Topics

• Farm Law & Tax projects looking ahead for 2025
• Solar siting
• Planning the Future of Your Farm farm succession project
• Heirs Property
• Federal jurisdiction overview
• NC Farm Acts (2022 & 2023)
• Wetlands regulation, etc.
• Bona Fide Farm status
• Helene Recovery thoughts
• Other?

https://farmlaw.ces.ncsu.edu/

The Study of Law and Policy:

Government Power and Dispute Resolution

The study and teaching of law traces the history of England and the United States (and North Carolina) in two tracks in the development of law:

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Track One - The millennium of refining government power through its representative legitimacy

• Ours is the history of England, at least up to early 18th century
• experience of society fuels evolving concepts of civil liberty, equal protection and participation in government that check such power (what we call “human rights”)

Track Two - The millennium of forging rules and processes to resolve the peoples’ disputes peaceably (against the government and each other) where courts craft and follow rules to:

• determine ownership of property and obligations on contract
• assign responsibility for wrongs
• review whether government action upon the people is authorized by the people (modern)
• government has authority, only people have rights enshrined in federal and state constitutions
• all legal authorizations are “authorized privileges”

“The life of the law has not been logic; it has been experience.”

• Justice Oliver Wendell Holmes, The Common Law

Projects: Solar Siting Hub

• Renewable Energy Development and Siting Hub (DASH)
• partnership between NC Cooperative Extension and NC Clean Energy Tech Center (NCSU College of Engineering)
• Goals:
• gather community input on knowledge of industrial scale solar (concerns, etc.)
• assist communities with model ordinances
• research and produce educational materials on solar development

Projects: DASH Local Input Meeting Schedule

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January 13, 2025, Kenansville, NC, at the Duplin County Center

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January 23, 2025, Roxboro, NC 27573, at the Piedmont Community College in the Auditorium (Building D)

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February 6, 2025, Warrenton, NC 27589, at the Warren County Armory Civic Center (Room A)

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*February 24, 2025, Hertford, NC 27944, at the Albemarle Commission

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*February 25, 2025, Edenton, NC 27932, in the Culinary Arts building at the College of the Albemarle - Edenton-Chowan

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March 6, 2025, Oxford, NC, Granville County Convention and Expo Center Auditorium

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March 20, 2025, Laurinburg, NC 28352, in the Media Center at Scotland High School

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April 15, 2025, Rockingham, NC 28380, at the Richmond County Extension Center

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All meetings from 6pm to 7:15pm *wind energy focus

• North Carolina Carbon Plan (HB 591: Energy Solutions for North Carolina
• requires Duke Energy to reduce carbon emissions by 70% from 2005 levels by 2030 (“net-zero” by 2050)
• Duke Energy: “energy use is projected to grow by around 35,000 gigawatt-hours over the next 15 years Approved by the NCUC
• The North Carolina Utilities Commission (NCUC) issued its most recent Carbon Plan Integrated Resource Plan (IRP) Order on November 1, 2024.

Additional clean energy resources: The NCUC accepted Duke Energy’s additional proposed clean energy buildout, including:

• Solar: 3,460 megawatts (MW) of new solar generation, 6,700 MW total by 2031
• Battery: 1,100 MW of battery energy storage, 2,700 MW total by 2031
• Onshore Wind: 1,200 MW of onshore wind in operation by 2033, including at least 300 MW in operation by 2031

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If 1MW = 5 acres, then 3460 x 5 = 17300 acres…

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North Carolina Energy Policy

• Counties with Solar Development Moratoria
• To approve an industrial-scale solar facility, the county Board of Commissioners must approve a special use permit
• land is normally zoned “agricultural” or “residential”
• Current moratoria (we think)
• Davidson (24 months)
• Halifax (up for renewal?)
• Scotland
• Warren
• Person
• Northampton (ends June 30, 2025)
• Edgecombe (9 months)
• Greene (24 months)

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Utility-Scale Solar Development

Projects: Planning the

Future of Your Farm

• Grant from NC Tobacco Trust Fund
• Implement form of survey from FARMTRANSFERS project
• Deliverables:
• survey/consult activity with commodity groups
• update of PFYF workbook
• WHY? because it is 7 years since last update and still in use
• components as Extension fact sheets
• The Ask: please respond to my email if you are connected with a group and can make

an introduction to Executive Director

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Federal, State Law and Local Power

• Federal government power is limited
• by the grant of authority in the words and phrases of the U.S. Constitution
• by the rights “we the people” have reserved to ourselves alone
• All other power is reserved to the states via the 10th Amendment
• Land Use is a function generally reserved to the states
• Unless Congress chooses to intervene (e.g. environmental laws)
• Local government (in NC) has no inherent power

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Rights vs. Authorized Privileges

• Only people have “rights”
• enshrined in the state and federal constitutions (based on the common law)
• restricted or expanded by the US Supreme Court
• “rights” exist against government and injurious assault by other people
• Governments have “power”
• then what are state’s rights?
• “Authorized privileges” are those we the people grant ourselves through legislation, its definitions and limitations (which we can take away)

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US Supreme Court limiting federal jurisdiction

• Six ‘conservative’ judges (appointed by GOP, 3 under Pres. Trump)
• Three ‘liberal’ judges (appointed by Democrats, 1 under Pres. Biden)
• While a conservative majority tends to favor farmers’ general conservatism, it’s not always a vote for agriculture
• e.g. Proposition 12 case, California animal (swine) welfare referendum law upheld
• Majority has general skepticism towards authority of bureaucratic state to interpret vague legislative language
• Loper Bright repeals Chevron ‘deference’ doctrine
• Sackett v. EPA, interpretation of ‘waters of the US’ in Clean Water Act to point of criminal penalty
• Majority skeptical of reach of federal jurisdiction, in favor of state sovereignty
• also Sackett v. EPA, rebuke against expansive definitions that can carry a criminal penalty (without specific authorization by Congress)
• Favorable to Fifth Amendment takings claims
• e.g. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021)

Post-Sackett Wetlands “Certainty”?

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• The agencies are presently working out how to implement the changes in the field
• No landowner should take these changes as:
• a license to self-dileneate a wetland or determine its jurisdiction
• a sign that agencies are “backing off” of enforcement
• If faced with a landowner who is reluctant to consult directly with Army Corps of Engineers, NRCS or DEQ, suggest they speak with their consulting forester or consult an environmental consultant

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www.farmlaw.ces.ncsu.edu

Wetlands on farmland are still largely “regulated” by Swampbuster

• A reversal of 19th/20th century policy of encouraging draining wetlands for agricultural production
• e.g. NC Drainage Act of 1909 (drainage districts)
• Provision in Food Security Act of 1985 (1985 Farm Bill) disqualifying participation in most US farm programs if converting a wetland after December 28, 1985
• Introduces “Prior Converted Cropland” (PCC) concept to exempt production on wetlands drained and put into production prior to 1985 Farm Bill
• NRCS determines wetland status
• (we believe they use Army Corps’ manual)
• The land is already well-mapped (e.g. WRI)
• Don’t know if Swampbuster will be repealed in next Farm Bill

www.farmlaw.ces.ncsu.edu

Application of State Regulation and Exemptions

• Statutes apply language in definitions left to interpretation
• e.g. exemption for “farm buildings”
• e.g. what is “horticulture” for PUV?
• Exemptions - for most part - are based on actual growing and sale of products grown, and documentation of income
• e.g. property tax exemption (PUV) requires proof of income from sale of product
• e.g. sales tax exemption requires production on home farm

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Challenge of Local Decisions and Authority

• County will adopt a position adverse to a landowner or farmer’s interest
• Farmer/Landowner comes to county Extension with the problem
• Challenge is how to advocate for the local ‘client’
• The County has adopted a position
• EXAMPLE:
• parcel owner A ‘loses’ acreage because neighbor B ‘surveyed’ away enough acreage to disqualify parcel A from 10 acres required for Present Use Value
• county applies roll back
• parcel A appeals (or fails to appeal)
• roll back is a lien on parcel A (owner has uphill battle)
• amount of lien <$1000, county assumes not enough money to hire counsel to fight
• will require a court to overturn county’s decision ($$$$$)
• Can try to modify county’s position with an opinion that it lacks authority to commit this action, will it work?

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• NC Counties are authorized to implement land use restrictions through zoning in their jurisdiction (outside of municipality)
• A farm that qualifies for exemption from zoning under statute
• The term exists only in the context of zoning
• It has been appropriated to denote “legitimate farmer” (without statutory authority)
• A bona fide farm parcel may not be annexed by a municipality without consent of the parcel owner [NCGS §160A-58.54(c)]
• A bona fide farm parcel located in municipal extraterritorial jurisdiction (ETJ) is not subject to municipal zoning restrictions
• So long as parcel remains a bona fide farm

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Bona Fide Farms

Bona Fide Farms and Municipal Zoning

Municipal Zoning Code (MZC)

“no livestock for commercial purposes”

County Zoning Code

Extraterritorial Jurisdiction (ETJ) subject to MZC

Livestock:

Yes

Livestock

Yes

Livestock: No

Bona Fide Farm Tract A

annexed prior to BFF statute

• parcel qualifies for PUV
• requires showing of $1000/annual income
• parcel owned or operated by producer with Qualifying Farmer Certificate
• requires showing of $10,000/annual income
• parcel owner or producer files a Schedule F
• may only (and honestly) put farm production income on federal tax schedule
• timber management plan
• not defined by statute, assumption is that must meet commercial qualification required for PUV

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Production Requirement for BFF

Projects: Land Summits

• Landowner general land use law and tax and succession planning education
• handy Planning Guide with proposed curriculum
• authored by Becky Bowen
• Local presenters + Extension specialists
• Topics:
• Conservation programs
• FSA programs
• Succession planning
• Extension resource programs (e.g. Farmlink)
• Property Taxes
• Timber management
• Easements and rights of way
• Etc.

The NC Farm Acts: Highlights 2023

2023:SESSION LAW 2023-63

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• aligns state wetlands protection with federal definition (no protection for ‘isolated’ wetlands)
• NOT a boon to producers, who are still subject to Farm Bill ‘swampbuster’ provision
• adds income from sale of honey as qualifying income toward Present Use Value income requirement
• adds compost as sales tax-exempt input under Qualifying Farmer Certificate
• adds pine needles and biofuel production to definition of “agriculture”
• allows ‘seasonal’ farm agritourism signs in DOT right of way
• New Agritourism (99E) liability exemption signs:

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"WARNING

Under North Carolina law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if such injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death.

You are assuming the risk of participating in this agritourism activity."

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The NC Farm Acts: Highlights 2024

2024: SL 2024-32

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• horse boarding, training, etc. is now included in definition of agriculture (any statutory reference to "§ 106-581.1” includes equine activity)
• horse boarding, training, etc. is considered farming for purposes of right to farm law (nuisance)
• horse boarding, training, etc. is specifically included as an agricultural activity as exempt from land disturbance under sedimentation control act (NCGS §113A)
• a bit about shellfish leases
• a bit about sweet potato promotion
• swine general permits extended to June 2026 (assume in wake of Farm Bureau v. DEQ case)
• composting facilities added to Right to Farm statute
• limit regulation of bee hives by municipalities in their extra territorial jurisdictions
• Return of the state Conservation Tax Credit
• equal to 25% of FMV of donated value ($500,000 cap)
• for individuals, C corporations and pass through entities (LLCs)

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FEMA Rebuilding Program (1)

Programs managed under the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5121 et seq.] (Stafford Act)

Individuals and Households Program

Katrina (2005) and Maria (2017) exposed challenge of insufficient documentation of title

Reforms in paperwork, now “self-declarative statement”

Requirements for statement (Verifying Ownership and Occupancy)

Oath Statement: "As the nearest relative of the deceased in the line of succession, my ownership includes all the rights and obligations of the deceased. The decedent's name is ________________, and they died on ________________. I understand I must submit the death certificate along with this declaration. I hereby declare under penalty of perjury that the foregoing is true and correct."

FEMA Rebuilding Program (2)

• Community Development Block Grant Disaster Recovery (CDBG-DR)
• via HUD block grants to state and local entities variety of purposes (relief, recovery, restoration, replacement, revitalization)
• Funded by Congressional supplemental appropriations
• Requirements issued via Federal Register, parameters depend on disaster (State develops requirements)
• North Carolina Requirements document
• recent letter effort to HUD secretary on ownership affidavits

Buyout Programs

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Pub. L. 91-646, 84 Stat. 1894) (42 U.S.C. 4601; 49 CFR part 24)

Administered by HUD

Kentucky’s Experience (2022 Floods)

Community Development Block Grant Disaster Recovery (CDBG-DR)

• 2022 torrential flooding resulted in major disaster declaration which qualified the Commonwealth of Kentucky to receive long term disaster recovery funding in May of 2023
• Congress appropriated $3 billion for CDBG recovery funds disasters that occurred in 2022.
• May of 2023, HUD allocated those dollars from those 2022 disasters, and Kentucky received $297,994,000
• Kentucky was the largest non-coastal CDBG disaster recovery allocation in history
• information sourced from public hearing transcript: https://dlg.ky.gov/grants/federal/DR/2022DR/Pages/default.aspx

Kentucky’s Approved Plan and Timeline

• KY Dept of Local Government (DLG) “shall allocate at least 80% of the funds to address needs in the HUD identified mitigation areas.
• DLG shall to allocate at least 70% of all program funds to serve Low Moderate Income (LMI) persons or households
• Action plan due at end of December 2023
• “HUD has 60 days to approve and review the plan. Funds will not be available to the Commonwealth until HUD and DLG have executed an agreement.
• Programs to begin, launch in 2024.
• The programs will end when the eligible participants have completed closeout, all budgeted funds have been expended or six years of execution of the grant agreement with HUD. So we have six years to carry out that program from the time of the execution of the grant agreement with the HUD

How Funds Were Allocated in

Kentucky Plan

• At least 15% of that $287,994,000 will be set aside for mitigation measures
• Called “Duplication of benefit” The duplication of benefit is essential when you are talking about the CDBG-DR program.
• Federal cost share buyback program. This is a program that will provide the local non-federal cost share to the buyouts that are taking place with FEMA.
• FEMA “buyout” is a 75%/25% match. That 25% is then divided between local and state. This can cover the local cost share of that program

NC Hazard Mitigation Buyout Program (Non-Disaster)

NC Department of Public Safety

Webinar on November 7, 2024 Recording should be available: https://www.ncdps.gov/our-organization/emergency-management/hazard-mitigation/about-hazard-mitigation

Examples of eligible projects include, but are not limited to:

1. Retrofitting methods such as elevation in place
2. Acquisition of property and/or relocation of homes, businesses, and public facilities.
1. acquisition of riparian properties, local government is the applicant, purchased land is permanent greenspace
3. Structural hazard control or protection measures such as flood walls, detention basins and other storm drainage upgrades.
4. Generators that protect critical facilities such as shelters, hospitals and emergency response locations. (funding limited)
5. Projects that mitigate the risk of a natural hazard to public infrastructure.

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Recovery Issues in WNC

• Parcel Boundary
• Actions for restoration
• Survey costs
• Agreements with neighboring parcels

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• Appraisal for Buyout
• proof of acreage

ARE 306

Water Rights

Boundary Change by Accretion

Image Source: Blackmore, Andrew Tilburg University - The Netherlands

ARE 306

Water Rights

Changing Lot Lines

• Considerable flooding, erosion, and earth movement may have impacted or destroyed property line markers delineating property boundaries.
• Often, especially in rural settings, those boundaries can be tied to a tree, tree line, or river bank – all of which may have been material impacted by Hurricane Helen
• Trees may be completely uprooted and/or destroyed.
• River banks may have shifted considerably.
• If possible, it is best to have the property resurveyed and new markers set. This can help avoid future disputes and address any questions about lot lines/boundaries following the storm.

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ARE 306

Water Rights

THANKS FOR INVITING ME!

Robert Andrew Branan, JD

Associate Extension Professor

Department of

Agriculture and Resource Economics

North Carolina State University

rabrana2@ncsu.edu

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