Planning Board agenda 040319 - Laserfiche WebLink

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D R A F T 225 James Bryan: I understand that, and I think you are defeating the purpose if you don’t expand it. It’s 600 pages and not 226 user friendly to begin with. If you were to leave the burden of persuasion out and leave it implicit, then those wily attorneys 227 are going to be only ones able to pick that out while the average person wouldn’t look for the loopholes. This is closing the 228 loopholes and making it harder for attorneys to get around the system. 229 230 Randy Marshall: This seems to create loopholes. If there is no concrete criteria for persuasion, any attorney can 231 challenge not being persuaded when there is no criteria or definition for persuasion. It is left up to the governing board to 232 say, whatever you put out there, I am not persuaded. It provides an undue decision-making authority on the governing 233 board who rules. I would prefer to see Orange County go in it’s own direction and then if there’s a problem with that, it will 234 surface. I can’t see that someone would come and say they will take us to court because we didn’t add the phrase.235 236 James Bryan: Either John or I are at the boards and we would advise against those arguments. The enabling statutes 237 say that someone has to have substantial material and competent evidence and case law indicates that once you have 238 that you have a right to the permit. That is the burden of proof. The different parts of it about the production of documents 239 and persuasive arguments are subparts to that. 240 241 Adam Beeman: I have applied for permits in this County since 2008, and I just don’t see is as being a fair process to 242 someone who can’t afford deep pockets to get out of it. If you just scratch persuasion off, I am happy. But you are telling 243 me I have to persuade you yet don’t give me any concrete steps to hit. That is a problem for me. It seems objectified. I 244 read your paragraph that if I provide all of this stuff then I deserve it, so then scratch out persuasion because I have 245 accomplished all of that. Why do I have to persuade you? If I come in and present my evidence and testimony, I have 246 either persuaded you or not. 247 248 James Bryan: It is a problem with semantics, but I am telling you what the law says. The law says you are always 249 persuading the Board. The Board has discretion. 250 251 Adam Beeman: That is my problem. It seems like a backdoor to say no to any project regardless if I qualify or not.252 253 James Bryan: It can’t be that. 254 255 Adam Beeman: It sounds like it. I am a layperson not a legalese, and it doesn’t make sense to me. When I read it, it 256 sounds like you are discouraging me from doing it. I am at the mercy of presenting my case instead of handing you the 257 facts. 258 259 James Bryan: The facts aren’t the facts.260 261 David Blankfard: I have an example of the facts aren’t the facts. I was on the Board of Adjustment and we had an 262 applicant come in and say they wanted to have a kennel put in. They had their own realtor come in and say it’s going to 263 maintain or enhance their property, but the neighbors had another expert say, no, it is not going to. We had to pick 264 between the two on who was most persuasive. 265 266 Randy Marshall: Persuasive or factual? 267 268 David Blankfard: They were both qualified but just had different opinions.269 270 Michael Harvey: They drew different conclusions from the facts.271 272 Adam Beeman: And that is the problem with persuasion that I have. Mr. Harvey mentioned earlier that any time you go 273 for these permits, you would be advised to have a lawyer. You are setting me up right out of the gate to have to spend 274 money. 275 276 Craig Benedict: I don’t know if this is an operable solution. One suggestion was to put a definition and James said 277 probably not. Sometimes in state construction of statutes there are some unknowns and what is done later is they ask for 278 an attorney general opinion on what that really means. Could the attorney’s office put an attorney’s opinion of how we 279 operate that burden of persuasion in an argument and explain? If we could get some sort of attorney opinion outside of it 280 19