Attorneys question jurisdiction, harm suffered by Cross Creek
Did Union County have legal authority to regulate and stop events at Cross Creek Arena? Attorneys for both sides argued that point before Judge Chris Bragg in Superior Court on Monday, Dec. 5.
“Given that Cross Creek is engaged in farm activity, it’s exempt (from county regulation),” attorney Kieran Shanahan said of client Jay Brown’s facility. “That’s it, end of story.”
A new law adopted this year, HB168, specifically says what it takes to be considered a working or “bonafide” farm. Such farms are exempt from county zoning ordinances, according to state officials. Since Cross Creek has operated as a horse farm for more than 10 years, Shanahan said, the county had no jurisdiction and no authority to shut it down.
“They seem to be taking the position ‘well you might be exempt, we don’t know,’” Shanahan said. “They continue to move the goalposts on us.”
To operate as a farm, a property owner has to show one of five things: a 1040 Schedule F farm sales tax exemption certificate issued by the U.S. Internal Revenue Service, a copy of the property tax listing, a copy of the farm owner’s most recent federal income tax return, a forest-management plan or a Farm Identification Number issued by the U.S. Department of Agriculture. Shanahan told Judge Bragg that Brown had given the county a copy of his Schedule F forms for 2009 and 2010 in November, but that wasn’t good enough.
“The county responded thank you for the form, we would like to see the backup that goes with it,” Shanhan said. “My client’s gone the extra mile, he’s clearly met the burden. For them to continue to tie up his property is unfair.”
Shanahan and Brown were before Bragg to ask for an injunction, to allow Cross Creek to hold events while the lawsuit against the county continues.
In January, the county ordered Brown’s Cross Creek Arena, 1916 McIntyre Road in Wingate, shut down for not following North Carolina’s commercial building code. Once state lawmakers addressed that issue, the county also cited Brown for failing to request a conditional use permit for each of his rodeos.
Brown has operated Cross Creek since 2007 and used the property as a horse farm since 1995. Brown refused to apply for a permit, asking why he suddenly needed one for an agricultural business regulated by the state.
Now facing a second year unable to hold events, Brown sued the county in Superior Court on Nov. 3, asking for an injunction while the lawsuit proceeds.
County attorney Patrick Flanigan argued that Bragg shouldn’t consider jurisdiction when ruling, but rather the fact Brown hadn’t followed the county’s process. By not taking his case to the county’s Board of Adjustment, Flanigan said, Brown hadn’t exhausted every option before filing a lawsuit. Additionally, Flanigan said, Cross Creek didn’t follow the guidelines of what constitutes farm activity.
“They’re selling concessions (at events), that’s not a farm use,” Flanigan said, also arguing that any financial losses wouldn’t count as irreparable damages and shouldn’t be considered. Monetary damages could be paid back, if Brown proved the loss to a jury, Flanigan said.
Shanahan countered that if the county didn’t have jurisdiction, then it doesn’t matter if Brown followed county policy or not.
“What we’re saying is you don’t have jurisdiction,” Shanahan said. “It’s a man’s right to do what he wants with his own land. Somehow raising hay is not agriculture?”
Bragg also interrupted during Flanigan’s comments, stating that ruling on a lack of jurisdiction would take precedence over the county’s claims.
Bragg said he hoped to issue a ruling before Christmas.