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

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73 DRAFT 276 Michael Harvey: They drew different conclusions from the facts. 277 278 Adam Beeman: And that is the problem with persuasion that I have. Mr. Harvey mentioned earlier that any time you go 279 for these permits,you would be advised to have a lawyer. You are setting me up right out of the gate to have to spend 280 money. 281 282 Craig Benedict: I don't know if this is an operable solution. One suggestion was to put a definition and James said 283 probably not. Sometimes in state construction of statutes there are some unknowns and what is done later is they ask 284 for an attorney general opinion on what that really means. Could the attorney's office put an attorney's opinion of how 285 we operate that burden of persuasion in an argument and explain? If we could get some sort of attorney opinion 286 outside of it that says this is what we mean by the argument. This is a typical argument that should go with the proof to 287 have the whole package;the production,the argument, and the overarching burden of proof. 288 289 Randy Marshall: This hasn't been in there before. How we have suffered by not having this clause in our UDO? 290 291 James Bryan:There's always the potential of litigation for ambiguity or not following local ordinance. 292 293 Randy Marshall: But we have not had any challenge up to this point that would seem to suggest that we to have this in 294 there. 295 296 James Bryan:To my knowledge,we have not. 297 298 Randy Marshall: How do you define reasonable? 299 300 James Bryan: Up until that last clause, I think that's spot on. Going back to David's example regarding the kennel. 301 David and his co-members on the Board had to vote, and one of them could have said I think it's going to decrease the 302 value while four of them could have has said it would increase the value. If they give the applicant the permit and it gets 303 appealed to Superior Court,the court will review the decision and ask if they had competent material and substantial 304 evidence. If the applicant did,then the court would find in their favor. It is a discretionary decision that the Board is 305 allowed to make. 306 307 Randy Marshall:. If we allow the clause to stay,what prevents us from adding another clause that says whoever is not 308 persuaded has to provide us with the reasons they are not persuaded? 309 310 Michael Harvey: That already does happen. 311 312 Randy Marshall:You have to put it in there so whoever reads it has it concretely in front of them and it's not implied that 313 they have it. If someone says they are not persuaded, after the burden of proof has been met, I think they should have 314 an obligation to the applicant to delineate the reasons why they are not persuaded which provides recourse to contest 315 the decision preventing them from getting what they are seeking. 316 317 Kim Piracci: Is this is one issue we have tonight? 318 319 Lydia Wegman:Yes. 320 321 Kim Piracci: I'm a gemologist; and at some point, it's not up to me to give a gemology lessons to my clients if that 322 person has hired me for my expertise. There's a hang up on the word persuasion, and he has said several times that it 323 is not the legal standard. The legal standard is this other thing. These three professionals are kind of in agreement that 324 these wordings should be in here and said it's an improvement over what we had. Michael has said it's already if you 325 are not persuaded you have to say why and yet it seems to keep going back and forth. At some level,we have to trust 326 our paid professionals and that's what I would like to do at this time. I don't see an end to this discussion. Even though 327 I get your point, I trust him because he's a legal expert. 328 329 Adam Beeman: I don't think we should be making it more difficult for normal people to understand and go through the 330 process. You are making it to the point where I have to hire a lawyer to do this so they can interpret the law for me.