STANLY COUNTY Water Ain Lard. Saccess.  NORTH CAROLINA  Stanly County Board of Adjustment March 15, 2022- Meeting Minutes  Call to Order Chair Cindy Fish called the meeting to order on March 15, 2022 at 7:30 p.m. in the Stanly County Managers meeting room at 1000 N. First Street, Albemarle, North Carolina. Bob Remsburg  served as Clerk oft the meeting.  Stanly County Board of Adjustment Members attending Absent: Devron Furr & Brenda Farmer (both were excused)  Billy Franklin Lee, Richard Cosgrove, Michael Fleming, Cindy Fish, Rick Johnson, Michael Efird  Stanly County Planning Staff Attending Bob Remsburg, Planning Director; Bailey Emrich, Planner 2 Others Present: Many community members were present to hear this case. (Refer to the sign in sheets in Chair Fish stated' "We will now review the minutes of our previous meeting which was held on  the meeting minutes binder for the list ofr names).  February 23, 2022. DoIhave a motion to approve the minutes?"  Motion: Richard Cosgrove Second: Michael Fleming Approved: 6-0  Chair Fish stated the following:  Tonight's case is Item #SUP 22-02 a request by Josh and Rebecca Gibson for a Special Use Permit to operate a commercial dog kennel at 1101 Polk Ford Road, Stanfield which is zoned, RA - Residential Agricultural. The evidentiary hearing on this matter is quasi-judicial in nature and will be conducted in accordance with special due process safeguards. All persons who wish to testify in this case should have signed up on the Attendee Sign-In Sheet for this hearing. If you have not signed and wish to speak please sign now. Persons wishing to speak should have standing in the case. Those with standing are generally those living nearby or somehow directly affected by the proposed uses. All those audience members and staff wishing to testify please The Stanly County Board of Adjustment is a quasi-judicial board. Therefore, the North Carolina State Statutes, requires that the board base its decisions only on testimony given under oath. Any person who, while under oath during this proceeding, willfully swears falsely, is guilty ofa Class 1 misdemeanor. Ifanyone refuses to be sworn, your statements will not be  proceed to the front oft the room to be sworn in.  treated as evidence on which to base a decision but merely as arguments.    County Staff and Community members came forward to be sworn under oath. Before opening the hearing, I'd like to give Board members a chance to reveal any possible conflicts that you may have and withdraw from these proceedings ifnecessary.  There were no conflicts.  Any Board members who have any information or special knowledge about the case that may not come out at the hearing tonight, please describe that information for the record so that  interested persons will know and can respond if needed.  No board member came forward.  The Order ofBusiness for this hearing will be as follows, first we will hear from the Planning Staff, then we will hear from the Applicant and their Witnesses, then we willl hear from the Opponents to the request. Parties may cross-examine witnesses after the witness testifies when questions are called for. Ifyou want the Board to see written evidence such as reports and maps ore exhibits, the witness who is familiar with the evidence should ask that it be introduced during or at the end of his/her testimony. The Board cannot accept. reports from persons who are: not here to testify. Attorneys who speak should not give factual testimony but may summarize their client's case. Before you begin your testimony, please clearly identify yourself for the record. Inow open the evidentiary hearing on Item #SUP 22-02 and ask for testimony from the County  staff.  Bob Remsburg shared the following: sent to you in your packets.  Iv will go ahead and submit to you a couple ofrevisions to the memorandum that was initially Josh and Rebecca Gibson request a Special Use Permit to allow for the use ofal Dog Kennel for their property located at 1101 Polk Ford Road, Stanfield. This property is located in the cul-de-sac ofa dead end road. This parcel is located in the RA Residential Agricultural Zoning District which does require a Special Use Permit to operate a "Commercial Dog Kennel or facilities for raising dogs and cats..." pers section 601.2 of the Stanly County Zoning Ordinance. The facility must meet two regulations listed which are (a). The facilities shall be maintained in a neat and sanitary condition and (b.) Open Kennels shall be located no closer than 50 feet to any adjoining property line. NCDOT traffic count for Polk Ford Road was 970 vehicles per day near the intersection with Renee Ford Road. This property is at the end of Polk Ford Road which is a private right-of-way for approximately % mile before the cul-de-sac. Based on federal tax data submitted by the property owner, thej property is al bona fide farmj per NCGS160D-903.    The Gibson property is 10.56 acres which backs up to the Rocky River and they have acquired the property directly next to them containing 5.01 acres for a total of 15.57 acres. The Gibsons do currently reside on this property. The site plan does indicate that they have a barn as well as a designated area for the kennels. The Board of Adjustment does have the authority to set certain conditions or strengthen the conditions already on the property as long as the property owners agree. The kennel has been in operation for several years as it grew into al business after the  Gibsons acquired the original parcel in 2015.  There are four standards that must all be found true in order to approve the Special Use Permit. Standard #1 - That the project will not materially endanger public health or safety; iflocated where proposed, and ifd developed and operated according to the plan submitted Standard #2 - That the project will not substantially injure the value of adjoining property. Standard #3 - That the project will be in harmony with or compatible with its neighbors and is generally consistent with the latest Stanly County Land-Use Plan. Standard #4 - That the project meets all other required conditions and specifications. Mr. Remsburg submitted definitions to the board further defining al kennel and bona fide farm. Mr. Remsburg also referred to state statute to further define al bona fide farm. Mr. Remsburg went through the slideshow to show images and maps of the Gibson property. Chair Fish asked "Are there any questions from the Board or parties present regarding the staff  report?" There were: none.  Chair Fish stated "If there are no objections, the staff report and related documents are admitted Chair Fish stated "We will now hear from the applicant and other proponents of the request. If there are attorneys or other representatives who will give a general summary of the client's  into evidence for this case."  position, we' 'd like you to go first."  Attorney David Beaver, representing the Gibsons shared the following:  Iam representing the Gibsons in this matter. Iwould suggest that before we discuss the four elements of the Special Use Permit that you pay particular attention to what Mr. Remsburg has just given you. In that this land is zoned Residential Agricultural and hel has given you definitions ofa farm pursuant to North Carolina General Statutes 106 581.1 item 3, agriculture is defined as the raising, management and care or training of livestock including horses, bees, poultry and other animals for individual and public use, consumption and marketing. On this particular farm there are CowS, ducks, pigs, sheep, and goats. It think clearly this is a farm. Ifin fact this is a farm and where she lives is zoned properly I don't think we have: reached an issue of ifs she needs a Special Use Permit. She has been there for seven years under this exact definition conducting the same activities. The Special Use Permit would pre-suppose that we are talking about something that is not within the confines oft the correct zoning district. Ifs she meets the    definition of agricultural and a farm, It think that is conclusive. Iwill respectfully ask that a vote  be taken on that either up or down.  Chair Fish requested a five minute recess to gather legal guidance.  Chair Fish stated "Mr. Beaver, as for the request ofa vote, I would like toj propose to the board that someone entertain a motion that we see additional evidence to support this claim as an operating farm. There are four standards that are used to support that notion ofa farm and SO far  we have not seen any of that evidence." Motion: Michael Efird Second: Michael Fleming Approved :6-0 don't need all four." for the past several years.  Mr. Beaver stated "It gives you a series oft things but anyone of which is what you need, you Mr. Beaver provided the board with the Gibsons Schedule F: forms from their federal tax returns Mr Beaver stated "This is one oft the items that proves it is a farm. You do not have to produce the last years but they have been on the property seven years and continue tol have them." Chair Fish stated "T would like to entertain ai motion that we also be provided additional information under NCGS 106-581.1 that definition of agriculture includes that the dogs in this  kennel would qualify for agricultural use." Motion: Richard Cosgrove Second: Michael Fleming Approved:6-0  Chair Fish stated "I would like to note that this schedule F states the primary activity is a sheep Mr. Beaver stated "To summarize what Ms. Gibson will tell you, they have Border Collies. They are not raised toj produce puppies. It is not aj puppy mill. They have a business but it is not conducted here. They go off site and even out ofs state. The dogs are: nurtured and trained with sheep. Some of these are pets. They have had the same number all the time. To the extent oft the definition ofl kennel is housing, that is true, and the extent at which they are fed and cared for is true but it is not aj puppy mill. They replace the ones they need to: replace. They may sell an occasional puppy but that is not al business. The operation is Fly Away Geese. They get orders all around the country at airports and other large businesses where geese or ducks are a nuisance or problem. They go: for several weeks at a time and they run the geese off. They have to stay long enough tol be able to run the geese out. That particular operation is conducted off site. All she does here is house them. I will let her describe that a little more thoroughly."  and horse farm SO we need to address that."    Rebecca Gibson shared the following:  Iwill tell you that dog and kennel regulations in the United States are all handled by the USDA, they manage and regulate dog kennels. After World War 2 the USDA put out initiatives to farmers to produce dogs as supplemental income to crops. There are many instances where dogs are covered under livestock. Not to mention many of the dogs on the farm and Fly Away Geese are working border collies. By North Carolina legislation and the statute mentioned earlier, it specifically says "and other animals" which are not defined for "individual and public use", our dogs are working for public use. Thati is all they do. They go out and provide a service for the public. It services all off oft the farm. They only work livestock on the farm. I do not have geese on the farm that is against federal law. Even the services we do off ofthe farm are recommended and regulated by USDA. Ihave their mission statement but they are responsible for managing wildlife conflict which is what Fly Away Geese does with the public and Canada Geese. USDA wildlife services recommends the work of Border Collies for Canada Geese. We have been doing this since the day we moved here 7 years ago. We have been doing wildlife management services and working with border collies since the day we got here. The schedule F only allows you to pick two types of animals to put in the form. That is why itj just says sheep and goats." Richard Cosgrove stated "Most of us have dogs that we put in kennels when we go on vacation Mrs. Gibson stated "No sir we do not take any outside dogs. All of the dogs on that farm belong  but this does not seem to be the same thing."  ton me."  Richard Cosgrove asked "When you go to an airport, how many dogs go?"  Mrs. Gibson stated "We currently hold a contract with the Virginia Department ofTransportation and Ihave 27 dogs running 24 hours a day and 7 days a week for the biggest contract that they have ever done. But to answer your question specifically one or two. But right now I have 27 in  Virginia. But they are gone for eight months out oft the year." Richard Cosgrove asked "] How many dogs are at your kennel today?"  Mrs. Gibson stated "Today there are 22. My husband and I also do sheep dog trials. Those dogs are also there. That is also part oft the complication. We have sheepdogs and personal dogs as Rick Johnson asked "Could you give me an average of what would be on the farm at any given  well." time."  Mrs. Gibson stated "Around 25-35."  Richard Cosgrove asked "II have another concern based on what I know about kennels. I put mine in a kennel one time and when I came back there was a lot of barking going on. Are your  neighbors concerned about the barking?"    Mrs. Gibson stated s We have been there for seven years, we have had no complaints until October of this year when there was an incident with the neighbor across the street that had nothing to do with the dogs. There has never been a complaint to the county or Sheriffs Department until October of2021. Again, wel have decibel readings that Ms. Pleasant did on 80 different occasions and if you look at the plat map our. kennel sits down at a 50 foot elevation difference from the neighbors across the street. Border Collies are not barkers by nature. They move livestock with their eyes and stalk things. We have affidavits from my vet that specifically state that. Our livestock guardian dog will bark but there are coyotes and predators around. We do have two deputies and the zoning enforcement has been out and all have commented on how Rick Johnson asked "Could you tell me the distance from the kennel to the nearest home ?" Mrs. Gibson stated "It is 600 and some odd feet across the road. Iti is approximately 450 feet to  quiet it is."  the neighbor on the other side."  Chair Fish asked * Has the number of dogs changed?"  Mrs. Gibson stated "No ma'am, it varies but it is never any drastic. Since we started that contract with Virginia DOT two years ago this is our third year we. run from February 151 to October 15." Michael Fleming stated "When your off site dogs come home, how many dogs are there? And Mrs. Gibson stated "I never have any more than 40-45 on site but I do have enough kennels for Chair Fish stated "T want to stop with this witness and refer back to Mr. Beaver for his requested Attorney Jenny Furr stated "It is up to the board Madam Chairwoman, IfI understood Mr. Beavers' request from earlier, Ithink he was asking for you to rule on whether or not the Gibson property would qualify as a bona fide farm. Ifaj property is considered a bona fide farm then the uses specified in 106-581.1-3 would be allowed. A question is whether this is a bona fide farm? Ifs so would the dogs/ dog kennel qualify as other animals for individual and public use and marketing in that statute. Depending on the answers to those questions, ift the board chooses to go ahead and rule on those, you may or may not be ruling on the special use permit request. Mr. Mr. Beaver stated "Thus far has been there over 7 years conducting the same purpose as they are doing now. Wel have pictures oft the kennels, elevation surveys, and noise meter: readings. They will show that they do not bark. They have a guard dog to guard the animals at night and there is night vision photography that shows the coyotes around the property at night. They protect the livestock and run them off. That dog may bark, yes. But as far as constant barking going on all the time, that is not the case. In these notebooks, our vet was going to come but she attended  are your kennels large enough?"  them." vote."  Beaver and Mr. Sinter are welcome to chime in."    another meeting. She included an affidavit regarding what is to be true. The Sheriff's Deputies were also going to attend to talk about how quiet it is. You heard the distances we are between the neighbors. At street level it reaches the level ofar running washing machine. I dont think when you become a board member and you are trying to use your judicial decision making authority, that does not mean you have to leave your common sense at the front door. They have been there for seven years and doing exactly the same thing and now all ofas sudden it becomes a problem. We believe this is a bona fide farm and it does specify other animals. She does meet the general statutes. They control local county ordinances in the case ofa diametric opposition between the two you have to go with the state statute. Federal law trumps everything. Ithink there is a misunderstanding of why we are here. There was a letter that went out and told a lot of these people in this room that we are here to rezone the property and that is false. It think everyone at the county would tell you that. We don't feel like we need to qualify for a special use  permit. We meet all the criteria for federal and state qualifications. Attorney Jim Sinter, representing the Morton family shared the following:  Iam here on behalf of Thomas and Peggy Morton, they are adjacent landowners to the Gibsons. First thing that I would like to point out is that the purpose oft this hearing is their application for a special use permit. They are the ones who brought us here, not the other way around. So to come in and start the meeting asking you to consider an issue that is not even before you is totally improper. They applied for a Special Use Permit four weeks ago. That was their decision. That is what we are prepared to address. They want to recharacterize their argument. I would ask the board if you are inclined to accept this request that we postpone this meeting for time to review other ordinances that might apply to this. We are here for their application ofa Special Use Permit. There has been evidence presented that the dogs are quiet. We arej prepared to present evidence to the contrary. Furthermore, they contest that they have been doing this since they bought the property seven years ago, we are ready to show that is not the case. This wasa new business seven years ago and it has grown into a very different business than what it was then.Ifelt compelled to tell you that the reason we are here tonight is for their application oft the special use permit and to consider any other issue that would be contrary to the purpose oft the Mr. Beaver stated "We came forward voluntarily to ask for this. We are here because the county thought that we needed to do that. We disagreed with that. This is the reason we're here because we were instructed to do that. We have done a lot of research and we do not feel like we need to Richard Cosgrove asked "So you're saying that you don't think that the Gibsons need a Special Use Permit because they already qualify as a bona fide farm?. And it was not the Gibsons that actually came to the county office and said can wel have a Special Use Permit."  meeting."  bel here. We are: responding to a decision brought to us by the county."  Mr. Beaver stated "That is exactly correct." "  Mrs. Gibson stated "So when the county came out based on the complaint from the Mortons initially. I was told that we: might need this permit. When Ispoke to someone about that they said wait until you get a definitive answer. Then Iget a letter from the county that says ifyou do    not get a special use permit you have 14 days to cease and desist your business. What was I going to do? I don't think we need one andIdo not want one. Ithink some of these neighbors are here because they received a letter from the Mortons telling them that we were trying to rezone and ift they allowed this then it would allow for commercial business in the area. They are concerned ifthis is allowed then we are going to open a Walmart. We don't need one. We just want to continue doing what wel have been doing. This has been in business since 1996 and in 2000, Icontracted with every Air Force base on the east coast of the United States. The number of dogs has not grown. We applied because we were told to by the county, not because we Mr. Beaver stated "She said ifs she, for example, had a large herd ofbeef cattle and took them off site then that is still farming. Same thing ifs she had eggs to sell. She takes care oft the dogs, monitors their nutrition and their cleanliness. Id do not think Fly Away Geese since iti is not  wanted to."  performed on site, is not a commercial use." Cindy Fish called for a recess to consult legal counsel.  Billy Franklin Lee stated in order for the board to rule on the farm statute we need to have a staff determination. With that, Iwould like to make a motion that we proceed only with this Special  Use Permit hearing tonight." Second: Rick. Johnson Approved: 6-0  Mr. Beaver asked' "Are you going to hold the hearing open at the conclusion of the meeting until Cindy Fish stated "My understanding ofi it is that we need a decision from the Planning Staff concerning the ruling on Agricultural Use sO you will need to go through the stafft to get that and ifyou wish to appeal that then it will come back before the board. Let us start this over again. Mr. Beaver stated "T think you have information before you on a Special Use Permit and the elements were decided by the Courts ofNorth Carolina ofwhat you are to consider and someone who is asking for this type of permit. There are four different findings of fact before you. We are going to take these one at a time and address these. The issue of value is the first one. Larry  you get input from stafft to reach a conclusion on the first matter. I presented."  Mr. Beaver, do you have any additional information you wish to present?"  MacGuire will present on this first finding." Rebecca Gibson asked for a moment with Mr. Beaver  Mr. Beaver stated "Mrs. Gibson has asked before we spend all oft this time, would it be in linet to let you get your staffi report and see what that decision is going tol be. Iti is possible we do not Mr. Remsburg stated "It is the determination oft the board that you can continue the hearing to  need this hearing. I will leave that up to Mr. Remsburg and the attorney."  another date or you can proceed with the hearing now."    County Attorney. Jenny Furr stated "I believe it is totally al board decision whether you would like to continue the Special Use hearing to a later date to allow the Gibsons to get a staffruling on the bona fide farm question. Ori ify you would like toj proceed that is totally up to you. Mr. Mrs. Gibson stated "T am willing to withdraw my request until I am deemed necessary to have Mr. Remsburg stated "It is entirely up to you (the Board) to continue or not. I would advise Mrs. Mrs. Gibson stated "We are on the calendar for April 14th to have a VAD hearing for Ag. status Mr. Beaver stated "That would give your staff plenty of time toj provide a determination and if they deem that it is not a farm use then we will be back here to do this all over again." Mr. Beaver stated "On the 14th a decision will be made that will potentially make the whole Michael Efird made a motion to continue the hearing until the determination has been made. Mr. Sinter stated "I only represent the Mortons in this matter. There are plenty of other property Mr. Remsburg stated "That is up to the board to proceed with the hearing, or to leave it open after hearing from whoever is present. Ifthe petition gets withdrawn it would end all of that. You Mr. Beaver stated "To do what is suggested here, if wel have the Special Use Permit hearing then she goes first and then all ofher witnesses go, then all ofthe others go. You would be doing  Beaver can make that motion but it is up to you all to rule on that."  one, I do not want one." Gibson not to withdraw yet."  soIbelieve it would be prudent to wait for that as well."  thing moot."  owners tonight. I ask that they be heard by the board."  can hear testimony if you would like or you can stop it now."  things out of order."  Chair Fish asked "What is the meeting after the April date?"  Billy Franklin Lee stated "I am on the VAD board and that does not determine whether you area bona fide farm or not. All that does is alert your neighbors that you are a farm and you are doing Mr. Beaver stated "I agree with that, but this would be able tol be submitted as evidence to Cindy Fish stated' "Iassume Michael's motion would be to move this to the May meeting." Bob Remsburg stated "Ify you can set the date at a certain time, it helps with notification."  farm activity. It does not mean you are a farm or not a farm."  support the case from the VAD board."    Cindy Fish stated "T have a motion to keep this meeting and hearing open to continue the hearing  to May 10th, dol Ih have a second?" Second: Rick Johnson Approved: 5-1  Motion to adjourn: Richard Cosgrove Second: Michael Efird Approved: 6-0 Adjourned: 8:48PM Q Chair, CindyF Fish  Clerk,  ERL