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59 <br /> DRAFT <br /> 109 Michael Harvey expressed that he did not desire to lead the board in any one direction and remarked that it was <br /> 110 perfectly acceptable for the board to ask the County Attorney to provide something in writing before acting on any <br /> 111 Ordinance Amendment they felt uncomfortable with. <br /> 112 <br /> 113 Lydia Wegman found the remark an intelligent suggestion. <br /> 114 <br /> 115 Carrie Fletcher asked whether the language was leading to applicants having to retain legal guidance. Mr. Harvey <br /> 116 informed the board that state law does not mandate an applicant have an attorney nor does the ordinance but stated <br /> 117 it to be advisable for applicants entering a quasi-judicial hearing or a hearing requesting a variance observing a fair <br /> 118 trial standard to have the advice, counsel, or representation of an attorney. <br /> 119 <br /> 120 Carrie Fletcher remarked that from a layperson's perspective, she felt the language was pushing civilians to have <br /> 121 legal representation. <br /> 122 <br /> 123 Paul Guthrie commented that it could go both ways and stated it would be difficult situation if a person wanted to <br /> 124 litigate and had the means to do so. <br /> 125 <br /> 126 Michael Harvey requested for Mr. Guthrie to elaborate on his comment so he could respond adequately and asked <br /> 127 whether Mr. Guthrie's concern was based on appeals or whether it would more difficult to deny projects. Mr. Guthrie <br /> 128 responded that he felt there would be a lot of litigation if the County Commissioners don't state in similar language <br /> 129 reason behind an applicant's denial. <br /> 130 <br /> 131 Michael Harvey reminded the board that both the Board of Adjustments and the County Commissioners is <br /> 132 represented by the attorney's office. He explained the attorney representatives work with their boards to craft <br /> 133 decisions consistent with the evidence in the record. Mr. Harvey informed the board that once a public hearing is <br /> 134 closed on any Special Use Permit, variance application, or interpretation,the staff can no longer engage with the <br /> 135 board and only the County's appointed legal counsel can engage with them in crafting the appropriate decision based <br /> 136 on the Board's interpretation of the evidence and testimony in the record. <br /> 137 <br /> 138 Paul Guthrie commented that it was quite conceivable for a court on appeal to find issue with the persuasion <br /> 139 language. He stated he found he language to be vulnerable to judicial attack. <br /> 140 <br /> 141 Michael Harvey sought clarification on the boards'concerns,outlining them follows: <br /> 142 1. The board does not understand the rational for including the phrase"the applicant shall have the burden of <br /> 143 persuasion on those issues". <br /> 144 2. The board did not understand the plain meaning or impact of the term persuasion in this context; <br /> 145 3. The board wondered if there needed to be a standard specifically outlining what the applicant had to do to <br /> 146 persuade the Board of Adjusting or the BOCC an application should be approved; <br /> 147 4. The BOCC's review; the implications of appeals during litigation; <br /> 148 5. The implications of the phrase on the County's land use planning program; and <br /> 149 6. The boards'concerns regarding the findings of fact in denying or approving an action. <br /> 150 <br /> 151 Lydia Wegman asked to add in, and why it is necessary. She further explained that even though the planning board <br /> 152 comes in earlier,a recommendation is still needed on the Special Use Permits and this becomes difficult for the <br /> 153 planning board. <br /> 154 <br /> 155 Paul Guthrie stated he would feel a little bit better if there was another sentence added to indicate that if the boards <br /> 156 feel they have not been persuaded that they would meticulously document which items there were not persuaded on. <br /> 157 <br /> 158 Michael Harvey clarified that he thought something of that nature was already in the ordinance. He acknowledged <br /> 159 that the language was not sitting well with the board and stated he was well aware that the board did not understand <br /> 160 the ramifications of the language and acknowledged that the board was not comfortable without the attorney <br /> 161 providing in person or writing some reason as to why it had to be added. Various members on the board agreed with <br />