 Development Review Board for Burlington for May 3rd. And we have just two items on the, or three items already, but two public items on the agenda tonight. And maybe we'll just get right into it. So when we call each item, we ask whoever's participating in it to raise your hand or one way identify yourself. And Scott will admit you to the hearing and provide Scott with a mailing address. And then people gets one in as needed. That's simple. There has been new items posted online as part of the supporting documents. I guess we'll get to those. So the first item is a consent item for 275277 Flynn Avenue as a establishment bed and breakfast. Is the applicant here? Yes, I'm here. Oh, hi Kurt. So this is recommended as a consent item. I don't know if you have you seen the staff report. I have. Is that okay with you? Yes. Okay. Is anybody on the board object to treating this as consent? Is anybody in the public on this one, Scott? Probably better than I see BLCT and the other applicant. Okay. So we want to make a motion then on 275277 Flynn Avenue. Yeah, I'll make a motion. Brad, on ZP 2146 275 277 Flynn Avenue, I move that we approve the application and adopt the staff findings and recommendations. There a second? Caitlin, okay. Any discussion? All in favor? Are you in favor, Jeff? No, I'm going to vote against. Oh, are you voting against all BNBs at this point? No, only the ones that have these kinds of parking issues doesn't look like we've got another situation of the tandem parking bed and breakfast use. So I don't think the zoning allows it unless they have a full-time attendant. So we've got one, two, three, four, five to one. Yeah, next item is a public hearing, which is 80. You're all set, Kurt. Thanks. Next item is 83 Central Avenue. Is the applicant here for this one, Andrew Nune. Is there anybody else who's going to testify in this besides Andrea? No. I see one other person has joined us. If you'd like to speak to 83 Central Avenue, raise your hand and I can let you speak. All right, nobody's got their hand up, Brad. OK, so, Andrea, do you swear to tell the truth and hold truth on the pain and penalty of perjury? Hello? Yes. Hi. Did you hear what I was just saying? I heard what you said, yes. I'm not Andrea. I am Andrea's mother. She's finishing up a meeting. And so she just asked me to come here so that I could speak on her behalf. She should be joining us soon. Well, do you want us to proceed with you representing her? Sure. I guess there wasn't an issue or anything. Wait, before you say anything, I still have to swear you in and you still have to give your name and address. OK, I'm so sorry. And your name is? Giovanna Yeronga. OK. And your name and address? My address? Yeah. It's 273 Shelbourne Road, Burlington. OK, yep. You've got that, Scott, right? OK, so then when this came through, I don't know if you saw the staff report and would Andrea saw that? I believe I have not seen it. Andrea has. Well, basically the staff report concluded that the lot coverage exceeded the allowable lot coverage. And so that was an issue that we're going to have. OK, so I guess she has tried to explain that to me. And so she's also, and I am also, we both are a little confused about that. She's not trying to propose any changes or adding any more driveway or anything. It's just whatever is in existence there. The driveway. I could ask Scott to explain it a little bit better. Is that? OK, maybe Mary can explain it because it has to do with the original approved site plan from X number of years ago and then calculating it with the right of way. Correct. Scott, if you don't mind bringing up that approved 1991 plan, this is the last approved site plan for this parcel. If you recall, it's a through parcel with frontage on Central Avenue and Proctor Place. When this plan was approved, I'm sorry the lines are so faint. The 1820 is the house, the parking area, you can see on the lower left is 20 feet wide by 25 feet long. And then there's a shed in the upper left corner. This is only a partial site plan. It does not show the extended. There's 100 feet behind this that connect to Proctor Place. As we heard at the March 8 hearing, there are two homeowners that have frontage on that and have deeded rights for access in egress and they use it for parking. That coverage was not included in this 1991 plan, which calculated and was approved at 35% lock coverage, exclusive of that 100 foot strip of right of way in the back. So it was at max coverage in 1991, even without considering that access drive to Proctor Place. On the March 8th hearing, the board asked Andrea, to come back to show all parking from the Central Avenue parking area. So the 28, I'm sorry, the parking area that's noted on here, I think it's 28 by 20, is insufficient for two parking spaces. You might have to scroll down, Scott, and it's further south on the plan. So yeah, there was a permit to build a handicap access ramp over the northerly part of this parking area that was deeded or that was approved in 1991. Of course, anything for access does not count as coverage and does not have to meet setbacks. So it became clear that the 91 plan did not include all the gravel that connects to Proctor Place, which puts it over lock coverage anyway. The two site plans that Andrea submitted both showed an enlargement of this parking area, which would even increase that non-conformity higher than it is now. And setback was not observed. There was a three foot setback in this 91 plan for the parking area. So there was encroachment into a required setback with her plan. So the plan that she uploaded this weekend showed an increase in lock coverage by an expansion of the driveway. And because of that access to Proctor Place, we are significantly over lock coverage for the zoning district. If that's a deeded access for parking, once that have been part existing when this application was done in 91? That's only a partial site plan. It doesn't indicate that area that's west of the house part, the house part of the lot. What I did was, and I attached it, was drew the entire site plan with the structures on it, estimating the lock coverage from a Google Earth image for that other through access area. So I calculated even less than what we can see in this Google map image, but the Google Earth image shows a smaller access area. I presume it was before Rebecca Grand has finished her two buildings there, and now they're receiving heavier use. But it is all one lot, and that's pretty significant coverage, that gravel that runs from Proctor Place up to the west side of this structure. Giovanna, did you, it's confusing, are you still there? I am, I am listening. I'm trying to understand, it is a little confusing. Yeah, this will break me. However, Andrea's no proposing to increase the driveway. She had talked to Rebecca Grannis and had said that she's not gonna try to use any of the, any of that Eastman on Proctor Ave for parking at all. She just wants to use, you know, Central Ave. And I guess there was confusion in the measurement of the driveway because of the ramp. And so it looked like, at first it was 22, but it's not, it's actually only 18 feet wide from the, from the side steps that goes into the porch to, you know, all the width of the driveway. It just sometimes is hard to measure, but it's all like, it's not, there's not a slab, there's no paved driveway there. So there is 18 feet wide. And so she's not looking to increase the driveway at all. It's just using that, that existing driveway for the side-by-side parking. So the issue is that before Andrea does anything, what the city is saying is that she's out of compliance with lot coverage, through no fault of her own, that she's in that pre-existent. And I guess my question for the city is, is anything since, I'm just trying to understand if that Eastman existed in 91, who's speaking now? I think it's background. Oh, okay. Mary, what does this do for the status of the property relative to what's going on on it right now? In terms of the Eastman on the Proctor Avenue side, and she's got the parking, paving that exists on the other side. Is any of that questionable at this point, or is that all okay? The only measurement at any point in time I have is 1991. And as I said, the coverage calculation did not include that access area in the back. It was only for the Easterly part of the lot. And at that time it calculated to the maximum for lot coverage for the zoning district. The dimensions that are under the ramp don't match the dimensions of the driveway on the 91 plan. So sometime between 91 and now that driveway has expanded. So she's correct. She's not proposing to do anything. It's just that coverage has been added without the benefit of a permit. And the increased use off Proctor Place has now created additional lot coverage. And your calculation is using the 44 foot dimension for the driveway that they've got or you get the staff report calculate, right? That's this one. Well, there's a site plan in there that I created and it says by staff, just trying to see if we minimize the driveway, if we could get it down to an acceptable level. But even in my efforts to limit the driveway to three parking spaces, which is all that are required for her request, I still had to add in some of that gravel right of way that was in a Google Earth image. And that's pretty hefty addition. I'm sorry, Mary, what gravel? Do you say what gravel and what part? The gravel on the westerly side of the lot that fronts onto Proctor Place. Where Rebecca and her mother are accessing their properties. Okay, I get it. But she's not trying to. Is this Andrea now? Andrea, is that, who's speaking? Oh, I don't know. This is Giovanna still. Oh, okay. Sorry. What I was saying is that Andrea is not gonna try to use that gravel on the back. All she wants is just the driveway as it exists. And I don't think it had expanded. But if the driveway exists, Giovanna, it's not. The driveway is 83 central. It's not a question of whether Andrea uses it or not. It's still part of her lot coverage. Okay. That's what causes the problem is that it is lot coverage on the property that she owns and pushes her lot coverage over their maximum, which is 35%, it puts it up to almost 46%. That's what. And that was utilizing one of the Google Earth images. The one you're looking at now from Google Maps shows almost the entirely westerly part of that easement covered. So the lot coverage percentage would be much higher. Okay. So here's a question. So the driveway already exists is there. It's 18 feet wide by whatever, 40, 41, for I don't remember exactly. How does that differ? Like, I mean, it's already there. Like you said, by no fault of her own, she's inherited this when she bought the property and it is the way that it is. How, what is the difference between like her parking two cars side by side, her and her sister, for example, and her and a guest? I guess what we're going back to is the approved application from 1991. And that shows the driveway of 20 feet by 25 feet. And the current driveway is 44 feet deep. And so that's deeper than what was on the approved site plan. And that's part of the issue. Is that correct, Mary? Yes. I'm sorry, could you repeat that again? Okay, it's, I'm sure it's a frustrating situation. There's an approved application for this property from 1991 that shows the driveway of 25 feet deep and 20 feet wide. The plan that Andrea provided shows the driveway that's 44 feet deep, not 25 feet. And so that right away is bigger than was approved. And so somebody at some point increased it. Now, well, 25 feet to 44 feet is a, is a huge difference. Right, right. And even I, I was just thinking that because there's not a, there's not a sidewalk. Somebody had mentioned that from the road in, it belongs to the city, but I don't know how many feet goes in. And what she did, I actually helped her with it. We measure from one end all the way to the street. Back to 44 to 25 feet, it's like 19 feet different. So I, I have a, I think it's the, I don't know if anybody else wants to weigh in on this right now. My suggestion is that this is something that just came out in the last few days. Right, Mary. Correct. This, her site plan was uploaded over the weekend. That and do we have any time problem if we table this again and continue it? You may continue it. Okay. What, the board's okay with this. I would suggest having Andrea come in and work with Mary to try to see if the some resolution on the property, given the history of it that, you know, and Mary isn't part of it that if that 44 foot driveway has been in existence for 15 years, it's grandfathered in. 15 years continuously without abandonment. Right. But you're thinking about the driveway fronting Central Avenue or the driveway fronting? Central Avenue. Yeah, Central Avenue. Yes. I realize the other one's still pushing things over, but I don't know that we're gonna, I don't see how we can resolve this at the hearing here unless Andrea sort of at least grasps what the problem is that came up. Right. No, like even I understand what you're saying. And even if, you know, a few feet from the depth it belongs to the city is still like a huge significant difference. Right, right. And that information really sort of got clarified by staff in the last few days or last week or so. And I think it would be helpful if Andrea came in or at least, you know, spoke to staff, spoke to Mary and tried to see whether some resolution or what could be done to make this work for her. Yeah. Yeah, I think that would be great to try to figure out because sometimes it's a little hard also to like measure everything. We were measuring and we thought it was 22 deep but we were counting part of the side steps that were on the side of the porch. And that was not, it didn't go all the way, the depth all the way to the street. So it was actually like, like Mary said, only 18 feet wide but the depth is definitely... Yeah, it's confusing because it's confusing. So do we need a motion to table this or can we just say we're going to continue the hearing? I never know about that. You need a motion to continue it. I know it suggests to date certain. Do you know Mary if there's room in June, June 7 or is the second meeting in June at this point? There may be room in June 7th. I know that June 21st is open. We do the 7th. Yeah. Okay, we're... I move that we continue it to June 7th. Second. Brooks, all in favor? Opposed? So Giovanna, we move this to the June 7th meeting and between now and then hopefully you can get together with Mary and try to figure out if there's some way forward on this thing. Perfect, sounds great. Okay, thanks Giovanna. All right, thank you very much. I appreciate your time with this. Okay. All right, thanks. Now we get training after all that. Maybe we need to training before that. Better late than ever, Brad. Pardon? Better late than ever. Oh yeah. So... Who was the first person to make the motion? I got Brooks as the second, but who was the first? Yeah. Jeff. Jeff Hanne. Thank you. Yep. So on that note... Enter me. Have you been listening to all this? Oh yeah. Oh yeah. Oh yes, I wanted to... This is David White. Yes, thanks for having me. I'm Susan Senning. Hopefully you can all hear me. I take it you can. Great, thank you for having me. I am a staff attorney with BLCT's Municipal Assistance Center. I've been here with the league for almost four years. And before that, I was the zoning administrator and staffed the DRB over in the town of Waitsfield in the Mad River Valley. So I was there for about seven and a half years. So I've been to lots of hearings and I thought I'd see how one operated in the big city. So I joined right at five. Eight plus, good job. Continuing, it's always good. So I just wanted to introduce myself right off the bat and explain my background just a little bit. And as we get into the training, we sometimes take a deep dive into constitutional stuff when it comes to the DRB trainings, but I'm really gonna try to stay at a higher level and keep it shorter, believe it or not. Because it can be a lot to digest and I don't think you all need to know all the things besides kind of the underlying principles that guide your role as DRB members and your functions. So I'm really gonna try to keep it broad in general also because it's a public meeting and really specific fact-based questions should be resolved with staff among you. I don't know how much access you have to city attorneys in the course of your deliberations, but I'll stop throughout to get to questions on the portion I just presented. And then at the end, we can really open it up and just ask back and forth questions or conversations. We also have our inquiry service. I know you have reliable staff and Scott and others that you can ask your questions to, but we're also available for any DRB member that wants to ask us specifically any question and those are confidential. So let me get this. Sorry, it's not, I'm trying to share my video, Scott, and I'm not seeing- You have a share screen option. That's the bottom. It's right in green at the bottom. Sorry, I'm so much used to go to meetings, believe it or not, which is kind of embarrassing, but we'll go here. Can everybody see that home screen? Yeah. Or my first screen? Okay, great. Okay, so the agenda for the training, we're gonna talk about your role as a DRB member, your primary functions and ground rules that just kind of, I think, is starting points. And whenever you're wondering about what's our purpose, things you can go back to, we're gonna talk about quasi-judicial function in your proceedings and hearings, and then some constitutional and statutory parameters within which you are working as a DRB. And then we'll get to writing effective decisions, statutory requirements, and the main elements of an enforceable decision. There are two ways to kind of format it, which I'll just touch on briefly, your actual decision, and then a little bit about adding conditions to decisions. And then again, Q&A, which I'll stop for throughout. So let's start with the big picture. This is the role and primary job of the DRB to afford applicants and interested parties fair and consistent hearings and determine whether the applications meet the requirements in your regulations, whatever regulations apply to the particular application proposal or might, if reasonable, conditions are imposed. So big picture, that's your job. And then here are some ground rules. The basis of these ground rules is the DRB acts in a quasi-judicial capacity. And by that, I mean, you're acting like a court of law, not exactly, but you are like a court of law which triggers some legal parameters that's gonna guide your role as a decision maker. And so I'm not gonna read through all these, but again, it's just to have here that these are your main jobs. State law defines a quasi-judicial proceeding as a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and cross-examine witnesses presented by other parties, which results in a written decision and the result of which is appealable to a higher authority here, the environmental division. So from that definition, quasi-judicial proceedings can be broken down into these main elements. And of course, the rights that you all are considering in the DRB as the DRB members are property rights. So here we have those elements that come from the definition I shared on the last slide. Because we're talking about property rights and quasi-judicial proceedings that obviously has some constitutional implications and due process is the government's administration of justice according to established rules. So that's really kind of the heart of what we're dealing with and what underlies a lot of the rules that factor into your job is due process. So to say it another way due process defines our relationship with the government as it concerns how your rights to a fair hearing are protected, in this case, the rights of your applicants and interested parties. And in your DRB hearings, the parties are not just the applicants, but also obviously abutting property owners and anyone else that meets the definition of interested persons entitled 24. And there are many elements to a fair hearing, including the right to have adequate advanced notice to know and confront all evidence which requires evidence to be managed properly and the right to an orderly and timely proceeding. And the US Supreme Court has made clear fairness includes the way the hearing is held and the ways in which the decision makers act. So again, a lot of the rules of procedure, the way things happen and also your behavior as the decision maker. And we'll go into detail on those constitutional parameters and essential elements of due process later, but first I wanna talk about the main statutory parameters of your meetings and these are imposed by the Vermont Open Meeting Law or I may say OML, that's what I'm referring to, Open Meeting Law for short. And I just wanna pause because I do know that you have staff like Scott who probably do a lot of the noticing and actual legwork for you, but it's important that you all understand because the DRB is ultimately responsible for adhering to these and it's good for you all to know what the rules are and the purpose behind the rules. So we'll talk about OML now and in addition to the constitutional due process, Vermont's constitution and laws promote government accountability and the OML is a state law that regulates and controls meetings of governmental public bodies, including your DRB meetings and hearings. It establishes certain minimum standards and requirements for meetings to ensure they're accessible to the public and the law advances this openness so the public can serve as an active participant and a check on government and transparency is really an essential element of open and democratic government that the state's Open Meeting Law found in Title I sections 310 to 314 and all these gray hyperlinks, you can just click on and it'll take you there. This law is one of the primary means of providing transparency and so it really speaks to kind of promoting both the Vermont constitution and the other constitutional due process considerations we'll talk about. So then just quickly again, the case of Trombly versus Bellow Falls, it was a 1993 case for the Vermont Supreme Court made it clear the Open Meeting Law if there's any question is going to be liberally construed in favor of openness and accessibility for meetings. So when in doubt really make things open and this also has constitutional roots in that the law carries out the directive of Article 6 in Vermont's constitution that all officers of government are people's trustees and servants and at all times in a legal way accountable to them. So again, just transparency and accountability are the underpinnings here. And so you as a DRB must follow this law because the law applies to every public body of immunizapality and the DRB is a statutory body that falls within this definition. Might be obvious, but worth stating. The Open Meeting Law doesn't apply all the time, it only applies when a public body is holding a meeting and a meeting occurs per the definition when there's a gathering of a quorum of members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action. And all those kind of terms in that definition are also defined of course in the law. So if you have ever any question of is this this or is this not this? You can go to Title 1310 and take a look around. It's really broad. So if you're discussing business of the body among a quorum, you know, a court's gonna say, yep, they were in a meeting. We'll talk about a couple narrow exceptions to that, especially in terms of BRB business. But this is just generally, you know, a meeting. And again, it's important to note your meetings and hearings are different and you hold both. Tonight held two hearings within a meeting. So some DRBs may just hold a hearing and not do any other business. And so that's a type of meeting, but I think probably the vast majority of Vermont DRBs will hold a meeting with hearings within it. It's a nuance that may not matter, but it does in terms of open meeting all rules. Quorum can't be a meeting without a quorum. And a quorum represents the minimum number of members of public body needs in order to hold a meeting. So unless the law says otherwise, which it does in certain instances, the general rule for counting a quorum is it's simple majority, 50% plus one of the total membership of the body. So it's, you know, to determine quorum, it's really the total membership that's controlling not who shows up, it's not who's in the seats. It's how many seats are there. So you have a seven member board, quorum is four. And that's, you know, if you have a bare quorum of members, you have three vacancies, you're gonna need all your sitting members to show up. And because, you know, the standard's gonna apply regardless of member abstentions or recusal or again, vacancies on the board. So I touched on this. There are some exceptions to the open meeting law. If Scott sends out, I don't know how things work, but I'm just throwing out a hypothetical. If Scott sends out, you know, an email, does this date work? Are we going to have a quorum? Which one do we think should go first? What's the order here? Even if that discussion is among a quorum, so long as it doesn't get into the substance of any hearing and it's just about organizing things, those are exceptions. The open meeting law doesn't apply. There's a very clear allowance distributing information if he sends the staff report or an application packet for you to review before a meeting. That's all fine. So long as it's one way, you know, you can reply all and say that attachment didn't work, but you can't reply all and say, this looks like a mess. Their parking is this and where is this site planned? Those comments need to be saved for the actual hearing. So again, another exception or couple of exceptions in the law when a quorum of members attends training programs such as this, I know you put it on your agenda and I don't know if it's open right now or not, but there is an exception for that, social gatherings, conventions, and also a duly-worn meeting, excuse me, of another public body provided you all don't take action. So if you're meeting with the planning commission to talk about the town plan and they want your feedback, as long as you don't quickly approve a site plan in the meantime, you don't have to warn that as a DRB meeting. Okay, so let's talk about when you're in a meeting, what are the laws requirements? So none of those exceptions, you're in a DRB meeting, once you have a quorum gathered to discuss business or take action, the law requires advanced public notices provided, a meeting agenda is produced, posted and made available, the meeting's open to the public, opportunity for public comment is provided and meeting minutes are taken and made available or posted. So again, this is for meetings, I know we'll get into some different rules for hearings, but for your meetings, these are the bare-bone requirements. And of course the law, the title of the law suggests the law is gonna make these, they're open to the public, the public can't be excluded from your meetings unless a closed portion like deliberative session comes into play, which we'll talk about. And again, just to highlight, if there's any question in doubt, the court's gonna err on the side of openness and transparency. Okay, as I stated earlier, there are a limited number of specific exemptions to the open meeting law. Some of these are events that would otherwise qualify as a meeting, but the law says the requirements don't apply. I've listed them here and I'll highlight deliberations in connection with quasi-judicial proceeding. So those are squarely the DRB's deliberative sessions. Once you close a hearing and you're speaking freely, the requirements do not apply. And then I was gonna touch on if you are holding hearings, a hearing or hearings within a DRB meeting or maybe just an individual hearing with no other business, as I mentioned before, it's just another type of meeting. So both the open meeting law requirements and any additional warning requirements that you find in Title 24 for the specific type of hearing you're holding are going to apply. So if something is more specific to a DRB hearing, like notice of the hearing 15 days that's going to trump the open meeting law, 24-hour notice for a special meeting, where it's more specific is what you need to follow. And then on the prior one, you'll see a site inspection, but I wanted to highlight the purposes for assessing damage or making tax assessments or for making tax abatements. So it's specific to those other purposes. We are not talking here about site visits for the purpose of land use review, such as your DRB visits. I do note in your rules of procedure, there is a very clear portion on site visits and the rules surrounding it that articulate the process that you as a DRB must follow if the chair determines a site visit by a quorum is necessary when a continued hearing might be appropriate, et cetera, which is what you did earlier tonight. Okay, so deliberative session, the open meeting law is not going to apply. And again, these are situations where you as a DRB are acting like a judge or jury in that it takes evidence or testimony and then ways, examines and discusses the reasons for or against an actor decision based on that evidence. I know we're all not doing this anymore for deliberations right now anyway, but it can be over the phone, it can be in person, it can be over Zoom. So because the law doesn't apply to deliberative session, it can happen, discussing your decision can happen with as few or as many members of your public body as you wish. And you can discuss them by whatever means you would like. As I said, they can be in person on the phone via email, they don't need to be warned or noticed, you don't need an agenda, they're not gonna be open to the public. I know you have a special rule, but we're talking broadly here. Minutes are not required and you can vote behind closed doors as long as your written decision is issued. And then the written decision becomes a public record. After a public body has heard all the evidence in a hearing, it may adjourn and privately discuss and determine the merits of the issue and draft and edit drafts of a decision all within a private deliberative session. And this is really so, you know, you as DRB members can thoroughly and freely review and discuss evidence without political or public pressure. The environment is one where you can express your opinions without feeling awkward or self-conscious, you know, in front of the applicant who has a real interest in seeing their proposal come to fruition. And I will say here, you know, this is all a minimum. This is, you know, kind of not a minimum, it's really actually in this case a maximum. If you, it allows you to be completely private, but if, you know, if the board for whatever reason wanted to provide more transparency or openness, it can always do that. Again, the court's gonna say, you know, deliberative session can be private, it doesn't have to be private. And so you can, they're always gonna side on the interests of transparency. But I think, you know, we typically recommend making a decision in private issuing the written decision, you have the time, use the time. And this is just, I'm not gonna read through all this because I just reiterated it, I just provided a slide that's kind of a summary of what we just talked about. So executive session quickly, I don't know how much use them we never did in Waitsfield. I don't know how many DRBs use executive session unless there's kind of an internal discussion they wanna have, you know, just in terms of internal relations really, because when you're talking about an application, it's gonna be deliberative. But I just wanna touch on it. This is a closed portion of an open meeting from which the public can be excluded. It's allowed, again, not legally required. It's allowed for discussion of those issues articulated in the law. And one of them is appointment or employment or evaluation of public officer or employee or disciplinary or dismissal action against a public officer or employee. Those are two listed in the open meeting law. Burlington's uses the, it basically mirrors the law except on this point, it refers to discussion of the conduct of a board member. So it's just really slight difference in language. But anyway, those are, that's what I meant by, you know, it's more internal if you're having some strife among, you know, someone never attending a meeting, you're having a hard time with quorum, you wanna have like a private discussion to rally the troops and get on the same page. That's gonna be allowed as an option. Open meeting law states this vote to enter executive session. So you start an open session, you have to vote in second and vote on the motion for executive session. Open meeting law says two thirds vote, your rules say majority. And then just another note, attendance is limited to DRB members rather. And then anyone else they think is necessary, usually it's staff or, you know, maybe a select board chair, whatever, it depends on the issue. But just be careful because again, it doesn't give the DRB permission that last one to engage in any ex parte communications, which we'll talk about more in a little bit, but you know, the reason for executive session is what's discussed. Anything else needs to be done an open session during a hearing in accordance with other laws. So it's not really a catch all to just talk about things in private. So that's kind of where I want to stop for questions. I know it's open meeting law and I know it's not particular to DRB hearings and deliberations, which is different from a lot of those general rules, but I just wanted to offer a chance if anyone said what is that or can you clarify? Sure. Yeah. You mentioned early on cross-examination is part of the hearing. And that's really made me think of on the record and we've stayed away from that. So is that something that's part of any DRB meeting potentially? So I should have probably used more informal terminology because I'm likening you to a court, but really it's a quasi-judicial process. What I meant by that is, and we'll get into this when we talk about evidence is that parties have a right to present evidence and confront evidence. So if an applicant is saying X, Y and Z and then a budding property owner says, but it's not X, Y and Z, it's A, B and C and this is why it's A, B and C and not X, Y and Z. And there's some room for back and forth to parse out. That's what I meant by it. So it's really not the, it's not as formal as I challenge this, but it's a way to confront testimony. I have a question on that one, Scott too, which is that we actually don't want the applicant to question people who are speaking or raising issues. We asked them to have the questions go through the board. And I should have made that clear. And that's the other thing I was gonna say is it's really, your rules may say address the chair, which is a great idea. Don't address them. I'm talking about addressing the evidence and the testimony that are providing, not confronting the person directly, but there is, and we'll talk about this in terms of evidence, that's the next portion of the training. I will make a note that that's a confusing term to use because it's not really the cross-examination that you'd find in a court of law. It's just an ability to respond to all evidence. All parties have that ability in your hearings. If that makes sense. There's a chat. Mary had noted something in the chat. So specific language we must use to enter executive session and close executive session. So we just recommend you be clear. If you're using an allowance in your rules or procedure, use that language. If you're using an allowance in the open meeting law, use that. So you'd say move to enter executive session to discuss the conduct of an officer or of an employee or of an official or whatever. I second that by majority, you're gonna enter it. Technically you're supposed to vote to come out of executive session to do certain things. You can't take binding action in executive session. So as long as the minutes say unanimous vote to re-enter public session, executive session is done. You're really not as a DRB going to be taking action. I mean, if you do have, I mean, it would be the city council, I think making kind of final. I'm trying to imagine a situation where you'd have to be coming out of executive session to make a final decision. I think maybe if it was so egregious that the DRB wants to recommend removal of a member to the slack board, then you'd exit, vote to exit executive session, come back into open meeting, our motion to recommend X to the slack board. Hopefully we won't ever get close to that. But it's really just a motion pointing to a specific statutory allowance for your executive session. That's what I would recommend in terms of language, but it's not, the motion itself just needs to be clear. And we also say, if you do expect an agenda item to have an executive session that's gonna be private, put expected executive session, if you don't have it and something comes up, like if you're talking about, I don't even know, but just an issue you're having and it's unexpected that, whoa, this feels uncomfortable, we really wanna be in private, you can use executive session to do that, even if you didn't warn it. I mean, as long as the agenda item is on the agenda and we're talking about this topic and the topic in general is one you can use executive session for, you can vote to go into executive session without it being on the agenda. We say, if it's known that you're gonna be using executive session or if it's likely, potential executive session, put that on your agenda, just so folks know that they're gonna be asked to leave or they're gonna be put in a Zoom waiting room or something during that portion. That's just a courtesy. So I think let's keep rolling, we're gonna have more time for questions. So this isn't your only opportunity, just jot them down and I'll stop in a little while, we can take questions. So again, the statutory parameters is really the open meeting law for what you all can do. And then I talked about quasi-judicial proceedings and the constitutional parameters specifically in terms of the essential elements of due process. So this is a list, you have advanced notice, which we talked about was just in also in statute, timely and orderly proceeding, which we'll see is in Vermont law, opportunity to participate and present evidence, opportunity to know and confront evidence, and then all of your ethical issues are managed properly. Those are the main elements that you wanna keep in mind when you're determining, how do we handle this thing? So I think this is kind of an easy one to abide by advanced notice because the Vermont legislature has spelled out the way in which a land use panel must provide notice of its hearings and the timing for doing so in title 24. These two statutes prescribed the timing and manner of notice that must be given, that again, I said is separate from open meeting law. These are more specific to your hearings. So these are going to apply, not the 24 hours notice of a special meeting. And although this isn't a due process issue, I wanna point out, again, the DRB must follow the open meeting law when it comes to meetings that are not covered by these statutes because those are laws of general applicability, right? So I'm not trying to drill that too much into your head, but it really is a question we get a lot in terms of, if the open meeting law says this, but then our hearings say this, which one do we do? And it's really gonna be which one is more specific to that particular hearing or meeting. So both the open meeting law and your rules of procedure state the continuation of a hearing to another date does not require specific public and private notice if you announce time and date during your first meeting. That's what you face tonight. And it was great, you included a date in your normal time of your meeting. Like that's what preserves the notice. So if you hadn't done that and you said, we'll connect with you on a time and you just adjourned, that really would probably be more on the line of an adjournment, a closing. And then if you wanted to reopen something, you'd have to re-warn it. So to preserve the original notice, your motion to continue the hearing should really include, we say a time and date certain and we also say, why not say the place? I mean, you're gonna be posting an agenda and you probably meet in the same location, but that's just kind of best practice thing. So a site visit by a quorum, which is a meeting under the open meeting law does not need to provide notice per the open meeting law if you announce it during the public portion of the hearing. So again, as long as the underlying purpose of this is notice, so if there were a butters that didn't come based on the original notice they got and they had the opportunity to come and the meeting was continued or a site visit was announced at the meeting they had notice of, they would have had notice if they had chosen to participate. That's the whole bottom line. If they weren't there and there was some discussion and then Scott just says, oh, actually applicant, they wanna do this after the fact, the interested party wouldn't have had notice if they did take advantage of it. So it's all about the transparency and the notice for what's happening. So people with an interest can attend and state their position if they choose. So the next element is timely and orderly proceedings. Follow statutes as to timing of hearings and timing of decisions, they're specific. There's no deadline imposed by statute in which the DRB must meet to consider an application. I don't think I saw one in your rules but I didn't look closely for that piece. So once a ZA refers an application to the DRB, there's nothing in statute that says you have to hold a hearing within this amount of time. And we actually tell towns and cities do not add one because why, hold them within a reasonable time but don't tie your hands. So the first one, ZA must act on a complete application within 30 days, make a referral, no statute about the deadline for the DRB to hold the hearing. But then again, once you do hold the hearing and close it and it's adjourned during the deliberative session, that starts the clock for 45 days to issue your decision. And then hearing on the appeal of ZA action within 60 days of notice is also very specific. So there's not too much room to violate this as long as you're following the law on the timing for your proceeding. And just to note that that 45 days after adjournment of the hearing, it's not gonna be extended by any deliberations. Deliberative session has nothing to, if you scheduled deliberative session, we're all gonna talk after the meeting and then we'll meet in a week. That week, deliberative session does nothing to that 45 days. Once you close the hearing, that starts the 45 day clock. So the ways in which you assure this element starts before the hearing occurs. So good rules of procedure that you've all adopted and are intimately familiar with, or like me, I just printed them out and have them here in case questions arise. It's just a good resource to have that can go a long way in making sure your proceedings are orderly. The rules of procedure are required by law and for DRBs and are also just a best practice for any boards in that they can provide you with a script for your hearings and then guidance about what to do next. If you are kind of lost, you can pull them out and say, what are we supposed to do? Also, I'd suggest before each individual hearing, you obviously review the agenda and the application materials, get familiar with them, get a sense for the application, what to expect. And I'd say nothing really beats experience but preparation comes close. So it's going to be obvious if you as a DRB have prepared, really as an individual member have prepared and are getting the good questions to get the evidence that you wanna tease out of the hearing. That's the purpose of it. And I'd recommend preparing, writing down some questions ahead of time, don't expect them to come to you. You're gonna be facing a person, many people sometimes, some may be contentious. It may not be that the questions just kind of come to you if you're winging it. It's worth the preparation and I know it means time and you're volunteers but I think sometimes, I don't know if you do the Scott or if another staffer does this but kind of puts together, like a ZA in Watesfield, I would put together a staff report that they would kind of use as a basis for their opinion and it would point out things to highlight the bylaws that I identified as being applicable, anything in the parcel report of note issues that I saw as a ZA. So it's worth really reviewing the application and preparing and all that to say because it's your job as the DRB to determine, what is reliable and credible evidence and what our decision is. So the more preparation, the better. The next due process element is the right to participate and present evidence. The open meeting law does not require reasonable opportunity for public participation at your DRB hearings because specifically stated in the law, as I said earlier, this subsection shall not apply to quasi-judicial proceedings. So while the general public is invited to speak on agenda items, when you're in a hearing, that is not the case. So you must afford that right to an applicant abutting property owners, anyone else who qualifies as interested party. Some DRBs, I don't know how you do it, but some DRBs kind of make the determination of interested party at the hearing. Some just defer to the person and say, if the applicant wants to challenge you, your interested party status, they can appeal it and the court can work it out. It's really kind of board to board. And then you may afford this right to others and actually your rules do that. They afford the right to present evidence to members of the public because a public body can go above and beyond these. Again, it says invite the public to present information. And I would say, the question then becomes, as a board member, do you weigh this the same? Yes, the public might be able to comment. Does their evidence they are presenting to the board carry the same weight as an applicant or interested party? That's for you to decide. And then again, this is kind of what I was teasing out with Scott earlier, the fourth due process elements, the right to know and confront all evidence. So the former one is you can present all the evidence you want that you think the board should have that are important and bolster your case. And then this is kind of the flip side, everyone. Well, the applicant, butters and interested parties have the right to know and confront evidence. So this is kind of an informal cross examination. Like, the applicant said this, but I have witnessed this and here is my evidence to show that I think that that's incorrect and not reliable. And you should instead trust my testimony. And again, the rules that you have go above and beyond the kind of the statutory or constitutional minimum and says you can invite the public to respond to this. And just to touch on it again, the interest of party determination, if you do determine that at the outset of your hearings to decide who's eligible to speak and present evidence at the hearing, you know, maybe it's you're not determining their status, but just having people state your name and state if you are in a butter, if you believe you're an interested party, if you're a member of the public, it can just help you all and help others kind of know from what role, I guess, or label people are speaking to, that's kind of just more of a procedural thing for you all. So just to step back for a second to talk about evidence and what we mean by evidence on a base level, it's testimony documents and tangible objects that prove or disprove the existence of an alleged fact according to Black's Law Dictionary right there, eighth edition. And then state law in Burlington ordinance directs the rules regarding evidence, are those found in the Vermont rules of administrative procedure, but those are really complicated, arcane, unworkable for a quasi-judicial setting. So instead, this is, I think the standard we recommend is, you know, it's less formal because again, these are quasi-judicial, not judicial. So why hold yourself to a standard that doesn't make sense? Evidence may be admitted, this is from Title III. If it is a type commonly relied upon by reasonably prudent people in the conduct of their affairs, and then a case from the Vermont Supreme Court, evidence is substantial if it's relevant and a reasonable person might accept it as adequate to support a conclusion. So a lot of the reasonableness, relevant, we'll get into some of that. But this is your job as a DRB member. You're making calls in terms of what's relevant, what's reliable, what's credible, what's reasonable. And again, a party can informally challenge testimony or evidence to get the full and true disclosure of the facts as they see them. And then your job, you know, if you've conflicting evidence, you have testimony, okay, which one do we find more credible? Why, what other questions do we need to ask to make that determination? You must only consider evidence that's presented at the hearing or observed on a site visit. And I recommend kind of reiterating everything that was, you know, kind of observed on site visits at a meeting and entered into the formal record. So it's clear what is going to be considered by the board in its decision. And so folks can respond to it. And again, managing evidence just plays a really big role in your job as a DRB decision maker. So your rules of procedure will help the chair and board focus on the due process standards. Again, the board judges what's gonna be relevant, what it deems relevant and credible. And generally we suggest a board, again, err on the side, just like with transparency and openness, err on the side of letting more evidence in than too little. You don't wanna be challenged because you wouldn't let someone speak that had good evidence. You don't want, you can rein people in and say this is getting repetitive. We've heard this before. Do you have anything new to add that we haven't heard? But I would say, you know, if there's a question about something, you know, let it in and then during deliberations, you can decide as a board how much weight you wanna give it. You can take evidence and then exclude it if it has no weight, but always give evidence kind of the weight it deserves that you feel it needs. You should be asking primarily factual questions, which means the answers are a matter of fact. So what's your proposed use? Where's the dumpster? How many parking spaces? Who's responsible for maintaining this? Very, you know, fact-based, let's get to the facts. You're making findings of facts and conclusions of law. So that's really, I would suggest where you want to focus your questions. Typically, there's only gonna be one correct answer and that's the answer on which you'll base your decision when you're actually factual questions. It's the party's role to answer these questions and provide evidence, right? The applicant has the burden of demonstrating their proposal complies with the bylaws. So ask the questions of them. And I would say the chair has a role in keeping the discussion relevant, kind of bring it back to the criteria you're reviewing and applying, or rather applying the proposal to, in terms of which regulations are salient. And satisfied by the applicant's proposal in terms of getting an approval. Keep in mind, DRB members are not witnesses, so don't answer your own questions. It's on the applicant, it's on the interested parties to produce, present evidence. You can guide the testimony and the flow of the hearings to the questions, you've prepared as a DRB, or to kind of get them along to the information that they want. Again, your rules of procedure may prescribe the order of the hearing, who makes testimony first or second, when the board will ask questions, et cetera. And then it's important to properly manage the evidence you receive, because again, that constitutes the official record, which is going to provide the basis and support for your conclusions and decision. Okay, so the last due process right is to have your case decided by a decision maker that's free of ethical dilemmas. And by that, I'm referring to avoiding, or at least managing ex-party communications, prejudice or bias, and conflicts of interests, which is kind of a broader category for those other two. Your rules of procedure contain provisions on these topics, and statute again requires DRBs to adopt, and follow rules of ethics, which may stand alone, or as in the case of the Burlington rules, be incorporated into boards of rules of procedure. So I was actually looking at the 20, I think it's 18. So I hope that's, I meant to ask you, Scott, the 2018 rules are both rules of procedure and your conflict of interest policy. So that's I think kind of the easiest way to do it is to just have it all together in one document that you can refer to. So let's talk about prejudice and bias quickly. This is a preference or inclination that inhibits impartial judgment. And it's true, I think that everybody comes to the board, probably with a perspective on zoning and land use and development, et cetera. But what this is saying is that perspective shouldn't result in pre-judgment on an actual application that's before you. The DRB must render a decision solely based on the application without regard to who the applicant is. And a good decision's a fair and impartial application of the facts presented during the hearing to the bylaws without consideration of one's personal beliefs about the development, the environment, or the applicant. A fair hearing before a decision maker who acts without bias is a fundamental part of due process. And I think the good news for DRB members is the Vermont Supreme Court starts with the presumption that you as a local quasi-judicial board acts with honesty and integrity. And then a claim of bias must overcome that presumption. So you're given the benefit of the doubt. The court's gonna say they acted honestly. If you're challenging that, you have to prove it. You have to prove bias or prejudice. Any applicant must show the DRB members not capable of judging a particular case fairly based on the circumstances, which is, you know, it's pretty high bar. You are incapable of setting this aside. And in those cases, on appeal, the court may remand it, say, yeah, prejudice exists. They should recuse themselves. They're not capable of setting it aside. So that's a pretty high standard. And your rules define conflict of interest in section 3C. So this is, again, your best source of guidance, your rules of procedure. And obviously the conflict of interest policy is merged with it. You have the bylaws to guide your application review and your decision, but you have your rules of procedure to guide your behavior and your actions as decision maker. So ex-party communication as an impartial decision maker, these must be avoided. This is Latin for one side only. Usually it's one-sided off the record or private communication between a board member and a party concerning a matter that is pending before the board. So this isn't board member and board member chatting between a continued hearing. This is a board member and applicant interested party, a budding property owner. Generally it doesn't include staff or legal counsel. I will say generally because if you have a zoning administrator decision that's appealed and the zoning administrator, typically would discuss things with you. On that case, they're a party to the application, to the appeal rather. And so that is an instance where you shouldn't. So ex-party communications makes it impossible for a party to know and confront all the evidence which is getting back to a previous element of due process, right? So if people are unaware that evidence has been presented or they're unaware that something has been said and they don't have an opportunity to respond to it, that's a violation of their constitutional due process. And I think that's- Susan, I have a question about that. Because I think this came up recently where there was some concern about some articles that were written about pending hearings. Okay. And whether that created conflict or counted as ex-party communication. So I thought I was going to this, hold on one sec. Maybe it's conflict. I think it's, because your rules, I think this is like a typical lawyer answer, but it depends on what was written. I mean, I don't know what was written. I think if what we would say as Mac attorneys is if there is a, I don't know if it would be ex-party communications or speak more to bias. I'm not, I don't know what you're referring to, but if did a board member, can you? Recently there was an article written about DRB approving tearing down old barns. And it came out before the hearing. I think that no one had read it, but Mary had brought it up. And it was written by like the applicant or? No, it was written by, I can't remember what the publication was if it was the free press or seven days, but it was written by a staff writer. Okay, I don't think so, because what we're talking about here in terms of ex-party communications is a hearing has been opened and outside of a hearing on a case, a board member and the applicant are sitting in the parking lot talking about what was just presented. So I really can't speak to this article. I didn't see it, but it doesn't sound, it doesn't strike me as something that would be ex-party communication. It may, it may be something that people think might prejudice a board member, right? But I mean, these are things that happen in everyday life. Like, you know, you may have a personal opinion on this project that you wouldn't love to see, but if you can set that preference aside and look at the application and apply those proposals to your bylaws and say, does this comply without that, you know, hint of, oh, but they said all these things and that article said, this is gonna happen. I would say maybe the article or concerns you hear outside can, if appropriate, can influence the questions you ask in a hearing. Like, you know, the article said, this is gonna cause X number of things. Is it true, you know, how many things is this gonna cause? You know, like there's ways for the hearing to kind of respond to other things. I don't, without knowing, I can't say if it's, I don't think it's ex-party communication because you just, but it could, it could be that, you know, it leads to prejudice or bias or even just, I would say more bias. Like is it coloring a DRB member's opinion on the project where they should just be looking at the proposal and applying it to the criteria in the bylaws without kind of these outside influences factoring into their decision? I don't know if that really answered your question, but without seeing the article, I can't really speak besides in general terms. I mean, if an applicant thought, you know, they were asking questions that were based on this article and they didn't give me a chance to respond or clarify things, then an applicant might, you know, appeal and just say, you know, they were all biased and I didn't get the chance to share my evidence and, you know, they didn't X, Y, Z, but that's why I would say just set your opinions at the door, look at the bylaws that apply, ask questions to clarify what's going on and then deliberate strictly within those confines and not anything outer that wasn't addressed at the hearing. So these are, this is just your rules. I found several portions on X-Party Communications and the rules procedure. You have a prohibition on X-Party Communication during site visits, it's clearly stated, but obviously DRB members conducting site visits can't always control whether a party engages in X-Party Communications, you know, they might just blurt something out while you're there, but your rules do recognize that they can occur inadvertently and spells out how you manage those communications specifically by bringing them out and open and putting them on the record during a hearing and that's what I would say really, you know, as good practice for any site visit unless you do treat it kind of as a hearing and you're taking minutes and notes that are then incorporated. I would say a lot of the observations that are made should be reiterated at the hearing for everyone to talk about and you can say that to people on a site visit. I know you wanna talk, we're here to observe, we may ask questions, is that a shed or a living quarter? Like those things are kind of to pull out evidence but should be reiterated for discussion at the hearing. And then finally, this broader topic of conflict of interest are addressed in this element of due process. We typically point to four types of interests that may result in a conflict. Direct financial interest is a conflict of interest can be present when a local official acts on a matter affording the official direct financial gain. Okay, your property owner and the tenants applying. You're not sitting on that hearing. An indirect financial interest, a conflict of interest may be present when a local official acts on a matter that financially benefits a person or group closely tied to the official or employee. We see a lot of this in terms of a spouse's company or something like that. Direct personal interest, a conflict may be present when a local official acts on a matter that benefits the official in a non-financial way but in a matter of significant importance to the official and then an indirect personal interest, a conflict may be present when a local official acts on a matter in which the official's judgment may be affected because of family or personal relationship, membership in an organization and then a desire to help that person or organization further its own interests. So those are kind of the four main types of interests we identify that might result in a conflict. We start from a place of avoidance. You don't want these, avoid them when possible. They happen, especially in a place like Vermont, smaller towns but a city like Burlington as well. How do you deal with the ethical dilemmas when they can't be avoided outright? And the first step is identifying them. The second step is acknowledging that they can't be eliminated completely. They can only be managed and then disclosure of a conflict or a potential conflict achieves the goal of transparency which again is crucial to maintain the public's trust in the system and then disclosure can also allow a member to kind of cleanse themselves by describing the apparent conflict and kind of explaining it maybe stating whether the member continues to act fairly and objectively. Like I know I have this relationship but these are the reasons why I believe I can put it aside and be fair. But we're really talking about both actual conflicts and perception of conflict because if you have perceived things that can really undermine like I said, the public's trust in the system. So here disclose and discuss, consider recusal, state on the record I think at the hearing whether you're gonna be recusing or serving. And then if you are serving despite an apparent conflict just say why you can be objective and then act in that same way. Our conservative advice of course is if there's a lot of questions and someone saying please recuse yourself. If there's a quorum without you and business can proceed it might be best to just excuse yourself from that hearing just even if you have a strong opinion we're always gonna kind of go with the most conservative advice to avoid any challenge or appeal. This is just quickly to say if you do fail to address a conflict there could be repercussions. It could void and remand your decision if a court agrees that there was a conflict that was not managed or mismanaged while DRB members are appointed and enjoy sort of for cause protection in terms of removal from the DRB this might constitute for cause. We have this conflict of interest policy there was a clear conflict they didn't recuse. It was appealed, it was remanded they couldn't participate. Okay, the city council says that's enough cause we're gonna provide a hearing but we wanna remove you. Again, reputation and there could be a challenge based on a violation of constitutional rights all these due process and equal protection things that we're talking about. So really it's just appeal, appeal base there. And so does anybody have any questions we're gonna get into the kind of practical writing a decision that's effective but anything in terms of due process that's confusing or that you wanna explore? Just a clarification on recusal and it's almost never been a problem. It's not kind of like understanding that the recusal is ultimately up to the member. It is, absolutely, it is. I think you're right. And that's why I said if I mean if someone has a conflict let's say and it's clear and really actually even a perceived conflict they decide whether they want. I didn't look again, I would assume I don't wanna assume. I think our rules have a provision that allows the board to vote on whether to allow them to participate. And I think there's also follow up. I was gonna say it could come down to your rules but participation shall not participate where she usually has a conflict, disclosure, recusal shall recuse him or herself. So that's a personal decision. But then there's typically a provision that says what happens for failure to follow this and see your rule, what is it? 12 C on page nine, progressive consequences for failure to follow procedures. So it's progressive action to discipline and offending board member. But I think that's right. In the first instance it's up, it's a decision, recusal is a decision for the board member. And that's why I was kind of saying if there's a lot of people in the room that are saying or requesting or even your own board members are saying will you please recuse yourself? I think it's best to heed that advice but it's ultimately up to the individual member. That's why I touched on failure to do so could have repercussions and your own policy says here's what the board can do. We typically say, admonish the person in private, use an executive session and say, you're out of control. Why are you sitting on these things? You're giving people grounds for appeal. I don't think I'm being hyperbolic but you can use executive session to have that private conversation. If it's really egregious, you can talk about it in open session and people can say it can be a separate agenda item. Let's talk about this person's conflicts and how you're behaving. So I think that's what the policy speaks to in terms of consequences for failure to follow it. Susan Brooks MacArthur here. I apologize. I have to leave early to pick my daughter up at La Crosse but I just wanted to thank you very much. It's really helpful. Okay, great. Thank you. I'm sorry we didn't get to the meat of this. This is more practical stuff. You'll have the slides. Thanks for announcing your exit. Anybody else have any questions? I'm not seeing the chat function because I have, is there any chat questions anyone sees? I don't think so. Just chime in. No, there's no chat. Okay, great. So let's move on to the last part. Okay, so we have, we have all the, how do we hold a hearing? What's the purpose of the hearing? How do we behave as members? And then here's the, okay, we had the hearing now. How do we write an effective decision that we can enforce? First step, we close the hearing. You can adjourn, you can close, use clear language, don't conditionally close. Oh, we'll close this hearing, but can you just send us that piece of evidence after the fact? It's really cleaner to do what you did tonight. We have more questions. We want potentially to do a site visit. We're gonna continue the hearing. That's different closing a hearing, adjourning it triggers that 45 day time period we talked about. Before you close the hearing, make sure you're satisfied that you have all the information you need to make a decision. You can use deliberative session to discuss whether more information is needed, which would kind of lead to reopening a hearing. But it's cleanest to just make sure you have all the evidence before you close it in the first place. And terminology is important. Continuing a hearing to a date and time certain preserves notice. Recessing a hearing is like a five minute break. Let's recess, let's talk quickly and come back. Let's recess to let this person, this applicant scan in a piece of evidence they wanna scan in or run to their car and do something. So a recess is during a hearing, you're not, it suspends it for a brief time. Adjourning means to end or postpone. Again, you can adjourn to continue it. But when you're closing a hearing, close the hearing. So it's clear and avoids confusion. And everyone knows, a lot of times people say motion to close the hearing. Second, now we're closing the hearing, we'll issue a written decision after we deliberate within this amount of time. So just be as clear as you can to make sure everyone's on the same page. And then once you've closed the hearing, you're automatically by virtue of the law, by operation of the law in deliberative session. And then on the path to issuing your written decision. And there are many statutory requirements that impact your decision. They involve deadlines, deliberations, voting, writing or crafting your decision and then distributing slash issuing your decision. So we'll talk about these quickly. Deadline again, 45 days after it closes. If it fails to meet it, the application is quote unquote deemed approved or could be deemed approved. That's really a remedy that's sought by an applicant who wants to raise a timeliness issue with the court. So it's not something you should just rubber stamp, it's to avoid protracted deliberations that go on and on past 45 days. But be mindful, it is a remedy they can seek if you don't meet the deadline. I would say, people get confused. I did when I first started as a ZA, it's not the equivalent of a permit and it's not automatic. So what we recommend is you still issue, 46th day, 47th day, you issue your decision and you'll let the applicant raise that timeliness issue and seek deemed approval from a court. Okay, they need to go get it deemed approved which then instructs a ZA to issue a zoning permit in accordance with that approval. Okay, so that's, it's a court remedy. It's not something you have to say, oh, time's up, we wanted to deny this or we wanted to attach conditions, but we can't. We ran out of time, process it and the burdens on the applicant to kind of realize that and raise it with the court. And then also until it's ruled upon by a court, the ZA can take enforcement action. So if somebody does start, oh, it's deemed approved because you didn't issue a decision. The decision in that case has to come from a court. It doesn't mean no decision has to be issued. So if development begins because they're relying on deemed approval, the ZA can say nope, you're stopped, you don't have a permit because you never got one from the court. Let's get a quick question. Is deemed approved basically approved as is, right? Because a decision hasn't been made and conditions haven't been passed. Well, I mean, it would be up to the court to decide that. So they may say, I personally say that would probably be the argument, right? If it's deemed approved, there's no approval with conditions, right? So I'm trying to think, I can look into that. I'm gonna look into that actually because I wanna see, typically a board, the court's gonna say it was deemed approved. I wanna look at those cases to see if they've ever kind of looked at it in attached conditions. I would say probably not because if it's deemed approved, it's like a stamp. What they propose is deemed approved but then there's the whole non-conformance piece. I will look into that because I don't wanna answer that. Susan, we could issue a permit on day 46 and it would be up to the applicant to challenge us on the deemed approved. Yeah, deemed approval is a court remedy. So I would say, don't get up against day 46. I'm not trying to say like, oh, this is really nilly a pass to let you all do that. But I remember going, my first year I was probably six years out of law school and my first year as a ZA, I went to a VLCT training and it was all about deemed approval on how it's court remedy. And I was like, but the statute says shall be deemed. Like it's shall. It doesn't that mean a ZA, I have to approve it. But the case law on this point says, it's not a tool for the board, it's not a tool for the ZA, it's a tool for the court. And there are kind of issues of fact that may be dealt with at the court. They may say, oh, well, it was closed. I mean, there just may be facts that they parse out, but the deemed approval, the timeliness of issuance of a decision is dealt with at the court level. I mean, there is a lot we could get into on deemed approval, but I want to keep it general. Meet the 45 day thing. If you don't and it's literally 46 days, our advice is issue the decision, process it, issue it. And that's a court remedy they can seek because our interest is having the board issue a decision with conditions if they want or a denial if they want. And so because it's a court remedy, we're gonna say issue the decision you want to issue. And then it could be challenged based on this ground and be aware of that. So avoid the timely, protracted decision-making in the first place. It's a little bit different. And I've only seen a record of it in our zoning history files, but I did find issuance of a permit. And it's noted that because the applicant did not receive the written decision that his application was approved and it created a non-conformity. So it's a little bit different. It would have been notice of the decision to the applicant, but it's just a note in the file that the application was approved because of failure to notify. So it's like, oh, one more thing we can't forget, right? Right. Well, and I would say in those cases too, there are different rules for a defect in certain decisions. Like depending on what the defect is, it doesn't just toss out things. But I think a lot of times, ZAs look at the language and it shall be deemed approved. So as a ZA, am I supposed to just say it's approved? And I think ZAs do that. But what we have learned from case law that ZAs may not be aware of is it's a court remedy and really just put it on the applicant to do that because you have an interest in not having non-conformities. So you wanna make sure you don't do that the first place. Notice the decision too. I mean, it's really from the data visions, but anyway, I'm not gonna go there because I don't know the facts, but I would say too, if you're going to reopen a hearing, we talked about earlier not being satisfied with something and you're reopening the hearing, it doesn't, again, toll or extend your 45 day deadline. So that's why I said you run into all these other problems. If you're not satisfied and you wanna reopen it, yes, it's available. If you're before the 45 day period for deliberations and you wanna reopen hearing cause, oh, we discovered this is wrong or this measurement was wrong and we're relying on evidence that we have now discovered, or we didn't really ask about this and we should have. We recommend you get a written waiver of appeal from the applicant to say, look, we wanna make the best decision possible. We're running up against this 45 day deadline. I think it's in all of our interests to reopen the hearing, but we wanna waiver, excuse me, of the appeal period if we're gonna reopen it because that 45 days doesn't go away in those instances. So just have that as a flag. So deliberative sessions we talked about a lot. There can be private or public deliberations, but again, we always recommend they be in private. You can discuss anywhere, anyhow, distribute and work on drafts, et cetera. It allows DRBs to deliberate and reach a decision similar to a jury. And I guess whether you go public or private depends on preferences of the members, the nature of the application, kind of the culture of your community, what's expected. I mean, we have a lot of small towns where they just say the decision and they go through and then their minutes constitute the written decision. And it's, you know, why do that? You have 45 days, like close the hearing, talk about it privately. You know, use that time to your advantage to have a well thought out, well crafted decision. On occasion, DRBs have changed your mind. I don't think this is anything you probably have run into in Burlington, hopefully, I don't know, but on occasion, DRBs have changed their mind and verbally issued said, oh yeah, that looks good as long as we have these conditions, we'll approve it. And then they get into deliberations and it's like, wait, what were we thinking? This isn't this, wait, what, this, you know, this all lends us to being like, no, we should either change the conditions we said or really deny it and they wanna change their minds. And that puts the DRB into a difficult situation of reissuing an amended decision that kind of reverses or modifies an earlier verbal decision. So we would say preferably don't issue a verbal decision, it's far easier to ask the parties to kind of wait a couple of weeks for a written decision than kind of the dagger of, oh, we approved it but actually no, upon thinking about it, we're really gonna deny it. That's not good for anybody. This is just a note on the court saying your bylaws must not create standard list discretion. There must be a balance between providing guidance and avoiding inflexible requirements which would defeat that creativity and flexibility. Bless you. When in doubt, ambiguity in the regs should be decided in favor of the property owner. That's an important point I think to keep in mind. Again, your property rights, not your property rights but property rights are involved and due process calls for clear regulations, notice nothing arbitrary. The DRB must apply the zoning regulations regardless, excuse me, of personal beliefs about the regulations, about development in the city, about the identity of the parties. Again, this goes back to disinterested or impartial decision makers. Jury nullification happens when there's a jury verdict that's contrary to the letter of the law. This can't happen in a DRB setting. You're not determining whether a zoning provision is legal or if it complies with state law, if it's legitimate, if you believe in it, if it works, if it doesn't work. You're applying the facts of the application to the bylaws as written and those bylaws are presumed valid unless found otherwise on appeal. The law is changing all the time. I'm thinking of like agricultural stuff comes up a lot. I found this statute and our bylaws don't conform with 24VSA 4412 or 4413 and it's clear that they don't, okay, bring that to the attention of your planning commission so they can revise them, but that's really a ground for appeal that the applicant needs to raise, not you to throw out your bylaw and say, we're just gonna ignore that piece because we don't think it complies. That's not your job and I think it's difficult and it can be confusing. So conditions, if you wanna approve with conditions, you're allowed to do that. They are related, they must be related to a specific bylaw or statutory allowance in order to be valid. Again, the reasonableness standard, if they're reasonable. State law allows towns to adopt a bylaw that would allow conditioned approval for development and then issuance of the zoning permit contingent on receipt of state wastewater or water supply permit. You can adopt a bylaw that says, you know, you can't get this until and unless this wastewater permits issued, you can hold up the zoning development piece of it. It's okay to require a bond as per account or other surety to assure completion of the project, adequate stabilization or protection of public facilities that may be affected by the project and then a satisfactory installation of streets and other required public improvement. So all of those are things you can put in your decision expressly allowed by state law that says, you know, we're gonna approve this on this condition. Otherwise, you're really looking at, does it meet the specific requirements or can reasonable conditions that are related to a criteria in the bylaw that we're reviewing, will it help achieve compliance? And conditions can be found unconstitutional if they are so onerous, they constitute a taking. I know the word taking of private property in the zoning sphere can be thrown around a lot. But I think in terms of very onerous, unreasonable, unrelated conditions, really do speak to a takings challenge. And I think, you know, I think most boards looking at the criteria and a plan kind of know to stay in that lane, right? Screenings required to do X, Y and Z. Okay, we don't see screening. We'll condition it if you have screening. And then this nexus, rough proportionality is kind of the case law terminology. That means kind of the same thing. Presidential effect decisions. So in a court of law, legal precedence, a principle or rule established in a previous legal case, that's either binding on or persuasive for a court when deciding subsequent cases with similar issues or facts. And courts place great value on deciding cases according to consistent principled rules so that similar facts yield similar outcomes and predictable outcomes and consistency for predictability, sake, rule of law, all that. And the observance of precedent is the mechanism by which the goal is attained, right? But generally DRB decisions do not have presidential effect legally, okay? It's not the same as a court decision. However, failure to follow precedent or make similar decision based on similar facts and the same rules may lead to a challenge of arbitrary or prejudicial decision making or favoritism, et cetera. So it could lead to appeal if you're not consistent. There is gonna be a lot of factual analysis in terms of is this the same? Is this apples to apples or are these things different? Is the bylaw specific or isn't it? I will say there's one very limited instance when a DRB decision becomes actually legally binding and that's in terms of previous decisions on the same proposal that are legally binding. The case that I'm speaking about, a BlackRock case said the DRB issued a sketch plan review decision. So it was like a sketch plan review preliminary and final. And so sketch plan review, they didn't apply for preliminary review. I think it was preliminary review and the time that they had. So they had to restart with sketch plan review and the findings and determination the board made on the same proposal, the proposal hadn't changed and the bylaws had not been or the regulations had not been updated in the meantime. So literally apples to apples very narrow. That is going to be legally binding. It wasn't appealed. So that was a final in binding sketch plan review decision in a subsequent sketch plan review. DRB was bound by those previous conclusions, but I'm not saying throw out, you know, similar decisions. It's good to be consistent and to be predictable. You could have challenges based on other. You know, considerations like arbitrary decision-making, things like that. Majority of the entire DRB has to vote to take final action on an application. Again, you count the seats, not the people in the seats. So it applies regardless of abstention, recusals or vacancies. So quickly to touch on what happens if less than a month and a majority of the entire DRB vote one way. Is there deemed approval because no decision on the application and that's not necessary. Not necessarily. Excuse me. You need to look at whether a decision has been reached. Okay. So let's talk about a seven member board. If no concurrence of the majority of total members, you have no action, right? So if you have a seven member board, you have a bear quorum for people show up and you have a split vote three to one. There's not a concurrence of a majority, which is four, right? It's the same standard for quorum. So four people. They're, you know, you haven't had a concurrence of majority, but was there a decision and that type of split. Maybe a decision. That prevents deemed approval. You have to look at whether the involvement of the other three members of the DRB might have changed the outcome. So the rule is if the involvement of the other members of the DRB would not have changed the outcome, a decision has been issued and deemed approval can't occur. So an example, five of seven members of the DRB would not have changed the outcome. The vote is three to two. So there's not four. There's just three. You need four. So if the two other had participated. You could read, you could reach four. Right. Even if only one of them went this way. You could potentially reach four. To either approve or deny. Therefore, a decision has been made. So the vote is three to two. So there's not four. There's just three. You need four. To approve or deny. Therefore, a decision has not been reached and you risk deemed approval. But if you have five of seven. And one abstains and the vote is two to two. You wouldn't change the outcome if two additional members participated. Right. Because you have. Two, two. And to the other way. So this means there is a decision and no risk of deemed approval. If you don't have four. If you have three and two, you got to look at if these other members, do we have enough? You know, and usually it's abstention and stuff that kind of makes these numbers go weird. So I would say in that situation, you know, it's best to really get city council to like look at what happened and it has a decision been reached. There wasn't four either way. What about these other people who didn't participate? And then, you know, if you run into a situation. Can't we just, you know, we've done it. Can we just. If we only have a bear quorum. Can we wait? We have more members present to, to vote with enough members that we have a better decision. I would. Love that. Yes. I think a lot of towns, you know, get a bear quorum. And. Can't find alternates and want to just run it. And it's a, it's a, it's a contested precedence contentious. But they want to, they want to get it done. And then you're kind of left in the decision. And a lot of people, I mean, a lot of boards think. It's majority of people who voted, you know, so you four out of seven, we had three versus one. And so, you know, you know, you know, you have to go with it and nobody challenges it. And that's, you know, that's what's made, but it's, you know, I've got to. Got to point these things out in a training because it's a thing. And the deemed approval thing gets complicated. So I would just say, you know, if you are operating with. Even five, like say you had five, but somebody has to abstain because of a thing. You might be in that same situation. The result of which is probably, you know, you're not going to have a decision. But you're not going to have a decision. You're not going to have a decision. You're not going to have a decision, you're not going to have a decision. And you're not going to have a decision. And you're not going to have a decision. So that's what I'm saying and saying, we need the decision on this, but yes, have more than a bear quorum and hopefully you'll avoid that situation altogether. Okay. So let's talk about when the voting is done, you made a decision, but you're drafting the written decision itself. 4464 and title 1424, rather, sets out the required elements. So let's talk about, so we kind of say your meetings, your meeting minutes probably aren't going to do that. So if you were in decision, I'm quite certain that's your practice. So I won't go into that. Includes statement of the factual basis on which the, the RB has made its conclusions. Statement of those conclusions. And then notice that it may be appealed when, how and where it needs to be in there as well. There isn't a requirement legally in terms of your format of your decision. So let's talk about what we recommend. Basic application information, you know, describe the use, introduce the parties, talk about the procedural history, you know, this hearing was held on this date. They adjourned to do a site visit, which was held on this date. Now this is the final hearing. These are the relevant. Bylaw provisions, subdivision regulations that we're reviewing it under. Here are the findings of facts, the conclusions of law, and you can have those global or issue by issue. So, you know, you may take each aspect, like conditional use, you may take each criteria. Okay. Here are the facts on this. Here are findings of facts. This was the evidence that we found to be reliable and relevant. And then these are the conclusions on each issue. And how you kind of format that is up to, it could be global. It could be. It could be bylaw provision by bylaw provision. It could be aspect of the proposal. It's up to you. Your ultimate decision approved, approved with conditions denied signature and notice of the party's rights to appeal. Conditions, just another note, make sure if your approval is granted with conditions, they can be measured or observed and include a timeframe for when they should be addressed so that they can be enforced as a temporary administrator. That is immensely helpful. Clear conditions, you know, a decision was made in 2005. And it doesn't say when this had to be done by it just says, submit upon completion of this thing. Okay. Well, what, like, when does that have to happen? You know, the clear, just think about it in terms of a historical record, right? You have a court maybe involved that has no background. You have a DRB that's looking at the same thing in 10 years or a ZA that, you know, is stepping into the new role and they need to know what's happening just within the four corners of that document. Signature, either it's a chair or vice chair, or those who voted in favor. Any, the statute says any decision or order approved for issue by the board, including legislative body, which is required by law to be in writing, maybe signed by the chair or vice chair on behalf of the issuing body. And then the ZA signs and issues the permits based on that approval. Finding the facts use the evidence presented that the DRB considers again to be credible and relevant to develop and support the conclusions and decisions. Examples are what's the application for what district is this and what's the rear setback. There are three steps to finding facts. Review, analyze and deliberate over the evidence presented at the hearing. Filter what you hear as it relates to the applicable criteria. Don't prejudge the application. Keep an open mind. Listen to the testimony that's being given. And then make those findings, compare them to the applicable bylaw and form conclusions about compliance with your bylaws. And then you make your overall decision whether to approve, approve with conditions or deny as necessary. And then you make your final decision. Your conclusions of law state whether the proposed development meets the applicable provisions of the regulations. So it's separate from your actual decision of whether you're approving or denying. Sorry, I'm just looking at the notes because I have a couple slides on this. I don't want to belabor the point. So the court said the purpose of the written decision is to make a clear statement to the parties and the court in the final decision. So the court said the decision was made to make a clear statement that all the decision was reached. The decision must show the reasoning, linking the evidence to the factual findings and linking the factual findings to your conclusions. So walk them through. A equals B, B equals C. So A equals C. Like just make it clear for everyone. Who might be looking at this. I gave some examples. I don't know if they will raise yaks. Applicant testified. She will in fact raise yaks. That's what we're talking about. So you're finding a fact is applicants raising yaks. I mean, that's straightforward. I'm not doing anything difficult. It's just a illustration evidence. Applicant has a valid wastewater permit. This one's a little bit different. Health inspector testified there's no pollution problem. Finding a fact might be the site will not pollute the neighbor's land. The site will not pollute the neighbor's land. Or maybe pollution measures are in place to prevent pollution. You get the drift. So we have those two finding facts. Applicant will raise yaks site will not police pollute the neighbor's land. Conclusion proposed use of raising. Oops. Sorry. Raising yaks will not cause undue pollution on the neighboring properties. And that's the language from your bylaw section. Therefore it will comply with it. So that's what we're talking about. So that's what we're talking about. So conclusions of law are kind of the, therefore compliance things based on your, based on the evidence. Why did I just do that? Sorry. Distributing your decision copies. This is all laid out in statute. You must distribute the written decision again, because you didn't make the decision on the record. You deliberated and. Issue the written decision state law says copies must be sent to the community. You're not allowed to send a written decision. You're not allowed to send a written decision. You're not allowed to send a written decision. It's not possible to every person appearing and hearing. If you have members of the public that appear, they, they participated. They get. They get a copy and then filed with the ZA and town clerk. So there are public records. And then the ZA issues the zoning permit based on the DRB's decision. Or holds it up. You know, you got to, you got to send us your wastewater permit. Timing for appeal. According to Vermont rules of law. Parties have 30 days following the issuance of the decision to make the appeal. That's not counting the day of decision. Day one is the following day and it's the date it was signed, not the date it was mailed, not the date it was received. The date it was issued, which has been interpreted as when it was signed. So whoever signs and dates it, that's the time. That's the tolling of the clock. So that's not counting the day of decision to make the appeal. If you have a permit issuance, a land use permit doesn't take effect until the applicable appeal period passes without an appeal being filed. Different zoning administrators handled things differently. Technically, you know, if, if they issue your DRB decision and the permit at the same time. 15 and 30 days don't line up. So some ZAs might hold the zoning permit for 15 days. They might not be able to do it at the same time. If an applicant hasn't let those expire, they're doing things at their own risk. Because you might have a neighbor that says, wait, I didn't get notice. I didn't even get notice or I didn't, you know, I didn't get the decision. I don't like this. They are off their rocker. I'm going to appeal anything they've done in the meantime. Well, you know, the ZA issued the permit and that only has 15 days. Well, you still have another 15 days till the application is completed. So that's what they sent them both out at the same time. So different towns and cities do it different ways. But the main point is that both of the applicable appeal periods have to expire before it's actually effective. And that's it. And I'm sorry. It's a lot to throw at you. But I, I don't know how long you all want to stay. We have the inquiry system info at the LCT.org. If something just threw you off or you have a question, you can email that. You can email me directly in terms of this training, but I'd open it up for discussion or questions. I just had a quick question about the findings. So we have this, I'll call it an odd practice about signing the RV findings that we do just because it's the way it's always been done. Okay. Right. So we have the board chair sign public hearing items. We have the board chair sign. We have the board chair sign. We have the board chair sign. We have the board chair sign. We have the board chair sign. We have the board chair sign. So so divisions conditionally uses stuff like that. Okay. But stuff that's just site plan or design review. So not technically a public hearing. We have not had the board chair sign those. Did I hear correctly that all the DRB decision should be signed. We do have a director signature on the issuance of the permit itself. But the findings. Some do not have a chair signature. So we have the board chair sign. We have the board chair sign. We have the board chair sign. Well, but they're findings that then. They're findings that are received by the DRB for, as evidence basically, is that what you're saying? Sorry. It's a. The findings are the decision. Yeah. Yeah. Let me. Look at your. Regs. I want to answer this appropriately. I mean, basically. The statute is broad and says. Yeah. Yeah. It's a public meeting, but it's not a public hearing. And that's where it may come down. Sorry. Let me just look real quick. Decision. Because the statute talks about one written decision. What did I say here? Sorry, I want to get the actual language. First of all, I will say it can't hurt. Okay. Yeah. Let me, if I can find it quickly, I don't want to hold you up because I can always email you a follow-up. Yeah, that's fine. I just want to find the language that says, you know, I just, I read it. I guess are there instances where the chair does not need to sign the findings. Right now we're. Yeah. Yeah. Then I would say, yeah, it should be signed because of the thing I just read that I'm not finding right now. And it's until 24. And I'm really sorry. I should be able to put my finger on it. Well, maybe you could get back to us on that. I want to get back to you after actually looking to what exactly you're talking about and what your ordinance says, because it may just be that it's this other. Review thing that's not, you know, it's this other thing. I don't know. I don't know. I don't know. I don't know. I don't know all these other things or that wouldn't hear any decision or order approved for issue by a board. Commission committee agency or authority of any municipal corporation, including the legislative body. Select board, which is required by law to be in writing. See that's, that could be the thing. Maybe signed by the chairman or vice chairman on behalf of the issuing body. Maybe. So maybe not. I don't think it can ever hurt. I don't think it can ever hurt when you're issuing a decision, even if it's not required to be in writing by statute. I think that's what it turns on here. But it could just be that it's in your rules of procedure. That issuance of this thing that's appealable needs to be signed by the chair. I mean. Okay. I'll get back to you on that one. I really don't think it can ever hurt. I don't think it can ever hurt when you're issuing a decision, even if it's not required to be in writing by statute. I'll get back to you on that one. I wrote it down. A lot more work for you, Brad. Yeah, right. That's what I always say. One in doubt. Just. I don't know. But again, does it have to be in writing? So I think it, there are questions along the way that I'll look at. Go ahead. Sorry. No, it's going to say thank you for the presentation. I guess we'd have your email there so we can. Yeah. Yeah. Thank you. Thank you. Thank you. Well, inquiry service. So we attorneys kind of take turns and shifts. If you want to reach out to me directly based on this presentation, that's fine too. It's S sending at the LCT. Maybe Scott can share that. If. I could put it in the chat. It might be. Not the info at. Info at is fine. You're going to get any attorney in the Mac division, but you're going to be able to do that. I think that's something I talked about in this training. If it's a follow up, but they can answer the same question. I mean, any one of us are happy to answer those questions. Okay. And good. Well, thank you. Any more questions. Good luck from what I saw. You guys are all doing a stellar job. From the 10 minute hearing that I saw you. I'm going to close the meeting. So this is a, we're still in our meeting. So Alice has any other agenda items or any other business. I'm going to close the meeting. Great. Thank you. Nice meeting you all virtually. Thank you for having me. Thank you. Okay.