[48:52] 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.

[49:20] As you observe, we are without an official court reporter, we do normally and we'll record

[49:28] this meeting.

[49:29] It's imperative that everyone consciously use the microphone, so we'll have the proper

[49:34] record so it can then be given a proper recording by the court.

[49:40] So I'll try to remind you from time to time if necessary, but please be conscious of that.

[49:46] So Ms. Brown, is there anything else I need by way of introduction?

[49:50] No, it's a continuation of the hearing.

[49:52] We can pick up where we left off.

[49:55] I believe that we had a witness on the stand and that the city attorney's office and

[50:04] the developer and property owner were getting ready for cross.

[50:07] And I'm not sure which of them was going first.

[50:10] Okay.

[50:10] Thank you.

[50:11] So Ms. Tatum.

[50:12] Are you ready to go?

[50:16] Pardon me?

[50:17] Are you ready to go?

[50:19] Yes, sir.

[50:19] Then it's your turn.

[50:34] Are we ready?

[50:34] Yes, ma'am.

[50:35] Okay.

[50:36] Do you call your witness?

[50:37] Do you want to clarify that we are starting our case?

[50:39] And this is direct examination for our first witness?

[50:42] Okay.

[50:43] And again, just consciously, be sure we're using microphones.

[50:47] Ms. Brown?

[50:48] I must say, I'm just to be sure we're all on the same page.

[50:52] So the witness was on the stand.

[50:54] I'm not sure whether you or Mr. Birch had cross-examined him,

[50:57] 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?

[51:02] Yeah, that's correct and that's what we stated on the record last right at the end of the last meeting

[51:07] That was my recollection right. I wanted to be sure that we were all on the same page. Thank you. Thank you. Okay

[51:14] Okay, we'd like to call Keegan MacDonald and Mr. MacDonald. You're still under oath

[51:28] Good afternoon, Mr. MacDonald

[51:30] As you know, I'm Robin Tatum and I represent the city and the sport of adjustment appeal

[51:35] Can you state your name for the record?

[51:38] Keegan McDonald.

[51:39] Okay, and can you again, I'm sorry if it's repetitious, but can you again state how

[51:45] you're employed?

[51:47] Sure, so I'm the Land Development Manager here at the City of Raleigh, oversee plan and

[51:52] permit reviews for compliance with the unified development ordinance.

[51:56] Okay, and how long have you been with the city and what have your positions been?

[52:01] So I've been employed with the city since December 2018, first as a senior planner in our zoning administration unit in March 2021.

[52:10] I was promoted to planning supervisor, where I oversaw amendments to the unified development ordinance.

[52:16] And then in August 2024, I was promoted to my current role as land development manager.

[52:21] Okay, thank you and can you state a little bit about your educational background?

[52:25] 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.

[52:42] Okay, and are you familiar with the Raleigh UDO?

[52:45] Yes, very familiar. Utilize it daily to administer my primary work responsibilities.

[52:50] Okay. Are you also familiar with the text change from the summer of 2021 known as Missing

[52:57] Middle 1.0?

[53:00] Yes.

[53:00] Okay. And did Missing Middle 1.0 expand the density for townhouses in the R4 district?

[53:11] Yes. The Missing Middle 1 text change specifically allowed townhouses in R4 as part of a compact

[53:17] development. And before they were allowed in what type of development? I believe it was only

[53:23] conservation. Okay. Since missing middle was enacted and became effective. Have you worked

[53:31] regularly administering those ordinances? Yes I have. Okay. Can you just kind of summarize, you know,

[53:38] how you've interacted with the ordinances and what you've done? Sure. So my previous role I was involved

[53:45] involved in the drafting process and the eventual adoption of those text changes, so working

[53:50] with the actual text.

[53:52] In my current role as Land Development Manager, I assist a team of plan reviewers when

[53:58] they have questions about how to apply the code, also training general education, and one

[54:05] of my core functions is also reviewing each of our preliminary plans, so in this case subdivision

[54:10] plan for compliance and signing the administrative approval letter, which is sort of that final

[54:16] step at the end of the entitlement phase.

[54:19] Okay.

[54:19] So are you familiar with the appeal?

[54:21] In this case, that's filed by the property owners, the Solux and the Binx.

[54:26] Yes, I am familiar.

[54:27] Okay.

[54:27] And how are you familiar with that?

[54:31] I approved and signed the approval for the compact subdivision plan.

[54:37] and dated approval was on April 4th, 2025, and also reviewed the appeal that followed

[54:46] to.

[54:47] Okay.

[54:48] So, part of your job responsibilities was to check all aspects of that plan for UDO compliance.

[54:55] Yes.

[54:56] And you concluded that it did comply with the UDO?

[54:59] Yes.

[55:00] And you signed that, signed off on the plan, if you will.

[55:03] Yes, that's correct.

[55:05] Okay.

[55:05] Okay. If a subdivision plan is compliant, do you have any discretion to deny that plan?

[55:13] No, we're compelled to approve the plan if it's compliant.

[55:18] Have you reviewed the grounds for appeal for the case that's before the board today?

[55:25] Yes, I have reviewed them.

[55:27] Okay.

[55:27] And in your opinion or any of those grounds, do any of those grounds have merits?

[55:34] Correct.

[55:34] No, I don't believe any of the grounds have merit because the plan was approved in accordance

[55:39] with the video.

[55:40] Mr. Chairman, I'm just going to have a general objection.

[55:44] I did this last time around.

[55:47] The witness that we had offered up, Jose offered up as an expert in civil engineering.

[55:53] As a civil engineer, they deal with structures, they deal with spatial measurements, they deal

[55:58] with a lot of things about putting projects together.

[56:01] I didn't ask him to be an expert on how to read the ordinance, you know, to take plain

[56:10] language and rewrite it or so there was a difference between my witness and this witness.

[56:17] Obviously, he can give an opinion, but in terms of the weight of his opinion as an expert

[56:24] or to the extent that he is saying this is how to read the ordinance.

[56:28] These are all functions of the board, exercising legal responsibilities and ultimately of a court of law.

[56:35] 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.

[56:44] I'm just, that's a general objection I made last time around.

[56:47] Yes, sir.

[56:47] Thank you for that.

[56:49] Okay, and I'll just respond to say that Mr. McDonald is a fact witness.

[56:54] He actually is the person who reviewed it and made that call.

[56:58] So, I think that he is confident to testify whether he thought what he did was correct.

[57:03] I'd like to approach right now and hand Mr. McDonald what has been marked as the city's exhibit one

[57:10] and ask you if you can identify that.

[57:13] I will tell everybody else that that is in your notebooks as number three.

[57:19] It is the, I'll let you say what it is.

[57:22] Yeah, this is a affidavit that I prepared and signed dated July 15, 2025.

[57:32] And is the information in the affidavit correct?

[57:35] Yes.

[57:36] We'd like to move to have his affidavit, admitted?

[57:40] Mr. Chairman, the same general, the same objection.

[57:44] If you read his affidavit in many places, he, this witness rewrites the ordinance.

[57:50] 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.

[58:01] 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.

[58:10] Okay, do you really note it?

[58:12] Okay, if you could at this time, do you are you aware that one of the arguments of the

[58:27] appellance is that the current plan does not comply with the open space requirements

[58:33] of the UDO?

[58:35] Yes.

[58:36] Okay.

[58:36] And can you tell me what those requirements are?

[58:39] 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.

[58:56] Okay.

[58:59] How big does it have to be?

[59:00] 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.

[59:20] What's the total open space requirement?

[59:22] 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.

[59:30] Okay, is that met?

[59:32] It is met, so they're providing 1.137 acres of open space.

[59:36] Continuing with my objection, Mr. Chair.

[59:39] 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.

[59:48] So, I'm not trying to say as an expert, I'm saying he's the person charged with this responsibility.

[59:54] He reviewed it, that's his job, and I think we can ask him that.

[59:58] I'm not saying you have to.

[1:00:00] 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,

[1:00:28] which is in a part of the record, Miss Tatum, that's a good opportunity for me as a housekeeping matter.

[1:00:35] The tail end of the last hearing, you city's exhibit one was marked as the approved plan.

[1:00:41] So I believe his affidavit is two and what you're looking at now is one.

[1:00:45] Okay, that's fine, thank you.

[1:00:49] Okay, that's the current approved plan that's before the board today.

[1:00:54] Yes, this is the current approved plan specifically sheet CE 2.0.

[1:00:59] Okay, and can you explain to the board how open space was calculated for purposes of WIT?

[1:01:05] Certainly. So as I mentioned there's two open space areas shown on the plan. There's one

[1:01:11] towards sort of the perimeter and I realize it's going a little off-screen here and then there's one

[1:01:15] in the center kind of marked in this darker gray area. So what we were looking at to assure

[1:01:21] compliance with the minimum WIT requirement is that within each of these open space areas there's

[1:01:28] at least 150 by 50 square.

[1:01:31] So obviously this is not a dimension,

[1:01:33] but just to give you a sense for how we looked at it

[1:01:35] for each open space area.

[1:01:37] And that's one, where's the other?

[1:01:39] So believe there's actually two,

[1:01:41] there's one can be drawn here,

[1:01:42] and then also in the other corner.

[1:01:45] Okay.

[1:01:45] Mr. Chairman, just for clarification,

[1:01:48] I do think it's helpful for the record

[1:01:50] that that red shows up since it was marked.

[1:01:53] Is there any way to continue on that depiction?

[1:01:56] We don't have a court reporter

[1:01:57] and well I think it will be on the video okay that's fine I've got it I'll make

[1:02:07] him draw it again okay so once those 50 that 50 by 50 what what has that

[1:02:14] previously been categorized as a 50 by 50 block at a previous hearing yes okay

[1:02:20] and outside of that block does any other area have to be 50 feet and width no

[1:02:27] So we've interpreted that the open space can narrow below 50 feet.

[1:02:31] Okay, as long as that block is met.

[1:02:33] That's correct.

[1:02:34] Okay, and is that the same interpretation that you used or the city used for the approval of the first 908 Williamson case?

[1:02:41] Yes, that's correct.

[1:02:42] And is that the same formula that you have used routinely for open space measurements at the city of Raleigh throughout the years?

[1:02:52] Yes.

[1:02:52] Has there ever been an appeal or any challenge to that interpretation?

[1:02:57] Other than the original appeal for this particular subdivision, not to my knowledge.

[1:03:02] And when did that go into effect?

[1:03:04] The rules concerning open space.

[1:03:06] Yes.

[1:03:06] I believe they were included with the original adoption of the InFi development ordinance

[1:03:10] back in 2013.

[1:03:11] So this is not a missing middle rule.

[1:03:13] No, the compact and conservation development options proceed missing middle.

[1:03:18] Okay.

[1:03:18] So this has been a rule that's been 12 years in the UDO.

[1:03:23] Yes.

[1:03:24] Sounds right.

[1:03:24] Okay, so you heard the testimony of the appellant expert who testified that that needed to be 50 feet

[1:03:35] everywhere, but if it wasn't, it would be okay to be less than 50 if you could throw a football.

[1:03:42] Is that correct? I did hear that testimony, yes. Does the UDO support that at all? No, we've

[1:03:49] interpreted the 50 foot with requirement has previously stated. Okay, and it wouldn't be any different

[1:03:54] whether you played football or cornhole, correct?

[1:03:58] No, it would not be any different.

[1:03:59] Okay, can you pull up the first plan?

[1:04:12] Okay, so that shows the plan that was approved in 2022

[1:04:17] was the open space calculated in the same way as for the second plan?

[1:04:23] Yes. Okay, and where were the 50 foot blocks in that particular plan?

[1:04:30] So, believe the 50-foot blocks, I mean in this particular instance, I will note there

[1:04:35] were three open space areas, so there's still one larger center area, so I'd have to

[1:04:41] use a measuring tool and software to provide the exact dimensions, but again-

[1:04:46] The approximate.

[1:04:47] What approximate?

[1:04:48] Fitting one 50 by 50 block here, one here, and then one in this area.

[1:04:54] Okay. Are there areas outside of those 350-foot blocks that are not 50 feet in width?

[1:05:02] Yes. They're particularly in the center courtyard area. There are some spaces within the larger

[1:05:09] open space that narrow less than 50 feet, so here and here.

[1:05:15] Okay. So when the staff decided to approve the first plan, they used the same calculation as the

[1:05:22] second plan. That's correct. Okay so if so if in fact that you are not allowed to use you

[1:05:33] were required to have 50 foot blocks all across the open space that would have rendered

[1:05:37] this this other plan illegal as well correct. Would have posed a challenge it probably would

[1:05:44] have reduced the open space below the required acre minimum. Okay but that was not what this

[1:05:48] board held? No. Okay.

[1:05:59] Okay. And just to clean up one thing, I know that Mr. Justice is going

[1:06:04] to say he's dropped the parking, but just for the record since you are our witness. Is there any

[1:06:09] parking required, vehicular parking, or bike parking required under the UDO for the second plan at

[1:06:16] all? No, there's not. Okay. That's all I have. I'm going to turn it over to Mr. Birch.

[1:06:23] Thank you.

[1:06:25] Keegan, if you could, have you reviewed the affidavit and report of Jose Martinez?

[1:06:32] I have, and have you reviewed the alleged Judeo-compliance issues identified by Mr. Martinez in that report?

[1:06:44] Yes, I have.

[1:06:46] And I believe the first issue relates to open space, specifically the measurement of open space.

[1:06:52] So I don't know if you have a copy of his affidavit.

[1:06:58] I have one I can retrieve if you have one handy.

[1:07:00] If you could, please,

[1:07:13] believe the board also has a copy of Mr. Martinez as affidavit.

[1:07:17] So,

[1:07:21] Keegan, I'm going to ask you to please find your way to figure one in his report, which is on page five.

[1:07:33] Yes.

[1:07:34] Can you describe Figure 1?

[1:07:37] Sure.

[1:07:38] So Figure 1 is an overlay.

[1:07:41] It depicts the current approved plan and overtop in red shading.

[1:07:48] There is the open space that was approved as part of the original subdivision.

[1:07:53] Yes.

[1:07:54] Great.

[1:07:55] So again, I know I asked you a few times, but again, can you describe the methodology

[1:07:59] for measuring and qualifying the open space and plan one?

[1:08:04] Sure, so again, we wanted to ensure that the total amount of open space provided met the minimum requirement,

[1:08:12] so 1 acre or 20 percent, in this case 1 acre.

[1:08:15] Also looking at the minimum width is satisfied.

[1:08:19] Can you fit a 50 by 50 block in each of the required open space areas?

[1:08:25] and also that at least 60% of the minimum required open space area is contiguous.

[1:08:33] And once the city's determined that there's a 50 by 50 box in an open space,

[1:08:41] how does the city consider the areas contiguous to that 50 by 50 box?

[1:08:50] Yeah, we ensure that the open space meets one of our requirements through the primary

[1:08:55] secondary tertiary list and that it is otherwise connected and shares a common border with

[1:09:02] that open space area.

[1:09:04] So open space areas that are contiguous or part of an overall area that includes a 55-55-50

[1:09:11] block, are those contiguous areas considered as qualified, compliant open space?

[1:09:17] Yes, as long as it's connected to a space that contains that 50 by 50 block, we'd consider it continuous.

[1:09:27] Going back to Figure 1.

[1:09:31] I want to highlight kind of two areas here.

[1:09:35] Call them the triangle areas.

[1:09:37] So, it's a portion south of Lot 1.

[1:09:42] And a portion of the open space there in the center that's east of Lot 17.

[1:09:50] So the interior dimension of those triangles, is there a point at which the dimension of that area is less than 50 feet?

[1:10:01] Yes, for both of them, it appears there is a dimension that's less than 50 feet.

[1:10:05] So it kind of narrows to something less.

[1:10:07] That's correct.

[1:10:10] So

[1:10:13] 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?

[1:10:28] 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.

[1:10:45] 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.

[1:10:58] most recent plan that's been appealed?

[1:11:00] Yes, it's the same methodology.

[1:11:04] And based on this methodology, used in plan one being used again,

[1:11:09] did the open space areas provided by plan two,

[1:11:14] did those meet the UDO standards and qualify as compliant open space?

[1:11:19] Yes.

[1:11:28] Again, if you could demonstrate you have the,

[1:11:31] I don't know if you're able to pull up the current plan there.

[1:11:34] So, is there a 55 by 50 block there in the center portion of the open space?

[1:11:42] Yes.

[1:11:44] And then the other areas, yes, there are areas contiguous to that also within the center,

[1:11:50] kind of as it winds around the lots.

[1:11:53] Yes, so there are some other areas, particularly once you kind of go beyond the first collection

[1:11:58] of townhouses here and here and here.

[1:12:00] Great. And again, all that area is considered as qualified open space meeting the standards of 2.5.

[1:12:08] That's correct.

[1:12:10] So the other open space area around the perimeter there. Is there a 50 by 50 block that's located

[1:12:18] within that perimeter open space area? Yes.

[1:12:23] And does it appear that the other open space areas claim to be, are they contiguous with that area

[1:12:30] that has a 50 by 50 block?

[1:12:31] Yes, yeah, namely the protective yard that sort of rings this site.

[1:12:38] And in this plan two, do all of the lots a join some of the qualified open space?

[1:12:45] They do.

[1:12:47] Okay.

[1:12:47] And were the open space areas in plan one, the first plan deemed to be accessible as wired

[1:12:53] in Article 2.5?

[1:12:56] Yes.

[1:12:57] And were the open space areas in the most recent plan two determined to be

[1:13:02] accessible as well. Yes.

[1:13:07] Alright, so I

[1:13:11] want to just clarify because this was a discussion in the

[1:13:16] first appeal. The open space that is provided as part of this plan, too, is the open space kind

[1:13:25] of Article 2.5, is that different than just an open lot under the code? It contains additional

[1:13:32] requirements, that's right, it is different.

[1:13:36] So again, I want to kind of speak to now the transitional protective yard standards

[1:13:44] and speak to some of the allowable encroachments there.

[1:13:47] So are you familiar with the appellance arguments regarding encroachments into and

[1:13:54] within 10 feet of the transitional protective yard?

[1:13:57] Yes.

[1:13:58] 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?

[1:14:10] I do not.

[1:14:11] Again, a continuing objection, Mr. Chairman.

[1:14:15] 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.

[1:14:23] So let's focus on walls within the T-P-Y.

[1:14:28] So what type of transitional protective yard is being provided by this plan?

[1:14:34] It's a B-1 transitional protective yard.

[1:14:38] And is a wall required as part of the B-1?

[1:14:41] It is required.

[1:14:44] And are walls permitted within a transitional protective yard of a B-1?

[1:14:50] Yes, they're explicitly permitted and then what what UDO section governs?

[1:15:00] 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.

[1:15:29] and that includes 7.2.4.

[1:15:39] Could you direct us a little better to where that would be?

[1:15:42] Yes, so it's tab 5, I believe, in the, excuse me, in the BOA hearing notebook, tab 4.

[1:15:53] We don't have a tab 5.

[1:15:54] Yeah, tab 4.

[1:15:55] Okay.

[1:15:57] Okay, great.

[1:15:58] Thank you.

[1:15:58] Yeah, he has it up, but it's a, we're in section 7.2.4.

[1:16:04] Thank you.

[1:16:04] put to that.

[1:16:15] And then which UDF section governs allowable uses or encroachments within the transitional protective yard?

[1:16:22] So encroachments are 724D as shown on the screen, and that is where we get more information pertaining to walls.

[1:16:35] You said walls are permitted within the transitional protective yard. Does this provision allow allowing walls within the transitional protective yard?

[1:16:44] Is that applied to all walls?

[1:16:46] Yes, we've interpreted it to include all walls.

[1:16:50] Is there anything any provision in this UDO that limits the number of walls that can be located within a transitional protective yard?

[1:16:57] No.

[1:16:59] Anything that limits the number of walls specifically within a type B1?

[1:17:03] No.

[1:17:05] Is there any UDO provision stating that the only wall allowed within the transitional protective yard is the screening wall?

[1:17:14] No.

[1:17:17] Is there a UDO provision that expressly prohibits a retaining wall from being located within the

[1:17:22] T.P.Y.?

[1:17:23] No.

[1:17:24] Okay.

[1:17:25] This provision that we're looking at, 7, 2, 4, D, does this provision even distinguish

[1:17:33] between the type of walls that are permitted within the transitional protective yard, for

[1:17:39] example, between retaining wall and screening wall?

[1:17:42] No, it just uses the term walls.

[1:17:45] So, again, in your opinion, are all walls permitted within a type B1 transitional protective

[1:17:51] yard?

[1:17:52] Assuming they meet the requirements in 724D, then yes.

[1:18:02] So in another section of the UDO, is there any difference or distinguishment made between types

[1:18:14] of walls?

[1:18:15] Yes, in section 728 there is distinguishing between different types of walls.

[1:18:22] Okay, great.

[1:18:27] And so in just to clarify, what does UDO section 7.2.8 govern?

[1:18:34] So, UDO section 7.2.8 specifically governs walls and fences that are located outside of a protective yard or required screening area.

[1:18:46] And how does this section distinguish between walls with different types of walls?

[1:18:53] Yeah, so it provides requirements, you know, general standards, but then it gets more specific

[1:19:00] to include retaining walls, as you can see in the subsection D, and then also building foundation walls and subsection E.

[1:19:08] 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.

[1:19:23] That's correct.

[1:19:26] 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.

[1:19:37] are those within the same article of the UDO?

[1:19:41] Yes, they are.

[1:19:43] Article 7.2, what does that govern?

[1:19:46] Landscaping and screening.

[1:19:51] So again, within the same article,

[1:19:53] you've got UDO section 724, protective yards.

[1:19:58] There's not a distinction between types of walls.

[1:20:00] Is that correct?

[1:20:02] In 724, there's not.

[1:20:04] But what about 728?

[1:20:06] There is a distinction.

[1:20:07] And based on this, in your opinion, do the drafters of the UDO know how to distinguish between

[1:20:15] different types of walls if they wanted to?

[1:20:18] Objection.

[1:20:20] Oh, same.

[1:20:21] That's the way he can.

[1:20:23] Have you participated in the drafting of text changes in UDO provisions?

[1:20:27] Yes.

[1:20:28] And as someone who has drafted text changes in UDO provisions, do you know how to distinguish between

[1:20:33] different types of walls when you want to?

[1:20:36] Yes.

[1:20:39] So just a recap,

[1:20:48] 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?

[1:21:00] Yes, assuming it meets those requirements, that's correct.

[1:21:03] And can any number of walls be located within a type B1?

[1:21:08] Yes, that's correct.

[1:21:10] 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.

[1:21:27] You mentioned you had reviewed the affidavit and report of Jose Martinez.

[1:21:32] He gave some opinions about walls, walls within the T.P.Y. Do you agree with any of his opinions

[1:21:39] as to walls within the transitional protective yard or even within 10 feet of a transitional protective yard?

[1:21:45] I do not.

[1:21:52] So again, I think we have 7.2.4 D up here.

[1:21:57] I kind of want to speak to walls, how walls are within 10 feet of a T.P.Y.

[1:22:03] So if you could please read subsection C of 7.2.4d2,

[1:22:11] let's see, no, sorry, up in subsection 1, I apologize.

[1:22:16] 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.

[1:22:28] So this section specifically prohibits buildings and structures.

[1:22:32] Correct.

[1:22:33] That's correct.

[1:22:35] And so in order to be prohibited within 10 feet of a transitional protective yard, let's

[1:22:45] also read subsection A.

[1:22:48] Yes, subsection A states no building or structure on the subject site may be located closer

[1:22:54] than 10 feet to a protective yard.

[1:22:56] So again, in order to be prohibited within 10 feet, something would have to qualify as a building

[1:23:01] or structure.

[1:23:02] That's correct.

[1:23:05] So, in your opinion, this section used the same phrase building or structure where

[1:23:11] prohibits improvements both within the TPUI and within 10 feet of the TPUI?

[1:23:17] Yes.

[1:23:18] It uses those terms explicitly.

[1:23:20] And you testified previously that walls are permitted within the transitional protective

[1:23:25] yard, correct?

[1:23:26] Yes.

[1:23:26] 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.

[1:23:45] 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.

[1:23:53] 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?

[1:24:10] Could you repeat the question?

[1:24:12] No, I think I've already asked it.

[1:24:14] So I guess

[1:24:21] for the purposes of 7.2.4, does the city consider a wall to be a structure?

[1:24:27] No, it does not.

[1:24:29] Objection.

[1:24:31] Again.

[1:24:32] Noted.

[1:24:37] I just want to interject and just read Section 160D402, which is administrative staff.

[1:24:45] And it says local governments may appoint administrators, inspectors, planners, and other staff

[1:24:51] to develop at minister and enforce development regulations.

[1:24:55] 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.

[1:25:09] 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.

[1:25:30] It's just a continuing objection.

[1:25:32] I haven't given a big dialogue, I've just objected.

[1:25:35] Sir, and it's and we've noted each time. So thank you. It's in there.

[1:25:40] Birch

[1:25:46] Again, just to reiterate the

[1:25:50] 7.2.4

[1:25:52] prohibits

[1:25:54] structures

[1:25:56] within the type B1 for any protective yard.

[1:26:00] Is that correct? Yes, and yet in 7.2.4 D2

[1:26:09] It expressly anticipates and actually even requires that walls be located within a type B1 transitional protective yard.

[1:26:17] Yes, that's correct.

[1:26:27] And does the UDO distinguish between the types of walls permitted within the TPY?

[1:26:32] It does not.

[1:26:35] So if someone who drafts tech changes, interprets the ordinance, applies the ordinance.

[1:26:41] If a wall is permitted within a transitional protective yard,

[1:26:45] Does it make sense that the UDO would then prohibit that same thing within 10 feet of a transitional protective yard?

[1:26:53] No, that would seem contradictory.

[1:26:55] 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?

[1:27:07] No, there's no explicit provision.

[1:27:10] So, in your opinion, does any of the walls shown on this plan that's now being appealed,

[1:27:15] violate any provision of the UDO, governing location, height, et cetera, are there any of the walls?

[1:27:22] No.

[1:27:25] Mr. Birch, could we move this along, please?

[1:27:28] Yes.

[1:27:34] Close.

[1:27:43] So, in your affidavit, where you discuss walls within T.P.Y. and walls within 10 feet of

[1:27:52] a T.P.Y. You identified some plans that have allowed walls within a T.P.Y. and adjacent to a T.P.Y.

[1:28:04] Yes, that's correct.

[1:28:05] And you identified, and exactly where that, which plans that was, is that correct?

[1:28:12] Yes. Now, is that an exhaustive list of plans that have allowed this, or just a sample?

[1:28:19] It's just a sample.

[1:28:26] Yes,

[1:28:47] 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.

[1:29:04] Yeah, so these are administrative approval actions and associated plans for S-411-18,

[1:29:13] Stonebridge Estates, Sub-22-2021, which is Watkins subdivision, Sub-91-2021,

[1:29:22] Blu-Rain's Blu-Lane subdivision, Sub-12-2022, Laurel Hills townhomes, and Sub-37-2023,

[1:29:30] Magnolia Forest.

[1:29:32] Great.

[1:29:33] And, if you reviewed these plans?

[1:29:39] Yes, I have.

[1:29:40] And apologies, there were a few others at the bottom.

[1:29:43] Sub-57, 2024, Bradford Subdivision,

[1:29:45] and then the Learning Experience Daycare,

[1:29:48] which is a site plan SR-104 2017,

[1:29:51] and another site plan SR-8418 Integrity Self Storage.

[1:29:56] Great.

[1:29:57] And it is appear to be true and act-

[1:30:00] Chair, copies of those plain approvals? Yes, here so. Great. So, Board Chair, we would offer this to be 908 Williamson's Exhibit One.

[1:30:14] Justice, would you like some time to look this over before we accept it?

[1:30:20] No, I'm fine with. He hasn't said what topic it's about and it's relevancy. So just.

[1:30:27] You'll have that in your cross, okay?

[1:30:30] And yes, we'll accept the exhibit.

[1:30:36] And he can again, in your after-David,

[1:30:39] you kind of identify in each of these plans

[1:30:44] kind of how the, how a wall is treated.

[1:30:50] You have your after-David in front of you, is that correct?

[1:30:53] Yes, I do.

[1:31:01] Be sure that Mr. Virginia has a copy, please.

[1:31:05] Thank you.

[1:31:05] Mr.

[1:31:20] Clerk, I don't think yours is marked.

[1:31:22] This is the 908 Williamson LLCs, too.

[1:31:35] I'll have.

[1:31:37] Yeah, Keegan has the reason.

[1:31:38] Which I'll.

[1:31:39] Sure.

[1:31:40] Right, I always mark, I mark my own, so please take this.

[1:31:44] Okay, so thank you.

[1:31:53] So Keegan, just to highlight here, again, there's a few of these plans included.

[1:32:00] If you could, with the Bradford subdivision approval,

[1:32:03] So can you just highlight where wall is, excuse me, where the TPY is located to certain

[1:32:15] improvements?

[1:32:17] Yeah, so for the Bradford specifically, there's a TPY located adjacent to Melchios sidewalk

[1:32:32] and parking area, and then there's also a wall that sort of doubles as a retaining wall within the protective yard.

[1:32:41] For the Magnolia Forest subdivision, can you identify where

[1:32:48] a retaining wall is there?

[1:32:51] Yeah, there's in that particular subdivision, there's also one located immediately adjacent to the type B1, TBY.

[1:32:58] Great. And what about Laurel Hills?

[1:33:02] 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.

[1:33:26] Mr. Birch, if you want us to look at it, you might slow down, because I can't.

[1:33:33] Now I understand we're going to work quickly.

[1:33:34] Highlight one.

[1:33:35] Okay.

[1:33:35] Thank you.

[1:33:38] Keegan, if you could, identify what I've just handed you there.

[1:33:42] So this is a site permit review cover sheet and associated plans for the Laurel Hills townhomes.

[1:33:51] So SPR-0226-2022.

[1:33:56] I

[1:33:59] mentioned that it's the site permit plans.

[1:34:02] 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?

[1:34:10] Yeah, certainly.

[1:34:12] So site permit review is the sort of next step after the initial entitlement phase.

[1:34:17] So for Laurel Hills, which is also a compact subdivision, they went through the preliminary subdivision process to sort of set out the lots.

[1:34:24] they do some initial planning from urban forestry utilities, stormwater perspective.

[1:34:30] Site permanent review is what we also call kind of construction or infrastructure drawings.

[1:34:34] That's when they provide more detail on the specifics of the roads,

[1:34:39] the specifics of the utility connections, how they're going to manage stormwater, etc.

[1:34:45] Great. And just like the preliminary subdivision plan stage,

[1:34:50] do these plans have to be compliant with the UDO?

[1:34:53] Yes, they do.

[1:34:55] Great.

[1:34:56] Is this here to be a true and accurate copy of the Laurel Hills SPR plans?

[1:35:02] Well, I guess first identify which plan sheets are included.

[1:35:07] Sure. So we have the cover sheet, so C0.0.

[1:35:12] We also have the primary slight plan sheet, which is C3.0.

[1:35:18] And then we have a grading and drainage plan, which is C5.0.

[1:35:23] And then on the back we have a landscape plan, which is L3.0.

[1:35:30] And these appear to be true and accurate copies of these plan sheets or the approved SBR plan sheets.

[1:35:35] They do.

[1:35:36] So we're sure I'd like to offer this up as 908 Williamson's Exhibit 2.

[1:35:45] Okay, so this is a more detailed, and yeah, so not exactly what's in that.

[1:35:54] Yeah, it was just Mark's collectively used to.

[1:35:59] So again, for the clarity of the record, is this going to be item 3, thank you.

[1:36:04] Is this different than what was handed to me?

[1:36:07] No.

[1:36:08] Yeah.

[1:36:09] So we're getting ready to hand it to you.

[1:36:10] The SPR version.

[1:36:12] So what you have in front of you, Mr. Justice, what you're looking at right now, that is the approved preliminary subdivision plan.

[1:36:19] This is the approved site permit plan, which Keegan just testified to is just the next step in the process here.

[1:36:26] Point of clarification, please, Mr. Chairman.

[1:36:29] What exhibit number is this one?

[1:36:30] That's two.

[1:36:31] That's the three.

[1:36:32] Yeah.

[1:36:32] This is two.

[1:36:33] Yes.

[1:36:34] Okay.

[1:36:35] Then, I guess, Mr. Kiggins, David, that was number one, or was it a proof plan?

[1:36:42] Yes, it's a joint number.

[1:36:43] The notebook.

[1:36:44] Is there a first one?

[1:36:45] Yeah.

[1:36:46] Yeah.

[1:36:47] There was one.

[1:36:47] I am very, right now I'm very confused, forgive me, but I don't know.

[1:36:51] The proof plan was a city zip at one, and then Mr. Kiggins, the notebook was number two.

[1:36:59] I assume this is number three, then this should be number four, yes?

[1:37:03] No.

[1:37:04] Because the city has marked two exhibits, the plan and the city's exhibit two, which

[1:37:15] was the Keyons affidavit, which is included in the notebook.

[1:37:23] And then these exhibits belong to, these are exhibits being offered by 908 Williams

[1:37:28] and LLC, which is a separate party from the city of Raleigh.

[1:37:31] I believe that's the conclusion.

[1:37:33] That's the confusion, sorry.

[1:37:35] Yeah, no, I may have just mislabeled the whole thing.

[1:37:37] Now, what was number one for 908?

[1:37:39] I can't tell you, because I don't know.

[1:37:41] No other for two was labeled as two, so I don't know.

[1:37:47] Yeah, so sorry, I think I had to do this more.

[1:37:49] It's the first item I handed up, the set of approved plans

[1:37:53] that starts with Stone Ridge.

[1:37:54] That is 908's exhibit one.

[1:37:57] It's back.

[1:37:57] Okay, yeah, so thank you.

[1:37:58] Yeah, I apologize for the confusion, so this will be our exhibit to this is not a way to one. That's correct.

[1:38:05] Yeah, I think the copy is the first pass or mark is two, so you know, yes.

[1:38:12] Okay.

[1:38:17] On the bottom right corner.

[1:38:18] Yeah.

[1:38:25] So we'll pass these out in Mr. Chair.

[1:38:56] Yeah.

[1:39:06] Which ones?

[1:39:07] Sorry.

[1:39:08] No, I don't.

[1:39:09] No, I don't.

[1:39:22] Number two here.

[1:39:37] So, Keegan, if I could direct your attention to the site plan, should be C3 down the bottom

[1:39:47] right hand corner.

[1:39:50] If you could identify few of the retaining walls that you see there.

[1:39:55] So, do we get a copy of these yet?

[1:39:58] 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

[1:40:05] and then they want you to determine what's going to happen on the past exact. You don't have one. I do not.

[1:40:12] Let me give you one. Okay. Sorry. I have it.

[1:40:33] Okay. So I understand the intent of this. So we can accept this as as number.

[1:40:41] Thank you, Mr. Chair.

[1:40:44] For us.

[1:41:06] So, Keegan, if I could direct your attention, actually, to sheet L3.0, the landscape plan.

[1:41:11] Yeah.

[1:41:12] So, you identify kind of what landscape areas, if you can identify any transitional protective yards.

[1:41:21] Yeah.

[1:41:22] So, they're providing transitional protective yards if we're looking at the plan sheet to avoid directional confusion.

[1:41:28] And so sort of bottom of the plan kind of follows along the perimeter of the site.

[1:41:34] It's kind of noted by the various symbology of trees and shrubs that they're providing.

[1:41:40] And then there's also one plan right along that perimeter.

[1:41:46] Do you see some notes or kind of direction that kind of identify the type of buffer?

[1:41:52] Yeah, so they call out the specific type, north type B2, west type B2, and then south type B2.

[1:42:03] And you just identify just the difference between B1 and B2.

[1:42:09] So in this particular instance, B2 and B1 vary based on their width and some of the requirements they're in.

[1:42:21] 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.

[1:42:32] So the walls are permitted within a B2?

[1:42:35] Yes.

[1:42:35] Yes, and within these B2 areas, can you identify whether there are any retaining walls within

[1:42:44] or within 10 feet of these transitional protective yards?

[1:42:49] Yes, so there are a number of retaining walls.

[1:42:55] On sheet C3.0, they're called out a little bit more clearly if you can sort of match those

[1:43:01] up.

[1:43:03] 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,

[1:43:18] there are, I believe, two different retaining walls that are provided in that particular protective yard.

[1:43:26] So

[1:43:31] again,

[1:43:34] based on this plan,

[1:43:39] 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.

[1:43:51] Yes.

[1:43:52] In this set

[1:44:03] that aside for a moment, I

[1:44:10] want to just switch to roads within 10 feet of a T.P.Y.

[1:44:17] You reviewed Mr. Martinez as affidavit.

[1:44:20] He alleged that roads were essentially a structure not allowed within 10 feet of a T.P.Y.

[1:44:28] Yes.

[1:44:29] Your opinion, do you agree with that assessment?

[1:44:32] No, I do not.

[1:44:33] So we still have 7.2.4 up here with D2 or actually sorry D1 so you can't refer back to

[1:44:43] subsection C in addition to prohibiting buildings and structures, what else is prohibited?

[1:44:50] So it also refers to the parking of vehicles and then please read subsection B.

[1:44:57] State's brakes for-

[1:45:00] 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.

[1:45:25] And that type of provisional and that type of call it vehicular access.

[1:45:31] has a city kind of treated that the same as

[1:45:36] vehicular surface area.

[1:45:39] Yes, vehicle access matches or fits within the definition for

[1:45:44] vehicular surface area.

[1:45:46] So that's any area where cars are driven upon or parked.

[1:45:51] And would that include the private drive provided as part of this subdivision plan?

[1:45:57] Yes.

[1:45:58] Yes.

[1:46:02] So are you aware of any UDO provision that includes a road or vehicular surface area

[1:46:10] as within the scope of any regulations that applies to buildings or structures?

[1:46:15] I'm not familiar with any.

[1:46:20] So in your opinion when the UDO speaks to buildings or structures does the UDO consider vehicular

[1:46:28] surface area as a building or structure?

[1:46:30] No objection noted so in your opinion does the provisional buildings and structures within 10 feet of a T. P. Y.

[1:46:41] Apply to the vehicular surface area.

[1:46:43] Yes, the internal road now wouldn't.

[1:46:47] Your opinion does that internal road of the new subdivision plan comply with the U. D. O. in all respects.

[1:46:54] Yes.

[1:46:55] Yes.

[1:47:05] Again, Mr. Chair, wrapping up here with Mr. McDonald.

[1:47:10] In the appellants appeal, there was a reference to walls and the applicability or compliance

[1:47:18] with UDO section 7.2.8.

[1:47:23] Is this argument correct where they say this section prohibits walls within the T.P.Y.?

[1:47:31] No, wouldn't be correct because 7-2-8 specifically governs walls and fences outside of a protective yard.

[1:47:44] 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.

[1:47:57] Is there any alternative way to that a project can comply with the transitional protective yard regulations?

[1:48:05] Yes, one particular way is to provide a tree conservation area in lieu of the protective

[1:48:11] yard, so long as it meets all of our tree conservation area requirements.

[1:48:14] And when tree conservation is provided in lieu of a transitional protective yard, is a

[1:48:19] wall required?

[1:48:21] No.

[1:48:22] And is there another example of an alternate way that a project can comply with the TPI requirement?

[1:48:28] 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.

[1:48:43] 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.

[1:48:56] Yes, there's some additional requirements, but it does have that allowance.

[1:49:06] Mr. Chair, that's all the questions we have for Keegan.

[1:49:10] Thank you, Mr. Justice. Your opportunity for process.

[1:49:49] This is part of the record already since it was part of the UDO supplement 19.

[1:49:56] It's on page 820, but I'm going to hand you a copy of this.

[1:50:00] And

[1:50:06] I'll mark it as exhibit 8 just again. It's already part of the record, but it's

[1:50:13] nice to have little snippets as we're going through this. Thank you. So this is article

[1:50:18] 1.1 of supplement 19 of the UDOs, right? Yes. It's chairman I'd like to submit this as

[1:50:31] Exhibit eight.

[1:50:33] There's no objections.

[1:50:34] And then yes, we'll accept it.

[1:50:36] This is exhibit eight.

[1:50:55] So, Keegan, in this section, it gives a general overview of what the...

[1:51:00] I guess what the point of the UDO is, what's the point of having the development standards

[1:51:05] that are contained in this UDO, right?

[1:51:09] Especially in section 1.1.

[1:51:11] 1.1.4.

[1:51:13] talks about what the whole point of all these development standards in the UDO are for, right?

[1:51:19] Yes.

[1:51:20] And one of the objectives or points of having all these development standards in the UDO,

[1:51:26] certainly one of the objectives is to reinforce the character and quality of neighborhood.

[1:51:31] You see that as subsection J. Yes.

[1:51:36] Of course, there's a lot of things mentioned here.

[1:51:38] I'll just identify that.

[1:51:40] But there is a sort of rule of construction that the code sets up in section 1.1.7 that

[1:51:51] if there's any conflicts in the rules, the more stringent regulation is to apply, right?

[1:51:59] Yes.

[1:52:04] And you would agree that it's not the role of staff to rewrite the UDO, correct, because

[1:52:12] because these are the standards that the leaders of this community, the elected leaders of this community have created, correct?

[1:52:21] Not our job to rewrite the UDO, we are responsible for administering it, which sometimes does involve interpretation of specific sections or terms.

[1:52:32] I asked you, does that give you the right to rewrite the rules?

[1:52:38] Absent following the text change process that went in the code, we're not authorized to rewrite the code without Council approval.

[1:52:43] All right.

[1:52:59] 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.

[1:53:17] So this is the, these are development standards applicable for compact development that was part of supplement 19.

[1:53:26] Correct. Yes.

[1:53:28] Yes, Mr. Chairman, I'd like to hand this up to the board as our exhibit 9.

[1:53:52] So you touched on this at the beginning when you were asked about standards relating

[1:53:58] to open space.

[1:54:00] So the project in question has been considered a compact development, right?

[1:54:10] Yes.

[1:54:10] Okay.

[1:54:11] And so the requirement for a compact development according to section 2.3.1 B sets out requirements of open space, right?

[1:54:23] That's correct. And this is an R4 zoning district where the property is, right?

[1:54:27] That's correct.

[1:54:29] 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?

[1:54:39] That's correct.

[1:54:42] In this case, the one acre is the controlling standard, right?

[1:54:48] They have to come up with one acre of qualifying open space.

[1:54:51] Yeah, one acre in this instance is the larger of the two values.

[1:54:54] Gotcha.

[1:54:56] And then at B2, section B2, it mentions the width of the open space has to be 50 feet wide, right?

[1:55:04] That's correct.

[1:55:04] And it says minimum, right?

[1:55:10] Yes.

[1:55:12] So minimum,

[1:55:15] is it fair to say the minimum is the least possible?

[1:55:18] It's the lowest that can occur in order to be qualifying, right?

[1:55:26] We've interpreted again that term minimum with the open space to be a minimum dimension

[1:55:33] that needs to be satisfied, but again, it doesn't require that all portions of the open space

[1:55:39] maintain that 50-foot width. Okay, so the language you just added that open space minimum

[1:55:48] includes spaces that are less than the minimal, right? Because at the end of the day and we'll get

[1:55:54] you to draw your blocks. What you're saying is really all the open space that gets dumped into the

[1:56:01] pot of an acre. All that open space that gets dumped into the pot of an acre doesn't have

[1:56:07] to be 50 feet wide. As long as it's connected to one portion that's 50 by 50, right? That's

[1:56:15] correct. So you are adding to the standard width of open space minimum you're adding a qualifier.

[1:56:24] You're saying so long as the space is connected to a 50-foot wide open space, right?

[1:56:35] I'm relying upon discussions that took place previously with the original approved plan,

[1:56:41] the affidavit that was produced by the city's zoning administrator, and also tested

[1:56:45] money from the zoning administrator and other city staff.

[1:56:49] I thought you said this was a way you've been doing things for 13 years.

[1:56:54] I'm just pointing to the most recent example from the city zoning administrator.

[1:56:59] So it is correct that the proviso you've said, that the open space that goes into the pot of one acre,

[1:57:09] doesn't have to all be 50 feet in width, as long as it's connected to something that's 50 feet wide.

[1:57:16] That's how we've applied that requirement, yes.

[1:57:19] And again, you would agree that the language that supports your reading is not found in article

[1:57:25] 2.3, section 2.3.1, right?

[1:57:29] We're just relying on what it says with the open space minimum 50 feet doesn't say how

[1:57:35] or where that needs to be met.

[1:57:38] It says minimum.

[1:57:41] Do you believe the term minimum is ambiguous?

[1:57:48] I don't believe so.

[1:57:49] Okay.

[1:57:50] So I believe Mr. Chairman, I handed out as exhibit six.

[1:57:57] This is a blow-up of exhibit six.

[1:58:00] Was section Article 2.5 common open space requirements.

[1:58:06] You've seen that he's included this before.

[1:58:09] or I just blew it up, so it'd be easy to read.

[1:58:13] So this section here, section 2.5.3, it also contains the minimum width requirement for open space is 50 feet, right?

[1:58:25] Yes.

[1:58:26] 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?

[1:58:36] Yes.

[1:58:36] Yes. So here in this section 2.5.3A, it mentions three exceptions, right?

[1:58:45] There are some exceptions listed in subsection A. Is that a yes? I'm sorry. It lists three

[1:58:51] exceptions. Yes, there appear to be three exceptions listed.

[1:58:59] And the three exceptions that are listed doesn't include a transitional protective yard, right?

[1:59:07] Transitional protective yard isn't listed in subsection A, but it is listed in 252A.

[1:59:14] So I asked you the question, is the term transitional protective yard mentioned as one

[1:59:22] of the exceptions in subsection A?

[1:59:25] It's not listed in 253A.

[1:59:27] So, you have extrapolated, you have construed that there is an exception for the 50 feet in width.

[1:59:38] So, long as it ultimately connects to a block that's 50 feet wide, right?

[1:59:46] Yes. That's correct.

[1:59:49] And for purposes so that the court can see this, you had drawn on there on the area with the pin.

[2:00:02] So I'm going to ask you to come over here and take this highlighter.

[2:00:09] I'm sorry, you can't do that with what what.

[2:00:14] 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.

[2:00:31] in here and then you I tell you what I will concede that if you draw a block

[2:00:39] and you put 50 there that you're endeavoring to draw it as 50 you certainly

[2:00:45] when you did it on the screen it was very loose and I don't remember a ruler so

[2:00:51] again I'm just trying to expedite this so this board can understand this

[2:00:57] methodology that he doesn't know exactly we're just trying to

[2:01:03] Yes, with the caveat that he's asking him to estimate it.

[2:01:07] I mean, I'm not asking Desmond.

[2:01:10] If the whole thing is 50 by 50, it's fine.

[2:01:13] But we can go ahead and he can draw where he thinks that is located on the partial.

[2:01:17] I would not ask for an accurate 50 by 50 earlier.

[2:01:22] You showed approximately where three blocks might exist.

[2:01:26] That's what Mr. Justice is asking you this time.

[2:01:28] if you might show those approximately where they would exist.

[2:01:34] Yes, I'm not going to go into court and say, look at what he drew.

[2:01:38] He drew a box that's 48 feet.

[2:01:41] You understand.

[2:01:41] Exactly.

[2:01:42] We have a board that shows the 50 by 50 boxes.

[2:01:47] If you have that board, I don't remember you presenting it.

[2:01:50] So I was just making sure that we had a board.

[2:01:53] So once you write 50 on there just so that we understand what we're staring at,

[2:02:00] But

[2:02:06] I will remind everyone we're scheduled to be done by 5 o'clock today, so I'm not saying

[2:02:14] you're not using your time well, Mr. Justice, just observing that we all need to keep

[2:02:18] mixing and moving along.

[2:02:37] So

[2:02:40] let the record reflect, he did draw all these boxes, 50 by 50.

[2:02:45] And so at the end of the day, you have included as in that one acre pot for open space, you all

[2:02:53] have included the transitional protective yard around the perimeter, right?

[2:03:01] Just pass the mic back between the two of you.

[2:03:03] Well, I'll tell you what, once you go back over there.

[2:03:08] Yeah, just to answer the question in the mic, we have included those spaces

[2:03:11] that are required to be preserved as primary and space.

[2:03:13] So the answer is yes.

[2:03:15] The answer is yes.

[2:03:17] And so, let me touch on that, too, because essentially in 2.5.3,

[2:03:23] the minimum 50 foot width requirement,

[2:03:26] You would agree that the transition protective yard here is showing a width around the perimeter of 20 feet.

[2:03:34] It does narrow to less than 50 feet.

[2:03:38] At the end of the day, the transition protective yard in large portions of this are showing as 20 feet and width.

[2:03:51] There are portions that narrow down to 20 feet and width.

[2:03:54] Okay, so where is the, when you say, where is it that's marked the transition protective

[2:04:01] yard is 20 feet?

[2:04:12] Microphone please.

[2:04:13] We need to get this.

[2:04:14] Yeah.

[2:04:15] So where is it that I'm at the ask the other way, where is the transition protective yard

[2:04:19] noted as 50 feet wide?

[2:04:24] Not sure if it notes 50 foot width in any specific location.

[2:04:28] Show me where on the plan a transitional protective yard is showing as being 50 feet wide.

[2:04:47] Don't believe there's any.

[2:04:48] We've talked about the square.

[2:04:50] We've got an exhibit that shows the square.

[2:04:52] The question is whether or not you can have a 50-butt.

[2:04:55] You can have a big area with different locations, different shapes if there is 150-butt.

[2:05:02] That's our argument he disagrees with that.

[2:05:05] Trying to get him to narrow down on where that 50 feet is.

[2:05:08] I think it's just taking some time.

[2:05:11] Mr. Chairman, I just asked the simple question,

[2:05:13] where of the transitional protective yard is it showing as 50?

[2:05:17] I was, I asked him before and he seemed to fudge on the question.

[2:05:21] I'm just asking him, is any part of the transition protective yard 50 feet?

[2:05:28] So I, I would like to move this along,

[2:05:31] is any part of the transition protective yard with the 50 feet on this plane?

[2:05:36] Not from what I could see on that specific sheet, yes.

[2:05:41] So, to go back on-

[2:05:43] I'll object, the transitional protective yard is not an issue, it's the open space.

[2:05:47] 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,

[2:06:07] would qualify for purposes that one acre, despite the language in 2.5.3a, right?

[2:06:17] Out of check to the characterization that he's read it in.

[2:06:22] I didn't object when they were saying what Jose had said, I'm just asking him a question.

[2:06:27] Ask a question and please give an answer and objections are being noted.

[2:06:31] 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.

[2:06:42] 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.

[2:06:54] If it's because it's listed under section 2.5.2.

[2:06:59] If it's connected to a larger open space that has that 50 by 50 area, then yes.

[2:07:06] So all of these things, these places in section 2.5.2, whether it's considered primary

[2:07:13] open space that should be preserved or secondary open space, are tertiary.

[2:07:18] All these areas can be less than 50 feet in width, as long as they connect to a 50 by 50 block somewhere.

[2:07:28] All of that can be thrown into the 1 acre pot.

[2:07:31] Yes?

[2:07:31] That's my understanding.

[2:07:32] Yes.

[2:07:33] And so, literally, we're under tertiary.

[2:07:36] It says soils with severe limitations due to drainage problems.

[2:07:42] Did I read that right?

[2:07:44] That's over here.

[2:07:45] Tertiary 6.

[2:07:49] That's correct.

[2:07:49] That could be 5 feet wide, areas throughout a property with soils with severe limitations due to drainage problems.

[2:08:00] 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.

[2:08:09] Yes, that's correct.

[2:08:19] A TCA is required to be 32 feet width, right?

[2:08:23] Yeah.

[2:08:25] Believe in this section that refers to TCA being a minimum of 32 feet, the TCA section

[2:08:30] might have some additional allowances.

[2:08:33] I think even in chapter 9 it mentions the 32 feet and width, right?

[2:08:38] Yeah.

[2:08:38] I don't administer that section in the code, but if you're allowed to use right about how

[2:08:43] you read it, why couldn't the TCA be 6 feet and width?

[2:08:48] As long as connected to a TCA that's 32 feet and width.

[2:08:55] Sorry, could you repeat the question?

[2:08:57] So the tree conservation area has a minimum of 32 feet in width, right?

[2:09:05] Believe so.

[2:09:06] According to your methodology and logic, what prohibits a developer by coming in and providing

[2:09:13] areas of a TCA that are 20 feet in width and say it's qualifying because it's connecting

[2:09:20] to a 32 foot in width TCA?

[2:09:24] If it net all requirements of 9.1, I think that could be permitted, but I'm not sure how

[2:09:29] narrow TCA can be in 9.1.

[2:09:33] Well, just for purposes of logic, wouldn't the logic be the same that if the ordinance

[2:09:38] requires a 32 foot wide minimum for a TCA that according to you, there could be portions

[2:09:46] So the TCA that are less than 32 feet and width,

[2:09:50] as long as they're connected to one that's 32 feet and width.

[2:09:55] I will say the TCA has different rules about the dimensions of the TCA areas.

[2:10:00] So if we're talking about what could be allowables open space,

[2:10:03] I think that would be a similar logic.

[2:10:06] But again, TCA has different rules governing the minimum dimensions that are required.

[2:10:12] You're even though that subsection, the exception in 2.5.3A specifically says an

[2:10:20] exception is 32 feet in width, you're literally saying it could be less than that

[2:10:26] and still qualifies open space. If it also met the requirements of 9.1, I think

[2:10:34] there is an option for it to qualify. So I'm going to show you this graphic just

[2:10:38] I just so understand your logic and methodology.

[2:10:41] I'll call this exhibit number, are we out?

[2:10:46] I think you're right, 10.

[2:10:47] 10.

[2:10:47] Awesome.

[2:10:48] Thank you.

[2:10:49] So exhibit 10 is-

[2:10:51] I have a copy of that.

[2:10:52] You can see it.

[2:10:53] I don't have a copy for anybody.

[2:10:55] This is just for illustrative purposes.

[2:10:56] Well, you just admitted it, isn't it?

[2:10:59] I'm just referring to it for illustrative purposes.

[2:11:01] But it's not an exhibit.

[2:11:03] Not yet, because I haven't introduced it for illustrative purposes yet.

[2:11:07] But this in terms of open space, following the neurologic, this is a correct representation

[2:11:16] of how the city reads the 50 foot minimum, which is all these colored areas are being

[2:11:23] set aside by a developer claiming that they qualify for the one acre and that all of these

[2:11:31] This spaces would qualify according to your reading in terms of the width requirement so

[2:11:39] long as all this space is like it's showing is connected to this 50 foot block, right?

[2:11:48] Objection, this is not part of the case.

[2:11:50] He can answer it, but we don't have a copy.

[2:11:53] He's made up an exhibit, but we just have to register it.

[2:11:56] Go ahead, Keegan.

[2:11:56] You can answer.

[2:11:57] 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.

[2:12:16] So you would agree that if someone was going out there and measuring from the city the area and green.

[2:12:22] the width would be one foot. Right, if we said that was one foot, you would

[2:12:29] understand that that portion of the common area or the portion of the area

[2:12:34] that's getting thrown in the pot is one foot. This down here is three feet.

[2:12:41] That's in colored pink orange and then we've got the 50 feet. You understand this

[2:12:46] graphic that way. I understand the graphic. You've got to range a range of widths that range

[2:12:54] from one foot to 50 feet. Yes. For certain areas within the continuous open space. Yes.

[2:13:03] And so for purposes of the minimum, the minimum, you're saying the minimum here for all this

[2:13:12] this open space wouldn't the minimum, the lowest, the lowest number, the one foot, wouldn't

[2:13:20] that be the minimum of this space?

[2:13:22] Again, that's not how we've applied that section.

[2:13:25] Understand it.

[2:13:26] In applying, I guess, from a standpoint, a math standpoint, a lot of it.

[2:13:31] Can we stick to the plan in front of us, please, objection?

[2:13:34] So,

[2:13:37] at the end of the day, in terms of a minimum width, it doesn't matter what the lowest

[2:13:44] number is, as long as it's all connected to what could potentially be the maximum, which

[2:13:51] is 50 by 50, right?

[2:13:55] I don't believe there's a maximum, but as long as it's connected to an area that's 50 by

[2:13:59] 50.

[2:13:59] Well, I say maximum here in this graph because the greatest area, the largest area is 50 by 50.

[2:14:07] So if that being true, you're tying this whole ordinance to a connection to the largest area

[2:14:15] and you are ignoring that the ordinance has the word minimum, right? You're ignoring the word minimum.

[2:14:24] Again, I don't think I would say we are ignoring the word minimum.

[2:14:28] We're ensuring that a minimum 50 by 50 areas contain within each open space.

[2:14:33] The transition protective yard requires that a fence be at a minimum of certain height for screening purposes, right?

[2:14:40] Yes.

[2:14:40] How high does it have to be a minimum?

[2:14:43] It depends on that particular protective yard.

[2:14:47] Okay.

[2:14:47] Give me an example.

[2:14:50] Didn't 10 feet mentioned or 16.5 to 8 feet?

[2:14:53] 6.5 to 8 feet, all right.

[2:14:56] According to your logic, the minimum height for a...

[2:15:00] 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.

[2:15:23] Mr. Chairman, I am just trying to understand this deliberative process. If she would not object, I think I could get through this quicker.

[2:15:30] or do you understand the question?

[2:15:34] Yeah, I understand the question.

[2:15:35] I think we're looking at sort of the purpose

[2:15:39] and the intent of the screening,

[2:15:43] which is to provide sort of a visual obstruction.

[2:15:48] So we're looking at the kind of totality

[2:15:50] of the requirements and the fences.

[2:15:54] I'll say more limited.

[2:15:55] The requirements are allowances in the open space

[2:15:59] This provide for a little bit more variability.

[2:16:03] We're in this open space language, is there a allowance for variability to the 50 feet

[2:16:09] and what?

[2:16:11] So there is, of course, the minimum width requirement that's dated as 50 feet, there's some exceptions

[2:16:17] which do allow spaces, standalone spaces, as I understand it, to be even smaller than 50 feet.

[2:16:24] but also the requirements that certain areas that we know are not 50 feet wide to be primary, secondary, tertiary, open spaces.

[2:16:35] This previous plan that the court ultimately did not agree with,

[2:16:42] do you recall there was an argument that the space, the strip of land that was outside of this TCA along the perimeter

[2:16:51] that that met the 65-foot width requirement because objection that is related to open lot, not open space.

[2:17:01] Mr. Chairman, I can't even finish the question.

[2:17:04] 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.

[2:17:11] questions. In terms of the prior plan, the city read the width requirements of open

[2:17:20] lot, which is a 65 foot wide minimum, right? Yes, yes. Before you read in that this

[2:17:30] strip of land, that's really a good part of the dispute, which is outside the TCA along

[2:17:37] the perimeter. You know where I'm talking about right here? Yes. That the city's position

[2:17:42] was that that satisfied the 65 foot width because it was part of this open lot so called.

[2:17:49] It satisfied the 65 foot wide minimum because ultimately it was connected to a larger part

[2:17:56] of the open lot that was greater than 65 feet. That was the original content. Yes. Yes.

[2:18:02] Yes, and that is the court rejected that, right?

[2:18:07] I need to object again, we've got appending, raised you to caught a motion.

[2:18:11] It is our position that the court has affirmed the very thing that we're arguing about right

[2:18:16] now.

[2:18:17] So the court did not hold in any way that they didn't hold that open lot was open space.

[2:18:24] He's misleading you and I will object to that.

[2:18:27] In terms of the, this is the previous plan, and I can pull out the Justin Romano's

[2:18:37] deposition transcript as well as Daniel Stegol's testimony, but I asked you this before

[2:18:45] when you were up here on the stand. I said the focus of our dispute and discussion was this

[2:18:51] area around the perimeter, right? That was the focus.

[2:18:54] Yes.

[2:18:55] For the original approval, yes.

[2:18:56] Yes.

[2:18:57] We didn't get in during that hearing.

[2:19:00] We didn't get into contesting any of the area that's in the center.

[2:19:05] Believe it was, claim number five in the original appeal.

[2:19:08] During the hearing process, do you recall a singular question to Justin Romano or Daniel

[2:19:15] Stiegel where we brought up any part of the center of this property?

[2:19:20] My understanding it's in both of their testimonies, I can refer to my affidavit to confirm.

[2:19:26] My question to you was, do you recall that we were disputing that in terms of the,

[2:19:33] let's make it easy, do you recall that we were we disputing whether or not the one

[2:19:39] acre was satisfied or whether or not the 60 percent continuity was satisfied?

[2:19:45] Were we disputing that during the hearing process?

[2:19:48] Yes.

[2:19:49] I would need the transcript and original.

[2:19:53] Just like you said.

[2:19:54] Excuse me.

[2:19:55] We'll be calling him.

[2:19:56] What he remembers or not.

[2:19:58] I mean, the record is the record and we'll bring it up.

[2:20:00] Mr. Justice, just tell me, understand what you're trying to get to with this.

[2:20:04] She keeps, Robin keeps saying, this was argued before.

[2:20:08] This was argued before.

[2:20:10] And none of this issue about how to measure open space

[2:20:17] was in terms of the 60% contiguous of the one acre.

[2:20:22] None of that was in dispute.

[2:20:24] We were just simply disputing that there wasn't

[2:20:27] a transition protective yard, one,

[2:20:30] and that this open lot to the extent around the perimeter

[2:20:34] didn't satisfy any function.

[2:20:37] It wasn't open space because it wasn't 50 feet and width.

[2:20:41] We did say that.

[2:20:42] But we never did say, oh, they never met the acre

[2:20:46] or that they didn't meet to the 60 percent.

[2:20:49] So we have a witness that will testify.

[2:20:52] We'll go through the record.

[2:20:53] Page five page and show you every single time

[2:20:56] this was argued and the decisions.

[2:20:58] So letting, I mean, he can ask him about it if he wants to,

[2:21:01] but I don't think Craig's memory versus Mr. McDonald's

[2:21:06] is the test.

[2:21:08] In terms of this original plan that was approved,

[2:21:12] there is a note here.

[2:21:14] I want you to circle this note.

[2:21:17] It says portions of open space less than 50 feet shall overlap with secondary TCA in

[2:21:26] accordance with UDO section 2.5.3A.

[2:21:33] You see that note right there?

[2:21:42] Yes, I see it.

[2:21:45] That's our whole argument.

[2:21:48] in terms of the open space is that in order for open space to be less than 50 feet it has to

[2:21:56] meet one of the exceptions and there are only three and one of which is a TCA. That is what

[2:22:05] that note is saying.

[2:22:08] Don't know that that's exactly what it's saying. I think it's just referring

[2:22:11] to the fact that there is an allowance for TCA in open space to overlap. It says portions

[2:22:18] Options above the space less than 50 feet shall overlap with secondary TCA in accordance

[2:22:27] with UDO section 2.5.3A.

[2:22:32] Yeah.

[2:22:33] I think it's just calling out the exemption, but again, that exemption sort of lowers

[2:22:38] the number from 50 to 32 if even just that standalone TCA area, as I understand it, is 32 by

[2:22:46] 32.

[2:22:47] Just for sake of argument, as opposed to 50 by 50.

[2:22:49] But why would it matter to mention that note since we all know that it was drawn to connect

[2:22:57] to the middle of the property where you have this so-called block?

[2:23:04] Why have that note?

[2:23:05] I would have to refer to the person who added the note.

[2:23:08] Objection.

[2:23:10] Again, that's conflating open lot and open space.

[2:23:14] This plan clearly shows separate areas of open space.

[2:23:19] It may have been on one open lot, but as Keegan's already testified, open lot and open space are different.

[2:23:27] Mr. Chairman, now he's offering up his spin rather than allowing me just to get testimony.

[2:23:33] I didn't even hear out of rejection.

[2:23:35] And the section that is quoted in the note is from the open space section.

[2:23:39] So in terms of the original plan, do you see the spaces that are between lot, the space between lot 14 and 15?

[2:23:56] Yes.

[2:23:56] I'll call it a, it's a finger of space between lot 14 and 15, right?

[2:24:02] Yes.

[2:24:03] And there's a similar finger of space between 12 and 13, correct?

[2:24:08] Yes.

[2:24:09] Yes, that space is connected to the center part of the plan, right?

[2:24:18] It appears so.

[2:24:19] And but yet it's not shaded as open space.

[2:24:22] Yeah, it doesn't appear that it designated as open space.

[2:24:30] When you look at the current plan, you have a finger between 14 and 15, right?

[2:24:41] Yes, there's some open space between lots 14 and 15.

[2:24:44] And in the whole calculation of open space in terms of this plan, the previous plan had

[2:24:53] all the contiguous open space in the center of the property, right, the center here, correct.

[2:25:01] The 60% contiguity requirement was met with that central open space, yes.

[2:25:05] The current plan has the 60% contiguous based on what the city is claiming as eligible open space around the perimeter, right?

[2:25:14] That's correct, yes.

[2:25:16] 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.

[2:25:27] This is a new question for this board to consider, right?

[2:25:32] Sorry, could you repeat it a question one more time?

[2:25:34] Well, we didn't have the question about, could a transitional protective yard at 20 feet

[2:25:42] and width satisfy the contiguity?

[2:25:45] That specific allowance didn't come up because there was no discussion of the protective

[2:25:51] yard because they were using a different option, but again, how we calculate the minimum

[2:25:58] with. So you

[2:26:06] would agree with and we could look at Jose's affidavit in terms of how he's measured

[2:26:14] 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?

[2:26:26] But this right here, it's south of 75 and 9,

[2:26:34] yes, do you dispute how Jose calculated

[2:26:38] its width?

[2:26:40] I would have to refer to Zaffa David to, well are you contending that the width of that

[2:26:44] area is 50 feet or greater?

[2:26:48] Just by looking at it appears it does have at least one dimension, a 50 feet or greater,

[2:26:53] but parts do narrow below 50 feet.

[2:26:56] When you say one dimension, what dimension are you referring to,

[2:27:04] I'm asking the question of width.

[2:27:08] Are you contending what you just did, just shows the width of that property?

[2:27:13] So, that would be a very difficult moment in a record.

[2:27:18] 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.

[2:27:24] and if he's going to say it is 50 feet wide

[2:27:27] because the length of it is more than 50 feet.

[2:27:31] You understand what I'm saying?

[2:27:32] There is a difference between length and width, right?

[2:27:35] Depending on the orientation, yes.

[2:27:38] Well, a length of something is usually

[2:27:40] the longest dimension, right?

[2:27:43] Yes.

[2:27:44] Typically, yeah.

[2:27:45] Yeah.

[2:27:46] And the width is usually the shortest dimension.

[2:27:49] Again, it sort of depends what you're talking about,

[2:27:50] but typically what I'm asking you

[2:27:52] about what you're talking about? Are you saying that this area that intervenes

[2:27:57] between Lot 7 and Lot 6 and Lot 9 and Lot 10? Are you contending that's 50 feet

[2:28:05] wide or greater?

[2:28:08] Again I think it depends on the orientation but has one dimension

[2:28:13] that's 50 feet or greater but connected to an area that has the 50 by 50 dimensions.

[2:28:19] So at part portions of it do narrow below 50 feet. This is very simple. I

[2:28:24] understand the point you're making that ultimately this connects down to this block.

[2:28:29] My question is this area in question, this strip of land, are you saying that that strip

[2:28:35] is 50 feet or greater?

[2:28:37] In one dimension, yes.

[2:28:39] One dimension that happens to be what you contend to show width or what you should contend

[2:28:45] to show length.

[2:28:49] I think in this instance, I would be fine with either description, it only meets it in

[2:28:55] one dimension.

[2:28:59] So to be sure I understand your methodology, you are saying literally,

[2:29:03] if you have one dimension, you're always going to consider that dimension the width?

[2:29:12] No, I think it could be the length. I'm just contending that there are portions that

[2:29:19] are greater, there's portions that are narrower. Whether it's width or length, in this particular

[2:29:26] instance, I don't think impacts whether that qualifies as open space.

[2:29:31] I understand because of the methodology you have of ultimately connecting it to a 50-by-50

[2:29:36] block, but it does matter whether or not you are saying this strip of land that we've

[2:29:41] been discussing is 50 feet wide or greater.

[2:29:44] Is your answer maybe because there's a length that's 50 feet or greater?

[2:29:51] 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.

[2:30:01] 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.

[2:30:23] Mr. Chair, we'll concede that anything less than 50 feet is not 50 feet, okay, because we know that question of methodology.

[2:30:31] Thank you.

[2:30:33] That was helpful.

[2:30:35] Because what you're hearing is a concession.

[2:30:38] That the methodology is not somehow, you know, an orientation of seeing what's linked versus what's with, we all agree that

[2:30:49] But in this case, that these strips, these fingers are not 50 feet wide, but you believe it still qualifies

[2:30:57] because it's ultimately connected to this block down here, right?

[2:31:00] We're not conceding anything.

[2:31:02] We're trying to move it along because we got two witnesses left.

[2:31:06] Mr. Chairman, it is ten minutes to four.

[2:31:11] If I would encourage you to ask all parties to be sure to ask their questions once and

[2:31:19] to try to get us through this so that you've got some deliberation time.

[2:31:23] In order for you to deliberate at all, you probably need to finish with the testimony

[2:31:26] in the next 25 minutes.

[2:31:28] And it also would like for us to have a break shortly.

[2:31:30] I was waiting for that opportunity to not interrupt, so.

[2:31:35] It's fine if you need.

[2:31:36] I'm not going to sit here in a whole jail in a war of attrition here, I want to hold on.

[2:31:40] This is just as much longer as your cross examination of this particular witness because it might

[2:31:44] be better to break right at the call of the next two witnesses.

[2:31:49] Well I'll continue ahead probably 30 minutes if I don't get interrupted.

[2:31:54] So we have about five minutes of redirect as well.

[2:31:58] So let me make this observation.

[2:32:02] This hearing needs to finish today.

[2:32:05] It is quarter to four.

[2:32:06] If you're going to take 30 more minutes with this witness it would be 420.

[2:32:11] After that there are two more witnesses.

[2:32:13] is there's five minutes across so now we're at 425 and there are two more witnesses.

[2:32:18] I think it's the prerogative of the board to insist that this be finished today.

[2:32:23] They've had two special meetings to do it.

[2:32:26] And I would encourage everyone to think very deeply about whether they can truncate their

[2:32:32] questions. Thank you. And also that answers be precise and direct.

[2:32:46] I'll move on to. Sir, since we have reached a pause, I apologize. Could we please take

[2:32:51] a break? Yes. It was, it would add some comfort to I think all of us. And then we'll get

[2:32:56] back at it. That's fine. If we can do this, please, and seven minutes to four, if we can

[2:33:01] be back at 4, please.

[2:33:15] Oh, yeah.

[2:33:16] They're

[2:33:23] imposing the arm crew tonight.

[2:33:26] They're imposing the arbitrary arm.

[2:33:29] It's just like I can't even get one question with her.

[2:33:38] But she

[2:33:51] defends.

[2:33:53] 6.5.

[2:33:55] 6.5?

[2:33:56] Yeah.

[2:33:56] All right.

[2:33:58] So

[2:34:04] we're about to move on.

[2:34:05] Sorry.

[2:34:06] I thought you got one.

[2:42:05] is the opposite of the term length right yes they're typically let me show you

[2:42:13] what I marked as exhibit 10-A. The UDO doesn't define width as a term, nor does it define

[2:42:22] length as a term, right?

[2:42:27] I have to check in chapter 12 to be certain, but certain types of width are defined

[2:42:31] like lot width, not sure width generally is defined.

[2:42:37] This exhibit 10-A is a webster's dictionary definition of length, and it's what we've

[2:42:43] been talking about that link is the longer or longest dimension of an object.

[2:42:51] Yes.

[2:42:51] That's what it says.

[2:42:52] Mr. Chairman, I'd like to submit Exhibit 10A.

[2:42:56] Okay.

[2:43:18] So I'm going to move on to the encroachment issue for the transition protective yard.

[2:43:26] In terms of the section, it might be helpful if you could put on the screen the section that we were dealing with.

[2:43:32] It talks about buildings or structures.

[2:43:35] Okay, so I think your testimony is your testimony and your affidavit states that a road is not a

[2:43:43] structure, right? Yes. And structure is not a defined term in the UDO, right? Don't believe

[2:43:52] building or structure defined. But your affidavit does use Websters as a reference point to say that it's

[2:44:00] anything constructed. And there's a parenthetical that mentions the building, but it talks about anything constructed, right?

[2:44:08] Yeah, there is one definition from Webster as I believe included, or Maryam Webster.

[2:44:14] And it's basically according to your own affidavit, it's anything constructed.

[2:44:20] That's the dictionary definition. How it's applied or understood in the context of the EDO is a little different.

[2:44:27] 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.

[2:44:42] Mr. Chairman, I've been able to do it at 40 minutes. We started at least 30 minutes, if not 40 minutes, behind schedule.

[2:44:51] I have not taken as long as they have taken, and I'm entitled to cross-examination, I'm

[2:44:56] trying to move it along as fast as I can.

[2:45:03] 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

[2:45:31] to inform your opinion.

[2:45:35] Sorry, I'm not following the question.

[2:45:38] Did you, in anything you did in this appeal in your opinions,

[2:45:42] did you utilize this rule of construction in Article 12.1 to follow it?

[2:45:49] Yeah, it was referred to, I believe it's on page 9 of the affidavit.

[2:45:53] All right, so you did use a dictionary definition,

[2:45:56] the websters that says essentially anything constructed is a structure, right?

[2:46:01] Yes, refers to the definition in Marion Webster that says something in parentheses such as a building that is constructed.

[2:46:12] Okay, something that is constructed. Are you contending today in front of this board that a road is not constructed?

[2:46:19] No.

[2:46:22] Does that mean, maybe I asked the question wrong, are you saying that a road is not constructed?

[2:46:29] Is that your contention?

[2:46:32] Roads have to be constructed, but again we've used additional information to understand

[2:46:42] the term building or structure and we don't believe that that definition includes or

[2:46:48] is directly applicable to roads.

[2:46:51] So if the road meets the definition of anything constructed, why are you going off and looking

[2:46:58] at other sources besides that?

[2:47:01] We're using other information that's in the UDO specifically, so I believe in the affidavit.

[2:47:08] There's also references to other terms, I'll say, that include the word building and also

[2:47:15] elsewhere in the UDO where buildings and structures are differentiated from, for instance, the

[2:47:21] So a building or structure, because it's mentioned separate, these are two separate words that must independently be given meaning.

[2:47:32] You would agree with that, right?

[2:47:34] Yes.

[2:47:34] And so you are saying that in your affidavit, you use the term building coverage to help inform you of the meaning of structure.

[2:47:43] Yes.

[2:47:44] Yes. Yeah, we looked at it as part of the information that we considered.

[2:47:51] So let me show you what a mark is Exhibit 11.

[2:48:02] Exhibit 11, this is from the city's website

[2:48:07] that talks about road design and construction standards that the city has. Correct. Exhibit

[2:48:17] Yes. In fact, the city has an entire website to inform the public that roads are constructed.

[2:48:27] There is a design and standards applicable to roads. There is a review process associated

[2:48:32] with the construction of roads in my right.

[2:48:36] There is a website separate from the UDO, yes. And that's a copy of what's on the UDO in terms

[2:48:43] of talking about roads are some things that are constructed. Right? I don't believe what you've

[2:48:50] provided is a copy from the UDO. I'm sorry, from the website of the city, correct? Yes, different

[2:48:57] from the UDO, but yes. Let me show you what I've marked as a pellant exhibit 12. In fact, you have

[2:49:04] very specific rolly street road designs details and standards that would include alleys, right?

[2:49:11] or it would at least include the road that's internal to this project, correct?

[2:49:20] Yes, I believe it is marked as an alley.

[2:49:25] So there are specific construction standards applicable to that alley.

[2:49:29] That the city requires a developer to follow, right?

[2:49:33] Objection, has it been identified that these are actually incorporated into the UDO?

[2:49:40] Yes, they are.

[2:49:41] So, in terms, are these, the City of Raleigh, published Raleigh Street design details, exhibit 12?

[2:49:50] I'm not familiar with the latest version, but these are marked August 2020, appears to be some collection of design details.

[2:49:58] That includes an alley as part of the thing being regulated, right?

[2:50:04] I

[2:50:06] believe that's on the transportation subsection, yes.

[2:50:13] Mr. Chairman, exhibits 11 and 12, I'd like to include as part of the record.

[2:50:18] Okay, let's look at them.

[2:50:36] Sure, what I've marked is exhibit 13.

[2:50:39] Let me give you 11.

[2:50:41] This

[2:50:47] is 11 room.

[2:50:50] Let

[2:50:53] me show you what I'm marked as a Helen exhibit 13.

[2:50:57] This is section 1.5.4,

[2:51:00] We're dealing with building setbacks of the UDO, Section 1.5.4, all right?

[2:51:09] Yes.

[2:51:16] Section 1.5.4 D generally prohibits buildings or structures.

[2:51:25] Objection, this is not supplement 19.

[2:51:30] If I'm trying to speed this along, if at the end of the day, Section 1.5.4 of the UDO

[2:51:39] that's in the record covers setback requirements, correct?

[2:51:44] It does.

[2:51:45] And it generally prohibits structures or buildings in a setback, correct?

[2:51:52] 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.

[2:52:07] So it lists out a few different categories.

[2:52:10] Correct, and I'm going to cover that.

[2:52:12] But generally, the way it's set up is there's a general prohibition for buildings and

[2:52:18] structures being in a setback with certain exceptions.

[2:52:21] Yes?

[2:52:23] Yes.

[2:52:24] And the certain exceptions, as if you go through them, includes driveways.

[2:52:31] Subsection E, yes.

[2:52:33] Includes fences and walls.

[2:52:37] Yes.

[2:52:37] 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.

[2:52:56] Do you understand what I just said?

[2:52:58] I understand what you're saying.

[2:53:00] I think we've grouped them separately from buildings and structures, though.

[2:53:03] So why include them as exceptions if they're not buildings or structures?

[2:53:10] Because you've rendered including them as exceptions totally meaningless if they have nothing

[2:53:15] to do with buildings or structures.

[2:53:17] So subsection D is just titled setback encroachments.

[2:53:21] And then there's a blanket statement because often what people are contending with is buildings

[2:53:25] and structures.

[2:53:27] But then there's separate groupings, so there's building features which I think are feature

[2:53:31] of a building.

[2:53:31] 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.

[2:53:42] The D says all buildings and structures must be located at or behind required setbacks except as listed below.

[2:53:51] The things listed below would be those exempted structures or buildings that did not have to meet setback requirements.

[2:54:00] Correct? Subsection E sort of separately states other setback encroachments from subsection D.

[2:54:07] So we'll go on back over to the section that talks about buildings or structures in

[2:54:17] the, yes, near the protective yard.

[2:54:21] So what is the point in D1B that talks about breaks for pedestrian vehicle access?

[2:54:29] this, you would agree that the internal road in question is not a break, correct?

[2:54:37] It doesn't.

[2:54:38] It's not breaking the protective yard now.

[2:54:41] So that's yes, you would agree it's not a break, right?

[2:54:44] Yes.

[2:54:45] And so if a vehicular break was not considered a building or structure, why mention it at

[2:54:55] all in this section. What would be the point? Unless it is in fact an exception to the

[2:55:02] general prohibition of there being no building or structure within 10 feet of a protective

[2:55:07] yard. Yeah, I view these sort of as separate groupings of allowances. So one is buildings

[2:55:13] and structures, the other is pedestrian and vehicle access.

[2:55:18] This is encroachments in protective

[2:55:21] of yards. And you're saying that the fact that B allows for breaks in pedestrian or

[2:55:29] vehicle access doesn't necessarily mean that a break can be a building or structure.

[2:55:35] Is that what I'm hearing you said? I believe they're separate categories, yes.

[2:55:39] Yes, I've been asked about four times. Can we move along?

[2:55:48] In terms of the set of plans, they looked like they were submitted to the city on March 20th

[2:55:55] and approved on April 4th, Keegan.

[2:55:58] Does that sound about right?

[2:55:59] Sounds about right, yes.

[2:56:00] And so that is literally about 10 business days.

[2:56:03] The plans were revised, submitted, and approved.

[2:56:07] About 10 business days.

[2:56:09] Sounds right.

[2:56:10] How many times did you meet with the developer

[2:56:13] before approving the plans?

[2:56:16] Objection to the extent that turning.

[2:56:20] Yeah, believe I was involved in two meetings.

[2:56:24] And it doesn't matter that I'm not asking the communications

[2:56:27] 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?

[2:56:41] 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.

[2:56:51] 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,

[2:57:20] That's all I recall right now.

[2:57:21] There are two separate meetings that I remember being involved with prior to

[2:57:25] the submittal, and I think the attendance shifted between the two meetings.

[2:57:29] Was Eric Hodge invited to the room and participated?

[2:57:33] I'm not aware.

[2:57:35] So Eric Hodge was part of the deliberative process of the original plan.

[2:57:41] So why wouldn't he be included in this one?

[2:57:44] Objection, Mr. Hodge testified at that hearing that he was not a part of that process

[2:57:50] 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.

[2:58:02] 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.

[2:58:18] Let me just ask again because this is we're trying to figure out how to make this thing

[2:58:24] work.

[2:58:25] I understand there are also some legal challenges going on separate from this conversation.

[2:58:30] If there are legal challenges or questions about ethics or appropriateness of city behavior,

[2:58:36] is this the forum for that or is that a different forum?

[2:58:40] I'm trying to understand where you're going.

[2:58:42] Mr. Chairman, the last goal around, we got into the deliberative process to understand how the city landed where they did.

[2:58:52] Ultimately, where they landed, the court determined they were wrong.

[2:58:56] 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.

[2:59:08] Just in Ramada shows up and he reverses what the staff members had said and ultimately the staff members, not Mr. Ramada was right.

[2:59:18] 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.

[2:59:34] It goes to credibility, it goes to credibility, the deliberative process.

[2:59:38] 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.

[2:59:49] 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?

[2:59:59] Okay.

[3:00:00] 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

[3:00:29] Go ahead and do that then I'll bring my own question.

[3:00:33] Can I say yesterday you said this couldn't come in and today you're letting it in.

[3:00:37] It doesn't have anything to do with whether this is right or wrong.

[3:00:41] Mr. Hodges, not a part of this process and yes we did meet and we were very careful to make

[3:00:46] sure that we would be covered because we have that mandate from a judge that says and

[3:00:52] I'll get to that if I ever get to my witness up there that said you did everything right

[3:00:58] but you did this one thing wrong. So they added the one thing so yes we wanted

[3:01:04] to make sure from a legal perspective that we followed the judges order. Now

[3:01:09] this idea that we met behind and said we're going to grin at no matter what

[3:01:13] there is not a shred of evidence to that and it's inappropriate to suggest that

[3:01:17] about the city. We also are in the middle of a lawsuit which is challenging this

[3:01:22] very same approval. So we've had two appeals, one red assertiorari and one lawsuit. Now I don't

[3:01:31] know if you know that, but in the lawsuit, they sued the developer and the judge dismissed the

[3:01:36] developer and awarded attorney speeds. So this is ongoing. It isn't us against them because it's the

[3:01:42] city's rules and it's their plan. So we are entitled to talk with one another. We do not have to include

[3:01:49] Mr. Justice. And we are trying as hard as we can to do everything legally. And that's

[3:01:54] about all I have to say. And this idea where he's trying to corner him to say something

[3:01:59] bad was done because of Eric Codge who really if you want to bring him in here, that's fine.

[3:02:05] But this is a vicious something that he is inserting himself into that has nothing to do with this

[3:02:11] case. Mr. Brown, I'm trying to move this along. I'm trying to understand. Help me here.

[3:02:19] It's your prerogative as to whether to admit this exhibit or not.

[3:02:22] I don't have a recollection of this particular one being brought in before.

[3:02:27] I do have a recollection that you raise the same question in the last hearing that you're raising in this hearing.

[3:02:33] I will observe that to the extent this was offered to for credibility, we're probably well to move on at that point.

[3:02:42] Mr. Justice has completed his case in chief.

[3:02:46] This is he is now simply asking cross-examination questions.

[3:02:50] And I do not see in propriety on the part of the city as being included in one of the five grounds of appeal.

[3:02:57] So I'm looking to impeach this particular witness.

[3:03:01] Okay, so this witness and I just simply want to include 14 in the record.

[3:03:06] It says what it says and I was going to move on.

[3:03:08] So, Mr. Chairman, I suggest that, that, um, what, 14 will be in the record whether

[3:03:15] you receive it, or whether you reject it, because it will be in the record, as it

[3:03:19] rejected, exhibit, you decide, and let's do move on.

[3:03:22] Okay, let's, we're not going to accept it, let's move on, as part of the record, as has been noted.

[3:03:29] And by the way, uh, Robin mischaracterizes, uh, so many things, so many things.

[3:03:36] Mr. Justice, we have 40 minutes.

[3:03:39] Let's not start going down those paths.

[3:03:42] Leanne, you don't interrupt her when she stands up and gives like a 10-minute

[3:03:47] recitation, so I will move on, Mr. Chairman.

[3:03:54] So in terms of the discussion about open space,

[3:04:03] who presented this or how long did you

[3:04:07] You considered the question of open space and this block concept for purposes of the

[3:04:13] approved plan.

[3:04:14] How long would you say you considered that issue?

[3:04:20] Not very long.

[3:04:21] Okay.

[3:04:21] As long as, again, met the minimum with requirement, contiguity, given some of the similarity to the

[3:04:28] previous plan and a lot of familiarity with the project, I think it was able to be evaluated

[3:04:33] pretty quickly.

[3:04:35] You know, I would move on when you talk about, but then you say that the other plan was

[3:04:39] So similar. So the other plan, the other plan had one acre because if you look at these dimensions,

[3:04:47] this is the other plan, right? This is the original plan, right? Yes? Yes.

[3:04:52] This dimension up here, this dimension right here, this whole strip is right here in the middle,

[3:04:58] the center. That's 50 feet wide. That's actually 59 feet wide, okay? Yeah. So this whole section here

[3:05:06] is wider than 50 feet. Yes?

[3:05:10] Appears now.

[3:05:11] This whole section now is less than 50 feet.

[3:05:15] Yes?

[3:05:16] In that dimension, yes.

[3:05:18] We do not have a transitional protective yard

[3:05:20] running around the perimeter at 20 feet and width

[3:05:23] that suddenly being counted for purposes of the one acre, right?

[3:05:27] That's correct.

[3:05:28] The contiguity provisions

[3:05:30] or any of the city were satisfied by the center.

[3:05:33] Now that you're looking to satisfy it by what's around the perimeter.

[3:05:38] That's correct.

[3:05:39] So what you say similar, there's very material changes that are occurring where the

[3:05:44] developers cannibalizing the open space in order to maintain 17 units.

[3:05:51] The amount of open space is actually increased from Plan 1 to Plan 2.

[3:05:54] It is increased in your mind of counting all of these spaces that are less than 50 feet

[3:06:02] in with. Yes?

[3:06:06] 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?

[3:06:23] There are portions that are narrower than 50 feet. Yes.

[3:06:26] Yes.

[3:06:29] Mr. Chairman, that's a question to you.

[3:06:31] Thank you.

[3:06:34] Rebuttal?

[3:06:35] Oh

[3:06:43] my God.

[3:06:44] Can you pull up?

[3:06:44] Microphone please.

[3:06:46] Oh, sorry.

[3:06:47] Thank you.

[3:06:51] Okay.

[3:06:51] Can you pull up the plan?

[3:06:53] The second plan, please?

[3:06:55] Yes.

[3:06:55] Okay.

[3:06:56] So, Mr. Justice kept referring to the block versus everything else.

[3:07:02] Okay.

[3:07:03] When you talk about the block, you're just talking about the measurement.

[3:07:06] You're not talking about this open space being broken up until separate.

[3:07:09] pieces, are you? No, it's all contiguous. Okay, so where are the open space areas? So there's

[3:07:16] again one in the center, so just marking sort of the general area and then one towards the perimeter,

[3:07:22] going a little bit off-screen. Okay, you can leave that there. Okay, so what the UDO says is that the area

[3:07:29] of open space, here they're two, say yes. That's correct, yes. Okay, so the minimum area

[3:07:37] Yeah, of that open space, the whole thing has to be 50 by 50.

[3:07:43] Is that right?

[3:07:44] Yes.

[3:07:45] Okay.

[3:07:45] And so, just do your off-the-cuff block.

[3:07:48] Yeah.

[3:07:49] So, just a kind of, just going to re-draw, so here's sort of a block, again, not perfectly

[3:07:56] to mention, but here's a block.

[3:07:58] Next.

[3:07:59] So, if you take the whole area into account, that area is at least 50 feet wide, correct?

[3:08:06] Yes.

[3:08:06] 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?

[3:08:18] 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?

[3:08:31] In theory, but in practical terms and the way the code is organized, no.

[3:08:37] And once you hit that 50 feet, is it everything else just extra open space?

[3:08:42] Correct as long as you are working towards that 1 acre or 20 percent minimum.

[3:08:47] So you've met the width.

[3:08:49] So then you have to go to area and contiguity.

[3:08:52] They're separate.

[3:08:53] So there's three separate measurements.

[3:08:54] Is that correct?

[3:08:55] That's correct.

[3:08:56] Okay.

[3:08:56] Okay, so the next thing I would like you to pull up, if you will, is section 7.2.4.

[3:09:11] Yes.

[3:09:12] Okay, so I can scroll up here.

[3:09:21] Okay, so this is about transitional protective yards, correct?

[3:09:25] That's correct.

[3:09:26] Okay. In the first Senate, so the first number one says no building or structure may be located closer than 10 feet to protect.

[3:09:33] Yes.

[3:09:34] And the second says that or the third one says that you cannot have structures in a protective yard, correct?

[3:09:44] Yes. The parking of vehicles and placement of buildings is prohibited.

[3:09:47] Okay.

[3:09:48] But then it specifically speaks to walls. Is that correct?

[3:09:52] Yes.

[3:09:53] And that says, while's in a protective yard must meet the following.

[3:09:57] Yes.

[3:09:57] So, Mr. Justice has said those two were conflicting.

[3:10:01] Are they conflicting?

[3:10:03] No, because we're viewing them separately and this instance a wall is not a building or

[3:10:09] structure.

[3:10:09] Okay.

[3:10:09] Can you go down there, says a wall must be eight feet, it's got to be compatible, it can't

[3:10:17] be with it.

[3:10:17] And so there's all sorts of requirements for a wall in a protective yard.

[3:10:23] Yes.

[3:10:24] Those do not apply to structures in a protective yard, correct?

[3:10:27] That's correct.

[3:10:27] Because they're not allowed.

[3:10:29] That's correct.

[3:10:29] Can you keep rolling down please?

[3:10:31] Right here.

[3:10:33] So this is, what does this chart do?

[3:10:35] This provides the standards for each type of protective yard.

[3:10:39] Okay.

[3:10:40] And type B1 is what that we've used here, correct?

[3:10:44] That's correct.

[3:10:44] Okay.

[3:10:45] Does it talk about walls?

[3:10:48] It does talk about wall height, yes.

[3:10:50] OK.

[3:10:51] And it says, so that would contemplate

[3:10:54] you would have a wall in a B1, correct?

[3:10:57] Yes.

[3:10:57] OK.

[3:10:58] It doesn't talk about structures in a B1.

[3:11:00] It talks about walls, correct?

[3:11:01] Yes.

[3:11:02] And it says that the walls should be a minimum of 6.5 feet.

[3:11:06] That's correct.

[3:11:07] OK.

[3:11:07] And can you roll back up?

[3:11:10] And the walls, what's the max height?

[3:11:13] 8 feet.

[3:11:14] Okay, so the UDO is telling the public and the developer that you can and you must put

[3:11:23] a wall there, correct?

[3:11:24] Yes.

[3:11:24] And exactly the size it should be.

[3:11:27] And what is that size measured from?

[3:11:29] It's measured from the neighboring side.

[3:11:33] Okay, and is that that requirement is met, correct?

[3:11:36] Yes.

[3:11:37] Okay, so what Mr. Justice is arguing is that we should essentially take a big sharpie and

[3:11:43] Take everything about walls out, correct?

[3:11:47] 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.

[3:11:55] Do you remember Rodriguez, is that Mr. Rodriguez?

[3:12:00] Martinez.

[3:12:01] Martinez, testifying that he was relying on Section 1 to say there was no structures allowed in the TPI.

[3:12:11] Yes.

[3:12:11] Did you also hear him respond when we asked him if he had read the section upon walls

[3:12:18] and he said, no, he had not studied that.

[3:12:21] Yes.

[3:12:22] Okay.

[3:12:22] I don't have anything further, Mr. Burke.

[3:12:29] Three questions, Keegan.

[3:12:31] On the prior plan, how many open space areas were there, distinct areas?

[3:12:37] So on the prior plan, there were three distinct open space areas.

[3:12:40] Yes, great.

[3:12:44] Once an applicant meets the minimum open space amount, does an applicant have to designate

[3:12:53] other areas or any more space as open area or can they stop once they hit the minimum

[3:13:00] amount?

[3:13:00] Yeah, they can stop once they hit the minimum.

[3:13:02] Great.

[3:13:03] And again, back up on this, we've talked about the triangles.

[3:13:07] Mr. Justice has referenced that with is the least dimension.

[3:13:13] Those triangle areas, the least dimension, is that less than 50 feet?

[3:13:18] Yes.

[3:13:19] That's all I have.

[3:13:22] Thank you.

[3:13:24] Your next witness in

[3:13:32] the interest of logic, it's 4.30 now.

[3:13:37] Do you believe you'll get through this witness in a half-hour and the same goes to you on your rebuttal?

[3:13:48] This is what I think respectfully.

[3:13:50] I think that it will take me 30 minutes.

[3:13:52] 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.

[3:14:03] I very much like to do it, but we have had a fraction of the time.

[3:14:08] Mr. Justice had Mr. McDonald on direct and on cross much longer than we did.

[3:14:14] And I just think that we have an obligation to our clients to put on our record.

[3:14:19] And I don't want to be rushed, but again, I don't want to get to the end of my case.

[3:14:23] And then who knows when we'll come back for cross.

[3:14:27] Mr. Chairman, I would suggest that it's 425.

[3:14:31] I've mistreated him just told you that we will go past five o'clock before she's put on this witness.

[3:14:38] Mr. Justice would have the right to cross examine this witness.

[3:14:41] She would have a right to redirect.

[3:14:42] Mr. Birch has a right to ask questions as well.

[3:14:45] And there's one more witness to be called by the city after this.

[3:14:48] Mr. Birch, do you have any other witnesses?

[3:14:52] All right, so the last one is Mr. Birch's.

[3:14:56] There's no way you're going to finish today by five o'clock.

[3:14:58] There's probably no way you-

[3:15:00] 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

[3:15:29] 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.

[3:15:37] Can I propose a solution here?

[3:15:40] I don't know if this week works, but at the next hearing, which there clearly needs to be,

[3:15:50] we need to outline ahead of time a time barrier for each party at that moment.

[3:15:57] and I understand that this is your presentation

[3:15:59] and he had the allotted time on his presentation.

[3:16:02] I fully am aware of that.

[3:16:04] But in the interest of time, I think it's important

[3:16:08] that the board together comes up with timelines

[3:16:10] and that we stick to them regardless of questions

[3:16:12] and where they're going and what they're doing.

[3:16:14] We're 100% in support of that.

[3:16:16] Okay, so for the Mr. Justice, can you, are you okay

[3:16:21] with that approach?

[3:16:23] I'm perfectly fine with that approach.

[3:16:25] Thank you.

[3:16:26] 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

[3:16:33] what works going forward. The only day that I can come in is tomorrow.

[3:16:39] And I doubt that works for everyone else.

[3:16:44] And given that we need to get it done by August 2nd,

[3:16:48] is there a way that we can push back that August 2nd?

[3:16:52] and deadline to fully hear both sides and come to a conclusion that is fair.

[3:17:00] Thank you, Ms. Torrey. Before we do that, is there a chance to finish it today?

[3:17:06] No, no, you can't.

[3:17:08] I mean, I can stay for as long as we need to today, but are we even allowed to do that?

[3:17:14] Yeah, they're not going to kick us out.

[3:17:16] I would really like to respect everyone's rights.

[3:17:19] But if we can do this today, if we come back, it's going to go on and on.

[3:17:23] So can we agree to, can we come up, give us five minutes to come up with timelines here for direct and cross?

[3:17:31] Yes, and then we have closings, and I'm fine for that.

[3:17:34] That's fine.

[3:17:35] Yes, so those are the things we need time limit.

[3:17:37] Okay.

[3:17:37] As Brown come forward, please.

[3:17:55] She just hijacked the narrative here.

[3:17:58] Yeah, hijacked the narrative.

[3:17:59] She took us in a much time, not all of her own cross.

[3:18:05] Give

[3:20:37] off your patience.

[3:20:41] We are not of the opinion we can complete this today as much as I would like to, I think

[3:20:47] collectively we don't think we're going to.

[3:20:50] So we need to consider, and we do not believe this can be completed within the 90 days, which

[3:20:56] I know was the request of the developer and the property owner.

[3:21:01] So we need to find out if we can go beyond that date, if that is going to work.

[3:21:09] And then if so, then we will need to find a date and we're looking at a couple of options.

[3:21:15] Mr. Chairman, I'm just just to clarify with the parties.

[3:21:18] It sounds as though if Ms. Tatum indicated she needed 30 minutes with her next witness.

[3:21:24] I don't know how long Mr. Birch is a microphone please.

[3:21:29] I don't think Mr. Justice can tell us how long he thinks he's going to take but if he

[3:21:34] matched it he had equal time that's that's an hour and ten minutes and then you have

[3:21:41] another witness that is what link.

[3:21:43] No we need to read direct after that.

[3:21:45] Okay.

[3:21:45] Can we limit that to ten minutes?

[3:21:47] So in hour and 10 plus another say 1520 for redirect hour and a half and then there is one more witness in Mr.

[3:21:59] Burgess. There's not one more witness that covers both and then how long do people think they need for

[3:22:05] closing or 10 10 just Mr. Justice you hear that 10 10 for closing

[3:22:18] If they say 10 minutes, so it's 10, 10, so I would take the 20, so that's well

[3:22:33] fine

[3:22:39] if you do if you do 10, I'll do just I mean if you

[3:22:50] I really don't think five minutes for any witness by the time they say hello, they're

[3:22:54] going to be longer than five minutes, but I don't think that's real.

[3:22:57] So I lost track of my time, right?

[3:23:00] She worked with me there with that.

[3:23:01] Yeah, so we were out about an hour and a half.

[3:23:04] An hour and a half until we got to closing.

[3:23:06] Yeah.

[3:23:07] We were an hour and a half to put on the less.

[3:23:09] And what you two are saying is that, first of all, you're representing two distinct parties,

[3:23:14] which is an important note here and you're saying that you should get the combined number of whatever they get.

[3:23:25] I'm saying that usually if I'm a plaintiff and I've got defendants, I would generally get the same number.

[3:23:33] 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?

[3:23:39] What are we trying to do?

[3:23:40] It would be great to know how long we could go tonight.

[3:23:43] And I don't ask that in worry how long we can go.

[3:23:46] But again, we've got a strong, strong interest in doing this tonight, if at all possible.

[3:23:53] So if we go an hour and a half, and at the close of an hour and a half,

[3:23:58] we have everybody has rested their case and made their closing arguments.

[3:24:05] That means it's 615, and then the board has an opportunity to deliberate.

[3:24:10] right.

[3:24:12] Is the board willing to do that? Parties willing to do that?

[3:24:18] You need to make a call.

[3:24:19] Clerk willing to stay with us. All right.

[3:24:23] Let's get it going. Okay.

[3:24:24] So that being said, that being said, let's watch the clock and be sure we keep the times

[3:24:31] we said we'd keep.

[3:24:35] All right. Let's thank you everyone, moving on. Next witness.

[3:24:40] It's beginning to answer your question, Mr. Victoria.

[3:24:45] Setting the clock is depending upon.

[3:24:48] That's an arbitrary thing.

[3:24:50] All right, I'll do it.

[3:24:54] So we're going to limit yours to a half an hour and then his to a half an hour.

[3:24:59] And then 10 to you for a bottle.

[3:25:03] I thought we just agreed to that, I'm confused.

[3:25:08] Okay, Mr. Ramatta, do you swear a firm the testimony will provide with the truth,

[3:25:12] We thought truth and nothing but the truth.

[3:25:13] I do.

[3:25:13] Thank you.

[3:25:14] Okay, and this is a recent.

[3:25:17] And you should introduce yourself for the record, just please.

[3:25:20] Just in a matter with City of Raleigh Planning and Development.

[3:25:23] Okay, and Mr. Rametta, how are you employed?

[3:25:27] With the City of Raleigh as the zoning administrator

[3:25:29] for the Planning and Development Department.

[3:25:31] And how long have you had that position?

[3:25:33] Approximately five and a half years.

[3:25:35] And what are your job duties?

[3:25:37] So my position is designated by City Council through the UDO to provide interpretations of the code to provide vested right determinations.

[3:25:49] I supervise a team that does zoning co-enforcement and zoning inspections and I supervise a team that staffs this board of adjustment.

[3:25:56] Okay, were you involved in the first appeal of the 2022 908 subdivision?

[3:26:02] Yes, I was.

[3:26:03] Okay, did you testify on behalf of the city?

[3:26:05] Yes, I did okay. Did you review the appeal itself? Yes, I did okay. I'm gonna approach. I am handing

[3:26:12] Mr. Remetta the city of Raleigh's motion to dismiss based on raised due to

[3:26:17] conduct and collateral is stopped. Everybody's got that in their notebook.

[3:26:23] Okay if

[3:26:24] you could please take a look at the exhibit number two to that. Okay. And can you identify

[3:26:39] that? This is the appeal of the original subdivision plan.

[3:26:45] Okay. Did you review this at the time? I did. Okay. And did you go through all of these grounds

[3:26:52] for appeal and analyze whether or not that in your opinion they had merit?

[3:26:57] Yes, I did.

[3:26:58] Okay, can we go through those pretty quickly?

[3:27:00] These are the grounds for appeal that were first brought forward, correct?

[3:27:03] Yes, they were.

[3:27:04] Okay.

[3:27:05] And number one, that has to do with whether or not the townhouse use is allowed, building

[3:27:13] type is allowed.

[3:27:14] Is that correct?

[3:27:15] That is correct.

[3:27:16] Okay.

[3:27:16] Okay, number two states that the project does not meet the standards for compact development correct.

[3:27:25] That's correct.

[3:27:26] Okay, number three states that the frequent transit area would not be allowed to give this density.

[3:27:35] That's correct.

[3:27:37] Okay.

[3:27:38] Four talks about the protective yard being too small.

[3:27:46] Correct.

[3:27:47] Okay, and that's the thing that went up to the superior court and got reversed.

[3:27:51] Is that correct?

[3:27:51] That's right.

[3:27:52] Okay.

[3:27:53] So, what is number five?

[3:27:56] Number five states that the project does not comply with the 50 foot minimum open space requirements of Section 2.3.1.

[3:28:03] point B2. Okay, so that was raised in the first appeal. Yes it was. Okay, number six,

[3:28:09] that argues that the infill requirements prohibit this correct. Correct. The next one

[3:28:15] talks about primary street being wrong. Correct. The next one has to do also with whether

[3:28:25] the infill properly applies. Yes. And was there also a large amount of time spent on the

[3:28:31] issue of whether the term plural lots encompass the word lot as well as lots.

[3:28:37] Yes, there was.

[3:28:38] Okay.

[3:28:39] If you could now look to exhibit three,

[3:28:47] and can you identify that?

[3:28:50] This is the findings of facts and order affirming the administrative subdivision decision from

[3:29:00] the board of adjustment.

[3:29:01] Yes.

[3:29:01] Okay.

[3:29:02] And this is where the Board of Adjustment reviewed the allegations asserted by the neighbors

[3:29:07] and made a decision about whether they would rule in their favor or not.

[3:29:11] That's correct.

[3:29:12] Okay.

[3:29:13] Can you look please at number seven and eight?

[3:29:17] Yes.

[3:29:18] And what is it?

[3:29:19] What is the finding there?

[3:29:22] Number seven is that the permitted density for the townhouse subdivision is governed by

[3:29:28] UDO, sections 2.3.4 and 2.3.1. Section 2.3.4 requires 6,000 square feet in

[3:29:36] area for each townhouse and that each townhouse lot be at least 16 p wide.

[3:29:40] Per section 2.3.1 there is no limitation on the number of townhouse lots in our

[3:29:45] floor as long as all requirements are otherwise met. Properties of total

[3:29:49] 105,531 square feet and when divided by 6,000 square feet allows 17

[3:29:54] and residential townhouse lots.

[3:29:56] Under section 2.3.1, D, 100%.

[3:30:02] 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?

[3:30:29] are? Finding 10 is that UDO Section 2.3.1B entitled Open Space in the R4 Districts requires

[3:30:39] at least 20% or 1 acre, whichever is greater of Open Space. The Open Space must be a minimum

[3:30:45] of 50 feet in width. Number 11 states that the property, again the size of the property,

[3:30:55] that 20% is approximately 21,106 square feet, that is less than an acre, so the one acre

[3:31:01] is the controlling threshold for the open space states that the townhouse subdivision

[3:31:07] contains 1.009 acres of open space and that the open space is located in three areas designated

[3:31:14] on the approved plans, each of which is larger than 50 by 50 feet in size.

[3:31:20] Okay, so the Board of Adjustment made a finding that the open space is located in three areas designated on the approved plan.

[3:31:28] Each of which is larger than 50 by 50 feet.

[3:31:30] Yes, they did.

[3:31:31] Okay, 12, 13 and 14 relate to the transitional protective yard. Is that correct?

[3:31:39] 15 and 16.

[3:31:41] Yes.

[3:31:42] 15 and 16 is that a determination that the lot width is correct?

[3:31:47] Yes, it is.

[3:31:48] Okay. What about 17 and 18? What is that make a finding?

[3:31:54] 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.

[3:32:17] Okay, and the next two relates to the outdoor amenity area and said that was correct.

[3:32:28] 19 numbers. 19 and 20.

[3:32:33] Yes, minimum outdoor amenity area is 5%. Yes, and 20 provides the total

[3:32:40] required. And 21 and 22 basically says it's not time for the infill. Correct. Okay, 23 talks about the

[3:32:49] The tree conservation area and 23, 24 and 25 found that that was correctly calculated.

[3:32:56] Yes, that's right.

[3:32:58] Okay, 26 and 27 said that the city's position and the developer's position on the primary street was correct.

[3:33:07] That's right.

[3:33:08] And number four in the conclusions of the law basically says a lot and lots are the same.

[3:33:14] Correct.

[3:33:15] 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?

[3:33:24] On your presentation? Yeah.

[3:33:30] That's not too cumbersome. Here comes Keegan.

[3:33:37] Okay.

[3:33:40] You tell me one. Forward. Forward.

[3:33:46] There you go.

[3:33:47] Okay, and that chart, which is also in the interior of your notebook, sets forth what

[3:33:54] the neighbors appeal was to the superior court.

[3:33:59] What I just read to you, which included the fact that the board found that the open space

[3:34:03] calculation, 50 by 50 total, was correct.

[3:34:07] The appeal to the superior court, a paragraph 44, says there are no areas that qualify as

[3:34:14] open space in 2.5, either in terms of function, use, or dimensions. Do you see that?

[3:34:20] Yes, I do.

[3:34:21] Okay. I'll finish this up in my closing. But have you, are you aware of what the Superior Court

[3:34:29] told him was? I am.

[3:34:31] What was that?

[3:34:33] That the subdivision that was appeal would originally met all the requirements for a compact

[3:34:38] In fact, development, except for the requirement for a transitional project to be asked.

[3:34:44] Objection, actually, it's not what it says, but object to the fact that he's sitting there

[3:34:48] construing what a court order says.

[3:34:50] Okay, that's fine.

[3:34:52] We don't need to dwell on that.

[3:34:55] Okay.

[3:34:55] Isn't that in the record?

[3:34:57] Yeah.

[3:34:58] Okay.

[3:34:58] Thank you.

[3:34:59] Okay.

[3:34:59] Okay, did you testify at the first hearing about open space and what was how it was calculated?

[3:35:09] Yes, I did.

[3:35:10] Okay.

[3:35:10] I'm going to hand you this is, I guess, city's exhibit three.

[3:35:16] I think that's right.

[3:35:19] And what this is, it's just excerpts from the transcript from the record of the first case,

[3:35:25] which is actually part of this record.

[3:35:43] Okay, and if you look at the first page there, is that, can you tell me if that is your test,

[3:35:48] oh you've got one, if that is your testimony from the first hearing.

[3:35:53] Yes, it is.

[3:35:54] And can you look down where the questioning first starts?

[3:35:58] And I'm going to just read my questions and let you read your answers.

[3:36:01] Okay.

[3:36:02] Okay, I say okay, so if you look at the next section, which is open space in R4, what is that requirement?

[3:36:10] 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?

[3:36:24] Okay, have you compared that to the applicant subdivision plan that was approved?

[3:36:29] Yes, I have.

[3:36:30] Okay, go to slide six, what is that?

[3:36:34] This is the site data table from the approved subdivision plan.

[3:36:36] Okay, so when you read it, does it set forth what the open space is?

[3:36:43] It does.

[3:36:44] Okay, can you walk the board through that?

[3:36:46] It says the second row over the bottom as highlighted, open space required.

[3:36:51] It lists for a compact subdivision, one acre minimum, 60 percent of that must be contiguous

[3:36:56] and under that it lists the type of open space tertiary that was to be provided a total

[3:37:02] So 43,969 square feet or 1.009 acres were provided and 28,580 I believe or 65% of that

[3:37:11] is contiguous.

[3:37:13] Okay.

[3:37:13] And your opinion has that requirement been met by this plan?

[3:37:16] Yes, it has.

[3:37:17] Okay.

[3:37:18] Can you go to slide seven?

[3:37:19] Can you identify that?

[3:37:21] This is the subdivision plan in question.

[3:37:24] Okay.

[3:37:26] At least one of those sections does it show the open space on that page?

[3:37:30] it does. Okay and can you identify that? Yes I can try and use the cursor so if you can see it,

[3:37:38] there are three distinct open spaces, open space areas demarcated. I think they are denoted

[3:37:44] by gray. I believe it's a grid or dot pattern on the actual plan. It's hard to see here.

[3:37:57] Next page. Did you were you present when Daniel Stegal testified? Yes I was.

[3:38:03] 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?

[3:38:24] And then can you read, Mr. Stagall's answer?

[3:38:27] 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.

[3:38:38] If you have at least a 50 by 50 block of open space, that will qualify.

[3:38:43] The remaining area outside of the road, the remaining area outside the road, could qualify as open space.

[3:38:49] Okay. And on the next page, that's fine. Examination of Mr. Stegal.

[3:38:55] Yes.

[3:38:56] And it says, okay, the amount of open space has been met. He says, yes.

[3:39:01] Correct.

[3:39:02] So can you point to the area where the open space is?

[3:39:06] He says, yes. So there's some open space here indicating around the,

[3:39:12] or which also encompasses the TCA tree conservation area.

[3:39:15] and then in the middle of the lot and then up to the northeast corner.

[3:39:20] Okay, and 2.3.1 says it has to be at least 50 feet.

[3:39:24] So, in this area and the first area you looked at over here?

[3:39:29] Yes.

[3:39:29] Is that at least 50 by 50 feet in area?

[3:39:32] Yes, there is.

[3:39:33] So, once it's established, does it matter?

[3:39:36] I mean, once you have 50 by 50, is that correct?

[3:39:41] Correct, yes.

[3:39:42] Okay, the requirement is met.

[3:39:45] 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.

[3:40:02] 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.

[3:40:14] Yes.

[3:40:14] And that is what the City Council decided is required for townhouse subdivisions.

[3:40:19] Objection.

[3:40:20] 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.

[3:40:29] This is only to determine whether or not we've decided this issue, not whether the testimony is correct.

[3:40:35] Okay, no more open space requirements, that's it.

[3:40:39] That's it.

[3:40:39] Probably you've 15 minutes left.

[3:40:41] Okay, all right, can you please pull up the first plan, Mr. Remetta?

[3:41:00] Okay, before, okay, we'll get back to that in a second.

[3:41:03] So when you looked at this plan, you were determining when you testified whether the 50 by 50 was met, correct?

[3:41:09] Correct.

[3:41:10] And can you explain to the board how you determine that to be the case?

[3:41:17] How the 50 by 50 foot area has been met, satisfied, as in the exact same manner the Mr. McDonald

[3:41:24] described.

[3:41:25] You can see the area outlined in blue in the center is an open space area.

[3:41:31] area, there was at least a 50 by 50 foot block of open space in that area, other areas that

[3:41:39] were contiguous to it may or may not have been 50 feet wide but the requirement was

[3:41:43] satisfied.

[3:41:44] Okay.

[3:41:45] Are there areas in those three open space areas that do not meet the 50 foot requirement?

[3:41:52] Yes.

[3:41:52] It does taper down in some areas.

[3:41:54] Okay.

[3:41:55] Were you aware of that at the time?

[3:41:57] Yes it was.

[3:41:57] Okay. And is that part of what you prepared to testify to to show open space was met?

[3:42:03] Yes, it was.

[3:42:04] Okay. I'm also, so, so in your, is the second, with respect to the first, for the second plan,

[3:42:09] is there any difference as to how the open space 50 by 50 was determined?

[3:42:15] Same methodology was used. Obviously, the layout was slightly different as we've heard,

[3:42:19] but it was the same exact methodology.

[3:42:21] Okay. I'm going to hand you now your affidavit, which is Exhibit 5 to the Kegin-Mint-Dommit

[3:42:30] If you could look at page 8,

[3:42:41] section 5, was this your part of your testimony before the board?

[3:42:45] Yes, it was.

[3:42:46] And what is, what is 5 ask, what is the argument that you're addressing?

[3:42:53] 5 is appellance argument number 5 that, quote, the project does not comply with the 50-foot minimum open space requirements

[3:43:00] of section 2.3.1, B2, the secondary, three conservation areas, area widths and section 9.1.4,

[3:43:08] B are also not satisfied, I'm quote.

[3:43:10] Okay, and then you say the reasons why that's incorrect.

[3:43:14] Correct.

[3:43:14] Can you read a little I?

[3:43:17] A little I.

[3:43:19] Little I is my statement that says open space does not have to be provided in a single area,

[3:43:26] but instead may be broken into several different areas that collectively meet the minimum amount of required open space.

[3:43:33] 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.

[3:43:43] 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.

[3:43:52] 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.

[3:44:00] Is that the same argument you hear Mr. Justice making today?

[3:44:03] Yes it is.

[3:44:04] Okay, and the board ruled in the city and the developers favor?

[3:44:10] They did, yes.

[3:44:11] Okay, and that's in the order?

[3:44:13] It is, yes.

[3:44:14] Okay,

[3:44:27] do you have anything?

[3:44:29] Okay, I've got a little time left, I'm going to stop now and...

[3:44:35] I'm not carrying that over for my other times.

[3:44:39] Don't push your luck here.

[3:44:41] All right, thanks.

[3:44:43] Are you done?

[3:44:44] Thank you very much.

[3:44:44] Yes.

[3:44:45] Mr. Justice.

[3:44:45] Do you have Keegan's affidavit in front of you?

[3:44:49] No.

[3:44:50] Do you have the court order in front of you?

[3:44:53] Oh.

[3:44:53] Yeah.

[3:44:54] The court order.

[3:44:55] Do you see the part where the court reverses the board's decision?

[3:44:59] See the...

[3:45:00] So, in the judges' decision, it would be page 9, city board of adjustments decision to affirm

[3:45:14] that December 2022 approval is hereby reversed. See that? I do. In terms of the board's decision,

[3:45:23] The

[3:45:26] board's decision, you were discussing two paragraphs in particular, paragraph 10 of

[3:45:36] the board's decision, which was reversed.

[3:45:38] You saw that from the court order, it was reversed, right?

[3:45:44] Justin was reversed.

[3:45:46] Paragraph 10.

[3:45:47] Well, paragraph 10 of this board order that was reversed says the open space, but it's me

[3:45:53] The minimum of 50 feet in width says that, right?

[3:45:57] In paragraph 10, the findings of the board's decision.

[3:46:02] Last Senate.

[3:46:03] I don't see that.

[3:46:05] Page.

[3:46:06] Page two.

[3:46:08] It starts with paragraph that has a 10.

[3:46:11] Number 10 says UDO section 2.3.1 B is entitled Open Space.

[3:46:15] Look at the last Senate.

[3:46:17] The Open Space must be a minimum of 50 feet in width.

[3:46:20] It doesn't say any exceptions there, right?

[3:46:24] It does not note the exceptions there now.

[3:46:27] And then in 11, at the very last sentence, where it says the open space is located

[3:46:31] three areas designated on the approved plans, each of which is larger than 50 by 50 in size.

[3:46:38] That's what it says, yes?

[3:46:39] That says open lot, not open space.

[3:46:42] It actually says the open space is located in three areas designated on the approved

[3:46:49] plans each of which is larger than 50 by 50 in size is that what it says? That's

[3:46:55] what number 11 says. Is there anything in this order including in paragraph 11

[3:46:59] that says that you are lumping in any open space that is smaller than 50 by 50?

[3:47:07] Yes or no? Okay. This is the board's order not the judges order correct? This is the board's order.

[3:47:12] Okay. That's what is there anything in the board's order including paragraphs 10 or 11 that

[3:47:18] It says that the one acre that is necessary to meet the compact development standards,

[3:47:25] that the developer is lumping in open space that is smaller than 50 by 50.

[3:47:32] Does it say that?

[3:47:42] Not that I can see, quick scan.

[3:47:45] It is a true statement, and we're not disagreeing that these three areas of open space on the

[3:47:54] original plan are larger than 50 by 50. We're agreeing with that. The board's order doesn't say

[3:48:01] anything about space being smaller. Does it?

[3:48:11] Again, I don't see that explicitly listed.

[3:48:13] So in terms of the excerpts that Robin handed to you that you looked at, you were asked to,

[3:48:24] You testified at the board hearing, did you recall that I asked you questions at the

[3:48:31] board hearing, right?

[3:48:32] That's your due.

[3:48:32] Yeah, so here is, this is record page 2513 and I'm just, I'm showing this to refresh

[3:48:40] your memory about what I was talking about in relation to width and I was asking you questions

[3:48:48] about the width of this area around the perimeter that's outside the TCA. Do you

[3:48:57] see that testimony or the questioning I've highlighted?

[3:49:01] Can I have a copy, please?

[3:49:03] It is for his reference only.

[3:49:09] I'm not submitting this. This is record page 2513.

[3:49:15] So, I guess

[3:49:21] Justin, I'm going to ask you to look at this, did I at any time were you

[3:49:26] asked by my side anything about the space, this is during the hearing, was there any questions

[3:49:33] raised about the width of the center piece of property or the width of the TCA's for that

[3:49:41] matter?

[3:49:42] I know there was a discussion on the width of the open space, on the width of the TCA.

[3:49:46] I don't recall a specific question you asked.

[3:49:50] Looking at the specific page of the testimony that I've highlighted, it is referring to

[3:49:57] the space that is outside the TCA around the perimeter.

[3:50:03] I'm asking whether that would qualify as an open space, am I not?

[3:50:07] Yeah, it seems like you were again conflating open space and open lot, which you did pretty

[3:50:11] frequently and so the line of questioning begins with open lot and then you moved into

[3:50:16] open space at that time. I'm complaining at the end of the the court disagreed with

[3:50:21] your opinion, right?

[3:50:24] The only again that the efficiency of the court found was that

[3:50:29] there needed to be a transitional protective error. So I know that in terms of what your

[3:50:34] attorney has done is to come through the testimony. Do you have anything where I am questioning

[3:50:43] you about whether or not the developer complied with the one-acre of Open Space.

[3:50:49] Do you have any testimony that you can point to in the record where I'm contesting?

[3:50:55] We are contesting that you didn't meet the one-acre.

[3:51:00] Well, your appeal said that the Open Space was not satisfied.

[3:51:06] I'm talking about during the hearing.

[3:51:08] Did we ever contest that?

[3:51:10] Your appeal was part of the hearing.

[3:51:12] The appeal was contesting what you were calling the space around the perimeter.

[3:51:19] That it wasn't 50 feet. It served no function. It was not open space. That was the

[3:51:25] point of the reference to the 50 feet. My question to you, Justin, is did I ever

[3:51:31] attack this plan based on the one acre?

[3:51:36] I don't know.

[3:51:40] You're, you're, you attack that there was not enough open space.

[3:51:43] I can only deduce that you did not think that there was one acre of open space provided.

[3:51:48] In terms of specific testimony, Justice, and I'm, I'm assuming that you've spent a lot

[3:51:53] of time with your lawyer trying to comb through and look for testimony.

[3:51:58] Do you have any testimony where I am asking you the question about this plan?

[3:52:04] Does it meet the one acre?

[3:52:05] Does it?

[3:52:06] that that is the topic. Do you have that testimony here today?

[3:52:12] I think your assumptions incorrect, but now I don't have anything specific other than what I've discussed.

[3:52:17] It's not my assumption. It's just simply saying, do you have the portions of the record of the testimony?

[3:52:22] 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.

[3:52:37] right? That's what the prior plan said. Yes? Okay. Do you have any testimony? Again,

[3:52:45] you would have combed through this and you would have had it if I had made it an issue.

[3:52:49] Do you have any testimony that you can offer up where I am, we are contesting the 60%

[3:52:56] continuity?

[3:53:06] There's like thousands of pages of testimony. I guess Mr. Chairman, how would

[3:53:13] imagine they have combed through all the testimony to try to support their

[3:53:16] motion. I'm simply asking this witness, does he, can he point to any testimony?

[3:53:22] Does he have anything to offer where we are contesting the

[3:53:25] contiguity requirement? Can I just say on Friday when I raised this, you said there

[3:53:31] was no discussion about like 50 by 50 block. It was never raised. There was no

[3:53:37] testimony and I could comb through the record to find it. So I did that and I found

[3:53:42] it and now you want, you didn't come through and you want him to memorize 2,000 pages.

[3:53:47] He can try to answer if he wants to, but I just want to say you told this board because

[3:53:51] I watched that video three times that what he just said we talked about, you never talked

[3:53:56] about.

[3:53:57] Oh no, I'm going to, we're going to talk about that block reference which is in relation

[3:54:01] to the strip of land around the perimeter.

[3:54:04] We're going to cover that in a second, but is the answer no that you don't have any testimony

[3:54:09] you can point to where we were contesting whether the developer met the 60 percent requirement.

[3:54:15] I don't have the entirety of the written testimony.

[3:54:18] In front of me, again, I have your appeal, which your very first appeal ground for appeal was that

[3:54:24] the project fails to qualify because the required open space does not have the required width or

[3:54:29] continuity. So in terms of the only reference, I guess that you have these excerpts in front of you

[3:54:36] that she handed up, right?

[3:54:39] You have that with the color, says Craig Justice,

[3:54:42] in green, Robin Tatum is in blue,

[3:54:47] Daniel Stigall is in yellow, you have that?

[3:54:50] I do.

[3:54:50] Do you have that members of the board?

[3:54:52] This is the experts they have.

[3:54:54] So there is one reference in a question with Daniel Stigall,

[3:54:59] where the words 50 by 50 block comes up.

[3:55:03] Do you see what my question was?

[3:55:04] us. My question, let me just speed it up. So in terms of figuring out what this open space,

[3:55:10] this open area space is around the perimeter. This wouldn't even qualify as open space

[3:55:17] for compact development because it's supposed to be a minimum of 50 feet and width, right?

[3:55:23] And his answer is, so this area of the plan adjacent to the property outside of the road,

[3:55:29] You could qualify some of this area as open space.

[3:55:33] If you have at least a 50 by 50 block of open space that will qualify the remaining area

[3:55:39] outside of the road, the remaining area outside the road would qualify as open space.

[3:55:44] That's what he said.

[3:55:45] Yes?

[3:55:46] That's what he said.

[3:55:47] And the reality is the city didn't at the end of the day even call this space open space

[3:55:53] as we later found out, because it's not reflected on the original plan as open space.

[3:56:01] That's right.

[3:56:01] Yeah.

[3:56:02] So, if you go on and look at his testimony, he continues on talking about that strip of

[3:56:08] land, and ultimately he opines, similar to you, that this land could have been open space

[3:56:17] here because its dimension of length is greater than 50 feet.

[3:56:22] Do you remember that?

[3:56:24] I do.

[3:56:25] At the end of the day, neither the Board of Adjustment in its order did not say that

[3:56:33] the strip of land in question, which was not included as open space, was somehow

[3:56:39] open space, right?

[3:56:41] The Board didn't know there would be any reason for them to.

[3:56:44] It wouldn't have been because at the end of the day, you weren't contending that was

[3:56:47] open space.

[3:56:48] That's right.

[3:56:49] 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?

[3:56:59] I don't know why they would, again.

[3:57:01] 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.

[3:57:13] Do you recall even the discussion in the court order about that?

[3:57:16] I recall the court order saying that the plan required, complied with all requirements for a compact development.

[3:57:23] But for the transitional project of the argument.

[3:57:25] Justin, did you read the petition to the court that asked the court to look at the various issues,

[3:57:31] what's called a petition for rid of cert, did you read that?

[3:57:35] I don't know.

[3:57:36] If you read, if you didn't read it, I won't go into it with you because it is a public record.

[3:57:42] but this is our petition to the court of the issues that were being contested.

[3:57:48] Had you looked at that before?

[3:57:52] I may have, I can't say for sure.

[3:57:55] Well, if you want to take the time and look, is there any issue where we're raising,

[3:58:01] where we're arguing about meeting the one acre, or meeting the contiguity requirements?

[3:58:07] To your own.

[3:58:10] Again.

[3:58:10] I've got that on there if you need a reference.

[3:58:16] If you don't know, you don't know.

[3:58:19] I don't know.

[3:58:19] Okay, I'll take it back.

[3:58:36] Is the justice here at 10 minutes?

[3:58:39] Meaning I have 10 minutes left?

[3:58:41] No, no, no.

[3:58:41] You've gone 10 minutes.

[3:58:42] You have 20 left.

[3:58:43] Oh.

[3:58:44] Okay.

[3:58:44] Thank you.

[3:58:46] Do you recall Jeffrey Brown testified for our side?

[3:58:51] As a civil engineer looking at applying your standards to the planning question.

[3:58:59] Remember that?

[3:58:59] And the gentleman from Asheville, I believe.

[3:59:01] Yes, yes.

[3:59:02] And you would have looked at his affidavit in his report, right?

[3:59:07] Yes.

[3:59:08] So in the record, starting on page 598,

[3:59:12] is his engineering report,

[3:59:20] starting on page 598?

[3:59:25] Number, what is that proposed number of this?

[3:59:28] It's in the record on page 598.

[3:59:30] Ralph, what number are we?

[3:59:32] I don't know, sorry.

[3:59:34] Let me think.

[3:59:42] I think I was at 15.

[3:59:46] I think this is 16.

[3:59:48] 16.

[3:59:49] All right.

[3:59:49] I'll mark it as a pellet exhibit 16.

[3:59:58] But while they're doing that,

[3:59:59] Just...

[4:00:00] And I'm going to ask is in his report, so this is our main person who is drawing out looking

[4:00:08] at the planning question and applying the standards, looking through this, does our main witness

[4:00:14] draw on the question, the one acre or the 60% contiguity?

[4:00:20] 15. Do

[4:00:27] you want me to review the entire document?

[4:00:29] Well, you've seen this document before, so several years ago.

[4:00:33] Did any, did our main witness even dispute because just in, and Mr. Chairman,

[4:00:43] obviously, what we're saying is y'all are, you're bringing up issues that we're not

[4:00:46] litigated before, and so in terms of our main witness, do you looking at his report

[4:00:53] to see draw into question and contest the one acre or the 60% contiguity?

[4:01:01] Chairman, I'll go ahead and send or exhibit 15 on.

[4:01:06] And I'm, again, trying to understand here, you're, you're spending a lot of time

[4:01:11] based on the argument that you didn't contest something the last time.

[4:01:15] So I guess there's, this is going to go in a particular direction.

[4:01:19] You're trying to be-

[4:01:20] He's saying I did, and I'm saying I didn't, because Mr. Chairman, the-

[4:01:26] 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?

[4:01:49] Not really. I'm saying that the board, we weren't contesting the one acre in the 60%

[4:01:56] contiguity. At the end of the day, the board went ahead and made a finding of that

[4:02:02] the one acre was satisfied in the 60% contiguity. We did not contest and we weren't

[4:02:07] disputing whether or not there were areas less than 50 feet because, quite frankly,

[4:02:13] looking at this plan, it doesn't appear to the eye that there are areas that are

[4:02:19] less than 50 feet. And we weren't contesting that the one acre wasn't met. And so it was

[4:02:26] not an issue. This plan is so different than this plan when a huge chunk of the property

[4:02:36] has so-called open space of less than 50 feet. It's an apple and a watermelon because we

[4:02:44] We weren't, it's an odd argument to say at this point that what was litigated was a

[4:02:51] new issue that we did not litigate.

[4:02:54] We were only talking about what is going on on the perimeter.

[4:03:00] That's all we were talking about.

[4:03:01] We spent four days talking about the perimeter, not the center.

[4:03:07] And now they want to say, oh, yes, you did talk about the center.

[4:03:11] So neither did the Court of Law do with that nor did the Board look at that.

[4:03:17] So just in terms of, you've had time to look at Jeffrey Brown's affidavit or report, does

[4:03:25] he draw into question whether or not you could take open space less than 50% and count it

[4:03:34] As long as you connected it somewhere to space, that was 50 by 50.

[4:03:39] Pears, he does make arguments that the open space requirements were not satisfied.

[4:03:45] Points to section 2.5.6, but I don't see a specific reference to a 50-foot width.

[4:03:51] His claim was that there are areas.

[4:03:58] I'm not sure exactly what his claim was, but it doesn't make sense to me.

[4:04:02] 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.

[4:04:16] So Mike, looking at this, does he draw any question about the the center being somehow not compliant 15 minutes?

[4:04:27] I don't see any.

[4:04:28] 14 minutes left.

[4:04:29] Thank you.

[4:04:30] Mr. Justice.

[4:04:30] Thank you.

[4:04:31] 0

[4:04:47] .4 minutes left.

[4:04:48] Oh, okay.

[4:04:49] It's not 14 minutes left.

[4:04:50] I had a necessary occasion.

[4:04:52] Sorry.

[4:05:12] The board's decision on this, I think the high-archie or the your article 12.1 in terms of talking

[4:05:23] about how to use decisions of this board to have presidential value.

[4:05:31] There is, there is, that is a reality in Article 12.1, right?

[4:05:37] That if the board makes a decision about, in this instance, the way you calculate

[4:05:43] open space, that that would be binding on the city, and that's the way it's going

[4:05:49] to be done for any number of projects that follow unless the text changes, right?

[4:05:54] No, it's 12.1 as in regards to defined terms, specifically.

[4:06:00] So it says that if there is a term like width is not defined, that you apply

[4:06:12] Board of Adjustment precedent, right?

[4:06:15] It does say that, yes.

[4:06:16] And width, for purposes of discerning open space, width is not defined.

[4:06:24] Is it? It is not. And so if this board was to decide, yes, we decided and we did decide,

[4:06:34] or we've now decided, that open space width can be judged by this 50 by 50 block methodology,

[4:06:43] that would be binding moving forward on all projects that you look at, right, unless the ordinance changes.

[4:06:50] Yes?

[4:06:51] objection. That's a legal conclusion and we're only talking about this case.

[4:06:55] It is, this case has great ramifications for the entire city in terms of what open space is required

[4:07:04] of somebody and what neighbors can expect about open space. And, and in this case,

[4:07:11] 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?

[4:07:37] 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.

[4:07:46] 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.

[4:07:58] 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

[4:08:30] This note here in the bottom left side about portions of open space less than 50 shall overlap with the TCA.

[4:08:41] You see that?

[4:08:42] I do.

[4:08:43] 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.

[4:08:58] I think that note is just referring to that sections, which says that areas such as

[4:09:06] three conservation areas in one of your parks can be less than 50 feet wide and count as

[4:09:10] open space.

[4:09:15] Those are all questions I have, Mr. Jim.

[4:09:18] Thank you, Mr. Justice.

[4:09:20] Do you want to have another bite of the apple here?

[4:09:24] I just have a quick point of clarification.

[4:09:26] The testimony that was into the record August 9, 2023, Judge Collins had an opportunity

[4:09:34] to review that as well.

[4:09:36] Is that correct?

[4:09:38] It wasn't an issue.

[4:09:40] So, and this will be an important point, when a judge looks at something in a zoning appeal,

[4:09:45] it is the petition that drives the issues, meaning we appeal and we say,

[4:09:50] here are the contested issues.

[4:09:52] And so, when the judge rules, that is the universe of the issues the judge is looking.

[4:09:57] There were two main issues before the Court.

[4:10:00] It was the transitional protective yard and the primary street infill record.

[4:10:06] So, the Court ruled against us on the primary street infill recordment, ruled for us on the

[4:10:12] transition protective yard.

[4:10:14] So, this block methodology, which was buried in an affidavit, was not even discussed

[4:10:20] during the hearing process as an issue because we were never contending that they

[4:10:25] didn't meet the one acre or the 60 percent. They had enough room in the middle.

[4:10:31] All I asked was that the judge would have had an opportunity to review this correct?

[4:10:35] No, because his jurisdiction was limited to the issues that were presented in the petition.

[4:10:41] Mr. Justice, so that I can clarify whether you and Ms. Title simply disagree or you're

[4:10:46] answering a different question, is this excerpt information that was included in the record

[4:10:52] on appeal before Judge Collins?

[4:10:55] It was part of the record of appeal, like 1,000 other pages that were part of the record

[4:11:00] that had a lot of which had nothing to do with issues.

[4:11:02] Justice, thank you.

[4:11:03] We just need to know the answer to the question that was being asked was is it part of the record

[4:11:07] and the answer is yes.

[4:11:09] No, that was not the question Lee Ann.

[4:11:11] And the question was, would the court consider that

[4:11:13] in the petition defines the issues?

[4:11:16] That is the jurisdiction of the court.

[4:11:18] I'm not here to argue the law with you.

[4:11:22] I'm just trying to be sure that the board's question

[4:11:24] was answered and I think the board question is,

[4:11:28] was this before Judge Collins?

[4:11:30] I don't know that any of you know what he didn't look at,

[4:11:33] but be that as it may, that was the question.

[4:11:37] As opposed to being a document that was not in the record

[4:11:40] It was definitely part of the record.

[4:11:42] Thousands of pages in the record.

[4:11:45] Okay. And, Mr. Ramatta, I do have this open space chart where you said you have seen the petition at some point.

[4:11:53] Yes.

[4:11:54] And it is a part of the record before this court.

[4:11:57] Can you see there the Superior Court appeal from the appellance number 44 and read that for me?

[4:12:06] It says there are no areas that qualify as open space in Article 2.5 either in terms of

[4:12:13] function or use or dimensions.

[4:12:16] Open space does not qualify.

[4:12:18] So I'll just leave that at that.

[4:12:20] Can you please pull back up the map from the second, and

[4:12:36] is that the second approval that

[4:12:39] you have up?

[4:12:40] Yes it is.

[4:12:41] Okay, and I'm going to hand you again the decision of the Board of Adjustment before.

[4:12:47] Can you read one of the findings here in number 11 at the end?

[4:12:54] The whole thing, just the last sentence.

[4:12:57] The last sentence of number 11 reads that the open space is located in three areas designated on the approved plans,

[4:13:05] each of which is larger than 50 by 50 feet in size.

[4:13:08] Yes.

[4:13:09] Okay.

[4:13:10] Oh, I've got the wrong plan.

[4:13:11] I can pull it.

[4:13:12] Yeah.

[4:13:13] Yeah.

[4:13:13] So could that conclusion have been reached, had the board extended the 50th by 50th requirement outside of that block?

[4:13:29] No.

[4:13:30] If Mr. Justice's contention were to be followed, then this plan would not be compliant either.

[4:13:36] That's all I have.

[4:13:38] Mr. Chairman, I'm thinking to ask you to interpret the board's decision.

[4:13:42] Justin, can you read actually the first sentence of paragraph 44?

[4:13:46] I don't think there's a chance for-

[4:13:49] He read the second sentence.

[4:13:51] I'll find the first sentence for you.

[4:13:53] Ms. Brown?

[4:13:55] I would just go say, typically the recross is only allowed to the extent that an issue has been raised that is different

[4:14:06] and then was in the original testimony.

[4:14:10] So you need to decide if it was different or not different.

[4:14:12] That's not my decision, but that's the rule.

[4:14:16] I think this is an issue we've kind of gone all over

[4:14:19] to at this point, so okay, so now Ms. Taylor, you said you had no other witnesses?

[4:14:30] No, but I think so.

[4:14:31] Mr. Birch, you're calling

[4:14:42] Jason Meadows.

[4:14:44] issues. Be sure that microphone is on.

[4:14:49] And did we agree to the exact, the same, a lot of time frame? What is our understanding

[4:14:55] of the a lot of time frame? I thought it was five minutes.

[4:14:58] Okay.

[4:14:58] Again, she didn't use-

[4:15:00] 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.

[4:15:24] Basically, we could. Okay, one moment, please. Name and address for the record. Jason Meadows, business address.

[4:15:31] This is 910, Tri-On Hill Drive, Suite 100,

[4:15:34] Raleigh, North Carolina.

[4:15:35] And Mr. Meadows, do you swear from the testimony

[4:15:37] that you will provide with the truth,

[4:15:38] or with the truth and nothing but the truth?

[4:15:40] Yes, sir, I do.

[4:15:41] Okay, great, Mr. Worker.

[4:15:43] Jason, if you could, provide a little background for us

[4:15:46] on your education and any licenses you may have.

[4:15:49] Sure.

[4:15:50] Receive the bachelor's in science and civil engineering

[4:15:52] from NC State University.

[4:15:54] I'm a professional engineer as of 2010

[4:15:57] in the state of North Carolina.

[4:15:58] want to own and operate R.D.U. Consulting, PLLC, which is a local firm here in Raleigh.

[4:16:03] We generally do about 95% of our business in Raleigh's jurisdiction.

[4:16:07] I was the overall engineer in charge of this Williamson Plan, I've also done other compact

[4:16:16] subdivision work within Raleigh.

[4:16:21] Thank you, Jason.

[4:16:22] Just to clarify, how long you've been submitting plans to the City of Raleigh under the UDO?

[4:16:28] Yeah, generally, UDO, I believe was adopted in 2013 and we've been operating under it in Raleigh, since then.

[4:16:35] Do you have a sense of how many plans, total or annually, that you submitted to the city under the UDO?

[4:16:43] 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.

[4:16:55] And you have a sense about how many of those are compact subdivisions.

[4:17:00] I believe I have one other compact subdivision that's under construction now in Raleigh.

[4:17:05] And if you submitted any other, you mentioned that one 908 Williams and any other under like

[4:17:11] missing middle ordinances.

[4:17:14] Yeah, generally since the adoption of missing middle one that altered the ordinance generally

[4:17:20] really what is available to us to use for residential building types and product.

[4:17:25] So every project since adoption of missing middle likely used some advantage of the missing

[4:17:32] middle ordinance.

[4:17:34] So how would you characterize your familiarity with the Royal UDO?

[4:17:38] I think that I'm pretty well versed in the ordinance given how it's written and been interpreted

[4:17:43] and based on my experience through development plans of middle such as this.

[4:17:47] 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.

[4:17:58] Mr. Chair, I'm going to tender him as an expert in civil engineering.

[4:18:04] As an expert in civil engineering, I have no objection.

[4:18:07] Okay, go ahead, thank you.

[4:18:09] So, Jason, if you reviewed the appellant's bases for appeal, the appeal document that they filed with the city.

[4:18:16] Yes, I have.

[4:18:16] Yes. And do you believe any of those bases for appeal are correct?

[4:18:22] No, sir. I do not.

[4:18:24] And have you reviewed Jose Martinez's report where he lists the alleged UDO compliance issues?

[4:18:31] Yes, sir. I have reviewed.

[4:18:32] And you were present yesterday for his testimony on that?

[4:18:36] I was here for his testimony, yes, sir.

[4:18:38] That was not yesterday, just for the record.

[4:18:40] Friday.

[4:18:41] Do you believe any of the alleged UDO compliance issues that were identified by Mr. Martinez

[4:18:51] or described in his testimony or do you believe any of those are correct?

[4:18:55] No, Sarah, I do not.

[4:18:58] In preparing the plan that's now been appealed, did you employ the same methodology employed

[4:19:05] with planned one for the purposes of designing the open space areas?

[4:19:10] Yes, generally the calculations remain the same and of course based off the testimony

[4:19:15] from the first appeal, we utilize the same 50 by 50 areas in our open space calculation

[4:19:22] as well as the 60% contiguity requirements on site.

[4:19:27] So in the current plan, one being appeal does each open space area have an area that measures

[4:19:34] at least 50 feet by 50 feet.

[4:19:37] Yes, sir.

[4:19:37] It does.

[4:19:39] And you've listened to all of the testimony of Keegan, McDonald, and Justin Rameda,

[4:19:46] both on Friday and today regarding how the plan complies with the UDO.

[4:19:52] Yes, sir.

[4:19:54] And do you agree with their testimony and with Keegan's affidavit on how the plan

[4:19:59] complies with the UDO?

[4:20:00] objection, just to continue objection to this, you're serving your responsibility.

[4:20:07] Yes, sir, I believe that to be accurate.

[4:20:14] Great, one second, Jason,

[4:20:52] Jason, are you able to identify what that is that I'm showing you?

[4:20:58] Yes, generally that's the approved subdivision plan, she C2.0, I believe this is the exhibit.

[4:21:07] 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.

[4:21:20] And so, can you identify where you've located those 50 by 50 areas?

[4:21:26] Yes, sir.

[4:21:27] Yeah,

[4:21:30] so as mentioned throughout today, there are three boxes on this plan, similar to what Keegan would have hand drawn.

[4:21:38] on in each zone that show the 50-by-50 dimensions within the open space area.

[4:21:51] Mr. Chair, we would like to introduce this.

[4:21:53] Well, as an exhibit, Ralph, this is number three.

[4:21:58] Is that correct?

[4:21:59] Thank you.

[4:22:00] Jason, just to clarify, how many kind of distinct open space areas are there?

[4:22:05] There are two distinct open space areas on this plan.

[4:22:08] And each and open space area does contain an area measuring at least 50 by 50.

[4:22:14] That's correct.

[4:22:18] That's all we have.

[4:22:20] Thank you.

[4:22:21] Justice, any questions?

[4:22:23] Yes.

[4:22:23] Jason, the final plan there were drafts before that final plan that was submitted to the city, right?

[4:22:32] Yes, sir.

[4:22:33] This is the approved plan plus those additional boxes shown for clarity.

[4:22:39] 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.

[4:22:52] 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.

[4:23:02] All right, so let me show you that Mark was exhibit 16, 16 is communication of the library of a plan that you prepared.

[4:23:13] That's an earlier iteration.

[4:23:15] Objection, this has already been said it's not admissible. It's within the attorney-clant privilege.

[4:23:20] He's bringing it back up again. We're talking about whether a secret meeting or whatever happened and we object to that.

[4:23:36] I'm sorry I do want to hear your point. I just I think you need the microphone for the recording.

[4:23:41] Thank you.

[4:23:45] 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.

[4:23:57] to suggest that we can't even talk about plans that are public record that were submitted

[4:24:03] to get to where they finally landed is absurd to not even be able to discuss the deliberative process.

[4:24:14] And it's a plan he drew and it was submitted to the city.

[4:24:17] Mr. Justice, are you of the opinion that one plan gets submitted, and it's accepted,

[4:24:25] I mean, aren't, isn't it normal for iterative plans to get comment and get revised?

[4:24:31] Are you saying that's not the case?

[4:24:32] What I'm saying is if he is so sure about how everything is to apply, then at the end of the day,

[4:24:40] there would have been basically one plan that showed up.

[4:24:43] 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.

[4:24:51] If everything's so cut and dry that would have been just we walked in with one plan it was done.

[4:24:57] These are drafts. That means that they were struggling with how to end up where they ended up and we presented.

[4:25:04] 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.

[4:25:16] It does appear to be an email correspondence that includes a plan that you had presented.

[4:25:25] So it would be vetted by the city, right?

[4:25:28] Yeah, just like any other plan, we would do if there was someone that would listen.

[4:25:31] We would certainly share a plan to see if we were compliant as we resubmit.

[4:25:35] I mean, I don't think that's outside the norm.

[4:25:37] The plan is being submitted to the city attorney's office.

[4:25:40] That's correct.

[4:25:43] I'd like to introduce, again, I object, this is attorney client privilege between Jason and I.

[4:25:48] He forwarded the plan to us, right?

[4:25:53] We represent, he's part of our team that I represent.

[4:25:57] My colleague then forwarded the plan to the city attorney, right?

[4:26:04] We had this discussion on Friday of last week that these are

[4:26:08] privileged attorney client

[4:26:10] Conversations between us and then subject to a joint defense agreement between us and the city

[4:26:17] Mr

[4:26:18] Chairman, you see the truth.

[4:26:19] Enough finish.

[4:26:20] These documents

[4:26:21] Miss Hill was responsible for them. We have he says they were produced. Maybe they came from the city

[4:26:27] They were in a and a folder that was specifically said do not produce a attorney client privilege. Mr. Justice has it

[4:26:34] I'm not saying somebody from the city didn't make a mistake, but what I'm saying is these

[4:26:38] were never intended.

[4:26:39] Now, can I just finish to say it doesn't matter.

[4:26:42] We either meet the plan or we don't, but that's really all I have.

[4:26:46] I understand.

[4:26:46] Doesn't that once he, once they're produced to him, doesn't it destroy the privilege because

[4:26:51] a third party?

[4:26:53] Not if it was done inadvertently without a party or anything.

[4:26:57] That's the part I missed, the inadvertent aspect of it.

[4:26:59] We're trying to get to the bottom of it.

[4:27:01] 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.

[4:27:14] Ms. Brown, Ms. Brown, I want to be sure we're touching all the right basis here.

[4:27:20] This was brought up before we made some decisions.

[4:27:25] I don't want to get in the middle of this other legal stuff that's going on an attorney

[4:27:29] clock privilege is something I understand is pretty important in the industry.

[4:27:34] So can you give me some guidance?

[4:27:38] I was trying to compare a pellet 16 with documents that you have rejected previously.

[4:27:53] The contention that you have is that this is a document that was produced in ERA, it's

[4:27:59] privileged, it's a communication between an individual and an attorney that's work

[4:28:04] product that was then followed under what Council is contending as a joint representation

[4:28:10] agreement.

[4:28:10] If all of that is true, I don't, you need to decide whether you agree those privileges

[4:28:21] and exist.

[4:28:22] And if that's, if you are determined that this document is privileged, then you should

[4:28:27] not be considering it.

[4:28:31] Mr. Chairman, we don't have a joint defense agreement.

[4:28:34] We don't have any affidavits and we don't have a court hearing to get into the weeds of

[4:28:40] this.

[4:28:41] This is a document that was produced because we asked, please provide the public records of the deliberative process.

[4:28:47] And so when documents come back that shows the deliberative process, we're assuming this is the deliberative process.

[4:28:53] And you can see on the email, it's like, send this plan to staff for their review.

[4:29:00] So this is how it got to staff.

[4:29:02] I don't think we can discuss what it says, we can get into it if we allow it into the record.

[4:29:08] We

[4:29:14] don't care.

[4:29:16] We just want to make sure we're not waving attorney client privilege.

[4:29:19] We'll find out later how it got out.

[4:29:21] I do want to just object to the extent that it doesn't matter.

[4:29:25] The final plan matters, and that's it.

[4:29:28] We can bring this in at this point, Mr. Justice, and I would, again, well, we'll see where

[4:29:36] it takes us.

[4:29:38] I stopped your timer, by the way, so you have your allotted time.

[4:29:43] I'm fine.

[4:29:44] I'm done with this way.

[4:29:47] Okay.

[4:29:48] Thank you.

[4:29:49] Any questions?

[4:29:50] Mr. Is there any re-rebuttal?

[4:29:52] All right.

[4:29:55] Okay.

[4:29:57] So thank you.

[4:29:59] Are there...

[4:30:00] 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.

[4:30:27] Did Mr. Justice, did you say that Mr. Birch did not provide any

[4:30:32] in this these packet that he did not provide any sub-divisions, compact sub-divisions?

[4:30:40] No, no.

[4:30:41] What I just said was they didn't provide an example of where they had a compact sub-division,

[4:30:48] and they had used this block methodology.

[4:30:51] And you can see that in the literature or the comments of that's how they're applying it.

[4:30:57] So they had no other comparable that was provided.

[4:31:00] I guess a follow-up would be if they had been using this methodology since 2013, wouldn't

[4:31:07] that methodology logically apply to that subdivision that year suggested?

[4:31:15] So wouldn't it logically apply?

[4:31:16] We have a strong credibility issue about a lot of things in this case.

[4:31:23] And at the end of the day, when they say this has been the methodology, and I see a bunch

[4:31:30] a lot of comments that say, dimension all your space, all your open space.

[4:31:34] And this came up in the last hearing in the sense of simply we were looking at that space

[4:31:40] around the perimeter and that you couldn't call it open space.

[4:31:43] But there's no indication that this methodology has ever been applied in the past until this developer

[4:31:52] showed up.

[4:31:52] But he blankedly says it has been applied for 12 years.

[4:31:59] That was his statement.

[4:32:00] But there was never any, and I'm just reflecting on the fact that they provided comprables.

[4:32:05] They said, here's a subdivision, look at this.

[4:32:08] And we did this last time.

[4:32:09] You weren't thankfully for you.

[4:32:11] You weren't here for the four days before.

[4:32:13] But we would provide comprables about, well, what's an open lot?

[4:32:17] What's a perimeter lot?

[4:32:18] And we had a bunch of comprables from other plants.

[4:32:21] They just simply didn't produce one for this methodology.

[4:32:24] That's all I was pointing out.

[4:32:25] Okay.

[4:32:25] At the end of the day, does it really matter whether they have been applying the ordinance

[4:32:29] inconsistently for 20 years versus one year?

[4:32:33] That's not my main point.

[4:32:35] Okay. I do have a different follow-up question.

[4:32:40] They all the requirements in the analysis of the order of the Superior Court

[4:32:46] States that the primary subdivision are all met for the compact development pursuant

[4:32:53] to section 2.3.1, right, except for the transitional protection yard.

[4:33:03] That's one of the lines in the analysis.

[4:33:06] That is the line point is that the end of it says it's reversed.

[4:33:10] Correct.

[4:33:11] Yes. And is it your conclusion that the entirety of that is reversed? Not just the analysis

[4:33:19] that they state all of the requirements are met. It's the fact that then it reverses all the

[4:33:27] the facts that they were met. So if we were so it is our it's our position and we have a couple of

[4:33:34] cases we were going to bring up to you that any time and order is reversed it has no

[4:33:43] So that's one.

[4:33:45] Secondly, again, we've said this to you before, is that the petition defines the issues before

[4:33:50] the court.

[4:33:51] The petition here, we weren't contesting the 60% contiguity or the one acre.

[4:33:59] We weren't contesting that.

[4:34:00] We were simply contesting that strip around the exterior.

[4:34:04] And so when the court says all of the things have been met, it's because the court says

[4:34:08] We have raised another issue before the court was in fill compatibility.

[4:34:14] And so obviously the court only has jurisdiction to deal with issues before it.

[4:34:18] So the court agrees that we, with the city on the other issue, which was in fill compatibility.

[4:34:25] The issue about what we're talking about today was not before the court.

[4:34:28] Just was it.

[4:34:33] So I don't know how to be a planner.

[4:34:35] It's like, that's fine, I understand.

[4:34:38] It is literally like taking the previous plan where we believe this space is good enough

[4:34:46] for 50% the 50 foot width because it looks like that, not that one, it's the older one.

[4:34:54] Just read the petition.

[4:34:56] Yeah, I'm good.

[4:34:57] Yeah.

[4:34:58] Yeah, please read the first sentence of the petition that they skipped over that talks about

[4:35:02] the strip around the perimeter.

[4:35:03] Okay.

[4:35:04] So in terms of closing arguments, what's the order, please?

[4:35:06] So, you have two matters before you, that you have a motion to dismiss, which is Ms.

[4:35:14] Tatum's motion, and you have the appeal and chief, which is Mr. Justice's burden.

[4:35:20] So,

[4:35:23] you, withheld determination on the motion to dismiss previously, and so that motion,

[4:35:32] 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.

[4:35:47] Well, when we started, I was interested in the motion residue to Cata, and we agreed to hold that one off.

[4:35:57] So I want to revisit that one now.

[4:35:59] So if you're proceeding with that one first, then that would be Miss Tatum.

[4:36:02] Okay, that's why I would like to do Miss Tatum.

[4:36:05] I guess you're up.

[4:36:07] We discussed the time limit, right?

[4:36:15] I'd like a little more time, probably, on the merits, because we've...

[4:36:18] can we do 10? 10 here? 10. Total? I think I think you had agreed to 10 total. Yeah that's

[4:36:25] what we talked about. And we're like we're bifurcating the closing so we can take you each

[4:36:34] of them has 10 minutes and if they want to put three here and seven at the other or seven here

[4:36:39] and three at the other that's up to them. That would be my recommendation. I thought it was all

[4:36:45] I'll lump it together. I didn't know we're going to buy for care.

[4:36:51] So if it's lumped in together, then I'm going to try to just...

[4:36:56] Can you tell?

[4:37:04] Well, see, Craig should go first on the merits, and we should go second.

[4:37:08] We're going to go first here, and he's going to go second.

[4:37:10] So I'd like to just take two minutes on the raised due to Cata.

[4:37:14] That's okay.

[4:37:15] Yes, ma'am.

[4:37:17] So, I'm unclear. Are we now bifurcating things, which is fine?

[4:37:23] I think you are. The chair has asked that we do the motion for rescue to cut a first.

[4:37:28] So we're going to bifurcate it. Each of you has a total of 10 minutes that you've agreed

[4:37:32] to to do closings. Since it's bifurcated, you can allocate your time as you see fit.

[4:37:39] Mr. Tory, we'll keep up with how much time you've used total.

[4:37:44] Ready?

[4:37:45] And so I understand are we going to hear this and then make a decision on rescue to cut

[4:37:51] and then move on if we need to or we're going to just hear

[4:37:54] closing arguments for both. And then I think the rest of you

[4:37:58] to caught it would take care of. Just one argument. Yeah. Yeah.

[4:38:02] Let's do it. Okay. Let's start the timer. Got it.

[4:38:07] Thank you. Again, Robin Tatum. There is an open space chart on

[4:38:12] the interior of your notebooks. And basically, that's really

[4:38:17] all we need to look at. We have been through everything to compile this chart, and it sets forth

[4:38:24] everything that was raised in the appeal, argued, and are in the decisions, and that's what's

[4:38:30] important. And Mr. Remetta has been through that, and this argument that he didn't argue it,

[4:38:36] or just not played out by the documents. The first appeal had the same calculation for the

[4:38:44] open space which is it had to be a partial that had at least 50 by 50 feet of

[4:38:51] open space. It was calculated the same way it was in the testimony it was in

[4:38:55] the affidavit it was in the board's order that it was correct. Now when it

[4:38:59] went to the court which to the superior court again I'm going to read the

[4:39:04] petition. Paragraph 44 there are no areas that qualifies open space in terms of

[4:39:10] function or use or dimension. Paragraph 6C. Open space does not qualify. The board

[4:39:15] Superior Court decision is that the preliminary subdivision meant all

[4:39:26] requirements for a compact subdivision except the requirement for a

[4:39:31] transitional protective yard. Mr. Justice Wood, have you say that that is

[4:39:35] meaningless as to everything, but the protective yard, they could have appealed that to the

[4:39:41] court of appeals.

[4:39:42] They chose not to.

[4:39:42] That is a binding decision that those are met.

[4:39:45] Now, if you go back to the second plan, we calculated the same way.

[4:39:50] We based it on what we believe that the court had held, and then they came back again and

[4:39:55] argued that the same thing was not decided.

[4:39:59] So I don't know what Mr. Justice thought he was arguing.

[4:40:03] 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.

[4:40:14] I

[4:40:21] 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.

[4:40:32] but if you look at paragraph 44, this is my whole point and you have to actually read the whole paragraph,

[4:40:39] the city attorney starts out with reading the second sentence.

[4:40:44] As if we were contesting what qualified as open space throughout the entire development.

[4:40:49] The first sentence says, for the project and is authorized by the December 22nd approval,

[4:40:54] there are no large outdoor or open areas around the perimeter of the site,

[4:40:59] That, excluding the TCA's, in this space, there are no areas that qualify as open space.

[4:41:07] You can go on and read the last sentence.

[4:41:09] In this narrow space, there are no parks or natural areas.

[4:41:13] The petition only dealt with this space around the perimeter.

[4:41:19] We never contested in the petition that they didn't meet the one acre or the 60%.

[4:41:25] And it's mind-boggling for them to come up and say, oh, that was litigated when it wasn't.

[4:41:31] I want to point out some legal principles about raised judicata, Mr. Chairman, members of the board.

[4:41:36] First off, raised judicata has only appeared in zoning cases where a board denies an application and a developer comes back to reapply.

[4:41:44] And the question is, have you made the changes that are material for the reasons we denied it?

[4:41:49] There's never been a case where a board of adjustment by a three-two vote makes a decision.

[4:41:54] It goes to the Superior Court and it gets reversed.

[4:41:57] There's actually two cases from the Pellet Courts,

[4:42:01] King versus Grind staff, Supreme Court case,

[4:42:04] and there's a Court of Appeals opinion of First Recovery LLC

[4:42:09] that says that a reversed order has no preclusive effect.

[4:42:13] And what I mean by a reversed order, meaning the Board of Adjustments order was reversed.

[4:42:17] That's what the Court said.

[4:42:19] And when the Court does say, I think in Dicta,

[4:42:23] but the language about all other things, it is because the petition was raising the issue

[4:42:28] about the infill compatibility and what was the primary setback, that it was the other issue.

[4:42:35] The court didn't get into the weeds about this block methodology and whether the one

[4:42:40] acre was met or the 60% contiguity because we didn't raise it as an issue.

[4:42:46] In terms of raised due to cotton collateral stop, it doesn't even apply if there's material

[4:42:51] changes from a first plan and a second plan. This is the first plan. All the open spaces

[4:42:58] in the middle, all the dimensions are 50 feet and width. There was no discussion here

[4:43:03] at the hearing about this middle part doesn't comply. The TCA is clearly complied. We

[4:43:09] didn't raise it in as an issue. In order to jam in 17 units, they had to cannibalize

[4:43:16] the open space. They cannibalized it, and they created this perimeter of open space at

[4:43:25] 20 feet and width. And they cannibalized the middle. It's no longer anything close to

[4:43:31] what it was before. And our witness is the one that has said there were material changes

[4:43:37] from the first and second plan. The Board of Adjustment Order, the order says areas larger

[4:43:45] than 50 feet can be found in three places. It is true that there are areas larger than 50 feet

[4:43:51] in those three places. The board didn't then go on to say that you can lump in as many areas

[4:43:57] smaller than 50 feet. Again, that was not an issue. The board order didn't say that. These are

[4:44:06] issues that neither Jeffrey Brown and his affidavit was contesting. These are issues. I wasn't contesting.

[4:44:13] these were issues that the petition to the court wasn't contesting.

[4:44:17] And so to suddenly, show up now and say the 50 block methodology is sacred, you can't challenge it.

[4:44:24] Literally means it is binding on everybody in the city

[4:44:29] and to say we are precluded from doing that when the record is clear that it was not an issue,

[4:44:35] it would be a travesty of justice, not to have the court look at this

[4:44:38] and to have the board look at this to see if they're right.

[4:44:41] because it is a joke, it is actually worse this go around the issue, at least what was around the perimeter.

[4:44:49] There was a little bit of vagueness that even the court found there is nothing vague about a minimum, a minimum of 50 feet.

[4:44:57] There's nothing vague about this.

[4:44:58] this second point.

[4:45:00] Is worse than the first plan.

[4:45:09] Thank you. Okay, Ms. Brown. Are we supposed to act on this one now, or can we hold our decision until we?

[4:45:21] 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.

[4:45:30] All right.

[4:45:33] Gentlemen, have a particular opinion.

[4:45:36] Let's just finish the thing all the way out.

[4:45:38] Let's go all the way through.

[4:45:39] Okay, let's go back to the merits.

[4:45:42] Mr. Justice, you're up now.

[4:45:44] Can I just get clear on timing?

[4:45:46] Yeah, I was just about to.

[4:45:48] So you have eight minutes left collectively.

[4:45:51] Correct.

[4:45:52] You have seven minutes and 45 seconds.

[4:45:58] And on the case in chief,

[4:46:01] I don't know whether you've divided time with Mr. Berks or not, but forget that he's back there representing someone else.

[4:46:10] Yeah. Yeah, they're ten minutes is collective.

[4:46:15] Well, I think when we were talking about that, it was severed in a part from the race of Judith Kata.

[4:46:22] It's just not his argument.

[4:46:26] Well, let's let Mr. Justice proceed.

[4:46:28] Yeah, we'll see where we're at.

[4:46:30] He's got seven minutes.

[4:46:39] 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.

[4:46:50] We're talking about a city staff willing to rewrite the rules.

[4:46:55] There is no ambiguity when something refers to a minimum, a minimum means a minimum.

[4:47:03] A minimum is not going

[4:47:09] to have a range of distances.

[4:47:13] It's going to have a range and everything's going to be uniform to amount land, right?

[4:47:17] So it's going to have a range.

[4:47:19] A range of numbers.

[4:47:22] The minimum is the lowest possible.

[4:47:25] The court, actually it's proctor versus the City of Raleigh Board of Adjustment Cays

[4:47:29] where the issue of what minimum meant came before the Court of Appeals

[4:47:33] and it was the lowest possible.

[4:47:36] The lowest possible of this graphic that was the Exhibit 10, this would be something they

[4:47:42] would agree all of this meets open space requirements because all of this is connected

[4:47:48] to a 50 by 50 block.

[4:47:50] Even though the range of this, the lowest number is one foot, one foot and that's all it takes

[4:47:58] in the city is literally connected to a block.

[4:48:03] We don't care how much of the acre is less than 50.

[4:48:07] Think about that.

[4:48:09] They drew on here a block, literally a block

[4:48:12] that may have been a quarter of an acre.

[4:48:17] And the rest of it is fine to be less than 50 feet and width

[4:48:20] as long as it connects.

[4:48:23] There is no logic to that.

[4:48:24] That would mean that any minimum, like a fence height of a minimum of eight feet, can

[4:48:30] be four feet in some places as long as it's connected to a place that has eight feet.

[4:48:35] The tree conservation area that's 32 feet with minimum can be less in many areas as long

[4:48:42] as it's connected to a spot that's 32 feet.

[4:48:45] Minimum is being written out of this ordinance by interpretation.

[4:48:49] It is clearly absurd to suggest that they met the minimum requirements as to open space.

[4:49:01] In terms of the encroachment, the encroachment is a building or structure, can't be within

[4:49:08] ten feet of a transition protective yard.

[4:49:11] They say a road is not a structure.

[4:49:14] A road is something construct.

[4:49:17] And at the end of the day, to suggest that a road is not constructed and is not a structure,

[4:49:27] boggles the mind when their own standards online, says roads are constructed.

[4:49:31] Heck, coming to Raleigh, my ways tells me construction ahead all the time.

[4:49:39] Those are highways being built.

[4:49:42] 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.

[4:49:57] 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.

[4:50:09] in terms of how close can something be, there are exceptions for breaks,

[4:50:16] breaks. Think about that. Why list it as an exception if it wasn't a structure?

[4:50:23] We all know that if you have a transition protective yard around the perimeter or property,

[4:50:27] you're going to have to allow for access to get to the property.

[4:50:31] You're going to have to allow some access.

[4:50:32] But to allow a road to run parallel, which is clearly not a break in it, within, when we're

[4:50:40] talking about not within 10 feet, we're talking about, we're talking about right next to

[4:50:45] the transition protective yard is, again, an absurd interpretation, and it's not borne

[4:50:50] out by logic, it's not borne out by any dictionary definitions, it's not borne out by anything

[4:50:57] other than the need to not only bend over backwards, but to allow this developer and the

[4:51:04] city staff to rewrite all the exceptions.

[4:51:07] The exceptions that we've gone over, the exceptions to how close you can be to a transition

[4:51:12] protective yard, exceptions for the 50 feet.

[4:51:17] If you uphold their decision, these exceptions are meaningless, meaningless, because why have

[4:51:23] exceptions listed. If you can just simply say, well, there's more than three exceptions.

[4:51:29] There can be anything that has this connectivity to 50 by 50. Or, yeah, we hear about a

[4:51:36] vehicular break, but it can be anything that we want. That doesn't matter. So, words

[4:51:44] matter. And when we started out today with Keegan, I said, what is the purpose of the

[4:51:53] to protect character of the neighborhood and I said, well, if there's a conflict in

[4:51:59] language, the most stringent regulation applies. Think about that. The harshest reading

[4:52:06] to the developer applies. In this case, we don't feel like there's any ambiguity about

[4:52:11] what minimum means, what a structure means, and whether in violation. But clearly, you can't

[4:52:18] take these provisions that are cut and dry and say, oh, we can ignore them and we can

[4:52:24] look elsewhere. Because guess what? Once you find this provision that's cut and dry,

[4:52:29] the ordinance tells you you have to apply it. It's the most stringent regulation. It is

[4:52:35] clear. It is plain. And they have ignored it in multiple places in there. And it's not

[4:52:41] really that Jose, two minutes. It's really that they didn't throw rocks at Jose and say

[4:52:46] your calculations were wrong, they're simply saying that our methodology of 50 by 50

[4:52:51] block in one spot is controlling. They are simply saying, well, a road is not a structure.

[4:53:00] And so we think Jose presented the information from an engineering standpoint of why they're

[4:53:05] wrong and why they're wrong from plain language found in dictionary definitions and just common

[4:53:13] So Mr. Chairman, you are here the last go around.

[4:53:17] You two other board members were not.

[4:53:20] And I heard from the board members before,

[4:53:22] let's give deference to the city staff.

[4:53:24] Let's, they are the ones that should be administering this,

[4:53:28] and that is not what should be the mindset.

[4:53:33] Because your decision today doesn't just affect these people,

[4:53:36] it affects everybody in this city when you make a decision.

[4:53:40] because these are questions of law that come before you and they're not entitled to

[4:53:43] deference. What I want you to do is free your mind from, well I'm part of the

[4:53:48] City of Raleigh. Well no you're in a safe harbor where you're here and you're looking out

[4:53:54] for everybody's interest and I'm asking you just to apply logic and common sense

[4:53:59] and ask yourself can you satisfy a minimum by using the maximum and the answer

[4:54:10] is no you can't. This plan can work if they reduce the number of townhouses but

[4:54:18] they cannibalize the open space to salvage 17. That's the only thing they didn't

[4:54:25] change. They changed everything else by jamming a basketball into a pinhole.

[4:54:31] So this wasn't two bites at the Apple as you'll hear or you've heard before.

[4:54:36] This was, there was an Apple defective with a worm in it, and now we got a watermelon

[4:54:42] with a snake in it. These are two different things, and this plan that they presented

[4:54:46] today, or the most current plan is even worse than the one before. Thank you.

[4:54:51] Thank you.

[4:54:53] State them.

[4:55:02] Make sure I give Mr. Birch enough time.

[4:55:05] One minute.

[4:55:05] You guys got eight minutes.

[4:55:06] Eight minutes total.

[4:55:11] Hold on to the staff at the clock.

[4:55:15] Ready?

[4:55:16] Okay.

[4:55:17] The first thing I want to make clear to the board is that I am here on behalf of the City of Raleigh.

[4:55:24] Their interest is in defending the decision of their staff and their ordinance.

[4:55:29] Mr. Birch is here on behalf of the developer.

[4:55:31] it's their project. So the extent that we're somehow colluding or anything, we're not.

[4:55:36] I'm protecting the policy decision of my council, which has been the same since 2001.

[4:55:43] With respect to the merits, I'm not going to go back through the open space that much.

[4:55:51] It is very simple and it's a very logical interpretation that's been for quite some time.

[4:55:55] and basically it says the open space area, which is kind of like this, could be like this,

[4:56:03] not logical, it'll be like this every time, but if any wants that it is determined to be a minimum

[4:56:09] of 50 feet wide, then you check that box.

[4:56:14] You don't have to go around, it has to be 50 everywhere, that's actually more than satisfies that box.

[4:56:21] Then you go to continuity, then you go to size.

[4:56:24] 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

[4:56:32] Mr. Justice is like, you know, you can't point to anything that says you can't point to an example

[4:56:38] I would say to you that calling the staff's credibility

[4:56:42] Into question is not appropriate. They've done this a long time. They're telling the truth

[4:56:47] They're not trying to mislead you as with respect to the other arguments

[4:56:51] I do want to say the parking was absurd.

[4:56:55] They presented an expert that said you needed 51 parking places where you need zero.

[4:57:00] Not only did he not read the UDO, but he cited a text amendment that doesn't say you need three parking spaces.

[4:57:06] It actually says you can't have any more than two.

[4:57:09] Now with respect to the wall, also there was this testimony that a wall is a structure.

[4:57:17] So you can't have a structure in the T.P.Y.

[4:57:20] Well, the U.D.O. says all over it.

[4:57:23] You must have a wall.

[4:57:24] Here are the wall requirements.

[4:57:26] And when we asked him, did you look at that?

[4:57:31] He goes, well, when I look at it now, maybe you can't have a wall.

[4:57:34] And I have looked at this multiple times.

[4:57:36] I just didn't study that part.

[4:57:38] So he came to that conclusion based on a section

[4:57:42] when he didn't even look at the wall part.

[4:57:44] Now, with respect to Mr. Bert showed you that they claimed that you couldn't put a wall

[4:57:53] over a certain height in the T.P.Y. and the setback, he was actually referring to a part

[4:58:01] of the U.D.O. that doesn't apply to the T.P.Y. So basically, everything that that expert

[4:58:08] said was contrary to the UDO, and Mr. Justice is asking you to say this person who's never

[4:58:16] had a project with the UDO, never done a complex vision, never done a townhouse, and gets

[4:58:23] 90% of what he says wrong should overrule the staff, which does this every day in Mr. Metas.

[4:58:29] We believe that this decision was consistent with the UDO, consistent with the City Council's

[4:58:36] directive.

[4:58:37] That's the problem.

[4:58:38] They don't want townhouses in their neighborhood while I would suggest they go to the ballot box and not come back and

[4:58:44] 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.

[4:58:52] I'm stopping at $3.38. Do you have any questions of glad to answer?

[4:58:58] I stopped it for you. I stopped it for you, Mr. Birch.

[4:59:02] You got a 426 left.

[4:59:04] Great.

[4:59:19] You've heard from four witnesses on the issue of UDO compliance. Three of these

[4:59:25] witnesses, Keegan, Justin and Jason, are all incredibly well-versed in the Raleigh

[4:59:31] UDO, whether that's in terms of reviewing plans for UDO compliance, whether it's ensuring

[4:59:38] UDO compliance, whether it's actually drafting the text of the UDO. The other witness,

[4:59:47] Jason

[4:59:47] in submitting plans that are UDO compliant and working with the city on ensuring that compliance.

[4:59:53] The other witness you heard from has zero experience in Raleigh never submitted a compact subdivision.

[5:00:00] 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.

[5:00:27] The issue of the structures in the walls in the T.P.Y. It's clear that a wall is treated separately and

[5:00:34] distinctly from a structure. You cannot have something both allowed within a TPI and then

[5:00:39] prohibited at the same time. A wall is allowed, a structure is not, a wall cannot be both

[5:00:45] a wall and a structure for that purpose. That section also clearly delineates and distinguishes

[5:00:52] between what is a building in a structure versus what is the vehicular surface area. Again,

[5:00:57] it says you can't have the vehicular surface area within the TPI and then there is no specific

[5:01:03] prohibition on the hatellar surface area within 10 feet of the TPI.

[5:01:08] You don't have to go outside of UDEO section 724 to find any other context or make any

[5:01:16] other interpretations or anything else.

[5:01:18] It's all there.

[5:01:19] You don't get to the dictionary or anything else.

[5:01:23] It's all there.

[5:01:24] Those are not exceptions.

[5:01:25] That's just the methodology of what is set forth in 724.

[5:01:30] before. It's been applied that way consistently by the city since 2013.

[5:01:41] At the last appeal hearing,

[5:01:44] what we heard is that the appellants wanted a transitional protective yard. They wanted

[5:01:48] a screening wall. They wanted landscaping around the perimeter to protect their views

[5:01:52] into the site. We actually offered that in the hearing, the appeal hearing two plus years

[5:01:58] ago. And they weren't willing to accept it because they wanted to keep their options open

[5:02:02] and well they appealed and here we are back the judge said provide a T.P.Y. We've provided

[5:02:08] a T.P.Y. We've even provided it where we didn't have to. We provided a wall where we

[5:02:12] did not have to where there's T.C.A. where there's a grade change. We have gone above and

[5:02:18] beyond trying to provide them what they asked for and we've done that and we've complied

[5:02:26] with the UDO at the same time so I would ask you to rely on those who have the most

[5:02:34] experience with the UDO rely on what's in the UDO in section 724 and the way that the

[5:02:40] city is interpreted and applied the ordinance since 2013. Thank you.

[5:02:49] Okay. Any questions for any of our closing comment?

[5:02:57] Okay. Well in that case I believe we bring

[5:03:01] it to the table and close the hearing, close the evidentiary portion of the hearing, and

[5:03:08] it's our opportunity to discuss. Now, we have two questions before, Ms. Brown. Is that

[5:03:14] correct? Can you articulate the questions that we have?

[5:03:23] Yeah, that's my problem.

[5:03:25] So, I'm going to do it this way.

[5:03:31] I am looking at the administrative appeal letter that was filed with the City of Raleigh by Mr. Justice on behalf of this client.

[5:03:40] It's dated.

[5:03:42] It's dated May 2, 2025, and it's part of the record that's before you.

[5:03:48] Thank you, yeah, I'm looking at both of them.

[5:03:50] And in that document, there are five grounds of appeals listed.

[5:03:58] The fifth ground for appeal related to parking that has been withdrawn.

[5:04:03] So any order, any determination you make, you need to acknowledge in that determination

[5:04:09] that that was withdrawn as part of the appeal.

[5:04:13] So, the first item in the appeal list is that relates to open space.

[5:04:25] It is this item that to which the motion to dismiss on the grounds of breast judicative collateral

[5:04:32] stop is directed in that particular, in that particular question, the question before

[5:04:42] for you is whether the methodology of the open space was previously litigated and determined

[5:04:53] by the board.

[5:04:56] The second issue that is before you involves buildings or structures within the T.P.Y.,

[5:05:03] that's before you to decide based on your interpretation of the ordinance.

[5:05:08] section three or the question three was if there's a retaining law allowed it is exceeds

[5:05:16] the maximum height and four is that a wall may not exceed a certain height in a rear

[5:05:24] or side setback. So unless I've misunderstood the city's motion, their motion on ratio

[5:05:32] Judicada collateral.

[5:05:33] Stoppel really goes to the open space analysis, which is the first item of the appeal,

[5:05:39] and not to the questions about structures in the TPI or about the height of the walls

[5:05:47] in the TPI.

[5:05:48] Those issues would be separate.

[5:05:50] Did that help or make it worse?

[5:05:52] No, that helped.

[5:05:53] So there are two items.

[5:05:55] The first, the Res Judicada, and then the second would be the Meritz case, which is

[5:05:59] items 2, 3, and 4.

[5:06:01] Right.

[5:06:02] If you were to determine that the earlier case had decided the issues that are raised

[5:06:11] in paragraph one of the appeal, that's your raised judicata and collateral, a stop

[5:06:16] of determination in any event you need to deal with two, two, three, and four.

[5:06:20] Yeah.

[5:06:20] Good.

[5:06:20] I was going to say we should do both.

[5:06:23] Thank you for clarifying that.

[5:06:25] Okay.

[5:06:26] Okay, so let's start with the rest due to Cata, the first item, which was as she said

[5:06:32] refers to about the open space issue, I would remind you, the quorum was four, we opened

[5:06:39] with a quorum, you need a majority, that would be three votes, so our decision has to be a

[5:06:43] three vote decision in any manner, or it can be a split, but it takes three votes to reach

[5:06:52] approval or denial.

[5:06:54] Takes three votes for you to act.

[5:06:56] Yeah.

[5:06:57] Yeah.

[5:07:02] Any thoughts?

[5:07:03] So the compact subdivision section, which is the section 2.3 and then has points after

[5:07:10] it, right?

[5:07:12] That's the compact subdivision or compact development section, right?

[5:07:17] We have that somewhere here.

[5:07:21] You do have it somewhere, probably the easiest, it's got it in multiple places, but-

[5:07:28] Yeah, I got it earlier.

[5:07:30] So that was on the January 27, 2023 point two of the appeal, the project does not meet

[5:07:40] the standards for a compact development outline below and therefore the townhouse slash use building

[5:07:46] type is not permitted.

[5:07:49] that was raised, and then it was raised again here, so it was raised on the initial appeal.

[5:07:59] I would sustain, is that what we're, I mean, that is the right term, but the right term.

[5:08:09] Your term you're searching for is you would either grant or deny the motion to dismiss.

[5:08:14] 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,

[5:08:31] the NOVO and determined that all the requirements were met except for the transition protected

[5:08:38] yard.

[5:08:39] Okay.

[5:08:40] So we have a motion to grant the motion to dismiss and do we have a second?

[5:08:50] A second.

[5:08:51] You have a motion to grant motion to dismiss and second it any further discussion.

[5:08:59] All those in favor say aye.

[5:09:02] I pose no with three votes to dismiss.

[5:09:08] 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.

[5:09:15] So the second item is speaks to the merits.

[5:09:19] This is the transitional protective yard, the building or structure question, and

[5:09:24] the retaining wall, a couple of questions about the retaining wall,

[5:09:30] your thoughts.

[5:09:31] I

[5:09:37] 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.

[5:09:54] So lots of times there is language that is left somewhat vague purposely or accidentally that then requires interpretation.

[5:10:01] That's why we have people who are given the responsibility to interpret and apply our ordinances.

[5:10:11] Likewise, we have the opportunity to question those interpretations, which is what's happening here.

[5:10:17] I

[5:10:20] think that the notion of building or structure can be very clear.

[5:10:25] I do not, while I concede that a road is constructed, I do not think that by default that makes

[5:10:33] it a structure. I have a very hard time understanding a road as a structure. So I don't see that

[5:10:42] is the issue here. If you therefore disagree and believe that a road qualifies as a structure,

[5:10:52] we need to hear that so that we can move on to these other two items.

[5:10:57] Or offer other other thoughts?

[5:11:01] I would agree with you because I think it also goes to the fact that they are outlined.

[5:11:08] I know that that's kind of an interesting point, but they are specifically outlined.

[5:11:15] So I do agree with you there is ambiguity, but I don't think it was the intent to consider

[5:11:21] road structure.

[5:11:25] The other items regarding, would we need to itemize, address each of these

[5:11:30] items separately, or can we do them as a collective unit? You may do them either way. If you

[5:11:38] go back and look at the appeal in item two, the building and structure argument there is

[5:11:48] It relates to the road and it also relates to retaining walls or walls in the structure.

[5:12:00] So I just want to remind you that you need to recapture the walls and into as well.

[5:12:05] Right, thank you.

[5:12:08] That would be two and three because three, they're saying even if it's a retaining, okay, sorry.

[5:12:14] It's two and three and four, two addressed roads and retaining walls or walls.

[5:12:21] right. Three and four also addressed walls.

[5:12:46] Are you studying? Yeah I'm just a

[5:12:48] little. I believe we talked with their expert and he said I asked if there was

[5:12:57] anything that says a retaining wall is not a wall and he said no.

[5:13:10] They seem to

[5:13:11] be allowed under the code?

[5:13:18] I see.

[5:13:18] I agree.

[5:13:28] And I do not.

[5:13:30] I never heard any argument about the wall exceeding eight feet.

[5:13:35] We had some question of what's the minimum, six and a half feet to eight feet.

[5:13:39] And then which is because there's both of these.

[5:13:43] And there's the,

[5:13:46] and they're talking about a retaining wall exceeding eight feet.

[5:13:49] I don't.

[5:13:50] I don't recall that being argued to any extent, retaining wallbots nature to be a retaining

[5:14:02] wall has to hold back whatever area it's retaining, it can be tiered, stair-stepped.

[5:14:12] But if there is a maximum, it shouldn't exceed that.

[5:14:17] Right.

[5:14:18] I

[5:14:25] don't remember seeing any dimensions on retaining walls.

[5:14:28] I

[5:14:34] can't remember either.

[5:15:02] There are other points in the returning walls. They're not dimensioned.

[5:15:13] For ease of reference,

[5:15:16] as I said, I was trying to find your ordinance provision so you can be looking at them.

[5:15:24] They're in the record in several different places. For ease of reference, they're included

[5:15:29] In the back of the smallest notebook, it's easier to hold there at the very back,

[5:15:34] article 7.2, section 7.2.4, protective yards, section 7.2.8, walls and fences.

[5:15:43] And I think those are the ones that are addressed in the appeal that you may want to look at.

[5:15:47] I'll

[5:16:56] just say that we do have evidence of that in the, in the Donald affidavit as opposed to just the,

[5:17:03] just the, and, and, and, Rometta's testimony.

[5:17:06] I don't want to interrupt, but there was evidence on our side.

[5:17:12] Mr. Chairman, I, it is kind of interesting that Council is now pointing out things.

[5:17:18] I tried not to interrupt you before.

[5:17:20] or at the end of the day, you are dealing with the smallest issue on the plate.

[5:17:28] Thank you.

[5:17:30] Having made the wrong decision.

[5:17:32] Okay,

[5:17:34] well,

[5:17:37] moving this along,

[5:17:41] we can do these three items collectively or individually.

[5:17:46] And

[5:17:51] so a

[5:17:55] motion in this regard, if

[5:18:16] so a possible motion.

[5:18:21] 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

[5:18:38] retaining wall height in the rear and set back here.

[5:18:41] Should we deal with them separately? Do you understand enough to deal with them collectively?

[5:18:46] What do you think you want to do with them separately?

[5:18:50] It seems like it's allowed as an encroachment under D walls in a protective yard unless

[5:19:00] meet the following.

[5:19:03] I would read that they're allowed in the protective yard.

[5:19:06] Yeah.

[5:19:08] Okay.

[5:19:09] So, get back to the question.

[5:19:10] Do you want to take these three items as a collective motion or check them off?

[5:19:19] 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.

[5:19:35] 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.

[5:19:43] you can look at the three in tandem and determine whether the staff has correctly

[5:19:49] interpreted the ordinance as to the location of walls in the TPI as to the location of roads

[5:19:59] and as to the height of the buildings because the question before you really is

[5:20:04] is whether or not you are upholding the decision of the administrator to grant the permit based

[5:20:11] on these factors.

[5:20:13] Okay.

[5:20:14] With that, I would acknowledge that item 5 about parking has been withdrawn, then I would

[5:20:22] move that we uphold the decision of the administrator that the UDO and provisions have been met

[5:20:31] by the application that was submitted by the property under slash developer.

[5:20:36] Is that a reasonable motion?

[5:20:38] Yes, sir.

[5:20:39] I think that's a correctly articulated motion for consideration by the board of the options available to you.

[5:20:47] Okay. I have made a motion. Is there a second?

[5:20:55] A second.

[5:20:55] Okay. We have a motion and a second. Further discussion?

[5:21:02] All those in favor say aye.

[5:21:04] Aye.

[5:21:05] Those no. I have motion carries as well. Is there any other business before us today?

[5:21:10] I believe the only item on your agenda today was the completion of this hearing and so no there's not.

[5:21:19] 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.

[5:21:29] Stand adjourned.

[5:21:30] For the panic, thank you, too.

Special Board of Adjustment Meeting

Agenda

Transcript