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HomeMy WebLinkAboutPlanning Board Special Meeting minutes 032019Approved 4/3/19 MEETING MINUTES 1 ORANGE COUNTY PLANNING BOARD 2 MARCH 20, 2019 3 SPECIAL MEETING 4 5 MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; Kim Piracci, At-Large; 6 Adam Beeman, Cedar Grove Township Representative; Carrie Fletcher, Bingham Township Representative; Patricia 7 Roberts, Cheeks Township Representative; Paul Guthrie, At-Large Chapel Hill Township; Randy Marshall, Bingham 8 Township Representative; Hunter Spitzer, At-Large; David Blankfard, Hillsborough Township Representative; 9 10 MEMBERS ABSENT: Buddy Hartley, Little River Township Representative; Laura Nicholson, Eno Township Representative; 11 12 STAFF PRESENT: Craig Benedict, Planning & Inspections Director; James Bryan, Staff Attorney; Michael Harvey, Current 13 Planning Supervisor; Tina Love, Administrative Assistant III 14 15 AGENDA ITEM 1: CALL TO ORDER 16 Chair Lydia Wegman called the meeting to order. 17 18 AGENDA ITEM 2: PUBLIC CHARGE 19 Chair Lydia Wegman waived the reading of the Public Charge 20 21 AGENDA ITEM 3: CHAIR COMMENTS 22 23 AGENDA ITEM 4: UNIFIED DEVELOPMENT ORDINANCE (UDO) TEXT AMENDMENTS – REORGANIZATION OF TABLES OF 24 PERMITTED USES – To continue review of and make a recommendation to the BOCC on proposed amendments to the 25 UDO that would reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin County judicial decision and 26 modify other sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC public 27 hearing on April 16, 2019. 28 29 PRESENTER: Michael Harvey, Current Planning Supervisor 30 31 Michael Harvey: I’m going to make a very brief summary. So obviously, you have an abstract outlining why we are here 32 this evening. There are tweaks that have been made to the packet and I want to review them very quickly. You also have 33 a revised attachment one that spells out the changes that have occurred within the proposed table. At your last meeting 34 there were concerns over the term burden of persuasion and what it meant. There were questions asked which I 35 forwarded to the attorney’s office. I’ll let Mr. Bryan speak to those in a moment. There was also a request to allow retreat 36 centers in additional non-residential zoning districts as permitted use, so you’ll note from the abstract we’ve allowed them 37 within the neighborhood commercial, community commercial, general commercial, Economic Development Buckhorn low 38 intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail districts at the 39 request of the Planning Director. There are tweaks to Section 2.10.3 and this is where we start getting into the discussion 40 on modifications adding language associated with an applicant’s burden of proof. As pointed out at the last meeting the 41 sentence reads as follows, ‘applicants shall have the burden of establishing by competent material and substantial 42 evidence in the form of testimony, exhibits, documents, models, plans and other materials, that the application meetings 43 the requirements for approval of a Variance it’s application meets’. So that is in Section 2.10.3 and 2.11.3 what I would 44 like the Board to do before we get into the discussion of burden of persuasion, because regardless of whatever happens 45 with burden of persuasion, I’d like there to be a motion to accept the amendment to Section 2.10.3 and Section 2.11.3 46 replacing meetings with meets. 47 48 Randy Marshall: So moved 49 50 MOTION by Randy Marshall to accept the amendment to Section 2.10.3 and Section 2.11.3 replacing meetings with meets. 51 Seconded by Carrie Fletcher. 52 VOTE: Unanimous 53 54 Michael Harvey: I would also like there to be a motion acknowledging and accepting the changes to the Table of 55 Permitted Uses that you saw last month to include Retreat Centers in the districts I named. 56 Approved 4/3/19 57 Randy Marshall: So moved 58 59 MOTION by Randy Marshall to acknowledging and accepting the changes to the Table of Permitted Uses to include Retreat 60 Centers in neighborhood commercial, community commercial, general commercial, Economic Development Buckhorn low 61 intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail districts. Seconded 62 by Hunter Spitzer 63 VOTE: Unanimous. 64 65 Michael Harvey: Let me introduce Mr. James Bryan of the county attorney’s office to discuss burden of persuasion. 66 67 James Bryan: I’m a staff attorney here in Orange County. Michael mentioned to me that there were some particular 68 concerns you have been wrestling with regarding the Table of Permitted Uses. I drafted a memo. The last two pages are 69 the actual questions that Michael forwarded to me with the answers, but I thought it would be easier to just work from the 70 beginning. Let’s start at the beginning of why staff came up with changes to the Table of Permitted Uses. There was a 71 court case in 2015, Franklin vs. Byrd, in which the state said all the local governments along with the state have been 72 doing this wrong for a long time. Zoning is a derogation of property rights and anything ridding of somebody’s property 73 rights is a higher standard than normal stuff, so you have to be clear when you do that. Our current UDO is written 74 similarly to many jurisdictions in the state where the state says we’re going to tell you what you can and can’t do. The 75 Byrd court said, no, you don’t tell people what they can do, it’s assumed they can do whatever they want, and you have to 76 tell them what they can’t do. You have to very clear and when there’s ambiguity it will go in favor of the property owner. 77 You can think of the Table of Permitted Uses as things you can and can’t do. There is also a middle ground that says 78 these are the different categories and we’re going to bump you in to whatever is closest to it. If you want to prohibit 79 something, you have to be clear about it. An example of how the UDO was constructed for that is with the definition of 80 large daycare homes which provides daycare for more than 5 but fewer than 16 children within a residence. The idea was 81 it was regulating within the definition; 17 children wouldn’t be captured by that definition since it’s 5 to 16. Under the 82 current UDO if you have 17 children in the home, we were presuming that you weren’t allowed because you didn’t fall 83 under the definition. Byrd flips that and says if you’re not a large daycare home, which you are not with 17 kids, then 84 you’re not regulated and not listed in the Table of Permitted Uses so it’s assumed that you can go about your business. 85 Group homes have always been a difficult subset of Land Use Categories because there’s state and federal laws about 86 group homes like halfway homes and addiction centers. Both the state and federal have particular regulations for group 87 homes through the ADA, Americans with Disabilities Act and through fair housing. The problem is they overlap. Under the 88 old system where you said, I’ll tell you what you can do, it’s okay to regulate them like that. With this one, it’s going to be 89 tough to have a very explicit set of uses for that. A lot of other jurisdictions have added something to their development 90 ordinance which you can call reasonable accommodation which the law requires for ADA and fair housing. It’s a great 91 time to address that because it also addresses the idea that we want broad categories, so they are regulated. The federal 92 and the states are saying you can’t be so broad with these protected classes, so we’re being broad but also giving them an 93 escape of reasonable accommodations. Durham and Ashville have adopted this, and now staff is proposing this. There 94 are different ways to approach this. You could have very precise definitions of land use categories to meet state and 95 federal guidelines, or you could develop your own reasonable accommodation section. It is both common and useful to 96 steal from other jurisdictions as Durham has already adopted this so go ahead and steal from them. This helps serve two 97 purposes; the first is saving staff time and the other is when something is complex and can lead to litigation, you look to 98 the court to see whether it is applicable to you. Durham and Ashville has been untested so it’s more of a prospective use. 99 Having it match as closely as possible influences the reliance on it. Durham’s reasonable accommodation has a section 100 on burden of proof which includes burden of persuasion. When first reviewed with Michael, he had eliminated that section, 101 and I told him if there’s any change that’s going to impact how it’s relied upon later, maybe it makes a difference, I don’t 102 know? Michael stated he would put it back in, but by putting it back in, it doesn’t line up with the rest of our UDO as the 103 rest of the UDO has different processes for Special Use Permits, Appeals, Interpretations, and others. It talks about what 104 is basically burden of proof, but it doesn’t use the same words in the same way that Durham did for theirs. When reading 105 our UDO, it has different words for the same process. There’s construction, the way the courts are going to read this when 106 reviewing it which says words have meaning and purpose and when they are done differently in different sections that’s 107 intentional for different purposes. So, staff met in the middle and used the Durham one, I think verbatim, and then 108 changed the other sections of the UDO. It’s important to know because there’s a context of it that the words have meaning 109 and has to be the same in different places. The first, is the construction in which words have their normal every day 110 meaning and unless defined will be from the dictionary. I would believe that persuasion here has to be looked at in the 111 context of that it is usually used in a board’s determination for a quasi-judicial determination. I don’t think you have a 112 Approved 4/3/19 burden of persuasion for a staff level determination in the UDO. You are probably going to rely on the fact that in the 113 statutes the language talks about substantial evidence where you need competent, material, and substantial evidence 114 sufficient to make your proof. Material is something related to the thing at hand and competence is that which could be 115 used in a court, it’s reliable. Substantial is that which a reasonable mind would regard as being sufficient to support a 116 specific conclusion which can be found on the third page under 1, the last sentence. Substantial evidence is that which a 117 reasonable mind would regard as being sufficient to support a specific conclusion. This to me is a fairly low bar. 118 Reasonable minds can disagree, but there are some things that are just not disagreeable. It is what a reasonable mind 119 would regard as being sufficient to support a specific conclusion. The next question forwarded by Michael is, the need for 120 language in the question given; how the UDO is structured with respect to Variances, Interpretations, and SUPs. This is 121 again the idea that discrepancies can have major impact. If you say staff such as Michael and Craig Benedict in multiple 122 sections and then say staff such as Michael, this is construction and there’s an omission. Craig was left off on that last 123 one and you might say Craig hadn’t been hired when that part was drafted, but the court upon reviewing it will see it as a 124 purposeful omission, something that was meant for Michael but not Craig. This is the reason the different sections should 125 be as uniform as possible. The greater the variance between the different sections the more ambiguous and less likely it 126 is to be upheld. The third concern; Board members are concerned that requests could be denied because someone 127 decides even with expert testimony in the evidence you have not convinced me. By statute, everything has to be based 128 upon competent material and substantial evidence and local rules have to be followed. It can be tinkered with to create 129 more procedures and processes and can be exhaustive in description, but you run the risk of not doing it perfectly and 130 anything in the definitions will be upheld. If you don’t say anything, you can likely rely on the statutes and precedent. 131 132 Lydia Wegman: I don’t have a problem with the burden of proof, but what is puzzling to me is that the applicants have the 133 burden of the competent material, substantial evidence, what meets the requirements for approval of the variance. I don’t 134 understand what the burden of persuasion language adds, and it seems to confuse the issue. Although Durham has put it 135 in, it has not been legally tested, and is not persuasive to me. 136 137 James Bryan: My job is to work for the Board when they’re considering this, that it is legally sufficient, and that they’re 138 aware of the risks. My concern is that you all understand this and understand the risk involved. 139 140 Lydia Wegman: I’m not understanding what the risk is of not having the sentence, further the applicant shall have the 141 burden of persuasion on those issues. 142 143 James Bryan: If you don’t have Durham’s verbatim, you can’t rely on it. 144 145 Lydia Wegman: But Durham’s has never been tested, this is their creative approach. 146 147 James Bryan: Right. 148 149 Lydia Wegman: What if ours was tested first? 150 151 Hunter Spitzer: Do you know what they have done to justify doing this? 152 153 James Bryan: No. 154 155 Carrie Fletcher: So, we are just following them just because? 156 157 James Bryan: No, I don’t believe so. One reason we are following them is because staff has been working on this for 158 years. We could come up with a whole new one but then Michael would have to come up with all new language, it would 159 have to be reviewed by me, he would have to bring to you, and it would be a longer process. This is a quick process, and 160 I’ve told Michael that what Durham does is legally sufficient. 161 162 Lydia Wegman: What would make it legally insufficient to leave out the sentence about the burden of persuasion. I 163 understand you to say that we are just going to follow what they are doing. 164 165 Hunter Spitzer: Why it is insufficient without the burden of persuasion, it is because then we can’t rely on their standard? 166 167 James Bryan: It is not legally insufficient. 168 Approved 4/3/19 169 Lydia Wegman: It would not be legally insufficient if we deleted that sentence, is that correct? 170 171 James Bryan: Yes. 172 173 Lydia Wegman: I understand why you need a statement about burden of proof and where it falls, but it’s that last sentence 174 that’s hanging me up. 175 176 James Bryan: I would encourage you to allow me to explain burden of proof, burden of persuasion, and burden of 177 production. It’s one thing to think it’s legally sufficient so we can do it, but we should all have our own reason. If I had my 178 way, we would just rely on the statutory language, but that is not how our UDO is set up. Our UDO is hundreds of pages 179 reiterating and expanding upon the statutes. We talk about burden of proof, but we don’t use those words so much and 180 use the statutory language some but it’s really a modification of everything. Durham has their own modification, different 181 but fairly similar. The burden of proof is an umbrella term that is usually broken down into burden of production and 182 burden of persuasion. Production could be the tangible items, the witness or the documents, and the persuasion could be 183 the arguments that support that. It could also be in different context that the burden of production is when the burden 184 shifts. If you were in civil court in the state of North Carolina, you would file a lawsuit with the first motion of summary 185 judgement. You would have a hearing to ask the judge to throw out the case just based upon what you have because you 186 don’t need a trial. This has a different standard for it than a trial. There you have a different burden of production than you 187 would have at the trial. In that context, it has a different meaning, so you have to look at what you have here. I think what 188 Durham does is fine. It is a little wordy, not very user friendly, and has too much legalese, but I don’t believe ours to be the 189 gold standard either. There are hundreds of pages in the UDO and there are a lot of things that I don’t think are best 190 practices, but if it’s not being changed right now it has opened up a Pandora’s box to mess with everything. By peeling 191 away at the UDO, you bring up other issues and that’s how the reasonable accommodation came in. I think the staff has 192 done a good job about addressing the problems that came up and the next thing was this burden of persuasion and how to 193 get it to either to match Durham’s or to meld with ours. 194 195 David Blankfard: In our UDO is there a definition for burden of persuasion? When I looked it up, there is an article from 196 Law Cornell that says the definition for burden of persuasion. Can we have that put in as this is what this means, along 197 with the need for factuals, information, and for it to be presented? 198 199 James Bryan: Yes, but I recommend against it. It makes sense to clarify, but if you have a definition of it, you are defining 200 a term used by Durham and Durham might define it differently and you therefore lose that benefit from it. If you are silent 201 then you could say, yes, that is what we meant. I think you are not at a risk when you say, yes, that is what we meant 202 because I think burden of persuasion and burden of proof is so well established in the law that is it competent, material, 203 substantial evidence for the standards found in the UDO. 204 205 Hunter Spitzer: I am still confused with how burden of persuasion is distinct from burden of proof. How is adding 206 persuasion something more than just burden of proof? What does it add that we wouldn’t have without it, and what makes 207 that different than just the regular burden of proof defined in case law? 208 209 James Bryan: I think what I am hearing is that you’ve added that the burden of proof is broken down into production and 210 persuasion. Production is the documents and persuasion is the arguments. In the UDO, we are explicit that the burden is 211 on the applicant to produce the documents but didn’t say anything about the arguments. It was implicit and this is making 212 it explicit. 213 214 Hunter Spitzer: This definition is only added in 2.10.3 and 2.11.3? 215 216 Michael Harvey: No, it was added to 2.10.3, 2.11.3, 5.3.2, the sections dealing with Variances, Interpretations and 217 Special Use Permits. 218 219 Hunter Spitzer: Okay. 220 221 Carrie Fletcher: Part of the comments were to keep it so the average person could do it on their own without legal 222 assistance and to keep it cost effective. You understand the terminology, but the average person may not and therefore 223 you are going to end up requiring the applicant to hire legal help. 224 Approved 4/3/19 225 James Bryan: I understand that, and I think you are defeating the purpose if you don’t expand it. It’s 600 pages and not 226 user friendly to begin with. If you were to leave the burden of persuasion out and leave it implicit, then those wily attorneys 227 are going to be only ones able to pick that out while the average person wouldn’t look for the loopholes. This is closing the 228 loopholes and making it harder for attorneys to get around the system. 229 230 Randy Marshall: This seems to create loopholes. If there is no concrete criteria for persuasion, any attorney can 231 challenge not being persuaded when there is no criteria or definition for persuasion. It is left up to the governing board to 232 say, whatever you put out there, I am not persuaded. It provides an undue decision-making authority on the governing 233 board who rules. I would prefer to see Orange County go in it’s own direction and then if there’s a problem with that, it will 234 surface. I can’t see that someone would come and say they will take us to court because we didn’t add the phrase. 235 236 James Bryan: Either John or I are at the boards and we would advise against those arguments. The enabling statutes 237 say that someone has to have substantial material and competent evidence and case law indicates that once you have 238 that you have a right to the permit. That is the burden of proof. The different parts of it about the production of documents 239 and persuasive arguments are subparts to that. 240 241 Adam Beeman: I have applied for permits in this County since 2008, and I just don’t see is as being a fair process to 242 someone who can’t afford deep pockets to get out of it. If you just scratch persuasion off, I am happy. But you are telling 243 me I have to persuade you yet don’t give me any concrete steps to hit. That is a problem for me. It seems objectified. I 244 read your paragraph that if I provide all of this stuff then I deserve it, so then scratch out persuasion because I have 245 accomplished all of that. Why do I have to persuade you? If I come in and present my evidence and testimony, I have 246 either persuaded you or not. 247 248 James Bryan: It is a problem with semantics, but I am telling you what the law says. The law says you are always 249 persuading the Board. The Board has discretion. 250 251 Adam Beeman: That is my problem. It seems like a backdoor to say no to any project regardless if I qualify or not. 252 253 James Bryan: It can’t be that. 254 255 Adam Beeman: It sounds like it. I am a layperson not a legalese, and it doesn’t make sense to me. When I read it, it 256 sounds like you are discouraging me from doing it. I am at the mercy of presenting my case instead of handing you the 257 facts. 258 259 James Bryan: The facts aren’t the facts. 260 261 David Blankfard: I have an example of the facts aren’t the facts. I was on the Board of Adjustment and we had an 262 applicant come in and say they wanted to have a kennel put in. They had their own realtor come in and say it’s going to 263 maintain or enhance their property, but the neighbors had another expert say, no, it is not going to. We had to pick 264 between the two on who was most persuasive. 265 266 Randy Marshall: Persuasive or factual? 267 268 David Blankfard: They were both qualified but just had different opinions. 269 270 Michael Harvey: They drew different conclusions from the facts. 271 272 Adam Beeman: And that is the problem with persuasion that I have. Mr. Harvey mentioned earlier that any time you go 273 for these permits, you would be advised to have a lawyer. You are setting me up right out of the gate to have to spend 274 money. 275 276 Craig Benedict: I don’t know if this is an operable solution. One suggestion was to put a definition and James said 277 probably not. Sometimes in state construction of statutes there are some unknowns and what is done later is they ask for 278 an attorney general opinion on what that really means. Could the attorney’s office put an attorney’s opinion of how we 279 operate that burden of persuasion in an argument and explain? If we could get some sort of attorney opinion outside of it 280 Approved 4/3/19 that says this is what we mean by the argument. This is a typical argument that should go with the proof to have the 281 whole package; the production, the argument, and the overarching burden of proof. 282 283 Randy Marshall: This hasn’t been in there before. How we have suffered by not having this clause in our UDO? 284 285 James Bryan: There’s always the potential of litigation for ambiguity or not following local ordinance. 286 287 Randy Marshall: But we have not had any challenge up to this point that would seem to suggest that we to have this in 288 there. 289 290 James Bryan: To my knowledge, we have not. 291 292 Randy Marshall: How do you define reasonable? 293 294 James Bryan: Up until that last clause, I think that’s spot on. Going back to David’s example regarding the kennel. David 295 and his co-members on the Board had to vote, and one of them could have said I think it’s going to decrease the value 296 while four of them could have has said it would increase the value. If they give the applicant the permit and it gets 297 appealed to Superior Court, the court will review the decision and ask if they had competent material and substantial 298 evidence. If the applicant did, then the court would find in their favor. It is a discretionary decision that the Board is 299 allowed to make. 300 301 Randy Marshall:. If we allow the clause to stay, what prevents us from adding another clause that says whoever is not 302 persuaded has to provide us with the reasons they are not persuaded? 303 304 Michael Harvey: That already does happen. 305 306 Randy Marshall: You have to put it in there so whoever reads it has it concretely in front of them and it’s not implied that 307 they have it. If someone says they are not persuaded, after the burden of proof has been met, I think they should have an 308 obligation to the applicant to delineate the reasons why they are not persuaded which provides recourse to contest the 309 decision preventing them from getting what they are seeking. 310 311 Kim Piracci: Is this is one issue we have tonight? 312 313 Lydia Wegman: Yes. 314 315 Kim Piracci: I’m a gemologist; and at some point, it’s not up to me to give a gemology lessons to my clients if that person 316 has hired me for my expertise. There’s a hang up on the word persuasion, and he has said several times that it is not the 317 legal standard. The legal standard is this other thing. These three professionals are kind of in agreement that these 318 wordings should be in here and said it’s an improvement over what we had. Michael has said it’s already if you are not 319 persuaded you have to say why and yet it seems to keep going back and forth. At some level, we have to trust our paid 320 professionals and that’s what I would like to do at this time. I don’t see an end to this discussion. Even though I get your 321 point, I trust him because he’s a legal expert. 322 323 Adam Beeman: I don’t think we should be making it more difficult for normal people to understand and go through the 324 process. You are making it to the point where I have to hire a lawyer to do this so they can interpret the law for me. 325 326 Kim Piracci: Is it not already that way? 327 328 Hunter Spitzer: From precedent it seems like this is already the expectation. It was an implied expectation that the 329 applicant would have the burden of persuasion and now we are putting it into concrete text. If you are going for a Special 330 Use Permit or a Variance you will probably need a lawyer anyway, so I believe the process is the same, and I don’t think 331 this makes it any more difficult if you already have a lawyer. 332 333 Adam Beeman: No, but it can discourage someone from doing it in the first place. We can vote, but we will obviously we 334 will not get anywhere with me. 335 336 Approved 4/3/19 Lydia Wegman: Where you say the applicant shall have the burden of persuasion on those issues. What issues are you 337 referring to? If I’m understanding correctly James, you’re trying to say the first sentence is about the burden of production 338 and the second sentence is about the burden of persuasion? 339 340 James Bryan: I don’t have it in front of me. 341 342 Lydia Wegman: When you were drawing the distinction, you were saying the burden of proof consists of the burden of 343 production and the burden of persuasion. 344 345 James Bryan: I believe the first sentence was what’s currently in our UDO and what I believe is the definition of burden of 346 production. 347 348 Lydia Wegman: We have this new burden of persuasion language which was not there before with reference to issues, but 349 the first sentence doesn’t actually reference specific issues. 350 351 James Bryan: It should reference the standards for whatever section is applicable. 352 353 Lydia Wegman: It’s confusing for an applicant to know the issues. If we are going to keep the burden of persuasion 354 language, I think it needs to be clarified. 355 356 James Bryan: It might have been a copy and paste from Durham where it should have been specified. 357 358 David Blankfard: Since burden of persuasion is a legal term that is not quite obvious to laypeople, is there a way that we 359 can italicize it so people can Google “burden of persuasion” as opposed to Googling each word, because it means a whole 360 host of legal implications. 361 362 James Bryan: I always recommend that ordinances be unaltered and just plain, simple rules. At 600 pages it will never be 363 user friendly. What you do then is create forms and pamphlets to educate the public. I think forms like the application, a 364 fill in the blank type of thing, along with pamphlets. 365 366 Kim Piracci: Does Michael have to go back and correct or improve that imperfection that you brought up? 367 368 Michael Harvey: You don’t want to know what Michael is thinking right now. 369 370 Kim Piracci: Can we call this to vote or do we have to come back for it because there’s an imperfection? 371 372 James Bryan: I would always advise against coming up with language on the spur of the moment, but if you were to say 373 relevant issues I think that clarifies it. It’s one word and describes the issues. 374 375 Michael Harvey: I’m not signing off on that. I am not comfortable with that suggestion at this time. 376 377 Kim Piracci: So, we can’t vote on this tonight, anyway? 378 379 Lydia Wegman: We can vote on the language as it sits before us. 380 381 Michael Harvey: This was drafted after a 45-minute discussion between Mr. Bryan and myself to address concerns of legal 382 sufficiency. 383 384 Craig Benedict: I like the brochure idea or something that explains how we implement this. If we cannot put it as a 385 definition with an elaboration of it, which isn’t being suggested, then the language as it is would be useable with a 386 brochure. This would explain what we are trying to achieve. 387 388 Michael Harvey: Are you going to come up with a brochure? 389 390 Lydia Wegman: The brochure also isn’t the standard of court with review. It could be helpful to applicants, but it won’t 391 address the question if it were challenged. The brochure wouldn’t be admissible. 392 Approved 4/3/19 393 Craig Benedict: The brochure would be a help to the customer. 394 395 Lydia Wegman: It’s a good idea but doesn’t address our comfort with UDO language. 396 397 Craig Benedict: I agree. 398 399 Randy Marshall: Before we vote, I am going to say something with the burden of persuasion language I’m voting against. 400 I’m not persuaded that we have to have it because Durham had it. We’ve never had it in here and it’s never been a 401 problem. 402 403 Paul Guthrie: Has any court of competent jurisdiction defined what we’re now saying seems to be a problem? 404 405 James Bryan: I haven’t looked. It’s pretty well settled law because the statute is explicit about competent material and 406 substantial evidence. What is substantial has been litigated extensively but questioning the very foundation has not. 407 Franklin vs. Byrd is how this came up. There is always a chance that the foundation gets torn up, but this is how it’s been 408 going for a long time. 409 410 Paul Guthrie: What worries me is the turmoil that might occur over trying to justify and accept these definitions. You may 411 find that the rulings will take on and destroy further protections than we have and not just those under the court’s view at 412 that time. It seems like an issue that is one of those that can’t be solved simply and depending on the case that comes 413 forward that case may be awarded for the wrong part of information but set the precedent for all the rest. Is there any way 414 to avoid that and still maintain the standard that Michael is trying to justify? 415 416 James Bryan: I don’t think that there’s any way to fully avoid it. The law is an evolving thing. You can be conservative in 417 your approach by seeing what the common approach is and what is most legally defensible. 418 419 Lydia Wegman: If we take a vote, can we vote on whether we approve or disapprove this language? I think several of us 420 are uncomfortable with the second sentence, but not the first. If we were to vote on that, can this go forward to the Board 421 of County Commissioners? 422 423 Craig Benedict: You can vote with both sentences or one; it’s your recommendation. The Commissioners will see your 424 recommendation and vote for or against it. 425 426 Lydia Wegman: I’m trying to say I think we can take a vote and move on beyond us to the Board of County 427 Commissioners. 428 429 Michael Harvey: I think the Board just needs to take action as it sees fit. 430 431 MOTION by Hunter Spitzer to approve the Statement of Consistency as contained in Attachment 2 and to approve revised 432 UDO text amendment package in contained in Attachment 3 and refer the Board of County Commissioners to our 433 concerns with the language under the sections discussed this evening and on March 6, 2019 but to approve the document 434 as it stands. Seconded by Kim Piracci 435 436 Lydia Wegman: So, basically you are voting to approve it but just advise them that we had some concerns. 437 438 Hunter Spritzer: Yeah. 439 440 Carrie Fletcher: I would like to know what your feeling are, I would like to know. 441 442 Michael Harvey: I quite frankly feel that there are some statements that have been made here tonight that are inconsistent 443 with facts and how this language was added. That’s very unfortunate. I think that there is and has always been a burden 444 of persuasion for an applicant engaging in a Variance, Interpretation or Special Use Permit. That is just simple fact. An 445 applicant has the obligation to persuade whatever Board he or she is going before that they are correct and that the 446 information they are providing demonstrates the project complies with applicable standards. How they persuade that 447 Board they are correct is with the submission of competent material and substantial evidence in the form of testimony, 448 Approved 4/3/19 exhibits, documents, models, plans and other materials that the applicant is intending to use to persuade whatever board 449 the request meets the requirements for whatever, Variance Interpretation or Special Use Permit. I think that James’s 450 concern about establishing references to this existing burden, while some may believe is implicit in the ordinance, that the 451 specific language needs to be added was reasonable which was why I added it. The fact that you all don’t agree, that’s 452 your prerogative but some of the comments made about how this language got in here and what my purported motives are 453 is a little unfortunate and somewhat insulting. 454 455 James Bryan: Wait, from me? 456 457 Michael Harvey: From the group. 458 459 James Bryan: Oh, you can clarify if I was wrong, if I misspoke. 460 461 Michael Harvey: This language was put in there to address a concern over legal sufficiency and after 45 minutes of you 462 and I coming to an understanding of what those concerns are, I thought what was crafted was reasonable. I don’t 463 necessarily believe this was added….it wasn’t something that I thought was 100% necessary to add to begin with which is 464 why you and I had 45 minute of discussion on it. I understood you concern and attempted to address it because part of 465 my role with this project is to address concerns over legal sufficiency. 466 467 James Bryan: Ok 468 469 Carrie Fletcher: From what I am seeing, as everyday citizens, I think I feel that we have an obligation to try to protect the 470 everyday citizenry and if that came across then I am not going to apologize but I understand that you see it from a different 471 side than we do and if that’s confrontational, I apologize and I don’t mean to come across….. 472 473 Michael Harvey: I guess what I’m getting offended at is that the perception that I am not interested in protecting the 474 common citizenry or that I am simply adding this language as some form of barrier for common citizens hindering their 475 ability to get approvals of variances, interpretations, or special use permits. Further that somehow I concocted all of this all 476 on my own which is inconsistent with the facts. That is incredibly insulting. 477 478 Carrie Fletcher: Maybe we all get a little over defensive about it. I don’t mean to be offensive but I think in this 479 environment of government everyone gets a little edgy about making sure we’re protected in a way then verbiage is 480 correct. 481 482 Lydia Wegman: So, I’m just going to jump in here and say I think that, I hope we all respect one another and that I feel 483 and I think this is true of the Board that we all very much respect Michael, James and Craig and the work that you do and 484 that we recognize that you are trying to serve all the citizens of Orange County in a fair way recognizing that some of these 485 things are complicated and difficult for individuals to make sense of and you are trying to be as clear as possible so that 486 everyone looks at this code and understands what is required. No one is suggesting, I don’t believe anyone is in this room 487 is suggesting that there was anything other than that motivating this effort. The fact that some of us may be confused or 488 concerned about this language is the way we are reading it but that has nothing to do with what you were trying to do in 489 writing it. I certainly, we all understand that you are trying to help citizens of Orange County move forward with their 490 applications in these SUPs and Variances. 491 492 Michael Harvey: Regardless of the vote that is about to occur, and I am going to make the same comment in any other 493 motions that are made this evening, I like to offer a friendly amendment to the motion to approve. 494 495 Lydia Wegman: Please do. 496 497 Michael Harvey: In our haste to get this done, there are a couple of section references that I neglected to update, and I’ve 498 just discovered. So, with your indulgence, what I would like to point out is that the amendment, the approval would need to 499 include updating section reference in what is Section 2.10.2 Applicant Requirements Subsection B number 4; the 500 narrative outlining the answers to the five required findings detailed within it reads currently Section 2.10.3 that is now 501 actually become Section 2.10.4 with the re-numbering. 502 503 Approved 4/3/19 Next, Section 2.10.5 Additional Criteria for Authorized Variances Special Flood Hazard Areas in addition to the criteria 504 contained within it says Section 2.10.3 that is the same reference that needs to be updated to Section 2.10.4 that is the 505 provision dealing with authorized variances. 506 507 Section 2.10.6 Modifications of the Impervious Surface Ratios in Subsection E reads that such requests may be requested 508 through one of the following provisions; through variance procedures of the Board of Adjustment as described in this 509 subsection. The subsection used to be 2.10.5 it is now re-numbered to 2.10.6. 510 511 Last, required Findings of Fact that is listed in Section 2.10.10 that is now become Section 2.10.4. 512 513 So regardless of whatever motion, whatever happens with this vote, I’d like there to be an acknowledgement and any 514 subsequent motions of those corrections as identified by staff. 515 516 Lydia Wegman: Ok, thank you 517 518 Craig Benedict: That can be incorporated by the person who made the motion and the person who seconded is in 519 agreement that can be amended. 520 521 Hunter Spitzer: I would like to amend my motion to include what Michael said. 522 523 Kim Piracci: I second that amendment. 524 525 VOTE: 4-5 526 Motion Failed 527 528 MOTION by Adam Beeman to strike burden of persuasion out of the UDO and to include the amendment made by Michael 529 Harvey relating to updating section references. Seconded by Randy Marshall. 530 531 Michael Harvey: So, your motion would be to eliminate within Section 2.10.3 the sentence “further the applicant shall have 532 the burden of persuasion on those issues” to eliminate from Section 2.11.3 Burden of Proof to eliminate “further the 533 applicant shall have the burden of persuasion on those issues” and last in Section 5.3.2 Special Use Permits “further the 534 applicant shall have the burden of persuasion on those issues”. 535 536 Adam Beeman: And to include changes as identified by staff updating references in Sections 2.10.2., 2.10.5, and 2.10.6 537 as recommended by staff. 538 539 VOTE: 7-1 540 Motion Passed with Hunter Spitzer abstaining from the vote. 541 542 Staff note: Abstaining from a vote is not an option the County’s advisory board policy allows but where a member has a 543 conflict of interest the member may be excused by majority vote of the advisory board. 544 545 Kim Piracci: Did I understand you to say you didn’t want to put it in either? 546 547 Michael Harvey: No ma’am. 548 549 Lydia Wegman: He was persuaded by his conversation with James is what I understood and it was something that made 550 sense to him. 551 552 AGENDA ITEM 5: ADJOURNMENT 553 The meeting was adjourned by consensus 554 555 556 Lydia N. Wegman, Chair 557