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Approved 4/22/2014 OC Board of Adjustment – 11/11/2013 Page 38 of 123 Your reliance on the word recommendation does not come up until 2012 and 2013 in discussions with regard to 1 the appeal. What was the applicant and approving board’s original intent? If you go back to the meeting minutes 2 to conclude the approving board’s interpretive that a condition is optional. The applicant came forward and said, 3 here is the project I want to build. I am proposing a swimming pool, two tennis courts, a recreational building to 4 serve the community. I have proposed these other items. The negotiations that would have taken place at that 5 time. There were some things the applicant got and some things the applicant didn’t get but what was put into 6 the special use permit, I don’t believe there was an applicant or a member of that board who intended that you 7 don’t really have to do these things, we are just putting it in there but if you don’t want to don’t worry about it. I 8 would point out that the site plan and the pictures represented in the site plan carry with them certain 9 requirements in addition to what is written in text. As an example, I would point you to Condition 27 which says 10 that fence shall be erected around the swimming pool but there is no requirement in text for a swimming pool, 11 why is there no requirement in text for a fence around a swimming pool that is not reference. It is because the 12 swimming pool is reflected on the picture. The picture and the words have to go together. You can’t build a 13 fence around a pool that doesn’t exist so you have to look at the picture as well. I would also point out that the 14 approving board and the Board of Commissioners were concerned about just this type of creative 15 reinterpretation. I am going to quote from the meeting minutes of January 6, 1986. Commissioner Marshall 16 expressed concerned about the specificity and conditions and understanding of all parties over time of the 17 conditions imposed. She further enquired about the process that would assure these objectives would be met. 18 She noted that there is not protection in the statement. I would argue that the County’s position is internally 19 inconsistent. The County wants you to say it is really just a recommendation but the county has also said that the 20 SUP is the sole standard. Everything you need to govern this development is in the SUP but it is a 21 recommendation but it can’t be both. It can’t be both because it leaves open the power to the planning 22 department legislatively policy making that is reserved to the board. You ask me to point to a single point to say 23 this plat is invalid. I don’t want you to find this plat is invalid. What I want is the recreation that we deserve as a 24 community to be provided. If I had wanted to quickly say here is a reason to invalidate the plat, I would have 25 pointed you to this. Condition 7 and I realize this is not in the grounds for appeal, as I said, my goal is not to find 26 the plat invalid, although it clearly is. My goal was to try to make sure we got the active recreation we require. 27 Condition 7 says Graham Drive and Hamilton Way shall have a 60 foot right of way with a 41 foot paved cross 28 section. There is Hamilton Way. As you know, the community was changed around. They moved road and did 29 different things. Now, they moved roads and did those things without following the proper procedures for dealing 30 with modifications and minor changes to the site plan. Nevertheless; if you look at what was previously known as 31 Hamilton Way, you will see that it does not have 60 foot right of way and a 41 foot paved cross section. Hamilton 32 Way is now known as West Hadley Avenue and the plat shows 50 foot right of way so you want a single reason 33 the plat is invalid, here it is but that was not my intent in doing this, my intent was to address the fact that we did 34 not get the active recreation we were promised in the SUP. We don’t have the pedestrian bridges we were 35 promised in the SUP. 36 37 David Blankfard: Where is the definition of active and passive? 38 39 Michael Harvey: Thank you for your understanding as to why I couldn’t answer. There is no distinguishing in the 40 PD standards for active/passive. It is broken out as part of the approval for this project. Active recreation as 41 defined in Condition 27 and all the uses that were recommended as satisfying active recreation component which 42 includes swimming pools, tennis courts, bicycle path, a grassy playing and the like. The ordinance doesn’t 43 provide that level of specificity with respect to planned development approvals. 44 45 Larry Wright: I have a question for Mr. Gledhill. We have heard from Mr. Buck about his arguments for using 46 1986 as a basis and then when the plat was submitted in the register of deeds that this is when it legally should 47 be, and he gave all this evidence. Could you respond to that? 48