Planning Board Special Meeting minutes 032019

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Approved 4/3/19 169 Lydia Wegman: It would not be legally insufficient if we deleted that sentence, is that correct? 170 171 James Bryan: Yes. 172 173 Lydia Wegman: I understand why you need a statement about burden of proof and where it falls, but it’s that last sentence 174 that’s hanging me up. 175 176 James Bryan: I would encourage you to allow me to explain burden of proof, burden of persuasion, and burden of 177 production. It’s one thing to think it’s legally sufficient so we can do it, but we should all have our own reason. If I had my 178 way, we would just rely on the statutory language, but that is not how our UDO is set up. Our UDO is hundreds of pages 179 reiterating and expanding upon the statutes. We talk about burden of proof, but we don’t use those words so much and 180 use the statutory language some but it’s really a modification of everything. Durham has their own modification, different 181 but fairly similar. The burden of proof is an umbrella term that is usually broken down into burden of production and 182 burden of persuasion. Production could be the tangible items, the witness or the documents, and the persuasion could be 183 the arguments that support that. It could also be in different context that the burden of production is when the burden 184 shifts. If you were in civil court in the state of North Carolina, you would file a lawsuit with the first motion of summary 185 judgement. You would have a hearing to ask the judge to throw out the case just based upon what you have because you 186 don’t need a trial. This has a different standard for it than a trial. There you have a different burden of production than you 187 would have at the trial. In that context, it has a different meaning, so you have to look at what you have here. I think what 188 Durham does is fine. It is a little wordy, not very user friendly, and has too much legalese, but I don’t believe ours to be the 189 gold standard either. There are hundreds of pages in the UDO and there are a lot of things that I don’t think are best 190 practices, but if it’s not being changed right now it has opened up a Pandora’s box to mess with everything. By peeling 191 away at the UDO, you bring up other issues and that’s how the reasonable accommodation came in. I think the staff has 192 done a good job about addressing the problems that came up and the next thing was this burden of persuasion and how to 193 get it to either to match Durham’s or to meld with ours. 194 195 David Blankfard: In our UDO is there a definition for burden of persuasion? When I looked it up, there is an article from 196 Law Cornell that says the definition for burden of persuasion. Can we have that put in as this is what this means, along 197 with the need for factuals, information, and for it to be presented? 198 199 James Bryan: Yes, but I recommend against it. It makes sense to clarify, but if you have a definition of it, you are defining 200 a term used by Durham and Durham might define it differently and you therefore lose that benefit from it. If you are silent 201 then you could say, yes, that is what we meant. I think you are not at a risk when you say, yes, that is what we meant 202 because I think burden of persuasion and burden of proof is so well established in the law that is it competent, material, 203 substantial evidence for the standards found in the UDO. 204 205 Hunter Spitzer: I am still confused with how burden of persuasion is distinct from burden of proof. How is adding 206 persuasion something more than just burden of proof? What does it add that we wouldn’t have without it, and what makes 207 that different than just the regular burden of proof defined in case law? 208 209 James Bryan: I think what I am hearing is that you’ve added that the burden of proof is broken down into production and 210 persuasion. Production is the documents and persuasion is the arguments. In the UDO, we are explicit that the burden is 211 on the applicant to produce the documents but didn’t say anything about the arguments. It was implicit and this is making 212 it explicit. 213 214 Hunter Spitzer: This definition is only added in 2.10.3 and 2.11.3? 215 216 Michael Harvey: No, it was added to 2.10.3, 2.11.3, 5.3.2, the sections dealing with Variances, Interpretations and 217 Special Use Permits. 218 219 Hunter Spitzer: Okay. 220 221 Carrie Fletcher: Part of the comments were to keep it so the average person could do it on their own without legal 222 assistance and to keep it cost effective. You understand the terminology, but the average person may not and therefore 223 you are going to end up requiring the applicant to hire legal help. 224