Agenda 05-21-19 8-a - Minutes - Laserfiche WebLink

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15 1 applicant does have the burden to convince the board he/she is before that the evidence 2 presented is sufficient for the permit to be presented. 3 Michael Harvey said the Planning Board did not understand how the term persuasion 4 was going to be used, and was seeking a standard. He said much of this is summarized in the 5 Attorney's memorandum (attachment 4), which he read. He said there is concern over legal 6 sufficiency and staff advocated to leave the language in, as the County's obligation is to insure 7 there is an ordinance that withstands legal muster. 8 Commissioner Marcoplos said in almost all cases, the applicant would be able to make 9 the case, and only few would need more explanation, information, or the services of a lawyer. 10 Michael Harvey said there is no provision in state law or in the LIDO that mandates an 11 applicant to hire an attorney. He said he feels ethically obligated to advise a person going 12 through a quasi-judicial process to consult with or hire counsel. He said if one does not hire 13 counsel, it does not mean there will be an automatic denial; and in his tenure there have been 14 several special use permits that were denied, despite having an attorney. 15 Commissioner Marcoplos said the simplification of the UDO makes it easier for 16 residents to persuade. 17 Michael Harvey said he would hope so, but does not want to discredit the Planning 18 Board's observations that they have a concern about what this language does. 19 Commissioner Dorosin clarified that the change in the language does not change the 20 burden on an applicant. 21 John Roberts said no it does not. 22 Commissioner Dorosin said if one is seeking a variance, it is incumbent on the applicant 23 to meet the criteria of the variance. He said it is important to clarify that this does not change 24 anything substantive for what an applicant must do. 25 John Roberts said the only disagreement is in the highlighted section; the burden of 26 persuasion, and the rest of the paragraph needs to be in the additional places where it has 27 been put. He said the burden of persuasion language does not change anything. 28 Commissioner Dorosin said, given that it does not change anything, and it actually may 29 provide some legal support for the ordinance, it is worth keeping in, potentially with some 30 additional explanation that nothing has changed. 31 Commissioner Greene said she came to the meeting with the intention to leave the 32 language in, but since nothing has changed, and it is fine with John Roberts to remove the word 33 "persuasion", she is now comfortable taking it out. She wants to avoid unnecessary confusion. 34 Commissioner Dorosin asked if staff could read the highlighted sentence. 35 Michael Harvey said this is on page 86, section 2.10, page 92, 2.11, and page 134, 36 section 5.3.2, and the disputed sentence reads: "further, the applicant shall have the burden of 37 persuasion on those issues" (this is in a link, not in the abstract). 38 Chair Rich asked if the burden of proof comes before the burden of persuasion. 39 Michael Harvey said yes. 40 Commissioner Price said she would be in favor of the changes, other than the 41 pawnshops and the payday lending. She said she also agreed with the hypocrisy pointed out 42 by Commissioner Marcoplos earlier. 43 Chair Rich said she could be convinced either way. 44 Commissioner Greene said in the Planning Board minutes a member said she was 45 confused about the difference between burden of proof and persuasion. She said the lawyers 46 response was that the burden of proof can be broken down into the burden of production plus 47 the burden of persuasion. She said this is technical lawyer stuff, and this leads her to be more 48 convinced of taking the persuasion language out. 49 Commissioner Marcoplos said the burden of proof covers it.