Planning Board Special Meeting minutes 032019

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Approved 4/3/19 burden of persuasion for a staff level determination in the UDO. You are probably going to rely on the fact that in the 113 statutes the language talks about substantial evidence where you need competent, material, and substantial evidence 114 sufficient to make your proof. Material is something related to the thing at hand and competence is that which could be 115 used in a court, it’s reliable. Substantial is that which a reasonable mind would regard as being sufficient to support a 116 specific conclusion which can be found on the third page under 1, the last sentence. Substantial evidence is that which a 117 reasonable mind would regard as being sufficient to support a specific conclusion. This to me is a fairly low bar. 118 Reasonable minds can disagree, but there are some things that are just not disagreeable. It is what a reasonable mind 119 would regard as being sufficient to support a specific conclusion. The next question forwarded by Michael is, the need for 120 language in the question given; how the UDO is structured with respect to Variances, Interpretations, and SUPs. This is 121 again the idea that discrepancies can have major impact. If you say staff such as Michael and Craig Benedict in multiple 122 sections and then say staff such as Michael, this is construction and there’s an omission. Craig was left off on that last 123 one and you might say Craig hadn’t been hired when that part was drafted, but the court upon reviewing it will see it as a 124 purposeful omission, something that was meant for Michael but not Craig. This is the reason the different sections should 125 be as uniform as possible. The greater the variance between the different sections the more ambiguous and less likely it 126 is to be upheld. The third concern; Board members are concerned that requests could be denied because someone 127 decides even with expert testimony in the evidence you have not convinced me. By statute, everything has to be based 128 upon competent material and substantial evidence and local rules have to be followed. It can be tinkered with to create 129 more procedures and processes and can be exhaustive in description, but you run the risk of not doing it perfectly and 130 anything in the definitions will be upheld. If you don’t say anything, you can likely rely on the statutes and precedent. 131 132 Lydia Wegman: I don’t have a problem with the burden of proof, but what is puzzling to me is that the applicants have the 133 burden of the competent material, substantial evidence, what meets the requirements for approval of the variance. I don’t 134 understand what the burden of persuasion language adds, and it seems to confuse the issue. Although Durham has put it 135 in, it has not been legally tested, and is not persuasive to me. 136 137 James Bryan: My job is to work for the Board when they’re considering this, that it is legally sufficient, and that they’re 138 aware of the risks. My concern is that you all understand this and understand the risk involved. 139 140 Lydia Wegman: I’m not understanding what the risk is of not having the sentence, further the applicant shall have the 141 burden of persuasion on those issues. 142 143 James Bryan: If you don’t have Durham’s verbatim, you can’t rely on it. 144 145 Lydia Wegman: But Durham’s has never been tested, this is their creative approach. 146 147 James Bryan: Right. 148 149 Lydia Wegman: What if ours was tested first? 150 151 Hunter Spitzer: Do you know what they have done to justify doing this? 152 153 James Bryan: No. 154 155 Carrie Fletcher: So, we are just following them just because? 156 157 James Bryan: No, I don’t believe so. One reason we are following them is because staff has been working on this for 158 years. We could come up with a whole new one but then Michael would have to come up with all new language, it would 159 have to be reviewed by me, he would have to bring to you, and it would be a longer process. This is a quick process, and 160 I’ve told Michael that what Durham does is legally sufficient. 161 162 Lydia Wegman: What would make it legally insufficient to leave out the sentence about the burden of persuasion. I 163 understand you to say that we are just going to follow what they are doing. 164 165 Hunter Spitzer: Why it is insufficient without the burden of persuasion, it is because then we can’t rely on their standard? 166 167 James Bryan: It is not legally insufficient. 168