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to order. Regular meeting of the town of

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Emerald Ale board of adjustment.

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I'm now going to move to take role. Um

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Mark Kahuna

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>> here.

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>> Scott Henson

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>> here. Mark Brennolds

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>> here.

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>> Eric Havlin

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>> here.

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>> Andrew Frick

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>> here.

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>> Tim Kinch

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>> here.

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>> And Mark Wicker

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>> here.

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[snorts]

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All right, we do have a quorum

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established.

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Next item on the agenda is to elect the

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chair and vice chair. So I'll let the

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board members um

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you know discuss among yourselves and

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>> go ahead.

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» I'm one of them.

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>> Okay. So Mark Wicker's one. Who was our

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other ultimate?

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I'd have to It's across the street.

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>> I think it's me, I think.

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>> Okay. Andrew Frick and Mark Wicker,

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>> I think. So, yeah.

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>> Okay.

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>> Sorry, I didn't have that information

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available.

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» Yeah, I think it's me because I'm on a

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one-year.

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>> Who was the other alternate?

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>> Mark Wicker.

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>> Okay.

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No, the first one.

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>> Andrew Frick.

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>> Andrew. Okay. Thank you. [snorts]

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» So, can the alternates be

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chair or vice chair or no?

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>> Regular

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chair. In case anybody's not familiar

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with that role, um they you've ever been

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to a town meeting where the mayor

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floor. That's

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» perfect. All right.

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>> We're all learning. [laughter]

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>> Um, but the chair uh is in charge of the

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meeting, so to speak. They run the

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procedures and make sure things keep

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moving along. The the things on the

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agenda get addressed. Um, when you have

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hearings, we have to make a ruling.

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We're applicants may be presenting to

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you. Um there may be an objection about

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an evidence matter or something. The

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chair uh makes the initial decision on

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the objection things of that nature. Um

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the vice chair serves in the absence of

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the chair. So both have to be one of the

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five regular members in that regard. Um

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any other questions I can

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>> but the chair also signs the meeting

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minutes and other stuff according to

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>> correct. So a decision like a final

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written decision of the board um you

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know you all have input but it's

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officially signed by the chair um and

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the minutes of the meetings are prepared

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uh in this case I guess uh Mike Taylor

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will be secretary to the board so he

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will handle some of that with with the

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meeting minutes as well.

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>> Have any of you guys that are not

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alternate served in that capacity before

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as chair?

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>> I've never been as a chair. I'm I mean

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I'm a lawyer and by trade and u was a

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trial attorney, but I was also an

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administrative uh hearing officer for

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the federal government for about six or

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seven or five years. Um so I do have a

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little bit of context and experience

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doing this type of stuff. Um serving as

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a you know hearing officer is pretty

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similar

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but I would put my name out there if you

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want to do that. Okay.

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>> Anyone else?

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Um I I was on the um on [clears throat]

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the board for about 10 years, maybe 12

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years

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um in the as

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including chair of it at for about eight

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years. So,

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it's [clears throat] not my intention to

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stay on the board forever, but um

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I I just thought it would help to,

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you know, if if there's some, you know,

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fairly experienced people around to get

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started. And

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» well, [clears throat]

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I mean, I' I would certainly recommend

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Eric for chair and Mark, you for vice

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chair. I mean, I want to make a motion.

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>> Make a Sure. I'd make a motion or

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nominate Eric for the chair position

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mark for the vice. You

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>> okay with that?

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>> Yeah. Yeah. [laughter]

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Be my pleasure.

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>> Okay.

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>> Anybody else?

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>> I will second.

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>> Okay.

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>> So, we have a motion and a second.

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>> Motion and a second. We just do a You

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can do a roll call vote. So, start I

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guess with Tim. I almost said Tim say

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yay or nay. We'll count those. Yay! Yay!

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Yes,

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>> yay.

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>> Yes.

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>> All right, we have Congratulations.

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>> Great job.

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>> That's great.

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>> You get a hammer, too.

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» Yeah.

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>> Official now. [laughter]

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» Wave it loudly.

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» Excellent. Excellent.

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You need to

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in charge now. [laughter]

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It's your show.

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>> That was a quick [laughter]

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>> we here but

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an interesting side note about this. Um

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so you're approving minutes from the

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last meeting

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>> which was a year ago.

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>> Yeah.

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>> Yes sir. Um so interestingly and this

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applies to all you know town boards and

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different things. The board is a sort of

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a living body that continues on past,

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present and future. So this board is the

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authority to approve minutes of the

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board even though it was in the past. So

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I get I've got a lot of questions over

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the years of I wasn't even there. Can I

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Yes, you can approve it. So um this will

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be a routine thing when we adopt the

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agenda. Um we'll approve the minutes

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from the prior meeting which will be

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circulated to you in advance to review

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for you know make sure they were correct

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not necessarily verb but correct

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accounting of what happened at the last

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meeting in the votes. So um if you've

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reviewed these

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any objections to them make them known

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if not you can just do a yay or nay vote

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to approve the minutes that are in the

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agenda motion. [cough and clears throat]

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So procedurally, should should I open

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the door, open the window or open the

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floor to a motion for that?

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>> Yes, sir.

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>> Can I make the motion?

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>> Yes, sir. Yes, sir. As chair, you also

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get to vote on everything.

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>> Uh, a motion to uh approve the minutes

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of the meeting was that occurred on

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February

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17th, 2025.

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» I second the motion.

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I have a qu question.

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Is Is there anything with that case that

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is still pending?

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>> Not that I know of.

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>> Okay.

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>> No, sir.

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>> I was

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>> Thank you.

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>> I was there a year ago. It's It's done.

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>> Yeah.

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» Any other questions?

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» We vote

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Start with chair. Do we

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>> you can do it in mass? All in favor, all

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oppose. Or you can do a roll call.

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Whatever. Whatever works.

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>> Okay. I I Yes, I approve.

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>> Yes, I approve.

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>> Approved.

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>> Approve.

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>> All right.

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>> Approve. Motion carries.

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>> Thank you. [clears throat and cough]

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The next item on the list is [snorts] a

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adoption of agenda.

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So just uh procedurally and routinely um

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the agenda will come out from the plan

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director. Um and if anybody wanted to

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change anything about the agenda, add

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something to the agenda, we'll talk

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about that a little bit more detail in a

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minute. um this will be the time to um

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make a motion say I want to add

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something on the agenda. This is just

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general procedures of the board

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information for you. We'll we'll tailor

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it to the board just

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um and that can be amended by the

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majority but that's pretty

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straightforward. If there are no uh

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changes or uh modifications to the

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agenda, then there'll be a motion to

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adopt, second

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motion to approve the agenda.

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>> Second.

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>> Okay. Anyone

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the vote?

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I I

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>> I [clears throat]

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mentioned my caveat about applying

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changing the agenda to the board of

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adjustment. Most of the time the things

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we're uh that will be in front of you

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for presentation to decide uh require

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notice periods about um you know you got

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to notice to the public we're going to

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have a hearing about this particular

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issue or to the parties to an

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application they got to get so many days

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notice in advance. So I don't suspect

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we'll be just taking things on and off

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the agenda very quickly, but just as a

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formality procedural step, that's how

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that's so may not come up much, but um

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in advance of the meeting u if anybody

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had a question about uh something that's

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on the agenda or adding something to the

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agenda,

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John can point you in the right

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direction on that.

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>> I have a question. [clears throat] uh we

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have any if we have to have any of these

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types of hearings, will one of you two

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guys be present?

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>> Yes, sir.

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>> Awesome.

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>> Yes, sir. Yes, sir. 100%.

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>> So, you're you're you're council for the

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town

260
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>> for the board.

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lawyers.

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>> Yes, sir.

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>> We work for you.

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>> So, when you all have hearings, the town

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will at times if they oppose the

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application, they'll have representation

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um that represents the town interest.

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During that time, we solely make

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recommendations to you all for the board

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itself.

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which is what we're here to talk about

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tonight. We do that.

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>> We'll get there.

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>> Yes, sir.

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>> Question.

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[clears throat]

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>> Item number six, boarded training.

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Should we move on to that?

279
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>> Absolutely. All right. Well, um I think

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we had a chance to say hello to most of

281
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you before we got started, but um I'm

282
00:11:09,760 --> 00:11:11,839
Tim Carowway. This is my associate Klay

283
00:11:11,839 --> 00:11:14,240
Davis. um give you a little bit just

284
00:11:14,240 --> 00:11:15,600
information, introduce yourself about us

285
00:11:15,600 --> 00:11:16,880
and what we're here to do tonight. Then

286
00:11:16,880 --> 00:11:20,480
I'll turn the floor over to Clay. Um I'm

287
00:11:20,480 --> 00:11:22,480
a partner in the firm. Uh I manage our

288
00:11:22,480 --> 00:11:24,160
Raleigh office. We have three offices in

289
00:11:24,160 --> 00:11:27,200
North Carolina and I've lost count, but

290
00:11:27,200 --> 00:11:29,680
we are somewhere around two dozen local

291
00:11:29,680 --> 00:11:30,959
government municipalities that we

292
00:11:30,959 --> 00:11:32,320
represent in boards and special

293
00:11:32,320 --> 00:11:34,720
projects. So we are all over the state

294
00:11:34,720 --> 00:11:36,880
from pretty much the triangle east to

295
00:11:36,880 --> 00:11:40,240
the coast. Um for a brief time in 2024,

296
00:11:40,240 --> 00:11:42,399
I was an interim town attorney here for

297
00:11:42,399 --> 00:11:44,959
maybe one meeting and then I've been

298
00:11:44,959 --> 00:11:46,480
board of adjustment council since

299
00:11:46,480 --> 00:11:52,640
January last year. Um in the last year, and a half, um a lot of the town

300
00:11:52,640 --> 00:11:55,680
codes have changed. Uh board, you know,

301
00:11:55,680 --> 00:11:57,519
members have come off on and off. Uh

302
00:11:57,519 --> 00:12:00,480
we've had staff changes. So, uh John and

303
00:12:00,480 --> 00:12:02,880
I kind of agreed to start you off in

304
00:12:02,880 --> 00:12:05,120
your term on the board of adjustment.

305
00:12:05,120 --> 00:12:06,399
Let's start off with some training. that

306
00:12:06,399 --> 00:12:10,399
be the best thing to do. Um, so as we,

307
00:12:10,399 --> 00:12:12,639
you know, mentioned a moment ago, um, we

308
00:12:12,639 --> 00:12:14,240
are the board of adjustments attorney.

309
00:12:14,240 --> 00:12:16,639
So we are your lawyers. We are here for

310
00:12:16,639 --> 00:12:19,680
you. Okay? Um, there may be times like

311
00:12:19,680 --> 00:12:21,600
Clay alluded to earlier where the town

312
00:12:21,600 --> 00:12:23,200
may be involved as you got to think of

313
00:12:23,200 --> 00:12:24,880
them as like a party. Okay? You're the

314
00:12:24,880 --> 00:12:27,600
court. There's two parties coming to you

315
00:12:27,600 --> 00:12:28,959
and you're you're asked to make a

316
00:12:28,959 --> 00:12:32,320
decision. Um, so the town may be

317
00:12:32,320 --> 00:12:34,720
represented through the town attorney or

318
00:12:34,720 --> 00:12:37,360
perhaps some other law firm, but we are

319
00:12:37,360 --> 00:12:40,240
your attorneys. Okay? Our goal is to get

320
00:12:40,240 --> 00:12:41,920
you guys familiar with the legal

321
00:12:41,920 --> 00:12:44,320
requirements and procedures

322
00:12:44,320 --> 00:12:46,560
uh when acting as a board of adjustment.

323
00:12:46,560 --> 00:12:48,480
Um,

324
00:12:48,480 --> 00:12:51,120
doesn't mean we always make popular

325
00:12:51,120 --> 00:12:52,160
decisions here at the board of

326
00:12:52,160 --> 00:12:54,480
adjustment, but good news is this it's

327
00:12:54,480 --> 00:12:57,600
not a popularity contest. Um, you know,

328
00:12:57,600 --> 00:12:59,040
one party may be happy about the

329
00:12:59,040 --> 00:13:00,880
decision, one party may be unhappy about

330
00:13:00,880 --> 00:13:03,040
the decision. Uh, parties have the right

331
00:13:03,040 --> 00:13:05,120
to appeal your decision to the superior

332
00:13:05,120 --> 00:13:08,880
court. That may happen. It's okay. Um, I

333
00:13:08,880 --> 00:13:10,880
like to think of it as as attorney

334
00:13:10,880 --> 00:13:12,560
involved in these kind of cases. As a

335
00:13:12,560 --> 00:13:15,680
board member, um, when we do things

336
00:13:15,680 --> 00:13:18,000
correctly, we follow procedure so that

337
00:13:18,000 --> 00:13:19,760
everybody in front of you has got fair

338
00:13:19,760 --> 00:13:22,160
procedures, due process. We create a

339
00:13:22,160 --> 00:13:24,480
good record, which means we rule on

340
00:13:24,480 --> 00:13:26,800
evidence. objections. We make sure we

341
00:13:26,800 --> 00:13:28,639
have a good record, meaning what do

342
00:13:28,639 --> 00:13:30,480
evidence do we look at when we made our

343
00:13:30,480 --> 00:13:31,600
decision? Those things are very

344
00:13:31,600 --> 00:13:33,519
important at this level because our

345
00:13:33,519 --> 00:13:35,519
decision gets appealed. There's no

346
00:13:35,519 --> 00:13:37,360
bigger compliment we can receive is when

347
00:13:37,360 --> 00:13:40,320
a court upholds our decision.

348
00:13:40,320 --> 00:13:43,600
Uh that means we we treated folks

349
00:13:43,600 --> 00:13:45,440
fairly. We gave everybody fair

350
00:13:45,440 --> 00:13:48,399
procedure, due process. Our decision was

351
00:13:48,399 --> 00:13:50,560
based on evidence and we articulated

352
00:13:50,560 --> 00:13:52,800
that evidence in the questions we asked,

353
00:13:52,800 --> 00:13:56,560
the documents we reviewed. Okay. So, um

354
00:13:56,560 --> 00:13:58,560
that's the way I look at it is if our

355
00:13:58,560 --> 00:13:59,760
decision never got appealed and it got

356
00:13:59,760 --> 00:14:02,079
upheld, that's a compliment from the

357
00:14:02,079 --> 00:14:04,399
court. Good job. Um if it gets

358
00:14:04,399 --> 00:14:06,160
overturned, doesn't mean you made the

359
00:14:06,160 --> 00:14:08,079
wrong decision. All right? So, rest

360
00:14:08,079 --> 00:14:12,000
assured, don't worry about that. Um

361
00:14:12,000 --> 00:14:13,600
Clay here is an associate attorney with

362
00:14:13,600 --> 00:14:15,519
us. Uh like myself, he travels all over

363
00:14:15,519 --> 00:14:18,240
the state. Um the last few years, he's

364
00:14:18,240 --> 00:14:22,560
gotten a wealth of BOA and zoning law

365
00:14:22,560 --> 00:14:24,720
experience. uh representing boards,

366
00:14:24,720 --> 00:14:27,760
representing cities and towns. Um I

367
00:14:27,760 --> 00:14:30,320
think so far he's undefeated so far in

368
00:14:30,320 --> 00:14:31,839
these kind of things. So I've been

369
00:14:31,839 --> 00:14:33,839
fortunate. He's been good. No, he he

370
00:14:33,839 --> 00:14:35,360
he's modest, but he's very good at what

371
00:14:35,360 --> 00:14:36,880
he does. We're glad to have him at the

372
00:14:36,880 --> 00:14:38,880
firm. Um I'm going to turn it over to

373
00:14:38,880 --> 00:14:41,519
him for the presentation, but um like I

374
00:14:41,519 --> 00:14:43,199
said, moving forward, our goal is to get

375
00:14:43,199 --> 00:14:44,399
you guys comfortable with these

376
00:14:44,399 --> 00:14:46,720
procedures so you know what to expect.

377
00:14:46,720 --> 00:14:49,040
We will be at every board of adjustment

378
00:14:49,040 --> 00:14:52,399
meeting here for you guys. Okay. Um, the

379
00:14:52,399 --> 00:14:55,600
decisions are yours. Yep. Okay. Uh,

380
00:14:55,600 --> 00:14:57,279
we're not here to give you a decision to

381
00:14:57,279 --> 00:14:59,199
say. This is how you should rule. That's

382
00:14:59,199 --> 00:15:00,720
not what we're here for. You guys should

383
00:15:00,720 --> 00:15:02,480
rule. Uh, I like to think of it about

384
00:15:02,480 --> 00:15:06,000
when I take my kids bowling, we pull the bumpers, keep them out of the

385
00:15:06,000 --> 00:15:08,399
gutter. Our job is to kind of keep you

386
00:15:08,399 --> 00:15:09,920
in line as far as what's legally

387
00:15:09,920 --> 00:15:11,360
required and and be mindful and

388
00:15:11,360 --> 00:15:13,680
respectful of that. But the decision is

389
00:15:13,680 --> 00:15:15,440
yours.

390
00:15:15,440 --> 00:15:17,040
>> I might have a question. Yes, sir.

391
00:15:17,040 --> 00:15:19,680
alternate members, what is our role here

392
00:15:19,680 --> 00:15:23,600
and what on a on a routine basis?

393
00:15:23,600 --> 00:15:25,760
>> Good question. Very good question. So,

394
00:15:25,760 --> 00:15:28,880
um, as long as we have the five regulars

395
00:15:28,880 --> 00:15:31,680
here, um, you don't get to vote,

396
00:15:31,680 --> 00:15:34,000
unfortunately. Um, but we encourage you

397
00:15:34,000 --> 00:15:35,680
to come, please, for a couple reasons.

398
00:15:35,680 --> 00:15:37,279
One,

399
00:15:37,279 --> 00:15:38,880
we all have different lives. We never

400
00:15:38,880 --> 00:15:40,000
know what's going to happen. Somebody

401
00:15:40,000 --> 00:15:41,680
gets sick, somebody has an accident on

402
00:15:41,680 --> 00:15:42,959
the way, god forbid, things of that

403
00:15:42,959 --> 00:15:45,839
nature. So, uh, if we have you here and

404
00:15:45,839 --> 00:15:47,519
one of the five is out, you will be in

405
00:15:47,519 --> 00:15:49,440
their seat and you'll be just like a

406
00:15:49,440 --> 00:15:52,399
regular member where you would vote. Um,

407
00:15:52,399 --> 00:15:54,320
being in attendance also helps learn

408
00:15:54,320 --> 00:15:56,079
these procedures, gets comfortable with

409
00:15:56,079 --> 00:15:57,519
them, gets comfortable with how we do

410
00:15:57,519 --> 00:16:00,399
things, that sort of thing. Um, in the

411
00:16:00,399 --> 00:16:01,839
event that somebody had to resign from

412
00:16:01,839 --> 00:16:04,160
the board, any reason good or bad,

413
00:16:04,160 --> 00:16:06,240
that's likely, you know, you need to

414
00:16:06,240 --> 00:16:07,600
fill in on the board potentially for

415
00:16:07,600 --> 00:16:10,480
that issue as well. Um, if you're not

416
00:16:10,480 --> 00:16:12,639
going to make it, and I think this would

417
00:16:12,639 --> 00:16:14,399
apply, and I won't speak for John, but

418
00:16:14,399 --> 00:16:15,680
um, if you're not gonna make a board

419
00:16:15,680 --> 00:16:16,959
meeting, if you kind of know that in

420
00:16:16,959 --> 00:16:18,959
advance, you can communicate that to

421
00:16:18,959 --> 00:16:21,519
John. Um, because we want to make sure

422
00:16:21,519 --> 00:16:23,199
we have enough folks here to carry on

423
00:16:23,199 --> 00:16:25,440
business. It takes four out of the five

424
00:16:25,440 --> 00:16:27,279
and not all still place thunder, but you

425
00:16:27,279 --> 00:16:28,480
got to have at least four of the regular

426
00:16:28,480 --> 00:16:33,519
members to conduct business. Um, so if one is absent, one of the two

427
00:16:33,519 --> 00:16:35,040
alternates can fill in and we can help

428
00:16:35,040 --> 00:16:38,160
meet that qu

429
00:16:38,160 --> 00:16:39,759
I answered that for you.

430
00:16:39,759 --> 00:16:40,240
>> Thank you.

431
00:16:40,240 --> 00:16:42,240
>> All right. Yes, sir. Anytime. Awesome.

432
00:16:42,240 --> 00:16:43,600
All right, Mr. Davis.

433
00:16:43,600 --> 00:16:45,440
>> All right. Good evening, everyone. Um,

434
00:16:45,440 --> 00:16:46,880
as Mr. Carowway introduced me

435
00:16:46,880 --> 00:16:48,959
previously, my name is Klay Davis. Um,

436
00:16:48,959 --> 00:16:50,880
I've had the privilege of working with

437
00:16:50,880 --> 00:16:53,040
board of adjustments in the form of

438
00:16:53,040 --> 00:16:55,040
board of adjustment attorney advising

439
00:16:55,040 --> 00:16:56,480
boards. I've had the honor of

440
00:16:56,480 --> 00:16:57,920
representing land owners in front of

441
00:16:57,920 --> 00:17:00,160
boards. So I've seen both sides and I've

442
00:17:00,160 --> 00:17:02,079
also had the opportunity to represent

443
00:17:02,079 --> 00:17:04,400
cities in advocating their position in

444
00:17:04,400 --> 00:17:05,520
front of board of adjustments. [snorts]

445
00:17:05,520 --> 00:17:07,120
So I've been able to see this at every

446
00:17:07,120 --> 00:17:08,799
angle and I'm grateful for that. I

447
00:17:08,799 --> 00:17:10,720
started my career here in Carter County

448
00:17:10,720 --> 00:17:12,880
uh practicing for a local law firm. Um

449
00:17:12,880 --> 00:17:14,480
fell in love with a woman from Zebulun

450
00:17:14,480 --> 00:17:15,839
and she said we need to move closer to

451
00:17:15,839 --> 00:17:17,439
family before we get married. So

452
00:17:17,439 --> 00:17:18,959
thankfully ended up with Mr. Careway's

453
00:17:18,959 --> 00:17:20,959
firm and uh I consider myself a trial

454
00:17:20,959 --> 00:17:23,039
attorney. Um I love the courtroom so

455
00:17:23,039 --> 00:17:24,720
it's hard for me to talk to you all

456
00:17:24,720 --> 00:17:26,799
sitting here but I'm happy to do it. Um,

457
00:17:26,799 --> 00:17:28,960
I'm used to moving around. Um, I want to

458
00:17:28,960 --> 00:17:30,160
make sure you don't have to follow me

459
00:17:30,160 --> 00:17:31,600
around the whole room the whole time.

460
00:17:31,600 --> 00:17:35,039
So, I will stay here. Um, but I'm I'm

461
00:17:35,039 --> 00:17:36,480
thankful to work with you all in this

462
00:17:36,480 --> 00:17:38,080
capacity as well because I get excited

463
00:17:38,080 --> 00:17:40,000
about board of adjustments hearings. You

464
00:17:40,000 --> 00:17:42,240
all essentially, I like to say, as one

465
00:17:42,240 --> 00:17:44,640
of our partners has said in the past,

466
00:17:44,640 --> 00:17:46,240
you all are judges, but unfortunately,

467
00:17:46,240 --> 00:17:48,320
you don't get robes. Um, you all get to

468
00:17:48,320 --> 00:17:50,480
make legal rulings. You get to hear

469
00:17:50,480 --> 00:17:52,720
cases that eventually a superior court

470
00:17:52,720 --> 00:17:54,799
judge might hear and you all get to make

471
00:17:54,799 --> 00:17:56,400
rulings on evidence and you don't even

472
00:17:56,400 --> 00:17:57,840
have to go to law school. So that's the

473
00:17:57,840 --> 00:17:59,840
cool part. Sorry, Mr. Chair. You did the

474
00:17:59,840 --> 00:18:01,919
hard part. Um but um

475
00:18:01,919 --> 00:18:02,799
>> you're the only one that gets the

476
00:18:02,799 --> 00:18:03,120
gamble.

477
00:18:03,120 --> 00:18:05,200
>> You he gets the best of both worlds. Um

478
00:18:05,200 --> 00:18:07,280
but that's that's how much that's how

479
00:18:07,280 --> 00:18:08,880
much I enjoy working with Board of

480
00:18:08,880 --> 00:18:11,039
Adjustments. So starting um just from

481
00:18:11,039 --> 00:18:13,120
the beginning um kind of the outlook on

482
00:18:13,120 --> 00:18:15,200
you all. I think uh this vibrated. I

483
00:18:15,200 --> 00:18:16,960
think it went the wrong way. Perfect. So

484
00:18:16,960 --> 00:18:18,320
again, you all have five regular

485
00:18:18,320 --> 00:18:19,919
members. You've heard a lot about that.

486
00:18:19,919 --> 00:18:22,480
Two alternates. Um, so a quorum, you

487
00:18:22,480 --> 00:18:24,640
need four members as Mr. Carowway

488
00:18:24,640 --> 00:18:26,640
alluded to. That's just so you all can

489
00:18:26,640 --> 00:18:28,559
conduct business. If four people aren't

490
00:18:28,559 --> 00:18:31,440
here, then you can't take action. And so

491
00:18:31,440 --> 00:18:33,600
that's why it's very important to have

492
00:18:33,600 --> 00:18:36,320
four regular members that can vote and

493
00:18:36,320 --> 00:18:38,480
take action. Um, these are some of the

494
00:18:38,480 --> 00:18:40,960
duties that you all have. Um, appeals of

495
00:18:40,960 --> 00:18:42,320
administrative decisions. We'll go

496
00:18:42,320 --> 00:18:44,400
through those. Um, not all of these will

497
00:18:44,400 --> 00:18:46,480
apply for you all. Um, one thing I

498
00:18:46,480 --> 00:18:48,720
wanted to do was just talk about some of

499
00:18:48,720 --> 00:18:51,360
the more common decisions we see around

500
00:18:51,360 --> 00:18:54,080
the state. So, thankfully you all don't

501
00:18:54,080 --> 00:18:56,799
have to worry about special use permits,

502
00:18:56,799 --> 00:18:59,600
which are the more contentious ones. Um,

503
00:18:59,600 --> 00:19:01,039
but you have other things like

504
00:19:01,039 --> 00:19:03,280
variances, and we'll go into that. Um,

505
00:19:03,280 --> 00:19:05,200
so that's some of your roles before

506
00:19:05,200 --> 00:19:07,520
here. Um, and I hit back again. This

507
00:19:07,520 --> 00:19:09,679
time it didn't vibrate. Um and just to

508
00:19:09,679 --> 00:19:12,799
interject just quickly, um when we look

509
00:19:12,799 --> 00:19:15,280
at the big picture here, um your board

510
00:19:15,280 --> 00:19:16,799
of commissioners for the town is the

511
00:19:16,799 --> 00:19:17,520
governing board.

512
00:19:17,520 --> 00:19:18,080
>> Yes.

513
00:19:18,080 --> 00:19:20,559
>> So they legislate ordinances and they

514
00:19:20,559 --> 00:19:23,360
pass the local laws so to speak. Okay.

515
00:19:23,360 --> 00:19:26,160
Um they have divested or given away some

516
00:19:26,160 --> 00:19:27,919
of their decision-making power to this

517
00:19:27,919 --> 00:19:30,640
board, right? And so uh it's different

518
00:19:30,640 --> 00:19:32,240
from city to city. Some cities the

519
00:19:32,240 --> 00:19:33,760
governing board sits as the board of

520
00:19:33,760 --> 00:19:34,960
adjustment and everything goes through

521
00:19:34,960 --> 00:19:36,720
the the town board, city council, town

522
00:19:36,720 --> 00:19:39,440
commissioners. uh here that rests with

523
00:19:39,440 --> 00:19:42,640
the board of adjustment. So um the

524
00:19:42,640 --> 00:19:44,240
planning board is separate than the

525
00:19:44,240 --> 00:19:45,760
board of adjustment. [clears throat]

526
00:19:45,760 --> 00:19:47,600
Legally you have to have even if the

527
00:19:47,600 --> 00:19:48,799
governing board is the board of

528
00:19:48,799 --> 00:19:50,000
adjustment, you have to have a planning

529
00:19:50,000 --> 00:19:50,400
board,

530
00:19:50,400 --> 00:19:50,799
>> right?

531
00:19:50,799 --> 00:19:52,640
>> And that's for think about it like you

532
00:19:52,640 --> 00:19:53,919
know public input. You're going to make

533
00:19:53,919 --> 00:19:56,720
a legislative change to the zoning issue

534
00:19:56,720 --> 00:20:00,400
or change, you know, um the zoning maps.

535
00:20:00,400 --> 00:20:03,280
Um that's your place for public review,

536
00:20:03,280 --> 00:20:05,360
public comment, you know, because we

537
00:20:05,360 --> 00:20:06,960
want the citizens involved with that

538
00:20:06,960 --> 00:20:08,400
process and that's where that input is

539
00:20:08,400 --> 00:20:10,320
really gathered. Um the board of

540
00:20:10,320 --> 00:20:13,280
adjustment uh if the governing board

541
00:20:13,280 --> 00:20:15,200
releases some authority has that

542
00:20:15,200 --> 00:20:17,039
authority to make certain decisions. So

543
00:20:17,039 --> 00:20:20,640
here um on the screen here are certain

544
00:20:20,640 --> 00:20:22,640
kinds of quasi judicial procedures. Not

545
00:20:22,640 --> 00:20:24,880
all of them have been released by the

546
00:20:24,880 --> 00:20:26,320
board of commissioners to board of

547
00:20:26,320 --> 00:20:29,039
adjustment here, but uh we're going to

548
00:20:29,039 --> 00:20:30,960
cover the three that that have

549
00:20:30,960 --> 00:20:32,799
>> and that's a good point. Um with regards

550
00:20:32,799 --> 00:20:34,000
because I believe you all sit as the

551
00:20:34,000 --> 00:20:35,280
planning board as well.

552
00:20:35,280 --> 00:20:36,799
>> No, they do not anymore. Okay, perfect.

553
00:20:36,799 --> 00:20:37,919
>> They don't anymore.

554
00:20:37,919 --> 00:20:38,400
>> Okay,

555
00:20:38,400 --> 00:20:39,760
>> perfect. All right. So, thankfully you

556
00:20:39,760 --> 00:20:41,600
all have one role. You all come here.

557
00:20:41,600 --> 00:20:44,000
You're the judge. You get to do um you

558
00:20:44,000 --> 00:20:45,200
get to make decisions while you're here

559
00:20:45,200 --> 00:20:46,480
and you have to hear evidence. So,

560
00:20:46,480 --> 00:20:48,320
perfect. You get the fun part. Um so,

561
00:20:48,320 --> 00:20:50,320
these are some of your more common ones.

562
00:20:50,320 --> 00:20:52,080
We have variances which you all do have

563
00:20:52,080 --> 00:20:54,799
authority to hear and consider the

564
00:20:54,799 --> 00:20:56,400
administrative decisions. So

565
00:20:56,400 --> 00:20:57,919
administrative decisions the way I like

566
00:20:57,919 --> 00:21:01,039
to put it is it's if a staff member if a

567
00:21:01,039 --> 00:21:03,280
citizen has to approach a member of the

568
00:21:03,280 --> 00:21:05,760
city town staff and to get some type of

569
00:21:05,760 --> 00:21:07,280
approval and they disagree with that

570
00:21:07,280 --> 00:21:09,280
approval you all get to hear about it.

571
00:21:09,280 --> 00:21:12,000
So you all will hear a vast amount of

572
00:21:12,000 --> 00:21:14,400
permits or different types of decisions.

573
00:21:14,400 --> 00:21:17,360
Our most common ones are if someone

574
00:21:17,360 --> 00:21:19,840
wants to um let's say develop a

575
00:21:19,840 --> 00:21:22,320
subdivision and there's a disagreement

576
00:21:22,320 --> 00:21:25,280
about what an ordinance says and they

577
00:21:25,280 --> 00:21:26,880
you can ask the planning director how do

578
00:21:26,880 --> 00:21:28,400
you interpret this ordinance? So you can

579
00:21:28,400 --> 00:21:30,559
direct me citizen on how to do

580
00:21:30,559 --> 00:21:32,960
something. Well the planning director

581
00:21:32,960 --> 00:21:34,799
will have an interpretation and then

582
00:21:34,799 --> 00:21:36,960
that citizen can say I will abide by

583
00:21:36,960 --> 00:21:38,960
that interpretation or I want to appeal

584
00:21:38,960 --> 00:21:40,320
that to the board of adjustment. And

585
00:21:40,320 --> 00:21:42,240
that's where you all come in. You all

586
00:21:42,240 --> 00:21:45,120
hear the administrator's decision rule

587
00:21:45,120 --> 00:21:47,280
on whether or not they made the correct

588
00:21:47,280 --> 00:21:49,120
decision and you have to base that on

589
00:21:49,120 --> 00:21:50,720
evidence. We'll get into that, but

590
00:21:50,720 --> 00:21:52,080
that's just an example of what an

591
00:21:52,080 --> 00:21:53,520
administrative appeal looks like. It's

592
00:21:53,520 --> 00:21:55,840
kind of a broad category um that you all

593
00:21:55,840 --> 00:21:57,919
will get to consider. All right. So,

594
00:21:57,919 --> 00:22:00,400
quasi judicial standards. Every board

595
00:22:00,400 --> 00:22:02,080
decision must be you're going to hear

596
00:22:02,080 --> 00:22:04,080
these words a lot and I apologize ahead

597
00:22:04,080 --> 00:22:06,159
of time. These three words, every board

598
00:22:06,159 --> 00:22:07,600
decision must be considered by

599
00:22:07,600 --> 00:22:10,240
substantial, competent, and material

600
00:22:10,240 --> 00:22:12,240
evidence. So what does that mean?

601
00:22:12,240 --> 00:22:14,400
Substantial evidence means someone

602
00:22:14,400 --> 00:22:16,480
reasonable would hear that evidence and

603
00:22:16,480 --> 00:22:18,000
say, you know what, that makes a

604
00:22:18,000 --> 00:22:20,640
difference in my mind. For example, um

605
00:22:20,640 --> 00:22:23,120
someone says the sky is blue, right? And

606
00:22:23,120 --> 00:22:24,159
that's what they have to prove. You got

607
00:22:24,159 --> 00:22:26,000
to prove the sky is blue. If someone

608
00:22:26,000 --> 00:22:27,360
who's sitting inside all day said,

609
00:22:27,360 --> 00:22:30,000
"Yeah, uh I I saw the sky today. It was

610
00:22:30,000 --> 00:22:31,440
gray." Well, they didn't see the sky.

611
00:22:31,440 --> 00:22:32,880
They don't know what color it was. They

612
00:22:32,880 --> 00:22:34,320
didn't go outside. But then you bring

613
00:22:34,320 --> 00:22:35,440
someone in here that says, "Yeah, I

614
00:22:35,440 --> 00:22:37,600
walked outside. I looked outside. I saw

615
00:22:37,600 --> 00:22:39,360
the sky was blue." That's substantial

616
00:22:39,360 --> 00:22:42,080
because you have someone before you that

617
00:22:42,080 --> 00:22:44,240
saw that evidence. That's substantial.

618
00:22:44,240 --> 00:22:46,320
It means something to you. It's what a

619
00:22:46,320 --> 00:22:48,640
reasonable jury would expect or excuse

620
00:22:48,640 --> 00:22:50,000
me, what a reasonable jury would

621
00:22:50,000 --> 00:22:52,320
consider adequate. You all get to play

622
00:22:52,320 --> 00:22:54,240
both rules. You're the reasonable jury

623
00:22:54,240 --> 00:22:57,200
in this case. So then we move to what's

624
00:22:57,200 --> 00:22:59,280
competent evidence. So competent

625
00:22:59,280 --> 00:23:00,799
evidence,

626
00:23:00,799 --> 00:23:03,600
it's a term in our in my area of law for

627
00:23:03,600 --> 00:23:05,840
quasi judicial law that gets thrown

628
00:23:05,840 --> 00:23:07,919
around a lot, but all it means is

629
00:23:07,919 --> 00:23:10,000
someone is qualified to say what they

630
00:23:10,000 --> 00:23:12,400
say. So if someone comes here and says

631
00:23:12,400 --> 00:23:15,919
to you all, I believe this use is

632
00:23:15,919 --> 00:23:18,880
dangerous to the community. Well, a lay

633
00:23:18,880 --> 00:23:21,200
person can't say that. They they don't

634
00:23:21,200 --> 00:23:22,720
they need to have some type of training

635
00:23:22,720 --> 00:23:24,240
to talk about why they think it's

636
00:23:24,240 --> 00:23:26,400
dangerous. They need to have some type

637
00:23:26,400 --> 00:23:28,400
of background that qualifies that

638
00:23:28,400 --> 00:23:30,400
statement. And you might hear attorneys

639
00:23:30,400 --> 00:23:31,600
come in here and say, you know,

640
00:23:31,600 --> 00:23:34,559
objection, the witness is not competent

641
00:23:34,559 --> 00:23:36,320
or the witness is not competent to make

642
00:23:36,320 --> 00:23:38,640
this statement. They're not being ugly.

643
00:23:38,640 --> 00:23:40,240
They're just saying under the legal

644
00:23:40,240 --> 00:23:42,559
standard, this witness is not qualified

645
00:23:42,559 --> 00:23:44,799
to testify about this subject. And we'll

646
00:23:44,799 --> 00:23:46,960
talk a little bit more about that. So,

647
00:23:46,960 --> 00:23:49,039
now let's go into objections. I talked

648
00:23:49,039 --> 00:23:50,320
about attorney making a competent

649
00:23:50,320 --> 00:23:52,880
objection. Let's say someone comes in,

650
00:23:52,880 --> 00:23:54,960
they testify. I think this project is

651
00:23:54,960 --> 00:23:57,520
dangerous. Objection, competence. That

652
00:23:57,520 --> 00:24:00,240
goes to you, Mr. Chair. So, at that

653
00:24:00,240 --> 00:24:03,200
point, you can make your own thought and

654
00:24:03,200 --> 00:24:05,120
say, you know what, I've heard it.

655
00:24:05,120 --> 00:24:07,760
Objection. I think it's overruled or

656
00:24:07,760 --> 00:24:10,240
sustained. Or I'm happy to help. Mr.

657
00:24:10,240 --> 00:24:11,679
Careway, if we're over here, you know,

658
00:24:11,679 --> 00:24:13,520
legal counsel, uh, what are your

659
00:24:13,520 --> 00:24:16,000
thoughts on this? I recommend X. You can

660
00:24:16,000 --> 00:24:17,360
take that recommendation and make your

661
00:24:17,360 --> 00:24:19,200
own determination. If you believe it's

662
00:24:19,200 --> 00:24:20,960
competent, you can overrule it and you

663
00:24:20,960 --> 00:24:23,440
can sustain it. Let's say you sustain it

664
00:24:23,440 --> 00:24:25,200
and that that person doesn't like your

665
00:24:25,200 --> 00:24:27,600
ruling. Well, then what happens next is

666
00:24:27,600 --> 00:24:29,520
that person, the attorney who objected

667
00:24:29,520 --> 00:24:32,080
can say or the person who does not agree

668
00:24:32,080 --> 00:24:33,760
with your ruling can say, "I want to

669
00:24:33,760 --> 00:24:36,000
appeal that to the entire board." So,

670
00:24:36,000 --> 00:24:38,159
what does that look like? Instead of it

671
00:24:38,159 --> 00:24:40,080
being the chair's decision, the rest of

672
00:24:40,080 --> 00:24:42,000
the board, just like you voted on agenda

673
00:24:42,000 --> 00:24:43,919
items, you all would vote on the

674
00:24:43,919 --> 00:24:45,919
objection.

675
00:24:45,919 --> 00:24:48,240
uh you all would discuss it openly and

676
00:24:48,240 --> 00:24:50,480
then someone would say I make a motion

677
00:24:50,480 --> 00:24:55,279
to affirm agree with the chair or I make

678
00:24:55,279 --> 00:24:58,400
a motion to overrule and in that

679
00:24:58,400 --> 00:25:00,480
situation you would overrule and the

680
00:25:00,480 --> 00:25:02,000
objection would have the opposite effect

681
00:25:02,000 --> 00:25:04,480
in this case in my example the testimony

682
00:25:04,480 --> 00:25:06,880
would be permitted. So any questions

683
00:25:06,880 --> 00:25:08,559
about that with the evidentiary side?

684
00:25:08,559 --> 00:25:09,600
Yes sir.

685
00:25:09,600 --> 00:25:13,120
>> Is is that uh just a majority or does it

686
00:25:13,120 --> 00:25:14,720
is it four out of five?

687
00:25:14,720 --> 00:25:16,080
>> Yes sir. Great question. It is a

688
00:25:16,080 --> 00:25:18,159
majority to overrule the chair's ruling

689
00:25:18,159 --> 00:25:19,200
in that.

690
00:25:19,200 --> 00:25:21,360
>> I'm sorry. Yes, sir. It is a majority to

691
00:25:21,360 --> 00:25:23,360
overrule the chair's ruling. Yes, sir.

692
00:25:23,360 --> 00:25:24,960
>> Majority of the regular members.

693
00:25:24,960 --> 00:25:26,400
>> Yes, sir. Thank you.

694
00:25:26,400 --> 00:25:28,799
>> All right. So, now let's talk about what

695
00:25:28,799 --> 00:25:31,279
does a quasi judicial quasi judicial

696
00:25:31,279 --> 00:25:33,520
decision look like. Treat it like a

697
00:25:33,520 --> 00:25:35,840
courtroom. That's my best advice. My

698
00:25:35,840 --> 00:25:39,039
best advice is a staff will usually open

699
00:25:39,039 --> 00:25:40,799
the presentation. Is that consistent,

700
00:25:40,799 --> 00:25:43,120
Mr. PL director? You all will open the

701
00:25:43,120 --> 00:25:45,039
if there's a quasi judicial decision,

702
00:25:45,039 --> 00:25:46,480
you all will give your staff report

703
00:25:46,480 --> 00:25:48,480
first. Perfect. So staff will give their

704
00:25:48,480 --> 00:25:51,840
report kind of an overview of what the

705
00:25:51,840 --> 00:25:55,279
um application is uh talking about what

706
00:25:55,279 --> 00:25:57,360
you all are going to hear today based on

707
00:25:57,360 --> 00:25:59,279
the ordinances. Usually it goes into the

708
00:25:59,279 --> 00:26:01,279
standards you all can consider. And then

709
00:26:01,279 --> 00:26:03,520
after staff presents, my recommendation

710
00:26:03,520 --> 00:26:06,240
is look at who has the burden of proof

711
00:26:06,240 --> 00:26:10,480
and let them go first. And so we'll go into that. But for example, a

712
00:26:10,480 --> 00:26:12,640
notice of violation. I believe you all

713
00:26:12,640 --> 00:26:14,159
still hear those for administrative

714
00:26:14,159 --> 00:26:16,400
appeals. So if someone comes in with the

715
00:26:16,400 --> 00:26:18,720
notice of violation, the burden is on

716
00:26:18,720 --> 00:26:21,039
the town to show you all evidence that

717
00:26:21,039 --> 00:26:23,279
the violation actually occurred. So in

718
00:26:23,279 --> 00:26:25,520
that case, I'd let town present you let

719
00:26:25,520 --> 00:26:27,520
town present their evidence first. Let

720
00:26:27,520 --> 00:26:29,039
them call their witnesses just like a

721
00:26:29,039 --> 00:26:31,039
courtroom. Let them call witnesses to

722
00:26:31,039 --> 00:26:34,080
testify. And then people who have

723
00:26:34,080 --> 00:26:35,760
standing, we'll go into standing more in

724
00:26:35,760 --> 00:26:37,440
a minute, have an opportunity to

725
00:26:37,440 --> 00:26:39,600
cross-examine that witness. Usually what

726
00:26:39,600 --> 00:26:41,679
that looks like is if it's a notice of

727
00:26:41,679 --> 00:26:44,559
violation, the town will have their uh

728
00:26:44,559 --> 00:26:46,720
staff member who worked on the report

729
00:26:46,720 --> 00:26:48,880
that led to the violation and then the

730
00:26:48,880 --> 00:26:50,559
attorney for the property owners

731
00:26:50,559 --> 00:26:52,640
cross-examining that staff member is

732
00:26:52,640 --> 00:26:54,960
usually what it looks like. Um, and then

733
00:26:54,960 --> 00:26:57,120
at that point, this is where the tough

734
00:26:57,120 --> 00:27:00,320
part comes in, especially for the chair.

735
00:27:00,320 --> 00:27:02,400
Only members withstanding are permitted

736
00:27:02,400 --> 00:27:05,279
to participate in the evidence.

737
00:27:05,279 --> 00:27:07,600
Technically, under the law, you can take

738
00:27:07,600 --> 00:27:09,520
in you can take evidence that you find

739
00:27:09,520 --> 00:27:12,400
relevant. I don't recommend you do that.

740
00:27:12,400 --> 00:27:14,240
I recommend you stick to the standing

741
00:27:14,240 --> 00:27:16,240
requirements. If someone doesn't have

742
00:27:16,240 --> 00:27:17,840
standing, and that's the hardest part

743
00:27:17,840 --> 00:27:18,880
because you're going to have members of

744
00:27:18,880 --> 00:27:21,120
the public who will be very passionate

745
00:27:21,120 --> 00:27:23,600
about certain issues. But if they live

746
00:27:23,600 --> 00:27:25,919
seven miles away and they have they

747
00:27:25,919 --> 00:27:27,760
believe that this project could harm a

748
00:27:27,760 --> 00:27:30,480
property seven miles away,

749
00:27:30,480 --> 00:27:33,919
it's hardressed to have standing to

750
00:27:33,919 --> 00:27:37,039
present evidence there. Um, so

751
00:27:37,039 --> 00:27:38,960
>> yes, sir.

752
00:27:38,960 --> 00:27:41,600
>> So in the example you gave us to have

753
00:27:41,600 --> 00:27:44,080
standing in that uh notice violation,

754
00:27:44,080 --> 00:27:46,320
you're talking about the person that's

755
00:27:46,320 --> 00:27:48,080
charged with a notice violation andor

756
00:27:48,080 --> 00:27:49,679
the person that charged.

757
00:27:49,679 --> 00:27:50,559
>> Yes, sir.

758
00:27:50,559 --> 00:27:52,559
>> Okay. Those people have standing. Yes,

759
00:27:52,559 --> 00:27:54,399
sir. They they all So, the So, the

760
00:27:54,399 --> 00:27:56,399
people that always have standing are the

761
00:27:56,399 --> 00:27:58,399
applicant, which in this case in a

762
00:27:58,399 --> 00:28:00,480
notice of violation, the I guess you

763
00:28:00,480 --> 00:28:03,520
would say the uh accused party. Um, but

764
00:28:03,520 --> 00:28:05,279
the applicant always has standing. The

765
00:28:05,279 --> 00:28:08,080
town always has standing to participate.

766
00:28:08,080 --> 00:28:09,840
The town can always be represented. They

767
00:28:09,840 --> 00:28:11,360
can always cross-examine, call

768
00:28:11,360 --> 00:28:14,480
witnesses. That's that's adequate. Um,

769
00:28:14,480 --> 00:28:16,320
now let's talk about other people that

770
00:28:16,320 --> 00:28:19,039
Yes, sir. Um,

771
00:28:19,039 --> 00:28:22,000
can the next door neighbor

772
00:28:22,000 --> 00:28:24,399
does next-door neighbor have standing?

773
00:28:24,399 --> 00:28:27,919
>> Great question. So, usually what

774
00:28:27,919 --> 00:28:30,799
standing is defined as is someone who

775
00:28:30,799 --> 00:28:32,720
adjoining property owners immediate

776
00:28:32,720 --> 00:28:34,720
vicinity. So, your in your neighbor

777
00:28:34,720 --> 00:28:37,279
example or someone who would suffer

778
00:28:37,279 --> 00:28:40,559
special damages. Special damages is a

779
00:28:40,559 --> 00:28:43,679
very broad category. Um, some examples

780
00:28:43,679 --> 00:28:45,520
of special damages are if your property

781
00:28:45,520 --> 00:28:46,960
values would be affected by the

782
00:28:46,960 --> 00:28:49,120
decision. Again, if you're further down

783
00:28:49,120 --> 00:28:50,880
the road, it's hard to say your property

784
00:28:50,880 --> 00:28:54,720
values would be um affected, but it's a

785
00:28:54,720 --> 00:28:57,039
case-byase basis. And I and I that's

786
00:28:57,039 --> 00:28:59,520
where we're here. We're here to help. If

787
00:28:59,520 --> 00:29:00,720
you have questions, what I always tell

788
00:29:00,720 --> 00:29:02,799
my boards is don't be afraid to use the

789
00:29:02,799 --> 00:29:05,120
lawyer next to you that has to do legal

790
00:29:05,120 --> 00:29:07,039
research in their daily lives to say,

791
00:29:07,039 --> 00:29:08,880
Mr. Attorney, they've presented this

792
00:29:08,880 --> 00:29:10,880
evidence. What are your thoughts? And

793
00:29:10,880 --> 00:29:12,480
then my thought would be, well, you

794
00:29:12,480 --> 00:29:14,559
know, based on North Carolina case law

795
00:29:14,559 --> 00:29:16,159
at this point, this person lives eight

796
00:29:16,159 --> 00:29:18,399
miles down the road. They don't they

797
00:29:18,399 --> 00:29:22,000
don't travel down a road based on um so

798
00:29:22,000 --> 00:29:23,760
let me backtrack. They live eight miles

799
00:29:23,760 --> 00:29:25,360
down the road. They probably don't have

800
00:29:25,360 --> 00:29:26,880
an interest here. That's my

801
00:29:26,880 --> 00:29:28,960
understanding. Um there have been cases

802
00:29:28,960 --> 00:29:32,399
where someone's storm water um that they

803
00:29:32,399 --> 00:29:34,480
were receiving would be increased by the

804
00:29:34,480 --> 00:29:36,080
project. Some courts have found that

805
00:29:36,080 --> 00:29:38,399
sufficient but it just ba it's based on

806
00:29:38,399 --> 00:29:40,799
uh the project itself or the application

807
00:29:40,799 --> 00:29:42,559
or the notice of violate or excuse me or

808
00:29:42,559 --> 00:29:45,120
the um the hearing that's being heard

809
00:29:45,120 --> 00:29:47,440
right so the approval rather. Yes sir.

810
00:29:47,440 --> 00:29:48,559
Did that answer your question?

811
00:29:48,559 --> 00:29:49,039
>> Yeah.

812
00:29:49,039 --> 00:29:50,000
>> Perfect. Thank you.

813
00:29:50,000 --> 00:29:52,480
>> Um so

814
00:29:52,480 --> 00:29:54,480
that's with the standing side of things.

815
00:29:54,480 --> 00:29:56,480
I want to go back to what is competent

816
00:29:56,480 --> 00:29:59,360
evidence because again it's a it's a

817
00:29:59,360 --> 00:30:01,360
broad category but thankfully the

818
00:30:01,360 --> 00:30:03,360
legislators helped us out just a little

819
00:30:03,360 --> 00:30:06,240
bit. So talking about what is competent

820
00:30:06,240 --> 00:30:08,720
evidence, there's three things that have

821
00:30:08,720 --> 00:30:11,120
to have an expert that some that the

822
00:30:11,120 --> 00:30:13,760
person who's claiming this evidence to

823
00:30:13,760 --> 00:30:16,240
be true must be qualified to say the

824
00:30:16,240 --> 00:30:18,080
very thing. So and that is property

825
00:30:18,080 --> 00:30:19,919
values, how use is going to affect a

826
00:30:19,919 --> 00:30:21,840
property. They need to have some type of

827
00:30:21,840 --> 00:30:24,080
appraisal training. I always say they

828
00:30:24,080 --> 00:30:25,600
must have some type of real estate

829
00:30:25,600 --> 00:30:27,760
training. We can't. And that's tough

830
00:30:27,760 --> 00:30:29,360
because you have people next door that

831
00:30:29,360 --> 00:30:31,520
want to say this is going to affect my

832
00:30:31,520 --> 00:30:34,000
property. If you if you build this close

833
00:30:34,000 --> 00:30:36,240
to me and you grant this variance, it's

834
00:30:36,240 --> 00:30:39,200
going to affect my property.

835
00:30:39,200 --> 00:30:41,679
That that alone, our courts have the the

836
00:30:41,679 --> 00:30:43,760
cases have told us in our courts that

837
00:30:43,760 --> 00:30:46,080
generalized grievances

838
00:30:46,080 --> 00:30:48,720
or speculative grievances about how

839
00:30:48,720 --> 00:30:50,480
something will affect your property,

840
00:30:50,480 --> 00:30:52,720
it's not competent evidence. So, we

841
00:30:52,720 --> 00:30:55,919
always have to have an expert for how

842
00:30:55,919 --> 00:30:57,279
your property will be affected by a

843
00:30:57,279 --> 00:30:59,840
certain project. All right. So, then

844
00:30:59,840 --> 00:31:02,399
increase in vehicle traffic.

845
00:31:02,399 --> 00:31:04,720
This is another tough one. If you have

846
00:31:04,720 --> 00:31:06,559
your your next door neighbor says,

847
00:31:06,559 --> 00:31:07,919
"Well, if you're going to put a

848
00:31:07,919 --> 00:31:09,679
commercial establishment next to my

849
00:31:09,679 --> 00:31:12,000
neighborhood, of course more cars are

850
00:31:12,000 --> 00:31:13,840
going to drive down that road. Of

851
00:31:13,840 --> 00:31:15,200
course, it's going to increase it by a

852
00:31:15,200 --> 00:31:18,480
hundred more cars or so." We need an

853
00:31:18,480 --> 00:31:20,240
expert. We need a traffic engineer that

854
00:31:20,240 --> 00:31:22,080
will say this will result in this many

855
00:31:22,080 --> 00:31:24,720
trips per day. This will result in this

856
00:31:24,720 --> 00:31:27,039
effect on vehicular traffic. The

857
00:31:27,039 --> 00:31:29,200
legislator's told us we need we need an

858
00:31:29,200 --> 00:31:32,640
expert for that. Um and then this is the

859
00:31:32,640 --> 00:31:35,279
third one matters where an expert would

860
00:31:35,279 --> 00:31:38,159
likely be required. What does that mean?

861
00:31:38,159 --> 00:31:40,159
I always tell my boards look for is this

862
00:31:40,159 --> 00:31:43,600
a specialized area. For example, this

863
00:31:43,600 --> 00:31:47,200
person comes in talking about how I

864
00:31:47,200 --> 00:31:49,919
believe if you build this cell phone

865
00:31:49,919 --> 00:31:53,519
tower next door to me and it gets icy

866
00:31:53,519 --> 00:31:55,840
and ice falls, it could hurt someone. My

867
00:31:55,840 --> 00:31:58,799
kids always go outside and that tower

868
00:31:58,799 --> 00:32:00,559
could drop ice on top of me. That's a

869
00:32:00,559 --> 00:32:02,799
case out of the Supreme Court. That's

870
00:32:02,799 --> 00:32:05,600
okay because obviously someone can say

871
00:32:05,600 --> 00:32:07,840
that would hurt someone, right?

872
00:32:07,840 --> 00:32:09,919
But if you have some other type of

873
00:32:09,919 --> 00:32:11,360
project that could have an effect on the

874
00:32:11,360 --> 00:32:13,919
environment and someone comes in and

875
00:32:13,919 --> 00:32:16,080
says, "Well, I read online Google told

876
00:32:16,080 --> 00:32:19,039
me that this is how this particular use

877
00:32:19,039 --> 00:32:21,200
would affect the environment." We need

878
00:32:21,200 --> 00:32:23,039
an expert, someone someone with

879
00:32:23,039 --> 00:32:24,960
education, someone with training. We

880
00:32:24,960 --> 00:32:26,480
need that person to come in and testify

881
00:32:26,480 --> 00:32:29,600
on that person's behalf. So look for

882
00:32:29,600 --> 00:32:31,519
things that require education, look for

883
00:32:31,519 --> 00:32:34,480
things that require training. Um,

884
00:32:34,480 --> 00:32:36,559
sometimes with the area of construction

885
00:32:36,559 --> 00:32:38,799
that gets tough. If you have someone

886
00:32:38,799 --> 00:32:40,640
that comes in because everyone's owned,

887
00:32:40,640 --> 00:32:43,360
everyone um has lived in a home, they

888
00:32:43,360 --> 00:32:45,760
can testify to way their home was

889
00:32:45,760 --> 00:32:47,760
affected by something like a storm or

890
00:32:47,760 --> 00:32:48,960
they could say, "Oh, yeah, well, I had a

891
00:32:48,960 --> 00:32:50,640
leak and it wasn't leaking before, but

892
00:32:50,640 --> 00:32:52,240
was the cause of that leak?" That's

893
00:32:52,240 --> 00:32:54,399
where your expert testimony comes in.

894
00:32:54,399 --> 00:32:56,640
So, look for training, look for

895
00:32:56,640 --> 00:32:58,559
educational areas. All right. So, we'll

896
00:32:58,559 --> 00:32:59,760
move to the next slide. Do you have

897
00:32:59,760 --> 00:33:00,720
anything you want to add to that? Yes,

898
00:33:00,720 --> 00:33:04,080
sir. question maybe going back uh just a

899
00:33:04,080 --> 00:33:04,559
little bit.

900
00:33:04,559 --> 00:33:05,200
>> Yes, sir.

901
00:33:05,200 --> 00:33:06,720
>> Um

902
00:33:06,720 --> 00:33:10,880
we will when when will we receive

903
00:33:10,880 --> 00:33:14,159
notice of an appeal and uh or an

904
00:33:14,159 --> 00:33:17,760
application for a variance? Uh when will

905
00:33:17,760 --> 00:33:20,720
we as board members do do we not see it

906
00:33:20,720 --> 00:33:23,440
until we reach the meeting?

907
00:33:23,440 --> 00:33:24,799
>> Great question. So

908
00:33:24,799 --> 00:33:27,360
>> or you know Go ahead.

909
00:33:27,360 --> 00:33:30,240
>> No, no, sir. You go first. My my

910
00:33:30,240 --> 00:33:33,519
question with that is if we get advanced

911
00:33:33,519 --> 00:33:36,559
notice, are we allowed to go out and

912
00:33:36,559 --> 00:33:39,200
look at the property before the meeting?

913
00:33:39,200 --> 00:33:41,519
>> That is the hardest part. Yes, sir. So,

914
00:33:41,519 --> 00:33:42,960
your ordin So, it depends on the

915
00:33:42,960 --> 00:33:44,960
ordinance. I believe your ordinance does

916
00:33:44,960 --> 00:33:47,840
permit it with but it must be disclosed.

917
00:33:47,840 --> 00:33:50,399
I believe site visits are permitted.

918
00:33:50,399 --> 00:33:52,399
I'll I'll check back on that to be sure,

919
00:33:52,399 --> 00:33:55,200
but I I believe I remember reading that.

920
00:33:55,200 --> 00:33:56,799
Most of the time I recommend on my

921
00:33:56,799 --> 00:34:02,640
boards not to because you take you're here because you can have certain

922
00:34:02,640 --> 00:34:04,559
specialized knowledge. Let's say there's

923
00:34:04,559 --> 00:34:06,960
a a project on Smith Road. You've been

924
00:34:06,960 --> 00:34:08,480
there your whole life. You know what

925
00:34:08,480 --> 00:34:10,399
happens on Smith Road. You know that

926
00:34:10,399 --> 00:34:13,200
there's this many houses. You you can

927
00:34:13,200 --> 00:34:16,399
say, you know, I lived on Smith Road and

928
00:34:16,399 --> 00:34:19,679
there's four houses here.

929
00:34:19,679 --> 00:34:21,760
Maybe we don't need two little town

930
00:34:21,760 --> 00:34:23,520
homes in the middle right here. that

931
00:34:23,520 --> 00:34:25,679
still might be a step too far. I always

932
00:34:25,679 --> 00:34:28,079
recommend my my boards base it solely

933
00:34:28,079 --> 00:34:30,480
off the evidence presented. what what's

934
00:34:30,480 --> 00:34:32,639
told to you base it off that if you know

935
00:34:32,639 --> 00:34:34,320
generalize the loca generally the

936
00:34:34,320 --> 00:34:35,520
location of where a project might be

937
00:34:35,520 --> 00:34:37,520
taking place or an application keep that

938
00:34:37,520 --> 00:34:40,240
in mind but the effect let the evidence

939
00:34:40,240 --> 00:34:41,839
be what drives you there is my

940
00:34:41,839 --> 00:34:43,359
recommendation because you have to

941
00:34:43,359 --> 00:34:45,839
disclose exparte communication if you've

942
00:34:45,839 --> 00:34:47,440
talked to anyone about it

943
00:34:47,440 --> 00:34:48,000
>> that's fine

944
00:34:48,000 --> 00:34:48,800
>> and then you have to

945
00:34:48,800 --> 00:34:51,200
>> I I would sure you know say you know I

946
00:34:51,200 --> 00:34:55,359
went out and visited the property and it's

947
00:34:55,359 --> 00:34:59,430
>> you know and

948
00:34:59,440 --> 00:35:02,160
you and so forth. And then here here the

949
00:35:02,160 --> 00:35:05,040
argument and it I mean pro or con I mean

950
00:35:05,040 --> 00:35:05,760
I'm not

951
00:35:05,760 --> 00:35:07,680
>> so and that and that would be the other

952
00:35:07,680 --> 00:35:08,079
side.

953
00:35:08,079 --> 00:35:10,640
>> I want to know what the

954
00:35:10,640 --> 00:35:12,480
general environment you know what are

955
00:35:12,480 --> 00:35:13,599
you guys talking about.

956
00:35:13,599 --> 00:35:15,520
>> So that's a great point because what

957
00:35:15,520 --> 00:35:17,040
would happen next after you've disclosed

958
00:35:17,040 --> 00:35:18,720
it the next question is can you remain

959
00:35:18,720 --> 00:35:20,240
impartial and you've just told me you

960
00:35:20,240 --> 00:35:21,599
can remain impartial even if you do

961
00:35:21,599 --> 00:35:24,400
that. Uh so

962
00:35:24,400 --> 00:35:26,480
there and kind of to tie up a couple

963
00:35:26,480 --> 00:35:30,079
points here together as well is um you

964
00:35:30,079 --> 00:35:32,720
know the term is quasi judicial here.

965
00:35:32,720 --> 00:35:34,720
What you're doing is a quasi judicial

966
00:35:34,720 --> 00:35:37,119
almost court is what you guys are doing.

967
00:35:37,119 --> 00:35:39,520
You're almost a judge in court. Okay.

968
00:35:39,520 --> 00:35:41,599
>> Um that's what makes it quasi because

969
00:35:41,599 --> 00:35:43,200
you're not a court but you are expected

970
00:35:43,200 --> 00:35:45,760
to do certain legal procedural things.

971
00:35:45,760 --> 00:35:47,119
One, two, three. Make sure they're all

972
00:35:47,119 --> 00:35:50,000
done. Do process here. Um and you know

973
00:35:50,000 --> 00:35:52,560
the grand scheme of things we are a

974
00:35:52,560 --> 00:35:57,680
governing board potentially limiting or or regulating what somebody can and

975
00:35:57,680 --> 00:35:59,599
can't do with their property pursuit of

976
00:35:59,599 --> 00:36:01,920
life, liberty and property. So these are

977
00:36:01,920 --> 00:36:04,240
big fundamental constitutional issues

978
00:36:04,240 --> 00:36:06,560
that have digested down the town of

979
00:36:06,560 --> 00:36:09,280
Emerald and their zoning issues. Okay,

980
00:36:09,280 --> 00:36:12,240
zoning code. So it's quasi judicial in

981
00:36:12,240 --> 00:36:14,400
nature in that certain due processes

982
00:36:14,400 --> 00:36:17,119
rights attached. So, uh, piggybacking on

983
00:36:17,119 --> 00:36:18,560
Clay's comment about, you know, we

984
00:36:18,560 --> 00:36:20,960
generally advise boards, uh, not to take

985
00:36:20,960 --> 00:36:24,560
an extra field trip to the site. Um,

986
00:36:24,560 --> 00:36:25,680
some of the reasons for that, I, you

987
00:36:25,680 --> 00:36:27,359
know, if it's, you know, right here on

988
00:36:27,359 --> 00:36:29,760
58 and you can't help but drive by to go

989
00:36:29,760 --> 00:36:30,960
anywhere in town, that's a little

990
00:36:30,960 --> 00:36:33,839
different. Uh, but

991
00:36:33,839 --> 00:36:35,359
can you remain impartial even if you

992
00:36:35,359 --> 00:36:37,359
drive it past every day? But the reason

993
00:36:37,359 --> 00:36:40,320
for recommendation though is um we want

994
00:36:40,320 --> 00:36:43,040
the decision of the board to be based on

995
00:36:43,040 --> 00:36:45,200
the facts that are presented by the

996
00:36:45,200 --> 00:36:48,000
parties and that becomes the record.

997
00:36:48,000 --> 00:36:50,160
Okay. So what's in the record? If you

998
00:36:50,160 --> 00:36:52,640
had a conversation with a neighbor to

999
00:36:52,640 --> 00:36:54,960
that site who just landlasted the

1000
00:36:54,960 --> 00:36:56,800
project and just told you how bad it was

1001
00:36:56,800 --> 00:36:58,960
and you think, man, I wouldn't want that

1002
00:36:58,960 --> 00:37:02,000
if I'm next door. um and you rule in

1003
00:37:02,000 --> 00:37:03,760
such a way or your basis for ruling in

1004
00:37:03,760 --> 00:37:06,880
such a way uh can't be supported by the

1005
00:37:06,880 --> 00:37:08,640
arguments and the evidence received by

1006
00:37:08,640 --> 00:37:10,480
the board then we got a problem.

1007
00:37:10,480 --> 00:37:12,160
>> So uh that's why we have that

1008
00:37:12,160 --> 00:37:13,839
recommendation and that's why we say

1009
00:37:13,839 --> 00:37:15,839
things called quasi judicial because you

1010
00:37:15,839 --> 00:37:17,760
are sitting like a judiciary like a

1011
00:37:17,760 --> 00:37:20,240
court without the requirement of being

1012
00:37:20,240 --> 00:37:21,839
lawyers and judges and all that fun

1013
00:37:21,839 --> 00:37:24,720
stuff. Um but attached to that are due

1014
00:37:24,720 --> 00:37:27,359
process requirements. So that's why we

1015
00:37:27,359 --> 00:37:30,880
have the records kept. Um that's why we

1016
00:37:30,880 --> 00:37:32,800
have evidentiary objections and things

1017
00:37:32,800 --> 00:37:34,240
of that nature.

1018
00:37:34,240 --> 00:37:36,160
>> Are when are we going to get the

1019
00:37:36,160 --> 00:37:38,000
applications?

1020
00:37:38,000 --> 00:37:40,800
>> How far out do you send agendas?

1021
00:37:40,800 --> 00:37:43,680
>> So for this one it was just last week. U

1022
00:37:43,680 --> 00:37:45,359
I try to do by Wednesday of every week.

1023
00:37:45,359 --> 00:37:47,680
I got the one last week by Thursday if

1024
00:37:47,680 --> 00:37:48,880
we had something that they needed to

1025
00:37:48,880 --> 00:37:51,599
look at you know as soon as advanced as

1026
00:37:51,599 --> 00:37:52,079
I could.

1027
00:37:52,079 --> 00:37:52,560
>> Okay.

1028
00:37:52,560 --> 00:37:53,119
>> Yeah.

1029
00:37:53,119 --> 00:37:54,841
>> Right. just kind of to go back.

1030
00:37:54,841 --> 00:37:56,400
[clears throat] So there if let's go

1031
00:37:56,400 --> 00:37:58,400
back to my Smith Road example. I don't

1032
00:37:58,400 --> 00:38:00,400
think there's any problem during the

1033
00:38:00,400 --> 00:38:01,920
hearing where if you had an applicant

1034
00:38:01,920 --> 00:38:03,200
that was on Smith Road, you lived there

1035
00:38:03,200 --> 00:38:05,839
your whole life and you say, "I know the

1036
00:38:05,839 --> 00:38:09,520
layout of the houses pretty well. Mr.

1037
00:38:09,520 --> 00:38:11,440
Applicant, what are your opinions about

1038
00:38:11,440 --> 00:38:13,760
this?" That's your knowledge living on

1039
00:38:13,760 --> 00:38:16,160
Smith Road, asking the applicant based

1040
00:38:16,160 --> 00:38:18,320
on that knowledge. But where you go

1041
00:38:18,320 --> 00:38:21,520
wrong is is you can't say I've lived on

1042
00:38:21,520 --> 00:38:23,920
Smith Road my whole life. I don't think

1043
00:38:23,920 --> 00:38:25,119
there needs to, like I said, I don't

1044
00:38:25,119 --> 00:38:26,480
think there needs to be two town homes

1045
00:38:26,480 --> 00:38:28,400
here just because of my knowledge alone.

1046
00:38:28,400 --> 00:38:29,920
Courts have said that that's not

1047
00:38:29,920 --> 00:38:31,680
competent evidence. The backgrounds we

1048
00:38:31,680 --> 00:38:32,640
have alone.

1049
00:38:32,640 --> 00:38:34,880
>> But you would recuse yourself.

1050
00:38:34,880 --> 00:38:36,480
>> Yes, sir. That's a good point.

1051
00:38:36,480 --> 00:38:38,400
>> If Yes, sir.

1052
00:38:38,400 --> 00:38:40,160
>> And that's in here somewhere.

1053
00:38:40,160 --> 00:38:43,119
>> Yes, sir. You can't be impartial. come

1054
00:38:43,119 --> 00:38:45,200
in as a neutral, clear mind and and make

1055
00:38:45,200 --> 00:38:46,880
a decision based on what's presented to

1056
00:38:46,880 --> 00:38:47,200
you.

1057
00:38:47,200 --> 00:38:47,680
>> Yes, sir.

1058
00:38:47,680 --> 00:38:50,000
>> Um if you can't separate yourself from a

1059
00:38:50,000 --> 00:38:52,160
history of living on Smith Road,

1060
00:38:52,160 --> 00:38:55,040
>> um then you can recuse yourself has to

1061
00:38:55,040 --> 00:38:56,160
be recused and we would have an

1062
00:38:56,160 --> 00:38:58,880
alternate number.

1063
00:38:58,880 --> 00:39:00,560
You know, the the unfortunate the worst

1064
00:39:00,560 --> 00:39:03,119
case we have in a state court right now

1065
00:39:03,119 --> 00:39:04,560
which precedent of kind of the example

1066
00:39:04,560 --> 00:39:06,000
I've laid out. There was a case in a

1067
00:39:06,000 --> 00:39:08,079
major city where a hotel was being

1068
00:39:08,079 --> 00:39:10,079
proposed to be built. And the board

1069
00:39:10,079 --> 00:39:11,839
members said on the record, you know, I

1070
00:39:11,839 --> 00:39:13,520
know that area. It can't take another

1071
00:39:13,520 --> 00:39:16,240
hotel. It's too dense. It's dangerous.

1072
00:39:16,240 --> 00:39:18,079
And the court said, you know, I know

1073
00:39:18,079 --> 00:39:20,320
he's has knowledge, but you can't base

1074
00:39:20,320 --> 00:39:21,760
it off that alone. You know, you need to

1075
00:39:21,760 --> 00:39:23,920
have someone here that can say you're

1076
00:39:23,920 --> 00:39:25,119
you can even ask the applicant, hey,

1077
00:39:25,119 --> 00:39:26,800
I've lived there. What are your thoughts

1078
00:39:26,800 --> 00:39:29,119
on this? And that way, it's evidence now

1079
00:39:29,119 --> 00:39:31,359
based on testimony. It's not just your

1080
00:39:31,359 --> 00:39:32,960
statement on the record. And all you

1081
00:39:32,960 --> 00:39:34,160
have some supporting evidence from

1082
00:39:34,160 --> 00:39:36,079
someone else too.

1083
00:39:36,079 --> 00:39:37,520
>> Is that any further questions on that

1084
00:39:37,520 --> 00:39:38,480
sir?

1085
00:39:38,480 --> 00:39:40,240
>> Yeah. Okay. Perfect.

1086
00:39:40,240 --> 00:39:41,119
>> Thank you.

1087
00:39:41,119 --> 00:39:42,720
>> All right. So we're going to move to the

1088
00:39:42,720 --> 00:39:44,720
next slide on one of the Okay. So we

1089
00:39:44,720 --> 00:39:47,119
have who can participate? Variances. All

1090
00:39:47,119 --> 00:39:49,760
right. Variances. Variances are some of

1091
00:39:49,760 --> 00:39:52,640
the tougher is the tougher um decision

1092
00:39:52,640 --> 00:39:55,359
you all have to make. So because you're

1093
00:39:55,359 --> 00:39:56,880
dealing with an applicant that believes

1094
00:39:56,880 --> 00:40:00,000
in injustice has happened to them. Um,

1095
00:40:00,000 --> 00:40:01,440
and you have to make a ruling based on

1096
00:40:01,440 --> 00:40:03,599
the evidence whether or not an injustic

1097
00:40:03,599 --> 00:40:06,960
an injustice occurred. Right? So, first

1098
00:40:06,960 --> 00:40:09,040
and foremost, the applicant has the

1099
00:40:09,040 --> 00:40:10,480
burden to prove every one of those

1100
00:40:10,480 --> 00:40:13,040
elements. An unnecessary hardship would

1101
00:40:13,040 --> 00:40:15,359
result if they were required to comply

1102
00:40:15,359 --> 00:40:18,240
with the ordinance as written that the

1103
00:40:18,240 --> 00:40:22,160
uh condition of the land is peculiar to

1104
00:40:22,160 --> 00:40:25,119
that piece of property. that specific

1105
00:40:25,119 --> 00:40:27,040
property is different from other

1106
00:40:27,040 --> 00:40:28,400
properties in the area that might be

1107
00:40:28,400 --> 00:40:30,960
suffering the same harm. And then third,

1108
00:40:30,960 --> 00:40:33,599
it can't be self-created. Um, the most

1109
00:40:33,599 --> 00:40:35,920
common question I get about this element

1110
00:40:35,920 --> 00:40:38,560
is, let's say you move to Smith Road

1111
00:40:38,560 --> 00:40:42,320
from out of town and you know Smith Road

1112
00:40:42,320 --> 00:40:44,480
can't be built based on a setback

1113
00:40:44,480 --> 00:40:47,440
requirement, but you still move there.

1114
00:40:47,440 --> 00:40:50,000
Unfortunately, as a board, it's not

1115
00:40:50,000 --> 00:40:51,440
appropriate to say, "Well, sir, didn't

1116
00:40:51,440 --> 00:40:53,839
you buy this house two months ago?" Yes,

1117
00:40:53,839 --> 00:40:56,079
I did. And sir, didn't you know that the

1118
00:40:56,079 --> 00:40:58,319
setback requirements were this when you

1119
00:40:58,319 --> 00:41:00,800
bought it? I did. That's not a

1120
00:41:00,800 --> 00:41:02,400
self-created hardship. Our courts have

1121
00:41:02,400 --> 00:41:04,000
said that just because you move

1122
00:41:04,000 --> 00:41:06,880
somewhere knowing of a problem does not

1123
00:41:06,880 --> 00:41:09,280
preclude a variance.

1124
00:41:09,280 --> 00:41:12,800
But they have to show that let's say

1125
00:41:12,800 --> 00:41:15,440
John gets John Smith gets site plan

1126
00:41:15,440 --> 00:41:17,280
approval to build a home, a two-story

1127
00:41:17,280 --> 00:41:20,079
home. And as he's building that home, oh

1128
00:41:20,079 --> 00:41:22,640
no, he builds too he he doesn't comply

1129
00:41:22,640 --> 00:41:24,960
with the setbacks and now he says,"I

1130
00:41:24,960 --> 00:41:27,200
want a variance." Well, then you have an

1131
00:41:27,200 --> 00:41:30,000
issue there. John, you built the home.

1132
00:41:30,000 --> 00:41:32,640
You built too close. You created that

1133
00:41:32,640 --> 00:41:34,400
issue. You got to prove for something

1134
00:41:34,400 --> 00:41:35,920
else. You just chose to build otherwise.

1135
00:41:35,920 --> 00:41:37,200
That's an example of the self-grated

1136
00:41:37,200 --> 00:41:40,400
hardship. Um, and then the requested

1137
00:41:40,400 --> 00:41:42,000
variance is consistent with the intent

1138
00:41:42,000 --> 00:41:43,920
of the ordinance and is in harmony. It's

1139
00:41:43,920 --> 00:41:46,319
usually a legal question. Usually where

1140
00:41:46,319 --> 00:41:48,720
I, you know, guide boards in that regard

1141
00:41:48,720 --> 00:41:52,000
is are we are we building something that

1142
00:41:52,000 --> 00:41:54,160
is so far outside the realm of the

1143
00:41:54,160 --> 00:41:57,200
general area or how are we going is this

1144
00:41:57,200 --> 00:41:59,359
person asking for something crazy?

1145
00:41:59,359 --> 00:42:00,720
That's usually where that element comes

1146
00:42:00,720 --> 00:42:01,520
into play.

1147
00:42:01,520 --> 00:42:03,280
>> It's not a slight Yes, sir.

1148
00:42:03,280 --> 00:42:04,480
>> Okay. I was just going to give an

1149
00:42:04,480 --> 00:42:08,079
example. Um, one of my town clients sits

1150
00:42:08,079 --> 00:42:11,040
as the board of adjustment and uh, they

1151
00:42:11,040 --> 00:42:13,680
had a variance application come up where

1152
00:42:13,680 --> 00:42:15,440
uh, neighborhood on one side of town was

1153
00:42:15,440 --> 00:42:17,359
built in the 50s. You know, single story

1154
00:42:17,359 --> 00:42:19,920
brick ranch homes every so far apart,

1155
00:42:19,920 --> 00:42:21,920
you know, consistently, you know, three

1156
00:42:21,920 --> 00:42:24,240
or four streets wide. And one of the

1157
00:42:24,240 --> 00:42:26,560
homes uh, had been subject to a fire a

1158
00:42:26,560 --> 00:42:28,400
couple years ago

1159
00:42:28,400 --> 00:42:30,560
and the owners weren't to be found. I

1160
00:42:30,560 --> 00:42:32,480
think it was heir's property that you

1161
00:42:32,480 --> 00:42:34,319
know, great grandpa's old home. Nobody

1162
00:42:34,319 --> 00:42:36,240
are cared about. So, it had been an

1163
00:42:36,240 --> 00:42:39,280
eyesore in the town and um a local

1164
00:42:39,280 --> 00:42:41,359
investor bought it and says, "I'll fix

1165
00:42:41,359 --> 00:42:44,720
it up." So, they go to fix it up and

1166
00:42:44,720 --> 00:42:46,720
turns out it had structural damage. So,

1167
00:42:46,720 --> 00:42:48,720
he says, "Well, we have to raise this

1168
00:42:48,720 --> 00:42:52,319
thing, start over again." Well, we

1169
00:42:52,319 --> 00:42:54,960
didn't have the zoning statute in 1950

1170
00:42:54,960 --> 00:42:56,560
whenever the house was built about

1171
00:42:56,560 --> 00:42:58,400
setbacks. How far can your, you know, do

1172
00:42:58,400 --> 00:42:59,920
you have to set your house back from the

1173
00:42:59,920 --> 00:43:01,119
line between you and your neighbor?

1174
00:43:01,119 --> 00:43:04,319
That's generally what a setback is. Um,

1175
00:43:04,319 --> 00:43:07,040
well, according to the code that existed

1176
00:43:07,040 --> 00:43:09,440
last year at the time, uh, none of the

1177
00:43:09,440 --> 00:43:11,040
houses in that neighborhood met the code

1178
00:43:11,040 --> 00:43:12,319
because they were all technically too

1179
00:43:12,319 --> 00:43:13,520
close to their neighbor's line. They

1180
00:43:13,520 --> 00:43:14,720
don't meet those setback requirements,

1181
00:43:14,720 --> 00:43:16,160
but they were, let's just say,

1182
00:43:16,160 --> 00:43:19,040
grandfathered in. Okay. Well, this

1183
00:43:19,040 --> 00:43:21,520
gentleman that bought the home uh, had

1184
00:43:21,520 --> 00:43:23,680
this problem now of, well, I've got to

1185
00:43:23,680 --> 00:43:25,280
knock this home down because it's, you

1186
00:43:25,280 --> 00:43:27,119
know, burnt beyond repair. I just can't

1187
00:43:27,119 --> 00:43:30,079
fix it. But I'm willing to rebuild in

1188
00:43:30,079 --> 00:43:32,560
the same footprint where it was same

1189
00:43:32,560 --> 00:43:34,319
size, same footprint, no closer, no

1190
00:43:34,319 --> 00:43:37,920
further away. But to do that, I need

1191
00:43:37,920 --> 00:43:40,160
variance because once he tears that

1192
00:43:40,160 --> 00:43:42,400
house down, that grandfathering goes

1193
00:43:42,400 --> 00:43:43,440
away and he's going to be subject to

1194
00:43:43,440 --> 00:43:46,000
what's on the books now. So, I'm not

1195
00:43:46,000 --> 00:43:47,280
going to say it's the right decision or

1196
00:43:47,280 --> 00:43:49,440
the wrong decision. But we looked at the

1197
00:43:49,440 --> 00:43:52,480
board looked at those last uh couple

1198
00:43:52,480 --> 00:43:54,160
elements there about, you know, what's

1199
00:43:54,160 --> 00:43:58,079
the spirit of intent of it? you know, is was this meant to regulate these

1200
00:43:58,079 --> 00:44:01,680
houses um built 1950 or was it meant to

1201
00:44:01,680 --> 00:44:03,040
start spacing them out further for new

1202
00:44:03,040 --> 00:44:05,440
construction? When was the law in place?

1203
00:44:05,440 --> 00:44:07,839
When was it adopted? Um is this a public

1204
00:44:07,839 --> 00:44:09,359
safety issue? What's the spirit of

1205
00:44:09,359 --> 00:44:12,480
intent and substantial justice achieved?

1206
00:44:12,480 --> 00:44:15,440
Uh that could be a little tricky. Um the

1207
00:44:15,440 --> 00:44:18,240
board grant him the saying that's the

1208
00:44:18,240 --> 00:44:21,200
correct outcome every time. Um but

1209
00:44:21,200 --> 00:44:24,160
substantial justice says nobody was

1210
00:44:24,160 --> 00:44:26,480
being harmed where these homes are

1211
00:44:26,480 --> 00:44:28,319
located. We are replacing it the same

1212
00:44:28,319 --> 00:44:30,880
footprint and the board felt uh we're

1213
00:44:30,880 --> 00:44:32,240
going to create get rid of an eyesore

1214
00:44:32,240 --> 00:44:33,440
and have a brand new home for the

1215
00:44:33,440 --> 00:44:35,680
community. So uh that's just an example

1216
00:44:35,680 --> 00:44:38,720
of substantial justice the board felt

1217
00:44:38,720 --> 00:44:40,560
would be achieved by doing that. So

1218
00:44:40,560 --> 00:44:42,560
that's a you know kind of a reasonable

1219
00:44:42,560 --> 00:44:44,079
example of what a variance is. You've

1220
00:44:44,079 --> 00:44:46,480
got these bright line rules. We're

1221
00:44:46,480 --> 00:44:48,319
asking for some exception to them. So

1222
00:44:48,319 --> 00:44:49,440
that's when you have to weigh these

1223
00:44:49,440 --> 00:44:50,880
factors.

1224
00:44:50,880 --> 00:44:52,560
>> And probably our most famous case right

1225
00:44:52,560 --> 00:44:54,800
now is a case where someone got site

1226
00:44:54,800 --> 00:44:56,319
received site plan approval. They

1227
00:44:56,319 --> 00:44:59,359
started building and the site the survey

1228
00:44:59,359 --> 00:45:02,240
was off. It got reserveyed. There was

1229
00:45:02,240 --> 00:45:03,920
only about a 100 ft difference between

1230
00:45:03,920 --> 00:45:06,560
the setback regulation and where it was

1231
00:45:06,560 --> 00:45:09,119
built. The municipality said, "Yeah,

1232
00:45:09,119 --> 00:45:10,400
that's you're going to have to tear your

1233
00:45:10,400 --> 00:45:11,920
whole house down." Well, the court said,

1234
00:45:11,920 --> 00:45:13,760
"That's a variance. That's injustice

1235
00:45:13,760 --> 00:45:15,599
would occur." Let's stay in that

1236
00:45:15,599 --> 00:45:17,119
example. It would be expensive for him

1237
00:45:17,119 --> 00:45:18,720
to have to tear his house down, right?

1238
00:45:18,720 --> 00:45:21,280
Big financial burden. Courts have also

1239
00:45:21,280 --> 00:45:23,280
said financial burdens alone are

1240
00:45:23,280 --> 00:45:24,800
insufficient.

1241
00:45:24,800 --> 00:45:26,800
Famous example, a case that I was

1242
00:45:26,800 --> 00:45:28,400
involved in. I had a client I

1243
00:45:28,400 --> 00:45:30,480
represented the municipality. The

1244
00:45:30,480 --> 00:45:32,800
individual wanted to advertise on their

1245
00:45:32,800 --> 00:45:34,240
commercial lot. They were going to build

1246
00:45:34,240 --> 00:45:36,560
a restaurant and they wanted to build a

1247
00:45:36,560 --> 00:45:38,960
sign that was 100 foot tall. Our

1248
00:45:38,960 --> 00:45:42,079
ordinance said 25 ft. 100 foot tall is

1249
00:45:42,079 --> 00:45:43,680
100 foot tall. That's not the same

1250
00:45:43,680 --> 00:45:46,640
thing. Um, their argument was, "Well,

1251
00:45:46,640 --> 00:45:48,880
we're between two highways. Hey, we're

1252
00:45:48,880 --> 00:45:50,880
peculiar property. You know, it'd be

1253
00:45:50,880 --> 00:45:52,560
great if people driving both sides could

1254
00:45:52,560 --> 00:45:57,040
see us." Our position was, and our cases

1255
00:45:57,040 --> 00:45:58,800
support it. You're just asking to make

1256
00:45:58,800 --> 00:46:00,880
more money. You can still put a sign

1257
00:46:00,880 --> 00:46:02,880
there. The ordinance isn't per

1258
00:46:02,880 --> 00:46:04,880
preventing you from building a sign. You

1259
00:46:04,880 --> 00:46:06,400
just want one that will allow you to get

1260
00:46:06,400 --> 00:46:09,440
more money. A financial hardship that

1261
00:46:09,440 --> 00:46:11,920
you're losing here alone is not enough.

1262
00:46:11,920 --> 00:46:14,240
you have to show some type of injustice

1263
00:46:14,240 --> 00:46:18,319
here. Um, use variances are not allowed.

1264
00:46:18,319 --> 00:46:21,040
So, what is that? You're in a commercial

1265
00:46:21,040 --> 00:46:23,839
development and let's, excuse me, let's

1266
00:46:23,839 --> 00:46:24,720
say you're in a residential

1267
00:46:24,720 --> 00:46:25,839
neighborhood. There's commercial

1268
00:46:25,839 --> 00:46:27,520
development across the street because it

1269
00:46:27,520 --> 00:46:30,640
was grandfathered in. Um,

1270
00:46:30,640 --> 00:46:32,400
and that person across the street says,

1271
00:46:32,400 --> 00:46:33,680
"Hey, I want to build a commercial

1272
00:46:33,680 --> 00:46:35,359
development because obviously there's a

1273
00:46:35,359 --> 00:46:36,720
store right or not a development, excuse

1274
00:46:36,720 --> 00:46:38,000
me. I want to build some type of

1275
00:46:38,000 --> 00:46:39,359
commercial establishment. Look across

1276
00:46:39,359 --> 00:46:41,359
the street. You know that that property

1277
00:46:41,359 --> 00:46:42,640
who was grandfathered in, they're

1278
00:46:42,640 --> 00:46:43,520
allowed to build a commercial

1279
00:46:43,520 --> 00:46:46,000
development. Well, no, that's not the

1280
00:46:46,000 --> 00:46:48,240
purpose. Purpose of a variance, excuse

1281
00:46:48,240 --> 00:46:50,400
me, of yes, of a variance is to

1282
00:46:50,400 --> 00:46:52,800
encourage development. It's not to

1283
00:46:52,800 --> 00:46:54,400
change the use of a property. It's not

1284
00:46:54,400 --> 00:46:57,119
to reszone a property. That's not the

1285
00:46:57,119 --> 00:46:58,560
purpose of a variance, even if an

1286
00:46:58,560 --> 00:47:00,880
injustice would occur. All right. So,

1287
00:47:00,880 --> 00:47:03,119
we'll move on.

1288
00:47:03,119 --> 00:47:06,720
Oh, quorums. So you all thankfully do

1289
00:47:06,720 --> 00:47:09,280
not have this issue because you have to

1290
00:47:09,280 --> 00:47:11,680
have four people here regardless.

1291
00:47:11,680 --> 00:47:14,000
Variances have a super majority

1292
00:47:14,000 --> 00:47:17,680
requirement. It takes four fifths of the

1293
00:47:17,680 --> 00:47:20,480
board to approve a variance. So three

1294
00:47:20,480 --> 00:47:24,079
people vote yes, two vote no, variance

1295
00:47:24,079 --> 00:47:26,960
does not pass. You have to secure four

1296
00:47:26,960 --> 00:47:29,200
fifths votes.

1297
00:47:29,200 --> 00:47:32,240
Now here's what's peculiar about

1298
00:47:32,240 --> 00:47:33,920
variances.

1299
00:47:33,920 --> 00:47:36,319
it is four fifths of the board. Well,

1300
00:47:36,319 --> 00:47:39,040
let's say um Mr. Chair is not here one

1301
00:47:39,040 --> 00:47:42,480
night. So, vice chair is filling in and

1302
00:47:42,480 --> 00:47:44,160
the rest of the board is here. Vice

1303
00:47:44,160 --> 00:47:45,839
chairs leading the meeting and then the

1304
00:47:45,839 --> 00:47:46,880
rest of the members are here. We have

1305
00:47:46,880 --> 00:47:49,440
four members here that can vote. Well,

1306
00:47:49,440 --> 00:47:51,520
let's say the alternates can't be here.

1307
00:47:51,520 --> 00:47:54,480
We only have four people here. Statute

1308
00:47:54,480 --> 00:47:57,839
says four fifths of the board. Just cuz

1309
00:47:57,839 --> 00:48:01,119
four, five people aren't here, doesn't

1310
00:48:01,119 --> 00:48:04,800
mean that you can have, let's say, one

1311
00:48:04,800 --> 00:48:06,720
person says no out of our four, three

1312
00:48:06,720 --> 00:48:09,440
say yes. Three, fours. Hey,

1313
00:48:09,440 --> 00:48:12,400
>> we got it. No, you need a majority. It's

1314
00:48:12,400 --> 00:48:14,319
four fifths of the board. The number

1315
00:48:14,319 --> 00:48:15,440
doesn't change.

1316
00:48:15,440 --> 00:48:16,240
>> Four votes.

1317
00:48:16,240 --> 00:48:18,160
>> Yes, sir. That's a great way to put it

1318
00:48:18,160 --> 00:48:20,160
in your case. Keeping it simple.

1319
00:48:20,160 --> 00:48:21,280
>> Four affirmative votes.

1320
00:48:21,280 --> 00:48:23,680
>> I appreciate that a lot, actually. Um,

1321
00:48:23,680 --> 00:48:24,960
we and thankfully you all have

1322
00:48:24,960 --> 00:48:27,119
alternates. You have five. You don't

1323
00:48:27,119 --> 00:48:28,640
have to deal with some of our larger

1324
00:48:28,640 --> 00:48:32,079
boards have kind people on them. This is

1325
00:48:32,079 --> 00:48:33,839
perfect number uh perfect setup.

1326
00:48:33,839 --> 00:48:35,280
>> Lawyers don't do math.

1327
00:48:35,280 --> 00:48:35,760
>> We do not

1328
00:48:35,760 --> 00:48:37,040
>> we're like five and four is really

1329
00:48:37,040 --> 00:48:38,640
>> my first ever meeting on a board of

1330
00:48:38,640 --> 00:48:40,960
adjustment as board council was do was

1331
00:48:40,960 --> 00:48:42,960
researching this very issue. They said

1332
00:48:42,960 --> 00:48:44,800
we have we have four fifths we have four

1333
00:48:44,800 --> 00:48:46,400
out of we have five people four out of

1334
00:48:46,400 --> 00:48:48,319
five that wins right? I said no you have

1335
00:48:48,319 --> 00:48:50,400
seven members on your board. We cannot

1336
00:48:50,400 --> 00:48:52,000
do that. That's not going to work. None

1337
00:48:52,000 --> 00:48:54,800
of you are excused. So we have to have

1338
00:48:54,800 --> 00:48:57,599
as many as possible. So, four votes to

1339
00:48:57,599 --> 00:48:59,599
pass a variance. If you don't get four,

1340
00:48:59,599 --> 00:49:01,920
it's denied. That's just the simplest

1341
00:49:01,920 --> 00:49:03,839
way to remember it. That's how it is.

1342
00:49:03,839 --> 00:49:05,760
All right. So, special use permits, you

1343
00:49:05,760 --> 00:49:07,440
all don't hear those, so we'll go

1344
00:49:07,440 --> 00:49:10,079
through these. Um, administrative

1345
00:49:10,079 --> 00:49:11,599
appeals.

1346
00:49:11,599 --> 00:49:12,880
So, we've already gone over this a

1347
00:49:12,880 --> 00:49:14,559
little bit. Let's go to our notice of

1348
00:49:14,559 --> 00:49:17,920
violation examples. The town first has

1349
00:49:17,920 --> 00:49:20,319
the burden to show you all through

1350
00:49:20,319 --> 00:49:22,960
evidence that the violation occurred.

1351
00:49:22,960 --> 00:49:25,599
So, if someone gets cited, let's say

1352
00:49:25,599 --> 00:49:27,440
there's an ordinance that prevents you

1353
00:49:27,440 --> 00:49:28,960
from

1354
00:49:28,960 --> 00:49:31,920
um uh you didn't mow your grass for two

1355
00:49:31,920 --> 00:49:33,440
weeks. I'm just thinking of a crazy

1356
00:49:33,440 --> 00:49:34,720
doesn't exist. You didn't mow your grass

1357
00:49:34,720 --> 00:49:37,200
for two weeks. And you know, code

1358
00:49:37,200 --> 00:49:38,880
inspector goes out week one, he says,

1359
00:49:38,880 --> 00:49:41,440
"The grass hasn't been mowed. Uh I

1360
00:49:41,440 --> 00:49:43,200
measured it. It's still at this length."

1361
00:49:43,200 --> 00:49:44,720
Comes out week two, it's still this

1362
00:49:44,720 --> 00:49:47,040
length. It hasn't been mowed.

1363
00:49:47,040 --> 00:49:48,559
They file a notice of violation.

1364
00:49:48,559 --> 00:49:51,040
Landowner appeals. We're going to do two

1365
00:49:51,040 --> 00:49:53,200
examples. First example, code

1366
00:49:53,200 --> 00:49:54,720
enforcement officer shows up. He

1367
00:49:54,720 --> 00:49:56,160
testifies. He said, "Yep, I went out

1368
00:49:56,160 --> 00:49:57,520
there. I measured week one, measured

1369
00:49:57,520 --> 00:50:01,119
week two, hadn't been mowed. Still 2 in

1370
00:50:01,119 --> 00:50:03,119
pro." Then that's evidence, right? We

1371
00:50:03,119 --> 00:50:04,480
showed you evidence that the violation

1372
00:50:04,480 --> 00:50:07,760
occurred. Different issue. Let's say

1373
00:50:07,760 --> 00:50:10,000
town staff provides their staff report.

1374
00:50:10,000 --> 00:50:12,240
We have this notice of violation. These

1375
00:50:12,240 --> 00:50:14,400
are these are the allegations. Code

1376
00:50:14,400 --> 00:50:16,160
enforcement officer gets sick. Can't

1377
00:50:16,160 --> 00:50:19,119
show up. No evidence is presented. What

1378
00:50:19,119 --> 00:50:20,720
do we have here? we don't have any

1379
00:50:20,720 --> 00:50:24,559
evidence. So in that case, the town

1380
00:50:24,559 --> 00:50:27,200
didn't meet their burden. All right.

1381
00:50:27,200 --> 00:50:30,240
Now, let's say there's a conflict.

1382
00:50:30,240 --> 00:50:31,760
There's two different sides of the story

1383
00:50:31,760 --> 00:50:33,920
here. There's there's a more complicated

1384
00:50:33,920 --> 00:50:35,760
ordinance. Um well, we'll stick with my

1385
00:50:35,760 --> 00:50:37,920
grass mowing ordinance. Um let's say

1386
00:50:37,920 --> 00:50:41,040
there's two sides. Uh town says, "I went

1387
00:50:41,040 --> 00:50:42,559
out there every week. It was not mowed.

1388
00:50:42,559 --> 00:50:45,119
I measured it. It's the same length.

1389
00:50:45,119 --> 00:50:47,280
They violated it." So then town's giving

1390
00:50:47,280 --> 00:50:49,280
you evidence to say, "Okay, violation."

1391
00:50:49,280 --> 00:50:51,280
Well, let's say property owner gets an

1392
00:50:51,280 --> 00:50:53,200
attorney or just shows up himself and

1393
00:50:53,200 --> 00:50:54,880
says, "Hey, I'm gonna be honest with

1394
00:50:54,880 --> 00:50:56,640
you. I cut my grass. His measurements

1395
00:50:56,640 --> 00:50:58,559
are wrong. Here's my measurements. I

1396
00:50:58,559 --> 00:51:00,160
went out there. I mowed it this day. I

1397
00:51:00,160 --> 00:51:01,839
mowed it that day." Well, now you have

1398
00:51:01,839 --> 00:51:04,800
an evidentiary dispute. So, you all as a

1399
00:51:04,800 --> 00:51:06,400
board,

1400
00:51:06,400 --> 00:51:08,559
what do we have here? We have

1401
00:51:08,559 --> 00:51:10,720
substantial evidence saying he that

1402
00:51:10,720 --> 00:51:13,359
there is a violation. You can determine

1403
00:51:13,359 --> 00:51:14,480
whether or not there's substantial

1404
00:51:14,480 --> 00:51:16,000
evidence to say the violation didn't

1405
00:51:16,000 --> 00:51:18,640
occur. That's where you all come in. You

1406
00:51:18,640 --> 00:51:20,240
are the deciders of what we call the

1407
00:51:20,240 --> 00:51:22,640
deciders of fact. You say what the facts

1408
00:51:22,640 --> 00:51:24,079
are based on the evidence you get

1409
00:51:24,079 --> 00:51:26,240
presented. All right? And then you say

1410
00:51:26,240 --> 00:51:28,720
what the evidence is too based on the

1411
00:51:28,720 --> 00:51:31,520
objections you rule upon. So you resolve

1412
00:51:31,520 --> 00:51:34,960
that dispute. But here's the caveat. It

1413
00:51:34,960 --> 00:51:37,520
has to be supported by substantial

1414
00:51:37,520 --> 00:51:41,040
competent evidence. So again, let's say

1415
00:51:41,040 --> 00:51:43,359
the issue is speeding. It's a speeding

1416
00:51:43,359 --> 00:51:46,880
ordinance. Um guy shows up and we have

1417
00:51:46,880 --> 00:51:48,480
all our we have our officer here. He

1418
00:51:48,480 --> 00:51:51,520
testifies, "Hey, I I did the radar 25

1419
00:51:51,520 --> 00:51:53,440
miles an hour." That's standard. Some

1420
00:51:53,440 --> 00:51:56,640
towns have it. He went 30. I used my

1421
00:51:56,640 --> 00:52:00,160
radar. I was there. It did. It happened.

1422
00:52:00,160 --> 00:52:03,280
Okay. Well, landowner shows up said, "I

1423
00:52:03,280 --> 00:52:06,319
I was driving. I went 15. I didn't go

1424
00:52:06,319 --> 00:52:08,880
30. That didn't happen. I could tell you

1425
00:52:08,880 --> 00:52:10,319
this right now." Well, sir, were you

1426
00:52:10,319 --> 00:52:11,839
looking at your speedometer? No. I just

1427
00:52:11,839 --> 00:52:14,000
know I was driving. Well, you know what?

1428
00:52:14,000 --> 00:52:15,839
We agree with Mr. landowner. You know

1429
00:52:15,839 --> 00:52:18,400
what? He wasn't going 30. Notice of

1430
00:52:18,400 --> 00:52:21,040
violation denied. Really don't have any

1431
00:52:21,040 --> 00:52:23,119
evidence to support that decision. You

1432
00:52:23,119 --> 00:52:24,559
could choose to believe the land owner.

1433
00:52:24,559 --> 00:52:26,160
Well, maybe that's a bad example because

1434
00:52:26,160 --> 00:52:28,720
speeding at times you can. Anyways, it

1435
00:52:28,720 --> 00:52:30,480
has to be supported by evidence is what

1436
00:52:30,480 --> 00:52:32,400
I'm getting at. If there's the land the

1437
00:52:32,400 --> 00:52:34,079
town proves its case and says, "Yep,

1438
00:52:34,079 --> 00:52:35,839
there's a violation here." And the land

1439
00:52:35,839 --> 00:52:37,200
owner doesn't show up, he just says,

1440
00:52:37,200 --> 00:52:39,680
"Hey, I had a rough day, guys. I was

1441
00:52:39,680 --> 00:52:44,720
speeding. Sorry. you know, please don't find me in violation and

1442
00:52:44,720 --> 00:52:46,319
the board rules against him rules

1443
00:52:46,319 --> 00:52:47,839
against the town. Well, he didn't rule

1444
00:52:47,839 --> 00:52:50,720
on it based on any evidence. So, it has

1445
00:52:50,720 --> 00:52:53,200
to be supported by substantial competent

1446
00:52:53,200 --> 00:52:55,440
material evidence. Your decision?

1447
00:52:55,440 --> 00:52:55,839
>> All right.

1448
00:52:55,839 --> 00:52:57,040
>> Don't recommend speed.

1449
00:52:57,040 --> 00:52:59,040
>> Yeah. Yeah. Don't recommend that at all.

1450
00:52:59,040 --> 00:53:00,079
I don't know if we have a speeding

1451
00:53:00,079 --> 00:53:01,520
ordinance. I just wanted to make sure I

1452
00:53:01,520 --> 00:53:03,359
covered something. Trying to go outside

1453
00:53:03,359 --> 00:53:06,480
the realm of what we have. Um Okay. Um

1454
00:53:06,480 --> 00:53:07,760
there was one on the bottom here,

1455
00:53:07,760 --> 00:53:09,520
manufactured home. I believe that's

1456
00:53:09,520 --> 00:53:12,559
transitioned over to the uh board of

1457
00:53:12,559 --> 00:53:13,760
commissioners. I believe those hear

1458
00:53:13,760 --> 00:53:15,359
those now. Am I correct on that, Mr.

1459
00:53:15,359 --> 00:53:16,559
Planning Director?

1460
00:53:16,559 --> 00:53:18,240
>> Perfect. So that one is you can

1461
00:53:18,240 --> 00:53:19,760
disregard that one. I was looking at the

1462
00:53:19,760 --> 00:53:22,400
MUN code ordinance and I misinterpreted

1463
00:53:22,400 --> 00:53:24,319
that. So that's on me. The planning

1464
00:53:24,319 --> 00:53:26,880
director interpretation. That's one of

1465
00:53:26,880 --> 00:53:30,400
your more common ones. Um, okay. Those

1466
00:53:30,400 --> 00:53:32,480
are those are the interesting ones

1467
00:53:32,480 --> 00:53:35,280
because now here we are non- lawyers

1468
00:53:35,280 --> 00:53:37,359
sitting on a board asking to make a

1469
00:53:37,359 --> 00:53:39,440
determination of what a legal ordinance

1470
00:53:39,440 --> 00:53:42,000
says.

1471
00:53:42,000 --> 00:53:43,680
Those are the tougher ones because you

1472
00:53:43,680 --> 00:53:45,119
have to look at the language of the

1473
00:53:45,119 --> 00:53:47,440
text. You have to make a determination.

1474
00:53:47,440 --> 00:53:49,680
In North Carolina, we have a law that is

1475
00:53:49,680 --> 00:53:52,559
if it's ambiguous and it can be

1476
00:53:52,559 --> 00:53:54,720
reasonable to two interpretations, has

1477
00:53:54,720 --> 00:53:56,800
to favor the land owner. That's the

1478
00:53:56,800 --> 00:53:59,200
that's that's our job as the lawyers

1479
00:53:59,200 --> 00:54:00,480
working for the towns. We have to write

1480
00:54:00,480 --> 00:54:02,800
our ordinances in a way that are clear.

1481
00:54:02,800 --> 00:54:04,800
Um and we'll help you more with that. If

1482
00:54:04,800 --> 00:54:05,920
you have questions during those

1483
00:54:05,920 --> 00:54:07,920
hearings, those are the tougher ones.

1484
00:54:07,920 --> 00:54:09,119
You're not going to be an expert about

1485
00:54:09,119 --> 00:54:12,640
it your first night. I've had far too

1486
00:54:12,640 --> 00:54:14,240
many of those and I'm currently fighting

1487
00:54:14,240 --> 00:54:16,079
one at the Court of Appeals. So, those

1488
00:54:16,079 --> 00:54:17,599
are the fun ones, the interpretation

1489
00:54:17,599 --> 00:54:20,400
cases. Um are there any questions about

1490
00:54:20,400 --> 00:54:21,920
administrative decisions? We've covered

1491
00:54:21,920 --> 00:54:25,040
a lot. Any questions at all? Any

1492
00:54:25,040 --> 00:54:27,040
thoughts? Yes, sir.

1493
00:54:27,040 --> 00:54:27,920
>> I saw your hand move.

1494
00:54:27,920 --> 00:54:29,760
>> Oh, sure. U just and to kind of tie

1495
00:54:29,760 --> 00:54:32,319
things together. So, um you know,

1496
00:54:32,319 --> 00:54:33,599
different types of matters are going to

1497
00:54:33,599 --> 00:54:35,200
be before you. So, that's what we've

1498
00:54:35,200 --> 00:54:37,440
been chatting about. So, the same

1499
00:54:37,440 --> 00:54:39,440
standing requirements that we talked

1500
00:54:39,440 --> 00:54:41,520
about for variance

1501
00:54:41,520 --> 00:54:43,280
>> are going to apply to administrative

1502
00:54:43,280 --> 00:54:44,800
appeals. Well, standing is nothing more

1503
00:54:44,800 --> 00:54:46,800
than who has a legal right to say

1504
00:54:46,800 --> 00:54:47,920
something about this case. Well,

1505
00:54:47,920 --> 00:54:49,680
obviously the parties. So, the town

1506
00:54:49,680 --> 00:54:51,520
issued a violation for not cutting the

1507
00:54:51,520 --> 00:54:52,400
grass.

1508
00:54:52,400 --> 00:54:54,240
>> The person receiving the violation has

1509
00:54:54,240 --> 00:54:56,800
standing. Um

1510
00:54:56,800 --> 00:54:58,079
that's pretty straightforward. I don't

1511
00:54:58,079 --> 00:54:59,839
know that you anybody else would have

1512
00:54:59,839 --> 00:55:00,240
stand

1513
00:55:00,240 --> 00:55:01,680
>> especially the speeding one. I mean who

1514
00:55:01,680 --> 00:55:03,280
else is coming?

1515
00:55:03,280 --> 00:55:04,079
>> I'm not gonna help anybody with

1516
00:55:04,079 --> 00:55:04,559
speeding.

1517
00:55:04,559 --> 00:55:10,400
>> Yeah. Um but uh for some of these um

1518
00:55:10,400 --> 00:55:12,800
uh variance requests, you know, standing

1519
00:55:12,800 --> 00:55:14,160
gets a little broader like we've talked

1520
00:55:14,160 --> 00:55:17,599
about read administrative appeals um and

1521
00:55:17,599 --> 00:55:20,240
certainly interpretations

1522
00:55:20,240 --> 00:55:22,160
might have others might have stand most

1523
00:55:22,160 --> 00:55:23,920
of your basic what I call your basic

1524
00:55:23,920 --> 00:55:26,800
knock on wood here basic

1525
00:55:26,800 --> 00:55:28,400
uh trash in the yard you didn't clean

1526
00:55:28,400 --> 00:55:30,480
out your trash things of that nature I

1527
00:55:30,480 --> 00:55:31,920
don't think there's be much challenge on

1528
00:55:31,920 --> 00:55:33,760
standing who deserves to be here but

1529
00:55:33,760 --> 00:55:36,319
those same, you know, applications, you

1530
00:55:36,319 --> 00:55:37,440
know, apply or the same thought

1531
00:55:37,440 --> 00:55:40,559
processes apply there. Um, and according

1532
00:55:40,559 --> 00:55:43,760
to your UDO, um,

1533
00:55:43,760 --> 00:55:46,400
the staff would make issue a notice of

1534
00:55:46,400 --> 00:55:47,520
violation, you know, for not cutting

1535
00:55:47,520 --> 00:55:48,960
grass or cleaning out the trash or

1536
00:55:48,960 --> 00:55:51,599
whatever it may be. Um, they've got 30

1537
00:55:51,599 --> 00:55:54,799
days from receiving that notice to file

1538
00:55:54,799 --> 00:55:56,720
an appeal to this board. So, that goes

1539
00:55:56,720 --> 00:55:58,960
to staff who will put that on the agenda

1540
00:55:58,960 --> 00:56:00,240
for the next meeting and get those

1541
00:56:00,240 --> 00:56:02,799
documents to you.

1542
00:56:02,799 --> 00:56:04,400
And I want to cover something that I

1543
00:56:04,400 --> 00:56:05,599
probably should have addressed earlier.

1544
00:56:05,599 --> 00:56:07,920
So when you all hear all the evidence

1545
00:56:07,920 --> 00:56:09,200
after you've heard the evidence, you're

1546
00:56:09,200 --> 00:56:11,359
going to be asked to deliberate. It's

1547
00:56:11,359 --> 00:56:13,200
tempting when you're new on a board to,

1548
00:56:13,200 --> 00:56:14,480
you know, huddle together. Okay, let's

1549
00:56:14,480 --> 00:56:16,799
talk about it. Everything you say in

1550
00:56:16,799 --> 00:56:18,160
deliberations has to be into the

1551
00:56:18,160 --> 00:56:20,079
microphones, has to be addressed to each

1552
00:56:20,079 --> 00:56:21,760
other because what it looks like on

1553
00:56:21,760 --> 00:56:23,760
appeal, let's say that landowner in our

1554
00:56:23,760 --> 00:56:26,000
the cutting grass example did not didn't

1555
00:56:26,000 --> 00:56:27,839
like the ruling you all gave him and he

1556
00:56:27,839 --> 00:56:30,240
said, "I want to appeal this."

1557
00:56:30,240 --> 00:56:32,240
every every appeal I've ever done and

1558
00:56:32,240 --> 00:56:34,960
it's I think it's it's practice. Every

1559
00:56:34,960 --> 00:56:37,520
appeal there's a transcript that's made

1560
00:56:37,520 --> 00:56:40,880
and everything we say is labeled on that

1561
00:56:40,880 --> 00:56:42,160
transcript. So, it's important to speak

1562
00:56:42,160 --> 00:56:44,319
into the mic, speak clear, that way it's

1563
00:56:44,319 --> 00:56:47,119
on the record. And so, that that that

1564
00:56:47,119 --> 00:56:49,839
has to be done during deliberations.

1565
00:56:49,839 --> 00:56:51,520
Um, and then going back to who can

1566
00:56:51,520 --> 00:56:53,040
participate, it's tempting when you have

1567
00:56:53,040 --> 00:56:54,400
some of these more controversial cases

1568
00:56:54,400 --> 00:56:56,880
to want public input.

1569
00:56:56,880 --> 00:56:58,720
You got to be careful. You got to make

1570
00:56:58,720 --> 00:57:00,319
sure they have standing. It's It's

1571
00:57:00,319 --> 00:57:01,599
tempting. It's hard. It's not

1572
00:57:01,599 --> 00:57:02,720
comfortable because these are people in

1573
00:57:02,720 --> 00:57:04,720
your community that you live next to in

1574
00:57:04,720 --> 00:57:06,400
some cases that you see at the

1575
00:57:06,400 --> 00:57:08,640
supermarket. It's not comfortable. But

1576
00:57:08,640 --> 00:57:10,079
unfortunately, it protects you in the

1577
00:57:10,079 --> 00:57:12,480
long run because what you can't have is

1578
00:57:12,480 --> 00:57:14,559
a situation where the whole community

1579
00:57:14,559 --> 00:57:16,960
provides evidence, but unfortunately

1580
00:57:16,960 --> 00:57:18,799
they live five miles away and don't even

1581
00:57:18,799 --> 00:57:20,480
know where this property is located.

1582
00:57:20,480 --> 00:57:22,319
They just don't like the fact that

1583
00:57:22,319 --> 00:57:24,640
Johnny doesn't cut his grass. That's it.

1584
00:57:24,640 --> 00:57:25,200
So,

1585
00:57:25,200 --> 00:57:26,160
>> right,

1586
00:57:26,160 --> 00:57:27,599
>> you can't have a decision based off

1587
00:57:27,599 --> 00:57:29,359
that. That's not competent evidence.

1588
00:57:29,359 --> 00:57:31,680
Court would strike all of it and then

1589
00:57:31,680 --> 00:57:33,280
you're left with, okay, what did they

1590
00:57:33,280 --> 00:57:35,920
considered that was competent? We don't

1591
00:57:35,920 --> 00:57:36,480
have anything

1592
00:57:36,480 --> 00:57:39,920
>> correct. And and that's, you know,

1593
00:57:39,920 --> 00:57:41,599
if if a decision of yours gets appealed

1594
00:57:41,599 --> 00:57:43,280
to the court, all the court can look at

1595
00:57:43,280 --> 00:57:45,200
is the record. Yep. The transcript of

1596
00:57:45,200 --> 00:57:46,559
what was said. I mean, just like a court

1597
00:57:46,559 --> 00:57:47,760
reporter in court, you know,

1598
00:57:47,760 --> 00:57:48,640
>> doesn't take new evidence.

1599
00:57:48,640 --> 00:57:50,079
>> That's the transcript. It doesn't review

1600
00:57:50,079 --> 00:57:53,440
anything new. Um, so the court has to

1601
00:57:53,440 --> 00:57:56,400
decide and the parties have to decide or

1602
00:57:56,400 --> 00:57:58,079
have to argue what's in the record. So

1603
00:57:58,079 --> 00:58:00,799
documents handed in, staff reports,

1604
00:58:00,799 --> 00:58:03,520
testimony. Uh, and so whether it's a

1605
00:58:03,520 --> 00:58:06,000
procedural issue that they're appealing

1606
00:58:06,000 --> 00:58:08,400
about, well, um, going back to opinion

1607
00:58:08,400 --> 00:58:10,880
testimony, the board allowed Johnny down

1608
00:58:10,880 --> 00:58:12,319
the street to say, well, if y'all build

1609
00:58:12,319 --> 00:58:13,680
this, it's going to flood my property.

1610
00:58:13,680 --> 00:58:15,040
And you say, dag on Johnny, you're

1611
00:58:15,040 --> 00:58:17,920
right. You know, denied. That's going to

1612
00:58:17,920 --> 00:58:21,040
be a procedural problem. Um, but if it's

1613
00:58:21,040 --> 00:58:22,319
supported and they and the court can

1614
00:58:22,319 --> 00:58:23,680
look in the record and say, "Okay, well,

1615
00:58:23,680 --> 00:58:27,040
they heard from X, Y, and Z, and the UDO

1616
00:58:27,040 --> 00:58:29,040
says one, two, and three. They apply

1617
00:58:29,040 --> 00:58:32,079
them together. I think the decision was

1618
00:58:32,079 --> 00:58:34,640
within the intent and the the letter of

1619
00:58:34,640 --> 00:58:36,960
the law, the UDO, the zoning code, and

1620
00:58:36,960 --> 00:58:38,319
there's evidence back up the board's

1621
00:58:38,319 --> 00:58:40,640
decision." So, um, keep that in mind.

1622
00:58:40,640 --> 00:58:42,160
And that's another reason why, you know,

1623
00:58:42,160 --> 00:58:44,079
if you deliberate, it's got to be on the

1624
00:58:44,079 --> 00:58:45,920
record. There's no close session private

1625
00:58:45,920 --> 00:58:47,440
deliberations.

1626
00:58:47,440 --> 00:58:50,640
Um so uh because of that again goes back

1627
00:58:50,640 --> 00:58:53,040
to this is a quasi judicial proceeding.

1628
00:58:53,040 --> 00:58:54,720
There are certain due process rights

1629
00:58:54,720 --> 00:58:57,520
that attach to these these litigants you

1630
00:58:57,520 --> 00:59:00,880
know um and and to tie it into about

1631
00:59:00,880 --> 00:59:02,640
opinion evidence. You know it's no

1632
00:59:02,640 --> 00:59:04,480
different really than a civil case in

1633
00:59:04,480 --> 00:59:08,079
court or criminal case in court. Um

1634
00:59:08,079 --> 00:59:11,119
you know my background is not science.

1635
00:59:11,119 --> 00:59:12,319
Um

1636
00:59:12,319 --> 00:59:14,000
>> and I married somebody with an

1637
00:59:14,000 --> 00:59:15,200
accounting degree so I didn't have to

1638
00:59:15,200 --> 00:59:16,640
take calculus and all this accounting in

1639
00:59:16,640 --> 00:59:19,440
life. I'll let her do all that. Um, so

1640
00:59:19,440 --> 00:59:21,200
I'm not qualified to testify as a

1641
00:59:21,200 --> 00:59:24,400
forensic accountant in court. Um, if I

1642
00:59:24,400 --> 00:59:25,920
have been arrested for embezzlement

1643
00:59:25,920 --> 00:59:27,839
because somebody says I was embezzling

1644
00:59:27,839 --> 00:59:30,720
money, um, to put me away, my due

1645
00:59:30,720 --> 00:59:33,520
process requires that person testifying

1646
00:59:33,520 --> 00:59:35,280
saying yes and here's the evidence. Look

1647
00:59:35,280 --> 00:59:37,040
at these accounting ledgers.

1648
00:59:37,040 --> 00:59:38,559
>> They need to be an expert and deemed

1649
00:59:38,559 --> 00:59:40,720
expert. Uh, just like, you know, think

1650
00:59:40,720 --> 00:59:42,480
all the Hollywood trials, you know, OJ

1651
00:59:42,480 --> 00:59:43,920
and all these other famous trials, blood

1652
00:59:43,920 --> 00:59:47,520
evidence, all you know. um only experts

1653
00:59:47,520 --> 00:59:52,720
can give opinions. Okay, so that's the basic way to think about it.

1654
00:59:52,720 --> 00:59:55,520
You can come in through experts. So the

1655
00:59:55,520 --> 00:59:57,760
neighbor might have standing to come and

1656
00:59:57,760 --> 01:00:00,799
argue and they may maybe some some gray

1657
01:00:00,799 --> 01:00:04,960
areas there. Um but somebody five miles

1658
01:00:04,960 --> 01:00:06,720
down the road that just doesn't want any

1659
01:00:06,720 --> 01:00:08,640
change in town come in and say, "Well,

1660
01:00:08,640 --> 01:00:10,079
if you do this, you're going to increase

1661
01:00:10,079 --> 01:00:12,079
traffic by this amount and all these

1662
01:00:12,079 --> 01:00:14,640
things." um they are not qualified and

1663
01:00:14,640 --> 01:00:16,640
admitted to give evidence about traffic

1664
01:00:16,640 --> 01:00:18,240
patterns and traffic safety and those

1665
01:00:18,240 --> 01:00:22,079
sort of things. So um generally speaking

1666
01:00:22,079 --> 01:00:24,400
opinions must come through experts and

1667
01:00:24,400 --> 01:00:26,559
that's really no different than civil

1668
01:00:26,559 --> 01:00:28,720
court or criminal court. Um that's just

1669
01:00:28,720 --> 01:00:31,520
a basis with but again goes back to

1670
01:00:31,520 --> 01:00:33,440
being a quasi judicial it's got to be

1671
01:00:33,440 --> 01:00:36,960
based on the evidence and direction.

1672
01:00:36,960 --> 01:00:38,400
>> I have a yes sir.

1673
01:00:38,400 --> 01:00:41,280
>> Procedurally it's a lot of turn

1674
01:00:41,280 --> 01:00:44,799
as it relates to our role and how these

1675
01:00:44,799 --> 01:00:46,960
things operate.

1676
01:00:46,960 --> 01:00:49,280
Parties come in whoever has the burden

1677
01:00:49,280 --> 01:00:50,319
of proof goes first.

1678
01:00:50,319 --> 01:00:51,280
>> Yes sir.

1679
01:00:51,280 --> 01:00:53,440
>> They offer an opening statement.

1680
01:00:53,440 --> 01:00:55,920
>> Yep. Typically speaking, at that time,

1681
01:00:55,920 --> 01:00:57,839
does the other party get an opportunity

1682
01:00:57,839 --> 01:00:58,960
to the opening state?

1683
01:00:58,960 --> 01:01:01,280
>> I've wrestled with that procedurally in

1684
01:01:01,280 --> 01:01:02,960
every role I've worked on with the board

1685
01:01:02,960 --> 01:01:05,520
of adjustment. My best because I've done

1686
01:01:05,520 --> 01:01:06,640
it different ways.

1687
01:01:06,640 --> 01:01:08,319
>> I've done it where the attorney may come

1688
01:01:08,319 --> 01:01:10,720
in and say, "I've heard what the town

1689
01:01:10,720 --> 01:01:12,799
has to say. I would like to give an

1690
01:01:12,799 --> 01:01:14,720
opening statement." I've also had people

1691
01:01:14,720 --> 01:01:16,319
come in and say, "Wait a minute. Nope. I

1692
01:01:16,319 --> 01:01:17,920
would like to speak and give my opening

1693
01:01:17,920 --> 01:01:20,240
when it's my turn to give evidence." My

1694
01:01:20,240 --> 01:01:22,480
advice on that, offer it to the other

1695
01:01:22,480 --> 01:01:24,799
side. And some may some may not even

1696
01:01:24,799 --> 01:01:26,799
want to give openings. I've had towns

1697
01:01:26,799 --> 01:01:28,240
that don't want to do it. They've said,

1698
01:01:28,240 --> 01:01:30,079
"I'm going to call my first witness."

1699
01:01:30,079 --> 01:01:32,400
So, my advice would be be open to it.

1700
01:01:32,400 --> 01:01:34,079
How you how you're you're thinking about

1701
01:01:34,079 --> 01:01:36,960
it. Opening then opening, but

1702
01:01:36,960 --> 01:01:37,760
>> it's up to them.

1703
01:01:37,760 --> 01:01:39,119
>> Yes, sir. Yes, sir.

1704
01:01:39,119 --> 01:01:40,799
>> So, like some something the effect of

1705
01:01:40,799 --> 01:01:41,920
you have the option of giving an

1706
01:01:41,920 --> 01:01:42,960
opening. Would you like to take that

1707
01:01:42,960 --> 01:01:43,280
now?

1708
01:01:43,280 --> 01:01:45,200
>> Yes, sir. Because some boards don't even

1709
01:01:45,200 --> 01:01:48,000
do openings at all. um my practice

1710
01:01:48,000 --> 01:01:49,280
because I've always I've had the

1711
01:01:49,280 --> 01:01:51,040
situations where when I first started I

1712
01:01:51,040 --> 01:01:53,359
didn't and then I had attorneys would

1713
01:01:53,359 --> 01:01:55,440
come and say hey where do I fit in here

1714
01:01:55,440 --> 01:01:57,920
I want to give my opening and so I I

1715
01:01:57,920 --> 01:02:00,240
always try to start with that but it's

1716
01:02:00,240 --> 01:02:02,079
not necessary if they don't want to

1717
01:02:02,079 --> 01:02:04,372
>> all right so just bear with me here

1718
01:02:04,372 --> 01:02:04,799
[clears throat]

1719
01:02:04,799 --> 01:02:07,200
>> please I apologize for taking your time

1720
01:02:07,200 --> 01:02:08,000
but

1721
01:02:08,000 --> 01:02:12,480
>> the the party moving with the burden of

1722
01:02:12,480 --> 01:02:14,720
proof calls the first witness

1723
01:02:14,720 --> 01:02:16,480
>> they're on direct they're asking asking

1724
01:02:16,480 --> 01:02:18,400
all the questions.

1725
01:02:18,400 --> 01:02:19,359
Somebody [clears throat] ar, you know,

1726
01:02:19,359 --> 01:02:21,119
argues that, you know, objection leading

1727
01:02:21,119 --> 01:02:22,480
and that's something that we can rule

1728
01:02:22,480 --> 01:02:23,359
on, right?

1729
01:02:23,359 --> 01:02:25,200
>> Oh, thank you for asking that. All

1730
01:02:25,200 --> 01:02:27,520
right. I'm an evidence nerd. So, I

1731
01:02:27,520 --> 01:02:28,799
shouldn't admit that on public record.

1732
01:02:28,799 --> 01:02:33,280
Um, but so under the statutes,

1733
01:02:33,280 --> 01:02:34,559
you're not bound by the rules of

1734
01:02:34,559 --> 01:02:36,880
evidence. You might have been a lawyer.

1735
01:02:36,880 --> 01:02:39,119
Under the statutes, you're not lawyers.

1736
01:02:39,119 --> 01:02:41,119
You're lay people. So, the statutes give

1737
01:02:41,119 --> 01:02:44,000
us flexibility to say it happens. Not

1738
01:02:44,000 --> 01:02:45,839
all of us are experts here in the legal

1739
01:02:45,839 --> 01:02:47,680
field. You're not wa

1740
01:02:47,680 --> 01:02:49,119
>> you're not bound by the rules of

1741
01:02:49,119 --> 01:02:51,520
evidence. However,

1742
01:02:51,520 --> 01:02:55,359
um there is a standard one, if an

1743
01:02:55,359 --> 01:02:58,000
objections made, then you have the

1744
01:02:58,000 --> 01:03:01,280
ability to one apply the rules. That's

1745
01:03:01,280 --> 01:03:02,559
where your knowledge is and you want to

1746
01:03:02,559 --> 01:03:04,880
apply it strictly. Or you can say, you

1747
01:03:04,880 --> 01:03:07,119
know, this is a quasi judicial quasi

1748
01:03:07,119 --> 01:03:09,200
judicial hearing. What they're

1749
01:03:09,200 --> 01:03:11,359
testifying to is competent. Competence

1750
01:03:11,359 --> 01:03:13,839
is the only buzzword where you have to

1751
01:03:13,839 --> 01:03:16,240
make a ruling and it has to be in line

1752
01:03:16,240 --> 01:03:18,319
with where the law is, right? But if

1753
01:03:18,319 --> 01:03:20,319
someone's leading, I've seen attorneys

1754
01:03:20,319 --> 01:03:22,880
do it both ways. My practice is we're

1755
01:03:22,880 --> 01:03:24,160
dealing with two if we're dealing with

1756
01:03:24,160 --> 01:03:25,920
lay people who and there's an attorney

1757
01:03:25,920 --> 01:03:27,280
on the other side that's just objection

1758
01:03:27,280 --> 01:03:29,839
leading council. This is a quasi

1759
01:03:29,839 --> 01:03:32,240
judicial decision the rules of evidence

1760
01:03:32,240 --> 01:03:34,640
so long as due process is followed. And

1761
01:03:34,640 --> 01:03:38,160
the big buzzword for um the statute is

1762
01:03:38,160 --> 01:03:39,920
when for due process, does the other

1763
01:03:39,920 --> 01:03:41,039
side have an opportunity to

1764
01:03:41,039 --> 01:03:43,200
cross-examine that person on that issue.

1765
01:03:43,200 --> 01:03:44,720
Let's say someone walks in here and

1766
01:03:44,720 --> 01:03:47,680
says, "You know what? I heard Steve say

1767
01:03:47,680 --> 01:03:50,240
he's going to build a 500 floor

1768
01:03:50,240 --> 01:03:51,520
building." I know that's a crazy thing

1769
01:03:51,520 --> 01:03:53,839
to say out loud. Well, objection

1770
01:03:53,839 --> 01:03:58,240
hearsay. Well, okay. Yeah, that is

1771
01:03:58,240 --> 01:04:00,319
hearsay. Let's say you were like, you

1772
01:04:00,319 --> 01:04:01,839
know what? Wait a minute. Let's see

1773
01:04:01,839 --> 01:04:03,359
where this goes. Let's see where this

1774
01:04:03,359 --> 01:04:04,799
goes. I want to see where in the world

1775
01:04:04,799 --> 01:04:07,039
they receive this knowledge that Steve

1776
01:04:07,039 --> 01:04:08,799
said he's going to build a 500 foot

1777
01:04:08,799 --> 01:04:10,319
building. Well, that person has the

1778
01:04:10,319 --> 01:04:11,760
opportunity to cross-examine them on

1779
01:04:11,760 --> 01:04:14,720
that very topic. So, my recommendation,

1780
01:04:14,720 --> 01:04:16,079
if you want to go by the book, I'll

1781
01:04:16,079 --> 01:04:17,520
always be pleased with you, always be

1782
01:04:17,520 --> 01:04:18,880
happy with the if the rules of evidence

1783
01:04:18,880 --> 01:04:20,559
are followed. But if you're if you sit

1784
01:04:20,559 --> 01:04:21,839
back and say, I'm not really going to

1785
01:04:21,839 --> 01:04:23,680
enforce leading questions here because

1786
01:04:23,680 --> 01:04:25,440
we're not not this guy didn't go to law

1787
01:04:25,440 --> 01:04:27,760
school. Let's let him have his way here

1788
01:04:27,760 --> 01:04:31,280
and like question them. That's fine as

1789
01:04:31,280 --> 01:04:33,039
long as due process is preserved. In

1790
01:04:33,039 --> 01:04:34,079
other words, they had an opportunity to

1791
01:04:34,079 --> 01:04:37,119
cross-examine. We're good here. But you

1792
01:04:37,119 --> 01:04:39,680
do run into issues where

1793
01:04:39,680 --> 01:04:42,400
same scenario. I heard Steve say he

1794
01:04:42,400 --> 01:04:44,240
wants to build a 500t building. Well,

1795
01:04:44,240 --> 01:04:45,680
the board hears that and says, "Well,

1796
01:04:45,680 --> 01:04:47,599
then I don't want to approve this

1797
01:04:47,599 --> 01:04:50,240
project." Well, Steve never showed up.

1798
01:04:50,240 --> 01:04:52,160
Steve never said that. It was a

1799
01:04:52,160 --> 01:04:54,160
competency. Was it reasonable for you to

1800
01:04:54,160 --> 01:04:55,680
rely upon that information? It was

1801
01:04:55,680 --> 01:04:58,079
solely hearsay. Not really. Steve never

1802
01:04:58,079 --> 01:04:59,440
showed up and told you that. You just

1803
01:04:59,440 --> 01:05:02,880
heard someone say that he said that. So,

1804
01:05:02,880 --> 01:05:04,720
even if the evidence got brought in,

1805
01:05:04,720 --> 01:05:06,079
there's a chance the court could reverse

1806
01:05:06,079 --> 01:05:08,000
it and say that wasn't competent because

1807
01:05:08,000 --> 01:05:09,200
why in the world would you believe

1808
01:05:09,200 --> 01:05:10,559
something someone said is the only

1809
01:05:10,559 --> 01:05:14,720
reason you denied the project. Um, so

1810
01:05:14,720 --> 01:05:16,880
yes, the rules of evidence are flexible

1811
01:05:16,880 --> 01:05:18,319
and I can get you a statute on point

1812
01:05:18,319 --> 01:05:20,000
with it. Um, because I found that to be

1813
01:05:20,000 --> 01:05:21,520
helpful with some of my other boards.

1814
01:05:21,520 --> 01:05:24,079
Um, I will not be mad at you if you go

1815
01:05:24,079 --> 01:05:26,480
buy them to the tea though. That's my

1816
01:05:26,480 --> 01:05:30,079
Any further questions about that?

1817
01:05:30,079 --> 01:05:32,240
I I don't do

1818
01:05:32,240 --> 01:05:36,000
>> I have another mechanical sir question.

1819
01:05:36,000 --> 01:05:40,400
>> When we get an an application

1820
01:05:40,400 --> 01:05:45,280
uh from you John um it's for

1821
01:05:45,280 --> 01:05:48,880
a violation of an ordinance usually and

1822
01:05:48,880 --> 01:05:54,880
um will you provide um a copy of that

1823
01:05:54,880 --> 01:05:56,559
the appropriate section of the

1824
01:05:56,559 --> 01:05:57,280
ordinance?

1825
01:05:57,280 --> 01:05:58,319
>> Yes.

1826
01:05:58,319 --> 01:06:01,039
>> Okay. With with us so we know what

1827
01:06:01,039 --> 01:06:02,079
>> absolutely y

1828
01:06:02,079 --> 01:06:03,200
>> yeah okay I'll put

1829
01:06:03,200 --> 01:06:04,400
>> I'll put all the information that's

1830
01:06:04,400 --> 01:06:05,680
needed so you guys can

1831
01:06:05,680 --> 01:06:06,880
>> Okay thank you

1832
01:06:06,880 --> 01:06:08,640
>> I have a question well you mentioned

1833
01:06:08,640 --> 01:06:11,200
that there's no private uh conversation

1834
01:06:11,200 --> 01:06:14,480
up here during this hearing

1835
01:06:14,480 --> 01:06:17,039
>> so when we get the notice of hearing

1836
01:06:17,039 --> 01:06:19,200
let's say there's some um the ordinance

1837
01:06:19,200 --> 01:06:20,559
comes in and we know what we're going to

1838
01:06:20,559 --> 01:06:21,599
be hearing

1839
01:06:21,599 --> 01:06:23,440
>> two of us running each other down at the

1840
01:06:23,440 --> 01:06:24,640
food line and while we're picking out

1841
01:06:24,640 --> 01:06:26,480
our barbecue sauce we have a

1842
01:06:26,480 --> 01:06:28,480
conversation about it any problem with

1843
01:06:28,480 --> 01:06:30,559
that private conversation. Any any

1844
01:06:30,559 --> 01:06:31,440
problem with that?

1845
01:06:31,440 --> 01:06:33,680
>> My my best advice in that situation?

1846
01:06:33,680 --> 01:06:38,480
Just say it on the record. I we we I saw Scott at the supermarket. We

1847
01:06:38,480 --> 01:06:40,000
talked about it. We didn't go in depth.

1848
01:06:40,000 --> 01:06:41,200
We just said, "We have an ordinance

1849
01:06:41,200 --> 01:06:43,280
hearing. It's it's on Tuesday. It's on

1850
01:06:43,280 --> 01:06:45,920
this topic. I think I can be impartial.

1851
01:06:45,920 --> 01:06:48,960
Applicant, what do you think?" And most

1852
01:06:48,960 --> 01:06:50,799
of the time, the applicant will either

1853
01:06:50,799 --> 01:06:52,319
say, you know, it'll be difficult. And

1854
01:06:52,319 --> 01:06:54,319
we'll say, "Well, I want I want to I

1855
01:06:54,319 --> 01:06:55,760
want to continue answer. I want them

1856
01:06:55,760 --> 01:06:57,680
recused." Well, they've said they can be

1857
01:06:57,680 --> 01:06:59,839
impartial. They just said that they had

1858
01:06:59,839 --> 01:07:01,920
a they being Scott and Mark just talked

1859
01:07:01,920 --> 01:07:03,119
to the supermarket and said, "We have a

1860
01:07:03,119 --> 01:07:05,280
hearing next week." They didn't say

1861
01:07:05,280 --> 01:07:07,440
>> that. No private conversation applies to

1862
01:07:07,440 --> 01:07:09,280
in and outside of this room.

1863
01:07:09,280 --> 01:07:10,319
>> Yes, sir. Okay.

1864
01:07:10,319 --> 01:07:12,000
>> Just Just like with judges on the bench,

1865
01:07:12,000 --> 01:07:13,680
I can't can't talk to them at

1866
01:07:13,680 --> 01:07:16,480
supermarket either, unfortunately.

1867
01:07:16,480 --> 01:07:18,400
>> Funny.

1868
01:07:18,400 --> 01:07:21,119
>> The the one easy practice is other than

1869
01:07:21,119 --> 01:07:24,000
saying, "Hey, hey, Mark and Mark, all

1870
01:07:24,000 --> 01:07:27,359
the marks." Uh uh looks like we got a

1871
01:07:27,359 --> 01:07:28,880
doozy next week at the meeting. I'll see

1872
01:07:28,880 --> 01:07:29,440
you then.

1873
01:07:29,440 --> 01:07:31,119
>> Yeah, that's not our expert.

1874
01:07:31,119 --> 01:07:32,160
>> No problem because you're not really

1875
01:07:32,160 --> 01:07:34,799
talking about did you see Johnny Smith's

1876
01:07:34,799 --> 01:07:36,720
application is up here and you remember

1877
01:07:36,720 --> 01:07:39,839
X Y and Z 500 foot tall building.

1878
01:07:39,839 --> 01:07:42,079
>> Yeah. Yeah. Years ago my grandfather

1879
01:07:42,079 --> 01:07:43,200
tried to do the same thing and the town

1880
01:07:43,200 --> 01:07:44,559
said no. So here's pay it.

1881
01:07:44,559 --> 01:07:44,960
>> Yep.

1882
01:07:44,960 --> 01:07:46,559
>> No, that that that's when you start

1883
01:07:46,559 --> 01:07:48,319
talking about the merits or the facts

1884
01:07:48,319 --> 01:07:50,559
involving it, that's when we have we

1885
01:07:50,559 --> 01:07:51,200
have issues.

1886
01:07:51,200 --> 01:07:54,000
>> Okay. Um, and to me that that sometimes

1887
01:07:54,000 --> 01:07:56,079
could be low hanging fruit for a party

1888
01:07:56,079 --> 01:07:58,160
that's unhappy to say, my basis for

1889
01:07:58,160 --> 01:07:59,839
appeal. I didn't get due process. They

1890
01:07:59,839 --> 01:08:01,119
were talking about this outside.

1891
01:08:01,119 --> 01:08:02,720
>> And that's a good point. So the court

1892
01:08:02,720 --> 01:08:04,640
doesn't take in new evidence, but there

1893
01:08:04,640 --> 01:08:06,480
is an exception in the law. There's a

1894
01:08:06,480 --> 01:08:08,240
doubt as to whether or not due process

1895
01:08:08,240 --> 01:08:10,559
was followed,

1896
01:08:10,559 --> 01:08:12,559
then you have an opportunity to take in

1897
01:08:12,559 --> 01:08:14,720
new evidence. For example, someone if

1898
01:08:14,720 --> 01:08:16,560
you ran into, let's say Scott and Mark

1899
01:08:16,560 --> 01:08:17,839
were talking at the supermarket, they

1900
01:08:17,839 --> 01:08:19,040
were talking about John Smith's

1901
01:08:19,040 --> 01:08:20,799
application. Yeah, man. I drove by his

1902
01:08:20,799 --> 01:08:22,960
house. He never cuts his grass. It's so

1903
01:08:22,960 --> 01:08:25,199
it's 5t in the air. Can't even see his

1904
01:08:25,199 --> 01:08:27,679
home. And then Sally over here hears it.

1905
01:08:27,679 --> 01:08:30,159
She goes, "Wait a minute. I hear this."

1906
01:08:30,159 --> 01:08:32,480
And for some reason, John's turn John's

1907
01:08:32,480 --> 01:08:34,799
attorneys run into Sally. Hey, John. I

1908
01:08:34,799 --> 01:08:36,640
just want you to know I heard Scott and

1909
01:08:36,640 --> 01:08:38,719
Mark talking about your five foot um you

1910
01:08:38,719 --> 01:08:40,319
know, lawn outside. You know how you

1911
01:08:40,319 --> 01:08:41,839
haven't cut it. Don't you have a hearing

1912
01:08:41,839 --> 01:08:43,679
on that next week? Yes, I do. You all

1913
01:08:43,679 --> 01:08:45,839
deny the application. Well, now the

1914
01:08:45,839 --> 01:08:48,480
lawyer for John submits an affidavit on

1915
01:08:48,480 --> 01:08:50,640
appeal and says, "Hey, Sally Sue here

1916
01:08:50,640 --> 01:08:52,159
says she overheard Mark and Scott

1917
01:08:52,159 --> 01:08:53,920
talking at the supermarket." Court's

1918
01:08:53,920 --> 01:08:55,199
going to consider that and say, "Oh,

1919
01:08:55,199 --> 01:08:57,600
wow. They really didn't have due process

1920
01:08:57,600 --> 01:09:00,560
here. Send it back." And usually the

1921
01:09:00,560 --> 01:09:03,040
remedy is you get to hear it again. And

1922
01:09:03,040 --> 01:09:04,319
that's the [laughter]

1923
01:09:04,319 --> 01:09:06,480
that's usually what I tell my boards.

1924
01:09:06,480 --> 01:09:08,480
Let's make sure due process is because

1925
01:09:08,480 --> 01:09:09,759
one of the remedies is you got to hear

1926
01:09:09,759 --> 01:09:11,600
from the same people again. So, let's

1927
01:09:11,600 --> 01:09:13,920
get it right the first time. um

1928
01:09:13,920 --> 01:09:15,679
>> max and inefficiency.

1929
01:09:15,679 --> 01:09:18,319
>> Yes. Any more questions about that? Yes,

1930
01:09:18,319 --> 01:09:20,000
sir. Mr. Chair, [clears throat]

1931
01:09:20,000 --> 01:09:22,880
>> I have another just just trying to

1932
01:09:22,880 --> 01:09:24,640
conceptualize what a hearing would look

1933
01:09:24,640 --> 01:09:24,960
like.

1934
01:09:24,960 --> 01:09:25,839
>> Yeah.

1935
01:09:25,839 --> 01:09:28,719
>> So, direct goes on, they finish their

1936
01:09:28,719 --> 01:09:32,000
direct, you know, maybe there'll be some

1937
01:09:32,000 --> 01:09:33,839
objections, they're ruled upon, and the

1938
01:09:33,839 --> 01:09:35,759
other side gets the cross-examination,

1939
01:09:35,759 --> 01:09:36,000
right?

1940
01:09:36,000 --> 01:09:36,560
>> Sure.

1941
01:09:36,560 --> 01:09:37,600
>> And then [clears throat]

1942
01:09:37,600 --> 01:09:38,880
redirects are allowed.

1943
01:09:38,880 --> 01:09:40,799
>> Sure. If if you say so. And that and

1944
01:09:40,799 --> 01:09:42,560
that that's it. You know, I always

1945
01:09:42,560 --> 01:09:43,920
recommend do it. Hey, you got any

1946
01:09:43,920 --> 01:09:44,719
further questions?

1947
01:09:44,719 --> 01:09:46,159
>> Or recross or whatever.

1948
01:09:46,159 --> 01:09:47,600
>> And it's one of those situations where

1949
01:09:47,600 --> 01:09:49,759
you're sitting back as the chair saying,

1950
01:09:49,759 --> 01:09:51,359
"Ah, they've gone back and forth three

1951
01:09:51,359 --> 01:09:53,279
times. I don't want to hear this again."

1952
01:09:53,279 --> 01:09:54,800
>> Any any further questions? Anybody? All

1953
01:09:54,800 --> 01:09:56,560
right. Cool. And and I know, but again,

1954
01:09:56,560 --> 01:09:58,560
that kind of steps out of our our

1955
01:09:58,560 --> 01:10:01,199
structure of direct, cross, recross,

1956
01:10:01,199 --> 01:10:02,960
redirect. It it kind of steps you out of

1957
01:10:02,960 --> 01:10:04,880
that a little bit, but because your goal

1958
01:10:04,880 --> 01:10:06,640
is like talking about the due process

1959
01:10:06,640 --> 01:10:09,040
aspect, making sure that's maximized. it

1960
01:10:09,040 --> 01:10:11,600
gets really complicated where you have a

1961
01:10:11,600 --> 01:10:12,719
case. I'm going to add another element

1962
01:10:12,719 --> 01:10:14,320
to your procedure because I like where

1963
01:10:14,320 --> 01:10:16,719
this is going. Um, let's say you have

1964
01:10:16,719 --> 01:10:21,840
someone who has a application for a new

1965
01:10:21,840 --> 01:10:23,600
neighborhood

1966
01:10:23,600 --> 01:10:25,360
and a couple of the residents

1967
01:10:25,360 --> 01:10:27,520
established standing.

1968
01:10:27,520 --> 01:10:32,320
Well, now it's not direct cross one

1969
01:10:32,320 --> 01:10:34,880
cross two or excuse me, it's not direct

1970
01:10:34,880 --> 01:10:37,679
cross. It's direct cross. Anybody with

1971
01:10:37,679 --> 01:10:40,000
standing want to cross-examine. So you

1972
01:10:40,000 --> 01:10:41,840
have multiple lawyers and/or parties

1973
01:10:41,840 --> 01:10:43,280
cross-examining. If they establish

1974
01:10:43,280 --> 01:10:44,640
standing, they're entitled to

1975
01:10:44,640 --> 01:10:46,400
participate. I had one hearing where we

1976
01:10:46,400 --> 01:10:48,320
had three lawyers cross-examining one

1977
01:10:48,320 --> 01:10:50,960
witness. And it was a lot, but they had

1978
01:10:50,960 --> 01:10:53,600
their time. And um then you have your

1979
01:10:53,600 --> 01:10:56,640
redirects like you're going through um

1980
01:10:56,640 --> 01:10:59,199
essentially um sorry, does everyone know

1981
01:10:59,199 --> 01:11:00,560
kind of what that procedurally looks

1982
01:11:00,560 --> 01:11:02,480
like? Direct, cross, recross. Does

1983
01:11:02,480 --> 01:11:04,400
everyone know what that means? So direct

1984
01:11:04,400 --> 01:11:06,320
examination, the person who called the

1985
01:11:06,320 --> 01:11:07,760
witness is asking their witness

1986
01:11:07,760 --> 01:11:10,239
questions. Cross-examination, that's

1987
01:11:10,239 --> 01:11:12,480
where the people who are opposing that

1988
01:11:12,480 --> 01:11:15,040
party is adverse to that witness gets to

1989
01:11:15,040 --> 01:11:17,280
ask questions. Redirect person who

1990
01:11:17,280 --> 01:11:19,120
called the witness essentially tries to

1991
01:11:19,120 --> 01:11:21,280
clean up everything that their witness

1992
01:11:21,280 --> 01:11:23,600
said in cross-examination.

1993
01:11:23,600 --> 01:11:24,960
Recross [clears throat]

1994
01:11:24,960 --> 01:11:27,360
person who's adverse gets to ask them

1995
01:11:27,360 --> 01:11:29,440
additional questions to try to get some

1996
01:11:29,440 --> 01:11:32,800
more evidence on in that case. Yes, sir.

1997
01:11:32,800 --> 01:11:33,920
Hypothetically,

1998
01:11:33,920 --> 01:11:34,719
>> please.

1999
01:11:34,719 --> 01:11:36,719
>> There's four people that alleged to have

2000
01:11:36,719 --> 01:11:38,880
standing. They want to cross-examinate.

2001
01:11:38,880 --> 01:11:40,400
>> Did you find them to have standing? Is

2002
01:11:40,400 --> 01:11:40,800
the point.

2003
01:11:40,800 --> 01:11:41,840
>> When does that happen?

2004
01:11:41,840 --> 01:11:44,800
>> All right. That's a great point. So, you

2005
01:11:44,800 --> 01:11:46,159
have to establish standing to

2006
01:11:46,159 --> 01:11:48,640
participate. John can't walk off this

2007
01:11:48,640 --> 01:11:50,800
walk into the town hall and say, "Hey, I

2008
01:11:50,800 --> 01:11:52,400
have standing. I'm here. I'm

2009
01:11:52,400 --> 01:11:54,000
participating. Here's my lawyer."

2010
01:11:54,000 --> 01:11:54,719
>> You can't do that.

2011
01:11:54,719 --> 01:11:56,239
>> Can't come out two witnesses deep. So

2012
01:11:56,239 --> 01:11:58,560
the way I ask my boards to do that is

2013
01:11:58,560 --> 01:12:02,239
when they first speak, sir, please

2014
01:12:02,239 --> 01:12:04,800
provide your standing, not your

2015
01:12:04,800 --> 01:12:06,080
standing, please tell us a little bit

2016
01:12:06,080 --> 01:12:07,760
why you're you believe you have standing

2017
01:12:07,760 --> 01:12:09,679
to participate. Well, you know, I live

2018
01:12:09,679 --> 01:12:12,320
next door. Um, I think my property

2019
01:12:12,320 --> 01:12:14,159
values are going to go down because I'm

2020
01:12:14,159 --> 01:12:16,880
right next door. I want to participate.

2021
01:12:16,880 --> 01:12:18,719
Okay. Well, let's say Steve runs in with

2022
01:12:18,719 --> 01:12:20,640
his lawyer because lawyers are going to

2023
01:12:20,640 --> 01:12:22,400
try to jump in. They're going to they

2024
01:12:22,400 --> 01:12:23,440
got standard or not, they're going to

2025
01:12:23,440 --> 01:12:25,360
try to be there. That's right. So lawy

2026
01:12:25,360 --> 01:12:26,880
Steve comes in with his lawyer and he

2027
01:12:26,880 --> 01:12:30,159
says, "Hey, here's my my lawyer. I live

2028
01:12:30,159 --> 01:12:32,000
five miles down the road. I think my

2029
01:12:32,000 --> 01:12:34,159
property values are going to go down. I

2030
01:12:34,159 --> 01:12:35,840
think that, you know, this is hidous to

2031
01:12:35,840 --> 01:12:37,520
me." Wait a minute, Steve. Live five

2032
01:12:37,520 --> 01:12:38,560
miles down the road. Why is your

2033
01:12:38,560 --> 01:12:40,159
property values going to go down? Well,

2034
01:12:40,159 --> 01:12:42,320
I brought a lawyer. Well, hey, you don't

2035
01:12:42,320 --> 01:12:44,159
have standing. Sorry, Mr. Lawyer. Thanks

2036
01:12:44,159 --> 01:12:46,640
for making the drive. Um, but that's

2037
01:12:46,640 --> 01:12:48,000
kind of where it is from the beginning,

2038
01:12:48,000 --> 01:12:48,400
right?

2039
01:12:48,400 --> 01:12:50,560
>> Who rules on the like whether or not

2040
01:12:50,560 --> 01:12:51,760
they have standing?

2041
01:12:51,760 --> 01:12:52,480
>> You do.

2042
01:12:52,480 --> 01:12:53,600
>> I do.

2043
01:12:53,600 --> 01:12:55,280
>> You do. And it's appealable to the

2044
01:12:55,280 --> 01:12:55,760
board.

2045
01:12:55,760 --> 01:12:58,560
>> Is it something that we could rule on as

2046
01:12:58,560 --> 01:13:00,320
a board or is it just me?

2047
01:13:00,320 --> 01:13:04,239
>> Start with that's a starts with you.

2048
01:13:04,239 --> 01:13:04,880
>> Starts with you.

2049
01:13:04,880 --> 01:13:06,159
>> They can appeal that to the board.

2050
01:13:06,159 --> 01:13:07,520
>> Okay. So, it's that whole thing.

2051
01:13:07,520 --> 01:13:08,080
>> Yes, sir.

2052
01:13:08,080 --> 01:13:08,400
>> All right.

2053
01:13:08,400 --> 01:13:11,280
>> Yes, sir. And that's the one exception

2054
01:13:11,280 --> 01:13:13,360
to Okay, let's say back to our John

2055
01:13:13,360 --> 01:13:15,840
example. John's upset about y'all. Y'all

2056
01:13:15,840 --> 01:13:19,520
denied. No, let's go back.

2057
01:13:19,520 --> 01:13:21,199
Steve ran in with his lawyer. Y'all said

2058
01:13:21,199 --> 01:13:22,400
he didn't have Excuse me. The board said

2059
01:13:22,400 --> 01:13:24,080
he didn't have standing. Well, now it

2060
01:13:24,080 --> 01:13:26,159
gets appealed to superior court. John's

2061
01:13:26,159 --> 01:13:28,239
appealed it. Town's there. Party is

2062
01:13:28,239 --> 01:13:29,920
perfect. Well, Steve's mad that he

2063
01:13:29,920 --> 01:13:32,320
didn't get to participate. Steve can try

2064
01:13:32,320 --> 01:13:35,040
to establish standing again. He can try

2065
01:13:35,040 --> 01:13:36,800
to intervene.

2066
01:13:36,800 --> 01:13:38,159
But on the other side, and this doesn't

2067
01:13:38,159 --> 01:13:39,760
really apply to you all. Let's say you

2068
01:13:39,760 --> 01:13:42,320
find someone has standing. Well, it gets

2069
01:13:42,320 --> 01:13:44,080
appealed. Let's say y'all say Steve does

2070
01:13:44,080 --> 01:13:46,000
have standing. Well, it gets appealed to

2071
01:13:46,000 --> 01:13:48,159
superior court. The other side can

2072
01:13:48,159 --> 01:13:50,159
attack whether or not he had standing to

2073
01:13:50,159 --> 01:13:52,960
begin with. So even if we get it wrong,

2074
01:13:52,960 --> 01:13:54,560
there's a second bite at the apple. My

2075
01:13:54,560 --> 01:13:56,239
advice, get right the first time because

2076
01:13:56,239 --> 01:13:58,000
it makes your night a lot easier. If

2077
01:13:58,000 --> 01:13:59,520
you're if you don't believe someone has

2078
01:13:59,520 --> 01:14:02,400
standing and they don't establish it,

2079
01:14:02,400 --> 01:14:04,080
it's the less lawyers you have or you

2080
01:14:04,080 --> 01:14:05,760
less people participating.

2081
01:14:05,760 --> 01:14:07,600
>> But but if Eric's put on the spot like

2082
01:14:07,600 --> 01:14:09,280
that, he can just look over at you and

2083
01:14:09,280 --> 01:14:09,679
say,

2084
01:14:09,679 --> 01:14:10,400
>> "What do you think?

2085
01:14:10,400 --> 01:14:10,960
>> What do you think?"

2086
01:14:10,960 --> 01:14:12,239
>> And I'll say, "Hey, you know, at this

2087
01:14:12,239 --> 01:14:14,400
point, I think that I've heard testimony

2088
01:14:14,400 --> 01:14:16,960
from Mr. Ste from Steve and Steve said,

2089
01:14:16,960 --> 01:14:18,239
you know, I live five miles down the

2090
01:14:18,239 --> 01:14:19,840
road. Mr. care. I don't think that's in

2091
01:14:19,840 --> 01:14:21,520
the immediate vicinity. He doesn't

2092
01:14:21,520 --> 01:14:23,120
really talk about how he would special

2093
01:14:23,120 --> 01:14:25,360
have special damages. At this point, my

2094
01:14:25,360 --> 01:14:27,440
recommendation would be to conclude I

2095
01:14:27,440 --> 01:14:29,199
don't think he's established standing.

2096
01:14:29,199 --> 01:14:31,040
Still your call though. Always want to

2097
01:14:31,040 --> 01:14:32,159
leave it in your court because you could

2098
01:14:32,159 --> 01:14:34,400
say, you know what, Clay or Mr. Davis, I

2099
01:14:34,400 --> 01:14:37,120
think that I think he did establish

2100
01:14:37,120 --> 01:14:38,880
standing. I disagree with your opinion.

2101
01:14:38,880 --> 01:14:41,360
Totally fine. And as a matter of of

2102
01:14:41,360 --> 01:14:44,719
procedure and practice, usually when you know you reach an agenda item

2103
01:14:44,719 --> 01:14:46,880
that's variance or something, the

2104
01:14:46,880 --> 01:14:48,640
parties come up, I think that's when you

2105
01:14:48,640 --> 01:14:50,400
Yes. address it at the beginning is

2106
01:14:50,400 --> 01:14:53,040
>> okay, who was here for item number

2107
01:14:53,040 --> 01:14:54,960
seven, this variance application. Yeah.

2108
01:14:54,960 --> 01:14:57,040
>> Uh, you know, town staff would speak up.

2109
01:14:57,040 --> 01:14:59,600
The applicant and or their attorney um

2110
01:14:59,600 --> 01:15:01,679
would speak up and you can usually open

2111
01:15:01,679 --> 01:15:07,920
the floor to say um is anybody else who would like to speak on the matter

2112
01:15:07,920 --> 01:15:10,159
wishes to speak on this matter? You

2113
01:15:10,159 --> 01:15:11,520
know, obviously those two parties are

2114
01:15:11,520 --> 01:15:12,960
going to have standing. Anybody else

2115
01:15:12,960 --> 01:15:15,040
comes forward? Okay, tell me your name.

2116
01:15:15,040 --> 01:15:16,800
Who are you? Where do you live?

2117
01:15:16,800 --> 01:15:18,000
>> Where do you live? All that kind of

2118
01:15:18,000 --> 01:15:19,760
stuff to kind of go through that quick

2119
01:15:19,760 --> 01:15:22,480
checklist of what gives them standing

2120
01:15:22,480 --> 01:15:25,360
here, and then you can make that

2121
01:15:25,360 --> 01:15:27,040
determination before you start putting

2122
01:15:27,040 --> 01:15:28,480
on witnesses.

2123
01:15:28,480 --> 01:15:29,920
>> They have to be sworn in.

2124
01:15:29,920 --> 01:15:31,679
>> Yes, sir. Thank you. You read my mind.

2125
01:15:31,679 --> 01:15:33,760
You'll swear them in at the beginning.

2126
01:15:33,760 --> 01:15:36,080
>> And I would just invite anyone who is

2127
01:15:36,080 --> 01:15:37,600
going to be providing testimony, please

2128
01:15:37,600 --> 01:15:39,199
come forward. You need to be sworn in.

2129
01:15:39,199 --> 01:15:41,280
>> Who swears in?

2130
01:15:41,280 --> 01:15:43,040
That's a good point because the clerk

2131
01:15:43,040 --> 01:15:46,080
usually does it. I would advise

2132
01:15:46,080 --> 01:15:47,840
honestly I think you would give No,

2133
01:15:47,840 --> 01:15:49,840
because you would be testifying. Um

2134
01:15:49,840 --> 01:15:51,040
>> maybe the secretary to the board.

2135
01:15:51,040 --> 01:15:52,239
>> Yeah. Secretary of the board since the

2136
01:15:52,239 --> 01:15:53,199
clerk. Yeah. Good point.

2137
01:15:53,199 --> 01:15:53,760
>> Yeah. So

2138
01:15:53,760 --> 01:15:54,960
>> we can check the procedure on that.

2139
01:15:54,960 --> 01:15:56,080
That's a good point. Yeah. Who can

2140
01:15:56,080 --> 01:15:57,120
administer that?

2141
01:15:57,120 --> 01:15:58,320
>> It has to be. Yeah.

2142
01:15:58,320 --> 01:16:00,000
>> Yeah. Last year happened to be the town

2143
01:16:00,000 --> 01:16:01,280
clerk too. So that was easy

2144
01:16:01,280 --> 01:16:02,880
>> because I think technically the chair

2145
01:16:02,880 --> 01:16:04,320
could also swear, can't they?

2146
01:16:04,320 --> 01:16:05,280
>> The chair can swear.

2147
01:16:05,280 --> 01:16:06,480
>> Yeah. Because they're presiding. Yeah.

2148
01:16:06,480 --> 01:16:07,760
So you could chair could technically do

2149
01:16:07,760 --> 01:16:09,920
it. I know. Sorry you got sorry you got

2150
01:16:09,920 --> 01:16:11,280
elected.

2151
01:16:11,280 --> 01:16:12,719
You shouldn't shouldn't have lied when I

2152
01:16:12,719 --> 01:16:14,640
thought I was a judge.

2153
01:16:14,640 --> 01:16:16,719
>> Eric, we appreciate you, brother.

2154
01:16:16,719 --> 01:16:17,760
>> Andy had a question for us.

2155
01:16:17,760 --> 01:16:19,040
>> Yes, sir. Someone else had a question.

2156
01:16:19,040 --> 01:16:21,199
>> I have a question for you. When uh

2157
01:16:21,199 --> 01:16:22,960
obviously when you're talking about

2158
01:16:22,960 --> 01:16:24,960
somebody being 5 miles away from the

2159
01:16:24,960 --> 01:16:25,520
incident?

2160
01:16:25,520 --> 01:16:26,560
>> Yes, sir.

2161
01:16:26,560 --> 01:16:28,960
>> Reasonable that they're not involved in

2162
01:16:28,960 --> 01:16:29,360
this.

2163
01:16:29,360 --> 01:16:29,840
>> Yes, sir.

2164
01:16:29,840 --> 01:16:32,159
>> But in the environment that we work in

2165
01:16:32,159 --> 01:16:36,000
here, you know, you live on X Street and

2166
01:16:36,000 --> 01:16:37,840
you're going to do something across the

2167
01:16:37,840 --> 01:16:40,000
street from me. Obviously, I'm I have

2168
01:16:40,000 --> 01:16:41,600
standing because you're right across the

2169
01:16:41,600 --> 01:16:44,159
street. Your two neighbors have How far

2170
01:16:44,159 --> 01:16:46,800
does that go within reason?

2171
01:16:46,800 --> 01:16:48,880
>> So, there's a famous case out of Raleigh

2172
01:16:48,880 --> 01:16:50,960
where someone was able to establish

2173
01:16:50,960 --> 01:16:52,960
standing I think like two miles away

2174
01:16:52,960 --> 01:16:54,560
because they could show storm water

2175
01:16:54,560 --> 01:16:57,840
impacts. It it um the business was going

2176
01:16:57,840 --> 01:16:59,600
to be built and then it was just going

2177
01:16:59,600 --> 01:17:02,480
to flood this this amount of homes and

2178
01:17:02,480 --> 01:17:04,320
the ditches there couldn't handle it. So

2179
01:17:04,320 --> 01:17:06,080
then they had evidence to show that or

2180
01:17:06,080 --> 01:17:07,199
they established standing even though

2181
01:17:07,199 --> 01:17:08,800
they were two miles away. They were

2182
01:17:08,800 --> 01:17:09,920
showing this development was going to

2183
01:17:09,920 --> 01:17:11,120
have a downstream effect that was going

2184
01:17:11,120 --> 01:17:12,560
to flood my property. So it really

2185
01:17:12,560 --> 01:17:14,320
depends on why they're five miles away

2186
01:17:14,320 --> 01:17:15,520
and saying they have stand.

2187
01:17:15,520 --> 01:17:18,800
>> It's a case of uh you know my deck's 20

2188
01:17:18,800 --> 01:17:20,560
years old and I need to demolish it and

2189
01:17:20,560 --> 01:17:22,800
rebuild it. Well, the code they passed

2190
01:17:22,800 --> 01:17:26,080
two years ago now if I rebuild it as is

2191
01:17:26,080 --> 01:17:27,760
now I'm violating some setbacks or

2192
01:17:27,760 --> 01:17:29,600
something. I live five miles away. I

2193
01:17:29,600 --> 01:17:31,520
want to speak on that. That's not

2194
01:17:31,520 --> 01:17:32,719
>> I don't want that type of deck in my

2195
01:17:32,719 --> 01:17:34,239
neighborhood. Yeah. can't can't have it.

2196
01:17:34,239 --> 01:17:35,360
>> That's a waste of time. And they may

2197
01:17:35,360 --> 01:17:37,120
say, "Well, I got it done five years ago

2198
01:17:37,120 --> 01:17:38,719
or they denied me five years ago. I want

2199
01:17:38,719 --> 01:17:40,159
to be here." They really don't have

2200
01:17:40,159 --> 01:17:42,800
standing living miles away on a

2201
01:17:42,800 --> 01:17:44,320
>> That's another instance. You You may

2202
01:17:44,320 --> 01:17:45,600
have people that will say, "Well, I

2203
01:17:45,600 --> 01:17:47,760
applied for a variance four years ago

2204
01:17:47,760 --> 01:17:49,679
and y'all denied it. I want to make sure

2205
01:17:49,679 --> 01:17:51,280
this person gets denied, too, because I

2206
01:17:51,280 --> 01:17:52,080
want to make sure it's

2207
01:17:52,080 --> 01:17:53,360
>> your predecessors denied."

2208
01:17:53,360 --> 01:17:56,400
>> Well, that's that's not that's not

2209
01:17:56,400 --> 01:17:57,280
standing, sir.

2210
01:17:57,280 --> 01:17:58,000
>> Not standing.

2211
01:17:58,000 --> 01:17:59,679
>> Do you have any more on that? Any more

2212
01:17:59,679 --> 01:18:00,480
questions?

2213
01:18:00,480 --> 01:18:02,320
>> I guess it be it varies from case to

2214
01:18:02,320 --> 01:18:04,080
case. It definitely is.

2215
01:18:04,080 --> 01:18:05,679
>> Yeah. I mean, when you talk about five

2216
01:18:05,679 --> 01:18:08,320
miles away, unless they can actually

2217
01:18:08,320 --> 01:18:10,239
prove it, but I mean, we're we're going

2218
01:18:10,239 --> 01:18:13,600
to deal with I live on X Street and the

2219
01:18:13,600 --> 01:18:16,080
neighbors, you know, how far away is

2220
01:18:16,080 --> 01:18:18,320
reasonable and then it's a judgmental

2221
01:18:18,320 --> 01:18:20,880
call on our part whether or not there'll

2222
01:18:20,880 --> 01:18:22,560
be because in like like you have those

2223
01:18:22,560 --> 01:18:24,880
cluster communities are very cluster

2224
01:18:24,880 --> 01:18:25,920
developed. They were developed in

2225
01:18:25,920 --> 01:18:27,360
clusters. So then you have the situation

2226
01:18:27,360 --> 01:18:28,960
where well they that might actually

2227
01:18:28,960 --> 01:18:31,360
affect my property value. Yeah. I'm very

2228
01:18:31,360 --> 01:18:33,679
in close proximity. I'm not adjacent,

2229
01:18:33,679 --> 01:18:35,760
but I'm there's an alley between me and

2230
01:18:35,760 --> 01:18:37,440
that house and maybe it would affect the

2231
01:18:37,440 --> 01:18:39,120
property value. That's something that

2232
01:18:39,120 --> 01:18:40,719
you all can consider.

2233
01:18:40,719 --> 01:18:42,080
>> And to state the obvious, we're on an

2234
01:18:42,080 --> 01:18:42,880
island.

2235
01:18:42,880 --> 01:18:43,199
>> Yes.

2236
01:18:43,199 --> 01:18:45,120
>> We're not annexing new land anytime soon

2237
01:18:45,120 --> 01:18:46,000
or anything like that.

2238
01:18:46,000 --> 01:18:47,600
>> Straight straight right away that we all

2239
01:18:47,600 --> 01:18:48,560
share.

2240
01:18:48,560 --> 01:18:50,480
>> Things are going to be, you know,

2241
01:18:50,480 --> 01:18:50,800
>> Yeah.

2242
01:18:50,800 --> 01:18:52,320
>> issues that are going to come up. How

2243
01:18:52,320 --> 01:18:55,199
close how far is far enough away in a

2244
01:18:55,199 --> 01:18:55,840
smaller city?

2245
01:18:55,840 --> 01:18:58,960
>> Yep. Very good questions.

2246
01:18:58,960 --> 01:19:01,360
>> Anything further on? Oh, yes, sir.

2247
01:19:01,360 --> 01:19:02,640
>> You good?

2248
01:19:02,640 --> 01:19:03,920
>> Yes, sir. Mr. Chair,

2249
01:19:03,920 --> 01:19:06,239
>> um, sorry to monopolize, but

2250
01:19:06,239 --> 01:19:07,120
>> please,

2251
01:19:07,120 --> 01:19:11,120
>> when they're the the litigants are done,

2252
01:19:11,120 --> 01:19:14,000
are is the is the board allowed to ask

2253
01:19:14,000 --> 01:19:15,760
questions of any of the witnesses?

2254
01:19:15,760 --> 01:19:18,320
>> Yes, sir. I recommend you do that. I

2255
01:19:18,320 --> 01:19:21,679
recommend you go applicant direct

2256
01:19:21,679 --> 01:19:23,280
cross-examination

2257
01:19:23,280 --> 01:19:24,800
after the parties get done with their

2258
01:19:24,800 --> 01:19:26,320
question. Does anyone from the board

2259
01:19:26,320 --> 01:19:28,080
have questions?

2260
01:19:28,080 --> 01:19:29,360
That's that's when you all would chime

2261
01:19:29,360 --> 01:19:31,360
in and you all would say, "Mr. Chair, my

2262
01:19:31,360 --> 01:19:33,120
best way to recommend it. Does anyone

2263
01:19:33,120 --> 01:19:34,719
from the board have questions?" You can

2264
01:19:34,719 --> 01:19:36,960
either go in order or you can just say,

2265
01:19:36,960 --> 01:19:38,000
"Does anyone from the board have

2266
01:19:38,000 --> 01:19:40,159
questions?" And go from there. However

2267
01:19:40,159 --> 01:19:41,199
you want to do it. If you want to make

2268
01:19:41,199 --> 01:19:43,280
it structured, I've seen both ways.

2269
01:19:43,280 --> 01:19:43,840
>> Yes, sir.

2270
01:19:43,840 --> 01:19:47,520
>> Now, only those five can can

2271
01:19:47,520 --> 01:19:49,280
question. We we just have to sit here.

2272
01:19:49,280 --> 01:19:49,600
Correct.

2273
01:19:49,600 --> 01:19:51,520
>> That is the tough part. Yes, sir.

2274
01:19:51,520 --> 01:19:52,640
>> Yes, sir. pass notes.

2275
01:19:52,640 --> 01:19:54,640
>> Yep. [laughter]

2276
01:19:54,640 --> 01:19:56,560
>> Text me, bro.

2277
01:19:56,560 --> 01:19:58,080
>> I don't I don't know about that text and

2278
01:19:58,080 --> 01:19:59,600
I didn't see that note. If anyone asks,

2279
01:19:59,600 --> 01:20:00,159
>> we don't need that.

2280
01:20:00,159 --> 01:20:00,880
>> Anyone ask

2281
01:20:00,880 --> 01:20:02,320
>> and and to piggyback on some some of the

2282
01:20:02,320 --> 01:20:03,920
other statements as well

2283
01:20:03,920 --> 01:20:06,800
>> about due process and and you know

2284
01:20:06,800 --> 01:20:09,600
expert and who gets standing to hear. It

2285
01:20:09,600 --> 01:20:10,880
is a little bit of a balancing act

2286
01:20:10,880 --> 01:20:15,440
because um it is quasi judicial. So you

2287
01:20:15,440 --> 01:20:16,800
know there is case law that says rules

2288
01:20:16,800 --> 01:20:18,320
of civil procedure and evidence don't

2289
01:20:18,320 --> 01:20:20,320
apply strictly.

2290
01:20:20,320 --> 01:20:22,400
But then there's also required statutory

2291
01:20:22,400 --> 01:20:25,280
law that says you know experts you know

2292
01:20:25,280 --> 01:20:27,280
opinions experts on certain topics of

2293
01:20:27,280 --> 01:20:30,880
these things. Uh

2294
01:20:30,880 --> 01:20:32,320
and through the example of you know

2295
01:20:32,320 --> 01:20:33,600
maybe one side's here without an

2296
01:20:33,600 --> 01:20:34,960
attorney and an attorney's on the other

2297
01:20:34,960 --> 01:20:37,920
side just kind of badgering here

2298
01:20:37,920 --> 01:20:39,199
objection objection just trying to shut

2299
01:20:39,199 --> 01:20:41,199
them down. Well,

2300
01:20:41,199 --> 01:20:43,040
are they going to feel feel as if

2301
01:20:43,040 --> 01:20:44,400
they're getting due process or are they

2302
01:20:44,400 --> 01:20:46,400
going to get due process because they

2303
01:20:46,400 --> 01:20:48,159
don't know the rules of evidence about

2304
01:20:48,159 --> 01:20:49,679
leading questions and these sorts of

2305
01:20:49,679 --> 01:20:51,600
things or or is due process going to be

2306
01:20:51,600 --> 01:20:54,640
better served by saying I hear them. I

2307
01:20:54,640 --> 01:20:56,480
hear your objections, but let's let them

2308
01:20:56,480 --> 01:20:58,400
speak and try to get some questions out.

2309
01:20:58,400 --> 01:21:00,800
You know, that sort of thing. So, um

2310
01:21:00,800 --> 01:21:03,280
that's where some of that balance may be

2311
01:21:03,280 --> 01:21:04,719
struck on some of these evidentiary

2312
01:21:04,719 --> 01:21:08,560
issues. Um I think if you and every case

2313
01:21:08,560 --> 01:21:10,239
is different, facts are different. Every

2314
01:21:10,239 --> 01:21:11,520
judge hearing and appeal is going to be

2315
01:21:11,520 --> 01:21:15,040
different, but um with due process in

2316
01:21:15,040 --> 01:21:16,560
mind, you know, especially with prosay

2317
01:21:16,560 --> 01:21:20,400
folk spoke with an attorney. Um

2318
01:21:20,400 --> 01:21:22,880
it's nice to clear the judicial due

2319
01:21:22,880 --> 01:21:25,520
process hurdles if they got a chance to

2320
01:21:25,520 --> 01:21:27,440
speak. If you had a lawyer on the other

2321
01:21:27,440 --> 01:21:28,800
side that was shutting them down because

2322
01:21:28,800 --> 01:21:31,120
technically they violated some hearsay

2323
01:21:31,120 --> 01:21:32,560
objections and different stuff or

2324
01:21:32,560 --> 01:21:34,640
whatever. And in a court of law,

2325
01:21:34,640 --> 01:21:36,080
absolutely we could shut them down and

2326
01:21:36,080 --> 01:21:37,440
they could really never get a question

2327
01:21:37,440 --> 01:21:40,400
out. But if that happens here,

2328
01:21:40,400 --> 01:21:42,960
>> I think the the option for them to say,

2329
01:21:42,960 --> 01:21:44,960
"Is that really due process?"

2330
01:21:44,960 --> 01:21:46,960
>> Um, I didn't get a chance to speak.

2331
01:21:46,960 --> 01:21:48,800
>> I think that would be maybe an inro for

2332
01:21:48,800 --> 01:21:51,520
a judge to say, "Y'all do that again."

2333
01:21:51,520 --> 01:21:54,239
>> I've seen a board overturn um or I've

2334
01:21:54,239 --> 01:21:55,840
seen a court overturn a board's decision

2335
01:21:55,840 --> 01:21:57,840
for that reason. They said, you know,

2336
01:21:57,840 --> 01:21:59,199
the person showed up and they they

2337
01:21:59,199 --> 01:22:00,159
didn't they didn't have a chance to

2338
01:22:00,159 --> 01:22:01,360
present evidence because the lawyer on

2339
01:22:01,360 --> 01:22:02,719
the other side just kept objecting. I

2340
01:22:02,719 --> 01:22:05,760
was not that lawyer. But um um my my

2341
01:22:05,760 --> 01:22:09,679
advice is the lawyer is not there.

2342
01:22:09,679 --> 01:22:11,040
Would that person be able to present

2343
01:22:11,040 --> 01:22:12,800
their evidence? Because lawyers aren't

2344
01:22:12,800 --> 01:22:15,040
mandatory in quasi judicial unless

2345
01:22:15,040 --> 01:22:17,679
they're and unless uh they have a

2346
01:22:17,679 --> 01:22:18,800
representative right. [clears throat]

2347
01:22:18,800 --> 01:22:20,159
Okay, that's another issue we'll talk

2348
01:22:20,159 --> 01:22:22,800
about, but we'll get to that. Um lawyers

2349
01:22:22,800 --> 01:22:24,800
aren't necessary. Lay people can show

2350
01:22:24,800 --> 01:22:26,320
up. Non- lawyers could show up and give

2351
01:22:26,320 --> 01:22:29,440
their case. Um, and that should I always

2352
01:22:29,440 --> 01:22:31,040
like keep that in mind when I'm advising

2353
01:22:31,040 --> 01:22:34,239
board saying, "Hey, this person, like

2354
01:22:34,239 --> 01:22:36,000
Tim said, they're objecting to

2355
01:22:36,000 --> 01:22:37,440
everything. I don't care if they're

2356
01:22:37,440 --> 01:22:38,960
leading. I just want them to have a

2357
01:22:38,960 --> 01:22:41,360
conversation with me as a board member.

2358
01:22:41,360 --> 01:22:43,199
I want to hear their evidence. And if it

2359
01:22:43,199 --> 01:22:46,159
gets too far off, chair can step in."

2360
01:22:46,159 --> 01:22:47,920
Right? If they're talking about if if

2361
01:22:47,920 --> 01:22:50,320
Steve's talking about um this other

2362
01:22:50,320 --> 01:22:52,000
person's grass across the street, saying

2363
01:22:52,000 --> 01:22:54,000
it's 10 feet tall, why aren't y'all

2364
01:22:54,000 --> 01:22:57,199
punishing him? Well, Steve,

2365
01:22:57,199 --> 01:22:58,719
We're here about you tonight. Let's

2366
01:22:58,719 --> 01:23:00,639
stick stick within the purview here. I

2367
01:23:00,639 --> 01:23:01,840
as the lawyer on the other side might

2368
01:23:01,840 --> 01:23:03,840
not be objecting because I also have a

2369
01:23:03,840 --> 01:23:05,280
rule of boards are going to hear on

2370
01:23:05,280 --> 01:23:06,639
illrelevant information. I'm not going

2371
01:23:06,639 --> 01:23:08,000
to take your time up with object. I'm

2372
01:23:08,000 --> 01:23:09,679
going to object once and let you decide

2373
01:23:09,679 --> 01:23:11,199
what you want to hear. Some lawyers

2374
01:23:11,199 --> 01:23:13,199
might do that, too. So, as the chair,

2375
01:23:13,199 --> 01:23:14,560
you have that option to say, you know,

2376
01:23:14,560 --> 01:23:16,800
hey, we're kind of out of order here.

2377
01:23:16,800 --> 01:23:19,280
So, keep that in mind as well. Um, is

2378
01:23:19,280 --> 01:23:21,760
there Oh, yeah. I may gave a caveat

2379
01:23:21,760 --> 01:23:24,239
earlier about lawyers.

2380
01:23:24,239 --> 01:23:27,040
This happens a lot. John owns a

2381
01:23:27,040 --> 01:23:29,679
business. John has a friend helping him

2382
01:23:29,679 --> 01:23:32,400
design his plans for the business. John

2383
01:23:32,400 --> 01:23:34,159
sends his friend who's denying or

2384
01:23:34,159 --> 01:23:35,679
designing the plans to apply for a

2385
01:23:35,679 --> 01:23:37,600
variance.

2386
01:23:37,600 --> 01:23:39,600
He gets to he comes up there and he

2387
01:23:39,600 --> 01:23:42,000
calls witnesses. He starts providing

2388
01:23:42,000 --> 01:23:45,679
testimony. He can testify, but you can't

2389
01:23:45,679 --> 01:23:48,320
have non- lawyers serving as lawyers. In

2390
01:23:48,320 --> 01:23:50,159
other words, if you have an engineer

2391
01:23:50,159 --> 01:23:52,880
that shows up and he starts calling

2392
01:23:52,880 --> 01:23:54,880
other people, other witnesses that show

2393
01:23:54,880 --> 01:23:57,679
up, that's not allowed. That's the pract

2394
01:23:57,679 --> 01:23:59,280
quasi judicial decisions are the

2395
01:23:59,280 --> 01:24:01,520
practice of law. Reasonzonings are

2396
01:24:01,520 --> 01:24:03,360
different. You will see that at city

2397
01:24:03,360 --> 01:24:05,840
council or excuse me, town council. You

2398
01:24:05,840 --> 01:24:07,120
will see non- lawyers. That's

2399
01:24:07,120 --> 01:24:08,719
legislative.

2400
01:24:08,719 --> 01:24:10,320
That's where they're not take they're

2401
01:24:10,320 --> 01:24:14,239
taking in input, but all you need as a

2402
01:24:14,239 --> 01:24:16,000
council is a plausible basis to make

2403
01:24:16,000 --> 01:24:17,920
your legislative decision. You're not

2404
01:24:17,920 --> 01:24:20,000
making it off of an evidentiary standard

2405
01:24:20,000 --> 01:24:21,600
like you all are. Y'all are taking in

2406
01:24:21,600 --> 01:24:24,000
evidence. So a non-awyer can't come and

2407
01:24:24,000 --> 01:24:26,159
present evidence and present witnesses

2408
01:24:26,159 --> 01:24:28,639
unless they're the applicant. I can

2409
01:24:28,639 --> 01:24:29,920
represent myself in court. I can

2410
01:24:29,920 --> 01:24:31,360
represent myself in front of quasi

2411
01:24:31,360 --> 01:24:34,800
judicial board. What I can't do is have

2412
01:24:34,800 --> 01:24:36,880
Steve, my engineer, come and lead my

2413
01:24:36,880 --> 01:24:39,760
whole case. And that gets tough. The

2414
01:24:39,760 --> 01:24:42,000
rule on that is I as your attorney have

2415
01:24:42,000 --> 01:24:43,679
to inform you of that. I have to tell

2416
01:24:43,679 --> 01:24:46,480
you at this time there's an individual

2417
01:24:46,480 --> 01:24:48,560
who is not a lawyer. You're not a lawyer

2418
01:24:48,560 --> 01:24:51,600
sir or ma'am. Nope. Okay. Technically he

2419
01:24:51,600 --> 01:24:53,760
cannot represent this person. I have to

2420
01:24:53,760 --> 01:24:56,480
inform you of that ethically.

2421
01:24:56,480 --> 01:24:58,480
Then you then Mr. Chair, you all make

2422
01:24:58,480 --> 01:25:00,000
the call. You make the call as to

2423
01:25:00,000 --> 01:25:00,960
whether you're not going to allow them

2424
01:25:00,960 --> 01:25:04,239
to proceed. The rule is I just can't I

2425
01:25:04,239 --> 01:25:05,679
can't help facilitate the unlawful

2426
01:25:05,679 --> 01:25:08,159
practice of law. If you all say, you

2427
01:25:08,159 --> 01:25:08,960
know what, we're going to let them

2428
01:25:08,960 --> 01:25:11,280
proceed and I've done my ethical duty. I

2429
01:25:11,280 --> 01:25:12,960
don't recommend it. But that's all the

2430
01:25:12,960 --> 01:25:15,679
opinion tells me to do. So no non-

2431
01:25:15,679 --> 01:25:17,360
lawyers come and represent other people.

2432
01:25:17,360 --> 01:25:19,600
It's my recommendation. Businesses get

2433
01:25:19,600 --> 01:25:20,000
tricky.

2434
01:25:20,000 --> 01:25:21,280
>> I was going to say you want to address

2435
01:25:21,280 --> 01:25:21,600
Yep.

2436
01:25:21,600 --> 01:25:22,719
>> Corporations and LLC's.

2437
01:25:22,719 --> 01:25:24,880
>> Corporations get tricky because you have

2438
01:25:24,880 --> 01:25:27,760
the shareholder that comes.

2439
01:25:27,760 --> 01:25:31,840
Cases are unclear about that. You can't be a non-awyer

2440
01:25:31,840 --> 01:25:33,679
in court and represent a business in

2441
01:25:33,679 --> 01:25:35,280
district court or superior court. Can't

2442
01:25:35,280 --> 01:25:37,760
do it. Correct. But then you fall into

2443
01:25:37,760 --> 01:25:39,679
the argument of I'm the property owner.

2444
01:25:39,679 --> 01:25:42,639
I'm the manager of Steve Smith LLC. I'm

2445
01:25:42,639 --> 01:25:45,360
Steve Smith. That's me. You know, should

2446
01:25:45,360 --> 01:25:47,920
I be able to provide my evidence? Still

2447
01:25:47,920 --> 01:25:49,360
looking into that issue. I haven't had

2448
01:25:49,360 --> 01:25:51,760
it come up yet, but I'm still I still

2449
01:25:51,760 --> 01:25:52,880
don't have a definitive answer. My

2450
01:25:52,880 --> 01:25:55,440
knee-jerk reaction is to tell you no

2451
01:25:55,440 --> 01:25:57,520
because that's it's not good for an

2452
01:25:57,520 --> 01:25:58,880
individual to be represented by someone

2453
01:25:58,880 --> 01:25:59,840
else.

2454
01:25:59,840 --> 01:26:02,639
>> You look at corporations as people.

2455
01:26:02,639 --> 01:26:04,960
>> So, that that'll be we'll probably have

2456
01:26:04,960 --> 01:26:06,080
that conversation in the future if it

2457
01:26:06,080 --> 01:26:07,520
ever comes up. I don't have a direct

2458
01:26:07,520 --> 01:26:07,920
answer.

2459
01:26:07,920 --> 01:26:10,080
>> And the reason why At least in district

2460
01:26:10,080 --> 01:26:12,800
and superior courts, a corporation or

2461
01:26:12,800 --> 01:26:15,760
LLC cannot appear but through a lawyer

2462
01:26:15,760 --> 01:26:18,639
is because court doesn't know what the

2463
01:26:18,639 --> 01:26:20,480
bylaws are of this company. They don't

2464
01:26:20,480 --> 01:26:22,560
know I'm John Smith. Here's my business

2465
01:26:22,560 --> 01:26:24,400
card on the president of John Smith

2466
01:26:24,400 --> 01:26:27,040
Incorporated. That's great, but you

2467
01:26:27,040 --> 01:26:28,159
know, if you're not a majority

2468
01:26:28,159 --> 01:26:29,679
shareholder, can you make decisions on

2469
01:26:29,679 --> 01:26:32,800
behalf of this company? Um,

2470
01:26:32,800 --> 01:26:34,800
your bylaws say you need this many votes

2471
01:26:34,800 --> 01:26:37,520
or shares voted to make that. So,

2472
01:26:37,520 --> 01:26:40,560
>> the reason why uh in civil and criminal

2473
01:26:40,560 --> 01:26:42,560
courts they criminal but more civil

2474
01:26:42,560 --> 01:26:44,800
courts they require an attorney is

2475
01:26:44,800 --> 01:26:46,800
because the attorney's job is to sort

2476
01:26:46,800 --> 01:26:49,440
that out and then take that company's

2477
01:26:49,440 --> 01:26:52,080
position to court. So the the danger

2478
01:26:52,080 --> 01:26:54,560
here would be uh I'm John Smith. I'm the

2479
01:26:54,560 --> 01:26:55,760
president of John Smith Incorporated.

2480
01:26:55,760 --> 01:26:57,840
I'm here for this application and we

2481
01:26:57,840 --> 01:27:00,320
proceed. Uh and what we didn't know was

2482
01:27:00,320 --> 01:27:02,400
that his soon to be ex-wife is vice

2483
01:27:02,400 --> 01:27:04,560
president and some other divorce decree

2484
01:27:04,560 --> 01:27:06,800
she's going to get 80% of the business.

2485
01:27:06,800 --> 01:27:08,239
>> Oops. you didn't have the power to make

2486
01:27:08,239 --> 01:27:09,360
that call. Yeah.

2487
01:27:09,360 --> 01:27:13,199
>> So, um these are, you know, trip wires

2488
01:27:13,199 --> 01:27:14,480
we try to avoid and that's what we're

2489
01:27:14,480 --> 01:27:17,120
here for.

2490
01:27:17,120 --> 01:27:20,000
That might be a landmines.

2491
01:27:20,000 --> 01:27:22,000
>> Absolutely. Um I'm going to do we have

2492
01:27:22,000 --> 01:27:23,280
any more questions? I was just going to

2493
01:27:23,280 --> 01:27:25,199
wrap it up with the uh vested rights

2494
01:27:25,199 --> 01:27:26,960
section and then answer any overall

2495
01:27:26,960 --> 01:27:28,639
questions we had. Anybody have any

2496
01:27:28,639 --> 01:27:31,440
questions on the Okay, perfect. So,

2497
01:27:31,440 --> 01:27:32,880
vested rights, there's two types of

2498
01:27:32,880 --> 01:27:35,280
vested rights. best of rights is you're

2499
01:27:35,280 --> 01:27:36,400
going to encounter them with some of

2500
01:27:36,400 --> 01:27:38,480
your older developments or when there's

2501
01:27:38,480 --> 01:27:40,239
a change in the zoning code that affects

2502
01:27:40,239 --> 01:27:44,000
a property owner. Um, so if you expand a

2503
01:27:44,000 --> 01:27:46,080
lot of money after you've had some type

2504
01:27:46,080 --> 01:27:48,719
of governmental approval, which is case

2505
01:27:48,719 --> 01:27:51,360
law tells us allows you to build, that's

2506
01:27:51,360 --> 01:27:53,199
how I interpret it. Some people disagree

2507
01:27:53,199 --> 01:27:55,520
with me, but I that's my interpretation

2508
01:27:55,520 --> 01:27:57,520
is are you allowed to use your property

2509
01:27:57,520 --> 01:27:59,679
a certain way? Do you have that

2510
01:27:59,679 --> 01:28:02,239
approval? Okay, so let's start there.

2511
01:28:02,239 --> 01:28:04,239
Let's say John was uh approved to

2512
01:28:04,239 --> 01:28:07,120
develop his lots a residential lot in

2513
01:28:07,120 --> 01:28:12,239
the 2000s 2008 decline in the um economy

2514
01:28:12,239 --> 01:28:13,920
wasn't able to build it completely but

2515
01:28:13,920 --> 01:28:15,520
he started building he had a building

2516
01:28:15,520 --> 01:28:18,639
permit he started building it up building up he finished

2517
01:28:18,639 --> 01:28:21,679
it in 2015 well code enforcement comes

2518
01:28:21,679 --> 01:28:24,719
by and says wait a minute John uh that

2519
01:28:24,719 --> 01:28:26,080
doesn't comply with the setbacks from

2520
01:28:26,080 --> 01:28:29,280
2015 wait a minute John expended

2521
01:28:29,280 --> 01:28:30,960
substantial expenditures towards the

2522
01:28:30,960 --> 01:28:32,560
completion of his project. He spent a

2523
01:28:32,560 --> 01:28:34,800
lot of money to build it. He he had good

2524
01:28:34,800 --> 01:28:36,800
faith reliance on governmental approval.

2525
01:28:36,800 --> 01:28:38,880
He relied on his building permit. He

2526
01:28:38,880 --> 01:28:41,199
relied on his site plan. He relied on

2527
01:28:41,199 --> 01:28:43,360
his plat.

2528
01:28:43,360 --> 01:28:44,639
And then he spent the money. And an

2529
01:28:44,639 --> 01:28:46,239
injustice would happen here. That's the

2530
01:28:46,239 --> 01:28:48,400
last one. Owner would be would be harmed

2531
01:28:48,400 --> 01:28:50,480
without that vested right. John's going

2532
01:28:50,480 --> 01:28:51,920
to have to tear down his house. That's

2533
01:28:51,920 --> 01:28:54,000
an injustice. So that's an example of a

2534
01:28:54,000 --> 01:28:55,440
vested right. That's one of our more

2535
01:28:55,440 --> 01:28:58,800
complicated administrative decisions. We

2536
01:28:58,800 --> 01:29:00,560
will certainly

2537
01:29:00,560 --> 01:29:02,800
cover that more as we get closer. If we

2538
01:29:02,800 --> 01:29:05,120
ever have one of those um statutory

2539
01:29:05,120 --> 01:29:07,600
vested right, that's when you can submit

2540
01:29:07,600 --> 01:29:09,199
a plan to a zoning administrator and

2541
01:29:09,199 --> 01:29:11,840
say, "I had all these prior approvals.

2542
01:29:11,840 --> 01:29:13,760
Here's my site plan based on those prior

2543
01:29:13,760 --> 01:29:16,639
approvals. I had a building permit.

2544
01:29:16,639 --> 01:29:18,639
Please, please accept this as my vested

2545
01:29:18,639 --> 01:29:21,679
right." So, common law is more court-

2546
01:29:21,679 --> 01:29:23,679
made. That's more evidentiary based. You

2547
01:29:23,679 --> 01:29:25,840
have to present the evidence. Statutory,

2548
01:29:25,840 --> 01:29:27,440
it's laid out. Did you have a building

2549
01:29:27,440 --> 01:29:30,159
permit? Do you have a site plan? Can you

2550
01:29:30,159 --> 01:29:31,760
present it to the zoning administrator?

2551
01:29:31,760 --> 01:29:34,480
It gets approved. Here's the caveat.

2552
01:29:34,480 --> 01:29:36,719
Statuto vested rights only last, I

2553
01:29:36,719 --> 01:29:38,320
believe,

2554
01:29:38,320 --> 01:29:40,639
three years, maybe two. I always get

2555
01:29:40,639 --> 01:29:42,880
them mixed up. Two two years. Perfect.

2556
01:29:42,880 --> 01:29:43,840
>> I was holding down too.

2557
01:29:43,840 --> 01:29:46,320
>> Thank you so much. Um, so two years. If

2558
01:29:46,320 --> 01:29:48,639
you don't build within two years, best

2559
01:29:48,639 --> 01:29:51,679
rights go away. Expire. That's the

2560
01:29:51,679 --> 01:29:53,600
difference. Common law is why most

2561
01:29:53,600 --> 01:29:56,400
people try to go for it because common

2562
01:29:56,400 --> 01:29:59,440
law it's a reasonable time is what is

2563
01:29:59,440 --> 01:30:01,199
the closest thing we can find to a time

2564
01:30:01,199 --> 01:30:04,000
period they vest as long as the permit's

2565
01:30:04,000 --> 01:30:05,520
valid

2566
01:30:05,520 --> 01:30:07,679
and so you might see both but you don't

2567
01:30:07,679 --> 01:30:08,639
really need to worry about the

2568
01:30:08,639 --> 01:30:10,239
expiration unless someone comes back to

2569
01:30:10,239 --> 01:30:12,159
you and says hey zoning administrator

2570
01:30:12,159 --> 01:30:14,639
told me two years has already gone by

2571
01:30:14,639 --> 01:30:16,639
I'm expired hey I have a vested right

2572
01:30:16,639 --> 01:30:19,760
sir statute says what it says two years

2573
01:30:19,760 --> 01:30:21,040
you didn't get an extension so that's

2574
01:30:21,040 --> 01:30:22,719
hopefully an easy case for you. That's

2575
01:30:22,719 --> 01:30:24,159
really the only difference. But again,

2576
01:30:24,159 --> 01:30:26,560
you'll have that laid out prior to or

2577
01:30:26,560 --> 01:30:27,520
during the hearing, probably during a

2578
01:30:27,520 --> 01:30:28,880
staff report. Have some background on

2579
01:30:28,880 --> 01:30:31,120
Mr. Plan Director. Perfect. So, you'll

2580
01:30:31,120 --> 01:30:33,920
get that background more when you see

2581
01:30:33,920 --> 01:30:36,560
one of those. Um, but those are some of

2582
01:30:36,560 --> 01:30:39,360
our more complicated ones. Um, is there

2583
01:30:39,360 --> 01:30:40,800
any questions about anything you've

2584
01:30:40,800 --> 01:30:42,800
heard tonight? Any questions about the

2585
01:30:42,800 --> 01:30:45,360
process?

2586
01:30:45,360 --> 01:30:47,440
>> Perfect. Thank you all for

2587
01:30:47,440 --> 01:30:48,719
>> I I have a

2588
01:30:48,719 --> 01:30:50,000
>> Yes, sir. Yes, sir.

2589
01:30:50,000 --> 01:30:54,639
>> a comment. Uh so first the has anybody

2590
01:30:54,639 --> 01:30:58,080
here seen an actual application form

2591
01:30:58,080 --> 01:31:00,320
that John gets

2592
01:31:00,320 --> 01:31:03,600
to uh for a variance?

2593
01:31:03,600 --> 01:31:07,280
I didn't think so. Um the applica

2594
01:31:07,280 --> 01:31:11,600
basically the application that the um

2595
01:31:11,600 --> 01:31:16,639
applicant uh has to fill out has three

2596
01:31:16,639 --> 01:31:21,040
basic questions on it. And they are the

2597
01:31:21,040 --> 01:31:24,560
same questions that uh and they write

2598
01:31:24,560 --> 01:31:27,920
out an answer and uh to to those

2599
01:31:27,920 --> 01:31:33,280
questions and that is what we get in

2600
01:31:33,280 --> 01:31:37,920
advance to look at and those are the

2601
01:31:37,920 --> 01:31:39,840
three criteria

2602
01:31:39,840 --> 01:31:45,679
that we use to make a decision.

2603
01:31:45,679 --> 01:31:48,400
So, it's it's all it's really pretty

2604
01:31:48,400 --> 01:31:51,280
straightforward when it gets a two-page

2605
01:31:51,280 --> 01:31:52,800
questionnaire

2606
01:31:52,800 --> 01:31:54,719
and or maybe it's three now, I don't

2607
01:31:54,719 --> 01:31:57,920
know. But it's just it's it's um and

2608
01:31:57,920 --> 01:31:59,760
they fill it out most of the time

2609
01:31:59,760 --> 01:32:01,120
handwritten [clears throat]

2610
01:32:01,120 --> 01:32:05,600
and um John will provide that to us and

2611
01:32:05,600 --> 01:32:08,000
but what it says, what those questions

2612
01:32:08,000 --> 01:32:12,560
are these three questions that I made

2613
01:32:12,560 --> 01:32:17,120
copies of. Uh and I'll this is verbatim

2614
01:32:17,120 --> 01:32:19,120
but I I'll just read the three questions

2615
01:32:19,120 --> 01:32:21,360
and it's really kind of summing up what

2616
01:32:21,360 --> 01:32:21,840
>> yes sir

2617
01:32:21,840 --> 01:32:24,320
>> what you've said but

2618
01:32:24,320 --> 01:32:26,800
uh question one there are practical

2619
01:32:26,800 --> 01:32:30,080
difficulties or unnecessary hardships in

2620
01:32:30,080 --> 01:32:31,679
the way of carrying out the strict

2621
01:32:31,679 --> 01:32:35,280
letter of the ordinance.

2622
01:32:35,280 --> 01:32:39,199
That's criteria one.

2623
01:32:39,199 --> 01:32:41,600
variance is in harmony with the general

2624
01:32:41,600 --> 01:32:44,960
purpose and intent uh of the ordinance

2625
01:32:44,960 --> 01:32:49,520
and preserves its spirit. That's two.

2626
01:32:49,520 --> 01:32:52,320
And the third one is the granting of the

2627
01:32:52,320 --> 01:32:55,440
variance secures the public safety and

2628
01:32:55,440 --> 01:32:59,440
welfare and does substantial justice.

2629
01:32:59,440 --> 01:33:03,840
So when we make uh to grant a variance,

2630
01:33:03,840 --> 01:33:07,520
we should answer yes on all of those

2631
01:33:07,520 --> 01:33:09,120
three.

2632
01:33:09,120 --> 01:33:13,040
um things are they they can say

2633
01:33:13,040 --> 01:33:15,360
they can meet two of them and the third

2634
01:33:15,360 --> 01:33:19,280
one they fall down on and we should deny

2635
01:33:19,280 --> 01:33:21,679
the variance

2636
01:33:21,679 --> 01:33:25,920
but um the application form would be an

2637
01:33:25,920 --> 01:33:31,360
interesting thing John to um it's

2638
01:33:31,360 --> 01:33:32,960
I don't think any of the words have

2639
01:33:32,960 --> 01:33:34,400
changed the format's changed

2640
01:33:34,400 --> 01:33:36,034
>> no I'll send um it's it's

2641
01:33:36,034 --> 01:33:37,120
[clears throat] available for download

2642
01:33:37,120 --> 01:33:39,199
online our website, but I'll send y'all

2643
01:33:39,199 --> 01:33:40,800
a copy of it. So, you see

2644
01:33:40,800 --> 01:33:43,600
>> that that it's it's a brief way of

2645
01:33:43,600 --> 01:33:45,120
finding out what we're supposed to do

2646
01:33:45,120 --> 01:33:47,679
and how how we make decisions, you know.

2647
01:33:47,679 --> 01:33:50,719
>> Aren't we uh having this training uh now

2648
01:33:50,719 --> 01:33:52,960
because there's an anticipated hearing

2649
01:33:52,960 --> 01:33:53,840
coming up?

2650
01:33:53,840 --> 01:33:54,239
>> No.

2651
01:33:54,239 --> 01:33:55,040
Okay.

2652
01:33:55,040 --> 01:33:57,120
>> No, we just uh wanted to give a training

2653
01:33:57,120 --> 01:33:59,199
to you guys just so you have the heads

2654
01:33:59,199 --> 01:34:01,199
up. You can ask ask any questions you

2655
01:34:01,199 --> 01:34:02,000
wanted to.

2656
01:34:02,000 --> 01:34:04,560
>> Well, this was extremely helpful for me.

2657
01:34:04,560 --> 01:34:05,600
So, thank you.

2658
01:34:05,600 --> 01:34:06,239
>> Thank you.

2659
01:34:06,239 --> 01:34:09,280
>> Yes. And there there will be questions.

2660
01:34:09,280 --> 01:34:10,159
>> Just take

2661
01:34:10,159 --> 01:34:15,040
>> that come up whether it's procedural or anything else. Um you know we are

2662
01:34:15,040 --> 01:34:16,719
available. I think our emails are on

2663
01:34:16,719 --> 01:34:19,040
there. We I've got some business cards.

2664
01:34:19,040 --> 01:34:22,400
Please take some. Um there you know we

2665
01:34:22,400 --> 01:34:24,000
are the board's attorney. This board's

2666
01:34:24,000 --> 01:34:25,760
attorney. We don't represent the town or

2667
01:34:25,760 --> 01:34:27,760
anybody else. You guys lawyers. We're

2668
01:34:27,760 --> 01:34:31,040
here to help. Um so you know please

2669
01:34:31,040 --> 01:34:33,520
reach out to questions as they come up.

2670
01:34:33,520 --> 01:34:35,440
Um, tonight you probably felt like you

2671
01:34:35,440 --> 01:34:37,600
were drinking from a lot of information

2672
01:34:37,600 --> 01:34:39,040
coming at you. It's hard to swallow all

2673
01:34:39,040 --> 01:34:41,920
at one time. Um, but that's that's what

2674
01:34:41,920 --> 01:34:42,480
we're here for.

2675
01:34:42,480 --> 01:34:44,080
>> And thankfully you don't see all of that

2676
01:34:44,080 --> 01:34:45,520
at once, right? So you're not going to

2677
01:34:45,520 --> 01:34:47,440
see a vested right with the variance all

2678
01:34:47,440 --> 01:34:48,719
in one night.

2679
01:34:48,719 --> 01:34:49,600
>> Thankfully not.

2680
01:34:49,600 --> 01:34:50,320
>> Hopefully not.

2681
01:34:50,320 --> 01:34:52,639
>> Hopefully you don't see a vest.

2682
01:34:52,639 --> 01:34:56,159
>> That's right. Um,

2683
01:34:56,159 --> 01:34:58,719
oh gosh. I think uh we've covered most

2684
01:34:58,719 --> 01:35:01,120
of it uh tonight. Um, as these questions

2685
01:35:01,120 --> 01:35:03,440
come up, reach out to us.

2686
01:35:03,440 --> 01:35:07,120
Um, as any attorney client, you know,

2687
01:35:07,120 --> 01:35:09,679
there's no confidentiality

2688
01:35:09,679 --> 01:35:12,719
between you. So, one of the marks asked

2689
01:35:12,719 --> 01:35:14,800
me a question, no problem. Here's your

2690
01:35:14,800 --> 01:35:16,800
answer. And I talked to another mark

2691
01:35:16,800 --> 01:35:18,480
later and I can't, you know, and they

2692
01:35:18,480 --> 01:35:19,520
said, "Well, don't tell the other mark I

2693
01:35:19,520 --> 01:35:22,320
asked that question." Can't do it. No

2694
01:35:22,320 --> 01:35:24,800
big deal. No big secret, but as between

2695
01:35:24,800 --> 01:35:28,159
you guys, there's no confidentiality.

2696
01:35:28,159 --> 01:35:31,040
So, the board knows, the board knows.

2697
01:35:31,040 --> 01:35:33,600
That's a good way to put it.

2698
01:35:33,600 --> 01:35:36,639
>> I assume they deliberate in open session

2699
01:35:36,639 --> 01:35:38,000
and closed.

2700
01:35:38,000 --> 01:35:38,719
>> Correct. Yes, sir.

2701
01:35:38,719 --> 01:35:41,600
>> Yes, sir. Has to be an open session.

2702
01:35:41,600 --> 01:35:42,880
>> That's always the toughest part is

2703
01:35:42,880 --> 01:35:44,159
having everyone lean into the mic at

2704
01:35:44,159 --> 01:35:45,520
first. Like I said, everyone's instinct

2705
01:35:45,520 --> 01:35:48,560
is have conversations back and forth.

2706
01:35:48,560 --> 01:35:53,030
Lean in. Yes. I think that

2707
01:35:53,040 --> 01:35:54,639
» it's easier tonight when there's nobody

2708
01:35:54,639 --> 01:35:56,719
learing at you. They comment about, you

2709
01:35:56,719 --> 01:35:58,080
know, please rule for me.

2710
01:35:58,080 --> 01:36:00,960
>> Oh, a room full of people. Um it could

2711
01:36:00,960 --> 01:36:02,800
it can be intimidating at times 100%

2712
01:36:02,800 --> 01:36:05,120
that's okay. You know that's okay.

2713
01:36:05,120 --> 01:36:06,639
>> Um that's kind of why we wanted to get

2714
01:36:06,639 --> 01:36:08,400
on board early,

2715
01:36:08,400 --> 01:36:09,520
>> you know, kind of get this stuff under

2716
01:36:09,520 --> 01:36:11,679
our hands so we can use it.

2717
01:36:11,679 --> 01:36:13,280
>> This was great.

2718
01:36:13,280 --> 01:36:14,159
>> Thank you.

2719
01:36:14,159 --> 01:36:16,080
>> Appreciate you saying that. Thank you.

2720
01:36:16,080 --> 01:36:17,280
>> Absolutely.

2721
01:36:17,280 --> 01:36:19,120
>> All right. No further questions. That's

2722
01:36:19,120 --> 01:36:20,800
all I have. You got anything else, Tim?

2723
01:36:20,800 --> 01:36:22,159
>> Uh no.

2724
01:36:22,159 --> 01:36:22,719
>> Thank you all.

2725
01:36:22,719 --> 01:36:24,239
>> The lawyer to say he's done talking is

2726
01:36:24,239 --> 01:36:26,159
really good. So we're good.

2727
01:36:26,159 --> 01:36:27,280
>> We'll get to do it all. If the only

2728
01:36:27,280 --> 01:36:30,800
thing we need is a motion to adjourn.

2729
01:36:30,800 --> 01:36:32,800
>> Move to adjourn the meeting.

2730
01:36:32,800 --> 01:36:35,760
>> Second.

2731
01:36:35,760 --> 01:36:36,480
>> Vote.

2732
01:36:36,480 --> 01:36:37,520
>> All in favor?

2733
01:36:37,520 --> 01:36:39,440
>> I

2734
01:36:39,440 --> 01:36:40,960
did.

2735
01:36:40,960 --> 01:36:43,600
Great job.