Agenda - 05-01-2018 8-a - Minutes

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13 David Owens said he has been asked ahead of time to explain how BOAs are staffed 1 and who provides legal assistance to BOAs. He said in most cities/counties, the planning staff 2 provides planning and administrative support; and usually the city or county attorney provides 3 legal advice to the BOA. He said in smaller governments, most attorneys do not attend unless 4 there is a controversial issue; but in larger governments, county attorneys almost always attend. 5 He said some larger jurisdictions hire outside counsel to represent the BOA, especially if the 6 county attorney is an active participant in the hearing on behalf of the staff whose decision is 7 being appealed. He said it would be unethical for the county attorney to advise the BOA and 8 represent the staff at the same time. He said Raleigh and Charlotte tend to have outside 9 counsel for the BOA all of the time. He said another variation that is sometimes used in larger 10 jurisdictions, is when there are multiple members of the city or county attorney staff, and they 11 will split up the duties, with one attorney advising the BOA, and another advising the staff if 12 necessary. 13 Chair Dorosin referred to the scenario where the attorney wears multiple hats, and 14 asked if this can occur in all three of the matters typically heard by BOAs, or is it more often 15 with appeals. 16 David Owens said it happens most often if there is a question of interpretation; where 17 someone has applied for a variance or a SUP. He said in many jurisdictions staff does not take 18 a position, so the attorney is generally working with the BOA, since he is not working with staff. 19 He said the appeals are different because sometimes staff makes a determination without 20 consulting the attorney. He said staff can ask an attorney to interpret laws, as can the BOA. 21 He said when additional counsel is hired, it is typically due to workload, as opposed to conflict of 22 interest. 23 24 PUBLIC COMMENT 25 Laura Streitfeld said she is here with Preserve Rural Orange, and thanked the BOCC for 26 adding this item to the agenda. She said she brought this request to the Board of County 27 Commissioners so as to look at the role of the BOA; access to public records; recording of BOA 28 meetings; and for considering the bona fide farm use as a priority with the legislative 29 delegation. She asked the BOCC to consider if using outside counsel would be appropriate 30 when the County Attorney is directly involved in the decision making process. She said the 31 bona fide farm item is of particular interest, and there are three properties in the County 32 operating event centers, while claiming bona fide farm use. She said there has been 33 legislation, since the BOCC prioritized this item last year, but the way that item #24 is worded 34 really lays out the question of whether the primary use should be agriculture, with marketing 35 and agritourism as secondary uses, in order to claim exemptions from zoning. 36 Commissioner Rich said Professor Owens spoke of outside counsel being necessary 37 due to high caseloads, and asked John Roberts if he knows the number of cases in Orange 38 County on a yearly basis. 39 John Roberts said the BOA meets 6-8 times per year, with usually one or two cases per 40 meeting. He said Orange County does not have nearly the caseload of larger entities. 41 Commissioner Rich clarified that there are 10-12 cases per year. 42 John Roberts said there was a slow down during the recession, but that is about 43 average. 44 Commissioner McKee said he has previously advocated for independent counsel for the 45 BOA, and his concern is not impropriety of staff or counsel, but rather it is one of perception. 46 He said having in house counsel can give the perception that the County Attorney is covering 47 the County’s position. He said he supports outside counsel, and does not think this would be a 48 funding issue due to their being a small number of cases. 49 Commissioner Price asked if a staff attorney is present at all BOA meetings. 50