BOA minutes 081318 - Laserfiche WebLink

Browse Search

i Approved January 14, 2019 1 2 Barry Katz asked if Superior Court gave a reason for dismissing it with prejudice. 3 4 LeAnn Brown answered that she cannot speak to that because that is not her case. It would be for Andy Petesch to 5 answer. She reiterated that the dismissal with prejudice brought an end to the recourse for appealing the Orange 6 County Board of Adjustment decision to deny the Special Use Permit. She added that she believes Southeast Property 7 Group, LLC, and Kara and Chris Brewer were without recourse before the petition to Superior Court was filed because 8 when Michael Harvey first determined that she had to file for a Special Use Permit, Kara Brewer should have appealed 9 that to the Board of Adjustment, And that never occurred. 10 11 Randy Herman said the effect of all that would be that the property owner does not qualify for a Special Use Permit and 12 he does not think that the property owner is now arguing that they do but rather that the statute has changed such that 13 the property is no longer subject to our zoning entirely. 14 15 LeAnn Brown said that under the doctrine of res judicata and collateral estoppel when you have chosen the means by 16 which you proceed before a quasi-judicial body and seek a permit and then you choose not to appeal that decision that 17 you have chosen the path that you are going to take. You have set your course of action. Once you are denied the 18 Special Use Permit, you cannot appeal that and dismiss it and then come back and say, `You know what, I don't think I 19 ever needed it anyway.'And that is exactly what has happened here. 20 21 Randy Herman said the statute under which they are proceeding did not exist at the time that they initially applied so 22 they couldn't have chosen that path at that time. 23 24 LeAnn Brown said the statute at the time that they saw the Class B Special Use Permit is the statute that this board 25 was considering when it considered the appeal in 2016 and then the statute said what it says now about nonfarm use. 26 That zoning always applies when a farm property is being used for a nonfarm use. That sentence has not been taken 27 out of the statute.And that's the sentence I think Michael Harvey was considering when he made the decision that Kara 28 Brewer needed a Class B Special Use Permit in the first place, or that the property owner did, The statute did exist. It 29 has been amended to delete the provision that allowed a property owner to rely upon a farm number, which is what 30 Kara Brewer was relying upon, but has added the provision that talks about structures. So, yes, the statute has 31 changed but as she said, related to the Hillsboro Partners case, the doctrine of collateral estoppel will apply even if the 32 subsequent action is based on a different claim, And she thinks that's the only thing that's happened here is it's a 33 different claim. The language is still the same. The building is still the same. The property is still the same. It is still the 34 same intended use. 35 36 Barry Katz said he recalls Kara Brewer voluntarily applying for the Special Use Permit. 37 38 LeAnn Brown said the minutes show that initially the county determined that she had to apply for it. The county then 39 determined that she did not necessarily need to do that. And by the time the hearing took place, Kara Brewer had i 40 decided to voluntarily proceed and in the hearing she said she was voluntarily proceeding. Voluntarily or not, she chose 41 that path, And when that didn't work out, they've used different avenues and that's what collateral estoppel says you 42 can't do. 43 44 Randy Herman asked LeAnn Brown if she has a case that says that res judicata or collateral estoppel applies when the 45 substantive law has changed between the first proceeding and the second proceeding. 46 47 LeAnn Brown said she does not have a case that talks about a change in statute between the first proceeding and the 48 second proceeding. She said she is happy to hand out the cases she mentioned, She thinks both cases she mentioned 49 are clear that the claims can change but if the facts are still the same, the facts are still the same. We are not allowed in 50 the law to have a proceeding and be unhappy with the results and then find another theory and another theory and