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APPROVED 5/10/2010 OC Board of Adjustment – 2/8/2010 Page 7 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 John Roberts: You do not have to find that is the truth of the matter. You judge her veracity in her affidavit just like you judge any witnesses that come before you. If you do not find that to be the truth, you do not need to put it in. Mark Micol: Do we have a statement from Craig? Michael Harvey: There is no statement from Craig entered into the record. You have a statement from me saying that 30 days is the appeal time. The affidavit says that I can take as long as I want which denies the church due process. Tom Brown: As a board, I wouldn’t be willing to state that as fact. Michael Harvey: Would the board be willing to say that with respect to this matter, the board accepts the fact that this affidavit says what it says but the ordinance and status are clear there is a 30 day timeline allowing an appeal to be filed. Would you be more comfortable if I said that instead? Jeffrey Schmitt: The comments of the Board reflect the understanding that Section number whatever, requires a 30 day notification to be made and notwithstanding any comments from anyone else for her affidavit. I guess before we go further, it would seem to me that if this does go to Superior Court, that the judge will be looking for dates and the actual documentation of those dates provided and on record. Either in the record or somewhere. That is what this revolves around. Michael Harvey: Yes. Jeffrey Schmitt: John, this doesn’t revolve around the ability of the church, under the guise of the extension of community building and fellowship to host and participate in this activity. This is not in contention whatsoever? John Roberts: That was part of his argument in his brief submitting as part of the record that the ball field is not an accessory use to the church. He argued that, there are only a couple of things in case law that have been found by courts to be accessory uses, one of those could be providing a place to eat but just because a judge has not found that previously does not mean it is not an acceptable accessory use it just means that it hasn’t gone to court yet and the question has not been asked yet but that is one of his contentions. It was a minor contention at the end but it was something he was arguing. Tom Brown: Did we ever refute that anywhere? Michael Harvey: There are a couple of different places where staff refutes that line of logic. We can make sure the language is in there. For example, on page 3, A.iii, statements made by the applicant during the hearing indicating that she did not mind the ball field as much as she minded the use of the outdoor sports fields lights associated with nighttime games. Further the applicant indicated during cross-examination that if the lights were removed she would not mind games being played on the ball field. She made that statement. Our position is that the appeal isn’t written in a manner that says we think the ball field should go. We added that at the end but it is not timely for various reasons and contradictory testimony and that is the argument we suggest you make. James Carter: I am looking at these in terms of whether she wants the field but not lights. Michael Harvey: If you recall from the minutes at the conclusion of the meeting, in an exchange between Mr. Schmitt, John Roberts and the Shields’ attorney, essentially on page 46, line 38 reads, Jeff Schmitt ask the question, “Before we ask questions, I would like to get some counsel provided. I would like to get some counsel on what it is that we are to adjudicate here?” John Roberts’s response was “Between the evidence presented and the appellate brief, there are a number of issues, some of which I don’t think are relevant and/or appropriate for your consideration. Some of the considerations will be determined on dates and some of those dates have been presented into evidence. Constitutionality, the ordinances I don’t think it is appropriate for your consideration.” Mr. Ferguson’s response was, “That is all for presentation, we don’t wish to be heard on that.” John Roberts said, “That was a mention of nuisance, noise.” He is not arguing that these are violations of these regulations just bringing up points. I am going to draw your attention to page 047, line 10, Mr. Ferguson, “I am not arguing that the lights are out of compliance with the lighting