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

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69 DRAFT 56 57 Michael Harvey: I would also like there to be a motion acknowledging and accepting the changes to the Table of 58 Permitted Uses that you saw last month to include Retreat Centers in the districts I named. 59 60 Randy Marshall: So moved 61 62 MOTION by Randy Marshall to acknowledging and accepting the changes to the Table of Permitted Uses to include 63 Retreat Centers in neighborhood commercial, community commercial,general commercial, Economic Development 64 Buckhorn low intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail 65 districts. Seconded by Hunter Spitzer 66 VOTE: Unanimous. 67 68 Michael Harvey: Let me introduce Mr.James Bryan of the county attorney's office to discuss burden of persuasion. 69 70 James Bryan: I'm a staff attorney here in Orange County. Michael mentioned to me that there were some particular 71 concerns you have been wrestling with regarding the Table of Permitted Uses. I drafted a memo. The last two pages 72 are the actual questions that Michael forwarded to me with the answers, but I thought it would be easier to just work 73 from the beginning. Let's start at the beginning of why staff came up with changes to the Table of Permitted Uses. 74 There was a court case in 2015, Franklin vs. Byrd, in which the state said all the local governments along with the state 75 have been doing this wrong for a long time. Zoning is a derogation of property rights and anything ridding of 76 somebody's property rights is a higher standard than normal stuff,so you have to be clear when you do that. Our 77 current UDO is written similarly to many jurisdictions in the state where the state says we're going to tell you what you 78 can and can't do. The Byrd court said, no,you don't tell people what they can do, it's assumed they can do whatever 79 they want, and you have to tell them what they can't do. You have to very clear and when there's ambiguity it will go in 80 favor of the property owner. You can think of the Table of Permitted Uses as things you can and can't do. There is also 81 a middle ground that says these are the different categories and we're going to bump you in to whatever is closest to it. 82 If you want to prohibit something, you have to be clear about it. An example of how the LIDO was constructed for that is 83 with the definition of large daycare homes which provides daycare for more than 5 but fewer than 16 children within a 84 residence. The idea was it was regulating within the definition; 17 children wouldn't be captured by that definition since 85 it's 5 to 16. Under the current UDO if you have 17 children in the home,we were presuming that you weren't allowed 86 because you didn't fall under the definition. Byrd flips that and says if you're not a large daycare home,which you are 87 not with 17 kids,then you're not regulated and not listed in the Table of Permitted Uses so it's assumed that you can go 88 about your business. Group homes have always been a difficult subset of Land Use Categories because there's state 89 and federal laws about group homes like halfway homes and addiction centers. Both the state and federal have 90 particular regulations for group homes through the ADA,Americans with Disabilities Act and through fair housing. The 91 problem is they overlap. Under the old system where you said, I'll tell you what you can do, it's okay to regulate them 92 like that. With this one, it's going to be tough to have a very explicit set of uses for that. A lot of other jurisdictions have 93 added something to their development ordinance which you can call reasonable accommodation which the law requires 94 for ADA and fair housing. It's a great time to address that because it also addresses the idea that we want broad 95 categories, so they are regulated. The federal and the states are saying you can't be so broad with these protected 96 classes, so we're being broad but also giving them an escape of reasonable accommodations. Durham and Ashville 97 have adopted this, and now staff is proposing this. There are different ways to approach this. You could have very 98 precise definitions of land use categories to meet state and federal guidelines, or you could develop your own 99 reasonable accommodation section. It is both common and useful to steal from other jurisdictions as Durham has 100 already adopted this so go ahead and steal from them. This helps serve two purposes; the first is saving staff time and 101 the other is when something is complex and can lead to litigation,you look to the court to see whether it is applicable to 102 you. Durham and Ashville has been untested so it's more of a prospective use. Having it match as closely as possible 103 influences the reliance on it. Durham's reasonable accommodation has a section on burden of proof which includes 104 burden of persuasion. When first reviewed with Michael, he had eliminated that section, and I told him if there's any 105 change that's going to impact how it's relied upon later, maybe it makes a difference, I don't know? Michael stated he 106 would put it back in, but by putting it back in, it doesn't line up with the rest of our UDO as the rest of the UDO has 107 different processes for Special Use Permits, Appeals, Interpretations, and others. It talks about what is basically 108 burden of proof, but it doesn't use the same words in the same way that Durham did for theirs. When reading our UDO, 109 it has different words for the same process. There's construction, the way the courts are going to read this when 110 reviewing it which says words have meaning and purpose and when they are done differently in different sections that's