Orange County NC Website
Browse       Search
I <br /> 55 <br /> j <br /> 1. The Board does not understand what `persuasion' means in this context and is <br /> worried it is establishing an undue burden on applicants. Further the Board is <br /> concerned over the `burden of persuasion' for an individual who does not have <br /> the `means' to hire `a better attorney'; <br /> in their ordinary, everyday meanings. An ordinance may <br /> Words are to be understoody, y y g Y <br /> define a term to give it a specific meaning. <br /> The dictionary defines "persuasion" as: the condition of being persuaded. It likely <br /> should be read in context and in conjunction with other requirements, such as specific standards <br /> (i.e. in harmony with the area) and the requirement that the evidence be "substantial." The <br /> requirement for"substantial" evidence is found in both the UDO and the enabling statutes, and is <br /> that which a reasonable mind would regard as being sufficient to support a specific conclusion. <br /> 2. The need for this language is questioned given `how' the UDO is structured <br /> with respect to Variances,Interpretations, and SDP's; <br /> The explicit description of burden of proof may not be necessary given the statutory <br /> language that requires substantial evidence in the record. There may already be implicit that the <br /> applicant bears this burden. However, procedural requirements included in the UDO must be <br /> adhered to and will be construed by the courts. The courts will use canons of construction when <br /> construing statutes and ordinances. In essence, words have meaning and discrepancies may have <br /> impact such that describing a burden proof in one section but omitting it(or describing it <br /> differently) in another section may have unintended consequences. <br /> 3. Board members are concerned requests could be denied because someone <br /> decides, even with expert testimony and evidence, `you have not convinced me'; <br /> By statute "[e]very quasi-judicial decision shall be based upon competent, material, and <br /> substantial evidence in the record." Case law indicates that"[w]hen an applicant has produced <br /> competent, material, and substantial evidence tending to establish the existence of the facts and <br /> conditions which the ordinance requires for the issuance of a special use permit, prima facie he is <br /> entitled to it." Furthermore, "[a] denial of the permit should be based upon findings contra which <br /> are supported by competent, material, and substantial evidence appearing in the record." In that <br /> way, the burden can be seen as shifting—from the proponent to the opponent once a mere <br /> sufficiency has been met. <br /> Generally an exception is found where the standard is so general that it makes <br /> production impossible or unduly difficult. One example of that is the standard of a project not <br /> harming the public health, safety or welfare. There the initial burden is on the opponents to <br /> demonstrate that the standard would not be met. <br /> In addition,these can be altered by local ordinance as the procedural rules are binding, <br /> particularly those designed to provide procedural safeguards for fundamental rights. <br /> However, the designation of burden of proof to a particular party may be viewed <br /> separately from the requirements that the supporting evidence be competent, material and <br /> substantial. In particular, "substantial evidence"is that which a reasonable mind would regard as <br /> being sufficient to support a specific conclusion. <br /> Pb clarification v7 <br />