MINUTES. Item 1, Call to Order: Mr. Clark called the meeting to order at 9:00 a.m. with 9 members present.

Transcription

1 MINUTES Regular Meeting Wake County Board of Adjustment Tuesday, June 9, :00 am, Room 2700 Wake County Justice Center 301 S. McDowell Street Raleigh, North Carolina Members Present: (9) Mr. Billy Myrick, Mr. Tim Clark, Mr. Trenton Stewart, Mr. Will Barker, Mr. John Barker, Mr. Brenton McConkey, Mr. Blake Cason, Mr. Terence Morrison, Mr. Donald Mial Members Not Present: (0) None County Staff Present: (18) Ms. Brenda Coats (Planner II), Mr. Steven Finn (Land Development Administrator), Mr. Frank Cope (Community Services Director), Mr. Darrell Alford (Deputy Fire Marshal), Mr. Tim Maloney (Planning, Development & Inspections Director), Ms. Celena Everette (Planner II), Mr. Chris Record (Planner I), Mr. Geoffrey Pearson (Code Enforcement Complaint Coordinator), Mr. Bryan Coates (Planner III), Mr. Jason Horton (Community Services Deputy Director), Mr. Barry Mooneyham (Building Inspections Director), Mr. Jim Roberson (Inspections Supervisor), Ms. Sydney Sadler (Student Assistant), Mr. Michael Malecek (Student Assistant), Ms. Bethany Shewmaker (Student Assistant), Ms. Khadijah Diaz (Student Assistant), Mr. William Cheatham (Student Assistant), and Mr. Russ O Melia (Clerk to the Board) County Attorney Present: (1) Mr. Ken Murphy (Assistant County Attorney) County Commissioners Present: (1) Mr. Sig Hutchinson Item 1, Call to Order: Mr. Clark called the meeting to order at 9:00 a.m. with 9 members present. IN RE MINUTES Before any agenda items were considered, Mr. Clark recognized the applicant in the matter of BA SU Mr. George Stanziale of Stewart, Inc. came forward to address the board. Mr. Stanziale requested that BA SU be deferred until the July 14, 2015 meeting to allow attorneys from the City of Raleigh to be present. Mr. Myrick made a motion to defer BA SU to the July 14, 2015 meeting at 9:00 a.m. Mr. Cason seconded the motion. The motion passed unanimously. Item 2, Approval of Minutes of the May 12, 2015 Meeting Mr. Myrick made a motion to approve the May 12 th meeting minutes, and Mr. McConkey seconded. The motion carried unanimously. Item 3, Approval of Written Decision Reversing the Decision of the Wake County Planning Staff in the Matter of BA V Mr. McConkey made a motion to approve the written decision reversing the decision of the Wake County Planning Staff in the matter of BA V , and Mr. Myrick seconded. The motion carried unanimously. Before the cases were heard, Wake County staff members Ms. Coats, Mr. Record, Mr. Pearson, and Mr. Finn were duly sworn. Item 4, BA SU Voting Members: Mr. Clark, Mr. Myrick, Mr. Cason, Mr. McConkey, and Mr. Morrison Landowner: Duke Energy Progress

2 Petitioner: Reuben Jones, III PIN#s: Size: acres Location: The property is located at Ray Road, north of Interstate 540 in the northern portion of the County. Zoned: Residential-40 Watershed (R-40W); Special Highway Overlay District (SHOD) Land Use Classification: Non-Urban Area/Water Supply Watershed (NUA/WSW) The petitioner is requesting special use permit approval as required by section 4-11 of the Wake County Unified Development Ordinance (UDO) to allow for the expansion of an existing static transformer station. TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, Application, site plan, minutes of the March 14, 2000 Wake County Board of Adjustment meeting, from Scott Wheeler of NCDOT, aerial map, photos, video, and relevant sections of the Unified Development Ordinance were shown and/or available. Testimony: Mr. Record, Planner I, entered the staff report and PowerPoint presentation for BA-SU into the record, and stated the petitioner s name, zoning classification, background and history of the petition. The existing static transformer station on the property was constructed in On March 14, 2000, the site received a special use permit for the construction of a 170-foot-tall telecommunication tower. The property consists of acres and is located at Ray Road, just north of Interstate 540. The property to the north is single family residential. The property to the east is wooded and vacant. The property to the south is wooded with a farm located on the southern end of the property. The property to the west is single family residential and wooded. The site is zoned R-40W as are the properties to the north, east, south, and west. The southern portion of the property lies within the Special Highway Overlay District. However, the area of the property that will contain the proposed expansion does not lie within this overlay district. The land use classification for the site is non-urban area water supply watershed. The applicant proposes to expand the existing transformer station to accommodate additional transformer infrastructure and an equipment enclosure. The proposed expansion will be located in an area directly west of the existing station that has remained cleared since the site s original construction. The existing station and its proposed expansion do not require water or wastewater systems. The proposed equipment enclosure is not intended to be manned to the degree that on-site utilities are necessary. The property has street frontage on Ray Road along the north side of the property. Access is to be provided via an existing driveway that will be extended to the station expansion site. No new driveways are being proposed. Correspondence between the petitioner and NCDOT indicates that NCDOT will not require a new driveway permit for the proposed expansion. For a static transformer station, the Unified Development Ordinance requires off-street parking at a rate of 2 spaces per site or 1 space per employee. In order to fulfill this requirement, the petitioner is proposing two parking spaces just west of the existing drive to the north of the station. The proposed expansion of the facility will occur within an area of the site that has been previously cleared as a portion of the original construction. The project area will be surrounded by existing vegetation that provides mature natural screening at a minimum depth of 85 feet around all sides. Existing conditions meet or exceed the UDO s standards for bufferyards and thus no additional bufferyard screening will be required. The proposed expansion of the facility would increase the total impervious coverage on the site from 5.6% to 10.3%. The petitioner has proposed a dry extended detention basin to handle additional stormwater runoff. Wake County Environmental Services has reviewed the proposed stormwater device and has indicated that the site plan as proposed would meet Falls Lake stormwater standards. Notification letters were mailed to adjoining property owners on May 19, A public hearing placard was placed on the property on May 21, Mr. Clark asked if the static transformer station was a general use when constructed in Mr. Record responded that a letter from Wake County staff at the time revealed that a special use permit was not required. Staff could not find a permit on file for the construction of the static transformer station. The only special use permit for the site was for the telecommunications tower. Mr. Clark asked about the impervious surface on the 2

3 site. Mr. Record said that the proposal would increase the impervious surface from 5.6% to 10.3%. There is a dry detention basin proposed for the southern portion just south of the proposed expansion area. Mr. Record said that the proposal is in compliance with the standards for the Falls Lake Watershed area. Sworn witnesses in favor of the petition: Reuben Jones, III, 410 South Wilmington Street, Raleigh, NC Daphne Richardson, 410 South Wilmington Street, Raleigh, NC Mr. Jones testified that the expansion of the site is due to projected growth in the area, and Duke Energy Progress is investing in the infrastructure in Wake County. He said that the expansion does not change the nature or function of the site. Mr. Myrick asked if debris in the driveway in front of the gate is a problem. Mr. Jones answered that there is not a problem with debris at the location as compared to other locations. The vehicle gate across the frontage of the site runs from one tree line to the other. There has not been a problem with people getting onto the site depositing debris that would interfere with the operation. Staff would take care of any debris when they visit the site each month performing maintenance. Mr. Morrison asked if the additional 432 square feet would be within the bounds of the existing gravel lot. Mr. Jones said that the additional impervious surface will be gravel laid on top of the current cleared graded dirt and grass. The gravel will be uncompacted ABC that will not be as compacted as hard as a drive. Mr. Stewart asked if additional clearing would be needed. Mr. Jones said that they will be clearing more than anticipated when they built the yard. They made sure that had a shoulder outside the expansion for access to the back, and they need a swell to capture runoff from the impervious area and take it to the dry detention pond. Mr. Stewart asked if the new gravel would stay within the already cleared area. Mr. Jones said that it would. Mr. Murphy asked if Mr. Jones and Ms. Richardson are employees of Duke Energy Progress. Ms. Richardson said that she is employed by Duke Energy Progress as the project manager for this project. Mr. Jones said that he is employed by Duke Energy Progress to work on transmission substation engineering. There was no one else who wished to speak in favor of or in opposition to the request. Mr. Clark closed the public hearing. BOARD DISCUSSION Mr. McConkey referenced the letter from the applicant that was included with the application. Mr. McConkey said that the letter does a good job outlining the five required findings. Mr. Myrick said that planning to ensure that Wake County has good electricity is a good thing, and the board should consider granting the special use permit. MOTION Mr. Myrick made a motion in the matter of BA SU that the Board find and conclude that the petition does meet the requirements of Article of the Wake County Unified Development Ordinance and the special use permit be granted with the recommended staff conditions. Mr. Morrison seconded the motion. The motion passed unanimously, and the special use permit was granted. So ordered. FINDINGS OF FACT 1) The approved development will not materially endanger the public health or safety. The site will be a fenced area, and there is nothing there that would endanger the health or safety of anyone. 3

4 Considerations: 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. The use will be to generate electricity. 3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity. The use is a public necessity. The use will not injure the value of adjoining property since it is an expansion of an existing use. Considerations: 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 as 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. The use already exists on the site. The proposal will be an expansion of the existing use. Considerations: 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. Considerations: 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. CONCLUSIONS OF LAW The proposed development will not materially endanger the public health or safety. 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. The proposed development will not substantially injure the value of adjoining property, or is a public necessity. The proposed development 4

5 will be in harmony with the area in which it is located. The proposed development will be consistent with the Wake County Land Use Plan. IT IS THEREFORE ORDERED: 1) 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, Development and Inspections Division of Community Services; 2) The petitioner must obtain and complete the required permits and inspections for the building from the Planning, Development and Inspections Division of Community Services; 3) The petitioner must obtain approval from the Water Quality Division of Environmental Services; 4) The petitioner must provide an as-built plan detailing the amount of impervious surface coverage to the Planning, Development and Inspections Division of Community Services prior to the issuance of a Certificate of Occupancy, and 5) The landowner must maintain compliance with the special use approval and Wake County Unified Development Ordinance. 6) A final zoning inspection to verify site plan compliance must be performed by the Wake County Zoning Administrator prior to the issuance of a certificate of completion by the Wake County Planning, Development and Inspections Division of Community Services. Item 6, BA A Voting Members: Mr. Clark, Mr. Myrick, Mr. Cason, Mr. McConkey, and Mr. Morrison Landowner: LoyLang Urban Farming LLC Petitioner: Glen D. Lang PIN#s: Size: 0.99 acres Location: The property is located on the south side of Holly Springs Road, south of its intersection with Penny Road in southwestern Wake County. Zoned: Residential-40 Watershed (R-40W) Land Use Classification: Non-Urban Area/Water Supply Watershed (NUA/WSW) The petitioner is appealing the determination of planning staff, as allowed by Article Appeals of Administrative Decisions, that the operation of a Neighborhood/Convenience-Oriented Retail Business (W/O Gas Sales) is Not a Bona Fide Farm Purpose based on the following sections of the Wake County Unified Development Ordinance: N.C. General Statues 153A-340 Grant of Power (A) Exemption for Bona Fide Farms 4-50 Neighborhood/Convenience-Oriented Retail Special Use Before the case was heard, staff members Mr. Pearson and Mr. Finn were duly sworn. TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, letter from Geoffrey Pearson to LoyLang Urban Farming LLC dated April 6, 2015, aerial map, Application, photos, and relevant sections of the Unified Development Ordinance were shown and/or available. 5

6 Testimony: Mr. Pearson, Code Enforcement Complaint Coordinator, entered the staff report and PowerPoint presentation for BA-A into the record, and stated the petitioner s name, zoning classification, background and history of the petition. The subject property and properties located south of Holly Springs Road are located in the Rural Non-Critical portion of the Swift Creek Watershed. The property located to the north of Holly Springs Road is located in the New Suburban designation of the Swift Creek Watershed. The property was purchased in July 2012, and in August 2012, the property was issued a Bona Fide Farm Exemption. On March 20, 2015 Planning staff received a complaint regarding the farm property. Staff researched the matter and a meeting was held with the appellant on March 23, 2015 to discuss the nature of the complaint. Based on research performed and stipulations made by the appellant, a Notice of Violation letter was issued to Mr. Lang & LoyLang Urban Farming on April 6, Mr. Lang filed an appeal to the NOV on May 6, Under North Carolina law and within Wake County s planning jurisdiction, a property designated as a Bona Fide Farm is exempt from zoning regulation. The appellant was issued a Bona Fide Farm exemption for his property for the following reasons: To grow vegetables from a greenhouse, and to build two barns to store farm equipment, planting materials, and feed. One of those barns is currently used as a roadside stand. On March 20, 2015 staff received a complaint regarding the subject property. The complaint alleged that the farm buys most of its merchandise from farmer s markets and other locations, and that very little is grown on the property. Delivery trucks from Ford s produce and other outlets deliver products to the property on a constant basis, and seafood from the coast is delivered as well. Staff discovered that the farm s website advertises the sale of coastal seafood weekly. Staff discovered the website advertises the sale of other products not produced on the farm. On March 23, 2015, the appellant revealed that approximately 80% of items sold from the farm come from other locations not produced on the farm. North Carolina General Statute Section 153A-340 is the enabling legislation that gives local governments the power to regulate property. However, bona fide farms are exempt from zoning regulation as long as the farm is performing a bona fide farm purpose. Bona fide farm purpose is defined under G.S. 153A-340(b)(2):... bona fide farm purposes include the production and activities relating or incidental to the production of crops, grains, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agriculture, as defined in G.S For purposes of this subdivision, when performed on the farm in G.S (6) shall include the farm within the jurisdiction of the county and any other farm owned or leased to or from others by the bona fide farm operator, no matter where located. Agriculture is defined in the General Statutes as follows: when performed on the farm, agriculture, agricultural, and farming also include the marketing and selling of agricultural products, agritourism, the storage and use of materials for agricultural purposes... and agricultural items produced on the farm, and similar activities incident to the operation of a farm. The Wake County Unified Development Ordinance (UDO) also exempts bona fide farms under Article 1, Section However, it also clearly states that farm property used for Non-Farming Purposes is NOT exempt from zoning regulation. Subsequently, when a retail sales operation is conducted on a bona fide farm, it would be subject to zoning regulation, and classified as Neighborhood/Convenience Oriented Retail under Article 4, Section 4-50 which reads: It is the intent of this subsection to permit within certain residential districts... certain lowintensity retail trade... [That] serve the daily convenience and personal needs of the surrounding neighborhoods, and are of such a nature as to minimize conflicts with existing residential uses. 6

7 Staff s Interpretation of this case is that based on the reading of North Carolina law and the Wake County Unified Development Ordinance the sale of goods and products that are not produced, grown, or made on the farm to be a non-farming purpose, and thus subject to county zoning regulation. Wake County issued a bona fide farm exemption for the subject property in August, The exemption was for a greenhouse which was to be located at the eastern side yard of the property. Two barns were to be constructed on the property. Based on evidence presented and stipulations by applicant, staff concluded that the sale of agricultural goods and products not produced on the farm property of 8225 Holly Springs Road is subject to zoning regulation and is considered retail sales. Mr. Clark asked if selling the items that are grown on the property would be in compliance with the bona fide farm exemption. Mr. Pearson answered that it would be in compliance. Mr. Pearson displayed photographs of the site which show signs advertising items for sale that were not grown on the property, such as seafood, beef, pork, chicken, eggs, honey, and goat cheese. Mr. Morrison asked if the letter of the law states that everything sold at the farm needs to be grown there. Mr. Pearson answered that staff s interpretation of the law is that everything sold at the farm needs to be grown at the farm. Mr. McConkey said that they could sell fish on the property if they grew the fish on the property. Mr. Pearson said that was correct. Mr. McConkey asked if they could sell fish on the farm that they grew at another farm they owned elsewhere. Mr. Pearson said that the farm owner could sell fish at the farm that was grown at another farm he owns. Mr. McConkey asked if he could sell fish at the farm that he purchased from someone else that was not grown on the property. Mr. Pearson said that he could not sell fish at the farm that was purchased from someone else. Mr. Murphy noted that Mr. Pearson s answers reflect staff s interpretation of the state statute; the appellant would provide his interpretation of the state statute, and the board will need to determine which interpretation is correct. Mr. Clark asked if the nursery across the street is in Wake County s jurisdiction. Mr. Pearson answered that the nursery is within Wake County s jurisdiction, and it is classified in the Town of Cary s Short Range Urban Services Area. The nursery received a conditional use rezoning. Mr. Clark asked if there was notification of adjacent property owners. Mr. Pearson answered that notification letters were sent to adjacent property owners. Mr. McConkey asked if the property owner could apply for a special use permit for the retail sales. Mr. Pearson said that a special use permit request is an option. Mr. Mial asked if the structures on the property were there when the property was purchased. Mr. Pearson said that the two barns, two greenhouses, and cultivation areas have been added since the property was purchased. The only structure on the site prior to 2012 was the single family house. Mr. Myrick asked who issued the bona fide farm exemption. Mr. Pearson answered that Wake County issued the bona fide farm exemption. Mr. Myrick asked if there is a minimum size requirement for a bona fide farm exemption. Mr. Pearson answered that there is no minimum size for a bona fide farm, according to North Carolina state law. Mr. Murphy noted that there is a ten acre minimum to get present use value classification for property tax purposes, but that is a separate issue. Mr. Stewart asked if someone lives in the house on the property. Mr. Pearson said that he did not know. Mr. John Barker asked if any non-agricultural products are being sold. Mr. Pearson answered that he is not aware of any non-agricultural products being sold. Mr. Myrick asked if a drink machine could be installed to sell soft drinks. Mr. Pearson said that he is not sure that he can sell soft drinks. Part of the interpretation of the statute would involve whether the drink machine is used in connection with producing crops. 7

8 Sworn witnesses in favor of the petition: Glen D. Lang, 208 Michelangelo Way, Cary, NC Jim Loy, 209 Steep Bank Drive, Cary, NC Mr. Lang submitted Appellant s Exhibit 1: 24 PowerPoint slides. Mr. Clark accepted the slides into the record. Mr. Lang said that he and Mr. Loy purchased 0.99 acres on Holly Springs Road three years ago to see if they could run a farm on 0.99 acres in an urban environment. All of the crops (lettuce, tomatoes, squash, zucchini, cucumbers, and peppers) they grow are organic, pesticide free, and herbicide free. Mr. Lang said that he received all of the necessary approvals to be considered a bona fide farm. The built the greenhouses, barn, and fencing under the bona fide farm exemption. There is a 1,300 square foot house on the property; Mr. Lang s nephew and another tenant live in the house. The farm stand opened in the summer of The primary products at the farm stand are: LL Urban Farm Grown Lettuce, Tomatoes, Squash, Zucchini, Cucumbers 20 types of produce from L+G farms in Johnston County Local Honey from Heavenly Beezzz hives in Durham, NC 20 varieties of Organic Produce from Chatham County Organic Growers Fresh Seafood weekly from NC Coast Chickens and Eggs and Beef from Queen Bee Farms in Mebane NC Berkshire Hogs from Johnston County There are two items sold at the farm stand not from North Carolina: mozzarella cheese from New Jersey and butter from Wisconsin. The farm stand does approximately 210 transactions per week. Approximately 85% of the transactions include items grown at the farm, but 80% of the dollar volume is from items not grown on the farm. Mr. Lang said that LL Urban Farms is a bona fide farm per Statute 153A-340, and G.S is what is pertinent. Mr. Lang said that he believes that G.S (6) defines marketing and selling of agricultural products as included in the definition of agriculture and thus is a farm purpose and not subject to the Wake County UDO. He noted that all farm stands in Wake County sell items that are not grown on the farms since it would be difficult to generate enough revenue to operate the farm stand if only items grown on the farm are sold. Mr. Lang said that he was unable to find any special use permits for bona fide farms. He cited G.S. 153A-340 b(2) which says that bona fide farm purposes include all other forms of agriculture, as defined in G.S Mr. Lang cited G.S : Agriculture defined. For purposes of this Article, the terms "agriculture", "agricultural", and "farming" refer to all of the following: (1) The cultivation of soil for production and harvesting of crops, including but not limited to fruits, vegetables, sod, flowers and ornamental plants. (2) The planting and production of trees and timber. (3) Dairying and the raising, management, care, and training of livestock, including horses, bees, poultry, and other animals for individual and public use, consumption, and marketing. (4) Aquaculture as defined in G.S (5) The operation, management, conservation, improvement, and maintenance of a farm and the structures and buildings on the farm, including building and structure repair, replacement, expansion, and construction incident to the farming operation. (6) When performed on the farm, "agriculture", "agricultural", and "farming" also include the marketing and selling of agricultural products, agritourism, the storage and use of materials for agricultural purposes, packing, treating, processing, sorting, storage, and other activities performed to add value to crops, livestock, and agricultural items produced on the farm, and similar activities incident to the operation of a farm. 8

9 Mr. Lang said that he interprets the statute to say that he can market and sell agricultural products, and he could do agritourism. He noted that the N.C. Department of Agriculture website lists farm stands as one example of agritourism. He believes that the operation of the farm stand fits under each of the following four statements in the statute, any one of which would mean that the operation of the farm stand was a farm use: the marketing and selling of agricultural products, agritourism, other activities performed to add value to crops, livestock, and agricultural items produced on the farm, and similar activities incident to the operation of a farm. Mr. Lang said that they are marketing and selling agricultural products, and they are doing it on the farm. He said that this is clearly a farm use, and thus the farm stand activity should not be subject to the Wake County UDO. A Wikipedia definition of agritourism includes shopping in farm gift shops and farm stands for local and regional produce. Referring to the statute language that says other activities performed to add value to crops, livestock, and agricultural items produced on the farm, Mr. Lang said that selling other farmers products allows them to market their lettuce and tomatoes extensively and thus add value to the crops produced on the farm. Referring to the statute language that says similar activities incident to the operation of a farm, Mr. Lang said that selling other farmers products is incidental to the operation of the farm. He concluded that LL Urban Farms is a bona fide farm, it is a conforming farm use based on North Carolina statutes, and it should not be required to obtain a Special Use Permit from Wake County. Mr. Lang referenced Attachment 6 of his application: an article by Richard Ducker of the University of North Carolina School of Government as further evidence to support his position. The article details the modifications of the law related to bona fide farms, and each time the law was widened related to what could be considered a bona fide farm. Mr. Loy said that they only sell agricultural products, and they are helping a lot of local farmers. He said that they have hundreds of loyal customers, and they would win in the court of public opinion. Mr. Clark asked about the fish being sold. Mr. Lang and Mr. Loy said that the fish comes from Surf City Crab House on Topsail Island in North Carolina. Eighty-five percent of the fish sold are farm raised fish. Mr. Clark asked if they had any financial interest in any of the other farms. Mr. Lang said that they do not. Mr. McConkey asked about the language when performed on the farm. North Carolina G.S. 153A-340 (b)(2) includes an expanded definition of when performed on the farm to include not just the farm in question but other farms that are owned or leased by the property owner. Mr. McConkey said that the expanded definition to include other farms owned or leased by the property owner would be unnecessary under Mr. Lang s interpretation since farm owners could sell any agricultural products. Mr. Lang referenced the article from Richard Ducker that talks about all of the things that can be done off the farm. He added that the statute language does not say the marketing and selling of agricultural products produced on the farm or agritourism produced on the farm. Mr. Lang said that agritourism cannot be produced on the farm. He thinks they can market and sell agricultural products if it is performed on the farm. Mr. McConkey said that he reads the statute to mean that they need to produce the products that they are selling, and they cannot sell products bought from somewhere else. To the extent that other farm stands are selling products that they do not produce, Mr. McConkey said that perhaps the General Assembly should consider changing the language. Mr. Stewart asked what the percentage of products offered are not produced on the farm. Mr. Lang answered that $200,000 of the $320,000 of revenue was from items grown on the farm. Eighty-five percent of the items for sale are grown on the farm. The board took a short recess. Sworn witness in favor of the petition: Sig Hutchinson, 2704 Snowy Meadow Court, Raleigh, NC

10 Mr. Hutchinson, a Wake County Commissioner, said that he views this as a policy issue. He would like Wake County to build a culture of health where making the healthy choice becomes the easy choice. He said that he is advocating for local, healthy food. He said that Mr. Lang s farm is cool in that it is hydroponic and uses 10% of the water and fertilizer associated with a typical farm. He said that this farm highlights the entrepreneurial local food culture that he is trying to create in Wake County, and local food connects us as communities. Mr. Hutchinson said that LL Urban Farm is creating a community built around food. He asked the board to consider the petition since it relates to his goal to build a culture of health. Sworn witness in favor of the petition: Yan Lun, 777 Ancient Oaks Drive, Holly Springs, NC Ms. Lun said that she is a small business owner. She started her business in 2014 baking bread. If the appeal is denied, this will have an impact on her business since 50% of the sales come from LL Urban Farms. Denial of the appeal will also impact future expansion and hiring of employees. Sworn witness in favor of the petition: Kate Price, 113 Piperwood Drive, Cary, NC Ms. Price said that she moved to the area eighteen months ago from Kansas. She said that LL Urban Farms operates in a manner that is in compliance with the language that says similar activities incident to the operation of a farm. She said that the farm is a benefit to the community, it creates a sense of community, it encourages healthy eating, and it feels like a farm. Sworn witnesses in opposition to the petition: Sandra Reardon, 8213 Holly Springs Road, Raleigh, NC Susan Rollins, 8204 Holly Springs Road, Raleigh, NC Mr. Reardon said she lives beside LL Urban Farms. She has no issue with the farm being there. She is concerned with the location of the signs on the property since they obstruct her view of oncoming traffic when she is pulling out of her driveway creating a dangerous situation. Ms. Rollins said that she owns the property across the street where the nursery is located. She has no problems with the farm. She said the farm does a good job for the community. Her nursery had to go through the same zoning issues which resulted in a conditional use rezoning, and she thinks that the other businesses should have to go through the same process that she did. Sixty percent of the items sold at her nursery are grown at the nursery. Mr. Murphy read the definition of agritourism according to N.C. General Statute 99E-30: Any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, or natural activities and attractions. Mr. Murphy said that the General Assembly through GS 153A-340 has given Wake County the authority to enact zoning ordinances, and within that grant of power bona fide farms are exempt from county zoning regulations to the extent that the property is used for farm purposes. The statute says that counties can continue to regulate non-farm uses on bona fide farm properties. Mr. Pearson noted UDO section 4-85 which states that products produced on a bona fide farm can be sold at a roadside stand: 4-85 Roadside Stands 10

11 Roadside stands offering the sales of agricultural products produced on the premises are permitted in Residential districts and in the Highway District and Residential Highway district on the site of a bona fide farm. Mr. Lang said that the UDO does not apply because they are a conforming use on a bona fide farm. There was no one else who wished to speak in favor of or in opposition to the request. Mr. Clark closed the public hearing. BOARD DISCUSSION Mr. Morrison asked if the general statute is the only piece the board can focus on. Mr. Murphy said that the UDO is pre-empted by the general statutes to the extent that the UDO was in conflict with the general statutes. He said that the board needs to decide whether the county applied the general statute language correctly. Mr. McConkey said that the question before the board is not whether to shut down or eliminate the stand. He said that whatever decision is made is not to express any opposition to a policy of healthy living or healthy lifestyles. Even if the board decides to uphold the staff s interpretation, the stand can continue to operate as long as the operation complies with the regulations applicable to retail sales, similar to how the nursery across the street functions. Mr. McConkey said that there are two statutes that are applicable: 153A-340 and He said that the key language is (6) which starts with when performed on the farm. He also noted that in 153A-340, the General Assembly expanded the concept of what when performed on the farm means to include things grown on any other farm that the operator owns or leases. He said that if you interpret the general statute to mean that you can sell any agricultural product that is grown anywhere, then that would defeat the purpose of the when performed on the farm language. He said that the only way the statute makes sense is to say that when performed on the farm means that the farm operator can sell products grown on other farms, but they need to be grown by that farm operator, and they cannot bring in agriculture produced by others. Mr. McConkey said that if the staff s interpretation is upheld, the farm can sell things it does not produce as long as it complies with other zoning regulations just like any other retailer within Wake County. Mr. Myrick said his concern is that if the appeal was granted, it could create a situation where everybody would want to do the same thing. He said that he hopes the farm will continue to do what they are doing, but in a way that complies with county zoning. Mr. Myrick expressed concern that anyone who has an acre of land could open a store selling something they grew along with things that they purchased elsewhere. MOTION Mr. McConkey made a motion that based on the applicable Wake County Unified Development Ordinance provisions, and on the evidence submitted in the matter of BA A , that the Board find and conclude that the Planning staff s determination should be upheld for the reasons Mr. McConkey said during the board discussion. Mr. Myrick seconded the motion. By a vote of 3-2, with Mr. Morrison and Mr. Cason voting against the motion passed, and the appeal was denied. So ordered. Item 7: New Business Mr. Finn reported that staff has processed over 400 land use and general use permits year to date as well as over 60 pre-submittal meetings. Staff has also received over 50 home occupation applications during the fiscal year. Item 8: Old Business There was none. Item 9: Adjournment Hearing no additional business, the meeting was adjourned at 11:06 a.m. 11

12