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

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70 DRAFT 111 intentional for different purposes. So,staff met in the middle and used the Durham one, I think verbatim, and then 112 changed the other sections of the UDO. It's important to know because there's a context of it that the words have 113 meaning and has to be the same in different places. The first, is the construction in which words have their normal 114 every day meaning and unless defined will be from the dictionary. I would believe that persuasion here has to be 115 looked at in the context of that it is usually used in a board's determination for a quasi-judicial determination. I don't 116 think you have a burden of persuasion for a staff level determination in the UDO. You are probably going to rely on the 117 fact that in the statutes the language talks about substantial evidence where you need competent, material, and 118 substantial evidence sufficient to make your proof. Material is something related to the thing at hand and competence is 119 that which could be used in a court, it's reliable. Substantial is that which a reasonable mind would regard as being 120 sufficient to support a specific conclusion which can be found on the third page under 1, the last sentence. Substantial 121 evidence is that which a reasonable mind would regard as being sufficient to support a specific conclusion. This to me 122 is a fairly low bar. Reasonable minds can disagree, but there are some things that are just not disagreeable. It is what 123 a reasonable mind would regard as being sufficient to support a specific conclusion. The next question forwarded by 124 Michael is, the need for language in the question given; how the UDO is structured with respect to Variances, 125 Interpretations,and SUPs. This is again the idea that discrepancies can have major impact. If you say staff such as 126 Michael and Craig Benedict in multiple sections and then say staff such as Michael,this is candid construction and 127 there's an omission. Craig was left off on that last one and you might say Craig hadn't been hired when that part was 128 drafted, but the court upon reviewing it will see it as a purposeful omission, something that was meant for Michael but 129 not Craig. This is the reason the different sections should be as uniform as possible. The greater the variance between 130 the different sections the more ambiguous and less likely it is to be upheld. The third concern; Board members are 131 concerned that requests could be denied because someone decides even with expert testimony in the evidence you 132 have not convinced me. By statute, everything has to be based upon competent material and substantial evidence and 133 local rules have to be followed. It can be tinkered with to create more procedures and processes and can be exhaustive 134 in description, but you run the risk of not doing it perfectly and anything in the definitions will be upheld. If you don't say 135 anything, you can likely rely on the statutes and precedent. 136 137 Lydia Wegman: I don't have a problem with the burden of proof, but what is puzzling to me is that the applicants have 138 the burden of the competent material, substantial evidence,what meets the requirements for approval of the variance. 1 139 don't understand what the burden of persuasion language adds, and it seems to confuse the issue. Although Durham 140 has put it in, it has not been legally tested, and is not persuasive to me. 141 142 James Bryan: My job is to work for the Board when they're considering this,that it is legally sufficient, and that they're 143 aware of the risks. My concern is that you all understand this and understand the risk involved. 144 145 Lydia Wegman: I'm not understanding what the risk is of not having the sentence,further the applicant shall have the 146 burden of persuasion on those issues. 147 148 James Bryan: If you don't have Durham's verbatim,you can't rely on it. 149 150 Lydia Wegman: But Durham's has never been tested,this is their creative approach. 151 152 James Bryan: Right. 153 154 Lydia Wegman:What if ours was tested first? 155 156 Hunter Spitzer: Do you know what they have done to justify doing this? 157 158 James Bryan: No. 159 160 Carrie Fletcher: So,we are just following them just because? 161 162 James Bryan: No, I don't believe so. One reason we are following them is because staff has been working on this for 163 years. We could come up with a whole new one but then Michael would have to come up with all new language, it 164 would have to be reviewed by me, he would have to bring to you, and it would be a longer process. This is a quick 165 process, and I've told Michael that what Durham does is legally sufficient.