County foregoes building code citations, focuses on permit issues
Four months after ordering Cross Creek Arena shut down for violating the state building code, Union County officials have changed course, at least on the reason the building needs to be closed. In January, the county ordered the arena, 1916 McIntyre Road in Wingate, shut down for not following North Carolina’s commercial building code, with property owner Jay Brown receiving letters highlighting multiple violations including the lack of a sprinkler system. The issue seemingly had come about due to a change in state law, where horse farms, previously exempt from commercial rules, were now being forced to follow stricter safety measures for any structure that held events.
But after Brown continued holding rodeos, including one March 20 for a special needs nonprofit group, the county issued a citation based on the fact he held events without a special use permit. Nothing was mentioned about the building code.
“It’s not anticipated that there will be any code violations,” Union County Public Information Officer Brett Vines said. “Mr. Brown was sent a zoning (notice of violation) April 1 for his event held March 20. Our Zoning Administrator is not aware of any other events that have been held since then.”
County officials declined to comment when asked why the issue over building code violations had been dropped. They also wouldn’t comment on if that meant Cross Creek or any other horse farm, would still be expected to follow the state’s commercial building code.
The county did move forward however to enforce their land use ordinance, telling Brown he wasn’t allowed to hold rodeos without a special use permit, something he had failed to obtain. Brown wondered why his facility has been able to operate since 2007 without obtaining a special use permit for the events, now suddenly can’t open without one.
“You spend $400,000 building something and then they say you can’t operate anymore,” Brown said. “The county told me that all of a sudden I had a change in use, that people just started coming to these events. How did I have a change in use? It’s been used for the same thing since I started in 2007.”
With the change in argument, the issue now appears to be similar to the one the county currently faces with another local farmer. Marshville farmer Thomas “Pinky” Marsh has been in and out of court over the last four years with the county, arguing they don’t have the authority to regulate the Mexican style rodeos he staged at his property. The difference between the two is that Marsh went to the county to request a special use permit and was granted one, to hold four rodeos a year. In multiple court rulings, judges came back to the fact Marsh had requested a permit, stating that act gave the county definite jurisdiction over the events. Brown on the other hand never approached the county, with an investigation taking place after a complaint was filed.
Brown was also concerned about going to the county to request a permit, saying that if they only allowed him four rodeos a year as they previously did with Marsh, it would significantly cut into his business.
The 30,000 sq. ft. arena, which operates as a tax-paying business, plays host each year to multiple events, with a website to help bring traffic and aid in the bookings. Since the county shut him down the first week of January, he’s already lost 12 events booked for this year, Brown said, estimating he lost $20,000 from those cancellations.
“I had the arena 80 percent booked for this year and now everyone’s backing out,” Brown said, adding he hoped at least the building code issue would be addressed by the state’s General Assembly. Now that the county seems determined to make it a zoning issue, he’s unsure what the future will be for the business if he stays in Union.
“Even if this is addressed and dealt with, I don’t think the bookings will come back next year,” Brown said. “They’ll want to see a track record first, they’ll want to make sure the county’s not going to come in and shut it down. People can’t afford that, especially right now.”
County uses anonymous complaint
It turns out county officials investigated Cross Creek after receiving an anonymous call, with no other evidence or probable cause on hand.
Fire Marshal Speer came out to the property the first week of January, saying the county had received a complaint that crowds coming to shows on the property had exceeded the legal limit. When Union County Weekly requested a copy of the complaint, Speer said the complaint was verbal. Later, Brett Vines said the complaint was anonymous, with the county keeping no record of who actually called, a phone number or any other identifying information.
In such cases, the county has to either be allowed on the property by the land owner or compile enough evidence to get a warrant signed, Union County Inspections Director John Reavis told Union County Weekly in April. Because Brown let the inspectors on the property, they didn’t need to show probable cause. If he hadn’t allowed them in, the question is if they could in fact show probable cause, with only an anonymous complaint and nothing else on file. It’s a process that’s not uncommon for the county to use, Vines said, who said while the county investigates based on anonymous complaints, they don’t always keep records to indicate who the person was.
“If (the anonymous complaint) was left on voicemail, we wouldn’t necessarily have a valid phone number,” Vines said. “If it was sent by mail, we probably wouldn’t have a name or address. If it was received by phone, we could have a contact number if the person is willing to release it.”
It’s actually quite common for county departments to operate this way, North Carolina School of Government policy expert Richard Ducker said.
“Investigations based on anonymous complaints are not uncommon,” Ducker said. “This isn’t like a criminal warrant, the burden of proof is lower. A magistrate will probably grant an inspection warrant but the county could have that warrant and the evidence thrown out, if it was appealed.”
The reason the warrant could be thrown out, Ducker said, is if questions are asked regarding that anonymous third party.
“Does the person have a first hand knowledge of the situation, has he or she been on the property, those are questions that could be asked,” Ducker said. “On the other hand, the burden of proof is quite low in these cases. Just the simple fact that looking at the structure from the road, if it looks like it holds horses or is used for events, that can be enough to get a warrant.”