County denies shutting down the facility, questions its operation as farm
Union County denies ever ordering Jay Brown to shut down operations at his Cross Creek Arena.
In legal documents filed Monday, Nov. 28, county attorney Patrick Flanigan, from Cranfill, Sumner and Hartzog, said the county did nothing to Brown’s property.
Superior Court Judge Chris Bragg is scheduled Monday, Dec. 5, to consider Brown’s request for an injunction against the county – that would allow him to operate.
“It is denied that Cross Creek has been ‘shut down’ since January 2011,” Flanigan wrote. “It is denied the defendant (the county) has threatened regulatory or legal action against the plaintiff or that the defendant shut down the operations of the plaintiff.”
Flanigan’s statements appear to contradict letters county employees sent to Brown earlier this year. In a Jan. 24 letter, Zoning Administrator Lee Jensen told Brown he would need to obtain a special-use permit to hold any future events on the property. On Feb. 21, then interim County Manager Wes Baker also wrote Brown, saying he needed to address zoning and building code issues.
“It is our understanding that you will not conduct any events on the site until these issues are addressed to the county’s satisfaction,” Baker wrote.
After Brown held another rodeo on March 20, Jensen sent a letter April 1, saying that Brown did not have a permit to hold rodeos on his property. “In order to correct this violation, you must immediately cease holding these special events,” Jensen wrote. “If this violation is not corrected, I intend to take any action authorized under the Union County Land Use Ordinance in order to enforce the ordinance.”
In January, the county ordered the arena, at 1916 McIntyre Road in Wingate, to shut down for not following North Carolina’s commercial building code. Brown got letters highlighting multiple violations, including the lack of a sprinkler system.
In June, state lawmakers changed the law to exempt horse farms from the commercial building, 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, prompting the county’s response Monday.
Looking for an end
In the lawsuit, Brown’s attorney, former federal prosecutor and Raleigh attorney Kieran Shanahan, asked the court for a preliminary injunction, as well as financial damages from the rodeos Brown had to cancel this year and the loss of the contract with Diamond S Rodeos for 2012.
In an Oct. 17 email, Diamond S Rodeo officials said they wanted to sign a contract to hold their Winter Rodeo Series, on every Saturday from November to April, but they had concerns. “We need to be sure there aren’t any problems with Union County that could disrupt our schedule as it did last season,” Diamond S said in the email.
While acknowledging the email, which is part of court documents, Flanigan said there was no evidence of any negotiations currently going on. “It is denied for lack of information that Cross Creek has any pending lucrative, long-term contract,” Flanigan wrote.
Brown said he had no choice but to sue. Cross Creek couldn’t survive another year with his business shut down, he said.
“People are calling and looking to book dates,” he said. “If I can’t tell them something soon, I’ll be stuck. There are other venues, some opening in South Carolina.”
Last month, Brown had hoped to find a solution without legal action. County commissioners, led by Vice Chairman Todd Johnson, asked the planning board to examine a text amendment that would allow rodeos to operate. The planning board recommended the county commission let the state regulate the farms and step away. But county officials have taken no action since then, and with clients signing elsewhere for the 2012 season, Brown said he couldn’t wait.
Not a farm?
In its response to Brown’s suit, the county rejected the idea that Cross Creek is a farm.
“It is denied that Cross Creek fits squarely within the definition of a ‘bonafide farm’,” Flanigan wrote. There is no evidence the property hosted rodeo events for the past decade, he wrote.
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.
Brown first started filing his Schedule F farm sales tax exemption forms with the IRS in 1995. At that time, federal officials had to declare his property as a farm, for the exemption to stand. No one has changed that certification in the past 16 years, Brown said. Brown turned over his Schedule F returns for 2009 and 2010 to the county in November.
North Carolina School of Government zoning official Rich Ducker wrote in an Aug. 17 letter that horse farms qualify as “bonafide farms.”
“An agricultural activity pursued purely for pleasure, like raising horses, rather than for profit would still qualify and so too would related incidental activities,” Ducker wrote.