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HomeMy WebLinkAboutPlanning Board minutes 030619Approved 4/3/19 MEETING MINUTES 1 ORANGE COUNTY PLANNING BOARD 2 MARCH 6, 2019 3 REGULAR MEETING 4 5 MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; Alexander Gregory (Vice-6 Chair), Chapel Hill Township Representative; Adam Beeman, Cedar Grove Township Representative; Carrie Fletcher, 7 Bingham Township Representative; Laura Nicholson, Eno Township Representative; Patricia Roberts, Cheeks 8 Township Representative; Paul Guthrie, At-Large Chapel Hill Township; Randy Marshall, Bingham Township 9 Representative; 10 11 MEMBERS ABSENT: Hunter Spitzer, At-Large; David Blankfard, Hillsborough Township Representative; Buddy Hartley, 12 Little River Township Representative; Kim Piracci, At-Large; 13 14 STAFF PRESENT: Craig Benedict, Planning & Inspections Director; Michael Harvey, Current Planning Supervisor; 15 Tina Love, Administrative Assistant III 16 17 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL 18 Chair Lydia Wegman called the meeting to order. 19 20 AGENDA ITEM 2: INFORMATIONAL ITEMS 21 a. Recognition of Members Rotating Off the Board this Month 22 b. Planning Calendar for March and April 2019 23 24 AGENDA ITEM 3: APPROVAL OF MINUTES 25 February 6, 2019 Regular Meeting 26 February 6, 2019 Ordinance Review Committee Notes 27 28 MOTION by Laura Nicholson to approve the February 6, 2019 Regular Meeting Minutes and the February 6, 2019 29 Ordinance Review Committee Notes. Seconded by Carrie Fletcher. 30 VOTE: Unanimous 31 32 AGENDA ITEM 4: CONSIDERATION OF ADDITIONS TO AGENDA 33 34 AGENDA ITEM 5: PUBLIC CHARGE 35 Chair Lydia Wegman waived the reading of the Public Charge 36 37 AGENDA ITEM 6: CHAIR COMMENTS 38 No Comments 39 40 AGENDA ITEM 7: UNIFIED DEVELOPMENT ORDINANCE (UDO) TEXT AMENDMENTS – REORGANIZATION OF TABLES OF 41 PERMITTED USES – To make a recommendation to the BOCC on proposed amendments to the UDO that would 42 reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin County judicial decision and modify other 43 sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC public hearing on 44 April 2, 2019. 45 46 PRESENTER: Michael Harvey, Current Planning Supervisor 47 48 Michael Harvey directed the board to a packet of replacement pages which he mentioned he would review. He 49 advised the board that all motions recommending approval should be considered consistent with the Ordinance 50 Amendment package as modified by the staff. Mr. Harvey quickly reviewed the history behind the amendments which 51 were also mentioned were included in the abstract. He explained that the revised Table of Permitted Uses is intended 52 to give laypeople a way to easily understand what they are able to do with their property. In August of 2017, during a 53 work session with elected officials, the Planning Director, and the County Attorney, staff was advised to abandon the 54 comprehensive listing of every allowable land use and to instead condense land use categories as much as possible in 55 Approved 4/3/19 creating the new table. Mr. Harvey stated the staff had created a fact sheet outlining the changes, pages, and reasons 56 why amendments were made to aid the Board in their review. 57 58 Mr. Harvey addressed replacement page 25 (A) and explained that the County Attorney’s office had asked staff to 59 include a provision in the Unified Development Ordinance (UDO) for reasonable accommodations for individuals with 60 handicaps. Mr. Harvey explained it was common place to have a provision in the ordinance providing handicapped 61 individuals with opportunities to seek variances from development criteria that could impact their ability to use their 62 property. It had been advised by the County Attorney’s office that Section 2.25, a reasonable accommodation rule, be 63 adopted. In reviewing changes, the County Attorney identified a concern relating to not only the granting of variances 64 for reasonable accommodations but also variances, interpretations and Special Use Permits in general. Although 65 there had been sufficient language within the UDO addressing burden of proof, Mr. Harvey informed the board that the 66 Attorney’s office had requested to add specific language which he referred to on page 25 (A) in the variance section. 67 Mr. Harvey explained that the recommended language stated the applicant shall have the burden of establishing by 68 competent material and substantial evidence in the form of testimony, exhibits, documents, models, plans and other 69 materials that the application meets the requirements for approval of a variance and furthermore, the applicant shall 70 have the burden of persuasion on those issues justifying the approval of a request. 71 72 Lydia Wegman asked Mr. Harvey to clarify the meaning and he responded that the applicant now has the responsibility 73 of persuading the board that they are correct and that the request should be granted. 74 75 Michael Harvey explained that the language was referenced within applicable State statutes and was beginning to 76 appear in other local government ordinances to help applicants understand what their obligations under the variance, 77 interpretation, and special use permit review processes were. He said applicants have to prove their case to the board 78 and hold persuade members the competent material evidence and testimony offered justified the approval of the 79 request. Mr. Harvey advised that the attorney had an interest in adding the language “burden of persuasion” to Section 80 2.11; Section 2.11.13, dealing with interpretations; and in Section 5.3.2. 81 82 Lydia Wegman questioned the meaning of the phrase and asked what the County Attorney’s interpretation of the 83 phrase was as well. Mr. Harvey explained he only had the ability to explain his interpretation of the phrase, reiterate 84 what had been discussed, and commented that the felt the language was clear in that applicants always had the 85 burden to persuade review board’s they should receive approval for their requests. The amendment merely seeks to 86 add the phrase to the UDO. 87 88 Lydia Wegman read from the packet, establishing by competent material and substantial evidence, and stated she felt 89 this covers what is required. She expressed disapproval for the language and found it to be vague and uncommon. 90 91 Craig Benedict stated that applicants only had to explain what they are trying to prove along with items they are 92 submitting. He commented that he didn’t believe an applicant had to go too far in adding an explanation of how the 93 standard is being achieved. 94 95 Michael Harvey reminded the board that variance interpretation and Special Use Permits are carried on in a different 96 format than a typical legislative hearing. He explained that the language is designed to ensure there is proper and 97 adequate dissemination of what is expected from applicants with the applicant bearing the burden of proof and with 98 having to persuade to the board that they are correct thereby justifying approval of the request. 99 100 Randy Marshall remarked that decisions should be made based on agreed upon facts, and he disapproved of 101 language found in the packet. He felt the applicant would not have any recourse for not being able to persuade the 102 board on their case and remarked the language would render verdicts based on opinions. Carrie Fletcher agreed with 103 Mr. Marshall. 104 105 Michael Harvey expressed that he did not desire to lead the board in any one direction and remarked that it was 106 perfectly acceptable for the board to ask the County Attorney to provide something in writing before acting on any 107 Ordinance Amendment they felt uncomfortable with. 108 109 Lydia Wegman found the remark an intelligent suggestion. 110 111 Approved 4/3/19 Carrie Fletcher asked whether the language was leading to applicants having to retain legal guidance. Mr. Harvey 112 informed the board that state law does not mandate an applicant have an attorney nor does the ordinance but stated it 113 to be advisable for applicants entering a quasi-judicial hearing or a hearing requesting a variance observing a fair trial 114 standard to have the advice, counsel, or representation of an attorney. 115 116 Carrie Fletcher remarked that from a layperson’s perspective, she felt the language was pushing civilians to have legal 117 representation. 118 119 Paul Guthrie commented that it could go both ways and stated it would be difficult situation if a person wanted to 120 litigate and had the means to do so. 121 122 Michael Harvey requested for Mr. Guthrie to elaborate on his comment so he could respond adequately and asked 123 whether Mr. Guthrie’s concern was based on appeals or whether it would more difficult to deny projects. Mr. Guthrie 124 responded that he felt there would be a lot of litigation if the County Commissioners don’t state in similar language 125 reason behind an applicant’s denial. 126 127 Michael Harvey reminded the board that both the Board of Adjustments and the County Commissioners is represented 128 by the attorney’s office. He explained the attorney representatives work with their boards to craft decisions consistent 129 with the evidence in the record. Mr. Harvey informed the board that once a public hearing is closed on any Special 130 Use Permit, variance application, or interpretation, the staff can no longer engage with the board and only the County’s 131 appointed legal counsel can engage with them in crafting the appropriate decision based on the Board’s interpretation 132 of the evidence and testimony in the record. 133 134 Paul Guthrie commented that it was quite conceivable for a court on appeal to find issue with the persuasion language. 135 He stated he found he language to be vulnerable to judicial attack. 136 137 Michael Harvey sought clarification on the boards’ concerns, outlining them follows: 138 1. The board does not understand the rational for including the phrase “ the applicant shall have the burden of 139 persuasion on those issues”. 140 2. The board did not understand the plain meaning or impact of the term persuasion in this context; 141 3. The board wondered if there needed to be a standard specifically outlining what the applicant had to do to 142 persuade the Board of Adjusting or the BOCC an application should be approved; 143 4. The BOCC’s review; the implications of appeals during litigation; 144 5. The implications of the phrase on the County’s land use planning program; and 145 6. The boards’ concerns regarding the findings of fact in denying or approving an action. 146 147 Lydia Wegman asked to add in, and why it is necessary. She further explained that even though the planning board 148 comes in earlier, a recommendation is still needed on the Special Use Permits and this becomes difficult for the 149 planning board. 150 151 Paul Guthrie stated he would feel a little bit better if there was another sentence added to indicate that if the boards 152 feel they have not been persuaded that they would meticulously document which items there were not persuaded on. 153 154 Michael Harvey clarified that he thought something of that nature was already in the ordinance. He acknowledged that 155 the language was not sitting well with the board and stated he was well aware that the board did not understand the 156 ramifications of the language and acknowledged that the board was not comfortable without the attorney providing in 157 person or writing some reason as to why it had to be added. Various members on the board agreed with Michael’s 158 statements. Ms. Fletcher remarked that she was not comfortable with the phrase. Ms. Wegman requested clarification 159 other than other jurisdictions have included this language. 160 161 Paul Guthrie question how burden is measured in litigation. Mr. Harvey acknowledged that this was another area of 162 concern for the board. 163 164 Adam Beeman commented that if all required items were checked off and an applicant had sound evidence, that the 165 boards could still deny their request if they decided they didn’t like the project. He stated there needs to be a goal to 166 Approved 4/3/19 reach for and explained that an applicant should be able to reach for XYZ to get a variance. It should not be based on 167 the ability to convince someone to pass the applicant’s problem. 168 169 Randy Marshall added the applicant needs to understand what the boards were not persuaded on to give them a basis 170 for appeal. Adam Beeman stated that he understood Randy Marshall’s comment. 171 172 Michael Harvey reminded the board that every decision by either the County Commissioners or the Board of 173 Adjustment on Special Use Permits, variances, or appeals are automatically appealable within 30 days to the Orange 174 County Superior Court. 175 176 Randy Marshall expressed his desire to have the boards give reason for not being persuaded on an applicant’s case. 177 He stated there should be a responsibility on the basis of the board members who don’t agree to give a reason why. 178 179 Adam Beeman agreed. He expressed that this could pose an undue burden on the average homeowner. He 180 remarked that it would be a burden on an applicant to have to take the case to the Supreme Court of the County and 181 appeal because it didn’t pass. 182 183 Alexander Gregory stated he was okay as it was originally written but expressed that there was some confusion with 184 the language upon hearing the concerns of the other board members. He explained that when he originally read the 185 language he understood it to mean that a person could have all their pieces together but that would not mean someone 186 on the board would agree with that person, and so they would have to take it a step further to explain and to try to 187 convince somebody who would be voting on it. 188 189 Adam Beeman questioned what the reason would be for denying an applicant. Alexander Gregory stated that 190 someone could have their own personal reasons for denying the applicant. He again stated that he understood it to 191 mean that they should be prepared even if they have everything in order. 192 193 Michael Harvey resumed his explanation of the amendments. He explained that 25 (B-F), articulated in the table, is a 194 renumbering of sections to make them now compliant with the flow. The next change on page 25 (G) is the same 195 burden of proof language in interpretations. He then moved to Page 29 and explained it was included for consistency. 196 He explained that he made a change on page 30 in an attempt to keep the flow of pages correct. Page 29 updates a 197 reference to the provision of the UDO. He explained as pages are added and deleted, citations change so instead of 198 5.1.4, it’s now 5.1.3. He stated that the language on Page 30 has been there since the beginning, but he had shown it 199 as existing text, meaning it had not been highlighted in any way shape or form. It is new text and has to be identified 200 as new text, that’s the change and that’s the reason for footnotes. The note will also appear in the master table 201 provided to the board. 202 203 Michael Harvey mentioned that there were other changes to be discussed and continued to Page 56, under recreation, 204 Land Use, camp retreat. He explained that because of changes having to be made to the Assembly Land Use, retreat 205 centers would be split from recreation into assembly. Mr. Harvey explained that retreat had to come out of recreation 206 because of the character and the scope of the use and guided the board to this on page 56. He further explained that 207 they were also seeing the deletion of sweepstakes, cafe and parlor and stated that state law prohibits them. The 208 attorney has decided that if it’s prohibited by state law, to let state law tell people it’s prohibited and illegal. When and if 209 state law is ever changes this, an ordinance amendment will have to be done, but there will be a legal basis for 210 establishing a regulatory standard for that land use at that time. He explained that theaters were also being moved as 211 it is considered an assembly use. He explained that the board would also notice a renumbering as pages are deleted 212 or moved around. 213 Craig Benedict questioned what a camp was by itself without retreat center. Mr. Harvey responded that a camp is 214 basically like a boy scout or summer camp. Mr. Benedict sought reassurance that it was not an assembly. Mr. Harvey 215 replied, no, and remarked it was a recreation activity. 216 217 Randy Marshall inquired if it was similar to Camp New Hope. Mr. Harvey replied that Camp New Hope would be 218 considered a retreat center. Mr. Harvey explained that Camp New Hope was established before the requirement for a 219 Special Use Permit. Per the ordinance, Mr. Harvey said, they have what is deemed to be a de facto Special Use 220 Permit. He explained that the camp is considered to be conforming and further explained that changes don’t impact 221 anybody who had a Class B Special Use Permit for a retreat center in the county. He stated it does not undermine any 222 Approved 4/3/19 of the existing regulatory requirements that would grant the ability for someone to be considered conforming that did a 223 permit in the 60s or 70s. 224 225 Randy Marshall asked if conforming meant they would they have to change to be the New Hope Retreat Center. Mr. 226 Harvey replied, no. 227 228 Michael Harvey continued to the next change and guided the board to page 57. He spoke on the references to 229 dormitories, fraternities, and sororities and explained that those reference were being deleted because they are either 230 a rooming house or a multi-family land use. He stated they were already covered under the code so there would be no 231 reason to repeat it. Additionally, he explained that dormitories, fraternities, and sororities are also connected to 232 university operations which are required to get Special Use Permits under the code. He stated that there are none in 233 Orange County, so it was being deleted. Mr. Harvey informed that board that he had met with a few commissioners 234 the in the previous week and brought the concerns of airports to their attention. He mentioned that the commissioners 235 liked the notion of deleting the airports from the residential districts but did not find it appropriate to move them into an 236 industrial as recommended. He stated they liked the idea of doing further study to find better ways to handle airports 237 than what’s currently in the code. He brought an additional concern the board and asked them to consider what to do 238 with someone who has a heliport or an airfield as an accessary use on their property. 239 240 Craig Benedict commented that these airports are allowed as accessory use to residential if it is for a private party. 241 242 Michael Harvey remarked, yes, and stated that the commissioners he had met with addressed that there needs to be 243 some thought about adopting some minimal standards for those types of activities. 244 245 Michael Harvey moved to page 61 and reminded the board that this was a topic they had touched on. He explained 246 that there used to be two categories wholesale trade durable and wholesale trade nondurable goods which were both 247 permitted in the same zoning districts and added that they are now being combined into one group, wholesale trade. 248 249 Michael Harvey explained the changes to assembly uses and stated that the recommendation is to eliminate the 250 overall category and splitting it out per use. He defined assembly use as a gathering of people for a purpose and then 251 explained the differences between various assemblies, such as places of worship, clubs, lodges, community centers, 252 theaters and retreat centers. Mr. Harvey informed the board that the changes were made to clarify the distinction 253 between the various types of assemblies. He stated that the changes addressed some of the loop hole issues, but it 254 was decided that they needed to rid of the over-arching category and splitting it per use. He addressed the changes to 255 special events as defined in the ordinance and asked the board to note the definition on the table that had been 256 provided. Mr. Harvey pointed out a regulatory standard which had been added into the definition of a special event 257 and informed everyone it had been moved to the appropriate section in the UDO. 258 259 Randy Marshall voiced his concern that anyone could say they were gathering to worship. Mr. Harvey asked him to 260 remember that determinations would be performed on a case-by-case basis, and he then reiterated the definition of a 261 place of worship. He explained that if a person is proposing a land use, the first task would be to determine whether or 262 not that person meets the requirements for what constitutes a place of worship. 263 264 Randy Marshall stated that he could argue that the categories that were just listed are exclusionary as opposed to 265 inclusive. He voiced that he felt this was a loophole being left open. 266 267 Michael Harvey asserted that it would be the totality of all the definitions, standards and framework that would establish 268 the County with the authority to say they are a place of worship and reiterated it would have to be done on a case-by-269 case basis. 270 271 Randy Marshall asked whether the Rams club would be considered a place of worship. Mr. Harvey stated that for 272 some people, yes, but it would be considered a club with respect to the construction of the UDO. Randy stated that 273 that was his pointed and commented that it was in the mind of the beholder. Mr. Harvey replied that he understood but 274 stated that it would be a club based on the current definition. 275 276 Alexander Gregory remarked that he thought there to enough logic there in the case-by- case basis. 277 278 Approved 4/3/19 Michael Harvey commented that Randy had a valid point but stated there would be larger issues involved if everything 279 remained in one central category. He explained it would be difficult to handle and try to make exclusions instead of just 280 splitting it out. 281 282 Craig Benedict commented that he felt as though there was something missing in regard to someone wanting to put an 283 assembly facility for retreat uses in a commercial area. He stated that this type of situation would have previously been 284 captured by the general category. 285 286 Michael Harvey remarked that if the board wanted to add retreat center as a permitted use in any commercial district, 287 they could do so and then staff could incorporate. Mr. Harvey recommended that since the board was already going to 288 ask the County Attorney for direction prior to voting, that they might want to add for the staff to consider allowing retreat 289 centers in commercial zoning districts as well. Mr. Benedict mentioned that they sort of had that and stated he couldn’t 290 think of anything else to call it in the table. 291 292 Michael Harvey spoke on special events and mentioned that it was split out. He explained there was now a distinction 293 between rural special events and special events and stated that rural special events by definition have to happen on a 294 farm. He continued to page 69 (A) through 73 and stated there were only formatting changes. He then reminded 295 everyone of the provision he spoke of earlier regarding the burden of persuasion in section 5.3.2. He then moved to 296 page 74 which eliminates all the regulatory standards for governing how we approve dorms, fraternity, and sororities. 297 He stated 74 (A) had changes in formatting. He briefly spoke of the change performed on page 79 dealing with Class 298 2 kennels and explained any changes that occurred. 299 300 Michael Harvey then guided the board to pages 79 through 83 regarding short term rentals. He said they had lumped 301 everything into term short-term rentals and explained that they had eliminated all the discretionary standards of 302 evaluation per the attorney’s requirements. Additionally, Mr. Harvey mentioned they had eliminated some of the 303 language listed for short term rental large referencing that it had to demonstrate a compliance with parking which was 304 already mandated by the ordinance. 305 306 Lydia Wegman, asked Mr. Harvey if he meant for rentals. Mr. Harvey replied, yes and explained that a site plan would 307 have to be submitted and it would have to demonstrate compliance with the code. 308 309 Michael Harvey stated there has been questions raised about how this impacts Airbnb. Mr. Harvey stated that the 310 current ordinance does not allow for nonhost occupied structures in the residential zoning districts. He stated, if you 311 want to go through a Special Use Permit, you can technically have a non-host occupied structure, but you can’t have 312 an Airbnb. Furthermore, if you don’t have a host then it’s not a short-term rental and therefore is not permitted. In 313 fact, Mr. Harvey stated, it would be a nonhost occupied short-term rental which is not permitted in residential districts 314 and that is consistent with the current code. This does not impact the rental of a house for use as a single-family 315 residence. 316 317 Randy Marshall, does this knock down the arboretums desire to use that house as an Airbnb 318 319 Michael Harvey conveyed that there would still be existing impacts on the Keith Arboretum from the current code. Mr. 320 Harvey said that it didn’t add any heightened level of complexity to their ability to do that and questioned whether or not 321 the lease allows it to happen in the first place. 322 323 Randy Marshall sought clarification on whether they were proposing that would be an Airbnb without a host. 324 325 Michael Harvey confirmed and stated that this knocks that down but commented that he would argue it already 326 knocked down under the current code. 327 328 Patricia Roberts questioned the time difference between renting a single-family home versus being an Airbnb. Mr. 329 Harvey responded that both short term rental small and large talk about rental by the week. He stated they were not 330 likely to get into the policing business to find out how long occupants have rented if onsite and further stated the 331 problem usually arises when the occupant is not home. 332 333 Paul Guthrie asked about faculty renting out when they go on a sabbatical somewhere. 334 Approved 4/3/19 335 Michael Harvey responded this would be the rental of a house as a single-family residence. He then mentioned the 336 facts table provided in the packet. He commented that the goal was not to prevent the rental of housing for use as 337 housing. The goal would be to prevent the conversion of a residence into a mini hotel in an established neighborhood. 338 339 Michael Harvey continued on the amendments and guided the board to pages 83, 84, 99 and explained those to be 340 just formatting updates. He stated page 100 to be the move of retreat center standards to eliminating retreat as a 341 camp and explained that page 104 deals with theater as it gets moved to assembly. Mr. Harvey stated that page 145 342 describes the assembly uses; the general use standard, setback standards, the size limitations. Then, he moved to 343 page 153 to touch on the retreat center standards in terms of submittal and SUP requirements and explained that the 344 new section 5.18.4. concerning rural special events was not changed. The term theater had now been added, since it 345 was moved from recreation. 346 347 Lydia Wegman asked Mr. Harvey if retreat center remained the same. Mr. Harvey replied, yes, but stated with one 348 notable exception; the deletion of camp sites. In the standards of evaluation for both, he stated there was a standard 349 of evaluation involving a site plan requirement which is why it was moved to submittal requirements for both camp and 350 retreat. Mr. Harvey also conveyed that the subdivision provisions for special use permits and telecommunications 351 regulations would probably be gutted as they are redundant. 352 353 Lydia Wegman sought clarification on why Mr. Harvey thought they were superfluous and asked if they were covered 354 elsewhere. Mr. Harvey confirmed they were in three different sections. 355 356 Michael Harvey guided the board to page 174 and informed them that he definition of assembly use had been altered. 357 He explained that since assembly has been split out and retreat center has been moved to assembly land uses, it 358 would no longer be needed. 359 360 Craig Benedict questioned where wedding fits into assembly uses. Mr. Harvey replied, retreat center. 361 362 Craig Benedict commented that if weddings are retreat centers, then they needed to be in more commercial area 363 locations so people can have a wedding in some sort of hall. Michael Harvey remarked that the board could make 364 that recommendation. He responded to Mr. Benedict and stated he had never heard this comment from him before. 365 Craig replied that it had been covered by the whole assembly uses except as listed below and stated it was permitted 366 in multiple areas. 367 368 Lydia Wegman questioned whether there was anything specific about wedding venues anymore. Michael Harvey, 369 replied, no, and said it was all covered under the retreat center concept. 370 371 Michael Harvey said that club or lodge, was amended as relayed earlier, as was community center. He moved to page 372 182 involving family care facilities and read the recommended definition. He stated that upon further consideration, the 373 County Attorney decided the language should say as defined as under state statute. 374 375 Lydia Wegman questioned if that was the definition. Mr. Harvey replied, yes, and informed them that the new 376 definition would now read as a facility which meets the definition of a family care home and North Carolina General 377 Statute 168. Ms. Wegman inquired if state law already says this, whereas Mr. Harvey agreed. 378 379 Michael Harvey informed the board that they had already seen the definitions for group care and group facility/group 380 home. He continued on to page 197 and 198 which he pointed out was the area where the place of worship definition 381 that had been added. On page 199, Mr. Harvey explained a typo in the term recreation vehicle. He then spoke on the 382 modifications listed on page 202 involving retreat centers and then moved to the rooming house definition previously 383 discussed. On page 204, Mr. Harvey mentioned the modifications to the reference of the North Carolina Department of 384 Public Instruction formerly the North Carolina Department of Education. He then proceeded to the short term rental 385 and explained his reasoning for deleting the umbrella definition he had previous created. Mr. Harvey then guided the 386 board to the topic of vet clinic on page 210. 387 388 Patricia Roberts asked why it would matter if the dog or cat stayed overnight. Michael Harvey answered that it would 389 depend on where it is permitted in terms of what could be the ancillary impacts to adjacent property owners. 390 Approved 4/3/19 391 Patricia Roberts commented that she couldn’t imagine having a veterinary clinic that didn’t have overnight 392 accommodations in situations where surgery didn’t go well. 393 394 Lydia Wegman read the definition of a retreat center and asked Mr. Harvey to clarify that was the entire definition. Mr. 395 Harvey remarked, yes. 396 397 Lydia Wegman asked for where information on assembly land use was located. Mr. Harvey explained that assembly 398 land use would be defined in the code and proceeded to read the definition. He stated the definition was modified to 399 eliminate references to wedding venues and referenced the packet. 400 401 Randy Marshall asked if wedding venues would actually appear in the ordinance. Mr. Harvey replied, no, and specified 402 that the reason was because it was not just wedding venues. While some in the community want wedding venues 403 specifically listed so we can regulate them, the impact of a wedding verses a graduation party verses a bat mitzvah is 404 the same. They are all described as a gathering of people for “X” purpose. He explained that instead of regulating 405 wedding facilities, they would regulate the totality of the activity which is the reason for the change in the retreat center 406 definition. 407 408 Laura Nicholson asked Mr. Harvey if it would be possible to separate all the other changes. Mr. Harvey replied that he 409 would not be comfortable advising the board to recommend moving this forward with the items eliminated as the 410 County Attorney specifically asked for them to be included. Mr. Harvey furthermore reiterated that based on the 411 boards’ comments, he understood that the board would not be interested in approving it without further explanation. 412 He then asked the board if they we’re in agreement whereby there was an agreed consensus by several board 413 members. 414 415 Lydia Wegman questioned whether the board should postpone voting until next month or if it was something that could 416 be addressed with the County Attorney and then to the board through mail. Mr. Harvey conveyed an urgency in 417 completing the project, but stated he was sensing the board to be unhappy and unlikely to act without further 418 explanation. 419 420 Lydia Wegman replied that that is certainly how she felt about the burden of persuasion language. 421 422 Carrie Fletcher I would have an issue finalizing this unless I’m clear on that particular item. I think that’s a strong 423 enough decision maker that I would like clarification on that. 424 425 Michael Harvey remarked the litany of concerns would be recorded in the minutes. 426 427 Carrie Fletcher asked if conversations and approval could be done by email so there was no time lost. Mr. Harvey 428 stated he didn’t see a way to get an approval via email. Mr. Harvey voiced a concern that everyone might not come to 429 a consensus causing there to be a holdup. 430 431 Carrie Fletcher asked the members of the board if everyone would be okay with it if the sentence was struck. Ms. 432 Wegman replied that she would want to know why the attorney was comfortable striking it having felt strongly about 433 putting it in. 434 435 Michael Harvey reminded the board that they could recommend approval as amended and then further amend that the 436 term burden of persuasion get removed. He mentioned to them that he thinks the County Attorney may show up that 437 public hearing and say the language has to be added back in. 438 439 Carrie Fletcher questioned whether the burden of persuasion language could be made clearer. She even suggested 440 possibly listing it out. 441 442 Michael Harvey replied that he didn’t disagree but pointed out that it could possibly be referred right back to them to 443 modify language. Mr. Harvey addressed their unease and reiterated no one was happy with the burden of persuasion 444 based on it’s not understood, they don’t like it, they don’t feel it’s been adequately explained, and they want the 445 attorney to give more understanding as to why it’s needed. 446 Approved 4/3/19 447 Alexander Gregory commented that the likes the point that it makes. 448 449 Randy Marshall asked whether there was pressure to complete this. Mr. Harvey stated, yes. 450 451 Alexander Gregory stated his faith in the attorney’s judgement but questioned if they attorney would make the final call 452 or if it would make a full circle. 453 454 Michael Harvey provided the option that they could technically adjourn the meeting to a day time certain reconvene in 455 two weeks in order to get the attorney’s comments. 456 457 Adam Beeman asked whether they would have a chance to discuss their concerns with the attorney or just receive 458 comments. Mr. Beeman voiced his desire to have a discussion with the County Attorney. Michael Harvey replied that 459 they could request the attorney be present and reiterated the option of reconvening to March 20th. 460 461 Paul Guthrie spoke on burden and stated it could only be valued by the vote of the commissioners. Mr. Harvey replied 462 that Mr. Guthrie was correct. Mr. Guthrie described it as a self-serving definition. Mr. Harvey stated it certainly would 463 be up to the Board of Adjustment members and Board of County Commissioners to determine if that burden had been 464 met. 465 466 Paul Guthrie question why it was not said that way instead of the other way around. Mr. Harvey, acknowledged that it 467 was a good question but stated he did not have an answer. 468 469 Michael Harvey asked if everyone would be available in two weeks and asked for confirmation that he was hearing that 470 it was the board’s interest to adjourn the meeting to March 20th at 7:00 p.m. in order to ask the attorney to be present 471 to answer questions or if absent, to provide sufficient documentation articulating why burden of persuasion is 472 necessary. 473 474 Lydia Wegman clarified that they not only wanted a statement, but an addition to the ordinance clarifying the meaning 475 and why he felt compelled to add it. 476 477 Michael Harvey asked whether he was also hearing that the board is interested in modifying the UDO to expand retreat 478 center activities in commercial districts. 479 480 Adam Beeman remarked he would motion that. 481 482 Lydia Wegman stated she would agree to that. 483 484 Carrie Fletcher stated she felt more strongly about the first than the second. 485 486 Michael Harvey questioned whether that was the interest of the board members. 487 488 Lydia Wegman stated she would support that. 489 490 Alexander Gregory stated he agreed. 491 492 Michael Harvey asked it there was a motion. 493 494 Adam Beeman stated that he motioned that they be allowed in the commercial districts. 495 496 Michael Harvey gathered clarification on the motion from the group and noted that the board’s desire to: 497 498 1) Adjourn till March 20th at 7:00 p.m. meeting in the Planning Conference Room room 204 to have the County 499 Attorney present and discuss why and potential changes to address the concern of what the term burden of 500 persuasion means. 501 502 Approved 4/3/19 2) To have staff include additional opportunities for retreat centers in commercial districts. 503 504 Lydia Wegman stated she would second. 505 506 Carrie Fletcher asked if that would finalize everything Mr. Harvey needed. Mr. Harvey agreed, but then responded that 507 it would depend on the board’s comfort with the attorney’s response. 508 509 Lydia Wegman commented that they trusted Mr. Harvey would express to the attorney their discomfort with the 510 language as it is. 511 512 Michael Harvey said he understood both the attorney’s rationale and the boards’ concerns. He stated he felt he had 513 provided the best explanation he could offer but understands that they would like to have a discussion with the person 514 recommending the language. 515 516 Lydia Wegman expressed that if the attorney feels persuaded that the language is necessary that he gives some 517 further thought to expressing it more clearly so that the standard is clearer to applicants, the BOCC, and Board of 518 Adjustment 519 520 Carrie Fletcher commented that that is the reason we have a citizen board, so citizens are represented, not just 521 attorneys. 522 523 Alexander Gregory asked if either Mr. Harvey or Mr. Benedict foresaw any issues that could arise with the burden of 524 proof or if they had heard of any issues arising from the other jurisdictions currently using the language. Mr. Harvey 525 replied, no, and reassured them that if he couldn’t dissuade their concerns he would provide them with an opportunity 526 to have their concerns addressed. 527 528 Craig Benedict provided an example for the use of burden of persuasion to the board. 529 530 Adam Beeman expressed his disapproval with the language and found it to be unfair. He expressed that the situation 531 should be binary and not at the whim of person listening to the story, nor should a person have to pay more money to 532 fight their cause when they may not be financially able to do so. 533 534 Lydia Wegman asked Mr. Harvey if there needed to be a motion and a vote. 535 536 MOTION by Adam Beeman to adjourn this meeting until the attorney can come back and talk to us on March 20th at 537 7:00 p.m. in this room on the 2nd floor of the Planning Department and to add the wedding retreat status to the 538 commercial districts. 539 540 Lydia Wegman requested to add that the board would like an explanation from the attorney related to the burden of 541 persuasion language and we would prefer to see additional language explaining what is meant if he is persuaded that 542 that language is necessary. Seconded by Randy Marshall. 543 VOTE: UNANIMOUS 544 545 Tina Love asked Mr. Beeman if he accepted the addition, whereas Mr. Beeman accepted. 546 547 AGENDA ITEM 8: ADJOURNMENT 548 The meeting was adjourned by consensus. 549 550 551 552 Lydia N. Wegman, Chair 553