BOA minutes 020810 - Laserfiche WebLink

Browse Search

APPROVED 5/10/2010 OC Board of Adjustment – 2/8/2010 Page 9 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 As you know there was a big argument that what the Board of Adjustment ought to do was refer this back to staff so staff could review its finding. They argued in their application and certain portions of their testimony that this technically constitutes a recreational facility. While they keep asking questions, they never provided any documentation or evidence to prove that, at least from our perspective. The findings are basically that there was no evidence provided. Our abstract provides an argument why it’s not. Testimony from the church say their operational characteristics don’t lend itself being a recreational facility. And the final argument at the conclusion is that the Board of Adjustment can’t make this decision in the first place. The reason is that the applicant has not exhausted her administrative mechanisms to us, as a staff to review. If you look at Articles 21 and 23 specifically, we are the ones that make that determination; you are here to review if we made a mistake or not. They were asking you to tell staff they made a mistake and reexamine it. That is not what your responsibility is. Your responsibility is to interpret staff error the way the ordinance is written. Since there has been no formal complaint or no formal evidence submitted, they can’t make this argument, you can’t decide it is a recreational facility and staff has done its due diligent in accordance with the administration of the ordinance. Section E, Erection of lights – alter accessory: During the hearing, the applicant argued that the erection of the outdoor sports field lights altered the accessory use nature of the ball field and, as a result, the ball field was no longer functioning as an accessory use per staff’s original approval. The Board finds there was insufficient documentation and evidence submitted demonstrating this argument and that the applicant failed to meet her burden of proof. Michael Harvey: That is the script and format. With all due respect to John Roberts, the only sections he technically reviewed were the timeliness and the appeals. He didn’t have an opportunity to review this whole document. Jeffrey Schmitt: Where we can cite specific parts of the ordinance, I think we should do. Michael Harvey: That is a general request we can adhere to without a problem. Jeffrey Schmitt: We should do it all the way through with all the particular cases. We have already talked about page 4, second paragraph, amending that so we don’t look like we are fighting that the planning director made inappropriate statements. Michael Harvey: I understand. Jeffrey Schmitt: The argument went several directions… by the nature of the fact that we addressing these things in a way that the applicant doesn’t… are we falling into a trap and saying too much here? John Roberts: That depends on which judge would hear it. Jeffrey Schmitt: I am kind of gun shy because we had an appeal associated with the sign notification on the case we just continued saying that there was not enough information on the notification for all the surrounding properties. John Roberts: What the judges’ order actually said is the notice did not comply with the ordinance. He made no specific finding, he made that general statement. He really did not say anything that could help you change any notice or direct anyone to where the mistake was made. As far as this case, what the lawyer did was called the shotgun approach. He doesn’t have a clear avenue to take so he makes every argument he could think of in hopes that one of them sticks. If you don’t pick up on something that an appellant level judge will look at it and say that this works. I don’t know that you can say too much if you address the time limits. A reasonable judge should dismiss this on the time limit. You go on into it and address the other factors and say even if the time limit is not a factor, we should have listened to it, we did consider the other points and they failed for the reasons stated. Michael Harvey: Staff did not mess up the notice with Mr. Lonsway. John Roberts: That is correct. Jeffrey Schmitt: I take a lot of pride in making sure that what we have is a complete record so that if it is appealed, there is not something that was overlooked or not included. Since we seem to have a succession of appeals in front of us, I want to make sure we are in agreement from a legal perspective. This is very complete Michael.