Planning Board agenda 040319 - Laserfiche WebLink

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D R A F T Carrie Fletcher asked whether the language was leading to applicants having to retain legal guidance. Mr. Harvey 112 informed the board that state law does not mandate an applicant have an attorney nor does the ordinance but stated it 113 to be advisable for applicants entering a quasi-judicial hearing or a hearing requesting a variance observing a fair trial 114 standard to have the advice, counsel, or representation of an attorney.115 116 Carrie Fletcher remarked that from a layperson’s perspective, she felt the language was pushing civilians to have legal 117 representation.118 119 Paul Guthrie commented that it could go both ways and stated it would be difficult situation if a person wanted to 120 litigate and had the means to do so.121 122 Michael Harvey requested for Mr. Guthrie to elaborate on his comment so he could respond adequately and asked 123 whether Mr. Guthrie’s concern was based on appeals or whether it would more difficult to deny projects. Mr. Guthrie 124 responded that he felt there would be a lot of litigation if the County Commissioners don’t state in similar language 125 reason behind an applicant’s denial. 126 127 Michael Harvey reminded the board that both the Board of Adjustments and the County Commissioners is represented 128 by the attorney’s office. He explained the attorney representatives work with their boards to craft decisions consistent 129 with the evidence in the record. Mr. Harvey informed the board that once a public hearing is closed on any Special 130 Use Permit, variance application, or interpretation, the staff can no longer engage with the board and only the County’s 131 appointed legal counsel can engage with them in crafting the appropriate decision based on the Board’s interpretation 132 of the evidence and testimony in the record.133 134 Paul Guthrie commented that it was quite conceivable for a court on appeal to find issue with the persuasion language.135 He stated he found he language to be vulnerable to judicial attack. 136 137 Michael Harvey sought clarification on the boards’ concerns, outlining them follows: 138 1. The board does not understand the rational for including the phrase “ the applicant shall have the burden of 139 persuasion on those issues”. 140 2. The board did not understand the plain meaning or impact of the term persuasion in this context; 141 3. The board wondered if there needed to be a standard specifically outlining what the applicant had to do to 142 persuade the Board of Adjusting or the BOCC an application should be approved;143 4. The BOCC’s review; the implications of appeals during litigation;144 5. The implications of the phrase on the County’s land use planning program; and 145 6. The boards’ concerns regarding the findings of fact in denying or approving an action. 146 147 Lydia Wegman asked to add in, and why it is necessary. She further explained that even though the planning board 148 comes in earlier, a recommendation is still needed on the Special Use Permits and this becomes difficult for the 149 planning board.150 151 Paul Guthrie stated he would feel a little bit better if there was another sentence added to indicate that if the boards 152 feel they have not been persuaded that they would meticulously document which items there were not persuaded on. 153 154 Michael Harvey clarified that he thought something of that nature was already in the ordinance. He acknowledged that 155 the language was not sitting well with the board and stated he was well aware that the board did not understand the 156 ramifications of the language and acknowledged that the board was not comfortable without the attorney providing in 157 person or writing some reason as to why it had to be added. Various members on the board agreed with Michael’s 158 statements. Ms. Fletcher remarked that she was not comfortable with the phrase. Ms. Wegman requested clarification 159 other than other jurisdictions have included this language. 160 161 Paul Guthrie question how burden is measured in litigation. Mr. Harvey acknowledged that this was another area of 162 concern for the board. 163 164 Adam Beeman commented that if all required items were checked off and an applicant had sound evidence, that the 165 boards could still deny their request if they decided they didn’t like the project. He stated there needs to be a goal to 166 7