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14 <br /> Michael Harvey said correct. <br /> A motion was made by Commissioner Greene, seconded by Commissioner Dorosin for <br /> the Board to open the public hearing. <br /> VOTE: UNANIMOUS <br /> A motion was made by Commissioner Price, seconded by Commissioner Greene to <br /> close the public hearing. (Note that, because this is a legislative decision, additional comments <br /> at a later date are permitted). <br /> VOTE: UNANIMOUS <br /> Chair Rich said the Planning Board voted 7-1 about the burden of persuasion, and she <br /> did not want to discount the work put in by the Planning Board. She asked if John Roberts <br /> could explain this a bit. <br /> John Roberts said the burden of persuasion issue is trying to make this clearer in what is <br /> required. He said during a quasi-judicial hearing, the applicant has a burden of proving by clear <br /> or competent material that they have met all the requirements in the ordinance, and are entitled <br /> to their permit, variance, etc. He said part of the burden of proof is that you persuade the fact <br /> finder that you have presented sufficient evidence, and met your burden in complying with all of <br /> the requirements. He said courts do look at the burden of persuasion. He said the opponent <br /> has a burden of persuading the fact finder that the applicant has not met their burden of proof, <br /> and must present evidence as such. He said having the burden of persuasion included, is an <br /> attempt to clarify, but it will not get the UDO thrown out of court, and it is not absolutely <br /> necessary if the BOCC decides to not include it. <br /> Michael Harvey said currently under section 5.3.2 (dealing with special use permits) <br /> there is language establishing a burden of proof, that through competent material evidence and <br /> sworn testimony an applicant is obligated to demonstrate that he/she complies with the <br /> ordinance. He said when he reviewed the UDO text amendment with the Attorney's office, it <br /> was noted that similar language did not exist in sections 2.10 variances and 2.11 <br /> interpretations, so it was moved. He said the issue then came down to establishing, what the <br /> state statute already spells out, which is there has to be a burden of persuasion. He said the <br /> applicant does have the burden to convince the board he/she is before that the evidence <br /> presented is sufficient for the permit to be presented. <br /> Michael Harvey said the Planning Board did not understand how the term persuasion <br /> was going to be used, and was seeking a standard. He said much of this is summarized in the <br /> Attorney's memorandum (attachment 4), which he read. He said there is concern over legal <br /> sufficiency and staff advocated to leave the language in, as the County's obligation is to insure <br /> there is an ordinance that withstands legal muster. <br /> Commissioner Marcoplos said in almost all cases, the applicant would be able to make <br /> the case, and only few would need more explanation, information, or the services of a lawyer. <br /> Michael Harvey said there is no provision in state law or in the UDO that mandates an <br /> applicant to hire an attorney. He said he feels ethically obligated to advise a person going <br /> through a quasi-judicial process to consult with or hire counsel. He said if one does not hire <br /> counsel, it does not mean there will be an automatic denial; and in his tenure there have been <br /> several special use permits that were denied, despite having an attorney. <br /> Commissioner Marcoplos said the simplification of the UDO makes it easier for residents <br /> to persuade. <br /> Michael Harvey said he would hope so, but does not want to discredit the Planning <br /> Board's observations that they have a concern about what this language does. <br />