this board's authority is to review the decisions that the planning staff make
249 with respect to enforcing the UDO and specific statutory guidance that informs that. To start looking at what
250 the Department of Revenue is doing and whether they made the right decision is completely outside the
251 scope of this board's authority and would be an abuse of discretion. He asked that they uphold the denial of
252 the request.
253
254 Leann Brown asked for a rebuttal. Karen Barrows said the board did not plan to entertain rebuttals.
255
256 Andy Petesch objected to rebuttals, noting each party had 10 minutes, which LeAnn Brown had used.
257
258 LeAnn Brown said she wanted to note that Andy Petesch had misspoken and the date on the document he
259 submitted to the board was February fig, 2018.
260
261 Karen Barrows asked if board members have questions.
262
263 Randy Herman asked Andy Petesch whether he agrees with LeAnn Brown that this board had found that
264 the challengers have standing. Andy Petesch said he objects to any finding of standing in this case as he
265 has objected to it at previous hearings.
266
267 Randy Herman said specifically N.C.G.S. 153(A)-340 (b) (2a), the agritourism provision, it states under
268 Subsection 1, that the building is a bona fide farm purpose if it is located on property owned by a person
269 who holds a qualified farmer sales tax exemption certificate. The certificate was issued to Kara Brewer and
270 the property owner was Southeast Property Group, now Wild Flora Farm LLC. Those are not all the same
271 person,
272
273 Andy Petesch answered the certificate is issued to Wild Flora Farm. The card itself is issued to Wild Flora
274 Farm. The addressee is Kara Brewer on the letter to which the card is attached.
275
276 Randy Herman said the card does not have the LLC after Wild Flora Farm. How is the Board of Adjustment
277 to know that is the same entity or person?
278
279 Andy Petesch answered that would be a matter that this board would have to decide at a hearing on that
280 issue.
281
282 Randy Herman asked LeAnn Brown whether this board had a specific finding that her clients have
283 standing, as they would be required to have standing to request the subpoenas.
284
285 LeAnn Brown said there was detailed testimony in one of the earlier hearings from each of her six clients.
286 And the board made the finding of fact that the individuals have standing. She said Andy Petesch made an
287 appeal to Superior Court on that finding. She can certainly spend a couple of hours putting these people on
288 the stand to establish these people having standing. There have been at least four appeals involving this
289 case. She asked that the board make judicial notice that her clients have standing and note Andy Petesch's
290 objection and move forward to keep this hearing brief.
291
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292 Randy Herman said to LeAnn Brown,on the elements of granting the subpoena request, she addressed
293 relevance, but there is also the requirements that the request be reasonable in scope and not oppressive.
294 He asked her to speak briefly on those requirements.
295
296 LeAnn Brown said what we have asked for from the individuals is that if there were materials submitted to
297 the Department of Revenue,which she thinks would exist in a fairly easy way to reproduce, that her party
298 be allowed to see them so that they can understand to whom that certificate was issued and whether it was
299 the kind of certificate it needs to be.An argument about what you can look behind is an argument for the
300 hearing in chief, she said. The dates for these entities do not match the date of the certificate. Wild Flora
301 Farm did not exist when the certificate was issued, for example; therefore, she thinks it was unlikely that the
302 certificate was issued to that entity. She said as far as the legal relationship between Chris and Kara
303 Brewer, the Brewers can put down husband and wife, no big deal. She thinks it is appropriate for her party
304 to ask for this information. She said she does not think it is oppressive to ask for this information, In order to
305 use this farm exemption,she thinks the property owner has to indicate a willingness to provide this
306 information in order for others to support that the property owner is entitled to this exemption. She said her
307 party has not intended to look for deep, dark secrets. She reviewed that her party has asked for information
308 submitted to the North Carolina Department of Revenue and Orange County regarding eligibility and
309 compliance under these statutory provisions, as well as the relationship. She wants to know, for example,
310 whether the entities were merged. She said Andy Petesch has argued to Orange County and to this board
311 that somehow this is all the same thing. She does not think it is oppressive or unreasonable to submit to
312 this board the packet submitted to obtain the certificate. She said the argument that Michael Harvey has all
313 of this information is incorrect. The agenda packet includes what Michael Harvey has.
314
315 Randy Herman said the board has documentation of the merger showing that Wild Flora Farm LLC and
316 Southeast Property Group LLC have merged and SPG was previously operating under the assumed name
317 Wild Flora Farm, so even if there was an issue about the identity at the time that the letter was issued, it
318 seems to him that it is possible that the issue would be moot at this point because the identities have all
319 merged. He asked if LeAnn Brown would like to address that.
320
321 LeAnn Brown said the reason we have requested these subpoenas is to answer some of these questions.
322 She said the questions Randy Herman asked her presupposed she knows the answers to those questions
323 in those documents. She said what she knows is that the Department of Revenue issued a certificate on
324 October 17, 2017, to Wild Flora Farm without an LLC attached to it and to Kara Brewer. She also knows
325 that three weeks later, Southeast Property Group LLC filed an assumed name certificate, Wild Flora Farm,
326 no LLC. She knows that Wild Flora Farm LLC was created on February 14, 2017, and that a merger
327 occurred on February 19, 2018. That information answers no questions for her about what information was
328 shown to the Department of Revenue--whose revenue was being used--to determine whether the
329 property owner was entitled to a certificate or what that certificate was. The document Andy Petesch gave
330 to the board is excellent evidence of why her party needs the subpoenas so that her party and the board
331 can understand how entities that did not exist when the certificate was issued play a role in whether that
332 certificate does appropriately apply to this property. She said if there is nothing in the documents to call into
333 question which entity it is and whether that entity is the owner, (whlch she would submit to the board that it
334 still is not), if we look at the materials and the materials do not support anything she wishes to argue, then
335 she supposed it would make her hearings somewhat shorter, she said. Her party is asking the board to let
336 them all know what they are dealing with. She said Andy Petesch can argue once everyone has seen the
337 information, Michael Harvey and John Roberts have not seen it.
338
339 Randy Herman said putting aside the issue of the identities, LeAnn Brown has also talked about the length
340 of time the income was reported, but it seems to him looking at the statute, assuming we have the correct
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341 property owner, once the property owner has brought forward a tax exemption certificate from the
342 Department of Revenue, the statute seems to require the county must accept that and cannot look behind
343 it. Aside from the issue of identity of the entities, what authority does LeAnn Brown think the Board of
344 Adjustment has to look behind the certificate issued by the Department of Revenue?
345
346 LeAnn Brown answered she thinks that is interesting and will be a question of first impression because the
347 statute is new. Whether a county has the authority to look behind the certificate has not been litigated. She
348 has never seen a tax exemption certificate issued to the owner of this property as Southeast Property
349 Group LLC or Wild Flora Farm LLC, so she has not asked that question yet because she is not past the
350 identity question. She thinks the county staff should have looked at the document and said the property
351 owner is Southeast Property Group LLC and the certificate is issued to Wild Flora Farm. Done. She thinks
352 that would have been correct. She asserts that the county looked behind the certificate and made an
353 argument that the legal formalities of corporate ownership and individual ownership somehow have no
354 meaning and issued an opinion which blended together a bunch of legal entities. She added that one
355 reason she wanted to bifurcate the hearing was because it is difficult for her to answer questions until she
356 can see what she is talking about. She is 100 percent certain that the Board of Adjustment does not hold a
357 tax certificate with the name of the property owner on it, even if we assume that a post-issuance merger
358 somehow has play here.
359
360 Andy Petesch said that was quite a bit of time that LeAnn Brown had and asked for 66 seconds.
361
362 Karen Barrows granted that time.
363
364 Andy Petesch said the question is what would this board would do with this information if they got it. If this
365 board starts going behind the Department of Revenue, there will be attorney fees awarded to Kara Brewer
366 and SPG and Wild Flora Farm because that is absolutely outside the scope of this board's authority. If this
367 board wants very specific additional documentation with respect to whether Wild Flora Farm LLC is what
368 the Department of Revenue intended when it issued the certificate, that can be addressed. The rest is
369 entirely unnecessary to determine that entity question.
370
371 Karen Barrows asked whether there were any other questions.
372
373 Barry Katz asked whether he understood correctly that regardless of the Board of Adjustment's decision, it
374 was going to be appealed to Superior Court.
375
376 Andy Petesch, standing with LeAnn Brown, said they could jointly respond. Andy Petesch said it was
377 uncharted waters and they are unsure how a court will treat an appeal of this decision. LeAnn Brown said it
378 is fair to say whatever the board does with this case, it will end up as an appeal somewhere. She believes
379 there are three or four appeals on this case already. She will have to appeal because without the
380 subpoenaed documents, her hands are tied to make burden of proof to this board.
381
382 Barry Katz said that was his understanding. He anticipated this. He then asked Andy Petesch whether the
383 fees he alluded to would be directed at LeAnn Brown's clients.
384
385 Andy Petesch said the county would be liable for attorney's fees, under state statutes,
386
387 LeAnn Brown said it is troublesome to her that the board would consider the threat of attorney's fees when
388 making a decision on this matter. Having read the statute several times, she does not think it is a foregone
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389 conclusion that the county would have to pay attorney's fees. She said the board has to make decisions on
390 what it thinks is right or wrong and not worry about that.
391
392 Barry Katz said theoretically after LeAnn Brown examines the information she seeks, one of the primary
393 determinations he thinks he hears from her is that the Planning Department was in error in making a
394 decision because of the lack of understanding of the chain of ownership and whether the owner was in a
395 position to make a request for a legitimate certificate.
396
397 LeAnn Brown said it is a simple question: who owns the property? Southeast Property Group LLC. Whose
398 name is on the certificate? Somebody else. The county did a pretzel twist to say well, this entity is really the
399 same as this entity, she said.
400
401 Barry Katz said it could have been a misunderstanding to actually grant it. Whatever entity it is that owns
402 this property did not have to appear before this board for a special use permit, etc., and then was granted
403 the use of this property to put the barn up in error.
404
405 LeAnn Brown said they applied for a special use permit. The board denied it. They appealed it and the
406 appeal was not perfected. They built the barn and took the position that the property qualified for the farm
407 exemption. And then the statute changed.
408
409 Barry Katz asked whether there was any case law that if an entity applies for a special use permit, it is
410 bound by the results of that application.
411
412 LeAnn Brown said she thinks there is. If the board looks at the errors she has alleged in the case in chief,
413 she will make the argument again that the event business should be stopped.
414
415 Barry Katz said over the two or three years this case has been coming before the Board of Adjustment,
416 there has been an evolution in terms of how the entity presents itself. He asked whether there is any
417 requirement from the entity to establish that they are a legitimate operating farm that has continuous
418 income while they do this event business,
419
420 LeAnn Brown asked that her answer on that be saved for a hearing on the merits.
421
422 Barry Katz said he had the impression that this would be a very different kind of hearing, so he had that
423 question in mind.
424
425 LeAnn Brawn said she had asked to keep this hearing brief because she was scheduled for surgery the
426 following morning and Andy Petesch had agreed to ask for this hearing to be bifurcated out of professional
427 courtesy to her and because they both agreed that the decision tonight would be important in determining
428 what happens next.
429
430 MOTION by Barry Katz to close the public hearing. Seconded by Susan Halkiotis.
431
432 VOTE: UNANIMOUS
433
434 Karen Barrows asked Susan Halkiotis for her thoughts.
435
436 Susan Halkitos thanked Randy Herman for his questions. She said she is squeamish about being
437 overreaching. She thinks Andy Petesch made good arguments. However, she comes down on the side of
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438 allowing the subpoenas to be issued. Without the subpoenas and information, there are remaining
439 questions to be answered. Her position is to allow the subpoenas to be issued.
440
441 Karen Barrows asked Randy Herman to express his thoughts. Randy Herman said he thinks it is legitimate
442 to ask whether the entity that owned the property was issued the certificate. He does not think the rest is
443 within the scope of this board. He does not think it is within the scope of this board to look behind the
444 Department of Revenue's decision. So, if it is passible to rewrite the request to limit the subpoenas only to
445 the issues of identity, he would be in favor of that. He deferred to the county attorney on whether or not the
446 board can do that.
447
448 Susan Halkiotis said she had a related question, LeAnn Brown mentioned questions about the qualifying
449 financial information to gain one of the farm tax exemptions. Susan Haikiotis does not know how that is
450 unraveled when the question of the entities is resolved. If information was given to acquire a certificate and
451 that certificate was then used to base a decision ❑n, and the certificate should not have been issued, then
452 the whole thing falls apart.
453
454 Randy Herman said even if theoretically in another case fraudulent information was provided to obtain the
455 certificate, he does not think the county can look behind it, He thinks the only question this board can look
456 at is whether the entity issued the certificate was the one that owned the property, His opinion is that the
457 board does not have the power to look at whether the Department of Revenue miscalculated the revenue.
458
459 Barry Katz said this is the kind of information that the board needs to know and would be argued before us
460 at the next hearing we have with these parties. He then said he was not sure whether Randy Herman is a
461 lawyer and giving a legal opinion. He is in favor of issuing the subpoenas and that LeAnn Brown and her
462 party have a legitimate right to have this information.
463
464 Randy Herman said he is an attorney, but there is no case law that he is aware of on the interpretation of
465 these statutes. His opinion is based on what he thinks is a straightforward reading of the statutes.
466
467 Karen Barrows said she agrees with Susan Halkiotis and Barry Katz that the board should allow the
468 subpoenas to go forward, for the reasons they have stated.
469
470 MOTION by Barry Katz to issues the subpoenas. Seconded by Susan Halkiotis.
471
472 VOTE: 3.1 (RANDY HERMAN FOR REASONS PREVIOUSLY STATED)
473
474 Karen Barrows called for a vote to adjourn.
475
476 Michael Harvey said that before adjournment the board needed to set the date for the next hearing on this
477 case, with guidance from James Bryan.
478
479 There was agreement to give LeAnn Brown time to recover from surgery.
480
481 LeAnn Brown requested that the date that the documents requested in the subpoenas be submitted to the
482 board be before the next hearing on this case so that she would have time to prepare. Andy Petesch
483 objected to providing the documents in advance of the hearing, explaining that he believes he and his
484 clients would be obligated to produce the documents at a hearing and not before. Randy Herman agreed
485 with that interpretation.
486
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APPROVED JUL Y 9, 2018
487 There was then discussion of holding a hearing for the sole purpose of receiving the documents.
E 488
489 James Bryan suggested holding a Board of Adjustment meeting in July for the sole purpose of receiving the
490 documents.
491
492 There was then question of whether witnesses were required to appear in July.
493
494 Andy Petesch said if witnesses were required to appear, he would need a much more specific list of
495 questions consistent with discovery rules.
496
497 Karen Barrows said she thought only the documents were being required in July.
498
499 Andy Petesch said he was not waiving his objection to producing the documents earlier than the hearing on
500 the matter.
501
502 LeAnn Brown said the subpoenas attached to the original request ask that witnesses appear before the
503 Board of Adjustment on a date certain and ask that the documents be produced in advance on a date
504 certain. Rule 45 allows that. She thinks it is appropriate to require that.
505
506 The board returned to discussing when in July the documents would be required. James Bryan noted the
507 Board of Adjustment's next meeting would be July 9. He suggested having the people who are subpoenaed
508 appear at the August Board of Adjustment meeting on August 13.
509
510 Karen Barrows asked for a motion.
511
512 Susan Halktiois told the attorneys in the room that she does not know what Rule 45 means and whether it
513 does require that the subpoenaed documents be submitted at a hearing of this board.
514
515 James Bryan said if there is nothing else on the agenda and that is the whole reason everyone has to show
516 up, it might be frustrating.
517
518 Barry Katz said he was in favor of setting the dates of July 9 for the subpoenaed documents and August 13
519 for the subpoenaed people, acknowledging that Andy Petesch and LeAnn Brown had said that whatever
520 the board decided this evening, there would be an appeal. Therefore, those dates may not remain the
521 same,
522
523 Karen Barrows called for a motion.
524
525 MOTION by Barry Katz to have the information presented on July 9, 2018, to the Board of Adjustment with a
526 further meeting of all parties August 13, 2018. Seconded by Susan Halkiotis.
527
528 VOTE: UNANIMOUS
529
530
531 AGENDA ITEM 5: ADJOURNMENT
532
533 MOTION by Barry Katz to adjourn at 8:14 p.m. Seconded by Randy Herman.
534
535 VOTE: UNANIMOUS
536
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APPROVED JULY 9, 2018
537
538
539 NAME OF CHAIR,CHAIR
V i,C e- ej,.ct l c
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