Agenda - 5-a - Unified Development Ordinance (UDO) Table of Permitted Uses

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53 Office of the County ORANGE COUNTY Attorney P.O. BOX 8181 ibr na,oran ecg ountync. og_v 200 S. CAMERON STREET 172 (919) 245-2319 HILLSBOROUGH, NC 27278 ��rth aEaC°��r To: Planning Board Michael Harvey, Current Planning Supervisor Craig Benedict, Planning &Inspections Director From: James Bryan, Staff Attorney Date: March 20, 2019 Re: Staff Summary of Planning Board Concerns Over"Burden of Persuasion" This memorandum is offered to provide the Planning Board with more detail related to "burden of persuasion" and its inclusion in the latest draft of text amendments to the UDO's Table of Permitted Uses. In order to give a comprehensive and structured response,this memo will first give an overview and then follow with the specific questions as summarized by staff. The UDO must be clear and unambiguous in order to regulate a use. In 2015 the NC Supreme Court reaffirmed that zoning was a derogation of property rights and thus requiring local governments to be clear regarding prohibitions and that any uncertainty would be resolved against the prohibition. Many jurisdictions had utilized a Table of Permitted Uses which was either malleable (uses were to be included in the nearest similar category) or restrictive (non-listed uses were prohibited), both of which risked land use categories to be allowed by right under this principle despite their intention to be regulated. Current UDO is drafted with old mindset of describing what is allowed, rather than what is prohibited. Staff s amendments were aimed at clarifying the land use categories and their definitions. As an example,the current definition of a"Large Day Care Home" includes: "...provides day care for more than five but fewer than 16 children, within a residence." A property with a land use that provides day care for 17 or more children does not meet this definition. Being outside of an existing land use category's definition, such a use would be prohibited under a restrictive perspective. However,when viewed in the perspective of requiring clear and certain regulations,that same use could be argued as permitted by right as an unregulated use. Group homes have always been a difficult set of uses to adequately describe and regulate. A particularly cumbersome grouping of land use categories dealt with those uses that may be generally described as `group homes.' These uses have a long history of regulation and associated litigation. The statutory landscape made it particularly difficult even without consideration of whether of ToPU was malleable, restrictive or clear. Federal law had the Americans with Disabilities Act and Fair Housing Act,while State law had its own Fair Housing Act and particular statutes for"family care homes." The terminology and standards overlap but Pb clarification v7