Planning Board Special Meeting minutes 032019

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Approved 4/3/19 57 Randy Marshall: So moved 58 59 MOTION by Randy Marshall to acknowledging and accepting the changes to the Table of Permitted Uses to include Retreat 60 Centers in neighborhood commercial, community commercial, general commercial, Economic Development Buckhorn low 61 intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail districts. Seconded 62 by Hunter Spitzer 63 VOTE: Unanimous. 64 65 Michael Harvey: Let me introduce Mr. James Bryan of the county attorney’s office to discuss burden of persuasion. 66 67 James Bryan: I’m a staff attorney here in Orange County. Michael mentioned to me that there were some particular 68 concerns you have been wrestling with regarding the Table of Permitted Uses. I drafted a memo. The last two pages are 69 the actual questions that Michael forwarded to me with the answers, but I thought it would be easier to just work from the 70 beginning. Let’s start at the beginning of why staff came up with changes to the Table of Permitted Uses. There was a 71 court case in 2015, Franklin vs. Byrd, in which the state said all the local governments along with the state have been 72 doing this wrong for a long time. Zoning is a derogation of property rights and anything ridding of somebody’s property 73 rights is a higher standard than normal stuff, so you have to be clear when you do that. Our current UDO is written 74 similarly to many jurisdictions in the state where the state says we’re going to tell you what you can and can’t do. The 75 Byrd court said, no, you don’t tell people what they can do, it’s assumed they can do whatever they want, and you have to 76 tell them what they can’t do. You have to very clear and when there’s ambiguity it will go in favor of the property owner. 77 You can think of the Table of Permitted Uses as things you can and can’t do. There is also a middle ground that says 78 these are the different categories and we’re going to bump you in to whatever is closest to it. If you want to prohibit 79 something, you have to be clear about it. An example of how the UDO was constructed for that is with the definition of 80 large daycare homes which provides daycare for more than 5 but fewer than 16 children within a residence. The idea was 81 it was regulating within the definition; 17 children wouldn’t be captured by that definition since it’s 5 to 16. Under the 82 current UDO if you have 17 children in the home, we were presuming that you weren’t allowed because you didn’t fall 83 under the definition. Byrd flips that and says if you’re not a large daycare home, which you are not with 17 kids, then 84 you’re not regulated and not listed in the Table of Permitted Uses so it’s assumed that you can go about your business. 85 Group homes have always been a difficult subset of Land Use Categories because there’s state and federal laws about 86 group homes like halfway homes and addiction centers. Both the state and federal have particular regulations for group 87 homes through the ADA, Americans with Disabilities Act and through fair housing. The problem is they overlap. Under the 88 old system where you said, I’ll tell you what you can do, it’s okay to regulate them like that. With this one, it’s going to be 89 tough to have a very explicit set of uses for that. A lot of other jurisdictions have added something to their development 90 ordinance which you can call reasonable accommodation which the law requires for ADA and fair housing. It’s a great 91 time to address that because it also addresses the idea that we want broad categories, so they are regulated. The federal 92 and the states are saying you can’t be so broad with these protected classes, so we’re being broad but also giving them an 93 escape of reasonable accommodations. Durham and Ashville have adopted this, and now staff is proposing this. There 94 are different ways to approach this. You could have very precise definitions of land use categories to meet state and 95 federal guidelines, or you could develop your own reasonable accommodation section. It is both common and useful to 96 steal from other jurisdictions as Durham has already adopted this so go ahead and steal from them. This helps serve two 97 purposes; the first is saving staff time and the other is when something is complex and can lead to litigation, you look to 98 the court to see whether it is applicable to you. Durham and Ashville has been untested so it’s more of a prospective use. 99 Having it match as closely as possible influences the reliance on it. Durham’s reasonable accommodation has a section 100 on burden of proof which includes burden of persuasion. When first reviewed with Michael, he had eliminated that section, 101 and I told him if there’s any change that’s going to impact how it’s relied upon later, maybe it makes a difference, I don’t 102 know? Michael stated he would put it back in, but by putting it back in, it doesn’t line up with the rest of our UDO as the 103 rest of the UDO has different processes for Special Use Permits, Appeals, Interpretations, and others. It talks about what 104 is basically burden of proof, but it doesn’t use the same words in the same way that Durham did for theirs. When reading 105 our UDO, it has different words for the same process. There’s construction, the way the courts are going to read this when 106 reviewing it which says words have meaning and purpose and when they are done differently in different sections that’s 107 intentional for different purposes. So, staff met in the middle and used the Durham one, I think verbatim, and then 108 changed the other sections of the UDO. It’s important to know because there’s a context of it that the words have meaning 109 and has to be the same in different places. The first, is the construction in which words have their normal every day 110 meaning and unless defined will be from the dictionary. I would believe that persuasion here has to be looked at in the 111 context of that it is usually used in a board’s determination for a quasi-judicial determination. I don’t think you have a 112