 I'd like to make a motion that we leave the executive session. Second. On fair say aye. Aye. Aye. The next item on the agenda is item number 10, which is a request for re-hearing from item 2019-0061 for 1039 Byron Road. I do want to just reiterate that today's matter is not whether the special exception should have been approved or denied, but whether the specific request before you qualify for re-hearing. The language for re-hearing comes from the board's rules and procedures, which is article 5, section 10. So, and it also states that testimony is only allowed by leave of the board if necessary for the limited purpose of developing an understanding of the nature of the request. So, public comment will not be heard on the matter of the request. Very good. Mr. Ward. Toby Ward, and I do represent the Meta Field neighbors. I'm not here on behalf of the Meta Field Neighborhood Association. I want to make that clear, but I am here on behalf of many residents of Meta Field Neighborhood. First of all, as was said a moment ago, the criteria are set forth in, the criteria for re-hearing are set forth in what we're focusing on today are two things. Number one, that at the outset, the board lacked subject matter jurisdiction to grant this request. And then number two, that there was, in fact, misrepresentation that is both by the applicant and by the staff in the, how your rules were supposed to be applied to this matter. So, first of all, the board, we believe, lacked subject matter jurisdiction to grant the permit to cause under 17-1-1-2 of the city ordinance. It says that you are authorized to hear and decide only the applications for special exceptions as the Board of Zoning Appeals is specifically authorized to pass upon by the terms of this article. Then next turn to 17-265, which addresses the general requirements. And this is really the problematic area because it states the Board of Zoning Appeals shall receive a determination before granting a special exception for a daycare. Thus, we submit that the Board of Zoning Appeals did not have the power to hear the application as it was not authorized to pass upon it under the terms of the city ordinance because it did not have before it at that time the DSS approval. And that goes to, that's not a misrepresentation, that is simply you didn't have the subject matter jurisdiction to decide the question that was before you. And unfortunately, that was not pointed out to you at the time. It was, it was pointed out and so it really is not new evidence. We can't make a re-hearing determination based on that because we actually discussed it in the meeting that it was pointed out that we couldn't make that determination. I spoke to Ms. Bailey about it and basically said that it was contingent upon DSS since DSS would not approve anything until it had gone through all of the other processes. So it is correctly stated in the audience that it is, you know, supposed to be approved by DSS before we hear it. But as a matter of practicality, they won't approve anything until it's all been approved by us. So I guess we've got to check the time but I'm afraid that that was discussed at the hearing so I don't know that that's new information. Definitely not new information that the ordinance prohibited consideration of the matter. But it is obvious that this board did not have the jurisdiction to decide the question and questions of subject matter jurisdiction may be raised at any time. But turning from that, the other two items that we want to bring to your attention are that there were misrepresentations and those were first of all by the applicant. Under item three on the application, the applicant had to represent that the proposed use complies with all other requirements of the City of Columbia zoning ordinance. Well, because they did not have the DSS approval, it did not comply with the City of Columbia zoning ordinance. And all persons are charged with knowledge of the law. I believe this was a knowing misrepresentation but it was a misrepresentation as much as if a seller of an automobile tells a car dealer, this car has never been wrecked and then you buy it and find out that it has been wrecked and you say well the car dealer told me it hadn't been wrecked but if the car dealer was told that then it was not, it was a misrepresentation by the car dealer but it's not necessarily evil intent. And in this case it may well be that the applicant didn't know what item three on the application at the bottom above her signature said or meant but the Board of Zoning Appeals should follow the rules that are laid down by City Council and City Council requires that the property be properly the subject of a daycare exception by the DSS grant. So again, so the applicant misrepresented because the property did not have a DSS approval. Furthermore, the applicant misrepresented because there was no, the property does not comply with 629-1145. That is, there is a use restriction against the proposed use in a restrictive covenant but the applicant misrepresented and said that there was not. Again, I agree that they were not in the application which brings me a good deal of concern but they were presented at the hearing both the fact that DSS must approve it and the fact that we actually had a chance to review the restrictive covenants and I'm not saying that we were necessarily right but we reviewed them, they're not new evidence and so we made a vote based on those facts and with the full knowledge. Had the applicant made those statements and then we had not had those documents presented to us I think that would certainly have been new evidence that we could request a rehearing but I have a hard time being able to do that now because we actually did see all those documents and we did vote based on knowing all that information. Right and our belief is that whether you knew it or not the applicant has to state the facts correctly and if you're going to approve applications based on misrepresentations then that's a policy problem that can only be addressed by adhering to the rules that the application you are not the policeman of whether or not the application is correct. That should be determined by staff and here there were two material misrepresentations. Then the third point is that the zoning administrator we think through misinterpretation misinterpreted the legal effect of the covenant which had the effect of an unintentional representation to you to the board the zoning administrator determined and you can look at this on the video at minute 57.12 that the covenants prohibited the covenants that prohibited businesses usually say no business or commercial use however that is not what was said here and so she said therefore by not stating that business or commercial was excluded that it could be included we think that that was a misinterpretation that led to a misrepresentation because the covenant clearly says only used for single family residential purposes and the use as a daycare which includes a business license clearly is not a single family residential. Secondly the second part of the covenant that the zoning administrator relied upon is connected by the conjunctive and which says that which means that each part has to be given equal weight and you can't weight one more than the other which leaves you back with the prohibition against any use other than single family residential. There's ample case law that supports that but more importantly there's these general legal notions that apply to restrictive covenants that when they are in conflict the more restrictive of the two prevails and a zoning law cannot constitutionally relieve land from lawful restrictions affecting the use of that land so we think that the misinterpretation by the zoning administrator that this business use was allowed led to the result that we have today and we think that you should grant a full re-hearing on this matter so that the correct interpretation can be presented to you and remember this with subdivision restrictions they're so important because a change in conditions sufficient to make the covenants unenforceable it begins with the first exception that is granted and that's why the people who live in Meadowfield are so concerned there always has to be a first exception and if this one is granted then you begin to undermine the enforceability of their restrictive covenants and that's what protects homes and neighborhoods from intrusion by commercial uses so in conclusion I would just like to say that we believe that you lack subject matter jurisdiction to grant the permit simply by looking at the ordinances themselves and you have the authority to revisit that at any time second of all the applicant intentionally or not made misrepresentations in the application and then finally the zoning administrator misinterpreted and thus misrepresented the covenants which should have been deemed to be enforceable to bar this activity so that's our request for a re-hearing on the grounds of subject matter jurisdiction and the misinterpretation and I'd be glad to answer any questions if anyone had any about this matter Any other questions from the board? Thank you very much Mr. Ward, appreciate your presentation I would like to make a motion that we deny the request for the re-hearing I would second that There's a motion to deny the request for re-hearing in a second All in favor say aye Aye All opposed no Leave the ayes have it There's no other business on the agenda today Make a motion then that this meeting be adjourned I second All in favor say aye Motion carries thank you