Minutes of 10/10/2006 Board of Adjustment Meeting [adopted]
Russ W O'Melia
Board of Adjustment Minutes
Wake County Board of Adjustment
Tuesday, October 10, 2006
9:00 am, Room 700
Wake County Courthouse
316 Fayetteville Street Mall
Raleigh, North Carolina
Members Present (6):
Mr. A. Thomas Anderson, Mr. Billy Myrick, Mr. Art Odom, Mr. Tim Sack, Mr. John Welch, Ms. Genevieve Sims
Members Not Present (3):
Mr. Ronald Raxter, Mr. James Compton, Mr. Jeffrey Willis
Staff Present (3):
Mr. Reginald Goodson (Land Development Administrator), Ms. Brenda Coats (Planner II), Mr. Larry Morgan (Planner II), Ms. Melanie Wilson (Planning Director), Mr. Russ O'Melia (Interim Secretary to the Board)
County Attorney Present:
Scott Warren (Deputy County Attorney)
IN RE MINUTES
Item 1, Call to Order:
Vice Chairman Odom called the meeting to order at 9:00 a.m. with six (6) members present.
Item 2, Approval of Minutes
of September 12, 2006 meeting. Vice Chairman Odom asked if there were any additions or corrections to the minutes. Mr. Anderson made a motion that the Board adopt the minutes as written. Mr. Sack seconded the motion. All members present voted aye. So ordered.
Vice Chairman Odom stated for the benefit of anyone in the audience who had not attended a meeting of the Wake County Board of Adjustment, that the meeting is a quasi-judicial proceeding. Anyone wishing to present testimony and/or evidence will be asked to come forward and be sworn or affirmed. The petitioner will be given the first opportunity to present testimony and/or evidence. Anyone wishing to speak in favor or opposition will present testimony and/or evidence. The petitioner will then be given an opportunity to respond.
For the record, staff member Mr. Larry Morgan and Board member A. Thomas Anderson were present on the site tour on Monday, October 9, 2006.
Ms. Brenda Coats was sworn to present testimony for staff.
Item 3, BA SU-2068-06:
Petitioner: Gil Clark
Landowner: Gardner C. and Shirley P. Hodge
PIN: 1742.03 43 7356
Location: Eastern side of Hodge Road, south of its intersection with Sidecreek Drive. Access to the site is from an existing path off of Hodge Road.
Zoned: Residential-30 (R-30)
Land Area: 14.0 acres
Item No. 3 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, October 10, 2006, was a Special Use Permit, Petition No. BA SU-2068-06. The petitioner is Gil Clark. The landowner is Gardner C. and Shirley P. Hodge. The property is located on the Eastern side of Hodge Road, south of its intersection with Sidecreek Drive. Access to the site is from an existing path off of Hodge Road. The following members of the Board heard and decided this petition: Vice Chairman Odom, Mr. Anderson, Mr. Myrick, and Mr. Sack, and Ms. Sims.
In this case the petitioner requests special use permit approval as required by Section 4-76 of the Wake County Unified Development Ordinance to place a temporary second dwelling unit for custodial care due to medical conditions of the occupants of the primary dwelling.
Mr. Myrick stated that he is an adjacent property owner in this case and asked Vice Chairman Odom how he felt about him hearing the case. Mr. Warren stated that if anyone who had interest in the case had an issue with Mr. Myrick hearing the case, it would be best if Mr. Myrick recused himself. However, if there are no objections by the petitioner or anyone in opposition, then it would be fine for Mr. Myrick to hear the case. Vice Chairman Odom told the audience that if anyone has objection to Mr. Myrick hearing the case to let the Board know when they testify.
SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED
: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Special Use Permit Application dated 7-10-06; Statement of Justification; Preliminary Special Use Permit Site Plan; Letter from Maria F. Spaulding, Executive Director of Wake County Human Services; Letter from Mary G. Conley, M.D.; Letter from Daniel J. Bliley, Licensed Soil Scientist; six photographs: (1) Western view from entrance to site at end of Hodge Road, (2) Northern view down Hodge Road from entrance to site, (3) Southeastern view towards site southeast of Hodge Road; (4) Southwestern view towards adjacent property, (5) Eastern view towards existing residence and accessory structures on site, and (6) Southern view towards existing residence on the site.
: Ms. Coats entered the staff report for BA SU-2068-06 into the record and stated that this is a special use request. The petitioner is Gil Clark. The landowner is Gardner C. & Shirley P. Hodge. The property is zoned Residential-30 and located at 3137 Hodge Road. The special use request is to place a temporary second dwelling unit for custodial care due to medical conditions of the occupants of the primary dwelling. The property is located on the east side of Hodge Road, south of its intersection with Sidecreek Drive. There is no flood hazard soil or FEMA soil on the property. The property consists of 14.0 acres. The site plan shows the existing small dwelling that is located there. The petitioner is proposing to place a mobile home to live in to help care for her ailing parents. The property is located within the Raleigh-Knightdale Area Land Use Plan; it is not located within a regional Activity Center, but it is a residential use, so it is consistent with the Land Use Plan. The landowners are in declining health, and there is not enough room in the existing dwelling for two families. The daughter will place a mobile home on the property to help care for her parents as long as is needed. One of the requirements in requesting a special use permit for a temporary second dwelling is a recommendation from the Executive Director of Wake County Human Services; this has been included in the documentary evidence as well as an additional letter updating the status of the father. The landowners and the daughter are both aware that the second dwelling unit is temporary and will have to receive special use approval, including the recommendation of the Executive Director of Wake County Human Services and their physician, within 2 years if the custodial care is still needed. Once the custodial care is no longer needed, the mobile home will need to be removed within 60 days. There are no bufferyards or screening requirements for the residential use.
Joy Sills, 3137 Hodge Road, Knightdale, NC was properly sworn. She said that she has sold her home so that she can look after her parents. She said that the home is not large enough for her husband and the parents. She wants to take care of her ailing parents. She would like to buy a mobile home and put it on the land to care for her parents as she sees fit.
Vice Chairman Odom asked if Ms. Sills had any objection to Mr. Myrick hearing the case.
Ms. Sills responded that she did not have any objection.
Vice Chairman Odom closed the public hearing.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE BOARD
The Board of Adjustment shall not approve a petition for a Special Use Permit unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Section 1-1-11 (C) of the Zoning Ordinance in order to approve or deny this special use request:
(1) The proposed development will not materially endanger the public health or safety.
a. Traffic conditions in the vicinity, including the effect of additional traffic on streets, street intersections, and sight lines at street intersection and curb cuts.
b. Provision of services and utilities, including sewer, water, electrical, garbage collections, fire protection.
c. Soil erosion and sedimentation.
d. Protection of public, community, or private water supplies, including possible adverse effects on surface waters or groundwater.
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses.
(3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity.
a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved.
b. Whether the proposed development is so necessary to the public health, safety, and general welfare of the community or County as a whole as to justify it regardless of its impact on the value of adjoining property.
(4) The proposed development will be in harmony with the area in which it is located.
a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved.
(5) The proposed development will be consistent with the Wake County Land Use Plan.
a. Consistency with the Plan's objectives for the various planning areas, its definitions of the various land use classifications and activity centers, and its locational standards.
b. Consistency with the municipal and joint land use plans incorporated in the Plan.
Staff recommends that, if the Board of Adjustment reaches positive conclusions on all of the required findings, that it approve the request subject to the following conditions:
(1) The petitioner must obtain approval from the Department of Environmental Services for the well and septic system.
(2) The petitioner must obtain a building permit from the Wake County Inspections/Development Plans/Permits Division.
(3) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Planning Department.
(4) The petitioner must return to the Board of Adjustment every 2 years for special use approval for the temporary second dwelling unit to remain due to medical conditions.
(5) The petitioner must provide a letter from the Director of the Wake County Department of Human Services that the temporary special use permit be considered based on the attending physician’s written statement certifying medical need for custodial care due to advanced age or medical condition every 2 years to the Board of Adjustment.
(6) The temporary second dwelling unit is to be disconnected and removed from the property within 60 days after the medical necessity ceases to exist or after the temporary special use permit expires, whichever occurs first.
Mr. Myrick stated that he lives right across the road from this location, so if anyone would be affected by this case it would be him. He stated that he fully supports Ms. Sills being able to move the mobile home to the property to support her parents. Mr. Myrick made a motion that in the matter of BA SU-2068-06 the Board find and conclude that the petition does meet the requirements of 19-23 of the Wake County Unified Development Ordinance and the special use permit be granted with the recommended staff conditions. Mr. Anderson seconded the motion. With a vote of 5-0, the motion passed. So ordered.
Item 4, BA A-2064-06:
Petitioner: Beth Trahos, Smith Moore, LLP
Landowner: Charles R. and Sue M. Nielsen, William Kent and Kimberly N. Cummings (owner and tenant)
PIN: 1778.02 78 0252 and 1778.02 87 0025
Location: Northern and southern side of Winding Ridge Road, between Mitchell Mill Road and Ridge Spring Road, in northeastern Wake County.
Zoned: Residential-40 Watershed (R-40W)
Land Area: 17.72 acres and 7.5 acres
Item No. 4 heard at the regular meeting of the Wake County Board of Adjustment held on Tuesday, October 10, 2006, was an Appeal, Petition No. BA A-2064-06. The petitioner is Beth Trahos, Smith Moore, LLP. The landowners are Charles R. and Sue M. Nielsen. The property is located on the northern and southern side of Winding Ridge Road, between Mitchell Mill Road and Ridge Spring Road, in northeastern Wake County. The following members of the Board heard and decided this petition: Vice Chairman Odom, Mr. Anderson, Mr. Myrick, Ms. Sims, and Mr. Welch.
In this case the petitioner is appealing the determination of the Land Development Administrator that the commercial boarding of horses, trailer storage and riding lessons located at 6801 and 6919 Winding Ridge Road is not a bona fide farm use and therefore in violation of the following sections of the Wake County Unified Development Ordinance (UDO): 19-42
Permitted Use Table
SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED
: Staff report, PowerPoint slide presentation and videotaped presentation of the site; Zoning Appeal Application dated 8-1-06; Statement of Justification; Request for Investigation of Possible Zoning Violation and attached letter dated 6-19-06; Letter from Wake County Planning staff to Mr. & Ms. Cummings dated 07-03-06; Letter from Ms. Cummings to Planning staff dated 07-10-06; Letter from Mr. John P. Blake to County Manager David Cooke dated 07-21-06; Letter from Land Development Administrator Reginald Goodson to Mr. John P. Blake dated 8-15-06; Letter from Wake County Planning staff to Mr. & Ms. Cummings dated 08-23-06; Letter from Ms. Connie S. Allison dated 09-08-06; Letter from Ms. Wanda Warren and Mr. Helmut Hagleitner dated 09-15-06; Vicinity Map dated 8-22-06; sixteen photographs: (1) Northeast view of large barn located at 6801 Winding Ridge Road, (2) Southeastern view towards large barn at 6801 Winding Ridge Road from adjacent property north of the site, (3) Eastern view towards large barn located at 6801 Winding Ridge Road, (4) Northwestern view of large barn (addition) located at 6801 Winding Ridge Road, (5) Eastern view from gravel drive towards property at 6801 Winding Ridge Road, (6) Northwestern view at property located off of 6801 Winding Ridge Road, (7) Eastern view towards large barn located at 6801 Winding Ridge Road, (8) Northwestern view of large barn (addition) located at 6801 Winding Ridge Road, (9) Southeastern view towards large barn at 6801 Winding Ridge Road from adjacent property north of the site, (10) Southwestern view towards driveway to large barn at 6801 Winding Ridge Road (trailers on site), (11) Eastern view towards old barn located at 6801 Winding Ridge Road, (12) Northeastern view of barn located at 6916 Winding Ridge Road, (13) Northwestern view of barn located at 6916 Winding Ridge Road, (14) Northern view at eastern side of large barn at 6916 Winding Ridge Road, (15) Southeastern view towards small barn located at 6916 Winding Ridge Road, and (16) Southeastern view at 6916 Winding Ridge Road towards small barn in background.
: Ms. Coats entered the staff report for BA A-2064-06 into the record and stated that this is an appeal. The landowners are Charles and Sue Nielsen and Kimberly and Kent Cummings. There are two separate pieces of property and two different landowners. The properties are located at 6801 and 6919 Winding Ridge Road. Both properties are zoned Residential-40 Watershed (R-40W). The petitioners are appealing the determination of the Land Development Administrator that the commercial boarding of horses, trailer storage and riding lessons is not a bona fide farm use. One property is located on the northern side of Winding Ridge Road between Mitchell Mill Road and Ridge Spring Road, and the second piece of property is located on the south side of Winding Ridge Road. There is flood hazard soil that is on both pieces of property. Wake County Zoning staff received a complaint about construction that was taking place on the property, questioned the use of commercial boarding and riding on the property, and stated that additions were being made to the existing barns. One complaint was that manure was being piled five feet from the neighbor's property boundary. Ms. Coats said that staff from Planning, the Fire Marshal's Office, and Environmental Services visited the site, and the manure had been taken care of. The manure is hauled off the site weekly. Mr. Cummings invited staff into the barn and told staff about some of the construction that had taken place at 6916 Winding Ridge Road. There was some confusion about whether the 7.4 acre property's address was 6916 or 6919 Winding Ridge Road. There was some repair done on the interior of the barn. Staff went to the other piece of property that is owned by the Nielsens where the Cummings live; this is the larger tract. The barn at this location had a two-stall addition on the rear, a bathroom addition, and a septic system without the proper permits. Ms. Coats said that staff has been in contact with the landowner as well as the person who filed the complaint. The petitioner filed an appeal which stays all enforcement. When the staff went to the site, there was a joint inspection with all of the staff. There was commercial boarding of horses, storage of trailers, the equestrian use on the property, the expansion of the barn without the permits at 6801, the interior reconstruction of the barn at 6919, a bathroom addition, a waste disposal system, and the horse stalls without the permits. The following information was considered by the Land Development Administrator. Staff met with the Wake County Attorney concerning bona fide farm uses. The Wake County Zoning Ordinance and the Unified Development Ordinance allows the commercial boarding and riding only as a special use. The determination was made with the Wake County Attorney that secondary business use, such as a landscape business, beauty parlor, grading contractor, is not considered a bona fide farm. The sale of farming tools and implements is not incidental to a bona fide farm and is not exempt from zoning regulations. The personal use of such tools is incidental. The boarding of horses and providing riding lessons is not exempt from zoning regulations. Breeding horses for the benefit of personal use is a bona fide farm use and exempt from zoning regulations. Transporting timber and other goods from another property to the farm site to produce mulch is not exempt since the timber was not produced on the farm. The key phrase in determining a bona fide farm use is production of agricultural products on the site. Equestrian facilities, riding clubs, and stables require special use approval when located within a residential zoning district. Section 4-33 of the UDO allows these types of uses when the following standards have been met:
(1) Minimum tract or lot size of ten (10) acres.
(2) Designated paved/gravel parking area of sufficient size to meet the minimum parking requirements shown and cannot be located within a required setback.
(3) Outside storage is not permitted with any required setback and must be screened or located where it is not visible from any adjoining property.
(4) Approval of water and sewer is required prior to any use or building permits being issued.
Section 19-42 of the UDO states in part that no wall, structure, premises, or land used, building or part thereof may be constructed or altered until application has been made and the proper permit has been obtained. This requirement includes any prima facie businesses or activities.
Ms. Sims asked whether the correct address is 6916 or 6919. Vice Chairman Odom stated that the file states that the assigned address is 6916. Ms. Sims asked whether the interior construction viewed during the joint inspection was at 6916. Ms. Coats said that was correct.
Mark Tucker, Kent Cummings, and Kim Cummings were properly sworn. Mr. Tucker is representing the Cummings in this case. Mr. Tucker said that they are appealing a notice of violation of the Wake County Zoning Ordinance for the commercial boarding of horses, trailer storage and riding lessons. They have appealed that decision because their position is that the farm on the property is used for a bona fide farm use, and the activities such as boarding, trailer storage, and riding lessons are related to or incidental to that bona fide farm use and therefore exempt from the applicable zoning ordinance pursuant to North Carolina General Statute §
153A-340. He stated that they are present to discuss the zoning issue; they understand that there are some building permitting issues and they are not contesting those. The Cummings understand and acknowledge that they will need to comply with all building codes with respect to those structures. Mr. Tucker noted that the manure pile has been taken care of, and they have filed an application for a permit for the septic system. He said that the site is a farm, and whether there is money to be made does not dictate the outcome of the case. All farms are commercial, whether it is a dairy farm, a corn field, or a tobacco field. Even though there are third parties involved with the boarding, lessons, and storage of trailers, the presence of a third party does not dictate the outcome that these actions are not incidental to a bona fide farm use. Mr. Tucker said that all across the county and state property owners who lease their farmland and let third parties come onto the land to farm it. He said that the key is to focus on what is happening on the Cummings' farm. He said that the farm is used for the raising and breeding and sale of horses. In particular, the Cummings raise horses in the equestrian discipline of jumping. The breeding and sale of horses is the end result of what can amount to a fifteen to twenty year process that starts with a colt or filly which grows and matures; the colt or philly is then ridden and trained in the jumping discipline, and the horses are taken to shows where hopefully they perform well, gain recognition and increased marketability with which they can then breed and sell the horses. Mr. Tucker said that this is not a riding club; they do not sell memberships, and it is not open to the public. You cannot go to the Cummings' farm and take a riding lesson or a trail ride. They do not have parties or activities open to the public. The farm is used solely by the Cummings and the other individuals that have their horses on the property. Mr. Tucker said that horses are considered livestock under the applicable statute 153A-340, and the Cummings are in the business of raising, breeding, and selling the horses. The exemption found in that statute does not apply solely to the specific bona fide farm use; it extends to all activities that are related to and incidental to that use. Mr. Tucker stated that their position is that the riding lessons, the boarding, and the storage of the trailers are incidental and related to that bona fide farm use. He said that the statute does not say what incidental is or what it means, but there are some case law in North Carolina that does give some guidance as to what an incidental activity is. Mr. Tucker brought up a case from Durham County that involves a horse farm. The case is County of Durham vs. Roberts. In the case, the property owner wanted to develop a horse farm. The problem with the land was that it was not conducive to having a pasture, so the property owner removed the top three feet of clay from their land to get to the good soil for pasture, and sold the clay to fund the construction of the horse farm and the creation of the pasture. Durham County said that the property owner was in violation of the zoning ordinance because they were extracting minerals. The land owner disagreed and said that they were a bona fide farm use and exempt from zoning regulations. The case went to the North Carolina Court of Appeals. The court said that the breeding and raising of horses constitutes the production of livestock, and the removal of clay from the property was incidental to a bona fide farm use. Mr. Tucker cited another case from Orange County, Sedman vs. Rijdes. In that case there was a gentleman who had a commercial nursery, and on his property he had four greenhouses that covered an acre each. In each greenhouse he had concrete floors, exhaust fans, and internal climate control devices. There was also a large metal building with a loading dock and a paved road to facilitate transportation of the product. There was a challenge as to whether all of these ancillary activities were a bona fide farm use, and the North Carolina Court of Appeals stated that the "use of modern and efficient equipment and methods in growing, cultivating and harvesting agricultural products by a greenhouse did not preclude the greenhouse from qualifying for the exemption." Mr. Tucker stated that this was another example with a number of items that you would not traditionally associate with a bona fide farm use which facilitate the growing of livestock or vegetables and plants as being deemed incidental to the bona fide farm use.
Kim Cummings, 6801 Winding Ridge Road, Zebulon, NC, stated that they moved out to the horse farm three years ago because they were tired of living in the city. She said that she has been riding all her life, both of her children ride, and they needed a home with their horses. She said that they show their product a lot. On the farm between the two properties, they have about 35 acres with about 30 horses on the property, 11 of which she owns. She said that they have a mare and foal who is due in the spring. Her mare had a foal in February 2005. They bred her again last spring, and both twins died. At that point, they thought they would wait to get a broodmare. Ms. Cummings said that the gestation period for a horse is eleven months; you have to be able to afford the breeding of the stallion, and this could cost anywhere from $5,000 to $100,000. Boarding was a way for them to be able to afford what they are trying to do since it is a four-year process. She said that the trailers are there if the horses need to go to the vet school in case of emergency. In addition, the trailers are used to take the horses to horse shows to market their product. She said that both she and her children take lessons and work with the babies to prepare them for shows. She said that the ultimate goal is to breed, train, and sell the babies.
Ms. Sims asked how many horses are on the property. Ms. Cummings answered that there are thirty. Ms. Sims asked how many of those are owned by her. Ms. Cummings answered that she owns twelve. Ms. Sims asked when the contract for the manure removal began. Ms. Cummings believed that it began in June of 2006. She said that they were spreading the manure on their fields.
Mr. Anderson asked when they bought the property. Ms. Cummings said 2004. Mr. Anderson asked what the zoning of the property was at that time. Ms. Cummings answered R-40W. She said that the barns were already there. Mr. Anderson said that it was a use on a residential property of a barn.
Mr. Sack asked Mr. Tucker about his testimony that the farm is not open to the public. Mr. Tucker said that there are lessons on the property, but the lessons are limited to the individuals that have horses there. Mr. Sack asked about the ad for Idlewild Farm that says, "Hunter lessons offered, on site instructor, training, shows." Ms. Cummings said that you would have to have your own horse at the farm. Mr. Sack asked if they keep records of the breeding of the horses. Ms. Cummings stated that her veterinarian has the records. Mr. Sack asked if they were the only ones at the site breeding horses or if the others that have horses there are in the business of breeding horses. Ms. Cummings said that some do; they look to her to help facilitate the breeding process. Mr. Sack asked if that had taken place. Ms. Cummings said yes, they have a mare and foal there now.
Mr. Myrick asked if they have a farm use on her taxes. Ms. Cummings said they have an agricultural exemption. She said that she has a crop production number with the USDA. Mr. Myrick asked if they have a Wake County farm number. Ms. Cummings said that they do. Mr. Myrick asked if they qualify to not pay North Carolina taxes when they buy feed. Ms. Cummings said that she has that exemption to buy her feed and hay.
Ms. Sims asked how long they have had those tax exemptions. Ms. Cummings answered that they have had them since they started three years ago. She said that the farm has continuously been in production.
Mr. Myrick asked if she had those documents with her. Ms. Cummings stated that she did not. Mr. Tucker said that he does have a copy of the NC Department of Revenue agricultural exemption.
Mr. Sack asked what crop they produce. Ms. Cummings answered that they produce hay and grass. Mr. Sack asked if that was sold to the public or used for consumption on the property. Ms. Cummings answered that it is used only for consumption on the property. Mr. Sack asked if there was anything produced on the property that is sold to the public. Ms. Cummings answered horses. Mr. Sack asked if the hay is available to the public. Ms. Cummings said no.
Ms. Sims asked how one would get their horse boarded on the farm. Ms. Cummings said that they have to go through a process. The person is required to take hunter jumper lessons if they have their horse there. The person has to pay the farm board. The Cummings would need to think they are a great person. The person would have to sign a contract and waiver. Ms. Cummings said that she has not gotten one single response from the ad that was read; it has all been word of mouth.
Ms. Sims said to Mr. Tucker that he testified that the farm is not open to the public for riding lessons or trail rides. She asked Mr. Tucker, given what Ms. Cummings described as the process for getting a horse boarded there, how that is not open to the public. Mr. Tucker apologized if his testimony was confusing. He said that the facility is only available to those who have horses on the property. He said that only the Cummings or the individuals that have horses there can use the Idlewild Farm and take lessons.
Ms. Sims said that they are dealing with a Unified Development Ordinance requiring a special use permit because this particular property is located within a residential area. She said that the Durham County case dealt with land located within a rural area and not a residential area. Ms. Sims asked Mr. Tucker how that Durham County case applies in this instance. Mr. Tucker said that the case applies in this instance in that it stands for the position that horses are considered livestock pursuant to the statute, and the breeding of horses constitute the production of agriculture. He said that second point deals with helping understand what is incidental. Ms. Sims asked whether Mr. Tucker was ignoring the fact that the farm is in a residential area and focusing on whether it is a bona fide farm use. Mr. Tucker stated that it is a residential area, and the surrounding area contains properties that have horses. They do not have horses in a subdivision. Ms. Sims asked whether the neighbors are boarding other people's horses or if the horses on neighbor's properties owned by the neighbors. Ms. Cummings answered that the horses are owned by the neighbors.
Mr. Welch asked how many of the horses that the Cummings do not own are assisting in the breeding. Ms. Cummings answered four. Mr. Welch asked how many trailers are stored on the property. Ms. Cummings answered five. Mr. Welch asked how many of those trailers the Cummings own. Ms. Cummings answered three. Mr. Welch asked Mr. Tucker about the Durham County case. He asked how they could expand the scope of that case beyond the personal use into a commercial use. Mr. Tucker stated that farms are commercial in nature, and that people are selling a product. Mr. Tucker said that in the case the argument against the property owners was that they were not engaged in the production of livestock because they were not selling them. It was the position of the County that in order to qualify they had to be selling the horses. The court ruled that even the breeding of horses for personal use met the exemption. Mr. Tucker said that he thinks it is a logical extension of that in light of the arguments made that the commercial sale of horses clearly falls within the production of livestock. Mr. Welch said that the one distinction he sees is that in all of the situations cited by Mr. Tucker the farm operators own all of the livestock and crops on the farm and they produce those crops and livestock that they own and sell it or board and breed the animals that they own rather than allowing someone else to bring their property for their own use in that situation. Mr. Welch asked how to make the jump from a commercial farmer who owns everything on the farm and everything being produced to Ms. Cummings' situation where she owns 12 of 30 horses and three of five trailers and lets other people come onto the farm to make money to sustain her own activities. Mr. Tucker said that the statute exempts farms that are used for bona fide farm use, in this case the raising, sale, and breeding of horses being the bona fide farm use. He said that the exemption also applies to activities that are related to and incidental to that bona fide farm use. He said that third parties boarding their horses on the property and storage of a trailer on the property or having a riding lesson is incidental to the end goal of selling and breeding horses. He said that each of those activities facilitates the ability of the Cummings to breed and sell the horses. He said that there is a 15 to 20 year process before which a horse is marketed and can be sold, and the horse needs to be taken care of and fed. He said that because of the nature of the farm, they need money in order to do that, and the money comes from the boarding which facilitates and enables them to breed and sell. He added that the riding lessons help the riders, and it also trains the horses. It is necessary to train the horses because they are not born knowing how to be ridden or how to jump. Mr. Tucker said that the training enables the horses and the rider to perform well which enhances the marketability and enables them to sell. Mr. Tucker said that you need trailers to move horses around and take them to shows. In that respect, those activities are incidental to and necessary and facilitate the bona fide farm use. Mr. Welch asked Ms. Cummings what her annual income is on the farm. Ms. Cummings said that they had a net loss; the gross income was $24,000. Mr. Welch asked where that income came from. Ms. Cummings said that the income came from boarding, showing, and sales. Mr. Welch asked if Ms. Cummings shows her horses. Ms. Cummings said yes. Mr. Welch asked whose horses won at the show this year. Ms. Cummings answered that both her horse and her daughter's horse did. Mr. Welch asked whether Mr. Tucker was correct in saying that the riding lessons train the horses as well as the riders. Ms. Cummings said that is correct.
Mr. Sack asked who provides the lessons at the facility. Ms. Cummings answered that they have a trainer. Mr. Sack asked whether they employ the trainer and pay him. Ms. Cummings said that is correct. Mr. Sack asked who derives the income from the lessons. Ms. Cummings answered that the farm does. Mr. Sack asked whether the horse that was sold was one that they bred there or one that was bought and resold. Ms. Cummings said that they bought, trained, and sold the horse. Mr. Sack asked how long they owned the horse. Ms. Cummings answered about a year.
Mr. Anderson said that the buying, selling, and training of horses is fine. He said that the basic issue is that ten years ago it was rural property that was subdivided for residential uses. Houses were built there. The people in the houses built some barns so they could have a horse or a pony or two. He said that it is a fine, beautiful, well kempt neighborhood. Mr. Anderson said that the issue is that it went from a rural to a residential area, and now in the residential area they are expanding the use that is not unusual in the residential areas. He said that in residential areas they have attorneys that work out of their home, but that doesn't mean that the building becomes an office; it is still a house in a residential area. He said that there are horses in a residential area. He said that there are also procedures like special use permits so that neighbors can have some input into what is happening and the county can have some input into what is happening. Mr. Anderson said that the issue is that there has been a growth in the area. He said that when he was at the site there were five trailers. He asked what would stop them from having ten or twelve trailers or fifty horses. Ms. Cummings answered acreage limitations. Mr. Anderson said that there are grazing limitations, but you could feed them and paddock them. Ms. Cummings said that it would be way too many for the land. Mr. Anderson said that what Ms. Cummings is doing is great, wonderful, and lovely, but he thinks it requires the input of neighbors, the county, and following certain restrictions. He said that technically they are keeping a kennel for the housing of animals. He said that there are laws for kennels as well. He said that they are not saying that this is not a use that shouldn't be there; he is saying that it is a wonderful use with conditions. Ms. Cummings said that she didn't realize that they needed all of the permitting issues, and that everyone else at one time has boarded in the area.
Mr. Welch asked what the previous owner of the farm did. Ms. Cummings said that she knows that he had belted galloway cows at one time, and he had leased the barn. Some people that she knows had a horse that was boarded there. She said that the smaller piece of property had a gentleman there breeding horses; she did not know if horses were boarded there. She said that the man who used the land prior to that built running sheds, there was an arena, and the second barn has eight stalls. When she cleaned it up, it had twelve stalls. Ms. Cummings said that she would prefer to have a stalled horse to a pasture horse.
Ms. Sims asked if there are horses boarded on the 7 acre piece of land. Ms. Cummings said there are eight horses on the 7-acre piece of land in stalls. Ms. Sims asked if the balance of the horses was on the larger piece of land. Ms. Cummings said that there is land that they lease in front of the smaller piece, and there are horses on that land. Ms. Sims asked what happens on the larger piece of land. Ms. Cummings said the ring is on the larger piece, and that is where she lives. She said that there are eight horses boarded on the 7-acre piece of land, fourteen horses boarded on the larger piece, and eight horses are on the land that they lease in front of the 7-acre piece of land.
Mr. Myrick asked if they did some additions on the property. Ms. Cummings said that they did some renovations. Mr. Myrick asked if they got the permits to do the renovations. Ms. Cummings said that she didn't know that they needed permits with the bona fide farm. She said that the smaller piece of land has a septic system, and they have a permit for the septic system on the larger piece. Mr. Myrick asked if they were in the process of getting the permitting straightened out. Ms. Cummings answered yes.
Ms. Sims asked when they filed for the septic permit. Ms. Cummings answered that they applied the previous day, October 9, 2006.
Mr. Cummings said that ninety percent of the work done on the property has been cosmetic. He said that the barn on the 7-acre piece of land was in much need of repair since the horses chewed up the interior. He said that they gutted the interior and put new stalls inside. He said that the addition on "barn A" involved installing a bathroom and used a tank septic system which is a violation that they acknowledge. He said that they did not apply for a permit because they were told not to apply until they found out what kind of septic system they will need.
Mr. Myrick asked if they had a permit already issued. Mr. Cummings said yes. Ms. Cummings said that they are coming to evaluate. Ms. Sims asked if they have an application for a permit. Mr. Cummings said that is correct. Mr. Cummings said that Tom Hill from Soil & Water Conservation walked the property and commented that they were not in violation of any environmental issues.
Ms. Sims asked if Mr. Hill issued a letter with his comments. Mr. Cummings said that he would not issue a letter because he was instructed not to.
Mr. Welch asked who cares for the horses that are boarded. Ms. Cummings said that she and her two employees care for the horses. Mr. Welch asked what is involved in boarding of horses. Ms. Cummings said that the horses are out during the day because the weather is cool at night. She said that they all get individual feed, medications, and blankets. The people caring for the horses also clean them, pull manes, brush the horses, and pack show trunks. Mr. Welch asked Mr. Tucker about the Orange County case. He said that the court said, "The use of large trucks to transport farm products, and the creation of facilities such as driveways and loading docks for such trucks, are both activities so essential to large-scale agricultural production that their exclusion from the exemption would render it meaningless." Mr. Welch said that he could see where that applies in the context of a horse farm. He said that if they would exclude activities such as boarding, breeding, raising, and pasturing, in the context of a horse farm it would render the exclusion meaningless. He asked how excluding the boarding of a third party's horses render it meaningless since Ms. Cummings already testified that the only reason why she boards third party's horses is to finance her own production. Mr. Tucker said that in the case of the Cummings, the boarding is necessary because is enables them to care for their horses for the extended period of time between birth and eventual sale of a horse. Mr. Tucker said that horses are not bred every year, and it is a by-product of the size of the Cummings' farm that requires them to bring in others to help pay for the care of all of the horses. He said that if they just bred their horses alone it would not enable them to operate the farm. Mr. Welch asked if there is financing available for farms. Ms. Cummings said that she does not know; she said that she does not want to borrow any money if she doesn't have to. Mr. Welch asked if they would still be able to breed horses if they had some other income stream if the board decided that they could not board other people's horses on the property. Ms. Cummings said that it would take a lot of extra money, and it would close her down.
Mr. Anderson clarified that it would close her down at that location. Ms. Cummings said that she would need to find someone to buy it and move.
Ms. Sims asked how long the lease for the land near the 7-acre piece of land is. Ms. Cummings answered that there is no end date. She said that her parents are the Nielsens, and they are paying the Nielsens every month. She said that the piece of land in front of the 7-acre piece of land is owned by Mr. Jim Shambley.
Vice Chairman Odom asked if there is a term on the lease with Mr. Shambley. Mr. Cummings answered that it is a year-to-year lease. Mr. Cummings stated that they bought 7-acre property from the Shambleys.
Vice Chairman Odom asked Mr. Warren regarding this petition. He said that there are people in the audience who may be in opposition and some in support of the petition, but this is an appeal of the Land Development Administrator's ruling. He asked if there is a place in the meeting to hear from opposition adjoining landowners. Mr. Warren said that he thinks Vice Chairman Odom is correct; he said that if they could flesh out the activities that are going on, it would be helpful to the board. Mr. Warren said that said that it is the chairman's discretion to limit that testimony. Vice Chairman Odom stated that he thinks the opposition should come from the county since they are opposed to the appeal. Mr. Warren said that he knows there are some folks in opposition who want to be heard to address differences in testimony from the petitioner. He said that he thinks it would be appropriate to hear from those folks. Ms. Sims asked if Mr. Warren was saying that the board should only hear from those folks who have evidence and not opinion. Mr. Warren said that it is up to the chairman to limit testimony that is redundant or immaterial. He added that since this is an appeal, it takes at least 4/5 of the voting members to overturn the Planning staff's determination. Vice Chairman Odom asked if North Carolina Statute regarding bona fide farm use overrule the County's ordinance. Mr. Warren said that if there is a conflict the North Carolina Statute will overrule the County's ordinance. Mr. Warren said that the North Carolina statute says the "bona fide farm purposes include the production and activities relating or incidental to the production..."
Vice Chairman Odom asked the audience for a show of hands of those people in favor of the petition. Vice Chairman Odom asked the audience for a show of hands of those people in opposition to the petition.
Mr. Reginald Goodson, Land Development Administrator, was sworn to present testimony for staff. Mr. Larry Morgan was affirmed. Mr. Goodson said that the board had before them the definition of North Carolina State General Statute's definition of a bona fide farm. He said that staff understands that to mean that the production of livestock does constitute a bona fide farm. He said that language also includes activities relating or incidental to bona fide farm uses. He said that the Durham County case that Mr. Tucker referenced found that the breeding and raising of horses constitutes a bona fide farm; he said that it does not state that the boarding or the equestrian use is incidental to a bona fide farm use. Mr. Goodson stated that staff does not believe that the commercial boarding of other people's horses or the equestrian use is incidental to the bona fide farm. He said that staff believes that if anyone other than the property owner or the tenants are using the property, then it is open to the public, and the building code then requires that those properties are inspected.
Mr. Warren stated that the building code, wastewater regulations, and the fire code are not an issue. He said that the attorneys for the petitioner and the County Attorney's Office are in agreement that permits are needed and have been applied for because third parties will be on the property.
Mr. Goodson stated that the equestrian use is a special use permit; staff is not saying that they cannot have that use. That use requires certain conditions that they must meet, and they must apply for a special use permit that the Board of Adjustment would consider.
Vice Chairman Odom asked if they would still need a special use permit for equestrian use if it is deemed to be a bona fide farm use. Mr. Goodson said that they would still need a special use permit for equestrian use if it is deemed to be a bona fide farm.
Mr. Welch asked what the difference is between an equestrian use and a riding circle for horses. Mr. Goodson said that if you have a horse farm where the horses are owned by the property owners and is used for the enjoyment of the property owners, then that is different from an equestrian use where the people other than the property owners come onto the property for riding lessons. Mr. Welch asked if the riding club would be an equestrian use. Mr. Goodson said yes. Mr. Welch asked what other equestrian facilities are located within the county that require the special uses. Mr. Anderson said that since he has been on the board, there have been three that he knows of: two in Apex and one in the New Hill area. Mr. Welch asked what the difference between a recreational farm and a horse farm. Mr. Goodson stated that if Ms. Cummings only raised her own horses, it would qualify as a bona fide farm.
Ms. Sims asked if Mr. Goodson was aware that the Cummings were using a third parcel to board horses. Mr. Goodson said that he was not aware of a third parcel.
Vice Chairman Odom asked Mr. Morgan if he was aware of the third parcel. Mr. Morgan said that he knew they were leasing a third parcel, but he understood that they had their personal horses raised on that land. Ms. Sims asked where Mr. Morgan gained that understanding from. Mr. Morgan stated that he learned that from the Cummings.
Vice Chairman Odom asked if there was anyone was in opposition understanding the rules stated earlier regarding material evidence.
John Blake, 6701 Ridge Spring Road, was properly sworn. He said that he thinks it is important to differentiate between breeding and boarding as a true commercial activity.
Mr. Warren said that some of Mr. Blake's evidence speaks to whether there is breeding on the property or not. He suggested that Mr. Blake limit his testimony to the issue of breeding. Mr. Tucker did not object to Mr. Blake testifying.
Mr. Blake said that when you look at true breeding organizations they refer to boarding in terms of days or weeks. He said that the breeding and production cycle starts at conception and ends when the horse is weaned from its mother. In terms of a crop being produced, when that crop has matured it can then move into the next area of its life cycle. In the Cummings' case, this is training and horse showing which is related to horse trading and not breeding. He said that if you engage in a breeder, you take your mare to the breeder, the mare is bred, and then you take the mare home. The breeder does not offer riding lessons, and the breeder does not offer board except for the number of days the animal needs to be on the property to be bred. Mr. Blake said that this is a fundamental difference in the boarding that the board wants to hear as incidental and something that is truly incidental to breeding. Mr. Blake said that there is no stallion on the property. He said that all of the horses (30-35 horses) except for two are not bred. He asked how those other horses could be incidental. He said that no boarder's horse has produced a live foal on the property. He said that to his knowledge there is no breeding equipment: breeding barns, breeding areas, and mounting equipment to manage artificial insemination. He said that half of all of the horses on the property are sterile; they are called geldings. He said that to his knowledge most of the horses that the Cummings are showing are on birth control. He said that the mares that the do own are on birth control so they can show them instead of breed them. He said that this farm is not registered in the North Carolina Breeders Association. Mr. Blake stated that trail riding, riding areas, horse showing, and riding lessons serve no incidental purpose to breeding and production. He said that Webster's Dictionary defines the public as a group of people sharing a common interest. Mr. Blake contested that the facility is open to the public.
Mr. Welch asked what Mr. Blake's basis of knowledge is. Mr. Blake answered that he is the next door neighbor as well as the complainant. Mr. Welch asked if he has ever been on the property before. Mr. Blake said that he used to rent the barn that they currently have turned into the operation. Mr. Welch asked if he had been on the property since the Cummings have purchased and leased the property. Mr. Blake answered that he has been on the property a few times but not often. Mr. Welch asked when he was on the property the last time. Mr. Blake said about four weeks ago when there was a meeting about intention for this action.
Ms. Sims asked how Mr. Blake knows that there is no stallion on the property. Mr. Blake said that a stallion is a unique animal; it has to be kept separate from mares and geldings. They are extremely difficult to manage, and if you had one, the neighbors would know it because it would be breaking through fences trying to get to everyone else's mare. Ms. Sims asked how he knows that only two horses have been bred on the property. Mr. Blake said that Ms. Cummings testified that there were only two horses, her personal horse was bred once or twice, and she testified that one boarder's horse might have been bred. Ms. Sims asked how Mr. Blake knows that no boarder's horse has produced a foal. Mr. Blake said that he knows the Cummings, and the enterprise has been about boarding, not breeding. He said that if they had seen foals being born, they would have asked about it. He said that has not happened. Ms. Sims asked how Mr. Blake knows that half the horses are sterile. Mr. Blake said that they are geldings; he said that their parts are missing. Ms. Sims asked when he last checked the North Carolina Breeders Association registry. Mr. Blake answered that he checked that registry on August 30, 2006.
Mr. Welch respectfully asked Vice Chairman Odom that Mr. Blake's testimony be stricken from the record for lack of competence to testify as to what he has given. Mr. Welch said that he doesn't think that Mr. Blake has any firsthand knowledge of any sort of information in this case. He asked that the only thing kept on the record would be his name, address, and that they are not registered with the North Carolina Breeders Association. Mr. Welch said that any knowledge of the operations that Mr. Blake has is based on hearsay conversations with boarders. Ms. Sims disagreed with Mr. Welch in that Mr. Blake testified that he rented one of the barns which is presently being used by the Cummings. Ms. Sims stated that Mr. Blake also has done some research regarding boarding and breeding and the definitions thereof. Ms. Sims said that Mr. Blake's observations of horses and his knowledge of horses would lead him to be able to testify as to whether or not there is breeding going on. Vice Chairman Odom said that the board reached an agreement at the beginning of the testimony with the petitioner's attorney to allow the witness to speak.
Mr. Tucker said that the petitioner is here seeking an exemption under the bona fide farm use statute. He asked if the Cummings will need to acquire a special use permit to continue operations if the board finds that the Cummings' use of their property falls under the bona fide farm use exemption.
Mr. Warren stated that if the board finds that the activities on the property are the production of livestock or the activities relating to the production of livestock on the property, then they would get their bona fide farm exemption. In that context, the board is aware that the activities on the property include riding lessons and boarding. Unless the board specifically excepted out those activities, then the farm exemption would apply from the board and they would not need a special use permit. Mr. Warren said that regardless of what the board's decision is, building code, fire code, and wastewater regulations need to be met.
Mr. Tucker said that Mr. Blake has not been on the property. Mr. Tucker said that Mr. Blake does not have full knowledge related to the breeding activities. He said that you do not need a stallion on the property; horses are artificially inseminated. He said that you don't need all of the equipment on the farm. Mr. Tucker said that breeding horses takes time, and there are a fair number of failed pregnancies with a horse.
Mr. Cummings said that you do not typically sell a foal the day after it is born. He said that the process of years to take a horse from semen to the day you sell it.
Mr. Tucker said that they are there to determine whether the boarding, lessons, and the storage of trailers is incidental or related to the raising, breeding, and sale of horses and whether those activities are related to a bona fide farm use. Mr. Tucker stated that the answer to that question is yes. He said that the riding lessons are not necessarily a benefit to the individual as much as the benefit of the horse. He said that the trailers are used to care for the horses, and they are also used to transport the horses to the show. Mr. Tucker said that in order for the Cummings to breed and sell the horses, they need to have the money to care for the horses over the course of the years of the process; he said that the boarding is required and it enables the Cummings to breed and sell their horses. Mr. Tucker said that this decision with the Cummings and whether their activities are incidental to a bona fide farm use will have implications and effect individuals besides the Cummings. He said that there are a number of other horse farms in the county and what happens with respect to this case will have ramifications down the road on a much larger scale. He said that it is public policy of North Carolina to encourage farming and to encourage the preservation of our farmland.
Tom Hendrickson, 1915 Old Bunn Road, Zebulon, NC was properly sworn. He said that he recently chaired the horse industry's study commission with the North Carolina General Assembly where they reviewed applicable statutes relative to a one billion dollar industry in the state. He said that he is the current president of the North Carolina Thoroughbred Association, a state arm of the National Thoroughbred Owners and Breeders Association. He said that the horse business is a complicated, multifaceted industry that is an integral part of the agricultural business in the state. He said that from a public policy perspective, they are trying to protect open space and farmland preservation, and horse farms provide governments the easiest and lowest cost opportunity to protect open space as long as it is out in a pasture. He noted that there are a few public stables in the area where people own their horse that is privately boarded with the other horse equine activities. He said that this does not constitute a public stable, and as a matter of precedent that is a significant matter for the horse industry. Mr. Hendrickson said that his stallion has been bred to eight of his mares and several other mares, and neither him nor his farm or horse is registered with any North Carolina Breeders List. He said that the presence or absence of a stallion on a farm is completely irrelevant to the breeding operation. He said that breeders raise the horses to an appropriate time to take them to market to sell. He said that time could be a thoroughbred auction or a six-year-old hunter jumper that has competed. He said that in the Cummings case, them going to the shows is not unlike a dairy farmer bringing their cows to the state fair to be seen by others. The showing of the horses increases the horses' value.
Vice Chairman Odom closed the public hearing.
Mr. Myrick stated that there are three things that the Cummings have qualified previously: they receive a farm use reduction on their taxes that they had to apply for and was approved by Wake County; Wake County has issued the Cummings a farm number; and North Carolina does not charge them sales tax when they buy their feed because they have applied for a farm exemption. He said that having a colt born on the farm has nothing to do with raising horses. He said that in his opinion the property does qualify to be a farm, although it has some issues with permits.
Ms. Sims asked Mr. Myrick what you have to do to apply for recognition as a farm for tax exemption for the purchase of feed besides filling out the application. Mr. Myrick answered that you must produce your North Carolina tax return to show that you spent and received money for one year. Ms. Sims stated that just because you have cards with farm numbers on it doesn't mean that you have a bona fide farm.
Mr. Welch asked Mr. Myrick about cattle farms and hog farms where the swine are moved from farm to farm based on their growth cycle. He asked if the farm where the steers are moved to own those animals. Mr. Myrick answered yes. Mr. Welch stated that the distinction that he sees between cattle farms and the Cummings farm is that the cattle farmers own whatever is on that farm whereas more than half of the horses on the Cummings farm does not belong to the person that runs the farm. He said that he thinks that the activities on the Cummings farm is an exempt bona fide farm use because he thinks that the activities are related to and incidental to the production of horses. He said that by breeding, training, breeding and raising other people's horses Ms. Cummings is increasing her knowledge base and skill to be a better farmer than she is. He said that they would be going against the purpose and intent of the statute in this case to discourage an up and coming farmer.
Ms. Sims said that when Ms. Cummings moved to the site it was a residential area zoned R-40W that was not being used as a farm. She said that there is no way the property should be used for the purposes that Ms. Cummings is using it for when it carries the R-40W zoning. She said that even if someone believes that it is a bona fide farm use, it is not a bona fide farm use where it is located.
Vice Chairman Odom disagreed with Ms. Sims because Mr. Goodson made the comment that if all of the horses belonged to Ms. Cummings then the County would not object to the activity.
Mr. Anderson said that his concern is that it is two farms. The properties are not contiguous; they are separated by a road and distance. He said that the property was bought as a residence and has been subdivided for residential uses. A hobby has grown into an operation that they are calling a farm. Mr. Anderson said that he loves the operation that is there, but in a growing suburban area they have built into the code ways of protecting neighbors from five or twenty-five trailers being parked on the property, buffers, and other controls. He asked what would stop them from having fifty horses there or a manure pile in the middle of the farm. He said that it is no longer a rural farm area; it is a suburban development and the best use would be to file for a special use permit. He said that it is not a farm in his opinion.
Mr. Myrick stated that it is rural agricultural land in that area. Ms. Coats said that a farm use is allowed on residential property. She said that when you are getting ready to develop property you must follow the residential guidelines. She said that Wake County does not have agricultural zoning. Mr. Myrick said that agriculture is allowed in R-30, R-40, R-80, etc. Ms. Coats said that he is correct.
Mr. Welch said that if they have a bona fide farm use then the zoning district the land is in does not matter because it would not apply. He said that he doesn't think it is relevant what the property was used for before they bought it. He said that there was some evidence presented that the land was a farm before the Cummings purchased it. He said that Wake County is a suburban area, and the General Assembly's intent is to protect and promote folks who want to keep an agricultural nature. He said that the intent of the exemption is to keep counties from overregulating farms. He said that the General Statute 153A-340 does not say that the exemption is not valid if you are in a suburban area.
Ms. Sims said that under section 4-33 of the UDO the minimum tract or lot size is ten acres for an equestrian facility. She said that the 7.4 acres piece of land has eight horses boarded. She suggested considering the pieces separately instead of as a whole. Mr. Myrick stated that when qualifying for a farm use tax reduction they treat the two pieces of land as one. She said that evidence regarding how to qualify for a farm use tax reduction was not presented.
Vice Chairman Odom stated that the Land Development Administrator's decision was based on the entire piece of property. He asked Mr. Warren if the board could make a decision about an appeal of that decision for anything other than the whole. Mr. Warren said that the appeal is for the two parcels, and they need to rule thusly.
Mr. Welch made a motion that based on the applicable Unified Development Ordinance provisions and on the arguments presented in the matter of BA A-2064-06 the Board find and conclude that the Land Development Administrator's decision that the commercial boarding, riding lessons and trailer storage use located at 6801 and 6916 Winding Ridge Road was incorrect and be reversed and that the Board find and conclude that the commercial boarding, riding lessons and trailer storage use located at 6801 and 6916 Winding Ridge Road is a bona fide farm use. Mr. Myrick seconded the motion. With a vote of 3-2, with Mr. Anderson and Ms. Sims voting against, the motion did not pass. Vice Chairman Odom noted that it takes a four-fifths majority to pass an appeal.
Item 5, New Business:
Mr. Welch asked Mr. Warren about an ethics opinion from the State Bar regarding representation by people who are not attorneys. The State Bar said that it is unauthorized practice of law to be represented by people who are not attorneys. Ms. Sims suggested informing applicants of the opinion at the time they apply.
Item 6, Old Business:
Ms. Coats updated the Board on a case involving Holly's RV site. She said that one of the conditions of approval was that they obtain the necessary permits from the Division of Water Quality for a washpit for the washing of the recreational vehicles. The Division of Water Quality has issued a letter stating that no permit is required. Based on the letter, they would like to remove the recommendation for condition number five from the approval. Ms. Sims stated that she is hesitant to remove the provision because of the way it is stated in the letter: "No permit is required as long as you continue to wash as you did at the time we were there, one car at a time." Vice Chairman Odom stated that if there was an inspection in the future and they were washing five or six RV's at a time and a permit would be required, then their special use permit would be in jeopardy. Ms. Sims stated the same could be said if they were found to be washing with non-biodegradeable materials. Mr. Warren said that he would let Rick Rowe know the Board's intent.
Ms. Sims stated that she did not receive the memo regarding photo identification cards.
WAKE COUNTY BOARD OF ADJUSTMENT
October 10, 2006
All petitions complete, Vice Chairman Art Odom declared the regular meeting
of the Wake County Board of Adjustment for
Tuesday, October 10, 2006 adjourned at 12:05 p.m.
Art Odom, Vice Chairman
Wake County Board of Adjustment