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

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58 DRAFT 55 intended to give laypeople a way to easily understand what they are able to do with their property. In August of 2017, 56 during a work session with elected officials,the Planning Director, and the County Attorney, staff was advised to 57 abandon the comprehensive listing of every allowable land use and to instead condense land use categories as 58 much as possible in creating the new table. Mr. Harvey stated the staff had created a fact sheet outlining the 59 changes, pages, and reasons why amendments were made to aid the Board in their review. 60 61 Mr. Harvey addressed replacement page 25(A)and explained that the County Attorney's office had asked staff to 62 include a provision in the Unified Development Ordinance(UDO)for reasonable accommodations for individuals with 63 handicaps. Mr. Harvey explained it was common place to have a provision in the ordinance providing handicapped 64 individuals with opportunities to seek variances from development criteria that could impact their ability to use their 65 property. It had been advised by the County Attorney's office that Section 2.25, a reasonable accommodation rule, 66 be adopted. In reviewing changes,the County Attorney identified a concern relating to not only the granting of 67 variances for reasonable accommodations but also variances, interpretations and Special Use Permits in general. 68 Although there had been sufficient language within the LIDO addressing burden of proof, Mr. Harvey informed the 69 board that the Attorney's office had requested to add specific language which he referred to on page 25 (A) in the 70 variance section. Mr. Harvey explained that the recommended language stated the applicant shall have the burden 71 of establishing by competent material and substantial evidence in the form of testimony, exhibits, documents, 72 models, plans and other materials that the application meets the requirements for approval of a variance and 73 furthermore,the applicant shall have the burden of persuasion on those issues justifying the approval of a request. 74 75 Lydia Wegman asked Mr. Harvey to clarify the meaning and he responded that the applicant now has the 76 responsibility of persuading the board that they are correct and that the request should be granted. 77 78 Michael Harvey explained that the language was referenced within applicable State statutes and was beginning to 79 appear in other local government ordinances to help applicants understand what their obligations under the variance, 80 interpretation,and special use permit review processes were. He said applicants have to prove their case to the 81 board and persuade members the competent material evidence and testimony offered justified the approval of the 82 request. Mr. Harvey advised that the attorney had an interest in adding the language"burden of persuasion"to 83 Section 2.11; Section 2.11.13,dealing with interpretations; and in Section 5.3.2. 84 85 Lydia Wegman questioned the meaning of the phrase and asked what the County Attorney's interpretation of the 86 phrase was as well. Mr. Harvey explained he only had the ability to explain his interpretation of the phrase, reiterate 87 what had been discussed, and commented that the felt the language was clear in that applicants always had the 88 burden to persuade review board's they should receive approval for their requests. The amendment merely seeks to 89 add the phrase to the UDO. 90 91 Lydia Wegman read from the packet, establishing by competent material and substantial evidence, and stated she 92 felt this covers what is required. She expressed disapproval for the language and found it to be vague and 93 uncommon. 94 95 Craig Benedict stated that applicants only had to explain what they are trying to prove along with items they are 96 submitting. He commented that he didn't believe an applicant had to go too far in adding an explanation of how the 97 standard is being achieved. 98 99 Michael Harvey reminded the board that variance interpretation and Special Use Permits are carried on in a different 100 format than a typical legislative hearing. He explained that the language is designed to ensure there is proper and 101 adequate dissemination of what is expected from applicants with the applicant bearing the burden of proof and with 102 having to persuade to the board that they are correct thereby justifying approval of the request. 103 104 Randy Marshall remarked that decisions should be made based on agreed upon facts, and he disapproved of 105 language found in the packet. He felt the applicant would not have any recourse for not being able to persuade the 106 board on their case and remarked the language would render verdicts based on opinions. Carrie Fletcher agreed 107 with Mr. Marshall. 108