Planning Board Special Meeting minutes 032019

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Approved 4/3/19 393 Craig Benedict: The brochure would be a help to the customer. 394 395 Lydia Wegman: It’s a good idea but doesn’t address our comfort with UDO language. 396 397 Craig Benedict: I agree. 398 399 Randy Marshall: Before we vote, I am going to say something with the burden of persuasion language I’m voting against. 400 I’m not persuaded that we have to have it because Durham had it. We’ve never had it in here and it’s never been a 401 problem. 402 403 Paul Guthrie: Has any court of competent jurisdiction defined what we’re now saying seems to be a problem? 404 405 James Bryan: I haven’t looked. It’s pretty well settled law because the statute is explicit about competent material and 406 substantial evidence. What is substantial has been litigated extensively but questioning the very foundation has not. 407 Franklin vs. Byrd is how this came up. There is always a chance that the foundation gets torn up, but this is how it’s been 408 going for a long time. 409 410 Paul Guthrie: What worries me is the turmoil that might occur over trying to justify and accept these definitions. You may 411 find that the rulings will take on and destroy further protections than we have and not just those under the court’s view at 412 that time. It seems like an issue that is one of those that can’t be solved simply and depending on the case that comes 413 forward that case may be awarded for the wrong part of information but set the precedent for all the rest. Is there any way 414 to avoid that and still maintain the standard that Michael is trying to justify? 415 416 James Bryan: I don’t think that there’s any way to fully avoid it. The law is an evolving thing. You can be conservative in 417 your approach by seeing what the common approach is and what is most legally defensible. 418 419 Lydia Wegman: If we take a vote, can we vote on whether we approve or disapprove this language? I think several of us 420 are uncomfortable with the second sentence, but not the first. If we were to vote on that, can this go forward to the Board 421 of County Commissioners? 422 423 Craig Benedict: You can vote with both sentences or one; it’s your recommendation. The Commissioners will see your 424 recommendation and vote for or against it. 425 426 Lydia Wegman: I’m trying to say I think we can take a vote and move on beyond us to the Board of County 427 Commissioners. 428 429 Michael Harvey: I think the Board just needs to take action as it sees fit. 430 431 MOTION by Hunter Spitzer to approve the Statement of Consistency as contained in Attachment 2 and to approve revised 432 UDO text amendment package in contained in Attachment 3 and refer the Board of County Commissioners to our 433 concerns with the language under the sections discussed this evening and on March 6, 2019 but to approve the document 434 as it stands. Seconded by Kim Piracci 435 436 Lydia Wegman: So, basically you are voting to approve it but just advise them that we had some concerns. 437 438 Hunter Spritzer: Yeah. 439 440 Carrie Fletcher: I would like to know what your feeling are, I would like to know. 441 442 Michael Harvey: I quite frankly feel that there are some statements that have been made here tonight that are inconsistent 443 with facts and how this language was added. That’s very unfortunate. I think that there is and has always been a burden 444 of persuasion for an applicant engaging in a Variance, Interpretation or Special Use Permit. That is just simple fact. An 445 applicant has the obligation to persuade whatever Board he or she is going before that they are correct and that the 446 information they are providing demonstrates the project complies with applicable standards. How they persuade that 447 Board they are correct is with the submission of competent material and substantial evidence in the form of testimony, 448