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

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54 do not align. Durham was one of several jurisdictions which have adapted by utilizing a "reasonable accommodation"provision. Staff adopted this approach as a way to reconcile Federal and State laws, as well as the realignment of the ToPU. Utilizing an approach adopted by other jurisdictions saves staff from reinventing the wheel. It is often the case that jurisdictions will copy regulatory language from one another. This is particularly the case in complex matters which have been highly litigated or are anticipated to be litigated. Ordinances are generally unique and require individual review by the courts, but may avoid that where they are identical to previously litigated ordinances. Durham's "reasonable accommodation"provision includes a section on burdens of proof. The closer Durham's provision is replicated in its entirety and verbatim, the more likely that jurisdictions may rely upon any future court review. But Durham's description of`burden of proof' doesn't exactly match the OC UDO. An ordinance must be read in its whole, and thus simply inserting a provision(such as Durham's reasonable accommodations) may have unintended consequences. For instance, the description of burden of proof is dissimilar to other sections. Whereas the Durham language is explicit in naming it "burden of proof',the OC UDO instead describes it without label (i.e. states that the applicant must produce the evidence); and Durham delineates burden of presenting evidence from the burden of persuasion, while the OC UDO is silent. Words have meaning and discrepancies may have impact. At first blush these discrepancies may appear as a `distinction without a difference.' However, it is important to recognize that the law has canons of construction which may give merit to alternative interpretations. One such canon is to avoid rendering words or phrases as superfluous or mere surplusage. In other words, every word matters and was not adopted by accident. Another principle is that were language is used in one section but omitted in another, it is to be generally assumed that this was done intentionally and purposefully for disparate inclusion or exclusion. Staff made choices; mostly verbatim adoption and some change to existing provisions. Staff balanced several interests while drafting the present language. A strictly verbatim inclusion from Durham could alter the intended meaning of existing provisions while a deviation would reduce the potential reliance should it be tested in court. Staff chose a sort of middle ground. Durham's notice provision is not included while existing sections were modified to align more so (but not exactly) with Durham's burden of proof. Pb clarification v7