The Moore County Board of Commissioners have unanimously agreed to appeal a recent Superior Court ruling that could have a far-reaching impact on the property rights of local farmers.
At the center of this nearly two year-long dispute are West End farmer Watts Auman; the Seven Lakes Aeromodelers, a club that leases a portion of Auman's property for twice weekly sessions flying remote-controlled model airplanes; and Samuel and Elizabeth Blackwell, a Wake Forest-based couple who own an adjacent ten-acre tract on NC Highway 73, near its intersection with Beulah Hill Church Road.
On Tuesday, November 13, the County Commissioners held a Special Meeting to decide whether to appeal Judge James Webb’s ruling that rescinded the club’s permit to fly on the basis that their use does not constitute a farming activity and, therefore, should not be allowed in a Voluntary Agricultural District [VAD]. Last week, the Moore County Board of Adjustment met in Closed Session before unanimously recommending that the Commissioners seek the appeal. In addition, the Board of Adjustment recommended the VAD ordinance should be revisited to ensure the interests of farmers are protected.
Commissioner Jimmy Melton recused himself from discussing the case, as he owns property adjacent to both the Blackwell and Auman properties.
Rulings, Appeals, and More Rulings
The Blackwells objection to the Aeromodelers use of the Auman property originally came to county attention as a noise ordinance complaint in early 2011, not long after the Blackwells purchased their undeveloped tract. The Planning Staff brought the matter before the Planning Board, to determine whether the County's Zoning Ordinance needed to be revised to more precisely define recreational uses of property.
But the Planning Board determined no ordinance revision was necessary, and instead indicated that it was within the discretion of the Planning Director, acting as Zoning Administrator, to determine whether the Aeromodelers use of the property was authorized under the Zoning Ordinance.
Moore County's Planning Director at the time was Joey Raczkowski, who determined that the Aeromodelers were a club, and that clubs were permitted on the Auman property under the ordinance.
The Blackwells challenged that decision before the Board of Adjustment in two hearings held in July and November 2011, but that panel upheld Raczkowski's decision.
The couple then appealed the case to Superior Court, where Judge Webb, rather than focusing on the Zoning Ordinance, determined that the Aeromodelers use was a non-farming use of the land, which violated the VAD Ordinance. Webb pointed to wording in the VAD Ordinance that said it trumped other Moore County ordinances, including the Zoning Ordinance.
‘Unintended consequences’
The question before the Commissioners on Tuesday was whether to appeal Judge Webb's ruling. An added wrinkle to the case is the fact that Auman removed the parcel of land used by the Aeromodelers from the Voluntary Agricultural District several months ago. However, Webb’s decision was based on the conditions present when the Blackwells filed their appeal.
“There was never any intention to restrict farmers with the VAD," said Commissioner Tim Lea. "But, if this use is outside farming operations, then I can understand why it was called into question. But, since the land has been removed from the VAD, we have a totally different situation.”
Lea expressed concern about any potential negative impact an appeal might have on the VAD Ordinance, and also questioned whether, given the removal of the property from the VAD, the appeal would then fall back to a challenge to the county’s Zoning Ordinance.
Attorney Jon Maxwell responded that the case could go in a number of directions once it is placed on the Court of Appeals docket. But he cautioned the Commissioners that, if left unchallenged, Webb’s decision could have a far greater impact on other properties placed in the VAD. Anticipating a concern about mounting legal costs, Maxwell said the costs of the appeal would include printing and incidentals, with legal counsel provided by county staff as part of their regular duties.
He explained that the purpose of a Voluntary Agriculture District designation is to publicly recognize a property as a farm, and to warn owners or potential owners of surrounding properties of potential noise, dust, chemical use, and other impacts of farming.
County Attorney Brenda White noted that while a VAD designation indicates that farming activities will take place on a property, the VAD Ordinance does not have a table of uses that prohibits specific uses.
“It was not intended to be prohibitive,” White said, offering an example of a farmer installing a pool on their property and then allowing a youth group to use the facility. She noted that many VAD properties are forested, and leased by their owners to hunting clubs. “There are a lot of questions that could be raised.”
Commissioner Nick Picerno expressed similar concerns about the impact of Judge Webb's ruling on farmers, but also extended an olive branch to the Blackwells, stating that he understands their issue as well.
“It was never our intent to prohibit farmers from any other use of their land," Picerno explained. "This is an unintended consequence. I feel for the Blackwells; but, at the same time, these guys [Aeromodelers] are on somebody’s property who owns it and says it is okay for them to do it.”
Aeromodelers and Watts Auman weigh in
Speaking on behalf of the Seven Lakes Aeromodelers, Bob Urie offered appreciation to the Commissioners for the many hours of staff time contributed by various offices in Moore County involved in the case.
He described the club as a “group of old guys out to have a little fun and enjoy ourselves, thanks to the hospitality of our good friend, Watts Auman.”
Urie said they have been flying their remote control planes on Auman’s property since 2010 and have made every effort to be good neighbors. He said the combined experience of the Seven Lakes Aeromodelers ranges into hundreds of years of flying experience.
Speaking to The Times following the earlier Board of Adjustment meeting, Club Treasurer Bob Thorne explained that they follow Academy of Model Aeronautics [AMA] safety guidelines whenever they fly; but that, currently, they are only flying indoors at the National Guard Armory in Southern Pines.
“We just decided it would be better if we didn’t fly out there [on the Auman property] until things were settled one way or another,” Thorne said. “We’re trying to do things the right way.”
However, he expressed great concern over the impact that Judge Webb’s ruling may have on the future of the club, and other recreational activities on agricultural land.
“Any place we might go in Moore is farmland -- and probably in a VAD -- so, from that viewpoint, we’re not sure where we could go,” Thorne said.
Also speaking to The Times following the Board of Adjustment meeting, Watts Auman expressed frustration at the ongoing battle over what he views as a harmless hobby.
“I enjoy watching them play with their airplanes,” he said. “This whole thing is so uncalled for. These are men who live in Seven Lakes, Foxfire, and Pinehurst. Most of them have a background in airplanes, some are veterans, and many are retired engineers,” he said. “They are professional people who are my friends.”
Auman said, when the Blackwell’s challenged the VAD use, he voluntarily moved the portion of his property leased by the Aeromodelers out of that designation.
Blackwell’s position
While the Blackwells fight to have the Aeromodelers moved off Auman's land has raged for nearly two years, the Special Meeting on Tuesday, November 13, was the first time the concern has been brought before the Moore County Board of Commissioners, and Chairman Larry Caddell was looking for some clarity.
“Is the noise the problem? Is the property value?” he asked the Blackwells. “What brought all this about?”
Elizabeth Blackwell explained that, when she and her husband Samuel purchased the property in January 2010, they were not aware of the VAD on Auman’s adjacent property until they were well into the process -- nor were they aware that the Aeromodelers regularly flew remote control planes on the neighboring tract.
“We bought ten acres in the woods," she said. "We do not want to live at an airport.”
However, Blackwell said her more immediate issue was that she feels they have been intentionally kept in the dark. She said they were not informed of the recent Board of Adjustment meeting when their case was discussed; and they had similarly not been informed that the County Commissioners would be discussing whether to appeal Judge Webb's decision. She said they were present only because they had done their own research and come across notice of the Special Meeting.
Blackwell argued that, when Auman parceled off the leased section from the VAD, it was done with a handwritten note that did not legally define the tract and, she said, there are only limited and specific reasons that a property can be removed from a VAD.
“Flying airplanes does not qualify,” she challenged.
“We keep hearing that you are trying not to restrict farmers, but we do not feel the VAD applies to personal use,” Blackwell said. “What we have is a third-party application, a lease, to engage in non-farming activity.”
She also said the various Boards in Moore County do not seem to be in agreement or able to articulate the purpose of a VAD. Blackwell defined that purpose as to protect farming -- and argued that it is one-sided.
“Neighbors cannot complain about noise, dust, chemicals . . . but we are finding that we are not allowed to complain about non-farming activity as well,” she said. “We have no rights whatsoever in how this has been conducted in this county.”
Blackwell argued that the privileges of the Aeromodeler club and Auman are growing.
“It is not a safe operation. It is not a pleasant operation. And we don’t want to live next door to it,” she said.
Commissioners take action
Noting that he also had purchased a large rural tract, Chairman Larry Caddell chastised Blackwell that “things don’t always work out” and seemed to lose patience with her lengthy address when her comments veered into challenging the Commissioners decision to appeal as a waste of taxpayers dollars.
Caddell politely asked Blackwell to return to her seat while the Board considered action.
Commissioner Lea said he understood Blackwell’s point but cautioned that Judge Webb's decision had a far-ranging impact that was an appropriate matter for the courts.
“This is not just us passing the buck,” Lea said.
Commissioner Nick Picerno echoed those concerns, “The problem is the VAD was written in a way that it could be open to different interpretations . . . By saying only farm use, it makes it very restrictive.”
Lea agreed with that assessment, but said there is a fine line when protecting land, and that line that must be guarded.
“We all live here because we like our quality of life," Lea said. "If we don’t put in zoning to protect what we have . . . You can’t just do away with regulations and expect people to do what is right,” he cautioned, noting how major metropolitan areas were once farmland too.
“The VAD was never intended to cause what we are dealing with,” Lea concluded.
