Agenda - Planning Commission - 07/09/2009

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/p-) \ .1 I ! I I I I \ I I I i I I I 1 I I I I I 1 I i I J I I I I I I i 1 i I '_. u.._.n_..__ /'" ( ) ( i , ) '0 Zoning Bulletin June 10, 20091 Volume 3 1 No. 11. The Court of Appeals of North Carolina first held that NINRL lacked standing. The court explained that since NINRL was an unincorporated association, it could only bring suit in a North Carolina court if it al- leged: (1) a specific location of recordation as required by North Caro- lina law (N.C. Gen. Stat. ~ 1-69.1); or (2) it was a nonprofit unincorpo- rated association bringing suit with standing under Chapter 59B of the North Carolina General Statutes. Additionally, under N.C. Gen. Stat. ~ lA-l, Rule 9(a),since NINRL was "not a natural person" it had to make "an affirmative averment showing its legal existence and capacity to sue." The court found that NINRL had not alleged or shown that it fulfilled any of those requirements. NINRL's legal complaint, initiating the lawsuit,. stated only that NINRL represented community residents opposed to the McLains' rezoning and the operation of a biodiesel man- ufacturing facility in the community. Accordingly, the court concluded that NINRL did not have standing to bring the suit. The court also held that the.McLains' biodiesel production was sub- .. ject to zoning because it was not -::i bona fide farm use. The court ex- plained that under state law, counties were granted zoning authority except over land used for "bona fide farm purposes." (N.C. Gen. Stat. ~ 153A-340). Specifically, county zoning regulations could not "affect bona fide farms, but any use of farm property for nonfarm purpose [wa] s subject to the regulations." Although the statute did not define "bona fide farm," it did define "bona fide farm purposes" as including: "the production and activities relating or incidental to the production of crops, fruits, vegetables, ornamental and flowering plants, dairy, live- stock, poultry, and all other forms of agricultural products as defined. [under North Carolina statutory law] having a domestic or. foreign mar- ket." (N;C. Gen. Stat. ~ 153A-340(b)(2)). "Agriculture" and "farming" also included: the marketing and selling of agricultural products, agrito- urism. . . and similar activities incident to the operation of afarm." The court found that the McLains' production of 500,000 gallons of biodie- sel per year did not fit ,vithin the definition of "bona fide farm purposes. Rather, the court found it was a "non-farm independent commercial en- terprise" and "industrial process." This, said the court, was because the M;cLains: (1) intended to haul raw materials from surrounding farms to their farm; and (2) required only 100,000 gallons of biodiesel per _year for their own farming operations. ." See also: Sedman v. Rijdes, 127 N.c. App. 700,492 S.E.2d 620 (1997). See also: County of Durham v. Roberts, 145 N.C. App. 665,551 S.E.2d 494 (2001). Case Note: In its decision, the court also recognized that "there may come a time when the economies of scale are such that a farming. @ 2009 Thomson Reuters 7 59