Planning Board minutes 030619 - Laserfiche WebLink

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Approved 4/3/19 creating the new table. Mr. Harvey stated the staff had created a fact sheet outlining the changes, pages, and reasons 56 why amendments were made to aid the Board in their review. 57 58 Mr. Harvey addressed replacement page 25 (A) and explained that the County Attorney’s office had asked staff to 59 include a provision in the Unified Development Ordinance (UDO) for reasonable accommodations for individuals with 60 handicaps. Mr. Harvey explained it was common place to have a provision in the ordinance providing handicapped 61 individuals with opportunities to seek variances from development criteria that could impact their ability to use their 62 property. It had been advised by the County Attorney’s office that Section 2.25, a reasonable accommodation rule, be 63 adopted. In reviewing changes, the County Attorney identified a concern relating to not only the granting of variances 64 for reasonable accommodations but also variances, interpretations and Special Use Permits in general. Although 65 there had been sufficient language within the UDO addressing burden of proof, Mr. Harvey informed the board that the 66 Attorney’s office had requested to add specific language which he referred to on page 25 (A) in the variance section. 67 Mr. Harvey explained that the recommended language stated the applicant shall have the burden of establishing by 68 competent material and substantial evidence in the form of testimony, exhibits, documents, models, plans and other 69 materials that the application meets the requirements for approval of a variance and furthermore, the applicant shall 70 have the burden of persuasion on those issues justifying the approval of a request. 71 72 Lydia Wegman asked Mr. Harvey to clarify the meaning and he responded that the applicant now has the responsibility 73 of persuading the board that they are correct and that the request should be granted. 74 75 Michael Harvey explained that the language was referenced within applicable State statutes and was beginning to 76 appear in other local government ordinances to help applicants understand what their obligations under the variance, 77 interpretation, and special use permit review processes were. He said applicants have to prove their case to the board 78 and hold persuade members the competent material evidence and testimony offered justified the approval of the 79 request. Mr. Harvey advised that the attorney had an interest in adding the language “burden of persuasion” to Section 80 2.11; Section 2.11.13, dealing with interpretations; and in Section 5.3.2. 81 82 Lydia Wegman questioned the meaning of the phrase and asked what the County Attorney’s interpretation of the 83 phrase was as well. Mr. Harvey explained he only had the ability to explain his interpretation of the phrase, reiterate 84 what had been discussed, and commented that the felt the language was clear in that applicants always had the 85 burden to persuade review board’s they should receive approval for their requests. The amendment merely seeks to 86 add the phrase to the UDO. 87 88 Lydia Wegman read from the packet, establishing by competent material and substantial evidence, and stated she felt 89 this covers what is required. She expressed disapproval for the language and found it to be vague and uncommon. 90 91 Craig Benedict stated that applicants only had to explain what they are trying to prove along with items they are 92 submitting. He commented that he didn’t believe an applicant had to go too far in adding an explanation of how the 93 standard is being achieved. 94 95 Michael Harvey reminded the board that variance interpretation and Special Use Permits are carried on in a different 96 format than a typical legislative hearing. He explained that the language is designed to ensure there is proper and 97 adequate dissemination of what is expected from applicants with the applicant bearing the burden of proof and with 98 having to persuade to the board that they are correct thereby justifying approval of the request. 99 100 Randy Marshall remarked that decisions should be made based on agreed upon facts, and he disapproved of 101 language found in the packet. He felt the applicant would not have any recourse for not being able to persuade the 102 board on their case and remarked the language would render verdicts based on opinions. Carrie Fletcher agreed with 103 Mr. Marshall. 104 105 Michael Harvey expressed that he did not desire to lead the board in any one direction and remarked that it was 106 perfectly acceptable for the board to ask the County Attorney to provide something in writing before acting on any 107 Ordinance Amendment they felt uncomfortable with. 108 109 Lydia Wegman found the remark an intelligent suggestion. 110 111