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

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56 In other words, the "burden of proof' in this instance appears to assigns who must make a demonstration of evidence; while the standards describe what must be demonstrated by the evidence (e.g. be in harmony with the area); and, "substantial evidence"requires it to be enough in amount and quality so that it appears to be a rational decision. The burden of proof is sometimes segmented into `burden of production' and `burden of persuasion'. In these cases the burden of production is generally the evidence itself: testimony and documents, while the burden of persuasion is the amount necessary to meet a standard such as a"preponderance of evidence" (as opposed to "beyond a reasonable doubt"). The context may alter the meaning, such as where it is segmented in one instance but not in another or where only one segment is included. 4. Why the sudden need and so what if other jurisdictions are doing/have done this. Has there been a change in State law mandating this?; It is unclear what is being referred to as "sudden." The 2015 court case prompting staff to amend the ToPU actually reaffirms a longstanding principle of law and cites both common law and half-century old case law. Likewise,the Federal and State protections related to group homes have existed for some time. However, the inclusion of reasonable accommodations is a relatively new approach and was discussed at a Continuing Legal Education conference in 2018. The legal department relayed that information to staff which at the time had not yet developed a comprehensive approach to `group home' land use categories. Staff had initially indicated that they intended to use the Durham approach verbatim, but a legal review revealed the omission of the burden of proof section. After a discussion regarding the implications (reliance on potential court proceedings and impact on construing other provisions) staff chose to make further amendments which resulted in the last known edits. 5. Shouldn't we have `standards' outlining what persuasion means and how it should be evaluated when making a decision? There are several considerations as previously discussed above. There are certain canons of construction, such as words being given their normal meaning. Any deviation would have a corresponding impact when looking at relying on courts interpreting other similar ordinances. While the current text amendment may be legally sufficient, there are certainly innumerable other additions, revisions and edits which may just as legally sufficient while having a different balance of considerations. Staff had indicated a preference for a single section describing a universal `burden of proof but abstaining because of the time involved with drafting it and the potential for further unforeseen impacts---all of which seems like reasonable considerations. 6. So does this mean staff also has the burden of persuasion and why is that not referenced? Unlikely. A burden of proof is typically singular, although it may shift. Here it seems the burden is generally on the applicant. This is appropriate. It would be peculiar to have staff placed with a burden of persuasion for anything other than for an appeal of an interpretation or notice of violation. Pb clarification v7