Residential Zoning

Old MacDonald Had a Farm. Wait, Maybe He Didn’t.

In March 2015, Katie and Chris Brewer bought 22 acres in Chapel Hill, Orange County – a rural, wooded spot – through an entity called Southeast Property Group, LLC.  Among other things on their property, the Brewers intended to transplant an 1860s barn from upstate New York onto the property.  According to an undated General Information Sheet submitted by Ms. Brewer, the property will include a “[b]arn for Agricultural use, including but not necessarily limited to, the storage and processing of agricultural products and equipment; agritourism such as educational workshops, school field trips, weddings, retreats, and farm dinners; and support for all other activities related and incidental to the operation of a farm.”

In 2015, the Brewers applied to the Board of Adjustment for a special use permit to develop a retreat center on their property.  In November 2015, after a quasi-judicial proceeding, the Board of Adjustment denied the Brewers’ application.  The Brewers did not appeal.

In March 2016, Ms. Brewer filed a “Bona Fide Farm Exemption Affidavit” with the Orange County Inspections Department claiming that the transplanted barn is “exempt[] under N.C.G.S. 153-340(b) from possessing a Zoning Compliance Permit (required Orange County UDO 2.4.1)” because Ms. Brewer certified that (1) “the property is a bona fide farm because I possess: … (d) a forest management plan, (e) a Farm Identification Number issued by the USDA Farm Service Agency” and (2) “the building’s bona fide farm purpose performed on the farm will be: (a) the production and activities relating or incidental to the production of crops, grains, fruits, vegetables, ornamentals and flowering plants, dairy, livestock, or poultry, (b) some other form of agriculture, as defined in N.C.G.S. 106-581.1”.

Rich Ducker from the UNC School of Government wrote a good piece on “bona fide farms”, which you can view here.  Consider Professor Ducker’s statement here, in light of what the Brewers claim as to their exemption: “Several of these safe harbors—qualifying for present-use-value taxation (item b), filing an IRS form demonstrating farm activity (item c)—even obtaining a farm sale tax exemption certificate—involve the regulatory authority of either the state or federal government. In each case, the government has an incentive to prevent abuse and fraud concerning eligibility. However, for several of these forms of verification—particularly a “forestry management plan” or the issuance of farm identification numbers—there is no independent review of actual farm activity on the site. For the regulatory purposes described below, there is some reason to wonder whether all future claims of qualification for the “bona fide exemption” will be truly genuine.”

The barn, it seems, is subject to relatively intense neighbor opposition.  The Independent Weekly covers the drama well here and here.  At the core, the neighbors think the Brewers’ proposed use is not a bona fide farm, is subject to the Orange County UDO, and requires a special use permit.  In other words, the dispute is not whether the use is permitted but rather whether the use is exempt from the local zoning laws or subject to the special use permitting process of the local zoning laws.  Landowners like exemptions.  Neighbors prefer process.

On November 7, 2016, upon remand by the Orange County Board of Adjustment for reasons we won’t get into here, the County Planning Staff rendered a final and binding determination finding that (1) “In accordance with the aforementioned provisions of State law the property is being used for bona fide farm purposes.  Staff can only require a Zoning Compliance Permit per Section 2.4 of the UDO for the use of farm property for non-farm purposes and swine farms as detailed with N.C.G.S. 153A-340(b)(3)”, (2) “The structure being erected on the property shall be used for bona fide farm purposes.”, and (3) “The use of the barn structure for weddings is related and incidental to the property being used for bona fide farm purposes and is consistent with what constitutes ‘farming’ and ‘agricultural’ activities as defined within the General Statutes”, and concluding that “[a]s previously indicated herein ‘farm buildings’ are exempt from having to obtain a building permit” and therefore “[l]egally Ms. Brewer was not obligated or mandated to secure [a building permit] to erect her barn structure”.

On or about December 1, 2016, certain of the Brewers’ neighbors filed an appeal of the County Planning Staff’s November 7, 2016, final and binding determination.  Taking care to allege facts sufficient to confer standing, the neighbors essentially claim the County Planning Staff erred in its determination on the following grounds: (1) the Staff “issued [its] determination prior to the time that the Board of Adjustment’s Order was reduced to writing and served upon the parties … and, therefore, issued [tis] determination without consideration of the Board of Adjustment’s findings of fact and conclusions”, (2) the Brewers are estopped from claiming the proposed development is exempt from zoning because the Brewers previously sought, and failed to obtain, a special use permit, (3) the Orange County UDO prohibits the Brewers from applying for a building permit after denial of its application for a special use permit, (4) Orange County is required to enforce its UDO regarding non-farm uses, and “the facts do not show that the event venue is ancillary to a farming operation [n]or is agritourism”, and (5) the County Planning Staff “erred in interpreting the Orange County UDO, the provisions of N.C.G.S. 153A-340, and other applicable laws in determining that no zoning approval of the Brewers’ building permit was required”.

The Orange County Board of Adjustment will hear the neighbors’ appeal on March 13, 2017.

Observations

–One might think the Board will be receptive to this appeal, seeing as the Board denied the special use permit in 2015.  Well, this is a different legal process with different legal process and jurisdiction, of course.  Also, Boards change.

–Estoppel is an interesting argument, here.  If the local government does not have the power to regulate, can it nonetheless be “estopped” into regulating?  The neighbors are essentially arguing this.

–Focus on the relief.  If the Board sides with the neighbors on the argument that the County Planning Staff “jumped the gun”, what does that get the neighbors?  Perhaps the Board’s Order will so direct the County Planning Staff that it cannot determine the Brewers’ proposed use to be a bona fide farm.

–This is not about whether a bona fide farm can engage in “events” or “agritourism”.  That appears to be settled.  Rather, it’s really about what it means to be ancillary to the bona fide farm.

Categories: Residential Zoning

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