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2 Paul Guthrie: So I guess my only comment is that I think that this is an even more difficult task than just going through this 55 stupendous process to get through the tables that make the existing Planning function. 56 57 Michael Harvey: Well I’ll do you one better Paul. I think that one a certain level you don’t have to worry about the Federal or 58 even the State preemption because it exists. You can sit there and say, “We’re not going to allow nuclear power plants”, which 59 means that you as a member of a utility company looking to break into an area as a profit based initiative have no opportunity 60 to develop that particular land use. Whereas Federal and State governments through their utility commission authority can 61 say, “No. Duke or Piedmont or whoever, we’re giving you a license to develop this type of facility and Orange County or 62 whoever, you’re preempted from stopping us from moving forward”. Now, it still has to go through their various processes and 63 there are various processes they have to go through where you can still have a denial of a permit. Our authority comes from 64 153(a)340. And the state giveth and the state can taketh away. And the asphalt plant, I know, is a bad example but it’s 65 designed to kind of spell out that the State has defined that we can do X, Y, and Z. But they have the right under the 66 provisions of the State Law to tweak how we get to do X, Y, and Z. Our goal here is to ensure that we are not creating a 67 loophole where by somebody gets to do something because we either weren’t as detailed oriented as needed be to ensure 68 compliance with Byrd V. Franklin. Or that we didn’t think of a particular land use category and said, “Oh, well we think it’s this”. 69 And then it becomes and interpretive nightmare and a potential court proceeding where we’re told, “No, you didn’t list it so by 70 definition it’s allowed”. 71 72 Tony Blake: What does this decision actually say? 73 74 Michael Harvey: Well the decision actually says… 75 76 Tony Blake: Because I had two questions regarding that inside this… 77 78 Michael Harvey: The Court stated as I’ve pulled out of the abstract, the law factors uninhibited free use of private property over 79 government restrictions. So you have to spell out what is and is not allowed so that you know. 80 81 Tony Blake: So if it’s not stated it’s permitted? 82 83 Craig Benedict: Right. 84 85 Michael Harvey: If it’s not stated it’s permitted or if you don’t define it to a point where you say, for example sexual oriented 86 businesses because this is a conversation we’re currently having with the Attorney’s Office. We’ve defined sexually oriented 87 businesses as including a plethora of activity. So the question that James and I are wrestling with is do we need to list out 88 these 50 uses we have in definitions or is it reasonable to have them in definitions? Right now he’s edging his bets and saying 89 I think the definitions will work because we’ve defined this is what they are, oh and by the way here are the 50 individual 90 definitions for each use. 91 92 Tony Blake: So then let me just follow my train of thought here because when I read that and how I interpreted it and that was 93 what I thought… I came up with two things reading this. For one thing, banks and financial institutions are listed in two 94 different categories. One in commercial and one in financial, I think. Why? Is one an ATM and the other a full-blown walk in 95 bank bridge or? That’s the kind of use that I’m… The way somebody using something has a big bearing on this. Above ground 96 water tanks is another example where if you’re using them for the purposes of fire suppression to prime a sprinkler system or 97 something like that it’s different than something there to wash out a garbage truck. What I’m saying is the intent of the use is 98 more open in this sort of a… 99 100 Michael Harvey: Well I would actually do you one better. A water tank in this context, when you’re looking at it from this point 101 of view is typically looked at as a primary or principal use. Which doesn’t mean that your business, already listed and 102 developed, can’t have a water tank as an accessory. Either to prime a required sprinkler or do other things you need to do. So 103 part of the thing you have to keep in mind is we’re looking at defining what allowed uses are per district. There may be 104 ancillary uses that every use is allowed to develop as a customary accessory use that may not necessarily have to be listed 105 this table either. The other example I’ll give you is: Single family residence you want to build a playground, a swing set for your 106 children. A swing set’s not going to be listed in here as an example. We don’t have to get to that granular level. But it is 107 covered under the vernacular of accessory land uses, which and again I’m taking your one example to a little bit of an extreme 108 9