 We are live Good morning everyone. I think we have most of our board members here for our training. We are thankful to have Adam Love Lady here from the UNC School of Government and he will lead most of the training at the end of his session I will do a brief training on design districts per request from board members and We should wrap up around 12 to get you out in time for lunch If you have questions after Adam speaks he's going to do some pauses in the middle of his presentation where you can ask questions or at the end You can also use the chat function and we will have something monitoring that but feel free to raise your hand and ask questions throughout That let's go ahead and thank you again, Mr. Love Lady for joining us today Thanks so much, Jessica and thank you all. It's a delight to be with you. What a fun way to kick off a Tuesday morning talking about quasi-judicial procedures But you're serving on the board of adjustment. So that's that is your definition of fun. I'm delighted to be here with you today I'm going to walk through some of the procedures some of the requirements some of the standards of quasi-judicial decision-making in North Carolina As Jessica mentioned, I've got some kind of spots as we go where I've built in some discussion questions and some chances for you to raise questions I want this to be helpful to you. And so if there are particular topics that we need to dig into a little more I certainly welcome that But also want to make sure that we can cover kind of the breadth of the quasi-judicial procedures and standards And so try to build in some time for us to kind of focus those questions around discussion So with that, let me kick things off. Let me talk a little bit about who I am and what we're going to try to do today So you may or may not know the School of Governments where I work it is a school at UNC and we do have a Traditional academic program of masters in public administration But much of our work and almost all of my work is outwardly focused working with Communities working with government officials working with boards like yours Doing research and writing and training to help government officials provide good governance in North Carolina. And so This is exactly what we do trying to work alongside you as community leaders and government officials trying to make sure that we're doing the best we can for The citizens of our communities now for me particularly I did my undergraduate degree at Auburn University I then spent some time working in historic preservation Yeah, for a consultant in Asheville as well as a Main Street Association in Shelby I then went back and taught second grade with Teach for America in Atlanta And then I went back to school myself and got a dual degree in city planning and law at the University of Virginia I was in private law practice for several years in Richmond before I had the opportunity to come here to the School of Government I've been here about nine years now and my area of focus is land use law and planning questions of What is the legal framework for communities to regulate land uses and development in North Carolina? but I've got colleagues that cover the whole range of government topics from tax policy to management to Elections policy and the whole range of state and governments as state and local government functions Now to be sure I am a lawyer But I'm not your lawyer. I'm here as a trainer today I'm here to be kind of a third-party neutral advisor about the technical requirements But Durham has a great city attorney's office with very Smart sharp capable lawyers. They know your ordinances. They know your situations. They know what's going on with your board I'm not trying to step in as your legal counsel indeed. I couldn't step in as your legal counsel There will certainly be really good questions that y'all have today That are specific to what's going on in Durham or the ordinances in Durham. I can speak to the general framework. I Can't speak to the details of particular cases. You're facing or the ordinances that you have And so that's there there will be times when I say that's a really great question You should check with the city attorney's office. I'm not trying to step into their shoes or or step on their turf With all of that said I can speak to the broad framework North Carolina has very clear rules and procedures about how quasi-judicial boards operate David Owens and I put out a book a few years ago Specifically on this this quasi-judicial handbook goes through the rules of the road for Boards of adjustment for preservation commissions for other boards that are making quasi-judicial decisions also the Updated statutes in North Carolina chapter 160 D is now where all the planning and zoning stuff is and there are specific Statutes within chapter 160 D that outline the role of the Board of Adjustment the standards for variances How a an appeal of a staff decision moves forward? And so I will definitely speak to that legal framework and what is or is not allowed under the North Carolina kind of structure that we have Now the way that I've broken down the discussion for today First I just want to set up what are quasi-judicial decisions What is it? We're talking about and why is it different than maybe a decision that city council might make or a decision that the staff might make So I want to make sure that we're clear about what it is. We're actually talking about Then I want to dig into the procedures of evidentiary hearings Both from the courts and from the statutes We have very specific rules about how that should proceed and what the board can or can't do what the applicants and the witnesses can or can't do And then finally, I want to spend a little bit of time at the end To talk about the specific standards for variances and for appeals of staff decisions because those are Specific things that the Board of Adjustment is tasked with now this is a lot to cover in one morning. I recognize that and a Marathon through quasi-judicial procedure is not everybody's idea of a good time I am going to as I mentioned build in some discussion problems and Kind of chance for for questions We'll also take some breaks as we go to stretch our legs get a fresh cup of coffee and not think about quasi-judicial procedures for a few minutes Just to keep ourselves fresh. All right. So with that, let's jump to quasi-judicial decisions and what are they? Thinking about the types of decisions that local governments make about development. There's kind of this the spectrum Spectrum of the types of decisions that we make now on one end are the legislative decisions These are the policy decisions that the elected officials make when they adopt the ordinance when they adopt the Comprehensive plan when they set policy for the city or county. They're making legislative decisions And importantly when they when they rezone a piece of property when one when the map is changed to Change the zoning applies to a piece of property. That's amending the ordinance. It's a legislative decision When the governing board and it's almost always the governing board makes those legislative decisions They've got pretty broad discretion Not unbounded discretion. They can't base it on race or religion or ethnicity They have to have some rationale for it But they are making a political decision about what they think is best for the community based on the politics based on their perspective based on public opinion On the other end of the spectrum are the staff decisions the ministerial and administrative decisions This is when the zoning officer or the planning director is taking those big policies that have been set by the governing board and Putting it into action issuing the notice of violation because you can't park your car in the front yard or Issuing the basic zoning permit because yes home occupations are allowed here and you've met the basics team When staff are making those decisions, they're based off of objective criteria The use either is allowed or it's not allowed The parking in the front yard is either a violation or it's not a violation These are basic staff decisions to be made off of objective standards and criteria There's very limited discretion and making those decisions There may be a question of interpretation, but there's not room for the staff to take in public opinion or bring their personal perspective to bear on that They're they're tasked with administering what's already been decided In between these two are the quasi judicial decisions Now with quasi judicial decisions The big broad policy has already been set by the governing board the legislative decisions have already been made but The standards that apply to this project have some need for judgment and discretion A great example is variances when a variance is issued It's because they the applicant has shown that there's an unnecessary hardship Well, there's some subject subjectivity to that, right? We can't get out the tape measure and decide if there's unnecessary hardship or not We've got to take in evidence and consider it and weigh it There may be evidence going both ways and we have to decide well, which which side do we think the weight of the evidence is on? So there are standards in place that we are applying, but there's some room for judgment and discretion There's some need for taking in evidence to decide these The big examples of quasi judicial decisions that the board of adjustment deals with are variances and appeals of staff decisions Special use permits which are common in some jurisdictions are also quasi judicial When the preservation commission is making decisions about certificates of appropriateness That's also an example of a quasi judicial decision Now there is some discretion to take in the evidence and make those determinations But it's not the broad discretion of legislative decisions. We're not setting policy We're not deciding based on our personal opinion or public opinion whether this project should be approved or not We're looking at the standards and the evidence and deciding if the if the applicant meets that standard or not Now thinking about it a little more technically these quasi judicial decisions They are the process of adjudicating how the general law applies to a particular situation Based on an evidentiary record And so for the board it's got these key tasks of Taking in the evidence and determining contested facts And then applying those standards that do require this judgment and discretion We talk about this as being quasi judicial. It's like a court decision And as you'll see as we kind of go through the procedures that are required The courts have treated this like a court decision that the requirements of due process are heightened The requirements for impartial decision makers are heightened And so it is like a court decision now. You're not wearing robes. I don't think I haven't been to a Durham board of adjustment meeting I don't I don't think you're wearing robes Um You may not be trained as lawyers. You're not required to be But this is an adjudication It is a taking the general law and deciding how it applies to a particular property It involves property rights. It involves the regulation of specific properties And there's heightened due process to go with that Now sometimes we want to see ourselves In the Andy Griffith model Kind of a folksy dispenser of justice Kind of working things out and figuring out how we how we think the fake things ought to go And that's a nice way to view ourselves. We want to be kind to the neighbors We want to you know be lenient when we need to be lenient strictly need to be strict And it would be nice to view ourselves that way But the courts don't view us that way the courts view us more in the Perry Mason courtroom kind of way Um, where we've got to actually Focus on the evidence focus on the standards base these decisions not on a folksy notion of right and wrong but on what the law says and What the evidence says? So with that, um It's it can put us into a difficult position at times Um We're as boards of adjustment as other boards making quasi judicial decisions We're limited in many cases Our hands are tied We have to base the decision on the evidence that's in the record The standards that are in the ordinance and that's what gives us our decision Even if we think, you know, it would be nice if we could grant that variance Or it'd be really nice if we didn't have to grant this variance or grant this appeal We can't base these decisions on our personal opinion or the opinions of of The general public it's based on the standards and the evidence um Importantly When we've got an applicant before the board um We might think you know what we should really amend our ordinance we need a different policy about this It happens all the time Maybe there's big broad policy things that you think ought to be different Or maybe there's just this little thing in the ordinance And nobody knew it was there until this came case came forward and there was just we we messed up We didn't write it the way we thought we'd write it when we adopted it last year There's this little typo or mess up or whatever We might think that the ordinance should change That's great and you are welcome to run for city council and propose amendments to the ordinance But the board of adjustment is not in the business of changing policies and so The quasi quasi judicial decision is not the opportunity to change the standards or to set new policies It's taking the standards that are already there and applying those to the case that's before us We might also wind up in a situation Not uncommon these days where There's an applicant before us and they have shown up and they've made their case for why they should get this permit And there's a whole bunch of neighbors that are in the back of the room or in the back of the zoom meeting um all with matching shirts and pitchforks and Um torches saying we need to turn this project down. This is awful. It's going to ruin our community Oh, what was me? This is just going to be this is going to be horrendous um That public opinion is really important for legislative matters It's really important for the elected officials that are making decisions about broad policy um and legislative decisions in the jurisdiction But when it comes to quasi judicial decisions, we're not basing the decision on general public opinion for or against this project The decision has to be based on competent substantial material evidence Um, that's properly in the record and we're going to talk about what that means What kind of evidence can we consider and how does it get into the record? All right So that's kind of the framework of what we're talking about these quasi judicial decisions that are different than legislative decisions They're different than administrative decisions Now let's talk specifically about About the evidentiary hearings the hearings. We're going to hold to make these decisions And i'm going to break this down into a few different pieces first the kind of considerations before the hearing happens And then running the hearing itself And then making the decision and what I suspect we'll do is we'll probably go through We'll talk about Uh, the considerations before the hearing would I've got a point there to discuss and we can ask some questions Um, and then we'll probably take a break after that and then we'll come back to do the kind of Other pieces of the hearing the procedures and the decision all right So first thinking about those the pieces before hearing now there is statutory requirement by the state for Notice to go out before these hearings happen Now under the state law there has to be mailed notice to the owners of adjoining property Also to the owner of this property that's that's the subject of the Of the application the variance the appeal And if the if the applicant is different than the owner then also the applicant There's also going to be posted notice one of those Um, you know yard signs that you see as you're driving around town with a big z on it or a boa on it Depending on the community. They have different letters to put on there But a posted sign to let passers by know. Hey, there's going to be a hearing about this property And here's where you can get more information There are specific timelines for when that mailed notice has to go out and when that sign has to be posted um The general the general framework is it's this window of 10 to 25 days before the hearing There may be additional notice requirements under your ordinance And I don't know Durham's ordinance well enough to know if there are extra notice requirements But if there are then you also have to to do that There's a requirement even though it's not required by state if your ordinance has said we're going to do this Then there's a procedural obligation to do that So that's the the basic notice requirement for making sure that the general public knows this is going on and and especially the neighbors close by Know what's going on at the start of the hearing or excuse me before the hearing itself There's going to be some evidence. There's going to be an application for whatever the request is Oftentimes, there's going to be some staff analysis of that application um Giving additional context and additional technical analysis of how this project meets standard or not There can be situations where board members may be making site visits to sites Um, I'll talk in a minute about some of the the problems that can create They're not insurmountable, but there can be benefit and protection in having staff go out to the site and document the site rather than having board members kind of Stopping in here and there but there can be situations where site visits are appropriate and that can be managed now the The statutes already required and the courts in recent years have reiterated That you as a board member are called to be an impartial decision maker In quasi judicial proceedings No board or council member should appear to be an advocate for nor adopt an adversarial position to a party Bring in extraneous or incompetent evidence or or rely upon ex parte communications when making their decision As a board of adjustment member you are like a judge quasi judicial like a court proceeding And you're a third party neutral Deciding whether this project meets the standards or not Have to set aside personal opinions about this project or the broad policies that might be at play and Decide does this project meet the standards or does it not based on the evidence that's been presented? um The board is not to be an advocate for the project kind of Leading along and making sure that the the applicant has crossed their teeth and died of their eyes nor should the board member Stand in for opposing neighbors and kind of act as an adversary This is a it's a position and a role of the third party neutral decider Not as an advocate for or against the project And with that in mind board members for quasi judicial decisions must be impartial Um a board member cannot have a fixed opinion that is not susceptible to change If you have if you are so Four or against a project you've already made up your mind Um, you can't be an impartial decision maker for that quasi judicial decision And you would need to step down and recuse yourself from that case Now to be sure this is in many cases self-policed. I don't know what's in your head I don't know what you think about a particular project um But if you know um, if you are honest with yourself that you're not open to new evidence You're not open to hearing the case then you need to step down It is also true that you should and can and absolutely I encourage you to Show up with some idea and notion about this project You should show up having reviewed the staff materials and the application to know what we're talking about and know You have a sense of well, does it seem like this project should get the variance or not? Does it seem like staff made the right call on this or not? Um, you absolutely should review material ahead of time the staff packet For the meeting packet. You should have a sense of the project Ready to ask good questions ready to hear new evidence ready to weigh that evidence with the evidence that's already been presented to make the decision But if you've got now wouldn't happen in Durham, but imagine other nearby towns I'll offer chapel hills. I shouldn't offer specific museum. Um You can imagine a board member making a quasi judicial decision who has in recent weeks written op-ed opinions in the paper Um for or against a project or has written on social media about how they favor or disfavor a project Or they have spoken out. Um, maybe they're running they're running a campaign and Seeking be on city council or county commission and they've spoken out for or against a particular project If that was the case, they have shown bias and they likely need to recuse themselves from that particular case now Um, that it's it's rare. It doesn't happen a lot But because you're called to be an impartial decision maker, you've already staked out where you stand on something You have bias and you can't be that impartial decision Separate from that question of bias are the other questions of conflicts of interest You may not have said anything about this project. You may have been completely quiet Not shown any bias, but there could still be conflicts of interest that are apparent and you would need to recuse from yourself If you have a direct substantial and readily identifiable financial impact from this project You've got a financial conflict of interest and you need to step down from the case Um, if you own the property that is uh, a subject of this case Or if you're the immediate neighbor or the business partner, uh for this project, then you have a financial interest and You need to step down Even beyond that If you have a a close family business or associational relationship with one of the parties With an affected person then that's going to be a relationship Um conflict of interest and you would need to step down from that particular case now Conflicts of interest are all there's gradations and we can come up with a thousand examples of okay What is a close association relationship? Well, we go to church together, but we don't sit on the same queue We knew each other in elementary school, but we haven't seen each other in 30 years We play golf every week yet. There's there's all kinds of variations. We might come up with that I think the the biggest thing is be aware if you have a close family business or association relationship That's been identified as a conflict of interest under the statutes And you would need to at a minimum coordinate with staff and the city attorney's office ahead of time to evaluate Is this does this rise to the level that I need to recuse myself or not? Also worth noting if there's a question as to whether a conflict of interest has risen to that level Um, and if a board member says no, I'm good Sure, we you know, we we hang out every weekend My family hangs out every weekend with the with the applicant, but I can approach it impartially If there's a challenge to that if uh, one of the parties challenges Challenges that then it would be for the remainder of the board to vote on whether that that member has a conflict or not The other piece of this conflict of interest is quite kind of building off of the impartiality and bias discussion If a member has undisclosed ex parte communication Or is biased That would rise to the level of conflict of interest and that person would need to recuse themselves Now what is ex parte communication? This is the silly lawyer way to refer to Talking to the parties outside of the hearing taking in evidence outside of the hearing And that could be Phone calls or emails it could be bumping into the applicant at the grocery store or bumping into the neighbor at the gas station And having a conversation about this case It needs to not happen And if it does happen it needs to be disclosed at the hearing the The problem the the underlying issue here is a couple of things one is If one of the board members is having kind of side conversations with one of the applicant It suggests that maybe there's a relationship there. There's some impartiality there. There's something beyond just this information So there's a question question of impartiality but also We want the board to be making the decision on the same information And so if one board member got really key information from a phone conversation with the applicant and they're basing their decision on that Well, we need the whole board to have that information Also, any of the parties need to have access to that information so they can question it respond to it Challenge it present their own evidence that may that may be an opposition to that And so this notion it's all about having all everything kind of in the light of day Having an opportunity for all the board members and all the parties to know what information is being considered and respond to that information Um, and so this is all about good governance and sunshine for our decisions All right, so those are some some of the issues that may pop up ahead of the meeting We're going to have an application that comes in some staff analysis We're going to have questions about um conflicts and x parte communication Um about impartiality and whether or not a board member can participate or not What i've got next is i've got a few um simple little scenarios and what i want to do is T those up for us to ponder and think about I'm going to invite you to um as we go take yourself off mute and give me some feedback as to what you think of These scenarios, but then also i want to see what questions you've got So we'll kind of walk through these simple little scenarios and then i want to see what questions we've got about This notion of quasi-judicial decision-making and these issues that come before the hearing so Three scenarios before the meeting. Let's see if we see any issues here or remember alan and i did not check the name I should have checked the names ahead of time Um, these names i already had in the slide and i'm not referring to any of you personally So if if i have overlap names start with that Okay, board member alan reviewed the application materials. He read the staff report drove to the site so the applicant could show him around So that's one see if we've got any questions with that Uh at a recent rotary club meeting board member barbara gave a presentation about downtown development Downtown needs any investment it can get i can't wait to approve the variance next month. She said And then oh i've got four Board member chris owns property nearby He met with representatives of the neighborhood to discuss the proposed variance And board member debba didn't do a thing. She did not visit the site. She did not review the application materials or staff report so Those are the quick scenarios. I've got let's see if we see any issues or concerns with any of these I'm going to stop talking and get a sip of water while you ponder I would dare to say there was issues with all of them All right, mike, why don't you pick one and uh, and tell me what you see tell me what your concern is I mean i can see for sure right um Board member meeting with representatives of the neighborhood to discuss a variance in advance of the hearing I think it's certainly Not appropriate Yeah, so this on on a the talking to the applicant Or hold on i missed which one you're talking about Uh, I jumped down to c but I think you know both a and c talking with the applicant and You know c certainly discussing the the variance Um in advance of the hearing Yep, yeah, so we've got one talking to the applicant another talking to the the neighborhood group that may be an opposition This is taking in evidence outside of the hearing Uh, this is ex parte communication. It shouldn't happen to start if it does happen. It needs to be disclosed um, and one thing that you as board members Canon should do at these days with covet. Maybe it's less of a concern, but uh, even so Be having a ready response to those community members who reach out to you by phone or email who bump into you at a social event Who wants to bend your ear about a particular case? Having a ready response to them is a helpful thing something along the lines of I really want to hear your concerns and your issues for this project But I want to make sure the whole board hears your concerns and your issues Please come to the hearing it's on such and such a date or please reach out to staff and coordinate with them Now to be sure one of the things that is challenging is Those neighbors may not be experienced or equipped with the formality of quasi-traditional procedures And so when you're having that exchange with them, it's a time to alert them of quasi-traditional Proceedings and evidentiary hearings are different than general public hearings. They're different than legislative hearings and so reach out to staff Find out how to participate and and how to prepare for that All right other issues that we've got with what's going on Ahead of this meeting It is problematic. Yes There's nothing illegal here There's nothing with regard to due process here. It's just a board member that's probably ready to move on to something else Um As board members now you're all busy people you've all I'm sure got lots of obligations For your professional and personal lives and you are kind enough to give your time to your community and serve on the board of adjustment And when an applicant comes before you they're seeking Approval from the government. They're seeking to extend their property rights. They're seeking to move forward their economic development They're seeking to add something on to their how this is an a key and important issue for them And it's incumbent upon us as public servants to show up Ready to act to show up informed and knowledgeable having reviewed the materials having A sense of the project and what questions may come up Now you don't need to show up with all the answers. You can't show up with a fixed opinion But you can and should review the materials know what's the nature of this project and know what good questions to ask Know how this ought to be analyzed. Know what issues you're really concerned about Um, so that you can focus on those during the case. So yeah debora Uh, it may be time for debora to find other volunteer opportunities in the community and um and let someone else who's Need to put in the work of being Okay Hey, adam, this is chad. I I have a question. It doesn't pertain necessarily to the Any of the four scenarios you have on the slide, but it is related to the material that you've covered up to this point go for it so I am looking for some better guideposts for myself to keep myself between the lines if you will sometimes we get cases and You are wanting to help this applicant explain their Justification they may or may not understand The criteria they may or may not understand that it's necessary for them to demonstrate compliance with the criteria and Can you give us some some resources or real-world examples where Advocacy on the part of a board member or opposition on the part of a board member um is is You know, maybe beyond the pale outside the lines Crossed over into you know inappropriate levels of advocacy or opposition I I really struggle with this line And uh, I would really I think it would it would certainly benefit me to understand more about When we say don't be an advocate. What do we mean? And when we say don't be an opponent. What do we mean? So it's a great question Chad. Thanks for bringing it up. Um, I want to approach it from a couple of ways One is the board can and should be an advocate for getting good evidence the board can and should be an advocate for Clearly focusing Yourselves and the parties on the standards at play There's there is nothing wrong with focusing the conversation and focusing the evidence on Here's the standards that that have to be met And what evidence is available for this? So I would encourage you to Take steps In the script that the chair or the vice chair uses to go through the meeting In the application materials that guide the applicant as to what information they're providing In the the staff support that's given to an applicant kind of a pre application meeting for to clarify This is the stuff you need to provide I would encourage you to take any and all of those steps The the way that so that the court case that I quoted quoted from there's very clear about not advocating for or against um The specifics of that case there was an applicant who showed who was seeking a Special use permit for a hotel in downtown Asheville They had made their case. They had their traffic engineers. They are praisers. They are Architects and engineers their lawyer. They had presented sufficient evidence. A reasonable person would look at it and say they meet the standards But the council members that were acting in a quasi judicial setting or as quasi judicial set decision makers um They were asking detailed questions about the processes of the technical analysis for traffic and for appraisal But there was not any evidence in opposition to that They were really that the court's view. They were stepping in as the opponents um to that project and not seeking Good evidence and applying the standards but seeking to undermine the evidence that had been provided And the court plainly frowned on that struck it down and sent it back to for that permit to be granted Now one of the one of the challenges that that happens is That context Was a very large project a very well funded project with lots of experts Many of the variances or appeals that you may face it may there may be experts and attorneys involved But it may also be a homeowner who's shown up saying look i'm trying to you know Extend this house or build this driveway or push this deck into the setback and um Finding ways to help them focus on here's the standards and here's the evidence that needed I don't think that's running afoul of what the court was concerned with of kind of Stepping in politically to advocate for or against a certain thing happening At the end of the day you still have to base the decision on the evidence that's there And if you have a good application Of a kind of application form and if staff has had that pre application meeting to say here's the evidence that generally needs to be provided If the board has asked good questions and sought clarification and tried to get them To provide the evidence that would allow a project to be granted If the applicant's still not there if there's not evidence in the record to support the decision You can't say well, we'll give them the benefit of the doubt. Well Um, they were close enough if there's not evidence in the record to support the decision The courts have been clear that you just can't make that decision Thanks. Thanks. I definitely um, this is a frontier issue for me and and want to continue to to Refine my notion about it. I think you've explained well that At least in the ashville instance, you know questioning the The technical prowess of the evidence is is Was inappropriate in that setting. So I appreciate that and it sounded to me I heard you say that, you know Working with a layperson applicant to help them provide the information that you need to make the decision Isn't necessarily advocacy um And so that that's helpful. Uh, and I appreciate that Thank you I would I I would be Would caveat that with there certainly is a slippery slope there um, and uh, where that line is I do not know but there certainly is a line that could be crossed all right, um chat. Thank you for the question and um The what I'm going to what I'm going to do is I'm going to scan over this slide and see if there's others so we've got um Barbara's got a statement Downtown needs any investment it can get can't wait to approve the variance next month Barbara has shown bias right Barbara has kind of staked out where she stands on this project And she needs to recuse herself um And now if this a bit if Barbara was on city council Barbara could have a political stance Barbara may have run on a campaign of we need to revitalize downtown We need to approve any project comes downtown and if that was a A legislative decision for city council to make totally fine But the board of adjustment is acting differently and she can't have staked out where she stands on this project That's showing bias We talked about debora. What about so one final thing and then I want to just open up for more general questions um Chris owns property nearby What are you thinking about that so what? Yeah, so what? So we we may have a question right of of how close nearby um So there certainly can be conflicts of interest financial conflicts of interest if somebody's going to have a direct financial or direct readily identifiable Substantial financial impact from this project So if chris owns Then the property next door and may have benefit or detriment from this project and there may be um a financial interest in the outcome of this matter that would rise to the level of conflict of interest If chris owns property down the streets or two blocks away um Is that is there going to be a direct financial impact? It's going to depend on the scenario. It probably not It's probably going to be hard to if he's you know a half mile away. It's probably going to be hard to show any direct financial impact from that and so This is going to be one of those where I mean all conflict questions are fact specific, but if there's a question It's wise to go ahead of time to the city attorney's office to evaluate. Okay. Yeah, I've got this concern Maybe it's conflict. I don't know but I want to address it ahead of time um and make sure that That I'm above board and that I'm not caught off guard by somebody challenging it. Um at the hearing All right, um other questions before we should before we take a break and then shift to conducting the hearing Other questions about the issues that might pop up ahead of time the issues leading up to the um the evidence here here. Yeah, michael um, so I wanted to touch a little bit about what chad was saying and in when we have like a homeowner come In the past this has happened. Is it is it um appropriate for our board to um postpone this hearing due to them having a lack of evidence that you know meets these uh other criteria, you know to for a variance so You know, we're trying to help them as much as possible And so we'll say hey, you know, you need to come back with some more evidence And then we'll we'll look at it again. Is that appropriate? So the board does have some discretion in um kind of Ordering its business and there can be situations where a case may be tabled until the meeting next month um that might come up if there was Uh, you know, maybe it's been a really long meeting and we haven't really had we're all tired And we we're not making we're not going to make a good decision if we move forward on this So let's hold this over to next month. It may be a special circumstance comes up There's a gas shortage and the applicant is out of town and can't get there and um, so can we push to next month Or there may be a situation as you're describing where um There's just not evidence in the record for us to be to to be making this decision In those situations the board does have discretion of continuing the hearing now a few things to be mindful of um We can't do that for kind of indefinitely. Um applicants have rights to Have a decision made in a reasonable time. And so The board certainly could not kind of hold over a case indefinitely to give the neighbors, uh, You know an incredible amount of time to kind of shepherd their opposition to the project um and similarly If a if an applicant is has been given opportunities just not doing it there There reaches a point in time where a decision needs to be made or We need to otherwise move on from this project But there can be circumstances where Um, maybe the project has changed Maybe the board would really benefit from other specific analysis or evidence to evaluate this project Um, and it can be appropriate in certain circumstances to continue that hearing to the next month I'd just be careful with it being kind of some indefinite option um, especially if it's a contested case and especially if that continuation is preventing someone from getting the decision that they've been seeking um, if it's One homeowner there's no opposition to it. Um, it's just they haven't really gotten all their All the evidence together Then That could be appropriate with with no opposition if it was a highly contested case Um, and it's apparent that the board is just continuing to allow for additional opposition That then would start to kind of shade over towards the concern that the court had of advocating one side or the other Yeah, now this would be just for maybe a homeowner that just doesn't understand The kind of evidence he needs to bring to the table, but thank you. Appreciate that answer Yeah, sure. And I would add to that, you know, it's um, certainly the board Can and should focus on the board's role in this But there's it also goes beyond that of questions of okay, what does the application form say? What information has been provided to the applicants for them to know what inform? What evidence should they be providing? What is this quasi judicial hearing? What is expected of them? And that could be through good application forms. It could be be through pre-application meetings with staff It could be through some sort of coordination with staff ahead of time to make sure that The the applicant is equipped not that the city is trying to to kind of Not that the city is acting on their behalf or Advocating for them, but just helping them to provide good evidence to participate in the process Um, and so they're they're the the opportunities for improving the process. I would say go beyond Um, just the board's role and what's happening in the hearing to the broader kind of process from Pre-application through to the decision other questions on the nature of quasi judicial decision-making or these issues that may pop up Um ahead of time um, if if you think of one Then certainly feel free to throw it in there and I will Take it all the best I can what I would propose we do is take a quick break just to stretch legs and Get a fresh coffee or tea or water or whatever you're slipping on this morning Um, and so let's start back at 10 o'clock Starting back at 10 o'clock and we'll talk about conducting the hearing Thanks y'all. All right y'all Um, at least for the folks that are turning their cameras on you are a remarkably Punctual group. So I'm going to reward you for that and get going right at 10 o'clock Um, so next up shifting. So we were talking about kind of the things we might consider ahead of the hearing Now let's shift to the hearing itself Every quasi judicial decision shall be based upon competent material and substantial evidence in the record The whole point of the hearing is gathering that evidence Now some of it we already had the de application through staff analysis But the reason we're holding a hearing is to take in evidence weigh that evidence and weigh the credibility of that evidence Now what do we mean by competent material and substantial? Um competent is going to be trustworthy and reliable um Evidence that we we trust that we find to be reliable based on The source that came from the questions we asked of that source, whatever else Uh, what is material evidence? It's evidence that matters. Uh, it's related to the standards So an applicant and an opponent might show it with all kind, you know boxes of stuff It's completely irrelevant as to whether this project meets the standards or not. We're not we're not concerned with that We are concerned with material evidence that's related to the standards at play And what's substantial evidence? It's enough that a reasonable person would look at it and say Yep, seems like they meet the standards. Uh, it is sufficient to support a conclusion that the applicant meets the standards Now depending on the case That may be a simple site plan and a written description of the project or it may be technical analysis and boxes and binders of information from all kinds of expert opinion, uh, witnesses It's going to depend on the case as to how much is enough evidence to be substantial um But it it can range but at the at the end of the day Any quasi-traditional decision that we're making has to be based on competent material and substantial evidence in the record Now the record is building over time Uh, the application and the supporting materials from the applicant that's going to be part of the record Um, any of the supporting documents and exhibits that might come in from Opposing witnesses might come in from supporting witnesses might come in from staff analysis Um, that's going to be part of the record part of the information that you can base your decision on Um, the hearing itself the witness testimony the, uh, cross examination the Deliberation all of that is part of the record that we're basing the decision on Um And some of that is going to come in prior to the hearing some of that's going to come in at the hearing Um, but when we're making the decision we have to have support in the record for the decision that we're making Um, we can't just make the decision we want and hope there's something in there Now documentary evidence, um, that may come in in lots of different formats and lots of different, um, forms But that's going to be the written material Um That uh, that may be coming before the hearing through the application The staff report other other documents you may be taking in but also during the hearing Um, there may be folks that are presenting, you know, here's, um additional documentation of standard a Um, and when if and when that comes in it's added to the record But you're going to want it you're going to want some Authentication for any of that that's coming in who who is it coming from? If it's photos when were those photos taken and by whom? Um with what perspective? Trying to document and authenticate What's the source of this and what's shown but also what's not shown? As we open the hearing now at one at one given meeting you may have four or five different hearings And so this may be repeated over several times over the course of one meeting but for each particular hearing Um, it's helpful to have a clear opening that's going to take care of some logistical business up front Uh witnesses have to be sworn in or they have to affirm, um the truth of their statement and so You can have especially when we're doing this in person You can have all of the witnesses come down front at the start to be sworn in together Um Or you can do that swearing in one by one um as they stand up speak The either way is fine. It can just especially if you have a lot of witnesses You can speed up the process a bit by swearing in everybody up front It is helpful to have on a standard on the agenda Handling some business for this hearing The chairperson can describe this hearing What is the nature of this? Um a quick explanation not the three hour explanation i'm giving this morning But a quick explanation of quasi judicial procedures and how they have an insurer hearing is going to run A description of the standards that apply to this project Now that's doing several things the chair opening the hearing and describing here's what we're doing and here's the standards that apply It is a reminder or an introduction to the applicant About what they're asked to do and to say It is a reminder or an introduction to the public and other witnesses that may have shown up and want to give their input About what is the nature of this business that we're doing? And how can you best participate? It's also a reminder to the board Of what are we focused on for this case? What are the standards that that apply? What are the things we really need to be looking at for this particular situation? Also there at the start of the hearing It is helpful and appropriate to have just a standard point on the agenda to invite Um any recusals from conflicts of interest or bias and any disclosure of x part a communication Just make it standard kind of routine piece of the agenda so that there's not the the awkward inner conversation that That as a board member might have Do I want to disclose that email that I got or just not worry about it? Do I have a conflict of interest or not making it routine making it a parent? Helps to just Make it more normal to identify those things Because they do come up It may be that nine times out of ten nobody needs to disclose anything nobody needs to recuse themselves But it becomes a routine of identifying that and a reminder to the board members To be watchful of those things Now I've already talked a little bit and distinguished some between witnesses and parties, but I want to dig a little more into that Because it matters, especially with what folks can do in the hearing Lots of people might be witnesses at the hearing But only a few individuals are going to be parties with legal standards The witnesses are going to be the experts that the applicant might bring in The staff people that are standing up to explain this case The interested citizen from two miles away who shows up to every meeting to give their input about whether this is good or not Those are those are witnesses And the board typically most boards allow for folks to participate Most folks most boards allow for even someone without standing to stand up and give their input But those folks are providing Evidence and testimony They're not participating as active Folks with legal standing Now I'll highlight some of the ways that matters and just say Importantly those witnesses The staff person the citizen from two miles away They don't have a right to speak. They don't have Due process rights in this case They are allowed to speak by the board's decision And if you have a really contested case with lots and lots of folks showing up The board can set ground rules about who's going to speak or not. This is different than a Legislative public hearing where anybody and everybody gets their three minutes Um, the board can set ground rules about who you know, who's going to be participating Separate from the witnesses are the parties the individuals that have property rights and due process rights in this matter They have clearly identified Kind of impacts from the outcome of the decision either either for or against They have rights To be heard They have rights to cross-examine witnesses. They have rights to challenge you as having a conflict of interest They have rights to appeal this decision if they don't like the way that it goes They have much more of a stake and they have much more rights in the process um, and so While there may be ground rules to limit Whether or not the citizen from two miles away can speak there could not be ground rules to limit The applicant or the property owner. They have a right to be heard by the board now. We can still have basic procedural ground rules about how long we expect to you know, the applicant to speak or How we're going to kind of run the process They don't get to show up and say you're going to listen to me for 45 minutes and and not asking questions They're not in charge of the meeting, but they do have rights in participating So In thinking about that that difference if the board allows then most anybody could show up and talk about the project Give some documentary evidence speak to the standards and how they are at play here um, but it's only going to be the parties who are Cross have rights to cross-examine witnesses or to object to the participation by a um By one of the board members or object to an expert giving testimony. It's just going to be The parties that can do that So who are the parties who gets those extra rights and participation here? um The way it's laid out in the state statutes based on what the courts have said Uh, the applicant to the person who's seeking the variance or the person who is appealing this staff decision They they are a party withstanding The owner of the property at issue if that's different from the applicant Um, so maybe the developer is seeking the variance, but there's a separate entity or individual who owns the property That individual also has rights in this case. Um, they've got legal standing Um, the city or the county the local government has standing In the matter and especially as we think about a case being appealed The city or county has standing and participating in that appeal There's also opportunity and this is where the lines get a little fuzzier A person who will suffer special damages has Legal standing in this case, but then we get into The kind of factors that the courts have put into place as to who When does that when does a neighbor's interest rise that level of having special damages? The courts have pointed to proximity Um to property value impacts as well as other adverse impacts increased traffic noise and dust vibrations Um, uh, storm water runoff other kind of clear Direct impacts of one property to another through these kind of adverse effects And then there can be situations where a neighborhood group an organized homeowner association or civic group, um, may have standing if one of their members has standing Now this gets into some legal technicalities And these are the kinds of questions that courts grapple with and spend a lot of time on It's not always necessary for the board of adjustment to dig into all those details Most cases there's pretty clear parties and witnesses But there can be situations where this is important. Uh, one particular example would be If there is an appeal Of a staff decision and that appeal is coming from a neighbor Suppose that my neighbor has just gotten a Permit a zoning permit and I think it was wrongly issued I think that the staff It misinterpreted the ordinance they shouldn't have issued the permit And I want to appeal that staff determination Well I didn't get the permit. I'm not the applicant for the permit. So I don't have clear standing I'm a neighbor who's saying, hey, this is gonna this is bad. They're wrong There's gonna be some damage to me In that situation There may be a need for the board at the start of the meeting Start of the hearing to first identify. Well, does this person this neighbor? Do they have standing to bring this appeal before we even take up the substance of the appeal? That's rare That doesn't happen a lot But that is one of the situations where the board would really have to dig into those questions of standing I would say if and when that situation comes up That would be a good time to loop in the city attorney's office and make sure that they're part of that Discussion and deliberation of figuring out how to move forward on that All right, so we've gotten into the hearing we've we've gotten past any questions about parties and witnesses So what's good testimony? What comes from a good a good witness and what are the things that we need to not face our decision on? um The good testimony coming from good witnesses is going to be sworn or affirmed We can't rely on unsworn testimony. We can't base our decision on that The good testimony is to be factual um describing The world as it is providing photos of the situation of the of the context Referring specifically to what the comprehensive plan calls for Is pointing specifically to the site plan or the proposal of this project We cannot base a quasi judicial decision on personal opinion on what the neighbors think about this or feel about this um We can't base it on our own personal opinion as board members of what we think about this or feel about this We're looking for factual evidence That good testimony is going to be focused on the standards again You know the whole reason we're here is to take an evidence specific to does this project meet the standards And so we need to we we need to make sure that the witnesses are providing that And the chairperson can and should have kind of a ready script When the testimony kind of goes off the rails and it's no longer focused on the standards It's no longer factual It's appropriate for the chairperson to step in and remind that person to speak and say look We really want to hear good evidence about the standards If you can tell us more about this project and facts about how it meets the standard or not We want to hear that but otherwise we need to move on It's it's certainly within the board's rights and appropriate to To put up some guardrails to make sure that what the the proceeding of the hearing is focused on the standards and on good evidence it's also good for the those The factual testimony that's being provided That it be supported by first hand knowledge that it be supported and when appropriate by documentary evidence Having that witness stand up and talk about what they saw yesterday or what they have seen in their community over the last year Is appropriate and and helpful them Projecting out into oh, we know what's going to happen in the future Oh, this is going to just going to be bad. You know those people that are going to move in over there that kind of vague assertions and mere speculation about what might be The board just cannot rely on those things kind of projecting out to the future or giving Kind of unsubstantiated fears about what what may be in the future Now there are situations where Opinion evidence is needed. There are situations where we do need to know. Well, what do we expect to happen in the future? What are the projections? Um For this project and its impacts on neighboring properties But when we need those those are coming from experts If there's a specific question about impacts to property values if there's a specific question about impacts to stormwater or traffic or something else That kind of projection into the future that kind of opinion needs to come from a qualified expert Um, who has done the technical analysis for what how this project is going to cause impacts or not now The way that this typically comes up is with regard to property values and traffic impacts If we're talking about property values, it needs to come from a qualified appraiser who has run the comps and can speak to Give a professional opinion about what this will will or will not mean for property values If we're talking about how's this project going to impact traffic going forward I couldn't show up before you and tell you how a project is going to impact traffic I'm not a traffic engineer. I'm a lawyer. Um, and you couldn't rely on what I said about What this is going to mean for future traffic Now I could show up as a neighbor and talk about what traffic is right now I could show up as a neighbor and and talk about what I saw yesterday You know the accident I saw at that four-way intersection yesterday But I couldn't then project out to what the you know how this project is going to Change that uh going forward those things have to come from technical experts And as we talked about earlier from the from the case out of ashville The board members have to be very careful not to step in as um as their own experts in opposition to the experts that are presented um In that ashville case the board was kind of Questioning and undermining the process that the professional experts went through and the court said that was inappropriate that the board Uh board members should step back Take in the evidence that's provided And weigh their decisions. Um now I I think you can and should ask questions of the experts understand the analysis that they did And understand what it means for this project But what you can't do is put on the expert hat and um and assume that that uh kind of Taking a an oppositional role In opposition to the experts that are presented The neighbors can and if you know they they certainly can hire their own appraiser hire their own traffic engineer hire their own storm water engineer And bring that evidence to oppose The the evidence that presented by an applicant But it's not the board's role to step in as the opposition experts And that's where the the ashville city council got into trouble and um Other boards certainly have and can wind up getting into hot water for similar kind of adversarial positions now all of that said Especially for contested cases that can make for a difficult situation where The applicant has been working on this project for months or years They have the resources and the time to hire the experts um to bring in all of the um kind of technical analysis And the neighbors just got a letter or saw a sign two weeks ago And this is the first they knew about this project. They're they're trying to kind of get themselves in order They get an invitation to this public meeting. They're like well, let me show up and give my opinion I think this is awful But then they show up. They find out find out. Oh, we should have hired a lawyer. We should have hired a traffic engineer We should have hired an appraiser But we one we're just the neighbors. We don't have money or time for that and two we just found out about this two weeks ago So how are we supposed to do that? That for better or worse is a part of this process and part of the imbalance of the parties participating um We can debate separately from this session as to whether that's good policy or not But it's part of the process that we have right now And there can be situations like we talked about before where there it might be appropriate for the board to say, you know what? The there needs to be opportunity for the other parties to kind of get their technical analysis in order We're going to continue this to next meeting um But the board cannot be stepping in to say We think that the the applicants Experts are incorrect and we're going to shoot this project down because we know better than the applicants experts That's That puts that can that can put these um cases in difficult positions and put you in a difficult position But that's the legal framework the legal framework we're operating in jakeb. I think you might have raised a hand Yeah, so um, you know along those lines You know so so what what do you have an example? Of when And i'm trying to think of one um when that you know, we could say well We need to give the the the opponents more time to come up with a rebuttal or whatever it is I mean, what what is what what is what is appropriate there because I don't think we know that either It's a great question. I don't have a good answer on um, it's kind of goes back to um, so what we talked about before of Plainly the board cannot have an indefinite continuation Um, the applicant shows up they have put in their application. They've paid their fee. They've they've provided their evidence Uh, they have a right to a decision in a reasonable time At the same time if a if a neighbor has established legal standing and they're saying I need time to Get that, you know get my um details together to oppose this The board has just some discretion to continue that for another month But it would not be a six month or a year continuation of this um Somewhere in there there's a line Where on one side it's appropriate on the other side, it's not appropriate We don't have guidance from the courts on this question and there it's and even if we did it would probably be one of those Law lawyerly judge responses of it's just got to be reasonable Which is wholly unhelpful for us trying to actually make decisions about this So jake if that's a long-winded non-answer to your question we give we give a of More, you know for the cases who which have opposition uh, we give I guess more attention to those than the ones that don't have the opposition for which I don't think is a good practice Uh, but you know, I think we want we try so hard to make the opponents happy Uh, you know and want them to feel good after whatever decision this board makes or whatever the product is that The variants or the special use permit is Uh, and yet, you know, there have been times where I think we have we've gone a little too far to like You know, but the you know, there have been times where the applicant made their case and and we should have moved forward There have been times maybe they had holes in their case and there could have been more information and we have continued to get that extra information but I do know that The next time we hear this Case every time we we've we've uh pushed off a case for a month It's never been more than a month and at least in my time on board um The case is quickly heard when we come back to it a decision is quickly made It's not like the deliberation that that was once uh, you know the month before just it's just an interesting fact about it But I just mentioned that yeah, that's helpful context And I think you know the the one month continuation for the applicant or the one month continuation for the neighbors That would be within that kind of broad notion of reasonable. I think If it was apparent the board was acting in a way to Step in for the opposition That would be frowned upon if the board is Framing it and acting in a way of We're seeking good evidence to make a good decision We are trying to make sure that we are adhering, you know protecting the due process rights of the parties and making a good decision for the public and for the private individuals um, that is perfectly appropriate um, but if and when there's kind of a step into um, to to Act on behalf of an applicant or the opponents that plainly would be frowned on Krista was there. Did you have a question or a comment on that? Yeah, thanks. Um, I mean I I think you acknowledge the struggle that exists between the power imbalance and so sort of Acknowledging that and sort of setting it aside I think what I sort of encounter in in sort of weighing all of this what what we've been talking about is You know if the if the applicant has put on their case, you know, I think the case law supports That they're entitled to the approval. Um, you know, if they've if they have put on the the substantial competent material evidence Um, it that you know shows that they are in compliance with the review factors or the standards Um, you know, and I think that that's what I always struggle with when we have these cases with opposition and the opposition hasn't been able to organize And I wonder if you have any thoughts on that in terms of sort of kind of due process considerations for The applicant if they put on their case And have demonstrated that they're entitled to whatever approval Is it fair to continue the case then? to allow for additional information and I You know, I I also think well, we don't know what that additional information is Maybe it would undermine the the evidence that they've put on and so maybe that's just the foothold that we can rely on Yeah, so it's a great question and um, I will um Mostly just echo the question that you raise There's a tension there for sure One thing that may be helpful in thinking about it is Uh, oh, let me in just a minute I'll switch to kind of the decision making and I will emphasize exactly what you just said If the applicant has shown up they've made their basic case a reasonable person would look at it and say they meet the standards They have a right to the to the permit Unless that evidence is rebutted by the other side with Contrary evidence where the board then has to weigh the evidence If you have a case where applicant has made their basic case And the neighbors show up just to complain and give their opinion about why this is bad The applicant gets their case it gets their permit Whether they get it from you or from the superior court judge, they're going to get their permit But I think there there can be situations where the board may reasonably and appropriately Continue a case. I don't there's not a litmus test for when that is or not But it may help to frame it Christa in a similar way to Suppose the applicant shows up, but they don't make their full case But then they request to continue to next month so they can provide additional evidence. Would we continue that? Maybe maybe not we might say no you haven't met the standard returning it down Um similarly might the neighbors show up and say We need we haven't had a chance to to put the information together to get the technical analysis We need we ask for a request next month There is some discretion for granting that in the same way There's some discretion for granting it for the developer who may say My project's going down in a blaze of glory. I'd rather continue to next month and maybe get an approval than then get denied right now and so There's not a perfect answer. There's certainly a tension between the due process rights of getting an approval in reasonable time and the discretion of the board in continuing a particular case um And I think we may circle back to that here with um with shifting to talk about making the decision itself All right, so we've we've handled the stuff up ahead of the hearing itself We held the evidence area hearing with a perfect opening where the chairperson explained how everything was going to go And there was maybe a recusal or not We had good witness testimony and we identified bad with witness testimony now We have perhaps we've closed the evidence area hearing. Um, or we might leave it open either way is fine Um, if we leave the evidence area hearing open, then if there's questions that come up as we're deliberating We could bring the applicants back up and Or the parties back up and get clarification from them That can be especially important if we're continuing to another month if we're deliberating next month And we didn't leave the hearing open if we're not continuing the hearing itself Then we may not be able to ask those um those clarifying questions Deliberation itself is going to be an open session Um, it's got to be focused on those standards and the evidence that we have It can be helpful again for the chairperson or the vice chair whoever's running the meeting To give a reminder at the start of start of deliberation Here's what the application is for here's the standards that apply. Here's the findings we have to make as a way of both projecting to the audience What is it that what's the business we're doing but also Reminders to us as a board As to what are the things we need to be focused on what are the questions we really need to resolve Now it would be nice especially for a contested case if We as a board kind of retire to the jury room and hash things out and They come back out and say poof. We made a decision But that's not the way it works for boards of adjustment You are a public body. It's making a public decision about private property rights And so that deliberation is going to happen in open session That can mean there may be some difficult conversations. It can mean we might disagree Hopefully without being disagreeable But that deliberation is happening in open session now We touched on some of these before and continued reminder about these things The board is called to take the standards at play for that particular case And decide based on the evidence the record does the applicant meet these standards or not? The board is not setting new policy. The board is not Testing the political wins to see whether this is popular or not It doesn't matter how many people in matching shirts are in the back of the room It doesn't matter How many angry emails that were sent to the whole board in advance of this Or supportive emails were sent to the board in advance of this. It's not a popularity contest It's also not based on the board members personal preference You might say, you know, I really don't think a gas station should go there. I don't think that's the right place for a gas station to go You're not called to bring your personal opinion to the question. It is what are the standards? What's the evidence and that's where our decision comes from? Yep thinking about the burden who bears the burden for convincing the board Generally that starts with the applicant Now your local ordinance could shift that burden, but most ordinances It starts with the applicant for the applicant to show You know, I there's an unnecessary hardship on on my property. That's why I need a variance But once the applicant has made their prima facie case once they've made their basic case There's enough evidence in the record that a reasonable person would look at it and say yep They meet the standard. They that's unnecessary hardship. They should get a variance Then the burden shifts over to any opponents And the opponents have to present evidence contrary to what's been presented by the applicant As as we're just discussing with crista If the applicant shows up and they make their case reasonable person would say they meet the standard And if the neighbors just show up and complain and give opinion about why this is bad There's no question the applicant gets their permit Um, that is the nature of this The this style of decision It's when there's evidence on both sides. It's when there are contested facts and contested findings When the questions really get hard and the board has to weigh And decide Where is the weight of the evidence? Which expert do we find to be more convincing? Which which of these witnesses are most credible and do we trust as um as having the the correct read of the facts? When there are those contested facts it is for the board to resolve those and the decision document itself should resolve those questions Based on the evidence in the record. What makes this situation peculiar for the site? It may be that The applicant says well, this is unique just to me and I should be you know That's the reason I should get a variance then neighbors show up and say no We all have that if you get away with it. Why don't we get away with it? There's there's a contest as to Well, is this unique to the site or not? It is for the board to weigh that and resolve those contested facts to make those findings the fact And how they apply to this particular situation There can be conditions that are applied to quasi judicial decisions like variances Um now It's not wide open There are some other development decisions where there there's more flexibility for conditions but when it comes to variances and special use permits and quasi judicial decisions the conditions have to be related to the standards and related to this project meeting the standards Um, it's it's got to be kind of bringing this project into compliance with what the standard standards require um That may be Some extra vegetative buffering to minimize the visual impact of what's being allowed or it may be some additional design consideration to address how this How this particular allowance or variance is going to impact the nearby properties Um, it's not going to be kind of a wide open wish list for the things we'd like to see in Durham Um, we're not just going to kind of tack on Any and all conditions it's got to be specific to this project and this project meeting the standards When it comes to voting, um, so we've deliberated. We've gotten to a point. There's a motion to approve or deny For most decisions relating to development and for most quasi judicial decisions It's just a simple majority that's needed And so for us an appeal of a staff decision. It's just a simple majority Um for that determination But when it comes to variances specifically, there's a requirement for a four fifths majority That's a really high bar And it means that in order to get a variance the applicant really has to convince the vast majority of the board That they have met the standards It also means that if there is a board member that's out this week if there's a If there's a board member who's sick or on vacation um, that can really play into the calculation and can really Impact the ability of the applicant to get there to get their Their approval. That's why many boards of adjustment have alternates And i'm not sure of the specifics on durham as to the structure of the board But many boards do have alternates in place to address that situation where you have somebody out The alternate can step in To make sure you've got a full complement of the board and make that four fifths majority achievable They're also for these i'm not going to dig all the way into the weeds With regard to the calculations, but there are details about the calculations of of For these majorities the general the general notion is A board member who's merely absent. They're out sick or their own vacation They still count into the calculation of the full board But someone who is recused for a conflict of interest or someone who who is Or someone who is like a seat that's open would also have a Would also not count into the calculation and krista is giving some very important clarification. Thank you krista in the chat box This the city charter does Have a provision for three fifths instead of four fifths For durham and still, you know heightening that heightening that level of majority depending on the size of the board, I guess But an important clarification there that it is for durham. It is three fifths Also, a chance there to highlight I'm talking today about the broad legal framework within the state But it's also true that through the city charter through local legislation Durham may have special provisions with regard to notice with regard to the vote with regard to who can participate With regard to any number of things And so I'm very much framing my discussion around the the general legal framework for the state And I welcome krista or any others to provide some clarification about how things may be slightly shifted for for durham Well adam In in durham. We have sort of a split because the county And they're often county cases We we go along with the you know the four fifths requirement And so it just depends on what jurisdiction since we have a a joint Planning department. So it just depends on what jurisdiction whether it's county or city That applies Great. Thank you, brian more clarification further complicating the task for The durham board of adjustment You you'll already have plenty to handle and then changing calculations for majorities extra fun All right, so thinking then about we've we've had deliberation we've taken a vote There is a need for a written decision document A the decision is going to go out to the applicant go out to other parties of interest Now there may be a draft decision Drafted ahead of time or it could be just drafted after the case after the case is done the The Excuse me. I lost my train of thought if it's going to be drafted ahead of time There may be kind of an a and a b kind of approval or non approval But oftentimes it's appropriate for that to be drafted shortly after the meeting to reflect the deliberation to reflect the evidence that came in and Reflect the decision and conditions that may be applied And that could be drafted by staff or it could be drafted by board members themselves depends on kind of your local procedure And how that's organizationally how that's handled It does need to be something different than the minutes Um, it's not just uh kind of a reflection of the meeting that happened. It is an actual document to reflect Here's the decision we made prove or deny or approve of conditions Um, here's the evidence that really mattered to us. Here's what we based our decision on Here's how we resolved the contested facts and It can also give information to the parties about next steps Whether that's setting an effective date for when this is effective options for appeal if they don't like the decision that that they have Now the the rule has been that this needs to be Signed by the chair or authorized member And that is still the case. There was a slight tweak within chapter 160 d That implies that this decision document may need to come back with the minutes next month for approval That's been a question. Um, that's popped around for lots of communities I don't have a good answer on it my what I've gathered from those who drafted chapter 160 d was it was not intended To require an approval of the decision document next month But looking at the plain language of the statute one certainly could argue that needs to come back to the board next month That's one that we'll be monitoring and kind of working out as we go something. I wanted to flag Especially for those of you who may be involved in drafting and and finalizing those decision documents The notice of the decision once we've got that document That's going to go out either by email first class mail or personal delivery or a combination of those And it's appropriate for staff and indeed is required for staff to certify for the record when that went out So that we have clarity about the the clock ticking for any appeals of this decision All right, um, if there is appeal That appeal is going to go to superior court and The time window for appeals of decisions the board of justice is going to be 30 days from the effective date Of that decision If a board of adjustment decision goes to superior court Superior court judge is not it's not a new trial Superior court judge is not taking in lots of new evidence and kind of hearing from all the witnesses The superior court judge is really acting like an appeals court judge and look taking the record That's that you based your decision on taking the decision document And taking the legal arguments from the parties and making a Decision did the board follow the procedures that it's supposed to follow Did the board have evidence in the record to support the decision that it made? Did the board follow the laws and rules for quasi judicial decision making? the spirit court judge is Not Looking at if I was the board of adjustment would I make a different decision? Superior court judge is determining. Did you follow the right procedures? And is there evidence to support the decision that you made? Okay, so another kind of a few simple scenarios for us to ponder and Then I also want to welcome general questions about this process of holding the hearing and making the decision So I want to think about evidence and what evidence we might consider and base a decision on what evidence we would not So we've got a petition signed by 10 neighbors opposing the variance We've got testimony from the applicant's pastor stating that the applicant is a good person We've got a site plan and documentation to show the ordinance is peculiar peculiarly Onerous on the applicant's property. I should have not included that word. So I wouldn't have had to read it um testimony from a neighbor about how if granted the variance will cause toxic impacts on groundwater and destroy critical habitat all right, so you've just had a variance hearing All of this evidence came in through the course of the hearing um Let's think about what evidence could we rely on what evidence could we not rely on and why Adam this is chad. Can I ask a question? You just did but go ahead with a thank you sir. Um Item d so this kind of shines a light on one of the challenges that I have a lot of the time um And it turns on this issue of personal opinion versus factual information. So we've got the neighbor who said gosh You know this variance is going to cause toxic impacts on groundwater and destroy critical habitat. Okay so, you know Let's just go with your scenario and say we've gotten testimony from two different neighbors on this topic one neighbor is a Automechanic for a living and doesn't really get involved too much in groundwater and habitat protection So yeah, clearly they're not an expert. Maybe this is opinion. Maybe it isn't Let's say the other neighbor is a toxicologist who works for the epa But maybe didn't tender You know a resume maybe didn't Attempt to establish themselves as an expert witness on the subject of toxicology But makes this point. Hey, you know, I think this You know this decision will result in in these toxic impacts on groundwater um, can you enlighten us about That scenario, uh, I think everybody understands the automechanic Scenario that's probably more in the realm realm of opinion This sort of toxic retired toxicologist person who didn't tender themselves as an expert Where does you know? Where do you slot their their their testimony that yeah, indeed this variance would cause toxic groundwater? How do you navigate that? That's a great question. Um, and it's specifically why I offered this list of of scenarios because these are scenarios that come up and um So you're you you post it as a question beyond these but it very much fits in with D so what the courts have said with regard to um opinion testimony and specifically opinions about technical matters What's going to be the traffic impact? What are going to be the property value impacts? What are going to be the stormwater or toxic or toxicology impacts of this project if it's approved? Those that evidence if we're going to rely on it has to come from an expert And it has to be supported by documentary evidence that are basing their professional opinion on And so if the NC state grad traffic engineer shows up and says You know, here's my qualifications. I've been doing this for 20 years And in my opinion traffic ain't gonna be a problem That's not sufficient. There needs to have actually been some Technical analysis to base that public that professional opinion on similarly in your scenario The epa toxicologist who shows up and says I've been doing this for 20 years. Here's my you know, here's my resume um And I can tell you uh, this is going to destroy habitat and impact groundwater If they do not have the documentary evidence to support that professional opinion It's not evidence that the board could rely on to base its decision Now, uh, and and I agree with you like the the auto mechanic lawyer Teacher homemaker showing up to talk about toxic impacts. Um, they wouldn't qualify as an expert from the start Um, and so we couldn't rely on that now A really tough question that plays into this um And I it it's it's a tough question that I don't have a good answer for Coming out of the the new kind of case law around How much can we rely on um experts and how much can we question experts? Um, suppose that the neighbor shows up and raises these concerns But there's no evidence from the applicant to address these Or there is evidence, but we've got questions about it um One of the things that is really challenging to figure out right now is how much could the board take this question um and not not to say This neighbor has given us evidence to base the decision on but we now have new questions to ask the applicant applicant Have you addressed the the impacts to groundwater? Have you have you addressed? Have you done any study of the critical habitats in this area and what the impact will be? um There certainly the board is called to weigh evidence ask questions and Kind of dig into the details But the the recent case law also suggests that the board can't put on the expert hat and pretend that they know better than Experts that have been proffered by the applicant um And that to me raises really challenging questions about how far can the board walk to questioning the experts and um questioning especially the methods and the procedures of the experts I don't have a good answer on that and I wish that I did and uh, but it is one of the things that I think Boards across the state are really grappling with right now Um, but circling back to answer your question specifically the auto mechanic Um would not be an expert would not qualify as an expert The nor would the lawyer teacher or anybody else. Uh, that's not qualified um and the qualified expert that doesn't have Technical analysis to base their opinion on we also could not rely on that We would need a qualified expert who has Run the comps or done the traffic analysis or done the toxicology analysis Sure, and and in that instance, it might or might not be appropriate for the board to Uh, grant a continuance to allow that expert to assemble That information, you know based on the the will of the board Yeah, same discussion we had before about the balance there But but who who's who's uh, who has the burden of of convincing the board that it needs to be continued Is it is it is it if the applicant didn't provide ample testimony and and and evidence on that Um So the the board could on its own accord determine we want to continue this for a variety of reasons um, and a party could request that uh, that the board Uh, um continue the hearing. Um, there's not like continuing cases for the sake of continuing cases And for good faith, I think that's just bullshit. Like I'd rather have if we You know if we're doing it just to save some feelings The subjectivity of someone's feelings is I don't think is applicable here. Yeah, so there's not a general rule on when a board shall or shall not continue um You know, it's kind of a reasonable to standard Um, the board certainly could for itself set procedures or policies as to these are the scenarios when we will these are the scenarios when we will not And then make those determinations under that policy or it could leave it as a kind of A decision for the board to make based on the the fact, you know, kind of the specifics of the case um I would Agree with you that the board ought not be in the policy of continuing cases just for the fun of it or just to Delay a tough decision But I think boards also can and should Um Want to take in good evidence and make the best decision. And so if there are scenarios, and I think there there are scenarios where The board would make a better decision with additional information Either for either additional information by the applicant or additional information by By the by the opposing parties, um, the board certainly has discretion to do that now It also is worth reiterating and emphasizing here um It's still got to be related to the standards and so a neighbor may show up and say I'm really concerned about x that is not written in the ordinance as a standard is not Related to this project at all is not something that we can even base the decision on The board ought not be continuing a hearing to take in new evidence completely unrelated to the standards at play um the reason that this one that this Example d is highlighted is because there are within the variance standards. There's specific language about public health and safety And if there's going to be Significant impacts to groundwater that would be a basis of turning down a variance request If it was um We just don't think that that would be pretty Um, we need to see, you know renderings of this project because we don't don't think that's going to be pretty. Um, unless the unless it's specific to a I mean There are limitations on design restrictions and Unless I mean you're going to talk about design districts later unless it's a kind of a Variance from a design guideline if it's a neighbor say and I think that's not pretty I'm not sure that we would continue for additional evidence on that unless it was there's a specific standard to tie that to All right, great questions So let me I'll run through these real quick. We have uh, I may be meeting a dead horse at this point Um, but I'm going to beat that dead horse. Anyway, uh, that's what I'm here to do So the petition from 10 neighbors opposing the variance one Um, they haven't shown up to the hearing. This is outside of the hearing and so it's not something we could rely on to it's a petition and while that might matter for a zoning A rezoning or a text amendment or other legislative matter A petition here doesn't matter. This is not a popularity contest It doesn't matter how many people signed it or didn't sign it. We're looking at evidence Um, and so the petition doesn't help us and they're just generally opposing the variance We need evidence to base the decision on so there's nothing we can really rely on there This would be one of those situations where it would be helpful. Um Uh, it may be appropriate for city staff to Respond to the person who submitted that petition to give a quick explanation Maybe there's a web page or maybe there's a flyer or something else to say This is a quasi judicial hearing. This is the way to participate and this is when the hearing is Um, because clearly they these neighbors want to be involved. They want to participate But they may need to know, you know, but they may need some um guidance on how best to participate testimony from the applicant's pastor stating that the applicant is a good person Doesn't matter. Uh, we're delighted that the applicant is a good person. We thank the pastor for showing up to this public meeting um But we're not granting a a variance for a person We're granting a variance for a property And this good person could sell the property tomorrow. Indeed. They may already have a contract to sell this property as soon as the variance is granted We're making a decision about this property As with all lane use decisions. It's not a personal matter It is a a question of of this property Whether this property meets the standards where this project and development meets the standards Um, and then site plan and documentation to show the ordinance is peculiarly Hey, I got that time Onerous on the applicant's property. Yeah, we can absolutely look at that information. That's the evidence we need That's the stuff that we're looking for That's what we need to be taking in and basing our decision All right, um, you have let's see trying to go to the next slide You have endured another hour of quasi judicial training Um, you thought that quasi judicial hearings were difficult quasi judicial training is even more so You have certainly earned another break. Um, when we come back I'm going to just kind of quickly breeze through the standards for variances and the standards for appeals of staff decisions And then we'll wrap up this portion and shift over to some actual substance To talk about design districts. So let's take five minutes. Uh, based on my, uh, clock that will be 1104 So at 1104 I'm going to start back to in five minutes Thanks, y'all All right, y'all. I'm going to crank it back up for this last 25 minutes or so on quasi judicial procedures um, and I see a great question from chad on, um, uh, kind of examples of boards that do a good job with the deliberation Um, short answer is I don't have a particular one to point you to um But it certainly I think there's there are several factors that would come into play Um, different boards have different levels of formality and different complexity to their projects Um, the more complex and frequent your projects the more formality you probably need for Um, for the deliberation um And and so, you know other boards of adjustment around the state that are handling similarly complex and contested cases like Raleigh charlotte ashville wilmington would be boards that are dealing with similar scenarios as to what you're dealing with, um There's also there's going to inevitably be some variability between um, the homeowner that's asking for You know for the extension of the deck into the back set the backyard setback Versus the major development downtown that's asking for four different variances um For you know a variety of of impacts And so the the the need even for one board the need for a level of formality and deliberation may vary Um, certainly the board can set up Basic procedures and kind of rules of thumb for how you're going to run the deliberation process If you're going to run through each of the standards one by one Or if you're going to hear from each member one by one as to what they're concerned about or not concerned about um And so there can be ways of kind of setting up uh procedures or even just uh general policies and rules of thumb for how you're going to manage the deliberation um, and that can be helpful the um I but I don't have a specific one to point to to say that's that's the one I wish I did Okay, um shifting now from the procedures that we've been talking about to the standards at play um and You know as I've been saying these quasi judicial decisions, they're all about the standards I want to spend some time looking specifically at um, what is required um under the statutes for these decisions And first I'm going to walk through the variances and then I'm going to walk through appeals of staff decisions and Warning that I'm about to show you some statutory text. It's a lot of text. I'm sorry I try to minimize the text on slides, but sometimes you just got to have some text on there so when we're talking about variances variances um There are times when we are required to grant a variance When unnecessary hardships would result from carrying out the strict letter of a zoning regulation The board of adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following So if the applicant shows that they meet the next standards Then they deserve and need a variance from the standards So what are the things that the applicant has to show? The applicant has to show that this hardship is resulting from the ordinance itself Unnecessary hardship would result from the strict application of the regulation It shall not be necessary to demonstrate that in the absence of the variance No reasonable use can be made of the property So The hardship needs to come from the ordinance the standards that are at play Not because of something the applicant did or because of something unrelated to the to the to the ordinance That second sentence there it's not Not necessary to demonstrate that in the absence of the variance. No reasonable use can be made it used to be the case That some ordinances said you can only get a variance if you can show us you couldn't do anything with your property um, and a few years ago that was amended to say no, it's It's not that it's not a this is not a question of taking. This is a question of is this particular property Unnecessarily an unjust file unjustifiably burdened by the rules different from the neighboring properties now The the applicant also has to show that this hardship is peculiar to this property. That's not just generally shared The hardship results from conditions that are peculiar to the property such as location size or topography hardships resulting from personal circumstances As well as hardships resulting from conditions that are common to the neighborhood or the general public May not be the basis for granting a variance A variance may be granted when necessary and appropriate to make a reasonable accommodation Under the federal fair housing act for a person with a disability. All right, so that's three sentences Let me break them down each one of those First off the hardship is peculiar to this property the applicant needs to show look this is unique to me This is different from my neighbors different from the general public This is an unnecessary hardship Not just a hardship, but it is something peculiar to this place Because of the lay of the land or because of the configuration of the lot or because of how The rules apply to this particular place The applicant can't show up moving on to the second sentence hardships resulting from personal circumstances Or those that are common to the neighborhood or general public may not be the basis of granting permit I can't show up and say You know, I just I really want my master bedroom to be bigger And so you should do that That's not The basis of a variance I can't show up and say Everybody on my street. There's this weird height limit in the ordinance and my whole street We can't build in a second floor. You should change that If that's what they're saying if they're saying our whole street has this well one It's not peculiar to the property. It's not a it's not worthy of a variance To what they're asking for is an amendment to the ordinance a text amendment to change the height limit The board of adjustment doesn't need to go through and give a variance to that whole street They need to go to city council and get an amendment to the ordinance And that may be appropriate Certainly a situations where we find oh the rules are too onerous for this area or this street Um, that's fine, but that's a different process Variances are one off and specific to a property. They're not kind of relaxing the rules For a general area or for a bunch of things If you as a board find we're getting a lot of similar questions like a lot of similar variances We, you know, we got one last month and two months ago I've got two more coming up on the agenda next month and they all seem to be the same thing That might be a trigger to say, you know, maybe actually we need city council and planning board to look at this Ordinance provision and think about adjusting that Now this last sentence, um, this is a new addition to the statutes with regard to federal fair housing act and individuals with disabilities There I don't know how it's structured in in Durham. You might be handling ADA compliance or you might not There had been questions about well, could can we grant variances for ADA because those are personal circumstances This makes clear. Yes, uh for federal fair housing compliance for ADA compliance The board of adjustment can be granting variances to allow for That ramp or the individual with a wheelchair You know the ramp to go into the setback or an extra parking pad for the Wheelchair accessible van or some other action that needs to be taken to relax the rules for a particular individual Um, you can use the variance process for that It's also fine to have a separate process handled by the board of adjustment or another body to handle those reasonable accommodations that may be necessary But this was making clear that yes, that's that can be handled as a variance The other thing the applicant needs to show is that the hardship did not result from actions taken by the applicant or the property owner And so if it's a self-created hardship, we're not that's not what the variance process is for Just because they goofed and they didn't think about what the rules were is not our problem to unwind um And so if it's a self-created hardship if they sold off a piece of the property and now the setback line is close to They want it to be well They sold off the property. They can go negotiate with their neighbor to buy back that sliver of land if they need But there is this carve out here the second sentence the act of purchasing property with knowledge The circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship basic notion here is A new owner steps into the shoes of the old owner And so if the old owner could have gotten a variance then the new owner has the same rights and responsibilities to seek a variance Just because they purchased the property. That's not self-created hardship Such that would bar them from seeking a variance Now they would still have to show up make their case about why this is peculiar to the property not self-created hardship Why this you know why this meets the standards? But just because they bought a property knowing they might need a variance that doesn't bar them from then seeking variance That's not a self-created hardship Finally, um, and this is where we get into some of the grayer areas grayer areas and squishier areas for variances The applicant has to show that the requested variance is consistent with the spirit purpose and intent of the regulation Such such that public safety is secured and substantial. Justice is achieved That's a lot of big kind of broad language Um spirit and intent public safety and substantial justice. There's a lot to take in there This does create an obligation on the applicant that they show What they're asking for is not out of bounds from what the general regulations are trying to accomplish It's not going to cause harm to the nearby property owners or downstream folks It is still going to be in keeping with what the rules are trying to accomplish and The the justice piece of this the substantial justice if they are overly burdened by these rules Well, then we should make it fair If if and if one property is overly burdened by the rules different than the neighbors and different from the general public Then the variance is the process of achieving that kind of getting some equity there But it ought not be a blank check for that property and it ought not be a get out of jail free card for them to get out of You know to relax all the rules that are applicable Other properties nearby are still subject to these rules And so there shouldn't be just kind of a waving away of whatever the rules are. It's going to be the the minimal Relaxing the rules that we can accomplish and still bring This is also where those conditions might come into play. Um, if there's going to be some concern about This we need to grant this variance, but it's kind of wandering beyond the spirit and intent of the ordinance It's going beyond what the regulation is trying to accomplish. Maybe there's conditions that could be put into place That would help kind of put parameters on this to make sure it it does still fit with what the ordinance is trying to accomplish Now there are some carve outs for variances in north carolina Um, there are not use variances in north carolina So if an applicant shows up to you and says i've got this residential property, but I really like for You know, I'd really like to open a dentist office here or a bakery or whatever else they want to open a commercial business They're not seeking a variance. They're seeking a rezoning and they would need to go Elsewhere for their rezoning to the planning board to the governing board There are no use variances So the variances that you'll be granting will be things that relate to the dimensions and the development standards Not to the use of a particular property We talked some about conditions appropriate conditions can be imposed But those do need to be related to the impacts of this variance and making sure that it meets the standards and meets the intent of the ordinance all right, so Those are the state level standards on variances You may have additional kind of clarification and guidance and guidelines Within the local ordinance or policies about variances in durham Just given time, I am going to go ahead and shift to appeals of staff decisions Um, but as you're going through the quasi judicial decision those Those variance standards, that's what the applicant has to show and that you need evidence in the record to show that they meet those standards If they don't if they have not provided the evidence to to meet those standards, then you can't grant them shifting to appeals of staff decisions As laid out in the statutes appeals of decisions made by the staff under this chapter shall be made to the board of adjustment Unless a different board is provided It is also the case. I don't think I've quoted This piece but it's also the case the board of adjustment may handle other appeals of other ordinances beyond zoning Um, and so depending on the structure of the of the board of adjustment and how things flow in durham Maybe more than just zoning variances that you're handling Now in thinking about the procedural matters for appeals of staff decisions They are a little bit different than variances or other quasi judicial decisions because in this case If for an appeal of staff decision the staff person is not showing up as kind of Technical advisor and support to the board staff members really showing up as a party They're showing up to present their evidence to explain why they made the decision that they made Um, really they're acting as one of the parties. Um, it also Can create some interesting and challenging dynamics with regard to legal representation If the city attorney's office has advised staff on interpreting the ordinance And now that's being appealed to the board of adjustment questions can come up as to Which attorney is representing the board? Which attorney is representing the staff? How's that managed and there's ways of navigating that and um, y'all may well have worked out those But there are questions just kind of different procedural standing when it's the appeals of staff decision Um with regard to the timing of these appeals they're made 30 day within 30 days of staff making the decision Um, and there is options under the statutes for there to be a state of enforcement essentially to pause staff enforcing a notice violation or other enforcement mechanism While it's being appealed before the board of adjustment The record for these decisions, um of staff or appeals of staff decisions Uh, the official who made the decision is required to transmit to the board all the documents and exhibits constituting the record upon which the decision appealed is Appealed from is taken The officials shall also provide a copy of the record to the Appellant and to the owner of the property that is subject to the appeal if the appellant is not the owner So when that staff person went when they're notice of violation or when they're permit denial or whatever the staff decision it was when it's denied Uh, when it when it's appealed then the staff person compiles the record that they based their decision the application, um the ordinance provisions of the correspondence back and forth between the applicant and uh staff Or if it's a violation then the kind of violation file the photos the citation The correspondence back and forth that's compiled As the record that they based their decision on that record goes to you as well as to the person that's appealing that decision Now at the hearing you'll be able to take in additional evidence the the person appealing You know will present their own evidence and and legal arguments So there will be more to the record, but as a starting point the staff person will compile that record and send it along That staff person is also required to show up as a as a witness Um the official who made the decision or the person currently occupying occupying that position um Shall be present at the evidentiary hearing as a witness and so that person shows up to explain This is the decision I made. This is what I found when I went to investigate the site. Um, here's the documentary evidence And this is why we issued the violation Now one of the things and this I'll give a few last slides and I'll try to preserve a couple minutes for um specific questions on these standards One of the things that inevitably comes up with appeals of staff decisions are the questions of interpretation um Staff says this is a violation applicant says you're reading the ordinance wrong. So who's right? Oftentimes these disputes are about interpretations. I'm going to walk through just some basic guidance on interpreting the ordinance Based on what the courts have said from prior disputes about interpreting the ordinance Just as rules of thumb for when that appeal comes to you And certainly you can refer back to these or reach out to me again when when some of those appeals are coming before you The starting point is the text of the ordinance if we're trying to figure out. Oh, what what's the intent of the ordinance? What did what's meant by this regulation? um The ordinance is the best indication not what city council thought they were doing not what you think they should have been doing Not whether we ought to you know relax these rules or not But what does the ordinance say we use the plain or plain ordinance language the plain meaning of the terms We also have to think about this in context. Oftentimes there are even even the best ordinances They've got provisions that are conflicting. There's definitions. There's purpose and intent language There's lots of context to help us figure out what's meant by the ordinance and when we're trying to interpret We've got to continue. We've got to consider the whole ordinance Indeed there may be provisions in the ordinance about how to interpret the ordinance um Oh, well, I thought I had more about interpretations there, but I uh was wise enough as I was preparing the slides to cut some of those out um I just forgot that I was that I had done that so As your when you've got that appeal of a staff decision um, it's it's worth Recognizing and knowing you may be asked to interpret the ordinance when you do Start with the ordinance language and end with the ordinance language What the courts have been clear about is the best way to know the intent of the governing board is by the words that they adopted Not by some notion of what we think they should have done or even what they thought they did All right, let me pause there. We've got about five minutes before I think I need to hand things over to jessica um, so thinking about uh variant standards thinking about appeals of staff decisions thinking about quality judicial in general um, what additional questions do we have and um, what What answers might I be able to I have one? um It's one of the things that we didn't talk so much about but it's definitely one of the issues that we deal with fairly regularly um, and that is um Here in Durham what we call minor special use permits. Um, and I won't define those. You probably understand what that means One of the criteria uh that the minor special use permit decision turns on um is What um in harmony in harmony with the area? um Are there rules of thumb? Or other resources out there that would help You know the wayward board of adjustment member who really wants to do a good job um understand what in harmony of the area means Yeah, that's a great question chat. And you know, I've really focused on um On the here at the end I focus on the standards for variances and appeals I want to emphasize the quasi judicial procedures that we talked about would apply equally to minor special use permits certificates appropriateness any kind of quasi judicial decision um, this question of harmony is a Impossible and challenging one. Um, so I don't have a perfect and simple answer But here are some thoughts on on that as a standard Um One is there there certainly can be situations where Through guidelines or standards or other design criteria The the local government may have already identified what is kind of what's expected and what's in harmony So one thing that comes to mind is historic districts where there would have been A an establishment of the historic district identifying what's special about this place There would be design standards that identify What are the expectations for design in this place? And so there can be whether it's a historic district a downtown design district or another area There can be design expectations that are adopted and set Without that though and oftentimes for a special use permit You do have that kind of generalized criteria of in harmony with the area without any kind of separate design criteria or standards um When that comes into play there is Uh, you know, it's it's a pretty wide open question as to well. What is the area now? How broad of an area are we looking at? And what does it mean to be in harmony with that area? And it's going to be the weighing of the evidence that the board has to do as to Um, is this particular project that's proposed is that in harmony with this area? The applicant certainly can and should present Their their kind of scope of what the area is and what the character of that place is and how this fits in The opponents certainly can and should Take their own pictures make their own Argument about what this what's the character of this place and how does this particular use fit in One of the areas I think where actually the neighbors are on fairly equal footing with the applicant Is making arguments about is this project consistent with the comprehensive plan and is this project in harmony with the area? Because you don't need an expert for those things I mean you can have an expert for those things, but you don't need a traffic engineer or an appraiser for that I could pull up the comprehensive plan and identify what is what's called for on the future land news map I could go walk the neighborhood and identify. Well, this is all single-family homes and you're proposing a Seven-story building that you know pretty basically is not in harmony with the area um, so there is certainly uh opportunity and expectation for the parties to bring evidence as to Whether this you know, whether this project is in harmony with the area or not Now one thing that's worth emphasizing is uh, there is a line of cases in north carolina to say if the Governing board has already identified this use is Allowable by special use permit in this district Well, then the governing board has already made the policy decision that this use is in harmony with this area Now there's still questions about is this use right in this specific location? Is this design in harmony with the area? um, there's still questions about the specifics But the broad notion of is this use appropriate in this district That's already been made that governing board has already said if you can get your special use permit it's appropriate in this area and so One thing the board would need to do is Focus not on Um, this particular use it can't be in harmony in this area. That's already that decision has already been made It would be this use in this location with this design. Is it in harmony with this area? Given the silence, uh, I wish that I could feel like I have fully equipped you for all things quasi judicial You have zero questions I know that not to be the case. Um, but I also know that we're running short on time I hope that this session has been somewhat helpful. Um, and I want to before I hand things back over to jessica I do want to note. Um, just a word of thanks Thank you for doing this work for your community. Thank you for taking your Tuesday mornings or monday evenings or whatever you're you have been giving up to serve on the board of adjustment It is thankless work. It is hard work. It's loyally and design and making your neighbors upset work Um, it's a lot of stuff and oftentimes thankless So let me be one person to say thanks for serving your community And thanks for sitting through two and a half hours of quasi judicial training And good luck with what's next Thank you All right last call any other questions While we have experts on the line Okay So we had a request from some board members for a little overview of the design districts and I have a presentation I'm not sure how many of you have ever explored article 16 in the unified development ordinance if you have That is where the design district language lives Extremely dense. It has a lot of different details for each frontage type So i'm not going to be able to cover all of those details, but I will give you An overview of why we have them how they're supposed to work And if you have specific questions at the end, I can also walk you through some of that as well, but If you all are ready, I will Attempt to get my Sharing to work and we'll roll ahead Hopefully you all can see my presentation. Yes Okay So It doesn't want to advance Fabulous there we go So these are going to be a little text heavy in the beginning. Um, I will let you read them while I talk Maybe I can give a synopsis, but we do have some pictures toward the end so basically design districts are Unlike traditional zoning really looking at the massing the scale and the character of the buildings that are going into these districts And they do regulate the use but more in a way of trying to get mixed use or you'll see the phrase later on another slide 24 hour districts so that You don't just have residential. You don't just have commercial. You have a mix that is generally the intent of these design districts So we're going to look at where the building sits on the lot For instance, you won't have parking up against the street You'll have the building up against the street so that as you as a pedestrian Or a bike rider or even in a car are traveling through these you'll get that sense of dense active streets and there should be Instead of service areas like the garbage or a blank wall or even entrances into parking decks There will be more going on with the buildings themselves to attract your attention and Give you an active streetscape So here are the three types of Design districts. We have the downtown district Which is the one that we deal with the most There are compact design districts and those aren't downtown. They're In compact neighborhood tiers, which like there's one over in south square There are a few others around town Patterson place is an example of a compact suburban Design district and that is a newer type of design district where you actually have suburban character around the design district itself These are all generally near transit. So downtown is the bus station and train station The compact suburban design district that was Patterson place was intended to Coordinate with the light rail system that was to go through As well as some of the other design districts that we have We all know that fell through. So right now they aren't linked to design to Transportation, but that was the intent of those And if you have questions just interrupt me otherwise, I'll keep rolling along We're also looking for the higher density in addition to that mixed use so you will have sections of the design district the core is going to be the most dense And then as you move out to support one and support two The restrictions become less It gets closer to what you would expect in support a suburban area more residential As you move out through those sections downtown core is going to be tall buildings high density Support one is where you're starting to go toward the residential district So the height is going to drop and you get to support two you're up against traditional neighborhoods with One-story two-story houses and then you're going to have to have much shorter buildings So it's going to be a little bit like a Target bullseye as you move out We do have an option for a special sub district right now We only have the one and it's the pedestrian business On ninth street and it's only one part of ninth street, but that is A special district with special Rules that have been called out if you want to look at those At another date those are very specific very specific trying to keep the Pedestrian nature so the buildings are shorter and they have the same sort of character So the main things that we look at are as I mentioned where the building is on site Typically we have a street yard and there's a Maximum Distance or there's a required distance that you have to be back from the street In the design districts, there's a Build to where you have to actually pull forward and there's a range. It's 12 to 18 feet generally There's not a minimum, but you want to have your buildings sit in that build to zone There's also a podium height Requirement and there usually is a minimum and a maximum for that height too and so the podium is the bottom stories and It can vary depending again on what Your core support one or two There are ranges and the frontage affects that too. So The podium height is the first few floors and then the building should step back and there are Exact dimensions for some of these so the building steps back and then you go up. It's a little bit like an old-fashioned Skyscraper where you have the base the column and then they used to have a decorative cap We don't require the decorative cap But we do have that base and then the column of the the building There's an overall height max, but there are different things that you can do in order to Get additional height added to it. For instance, if you did a green roof, then you can have additional height And there's a chart that calls out those different options And again density is intended to be higher There will be a minimum and a maximum and ways to increase that for instance affordable housing would give you a higher density allowance We're trying to set up a grid pattern so that we don't have large blocks that are difficult for pedestrians to maneuver through You have to go all the way around a neighborhood or a block rather than a way to cut through it So there are maximum block sizes if you are to a certain size of acreage then you have to Put new streets or alleys or even pedestrian malls to break that block back up into a more traditional Downtown grid pattern a walkable block There are wide sidewalks required and on those sidewalks there are specific amenities that are required benches garbage cans The street lights and the garbage cans and the benches are specific types so that there's a uniformity of design There are street trees required all of that is to the benefit of Travelers through the district. They're getting shade and places to sit trash receptacles all of that there is a street design and there are different types that are allowable in the different Design districts so there's a different street cross-section that is allowable out in a suburban compact district But the typical one the primary street is the one I have shown here It's two lanes parking a bike Path on either side and sidewalks. So that is to get a mix of transportation modes The frontage types are where we would probably see most of what is coming through the BOA Storefront is what you're used to seeing on a historic business in the downtown They're big plate glass windows and an entrance They're right there at the front. You see there's a picture There should be some divisions between the doors and windows So those details get called out on a storefront. So with storefront the ground floor is commercial Arcade is the storefront but set back Underneath the projecting and supported second story the four court is Fenced or walled area in front of the main door that's either a terrace or a garden The ground floor for a four car court does have to be dwelling but above can be a different use and courtyard it's And sort of a u-shaped building typically and the activity for the building outside of in and out of the the doors into the building there should be like a court in the middle where there are trees and amenities and Those can be residential or commercial There's another Area if you don't have a frontage if you're not required to have a frontage. It's typically a monumental building. Those are government buildings They have different requirements. They tend to sit back farther. They're larger And incidental buildings are things like a kiosk that's permanently on the street or Some park facilities are also considered incidental So a lot of times We'll have requests to change the storefront requirements the percentage of service allowed along with it maybe the Glazing requirements. They can't quite meet what they need for the percentage of glazing on that front Those details can sometimes get a little tricky depending on the site and those are things that we sometimes see Especially with parking decks You may remember we've had a few of those where they're required to have A frontage along the ground floor along streets If they don't have the ability to do that due to the size of the parking lot or for whatever reason that we would see a variance for that And a good example of what we want a parking deck to look like is the one on the bottom If you look real quickly, you may not even notice that's a parking deck That's what the downtown district design guidelines are hoping for is that the the parking decks look like a building So as you walk down the street, you're not walking by large very obvious parking decks and We are going to be looking at where the entrances are located the building length the details of the building again the glazing requirements would be the amount of glass and projecting and recessing on the The facade of the buildings so that you don't have a flat boring facade, but some Detail changes or those projections to give it a little more variety We have as I've mentioned a few times some service requirements They are not supposed to have service within 20 feet of the corners of the buildings So service would be parking entrances mechanical equipment The garbage access point for the trucks things that aren't as attractive to the pedestrian If you have a narrow lot that's flanked by other buildings, you're going to end up with a Parking entrance. That's just how those are going to work out. There's a maximum percentage of the frontage that can be those service requirements and the parking is Going to be accessed off of at an alley if possible. If not, it's off the front Surface parking has to be limited in where that goes We require bike parking just like anywhere else But in the downtown areas or the design districts with their short term and long term. So some are inside and some are outside And that is what I have from my presentation. Does anybody have questions and I should go back or Just no question. I have a question So many of you may be aware of like there's two houses on gear street that were built like tall and have like I don't know all that it has but it just feels like they don't match the street And I'm curious if they came before our board or if it was just Like how did how did that happen? Or I don't know if that's the right question for this process But when you started talking about design those two kind of jumped out at me um Like law prohibits Any design standards for single-family homes? Ah, okay. So it's for other structures not single-family homes Right. Yes, that makes sense. Thank you. That's a kind of recent law change Yeah, it's gonna be a 15 from 2015 So but you will sometimes see things that suddenly creep up and they look larger than other things around them And that is because the zoning the base zoning allows for those taller buildings or those larger buildings and There are a lot of older structures there that just they don't look compatible But it's allowable by the zoning so there can be some conflict with that as well We get a lot of that over near central park where the lot of those older buildings are one story But they're allowed to put multi-story buildings in because of the zoning Gotcha, that's helpful. Thank you Hey, Jessica I guess I'm kind of puzzled by I understand the intent of these compact suburban districts Um, you know with the light rail and everything it was obviously a lot of planning that went into To sort of positioning land um, but looking at some of these um You know future land use plan calls them for you know designate some of those design districts Um, obviously there's compact neighborhood tiers associated with them, but then the zoning doesn't align with those You know development tiers and and um, you know the the flume Is the intent that those ultimately get rezoned to Like a csd or I mean what what what is the thought process there? For some of these sort of suburban areas So Patterson Place is a pretty good example where there was a tier established That the compact neighborhood tier was in place before the design district zoning went into place That was a recent change. So they they weren't at the same time There's a little bit of conflict in the zoning in the neighborhood tier Um, I think moving forward some of the other Compact neighborhood tiers that were predicated on that light rail system will probably Be Changed and we do have our comprehensive plan update taking place now and those are all going to be reassessed and potentially changed based on How the development patterns have changed and the lack of light rail and other Other unforeseen changes Fair enough, thank you. Mm-hmm any other questions. I know that was a very quick brush of very complicated information but um If you have specific examples or you want to talk about a specific section of Article 16 we could also talk about that too. I just did not want to Blow your minds at the end of the long training session Hi, Jessica. Um Yeah, so I My guess is and I'm asking, you know, kind of We see stuff Comes to the board of adjustment where, you know, there was a challenge or a problem or an issue that that came up with the With the design standards Or the design district provisions um Generally speaking I assume most of the development that happens inside these districts Happens without a hitch and it's not necessary for us to be involved in it Rather we only see, you know these cases where There's been, you know, some some sort of difficulty some sort of one-off challenge. Is that accurate? We generally do get most of this worked out Outside of the board of adjustment and there is a lot of negotiation and a lot of revision These are difficult projects and there are a lot of moving pieces I will say that Often when it comes to you all there may not be an a hardship That's not financial that there could be a redesign But it's a costly redesign and so that is why they often come to the board of adjustment Now there are other examples like the one we've had recently where the right of way The building should have come up to the right of way But there was a precipitous drop from the right of way to where the building Could be located unless they did significant Regrading a great deal of regrading and that probably would have caused Issues downstream, you know water would have flown some it would've gone to somewhere and caused problems for another property that is a hardship that is a topographical hardship and It's a prime candidate for a variance, but sometimes It's just very complicated to have a building that comes to a sharp point It can happen it has for centuries. We've had wedge shaped buildings, but it it does affect the bottom line to have that building shape So there You're going to definitely continue to get the ones that are really it's more trouble to redesign and it costs more and it eats into the profit rather than There's a huge drop-off And they really shouldn't have to regrade the entire The entire site basically Right. I think the point that you're making is some some cases are are fairly cut and dry that there is a Quote-unquote classic Variants need and then others maybe the majority of the others who are coming before the board of adjustment Maybe there isn't a bright line. Maybe it's not cut and dry Maybe there is this aspect to it that's that's financially based um And yeah, I I'm just trying to understand how many of the cases that that come before us have that issue I know that you understand the difficulty of applying these variance provisions to design related issues It's it's particularly difficult to do I think well and You know that that was one of the reasons why I wanted this kind of you know This additional information about the standards and I and I would love to Continue this discussion when we have time and when it's appropriate about You know, how does the board of adjustment deal with these these cases, you know, where you know, it's it's a little bit different Because you know, it it's really what's driving this is what's a what's a what's a definition of reasonable cost Um versus compliance with the standards and you know, where where does that where does that test? Where does the the compliance with that test fall and how's that done? fairly um So, you know, I I guess what I'm saying is I I understand that it's not that simple. I appreciate you The staff trying to walk us through it and I hope that you'll continue to help us In and and all of us understand that the you know, the the decision-making process in these cases is You know, particularly difficult Right. I think you should in your minds rephrase it that the Financial hardship is never a hardship in terms of a variance However, there may be legitimate design issues that would make It very difficult to redesign and that takes a bit of information knowledge that maybe You all either don't have or don't feel comfortable using And that is where the the real issue is is if they tell us that they have to put the service here because of their connections that need to be made and Uh, a lot of times Duke energy won't let them put the transformers in another location or underground as required those types of things Are legitimate redot redesign issues that that we would have to have a little more understanding of And that can be tricky, but simply because we can get more units in that shape That is a financial hardship that I think is a little more black and white So, yes, it there will always be issues with these and That is why you see them rather than staff being able to immediately shut them down and say just redesign So I can't give you good answers chat. I'm sorry. No, it's okay. I I don't I don't I understand that I don't think there is a good answer I think what I'm looking for is all of us to recognize that there isn't a good answer That it's not cut and dry that there should be some discussion and that you know this that that frankly, you know Because we're not designers and builders. We're not equipped to to consider this stuff You know some of us anyway, I'm certainly not and you know just a Everybody having a little bit of patience with ourselves as we deal with these cases that you know Are raised to a level of complexity that even the staff wasn't comfortable And the staff does get steeped into these projects a lot of times The same reviewer who's reviewing the site plan may not be the BOA staff member, but they're in communication with those reviewers so they do have insight into some of the issues and Certainly ask questions and we are trying very hard to make sure that our staff analysis Will point out issues that we have seen or additional information that we're aware of so That the staff reports hopefully are of assistance to you If you could only do it to variances You muted at the end mike If you could do a report on Well, we do have a report. We just don't have a recommendation that part you're on your own with but we do pick those apart too so there should be information there and We can certainly have staff answering questions at the meetings I mean chat. I'll admit I wrestle with that pretty regularly. You know, I'm always depending on just design your project differently, right? Um, but I think what you know what I get We can't always just say that right Right. Yeah, but I think what I get held on to is is that section of the ordinance that says, you know, it's not The responsibility of the applicant to demonstrate that no other use of the property. I think Adam touched on that Earlier today, right that you know, it's kind of looking at the case that's before you and not Considering other factors is kind of where I where I lean toward so does that help a little bit of a little more information about design districts or Too light a brush. I should give you some more info. Okay. I will share this presentation as well as adam's presentation And I'm sure that adam would be willing to answer questions if you want to email him And I certainly can answer follow-up questions for the design districts And the other general questions that you might have For staff, I did want to say I during adam's talk. He did mention the application and what do we ask of the applicant if you all haven't looked at that application It is usually included in the packet that you get with your agenda So there are very specific questions that we ask There is a meeting before we take an application Where we discuss all of those and what generally you all would ask sometimes people say, you know Will they say yes to this and of course we say we can't answer that but here's what they might ask you And we then get their application staff reviews it and says whether they think that argument is clear Or you might need a little more information This way or that doesn't appear to be a hardship rethink. So there is a lot of Prep that we do before it gets to you So generally the applicants know what they are in for but They are still lay people and this is all brand new to them. So Sometimes we don't get as much information as would make this a super quick answer for you all to come up with so We can We've also tried a little more lately to say, okay So your drawing is helpful, but it could be more helpful if you would like a quicker answer Please provide additional stuff on this drawing that you're giving us And I see that Eliza has her hand up. So did you have a question or comment Eliza? I just had a comment that sometimes with the staff presentations We try to have more and more information in the scripts and presentations that we have Especially with design district. So if you do have any questions, we definitely understand that and um, I would strongly just encourage everyone to ask as many questions About contacts, especially during the hearing so we can make sure you all are making the best informed decision as possible So I just wanted to advocate for asking more questions We are aware that is kind of confusing and I really appreciate Jessica for doing this small sub presentation of this overall training day I think I I struggle with not seeing visual Renditions or some kind of like You know when the applicant is trying to tell us something and I don't Get the visual of what they're seeing That that's hard Especially with fencing or whatever Yeah, and I would I would hope the city can encourage them more to You know take pictures and things like that part of the problem is Is that people often want to have your decision before they spend money? So they haven't paid any professionals to do any drawings or do a survey or things that would be really helpful to you all And so we sometimes end up with the napkin drawings and one picture that doesn't really show anything but We we have been recently asking for a little more of that maybe two pictures Or a bigger napkin Just you know to help you all just a little bit more Like that's that's one of the biggest challenges I have is when we have a an application that's very Basic and not a lot of information and then the applicant shows up and doesn't have a presentation And just says they're there to answer questions And like what what goes into the record and how do we How do we make our determination if you know the information isn't really there so I think in those situations there may need to be a little more drumming down every step of the The criteria you may need to say can you answer this if they if they're not presenting it to you And you feel like you need more it that's appropriate to say how how do you address this question? Or this criteria And I think that's helpful to them because they also again, they're they're late people and they don't really know the process So maybe that's more time confusing Consuming excuse me more time consuming But you actually can get the information that you need for your educated Yeah, but a lot of making a lot of the times the questions that we ask are Can certainly be found in the application and it's like I don't know if anybody Reviews all the materials. I think some of us do but some of the questions I'm like You know and I can understand when the come through I review all this But you know like I'm not going to ask the question on the screen That I that I can find in the application that's a part of the record I'm just not going to do it because my question is already answered And I'm not going to note on the record because that's the point of the application I also think that's a waste of time but Understand now that I'm not talking about deliberation or thoughts talking about us on specifics Just my thoughts on that. All right. So we are definitely at our 12 o'clock cutoff I'll be glad to answer any other questions now or offline if that's better And I do want to thank you all very much for attending today. I hope this is helpful to you and I will again, I'll send you the two presentations and we're available to answer questions And you all have a lovely day. We do have a board of adjustment meeting next week So don't forget Thanks, Jessica. You're very helpful appreciate it. Thank you. Thank you. Thank you so much. Goodbye y'all. Thank you very much See you Bye