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Welcome to the July 22nd, continuation of the special meeting of the City of Raleigh Board of Adjustment. Concerting BOA-0036-20205-908, Williamson Drive, I'm Rodney Swink, Chair of the Board, joined by Ryan Torrey, Torrell Midgett. Thank you. And at this point, if there is no further introduction needed. Oh, I will actually make this announcement.

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As you observe, we are without an official court reporter, we do normally and we'll record

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this meeting.

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It's imperative that everyone consciously use the microphone, so we'll have the proper

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record so it can then be given a proper recording by the court.

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So I'll try to remind you from time to time if necessary, but please be conscious of that.

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So Ms. Brown, is there anything else I need by way of introduction?

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No, it's a continuation of the hearing.

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We can pick up where we left off.

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I believe that we had a witness on the stand and that the city attorney's office and

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the developer and property owner were getting ready for cross.

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And I'm not sure which of them was going first.

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Okay.

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Thank you.

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So Ms. Tatum.

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Are you ready to go?

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Pardon me?

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Are you ready to go?

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Yes, sir.

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Then it's your turn.

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Are we ready?

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Yes, ma'am.

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Okay.

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Do you call your witness?

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Do you want to clarify that we are starting our case?

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And this is direct examination for our first witness?

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Okay.

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And again, just consciously, be sure we're using microphones.

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Ms. Brown?

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I must say, I'm just to be sure we're all on the same page.

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So the witness was on the stand.

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I'm not sure whether you or Mr. Birch had cross-examined him,

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But I take it that you are not going to cross examine him and said you're going to call him as your witness is that correct?

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Yeah, that's correct and that's what we stated on the record last right at the end of the last meeting

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That was my recollection right. I wanted to be sure that we were all on the same page. Thank you. Thank you. Okay

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Okay, we'd like to call Keegan MacDonald and Mr. MacDonald. You're still under oath

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Good afternoon, Mr. MacDonald

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As you know, I'm Robin Tatum and I represent the city and the sport of adjustment appeal

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Can you state your name for the record?

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Keegan McDonald.

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Okay, and can you again, I'm sorry if it's repetitious, but can you again state how

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you're employed?

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Sure, so I'm the Land Development Manager here at the City of Raleigh, oversee plan and

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permit reviews for compliance with the unified development ordinance.

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Okay, and how long have you been with the city and what have your positions been?

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So I've been employed with the city since December 2018, first as a senior planner in our zoning administration unit in March 2021.

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I was promoted to planning supervisor, where I oversaw amendments to the unified development ordinance.

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And then in August 2024, I was promoted to my current role as land development manager.

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Okay, thank you and can you state a little bit about your educational background?

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Sure. I have a Bachelor's of Science from the University of Maryland College Park, I have a Master's of Planning from the University of Southern California. I am accredited with the American Institute of Certified Planners and also a Certified Zoning Official with the North Carolina Association of Zoning Officials.

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Okay, and are you familiar with the Raleigh UDO?

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Yes, very familiar. Utilize it daily to administer my primary work responsibilities.

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Okay. Are you also familiar with the text change from the summer of 2021 known as Missing

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Middle 1.0?

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Yes.

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Okay. And did Missing Middle 1.0 expand the density for townhouses in the R4 district?

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Yes. The Missing Middle 1 text change specifically allowed townhouses in R4 as part of a compact

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development. And before they were allowed in what type of development? I believe it was only

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conservation. Okay. Since missing middle was enacted and became effective. Have you worked

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regularly administering those ordinances? Yes I have. Okay. Can you just kind of summarize, you know,

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how you've interacted with the ordinances and what you've done? Sure. So my previous role I was involved

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involved in the drafting process and the eventual adoption of those text changes, so working

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with the actual text.

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In my current role as Land Development Manager, I assist a team of plan reviewers when

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they have questions about how to apply the code, also training general education, and one

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of my core functions is also reviewing each of our preliminary plans, so in this case subdivision

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plan for compliance and signing the administrative approval letter, which is sort of that final

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step at the end of the entitlement phase.

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Okay.

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So are you familiar with the appeal?

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In this case, that's filed by the property owners, the Solux and the Binx.

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Yes, I am familiar.

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Okay.

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And how are you familiar with that?

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I approved and signed the approval for the compact subdivision plan.

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and dated approval was on April 4th, 2025, and also reviewed the appeal that followed

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to.

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Okay.

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So, part of your job responsibilities was to check all aspects of that plan for UDO compliance.

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Yes.

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And you concluded that it did comply with the UDO?

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Yes.

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And you signed that, signed off on the plan, if you will.

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Yes, that's correct.

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Okay.

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Okay. If a subdivision plan is compliant, do you have any discretion to deny that plan?

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No, we're compelled to approve the plan if it's compliant.

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Have you reviewed the grounds for appeal for the case that's before the board today?

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Yes, I have reviewed them.

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Okay.

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And in your opinion or any of those grounds, do any of those grounds have merits?

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Correct.

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No, I don't believe any of the grounds have merit because the plan was approved in accordance

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with the video.

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Mr. Chairman, I'm just going to have a general objection.

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I did this last time around.

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The witness that we had offered up, Jose offered up as an expert in civil engineering.

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As a civil engineer, they deal with structures, they deal with spatial measurements, they deal

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with a lot of things about putting projects together.

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I didn't ask him to be an expert on how to read the ordinance, you know, to take plain

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language and rewrite it or so there was a difference between my witness and this witness.

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Obviously, he can give an opinion, but in terms of the weight of his opinion as an expert

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or to the extent that he is saying this is how to read the ordinance.

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These are all functions of the board, exercising legal responsibilities and ultimately of a court of law.

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So I just want to be sure that a court looking at this somehow doesn't see that I've waived or didn't object to something that we obviously can continue.

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I'm just, that's a general objection I made last time around.

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Yes, sir.

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Thank you for that.

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Okay, and I'll just respond to say that Mr. McDonald is a fact witness.

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He actually is the person who reviewed it and made that call.

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So, I think that he is confident to testify whether he thought what he did was correct.

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I'd like to approach right now and hand Mr. McDonald what has been marked as the city's exhibit one

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and ask you if you can identify that.

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I will tell everybody else that that is in your notebooks as number three.

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It is the, I'll let you say what it is.

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Yeah, this is a affidavit that I prepared and signed dated July 15, 2025.

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And is the information in the affidavit correct?

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Yes.

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We'd like to move to have his affidavit, admitted?

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Mr. Chairman, the same general, the same objection.

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If you read his affidavit in many places, he, this witness rewrites the ordinance.

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But he's obviously trying to potentially enter into the realm of what you're supposed to be doing or what a court needs to do.

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So anyway, just with that objection, on the record, he obviously can, as a factor in this, and I like that distinction, he can say what he did.

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Okay, do you really note it?

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Okay, if you could at this time, do you are you aware that one of the arguments of the

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appellance is that the current plan does not comply with the open space requirements

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of the UDO?

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Yes.

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Okay.

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And can you tell me what those requirements are?

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So, the open space requirements that are specific relevance here are that it be 50 feet in width, and that 60% of the required open space area be contiguous.

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Okay.

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How big does it have to be?

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So there is a 50-foot width requirement. However, this is measured such that each open space area has at least, if it has at least one 50 by 50 area within it, regardless of where in that open space, then it counts towards the minimum open space requirement.

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What's the total open space requirement?

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The total open space requirement is either 20% or 1 acre of the net site area, whichever is greater, so in this instance it was 1 acre.

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Okay, is that met?

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It is met, so they're providing 1.137 acres of open space.

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Continuing with my objection, Mr. Chair.

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I think that Mr. McDonald as the person who reviewed this can testify whether he believed that what he did was correct or not under the UDO.

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So, I'm not trying to say as an expert, I'm saying he's the person charged with this responsibility.

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He reviewed it, that's his job, and I think we can ask him that.

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I'm not saying you have to.

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Give him additional weight, but he certainly can testify and you can consider his testimony. Okay, so with respect to the 50 by 50, was that met as well with respect to this? Yes, it was. So in the current approved version of the plan, there's two open space areas and each contains a 50 by 50 area within them. Can you pull that if you don't mind pull that plan up,

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which is in a part of the record, Miss Tatum, that's a good opportunity for me as a housekeeping matter.

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The tail end of the last hearing, you city's exhibit one was marked as the approved plan.

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So I believe his affidavit is two and what you're looking at now is one.

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Okay, that's fine, thank you.

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Okay, that's the current approved plan that's before the board today.

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Yes, this is the current approved plan specifically sheet CE 2.0.

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Okay, and can you explain to the board how open space was calculated for purposes of WIT?

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Certainly. So as I mentioned there's two open space areas shown on the plan. There's one

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towards sort of the perimeter and I realize it's going a little off-screen here and then there's one

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in the center kind of marked in this darker gray area. So what we were looking at to assure

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compliance with the minimum WIT requirement is that within each of these open space areas there's

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at least 150 by 50 square.

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So obviously this is not a dimension,

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but just to give you a sense for how we looked at it

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for each open space area.

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And that's one, where's the other?

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So believe there's actually two,

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there's one can be drawn here,

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and then also in the other corner.

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Okay.

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Mr. Chairman, just for clarification,

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I do think it's helpful for the record

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that that red shows up since it was marked.

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Is there any way to continue on that depiction?

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We don't have a court reporter

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and well I think it will be on the video okay that's fine I've got it I'll make

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him draw it again okay so once those 50 that 50 by 50 what what has that

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previously been categorized as a 50 by 50 block at a previous hearing yes okay

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and outside of that block does any other area have to be 50 feet and width no

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So we've interpreted that the open space can narrow below 50 feet.

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Okay, as long as that block is met.

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That's correct.

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Okay, and is that the same interpretation that you used or the city used for the approval of the first 908 Williamson case?

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Yes, that's correct.

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And is that the same formula that you have used routinely for open space measurements at the city of Raleigh throughout the years?

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Yes.

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Has there ever been an appeal or any challenge to that interpretation?

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Other than the original appeal for this particular subdivision, not to my knowledge.

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And when did that go into effect?

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The rules concerning open space.

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Yes.

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I believe they were included with the original adoption of the InFi development ordinance

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back in 2013.

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So this is not a missing middle rule.

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No, the compact and conservation development options proceed missing middle.

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Okay.

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So this has been a rule that's been 12 years in the UDO.

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Yes.

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Sounds right.

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Okay, so you heard the testimony of the appellant expert who testified that that needed to be 50 feet

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everywhere, but if it wasn't, it would be okay to be less than 50 if you could throw a football.

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Is that correct? I did hear that testimony, yes. Does the UDO support that at all? No, we've

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interpreted the 50 foot with requirement has previously stated. Okay, and it wouldn't be any different

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whether you played football or cornhole, correct?

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No, it would not be any different.

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Okay, can you pull up the first plan?

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Okay, so that shows the plan that was approved in 2022

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was the open space calculated in the same way as for the second plan?

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Yes. Okay, and where were the 50 foot blocks in that particular plan?

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So, believe the 50-foot blocks, I mean in this particular instance, I will note there

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were three open space areas, so there's still one larger center area, so I'd have to

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use a measuring tool and software to provide the exact dimensions, but again-

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The approximate.

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What approximate?

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Fitting one 50 by 50 block here, one here, and then one in this area.

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Okay. Are there areas outside of those 350-foot blocks that are not 50 feet in width?

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Yes. They're particularly in the center courtyard area. There are some spaces within the larger

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open space that narrow less than 50 feet, so here and here.

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Okay. So when the staff decided to approve the first plan, they used the same calculation as the

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second plan. That's correct. Okay so if so if in fact that you are not allowed to use you

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were required to have 50 foot blocks all across the open space that would have rendered

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this this other plan illegal as well correct. Would have posed a challenge it probably would

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have reduced the open space below the required acre minimum. Okay but that was not what this

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board held? No. Okay.

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Okay. And just to clean up one thing, I know that Mr. Justice is going

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to say he's dropped the parking, but just for the record since you are our witness. Is there any

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parking required, vehicular parking, or bike parking required under the UDO for the second plan at

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all? No, there's not. Okay. That's all I have. I'm going to turn it over to Mr. Birch.

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Thank you.

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Keegan, if you could, have you reviewed the affidavit and report of Jose Martinez?

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I have, and have you reviewed the alleged Judeo-compliance issues identified by Mr. Martinez in that report?

226
01:06:44,940 --> 01:06:45,780
Yes, I have.

227
01:06:46,920 --> 01:06:52,880
And I believe the first issue relates to open space, specifically the measurement of open space.

228
01:06:52,880 --> 01:06:58,320
So I don't know if you have a copy of his affidavit.

229
01:06:58,460 --> 01:07:00,480
I have one I can retrieve if you have one handy.

230
01:07:00,940 --> 01:07:01,560
If you could, please,

231
01:07:13,370 --> 01:07:16,910
believe the board also has a copy of Mr. Martinez as affidavit.

232
01:07:17,450 --> 01:07:17,530
So,

233
01:07:21,720 --> 01:07:32,540
Keegan, I'm going to ask you to please find your way to figure one in his report, which is on page five.

234
01:07:33,040 --> 01:07:33,480
Yes.

235
01:07:33,480 --> 01:07:33,580
Yes.

236
01:07:34,200 --> 01:07:36,540
Can you describe Figure 1?

237
01:07:37,160 --> 01:07:37,840
Sure.

238
01:07:38,180 --> 01:07:40,460
So Figure 1 is an overlay.

239
01:07:41,120 --> 01:07:47,760
It depicts the current approved plan and overtop in red shading.

240
01:07:48,100 --> 01:07:53,060
There is the open space that was approved as part of the original subdivision.

241
01:07:53,820 --> 01:07:53,940
Yes.

242
01:07:54,580 --> 01:07:55,020
Great.

243
01:07:55,240 --> 01:07:59,860
So again, I know I asked you a few times, but again, can you describe the methodology

244
01:07:59,860 --> 01:08:03,680
for measuring and qualifying the open space and plan one?

245
01:08:04,520 --> 01:08:11,960
Sure, so again, we wanted to ensure that the total amount of open space provided met the minimum requirement,

246
01:08:12,200 --> 01:08:14,420
so 1 acre or 20 percent, in this case 1 acre.

247
01:08:15,560 --> 01:08:18,920
Also looking at the minimum width is satisfied.

248
01:08:19,580 --> 01:08:25,040
Can you fit a 50 by 50 block in each of the required open space areas?

249
01:08:25,040 --> 01:08:32,340
and also that at least 60% of the minimum required open space area is contiguous.

250
01:08:33,600 --> 01:08:41,000
And once the city's determined that there's a 50 by 50 box in an open space,

251
01:08:41,280 --> 01:08:49,280
how does the city consider the areas contiguous to that 50 by 50 box?

252
01:08:50,240 --> 01:08:55,560
Yeah, we ensure that the open space meets one of our requirements through the primary

253
01:08:55,560 --> 01:09:02,100
secondary tertiary list and that it is otherwise connected and shares a common border with

254
01:09:02,100 --> 01:09:03,500
that open space area.

255
01:09:04,020 --> 01:09:11,500
So open space areas that are contiguous or part of an overall area that includes a 55-55-50

256
01:09:11,500 --> 01:09:17,420
block, are those contiguous areas considered as qualified, compliant open space?

257
01:09:17,420 --> 01:09:23,240
Yes, as long as it's connected to a space that contains that 50 by 50 block, we'd consider it continuous.

258
01:09:27,370 --> 01:09:30,910
Going back to Figure 1.

259
01:09:31,490 --> 01:09:34,270
I want to highlight kind of two areas here.

260
01:09:35,510 --> 01:09:37,210
Call them the triangle areas.

261
01:09:37,530 --> 01:09:41,370
So, it's a portion south of Lot 1.

262
01:09:42,190 --> 01:09:47,310
And a portion of the open space there in the center that's east of Lot 17.

263
01:09:50,130 --> 01:10:00,410
So the interior dimension of those triangles, is there a point at which the dimension of that area is less than 50 feet?

264
01:10:01,250 --> 01:10:05,390
Yes, for both of them, it appears there is a dimension that's less than 50 feet.

265
01:10:05,810 --> 01:10:07,730
So it kind of narrows to something less.

266
01:10:07,830 --> 01:10:08,190
That's correct.

267
01:10:10,130 --> 01:10:10,770
So

268
01:10:13,620 --> 01:10:28,960
if each of these areas are not 50 feet in each dimension, then kind of going to the review of that first plan, the 2022 plan, can you describe why those triangle areas were determined to qualify as compliant open space areas?

269
01:10:28,960 --> 01:10:42,120
So they were determined to be compliant and could count because they were connected to a really part of the larger open space area that did contain a 50 by 50 block within it.

270
01:10:45,500 --> 01:10:58,420
So again the methodology used for qualifying the open space that was used in plan one was that also used for calculating and qualifying open space in this.

271
01:10:58,420 --> 01:11:00,720
most recent plan that's been appealed?

272
01:11:00,980 --> 01:11:02,440
Yes, it's the same methodology.

273
01:11:04,160 --> 01:11:09,220
And based on this methodology, used in plan one being used again,

274
01:11:09,820 --> 01:11:13,480
did the open space areas provided by plan two,

275
01:11:14,100 --> 01:11:18,980
did those meet the UDO standards and qualify as compliant open space?

276
01:11:19,880 --> 01:11:20,100
Yes.

277
01:11:28,440 --> 01:11:30,920
Again, if you could demonstrate you have the,

278
01:11:31,380 --> 01:11:34,700
I don't know if you're able to pull up the current plan there.

279
01:11:34,700 --> 01:11:42,180
So, is there a 55 by 50 block there in the center portion of the open space?

280
01:11:42,760 --> 01:11:43,040
Yes.

281
01:11:44,020 --> 01:11:50,680
And then the other areas, yes, there are areas contiguous to that also within the center,

282
01:11:50,900 --> 01:11:52,120
kind of as it winds around the lots.

283
01:11:53,080 --> 01:11:58,740
Yes, so there are some other areas, particularly once you kind of go beyond the first collection

284
01:11:58,740 --> 01:12:00,740
of townhouses here and here and here.

285
01:12:00,740 --> 01:12:08,480
Great. And again, all that area is considered as qualified open space meeting the standards of 2.5.

286
01:12:08,920 --> 01:12:09,420
That's correct.

287
01:12:10,940 --> 01:12:18,520
So the other open space area around the perimeter there. Is there a 50 by 50 block that's located

288
01:12:18,520 --> 01:12:20,920
within that perimeter open space area? Yes.

289
01:12:23,020 --> 01:12:30,040
And does it appear that the other open space areas claim to be, are they contiguous with that area

290
01:12:30,040 --> 01:12:31,380
that has a 50 by 50 block?

291
01:12:31,900 --> 01:12:34,900
Yes, yeah, namely the protective yard that sort of rings this site.

292
01:12:38,480 --> 01:12:45,440
And in this plan two, do all of the lots a join some of the qualified open space?

293
01:12:45,940 --> 01:12:46,420
They do.

294
01:12:47,000 --> 01:12:47,080
Okay.

295
01:12:47,880 --> 01:12:53,920
And were the open space areas in plan one, the first plan deemed to be accessible as wired

296
01:12:53,920 --> 01:12:55,840
in Article 2.5?

297
01:12:56,540 --> 01:12:56,700
Yes.

298
01:12:57,480 --> 01:13:02,620
And were the open space areas in the most recent plan two determined to be

299
01:13:02,620 --> 01:13:04,060
accessible as well. Yes.

300
01:13:07,620 --> 01:13:08,800
Alright, so I

301
01:13:11,720 --> 01:13:16,140
want to just clarify because this was a discussion in the

302
01:13:16,140 --> 01:13:25,820
first appeal. The open space that is provided as part of this plan, too, is the open space kind

303
01:13:25,820 --> 01:13:32,520
of Article 2.5, is that different than just an open lot under the code? It contains additional

304
01:13:32,520 --> 01:13:33,980
requirements, that's right, it is different.

305
01:13:36,060 --> 01:13:44,000
So again, I want to kind of speak to now the transitional protective yard standards

306
01:13:44,000 --> 01:13:47,060
and speak to some of the allowable encroachments there.

307
01:13:47,340 --> 01:13:54,860
So are you familiar with the appellance arguments regarding encroachments into and

308
01:13:54,860 --> 01:13:57,500
within 10 feet of the transitional protective yard?

309
01:13:57,740 --> 01:13:58,020
Yes.

310
01:13:58,020 --> 01:14:09,460
And based on your years of experience interpreting and applying the UDO circumstances similar to this compact subdivision, do you feel that these arguments are correct?

311
01:14:10,200 --> 01:14:11,000
I do not.

312
01:14:11,700 --> 01:14:13,780
Again, a continuing objection, Mr. Chairman.

313
01:14:15,940 --> 01:14:23,460
We'll kind of get into the basis of these opinions, but just in your opinion may a, well, we'll get into them right now.

314
01:14:23,460 --> 01:14:27,100
So let's focus on walls within the T-P-Y.

315
01:14:28,140 --> 01:14:33,820
So what type of transitional protective yard is being provided by this plan?

316
01:14:34,140 --> 01:14:36,040
It's a B-1 transitional protective yard.

317
01:14:38,340 --> 01:14:41,440
And is a wall required as part of the B-1?

318
01:14:41,880 --> 01:14:42,920
It is required.

319
01:14:44,640 --> 01:14:50,440
And are walls permitted within a transitional protective yard of a B-1?

320
01:14:50,440 --> 01:14:58,200
Yes, they're explicitly permitted and then what what UDO section governs?

321
01:15:00,000 --> 01:15:29,340
I'll translate, you know, protective yards. So, 724, discusses protective yards and specifically 724D talks about encroachments. Subsection D2 speaks to allowable wall encroachments. Right. And I'll just identify for the board. In your notebook, the same one that contains the affidavit of kinkament Donald, there are also towards the end of that UDO excerpts.

322
01:15:29,340 --> 01:15:33,340
and that includes 7.2.4.

323
01:15:39,860 --> 01:15:42,920
Could you direct us a little better to where that would be?

324
01:15:42,920 --> 01:15:53,320
Yes, so it's tab 5, I believe, in the, excuse me, in the BOA hearing notebook, tab 4.

325
01:15:53,420 --> 01:15:54,360
We don't have a tab 5.

326
01:15:54,600 --> 01:15:55,180
Yeah, tab 4.

327
01:15:55,360 --> 01:15:55,560
Okay.

328
01:15:57,160 --> 01:15:57,880
Okay, great.

329
01:15:58,040 --> 01:15:58,300
Thank you.

330
01:15:58,900 --> 01:16:03,900
Yeah, he has it up, but it's a, we're in section 7.2.4.

331
01:16:04,600 --> 01:16:04,900
Thank you.

332
01:16:04,900 --> 01:16:05,400
put to that.

333
01:16:15,760 --> 01:16:22,160
And then which UDF section governs allowable uses or encroachments within the transitional protective yard?

334
01:16:22,760 --> 01:16:32,320
So encroachments are 724D as shown on the screen, and that is where we get more information pertaining to walls.

335
01:16:35,740 --> 01:16:44,860
You said walls are permitted within the transitional protective yard. Does this provision allow allowing walls within the transitional protective yard?

336
01:16:44,860 --> 01:16:46,340
Is that applied to all walls?

337
01:16:46,840 --> 01:16:49,860
Yes, we've interpreted it to include all walls.

338
01:16:50,260 --> 01:16:57,580
Is there anything any provision in this UDO that limits the number of walls that can be located within a transitional protective yard?

339
01:16:57,980 --> 01:16:58,280
No.

340
01:16:59,240 --> 01:17:03,060
Anything that limits the number of walls specifically within a type B1?

341
01:17:03,900 --> 01:17:04,180
No.

342
01:17:05,560 --> 01:17:14,280
Is there any UDO provision stating that the only wall allowed within the transitional protective yard is the screening wall?

343
01:17:14,280 --> 01:17:15,100
No.

344
01:17:17,470 --> 01:17:22,430
Is there a UDO provision that expressly prohibits a retaining wall from being located within the

345
01:17:22,430 --> 01:17:23,290
T.P.Y.?

346
01:17:23,290 --> 01:17:23,490
No.

347
01:17:24,290 --> 01:17:24,450
Okay.

348
01:17:25,270 --> 01:17:33,890
This provision that we're looking at, 7, 2, 4, D, does this provision even distinguish

349
01:17:33,890 --> 01:17:39,790
between the type of walls that are permitted within the transitional protective yard, for

350
01:17:39,790 --> 01:17:42,850
example, between retaining wall and screening wall?

351
01:17:42,850 --> 01:17:44,770
No, it just uses the term walls.

352
01:17:45,790 --> 01:17:51,990
So, again, in your opinion, are all walls permitted within a type B1 transitional protective

353
01:17:51,990 --> 01:17:52,230
yard?

354
01:17:52,710 --> 01:17:55,590
Assuming they meet the requirements in 724D, then yes.

355
01:18:02,600 --> 01:18:14,900
So in another section of the UDO, is there any difference or distinguishment made between types

356
01:18:14,900 --> 01:18:15,760
of walls?

357
01:18:15,760 --> 01:18:21,940
Yes, in section 728 there is distinguishing between different types of walls.

358
01:18:22,600 --> 01:18:24,420
Okay, great.

359
01:18:27,360 --> 01:18:33,380
And so in just to clarify, what does UDO section 7.2.8 govern?

360
01:18:34,400 --> 01:18:45,960
So, UDO section 7.2.8 specifically governs walls and fences that are located outside of a protective yard or required screening area.

361
01:18:46,680 --> 01:18:53,100
And how does this section distinguish between walls with different types of walls?

362
01:18:53,900 --> 01:19:00,320
Yeah, so it provides requirements, you know, general standards, but then it gets more specific

363
01:19:00,960 --> 01:19:08,400
to include retaining walls, as you can see in the subsection D, and then also building foundation walls and subsection E.

364
01:19:08,400 --> 01:19:23,600
Right, so in section 7.2.8, where the UDO specifically identifies these different types of walls, and I think he said it also sets forth different standards, regulations for those different types of walls.

365
01:19:23,880 --> 01:19:24,400
That's correct.

366
01:19:26,700 --> 01:19:37,920
And in section 7.2.4 dealing with protective yards, walls within protective yards, and then we have 7.2.8 dealing with walls outside of protective yards.

367
01:19:37,920 --> 01:19:40,660
are those within the same article of the UDO?

368
01:19:41,160 --> 01:19:42,400
Yes, they are.

369
01:19:43,220 --> 01:19:45,580
Article 7.2, what does that govern?

370
01:19:46,680 --> 01:19:47,700
Landscaping and screening.

371
01:19:51,640 --> 01:19:53,520
So again, within the same article,

372
01:19:53,900 --> 01:19:58,480
you've got UDO section 724, protective yards.

373
01:19:58,920 --> 01:20:00,760
There's not a distinction between types of walls.

374
01:20:00,900 --> 01:20:01,320
Is that correct?

375
01:20:02,420 --> 01:20:03,640
In 724, there's not.

376
01:20:04,260 --> 01:20:05,640
But what about 728?

377
01:20:06,320 --> 01:20:07,040
There is a distinction.

378
01:20:07,780 --> 01:20:15,300
And based on this, in your opinion, do the drafters of the UDO know how to distinguish between

379
01:20:15,300 --> 01:20:17,440
different types of walls if they wanted to?

380
01:20:18,320 --> 01:20:18,860
Objection.

381
01:20:20,000 --> 01:20:20,800
Oh, same.

382
01:20:21,120 --> 01:20:22,120
That's the way he can.

383
01:20:23,020 --> 01:20:26,700
Have you participated in the drafting of text changes in UDO provisions?

384
01:20:27,220 --> 01:20:27,340
Yes.

385
01:20:28,040 --> 01:20:33,820
And as someone who has drafted text changes in UDO provisions, do you know how to distinguish between

386
01:20:33,820 --> 01:20:35,480
different types of walls when you want to?

387
01:20:36,160 --> 01:20:36,380
Yes.

388
01:20:39,220 --> 01:20:43,180
So just a recap,

389
01:20:48,390 --> 01:21:00,570
so again, just a recap, 7.2.4 doesn't distinguish between walls, so in your opinion, can any type of wall be located within a type B1 transitional protective yard?

390
01:21:00,990 --> 01:21:03,270
Yes, assuming it meets those requirements, that's correct.

391
01:21:03,670 --> 01:21:07,810
And can any number of walls be located within a type B1?

392
01:21:08,250 --> 01:21:08,970
Yes, that's correct.

393
01:21:10,050 --> 01:21:25,790
And the walls provided in the plan that is now being appealed to the walls within the type B-1 T-P-Y comply with 7.2.4-D-E-S, they do.

394
01:21:27,350 --> 01:21:30,770
You mentioned you had reviewed the affidavit and report of Jose Martinez.

395
01:21:32,130 --> 01:21:39,630
He gave some opinions about walls, walls within the T.P.Y. Do you agree with any of his opinions

396
01:21:39,630 --> 01:21:45,250
as to walls within the transitional protective yard or even within 10 feet of a transitional protective yard?

397
01:21:45,630 --> 01:21:46,030
I do not.

398
01:21:52,860 --> 01:21:57,100
So again, I think we have 7.2.4 D up here.

399
01:21:57,500 --> 01:22:03,280
I kind of want to speak to walls, how walls are within 10 feet of a T.P.Y.

400
01:22:03,280 --> 01:22:09,560
So if you could please read subsection C of 7.2.4d2,

401
01:22:11,800 --> 01:22:15,420
let's see, no, sorry, up in subsection 1, I apologize.

402
01:22:16,320 --> 01:22:27,540
Yes, so subsection C specifically states the parking of vehicles and the placement of buildings or structures is prohibited in a protective yard, all parking and building setbacks apply.

403
01:22:28,700 --> 01:22:32,380
So this section specifically prohibits buildings and structures.

404
01:22:32,380 --> 01:22:33,180
Correct.

405
01:22:33,180 --> 01:22:33,600
That's correct.

406
01:22:35,100 --> 01:22:45,780
And so in order to be prohibited within 10 feet of a transitional protective yard, let's

407
01:22:45,780 --> 01:22:48,040
also read subsection A.

408
01:22:48,720 --> 01:22:54,080
Yes, subsection A states no building or structure on the subject site may be located closer

409
01:22:54,080 --> 01:22:55,760
than 10 feet to a protective yard.

410
01:22:56,160 --> 01:23:01,620
So again, in order to be prohibited within 10 feet, something would have to qualify as a building

411
01:23:01,620 --> 01:23:02,060
or structure.

412
01:23:02,680 --> 01:23:03,060
That's correct.

413
01:23:05,670 --> 01:23:11,550
So, in your opinion, this section used the same phrase building or structure where

414
01:23:11,550 --> 01:23:16,550
prohibits improvements both within the TPUI and within 10 feet of the TPUI?

415
01:23:17,470 --> 01:23:18,090
Yes.

416
01:23:18,270 --> 01:23:19,710
It uses those terms explicitly.

417
01:23:20,870 --> 01:23:25,610
And you testified previously that walls are permitted within the transitional protective

418
01:23:25,610 --> 01:23:26,190
yard, correct?

419
01:23:26,490 --> 01:23:26,630
Yes.

420
01:23:26,630 --> 01:23:44,030
Yes, so given that 724D permits walls within the TPI, and in that same section also prohibits buildings for structures, does it make sense to you to say that a wall, which is allowed, is also a structure, which is not allowed.

421
01:23:45,110 --> 01:23:53,110
No, I wouldn't think that would make sense because it would be inherent contradiction to say it's prohibited, and then immediately thereafter say it's permitted under these circumstances.

422
01:23:53,110 --> 01:24:07,930
So for the purposes of 7.2.4, or really just 7.2.4, is it your opinion, does the city consider a wall, which is allowed to be a structure which is not allowed?

423
01:24:10,550 --> 01:24:12,310
Could you repeat the question?

424
01:24:12,530 --> 01:24:14,310
No, I think I've already asked it.

425
01:24:14,430 --> 01:24:16,890
So I guess

426
01:24:21,880 --> 01:24:27,280
for the purposes of 7.2.4, does the city consider a wall to be a structure?

427
01:24:27,280 --> 01:24:28,500
No, it does not.

428
01:24:29,620 --> 01:24:30,200
Objection.

429
01:24:31,100 --> 01:24:31,340
Again.

430
01:24:32,560 --> 01:24:33,260
Noted.

431
01:24:37,270 --> 01:24:45,170
I just want to interject and just read Section 160D402, which is administrative staff.

432
01:24:45,750 --> 01:24:51,290
And it says local governments may appoint administrators, inspectors, planners, and other staff

433
01:24:51,290 --> 01:24:55,090
to develop at minister and enforce development regulations.

434
01:24:55,090 --> 01:25:09,010
So, Mr. McDonald has been appointed and hired to do the very thing that he is doing and which Mr. Justice keeps arguing he has no authority to do, but I wanted to put that statute in the record.

435
01:25:09,010 --> 01:25:29,650
Mr. Chairman, this witness is given no deference by the courts, he just made a comment without any background to understand what a structure is, he has given no meaning to the term and he's arguing about things that are really questions long.

436
01:25:30,390 --> 01:25:31,950
It's just a continuing objection.

437
01:25:32,570 --> 01:25:35,630
I haven't given a big dialogue, I've just objected.

438
01:25:35,630 --> 01:25:39,370
Sir, and it's and we've noted each time. So thank you. It's in there.

439
01:25:40,690 --> 01:25:41,330
Birch

440
01:25:46,960 --> 01:25:49,520
Again, just to reiterate the

441
01:25:50,300 --> 01:25:51,940
7.2.4

442
01:25:52,940 --> 01:25:53,580
prohibits

443
01:25:54,240 --> 01:25:54,880
structures

444
01:25:56,560 --> 01:25:59,340
within the type B1 for any protective yard.

445
01:26:00,680 --> 01:26:08,040
Is that correct? Yes, and yet in 7.2.4 D2

446
01:26:09,140 --> 01:26:17,100
It expressly anticipates and actually even requires that walls be located within a type B1 transitional protective yard.

447
01:26:17,460 --> 01:26:18,160
Yes, that's correct.

448
01:26:27,730 --> 01:26:31,910
And does the UDO distinguish between the types of walls permitted within the TPY?

449
01:26:32,410 --> 01:26:32,990
It does not.

450
01:26:35,640 --> 01:26:40,520
So if someone who drafts tech changes, interprets the ordinance, applies the ordinance.

451
01:26:41,100 --> 01:26:45,400
If a wall is permitted within a transitional protective yard,

452
01:26:45,400 --> 01:26:52,340
Does it make sense that the UDO would then prohibit that same thing within 10 feet of a transitional protective yard?

453
01:26:53,020 --> 01:26:54,560
No, that would seem contradictory.

454
01:26:55,400 --> 01:27:06,880
And does the UDO, any provision here, expressly prohibit a wall, any type of wall, from being located within 10 feet of a transitional protective yard?

455
01:27:07,360 --> 01:27:08,980
No, there's no explicit provision.

456
01:27:10,120 --> 01:27:14,600
So, in your opinion, does any of the walls shown on this plan that's now being appealed,

457
01:27:15,320 --> 01:27:21,820
violate any provision of the UDO, governing location, height, et cetera, are there any of the walls?

458
01:27:22,500 --> 01:27:22,820
No.

459
01:27:25,950 --> 01:27:28,030
Mr. Birch, could we move this along, please?

460
01:27:28,310 --> 01:27:28,410
Yes.

461
01:27:34,350 --> 01:27:34,550
Close.

462
01:27:43,500 --> 01:27:52,720
So, in your affidavit, where you discuss walls within T.P.Y. and walls within 10 feet of

463
01:27:52,720 --> 01:28:04,130
a T.P.Y. You identified some plans that have allowed walls within a T.P.Y. and adjacent to a T.P.Y.

464
01:28:04,470 --> 01:28:05,230
Yes, that's correct.

465
01:28:05,910 --> 01:28:11,830
And you identified, and exactly where that, which plans that was, is that correct?

466
01:28:12,350 --> 01:28:19,030
Yes. Now, is that an exhaustive list of plans that have allowed this, or just a sample?

467
01:28:19,470 --> 01:28:20,150
It's just a sample.

468
01:28:26,010 --> 01:28:26,370
Yes,

469
01:28:47,680 --> 01:29:04,880
so Keegan, I'm going to hand you something and then I'll ask you to identify it here and you can unclip that and take a look and see once you've had to take a look, if it could, please identify what's in front of you.

470
01:29:04,880 --> 01:29:13,620
Yeah, so these are administrative approval actions and associated plans for S-411-18,

471
01:29:13,820 --> 01:29:21,560
Stonebridge Estates, Sub-22-2021, which is Watkins subdivision, Sub-91-2021,

472
01:29:22,000 --> 01:29:30,860
Blu-Rain's Blu-Lane subdivision, Sub-12-2022, Laurel Hills townhomes, and Sub-37-2023,

473
01:29:30,860 --> 01:29:31,740
Magnolia Forest.

474
01:29:32,720 --> 01:29:33,360
Great.

475
01:29:33,860 --> 01:29:38,300
And, if you reviewed these plans?

476
01:29:39,480 --> 01:29:40,460
Yes, I have.

477
01:29:40,680 --> 01:29:42,720
And apologies, there were a few others at the bottom.

478
01:29:43,160 --> 01:29:45,600
Sub-57, 2024, Bradford Subdivision,

479
01:29:45,860 --> 01:29:48,080
and then the Learning Experience Daycare,

480
01:29:48,400 --> 01:29:50,740
which is a site plan SR-104 2017,

481
01:29:51,800 --> 01:29:55,840
and another site plan SR-8418 Integrity Self Storage.

482
01:29:56,480 --> 01:29:56,580
Great.

483
01:29:57,940 --> 01:29:59,840
And it is appear to be true and act-

484
01:30:00,000 --> 01:30:13,900
Chair, copies of those plain approvals? Yes, here so. Great. So, Board Chair, we would offer this to be 908 Williamson's Exhibit One.

485
01:30:14,520 --> 01:30:17,540
Justice, would you like some time to look this over before we accept it?

486
01:30:20,100 --> 01:30:27,380
No, I'm fine with. He hasn't said what topic it's about and it's relevancy. So just.

487
01:30:27,380 --> 01:30:29,860
You'll have that in your cross, okay?

488
01:30:30,540 --> 01:30:32,380
And yes, we'll accept the exhibit.

489
01:30:36,190 --> 01:30:39,070
And he can again, in your after-David,

490
01:30:39,210 --> 01:30:44,660
you kind of identify in each of these plans

491
01:30:44,660 --> 01:30:48,560
kind of how the, how a wall is treated.

492
01:30:50,140 --> 01:30:52,380
You have your after-David in front of you, is that correct?

493
01:30:53,540 --> 01:30:54,340
Yes, I do.

494
01:31:01,060 --> 01:31:04,860
Be sure that Mr. Virginia has a copy, please.

495
01:31:05,060 --> 01:31:05,320
Thank you.

496
01:31:05,320 --> 01:31:06,220
Mr.

497
01:31:20,800 --> 01:31:22,240
Clerk, I don't think yours is marked.

498
01:31:22,940 --> 01:31:26,540
This is the 908 Williamson LLCs, too.

499
01:31:35,460 --> 01:31:36,140
I'll have.

500
01:31:37,360 --> 01:31:38,380
Yeah, Keegan has the reason.

501
01:31:38,660 --> 01:31:38,780
Which I'll.

502
01:31:39,000 --> 01:31:39,420
Sure.

503
01:31:40,500 --> 01:31:44,180
Right, I always mark, I mark my own, so please take this.

504
01:31:44,460 --> 01:31:45,240
Okay, so thank you.

505
01:31:53,230 --> 01:31:59,590
So Keegan, just to highlight here, again, there's a few of these plans included.

506
01:32:00,790 --> 01:32:03,930
If you could, with the Bradford subdivision approval,

507
01:32:03,930 --> 01:32:15,870
So can you just highlight where wall is, excuse me, where the TPY is located to certain

508
01:32:15,870 --> 01:32:16,230
improvements?

509
01:32:17,630 --> 01:32:32,410
Yeah, so for the Bradford specifically, there's a TPY located adjacent to Melchios sidewalk

510
01:32:32,410 --> 01:32:40,710
and parking area, and then there's also a wall that sort of doubles as a retaining wall within the protective yard.

511
01:32:41,950 --> 01:32:46,270
For the Magnolia Forest subdivision, can you identify where

512
01:32:48,990 --> 01:32:50,430
a retaining wall is there?

513
01:32:51,690 --> 01:32:58,090
Yeah, there's in that particular subdivision, there's also one located immediately adjacent to the type B1, TBY.

514
01:32:58,550 --> 01:33:00,270
Great. And what about Laurel Hills?

515
01:33:02,230 --> 01:33:25,830
So, multiple retaining walls on this particular project, going in and out of the type 2 TPI on the west side of the site and north east side of the site near Lot 7 and 47, and then there's also retaining walls sitting wholly within the transitional protective yard, and they're not serving a screening purpose, and those are near Lot 7, 47 and 24.

516
01:33:26,890 --> 01:33:33,130
Mr. Birch, if you want us to look at it, you might slow down, because I can't.

517
01:33:33,130 --> 01:33:34,230
Now I understand we're going to work quickly.

518
01:33:34,390 --> 01:33:34,810
Highlight one.

519
01:33:35,150 --> 01:33:35,350
Okay.

520
01:33:35,570 --> 01:33:35,850
Thank you.

521
01:33:38,070 --> 01:33:41,990
Keegan, if you could, identify what I've just handed you there.

522
01:33:42,690 --> 01:33:51,270
So this is a site permit review cover sheet and associated plans for the Laurel Hills townhomes.

523
01:33:51,630 --> 01:33:56,090
So SPR-0226-2022.

524
01:33:56,090 --> 01:33:56,750
I

525
01:33:59,850 --> 01:34:02,310
mentioned that it's the site permit plans.

526
01:34:02,310 --> 01:34:10,070
Can you kind of describe what site permit is relative to have the type of plan that we're here on in the appeal hearing?

527
01:34:10,650 --> 01:34:11,650
Yeah, certainly.

528
01:34:12,010 --> 01:34:16,810
So site permit review is the sort of next step after the initial entitlement phase.

529
01:34:17,050 --> 01:34:24,390
So for Laurel Hills, which is also a compact subdivision, they went through the preliminary subdivision process to sort of set out the lots.

530
01:34:24,390 --> 01:34:29,250
they do some initial planning from urban forestry utilities, stormwater perspective.

531
01:34:30,030 --> 01:34:34,370
Site permanent review is what we also call kind of construction or infrastructure drawings.

532
01:34:34,570 --> 01:34:39,250
That's when they provide more detail on the specifics of the roads,

533
01:34:39,590 --> 01:34:44,250
the specifics of the utility connections, how they're going to manage stormwater, etc.

534
01:34:45,130 --> 01:34:50,350
Great. And just like the preliminary subdivision plan stage,

535
01:34:50,630 --> 01:34:52,830
do these plans have to be compliant with the UDO?

536
01:34:53,770 --> 01:34:54,850
Yes, they do.

537
01:34:55,590 --> 01:34:56,150
Great.

538
01:34:56,550 --> 01:35:02,170
Is this here to be a true and accurate copy of the Laurel Hills SPR plans?

539
01:35:02,470 --> 01:35:06,830
Well, I guess first identify which plan sheets are included.

540
01:35:07,850 --> 01:35:11,710
Sure. So we have the cover sheet, so C0.0.

541
01:35:12,750 --> 01:35:18,450
We also have the primary slight plan sheet, which is C3.0.

542
01:35:18,450 --> 01:35:22,550
And then we have a grading and drainage plan, which is C5.0.

543
01:35:23,430 --> 01:35:29,310
And then on the back we have a landscape plan, which is L3.0.

544
01:35:30,210 --> 01:35:35,010
And these appear to be true and accurate copies of these plan sheets or the approved SBR plan sheets.

545
01:35:35,350 --> 01:35:35,650
They do.

546
01:35:36,230 --> 01:35:40,410
So we're sure I'd like to offer this up as 908 Williamson's Exhibit 2.

547
01:35:45,410 --> 01:35:54,170
Okay, so this is a more detailed, and yeah, so not exactly what's in that.

548
01:35:54,410 --> 01:35:56,450
Yeah, it was just Mark's collectively used to.

549
01:35:59,370 --> 01:36:04,230
So again, for the clarity of the record, is this going to be item 3, thank you.

550
01:36:04,530 --> 01:36:06,590
Is this different than what was handed to me?

551
01:36:07,050 --> 01:36:07,470
No.

552
01:36:08,030 --> 01:36:08,270
Yeah.

553
01:36:08,690 --> 01:36:09,090
Yeah.

554
01:36:09,490 --> 01:36:10,430
So we're getting ready to hand it to you.

555
01:36:10,730 --> 01:36:11,930
The SPR version.

556
01:36:12,470 --> 01:36:19,250
So what you have in front of you, Mr. Justice, what you're looking at right now, that is the approved preliminary subdivision plan.

557
01:36:19,710 --> 01:36:25,870
This is the approved site permit plan, which Keegan just testified to is just the next step in the process here.

558
01:36:26,770 --> 01:36:28,650
Point of clarification, please, Mr. Chairman.

559
01:36:29,130 --> 01:36:30,310
What exhibit number is this one?

560
01:36:30,610 --> 01:36:31,030
That's two.

561
01:36:31,190 --> 01:36:31,750
That's the three.

562
01:36:32,070 --> 01:36:32,170
Yeah.

563
01:36:32,470 --> 01:36:32,890
This is two.

564
01:36:33,130 --> 01:36:33,350
Yes.

565
01:36:33,350 --> 01:36:33,430
Yes.

566
01:36:34,170 --> 01:36:34,610
Okay.

567
01:36:35,350 --> 01:36:42,750
Then, I guess, Mr. Kiggins, David, that was number one, or was it a proof plan?

568
01:36:42,770 --> 01:36:43,450
Yes, it's a joint number.

569
01:36:43,590 --> 01:36:44,030
The notebook.

570
01:36:44,390 --> 01:36:45,370
Is there a first one?

571
01:36:45,610 --> 01:36:45,730
Yeah.

572
01:36:46,550 --> 01:36:46,730
Yeah.

573
01:36:47,210 --> 01:36:47,850
There was one.

574
01:36:47,890 --> 01:36:51,550
I am very, right now I'm very confused, forgive me, but I don't know.

575
01:36:51,870 --> 01:36:59,010
The proof plan was a city zip at one, and then Mr. Kiggins, the notebook was number two.

576
01:36:59,010 --> 01:37:03,410
I assume this is number three, then this should be number four, yes?

577
01:37:03,950 --> 01:37:04,430
No.

578
01:37:04,950 --> 01:37:15,970
Because the city has marked two exhibits, the plan and the city's exhibit two, which

579
01:37:15,970 --> 01:37:22,390
was the Keyons affidavit, which is included in the notebook.

580
01:37:23,310 --> 01:37:28,710
And then these exhibits belong to, these are exhibits being offered by 908 Williams

581
01:37:28,710 --> 01:37:31,910
and LLC, which is a separate party from the city of Raleigh.

582
01:37:31,990 --> 01:37:33,110
I believe that's the conclusion.

583
01:37:33,990 --> 01:37:35,210
That's the confusion, sorry.

584
01:37:35,350 --> 01:37:37,330
Yeah, no, I may have just mislabeled the whole thing.

585
01:37:37,350 --> 01:37:39,370
Now, what was number one for 908?

586
01:37:39,490 --> 01:37:41,050
I can't tell you, because I don't know.

587
01:37:41,150 --> 01:37:44,990
No other for two was labeled as two, so I don't know.

588
01:37:47,170 --> 01:37:49,210
Yeah, so sorry, I think I had to do this more.

589
01:37:49,350 --> 01:37:53,230
It's the first item I handed up, the set of approved plans

590
01:37:53,230 --> 01:37:54,570
that starts with Stone Ridge.

591
01:37:54,570 --> 01:37:57,030
That is 908's exhibit one.

592
01:37:57,210 --> 01:37:57,490
It's back.

593
01:37:57,590 --> 01:37:58,750
Okay, yeah, so thank you.

594
01:37:58,750 --> 01:38:05,350
Yeah, I apologize for the confusion, so this will be our exhibit to this is not a way to one. That's correct.

595
01:38:05,470 --> 01:38:11,370
Yeah, I think the copy is the first pass or mark is two, so you know, yes.

596
01:38:12,070 --> 01:38:12,370
Okay.

597
01:38:17,710 --> 01:38:18,770
On the bottom right corner.

598
01:38:18,850 --> 01:38:19,050
Yeah.

599
01:38:25,600 --> 01:38:28,120
So we'll pass these out in Mr. Chair.

600
01:38:56,190 --> 01:38:56,670
Yeah.

601
01:39:06,260 --> 01:39:07,020
Which ones?

602
01:39:07,220 --> 01:39:07,560
Sorry.

603
01:39:08,560 --> 01:39:09,500
No, I don't.

604
01:39:09,660 --> 01:39:09,860
No, I don't.

605
01:39:22,610 --> 01:39:23,490
Number two here.

606
01:39:37,840 --> 01:39:47,390
So, Keegan, if I could direct your attention to the site plan, should be C3 down the bottom

607
01:39:47,390 --> 01:39:48,130
right hand corner.

608
01:39:50,820 --> 01:39:54,480
If you could identify few of the retaining walls that you see there.

609
01:39:55,080 --> 01:39:56,320
So, do we get a copy of these yet?

610
01:39:58,220 --> 01:40:05,880
So, they're in my hand, but I think the procedure that you've been following is that you get a copy and you look at it

611
01:40:05,880 --> 01:40:12,200
and then they want you to determine what's going to happen on the past exact. You don't have one. I do not.

612
01:40:12,640 --> 01:40:17,400
Let me give you one. Okay. Sorry. I have it.

613
01:40:33,700 --> 01:40:40,660
Okay. So I understand the intent of this. So we can accept this as as number.

614
01:40:41,880 --> 01:40:43,260
Thank you, Mr. Chair.

615
01:40:44,100 --> 01:40:44,420
For us.

616
01:41:06,280 --> 01:41:10,720
So, Keegan, if I could direct your attention, actually, to sheet L3.0, the landscape plan.

617
01:41:11,160 --> 01:41:11,340
Yeah.

618
01:41:12,440 --> 01:41:19,850
So, you identify kind of what landscape areas, if you can identify any transitional protective yards.

619
01:41:21,410 --> 01:41:21,930
Yeah.

620
01:41:22,190 --> 01:41:28,770
So, they're providing transitional protective yards if we're looking at the plan sheet to avoid directional confusion.

621
01:41:28,770 --> 01:41:34,030
And so sort of bottom of the plan kind of follows along the perimeter of the site.

622
01:41:34,770 --> 01:41:40,490
It's kind of noted by the various symbology of trees and shrubs that they're providing.

623
01:41:40,810 --> 01:41:44,970
And then there's also one plan right along that perimeter.

624
01:41:46,570 --> 01:41:52,510
Do you see some notes or kind of direction that kind of identify the type of buffer?

625
01:41:52,510 --> 01:42:02,250
Yeah, so they call out the specific type, north type B2, west type B2, and then south type B2.

626
01:42:03,470 --> 01:42:09,110
And you just identify just the difference between B1 and B2.

627
01:42:09,870 --> 01:42:19,310
So in this particular instance, B2 and B1 vary based on their width and some of the requirements they're in.

628
01:42:21,330 --> 01:42:32,190
So the larger requires a 35 foot area and you have the option to do a wall or a fence versus the smaller option is 20 feet and you have a requirement to do a wall.

629
01:42:32,530 --> 01:42:35,270
So the walls are permitted within a B2?

630
01:42:35,470 --> 01:42:35,690
Yes.

631
01:42:35,690 --> 01:42:44,650
Yes, and within these B2 areas, can you identify whether there are any retaining walls within

632
01:42:44,650 --> 01:42:48,570
or within 10 feet of these transitional protective yards?

633
01:42:49,710 --> 01:42:53,390
Yes, so there are a number of retaining walls.

634
01:42:55,570 --> 01:43:01,350
On sheet C3.0, they're called out a little bit more clearly if you can sort of match those

635
01:43:01,350 --> 01:43:01,590
up.

636
01:43:03,970 --> 01:43:17,370
So in the area marked the west type B2 buffer, there's a retaining wall 3, which is provided, and then in the north type B2 buffer, so which is toward a more planned left,

637
01:43:18,210 --> 01:43:26,290
there are, I believe, two different retaining walls that are provided in that particular protective yard.

638
01:43:26,290 --> 01:43:27,130
So

639
01:43:31,320 --> 01:43:31,500
again,

640
01:43:34,280 --> 01:43:35,780
based on this plan,

641
01:43:39,500 --> 01:43:51,620
as you're understanding that the city has in the past and continues to interpret the ordinance to allow retaining walls within a T. P. Y. And within 10 feet of a T. P. Y.

642
01:43:51,960 --> 01:43:52,480
Yes.

643
01:43:52,480 --> 01:43:53,720
In this set

644
01:44:03,890 --> 01:44:06,190
that aside for a moment, I

645
01:44:10,420 --> 01:44:17,180
want to just switch to roads within 10 feet of a T.P.Y.

646
01:44:17,820 --> 01:44:20,000
You reviewed Mr. Martinez as affidavit.

647
01:44:20,520 --> 01:44:27,980
He alleged that roads were essentially a structure not allowed within 10 feet of a T.P.Y.

648
01:44:28,500 --> 01:44:28,740
Yes.

649
01:44:29,520 --> 01:44:31,400
Your opinion, do you agree with that assessment?

650
01:44:32,060 --> 01:44:32,740
No, I do not.

651
01:44:33,880 --> 01:44:43,900
So we still have 7.2.4 up here with D2 or actually sorry D1 so you can't refer back to

652
01:44:43,900 --> 01:44:49,760
subsection C in addition to prohibiting buildings and structures, what else is prohibited?

653
01:44:50,840 --> 01:44:57,440
So it also refers to the parking of vehicles and then please read subsection B.

654
01:44:57,440 --> 01:44:59,980
State's brakes for-

655
01:45:00,000 --> 01:45:23,200
The pedestrian and vehicle access are allowed in a protective yard. And so how does the city kind of treat subsection B? How does it interpret subsection B? So we've interpreted that to create an exception to allow pedestrian and vehicle access within a protective yard and view it separately from a building or structure.

656
01:45:25,500 --> 01:45:31,620
And that type of provisional and that type of call it vehicular access.

657
01:45:31,620 --> 01:45:36,500
has a city kind of treated that the same as

658
01:45:36,500 --> 01:45:37,740
vehicular surface area.

659
01:45:39,060 --> 01:45:44,920
Yes, vehicle access matches or fits within the definition for

660
01:45:44,920 --> 01:45:46,400
vehicular surface area.

661
01:45:46,640 --> 01:45:50,320
So that's any area where cars are driven upon or parked.

662
01:45:51,140 --> 01:45:57,500
And would that include the private drive provided as part of this subdivision plan?

663
01:45:57,960 --> 01:45:58,080
Yes.

664
01:45:58,080 --> 01:45:58,300
Yes.

665
01:46:02,280 --> 01:46:10,140
So are you aware of any UDO provision that includes a road or vehicular surface area

666
01:46:10,140 --> 01:46:14,600
as within the scope of any regulations that applies to buildings or structures?

667
01:46:15,340 --> 01:46:16,980
I'm not familiar with any.

668
01:46:20,290 --> 01:46:28,770
So in your opinion when the UDO speaks to buildings or structures does the UDO consider vehicular

669
01:46:28,770 --> 01:46:30,690
surface area as a building or structure?

670
01:46:30,690 --> 01:46:41,040
No objection noted so in your opinion does the provisional buildings and structures within 10 feet of a T. P. Y.

671
01:46:41,100 --> 01:46:43,260
Apply to the vehicular surface area.

672
01:46:43,360 --> 01:46:46,040
Yes, the internal road now wouldn't.

673
01:46:47,680 --> 01:46:54,220
Your opinion does that internal road of the new subdivision plan comply with the U. D. O. in all respects.

674
01:46:54,960 --> 01:46:55,560
Yes.

675
01:46:55,560 --> 01:46:55,720
Yes.

676
01:47:05,100 --> 01:47:08,680
Again, Mr. Chair, wrapping up here with Mr. McDonald.

677
01:47:10,700 --> 01:47:18,800
In the appellants appeal, there was a reference to walls and the applicability or compliance

678
01:47:18,800 --> 01:47:21,600
with UDO section 7.2.8.

679
01:47:23,440 --> 01:47:31,260
Is this argument correct where they say this section prohibits walls within the T.P.Y.?

680
01:47:31,260 --> 01:47:36,820
No, wouldn't be correct because 7-2-8 specifically governs walls and fences outside of a protective yard.

681
01:47:44,390 --> 01:47:56,910
Just want to highlight, we've obviously complied this plan complies with the transitional protective yard requirements by providing the wall and the landscaping that's required.

682
01:47:57,250 --> 01:48:04,450
Is there any alternative way to that a project can comply with the transitional protective yard regulations?

683
01:48:05,730 --> 01:48:11,630
Yes, one particular way is to provide a tree conservation area in lieu of the protective

684
01:48:11,630 --> 01:48:14,350
yard, so long as it meets all of our tree conservation area requirements.

685
01:48:14,750 --> 01:48:19,690
And when tree conservation is provided in lieu of a transitional protective yard, is a

686
01:48:19,690 --> 01:48:20,450
wall required?

687
01:48:21,250 --> 01:48:21,430
No.

688
01:48:22,630 --> 01:48:28,970
And is there another example of an alternate way that a project can comply with the TPI requirement?

689
01:48:28,970 --> 01:48:42,810
Yes, specifically, the code also creates an allowance for a grade change to serve in place of a wall where the subject property would sit at a lower elevation than the neighboring property in effect providing some screening to the neighboring property.

690
01:48:43,430 --> 01:48:56,350
So, where there's a, where the developing site is lower in grade than the adjoining neighboring site, the UDO would allow that grade change to satisfy the TPI regulation without a wall.

691
01:48:56,930 --> 01:49:00,270
Yes, there's some additional requirements, but it does have that allowance.

692
01:49:06,250 --> 01:49:09,710
Mr. Chair, that's all the questions we have for Keegan.

693
01:49:10,630 --> 01:49:12,910
Thank you, Mr. Justice. Your opportunity for process.

694
01:49:49,660 --> 01:49:56,500
This is part of the record already since it was part of the UDO supplement 19.

695
01:49:56,700 --> 01:50:00,040
It's on page 820, but I'm going to hand you a copy of this.

696
01:50:00,040 --> 01:50:00,940
And

697
01:50:06,770 --> 01:50:13,910
I'll mark it as exhibit 8 just again. It's already part of the record, but it's

698
01:50:13,910 --> 01:50:18,890
nice to have little snippets as we're going through this. Thank you. So this is article

699
01:50:18,890 --> 01:50:30,450
1.1 of supplement 19 of the UDOs, right? Yes. It's chairman I'd like to submit this as

700
01:50:31,170 --> 01:50:31,950
Exhibit eight.

701
01:50:33,110 --> 01:50:33,890
There's no objections.

702
01:50:34,330 --> 01:50:36,610
And then yes, we'll accept it.

703
01:50:36,690 --> 01:50:37,970
This is exhibit eight.

704
01:50:55,290 --> 01:51:00,030
So, Keegan, in this section, it gives a general overview of what the...

705
01:51:00,030 --> 01:51:05,630
I guess what the point of the UDO is, what's the point of having the development standards

706
01:51:05,630 --> 01:51:08,850
that are contained in this UDO, right?

707
01:51:09,170 --> 01:51:10,930
Especially in section 1.1.

708
01:51:11,370 --> 01:51:13,550
1.1.4.

709
01:51:13,550 --> 01:51:19,090
talks about what the whole point of all these development standards in the UDO are for, right?

710
01:51:19,910 --> 01:51:20,110
Yes.

711
01:51:20,870 --> 01:51:26,110
And one of the objectives or points of having all these development standards in the UDO,

712
01:51:26,950 --> 01:51:31,250
certainly one of the objectives is to reinforce the character and quality of neighborhood.

713
01:51:31,510 --> 01:51:36,150
You see that as subsection J. Yes.

714
01:51:36,970 --> 01:51:38,650
Of course, there's a lot of things mentioned here.

715
01:51:38,770 --> 01:51:40,090
I'll just identify that.

716
01:51:40,090 --> 01:51:51,510
But there is a sort of rule of construction that the code sets up in section 1.1.7 that

717
01:51:51,510 --> 01:51:58,090
if there's any conflicts in the rules, the more stringent regulation is to apply, right?

718
01:51:59,270 --> 01:51:59,410
Yes.

719
01:52:04,710 --> 01:52:12,910
And you would agree that it's not the role of staff to rewrite the UDO, correct, because

720
01:52:12,910 --> 01:52:18,430
because these are the standards that the leaders of this community, the elected leaders of this community have created, correct?

721
01:52:21,210 --> 01:52:31,350
Not our job to rewrite the UDO, we are responsible for administering it, which sometimes does involve interpretation of specific sections or terms.

722
01:52:32,890 --> 01:52:36,930
I asked you, does that give you the right to rewrite the rules?

723
01:52:38,110 --> 01:52:43,470
Absent following the text change process that went in the code, we're not authorized to rewrite the code without Council approval.

724
01:52:43,470 --> 01:52:44,330
All right.

725
01:52:59,070 --> 01:53:06,310
Let me show you what I'll mark as a pellet exhibit nine. This, again, is from the record. This is on record page 859.

726
01:53:17,000 --> 01:53:25,860
So this is the, these are development standards applicable for compact development that was part of supplement 19.

727
01:53:26,780 --> 01:53:28,620
Correct. Yes.

728
01:53:28,620 --> 01:53:33,280
Yes, Mr. Chairman, I'd like to hand this up to the board as our exhibit 9.

729
01:53:52,330 --> 01:53:58,950
So you touched on this at the beginning when you were asked about standards relating

730
01:53:58,950 --> 01:53:59,810
to open space.

731
01:54:00,630 --> 01:54:08,710
So the project in question has been considered a compact development, right?

732
01:54:10,270 --> 01:54:10,510
Yes.

733
01:54:10,910 --> 01:54:11,050
Okay.

734
01:54:11,050 --> 01:54:22,070
And so the requirement for a compact development according to section 2.3.1 B sets out requirements of open space, right?

735
01:54:23,030 --> 01:54:27,290
That's correct. And this is an R4 zoning district where the property is, right?

736
01:54:27,790 --> 01:54:28,610
That's correct.

737
01:54:29,090 --> 01:54:39,130
And so the requirement in this case, it says the minimum acreage is 20% of the site acreage or one acre, whichever is greater, right?

738
01:54:39,890 --> 01:54:40,490
That's correct.

739
01:54:42,750 --> 01:54:48,030
In this case, the one acre is the controlling standard, right?

740
01:54:48,250 --> 01:54:51,430
They have to come up with one acre of qualifying open space.

741
01:54:51,790 --> 01:54:54,430
Yeah, one acre in this instance is the larger of the two values.

742
01:54:54,890 --> 01:54:55,070
Gotcha.

743
01:54:56,130 --> 01:55:04,150
And then at B2, section B2, it mentions the width of the open space has to be 50 feet wide, right?

744
01:55:04,590 --> 01:55:04,930
That's correct.

745
01:55:04,930 --> 01:55:09,610
And it says minimum, right?

746
01:55:10,570 --> 01:55:11,290
Yes.

747
01:55:12,550 --> 01:55:13,690
So minimum,

748
01:55:15,810 --> 01:55:18,330
is it fair to say the minimum is the least possible?

749
01:55:18,670 --> 01:55:24,230
It's the lowest that can occur in order to be qualifying, right?

750
01:55:26,220 --> 01:55:33,860
We've interpreted again that term minimum with the open space to be a minimum dimension

751
01:55:33,860 --> 01:55:38,420
that needs to be satisfied, but again, it doesn't require that all portions of the open space

752
01:55:39,020 --> 01:55:46,920
maintain that 50-foot width. Okay, so the language you just added that open space minimum

753
01:55:48,300 --> 01:55:54,120
includes spaces that are less than the minimal, right? Because at the end of the day and we'll get

754
01:55:54,120 --> 01:56:01,000
you to draw your blocks. What you're saying is really all the open space that gets dumped into the

755
01:56:01,000 --> 01:56:07,180
pot of an acre. All that open space that gets dumped into the pot of an acre doesn't have

756
01:56:07,180 --> 01:56:15,720
to be 50 feet wide. As long as it's connected to one portion that's 50 by 50, right? That's

757
01:56:15,720 --> 01:56:24,440
correct. So you are adding to the standard width of open space minimum you're adding a qualifier.

758
01:56:24,440 --> 01:56:34,160
You're saying so long as the space is connected to a 50-foot wide open space, right?

759
01:56:35,140 --> 01:56:40,820
I'm relying upon discussions that took place previously with the original approved plan,

760
01:56:41,040 --> 01:56:45,820
the affidavit that was produced by the city's zoning administrator, and also tested

761
01:56:45,820 --> 01:56:49,360
money from the zoning administrator and other city staff.

762
01:56:49,360 --> 01:56:54,200
I thought you said this was a way you've been doing things for 13 years.

763
01:56:54,560 --> 01:56:58,060
I'm just pointing to the most recent example from the city zoning administrator.

764
01:56:59,140 --> 01:57:08,860
So it is correct that the proviso you've said, that the open space that goes into the pot of one acre,

765
01:57:09,120 --> 01:57:16,480
doesn't have to all be 50 feet in width, as long as it's connected to something that's 50 feet wide.

766
01:57:16,480 --> 01:57:18,620
That's how we've applied that requirement, yes.

767
01:57:19,620 --> 01:57:25,280
And again, you would agree that the language that supports your reading is not found in article

768
01:57:25,280 --> 01:57:28,420
2.3, section 2.3.1, right?

769
01:57:29,940 --> 01:57:35,940
We're just relying on what it says with the open space minimum 50 feet doesn't say how

770
01:57:35,940 --> 01:57:37,700
or where that needs to be met.

771
01:57:38,700 --> 01:57:40,200
It says minimum.

772
01:57:41,960 --> 01:57:45,480
Do you believe the term minimum is ambiguous?

773
01:57:48,700 --> 01:57:49,480
I don't believe so.

774
01:57:49,940 --> 01:57:50,320
Okay.

775
01:57:50,840 --> 01:57:56,680
So I believe Mr. Chairman, I handed out as exhibit six.

776
01:57:57,600 --> 01:58:00,420
This is a blow-up of exhibit six.

777
01:58:00,920 --> 01:58:05,620
Was section Article 2.5 common open space requirements.

778
01:58:06,160 --> 01:58:09,240
You've seen that he's included this before.

779
01:58:09,240 --> 01:58:12,520
or I just blew it up, so it'd be easy to read.

780
01:58:13,440 --> 01:58:25,180
So this section here, section 2.5.3, it also contains the minimum width requirement for open space is 50 feet, right?

781
01:58:25,660 --> 01:58:25,820
Yes.

782
01:58:26,660 --> 01:58:35,440
And that's consistent with the section we just went over for compact developments that says that to be a qualifying open space it has to be 50 feet wide, right?

783
01:58:36,580 --> 01:58:36,740
Yes.

784
01:58:36,740 --> 01:58:43,100
Yes. So here in this section 2.5.3A, it mentions three exceptions, right?

785
01:58:45,340 --> 01:58:51,420
There are some exceptions listed in subsection A. Is that a yes? I'm sorry. It lists three

786
01:58:51,420 --> 01:58:55,560
exceptions. Yes, there appear to be three exceptions listed.

787
01:58:59,600 --> 01:59:06,280
And the three exceptions that are listed doesn't include a transitional protective yard, right?

788
01:59:07,600 --> 01:59:14,200
Transitional protective yard isn't listed in subsection A, but it is listed in 252A.

789
01:59:14,720 --> 01:59:22,860
So I asked you the question, is the term transitional protective yard mentioned as one

790
01:59:22,860 --> 01:59:25,140
of the exceptions in subsection A?

791
01:59:25,880 --> 01:59:27,420
It's not listed in 253A.

792
01:59:27,820 --> 01:59:37,400
So, you have extrapolated, you have construed that there is an exception for the 50 feet in width.

793
01:59:38,420 --> 01:59:44,720
So, long as it ultimately connects to a block that's 50 feet wide, right?

794
01:59:46,440 --> 01:59:49,420
Yes. That's correct.

795
01:59:49,420 --> 01:59:59,790
And for purposes so that the court can see this, you had drawn on there on the area with the pin.

796
02:00:02,110 --> 02:00:06,250
So I'm going to ask you to come over here and take this highlighter.

797
02:00:09,390 --> 02:00:12,350
I'm sorry, you can't do that with what what.

798
02:00:14,510 --> 02:00:31,610
Yeah. So I'll want him to walk over here and color in these blocks that satisfy the open space. I think you said on the current plan, there's two areas. I think you drew on there. You drew like a block.

799
02:00:31,610 --> 02:00:39,580
in here and then you I tell you what I will concede that if you draw a block

800
02:00:39,580 --> 02:00:45,880
and you put 50 there that you're endeavoring to draw it as 50 you certainly

801
02:00:45,880 --> 02:00:51,300
when you did it on the screen it was very loose and I don't remember a ruler so

802
02:00:51,300 --> 02:00:57,540
again I'm just trying to expedite this so this board can understand this

803
02:00:57,540 --> 02:01:01,820
methodology that he doesn't know exactly we're just trying to

804
02:01:03,220 --> 02:01:07,760
Yes, with the caveat that he's asking him to estimate it.

805
02:01:07,880 --> 02:01:10,020
I mean, I'm not asking Desmond.

806
02:01:10,280 --> 02:01:12,900
If the whole thing is 50 by 50, it's fine.

807
02:01:13,280 --> 02:01:17,700
But we can go ahead and he can draw where he thinks that is located on the partial.

808
02:01:17,960 --> 02:01:22,420
I would not ask for an accurate 50 by 50 earlier.

809
02:01:22,720 --> 02:01:26,260
You showed approximately where three blocks might exist.

810
02:01:26,400 --> 02:01:28,460
That's what Mr. Justice is asking you this time.

811
02:01:28,460 --> 02:01:31,780
if you might show those approximately where they would exist.

812
02:01:34,710 --> 02:01:38,150
Yes, I'm not going to go into court and say, look at what he drew.

813
02:01:38,330 --> 02:01:40,890
He drew a box that's 48 feet.

814
02:01:41,050 --> 02:01:41,450
You understand.

815
02:01:41,990 --> 02:01:42,250
Exactly.

816
02:01:42,810 --> 02:01:46,230
We have a board that shows the 50 by 50 boxes.

817
02:01:47,850 --> 02:01:50,750
If you have that board, I don't remember you presenting it.

818
02:01:50,910 --> 02:01:53,750
So I was just making sure that we had a board.

819
02:01:53,990 --> 02:02:00,030
So once you write 50 on there just so that we understand what we're staring at,

820
02:02:00,030 --> 02:02:00,030
But

821
02:02:06,080 --> 02:02:14,040
I will remind everyone we're scheduled to be done by 5 o'clock today, so I'm not saying

822
02:02:14,040 --> 02:02:18,200
you're not using your time well, Mr. Justice, just observing that we all need to keep

823
02:02:18,200 --> 02:02:19,040
mixing and moving along.

824
02:02:37,670 --> 02:02:38,150
So

825
02:02:40,520 --> 02:02:44,120
let the record reflect, he did draw all these boxes, 50 by 50.

826
02:02:45,320 --> 02:02:53,780
And so at the end of the day, you have included as in that one acre pot for open space, you all

827
02:02:53,780 --> 02:02:58,800
have included the transitional protective yard around the perimeter, right?

828
02:03:01,340 --> 02:03:03,400
Just pass the mic back between the two of you.

829
02:03:03,820 --> 02:03:05,160
Well, I'll tell you what, once you go back over there.

830
02:03:08,640 --> 02:03:11,280
Yeah, just to answer the question in the mic, we have included those spaces

831
02:03:11,280 --> 02:03:13,280
that are required to be preserved as primary and space.

832
02:03:13,900 --> 02:03:14,740
So the answer is yes.

833
02:03:15,760 --> 02:03:16,680
The answer is yes.

834
02:03:17,100 --> 02:03:22,680
And so, let me touch on that, too, because essentially in 2.5.3,

835
02:03:23,540 --> 02:03:26,220
the minimum 50 foot width requirement,

836
02:03:26,900 --> 02:03:33,900
You would agree that the transition protective yard here is showing a width around the perimeter of 20 feet.

837
02:03:34,580 --> 02:03:37,100
It does narrow to less than 50 feet.

838
02:03:38,620 --> 02:03:49,960
At the end of the day, the transition protective yard in large portions of this are showing as 20 feet and width.

839
02:03:51,360 --> 02:03:54,100
There are portions that narrow down to 20 feet and width.

840
02:03:54,100 --> 02:04:01,520
Okay, so where is the, when you say, where is it that's marked the transition protective

841
02:04:01,520 --> 02:04:02,500
yard is 20 feet?

842
02:04:12,030 --> 02:04:12,890
Microphone please.

843
02:04:13,410 --> 02:04:14,910
We need to get this.

844
02:04:14,930 --> 02:04:15,050
Yeah.

845
02:04:15,230 --> 02:04:19,810
So where is it that I'm at the ask the other way, where is the transition protective yard

846
02:04:19,810 --> 02:04:21,590
noted as 50 feet wide?

847
02:04:24,250 --> 02:04:28,570
Not sure if it notes 50 foot width in any specific location.

848
02:04:28,570 --> 02:04:35,450
Show me where on the plan a transitional protective yard is showing as being 50 feet wide.

849
02:04:47,170 --> 02:04:48,170
Don't believe there's any.

850
02:04:48,670 --> 02:04:50,010
We've talked about the square.

851
02:04:50,190 --> 02:04:52,390
We've got an exhibit that shows the square.

852
02:04:52,550 --> 02:04:55,950
The question is whether or not you can have a 50-butt.

853
02:04:55,990 --> 02:05:01,910
You can have a big area with different locations, different shapes if there is 150-butt.

854
02:05:02,230 --> 02:05:04,630
That's our argument he disagrees with that.

855
02:05:05,070 --> 02:05:08,710
Trying to get him to narrow down on where that 50 feet is.

856
02:05:08,710 --> 02:05:11,190
I think it's just taking some time.

857
02:05:11,310 --> 02:05:13,350
Mr. Chairman, I just asked the simple question,

858
02:05:13,550 --> 02:05:17,470
where of the transitional protective yard is it showing as 50?

859
02:05:17,630 --> 02:05:21,150
I was, I asked him before and he seemed to fudge on the question.

860
02:05:21,730 --> 02:05:27,830
I'm just asking him, is any part of the transition protective yard 50 feet?

861
02:05:28,470 --> 02:05:31,150
So I, I would like to move this along,

862
02:05:31,390 --> 02:05:36,290
is any part of the transition protective yard with the 50 feet on this plane?

863
02:05:36,290 --> 02:05:39,030
Not from what I could see on that specific sheet, yes.

864
02:05:41,520 --> 02:05:43,080
So, to go back on-

865
02:05:43,080 --> 02:05:46,820
I'll object, the transitional protective yard is not an issue, it's the open space.

866
02:05:47,400 --> 02:06:05,860
It's, this whole plan is that issue, Mr. Chairman, the, um, so you have read into Section 2.5.3 that the transitional protective yard, in this case, which is generally 20 feet in width,

867
02:06:07,100 --> 02:06:16,220
would qualify for purposes that one acre, despite the language in 2.5.3a, right?

868
02:06:17,460 --> 02:06:20,120
Out of check to the characterization that he's read it in.

869
02:06:22,340 --> 02:06:26,880
I didn't object when they were saying what Jose had said, I'm just asking him a question.

870
02:06:27,060 --> 02:06:30,860
Ask a question and please give an answer and objections are being noted.

871
02:06:31,680 --> 02:06:40,520
Yeah, so again we believe that the open space that contains the protective yard meets the minimum with requirement, so it's compliant with subsection A.

872
02:06:42,570 --> 02:06:54,090
So you're saying that a 20-foot wide T-P-Y is always can be thrown into the 1 acre pot, even when we know it's not 50 feet in width.

873
02:06:54,090 --> 02:06:59,010
If it's because it's listed under section 2.5.2.

874
02:06:59,530 --> 02:07:05,830
If it's connected to a larger open space that has that 50 by 50 area, then yes.

875
02:07:06,290 --> 02:07:13,850
So all of these things, these places in section 2.5.2, whether it's considered primary

876
02:07:13,850 --> 02:07:18,850
open space that should be preserved or secondary open space, are tertiary.

877
02:07:18,850 --> 02:07:28,490
All these areas can be less than 50 feet in width, as long as they connect to a 50 by 50 block somewhere.

878
02:07:28,810 --> 02:07:31,010
All of that can be thrown into the 1 acre pot.

879
02:07:31,450 --> 02:07:31,510
Yes?

880
02:07:31,710 --> 02:07:32,390
That's my understanding.

881
02:07:32,730 --> 02:07:32,830
Yes.

882
02:07:33,330 --> 02:07:36,570
And so, literally, we're under tertiary.

883
02:07:36,810 --> 02:07:42,310
It says soils with severe limitations due to drainage problems.

884
02:07:42,550 --> 02:07:43,110
Did I read that right?

885
02:07:44,330 --> 02:07:45,210
That's over here.

886
02:07:45,630 --> 02:07:46,710
Tertiary 6.

887
02:07:49,380 --> 02:07:49,660
That's correct.

888
02:07:49,660 --> 02:07:59,580
That could be 5 feet wide, areas throughout a property with soils with severe limitations due to drainage problems.

889
02:08:00,260 --> 02:08:09,300
Those properties get thrown into the 1 acre part, as long as there's some connection, someone air out to a 50 by 50 block.

890
02:08:09,960 --> 02:08:11,180
Yes, that's correct.

891
02:08:19,490 --> 02:08:23,390
A TCA is required to be 32 feet width, right?

892
02:08:23,390 --> 02:08:23,430
Yeah.

893
02:08:25,220 --> 02:08:30,740
Believe in this section that refers to TCA being a minimum of 32 feet, the TCA section

894
02:08:30,740 --> 02:08:32,220
might have some additional allowances.

895
02:08:33,320 --> 02:08:37,940
I think even in chapter 9 it mentions the 32 feet and width, right?

896
02:08:38,280 --> 02:08:38,420
Yeah.

897
02:08:38,640 --> 02:08:43,200
I don't administer that section in the code, but if you're allowed to use right about how

898
02:08:43,200 --> 02:08:47,560
you read it, why couldn't the TCA be 6 feet and width?

899
02:08:48,460 --> 02:08:53,640
As long as connected to a TCA that's 32 feet and width.

900
02:08:55,200 --> 02:08:57,000
Sorry, could you repeat the question?

901
02:08:57,280 --> 02:09:03,320
So the tree conservation area has a minimum of 32 feet in width, right?

902
02:09:05,000 --> 02:09:05,500
Believe so.

903
02:09:06,100 --> 02:09:13,080
According to your methodology and logic, what prohibits a developer by coming in and providing

904
02:09:13,080 --> 02:09:20,220
areas of a TCA that are 20 feet in width and say it's qualifying because it's connecting

905
02:09:20,220 --> 02:09:23,120
to a 32 foot in width TCA?

906
02:09:24,140 --> 02:09:29,940
If it net all requirements of 9.1, I think that could be permitted, but I'm not sure how

907
02:09:29,940 --> 02:09:32,360
narrow TCA can be in 9.1.

908
02:09:33,260 --> 02:09:38,440
Well, just for purposes of logic, wouldn't the logic be the same that if the ordinance

909
02:09:38,440 --> 02:09:46,580
requires a 32 foot wide minimum for a TCA that according to you, there could be portions

910
02:09:46,580 --> 02:09:50,140
So the TCA that are less than 32 feet and width,

911
02:09:50,600 --> 02:09:54,640
as long as they're connected to one that's 32 feet and width.

912
02:09:55,460 --> 02:10:00,620
I will say the TCA has different rules about the dimensions of the TCA areas.

913
02:10:00,920 --> 02:10:03,520
So if we're talking about what could be allowables open space,

914
02:10:03,600 --> 02:10:06,740
I think that would be a similar logic.

915
02:10:06,880 --> 02:10:10,920
But again, TCA has different rules governing the minimum dimensions that are required.

916
02:10:12,500 --> 02:10:20,600
You're even though that subsection, the exception in 2.5.3A specifically says an

917
02:10:20,600 --> 02:10:26,620
exception is 32 feet in width, you're literally saying it could be less than that

918
02:10:26,620 --> 02:10:34,120
and still qualifies open space. If it also met the requirements of 9.1, I think

919
02:10:34,120 --> 02:10:38,520
there is an option for it to qualify. So I'm going to show you this graphic just

920
02:10:38,520 --> 02:10:40,300
I just so understand your logic and methodology.

921
02:10:41,260 --> 02:10:44,440
I'll call this exhibit number, are we out?

922
02:10:46,360 --> 02:10:47,040
I think you're right, 10.

923
02:10:47,440 --> 02:10:47,580
10.

924
02:10:47,920 --> 02:10:48,120
Awesome.

925
02:10:48,740 --> 02:10:49,300
Thank you.

926
02:10:49,720 --> 02:10:51,600
So exhibit 10 is-

927
02:10:51,600 --> 02:10:52,160
I have a copy of that.

928
02:10:52,380 --> 02:10:53,660
You can see it.

929
02:10:53,660 --> 02:10:54,960
I don't have a copy for anybody.

930
02:10:55,260 --> 02:10:56,720
This is just for illustrative purposes.

931
02:10:56,980 --> 02:10:58,780
Well, you just admitted it, isn't it?

932
02:10:59,140 --> 02:11:01,540
I'm just referring to it for illustrative purposes.

933
02:11:01,820 --> 02:11:02,740
But it's not an exhibit.

934
02:11:03,380 --> 02:11:07,300
Not yet, because I haven't introduced it for illustrative purposes yet.

935
02:11:07,300 --> 02:11:16,140
But this in terms of open space, following the neurologic, this is a correct representation

936
02:11:16,140 --> 02:11:23,720
of how the city reads the 50 foot minimum, which is all these colored areas are being

937
02:11:23,720 --> 02:11:31,740
set aside by a developer claiming that they qualify for the one acre and that all of these

938
02:11:31,740 --> 02:11:39,860
This spaces would qualify according to your reading in terms of the width requirement so

939
02:11:39,860 --> 02:11:47,900
long as all this space is like it's showing is connected to this 50 foot block, right?

940
02:11:48,720 --> 02:11:50,360
Objection, this is not part of the case.

941
02:11:50,500 --> 02:11:52,900
He can answer it, but we don't have a copy.

942
02:11:53,120 --> 02:11:56,060
He's made up an exhibit, but we just have to register it.

943
02:11:56,080 --> 02:11:56,700
Go ahead, Keegan.

944
02:11:56,800 --> 02:11:57,260
You can answer.

945
02:11:57,260 --> 02:12:13,800
Yeah, so assuming I don't believe it's to scale and I believe the purple area is such that the vertical dimension is also 50 feet all assume that then yes all of those areas if contiguous with the 50 by 50 area could qualify.

946
02:12:16,360 --> 02:12:21,580
So you would agree that if someone was going out there and measuring from the city the area and green.

947
02:12:22,520 --> 02:12:29,140
the width would be one foot. Right, if we said that was one foot, you would

948
02:12:29,140 --> 02:12:34,660
understand that that portion of the common area or the portion of the area

949
02:12:34,660 --> 02:12:40,940
that's getting thrown in the pot is one foot. This down here is three feet.

950
02:12:41,300 --> 02:12:46,040
That's in colored pink orange and then we've got the 50 feet. You understand this

951
02:12:46,040 --> 02:12:54,520
graphic that way. I understand the graphic. You've got to range a range of widths that range

952
02:12:54,520 --> 02:13:02,120
from one foot to 50 feet. Yes. For certain areas within the continuous open space. Yes.

953
02:13:03,240 --> 02:13:12,100
And so for purposes of the minimum, the minimum, you're saying the minimum here for all this

954
02:13:12,100 --> 02:13:20,040
this open space wouldn't the minimum, the lowest, the lowest number, the one foot, wouldn't

955
02:13:20,040 --> 02:13:21,600
that be the minimum of this space?

956
02:13:22,160 --> 02:13:24,000
Again, that's not how we've applied that section.

957
02:13:25,340 --> 02:13:26,040
Understand it.

958
02:13:26,140 --> 02:13:31,500
In applying, I guess, from a standpoint, a math standpoint, a lot of it.

959
02:13:31,500 --> 02:13:34,080
Can we stick to the plan in front of us, please, objection?

960
02:13:34,080 --> 02:13:35,000
So,

961
02:13:37,040 --> 02:13:43,780
at the end of the day, in terms of a minimum width, it doesn't matter what the lowest

962
02:13:44,360 --> 02:13:51,920
number is, as long as it's all connected to what could potentially be the maximum, which

963
02:13:51,920 --> 02:13:53,740
is 50 by 50, right?

964
02:13:55,060 --> 02:13:59,420
I don't believe there's a maximum, but as long as it's connected to an area that's 50 by

965
02:13:59,420 --> 02:13:59,740
50.

966
02:13:59,740 --> 02:14:06,800
Well, I say maximum here in this graph because the greatest area, the largest area is 50 by 50.

967
02:14:07,840 --> 02:14:15,220
So if that being true, you're tying this whole ordinance to a connection to the largest area

968
02:14:15,700 --> 02:14:24,300
and you are ignoring that the ordinance has the word minimum, right? You're ignoring the word minimum.

969
02:14:24,300 --> 02:14:28,140
Again, I don't think I would say we are ignoring the word minimum.

970
02:14:28,280 --> 02:14:32,600
We're ensuring that a minimum 50 by 50 areas contain within each open space.

971
02:14:33,240 --> 02:14:39,480
The transition protective yard requires that a fence be at a minimum of certain height for screening purposes, right?

972
02:14:40,220 --> 02:14:40,360
Yes.

973
02:14:40,820 --> 02:14:42,360
How high does it have to be a minimum?

974
02:14:43,760 --> 02:14:46,200
It depends on that particular protective yard.

975
02:14:47,060 --> 02:14:47,300
Okay.

976
02:14:47,780 --> 02:14:48,900
Give me an example.

977
02:14:50,560 --> 02:14:53,320
Didn't 10 feet mentioned or 16.5 to 8 feet?

978
02:14:53,560 --> 02:14:55,100
6.5 to 8 feet, all right.

979
02:14:56,160 --> 02:14:59,900
According to your logic, the minimum height for a...

980
02:15:00,000 --> 02:15:21,080
Detective Yard fence, depending on the buffer, is somewhere between six and a half and eight feet, is that what you said? Yes. So what, according to your logic, why couldn't the fence be two feet high? In some areas as long as connected to one that's six and a half to eight feet? When that be the same logic is not before you.

981
02:15:23,590 --> 02:15:30,910
Mr. Chairman, I am just trying to understand this deliberative process. If she would not object, I think I could get through this quicker.

982
02:15:30,910 --> 02:15:33,630
or do you understand the question?

983
02:15:34,150 --> 02:15:35,090
Yeah, I understand the question.

984
02:15:35,350 --> 02:15:39,390
I think we're looking at sort of the purpose

985
02:15:39,390 --> 02:15:42,810
and the intent of the screening,

986
02:15:43,130 --> 02:15:47,210
which is to provide sort of a visual obstruction.

987
02:15:48,170 --> 02:15:50,950
So we're looking at the kind of totality

988
02:15:50,950 --> 02:15:53,150
of the requirements and the fences.

989
02:15:54,130 --> 02:15:55,070
I'll say more limited.

990
02:15:55,590 --> 02:15:59,310
The requirements are allowances in the open space

991
02:15:59,310 --> 02:16:01,750
This provide for a little bit more variability.

992
02:16:03,870 --> 02:16:09,390
We're in this open space language, is there a allowance for variability to the 50 feet

993
02:16:09,390 --> 02:16:09,670
and what?

994
02:16:11,170 --> 02:16:17,310
So there is, of course, the minimum width requirement that's dated as 50 feet, there's some exceptions

995
02:16:17,310 --> 02:16:24,070
which do allow spaces, standalone spaces, as I understand it, to be even smaller than 50 feet.

996
02:16:24,070 --> 02:16:31,370
but also the requirements that certain areas that we know are not 50 feet wide to be primary, secondary, tertiary, open spaces.

997
02:16:35,660 --> 02:16:41,320
This previous plan that the court ultimately did not agree with,

998
02:16:42,140 --> 02:16:50,620
do you recall there was an argument that the space, the strip of land that was outside of this TCA along the perimeter

999
02:16:51,420 --> 02:17:01,080
that that met the 65-foot width requirement because objection that is related to open lot, not open space.

1000
02:17:01,420 --> 02:17:03,800
Mr. Chairman, I can't even finish the question.

1001
02:17:04,640 --> 02:17:11,000
I think there's been objections on both sides. We've allowed your objections. I think it's important to note both sides of objections.

1002
02:17:11,000 --> 02:17:20,220
questions. In terms of the prior plan, the city read the width requirements of open

1003
02:17:20,220 --> 02:17:30,360
lot, which is a 65 foot wide minimum, right? Yes, yes. Before you read in that this

1004
02:17:30,360 --> 02:17:37,580
strip of land, that's really a good part of the dispute, which is outside the TCA along

1005
02:17:37,580 --> 02:17:42,200
the perimeter. You know where I'm talking about right here? Yes. That the city's position

1006
02:17:42,200 --> 02:17:48,760
was that that satisfied the 65 foot width because it was part of this open lot so called.

1007
02:17:49,420 --> 02:17:56,460
It satisfied the 65 foot wide minimum because ultimately it was connected to a larger part

1008
02:17:56,460 --> 02:18:02,240
of the open lot that was greater than 65 feet. That was the original content. Yes. Yes.

1009
02:18:02,240 --> 02:18:06,460
Yes, and that is the court rejected that, right?

1010
02:18:07,480 --> 02:18:11,180
I need to object again, we've got appending, raised you to caught a motion.

1011
02:18:11,380 --> 02:18:16,320
It is our position that the court has affirmed the very thing that we're arguing about right

1012
02:18:16,320 --> 02:18:16,660
now.

1013
02:18:17,300 --> 02:18:24,580
So the court did not hold in any way that they didn't hold that open lot was open space.

1014
02:18:24,860 --> 02:18:27,620
He's misleading you and I will object to that.

1015
02:18:27,620 --> 02:18:37,220
In terms of the, this is the previous plan, and I can pull out the Justin Romano's

1016
02:18:37,220 --> 02:18:45,300
deposition transcript as well as Daniel Stegol's testimony, but I asked you this before

1017
02:18:45,300 --> 02:18:51,220
when you were up here on the stand. I said the focus of our dispute and discussion was this

1018
02:18:51,220 --> 02:18:54,520
area around the perimeter, right? That was the focus.

1019
02:18:54,520 --> 02:18:54,680
Yes.

1020
02:18:55,020 --> 02:18:56,160
For the original approval, yes.

1021
02:18:56,280 --> 02:18:56,380
Yes.

1022
02:18:57,040 --> 02:18:59,900
We didn't get in during that hearing.

1023
02:19:00,320 --> 02:19:04,900
We didn't get into contesting any of the area that's in the center.

1024
02:19:05,200 --> 02:19:07,900
Believe it was, claim number five in the original appeal.

1025
02:19:08,820 --> 02:19:15,760
During the hearing process, do you recall a singular question to Justin Romano or Daniel

1026
02:19:15,760 --> 02:19:20,780
Stiegel where we brought up any part of the center of this property?

1027
02:19:20,780 --> 02:19:25,240
My understanding it's in both of their testimonies, I can refer to my affidavit to confirm.

1028
02:19:26,020 --> 02:19:33,300
My question to you was, do you recall that we were disputing that in terms of the,

1029
02:19:33,860 --> 02:19:39,060
let's make it easy, do you recall that we were we disputing whether or not the one

1030
02:19:39,060 --> 02:19:45,240
acre was satisfied or whether or not the 60 percent continuity was satisfied?

1031
02:19:45,420 --> 02:19:48,280
Were we disputing that during the hearing process?

1032
02:19:48,280 --> 02:19:48,400
Yes.

1033
02:19:49,320 --> 02:19:53,160
I would need the transcript and original.

1034
02:19:53,360 --> 02:19:54,500
Just like you said.

1035
02:19:54,500 --> 02:19:54,880
Excuse me.

1036
02:19:55,120 --> 02:19:56,280
We'll be calling him.

1037
02:19:56,420 --> 02:19:57,780
What he remembers or not.

1038
02:19:58,060 --> 02:20:00,040
I mean, the record is the record and we'll bring it up.

1039
02:20:00,380 --> 02:20:03,600
Mr. Justice, just tell me, understand what you're trying to get to with this.

1040
02:20:04,500 --> 02:20:08,360
She keeps, Robin keeps saying, this was argued before.

1041
02:20:08,540 --> 02:20:09,680
This was argued before.

1042
02:20:10,020 --> 02:20:17,520
And none of this issue about how to measure open space

1043
02:20:17,520 --> 02:20:22,320
was in terms of the 60% contiguous of the one acre.

1044
02:20:22,760 --> 02:20:23,880
None of that was in dispute.

1045
02:20:24,680 --> 02:20:27,540
We were just simply disputing that there wasn't

1046
02:20:27,540 --> 02:20:29,700
a transition protective yard, one,

1047
02:20:30,080 --> 02:20:34,620
and that this open lot to the extent around the perimeter

1048
02:20:34,620 --> 02:20:37,280
didn't satisfy any function.

1049
02:20:37,460 --> 02:20:40,780
It wasn't open space because it wasn't 50 feet and width.

1050
02:20:41,060 --> 02:20:41,940
We did say that.

1051
02:20:42,380 --> 02:20:46,400
But we never did say, oh, they never met the acre

1052
02:20:46,400 --> 02:20:49,060
or that they didn't meet to the 60 percent.

1053
02:20:49,820 --> 02:20:52,340
So we have a witness that will testify.

1054
02:20:52,620 --> 02:20:53,600
We'll go through the record.

1055
02:20:53,980 --> 02:20:56,300
Page five page and show you every single time

1056
02:20:56,300 --> 02:20:58,060
this was argued and the decisions.

1057
02:20:58,500 --> 02:21:01,680
So letting, I mean, he can ask him about it if he wants to,

1058
02:21:01,760 --> 02:21:06,180
but I don't think Craig's memory versus Mr. McDonald's

1059
02:21:06,180 --> 02:21:06,800
is the test.

1060
02:21:08,520 --> 02:21:11,960
In terms of this original plan that was approved,

1061
02:21:12,340 --> 02:21:14,000
there is a note here.

1062
02:21:14,000 --> 02:21:16,940
I want you to circle this note.

1063
02:21:17,880 --> 02:21:26,860
It says portions of open space less than 50 feet shall overlap with secondary TCA in

1064
02:21:26,860 --> 02:21:31,840
accordance with UDO section 2.5.3A.

1065
02:21:33,660 --> 02:21:35,440
You see that note right there?

1066
02:21:42,600 --> 02:21:43,400
Yes, I see it.

1067
02:21:45,830 --> 02:21:47,580
That's our whole argument.

1068
02:21:48,500 --> 02:21:56,940
in terms of the open space is that in order for open space to be less than 50 feet it has to

1069
02:21:56,940 --> 02:22:05,020
meet one of the exceptions and there are only three and one of which is a TCA. That is what

1070
02:22:05,020 --> 02:22:05,960
that note is saying.

1071
02:22:08,160 --> 02:22:11,160
Don't know that that's exactly what it's saying. I think it's just referring

1072
02:22:11,160 --> 02:22:18,800
to the fact that there is an allowance for TCA in open space to overlap. It says portions

1073
02:22:18,800 --> 02:22:27,960
Options above the space less than 50 feet shall overlap with secondary TCA in accordance

1074
02:22:27,960 --> 02:22:31,940
with UDO section 2.5.3A.

1075
02:22:32,460 --> 02:22:32,620
Yeah.

1076
02:22:33,000 --> 02:22:38,180
I think it's just calling out the exemption, but again, that exemption sort of lowers

1077
02:22:38,180 --> 02:22:46,820
the number from 50 to 32 if even just that standalone TCA area, as I understand it, is 32 by

1078
02:22:46,820 --> 02:22:47,180
32.

1079
02:22:47,180 --> 02:22:49,400
Just for sake of argument, as opposed to 50 by 50.

1080
02:22:49,900 --> 02:22:57,820
But why would it matter to mention that note since we all know that it was drawn to connect

1081
02:22:57,820 --> 02:23:03,520
to the middle of the property where you have this so-called block?

1082
02:23:04,100 --> 02:23:05,380
Why have that note?

1083
02:23:05,860 --> 02:23:07,800
I would have to refer to the person who added the note.

1084
02:23:08,140 --> 02:23:08,660
Objection.

1085
02:23:10,420 --> 02:23:14,360
Again, that's conflating open lot and open space.

1086
02:23:14,360 --> 02:23:18,940
This plan clearly shows separate areas of open space.

1087
02:23:19,220 --> 02:23:26,340
It may have been on one open lot, but as Keegan's already testified, open lot and open space are different.

1088
02:23:27,240 --> 02:23:32,980
Mr. Chairman, now he's offering up his spin rather than allowing me just to get testimony.

1089
02:23:33,240 --> 02:23:34,600
I didn't even hear out of rejection.

1090
02:23:35,160 --> 02:23:39,640
And the section that is quoted in the note is from the open space section.

1091
02:23:39,640 --> 02:23:49,940
So in terms of the original plan, do you see the spaces that are between lot, the space between lot 14 and 15?

1092
02:23:56,200 --> 02:23:56,440
Yes.

1093
02:23:56,800 --> 02:24:01,460
I'll call it a, it's a finger of space between lot 14 and 15, right?

1094
02:24:02,220 --> 02:24:02,940
Yes.

1095
02:24:03,340 --> 02:24:07,840
And there's a similar finger of space between 12 and 13, correct?

1096
02:24:08,420 --> 02:24:09,040
Yes.

1097
02:24:09,040 --> 02:24:16,260
Yes, that space is connected to the center part of the plan, right?

1098
02:24:18,040 --> 02:24:18,680
It appears so.

1099
02:24:19,140 --> 02:24:21,540
And but yet it's not shaded as open space.

1100
02:24:22,220 --> 02:24:24,200
Yeah, it doesn't appear that it designated as open space.

1101
02:24:30,530 --> 02:24:40,210
When you look at the current plan, you have a finger between 14 and 15, right?

1102
02:24:41,170 --> 02:24:44,110
Yes, there's some open space between lots 14 and 15.

1103
02:24:44,850 --> 02:24:53,450
And in the whole calculation of open space in terms of this plan, the previous plan had

1104
02:24:53,450 --> 02:25:00,390
all the contiguous open space in the center of the property, right, the center here, correct.

1105
02:25:01,470 --> 02:25:05,650
The 60% contiguity requirement was met with that central open space, yes.

1106
02:25:05,650 --> 02:25:14,570
The current plan has the 60% contiguous based on what the city is claiming as eligible open space around the perimeter, right?

1107
02:25:14,970 --> 02:25:15,770
That's correct, yes.

1108
02:25:16,090 --> 02:25:26,730
And so the issue about whether a transitional protective yard at 20 feet and width could qualify as open space for purposes of the one acre.

1109
02:25:27,510 --> 02:25:30,810
This is a new question for this board to consider, right?

1110
02:25:32,310 --> 02:25:34,310
Sorry, could you repeat it a question one more time?

1111
02:25:34,310 --> 02:25:42,330
Well, we didn't have the question about, could a transitional protective yard at 20 feet

1112
02:25:42,330 --> 02:25:44,670
and width satisfy the contiguity?

1113
02:25:45,630 --> 02:25:51,770
That specific allowance didn't come up because there was no discussion of the protective

1114
02:25:51,770 --> 02:25:58,650
yard because they were using a different option, but again, how we calculate the minimum

1115
02:25:58,650 --> 02:26:01,170
with. So you

1116
02:26:06,840 --> 02:26:14,280
would agree with and we could look at Jose's affidavit in terms of how he's measured

1117
02:26:14,280 --> 02:26:26,680
with. This is the current plan. He's measured this area, the strip that's above north of Lot 6 and 10. Do you see that?

1118
02:26:26,680 --> 02:26:32,360
But this right here, it's south of 75 and 9,

1119
02:26:34,920 --> 02:26:38,160
yes, do you dispute how Jose calculated

1120
02:26:38,160 --> 02:26:38,800
its width?

1121
02:26:40,160 --> 02:26:44,780
I would have to refer to Zaffa David to, well are you contending that the width of that

1122
02:26:44,780 --> 02:26:46,520
area is 50 feet or greater?

1123
02:26:48,200 --> 02:26:53,560
Just by looking at it appears it does have at least one dimension, a 50 feet or greater,

1124
02:26:53,940 --> 02:26:56,300
but parts do narrow below 50 feet.

1125
02:26:56,300 --> 02:27:00,460
When you say one dimension, what dimension are you referring to,

1126
02:27:04,980 --> 02:27:07,180
I'm asking the question of width.

1127
02:27:08,120 --> 02:27:13,380
Are you contending what you just did, just shows the width of that property?

1128
02:27:13,500 --> 02:27:18,180
So, that would be a very difficult moment in a record.

1129
02:27:18,440 --> 02:27:24,860
Oh, I'm going to ask him, I just want to be sure I understand whether he's going to dispute that this strip of land.

1130
02:27:24,860 --> 02:27:27,180
and if he's going to say it is 50 feet wide

1131
02:27:27,180 --> 02:27:30,800
because the length of it is more than 50 feet.

1132
02:27:31,280 --> 02:27:32,060
You understand what I'm saying?

1133
02:27:32,100 --> 02:27:34,860
There is a difference between length and width, right?

1134
02:27:35,160 --> 02:27:36,700
Depending on the orientation, yes.

1135
02:27:38,080 --> 02:27:40,700
Well, a length of something is usually

1136
02:27:40,700 --> 02:27:42,840
the longest dimension, right?

1137
02:27:43,520 --> 02:27:43,600
Yes.

1138
02:27:44,380 --> 02:27:45,120
Typically, yeah.

1139
02:27:45,320 --> 02:27:45,460
Yeah.

1140
02:27:46,100 --> 02:27:48,860
And the width is usually the shortest dimension.

1141
02:27:49,200 --> 02:27:50,560
Again, it sort of depends what you're talking about,

1142
02:27:50,580 --> 02:27:52,800
but typically what I'm asking you

1143
02:27:52,800 --> 02:27:57,600
about what you're talking about? Are you saying that this area that intervenes

1144
02:27:57,600 --> 02:28:05,200
between Lot 7 and Lot 6 and Lot 9 and Lot 10? Are you contending that's 50 feet

1145
02:28:05,200 --> 02:28:06,900
wide or greater?

1146
02:28:08,970 --> 02:28:13,990
Again I think it depends on the orientation but has one dimension

1147
02:28:13,990 --> 02:28:19,110
that's 50 feet or greater but connected to an area that has the 50 by 50 dimensions.

1148
02:28:19,770 --> 02:28:24,070
So at part portions of it do narrow below 50 feet. This is very simple. I

1149
02:28:24,070 --> 02:28:28,590
understand the point you're making that ultimately this connects down to this block.

1150
02:28:29,210 --> 02:28:35,310
My question is this area in question, this strip of land, are you saying that that strip

1151
02:28:35,310 --> 02:28:37,170
is 50 feet or greater?

1152
02:28:37,990 --> 02:28:39,150
In one dimension, yes.

1153
02:28:39,590 --> 02:28:45,410
One dimension that happens to be what you contend to show width or what you should contend

1154
02:28:45,410 --> 02:28:46,310
to show length.

1155
02:28:49,110 --> 02:28:55,530
I think in this instance, I would be fine with either description, it only meets it in

1156
02:28:55,530 --> 02:28:55,990
one dimension.

1157
02:28:59,550 --> 02:29:03,470
So to be sure I understand your methodology, you are saying literally,

1158
02:29:03,850 --> 02:29:09,450
if you have one dimension, you're always going to consider that dimension the width?

1159
02:29:12,190 --> 02:29:19,210
No, I think it could be the length. I'm just contending that there are portions that

1160
02:29:19,210 --> 02:29:26,690
are greater, there's portions that are narrower. Whether it's width or length, in this particular

1161
02:29:26,690 --> 02:29:31,150
instance, I don't think impacts whether that qualifies as open space.

1162
02:29:31,910 --> 02:29:36,790
I understand because of the methodology you have of ultimately connecting it to a 50-by-50

1163
02:29:36,790 --> 02:29:41,490
block, but it does matter whether or not you are saying this strip of land that we've

1164
02:29:41,490 --> 02:29:43,970
been discussing is 50 feet wide or greater.

1165
02:29:44,310 --> 02:29:50,610
Is your answer maybe because there's a length that's 50 feet or greater?

1166
02:29:51,710 --> 02:29:59,550
Yeah, I mean, as we've applied the open space requirements, the 50 by 50, considering we're looking at it from all dimensions, if you want to view it that way.

1167
02:30:01,400 --> 02:30:23,860
So the space between 14 and 15, the space between 14 and 15, are you contending that's 50 feet wide or greater? It doesn't meet 50 feet in both dimensions now. The spaces that are between six, going down here in a sort of south, easterly direction.

1168
02:30:23,860 --> 02:30:31,700
Mr. Chair, we'll concede that anything less than 50 feet is not 50 feet, okay, because we know that question of methodology.

1169
02:30:31,940 --> 02:30:32,280
Thank you.

1170
02:30:33,100 --> 02:30:34,440
That was helpful.

1171
02:30:35,320 --> 02:30:38,060
Because what you're hearing is a concession.

1172
02:30:38,900 --> 02:30:49,500
That the methodology is not somehow, you know, an orientation of seeing what's linked versus what's with, we all agree that

1173
02:30:49,500 --> 02:30:57,480
But in this case, that these strips, these fingers are not 50 feet wide, but you believe it still qualifies

1174
02:30:57,480 --> 02:31:00,560
because it's ultimately connected to this block down here, right?

1175
02:31:00,820 --> 02:31:02,420
We're not conceding anything.

1176
02:31:02,700 --> 02:31:05,280
We're trying to move it along because we got two witnesses left.

1177
02:31:06,180 --> 02:31:09,420
Mr. Chairman, it is ten minutes to four.

1178
02:31:11,180 --> 02:31:19,420
If I would encourage you to ask all parties to be sure to ask their questions once and

1179
02:31:19,420 --> 02:31:22,580
to try to get us through this so that you've got some deliberation time.

1180
02:31:23,200 --> 02:31:26,700
In order for you to deliberate at all, you probably need to finish with the testimony

1181
02:31:26,700 --> 02:31:28,060
in the next 25 minutes.

1182
02:31:28,960 --> 02:31:30,780
And it also would like for us to have a break shortly.

1183
02:31:30,960 --> 02:31:34,200
I was waiting for that opportunity to not interrupt, so.

1184
02:31:35,300 --> 02:31:36,120
It's fine if you need.

1185
02:31:36,360 --> 02:31:40,160
I'm not going to sit here in a whole jail in a war of attrition here, I want to hold on.

1186
02:31:40,160 --> 02:31:44,580
This is just as much longer as your cross examination of this particular witness because it might

1187
02:31:44,580 --> 02:31:48,020
be better to break right at the call of the next two witnesses.

1188
02:31:49,080 --> 02:31:52,740
Well I'll continue ahead probably 30 minutes if I don't get interrupted.

1189
02:31:54,480 --> 02:31:58,120
So we have about five minutes of redirect as well.

1190
02:31:58,500 --> 02:32:01,280
So let me make this observation.

1191
02:32:02,040 --> 02:32:04,000
This hearing needs to finish today.

1192
02:32:05,010 --> 02:32:06,120
It is quarter to four.

1193
02:32:06,940 --> 02:32:10,580
If you're going to take 30 more minutes with this witness it would be 420.

1194
02:32:11,780 --> 02:32:13,260
After that there are two more witnesses.

1195
02:32:13,260 --> 02:32:17,580
is there's five minutes across so now we're at 425 and there are two more witnesses.

1196
02:32:18,020 --> 02:32:23,080
I think it's the prerogative of the board to insist that this be finished today.

1197
02:32:23,260 --> 02:32:25,120
They've had two special meetings to do it.

1198
02:32:26,000 --> 02:32:32,140
And I would encourage everyone to think very deeply about whether they can truncate their

1199
02:32:32,140 --> 02:32:41,540
questions. Thank you. And also that answers be precise and direct.

1200
02:32:46,890 --> 02:32:51,230
I'll move on to. Sir, since we have reached a pause, I apologize. Could we please take

1201
02:32:51,230 --> 02:32:56,130
a break? Yes. It was, it would add some comfort to I think all of us. And then we'll get

1202
02:32:56,130 --> 02:33:01,450
back at it. That's fine. If we can do this, please, and seven minutes to four, if we can

1203
02:33:01,450 --> 02:33:02,650
be back at 4, please.

1204
02:33:15,240 --> 02:33:15,980
Oh, yeah.

1205
02:33:16,120 --> 02:33:16,640
They're

1206
02:33:23,590 --> 02:33:25,430
imposing the arm crew tonight.

1207
02:33:26,090 --> 02:33:27,830
They're imposing the arbitrary arm.

1208
02:33:29,550 --> 02:33:33,150
It's just like I can't even get one question with her.

1209
02:33:38,390 --> 02:33:39,270
But she

1210
02:33:51,430 --> 02:33:52,750
defends.

1211
02:33:53,950 --> 02:33:55,070
6.5.

1212
02:33:55,230 --> 02:33:55,790
6.5?

1213
02:33:56,070 --> 02:33:56,250
Yeah.

1214
02:33:56,910 --> 02:33:57,790
All right.

1215
02:33:58,170 --> 02:33:58,370
So

1216
02:34:04,380 --> 02:34:05,580
we're about to move on.

1217
02:34:05,840 --> 02:34:06,140
Sorry.

1218
02:34:06,280 --> 02:34:07,100
I thought you got one.

1219
02:42:05,060 --> 02:42:13,220
is the opposite of the term length right yes they're typically let me show you

1220
02:42:13,220 --> 02:42:22,900
what I marked as exhibit 10-A. The UDO doesn't define width as a term, nor does it define

1221
02:42:22,900 --> 02:42:24,080
length as a term, right?

1222
02:42:27,160 --> 02:42:31,980
I have to check in chapter 12 to be certain, but certain types of width are defined

1223
02:42:31,980 --> 02:42:34,860
like lot width, not sure width generally is defined.

1224
02:42:37,860 --> 02:42:43,460
This exhibit 10-A is a webster's dictionary definition of length, and it's what we've

1225
02:42:43,460 --> 02:42:48,320
been talking about that link is the longer or longest dimension of an object.

1226
02:42:51,170 --> 02:42:51,410
Yes.

1227
02:42:51,730 --> 02:42:52,170
That's what it says.

1228
02:42:52,730 --> 02:42:55,110
Mr. Chairman, I'd like to submit Exhibit 10A.

1229
02:42:56,210 --> 02:42:56,550
Okay.

1230
02:43:18,810 --> 02:43:24,230
So I'm going to move on to the encroachment issue for the transition protective yard.

1231
02:43:26,510 --> 02:43:32,330
In terms of the section, it might be helpful if you could put on the screen the section that we were dealing with.

1232
02:43:32,790 --> 02:43:35,010
It talks about buildings or structures.

1233
02:43:35,010 --> 02:43:43,950
Okay, so I think your testimony is your testimony and your affidavit states that a road is not a

1234
02:43:43,950 --> 02:43:52,230
structure, right? Yes. And structure is not a defined term in the UDO, right? Don't believe

1235
02:43:52,230 --> 02:43:59,450
building or structure defined. But your affidavit does use Websters as a reference point to say that it's

1236
02:44:00,530 --> 02:44:07,330
anything constructed. And there's a parenthetical that mentions the building, but it talks about anything constructed, right?

1237
02:44:08,490 --> 02:44:12,750
Yeah, there is one definition from Webster as I believe included, or Maryam Webster.

1238
02:44:14,050 --> 02:44:18,250
And it's basically according to your own affidavit, it's anything constructed.

1239
02:44:20,350 --> 02:44:27,970
That's the dictionary definition. How it's applied or understood in the context of the EDO is a little different.

1240
02:44:27,970 --> 02:44:41,870
I just want to interject, if we've only got an hour, we feel like our ability to put on our cases being prejudiced by the fact that we're not having near as much time as Mr. Justice, so I'm just putting that on the record and we'll sit down after that.

1241
02:44:42,230 --> 02:44:50,990
Mr. Chairman, I've been able to do it at 40 minutes. We started at least 30 minutes, if not 40 minutes, behind schedule.

1242
02:44:51,530 --> 02:44:56,210
I have not taken as long as they have taken, and I'm entitled to cross-examination, I'm

1243
02:44:56,210 --> 02:44:58,070
trying to move it along as fast as I can.

1244
02:45:03,250 --> 02:45:30,350
Did you refer to Article 12-1, and this is in the record board members at page 1301. It's Article 12.1. This tells us how to administer the ordinance when there's not a specific definition of a term, right? Yes. In any of your applications for purposes of this appeal, did you go to this article and apply it

1245
02:45:31,610 --> 02:45:33,370
to inform your opinion.

1246
02:45:35,760 --> 02:45:37,300
Sorry, I'm not following the question.

1247
02:45:38,040 --> 02:45:42,040
Did you, in anything you did in this appeal in your opinions,

1248
02:45:42,320 --> 02:45:48,260
did you utilize this rule of construction in Article 12.1 to follow it?

1249
02:45:49,020 --> 02:45:52,420
Yeah, it was referred to, I believe it's on page 9 of the affidavit.

1250
02:45:53,360 --> 02:45:56,060
All right, so you did use a dictionary definition,

1251
02:45:56,220 --> 02:46:00,080
the websters that says essentially anything constructed is a structure, right?

1252
02:46:01,620 --> 02:46:11,140
Yes, refers to the definition in Marion Webster that says something in parentheses such as a building that is constructed.

1253
02:46:12,320 --> 02:46:18,480
Okay, something that is constructed. Are you contending today in front of this board that a road is not constructed?

1254
02:46:19,880 --> 02:46:20,540
No.

1255
02:46:22,080 --> 02:46:29,480
Does that mean, maybe I asked the question wrong, are you saying that a road is not constructed?

1256
02:46:29,480 --> 02:46:30,580
Is that your contention?

1257
02:46:32,440 --> 02:46:42,160
Roads have to be constructed, but again we've used additional information to understand

1258
02:46:42,160 --> 02:46:48,480
the term building or structure and we don't believe that that definition includes or

1259
02:46:48,480 --> 02:46:50,960
is directly applicable to roads.

1260
02:46:51,720 --> 02:46:58,000
So if the road meets the definition of anything constructed, why are you going off and looking

1261
02:46:58,000 --> 02:46:59,880
at other sources besides that?

1262
02:47:01,780 --> 02:47:08,080
We're using other information that's in the UDO specifically, so I believe in the affidavit.

1263
02:47:08,160 --> 02:47:15,800
There's also references to other terms, I'll say, that include the word building and also

1264
02:47:15,800 --> 02:47:21,060
elsewhere in the UDO where buildings and structures are differentiated from, for instance, the

1265
02:47:21,060 --> 02:47:31,880
So a building or structure, because it's mentioned separate, these are two separate words that must independently be given meaning.

1266
02:47:32,180 --> 02:47:33,080
You would agree with that, right?

1267
02:47:34,020 --> 02:47:34,280
Yes.

1268
02:47:34,900 --> 02:47:43,200
And so you are saying that in your affidavit, you use the term building coverage to help inform you of the meaning of structure.

1269
02:47:43,860 --> 02:47:44,500
Yes.

1270
02:47:44,500 --> 02:47:50,620
Yes. Yeah, we looked at it as part of the information that we considered.

1271
02:47:51,540 --> 02:47:55,600
So let me show you what a mark is Exhibit 11.

1272
02:48:02,680 --> 02:48:06,380
Exhibit 11, this is from the city's website

1273
02:48:07,640 --> 02:48:15,880
that talks about road design and construction standards that the city has. Correct. Exhibit

1274
02:48:17,380 --> 02:48:26,620
Yes. In fact, the city has an entire website to inform the public that roads are constructed.

1275
02:48:27,100 --> 02:48:32,360
There is a design and standards applicable to roads. There is a review process associated

1276
02:48:32,600 --> 02:48:34,640
with the construction of roads in my right.

1277
02:48:36,080 --> 02:48:43,440
There is a website separate from the UDO, yes. And that's a copy of what's on the UDO in terms

1278
02:48:43,440 --> 02:48:50,660
of talking about roads are some things that are constructed. Right? I don't believe what you've

1279
02:48:50,660 --> 02:48:57,940
provided is a copy from the UDO. I'm sorry, from the website of the city, correct? Yes, different

1280
02:48:57,940 --> 02:49:04,320
from the UDO, but yes. Let me show you what I've marked as a pellant exhibit 12. In fact, you have

1281
02:49:04,320 --> 02:49:11,620
very specific rolly street road designs details and standards that would include alleys, right?

1282
02:49:11,620 --> 02:49:17,970
or it would at least include the road that's internal to this project, correct?

1283
02:49:20,940 --> 02:49:23,640
Yes, I believe it is marked as an alley.

1284
02:49:25,020 --> 02:49:29,020
So there are specific construction standards applicable to that alley.

1285
02:49:29,720 --> 02:49:31,940
That the city requires a developer to follow, right?

1286
02:49:33,400 --> 02:49:37,820
Objection, has it been identified that these are actually incorporated into the UDO?

1287
02:49:40,430 --> 02:49:41,490
Yes, they are.

1288
02:49:41,490 --> 02:49:49,270
So, in terms, are these, the City of Raleigh, published Raleigh Street design details, exhibit 12?

1289
02:49:50,090 --> 02:49:57,110
I'm not familiar with the latest version, but these are marked August 2020, appears to be some collection of design details.

1290
02:49:58,070 --> 02:50:04,350
That includes an alley as part of the thing being regulated, right?

1291
02:50:04,350 --> 02:50:04,350
I

1292
02:50:06,560 --> 02:50:11,880
believe that's on the transportation subsection, yes.

1293
02:50:13,240 --> 02:50:17,500
Mr. Chairman, exhibits 11 and 12, I'd like to include as part of the record.

1294
02:50:18,120 --> 02:50:19,140
Okay, let's look at them.

1295
02:50:36,550 --> 02:50:39,410
Sure, what I've marked is exhibit 13.

1296
02:50:39,810 --> 02:50:41,270
Let me give you 11.

1297
02:50:41,590 --> 02:50:41,910
This

1298
02:50:47,960 --> 02:50:48,660
is 11 room.

1299
02:50:50,080 --> 02:50:50,600
Let

1300
02:50:53,860 --> 02:50:57,020
me show you what I'm marked as a Helen exhibit 13.

1301
02:50:57,880 --> 02:51:00,780
This is section 1.5.4,

1302
02:51:00,780 --> 02:51:08,240
We're dealing with building setbacks of the UDO, Section 1.5.4, all right?

1303
02:51:09,140 --> 02:51:09,540
Yes.

1304
02:51:16,770 --> 02:51:25,150
Section 1.5.4 D generally prohibits buildings or structures.

1305
02:51:25,490 --> 02:51:27,390
Objection, this is not supplement 19.

1306
02:51:30,640 --> 02:51:39,200
If I'm trying to speed this along, if at the end of the day, Section 1.5.4 of the UDO

1307
02:51:39,200 --> 02:51:43,820
that's in the record covers setback requirements, correct?

1308
02:51:44,300 --> 02:51:44,720
It does.

1309
02:51:45,220 --> 02:51:51,480
And it generally prohibits structures or buildings in a setback, correct?

1310
02:51:52,240 --> 02:52:07,660
So, 154 does set forth limitations on the buildings or structures from encroaching into setbacks and then it sets forth specific allowances for what can encroach.

1311
02:52:07,660 --> 02:52:09,980
So it lists out a few different categories.

1312
02:52:10,340 --> 02:52:12,240
Correct, and I'm going to cover that.

1313
02:52:12,360 --> 02:52:18,060
But generally, the way it's set up is there's a general prohibition for buildings and

1314
02:52:18,060 --> 02:52:21,100
structures being in a setback with certain exceptions.

1315
02:52:21,980 --> 02:52:22,200
Yes?

1316
02:52:23,180 --> 02:52:23,860
Yes.

1317
02:52:24,300 --> 02:52:29,280
And the certain exceptions, as if you go through them, includes driveways.

1318
02:52:31,590 --> 02:52:32,930
Subsection E, yes.

1319
02:52:33,650 --> 02:52:35,210
Includes fences and walls.

1320
02:52:37,300 --> 02:52:37,860
Yes.

1321
02:52:37,860 --> 02:52:55,700
And so, the fact that there are exceptions to structures, meaning there's a general prohibition would mean that these listed exceptions are either buildings or structures, or there'd be no point of listing them as exceptions.

1322
02:52:56,100 --> 02:52:57,140
Do you understand what I just said?

1323
02:52:58,340 --> 02:52:59,980
I understand what you're saying.

1324
02:53:00,440 --> 02:53:03,780
I think we've grouped them separately from buildings and structures, though.

1325
02:53:03,780 --> 02:53:09,700
So why include them as exceptions if they're not buildings or structures?

1326
02:53:10,420 --> 02:53:15,920
Because you've rendered including them as exceptions totally meaningless if they have nothing

1327
02:53:15,920 --> 02:53:17,720
to do with buildings or structures.

1328
02:53:17,980 --> 02:53:20,720
So subsection D is just titled setback encroachments.

1329
02:53:21,060 --> 02:53:25,500
And then there's a blanket statement because often what people are contending with is buildings

1330
02:53:25,500 --> 02:53:26,080
and structures.

1331
02:53:27,020 --> 02:53:31,100
But then there's separate groupings, so there's building features which I think are feature

1332
02:53:31,100 --> 02:53:31,680
of a building.

1333
02:53:31,680 --> 02:53:40,660
But then you continue on and there are certain things that we would say fall outside of that category of buildings and structures such as driveways.

1334
02:53:42,520 --> 02:53:50,760
The D says all buildings and structures must be located at or behind required setbacks except as listed below.

1335
02:53:51,740 --> 02:54:00,040
The things listed below would be those exempted structures or buildings that did not have to meet setback requirements.

1336
02:54:00,040 --> 02:54:06,520
Correct? Subsection E sort of separately states other setback encroachments from subsection D.

1337
02:54:07,740 --> 02:54:14,420
So we'll go on back over to the section that talks about buildings or structures in

1338
02:54:17,650 --> 02:54:20,330
the, yes, near the protective yard.

1339
02:54:21,710 --> 02:54:29,770
So what is the point in D1B that talks about breaks for pedestrian vehicle access?

1340
02:54:29,770 --> 02:54:37,630
this, you would agree that the internal road in question is not a break, correct?

1341
02:54:37,910 --> 02:54:38,410
It doesn't.

1342
02:54:38,530 --> 02:54:40,830
It's not breaking the protective yard now.

1343
02:54:41,290 --> 02:54:43,890
So that's yes, you would agree it's not a break, right?

1344
02:54:44,710 --> 02:54:45,070
Yes.

1345
02:54:45,630 --> 02:54:55,450
And so if a vehicular break was not considered a building or structure, why mention it at

1346
02:54:55,450 --> 02:55:02,410
all in this section. What would be the point? Unless it is in fact an exception to the

1347
02:55:02,410 --> 02:55:07,970
general prohibition of there being no building or structure within 10 feet of a protective

1348
02:55:07,970 --> 02:55:13,070
yard. Yeah, I view these sort of as separate groupings of allowances. So one is buildings

1349
02:55:13,070 --> 02:55:15,530
and structures, the other is pedestrian and vehicle access.

1350
02:55:18,280 --> 02:55:21,320
This is encroachments in protective

1351
02:55:21,320 --> 02:55:29,540
of yards. And you're saying that the fact that B allows for breaks in pedestrian or

1352
02:55:29,540 --> 02:55:35,000
vehicle access doesn't necessarily mean that a break can be a building or structure.

1353
02:55:35,360 --> 02:55:37,740
Is that what I'm hearing you said? I believe they're separate categories, yes.

1354
02:55:39,820 --> 02:55:42,840
Yes, I've been asked about four times. Can we move along?

1355
02:55:48,500 --> 02:55:55,140
In terms of the set of plans, they looked like they were submitted to the city on March 20th

1356
02:55:55,140 --> 02:55:57,520
and approved on April 4th, Keegan.

1357
02:55:58,000 --> 02:55:58,840
Does that sound about right?

1358
02:55:59,300 --> 02:56:00,500
Sounds about right, yes.

1359
02:56:00,980 --> 02:56:03,380
And so that is literally about 10 business days.

1360
02:56:03,760 --> 02:56:07,300
The plans were revised, submitted, and approved.

1361
02:56:07,620 --> 02:56:08,700
About 10 business days.

1362
02:56:09,540 --> 02:56:09,980
Sounds right.

1363
02:56:10,340 --> 02:56:12,960
How many times did you meet with the developer

1364
02:56:13,700 --> 02:56:14,820
before approving the plans?

1365
02:56:16,220 --> 02:56:17,780
Objection to the extent that turning.

1366
02:56:20,440 --> 02:56:23,840
Yeah, believe I was involved in two meetings.

1367
02:56:24,560 --> 02:56:27,280
And it doesn't matter that I'm not asking the communications

1368
02:56:27,280 --> 02:56:41,340
So I'm just asking how many times you met that's not a privilege thing even if it was remotely privilege, which is not so two meetings with the developer before it was submitted that's correct and so you had already figured out that it was going to be approved beforehand, right?

1369
02:56:41,860 --> 02:56:51,820
No, so in terms of the folks that were in the room to review these plans were that was you who else was in the room for the city.

1370
02:56:51,820 --> 02:57:19,000
I don't have a full roster, can provide some names, our attorney was represented or there, excuse me, Justin Remetta, the project engineer Jason Meadows, our company council, Michael Birch, Daniel King, his transportation manager, Zachary Manor, who's Urban Forestry,

1371
02:57:20,400 --> 02:57:21,700
That's all I recall right now.

1372
02:57:21,900 --> 02:57:25,040
There are two separate meetings that I remember being involved with prior to

1373
02:57:25,040 --> 02:57:28,360
the submittal, and I think the attendance shifted between the two meetings.

1374
02:57:29,100 --> 02:57:32,740
Was Eric Hodge invited to the room and participated?

1375
02:57:33,740 --> 02:57:34,660
I'm not aware.

1376
02:57:35,520 --> 02:57:40,480
So Eric Hodge was part of the deliberative process of the original plan.

1377
02:57:41,420 --> 02:57:43,200
So why wouldn't he be included in this one?

1378
02:57:44,200 --> 02:57:48,820
Objection, Mr. Hodge testified at that hearing that he was not a part of that process

1379
02:57:50,400 --> 02:57:59,400
I don't know where we're going here, but it matches the plan or not, and this idea that there was a decision made illegally, I think is inappropriate.

1380
02:58:02,340 --> 02:58:11,480
This communication of Exhibit 14 is a communication from Eric Hodg that indicated he was part of the deliberative process for the first goal around.

1381
02:58:18,190 --> 02:58:24,050
Let me just ask again because this is we're trying to figure out how to make this thing

1382
02:58:24,050 --> 02:58:24,410
work.

1383
02:58:25,050 --> 02:58:29,710
I understand there are also some legal challenges going on separate from this conversation.

1384
02:58:30,390 --> 02:58:36,330
If there are legal challenges or questions about ethics or appropriateness of city behavior,

1385
02:58:36,670 --> 02:58:39,930
is this the forum for that or is that a different forum?

1386
02:58:40,970 --> 02:58:42,450
I'm trying to understand where you're going.

1387
02:58:42,450 --> 02:58:51,810
Mr. Chairman, the last goal around, we got into the deliberative process to understand how the city landed where they did.

1388
02:58:52,510 --> 02:58:56,170
Ultimately, where they landed, the court determined they were wrong.

1389
02:58:56,770 --> 02:59:08,010
And there was a deliberative process of communications where if you recall, Keegan and another individual said essentially we don't agree with the position you're taking developer with these plans.

1390
02:59:08,010 --> 02:59:17,590
Just in Ramada shows up and he reverses what the staff members had said and ultimately the staff members, not Mr. Ramada was right.

1391
02:59:18,190 --> 02:59:34,270
Ultimately, okay, it's important to understand the deliberative process because ultimately what you're hearing here is that the developer, the attorneys, they all got into a room and figured it all out and then turned it in so within a few business days, it was approved.

1392
02:59:34,270 --> 02:59:38,270
It goes to credibility, it goes to credibility, the deliberative process.

1393
02:59:38,490 --> 02:59:49,070
This is my only exhibit, and I was going to move on to show that Mr. Hodge actually has a difference of opinion about this current plan.

1394
02:59:49,110 --> 02:59:59,230
But the only question in asking is that whether that may be true or not, where does that come to the marriage of the case that we're trying to decide today?

1395
02:59:59,230 --> 02:59:59,350
Okay.

1396
03:00:00,000 --> 03:00:29,640
You know, whether they talked among themselves, is that a job of the Board of Adjustment to respond to? If there were five planners in the room and you had someone with a loud voice saying this is not right, the neighbors are correct. I think that is probative as probative information for you to consider. The fact of the matter is you have a employee of the city, ultimately saying there's no way they can design this without losing some of the density. And again, I'm looking to move on because this is

1397
03:00:29,640 --> 03:00:32,420
Go ahead and do that then I'll bring my own question.

1398
03:00:33,340 --> 03:00:37,600
Can I say yesterday you said this couldn't come in and today you're letting it in.

1399
03:00:37,840 --> 03:00:41,700
It doesn't have anything to do with whether this is right or wrong.

1400
03:00:41,860 --> 03:00:46,980
Mr. Hodges, not a part of this process and yes we did meet and we were very careful to make

1401
03:00:46,980 --> 03:00:52,560
sure that we would be covered because we have that mandate from a judge that says and

1402
03:00:52,560 --> 03:00:58,080
I'll get to that if I ever get to my witness up there that said you did everything right

1403
03:00:58,080 --> 03:01:04,340
but you did this one thing wrong. So they added the one thing so yes we wanted

1404
03:01:04,340 --> 03:01:09,340
to make sure from a legal perspective that we followed the judges order. Now

1405
03:01:09,340 --> 03:01:13,000
this idea that we met behind and said we're going to grin at no matter what

1406
03:01:13,000 --> 03:01:17,640
there is not a shred of evidence to that and it's inappropriate to suggest that

1407
03:01:17,640 --> 03:01:22,120
about the city. We also are in the middle of a lawsuit which is challenging this

1408
03:01:22,120 --> 03:01:31,280
very same approval. So we've had two appeals, one red assertiorari and one lawsuit. Now I don't

1409
03:01:31,280 --> 03:01:36,160
know if you know that, but in the lawsuit, they sued the developer and the judge dismissed the

1410
03:01:36,160 --> 03:01:42,400
developer and awarded attorney speeds. So this is ongoing. It isn't us against them because it's the

1411
03:01:42,400 --> 03:01:49,640
city's rules and it's their plan. So we are entitled to talk with one another. We do not have to include

1412
03:01:49,640 --> 03:01:54,800
Mr. Justice. And we are trying as hard as we can to do everything legally. And that's

1413
03:01:54,800 --> 03:01:59,160
about all I have to say. And this idea where he's trying to corner him to say something

1414
03:01:59,160 --> 03:02:05,060
bad was done because of Eric Codge who really if you want to bring him in here, that's fine.

1415
03:02:05,340 --> 03:02:11,000
But this is a vicious something that he is inserting himself into that has nothing to do with this

1416
03:02:11,000 --> 03:02:16,580
case. Mr. Brown, I'm trying to move this along. I'm trying to understand. Help me here.

1417
03:02:19,800 --> 03:02:22,780
It's your prerogative as to whether to admit this exhibit or not.

1418
03:02:22,980 --> 03:02:26,860
I don't have a recollection of this particular one being brought in before.

1419
03:02:27,040 --> 03:02:32,680
I do have a recollection that you raise the same question in the last hearing that you're raising in this hearing.

1420
03:02:33,520 --> 03:02:42,840
I will observe that to the extent this was offered to for credibility, we're probably well to move on at that point.

1421
03:02:42,840 --> 03:02:45,220
Mr. Justice has completed his case in chief.

1422
03:02:46,020 --> 03:02:50,040
This is he is now simply asking cross-examination questions.

1423
03:02:50,380 --> 03:02:56,900
And I do not see in propriety on the part of the city as being included in one of the five grounds of appeal.

1424
03:02:57,580 --> 03:03:00,540
So I'm looking to impeach this particular witness.

1425
03:03:01,060 --> 03:03:06,200
Okay, so this witness and I just simply want to include 14 in the record.

1426
03:03:06,200 --> 03:03:08,320
It says what it says and I was going to move on.

1427
03:03:08,320 --> 03:03:15,860
So, Mr. Chairman, I suggest that, that, um, what, 14 will be in the record whether

1428
03:03:15,860 --> 03:03:19,380
you receive it, or whether you reject it, because it will be in the record, as it

1429
03:03:19,380 --> 03:03:22,120
rejected, exhibit, you decide, and let's do move on.

1430
03:03:22,380 --> 03:03:27,640
Okay, let's, we're not going to accept it, let's move on, as part of the record, as has been noted.

1431
03:03:29,100 --> 03:03:36,320
And by the way, uh, Robin mischaracterizes, uh, so many things, so many things.

1432
03:03:36,320 --> 03:03:39,720
Mr. Justice, we have 40 minutes.

1433
03:03:39,940 --> 03:03:41,920
Let's not start going down those paths.

1434
03:03:42,320 --> 03:03:46,300
Leanne, you don't interrupt her when she stands up and gives like a 10-minute

1435
03:03:47,300 --> 03:03:50,500
recitation, so I will move on, Mr. Chairman.

1436
03:03:54,560 --> 03:03:58,520
So in terms of the discussion about open space,

1437
03:04:03,170 --> 03:04:07,970
who presented this or how long did you

1438
03:04:07,970 --> 03:04:13,430
You considered the question of open space and this block concept for purposes of the

1439
03:04:13,430 --> 03:04:14,030
approved plan.

1440
03:04:14,030 --> 03:04:16,530
How long would you say you considered that issue?

1441
03:04:20,200 --> 03:04:20,860
Not very long.

1442
03:04:21,200 --> 03:04:21,440
Okay.

1443
03:04:21,900 --> 03:04:28,480
As long as, again, met the minimum with requirement, contiguity, given some of the similarity to the

1444
03:04:28,480 --> 03:04:33,820
previous plan and a lot of familiarity with the project, I think it was able to be evaluated

1445
03:04:33,820 --> 03:04:34,400
pretty quickly.

1446
03:04:35,820 --> 03:04:39,680
You know, I would move on when you talk about, but then you say that the other plan was

1447
03:04:39,680 --> 03:04:47,400
So similar. So the other plan, the other plan had one acre because if you look at these dimensions,

1448
03:04:47,540 --> 03:04:52,260
this is the other plan, right? This is the original plan, right? Yes? Yes.

1449
03:04:52,660 --> 03:04:58,060
This dimension up here, this dimension right here, this whole strip is right here in the middle,

1450
03:04:58,240 --> 03:05:06,400
the center. That's 50 feet wide. That's actually 59 feet wide, okay? Yeah. So this whole section here

1451
03:05:06,400 --> 03:05:09,900
is wider than 50 feet. Yes?

1452
03:05:10,660 --> 03:05:11,380
Appears now.

1453
03:05:11,820 --> 03:05:14,760
This whole section now is less than 50 feet.

1454
03:05:15,640 --> 03:05:16,240
Yes?

1455
03:05:16,860 --> 03:05:17,880
In that dimension, yes.

1456
03:05:18,200 --> 03:05:20,300
We do not have a transitional protective yard

1457
03:05:20,300 --> 03:05:23,040
running around the perimeter at 20 feet and width

1458
03:05:23,040 --> 03:05:26,400
that suddenly being counted for purposes of the one acre, right?

1459
03:05:27,760 --> 03:05:28,120
That's correct.

1460
03:05:28,640 --> 03:05:30,700
The contiguity provisions

1461
03:05:30,700 --> 03:05:33,640
or any of the city were satisfied by the center.

1462
03:05:33,640 --> 03:05:37,800
Now that you're looking to satisfy it by what's around the perimeter.

1463
03:05:38,260 --> 03:05:38,540
That's correct.

1464
03:05:39,020 --> 03:05:44,000
So what you say similar, there's very material changes that are occurring where the

1465
03:05:44,000 --> 03:05:50,020
developers cannibalizing the open space in order to maintain 17 units.

1466
03:05:51,400 --> 03:05:54,520
The amount of open space is actually increased from Plan 1 to Plan 2.

1467
03:05:54,680 --> 03:06:02,480
It is increased in your mind of counting all of these spaces that are less than 50 feet

1468
03:06:02,480 --> 03:06:04,300
in with. Yes?

1469
03:06:06,540 --> 03:06:23,220
I don't know if it's my mind, but it's how we've applied the 50-foot width requirement. Right, because when you say it's greater than an acre, there is considerable portions of this property that you're calling open space, meeting the standard that are less than 50 feet in width. Yes?

1470
03:06:23,820 --> 03:06:26,240
There are portions that are narrower than 50 feet. Yes.

1471
03:06:26,240 --> 03:06:26,380
Yes.

1472
03:06:29,460 --> 03:06:31,240
Mr. Chairman, that's a question to you.

1473
03:06:31,780 --> 03:06:32,560
Thank you.

1474
03:06:34,220 --> 03:06:34,740
Rebuttal?

1475
03:06:35,120 --> 03:06:35,340
Oh

1476
03:06:43,790 --> 03:06:43,990
my God.

1477
03:06:44,170 --> 03:06:44,890
Can you pull up?

1478
03:06:44,930 --> 03:06:45,690
Microphone please.

1479
03:06:46,350 --> 03:06:46,930
Oh, sorry.

1480
03:06:47,650 --> 03:06:48,110
Thank you.

1481
03:06:51,380 --> 03:06:51,620
Okay.

1482
03:06:51,780 --> 03:06:52,880
Can you pull up the plan?

1483
03:06:53,240 --> 03:06:54,640
The second plan, please?

1484
03:06:55,100 --> 03:06:55,240
Yes.

1485
03:06:55,840 --> 03:06:56,100
Okay.

1486
03:06:56,440 --> 03:07:02,260
So, Mr. Justice kept referring to the block versus everything else.

1487
03:07:02,700 --> 03:07:03,060
Okay.

1488
03:07:03,380 --> 03:07:05,760
When you talk about the block, you're just talking about the measurement.

1489
03:07:06,000 --> 03:07:09,940
You're not talking about this open space being broken up until separate.

1490
03:07:09,940 --> 03:07:16,600
pieces, are you? No, it's all contiguous. Okay, so where are the open space areas? So there's

1491
03:07:16,600 --> 03:07:22,760
again one in the center, so just marking sort of the general area and then one towards the perimeter,

1492
03:07:22,980 --> 03:07:29,260
going a little bit off-screen. Okay, you can leave that there. Okay, so what the UDO says is that the area

1493
03:07:29,800 --> 03:07:37,540
of open space, here they're two, say yes. That's correct, yes. Okay, so the minimum area

1494
03:07:37,540 --> 03:07:42,960
Yeah, of that open space, the whole thing has to be 50 by 50.

1495
03:07:43,100 --> 03:07:43,540
Is that right?

1496
03:07:44,140 --> 03:07:44,640
Yes.

1497
03:07:45,020 --> 03:07:45,240
Okay.

1498
03:07:45,680 --> 03:07:48,060
And so, just do your off-the-cuff block.

1499
03:07:48,820 --> 03:07:49,000
Yeah.

1500
03:07:49,220 --> 03:07:56,020
So, just a kind of, just going to re-draw, so here's sort of a block, again, not perfectly

1501
03:07:56,020 --> 03:07:58,040
to mention, but here's a block.

1502
03:07:58,600 --> 03:07:58,700
Next.

1503
03:07:59,060 --> 03:08:06,040
So, if you take the whole area into account, that area is at least 50 feet wide, correct?

1504
03:08:06,620 --> 03:08:06,880
Yes.

1505
03:08:06,880 --> 03:08:17,140
That's correct. And that's what your point is. It's not that every piece, every single area on the whole thing needs to be 50 feet correct. That's correct. And what that makes sense?

1506
03:08:18,080 --> 03:08:30,960
No, not based on the way the rest of the code is constructed. Okay. Open space is not set forth in 50 feet blocks across every single open space area. Is it? No, it's not. Is it possible to do that?

1507
03:08:31,860 --> 03:08:36,840
In theory, but in practical terms and the way the code is organized, no.

1508
03:08:37,240 --> 03:08:42,180
And once you hit that 50 feet, is it everything else just extra open space?

1509
03:08:42,980 --> 03:08:47,220
Correct as long as you are working towards that 1 acre or 20 percent minimum.

1510
03:08:47,340 --> 03:08:48,300
So you've met the width.

1511
03:08:49,460 --> 03:08:52,100
So then you have to go to area and contiguity.

1512
03:08:52,300 --> 03:08:52,780
They're separate.

1513
03:08:53,000 --> 03:08:54,340
So there's three separate measurements.

1514
03:08:54,340 --> 03:08:55,060
Is that correct?

1515
03:08:55,380 --> 03:08:55,700
That's correct.

1516
03:08:56,000 --> 03:08:56,100
Okay.

1517
03:08:56,100 --> 03:09:06,340
Okay, so the next thing I would like you to pull up, if you will, is section 7.2.4.

1518
03:09:11,310 --> 03:09:11,410
Yes.

1519
03:09:12,370 --> 03:09:18,810
Okay, so I can scroll up here.

1520
03:09:21,050 --> 03:09:25,230
Okay, so this is about transitional protective yards, correct?

1521
03:09:25,950 --> 03:09:26,350
That's correct.

1522
03:09:26,350 --> 03:09:33,610
Okay. In the first Senate, so the first number one says no building or structure may be located closer than 10 feet to protect.

1523
03:09:33,930 --> 03:09:34,490
Yes.

1524
03:09:34,950 --> 03:09:43,910
And the second says that or the third one says that you cannot have structures in a protective yard, correct?

1525
03:09:44,730 --> 03:09:47,550
Yes. The parking of vehicles and placement of buildings is prohibited.

1526
03:09:47,770 --> 03:09:48,050
Okay.

1527
03:09:48,270 --> 03:09:52,270
But then it specifically speaks to walls. Is that correct?

1528
03:09:52,730 --> 03:09:52,950
Yes.

1529
03:09:52,950 --> 03:09:53,050
Yes.

1530
03:09:53,550 --> 03:09:56,970
And that says, while's in a protective yard must meet the following.

1531
03:09:57,290 --> 03:09:57,470
Yes.

1532
03:09:57,990 --> 03:10:01,210
So, Mr. Justice has said those two were conflicting.

1533
03:10:01,950 --> 03:10:02,710
Are they conflicting?

1534
03:10:03,690 --> 03:10:09,050
No, because we're viewing them separately and this instance a wall is not a building or

1535
03:10:09,050 --> 03:10:09,370
structure.

1536
03:10:09,510 --> 03:10:09,690
Okay.

1537
03:10:09,870 --> 03:10:17,050
Can you go down there, says a wall must be eight feet, it's got to be compatible, it can't

1538
03:10:17,050 --> 03:10:17,450
be with it.

1539
03:10:17,450 --> 03:10:22,930
And so there's all sorts of requirements for a wall in a protective yard.

1540
03:10:23,290 --> 03:10:23,610
Yes.

1541
03:10:24,010 --> 03:10:26,850
Those do not apply to structures in a protective yard, correct?

1542
03:10:27,250 --> 03:10:27,630
That's correct.

1543
03:10:27,870 --> 03:10:28,670
Because they're not allowed.

1544
03:10:29,270 --> 03:10:29,590
That's correct.

1545
03:10:29,770 --> 03:10:30,850
Can you keep rolling down please?

1546
03:10:31,970 --> 03:10:32,550
Right here.

1547
03:10:33,010 --> 03:10:34,970
So this is, what does this chart do?

1548
03:10:35,790 --> 03:10:38,950
This provides the standards for each type of protective yard.

1549
03:10:39,370 --> 03:10:39,630
Okay.

1550
03:10:40,230 --> 03:10:43,550
And type B1 is what that we've used here, correct?

1551
03:10:44,090 --> 03:10:44,530
That's correct.

1552
03:10:44,870 --> 03:10:45,110
Okay.

1553
03:10:45,110 --> 03:10:46,670
Does it talk about walls?

1554
03:10:48,450 --> 03:10:50,650
It does talk about wall height, yes.

1555
03:10:50,870 --> 03:10:51,070
OK.

1556
03:10:51,610 --> 03:10:54,790
And it says, so that would contemplate

1557
03:10:54,790 --> 03:10:56,770
you would have a wall in a B1, correct?

1558
03:10:57,050 --> 03:10:57,210
Yes.

1559
03:10:57,810 --> 03:10:58,110
OK.

1560
03:10:58,250 --> 03:11:00,230
It doesn't talk about structures in a B1.

1561
03:11:00,350 --> 03:11:01,570
It talks about walls, correct?

1562
03:11:01,790 --> 03:11:01,970
Yes.

1563
03:11:02,250 --> 03:11:06,350
And it says that the walls should be a minimum of 6.5 feet.

1564
03:11:06,630 --> 03:11:06,970
That's correct.

1565
03:11:07,130 --> 03:11:07,310
OK.

1566
03:11:07,410 --> 03:11:08,450
And can you roll back up?

1567
03:11:10,010 --> 03:11:13,750
And the walls, what's the max height?

1568
03:11:13,770 --> 03:11:14,110
8 feet.

1569
03:11:14,110 --> 03:11:23,090
Okay, so the UDO is telling the public and the developer that you can and you must put

1570
03:11:23,090 --> 03:11:24,030
a wall there, correct?

1571
03:11:24,290 --> 03:11:24,410
Yes.

1572
03:11:24,630 --> 03:11:26,170
And exactly the size it should be.

1573
03:11:27,070 --> 03:11:29,430
And what is that size measured from?

1574
03:11:29,890 --> 03:11:33,150
It's measured from the neighboring side.

1575
03:11:33,450 --> 03:11:36,450
Okay, and is that that requirement is met, correct?

1576
03:11:36,890 --> 03:11:37,030
Yes.

1577
03:11:37,490 --> 03:11:43,910
Okay, so what Mr. Justice is arguing is that we should essentially take a big sharpie and

1578
03:11:43,910 --> 03:11:46,290
Take everything about walls out, correct?

1579
03:11:47,050 --> 03:11:54,870
Yes, it's saying that walls or his argument, it appears, is that walls are a type of building or structure that would otherwise be prohibited.

1580
03:11:55,210 --> 03:12:00,130
Do you remember Rodriguez, is that Mr. Rodriguez?

1581
03:12:00,730 --> 03:12:01,390
Martinez.

1582
03:12:01,730 --> 03:12:10,590
Martinez, testifying that he was relying on Section 1 to say there was no structures allowed in the TPI.

1583
03:12:11,090 --> 03:12:11,290
Yes.

1584
03:12:11,290 --> 03:12:11,430
Yes.

1585
03:12:11,830 --> 03:12:18,250
Did you also hear him respond when we asked him if he had read the section upon walls

1586
03:12:18,250 --> 03:12:20,850
and he said, no, he had not studied that.

1587
03:12:21,490 --> 03:12:21,670
Yes.

1588
03:12:22,290 --> 03:12:22,510
Okay.

1589
03:12:22,610 --> 03:12:24,010
I don't have anything further, Mr. Burke.

1590
03:12:29,670 --> 03:12:31,190
Three questions, Keegan.

1591
03:12:31,490 --> 03:12:36,490
On the prior plan, how many open space areas were there, distinct areas?

1592
03:12:37,270 --> 03:12:40,950
So on the prior plan, there were three distinct open space areas.

1593
03:12:40,950 --> 03:12:41,850
Yes, great.

1594
03:12:44,030 --> 03:12:52,070
Once an applicant meets the minimum open space amount, does an applicant have to designate

1595
03:12:53,310 --> 03:13:00,250
other areas or any more space as open area or can they stop once they hit the minimum

1596
03:13:00,250 --> 03:13:00,610
amount?

1597
03:13:00,930 --> 03:13:02,330
Yeah, they can stop once they hit the minimum.

1598
03:13:02,730 --> 03:13:02,810
Great.

1599
03:13:03,230 --> 03:13:06,650
And again, back up on this, we've talked about the triangles.

1600
03:13:07,730 --> 03:13:13,370
Mr. Justice has referenced that with is the least dimension.

1601
03:13:13,830 --> 03:13:18,210
Those triangle areas, the least dimension, is that less than 50 feet?

1602
03:13:18,810 --> 03:13:19,030
Yes.

1603
03:13:19,670 --> 03:13:20,350
That's all I have.

1604
03:13:22,010 --> 03:13:22,570
Thank you.

1605
03:13:24,330 --> 03:13:26,590
Your next witness in

1606
03:13:32,570 --> 03:13:37,810
the interest of logic, it's 4.30 now.

1607
03:13:37,810 --> 03:13:46,070
Do you believe you'll get through this witness in a half-hour and the same goes to you on your rebuttal?

1608
03:13:48,140 --> 03:13:49,640
This is what I think respectfully.

1609
03:13:50,380 --> 03:13:52,720
I think that it will take me 30 minutes.

1610
03:13:52,940 --> 03:14:03,960
I will try to be faster, but I don't want to do that if I'm going to go away for days and days and days to allow him to prepare his cross, and I don't believe that we can get through both of them.

1611
03:14:03,960 --> 03:14:07,680
I very much like to do it, but we have had a fraction of the time.

1612
03:14:08,900 --> 03:14:14,720
Mr. Justice had Mr. McDonald on direct and on cross much longer than we did.

1613
03:14:14,880 --> 03:14:19,700
And I just think that we have an obligation to our clients to put on our record.

1614
03:14:19,880 --> 03:14:23,880
And I don't want to be rushed, but again, I don't want to get to the end of my case.

1615
03:14:23,880 --> 03:14:26,560
And then who knows when we'll come back for cross.

1616
03:14:27,720 --> 03:14:31,460
Mr. Chairman, I would suggest that it's 425.

1617
03:14:31,460 --> 03:14:37,660
I've mistreated him just told you that we will go past five o'clock before she's put on this witness.

1618
03:14:38,240 --> 03:14:41,220
Mr. Justice would have the right to cross examine this witness.

1619
03:14:41,420 --> 03:14:42,720
She would have a right to redirect.

1620
03:14:42,920 --> 03:14:45,040
Mr. Birch has a right to ask questions as well.

1621
03:14:45,560 --> 03:14:48,700
And there's one more witness to be called by the city after this.

1622
03:14:48,900 --> 03:14:50,620
Mr. Birch, do you have any other witnesses?

1623
03:14:52,700 --> 03:14:55,160
All right, so the last one is Mr. Birch's.

1624
03:14:56,400 --> 03:14:58,920
There's no way you're going to finish today by five o'clock.

1625
03:14:58,920 --> 03:14:59,980
There's probably no way you-

1626
03:15:00,000 --> 03:15:29,980
I would finish today by 6 o'clock. So we are still facing the same August 2 deadline. I'm still out of state next week. Is there another day this week that we can finish and we can set a time certain and give people I suggest at this point, you not only set a time certain, but give each attorney a direction as to how long they'll have. Let me say that I can probably get it done pretty quickly, but I don't think that I should have to compromise that just to have

1627
03:15:29,980 --> 03:15:36,500
have crossed for twice as long as I had, so if we have limits on both sides, and I'm glad to work with that.

1628
03:15:37,360 --> 03:15:39,320
Can I propose a solution here?

1629
03:15:40,140 --> 03:15:49,760
I don't know if this week works, but at the next hearing, which there clearly needs to be,

1630
03:15:50,320 --> 03:15:57,340
we need to outline ahead of time a time barrier for each party at that moment.

1631
03:15:57,340 --> 03:15:59,980
and I understand that this is your presentation

1632
03:15:59,980 --> 03:16:02,800
and he had the allotted time on his presentation.

1633
03:16:02,800 --> 03:16:04,380
I fully am aware of that.

1634
03:16:04,940 --> 03:16:08,180
But in the interest of time, I think it's important

1635
03:16:08,180 --> 03:16:10,440
that the board together comes up with timelines

1636
03:16:10,440 --> 03:16:12,880
and that we stick to them regardless of questions

1637
03:16:12,880 --> 03:16:14,460
and where they're going and what they're doing.

1638
03:16:14,940 --> 03:16:16,880
We're 100% in support of that.

1639
03:16:16,980 --> 03:16:21,320
Okay, so for the Mr. Justice, can you, are you okay

1640
03:16:21,320 --> 03:16:22,120
with that approach?

1641
03:16:23,940 --> 03:16:25,580
I'm perfectly fine with that approach.

1642
03:16:25,760 --> 03:16:26,020
Thank you.

1643
03:16:26,020 --> 03:16:32,460
Okay, for the next, well, I think the, in the interest of the fact that we're not getting it done today, we need to figure out

1644
03:16:33,600 --> 03:16:38,140
what works going forward. The only day that I can come in is tomorrow.

1645
03:16:39,420 --> 03:16:41,780
And I doubt that works for everyone else.

1646
03:16:44,060 --> 03:16:47,960
And given that we need to get it done by August 2nd,

1647
03:16:48,400 --> 03:16:52,020
is there a way that we can push back that August 2nd?

1648
03:16:52,020 --> 03:16:59,660
and deadline to fully hear both sides and come to a conclusion that is fair.

1649
03:17:00,000 --> 03:17:05,500
Thank you, Ms. Torrey. Before we do that, is there a chance to finish it today?

1650
03:17:06,060 --> 03:17:08,520
No, no, you can't.

1651
03:17:08,960 --> 03:17:12,940
I mean, I can stay for as long as we need to today, but are we even allowed to do that?

1652
03:17:14,100 --> 03:17:16,200
Yeah, they're not going to kick us out.

1653
03:17:16,580 --> 03:17:19,360
I would really like to respect everyone's rights.

1654
03:17:19,360 --> 03:17:23,060
But if we can do this today, if we come back, it's going to go on and on.

1655
03:17:23,200 --> 03:17:30,620
So can we agree to, can we come up, give us five minutes to come up with timelines here for direct and cross?

1656
03:17:31,920 --> 03:17:34,460
Yes, and then we have closings, and I'm fine for that.

1657
03:17:34,580 --> 03:17:35,000
That's fine.

1658
03:17:35,300 --> 03:17:37,220
Yes, so those are the things we need time limit.

1659
03:17:37,340 --> 03:17:37,560
Okay.

1660
03:17:37,760 --> 03:17:39,180
As Brown come forward, please.

1661
03:17:55,000 --> 03:17:56,580
She just hijacked the narrative here.

1662
03:17:58,680 --> 03:17:59,860
Yeah, hijacked the narrative.

1663
03:17:59,860 --> 03:18:03,100
She took us in a much time, not all of her own cross.

1664
03:18:05,400 --> 03:18:05,880
Give

1665
03:20:37,270 --> 03:20:38,070
off your patience.

1666
03:20:41,070 --> 03:20:47,770
We are not of the opinion we can complete this today as much as I would like to, I think

1667
03:20:47,770 --> 03:20:49,410
collectively we don't think we're going to.

1668
03:20:50,030 --> 03:20:56,270
So we need to consider, and we do not believe this can be completed within the 90 days, which

1669
03:20:56,270 --> 03:21:00,750
I know was the request of the developer and the property owner.

1670
03:21:01,970 --> 03:21:08,670
So we need to find out if we can go beyond that date, if that is going to work.

1671
03:21:09,570 --> 03:21:13,790
And then if so, then we will need to find a date and we're looking at a couple of options.

1672
03:21:15,670 --> 03:21:18,570
Mr. Chairman, I'm just just to clarify with the parties.

1673
03:21:18,770 --> 03:21:24,470
It sounds as though if Ms. Tatum indicated she needed 30 minutes with her next witness.

1674
03:21:24,470 --> 03:21:28,850
I don't know how long Mr. Birch is a microphone please.

1675
03:21:29,510 --> 03:21:34,350
I don't think Mr. Justice can tell us how long he thinks he's going to take but if he

1676
03:21:34,350 --> 03:21:41,610
matched it he had equal time that's that's an hour and ten minutes and then you have

1677
03:21:41,610 --> 03:21:43,170
another witness that is what link.

1678
03:21:43,190 --> 03:21:44,710
No we need to read direct after that.

1679
03:21:45,430 --> 03:21:45,630
Okay.

1680
03:21:45,790 --> 03:21:47,470
Can we limit that to ten minutes?

1681
03:21:47,470 --> 03:21:59,690
So in hour and 10 plus another say 1520 for redirect hour and a half and then there is one more witness in Mr.

1682
03:21:59,870 --> 03:22:05,690
Burgess. There's not one more witness that covers both and then how long do people think they need for

1683
03:22:05,690 --> 03:22:16,390
closing or 10 10 just Mr. Justice you hear that 10 10 for closing

1684
03:22:18,390 --> 03:22:27,450
If they say 10 minutes, so it's 10, 10, so I would take the 20, so that's well

1685
03:22:33,600 --> 03:22:37,220
fine

1686
03:22:39,520 --> 03:22:43,920
if you do if you do 10, I'll do just I mean if you

1687
03:22:50,340 --> 03:22:54,400
I really don't think five minutes for any witness by the time they say hello, they're

1688
03:22:54,400 --> 03:22:57,720
going to be longer than five minutes, but I don't think that's real.

1689
03:22:57,740 --> 03:22:59,980
So I lost track of my time, right?

1690
03:23:00,180 --> 03:23:01,380
She worked with me there with that.

1691
03:23:01,480 --> 03:23:03,800
Yeah, so we were out about an hour and a half.

1692
03:23:04,000 --> 03:23:06,540
An hour and a half until we got to closing.

1693
03:23:06,780 --> 03:23:06,940
Yeah.

1694
03:23:07,340 --> 03:23:08,880
We were an hour and a half to put on the less.

1695
03:23:09,320 --> 03:23:14,660
And what you two are saying is that, first of all, you're representing two distinct parties,

1696
03:23:14,660 --> 03:23:25,240
which is an important note here and you're saying that you should get the combined number of whatever they get.

1697
03:23:25,740 --> 03:23:32,680
I'm saying that usually if I'm a plaintiff and I've got defendants, I would generally get the same number.

1698
03:23:33,060 --> 03:23:39,340
But look are we talking about trying to figure out something to do tonight or are we talking about trying to do something in the morning?

1699
03:23:39,600 --> 03:23:40,480
What are we trying to do?

1700
03:23:40,480 --> 03:23:43,420
It would be great to know how long we could go tonight.

1701
03:23:43,700 --> 03:23:46,540
And I don't ask that in worry how long we can go.

1702
03:23:46,820 --> 03:23:52,840
But again, we've got a strong, strong interest in doing this tonight, if at all possible.

1703
03:23:53,080 --> 03:23:58,020
So if we go an hour and a half, and at the close of an hour and a half,

1704
03:23:58,860 --> 03:24:02,960
we have everybody has rested their case and made their closing arguments.

1705
03:24:05,020 --> 03:24:10,040
That means it's 615, and then the board has an opportunity to deliberate.

1706
03:24:10,040 --> 03:24:10,200
right.

1707
03:24:12,820 --> 03:24:17,580
Is the board willing to do that? Parties willing to do that?

1708
03:24:18,140 --> 03:24:18,880
You need to make a call.

1709
03:24:19,180 --> 03:24:22,500
Clerk willing to stay with us. All right.

1710
03:24:23,240 --> 03:24:24,700
Let's get it going. Okay.

1711
03:24:24,980 --> 03:24:31,240
So that being said, that being said, let's watch the clock and be sure we keep the times

1712
03:24:31,240 --> 03:24:32,160
we said we'd keep.

1713
03:24:35,390 --> 03:24:40,610
All right. Let's thank you everyone, moving on. Next witness.

1714
03:24:40,610 --> 03:24:43,670
It's beginning to answer your question, Mr. Victoria.

1715
03:24:45,650 --> 03:24:47,470
Setting the clock is depending upon.

1716
03:24:48,950 --> 03:24:50,130
That's an arbitrary thing.

1717
03:24:50,270 --> 03:24:50,810
All right, I'll do it.

1718
03:24:54,080 --> 03:24:58,280
So we're going to limit yours to a half an hour and then his to a half an hour.

1719
03:24:59,220 --> 03:25:02,240
And then 10 to you for a bottle.

1720
03:25:03,200 --> 03:25:05,280
I thought we just agreed to that, I'm confused.

1721
03:25:08,040 --> 03:25:12,020
Okay, Mr. Ramatta, do you swear a firm the testimony will provide with the truth,

1722
03:25:12,020 --> 03:25:13,180
We thought truth and nothing but the truth.

1723
03:25:13,380 --> 03:25:13,580
I do.

1724
03:25:13,920 --> 03:25:14,800
Thank you.

1725
03:25:14,980 --> 03:25:17,400
Okay, and this is a recent.

1726
03:25:17,440 --> 03:25:20,280
And you should introduce yourself for the record, just please.

1727
03:25:20,620 --> 03:25:22,280
Just in a matter with City of Raleigh Planning and Development.

1728
03:25:23,260 --> 03:25:27,220
Okay, and Mr. Rametta, how are you employed?

1729
03:25:27,780 --> 03:25:29,720
With the City of Raleigh as the zoning administrator

1730
03:25:29,720 --> 03:25:31,060
for the Planning and Development Department.

1731
03:25:31,460 --> 03:25:33,020
And how long have you had that position?

1732
03:25:33,560 --> 03:25:34,660
Approximately five and a half years.

1733
03:25:35,220 --> 03:25:36,740
And what are your job duties?

1734
03:25:37,320 --> 03:25:47,860
So my position is designated by City Council through the UDO to provide interpretations of the code to provide vested right determinations.

1735
03:25:49,300 --> 03:25:56,040
I supervise a team that does zoning co-enforcement and zoning inspections and I supervise a team that staffs this board of adjustment.

1736
03:25:56,720 --> 03:26:01,760
Okay, were you involved in the first appeal of the 2022 908 subdivision?

1737
03:26:02,500 --> 03:26:02,900
Yes, I was.

1738
03:26:03,220 --> 03:26:05,320
Okay, did you testify on behalf of the city?

1739
03:26:05,320 --> 03:26:12,820
Yes, I did okay. Did you review the appeal itself? Yes, I did okay. I'm gonna approach. I am handing

1740
03:26:12,820 --> 03:26:17,280
Mr. Remetta the city of Raleigh's motion to dismiss based on raised due to

1741
03:26:17,280 --> 03:26:21,160
conduct and collateral is stopped. Everybody's got that in their notebook.

1742
03:26:23,200 --> 03:26:24,160
Okay if

1743
03:26:24,160 --> 03:26:39,140
you could please take a look at the exhibit number two to that. Okay. And can you identify

1744
03:26:39,140 --> 03:26:45,480
that? This is the appeal of the original subdivision plan.

1745
03:26:45,740 --> 03:26:52,340
Okay. Did you review this at the time? I did. Okay. And did you go through all of these grounds

1746
03:26:52,340 --> 03:26:56,640
for appeal and analyze whether or not that in your opinion they had merit?

1747
03:26:57,060 --> 03:26:57,820
Yes, I did.

1748
03:26:58,140 --> 03:26:59,880
Okay, can we go through those pretty quickly?

1749
03:27:00,060 --> 03:27:02,900
These are the grounds for appeal that were first brought forward, correct?

1750
03:27:03,420 --> 03:27:03,900
Yes, they were.

1751
03:27:04,260 --> 03:27:04,580
Okay.

1752
03:27:05,060 --> 03:27:13,500
And number one, that has to do with whether or not the townhouse use is allowed, building

1753
03:27:13,500 --> 03:27:14,280
type is allowed.

1754
03:27:14,400 --> 03:27:14,900
Is that correct?

1755
03:27:15,160 --> 03:27:15,780
That is correct.

1756
03:27:16,560 --> 03:27:16,800
Okay.

1757
03:27:16,800 --> 03:27:23,900
Okay, number two states that the project does not meet the standards for compact development correct.

1758
03:27:25,000 --> 03:27:25,600
That's correct.

1759
03:27:26,100 --> 03:27:34,720
Okay, number three states that the frequent transit area would not be allowed to give this density.

1760
03:27:35,640 --> 03:27:36,440
That's correct.

1761
03:27:37,100 --> 03:27:37,360
Okay.

1762
03:27:38,480 --> 03:27:45,020
Four talks about the protective yard being too small.

1763
03:27:46,520 --> 03:27:47,120
Correct.

1764
03:27:47,540 --> 03:27:50,920
Okay, and that's the thing that went up to the superior court and got reversed.

1765
03:27:51,120 --> 03:27:51,520
Is that correct?

1766
03:27:51,860 --> 03:27:52,180
That's right.

1767
03:27:52,660 --> 03:27:52,820
Okay.

1768
03:27:53,360 --> 03:27:55,100
So, what is number five?

1769
03:27:56,000 --> 03:28:03,600
Number five states that the project does not comply with the 50 foot minimum open space requirements of Section 2.3.1.

1770
03:28:03,600 --> 03:28:09,700
point B2. Okay, so that was raised in the first appeal. Yes it was. Okay, number six,

1771
03:28:09,860 --> 03:28:15,920
that argues that the infill requirements prohibit this correct. Correct. The next one

1772
03:28:15,920 --> 03:28:25,220
talks about primary street being wrong. Correct. The next one has to do also with whether

1773
03:28:25,220 --> 03:28:31,580
the infill properly applies. Yes. And was there also a large amount of time spent on the

1774
03:28:31,580 --> 03:28:37,360
issue of whether the term plural lots encompass the word lot as well as lots.

1775
03:28:37,720 --> 03:28:38,200
Yes, there was.

1776
03:28:38,560 --> 03:28:38,740
Okay.

1777
03:28:39,280 --> 03:28:43,180
If you could now look to exhibit three,

1778
03:28:47,530 --> 03:28:49,150
and can you identify that?

1779
03:28:50,450 --> 03:29:00,010
This is the findings of facts and order affirming the administrative subdivision decision from

1780
03:29:00,010 --> 03:29:00,850
the board of adjustment.

1781
03:29:01,130 --> 03:29:01,210
Yes.

1782
03:29:01,210 --> 03:29:01,330
Yes.

1783
03:29:01,730 --> 03:29:02,010
Okay.

1784
03:29:02,390 --> 03:29:07,890
And this is where the Board of Adjustment reviewed the allegations asserted by the neighbors

1785
03:29:07,890 --> 03:29:11,390
and made a decision about whether they would rule in their favor or not.

1786
03:29:11,770 --> 03:29:12,210
That's correct.

1787
03:29:12,530 --> 03:29:12,710
Okay.

1788
03:29:13,370 --> 03:29:16,310
Can you look please at number seven and eight?

1789
03:29:17,070 --> 03:29:17,630
Yes.

1790
03:29:18,570 --> 03:29:19,090
And what is it?

1791
03:29:19,210 --> 03:29:20,850
What is the finding there?

1792
03:29:22,690 --> 03:29:28,770
Number seven is that the permitted density for the townhouse subdivision is governed by

1793
03:29:28,770 --> 03:29:36,290
UDO, sections 2.3.4 and 2.3.1. Section 2.3.4 requires 6,000 square feet in

1794
03:29:36,290 --> 03:29:40,150
area for each townhouse and that each townhouse lot be at least 16 p wide.

1795
03:29:40,950 --> 03:29:45,450
Per section 2.3.1 there is no limitation on the number of townhouse lots in our

1796
03:29:45,450 --> 03:29:49,430
floor as long as all requirements are otherwise met. Properties of total

1797
03:29:49,430 --> 03:29:54,930
105,531 square feet and when divided by 6,000 square feet allows 17

1798
03:29:54,930 --> 03:29:56,370
and residential townhouse lots.

1799
03:29:56,870 --> 03:29:59,970
Under section 2.3.1, D, 100%.

1800
03:30:02,740 --> 03:30:29,860
So that was a determination that the density was correct. That's correct. Okay, the board made that decision. Yes. Okay, if you look at the next one, nine, it says UDA, it talks about section 2.3.1. Yes. And that's where the open space requirements are located. Correct. Correct. So if you look at nine and 10, I mean 10 and 11, can you please review for the board? What those two findings?

1801
03:30:29,860 --> 03:30:39,680
are? Finding 10 is that UDO Section 2.3.1B entitled Open Space in the R4 Districts requires

1802
03:30:39,680 --> 03:30:45,880
at least 20% or 1 acre, whichever is greater of Open Space. The Open Space must be a minimum

1803
03:30:45,880 --> 03:30:52,900
of 50 feet in width. Number 11 states that the property, again the size of the property,

1804
03:30:55,180 --> 03:31:01,680
that 20% is approximately 21,106 square feet, that is less than an acre, so the one acre

1805
03:31:01,680 --> 03:31:07,400
is the controlling threshold for the open space states that the townhouse subdivision

1806
03:31:07,400 --> 03:31:14,860
contains 1.009 acres of open space and that the open space is located in three areas designated

1807
03:31:14,860 --> 03:31:20,100
on the approved plans, each of which is larger than 50 by 50 feet in size.

1808
03:31:20,100 --> 03:31:27,880
Okay, so the Board of Adjustment made a finding that the open space is located in three areas designated on the approved plan.

1809
03:31:28,100 --> 03:31:30,720
Each of which is larger than 50 by 50 feet.

1810
03:31:30,980 --> 03:31:31,380
Yes, they did.

1811
03:31:31,920 --> 03:31:39,020
Okay, 12, 13 and 14 relate to the transitional protective yard. Is that correct?

1812
03:31:39,820 --> 03:31:41,240
15 and 16.

1813
03:31:41,240 --> 03:31:41,580
Yes.

1814
03:31:42,320 --> 03:31:46,540
15 and 16 is that a determination that the lot width is correct?

1815
03:31:47,280 --> 03:31:48,160
Yes, it is.

1816
03:31:48,160 --> 03:31:53,100
Okay. What about 17 and 18? What is that make a finding?

1817
03:31:54,160 --> 03:32:17,620
17 and 18 are related to the open lot and states that under section 2.3.1 and 2.2.6A, there is no requirement for any type of planted buffer, protective yard tree conservation or other landscaping on the perimeter open lot.

1818
03:32:17,620 --> 03:32:22,680
Okay, and the next two relates to the outdoor amenity area and said that was correct.

1819
03:32:28,180 --> 03:32:31,100
19 numbers. 19 and 20.

1820
03:32:33,400 --> 03:32:40,700
Yes, minimum outdoor amenity area is 5%. Yes, and 20 provides the total

1821
03:32:40,700 --> 03:32:49,440
required. And 21 and 22 basically says it's not time for the infill. Correct. Okay, 23 talks about the

1822
03:32:49,440 --> 03:32:55,480
The tree conservation area and 23, 24 and 25 found that that was correctly calculated.

1823
03:32:56,860 --> 03:32:57,880
Yes, that's right.

1824
03:32:58,340 --> 03:33:06,040
Okay, 26 and 27 said that the city's position and the developer's position on the primary street was correct.

1825
03:33:07,140 --> 03:33:07,800
That's right.

1826
03:33:08,260 --> 03:33:14,060
And number four in the conclusions of the law basically says a lot and lots are the same.

1827
03:33:14,780 --> 03:33:15,060
Correct.

1828
03:33:15,060 --> 03:33:24,060
Okay. Okay. If you can, you know then there was a, can you pull up my chart? You know where my chart is on the screen?

1829
03:33:24,740 --> 03:33:26,860
On your presentation? Yeah.

1830
03:33:30,020 --> 03:33:33,880
That's not too cumbersome. Here comes Keegan.

1831
03:33:37,700 --> 03:33:38,000
Okay.

1832
03:33:40,270 --> 03:33:43,510
You tell me one. Forward. Forward.

1833
03:33:46,190 --> 03:33:46,590
There you go.

1834
03:33:47,450 --> 03:33:54,390
Okay, and that chart, which is also in the interior of your notebook, sets forth what

1835
03:33:54,390 --> 03:33:58,910
the neighbors appeal was to the superior court.

1836
03:33:59,130 --> 03:34:03,910
What I just read to you, which included the fact that the board found that the open space

1837
03:34:03,910 --> 03:34:06,870
calculation, 50 by 50 total, was correct.

1838
03:34:07,750 --> 03:34:14,730
The appeal to the superior court, a paragraph 44, says there are no areas that qualify as

1839
03:34:14,730 --> 03:34:20,050
open space in 2.5, either in terms of function, use, or dimensions. Do you see that?

1840
03:34:20,630 --> 03:34:21,150
Yes, I do.

1841
03:34:21,530 --> 03:34:29,030
Okay. I'll finish this up in my closing. But have you, are you aware of what the Superior Court

1842
03:34:29,030 --> 03:34:30,950
told him was? I am.

1843
03:34:31,510 --> 03:34:32,410
What was that?

1844
03:34:33,230 --> 03:34:38,350
That the subdivision that was appeal would originally met all the requirements for a compact

1845
03:34:38,350 --> 03:34:43,490
In fact, development, except for the requirement for a transitional project to be asked.

1846
03:34:44,170 --> 03:34:48,570
Objection, actually, it's not what it says, but object to the fact that he's sitting there

1847
03:34:48,570 --> 03:34:50,090
construing what a court order says.

1848
03:34:50,630 --> 03:34:51,470
Okay, that's fine.

1849
03:34:52,110 --> 03:34:54,250
We don't need to dwell on that.

1850
03:34:55,030 --> 03:34:55,370
Okay.

1851
03:34:55,750 --> 03:34:56,630
Isn't that in the record?

1852
03:34:57,190 --> 03:34:57,350
Yeah.

1853
03:34:57,690 --> 03:34:57,950
Yeah.

1854
03:34:58,450 --> 03:34:58,690
Okay.

1855
03:34:58,830 --> 03:34:59,070
Thank you.

1856
03:34:59,630 --> 03:34:59,990
Okay.

1857
03:34:59,990 --> 03:35:08,830
Okay, did you testify at the first hearing about open space and what was how it was calculated?

1858
03:35:09,330 --> 03:35:09,890
Yes, I did.

1859
03:35:10,250 --> 03:35:10,430
Okay.

1860
03:35:10,830 --> 03:35:15,310
I'm going to hand you this is, I guess, city's exhibit three.

1861
03:35:16,890 --> 03:35:18,090
I think that's right.

1862
03:35:19,390 --> 03:35:25,930
And what this is, it's just excerpts from the transcript from the record of the first case,

1863
03:35:25,930 --> 03:35:27,570
which is actually part of this record.

1864
03:35:43,360 --> 03:35:47,940
Okay, and if you look at the first page there, is that, can you tell me if that is your test,

1865
03:35:48,080 --> 03:35:52,460
oh you've got one, if that is your testimony from the first hearing.

1866
03:35:53,460 --> 03:35:54,100
Yes, it is.

1867
03:35:54,760 --> 03:35:58,420
And can you look down where the questioning first starts?

1868
03:35:58,620 --> 03:36:01,500
And I'm going to just read my questions and let you read your answers.

1869
03:36:01,940 --> 03:36:02,120
Okay.

1870
03:36:02,680 --> 03:36:10,020
Okay, I say okay, so if you look at the next section, which is open space in R4, what is that requirement?

1871
03:36:10,020 --> 03:36:23,600
And then I, okay, and then your answer in our for the requirement is 20% or one acre whichever is greater, okay, and then it says, okay, what about with there's a minimum with the 50 feet?

1872
03:36:24,180 --> 03:36:28,740
Okay, have you compared that to the applicant subdivision plan that was approved?

1873
03:36:29,140 --> 03:36:29,660
Yes, I have.

1874
03:36:30,140 --> 03:36:33,540
Okay, go to slide six, what is that?

1875
03:36:34,040 --> 03:36:36,940
This is the site data table from the approved subdivision plan.

1876
03:36:36,940 --> 03:36:42,980
Okay, so when you read it, does it set forth what the open space is?

1877
03:36:43,280 --> 03:36:43,640
It does.

1878
03:36:44,060 --> 03:36:45,780
Okay, can you walk the board through that?

1879
03:36:46,520 --> 03:36:51,140
It says the second row over the bottom as highlighted, open space required.

1880
03:36:51,320 --> 03:36:56,140
It lists for a compact subdivision, one acre minimum, 60 percent of that must be contiguous

1881
03:36:56,140 --> 03:37:02,120
and under that it lists the type of open space tertiary that was to be provided a total

1882
03:37:02,120 --> 03:37:11,760
So 43,969 square feet or 1.009 acres were provided and 28,580 I believe or 65% of that

1883
03:37:11,760 --> 03:37:12,600
is contiguous.

1884
03:37:13,080 --> 03:37:13,600
Okay.

1885
03:37:13,800 --> 03:37:16,220
And your opinion has that requirement been met by this plan?

1886
03:37:16,520 --> 03:37:17,100
Yes, it has.

1887
03:37:17,660 --> 03:37:17,940
Okay.

1888
03:37:18,100 --> 03:37:19,360
Can you go to slide seven?

1889
03:37:19,820 --> 03:37:20,980
Can you identify that?

1890
03:37:21,320 --> 03:37:23,520
This is the subdivision plan in question.

1891
03:37:24,360 --> 03:37:24,520
Okay.

1892
03:37:26,200 --> 03:37:30,420
At least one of those sections does it show the open space on that page?

1893
03:37:30,420 --> 03:37:38,520
it does. Okay and can you identify that? Yes I can try and use the cursor so if you can see it,

1894
03:37:38,680 --> 03:37:44,200
there are three distinct open spaces, open space areas demarcated. I think they are denoted

1895
03:37:44,200 --> 03:37:49,960
by gray. I believe it's a grid or dot pattern on the actual plan. It's hard to see here.

1896
03:37:57,440 --> 03:38:03,120
Next page. Did you were you present when Daniel Stegal testified? Yes I was.

1897
03:38:03,120 --> 03:38:24,860
Okay, can you look, please, at my question in green, where it says, as to the terms of figuring out this open space, or this is actually Mr. Justice, add a term of figuring out what the open space around the perimeter, this wouldn't even qualify as open space for compact development, because it's supposed to be 50 by 50 and width, right?

1898
03:38:24,860 --> 03:38:27,640
And then can you read, Mr. Stagall's answer?

1899
03:38:27,840 --> 03:38:38,460
Mr. Stagall's answer was so that this area of the plan adjacent to the property outside of that, outside of the road, you could qualify some of this area as open space.

1900
03:38:38,940 --> 03:38:43,500
If you have at least a 50 by 50 block of open space, that will qualify.

1901
03:38:43,880 --> 03:38:49,800
The remaining area outside of the road, the remaining area outside the road, could qualify as open space.

1902
03:38:49,800 --> 03:38:54,900
Okay. And on the next page, that's fine. Examination of Mr. Stegal.

1903
03:38:55,420 --> 03:38:55,980
Yes.

1904
03:38:56,440 --> 03:39:00,820
And it says, okay, the amount of open space has been met. He says, yes.

1905
03:39:01,300 --> 03:39:01,640
Correct.

1906
03:39:02,160 --> 03:39:05,300
So can you point to the area where the open space is?

1907
03:39:06,000 --> 03:39:10,860
He says, yes. So there's some open space here indicating around the,

1908
03:39:12,100 --> 03:39:15,940
or which also encompasses the TCA tree conservation area.

1909
03:39:15,940 --> 03:39:19,780
and then in the middle of the lot and then up to the northeast corner.

1910
03:39:20,340 --> 03:39:24,180
Okay, and 2.3.1 says it has to be at least 50 feet.

1911
03:39:24,960 --> 03:39:28,720
So, in this area and the first area you looked at over here?

1912
03:39:29,040 --> 03:39:29,280
Yes.

1913
03:39:29,660 --> 03:39:32,120
Is that at least 50 by 50 feet in area?

1914
03:39:32,680 --> 03:39:33,540
Yes, there is.

1915
03:39:33,980 --> 03:39:36,220
So, once it's established, does it matter?

1916
03:39:36,400 --> 03:39:40,360
I mean, once you have 50 by 50, is that correct?

1917
03:39:41,060 --> 03:39:42,040
Correct, yes.

1918
03:39:42,300 --> 03:39:44,060
Okay, the requirement is met.

1919
03:39:45,020 --> 03:40:02,320
What about the second open space area in the middle here? Yes, there's at least a 50 by 50 foot by 50 foot block of open space in the middle. So that's been met. Yes. What about the third one? Correct. Yes, there's a 50 foot by 50 foot block here.

1920
03:40:02,320 --> 03:40:13,620
So, with respect to Section 2.3.1, that open space on this flat is at least one acre and every open space area is at least 50 by 50.

1921
03:40:14,080 --> 03:40:14,340
Yes.

1922
03:40:14,980 --> 03:40:19,000
And that is what the City Council decided is required for townhouse subdivisions.

1923
03:40:19,280 --> 03:40:19,880
Objection.

1924
03:40:20,820 --> 03:40:29,100
Obviously, Mr. Chairman, for these witnesses, there's just a continuing objection to stating what the intent was or what it held in Oregon's reach.

1925
03:40:29,100 --> 03:40:34,740
This is only to determine whether or not we've decided this issue, not whether the testimony is correct.

1926
03:40:35,600 --> 03:40:38,660
Okay, no more open space requirements, that's it.

1927
03:40:39,060 --> 03:40:39,500
That's it.

1928
03:40:39,840 --> 03:40:41,080
Probably you've 15 minutes left.

1929
03:40:41,900 --> 03:40:46,560
Okay, all right, can you please pull up the first plan, Mr. Remetta?

1930
03:41:00,290 --> 03:41:03,290
Okay, before, okay, we'll get back to that in a second.

1931
03:41:03,810 --> 03:41:09,330
So when you looked at this plan, you were determining when you testified whether the 50 by 50 was met, correct?

1932
03:41:09,330 --> 03:41:09,670
Correct.

1933
03:41:09,850 --> 03:41:10,270
Correct.

1934
03:41:10,710 --> 03:41:15,810
And can you explain to the board how you determine that to be the case?

1935
03:41:17,470 --> 03:41:24,670
How the 50 by 50 foot area has been met, satisfied, as in the exact same manner the Mr. McDonald

1936
03:41:24,670 --> 03:41:25,190
described.

1937
03:41:25,590 --> 03:41:31,630
You can see the area outlined in blue in the center is an open space area.

1938
03:41:31,630 --> 03:41:39,990
area, there was at least a 50 by 50 foot block of open space in that area, other areas that

1939
03:41:39,990 --> 03:41:43,390
were contiguous to it may or may not have been 50 feet wide but the requirement was

1940
03:41:43,390 --> 03:41:43,770
satisfied.

1941
03:41:44,430 --> 03:41:44,790
Okay.

1942
03:41:45,070 --> 03:41:51,170
Are there areas in those three open space areas that do not meet the 50 foot requirement?

1943
03:41:52,250 --> 03:41:52,570
Yes.

1944
03:41:52,730 --> 03:41:54,350
It does taper down in some areas.

1945
03:41:54,830 --> 03:41:55,090
Okay.

1946
03:41:55,270 --> 03:41:56,830
Were you aware of that at the time?

1947
03:41:57,110 --> 03:41:57,530
Yes it was.

1948
03:41:57,530 --> 03:42:02,810
Okay. And is that part of what you prepared to testify to to show open space was met?

1949
03:42:03,070 --> 03:42:03,790
Yes, it was.

1950
03:42:04,090 --> 03:42:09,770
Okay. I'm also, so, so in your, is the second, with respect to the first, for the second plan,

1951
03:42:09,990 --> 03:42:14,750
is there any difference as to how the open space 50 by 50 was determined?

1952
03:42:15,690 --> 03:42:19,230
Same methodology was used. Obviously, the layout was slightly different as we've heard,

1953
03:42:19,330 --> 03:42:20,790
but it was the same exact methodology.

1954
03:42:21,210 --> 03:42:27,510
Okay. I'm going to hand you now your affidavit, which is Exhibit 5 to the Kegin-Mint-Dommit

1955
03:42:30,450 --> 03:42:35,730
If you could look at page 8,

1956
03:42:41,360 --> 03:42:44,800
section 5, was this your part of your testimony before the board?

1957
03:42:45,720 --> 03:42:46,140
Yes, it was.

1958
03:42:46,360 --> 03:42:51,960
And what is, what is 5 ask, what is the argument that you're addressing?

1959
03:42:53,040 --> 03:43:00,080
5 is appellance argument number 5 that, quote, the project does not comply with the 50-foot minimum open space requirements

1960
03:43:00,080 --> 03:43:08,280
of section 2.3.1, B2, the secondary, three conservation areas, area widths and section 9.1.4,

1961
03:43:08,400 --> 03:43:10,320
B are also not satisfied, I'm quote.

1962
03:43:10,780 --> 03:43:13,260
Okay, and then you say the reasons why that's incorrect.

1963
03:43:14,240 --> 03:43:14,600
Correct.

1964
03:43:14,980 --> 03:43:16,400
Can you read a little I?

1965
03:43:17,720 --> 03:43:18,600
A little I.

1966
03:43:19,780 --> 03:43:26,560
Little I is my statement that says open space does not have to be provided in a single area,

1967
03:43:26,560 --> 03:43:32,460
but instead may be broken into several different areas that collectively meet the minimum amount of required open space.

1968
03:43:33,200 --> 03:43:43,140
With respect to the minimum width requirement, each area of open space must contain at least one 50 by 50 foot area in less than exemption applies.

1969
03:43:43,920 --> 03:43:52,660
As long as this requirement is met, any contiguous open space in the same area does not have to also be 50 feet by 50 feet.

1970
03:43:52,660 --> 03:44:00,260
In other words, there does not have to be a series of exact 50 feet by 50 foot blocks to meet the UDO minimum with the requirement.

1971
03:44:00,780 --> 03:44:03,680
Is that the same argument you hear Mr. Justice making today?

1972
03:44:03,980 --> 03:44:04,480
Yes it is.

1973
03:44:04,700 --> 03:44:09,580
Okay, and the board ruled in the city and the developers favor?

1974
03:44:10,320 --> 03:44:11,180
They did, yes.

1975
03:44:11,340 --> 03:44:12,480
Okay, and that's in the order?

1976
03:44:13,160 --> 03:44:13,840
It is, yes.

1977
03:44:14,120 --> 03:44:14,300
Okay,

1978
03:44:27,520 --> 03:44:28,220
do you have anything?

1979
03:44:29,320 --> 03:44:33,000
Okay, I've got a little time left, I'm going to stop now and...

1980
03:44:35,240 --> 03:44:37,440
I'm not carrying that over for my other times.

1981
03:44:39,160 --> 03:44:40,740
Don't push your luck here.

1982
03:44:41,640 --> 03:44:42,660
All right, thanks.

1983
03:44:43,200 --> 03:44:43,760
Are you done?

1984
03:44:44,040 --> 03:44:44,740
Thank you very much.

1985
03:44:44,820 --> 03:44:44,880
Yes.

1986
03:44:45,000 --> 03:44:45,680
Mr. Justice.

1987
03:44:45,980 --> 03:44:49,080
Do you have Keegan's affidavit in front of you?

1988
03:44:49,480 --> 03:44:49,540
No.

1989
03:44:50,200 --> 03:44:52,380
Do you have the court order in front of you?

1990
03:44:53,000 --> 03:44:53,240
Oh.

1991
03:44:53,700 --> 03:44:54,060
Yeah.

1992
03:44:54,580 --> 03:44:55,360
The court order.

1993
03:44:55,800 --> 03:44:59,160
Do you see the part where the court reverses the board's decision?

1994
03:44:59,160 --> 03:44:59,980
See the...

1995
03:45:00,000 --> 03:45:14,560
So, in the judges' decision, it would be page 9, city board of adjustments decision to affirm

1996
03:45:14,560 --> 03:45:23,020
that December 2022 approval is hereby reversed. See that? I do. In terms of the board's decision,

1997
03:45:23,020 --> 03:45:23,840
The

1998
03:45:26,340 --> 03:45:36,560
board's decision, you were discussing two paragraphs in particular, paragraph 10 of

1999
03:45:36,560 --> 03:45:38,480
the board's decision, which was reversed.

2000
03:45:38,940 --> 03:45:41,920
You saw that from the court order, it was reversed, right?

2001
03:45:44,340 --> 03:45:45,280
Justin was reversed.

2002
03:45:46,080 --> 03:45:46,640
Paragraph 10.

2003
03:45:47,360 --> 03:45:53,720
Well, paragraph 10 of this board order that was reversed says the open space, but it's me

2004
03:45:53,720 --> 03:45:56,780
The minimum of 50 feet in width says that, right?

2005
03:45:57,780 --> 03:46:01,500
In paragraph 10, the findings of the board's decision.

2006
03:46:02,020 --> 03:46:02,540
Last Senate.

2007
03:46:03,840 --> 03:46:04,840
I don't see that.

2008
03:46:05,840 --> 03:46:06,040
Page.

2009
03:46:06,660 --> 03:46:07,480
Page two.

2010
03:46:08,100 --> 03:46:10,660
It starts with paragraph that has a 10.

2011
03:46:11,980 --> 03:46:15,540
Number 10 says UDO section 2.3.1 B is entitled Open Space.

2012
03:46:15,920 --> 03:46:16,760
Look at the last Senate.

2013
03:46:17,560 --> 03:46:20,380
The Open Space must be a minimum of 50 feet in width.

2014
03:46:20,380 --> 03:46:23,840
It doesn't say any exceptions there, right?

2015
03:46:24,580 --> 03:46:26,700
It does not note the exceptions there now.

2016
03:46:27,060 --> 03:46:31,940
And then in 11, at the very last sentence, where it says the open space is located

2017
03:46:31,940 --> 03:46:38,060
three areas designated on the approved plans, each of which is larger than 50 by 50 in size.

2018
03:46:38,380 --> 03:46:39,460
That's what it says, yes?

2019
03:46:39,900 --> 03:46:42,120
That says open lot, not open space.

2020
03:46:42,300 --> 03:46:49,260
It actually says the open space is located in three areas designated on the approved

2021
03:46:49,260 --> 03:46:55,480
plans each of which is larger than 50 by 50 in size is that what it says? That's

2022
03:46:55,480 --> 03:46:59,760
what number 11 says. Is there anything in this order including in paragraph 11

2023
03:46:59,760 --> 03:47:06,920
that says that you are lumping in any open space that is smaller than 50 by 50?

2024
03:47:07,260 --> 03:47:11,960
Yes or no? Okay. This is the board's order not the judges order correct? This is the board's order.

2025
03:47:12,040 --> 03:47:18,820
Okay. That's what is there anything in the board's order including paragraphs 10 or 11 that

2026
03:47:18,820 --> 03:47:24,880
It says that the one acre that is necessary to meet the compact development standards,

2027
03:47:25,160 --> 03:47:32,260
that the developer is lumping in open space that is smaller than 50 by 50.

2028
03:47:32,680 --> 03:47:33,580
Does it say that?

2029
03:47:42,320 --> 03:47:44,620
Not that I can see, quick scan.

2030
03:47:45,100 --> 03:47:54,240
It is a true statement, and we're not disagreeing that these three areas of open space on the

2031
03:47:54,240 --> 03:48:01,820
original plan are larger than 50 by 50. We're agreeing with that. The board's order doesn't say

2032
03:48:01,820 --> 03:48:05,280
anything about space being smaller. Does it?

2033
03:48:11,000 --> 03:48:13,200
Again, I don't see that explicitly listed.

2034
03:48:13,900 --> 03:48:24,080
So in terms of the excerpts that Robin handed to you that you looked at, you were asked to,

2035
03:48:24,080 --> 03:48:31,020
You testified at the board hearing, did you recall that I asked you questions at the

2036
03:48:31,020 --> 03:48:31,720
board hearing, right?

2037
03:48:32,060 --> 03:48:32,440
That's your due.

2038
03:48:32,920 --> 03:48:40,100
Yeah, so here is, this is record page 2513 and I'm just, I'm showing this to refresh

2039
03:48:40,100 --> 03:48:48,920
your memory about what I was talking about in relation to width and I was asking you questions

2040
03:48:48,920 --> 03:48:57,700
about the width of this area around the perimeter that's outside the TCA. Do you

2041
03:48:57,700 --> 03:49:00,540
see that testimony or the questioning I've highlighted?

2042
03:49:01,080 --> 03:49:02,400
Can I have a copy, please?

2043
03:49:03,780 --> 03:49:05,640
It is for his reference only.

2044
03:49:09,720 --> 03:49:14,340
I'm not submitting this. This is record page 2513.

2045
03:49:15,400 --> 03:49:17,520
So, I guess

2046
03:49:21,100 --> 03:49:26,920
Justin, I'm going to ask you to look at this, did I at any time were you

2047
03:49:26,920 --> 03:49:33,820
asked by my side anything about the space, this is during the hearing, was there any questions

2048
03:49:33,820 --> 03:49:41,700
raised about the width of the center piece of property or the width of the TCA's for that

2049
03:49:41,700 --> 03:49:41,980
matter?

2050
03:49:42,880 --> 03:49:46,140
I know there was a discussion on the width of the open space, on the width of the TCA.

2051
03:49:46,480 --> 03:49:49,340
I don't recall a specific question you asked.

2052
03:49:50,580 --> 03:49:57,640
Looking at the specific page of the testimony that I've highlighted, it is referring to

2053
03:49:57,640 --> 03:50:02,840
the space that is outside the TCA around the perimeter.

2054
03:50:03,380 --> 03:50:06,780
I'm asking whether that would qualify as an open space, am I not?

2055
03:50:07,100 --> 03:50:11,840
Yeah, it seems like you were again conflating open space and open lot, which you did pretty

2056
03:50:11,840 --> 03:50:16,140
frequently and so the line of questioning begins with open lot and then you moved into

2057
03:50:16,140 --> 03:50:21,180
open space at that time. I'm complaining at the end of the the court disagreed with

2058
03:50:21,180 --> 03:50:22,000
your opinion, right?

2059
03:50:24,430 --> 03:50:29,110
The only again that the efficiency of the court found was that

2060
03:50:29,110 --> 03:50:34,710
there needed to be a transitional protective error. So I know that in terms of what your

2061
03:50:34,710 --> 03:50:43,190
attorney has done is to come through the testimony. Do you have anything where I am questioning

2062
03:50:43,190 --> 03:50:49,290
you about whether or not the developer complied with the one-acre of Open Space.

2063
03:50:49,670 --> 03:50:55,670
Do you have any testimony that you can point to in the record where I'm contesting?

2064
03:50:55,910 --> 03:50:59,370
We are contesting that you didn't meet the one-acre.

2065
03:51:00,430 --> 03:51:05,510
Well, your appeal said that the Open Space was not satisfied.

2066
03:51:06,750 --> 03:51:08,010
I'm talking about during the hearing.

2067
03:51:08,170 --> 03:51:10,070
Did we ever contest that?

2068
03:51:10,710 --> 03:51:12,570
Your appeal was part of the hearing.

2069
03:51:12,570 --> 03:51:18,810
The appeal was contesting what you were calling the space around the perimeter.

2070
03:51:19,350 --> 03:51:25,230
That it wasn't 50 feet. It served no function. It was not open space. That was the

2071
03:51:25,230 --> 03:51:31,970
point of the reference to the 50 feet. My question to you, Justin, is did I ever

2072
03:51:31,970 --> 03:51:36,730
attack this plan based on the one acre?

2073
03:51:36,730 --> 03:51:40,180
I don't know.

2074
03:51:40,460 --> 03:51:43,520
You're, you're, you attack that there was not enough open space.

2075
03:51:43,900 --> 03:51:47,500
I can only deduce that you did not think that there was one acre of open space provided.

2076
03:51:48,420 --> 03:51:53,880
In terms of specific testimony, Justice, and I'm, I'm assuming that you've spent a lot

2077
03:51:53,880 --> 03:51:57,920
of time with your lawyer trying to comb through and look for testimony.

2078
03:51:58,340 --> 03:52:04,500
Do you have any testimony where I am asking you the question about this plan?

2079
03:52:04,520 --> 03:52:05,720
Does it meet the one acre?

2080
03:52:05,860 --> 03:52:06,260
Does it?

2081
03:52:06,260 --> 03:52:10,500
that that is the topic. Do you have that testimony here today?

2082
03:52:12,580 --> 03:52:17,080
I think your assumptions incorrect, but now I don't have anything specific other than what I've discussed.

2083
03:52:17,500 --> 03:52:22,820
It's not my assumption. It's just simply saying, do you have the portions of the record of the testimony?

2084
03:52:22,980 --> 03:52:37,260
I do not. Okay. So in terms of the contiguous space, and I think the prior plan says that there's 60% of open space there in the center.

2085
03:52:37,260 --> 03:52:44,960
right? That's what the prior plan said. Yes? Okay. Do you have any testimony? Again,

2086
03:52:45,080 --> 03:52:49,220
you would have combed through this and you would have had it if I had made it an issue.

2087
03:52:49,600 --> 03:52:56,160
Do you have any testimony that you can offer up where I am, we are contesting the 60%

2088
03:52:56,160 --> 03:52:56,760
continuity?

2089
03:53:06,830 --> 03:53:13,170
There's like thousands of pages of testimony. I guess Mr. Chairman, how would

2090
03:53:13,170 --> 03:53:16,530
imagine they have combed through all the testimony to try to support their

2091
03:53:16,530 --> 03:53:21,510
motion. I'm simply asking this witness, does he, can he point to any testimony?

2092
03:53:22,250 --> 03:53:25,690
Does he have anything to offer where we are contesting the

2093
03:53:25,690 --> 03:53:31,910
contiguity requirement? Can I just say on Friday when I raised this, you said there

2094
03:53:31,910 --> 03:53:37,070
was no discussion about like 50 by 50 block. It was never raised. There was no

2095
03:53:37,070 --> 03:53:42,490
testimony and I could comb through the record to find it. So I did that and I found

2096
03:53:42,490 --> 03:53:47,590
it and now you want, you didn't come through and you want him to memorize 2,000 pages.

2097
03:53:47,750 --> 03:53:51,670
He can try to answer if he wants to, but I just want to say you told this board because

2098
03:53:51,670 --> 03:53:56,790
I watched that video three times that what he just said we talked about, you never talked

2099
03:53:56,790 --> 03:53:57,030
about.

2100
03:53:57,130 --> 03:54:01,710
Oh no, I'm going to, we're going to talk about that block reference which is in relation

2101
03:54:01,710 --> 03:54:04,130
to the strip of land around the perimeter.

2102
03:54:04,270 --> 03:54:09,390
We're going to cover that in a second, but is the answer no that you don't have any testimony

2103
03:54:09,390 --> 03:54:15,270
you can point to where we were contesting whether the developer met the 60 percent requirement.

2104
03:54:15,690 --> 03:54:18,250
I don't have the entirety of the written testimony.

2105
03:54:18,410 --> 03:54:23,710
In front of me, again, I have your appeal, which your very first appeal ground for appeal was that

2106
03:54:24,590 --> 03:54:29,310
the project fails to qualify because the required open space does not have the required width or

2107
03:54:29,310 --> 03:54:36,710
continuity. So in terms of the only reference, I guess that you have these excerpts in front of you

2108
03:54:36,710 --> 03:54:38,890
that she handed up, right?

2109
03:54:39,130 --> 03:54:41,610
You have that with the color, says Craig Justice,

2110
03:54:42,430 --> 03:54:46,030
in green, Robin Tatum is in blue,

2111
03:54:47,170 --> 03:54:49,810
Daniel Stigall is in yellow, you have that?

2112
03:54:50,070 --> 03:54:50,290
I do.

2113
03:54:50,750 --> 03:54:52,150
Do you have that members of the board?

2114
03:54:52,290 --> 03:54:54,110
This is the experts they have.

2115
03:54:54,530 --> 03:54:59,070
So there is one reference in a question with Daniel Stigall,

2116
03:54:59,410 --> 03:55:02,590
where the words 50 by 50 block comes up.

2117
03:55:03,150 --> 03:55:04,770
Do you see what my question was?

2118
03:55:04,770 --> 03:55:10,250
us. My question, let me just speed it up. So in terms of figuring out what this open space,

2119
03:55:10,710 --> 03:55:17,570
this open area space is around the perimeter. This wouldn't even qualify as open space

2120
03:55:17,570 --> 03:55:22,210
for compact development because it's supposed to be a minimum of 50 feet and width, right?

2121
03:55:23,130 --> 03:55:29,610
And his answer is, so this area of the plan adjacent to the property outside of the road,

2122
03:55:29,610 --> 03:55:33,030
You could qualify some of this area as open space.

2123
03:55:33,350 --> 03:55:39,570
If you have at least a 50 by 50 block of open space that will qualify the remaining area

2124
03:55:39,570 --> 03:55:44,230
outside of the road, the remaining area outside the road would qualify as open space.

2125
03:55:44,470 --> 03:55:45,190
That's what he said.

2126
03:55:45,490 --> 03:55:45,630
Yes?

2127
03:55:46,130 --> 03:55:46,750
That's what he said.

2128
03:55:47,130 --> 03:55:53,510
And the reality is the city didn't at the end of the day even call this space open space

2129
03:55:53,510 --> 03:56:00,650
as we later found out, because it's not reflected on the original plan as open space.

2130
03:56:01,090 --> 03:56:01,510
That's right.

2131
03:56:01,930 --> 03:56:02,090
Yeah.

2132
03:56:02,530 --> 03:56:08,570
So, if you go on and look at his testimony, he continues on talking about that strip of

2133
03:56:08,570 --> 03:56:17,350
land, and ultimately he opines, similar to you, that this land could have been open space

2134
03:56:17,860 --> 03:56:22,310
here because its dimension of length is greater than 50 feet.

2135
03:56:22,310 --> 03:56:23,750
Do you remember that?

2136
03:56:24,570 --> 03:56:24,770
I do.

2137
03:56:25,750 --> 03:56:33,070
At the end of the day, neither the Board of Adjustment in its order did not say that

2138
03:56:33,070 --> 03:56:39,270
the strip of land in question, which was not included as open space, was somehow

2139
03:56:39,270 --> 03:56:41,050
open space, right?

2140
03:56:41,830 --> 03:56:44,050
The Board didn't know there would be any reason for them to.

2141
03:56:44,250 --> 03:56:47,990
It wouldn't have been because at the end of the day, you weren't contending that was

2142
03:56:47,990 --> 03:56:48,570
open space.

2143
03:56:48,910 --> 03:56:49,090
That's right.

2144
03:56:49,090 --> 03:56:58,710
And at the end of the day, the court to your knowledge, did you look through it, did the court make any reference to that space actually qualifying as open space?

2145
03:56:59,690 --> 03:57:01,230
I don't know why they would, again.

2146
03:57:01,670 --> 03:57:13,450
Do you recall the court order even mentioning this methodology that you talk about that really we weren't contesting the one acre or the 60 percent.

2147
03:57:13,650 --> 03:57:16,150
Do you recall even the discussion in the court order about that?

2148
03:57:16,150 --> 03:57:22,490
I recall the court order saying that the plan required, complied with all requirements for a compact development.

2149
03:57:23,010 --> 03:57:24,550
But for the transitional project of the argument.

2150
03:57:25,210 --> 03:57:31,550
Justin, did you read the petition to the court that asked the court to look at the various issues,

2151
03:57:31,770 --> 03:57:34,810
what's called a petition for rid of cert, did you read that?

2152
03:57:35,230 --> 03:57:35,750
I don't know.

2153
03:57:36,990 --> 03:57:42,430
If you read, if you didn't read it, I won't go into it with you because it is a public record.

2154
03:57:42,950 --> 03:57:48,750
but this is our petition to the court of the issues that were being contested.

2155
03:57:48,870 --> 03:57:49,970
Had you looked at that before?

2156
03:57:52,420 --> 03:57:53,720
I may have, I can't say for sure.

2157
03:57:55,020 --> 03:58:00,700
Well, if you want to take the time and look, is there any issue where we're raising,

2158
03:58:01,040 --> 03:58:07,160
where we're arguing about meeting the one acre, or meeting the contiguity requirements?

2159
03:58:07,860 --> 03:58:08,320
To your own.

2160
03:58:10,020 --> 03:58:10,460
Again.

2161
03:58:10,740 --> 03:58:12,260
I've got that on there if you need a reference.

2162
03:58:16,680 --> 03:58:18,900
If you don't know, you don't know.

2163
03:58:19,040 --> 03:58:19,500
I don't know.

2164
03:58:19,760 --> 03:58:20,900
Okay, I'll take it back.

2165
03:58:36,140 --> 03:58:37,480
Is the justice here at 10 minutes?

2166
03:58:39,500 --> 03:58:40,780
Meaning I have 10 minutes left?

2167
03:58:41,080 --> 03:58:41,480
No, no, no.

2168
03:58:41,660 --> 03:58:42,640
You've gone 10 minutes.

2169
03:58:42,740 --> 03:58:43,340
You have 20 left.

2170
03:58:43,780 --> 03:58:43,880
Oh.

2171
03:58:44,200 --> 03:58:44,480
Okay.

2172
03:58:44,720 --> 03:58:45,820
Thank you.

2173
03:58:46,080 --> 03:58:51,360
Do you recall Jeffrey Brown testified for our side?

2174
03:58:51,920 --> 03:58:59,120
As a civil engineer looking at applying your standards to the planning question.

2175
03:58:59,460 --> 03:58:59,880
Remember that?

2176
03:58:59,880 --> 03:59:01,280
And the gentleman from Asheville, I believe.

2177
03:59:01,660 --> 03:59:02,300
Yes, yes.

2178
03:59:02,600 --> 03:59:06,520
And you would have looked at his affidavit in his report, right?

2179
03:59:07,100 --> 03:59:07,180
Yes.

2180
03:59:08,100 --> 03:59:11,980
So in the record, starting on page 598,

2181
03:59:12,280 --> 03:59:14,140
is his engineering report,

2182
03:59:20,370 --> 03:59:22,710
starting on page 598?

2183
03:59:25,410 --> 03:59:27,330
Number, what is that proposed number of this?

2184
03:59:28,110 --> 03:59:29,890
It's in the record on page 598.

2185
03:59:30,150 --> 03:59:31,450
Ralph, what number are we?

2186
03:59:32,890 --> 03:59:33,690
I don't know, sorry.

2187
03:59:34,830 --> 03:59:35,730
Let me think.

2188
03:59:42,390 --> 03:59:46,190
I think I was at 15.

2189
03:59:46,650 --> 03:59:47,930
I think this is 16.

2190
03:59:48,190 --> 03:59:48,650
16.

2191
03:59:49,230 --> 03:59:49,730
All right.

2192
03:59:49,810 --> 03:59:53,410
I'll mark it as a pellet exhibit 16.

2193
03:59:58,420 --> 03:59:59,620
But while they're doing that,

2194
03:59:59,620 --> 03:59:59,980
Just...

2195
04:00:00,000 --> 04:00:08,220
And I'm going to ask is in his report, so this is our main person who is drawing out looking

2196
04:00:08,220 --> 04:00:14,080
at the planning question and applying the standards, looking through this, does our main witness

2197
04:00:14,680 --> 04:00:18,380
draw on the question, the one acre or the 60% contiguity?

2198
04:00:20,420 --> 04:00:22,000
15. Do

2199
04:00:27,950 --> 04:00:29,750
you want me to review the entire document?

2200
04:00:29,750 --> 04:00:33,250
Well, you've seen this document before, so several years ago.

2201
04:00:33,730 --> 04:00:43,060
Did any, did our main witness even dispute because just in, and Mr. Chairman,

2202
04:00:43,220 --> 04:00:46,940
obviously, what we're saying is y'all are, you're bringing up issues that we're not

2203
04:00:46,940 --> 04:00:53,860
litigated before, and so in terms of our main witness, do you looking at his report

2204
04:00:53,860 --> 04:00:59,920
to see draw into question and contest the one acre or the 60% contiguity?

2205
04:01:01,280 --> 04:01:05,400
Chairman, I'll go ahead and send or exhibit 15 on.

2206
04:01:06,600 --> 04:01:11,660
And I'm, again, trying to understand here, you're, you're spending a lot of time

2207
04:01:11,660 --> 04:01:15,080
based on the argument that you didn't contest something the last time.

2208
04:01:15,460 --> 04:01:19,040
So I guess there's, this is going to go in a particular direction.

2209
04:01:19,560 --> 04:01:20,020
You're trying to be-

2210
04:01:20,020 --> 04:01:26,920
He's saying I did, and I'm saying I didn't, because Mr. Chairman, the-

2211
04:01:26,920 --> 04:01:49,240
So, let me cut to the chase, Mr. Chairman, I believe that when Robin began with this witness she indicated that this witness went to the factual allegations in her motion to dismiss that the Open Space Decision requirement was decided in the first hearing, and I think Mr. Justice is arguing it is not, and that's where that's what the two of them are doing. Am I correct?

2212
04:01:49,800 --> 04:01:56,700
Not really. I'm saying that the board, we weren't contesting the one acre in the 60%

2213
04:01:56,700 --> 04:02:02,020
contiguity. At the end of the day, the board went ahead and made a finding of that

2214
04:02:02,020 --> 04:02:07,540
the one acre was satisfied in the 60% contiguity. We did not contest and we weren't

2215
04:02:07,540 --> 04:02:13,120
disputing whether or not there were areas less than 50 feet because, quite frankly,

2216
04:02:13,300 --> 04:02:19,220
looking at this plan, it doesn't appear to the eye that there are areas that are

2217
04:02:19,220 --> 04:02:26,500
less than 50 feet. And we weren't contesting that the one acre wasn't met. And so it was

2218
04:02:26,500 --> 04:02:36,540
not an issue. This plan is so different than this plan when a huge chunk of the property

2219
04:02:36,540 --> 04:02:44,320
has so-called open space of less than 50 feet. It's an apple and a watermelon because we

2220
04:02:44,320 --> 04:02:51,480
We weren't, it's an odd argument to say at this point that what was litigated was a

2221
04:02:51,480 --> 04:02:54,080
new issue that we did not litigate.

2222
04:02:54,780 --> 04:02:59,480
We were only talking about what is going on on the perimeter.

2223
04:03:00,260 --> 04:03:01,760
That's all we were talking about.

2224
04:03:01,940 --> 04:03:05,680
We spent four days talking about the perimeter, not the center.

2225
04:03:07,440 --> 04:03:09,940
And now they want to say, oh, yes, you did talk about the center.

2226
04:03:11,520 --> 04:03:16,300
So neither did the Court of Law do with that nor did the Board look at that.

2227
04:03:17,300 --> 04:03:25,460
So just in terms of, you've had time to look at Jeffrey Brown's affidavit or report, does

2228
04:03:25,460 --> 04:03:34,140
he draw into question whether or not you could take open space less than 50% and count it

2229
04:03:34,140 --> 04:03:39,380
As long as you connected it somewhere to space, that was 50 by 50.

2230
04:03:39,880 --> 04:03:44,660
Pears, he does make arguments that the open space requirements were not satisfied.

2231
04:03:45,600 --> 04:03:50,840
Points to section 2.5.6, but I don't see a specific reference to a 50-foot width.

2232
04:03:51,580 --> 04:03:54,760
His claim was that there are areas.

2233
04:03:58,120 --> 04:04:02,220
I'm not sure exactly what his claim was, but it doesn't make sense to me.

2234
04:04:02,220 --> 04:04:15,520
But it makes note, it makes note that the calculation includes the area of the open space, the road and the perimeter remaining areas between the road and outside the boundaries of the site, however streets and parking are prohibited uses of open space.

2235
04:04:16,300 --> 04:04:27,270
So Mike, looking at this, does he draw any question about the the center being somehow not compliant 15 minutes?

2236
04:04:27,270 --> 04:04:27,950
I don't see any.

2237
04:04:28,430 --> 04:04:29,170
14 minutes left.

2238
04:04:29,650 --> 04:04:30,010
Thank you.

2239
04:04:30,090 --> 04:04:30,310
Mr. Justice.

2240
04:04:30,670 --> 04:04:31,350
Thank you.

2241
04:04:31,790 --> 04:04:31,870
0

2242
04:04:47,740 --> 04:04:48,560
.4 minutes left.

2243
04:04:48,740 --> 04:04:49,120
Oh, okay.

2244
04:04:49,240 --> 04:04:50,580
It's not 14 minutes left.

2245
04:04:50,940 --> 04:04:52,000
I had a necessary occasion.

2246
04:04:52,220 --> 04:04:52,300
Sorry.

2247
04:05:12,140 --> 04:05:23,200
The board's decision on this, I think the high-archie or the your article 12.1 in terms of talking

2248
04:05:23,200 --> 04:05:31,560
about how to use decisions of this board to have presidential value.

2249
04:05:31,560 --> 04:05:36,880
There is, there is, that is a reality in Article 12.1, right?

2250
04:05:37,040 --> 04:05:43,360
That if the board makes a decision about, in this instance, the way you calculate

2251
04:05:43,360 --> 04:05:49,620
open space, that that would be binding on the city, and that's the way it's going

2252
04:05:49,620 --> 04:05:54,320
to be done for any number of projects that follow unless the text changes, right?

2253
04:05:54,320 --> 04:05:59,680
No, it's 12.1 as in regards to defined terms, specifically.

2254
04:06:00,760 --> 04:06:12,160
So it says that if there is a term like width is not defined, that you apply

2255
04:06:12,160 --> 04:06:14,460
Board of Adjustment precedent, right?

2256
04:06:15,440 --> 04:06:16,240
It does say that, yes.

2257
04:06:16,960 --> 04:06:24,260
And width, for purposes of discerning open space, width is not defined.

2258
04:06:24,260 --> 04:06:34,780
Is it? It is not. And so if this board was to decide, yes, we decided and we did decide,

2259
04:06:34,960 --> 04:06:42,760
or we've now decided, that open space width can be judged by this 50 by 50 block methodology,

2260
04:06:43,280 --> 04:06:49,840
that would be binding moving forward on all projects that you look at, right, unless the ordinance changes.

2261
04:06:50,580 --> 04:06:51,180
Yes?

2262
04:06:51,180 --> 04:06:55,260
objection. That's a legal conclusion and we're only talking about this case.

2263
04:06:55,780 --> 04:07:04,320
It is, this case has great ramifications for the entire city in terms of what open space is required

2264
04:07:04,320 --> 04:07:11,540
of somebody and what neighbors can expect about open space. And, and in this case,

2265
04:07:11,540 --> 04:07:37,960
It's just that it is a true situation that as long as there's connectivity to a 50 by 50 block what you call is open space could be one foot wide, inches wide, it could be an unlimited width lesser than 50 feet so long as it's connected to a 50 by 50 block, right?

2266
04:07:37,960 --> 04:07:46,060
I think it's been pretty clear from Keegan's testimony that that's been a city's interpretation for about 12 years now, and I think the board has agreed with that in the previous approval.

2267
04:07:46,540 --> 04:07:58,500
You talk about that, that's been the city's interpretation for 12 years, and I think Mr. Birch presented a stack of other examples of retaining walls.

2268
04:07:58,500 --> 04:08:30,360
I think Keegan's report mentions a bunch of examples about the walls in the Keegan report about this open space in a way you can

2269
04:08:30,360 --> 04:08:40,700
This note here in the bottom left side about portions of open space less than 50 shall overlap with the TCA.

2270
04:08:41,680 --> 04:08:42,240
You see that?

2271
04:08:42,500 --> 04:08:42,800
I do.

2272
04:08:43,240 --> 04:08:57,180
That would certainly suggest that if you're going to have space less than 50, then it has to overlap with one of the three exceptions noted in subsection A of that open space check.

2273
04:08:58,500 --> 04:09:06,500
I think that note is just referring to that sections, which says that areas such as

2274
04:09:06,500 --> 04:09:10,840
three conservation areas in one of your parks can be less than 50 feet wide and count as

2275
04:09:10,840 --> 04:09:11,300
open space.

2276
04:09:15,560 --> 04:09:17,520
Those are all questions I have, Mr. Jim.

2277
04:09:18,900 --> 04:09:19,860
Thank you, Mr. Justice.

2278
04:09:20,340 --> 04:09:23,620
Do you want to have another bite of the apple here?

2279
04:09:24,260 --> 04:09:26,280
I just have a quick point of clarification.

2280
04:09:26,280 --> 04:09:34,100
The testimony that was into the record August 9, 2023, Judge Collins had an opportunity

2281
04:09:34,100 --> 04:09:35,180
to review that as well.

2282
04:09:36,240 --> 04:09:37,160
Is that correct?

2283
04:09:38,300 --> 04:09:39,640
It wasn't an issue.

2284
04:09:40,280 --> 04:09:45,340
So, and this will be an important point, when a judge looks at something in a zoning appeal,

2285
04:09:45,720 --> 04:09:50,540
it is the petition that drives the issues, meaning we appeal and we say,

2286
04:09:50,760 --> 04:09:52,180
here are the contested issues.

2287
04:09:52,180 --> 04:09:57,080
And so, when the judge rules, that is the universe of the issues the judge is looking.

2288
04:09:57,460 --> 04:10:00,360
There were two main issues before the Court.

2289
04:10:00,820 --> 04:10:06,000
It was the transitional protective yard and the primary street infill record.

2290
04:10:06,860 --> 04:10:12,760
So, the Court ruled against us on the primary street infill recordment, ruled for us on the

2291
04:10:12,760 --> 04:10:13,940
transition protective yard.

2292
04:10:14,360 --> 04:10:20,820
So, this block methodology, which was buried in an affidavit, was not even discussed

2293
04:10:20,820 --> 04:10:25,780
during the hearing process as an issue because we were never contending that they

2294
04:10:25,780 --> 04:10:30,460
didn't meet the one acre or the 60 percent. They had enough room in the middle.

2295
04:10:31,060 --> 04:10:34,820
All I asked was that the judge would have had an opportunity to review this correct?

2296
04:10:35,340 --> 04:10:41,120
No, because his jurisdiction was limited to the issues that were presented in the petition.

2297
04:10:41,440 --> 04:10:46,900
Mr. Justice, so that I can clarify whether you and Ms. Title simply disagree or you're

2298
04:10:46,900 --> 04:10:52,940
answering a different question, is this excerpt information that was included in the record

2299
04:10:52,940 --> 04:10:54,860
on appeal before Judge Collins?

2300
04:10:55,760 --> 04:11:00,360
It was part of the record of appeal, like 1,000 other pages that were part of the record

2301
04:11:00,360 --> 04:11:02,900
that had a lot of which had nothing to do with issues.

2302
04:11:02,900 --> 04:11:03,340
Justice, thank you.

2303
04:11:03,540 --> 04:11:07,900
We just need to know the answer to the question that was being asked was is it part of the record

2304
04:11:07,900 --> 04:11:08,760
and the answer is yes.

2305
04:11:09,100 --> 04:11:11,020
No, that was not the question Lee Ann.

2306
04:11:11,020 --> 04:11:13,960
And the question was, would the court consider that

2307
04:11:13,960 --> 04:11:16,340
in the petition defines the issues?

2308
04:11:16,820 --> 04:11:18,480
That is the jurisdiction of the court.

2309
04:11:18,860 --> 04:11:22,280
I'm not here to argue the law with you.

2310
04:11:22,540 --> 04:11:24,740
I'm just trying to be sure that the board's question

2311
04:11:24,740 --> 04:11:28,140
was answered and I think the board question is,

2312
04:11:28,480 --> 04:11:29,840
was this before Judge Collins?

2313
04:11:30,420 --> 04:11:33,220
I don't know that any of you know what he didn't look at,

2314
04:11:33,460 --> 04:11:35,760
but be that as it may, that was the question.

2315
04:11:37,860 --> 04:11:40,480
As opposed to being a document that was not in the record

2316
04:11:40,480 --> 04:11:42,300
It was definitely part of the record.

2317
04:11:42,800 --> 04:11:44,300
Thousands of pages in the record.

2318
04:11:45,400 --> 04:11:52,880
Okay. And, Mr. Ramatta, I do have this open space chart where you said you have seen the petition at some point.

2319
04:11:53,400 --> 04:11:53,900
Yes.

2320
04:11:54,220 --> 04:11:56,900
And it is a part of the record before this court.

2321
04:11:57,720 --> 04:12:04,500
Can you see there the Superior Court appeal from the appellance number 44 and read that for me?

2322
04:12:06,360 --> 04:12:13,400
It says there are no areas that qualify as open space in Article 2.5 either in terms of

2323
04:12:13,400 --> 04:12:15,240
function or use or dimensions.

2324
04:12:16,280 --> 04:12:17,900
Open space does not qualify.

2325
04:12:18,820 --> 04:12:20,720
So I'll just leave that at that.

2326
04:12:20,860 --> 04:12:25,780
Can you please pull back up the map from the second, and

2327
04:12:36,910 --> 04:12:39,070
is that the second approval that

2328
04:12:39,070 --> 04:12:39,650
you have up?

2329
04:12:40,670 --> 04:12:41,270
Yes it is.

2330
04:12:41,270 --> 04:12:46,970
Okay, and I'm going to hand you again the decision of the Board of Adjustment before.

2331
04:12:47,770 --> 04:12:53,870
Can you read one of the findings here in number 11 at the end?

2332
04:12:54,370 --> 04:12:56,770
The whole thing, just the last sentence.

2333
04:12:57,250 --> 04:13:04,870
The last sentence of number 11 reads that the open space is located in three areas designated on the approved plans,

2334
04:13:05,050 --> 04:13:08,630
each of which is larger than 50 by 50 feet in size.

2335
04:13:08,630 --> 04:13:08,670
Yes.

2336
04:13:09,430 --> 04:13:09,770
Okay.

2337
04:13:10,350 --> 04:13:11,510
Oh, I've got the wrong plan.

2338
04:13:11,650 --> 04:13:12,270
I can pull it.

2339
04:13:12,370 --> 04:13:12,530
Yeah.

2340
04:13:13,050 --> 04:13:13,150
Yeah.

2341
04:13:13,930 --> 04:13:26,010
So could that conclusion have been reached, had the board extended the 50th by 50th requirement outside of that block?

2342
04:13:29,040 --> 04:13:29,360
No.

2343
04:13:30,460 --> 04:13:36,260
If Mr. Justice's contention were to be followed, then this plan would not be compliant either.

2344
04:13:36,560 --> 04:13:37,380
That's all I have.

2345
04:13:38,320 --> 04:13:41,960
Mr. Chairman, I'm thinking to ask you to interpret the board's decision.

2346
04:13:42,760 --> 04:13:46,160
Justin, can you read actually the first sentence of paragraph 44?

2347
04:13:46,320 --> 04:13:49,300
I don't think there's a chance for-

2348
04:13:49,300 --> 04:13:50,840
He read the second sentence.

2349
04:13:51,080 --> 04:13:52,500
I'll find the first sentence for you.

2350
04:13:53,900 --> 04:13:54,620
Ms. Brown?

2351
04:13:55,320 --> 04:14:06,360
I would just go say, typically the recross is only allowed to the extent that an issue has been raised that is different

2352
04:14:06,980 --> 04:14:09,860
and then was in the original testimony.

2353
04:14:10,060 --> 04:14:12,000
So you need to decide if it was different or not different.

2354
04:14:12,140 --> 04:14:13,880
That's not my decision, but that's the rule.

2355
04:14:16,760 --> 04:14:19,200
I think this is an issue we've kind of gone all over

2356
04:14:19,200 --> 04:14:29,400
to at this point, so okay, so now Ms. Taylor, you said you had no other witnesses?

2357
04:14:30,680 --> 04:14:31,360
No, but I think so.

2358
04:14:31,360 --> 04:14:34,720
Mr. Birch, you're calling

2359
04:14:42,460 --> 04:14:44,840
Jason Meadows.

2360
04:14:44,840 --> 04:14:48,100
issues. Be sure that microphone is on.

2361
04:14:49,380 --> 04:14:55,360
And did we agree to the exact, the same, a lot of time frame? What is our understanding

2362
04:14:55,360 --> 04:14:57,840
of the a lot of time frame? I thought it was five minutes.

2363
04:14:58,300 --> 04:14:58,400
Okay.

2364
04:14:58,400 --> 04:14:59,960
Again, she didn't use-

2365
04:15:00,000 --> 04:15:22,680
15 minutes. I understand, but that was the a lot. That was what we agreed to just because you didn't use it and he did that's. So, right here, can you tell whether this mic is on? Okay, I think I'm hearing you now. Yeah. Great. So you said five minutes. Sorry. I interrupt you. Maybe a few. Let's go town. Yeah, that'd be great. All right. Thank you.

2366
04:15:24,760 --> 04:15:31,920
Basically, we could. Okay, one moment, please. Name and address for the record. Jason Meadows, business address.

2367
04:15:31,920 --> 04:15:34,620
This is 910, Tri-On Hill Drive, Suite 100,

2368
04:15:34,840 --> 04:15:35,460
Raleigh, North Carolina.

2369
04:15:35,780 --> 04:15:37,740
And Mr. Meadows, do you swear from the testimony

2370
04:15:37,740 --> 04:15:38,780
that you will provide with the truth,

2371
04:15:38,780 --> 04:15:39,980
or with the truth and nothing but the truth?

2372
04:15:40,300 --> 04:15:40,780
Yes, sir, I do.

2373
04:15:41,040 --> 04:15:42,240
Okay, great, Mr. Worker.

2374
04:15:43,000 --> 04:15:46,000
Jason, if you could, provide a little background for us

2375
04:15:46,000 --> 04:15:48,940
on your education and any licenses you may have.

2376
04:15:49,340 --> 04:15:49,480
Sure.

2377
04:15:50,140 --> 04:15:52,380
Receive the bachelor's in science and civil engineering

2378
04:15:52,380 --> 04:15:53,720
from NC State University.

2379
04:15:54,740 --> 04:15:57,100
I'm a professional engineer as of 2010

2380
04:15:57,100 --> 04:15:58,220
in the state of North Carolina.

2381
04:15:58,220 --> 04:16:03,460
want to own and operate R.D.U. Consulting, PLLC, which is a local firm here in Raleigh.

2382
04:16:03,800 --> 04:16:07,000
We generally do about 95% of our business in Raleigh's jurisdiction.

2383
04:16:07,880 --> 04:16:16,580
I was the overall engineer in charge of this Williamson Plan, I've also done other compact

2384
04:16:16,580 --> 04:16:18,600
subdivision work within Raleigh.

2385
04:16:21,100 --> 04:16:21,580
Thank you, Jason.

2386
04:16:22,040 --> 04:16:28,120
Just to clarify, how long you've been submitting plans to the City of Raleigh under the UDO?

2387
04:16:28,120 --> 04:16:34,440
Yeah, generally, UDO, I believe was adopted in 2013 and we've been operating under it in Raleigh, since then.

2388
04:16:35,000 --> 04:16:42,400
Do you have a sense of how many plans, total or annually, that you submitted to the city under the UDO?

2389
04:16:43,120 --> 04:16:55,500
It's generally, it's probably dozens over my career, we probably submit maybe even a dozen a year, small and large, but relatively large volume for a relatively small company.

2390
04:16:55,500 --> 04:16:59,480
And you have a sense about how many of those are compact subdivisions.

2391
04:17:00,160 --> 04:17:04,700
I believe I have one other compact subdivision that's under construction now in Raleigh.

2392
04:17:05,460 --> 04:17:11,280
And if you submitted any other, you mentioned that one 908 Williams and any other under like

2393
04:17:11,280 --> 04:17:13,680
missing middle ordinances.

2394
04:17:14,040 --> 04:17:20,340
Yeah, generally since the adoption of missing middle one that altered the ordinance generally

2395
04:17:20,340 --> 04:17:25,260
really what is available to us to use for residential building types and product.

2396
04:17:25,880 --> 04:17:32,660
So every project since adoption of missing middle likely used some advantage of the missing

2397
04:17:32,660 --> 04:17:33,820
middle ordinance.

2398
04:17:34,320 --> 04:17:37,260
So how would you characterize your familiarity with the Royal UDO?

2399
04:17:38,940 --> 04:17:43,680
I think that I'm pretty well versed in the ordinance given how it's written and been interpreted

2400
04:17:43,680 --> 04:17:47,480
and based on my experience through development plans of middle such as this.

2401
04:17:47,480 --> 04:17:57,620
I hold myself proud of the experience that we have given the volume of work that we've been able to do here in Raleigh.

2402
04:17:58,620 --> 04:18:01,900
Mr. Chair, I'm going to tender him as an expert in civil engineering.

2403
04:18:04,250 --> 04:18:06,590
As an expert in civil engineering, I have no objection.

2404
04:18:07,010 --> 04:18:08,290
Okay, go ahead, thank you.

2405
04:18:09,070 --> 04:18:15,430
So, Jason, if you reviewed the appellant's bases for appeal, the appeal document that they filed with the city.

2406
04:18:16,030 --> 04:18:16,510
Yes, I have.

2407
04:18:16,510 --> 04:18:21,730
Yes. And do you believe any of those bases for appeal are correct?

2408
04:18:22,470 --> 04:18:23,410
No, sir. I do not.

2409
04:18:24,050 --> 04:18:31,230
And have you reviewed Jose Martinez's report where he lists the alleged UDO compliance issues?

2410
04:18:31,790 --> 04:18:32,670
Yes, sir. I have reviewed.

2411
04:18:32,950 --> 04:18:36,510
And you were present yesterday for his testimony on that?

2412
04:18:36,910 --> 04:18:38,550
I was here for his testimony, yes, sir.

2413
04:18:38,650 --> 04:18:40,550
That was not yesterday, just for the record.

2414
04:18:40,550 --> 04:18:41,250
Friday.

2415
04:18:41,470 --> 04:18:51,450
Do you believe any of the alleged UDO compliance issues that were identified by Mr. Martinez

2416
04:18:51,450 --> 04:18:55,110
or described in his testimony or do you believe any of those are correct?

2417
04:18:55,990 --> 04:18:57,030
No, Sarah, I do not.

2418
04:18:58,710 --> 04:19:05,090
In preparing the plan that's now been appealed, did you employ the same methodology employed

2419
04:19:05,090 --> 04:19:09,730
with planned one for the purposes of designing the open space areas?

2420
04:19:10,730 --> 04:19:15,770
Yes, generally the calculations remain the same and of course based off the testimony

2421
04:19:15,770 --> 04:19:22,370
from the first appeal, we utilize the same 50 by 50 areas in our open space calculation

2422
04:19:22,370 --> 04:19:27,030
as well as the 60% contiguity requirements on site.

2423
04:19:27,450 --> 04:19:34,550
So in the current plan, one being appeal does each open space area have an area that measures

2424
04:19:34,550 --> 04:19:36,690
at least 50 feet by 50 feet.

2425
04:19:37,210 --> 04:19:37,690
Yes, sir.

2426
04:19:37,810 --> 04:19:37,950
It does.

2427
04:19:39,930 --> 04:19:46,410
And you've listened to all of the testimony of Keegan, McDonald, and Justin Rameda,

2428
04:19:46,510 --> 04:19:52,110
both on Friday and today regarding how the plan complies with the UDO.

2429
04:19:52,930 --> 04:19:53,410
Yes, sir.

2430
04:19:54,070 --> 04:19:59,390
And do you agree with their testimony and with Keegan's affidavit on how the plan

2431
04:19:59,390 --> 04:20:00,490
complies with the UDO?

2432
04:20:00,490 --> 04:20:06,450
objection, just to continue objection to this, you're serving your responsibility.

2433
04:20:07,790 --> 04:20:09,130
Yes, sir, I believe that to be accurate.

2434
04:20:14,200 --> 04:20:15,500
Great, one second, Jason,

2435
04:20:52,800 --> 04:20:57,260
Jason, are you able to identify what that is that I'm showing you?

2436
04:20:58,400 --> 04:21:07,300
Yes, generally that's the approved subdivision plan, she C2.0, I believe this is the exhibit.

2437
04:21:07,300 --> 04:21:20,220
But Mr. Bursary asked me to go ahead and place 50 by 50 squares on the open space areas to demonstrate compliance with that 50 foot by 50 foot area.

2438
04:21:20,980 --> 04:21:26,280
And so, can you identify where you've located those 50 by 50 areas?

2439
04:21:26,980 --> 04:21:27,360
Yes, sir.

2440
04:21:27,760 --> 04:21:27,820
Yeah,

2441
04:21:30,790 --> 04:21:38,790
so as mentioned throughout today, there are three boxes on this plan, similar to what Keegan would have hand drawn.

2442
04:21:38,790 --> 04:21:47,850
on in each zone that show the 50-by-50 dimensions within the open space area.

2443
04:21:51,090 --> 04:21:53,230
Mr. Chair, we would like to introduce this.

2444
04:21:53,890 --> 04:21:57,950
Well, as an exhibit, Ralph, this is number three.

2445
04:21:58,150 --> 04:21:58,570
Is that correct?

2446
04:21:59,290 --> 04:21:59,950
Thank you.

2447
04:22:00,730 --> 04:22:05,410
Jason, just to clarify, how many kind of distinct open space areas are there?

2448
04:22:05,910 --> 04:22:08,670
There are two distinct open space areas on this plan.

2449
04:22:08,670 --> 04:22:13,830
And each and open space area does contain an area measuring at least 50 by 50.

2450
04:22:14,330 --> 04:22:14,650
That's correct.

2451
04:22:18,860 --> 04:22:19,860
That's all we have.

2452
04:22:20,360 --> 04:22:21,080
Thank you.

2453
04:22:21,500 --> 04:22:22,500
Justice, any questions?

2454
04:22:23,000 --> 04:22:23,120
Yes.

2455
04:22:23,580 --> 04:22:31,540
Jason, the final plan there were drafts before that final plan that was submitted to the city, right?

2456
04:22:32,960 --> 04:22:33,260
Yes, sir.

2457
04:22:33,340 --> 04:22:39,200
This is the approved plan plus those additional boxes shown for clarity.

2458
04:22:39,200 --> 04:22:52,260
Right. But before, you would have had conversations with the city and presented drafts or proposals about how you were going to revise the plans, right, before the final plan was submitted.

2459
04:22:52,560 --> 04:23:02,760
Generally, yeah, generally on cases such as this or other cases that have commentary that we need clarification, we do often reach out, sit with staff, have virtual meetings, etc.

2460
04:23:02,760 --> 04:23:12,720
All right, so let me show you that Mark was exhibit 16, 16 is communication of the library of a plan that you prepared.

2461
04:23:13,540 --> 04:23:15,700
That's an earlier iteration.

2462
04:23:15,940 --> 04:23:20,500
Objection, this has already been said it's not admissible. It's within the attorney-clant privilege.

2463
04:23:20,780 --> 04:23:26,960
He's bringing it back up again. We're talking about whether a secret meeting or whatever happened and we object to that.

2464
04:23:36,060 --> 04:23:40,580
I'm sorry I do want to hear your point. I just I think you need the microphone for the recording.

2465
04:23:41,480 --> 04:23:42,340
Thank you.

2466
04:23:45,830 --> 04:23:57,090
So this is a this is a draft plan that's different than even the final plan that was approved and so it was a plan he prepared after the court order submitted it to the city for comments.

2467
04:23:57,090 --> 04:24:03,950
to suggest that we can't even talk about plans that are public record that were submitted

2468
04:24:03,950 --> 04:24:13,890
to get to where they finally landed is absurd to not even be able to discuss the deliberative process.

2469
04:24:14,450 --> 04:24:17,290
And it's a plan he drew and it was submitted to the city.

2470
04:24:17,290 --> 04:24:25,530
Mr. Justice, are you of the opinion that one plan gets submitted, and it's accepted,

2471
04:24:25,770 --> 04:24:31,170
I mean, aren't, isn't it normal for iterative plans to get comment and get revised?

2472
04:24:31,390 --> 04:24:32,490
Are you saying that's not the case?

2473
04:24:32,890 --> 04:24:40,110
What I'm saying is if he is so sure about how everything is to apply, then at the end of the day,

2474
04:24:40,330 --> 04:24:43,250
there would have been basically one plan that showed up.

2475
04:24:43,250 --> 04:24:51,410
instead you have drafts that are occurring behind the scenes with the city attorney's office and they're making changes to get to a final point.

2476
04:24:51,570 --> 04:24:56,950
If everything's so cut and dry that would have been just we walked in with one plan it was done.

2477
04:24:57,490 --> 04:25:03,990
These are drafts. That means that they were struggling with how to end up where they ended up and we presented.

2478
04:25:04,330 --> 04:25:11,690
We spent four days presenting this testimony and I can't even present it in five minutes. This is the only document I want this witness to identify.

2479
04:25:16,570 --> 04:25:25,610
It does appear to be an email correspondence that includes a plan that you had presented.

2480
04:25:25,990 --> 04:25:27,830
So it would be vetted by the city, right?

2481
04:25:28,170 --> 04:25:31,630
Yeah, just like any other plan, we would do if there was someone that would listen.

2482
04:25:31,790 --> 04:25:35,310
We would certainly share a plan to see if we were compliant as we resubmit.

2483
04:25:35,630 --> 04:25:37,130
I mean, I don't think that's outside the norm.

2484
04:25:37,570 --> 04:25:40,130
The plan is being submitted to the city attorney's office.

2485
04:25:40,990 --> 04:25:41,830
That's correct.

2486
04:25:43,050 --> 04:25:48,070
I'd like to introduce, again, I object, this is attorney client privilege between Jason and I.

2487
04:25:48,210 --> 04:25:53,410
He forwarded the plan to us, right?

2488
04:25:53,570 --> 04:25:57,110
We represent, he's part of our team that I represent.

2489
04:25:57,370 --> 04:26:04,290
My colleague then forwarded the plan to the city attorney, right?

2490
04:26:04,290 --> 04:26:08,250
We had this discussion on Friday of last week that these are

2491
04:26:08,830 --> 04:26:10,330
privileged attorney client

2492
04:26:10,930 --> 04:26:16,510
Conversations between us and then subject to a joint defense agreement between us and the city

2493
04:26:17,650 --> 04:26:18,230
Mr

2494
04:26:18,230 --> 04:26:19,410
Chairman, you see the truth.

2495
04:26:19,430 --> 04:26:20,150
Enough finish.

2496
04:26:20,310 --> 04:26:21,730
These documents

2497
04:26:21,730 --> 04:26:27,830
Miss Hill was responsible for them. We have he says they were produced. Maybe they came from the city

2498
04:26:27,830 --> 04:26:34,210
They were in a and a folder that was specifically said do not produce a attorney client privilege. Mr. Justice has it

2499
04:26:34,210 --> 04:26:38,230
I'm not saying somebody from the city didn't make a mistake, but what I'm saying is these

2500
04:26:38,230 --> 04:26:39,190
were never intended.

2501
04:26:39,570 --> 04:26:42,050
Now, can I just finish to say it doesn't matter.

2502
04:26:42,250 --> 04:26:45,850
We either meet the plan or we don't, but that's really all I have.

2503
04:26:46,050 --> 04:26:46,530
I understand.

2504
04:26:46,810 --> 04:26:51,670
Doesn't that once he, once they're produced to him, doesn't it destroy the privilege because

2505
04:26:51,670 --> 04:26:52,290
a third party?

2506
04:26:53,550 --> 04:26:57,190
Not if it was done inadvertently without a party or anything.

2507
04:26:57,210 --> 04:26:59,430
That's the part I missed, the inadvertent aspect of it.

2508
04:26:59,630 --> 04:27:01,450
We're trying to get to the bottom of it.

2509
04:27:01,450 --> 04:27:13,830
Well, what we think is our communications department got mixed up when Mr. Justice's email change and somehow a privilege, but none of the clients or the attorneys knew it was that okay, that's, that's where I, I didn't hear.

2510
04:27:14,850 --> 04:27:20,530
Ms. Brown, Ms. Brown, I want to be sure we're touching all the right basis here.

2511
04:27:20,970 --> 04:27:25,010
This was brought up before we made some decisions.

2512
04:27:25,010 --> 04:27:29,890
I don't want to get in the middle of this other legal stuff that's going on an attorney

2513
04:27:29,890 --> 04:27:34,050
clock privilege is something I understand is pretty important in the industry.

2514
04:27:34,810 --> 04:27:38,170
So can you give me some guidance?

2515
04:27:38,670 --> 04:27:47,990
I was trying to compare a pellet 16 with documents that you have rejected previously.

2516
04:27:53,330 --> 04:27:59,210
The contention that you have is that this is a document that was produced in ERA, it's

2517
04:27:59,210 --> 04:28:04,890
privileged, it's a communication between an individual and an attorney that's work

2518
04:28:04,890 --> 04:28:10,250
product that was then followed under what Council is contending as a joint representation

2519
04:28:10,250 --> 04:28:10,870
agreement.

2520
04:28:10,870 --> 04:28:21,510
If all of that is true, I don't, you need to decide whether you agree those privileges

2521
04:28:21,510 --> 04:28:22,590
and exist.

2522
04:28:22,990 --> 04:28:27,750
And if that's, if you are determined that this document is privileged, then you should

2523
04:28:27,750 --> 04:28:29,250
not be considering it.

2524
04:28:31,650 --> 04:28:34,470
Mr. Chairman, we don't have a joint defense agreement.

2525
04:28:34,690 --> 04:28:40,990
We don't have any affidavits and we don't have a court hearing to get into the weeds of

2526
04:28:40,990 --> 04:28:41,150
this.

2527
04:28:41,150 --> 04:28:47,450
This is a document that was produced because we asked, please provide the public records of the deliberative process.

2528
04:28:47,890 --> 04:28:53,190
And so when documents come back that shows the deliberative process, we're assuming this is the deliberative process.

2529
04:28:53,490 --> 04:28:59,470
And you can see on the email, it's like, send this plan to staff for their review.

2530
04:29:00,010 --> 04:29:01,810
So this is how it got to staff.

2531
04:29:02,310 --> 04:29:08,550
I don't think we can discuss what it says, we can get into it if we allow it into the record.

2532
04:29:08,550 --> 04:29:09,110
We

2533
04:29:14,740 --> 04:29:15,720
don't care.

2534
04:29:16,060 --> 04:29:18,840
We just want to make sure we're not waving attorney client privilege.

2535
04:29:19,200 --> 04:29:20,920
We'll find out later how it got out.

2536
04:29:21,120 --> 04:29:25,340
I do want to just object to the extent that it doesn't matter.

2537
04:29:25,720 --> 04:29:27,680
The final plan matters, and that's it.

2538
04:29:28,520 --> 04:29:36,820
We can bring this in at this point, Mr. Justice, and I would, again, well, we'll see where

2539
04:29:36,820 --> 04:29:37,380
it takes us.

2540
04:29:38,940 --> 04:29:42,820
I stopped your timer, by the way, so you have your allotted time.

2541
04:29:43,440 --> 04:29:44,200
I'm fine.

2542
04:29:44,540 --> 04:29:45,860
I'm done with this way.

2543
04:29:47,160 --> 04:29:47,760
Okay.

2544
04:29:48,200 --> 04:29:48,960
Thank you.

2545
04:29:49,200 --> 04:29:49,420
Any questions?

2546
04:29:50,080 --> 04:29:51,780
Mr. Is there any re-rebuttal?

2547
04:29:52,380 --> 04:29:54,880
All right.

2548
04:29:55,520 --> 04:29:55,760
Okay.

2549
04:29:57,520 --> 04:29:58,980
So thank you.

2550
04:29:59,200 --> 04:29:59,980
Are there...

2551
04:30:00,000 --> 04:30:23,720
Any other witnesses? You said you had only one more and you've had your one or that was it, right? Yeah. Thank you. Okay. So now we move to closing arguments, I believe. Well, first, any questions from anyone at the table here about anything more you would like? Yeah, I do have one question.

2552
04:30:27,340 --> 04:30:32,480
Did Mr. Justice, did you say that Mr. Birch did not provide any

2553
04:30:32,480 --> 04:30:39,920
in this these packet that he did not provide any sub-divisions, compact sub-divisions?

2554
04:30:40,180 --> 04:30:40,640
No, no.

2555
04:30:41,760 --> 04:30:47,820
What I just said was they didn't provide an example of where they had a compact sub-division,

2556
04:30:48,260 --> 04:30:51,080
and they had used this block methodology.

2557
04:30:51,800 --> 04:30:57,220
And you can see that in the literature or the comments of that's how they're applying it.

2558
04:30:57,280 --> 04:31:00,980
So they had no other comparable that was provided.

2559
04:31:00,980 --> 04:31:07,940
I guess a follow-up would be if they had been using this methodology since 2013, wouldn't

2560
04:31:07,940 --> 04:31:13,520
that methodology logically apply to that subdivision that year suggested?

2561
04:31:15,040 --> 04:31:16,820
So wouldn't it logically apply?

2562
04:31:16,920 --> 04:31:23,400
We have a strong credibility issue about a lot of things in this case.

2563
04:31:23,980 --> 04:31:30,060
And at the end of the day, when they say this has been the methodology, and I see a bunch

2564
04:31:30,060 --> 04:31:34,500
a lot of comments that say, dimension all your space, all your open space.

2565
04:31:34,660 --> 04:31:40,360
And this came up in the last hearing in the sense of simply we were looking at that space

2566
04:31:40,360 --> 04:31:43,220
around the perimeter and that you couldn't call it open space.

2567
04:31:43,840 --> 04:31:52,000
But there's no indication that this methodology has ever been applied in the past until this developer

2568
04:31:52,000 --> 04:31:52,620
showed up.

2569
04:31:52,620 --> 04:31:58,720
But he blankedly says it has been applied for 12 years.

2570
04:31:59,200 --> 04:32:00,140
That was his statement.

2571
04:32:00,880 --> 04:32:05,200
But there was never any, and I'm just reflecting on the fact that they provided comprables.

2572
04:32:05,300 --> 04:32:07,560
They said, here's a subdivision, look at this.

2573
04:32:08,100 --> 04:32:09,120
And we did this last time.

2574
04:32:09,260 --> 04:32:10,840
You weren't thankfully for you.

2575
04:32:11,080 --> 04:32:12,620
You weren't here for the four days before.

2576
04:32:13,220 --> 04:32:17,500
But we would provide comprables about, well, what's an open lot?

2577
04:32:17,740 --> 04:32:18,760
What's a perimeter lot?

2578
04:32:18,900 --> 04:32:21,360
And we had a bunch of comprables from other plants.

2579
04:32:21,360 --> 04:32:23,900
They just simply didn't produce one for this methodology.

2580
04:32:24,120 --> 04:32:25,240
That's all I was pointing out.

2581
04:32:25,360 --> 04:32:25,560
Okay.

2582
04:32:25,720 --> 04:32:29,860
At the end of the day, does it really matter whether they have been applying the ordinance

2583
04:32:29,860 --> 04:32:32,860
inconsistently for 20 years versus one year?

2584
04:32:33,960 --> 04:32:35,320
That's not my main point.

2585
04:32:35,480 --> 04:32:38,740
Okay. I do have a different follow-up question.

2586
04:32:40,340 --> 04:32:46,340
They all the requirements in the analysis of the order of the Superior Court

2587
04:32:46,340 --> 04:32:53,300
States that the primary subdivision are all met for the compact development pursuant

2588
04:32:53,300 --> 04:33:03,160
to section 2.3.1, right, except for the transitional protection yard.

2589
04:33:03,500 --> 04:33:06,200
That's one of the lines in the analysis.

2590
04:33:06,700 --> 04:33:10,020
That is the line point is that the end of it says it's reversed.

2591
04:33:10,640 --> 04:33:11,040
Correct.

2592
04:33:11,040 --> 04:33:19,940
Yes. And is it your conclusion that the entirety of that is reversed? Not just the analysis

2593
04:33:19,940 --> 04:33:27,100
that they state all of the requirements are met. It's the fact that then it reverses all the

2594
04:33:27,100 --> 04:33:34,540
the facts that they were met. So if we were so it is our it's our position and we have a couple of

2595
04:33:34,540 --> 04:33:38,620
cases we were going to bring up to you that any time and order is reversed it has no

2596
04:33:43,580 --> 04:33:44,660
So that's one.

2597
04:33:45,040 --> 04:33:50,880
Secondly, again, we've said this to you before, is that the petition defines the issues before

2598
04:33:50,880 --> 04:33:51,320
the court.

2599
04:33:51,980 --> 04:33:59,340
The petition here, we weren't contesting the 60% contiguity or the one acre.

2600
04:33:59,520 --> 04:34:00,700
We weren't contesting that.

2601
04:34:00,780 --> 04:34:04,280
We were simply contesting that strip around the exterior.

2602
04:34:04,920 --> 04:34:08,600
And so when the court says all of the things have been met, it's because the court says

2603
04:34:08,600 --> 04:34:13,360
We have raised another issue before the court was in fill compatibility.

2604
04:34:14,280 --> 04:34:18,240
And so obviously the court only has jurisdiction to deal with issues before it.

2605
04:34:18,520 --> 04:34:24,320
So the court agrees that we, with the city on the other issue, which was in fill compatibility.

2606
04:34:25,280 --> 04:34:28,400
The issue about what we're talking about today was not before the court.

2607
04:34:28,980 --> 04:34:29,980
Just was it.

2608
04:34:33,320 --> 04:34:35,400
So I don't know how to be a planner.

2609
04:34:35,700 --> 04:34:38,420
It's like, that's fine, I understand.

2610
04:34:38,420 --> 04:34:46,660
It is literally like taking the previous plan where we believe this space is good enough

2611
04:34:46,660 --> 04:34:54,060
for 50% the 50 foot width because it looks like that, not that one, it's the older one.

2612
04:34:54,980 --> 04:34:56,060
Just read the petition.

2613
04:34:56,140 --> 04:34:57,440
Yeah, I'm good.

2614
04:34:57,780 --> 04:34:57,900
Yeah.

2615
04:34:58,420 --> 04:35:02,180
Yeah, please read the first sentence of the petition that they skipped over that talks about

2616
04:35:02,180 --> 04:35:03,220
the strip around the perimeter.

2617
04:35:03,680 --> 04:35:03,960
Okay.

2618
04:35:04,180 --> 04:35:06,440
So in terms of closing arguments, what's the order, please?

2619
04:35:06,440 --> 04:35:14,420
So, you have two matters before you, that you have a motion to dismiss, which is Ms.

2620
04:35:14,500 --> 04:35:20,080
Tatum's motion, and you have the appeal and chief, which is Mr. Justice's burden.

2621
04:35:20,960 --> 04:35:21,100
So,

2622
04:35:23,320 --> 04:35:32,660
you, withheld determination on the motion to dismiss previously, and so that motion,

2623
04:35:32,660 --> 04:35:47,300
You did take that first, that motion was before you first, so you could take Miss Tatum first, or you could decide that you're going to take Miss Justice first, or I can flip a coin and we can decide which one goes first, because each of them would have an argument that they should go first.

2624
04:35:47,300 --> 04:35:56,620
Well, when we started, I was interested in the motion residue to Cata, and we agreed to hold that one off.

2625
04:35:57,320 --> 04:35:58,680
So I want to revisit that one now.

2626
04:35:59,460 --> 04:36:02,500
So if you're proceeding with that one first, then that would be Miss Tatum.

2627
04:36:02,640 --> 04:36:05,040
Okay, that's why I would like to do Miss Tatum.

2628
04:36:05,400 --> 04:36:06,380
I guess you're up.

2629
04:36:07,680 --> 04:36:09,320
We discussed the time limit, right?

2630
04:36:15,120 --> 04:36:18,540
I'd like a little more time, probably, on the merits, because we've...

2631
04:36:18,540 --> 04:36:25,820
can we do 10? 10 here? 10. Total? I think I think you had agreed to 10 total. Yeah that's

2632
04:36:25,820 --> 04:36:34,440
what we talked about. And we're like we're bifurcating the closing so we can take you each

2633
04:36:34,440 --> 04:36:39,840
of them has 10 minutes and if they want to put three here and seven at the other or seven here

2634
04:36:39,840 --> 04:36:45,780
and three at the other that's up to them. That would be my recommendation. I thought it was all

2635
04:36:45,780 --> 04:36:47,700
I'll lump it together. I didn't know we're going to buy for care.

2636
04:36:51,140 --> 04:36:55,920
So if it's lumped in together, then I'm going to try to just...

2637
04:36:56,540 --> 04:36:56,960
Can you tell?

2638
04:37:04,660 --> 04:37:07,860
Well, see, Craig should go first on the merits, and we should go second.

2639
04:37:08,040 --> 04:37:10,100
We're going to go first here, and he's going to go second.

2640
04:37:10,240 --> 04:37:13,840
So I'd like to just take two minutes on the raised due to Cata.

2641
04:37:14,120 --> 04:37:14,620
That's okay.

2642
04:37:15,080 --> 04:37:15,320
Yes, ma'am.

2643
04:37:17,940 --> 04:37:23,340
So, I'm unclear. Are we now bifurcating things, which is fine?

2644
04:37:23,340 --> 04:37:28,420
I think you are. The chair has asked that we do the motion for rescue to cut a first.

2645
04:37:28,880 --> 04:37:32,740
So we're going to bifurcate it. Each of you has a total of 10 minutes that you've agreed

2646
04:37:32,740 --> 04:37:39,040
to to do closings. Since it's bifurcated, you can allocate your time as you see fit.

2647
04:37:39,140 --> 04:37:41,760
Mr. Tory, we'll keep up with how much time you've used total.

2648
04:37:44,970 --> 04:37:45,090
Ready?

2649
04:37:45,530 --> 04:37:51,010
And so I understand are we going to hear this and then make a decision on rescue to cut

2650
04:37:51,010 --> 04:37:54,970
and then move on if we need to or we're going to just hear

2651
04:37:54,970 --> 04:37:58,290
closing arguments for both. And then I think the rest of you

2652
04:37:58,290 --> 04:38:02,110
to caught it would take care of. Just one argument. Yeah. Yeah.

2653
04:38:02,530 --> 04:38:06,650
Let's do it. Okay. Let's start the timer. Got it.

2654
04:38:07,370 --> 04:38:12,710
Thank you. Again, Robin Tatum. There is an open space chart on

2655
04:38:12,710 --> 04:38:17,710
the interior of your notebooks. And basically, that's really

2656
04:38:17,710 --> 04:38:24,650
all we need to look at. We have been through everything to compile this chart, and it sets forth

2657
04:38:24,650 --> 04:38:30,010
everything that was raised in the appeal, argued, and are in the decisions, and that's what's

2658
04:38:30,010 --> 04:38:35,790
important. And Mr. Remetta has been through that, and this argument that he didn't argue it,

2659
04:38:36,440 --> 04:38:44,250
or just not played out by the documents. The first appeal had the same calculation for the

2660
04:38:44,250 --> 04:38:51,390
open space which is it had to be a partial that had at least 50 by 50 feet of

2661
04:38:51,390 --> 04:38:55,890
open space. It was calculated the same way it was in the testimony it was in

2662
04:38:55,890 --> 04:38:59,630
the affidavit it was in the board's order that it was correct. Now when it

2663
04:38:59,630 --> 04:39:04,490
went to the court which to the superior court again I'm going to read the

2664
04:39:04,490 --> 04:39:10,150
petition. Paragraph 44 there are no areas that qualifies open space in terms of

2665
04:39:10,150 --> 04:39:15,990
function or use or dimension. Paragraph 6C. Open space does not qualify. The board

2666
04:39:15,990 --> 04:39:26,330
Superior Court decision is that the preliminary subdivision meant all

2667
04:39:26,330 --> 04:39:31,270
requirements for a compact subdivision except the requirement for a

2668
04:39:31,270 --> 04:39:35,820
transitional protective yard. Mr. Justice Wood, have you say that that is

2669
04:39:35,820 --> 04:39:41,400
meaningless as to everything, but the protective yard, they could have appealed that to the

2670
04:39:41,400 --> 04:39:41,940
court of appeals.

2671
04:39:42,100 --> 04:39:42,800
They chose not to.

2672
04:39:42,900 --> 04:39:45,100
That is a binding decision that those are met.

2673
04:39:45,680 --> 04:39:49,540
Now, if you go back to the second plan, we calculated the same way.

2674
04:39:50,020 --> 04:39:55,900
We based it on what we believe that the court had held, and then they came back again and

2675
04:39:55,900 --> 04:39:59,420
argued that the same thing was not decided.

2676
04:39:59,900 --> 04:40:03,940
So I don't know what Mr. Justice thought he was arguing.

2677
04:40:03,940 --> 04:40:13,080
I know what we were arguing against and what we put in our evidence and what we put in the order, which is one that I read. Thank you.

2678
04:40:14,840 --> 04:40:15,360
I

2679
04:40:21,920 --> 04:40:32,940
think it's important to look at the petition and this underscores exactly what I'm saying is that there's cherry picking of information to this court, to this board that is unfortunate.

2680
04:40:32,940 --> 04:40:39,540
but if you look at paragraph 44, this is my whole point and you have to actually read the whole paragraph,

2681
04:40:39,860 --> 04:40:43,520
the city attorney starts out with reading the second sentence.

2682
04:40:44,100 --> 04:40:49,100
As if we were contesting what qualified as open space throughout the entire development.

2683
04:40:49,520 --> 04:40:54,100
The first sentence says, for the project and is authorized by the December 22nd approval,

2684
04:40:54,560 --> 04:40:59,600
there are no large outdoor or open areas around the perimeter of the site,

2685
04:40:59,600 --> 04:41:07,300
That, excluding the TCA's, in this space, there are no areas that qualify as open space.

2686
04:41:07,540 --> 04:41:09,060
You can go on and read the last sentence.

2687
04:41:09,320 --> 04:41:12,660
In this narrow space, there are no parks or natural areas.

2688
04:41:13,520 --> 04:41:18,740
The petition only dealt with this space around the perimeter.

2689
04:41:19,320 --> 04:41:25,660
We never contested in the petition that they didn't meet the one acre or the 60%.

2690
04:41:25,660 --> 04:41:30,600
And it's mind-boggling for them to come up and say, oh, that was litigated when it wasn't.

2691
04:41:31,500 --> 04:41:36,200
I want to point out some legal principles about raised judicata, Mr. Chairman, members of the board.

2692
04:41:36,380 --> 04:41:44,260
First off, raised judicata has only appeared in zoning cases where a board denies an application and a developer comes back to reapply.

2693
04:41:44,800 --> 04:41:48,700
And the question is, have you made the changes that are material for the reasons we denied it?

2694
04:41:49,360 --> 04:41:54,760
There's never been a case where a board of adjustment by a three-two vote makes a decision.

2695
04:41:54,760 --> 04:41:56,780
It goes to the Superior Court and it gets reversed.

2696
04:41:57,620 --> 04:42:01,260
There's actually two cases from the Pellet Courts,

2697
04:42:01,760 --> 04:42:04,240
King versus Grind staff, Supreme Court case,

2698
04:42:04,640 --> 04:42:09,220
and there's a Court of Appeals opinion of First Recovery LLC

2699
04:42:09,760 --> 04:42:13,360
that says that a reversed order has no preclusive effect.

2700
04:42:13,480 --> 04:42:16,840
And what I mean by a reversed order, meaning the Board of Adjustments order was reversed.

2701
04:42:17,440 --> 04:42:18,860
That's what the Court said.

2702
04:42:19,680 --> 04:42:23,020
And when the Court does say, I think in Dicta,

2703
04:42:23,020 --> 04:42:28,300
but the language about all other things, it is because the petition was raising the issue

2704
04:42:28,300 --> 04:42:34,500
about the infill compatibility and what was the primary setback, that it was the other issue.

2705
04:42:35,180 --> 04:42:40,460
The court didn't get into the weeds about this block methodology and whether the one

2706
04:42:40,460 --> 04:42:44,660
acre was met or the 60% contiguity because we didn't raise it as an issue.

2707
04:42:46,740 --> 04:42:51,800
In terms of raised due to cotton collateral stop, it doesn't even apply if there's material

2708
04:42:51,800 --> 04:42:58,260
changes from a first plan and a second plan. This is the first plan. All the open spaces

2709
04:42:58,260 --> 04:43:03,780
in the middle, all the dimensions are 50 feet and width. There was no discussion here

2710
04:43:03,780 --> 04:43:09,960
at the hearing about this middle part doesn't comply. The TCA is clearly complied. We

2711
04:43:09,960 --> 04:43:16,960
didn't raise it in as an issue. In order to jam in 17 units, they had to cannibalize

2712
04:43:16,960 --> 04:43:25,020
the open space. They cannibalized it, and they created this perimeter of open space at

2713
04:43:25,020 --> 04:43:31,500
20 feet and width. And they cannibalized the middle. It's no longer anything close to

2714
04:43:31,500 --> 04:43:37,180
what it was before. And our witness is the one that has said there were material changes

2715
04:43:37,620 --> 04:43:45,580
from the first and second plan. The Board of Adjustment Order, the order says areas larger

2716
04:43:45,580 --> 04:43:51,660
than 50 feet can be found in three places. It is true that there are areas larger than 50 feet

2717
04:43:51,660 --> 04:43:57,460
in those three places. The board didn't then go on to say that you can lump in as many areas

2718
04:43:57,460 --> 04:44:05,280
smaller than 50 feet. Again, that was not an issue. The board order didn't say that. These are

2719
04:44:06,120 --> 04:44:13,080
issues that neither Jeffrey Brown and his affidavit was contesting. These are issues. I wasn't contesting.

2720
04:44:13,080 --> 04:44:16,060
these were issues that the petition to the court wasn't contesting.

2721
04:44:17,340 --> 04:44:24,540
And so to suddenly, show up now and say the 50 block methodology is sacred, you can't challenge it.

2722
04:44:24,980 --> 04:44:28,000
Literally means it is binding on everybody in the city

2723
04:44:29,040 --> 04:44:35,100
and to say we are precluded from doing that when the record is clear that it was not an issue,

2724
04:44:35,260 --> 04:44:38,920
it would be a travesty of justice, not to have the court look at this

2725
04:44:38,920 --> 04:44:41,360
and to have the board look at this to see if they're right.

2726
04:44:41,360 --> 04:44:48,740
because it is a joke, it is actually worse this go around the issue, at least what was around the perimeter.

2727
04:44:49,200 --> 04:44:56,820
There was a little bit of vagueness that even the court found there is nothing vague about a minimum, a minimum of 50 feet.

2728
04:44:57,480 --> 04:44:58,840
There's nothing vague about this.

2729
04:44:58,840 --> 04:44:59,980
this second point.

2730
04:45:00,000 --> 04:45:02,520
Is worse than the first plan.

2731
04:45:09,800 --> 04:45:18,300
Thank you. Okay, Ms. Brown. Are we supposed to act on this one now, or can we hold our decision until we?

2732
04:45:21,420 --> 04:45:30,940
That's absolutely the board's prerogative, as to whether you want to act on this first, or whether you want to hold the decision. And here are the remaining closing arguments and then deliberate.

2733
04:45:30,940 --> 04:45:31,040
All right.

2734
04:45:33,590 --> 04:45:35,350
Gentlemen, have a particular opinion.

2735
04:45:36,550 --> 04:45:38,270
Let's just finish the thing all the way out.

2736
04:45:38,870 --> 04:45:39,650
Let's go all the way through.

2737
04:45:39,910 --> 04:45:41,830
Okay, let's go back to the merits.

2738
04:45:42,150 --> 04:45:43,550
Mr. Justice, you're up now.

2739
04:45:44,570 --> 04:45:46,190
Can I just get clear on timing?

2740
04:45:46,750 --> 04:45:48,170
Yeah, I was just about to.

2741
04:45:48,490 --> 04:45:51,010
So you have eight minutes left collectively.

2742
04:45:51,370 --> 04:45:51,530
Correct.

2743
04:45:52,190 --> 04:45:57,890
You have seven minutes and 45 seconds.

2744
04:45:58,590 --> 04:46:00,590
And on the case in chief,

2745
04:46:01,230 --> 04:46:09,700
I don't know whether you've divided time with Mr. Berks or not, but forget that he's back there representing someone else.

2746
04:46:10,380 --> 04:46:14,180
Yeah. Yeah, they're ten minutes is collective.

2747
04:46:15,160 --> 04:46:21,760
Well, I think when we were talking about that, it was severed in a part from the race of Judith Kata.

2748
04:46:22,240 --> 04:46:23,360
It's just not his argument.

2749
04:46:26,100 --> 04:46:27,980
Well, let's let Mr. Justice proceed.

2750
04:46:28,340 --> 04:46:29,400
Yeah, we'll see where we're at.

2751
04:46:30,740 --> 04:46:32,260
He's got seven minutes.

2752
04:46:39,160 --> 04:46:50,060
I understand the last goal around it's evident and it's evident today that we're not talking about the city bending over backwards for a developer.

2753
04:46:50,200 --> 04:46:53,780
We're talking about a city staff willing to rewrite the rules.

2754
04:46:55,020 --> 04:47:03,280
There is no ambiguity when something refers to a minimum, a minimum means a minimum.

2755
04:47:03,980 --> 04:47:06,740
A minimum is not going

2756
04:47:09,200 --> 04:47:12,800
to have a range of distances.

2757
04:47:13,160 --> 04:47:16,820
It's going to have a range and everything's going to be uniform to amount land, right?

2758
04:47:17,460 --> 04:47:18,540
So it's going to have a range.

2759
04:47:19,060 --> 04:47:21,320
A range of numbers.

2760
04:47:22,240 --> 04:47:24,740
The minimum is the lowest possible.

2761
04:47:25,660 --> 04:47:29,340
The court, actually it's proctor versus the City of Raleigh Board of Adjustment Cays

2762
04:47:29,340 --> 04:47:33,720
where the issue of what minimum meant came before the Court of Appeals

2763
04:47:33,720 --> 04:47:35,660
and it was the lowest possible.

2764
04:47:36,420 --> 04:47:42,340
The lowest possible of this graphic that was the Exhibit 10, this would be something they

2765
04:47:42,340 --> 04:47:48,320
would agree all of this meets open space requirements because all of this is connected

2766
04:47:48,320 --> 04:47:49,960
to a 50 by 50 block.

2767
04:47:50,760 --> 04:47:58,420
Even though the range of this, the lowest number is one foot, one foot and that's all it takes

2768
04:47:58,420 --> 04:48:03,040
in the city is literally connected to a block.

2769
04:48:03,280 --> 04:48:07,480
We don't care how much of the acre is less than 50.

2770
04:48:07,760 --> 04:48:08,420
Think about that.

2771
04:48:09,380 --> 04:48:12,560
They drew on here a block, literally a block

2772
04:48:12,560 --> 04:48:16,000
that may have been a quarter of an acre.

2773
04:48:17,020 --> 04:48:20,220
And the rest of it is fine to be less than 50 feet and width

2774
04:48:20,820 --> 04:48:22,160
as long as it connects.

2775
04:48:23,180 --> 04:48:24,620
There is no logic to that.

2776
04:48:24,620 --> 04:48:30,420
That would mean that any minimum, like a fence height of a minimum of eight feet, can

2777
04:48:30,420 --> 04:48:34,640
be four feet in some places as long as it's connected to a place that has eight feet.

2778
04:48:35,240 --> 04:48:42,580
The tree conservation area that's 32 feet with minimum can be less in many areas as long

2779
04:48:42,580 --> 04:48:45,480
as it's connected to a spot that's 32 feet.

2780
04:48:45,860 --> 04:48:49,500
Minimum is being written out of this ordinance by interpretation.

2781
04:48:49,500 --> 04:49:00,380
It is clearly absurd to suggest that they met the minimum requirements as to open space.

2782
04:49:01,240 --> 04:49:08,800
In terms of the encroachment, the encroachment is a building or structure, can't be within

2783
04:49:08,800 --> 04:49:11,200
ten feet of a transition protective yard.

2784
04:49:11,660 --> 04:49:13,320
They say a road is not a structure.

2785
04:49:14,280 --> 04:49:16,700
A road is something construct.

2786
04:49:17,700 --> 04:49:26,120
And at the end of the day, to suggest that a road is not constructed and is not a structure,

2787
04:49:27,100 --> 04:49:31,260
boggles the mind when their own standards online, says roads are constructed.

2788
04:49:31,740 --> 04:49:39,120
Heck, coming to Raleigh, my ways tells me construction ahead all the time.

2789
04:49:39,920 --> 04:49:41,720
Those are highways being built.

2790
04:49:42,600 --> 04:49:56,240
roads and driveways and places where vehicles can operate, that asphalt and that area in question is a built environment, and it is constructed, and a road is a structure.

2791
04:49:57,080 --> 04:50:08,460
And the thing is the city has listed exceptions both for open space being less than 50 feet, there are three exceptions, none of which are apply here.

2792
04:50:09,840 --> 04:50:15,220
in terms of how close can something be, there are exceptions for breaks,

2793
04:50:16,300 --> 04:50:22,120
breaks. Think about that. Why list it as an exception if it wasn't a structure?

2794
04:50:23,280 --> 04:50:27,240
We all know that if you have a transition protective yard around the perimeter or property,

2795
04:50:27,460 --> 04:50:30,500
you're going to have to allow for access to get to the property.

2796
04:50:31,000 --> 04:50:32,400
You're going to have to allow some access.

2797
04:50:32,400 --> 04:50:40,040
But to allow a road to run parallel, which is clearly not a break in it, within, when we're

2798
04:50:40,040 --> 04:50:45,100
talking about not within 10 feet, we're talking about, we're talking about right next to

2799
04:50:45,100 --> 04:50:50,920
the transition protective yard is, again, an absurd interpretation, and it's not borne

2800
04:50:50,920 --> 04:50:57,960
out by logic, it's not borne out by any dictionary definitions, it's not borne out by anything

2801
04:50:57,960 --> 04:51:04,460
other than the need to not only bend over backwards, but to allow this developer and the

2802
04:51:04,460 --> 04:51:06,740
city staff to rewrite all the exceptions.

2803
04:51:07,680 --> 04:51:12,540
The exceptions that we've gone over, the exceptions to how close you can be to a transition

2804
04:51:12,540 --> 04:51:16,000
protective yard, exceptions for the 50 feet.

2805
04:51:17,060 --> 04:51:23,820
If you uphold their decision, these exceptions are meaningless, meaningless, because why have

2806
04:51:23,820 --> 04:51:29,280
exceptions listed. If you can just simply say, well, there's more than three exceptions.

2807
04:51:29,280 --> 04:51:36,320
There can be anything that has this connectivity to 50 by 50. Or, yeah, we hear about a

2808
04:51:36,320 --> 04:51:44,580
vehicular break, but it can be anything that we want. That doesn't matter. So, words

2809
04:51:44,580 --> 04:51:53,800
matter. And when we started out today with Keegan, I said, what is the purpose of the

2810
04:51:53,800 --> 04:51:59,040
to protect character of the neighborhood and I said, well, if there's a conflict in

2811
04:51:59,040 --> 04:52:06,100
language, the most stringent regulation applies. Think about that. The harshest reading

2812
04:52:06,100 --> 04:52:11,960
to the developer applies. In this case, we don't feel like there's any ambiguity about

2813
04:52:11,960 --> 04:52:18,280
what minimum means, what a structure means, and whether in violation. But clearly, you can't

2814
04:52:18,280 --> 04:52:24,640
take these provisions that are cut and dry and say, oh, we can ignore them and we can

2815
04:52:24,640 --> 04:52:29,040
look elsewhere. Because guess what? Once you find this provision that's cut and dry,

2816
04:52:29,860 --> 04:52:35,760
the ordinance tells you you have to apply it. It's the most stringent regulation. It is

2817
04:52:35,760 --> 04:52:41,040
clear. It is plain. And they have ignored it in multiple places in there. And it's not

2818
04:52:41,040 --> 04:52:46,140
really that Jose, two minutes. It's really that they didn't throw rocks at Jose and say

2819
04:52:46,140 --> 04:52:51,520
your calculations were wrong, they're simply saying that our methodology of 50 by 50

2820
04:52:51,520 --> 04:52:58,340
block in one spot is controlling. They are simply saying, well, a road is not a structure.

2821
04:53:00,240 --> 04:53:05,760
And so we think Jose presented the information from an engineering standpoint of why they're

2822
04:53:05,760 --> 04:53:12,620
wrong and why they're wrong from plain language found in dictionary definitions and just common

2823
04:53:13,680 --> 04:53:16,760
So Mr. Chairman, you are here the last go around.

2824
04:53:17,480 --> 04:53:19,500
You two other board members were not.

2825
04:53:20,320 --> 04:53:22,240
And I heard from the board members before,

2826
04:53:22,500 --> 04:53:24,240
let's give deference to the city staff.

2827
04:53:24,420 --> 04:53:28,500
Let's, they are the ones that should be administering this,

2828
04:53:28,660 --> 04:53:32,020
and that is not what should be the mindset.

2829
04:53:33,220 --> 04:53:36,600
Because your decision today doesn't just affect these people,

2830
04:53:36,760 --> 04:53:39,660
it affects everybody in this city when you make a decision.

2831
04:53:40,200 --> 04:53:43,660
because these are questions of law that come before you and they're not entitled to

2832
04:53:43,660 --> 04:53:48,700
deference. What I want you to do is free your mind from, well I'm part of the

2833
04:53:48,700 --> 04:53:54,700
City of Raleigh. Well no you're in a safe harbor where you're here and you're looking out

2834
04:53:54,700 --> 04:53:59,920
for everybody's interest and I'm asking you just to apply logic and common sense

2835
04:53:59,920 --> 04:54:10,980
and ask yourself can you satisfy a minimum by using the maximum and the answer

2836
04:54:10,980 --> 04:54:18,960
is no you can't. This plan can work if they reduce the number of townhouses but

2837
04:54:18,960 --> 04:54:25,740
they cannibalize the open space to salvage 17. That's the only thing they didn't

2838
04:54:25,740 --> 04:54:31,380
change. They changed everything else by jamming a basketball into a pinhole.

2839
04:54:31,960 --> 04:54:36,600
So this wasn't two bites at the Apple as you'll hear or you've heard before.

2840
04:54:36,800 --> 04:54:41,580
This was, there was an Apple defective with a worm in it, and now we got a watermelon

2841
04:54:42,400 --> 04:54:46,560
with a snake in it. These are two different things, and this plan that they presented

2842
04:54:46,560 --> 04:54:51,240
today, or the most current plan is even worse than the one before. Thank you.

2843
04:54:51,240 --> 04:54:52,580
Thank you.

2844
04:54:53,820 --> 04:54:54,620
State them.

2845
04:55:02,460 --> 04:55:04,340
Make sure I give Mr. Birch enough time.

2846
04:55:05,020 --> 04:55:05,240
One minute.

2847
04:55:05,240 --> 04:55:06,480
You guys got eight minutes.

2848
04:55:06,780 --> 04:55:07,780
Eight minutes total.

2849
04:55:11,370 --> 04:55:12,890
Hold on to the staff at the clock.

2850
04:55:15,240 --> 04:55:15,460
Ready?

2851
04:55:16,800 --> 04:55:17,240
Okay.

2852
04:55:17,980 --> 04:55:23,880
The first thing I want to make clear to the board is that I am here on behalf of the City of Raleigh.

2853
04:55:24,100 --> 04:55:28,860
Their interest is in defending the decision of their staff and their ordinance.

2854
04:55:29,480 --> 04:55:31,380
Mr. Birch is here on behalf of the developer.

2855
04:55:31,380 --> 04:55:35,960
it's their project. So the extent that we're somehow colluding or anything, we're not.

2856
04:55:36,180 --> 04:55:43,060
I'm protecting the policy decision of my council, which has been the same since 2001.

2857
04:55:43,620 --> 04:55:50,800
With respect to the merits, I'm not going to go back through the open space that much.

2858
04:55:51,080 --> 04:55:55,840
It is very simple and it's a very logical interpretation that's been for quite some time.

2859
04:55:55,840 --> 04:56:02,800
and basically it says the open space area, which is kind of like this, could be like this,

2860
04:56:03,120 --> 04:56:09,560
not logical, it'll be like this every time, but if any wants that it is determined to be a minimum

2861
04:56:09,560 --> 04:56:13,780
of 50 feet wide, then you check that box.

2862
04:56:14,880 --> 04:56:21,000
You don't have to go around, it has to be 50 everywhere, that's actually more than satisfies that box.

2863
04:56:21,580 --> 04:56:24,080
Then you go to continuity, then you go to size.

2864
04:56:24,080 --> 04:56:32,060
So with with with that's all you look at one one piece of that whole area has to be 50 and it's been met and

2865
04:56:32,740 --> 04:56:38,060
Mr. Justice is like, you know, you can't point to anything that says you can't point to an example

2866
04:56:38,060 --> 04:56:42,240
I would say to you that calling the staff's credibility

2867
04:56:42,800 --> 04:56:47,180
Into question is not appropriate. They've done this a long time. They're telling the truth

2868
04:56:47,180 --> 04:56:51,560
They're not trying to mislead you as with respect to the other arguments

2869
04:56:51,560 --> 04:56:54,980
I do want to say the parking was absurd.

2870
04:56:55,560 --> 04:57:00,200
They presented an expert that said you needed 51 parking places where you need zero.

2871
04:57:00,780 --> 04:57:06,220
Not only did he not read the UDO, but he cited a text amendment that doesn't say you need three parking spaces.

2872
04:57:06,560 --> 04:57:09,000
It actually says you can't have any more than two.

2873
04:57:09,760 --> 04:57:17,180
Now with respect to the wall, also there was this testimony that a wall is a structure.

2874
04:57:17,180 --> 04:57:20,360
So you can't have a structure in the T.P.Y.

2875
04:57:20,860 --> 04:57:23,620
Well, the U.D.O. says all over it.

2876
04:57:23,740 --> 04:57:24,680
You must have a wall.

2877
04:57:24,900 --> 04:57:26,280
Here are the wall requirements.

2878
04:57:26,960 --> 04:57:30,720
And when we asked him, did you look at that?

2879
04:57:31,100 --> 04:57:33,980
He goes, well, when I look at it now, maybe you can't have a wall.

2880
04:57:34,380 --> 04:57:36,180
And I have looked at this multiple times.

2881
04:57:36,300 --> 04:57:38,000
I just didn't study that part.

2882
04:57:38,420 --> 04:57:42,440
So he came to that conclusion based on a section

2883
04:57:42,440 --> 04:57:44,240
when he didn't even look at the wall part.

2884
04:57:44,240 --> 04:57:53,940
Now, with respect to Mr. Bert showed you that they claimed that you couldn't put a wall

2885
04:57:53,940 --> 04:58:01,180
over a certain height in the T.P.Y. and the setback, he was actually referring to a part

2886
04:58:01,180 --> 04:58:08,660
of the U.D.O. that doesn't apply to the T.P.Y. So basically, everything that that expert

2887
04:58:08,660 --> 04:58:16,080
said was contrary to the UDO, and Mr. Justice is asking you to say this person who's never

2888
04:58:16,080 --> 04:58:23,680
had a project with the UDO, never done a complex vision, never done a townhouse, and gets

2889
04:58:23,680 --> 04:58:29,340
90% of what he says wrong should overrule the staff, which does this every day in Mr. Metas.

2890
04:58:29,720 --> 04:58:36,540
We believe that this decision was consistent with the UDO, consistent with the City Council's

2891
04:58:36,540 --> 04:58:36,960
directive.

2892
04:58:37,320 --> 04:58:38,140
That's the problem.

2893
04:58:38,140 --> 04:58:44,820
They don't want townhouses in their neighborhood while I would suggest they go to the ballot box and not come back and

2894
04:58:44,820 --> 04:58:51,440
argue the same thing particularly when the one thing they said they wanted they got it and now we're back and they don't like that either.

2895
04:58:52,080 --> 04:58:55,720
I'm stopping at $3.38. Do you have any questions of glad to answer?

2896
04:58:58,130 --> 04:59:01,310
I stopped it for you. I stopped it for you, Mr. Birch.

2897
04:59:02,590 --> 04:59:04,670
You got a 426 left.

2898
04:59:04,670 --> 04:59:05,470
Great.

2899
04:59:19,520 --> 04:59:25,460
You've heard from four witnesses on the issue of UDO compliance. Three of these

2900
04:59:25,460 --> 04:59:31,020
witnesses, Keegan, Justin and Jason, are all incredibly well-versed in the Raleigh

2901
04:59:31,020 --> 04:59:38,080
UDO, whether that's in terms of reviewing plans for UDO compliance, whether it's ensuring

2902
04:59:38,080 --> 04:59:43,920
UDO compliance, whether it's actually drafting the text of the UDO. The other witness,

2903
04:59:47,420 --> 04:59:47,420
Jason

2904
04:59:47,420 --> 04:59:52,700
in submitting plans that are UDO compliant and working with the city on ensuring that compliance.

2905
04:59:53,600 --> 04:59:59,820
The other witness you heard from has zero experience in Raleigh never submitted a compact subdivision.

2906
05:00:00,270 --> 05:00:22,350
In the city of Raleigh, acknowledged that he misread the UDO regarding parking, acknowledged he didn't read the UDO provision regarding walls and a T.P.Y. And when he said that he could become an expert on a local UDO by discussing that with staff, he then acknowledged that he had never discussed any of these issues with staff.

2907
05:00:27,460 --> 05:00:34,600
The issue of the structures in the walls in the T.P.Y. It's clear that a wall is treated separately and

2908
05:00:34,600 --> 05:00:39,740
distinctly from a structure. You cannot have something both allowed within a TPI and then

2909
05:00:39,740 --> 05:00:45,600
prohibited at the same time. A wall is allowed, a structure is not, a wall cannot be both

2910
05:00:45,600 --> 05:00:52,060
a wall and a structure for that purpose. That section also clearly delineates and distinguishes

2911
05:00:52,060 --> 05:00:57,620
between what is a building in a structure versus what is the vehicular surface area. Again,

2912
05:00:57,800 --> 05:01:03,260
it says you can't have the vehicular surface area within the TPI and then there is no specific

2913
05:01:03,260 --> 05:01:07,720
prohibition on the hatellar surface area within 10 feet of the TPI.

2914
05:01:08,300 --> 05:01:16,620
You don't have to go outside of UDEO section 724 to find any other context or make any

2915
05:01:16,620 --> 05:01:18,720
other interpretations or anything else.

2916
05:01:18,920 --> 05:01:19,660
It's all there.

2917
05:01:19,940 --> 05:01:22,540
You don't get to the dictionary or anything else.

2918
05:01:23,270 --> 05:01:23,980
It's all there.

2919
05:01:24,340 --> 05:01:25,260
Those are not exceptions.

2920
05:01:25,840 --> 05:01:30,280
That's just the methodology of what is set forth in 724.

2921
05:01:30,280 --> 05:01:37,760
before. It's been applied that way consistently by the city since 2013.

2922
05:01:41,970 --> 05:01:42,950
At the last appeal hearing,

2923
05:01:44,210 --> 05:01:48,570
what we heard is that the appellants wanted a transitional protective yard. They wanted

2924
05:01:48,570 --> 05:01:52,450
a screening wall. They wanted landscaping around the perimeter to protect their views

2925
05:01:52,450 --> 05:01:58,730
into the site. We actually offered that in the hearing, the appeal hearing two plus years

2926
05:01:58,730 --> 05:02:02,430
ago. And they weren't willing to accept it because they wanted to keep their options open

2927
05:02:02,430 --> 05:02:08,010
and well they appealed and here we are back the judge said provide a T.P.Y. We've provided

2928
05:02:08,010 --> 05:02:12,810
a T.P.Y. We've even provided it where we didn't have to. We provided a wall where we

2929
05:02:12,810 --> 05:02:18,570
did not have to where there's T.C.A. where there's a grade change. We have gone above and

2930
05:02:18,570 --> 05:02:26,130
beyond trying to provide them what they asked for and we've done that and we've complied

2931
05:02:26,130 --> 05:02:34,370
with the UDO at the same time so I would ask you to rely on those who have the most

2932
05:02:34,370 --> 05:02:40,970
experience with the UDO rely on what's in the UDO in section 724 and the way that the

2933
05:02:40,970 --> 05:02:45,830
city is interpreted and applied the ordinance since 2013. Thank you.

2934
05:02:49,320 --> 05:02:55,260
Okay. Any questions for any of our closing comment?

2935
05:02:57,740 --> 05:03:01,180
Okay. Well in that case I believe we bring

2936
05:03:01,180 --> 05:03:08,960
it to the table and close the hearing, close the evidentiary portion of the hearing, and

2937
05:03:08,960 --> 05:03:14,880
it's our opportunity to discuss. Now, we have two questions before, Ms. Brown. Is that

2938
05:03:14,880 --> 05:03:20,000
correct? Can you articulate the questions that we have?

2939
05:03:23,520 --> 05:03:24,320
Yeah, that's my problem.

2940
05:03:25,840 --> 05:03:30,140
So, I'm going to do it this way.

2941
05:03:31,380 --> 05:03:40,120
I am looking at the administrative appeal letter that was filed with the City of Raleigh by Mr. Justice on behalf of this client.

2942
05:03:40,720 --> 05:03:41,660
It's dated.

2943
05:03:42,560 --> 05:03:48,200
It's dated May 2, 2025, and it's part of the record that's before you.

2944
05:03:48,920 --> 05:03:50,880
Thank you, yeah, I'm looking at both of them.

2945
05:03:50,880 --> 05:03:57,660
And in that document, there are five grounds of appeals listed.

2946
05:03:58,040 --> 05:04:02,300
The fifth ground for appeal related to parking that has been withdrawn.

2947
05:04:03,920 --> 05:04:09,600
So any order, any determination you make, you need to acknowledge in that determination

2948
05:04:09,600 --> 05:04:13,360
that that was withdrawn as part of the appeal.

2949
05:04:13,360 --> 05:04:23,900
So, the first item in the appeal list is that relates to open space.

2950
05:04:25,140 --> 05:04:32,720
It is this item that to which the motion to dismiss on the grounds of breast judicative collateral

2951
05:04:32,720 --> 05:04:42,560
stop is directed in that particular, in that particular question, the question before

2952
05:04:42,560 --> 05:04:53,440
for you is whether the methodology of the open space was previously litigated and determined

2953
05:04:53,440 --> 05:04:54,180
by the board.

2954
05:04:56,880 --> 05:05:03,720
The second issue that is before you involves buildings or structures within the T.P.Y.,

2955
05:05:03,720 --> 05:05:07,420
that's before you to decide based on your interpretation of the ordinance.

2956
05:05:08,200 --> 05:05:16,720
section three or the question three was if there's a retaining law allowed it is exceeds

2957
05:05:16,720 --> 05:05:24,020
the maximum height and four is that a wall may not exceed a certain height in a rear

2958
05:05:24,020 --> 05:05:32,560
or side setback. So unless I've misunderstood the city's motion, their motion on ratio

2959
05:05:32,560 --> 05:05:33,460
Judicada collateral.

2960
05:05:33,460 --> 05:05:38,880
Stoppel really goes to the open space analysis, which is the first item of the appeal,

2961
05:05:39,400 --> 05:05:47,580
and not to the questions about structures in the TPI or about the height of the walls

2962
05:05:47,580 --> 05:05:48,400
in the TPI.

2963
05:05:48,620 --> 05:05:50,020
Those issues would be separate.

2964
05:05:50,900 --> 05:05:52,140
Did that help or make it worse?

2965
05:05:52,320 --> 05:05:52,740
No, that helped.

2966
05:05:53,180 --> 05:05:55,000
So there are two items.

2967
05:05:55,860 --> 05:05:59,780
The first, the Res Judicada, and then the second would be the Meritz case, which is

2968
05:05:59,780 --> 05:06:01,120
items 2, 3, and 4.

2969
05:06:01,120 --> 05:06:02,020
Right.

2970
05:06:02,220 --> 05:06:11,100
If you were to determine that the earlier case had decided the issues that are raised

2971
05:06:11,100 --> 05:06:16,020
in paragraph one of the appeal, that's your raised judicata and collateral, a stop

2972
05:06:16,020 --> 05:06:20,000
of determination in any event you need to deal with two, two, three, and four.

2973
05:06:20,340 --> 05:06:20,440
Yeah.

2974
05:06:20,500 --> 05:06:20,660
Good.

2975
05:06:20,780 --> 05:06:23,420
I was going to say we should do both.

2976
05:06:23,680 --> 05:06:25,060
Thank you for clarifying that.

2977
05:06:25,800 --> 05:06:26,180
Okay.

2978
05:06:26,180 --> 05:06:32,980
Okay, so let's start with the rest due to Cata, the first item, which was as she said

2979
05:06:32,980 --> 05:06:39,020
refers to about the open space issue, I would remind you, the quorum was four, we opened

2980
05:06:39,020 --> 05:06:43,920
with a quorum, you need a majority, that would be three votes, so our decision has to be a

2981
05:06:43,920 --> 05:06:52,040
three vote decision in any manner, or it can be a split, but it takes three votes to reach

2982
05:06:52,040 --> 05:06:54,560
approval or denial.

2983
05:06:54,960 --> 05:06:56,600
Takes three votes for you to act.

2984
05:06:56,920 --> 05:06:57,020
Yeah.

2985
05:06:57,780 --> 05:06:58,040
Yeah.

2986
05:07:02,480 --> 05:07:02,960
Any thoughts?

2987
05:07:03,880 --> 05:07:10,720
So the compact subdivision section, which is the section 2.3 and then has points after

2988
05:07:10,720 --> 05:07:11,140
it, right?

2989
05:07:12,340 --> 05:07:17,520
That's the compact subdivision or compact development section, right?

2990
05:07:17,960 --> 05:07:20,860
We have that somewhere here.

2991
05:07:21,600 --> 05:07:28,340
You do have it somewhere, probably the easiest, it's got it in multiple places, but-

2992
05:07:28,340 --> 05:07:28,960
Yeah, I got it earlier.

2993
05:07:30,220 --> 05:07:40,720
So that was on the January 27, 2023 point two of the appeal, the project does not meet

2994
05:07:40,720 --> 05:07:46,460
the standards for a compact development outline below and therefore the townhouse slash use building

2995
05:07:46,460 --> 05:07:47,780
type is not permitted.

2996
05:07:49,340 --> 05:07:57,120
that was raised, and then it was raised again here, so it was raised on the initial appeal.

2997
05:07:59,920 --> 05:08:09,040
I would sustain, is that what we're, I mean, that is the right term, but the right term.

2998
05:08:09,440 --> 05:08:13,900
Your term you're searching for is you would either grant or deny the motion to dismiss.

2999
05:08:14,520 --> 05:08:31,360
I would move to grant the motion to dismiss on the grounds that it was litigated because it was raised on and in the court had to look at it, which they did look at it,

3000
05:08:31,360 --> 05:08:38,940
the NOVO and determined that all the requirements were met except for the transition protected

3001
05:08:38,940 --> 05:08:39,220
yard.

3002
05:08:39,920 --> 05:08:40,600
Okay.

3003
05:08:40,860 --> 05:08:47,580
So we have a motion to grant the motion to dismiss and do we have a second?

3004
05:08:50,150 --> 05:08:50,770
A second.

3005
05:08:51,230 --> 05:08:57,250
You have a motion to grant motion to dismiss and second it any further discussion.

3006
05:08:59,270 --> 05:09:00,990
All those in favor say aye.

3007
05:09:02,470 --> 05:09:07,610
I pose no with three votes to dismiss.

3008
05:09:08,550 --> 05:09:15,270
Okay, that's the rest due to Cata and a stop of collateral, collateral, a stop of pardon me if I don't get the terms right.

3009
05:09:15,810 --> 05:09:18,190
So the second item is speaks to the merits.

3010
05:09:19,310 --> 05:09:24,050
This is the transitional protective yard, the building or structure question, and

3011
05:09:24,050 --> 05:09:28,290
the retaining wall, a couple of questions about the retaining wall,

3012
05:09:30,800 --> 05:09:31,520
your thoughts.

3013
05:09:31,520 --> 05:09:32,580
I

3014
05:09:37,160 --> 05:09:53,680
would offer, I thought, I think I understand there's a lot of vaguely in the language and I think it's so difficult to write language that covers every eventuality.

3015
05:09:54,000 --> 05:10:01,300
So lots of times there is language that is left somewhat vague purposely or accidentally that then requires interpretation.

3016
05:10:01,300 --> 05:10:09,360
That's why we have people who are given the responsibility to interpret and apply our ordinances.

3017
05:10:11,160 --> 05:10:16,400
Likewise, we have the opportunity to question those interpretations, which is what's happening here.

3018
05:10:17,980 --> 05:10:18,620
I

3019
05:10:20,760 --> 05:10:25,240
think that the notion of building or structure can be very clear.

3020
05:10:25,240 --> 05:10:33,800
I do not, while I concede that a road is constructed, I do not think that by default that makes

3021
05:10:33,800 --> 05:10:42,240
it a structure. I have a very hard time understanding a road as a structure. So I don't see that

3022
05:10:42,240 --> 05:10:52,260
is the issue here. If you therefore disagree and believe that a road qualifies as a structure,

3023
05:10:52,260 --> 05:10:56,400
we need to hear that so that we can move on to these other two items.

3024
05:10:57,920 --> 05:10:59,740
Or offer other other thoughts?

3025
05:11:01,280 --> 05:11:08,360
I would agree with you because I think it also goes to the fact that they are outlined.

3026
05:11:08,480 --> 05:11:13,860
I know that that's kind of an interesting point, but they are specifically outlined.

3027
05:11:15,400 --> 05:11:21,600
So I do agree with you there is ambiguity, but I don't think it was the intent to consider

3028
05:11:21,600 --> 05:11:22,520
road structure.

3029
05:11:25,130 --> 05:11:30,870
The other items regarding, would we need to itemize, address each of these

3030
05:11:30,870 --> 05:11:38,890
items separately, or can we do them as a collective unit? You may do them either way. If you

3031
05:11:38,890 --> 05:11:48,430
go back and look at the appeal in item two, the building and structure argument there is

3032
05:11:48,430 --> 05:11:59,940
It relates to the road and it also relates to retaining walls or walls in the structure.

3033
05:12:00,140 --> 05:12:04,640
So I just want to remind you that you need to recapture the walls and into as well.

3034
05:12:05,000 --> 05:12:06,520
Right, thank you.

3035
05:12:08,780 --> 05:12:13,880
That would be two and three because three, they're saying even if it's a retaining, okay, sorry.

3036
05:12:14,180 --> 05:12:21,740
It's two and three and four, two addressed roads and retaining walls or walls.

3037
05:12:21,740 --> 05:12:24,920
right. Three and four also addressed walls.

3038
05:12:46,040 --> 05:12:48,440
Are you studying? Yeah I'm just a

3039
05:12:48,440 --> 05:12:57,090
little. I believe we talked with their expert and he said I asked if there was

3040
05:12:57,090 --> 05:13:05,330
anything that says a retaining wall is not a wall and he said no.

3041
05:13:10,920 --> 05:13:11,340
They seem to

3042
05:13:11,340 --> 05:13:13,540
be allowed under the code?

3043
05:13:18,080 --> 05:13:18,460
I see.

3044
05:13:18,680 --> 05:13:19,440
I agree.

3045
05:13:28,610 --> 05:13:29,990
And I do not.

3046
05:13:30,130 --> 05:13:35,110
I never heard any argument about the wall exceeding eight feet.

3047
05:13:35,410 --> 05:13:38,270
We had some question of what's the minimum, six and a half feet to eight feet.

3048
05:13:39,010 --> 05:13:43,190
And then which is because there's both of these.

3049
05:13:43,390 --> 05:13:44,330
And there's the,

3050
05:13:46,900 --> 05:13:49,320
and they're talking about a retaining wall exceeding eight feet.

3051
05:13:49,660 --> 05:13:50,620
I don't.

3052
05:13:50,620 --> 05:14:02,520
I don't recall that being argued to any extent, retaining wallbots nature to be a retaining

3053
05:14:02,520 --> 05:14:11,980
wall has to hold back whatever area it's retaining, it can be tiered, stair-stepped.

3054
05:14:12,720 --> 05:14:16,780
But if there is a maximum, it shouldn't exceed that.

3055
05:14:17,780 --> 05:14:18,060
Right.

3056
05:14:18,060 --> 05:14:18,600
I

3057
05:14:25,320 --> 05:14:27,800
don't remember seeing any dimensions on retaining walls.

3058
05:14:28,100 --> 05:14:28,460
I

3059
05:14:34,100 --> 05:14:34,960
can't remember either.

3060
05:15:02,100 --> 05:15:07,880
There are other points in the returning walls. They're not dimensioned.

3061
05:15:13,180 --> 05:15:15,320
For ease of reference,

3062
05:15:16,740 --> 05:15:22,340
as I said, I was trying to find your ordinance provision so you can be looking at them.

3063
05:15:24,240 --> 05:15:29,440
They're in the record in several different places. For ease of reference, they're included

3064
05:15:29,440 --> 05:15:34,460
In the back of the smallest notebook, it's easier to hold there at the very back,

3065
05:15:34,740 --> 05:15:43,440
article 7.2, section 7.2.4, protective yards, section 7.2.8, walls and fences.

3066
05:15:43,740 --> 05:15:47,220
And I think those are the ones that are addressed in the appeal that you may want to look at.

3067
05:15:47,220 --> 05:15:47,720
I'll

3068
05:16:56,330 --> 05:17:02,870
just say that we do have evidence of that in the, in the Donald affidavit as opposed to just the,

3069
05:17:03,290 --> 05:17:06,690
just the, and, and, and, Rometta's testimony.

3070
05:17:06,910 --> 05:17:11,690
I don't want to interrupt, but there was evidence on our side.

3071
05:17:12,750 --> 05:17:18,210
Mr. Chairman, I, it is kind of interesting that Council is now pointing out things.

3072
05:17:18,450 --> 05:17:20,030
I tried not to interrupt you before.

3073
05:17:20,030 --> 05:17:25,930
or at the end of the day, you are dealing with the smallest issue on the plate.

3074
05:17:28,830 --> 05:17:29,330
Thank you.

3075
05:17:30,610 --> 05:17:32,190
Having made the wrong decision.

3076
05:17:32,330 --> 05:17:32,550
Okay,

3077
05:17:34,830 --> 05:17:35,370
well,

3078
05:17:37,860 --> 05:17:39,160
moving this along,

3079
05:17:41,170 --> 05:17:44,910
we can do these three items collectively or individually.

3080
05:17:46,430 --> 05:17:47,070
And

3081
05:17:51,580 --> 05:17:52,980
so a

3082
05:17:55,960 --> 05:18:01,300
motion in this regard, if

3083
05:18:16,820 --> 05:18:20,300
so a possible motion.

3084
05:18:21,040 --> 05:18:36,880
regarding the required transitional protective yard and then building and structure question and the road and wall's question followed by the retaining wall height followed by

3085
05:18:38,580 --> 05:18:40,860
retaining wall height in the rear and set back here.

3086
05:18:41,880 --> 05:18:46,380
Should we deal with them separately? Do you understand enough to deal with them collectively?

3087
05:18:46,380 --> 05:18:49,440
What do you think you want to do with them separately?

3088
05:18:50,080 --> 05:19:00,580
It seems like it's allowed as an encroachment under D walls in a protective yard unless

3089
05:19:00,580 --> 05:19:01,420
meet the following.

3090
05:19:03,550 --> 05:19:05,690
I would read that they're allowed in the protective yard.

3091
05:19:06,090 --> 05:19:06,190
Yeah.

3092
05:19:08,940 --> 05:19:09,160
Okay.

3093
05:19:09,420 --> 05:19:10,700
So, get back to the question.

3094
05:19:10,840 --> 05:19:16,800
Do you want to take these three items as a collective motion or check them off?

3095
05:19:19,540 --> 05:19:30,780
If there's a question later, if this goes to appeal, they will look at it collectively or individually, however, based on how are we choose to move.

3096
05:19:35,020 --> 05:19:43,900
You can choose to do a detailed analysis for each one looking at the ordinate sections and opining as to why you think it's interpreted that way.

3097
05:19:43,900 --> 05:19:49,520
you can look at the three in tandem and determine whether the staff has correctly

3098
05:19:49,520 --> 05:19:59,060
interpreted the ordinance as to the location of walls in the TPI as to the location of roads

3099
05:19:59,920 --> 05:20:04,840
and as to the height of the buildings because the question before you really is

3100
05:20:04,840 --> 05:20:11,660
is whether or not you are upholding the decision of the administrator to grant the permit based

3101
05:20:11,660 --> 05:20:12,860
on these factors.

3102
05:20:13,420 --> 05:20:13,680
Okay.

3103
05:20:14,240 --> 05:20:22,300
With that, I would acknowledge that item 5 about parking has been withdrawn, then I would

3104
05:20:22,300 --> 05:20:31,820
move that we uphold the decision of the administrator that the UDO and provisions have been met

3105
05:20:31,820 --> 05:20:36,360
by the application that was submitted by the property under slash developer.

3106
05:20:36,940 --> 05:20:38,700
Is that a reasonable motion?

3107
05:20:38,700 --> 05:20:39,760
Yes, sir.

3108
05:20:39,860 --> 05:20:47,120
I think that's a correctly articulated motion for consideration by the board of the options available to you.

3109
05:20:47,400 --> 05:20:50,000
Okay. I have made a motion. Is there a second?

3110
05:20:55,160 --> 05:20:55,580
A second.

3111
05:20:55,960 --> 05:20:58,180
Okay. We have a motion and a second. Further discussion?

3112
05:21:02,330 --> 05:21:03,690
All those in favor say aye.

3113
05:21:04,270 --> 05:21:04,470
Aye.

3114
05:21:05,430 --> 05:21:10,610
Those no. I have motion carries as well. Is there any other business before us today?

3115
05:21:10,610 --> 05:21:18,730
I believe the only item on your agenda today was the completion of this hearing and so no there's not.

3116
05:21:19,530 --> 05:21:28,730
Thank you all for the time you've given to this issue. It's an important issue. I understand for all involved and thank you for your patients as well as we've worked through this.

3117
05:21:29,150 --> 05:21:30,010
Stand adjourned.

3118
05:21:30,010 --> 05:21:35,090
For the panic, thank you, too.