[0:00] to order. Regular meeting of the town of
[0:02] Emerald Ale board of adjustment.
[0:07] I'm now going to move to take role. Um
[0:11] Mark Kahuna
[0:13] >> here.
[0:14] >> Scott Henson
[0:15] >> here. Mark Brennolds
[0:17] >> here.
[0:18] >> Eric Havlin
[0:19] >> here.
[0:20] >> Andrew Frick
[0:21] >> here.
[0:22] >> Tim Kinch
[0:23] >> here.
[0:25] >> And Mark Wicker
[0:26] >> here.
[0:28] [snorts]
[0:29] All right, we do have a quorum
[0:31] established.
[0:35] Next item on the agenda is to elect the
[0:38] chair and vice chair. So I'll let the
[0:40] board members um
[0:42] you know discuss among yourselves and
[0:46] >> go ahead.
[0:53] » I'm one of them.
[0:54] >> Okay. So Mark Wicker's one. Who was our
[0:56] other ultimate?
[0:59] I'd have to It's across the street.
[1:01] >> I think it's me, I think.
[1:03] >> Okay. Andrew Frick and Mark Wicker,
[1:04] >> I think. So, yeah.
[1:05] >> Okay.
[1:06] >> Sorry, I didn't have that information
[1:07] available.
[1:18] » Yeah, I think it's me because I'm on a
[1:19] one-year.
[1:21] >> Who was the other alternate?
[1:23] >> Mark Wicker.
[1:24] >> Okay.
[1:25] No, the first one.
[1:27] >> Andrew Frick.
[1:28] >> Andrew. Okay. Thank you. [snorts]
[1:34] » So, can the alternates be
[1:37] chair or vice chair or no?
[1:41] >> Regular
[1:47] chair. In case anybody's not familiar
[1:49] with that role, um they you've ever been
[1:53] to a town meeting where the mayor
[1:56] floor. That's
[2:08] » perfect. All right.
[2:10] >> We're all learning. [laughter]
[2:12] >> Um, but the chair uh is in charge of the
[2:14] meeting, so to speak. They run the
[2:16] procedures and make sure things keep
[2:17] moving along. The the things on the
[2:19] agenda get addressed. Um, when you have
[2:21] hearings, we have to make a ruling.
[2:23] We're applicants may be presenting to
[2:25] you. Um there may be an objection about
[2:29] an evidence matter or something. The
[2:30] chair uh makes the initial decision on
[2:32] the objection things of that nature. Um
[2:35] the vice chair serves in the absence of
[2:37] the chair. So both have to be one of the
[2:39] five regular members in that regard. Um
[2:43] any other questions I can
[2:45] >> but the chair also signs the meeting
[2:48] minutes and other stuff according to
[2:50] >> correct. So a decision like a final
[2:52] written decision of the board um you
[2:55] know you all have input but it's
[2:56] officially signed by the chair um and
[2:58] the minutes of the meetings are prepared
[3:01] uh in this case I guess uh Mike Taylor
[3:03] will be secretary to the board so he
[3:06] will handle some of that with with the
[3:08] meeting minutes as well.
[3:11] >> Have any of you guys that are not
[3:12] alternate served in that capacity before
[3:15] as chair?
[3:16] >> I've never been as a chair. I'm I mean
[3:18] I'm a lawyer and by trade and u was a
[3:22] trial attorney, but I was also an
[3:23] administrative uh hearing officer for
[3:25] the federal government for about six or
[3:27] seven or five years. Um so I do have a
[3:30] little bit of context and experience
[3:32] doing this type of stuff. Um serving as
[3:36] a you know hearing officer is pretty
[3:38] similar
[3:41] but I would put my name out there if you
[3:45] want to do that. Okay.
[3:47] >> Anyone else?
[3:51] Um I I was on the um on [clears throat]
[3:54] the board for about 10 years, maybe 12
[3:58] years
[3:59] um in the as
[4:03] including chair of it at for about eight
[4:07] years. So,
[4:11] it's [clears throat] not my intention to
[4:12] stay on the board forever, but um
[4:16] I I just thought it would help to,
[4:19] you know, if if there's some, you know,
[4:22] fairly experienced people around to get
[4:24] started. And
[4:29] » well, [clears throat]
[4:30] I mean, I' I would certainly recommend
[4:33] Eric for chair and Mark, you for vice
[4:36] chair. I mean, I want to make a motion.
[4:39] >> Make a Sure. I'd make a motion or
[4:42] nominate Eric for the chair position
[4:45] mark for the vice. You
[4:46] >> okay with that?
[4:46] >> Yeah. Yeah. [laughter]
[4:49] Be my pleasure.
[4:50] >> Okay.
[4:51] >> Anybody else?
[4:52] >> I will second.
[4:54] >> Okay.
[4:55] >> So, we have a motion and a second.
[4:57] >> Motion and a second. We just do a You
[4:59] can do a roll call vote. So, start I
[5:02] guess with Tim. I almost said Tim say
[5:05] yay or nay. We'll count those. Yay! Yay!
[5:09] Yes,
[5:10] >> yay.
[5:11] >> Yes.
[5:13] >> All right, we have Congratulations.
[5:15] >> Great job.
[5:18] >> That's great.
[5:20] >> You get a hammer, too.
[5:24] » Yeah.
[5:24] >> Official now. [laughter]
[5:28] » Wave it loudly.
[5:33] » Excellent. Excellent.
[5:38] You need to
[5:41] in charge now. [laughter]
[5:45] It's your show.
[5:48] >> That was a quick [laughter]
[5:50] >> we here but
[5:53] an interesting side note about this. Um
[5:55] so you're approving minutes from the
[5:57] last meeting
[5:59] >> which was a year ago.
[6:00] >> Yeah.
[6:00] >> Yes sir. Um so interestingly and this
[6:03] applies to all you know town boards and
[6:05] different things. The board is a sort of
[6:07] a living body that continues on past,
[6:09] present and future. So this board is the
[6:13] authority to approve minutes of the
[6:15] board even though it was in the past. So
[6:16] I get I've got a lot of questions over
[6:18] the years of I wasn't even there. Can I
[6:20] Yes, you can approve it. So um this will
[6:23] be a routine thing when we adopt the
[6:25] agenda. Um we'll approve the minutes
[6:27] from the prior meeting which will be
[6:29] circulated to you in advance to review
[6:31] for you know make sure they were correct
[6:32] not necessarily verb but correct
[6:35] accounting of what happened at the last
[6:36] meeting in the votes. So um if you've
[6:40] reviewed these
[6:42] any objections to them make them known
[6:43] if not you can just do a yay or nay vote
[6:47] to approve the minutes that are in the
[6:49] agenda motion. [cough and clears throat]
[6:52] So procedurally, should should I open
[6:56] the door, open the window or open the
[6:57] floor to a motion for that?
[6:59] >> Yes, sir.
[7:01] >> Can I make the motion?
[7:02] >> Yes, sir. Yes, sir. As chair, you also
[7:03] get to vote on everything.
[7:05] >> Uh, a motion to uh approve the minutes
[7:08] of the meeting was that occurred on
[7:11] February
[7:13] 17th, 2025.
[7:18] » I second the motion.
[7:21] I have a qu question.
[7:23] Is Is there anything with that case that
[7:26] is still pending?
[7:28] >> Not that I know of.
[7:30] >> Okay.
[7:31] >> No, sir.
[7:32] >> I was
[7:32] >> Thank you.
[7:33] >> I was there a year ago. It's It's done.
[7:35] >> Yeah.
[7:38] » Any other questions?
[7:44] » We vote
[7:47] Start with chair. Do we
[7:50] >> you can do it in mass? All in favor, all
[7:52] oppose. Or you can do a roll call.
[7:53] Whatever. Whatever works.
[7:54] >> Okay. I I Yes, I approve.
[7:58] >> Yes, I approve.
[8:00] >> Approved.
[8:01] >> Approve.
[8:03] >> All right.
[8:04] >> Approve. Motion carries.
[8:05] >> Thank you. [clears throat and cough]
[8:17] The next item on the list is [snorts] a
[8:19] adoption of agenda.
[8:23] So just uh procedurally and routinely um
[8:27] the agenda will come out from the plan
[8:29] director. Um and if anybody wanted to
[8:33] change anything about the agenda, add
[8:35] something to the agenda, we'll talk
[8:37] about that a little bit more detail in a
[8:38] minute. um this will be the time to um
[8:42] make a motion say I want to add
[8:45] something on the agenda. This is just
[8:46] general procedures of the board
[8:47] information for you. We'll we'll tailor
[8:49] it to the board just
[8:51] um and that can be amended by the
[8:54] majority but that's pretty
[8:56] straightforward. If there are no uh
[8:58] changes or uh modifications to the
[9:00] agenda, then there'll be a motion to
[9:03] adopt, second
[9:12] motion to approve the agenda.
[9:16] >> Second.
[9:18] >> Okay. Anyone
[9:21] the vote?
[9:23] I I
[9:25] >> I [clears throat]
[9:31] mentioned my caveat about applying
[9:33] changing the agenda to the board of
[9:34] adjustment. Most of the time the things
[9:36] we're uh that will be in front of you
[9:39] for presentation to decide uh require
[9:42] notice periods about um you know you got
[9:45] to notice to the public we're going to
[9:47] have a hearing about this particular
[9:48] issue or to the parties to an
[9:49] application they got to get so many days
[9:51] notice in advance. So I don't suspect
[9:53] we'll be just taking things on and off
[9:55] the agenda very quickly, but just as a
[9:58] formality procedural step, that's how
[9:59] that's so may not come up much, but um
[10:03] in advance of the meeting u if anybody
[10:06] had a question about uh something that's
[10:08] on the agenda or adding something to the
[10:10] agenda,
[10:11] John can point you in the right
[10:13] direction on that.
[10:15] >> I have a question. [clears throat] uh we
[10:17] have any if we have to have any of these
[10:19] types of hearings, will one of you two
[10:21] guys be present?
[10:22] >> Yes, sir.
[10:23] >> Awesome.
[10:23] >> Yes, sir. Yes, sir. 100%.
[10:26] >> So, you're you're you're council for the
[10:28] town
[10:29] >> for the board.
[10:29] lawyers.
[10:31] >> Yes, sir.
[10:31] >> We work for you.
[10:33] >> So, when you all have hearings, the town
[10:35] will at times if they oppose the
[10:37] application, they'll have representation
[10:39] um that represents the town interest.
[10:41] During that time, we solely make
[10:43] recommendations to you all for the board
[10:44] itself.
[10:47] which is what we're here to talk about
[10:48] tonight. We do that.
[10:49] >> We'll get there.
[10:50] >> Yes, sir.
[10:52] >> Question.
[10:55] [clears throat]
[10:56] >> Item number six, boarded training.
[10:59] Should we move on to that?
[11:02] >> Absolutely. All right. Well, um I think
[11:04] we had a chance to say hello to most of
[11:06] you before we got started, but um I'm
[11:09] Tim Carowway. This is my associate Klay
[11:11] Davis. um give you a little bit just
[11:14] information, introduce yourself about us
[11:15] and what we're here to do tonight. Then
[11:16] I'll turn the floor over to Clay. Um I'm
[11:20] a partner in the firm. Uh I manage our
[11:22] Raleigh office. We have three offices in
[11:24] North Carolina and I've lost count, but
[11:27] we are somewhere around two dozen local
[11:29] government municipalities that we
[11:30] represent in boards and special
[11:32] projects. So we are all over the state
[11:34] from pretty much the triangle east to
[11:36] the coast. Um for a brief time in 2024,
[11:40] I was an interim town attorney here for
[11:42] maybe one meeting and then I've been
[11:44] board of adjustment council since
[11:46] January last year. Um in the last year, and a half, um a lot of the town
[11:52] codes have changed. Uh board, you know,
[11:55] members have come off on and off. Uh
[11:57] we've had staff changes. So, uh John and
[12:00] I kind of agreed to start you off in
[12:02] your term on the board of adjustment.
[12:05] Let's start off with some training. that
[12:06] be the best thing to do. Um, so as we,
[12:10] you know, mentioned a moment ago, um, we
[12:12] are the board of adjustments attorney.
[12:14] So we are your lawyers. We are here for
[12:16] you. Okay? Um, there may be times like
[12:19] Clay alluded to earlier where the town
[12:21] may be involved as you got to think of
[12:23] them as like a party. Okay? You're the
[12:24] court. There's two parties coming to you
[12:27] and you're you're asked to make a
[12:28] decision. Um, so the town may be
[12:32] represented through the town attorney or
[12:34] perhaps some other law firm, but we are
[12:37] your attorneys. Okay? Our goal is to get
[12:40] you guys familiar with the legal
[12:41] requirements and procedures
[12:44] uh when acting as a board of adjustment.
[12:46] Um,
[12:48] doesn't mean we always make popular
[12:51] decisions here at the board of
[12:52] adjustment, but good news is this it's
[12:54] not a popularity contest. Um, you know,
[12:57] one party may be happy about the
[12:59] decision, one party may be unhappy about
[13:00] the decision. Uh, parties have the right
[13:03] to appeal your decision to the superior
[13:05] court. That may happen. It's okay. Um, I
[13:08] like to think of it as as attorney
[13:10] involved in these kind of cases. As a
[13:12] board member, um, when we do things
[13:15] correctly, we follow procedure so that
[13:18] everybody in front of you has got fair
[13:19] procedures, due process. We create a
[13:22] good record, which means we rule on
[13:24] evidence. objections. We make sure we
[13:26] have a good record, meaning what do
[13:28] evidence do we look at when we made our
[13:30] decision? Those things are very
[13:31] important at this level because our
[13:33] decision gets appealed. There's no
[13:35] bigger compliment we can receive is when
[13:37] a court upholds our decision.
[13:40] Uh that means we we treated folks
[13:43] fairly. We gave everybody fair
[13:45] procedure, due process. Our decision was
[13:48] based on evidence and we articulated
[13:50] that evidence in the questions we asked,
[13:52] the documents we reviewed. Okay. So, um
[13:56] that's the way I look at it is if our
[13:58] decision never got appealed and it got
[13:59] upheld, that's a compliment from the
[14:02] court. Good job. Um if it gets
[14:04] overturned, doesn't mean you made the
[14:06] wrong decision. All right? So, rest
[14:08] assured, don't worry about that. Um
[14:12] Clay here is an associate attorney with
[14:13] us. Uh like myself, he travels all over
[14:15] the state. Um the last few years, he's
[14:18] gotten a wealth of BOA and zoning law
[14:22] experience. uh representing boards,
[14:24] representing cities and towns. Um I
[14:27] think so far he's undefeated so far in
[14:30] these kind of things. So I've been
[14:31] fortunate. He's been good. No, he he
[14:33] he's modest, but he's very good at what
[14:35] he does. We're glad to have him at the
[14:36] firm. Um I'm going to turn it over to
[14:38] him for the presentation, but um like I
[14:41] said, moving forward, our goal is to get
[14:43] you guys comfortable with these
[14:44] procedures so you know what to expect.
[14:46] We will be at every board of adjustment
[14:49] meeting here for you guys. Okay. Um, the
[14:52] decisions are yours. Yep. Okay. Uh,
[14:55] we're not here to give you a decision to
[14:57] say. This is how you should rule. That's
[14:59] not what we're here for. You guys should
[15:00] rule. Uh, I like to think of it about
[15:02] when I take my kids bowling, we pull the bumpers, keep them out of the
[15:06] gutter. Our job is to kind of keep you
[15:08] in line as far as what's legally
[15:09] required and and be mindful and
[15:11] respectful of that. But the decision is
[15:13] yours.
[15:15] >> I might have a question. Yes, sir.
[15:17] alternate members, what is our role here
[15:19] and what on a on a routine basis?
[15:23] >> Good question. Very good question. So,
[15:25] um, as long as we have the five regulars
[15:28] here, um, you don't get to vote,
[15:31] unfortunately. Um, but we encourage you
[15:34] to come, please, for a couple reasons.
[15:35] One,
[15:37] we all have different lives. We never
[15:38] know what's going to happen. Somebody
[15:40] gets sick, somebody has an accident on
[15:41] the way, god forbid, things of that
[15:42] nature. So, uh, if we have you here and
[15:45] one of the five is out, you will be in
[15:47] their seat and you'll be just like a
[15:49] regular member where you would vote. Um,
[15:52] being in attendance also helps learn
[15:54] these procedures, gets comfortable with
[15:56] them, gets comfortable with how we do
[15:57] things, that sort of thing. Um, in the
[16:00] event that somebody had to resign from
[16:01] the board, any reason good or bad,
[16:04] that's likely, you know, you need to
[16:06] fill in on the board potentially for
[16:07] that issue as well. Um, if you're not
[16:10] going to make it, and I think this would
[16:12] apply, and I won't speak for John, but
[16:14] um, if you're not gonna make a board
[16:15] meeting, if you kind of know that in
[16:16] advance, you can communicate that to
[16:18] John. Um, because we want to make sure
[16:21] we have enough folks here to carry on
[16:23] business. It takes four out of the five
[16:25] and not all still place thunder, but you
[16:27] got to have at least four of the regular
[16:28] members to conduct business. Um, so if one is absent, one of the two
[16:33] alternates can fill in and we can help
[16:35] meet that qu
[16:38] I answered that for you.
[16:39] >> Thank you.
[16:40] >> All right. Yes, sir. Anytime. Awesome.
[16:42] All right, Mr. Davis.
[16:43] >> All right. Good evening, everyone. Um,
[16:45] as Mr. Carowway introduced me
[16:46] previously, my name is Klay Davis. Um,
[16:48] I've had the privilege of working with
[16:50] board of adjustments in the form of
[16:53] board of adjustment attorney advising
[16:55] boards. I've had the honor of
[16:56] representing land owners in front of
[16:57] boards. So I've seen both sides and I've
[17:00] also had the opportunity to represent
[17:02] cities in advocating their position in
[17:04] front of board of adjustments. [snorts]
[17:05] So I've been able to see this at every
[17:07] angle and I'm grateful for that. I
[17:08] started my career here in Carter County
[17:10] uh practicing for a local law firm. Um
[17:12] fell in love with a woman from Zebulun
[17:14] and she said we need to move closer to
[17:15] family before we get married. So
[17:17] thankfully ended up with Mr. Careway's
[17:18] firm and uh I consider myself a trial
[17:20] attorney. Um I love the courtroom so
[17:23] it's hard for me to talk to you all
[17:24] sitting here but I'm happy to do it. Um,
[17:26] I'm used to moving around. Um, I want to
[17:28] make sure you don't have to follow me
[17:30] around the whole room the whole time.
[17:31] So, I will stay here. Um, but I'm I'm
[17:35] thankful to work with you all in this
[17:36] capacity as well because I get excited
[17:38] about board of adjustments hearings. You
[17:40] all essentially, I like to say, as one
[17:42] of our partners has said in the past,
[17:44] you all are judges, but unfortunately,
[17:46] you don't get robes. Um, you all get to
[17:48] make legal rulings. You get to hear
[17:50] cases that eventually a superior court
[17:52] judge might hear and you all get to make
[17:54] rulings on evidence and you don't even
[17:56] have to go to law school. So that's the
[17:57] cool part. Sorry, Mr. Chair. You did the
[17:59] hard part. Um but um
[18:01] >> you're the only one that gets the
[18:02] gamble.
[18:03] >> You he gets the best of both worlds. Um
[18:05] but that's that's how much that's how
[18:07] much I enjoy working with Board of
[18:08] Adjustments. So starting um just from
[18:11] the beginning um kind of the outlook on
[18:13] you all. I think uh this vibrated. I
[18:15] think it went the wrong way. Perfect. So
[18:16] again, you all have five regular
[18:18] members. You've heard a lot about that.
[18:19] Two alternates. Um, so a quorum, you
[18:22] need four members as Mr. Carowway
[18:24] alluded to. That's just so you all can
[18:26] conduct business. If four people aren't
[18:28] here, then you can't take action. And so
[18:31] that's why it's very important to have
[18:33] four regular members that can vote and
[18:36] take action. Um, these are some of the
[18:38] duties that you all have. Um, appeals of
[18:40] administrative decisions. We'll go
[18:42] through those. Um, not all of these will
[18:44] apply for you all. Um, one thing I
[18:46] wanted to do was just talk about some of
[18:48] the more common decisions we see around
[18:51] the state. So, thankfully you all don't
[18:54] have to worry about special use permits,
[18:56] which are the more contentious ones. Um,
[18:59] but you have other things like
[19:01] variances, and we'll go into that. Um,
[19:03] so that's some of your roles before
[19:05] here. Um, and I hit back again. This
[19:07] time it didn't vibrate. Um and just to
[19:09] interject just quickly, um when we look
[19:12] at the big picture here, um your board
[19:15] of commissioners for the town is the
[19:16] governing board.
[19:17] >> Yes.
[19:18] >> So they legislate ordinances and they
[19:20] pass the local laws so to speak. Okay.
[19:23] Um they have divested or given away some
[19:26] of their decision-making power to this
[19:27] board, right? And so uh it's different
[19:30] from city to city. Some cities the
[19:32] governing board sits as the board of
[19:33] adjustment and everything goes through
[19:34] the the town board, city council, town
[19:36] commissioners. uh here that rests with
[19:39] the board of adjustment. So um the
[19:42] planning board is separate than the
[19:44] board of adjustment. [clears throat]
[19:45] Legally you have to have even if the
[19:47] governing board is the board of
[19:48] adjustment, you have to have a planning
[19:50] board,
[19:50] >> right?
[19:50] >> And that's for think about it like you
[19:52] know public input. You're going to make
[19:53] a legislative change to the zoning issue
[19:56] or change, you know, um the zoning maps.
[20:00] Um that's your place for public review,
[20:03] public comment, you know, because we
[20:05] want the citizens involved with that
[20:06] process and that's where that input is
[20:08] really gathered. Um the board of
[20:10] adjustment uh if the governing board
[20:13] releases some authority has that
[20:15] authority to make certain decisions. So
[20:17] here um on the screen here are certain
[20:20] kinds of quasi judicial procedures. Not
[20:22] all of them have been released by the
[20:24] board of commissioners to board of
[20:26] adjustment here, but uh we're going to
[20:29] cover the three that that have
[20:30] >> and that's a good point. Um with regards
[20:32] because I believe you all sit as the
[20:34] planning board as well.
[20:35] >> No, they do not anymore. Okay, perfect.
[20:36] >> They don't anymore.
[20:37] >> Okay,
[20:38] >> perfect. All right. So, thankfully you
[20:39] all have one role. You all come here.
[20:41] You're the judge. You get to do um you
[20:44] get to make decisions while you're here
[20:45] and you have to hear evidence. So,
[20:46] perfect. You get the fun part. Um so,
[20:48] these are some of your more common ones.
[20:50] We have variances which you all do have
[20:52] authority to hear and consider the
[20:54] administrative decisions. So
[20:56] administrative decisions the way I like
[20:57] to put it is it's if a staff member if a
[21:01] citizen has to approach a member of the
[21:03] city town staff and to get some type of
[21:05] approval and they disagree with that
[21:07] approval you all get to hear about it.
[21:09] So you all will hear a vast amount of
[21:12] permits or different types of decisions.
[21:14] Our most common ones are if someone
[21:17] wants to um let's say develop a
[21:19] subdivision and there's a disagreement
[21:22] about what an ordinance says and they
[21:25] you can ask the planning director how do
[21:26] you interpret this ordinance? So you can
[21:28] direct me citizen on how to do
[21:30] something. Well the planning director
[21:32] will have an interpretation and then
[21:34] that citizen can say I will abide by
[21:36] that interpretation or I want to appeal
[21:38] that to the board of adjustment. And
[21:40] that's where you all come in. You all
[21:42] hear the administrator's decision rule
[21:45] on whether or not they made the correct
[21:47] decision and you have to base that on
[21:49] evidence. We'll get into that, but
[21:50] that's just an example of what an
[21:52] administrative appeal looks like. It's
[21:53] kind of a broad category um that you all
[21:55] will get to consider. All right. So,
[21:57] quasi judicial standards. Every board
[22:00] decision must be you're going to hear
[22:02] these words a lot and I apologize ahead
[22:04] of time. These three words, every board
[22:06] decision must be considered by
[22:07] substantial, competent, and material
[22:10] evidence. So what does that mean?
[22:12] Substantial evidence means someone
[22:14] reasonable would hear that evidence and
[22:16] say, you know what, that makes a
[22:18] difference in my mind. For example, um
[22:20] someone says the sky is blue, right? And
[22:23] that's what they have to prove. You got
[22:24] to prove the sky is blue. If someone
[22:26] who's sitting inside all day said,
[22:27] "Yeah, uh I I saw the sky today. It was
[22:30] gray." Well, they didn't see the sky.
[22:31] They don't know what color it was. They
[22:32] didn't go outside. But then you bring
[22:34] someone in here that says, "Yeah, I
[22:35] walked outside. I looked outside. I saw
[22:37] the sky was blue." That's substantial
[22:39] because you have someone before you that
[22:42] saw that evidence. That's substantial.
[22:44] It means something to you. It's what a
[22:46] reasonable jury would expect or excuse
[22:48] me, what a reasonable jury would
[22:50] consider adequate. You all get to play
[22:52] both rules. You're the reasonable jury
[22:54] in this case. So then we move to what's
[22:57] competent evidence. So competent
[22:59] evidence,
[23:00] it's a term in our in my area of law for
[23:03] quasi judicial law that gets thrown
[23:05] around a lot, but all it means is
[23:07] someone is qualified to say what they
[23:10] say. So if someone comes here and says
[23:12] to you all, I believe this use is
[23:15] dangerous to the community. Well, a lay
[23:18] person can't say that. They they don't
[23:21] they need to have some type of training
[23:22] to talk about why they think it's
[23:24] dangerous. They need to have some type
[23:26] of background that qualifies that
[23:28] statement. And you might hear attorneys
[23:30] come in here and say, you know,
[23:31] objection, the witness is not competent
[23:34] or the witness is not competent to make
[23:36] this statement. They're not being ugly.
[23:38] They're just saying under the legal
[23:40] standard, this witness is not qualified
[23:42] to testify about this subject. And we'll
[23:44] talk a little bit more about that. So,
[23:46] now let's go into objections. I talked
[23:49] about attorney making a competent
[23:50] objection. Let's say someone comes in,
[23:52] they testify. I think this project is
[23:54] dangerous. Objection, competence. That
[23:57] goes to you, Mr. Chair. So, at that
[24:00] point, you can make your own thought and
[24:03] say, you know what, I've heard it.
[24:05] Objection. I think it's overruled or
[24:07] sustained. Or I'm happy to help. Mr.
[24:10] Careway, if we're over here, you know,
[24:11] legal counsel, uh, what are your
[24:13] thoughts on this? I recommend X. You can
[24:16] take that recommendation and make your
[24:17] own determination. If you believe it's
[24:19] competent, you can overrule it and you
[24:20] can sustain it. Let's say you sustain it
[24:23] and that that person doesn't like your
[24:25] ruling. Well, then what happens next is
[24:27] that person, the attorney who objected
[24:29] can say or the person who does not agree
[24:32] with your ruling can say, "I want to
[24:33] appeal that to the entire board." So,
[24:36] what does that look like? Instead of it
[24:38] being the chair's decision, the rest of
[24:40] the board, just like you voted on agenda
[24:42] items, you all would vote on the
[24:43] objection.
[24:45] uh you all would discuss it openly and
[24:48] then someone would say I make a motion
[24:50] to affirm agree with the chair or I make
[24:55] a motion to overrule and in that
[24:58] situation you would overrule and the
[25:00] objection would have the opposite effect
[25:02] in this case in my example the testimony
[25:04] would be permitted. So any questions
[25:06] about that with the evidentiary side?
[25:08] Yes sir.
[25:09] >> Is is that uh just a majority or does it
[25:13] is it four out of five?
[25:14] >> Yes sir. Great question. It is a
[25:16] majority to overrule the chair's ruling
[25:18] in that.
[25:19] >> I'm sorry. Yes, sir. It is a majority to
[25:21] overrule the chair's ruling. Yes, sir.
[25:23] >> Majority of the regular members.
[25:24] >> Yes, sir. Thank you.
[25:26] >> All right. So, now let's talk about what
[25:28] does a quasi judicial quasi judicial
[25:31] decision look like. Treat it like a
[25:33] courtroom. That's my best advice. My
[25:35] best advice is a staff will usually open
[25:39] the presentation. Is that consistent,
[25:40] Mr. PL director? You all will open the
[25:43] if there's a quasi judicial decision,
[25:45] you all will give your staff report
[25:46] first. Perfect. So staff will give their
[25:48] report kind of an overview of what the
[25:51] um application is uh talking about what
[25:55] you all are going to hear today based on
[25:57] the ordinances. Usually it goes into the
[25:59] standards you all can consider. And then
[26:01] after staff presents, my recommendation
[26:03] is look at who has the burden of proof
[26:06] and let them go first. And so we'll go into that. But for example, a
[26:10] notice of violation. I believe you all
[26:12] still hear those for administrative
[26:14] appeals. So if someone comes in with the
[26:16] notice of violation, the burden is on
[26:18] the town to show you all evidence that
[26:21] the violation actually occurred. So in
[26:23] that case, I'd let town present you let
[26:25] town present their evidence first. Let
[26:27] them call their witnesses just like a
[26:29] courtroom. Let them call witnesses to
[26:31] testify. And then people who have
[26:34] standing, we'll go into standing more in
[26:35] a minute, have an opportunity to
[26:37] cross-examine that witness. Usually what
[26:39] that looks like is if it's a notice of
[26:41] violation, the town will have their uh
[26:44] staff member who worked on the report
[26:46] that led to the violation and then the
[26:48] attorney for the property owners
[26:50] cross-examining that staff member is
[26:52] usually what it looks like. Um, and then
[26:54] at that point, this is where the tough
[26:57] part comes in, especially for the chair.
[27:00] Only members withstanding are permitted
[27:02] to participate in the evidence.
[27:05] Technically, under the law, you can take
[27:07] in you can take evidence that you find
[27:09] relevant. I don't recommend you do that.
[27:12] I recommend you stick to the standing
[27:14] requirements. If someone doesn't have
[27:16] standing, and that's the hardest part
[27:17] because you're going to have members of
[27:18] the public who will be very passionate
[27:21] about certain issues. But if they live
[27:23] seven miles away and they have they
[27:25] believe that this project could harm a
[27:27] property seven miles away,
[27:30] it's hardressed to have standing to
[27:33] present evidence there. Um, so
[27:37] >> yes, sir.
[27:38] >> So in the example you gave us to have
[27:41] standing in that uh notice violation,
[27:44] you're talking about the person that's
[27:46] charged with a notice violation andor
[27:48] the person that charged.
[27:49] >> Yes, sir.
[27:50] >> Okay. Those people have standing. Yes,
[27:52] sir. They they all So, the So, the
[27:54] people that always have standing are the
[27:56] applicant, which in this case in a
[27:58] notice of violation, the I guess you
[28:00] would say the uh accused party. Um, but
[28:03] the applicant always has standing. The
[28:05] town always has standing to participate.
[28:08] The town can always be represented. They
[28:09] can always cross-examine, call
[28:11] witnesses. That's that's adequate. Um,
[28:14] now let's talk about other people that
[28:16] Yes, sir. Um,
[28:19] can the next door neighbor
[28:22] does next-door neighbor have standing?
[28:24] >> Great question. So, usually what
[28:27] standing is defined as is someone who
[28:30] adjoining property owners immediate
[28:32] vicinity. So, your in your neighbor
[28:34] example or someone who would suffer
[28:37] special damages. Special damages is a
[28:40] very broad category. Um, some examples
[28:43] of special damages are if your property
[28:45] values would be affected by the
[28:46] decision. Again, if you're further down
[28:49] the road, it's hard to say your property
[28:50] values would be um affected, but it's a
[28:54] case-byase basis. And I and I that's
[28:57] where we're here. We're here to help. If
[28:59] you have questions, what I always tell
[29:00] my boards is don't be afraid to use the
[29:02] lawyer next to you that has to do legal
[29:05] research in their daily lives to say,
[29:07] Mr. Attorney, they've presented this
[29:08] evidence. What are your thoughts? And
[29:10] then my thought would be, well, you
[29:12] know, based on North Carolina case law
[29:14] at this point, this person lives eight
[29:16] miles down the road. They don't they
[29:18] don't travel down a road based on um so
[29:22] let me backtrack. They live eight miles
[29:23] down the road. They probably don't have
[29:25] an interest here. That's my
[29:26] understanding. Um there have been cases
[29:28] where someone's storm water um that they
[29:32] were receiving would be increased by the
[29:34] project. Some courts have found that
[29:36] sufficient but it just ba it's based on
[29:38] uh the project itself or the application
[29:40] or the notice of violate or excuse me or
[29:42] the um the hearing that's being heard
[29:45] right so the approval rather. Yes sir.
[29:47] Did that answer your question?
[29:48] >> Yeah.
[29:49] >> Perfect. Thank you.
[29:50] >> Um so
[29:52] that's with the standing side of things.
[29:54] I want to go back to what is competent
[29:56] evidence because again it's a it's a
[29:59] broad category but thankfully the
[30:01] legislators helped us out just a little
[30:03] bit. So talking about what is competent
[30:06] evidence, there's three things that have
[30:08] to have an expert that some that the
[30:11] person who's claiming this evidence to
[30:13] be true must be qualified to say the
[30:16] very thing. So and that is property
[30:18] values, how use is going to affect a
[30:19] property. They need to have some type of
[30:21] appraisal training. I always say they
[30:24] must have some type of real estate
[30:25] training. We can't. And that's tough
[30:27] because you have people next door that
[30:29] want to say this is going to affect my
[30:31] property. If you if you build this close
[30:34] to me and you grant this variance, it's
[30:36] going to affect my property.
[30:39] That that alone, our courts have the the
[30:41] cases have told us in our courts that
[30:43] generalized grievances
[30:46] or speculative grievances about how
[30:48] something will affect your property,
[30:50] it's not competent evidence. So, we
[30:52] always have to have an expert for how
[30:55] your property will be affected by a
[30:57] certain project. All right. So, then
[30:59] increase in vehicle traffic.
[31:02] This is another tough one. If you have
[31:04] your your next door neighbor says,
[31:06] "Well, if you're going to put a
[31:07] commercial establishment next to my
[31:09] neighborhood, of course more cars are
[31:12] going to drive down that road. Of
[31:13] course, it's going to increase it by a
[31:15] hundred more cars or so." We need an
[31:18] expert. We need a traffic engineer that
[31:20] will say this will result in this many
[31:22] trips per day. This will result in this
[31:24] effect on vehicular traffic. The
[31:27] legislator's told us we need we need an
[31:29] expert for that. Um and then this is the
[31:32] third one matters where an expert would
[31:35] likely be required. What does that mean?
[31:38] I always tell my boards look for is this
[31:40] a specialized area. For example, this
[31:43] person comes in talking about how I
[31:47] believe if you build this cell phone
[31:49] tower next door to me and it gets icy
[31:53] and ice falls, it could hurt someone. My
[31:55] kids always go outside and that tower
[31:58] could drop ice on top of me. That's a
[32:00] case out of the Supreme Court. That's
[32:02] okay because obviously someone can say
[32:05] that would hurt someone, right?
[32:07] But if you have some other type of
[32:09] project that could have an effect on the
[32:11] environment and someone comes in and
[32:13] says, "Well, I read online Google told
[32:16] me that this is how this particular use
[32:19] would affect the environment." We need
[32:21] an expert, someone someone with
[32:23] education, someone with training. We
[32:24] need that person to come in and testify
[32:26] on that person's behalf. So look for
[32:29] things that require education, look for
[32:31] things that require training. Um,
[32:34] sometimes with the area of construction
[32:36] that gets tough. If you have someone
[32:38] that comes in because everyone's owned,
[32:40] everyone um has lived in a home, they
[32:43] can testify to way their home was
[32:45] affected by something like a storm or
[32:47] they could say, "Oh, yeah, well, I had a
[32:48] leak and it wasn't leaking before, but
[32:50] was the cause of that leak?" That's
[32:52] where your expert testimony comes in.
[32:54] So, look for training, look for
[32:56] educational areas. All right. So, we'll
[32:58] move to the next slide. Do you have
[32:59] anything you want to add to that? Yes,
[33:00] sir. question maybe going back uh just a
[33:04] little bit.
[33:04] >> Yes, sir.
[33:05] >> Um
[33:06] we will when when will we receive
[33:10] notice of an appeal and uh or an
[33:14] application for a variance? Uh when will
[33:17] we as board members do do we not see it
[33:20] until we reach the meeting?
[33:23] >> Great question. So
[33:24] >> or you know Go ahead.
[33:27] >> No, no, sir. You go first. My my
[33:30] question with that is if we get advanced
[33:33] notice, are we allowed to go out and
[33:36] look at the property before the meeting?
[33:39] >> That is the hardest part. Yes, sir. So,
[33:41] your ordin So, it depends on the
[33:42] ordinance. I believe your ordinance does
[33:44] permit it with but it must be disclosed.
[33:47] I believe site visits are permitted.
[33:50] I'll I'll check back on that to be sure,
[33:52] but I I believe I remember reading that.
[33:55] Most of the time I recommend on my
[33:56] boards not to because you take you're here because you can have certain
[34:02] specialized knowledge. Let's say there's
[34:04] a a project on Smith Road. You've been
[34:06] there your whole life. You know what
[34:08] happens on Smith Road. You know that
[34:10] there's this many houses. You you can
[34:13] say, you know, I lived on Smith Road and
[34:16] there's four houses here.
[34:19] Maybe we don't need two little town
[34:21] homes in the middle right here. that
[34:23] still might be a step too far. I always
[34:25] recommend my my boards base it solely
[34:28] off the evidence presented. what what's
[34:30] told to you base it off that if you know
[34:32] generalize the loca generally the
[34:34] location of where a project might be
[34:35] taking place or an application keep that
[34:37] in mind but the effect let the evidence
[34:40] be what drives you there is my
[34:41] recommendation because you have to
[34:43] disclose exparte communication if you've
[34:45] talked to anyone about it
[34:47] >> that's fine
[34:48] >> and then you have to
[34:48] >> I I would sure you know say you know I
[34:51] went out and visited the property and it's
[34:55] >> you know and
[34:59] you and so forth. And then here here the
[35:02] argument and it I mean pro or con I mean
[35:05] I'm not
[35:05] >> so and that and that would be the other
[35:07] side.
[35:08] >> I want to know what the
[35:10] general environment you know what are
[35:12] you guys talking about.
[35:13] >> So that's a great point because what
[35:15] would happen next after you've disclosed
[35:17] it the next question is can you remain
[35:18] impartial and you've just told me you
[35:20] can remain impartial even if you do
[35:21] that. Uh so
[35:24] there and kind of to tie up a couple
[35:26] points here together as well is um you
[35:30] know the term is quasi judicial here.
[35:32] What you're doing is a quasi judicial
[35:34] almost court is what you guys are doing.
[35:37] You're almost a judge in court. Okay.
[35:39] >> Um that's what makes it quasi because
[35:41] you're not a court but you are expected
[35:43] to do certain legal procedural things.
[35:45] One, two, three. Make sure they're all
[35:47] done. Do process here. Um and you know
[35:50] the grand scheme of things we are a
[35:52] governing board potentially limiting or or regulating what somebody can and
[35:57] can't do with their property pursuit of
[35:59] life, liberty and property. So these are
[36:01] big fundamental constitutional issues
[36:04] that have digested down the town of
[36:06] Emerald and their zoning issues. Okay,
[36:09] zoning code. So it's quasi judicial in
[36:12] nature in that certain due processes
[36:14] rights attached. So, uh, piggybacking on
[36:17] Clay's comment about, you know, we
[36:18] generally advise boards, uh, not to take
[36:20] an extra field trip to the site. Um,
[36:24] some of the reasons for that, I, you
[36:25] know, if it's, you know, right here on
[36:27] 58 and you can't help but drive by to go
[36:29] anywhere in town, that's a little
[36:30] different. Uh, but
[36:33] can you remain impartial even if you
[36:35] drive it past every day? But the reason
[36:37] for recommendation though is um we want
[36:40] the decision of the board to be based on
[36:43] the facts that are presented by the
[36:45] parties and that becomes the record.
[36:48] Okay. So what's in the record? If you
[36:50] had a conversation with a neighbor to
[36:52] that site who just landlasted the
[36:54] project and just told you how bad it was
[36:56] and you think, man, I wouldn't want that
[36:58] if I'm next door. um and you rule in
[37:02] such a way or your basis for ruling in
[37:03] such a way uh can't be supported by the
[37:06] arguments and the evidence received by
[37:08] the board then we got a problem.
[37:10] >> So uh that's why we have that
[37:12] recommendation and that's why we say
[37:13] things called quasi judicial because you
[37:15] are sitting like a judiciary like a
[37:17] court without the requirement of being
[37:20] lawyers and judges and all that fun
[37:21] stuff. Um but attached to that are due
[37:24] process requirements. So that's why we
[37:27] have the records kept. Um that's why we
[37:30] have evidentiary objections and things
[37:32] of that nature.
[37:34] >> Are when are we going to get the
[37:36] applications?
[37:38] >> How far out do you send agendas?
[37:40] >> So for this one it was just last week. U
[37:43] I try to do by Wednesday of every week.
[37:45] I got the one last week by Thursday if
[37:47] we had something that they needed to
[37:48] look at you know as soon as advanced as
[37:51] I could.
[37:52] >> Okay.
[37:52] >> Yeah.
[37:53] >> Right. just kind of to go back.
[37:54] [clears throat] So there if let's go
[37:56] back to my Smith Road example. I don't
[37:58] think there's any problem during the
[38:00] hearing where if you had an applicant
[38:01] that was on Smith Road, you lived there
[38:03] your whole life and you say, "I know the
[38:05] layout of the houses pretty well. Mr.
[38:09] Applicant, what are your opinions about
[38:11] this?" That's your knowledge living on
[38:13] Smith Road, asking the applicant based
[38:16] on that knowledge. But where you go
[38:18] wrong is is you can't say I've lived on
[38:21] Smith Road my whole life. I don't think
[38:23] there needs to, like I said, I don't
[38:25] think there needs to be two town homes
[38:26] here just because of my knowledge alone.
[38:28] Courts have said that that's not
[38:29] competent evidence. The backgrounds we
[38:31] have alone.
[38:32] >> But you would recuse yourself.
[38:34] >> Yes, sir. That's a good point.
[38:36] >> If Yes, sir.
[38:38] >> And that's in here somewhere.
[38:40] >> Yes, sir. You can't be impartial. come
[38:43] in as a neutral, clear mind and and make
[38:45] a decision based on what's presented to
[38:46] you.
[38:47] >> Yes, sir.
[38:47] >> Um if you can't separate yourself from a
[38:50] history of living on Smith Road,
[38:52] >> um then you can recuse yourself has to
[38:55] be recused and we would have an
[38:56] alternate number.
[38:58] You know, the the unfortunate the worst
[39:00] case we have in a state court right now
[39:03] which precedent of kind of the example
[39:04] I've laid out. There was a case in a
[39:06] major city where a hotel was being
[39:08] proposed to be built. And the board
[39:10] members said on the record, you know, I
[39:11] know that area. It can't take another
[39:13] hotel. It's too dense. It's dangerous.
[39:16] And the court said, you know, I know
[39:18] he's has knowledge, but you can't base
[39:20] it off that alone. You know, you need to
[39:21] have someone here that can say you're
[39:23] you can even ask the applicant, hey,
[39:25] I've lived there. What are your thoughts
[39:26] on this? And that way, it's evidence now
[39:29] based on testimony. It's not just your
[39:31] statement on the record. And all you
[39:32] have some supporting evidence from
[39:34] someone else too.
[39:36] >> Is that any further questions on that
[39:37] sir?
[39:38] >> Yeah. Okay. Perfect.
[39:40] >> Thank you.
[39:41] >> All right. So we're going to move to the
[39:42] next slide on one of the Okay. So we
[39:44] have who can participate? Variances. All
[39:47] right. Variances. Variances are some of
[39:49] the tougher is the tougher um decision
[39:52] you all have to make. So because you're
[39:55] dealing with an applicant that believes
[39:56] in injustice has happened to them. Um,
[40:00] and you have to make a ruling based on
[40:01] the evidence whether or not an injustic
[40:03] an injustice occurred. Right? So, first
[40:06] and foremost, the applicant has the
[40:09] burden to prove every one of those
[40:10] elements. An unnecessary hardship would
[40:13] result if they were required to comply
[40:15] with the ordinance as written that the
[40:18] uh condition of the land is peculiar to
[40:22] that piece of property. that specific
[40:25] property is different from other
[40:27] properties in the area that might be
[40:28] suffering the same harm. And then third,
[40:30] it can't be self-created. Um, the most
[40:33] common question I get about this element
[40:35] is, let's say you move to Smith Road
[40:38] from out of town and you know Smith Road
[40:42] can't be built based on a setback
[40:44] requirement, but you still move there.
[40:47] Unfortunately, as a board, it's not
[40:50] appropriate to say, "Well, sir, didn't
[40:51] you buy this house two months ago?" Yes,
[40:53] I did. And sir, didn't you know that the
[40:56] setback requirements were this when you
[40:58] bought it? I did. That's not a
[41:00] self-created hardship. Our courts have
[41:02] said that just because you move
[41:04] somewhere knowing of a problem does not
[41:06] preclude a variance.
[41:09] But they have to show that let's say
[41:12] John gets John Smith gets site plan
[41:15] approval to build a home, a two-story
[41:17] home. And as he's building that home, oh
[41:20] no, he builds too he he doesn't comply
[41:22] with the setbacks and now he says,"I
[41:24] want a variance." Well, then you have an
[41:27] issue there. John, you built the home.
[41:30] You built too close. You created that
[41:32] issue. You got to prove for something
[41:34] else. You just chose to build otherwise.
[41:35] That's an example of the self-grated
[41:37] hardship. Um, and then the requested
[41:40] variance is consistent with the intent
[41:42] of the ordinance and is in harmony. It's
[41:43] usually a legal question. Usually where
[41:46] I, you know, guide boards in that regard
[41:48] is are we are we building something that
[41:52] is so far outside the realm of the
[41:54] general area or how are we going is this
[41:57] person asking for something crazy?
[41:59] That's usually where that element comes
[42:00] into play.
[42:01] >> It's not a slight Yes, sir.
[42:03] >> Okay. I was just going to give an
[42:04] example. Um, one of my town clients sits
[42:08] as the board of adjustment and uh, they
[42:11] had a variance application come up where
[42:13] uh, neighborhood on one side of town was
[42:15] built in the 50s. You know, single story
[42:17] brick ranch homes every so far apart,
[42:19] you know, consistently, you know, three
[42:21] or four streets wide. And one of the
[42:24] homes uh, had been subject to a fire a
[42:26] couple years ago
[42:28] and the owners weren't to be found. I
[42:30] think it was heir's property that you
[42:32] know, great grandpa's old home. Nobody
[42:34] are cared about. So, it had been an
[42:36] eyesore in the town and um a local
[42:39] investor bought it and says, "I'll fix
[42:41] it up." So, they go to fix it up and
[42:44] turns out it had structural damage. So,
[42:46] he says, "Well, we have to raise this
[42:48] thing, start over again." Well, we
[42:52] didn't have the zoning statute in 1950
[42:54] whenever the house was built about
[42:56] setbacks. How far can your, you know, do
[42:58] you have to set your house back from the
[42:59] line between you and your neighbor?
[43:01] That's generally what a setback is. Um,
[43:04] well, according to the code that existed
[43:07] last year at the time, uh, none of the
[43:09] houses in that neighborhood met the code
[43:11] because they were all technically too
[43:12] close to their neighbor's line. They
[43:13] don't meet those setback requirements,
[43:14] but they were, let's just say,
[43:16] grandfathered in. Okay. Well, this
[43:19] gentleman that bought the home uh, had
[43:21] this problem now of, well, I've got to
[43:23] knock this home down because it's, you
[43:25] know, burnt beyond repair. I just can't
[43:27] fix it. But I'm willing to rebuild in
[43:30] the same footprint where it was same
[43:32] size, same footprint, no closer, no
[43:34] further away. But to do that, I need
[43:37] variance because once he tears that
[43:40] house down, that grandfathering goes
[43:42] away and he's going to be subject to
[43:43] what's on the books now. So, I'm not
[43:46] going to say it's the right decision or
[43:47] the wrong decision. But we looked at the
[43:49] board looked at those last uh couple
[43:52] elements there about, you know, what's
[43:54] the spirit of intent of it? you know, is was this meant to regulate these
[43:58] houses um built 1950 or was it meant to
[44:01] start spacing them out further for new
[44:03] construction? When was the law in place?
[44:05] When was it adopted? Um is this a public
[44:07] safety issue? What's the spirit of
[44:09] intent and substantial justice achieved?
[44:12] Uh that could be a little tricky. Um the
[44:15] board grant him the saying that's the
[44:18] correct outcome every time. Um but
[44:21] substantial justice says nobody was
[44:24] being harmed where these homes are
[44:26] located. We are replacing it the same
[44:28] footprint and the board felt uh we're
[44:30] going to create get rid of an eyesore
[44:32] and have a brand new home for the
[44:33] community. So uh that's just an example
[44:35] of substantial justice the board felt
[44:38] would be achieved by doing that. So
[44:40] that's a you know kind of a reasonable
[44:42] example of what a variance is. You've
[44:44] got these bright line rules. We're
[44:46] asking for some exception to them. So
[44:48] that's when you have to weigh these
[44:49] factors.
[44:50] >> And probably our most famous case right
[44:52] now is a case where someone got site
[44:54] received site plan approval. They
[44:56] started building and the site the survey
[44:59] was off. It got reserveyed. There was
[45:02] only about a 100 ft difference between
[45:03] the setback regulation and where it was
[45:06] built. The municipality said, "Yeah,
[45:09] that's you're going to have to tear your
[45:10] whole house down." Well, the court said,
[45:11] "That's a variance. That's injustice
[45:13] would occur." Let's stay in that
[45:15] example. It would be expensive for him
[45:17] to have to tear his house down, right?
[45:18] Big financial burden. Courts have also
[45:21] said financial burdens alone are
[45:23] insufficient.
[45:24] Famous example, a case that I was
[45:26] involved in. I had a client I
[45:28] represented the municipality. The
[45:30] individual wanted to advertise on their
[45:32] commercial lot. They were going to build
[45:34] a restaurant and they wanted to build a
[45:36] sign that was 100 foot tall. Our
[45:38] ordinance said 25 ft. 100 foot tall is
[45:42] 100 foot tall. That's not the same
[45:43] thing. Um, their argument was, "Well,
[45:46] we're between two highways. Hey, we're
[45:48] peculiar property. You know, it'd be
[45:50] great if people driving both sides could
[45:52] see us." Our position was, and our cases
[45:57] support it. You're just asking to make
[45:58] more money. You can still put a sign
[46:00] there. The ordinance isn't per
[46:02] preventing you from building a sign. You
[46:04] just want one that will allow you to get
[46:06] more money. A financial hardship that
[46:09] you're losing here alone is not enough.
[46:11] you have to show some type of injustice
[46:14] here. Um, use variances are not allowed.
[46:18] So, what is that? You're in a commercial
[46:21] development and let's, excuse me, let's
[46:23] say you're in a residential
[46:24] neighborhood. There's commercial
[46:25] development across the street because it
[46:27] was grandfathered in. Um,
[46:30] and that person across the street says,
[46:32] "Hey, I want to build a commercial
[46:33] development because obviously there's a
[46:35] store right or not a development, excuse
[46:36] me. I want to build some type of
[46:38] commercial establishment. Look across
[46:39] the street. You know that that property
[46:41] who was grandfathered in, they're
[46:42] allowed to build a commercial
[46:43] development. Well, no, that's not the
[46:46] purpose. Purpose of a variance, excuse
[46:48] me, of yes, of a variance is to
[46:50] encourage development. It's not to
[46:52] change the use of a property. It's not
[46:54] to reszone a property. That's not the
[46:57] purpose of a variance, even if an
[46:58] injustice would occur. All right. So,
[47:00] we'll move on.
[47:03] Oh, quorums. So you all thankfully do
[47:06] not have this issue because you have to
[47:09] have four people here regardless.
[47:11] Variances have a super majority
[47:14] requirement. It takes four fifths of the
[47:17] board to approve a variance. So three
[47:20] people vote yes, two vote no, variance
[47:24] does not pass. You have to secure four
[47:26] fifths votes.
[47:29] Now here's what's peculiar about
[47:32] variances.
[47:33] it is four fifths of the board. Well,
[47:36] let's say um Mr. Chair is not here one
[47:39] night. So, vice chair is filling in and
[47:42] the rest of the board is here. Vice
[47:44] chairs leading the meeting and then the
[47:45] rest of the members are here. We have
[47:46] four members here that can vote. Well,
[47:49] let's say the alternates can't be here.
[47:51] We only have four people here. Statute
[47:54] says four fifths of the board. Just cuz
[47:57] four, five people aren't here, doesn't
[48:01] mean that you can have, let's say, one
[48:04] person says no out of our four, three
[48:06] say yes. Three, fours. Hey,
[48:09] >> we got it. No, you need a majority. It's
[48:12] four fifths of the board. The number
[48:14] doesn't change.
[48:15] >> Four votes.
[48:16] >> Yes, sir. That's a great way to put it
[48:18] in your case. Keeping it simple.
[48:20] >> Four affirmative votes.
[48:21] >> I appreciate that a lot, actually. Um,
[48:23] we and thankfully you all have
[48:24] alternates. You have five. You don't
[48:27] have to deal with some of our larger
[48:28] boards have kind people on them. This is
[48:32] perfect number uh perfect setup.
[48:33] >> Lawyers don't do math.
[48:35] >> We do not
[48:35] >> we're like five and four is really
[48:37] >> my first ever meeting on a board of
[48:38] adjustment as board council was do was
[48:40] researching this very issue. They said
[48:42] we have we have four fifths we have four
[48:44] out of we have five people four out of
[48:46] five that wins right? I said no you have
[48:48] seven members on your board. We cannot
[48:50] do that. That's not going to work. None
[48:52] of you are excused. So we have to have
[48:54] as many as possible. So, four votes to
[48:57] pass a variance. If you don't get four,
[48:59] it's denied. That's just the simplest
[49:01] way to remember it. That's how it is.
[49:03] All right. So, special use permits, you
[49:05] all don't hear those, so we'll go
[49:07] through these. Um, administrative
[49:10] appeals.
[49:11] So, we've already gone over this a
[49:12] little bit. Let's go to our notice of
[49:14] violation examples. The town first has
[49:17] the burden to show you all through
[49:20] evidence that the violation occurred.
[49:22] So, if someone gets cited, let's say
[49:25] there's an ordinance that prevents you
[49:27] from
[49:28] um uh you didn't mow your grass for two
[49:31] weeks. I'm just thinking of a crazy
[49:33] doesn't exist. You didn't mow your grass
[49:34] for two weeks. And you know, code
[49:37] inspector goes out week one, he says,
[49:38] "The grass hasn't been mowed. Uh I
[49:41] measured it. It's still at this length."
[49:43] Comes out week two, it's still this
[49:44] length. It hasn't been mowed.
[49:47] They file a notice of violation.
[49:48] Landowner appeals. We're going to do two
[49:51] examples. First example, code
[49:53] enforcement officer shows up. He
[49:54] testifies. He said, "Yep, I went out
[49:56] there. I measured week one, measured
[49:57] week two, hadn't been mowed. Still 2 in
[50:01] pro." Then that's evidence, right? We
[50:03] showed you evidence that the violation
[50:04] occurred. Different issue. Let's say
[50:07] town staff provides their staff report.
[50:10] We have this notice of violation. These
[50:12] are these are the allegations. Code
[50:14] enforcement officer gets sick. Can't
[50:16] show up. No evidence is presented. What
[50:19] do we have here? we don't have any
[50:20] evidence. So in that case, the town
[50:24] didn't meet their burden. All right.
[50:27] Now, let's say there's a conflict.
[50:30] There's two different sides of the story
[50:31] here. There's there's a more complicated
[50:33] ordinance. Um well, we'll stick with my
[50:35] grass mowing ordinance. Um let's say
[50:37] there's two sides. Uh town says, "I went
[50:41] out there every week. It was not mowed.
[50:42] I measured it. It's the same length.
[50:45] They violated it." So then town's giving
[50:47] you evidence to say, "Okay, violation."
[50:49] Well, let's say property owner gets an
[50:51] attorney or just shows up himself and
[50:53] says, "Hey, I'm gonna be honest with
[50:54] you. I cut my grass. His measurements
[50:56] are wrong. Here's my measurements. I
[50:58] went out there. I mowed it this day. I
[51:00] mowed it that day." Well, now you have
[51:01] an evidentiary dispute. So, you all as a
[51:04] board,
[51:06] what do we have here? We have
[51:08] substantial evidence saying he that
[51:10] there is a violation. You can determine
[51:13] whether or not there's substantial
[51:14] evidence to say the violation didn't
[51:16] occur. That's where you all come in. You
[51:18] are the deciders of what we call the
[51:20] deciders of fact. You say what the facts
[51:22] are based on the evidence you get
[51:24] presented. All right? And then you say
[51:26] what the evidence is too based on the
[51:28] objections you rule upon. So you resolve
[51:31] that dispute. But here's the caveat. It
[51:34] has to be supported by substantial
[51:37] competent evidence. So again, let's say
[51:41] the issue is speeding. It's a speeding
[51:43] ordinance. Um guy shows up and we have
[51:46] all our we have our officer here. He
[51:48] testifies, "Hey, I I did the radar 25
[51:51] miles an hour." That's standard. Some
[51:53] towns have it. He went 30. I used my
[51:56] radar. I was there. It did. It happened.
[52:00] Okay. Well, landowner shows up said, "I
[52:03] I was driving. I went 15. I didn't go
[52:06] 30. That didn't happen. I could tell you
[52:08] this right now." Well, sir, were you
[52:10] looking at your speedometer? No. I just
[52:11] know I was driving. Well, you know what?
[52:14] We agree with Mr. landowner. You know
[52:15] what? He wasn't going 30. Notice of
[52:18] violation denied. Really don't have any
[52:21] evidence to support that decision. You
[52:23] could choose to believe the land owner.
[52:24] Well, maybe that's a bad example because
[52:26] speeding at times you can. Anyways, it
[52:28] has to be supported by evidence is what
[52:30] I'm getting at. If there's the land the
[52:32] town proves its case and says, "Yep,
[52:34] there's a violation here." And the land
[52:35] owner doesn't show up, he just says,
[52:37] "Hey, I had a rough day, guys. I was
[52:39] speeding. Sorry. you know, please don't find me in violation and
[52:44] the board rules against him rules
[52:46] against the town. Well, he didn't rule
[52:47] on it based on any evidence. So, it has
[52:50] to be supported by substantial competent
[52:53] material evidence. Your decision?
[52:55] >> All right.
[52:55] >> Don't recommend speed.
[52:57] >> Yeah. Yeah. Don't recommend that at all.
[52:59] I don't know if we have a speeding
[53:00] ordinance. I just wanted to make sure I
[53:01] covered something. Trying to go outside
[53:03] the realm of what we have. Um Okay. Um
[53:06] there was one on the bottom here,
[53:07] manufactured home. I believe that's
[53:09] transitioned over to the uh board of
[53:12] commissioners. I believe those hear
[53:13] those now. Am I correct on that, Mr.
[53:15] Planning Director?
[53:16] >> Perfect. So that one is you can
[53:18] disregard that one. I was looking at the
[53:19] MUN code ordinance and I misinterpreted
[53:22] that. So that's on me. The planning
[53:24] director interpretation. That's one of
[53:26] your more common ones. Um, okay. Those
[53:30] are those are the interesting ones
[53:32] because now here we are non- lawyers
[53:35] sitting on a board asking to make a
[53:37] determination of what a legal ordinance
[53:39] says.
[53:42] Those are the tougher ones because you
[53:43] have to look at the language of the
[53:45] text. You have to make a determination.
[53:47] In North Carolina, we have a law that is
[53:49] if it's ambiguous and it can be
[53:52] reasonable to two interpretations, has
[53:54] to favor the land owner. That's the
[53:56] that's that's our job as the lawyers
[53:59] working for the towns. We have to write
[54:00] our ordinances in a way that are clear.
[54:02] Um and we'll help you more with that. If
[54:04] you have questions during those
[54:05] hearings, those are the tougher ones.
[54:07] You're not going to be an expert about
[54:09] it your first night. I've had far too
[54:12] many of those and I'm currently fighting
[54:14] one at the Court of Appeals. So, those
[54:16] are the fun ones, the interpretation
[54:17] cases. Um are there any questions about
[54:20] administrative decisions? We've covered
[54:21] a lot. Any questions at all? Any
[54:25] thoughts? Yes, sir.
[54:27] >> I saw your hand move.
[54:27] >> Oh, sure. U just and to kind of tie
[54:29] things together. So, um you know,
[54:32] different types of matters are going to
[54:33] be before you. So, that's what we've
[54:35] been chatting about. So, the same
[54:37] standing requirements that we talked
[54:39] about for variance
[54:41] >> are going to apply to administrative
[54:43] appeals. Well, standing is nothing more
[54:44] than who has a legal right to say
[54:46] something about this case. Well,
[54:47] obviously the parties. So, the town
[54:49] issued a violation for not cutting the
[54:51] grass.
[54:52] >> The person receiving the violation has
[54:54] standing. Um
[54:56] that's pretty straightforward. I don't
[54:58] know that you anybody else would have
[54:59] stand
[55:00] >> especially the speeding one. I mean who
[55:01] else is coming?
[55:03] >> I'm not gonna help anybody with
[55:04] speeding.
[55:04] >> Yeah. Um but uh for some of these um
[55:10] uh variance requests, you know, standing
[55:12] gets a little broader like we've talked
[55:14] about read administrative appeals um and
[55:17] certainly interpretations
[55:20] might have others might have stand most
[55:22] of your basic what I call your basic
[55:23] knock on wood here basic
[55:26] uh trash in the yard you didn't clean
[55:28] out your trash things of that nature I
[55:30] don't think there's be much challenge on
[55:31] standing who deserves to be here but
[55:33] those same, you know, applications, you
[55:36] know, apply or the same thought
[55:37] processes apply there. Um, and according
[55:40] to your UDO, um,
[55:43] the staff would make issue a notice of
[55:46] violation, you know, for not cutting
[55:47] grass or cleaning out the trash or
[55:48] whatever it may be. Um, they've got 30
[55:51] days from receiving that notice to file
[55:54] an appeal to this board. So, that goes
[55:56] to staff who will put that on the agenda
[55:58] for the next meeting and get those
[56:00] documents to you.
[56:02] And I want to cover something that I
[56:04] probably should have addressed earlier.
[56:05] So when you all hear all the evidence
[56:07] after you've heard the evidence, you're
[56:09] going to be asked to deliberate. It's
[56:11] tempting when you're new on a board to,
[56:13] you know, huddle together. Okay, let's
[56:14] talk about it. Everything you say in
[56:16] deliberations has to be into the
[56:18] microphones, has to be addressed to each
[56:20] other because what it looks like on
[56:21] appeal, let's say that landowner in our
[56:23] the cutting grass example did not didn't
[56:26] like the ruling you all gave him and he
[56:27] said, "I want to appeal this."
[56:30] every every appeal I've ever done and
[56:32] it's I think it's it's practice. Every
[56:34] appeal there's a transcript that's made
[56:37] and everything we say is labeled on that
[56:40] transcript. So, it's important to speak
[56:42] into the mic, speak clear, that way it's
[56:44] on the record. And so, that that that
[56:47] has to be done during deliberations.
[56:49] Um, and then going back to who can
[56:51] participate, it's tempting when you have
[56:53] some of these more controversial cases
[56:54] to want public input.
[56:56] You got to be careful. You got to make
[56:58] sure they have standing. It's It's
[57:00] tempting. It's hard. It's not
[57:01] comfortable because these are people in
[57:02] your community that you live next to in
[57:04] some cases that you see at the
[57:06] supermarket. It's not comfortable. But
[57:08] unfortunately, it protects you in the
[57:10] long run because what you can't have is
[57:12] a situation where the whole community
[57:14] provides evidence, but unfortunately
[57:16] they live five miles away and don't even
[57:18] know where this property is located.
[57:20] They just don't like the fact that
[57:22] Johnny doesn't cut his grass. That's it.
[57:24] So,
[57:25] >> right,
[57:26] >> you can't have a decision based off
[57:27] that. That's not competent evidence.
[57:29] Court would strike all of it and then
[57:31] you're left with, okay, what did they
[57:33] considered that was competent? We don't
[57:35] have anything
[57:36] >> correct. And and that's, you know,
[57:39] if if a decision of yours gets appealed
[57:41] to the court, all the court can look at
[57:43] is the record. Yep. The transcript of
[57:45] what was said. I mean, just like a court
[57:46] reporter in court, you know,
[57:47] >> doesn't take new evidence.
[57:48] >> That's the transcript. It doesn't review
[57:50] anything new. Um, so the court has to
[57:53] decide and the parties have to decide or
[57:56] have to argue what's in the record. So
[57:58] documents handed in, staff reports,
[58:00] testimony. Uh, and so whether it's a
[58:03] procedural issue that they're appealing
[58:06] about, well, um, going back to opinion
[58:08] testimony, the board allowed Johnny down
[58:10] the street to say, well, if y'all build
[58:12] this, it's going to flood my property.
[58:13] And you say, dag on Johnny, you're
[58:15] right. You know, denied. That's going to
[58:17] be a procedural problem. Um, but if it's
[58:21] supported and they and the court can
[58:22] look in the record and say, "Okay, well,
[58:23] they heard from X, Y, and Z, and the UDO
[58:27] says one, two, and three. They apply
[58:29] them together. I think the decision was
[58:32] within the intent and the the letter of
[58:34] the law, the UDO, the zoning code, and
[58:36] there's evidence back up the board's
[58:38] decision." So, um, keep that in mind.
[58:40] And that's another reason why, you know,
[58:42] if you deliberate, it's got to be on the
[58:44] record. There's no close session private
[58:45] deliberations.
[58:47] Um so uh because of that again goes back
[58:50] to this is a quasi judicial proceeding.
[58:53] There are certain due process rights
[58:54] that attach to these these litigants you
[58:57] know um and and to tie it into about
[59:00] opinion evidence. You know it's no
[59:02] different really than a civil case in
[59:04] court or criminal case in court. Um
[59:08] you know my background is not science.
[59:11] Um
[59:12] >> and I married somebody with an
[59:14] accounting degree so I didn't have to
[59:15] take calculus and all this accounting in
[59:16] life. I'll let her do all that. Um, so
[59:19] I'm not qualified to testify as a
[59:21] forensic accountant in court. Um, if I
[59:24] have been arrested for embezzlement
[59:25] because somebody says I was embezzling
[59:27] money, um, to put me away, my due
[59:30] process requires that person testifying
[59:33] saying yes and here's the evidence. Look
[59:35] at these accounting ledgers.
[59:37] >> They need to be an expert and deemed
[59:38] expert. Uh, just like, you know, think
[59:40] all the Hollywood trials, you know, OJ
[59:42] and all these other famous trials, blood
[59:43] evidence, all you know. um only experts
[59:47] can give opinions. Okay, so that's the basic way to think about it.
[59:52] You can come in through experts. So the
[59:55] neighbor might have standing to come and
[59:57] argue and they may maybe some some gray
[1:00:00] areas there. Um but somebody five miles
[1:00:04] down the road that just doesn't want any
[1:00:06] change in town come in and say, "Well,
[1:00:08] if you do this, you're going to increase
[1:00:10] traffic by this amount and all these
[1:00:12] things." um they are not qualified and
[1:00:14] admitted to give evidence about traffic
[1:00:16] patterns and traffic safety and those
[1:00:18] sort of things. So um generally speaking
[1:00:22] opinions must come through experts and
[1:00:24] that's really no different than civil
[1:00:26] court or criminal court. Um that's just
[1:00:28] a basis with but again goes back to
[1:00:31] being a quasi judicial it's got to be
[1:00:33] based on the evidence and direction.
[1:00:36] >> I have a yes sir.
[1:00:38] >> Procedurally it's a lot of turn
[1:00:41] as it relates to our role and how these
[1:00:44] things operate.
[1:00:46] Parties come in whoever has the burden
[1:00:49] of proof goes first.
[1:00:50] >> Yes sir.
[1:00:51] >> They offer an opening statement.
[1:00:53] >> Yep. Typically speaking, at that time,
[1:00:55] does the other party get an opportunity
[1:00:57] to the opening state?
[1:00:58] >> I've wrestled with that procedurally in
[1:01:01] every role I've worked on with the board
[1:01:02] of adjustment. My best because I've done
[1:01:05] it different ways.
[1:01:06] >> I've done it where the attorney may come
[1:01:08] in and say, "I've heard what the town
[1:01:10] has to say. I would like to give an
[1:01:12] opening statement." I've also had people
[1:01:14] come in and say, "Wait a minute. Nope. I
[1:01:16] would like to speak and give my opening
[1:01:17] when it's my turn to give evidence." My
[1:01:20] advice on that, offer it to the other
[1:01:22] side. And some may some may not even
[1:01:24] want to give openings. I've had towns
[1:01:26] that don't want to do it. They've said,
[1:01:28] "I'm going to call my first witness."
[1:01:30] So, my advice would be be open to it.
[1:01:32] How you how you're you're thinking about
[1:01:34] it. Opening then opening, but
[1:01:36] >> it's up to them.
[1:01:37] >> Yes, sir. Yes, sir.
[1:01:39] >> So, like some something the effect of
[1:01:40] you have the option of giving an
[1:01:41] opening. Would you like to take that
[1:01:42] now?
[1:01:43] >> Yes, sir. Because some boards don't even
[1:01:45] do openings at all. um my practice
[1:01:48] because I've always I've had the
[1:01:49] situations where when I first started I
[1:01:51] didn't and then I had attorneys would
[1:01:53] come and say hey where do I fit in here
[1:01:55] I want to give my opening and so I I
[1:01:57] always try to start with that but it's
[1:02:00] not necessary if they don't want to
[1:02:02] >> all right so just bear with me here
[1:02:04] [clears throat]
[1:02:04] >> please I apologize for taking your time
[1:02:07] but
[1:02:08] >> the the party moving with the burden of
[1:02:12] proof calls the first witness
[1:02:14] >> they're on direct they're asking asking
[1:02:16] all the questions.
[1:02:18] Somebody [clears throat] ar, you know,
[1:02:19] argues that, you know, objection leading
[1:02:21] and that's something that we can rule
[1:02:22] on, right?
[1:02:23] >> Oh, thank you for asking that. All
[1:02:25] right. I'm an evidence nerd. So, I
[1:02:27] shouldn't admit that on public record.
[1:02:28] Um, but so under the statutes,
[1:02:33] you're not bound by the rules of
[1:02:34] evidence. You might have been a lawyer.
[1:02:36] Under the statutes, you're not lawyers.
[1:02:39] You're lay people. So, the statutes give
[1:02:41] us flexibility to say it happens. Not
[1:02:44] all of us are experts here in the legal
[1:02:45] field. You're not wa
[1:02:47] >> you're not bound by the rules of
[1:02:49] evidence. However,
[1:02:51] um there is a standard one, if an
[1:02:55] objections made, then you have the
[1:02:58] ability to one apply the rules. That's
[1:03:01] where your knowledge is and you want to
[1:03:02] apply it strictly. Or you can say, you
[1:03:04] know, this is a quasi judicial quasi
[1:03:07] judicial hearing. What they're
[1:03:09] testifying to is competent. Competence
[1:03:11] is the only buzzword where you have to
[1:03:13] make a ruling and it has to be in line
[1:03:16] with where the law is, right? But if
[1:03:18] someone's leading, I've seen attorneys
[1:03:20] do it both ways. My practice is we're
[1:03:22] dealing with two if we're dealing with
[1:03:24] lay people who and there's an attorney
[1:03:25] on the other side that's just objection
[1:03:27] leading council. This is a quasi
[1:03:29] judicial decision the rules of evidence
[1:03:32] so long as due process is followed. And
[1:03:34] the big buzzword for um the statute is
[1:03:38] when for due process, does the other
[1:03:39] side have an opportunity to
[1:03:41] cross-examine that person on that issue.
[1:03:43] Let's say someone walks in here and
[1:03:44] says, "You know what? I heard Steve say
[1:03:47] he's going to build a 500 floor
[1:03:50] building." I know that's a crazy thing
[1:03:51] to say out loud. Well, objection
[1:03:53] hearsay. Well, okay. Yeah, that is
[1:03:58] hearsay. Let's say you were like, you
[1:04:00] know what? Wait a minute. Let's see
[1:04:01] where this goes. Let's see where this
[1:04:03] goes. I want to see where in the world
[1:04:04] they receive this knowledge that Steve
[1:04:07] said he's going to build a 500 foot
[1:04:08] building. Well, that person has the
[1:04:10] opportunity to cross-examine them on
[1:04:11] that very topic. So, my recommendation,
[1:04:14] if you want to go by the book, I'll
[1:04:16] always be pleased with you, always be
[1:04:17] happy with the if the rules of evidence
[1:04:18] are followed. But if you're if you sit
[1:04:20] back and say, I'm not really going to
[1:04:21] enforce leading questions here because
[1:04:23] we're not not this guy didn't go to law
[1:04:25] school. Let's let him have his way here
[1:04:27] and like question them. That's fine as
[1:04:31] long as due process is preserved. In
[1:04:33] other words, they had an opportunity to
[1:04:34] cross-examine. We're good here. But you
[1:04:37] do run into issues where
[1:04:39] same scenario. I heard Steve say he
[1:04:42] wants to build a 500t building. Well,
[1:04:44] the board hears that and says, "Well,
[1:04:45] then I don't want to approve this
[1:04:47] project." Well, Steve never showed up.
[1:04:50] Steve never said that. It was a
[1:04:52] competency. Was it reasonable for you to
[1:04:54] rely upon that information? It was
[1:04:55] solely hearsay. Not really. Steve never
[1:04:58] showed up and told you that. You just
[1:04:59] heard someone say that he said that. So,
[1:05:02] even if the evidence got brought in,
[1:05:04] there's a chance the court could reverse
[1:05:06] it and say that wasn't competent because
[1:05:08] why in the world would you believe
[1:05:09] something someone said is the only
[1:05:10] reason you denied the project. Um, so
[1:05:14] yes, the rules of evidence are flexible
[1:05:16] and I can get you a statute on point
[1:05:18] with it. Um, because I found that to be
[1:05:20] helpful with some of my other boards.
[1:05:21] Um, I will not be mad at you if you go
[1:05:24] buy them to the tea though. That's my
[1:05:26] Any further questions about that?
[1:05:30] I I don't do
[1:05:32] >> I have another mechanical sir question.
[1:05:36] >> When we get an an application
[1:05:40] uh from you John um it's for
[1:05:45] a violation of an ordinance usually and
[1:05:48] um will you provide um a copy of that
[1:05:54] the appropriate section of the
[1:05:56] ordinance?
[1:05:57] >> Yes.
[1:05:58] >> Okay. With with us so we know what
[1:06:01] >> absolutely y
[1:06:02] >> yeah okay I'll put
[1:06:03] >> I'll put all the information that's
[1:06:04] needed so you guys can
[1:06:05] >> Okay thank you
[1:06:06] >> I have a question well you mentioned
[1:06:08] that there's no private uh conversation
[1:06:11] up here during this hearing
[1:06:14] >> so when we get the notice of hearing
[1:06:17] let's say there's some um the ordinance
[1:06:19] comes in and we know what we're going to
[1:06:20] be hearing
[1:06:21] >> two of us running each other down at the
[1:06:23] food line and while we're picking out
[1:06:24] our barbecue sauce we have a
[1:06:26] conversation about it any problem with
[1:06:28] that private conversation. Any any
[1:06:30] problem with that?
[1:06:31] >> My my best advice in that situation?
[1:06:33] Just say it on the record. I we we I saw Scott at the supermarket. We
[1:06:38] talked about it. We didn't go in depth.
[1:06:40] We just said, "We have an ordinance
[1:06:41] hearing. It's it's on Tuesday. It's on
[1:06:43] this topic. I think I can be impartial.
[1:06:45] Applicant, what do you think?" And most
[1:06:48] of the time, the applicant will either
[1:06:50] say, you know, it'll be difficult. And
[1:06:52] we'll say, "Well, I want I want to I
[1:06:54] want to continue answer. I want them
[1:06:55] recused." Well, they've said they can be
[1:06:57] impartial. They just said that they had
[1:06:59] a they being Scott and Mark just talked
[1:07:01] to the supermarket and said, "We have a
[1:07:03] hearing next week." They didn't say
[1:07:05] >> that. No private conversation applies to
[1:07:07] in and outside of this room.
[1:07:09] >> Yes, sir. Okay.
[1:07:10] >> Just Just like with judges on the bench,
[1:07:12] I can't can't talk to them at
[1:07:13] supermarket either, unfortunately.
[1:07:16] >> Funny.
[1:07:18] >> The the one easy practice is other than
[1:07:21] saying, "Hey, hey, Mark and Mark, all
[1:07:24] the marks." Uh uh looks like we got a
[1:07:27] doozy next week at the meeting. I'll see
[1:07:28] you then.
[1:07:29] >> Yeah, that's not our expert.
[1:07:31] >> No problem because you're not really
[1:07:32] talking about did you see Johnny Smith's
[1:07:34] application is up here and you remember
[1:07:36] X Y and Z 500 foot tall building.
[1:07:39] >> Yeah. Yeah. Years ago my grandfather
[1:07:42] tried to do the same thing and the town
[1:07:43] said no. So here's pay it.
[1:07:44] >> Yep.
[1:07:44] >> No, that that that's when you start
[1:07:46] talking about the merits or the facts
[1:07:48] involving it, that's when we have we
[1:07:50] have issues.
[1:07:51] >> Okay. Um, and to me that that sometimes
[1:07:54] could be low hanging fruit for a party
[1:07:56] that's unhappy to say, my basis for
[1:07:58] appeal. I didn't get due process. They
[1:07:59] were talking about this outside.
[1:08:01] >> And that's a good point. So the court
[1:08:02] doesn't take in new evidence, but there
[1:08:04] is an exception in the law. There's a
[1:08:06] doubt as to whether or not due process
[1:08:08] was followed,
[1:08:10] then you have an opportunity to take in
[1:08:12] new evidence. For example, someone if
[1:08:14] you ran into, let's say Scott and Mark
[1:08:16] were talking at the supermarket, they
[1:08:17] were talking about John Smith's
[1:08:19] application. Yeah, man. I drove by his
[1:08:20] house. He never cuts his grass. It's so
[1:08:22] it's 5t in the air. Can't even see his
[1:08:25] home. And then Sally over here hears it.
[1:08:27] She goes, "Wait a minute. I hear this."
[1:08:30] And for some reason, John's turn John's
[1:08:32] attorneys run into Sally. Hey, John. I
[1:08:34] just want you to know I heard Scott and
[1:08:36] Mark talking about your five foot um you
[1:08:38] know, lawn outside. You know how you
[1:08:40] haven't cut it. Don't you have a hearing
[1:08:41] on that next week? Yes, I do. You all
[1:08:43] deny the application. Well, now the
[1:08:45] lawyer for John submits an affidavit on
[1:08:48] appeal and says, "Hey, Sally Sue here
[1:08:50] says she overheard Mark and Scott
[1:08:52] talking at the supermarket." Court's
[1:08:53] going to consider that and say, "Oh,
[1:08:55] wow. They really didn't have due process
[1:08:57] here. Send it back." And usually the
[1:09:00] remedy is you get to hear it again. And
[1:09:03] that's the [laughter]
[1:09:04] that's usually what I tell my boards.
[1:09:06] Let's make sure due process is because
[1:09:08] one of the remedies is you got to hear
[1:09:09] from the same people again. So, let's
[1:09:11] get it right the first time. um
[1:09:13] >> max and inefficiency.
[1:09:15] >> Yes. Any more questions about that? Yes,
[1:09:18] sir. Mr. Chair, [clears throat]
[1:09:20] >> I have another just just trying to
[1:09:22] conceptualize what a hearing would look
[1:09:24] like.
[1:09:24] >> Yeah.
[1:09:25] >> So, direct goes on, they finish their
[1:09:28] direct, you know, maybe there'll be some
[1:09:32] objections, they're ruled upon, and the
[1:09:33] other side gets the cross-examination,
[1:09:35] right?
[1:09:36] >> Sure.
[1:09:36] >> And then [clears throat]
[1:09:37] redirects are allowed.
[1:09:38] >> Sure. If if you say so. And that and
[1:09:40] that that's it. You know, I always
[1:09:42] recommend do it. Hey, you got any
[1:09:43] further questions?
[1:09:44] >> Or recross or whatever.
[1:09:46] >> And it's one of those situations where
[1:09:47] you're sitting back as the chair saying,
[1:09:49] "Ah, they've gone back and forth three
[1:09:51] times. I don't want to hear this again."
[1:09:53] >> Any any further questions? Anybody? All
[1:09:54] right. Cool. And and I know, but again,
[1:09:56] that kind of steps out of our our
[1:09:58] structure of direct, cross, recross,
[1:10:01] redirect. It it kind of steps you out of
[1:10:02] that a little bit, but because your goal
[1:10:04] is like talking about the due process
[1:10:06] aspect, making sure that's maximized. it
[1:10:09] gets really complicated where you have a
[1:10:11] case. I'm going to add another element
[1:10:12] to your procedure because I like where
[1:10:14] this is going. Um, let's say you have
[1:10:16] someone who has a application for a new
[1:10:21] neighborhood
[1:10:23] and a couple of the residents
[1:10:25] established standing.
[1:10:27] Well, now it's not direct cross one
[1:10:32] cross two or excuse me, it's not direct
[1:10:34] cross. It's direct cross. Anybody with
[1:10:37] standing want to cross-examine. So you
[1:10:40] have multiple lawyers and/or parties
[1:10:41] cross-examining. If they establish
[1:10:43] standing, they're entitled to
[1:10:44] participate. I had one hearing where we
[1:10:46] had three lawyers cross-examining one
[1:10:48] witness. And it was a lot, but they had
[1:10:50] their time. And um then you have your
[1:10:53] redirects like you're going through um
[1:10:56] essentially um sorry, does everyone know
[1:10:59] kind of what that procedurally looks
[1:11:00] like? Direct, cross, recross. Does
[1:11:02] everyone know what that means? So direct
[1:11:04] examination, the person who called the
[1:11:06] witness is asking their witness
[1:11:07] questions. Cross-examination, that's
[1:11:10] where the people who are opposing that
[1:11:12] party is adverse to that witness gets to
[1:11:15] ask questions. Redirect person who
[1:11:17] called the witness essentially tries to
[1:11:19] clean up everything that their witness
[1:11:21] said in cross-examination.
[1:11:23] Recross [clears throat]
[1:11:24] person who's adverse gets to ask them
[1:11:27] additional questions to try to get some
[1:11:29] more evidence on in that case. Yes, sir.
[1:11:32] Hypothetically,
[1:11:33] >> please.
[1:11:34] >> There's four people that alleged to have
[1:11:36] standing. They want to cross-examinate.
[1:11:38] >> Did you find them to have standing? Is
[1:11:40] the point.
[1:11:40] >> When does that happen?
[1:11:41] >> All right. That's a great point. So, you
[1:11:44] have to establish standing to
[1:11:46] participate. John can't walk off this
[1:11:48] walk into the town hall and say, "Hey, I
[1:11:50] have standing. I'm here. I'm
[1:11:52] participating. Here's my lawyer."
[1:11:54] >> You can't do that.
[1:11:54] >> Can't come out two witnesses deep. So
[1:11:56] the way I ask my boards to do that is
[1:11:58] when they first speak, sir, please
[1:12:02] provide your standing, not your
[1:12:04] standing, please tell us a little bit
[1:12:06] why you're you believe you have standing
[1:12:07] to participate. Well, you know, I live
[1:12:09] next door. Um, I think my property
[1:12:12] values are going to go down because I'm
[1:12:14] right next door. I want to participate.
[1:12:16] Okay. Well, let's say Steve runs in with
[1:12:18] his lawyer because lawyers are going to
[1:12:20] try to jump in. They're going to they
[1:12:22] got standard or not, they're going to
[1:12:23] try to be there. That's right. So lawy
[1:12:25] Steve comes in with his lawyer and he
[1:12:26] says, "Hey, here's my my lawyer. I live
[1:12:30] five miles down the road. I think my
[1:12:32] property values are going to go down. I
[1:12:34] think that, you know, this is hidous to
[1:12:35] me." Wait a minute, Steve. Live five
[1:12:37] miles down the road. Why is your
[1:12:38] property values going to go down? Well,
[1:12:40] I brought a lawyer. Well, hey, you don't
[1:12:42] have standing. Sorry, Mr. Lawyer. Thanks
[1:12:44] for making the drive. Um, but that's
[1:12:46] kind of where it is from the beginning,
[1:12:48] right?
[1:12:48] >> Who rules on the like whether or not
[1:12:50] they have standing?
[1:12:51] >> You do.
[1:12:52] >> I do.
[1:12:53] >> You do. And it's appealable to the
[1:12:55] board.
[1:12:55] >> Is it something that we could rule on as
[1:12:58] a board or is it just me?
[1:13:00] >> Start with that's a starts with you.
[1:13:04] >> Starts with you.
[1:13:04] >> They can appeal that to the board.
[1:13:06] >> Okay. So, it's that whole thing.
[1:13:07] >> Yes, sir.
[1:13:08] >> All right.
[1:13:08] >> Yes, sir. And that's the one exception
[1:13:11] to Okay, let's say back to our John
[1:13:13] example. John's upset about y'all. Y'all
[1:13:15] denied. No, let's go back.
[1:13:19] Steve ran in with his lawyer. Y'all said
[1:13:21] he didn't have Excuse me. The board said
[1:13:22] he didn't have standing. Well, now it
[1:13:24] gets appealed to superior court. John's
[1:13:26] appealed it. Town's there. Party is
[1:13:28] perfect. Well, Steve's mad that he
[1:13:29] didn't get to participate. Steve can try
[1:13:32] to establish standing again. He can try
[1:13:35] to intervene.
[1:13:36] But on the other side, and this doesn't
[1:13:38] really apply to you all. Let's say you
[1:13:39] find someone has standing. Well, it gets
[1:13:42] appealed. Let's say y'all say Steve does
[1:13:44] have standing. Well, it gets appealed to
[1:13:46] superior court. The other side can
[1:13:48] attack whether or not he had standing to
[1:13:50] begin with. So even if we get it wrong,
[1:13:52] there's a second bite at the apple. My
[1:13:54] advice, get right the first time because
[1:13:56] it makes your night a lot easier. If
[1:13:58] you're if you don't believe someone has
[1:13:59] standing and they don't establish it,
[1:14:02] it's the less lawyers you have or you
[1:14:04] less people participating.
[1:14:05] >> But but if Eric's put on the spot like
[1:14:07] that, he can just look over at you and
[1:14:09] say,
[1:14:09] >> "What do you think?
[1:14:10] >> What do you think?"
[1:14:10] >> And I'll say, "Hey, you know, at this
[1:14:12] point, I think that I've heard testimony
[1:14:14] from Mr. Ste from Steve and Steve said,
[1:14:16] you know, I live five miles down the
[1:14:18] road. Mr. care. I don't think that's in
[1:14:19] the immediate vicinity. He doesn't
[1:14:21] really talk about how he would special
[1:14:23] have special damages. At this point, my
[1:14:25] recommendation would be to conclude I
[1:14:27] don't think he's established standing.
[1:14:29] Still your call though. Always want to
[1:14:31] leave it in your court because you could
[1:14:32] say, you know what, Clay or Mr. Davis, I
[1:14:34] think that I think he did establish
[1:14:37] standing. I disagree with your opinion.
[1:14:38] Totally fine. And as a matter of of
[1:14:41] procedure and practice, usually when you know you reach an agenda item
[1:14:44] that's variance or something, the
[1:14:46] parties come up, I think that's when you
[1:14:48] Yes. address it at the beginning is
[1:14:50] >> okay, who was here for item number
[1:14:53] seven, this variance application. Yeah.
[1:14:54] >> Uh, you know, town staff would speak up.
[1:14:57] The applicant and or their attorney um
[1:14:59] would speak up and you can usually open
[1:15:01] the floor to say um is anybody else who would like to speak on the matter
[1:15:07] wishes to speak on this matter? You
[1:15:10] know, obviously those two parties are
[1:15:11] going to have standing. Anybody else
[1:15:12] comes forward? Okay, tell me your name.
[1:15:15] Who are you? Where do you live?
[1:15:16] >> Where do you live? All that kind of
[1:15:18] stuff to kind of go through that quick
[1:15:19] checklist of what gives them standing
[1:15:22] here, and then you can make that
[1:15:25] determination before you start putting
[1:15:27] on witnesses.
[1:15:28] >> They have to be sworn in.
[1:15:29] >> Yes, sir. Thank you. You read my mind.
[1:15:31] You'll swear them in at the beginning.
[1:15:33] >> And I would just invite anyone who is
[1:15:36] going to be providing testimony, please
[1:15:37] come forward. You need to be sworn in.
[1:15:39] >> Who swears in?
[1:15:41] That's a good point because the clerk
[1:15:43] usually does it. I would advise
[1:15:46] honestly I think you would give No,
[1:15:47] because you would be testifying. Um
[1:15:49] >> maybe the secretary to the board.
[1:15:51] >> Yeah. Secretary of the board since the
[1:15:52] clerk. Yeah. Good point.
[1:15:53] >> Yeah. So
[1:15:53] >> we can check the procedure on that.
[1:15:54] That's a good point. Yeah. Who can
[1:15:56] administer that?
[1:15:57] >> It has to be. Yeah.
[1:15:58] >> Yeah. Last year happened to be the town
[1:16:00] clerk too. So that was easy
[1:16:01] >> because I think technically the chair
[1:16:02] could also swear, can't they?
[1:16:04] >> The chair can swear.
[1:16:05] >> Yeah. Because they're presiding. Yeah.
[1:16:06] So you could chair could technically do
[1:16:07] it. I know. Sorry you got sorry you got
[1:16:09] elected.
[1:16:11] You shouldn't shouldn't have lied when I
[1:16:12] thought I was a judge.
[1:16:14] >> Eric, we appreciate you, brother.
[1:16:16] >> Andy had a question for us.
[1:16:17] >> Yes, sir. Someone else had a question.
[1:16:19] >> I have a question for you. When uh
[1:16:21] obviously when you're talking about
[1:16:22] somebody being 5 miles away from the
[1:16:24] incident?
[1:16:25] >> Yes, sir.
[1:16:26] >> Reasonable that they're not involved in
[1:16:28] this.
[1:16:29] >> Yes, sir.
[1:16:29] >> But in the environment that we work in
[1:16:32] here, you know, you live on X Street and
[1:16:36] you're going to do something across the
[1:16:37] street from me. Obviously, I'm I have
[1:16:40] standing because you're right across the
[1:16:41] street. Your two neighbors have How far
[1:16:44] does that go within reason?
[1:16:46] >> So, there's a famous case out of Raleigh
[1:16:48] where someone was able to establish
[1:16:50] standing I think like two miles away
[1:16:52] because they could show storm water
[1:16:54] impacts. It it um the business was going
[1:16:57] to be built and then it was just going
[1:16:59] to flood this this amount of homes and
[1:17:02] the ditches there couldn't handle it. So
[1:17:04] then they had evidence to show that or
[1:17:06] they established standing even though
[1:17:07] they were two miles away. They were
[1:17:08] showing this development was going to
[1:17:09] have a downstream effect that was going
[1:17:11] to flood my property. So it really
[1:17:12] depends on why they're five miles away
[1:17:14] and saying they have stand.
[1:17:15] >> It's a case of uh you know my deck's 20
[1:17:18] years old and I need to demolish it and
[1:17:20] rebuild it. Well, the code they passed
[1:17:22] two years ago now if I rebuild it as is
[1:17:26] now I'm violating some setbacks or
[1:17:27] something. I live five miles away. I
[1:17:29] want to speak on that. That's not
[1:17:31] >> I don't want that type of deck in my
[1:17:32] neighborhood. Yeah. can't can't have it.
[1:17:34] >> That's a waste of time. And they may
[1:17:35] say, "Well, I got it done five years ago
[1:17:37] or they denied me five years ago. I want
[1:17:38] to be here." They really don't have
[1:17:40] standing living miles away on a
[1:17:42] >> That's another instance. You You may
[1:17:44] have people that will say, "Well, I
[1:17:45] applied for a variance four years ago
[1:17:47] and y'all denied it. I want to make sure
[1:17:49] this person gets denied, too, because I
[1:17:51] want to make sure it's
[1:17:52] >> your predecessors denied."
[1:17:53] >> Well, that's that's not that's not
[1:17:56] standing, sir.
[1:17:57] >> Not standing.
[1:17:58] >> Do you have any more on that? Any more
[1:17:59] questions?
[1:18:00] >> I guess it be it varies from case to
[1:18:02] case. It definitely is.
[1:18:04] >> Yeah. I mean, when you talk about five
[1:18:05] miles away, unless they can actually
[1:18:08] prove it, but I mean, we're we're going
[1:18:10] to deal with I live on X Street and the
[1:18:13] neighbors, you know, how far away is
[1:18:16] reasonable and then it's a judgmental
[1:18:18] call on our part whether or not there'll
[1:18:20] be because in like like you have those
[1:18:22] cluster communities are very cluster
[1:18:24] developed. They were developed in
[1:18:25] clusters. So then you have the situation
[1:18:27] where well they that might actually
[1:18:28] affect my property value. Yeah. I'm very
[1:18:31] in close proximity. I'm not adjacent,
[1:18:33] but I'm there's an alley between me and
[1:18:35] that house and maybe it would affect the
[1:18:37] property value. That's something that
[1:18:39] you all can consider.
[1:18:40] >> And to state the obvious, we're on an
[1:18:42] island.
[1:18:42] >> Yes.
[1:18:43] >> We're not annexing new land anytime soon
[1:18:45] or anything like that.
[1:18:46] >> Straight straight right away that we all
[1:18:47] share.
[1:18:48] >> Things are going to be, you know,
[1:18:50] >> Yeah.
[1:18:50] >> issues that are going to come up. How
[1:18:52] close how far is far enough away in a
[1:18:55] smaller city?
[1:18:55] >> Yep. Very good questions.
[1:18:58] >> Anything further on? Oh, yes, sir.
[1:19:01] >> You good?
[1:19:02] >> Yes, sir. Mr. Chair,
[1:19:03] >> um, sorry to monopolize, but
[1:19:06] >> please,
[1:19:07] >> when they're the the litigants are done,
[1:19:11] are is the is the board allowed to ask
[1:19:14] questions of any of the witnesses?
[1:19:15] >> Yes, sir. I recommend you do that. I
[1:19:18] recommend you go applicant direct
[1:19:21] cross-examination
[1:19:23] after the parties get done with their
[1:19:24] question. Does anyone from the board
[1:19:26] have questions?
[1:19:28] That's that's when you all would chime
[1:19:29] in and you all would say, "Mr. Chair, my
[1:19:31] best way to recommend it. Does anyone
[1:19:33] from the board have questions?" You can
[1:19:34] either go in order or you can just say,
[1:19:36] "Does anyone from the board have
[1:19:38] questions?" And go from there. However
[1:19:40] you want to do it. If you want to make
[1:19:41] it structured, I've seen both ways.
[1:19:43] >> Yes, sir.
[1:19:43] >> Now, only those five can can
[1:19:47] question. We we just have to sit here.
[1:19:49] Correct.
[1:19:49] >> That is the tough part. Yes, sir.
[1:19:51] >> Yes, sir. pass notes.
[1:19:52] >> Yep. [laughter]
[1:19:54] >> Text me, bro.
[1:19:56] >> I don't I don't know about that text and
[1:19:58] I didn't see that note. If anyone asks,
[1:19:59] >> we don't need that.
[1:20:00] >> Anyone ask
[1:20:00] >> and and to piggyback on some some of the
[1:20:02] other statements as well
[1:20:03] >> about due process and and you know
[1:20:06] expert and who gets standing to hear. It
[1:20:09] is a little bit of a balancing act
[1:20:10] because um it is quasi judicial. So you
[1:20:15] know there is case law that says rules
[1:20:16] of civil procedure and evidence don't
[1:20:18] apply strictly.
[1:20:20] But then there's also required statutory
[1:20:22] law that says you know experts you know
[1:20:25] opinions experts on certain topics of
[1:20:27] these things. Uh
[1:20:30] and through the example of you know
[1:20:32] maybe one side's here without an
[1:20:33] attorney and an attorney's on the other
[1:20:34] side just kind of badgering here
[1:20:37] objection objection just trying to shut
[1:20:39] them down. Well,
[1:20:41] are they going to feel feel as if
[1:20:43] they're getting due process or are they
[1:20:44] going to get due process because they
[1:20:46] don't know the rules of evidence about
[1:20:48] leading questions and these sorts of
[1:20:49] things or or is due process going to be
[1:20:51] better served by saying I hear them. I
[1:20:54] hear your objections, but let's let them
[1:20:56] speak and try to get some questions out.
[1:20:58] You know, that sort of thing. So, um
[1:21:00] that's where some of that balance may be
[1:21:03] struck on some of these evidentiary
[1:21:04] issues. Um I think if you and every case
[1:21:08] is different, facts are different. Every
[1:21:10] judge hearing and appeal is going to be
[1:21:11] different, but um with due process in
[1:21:15] mind, you know, especially with prosay
[1:21:16] folk spoke with an attorney. Um
[1:21:20] it's nice to clear the judicial due
[1:21:22] process hurdles if they got a chance to
[1:21:25] speak. If you had a lawyer on the other
[1:21:27] side that was shutting them down because
[1:21:28] technically they violated some hearsay
[1:21:31] objections and different stuff or
[1:21:32] whatever. And in a court of law,
[1:21:34] absolutely we could shut them down and
[1:21:36] they could really never get a question
[1:21:37] out. But if that happens here,
[1:21:40] >> I think the the option for them to say,
[1:21:42] "Is that really due process?"
[1:21:44] >> Um, I didn't get a chance to speak.
[1:21:46] >> I think that would be maybe an inro for
[1:21:48] a judge to say, "Y'all do that again."
[1:21:51] >> I've seen a board overturn um or I've
[1:21:54] seen a court overturn a board's decision
[1:21:55] for that reason. They said, you know,
[1:21:57] the person showed up and they they
[1:21:59] didn't they didn't have a chance to
[1:22:00] present evidence because the lawyer on
[1:22:01] the other side just kept objecting. I
[1:22:02] was not that lawyer. But um um my my
[1:22:05] advice is the lawyer is not there.
[1:22:09] Would that person be able to present
[1:22:11] their evidence? Because lawyers aren't
[1:22:12] mandatory in quasi judicial unless
[1:22:15] they're and unless uh they have a
[1:22:17] representative right. [clears throat]
[1:22:18] Okay, that's another issue we'll talk
[1:22:20] about, but we'll get to that. Um lawyers
[1:22:22] aren't necessary. Lay people can show
[1:22:24] up. Non- lawyers could show up and give
[1:22:26] their case. Um, and that should I always
[1:22:29] like keep that in mind when I'm advising
[1:22:31] board saying, "Hey, this person, like
[1:22:34] Tim said, they're objecting to
[1:22:36] everything. I don't care if they're
[1:22:37] leading. I just want them to have a
[1:22:38] conversation with me as a board member.
[1:22:41] I want to hear their evidence. And if it
[1:22:43] gets too far off, chair can step in."
[1:22:46] Right? If they're talking about if if
[1:22:47] Steve's talking about um this other
[1:22:50] person's grass across the street, saying
[1:22:52] it's 10 feet tall, why aren't y'all
[1:22:54] punishing him? Well, Steve,
[1:22:57] We're here about you tonight. Let's
[1:22:58] stick stick within the purview here. I
[1:23:00] as the lawyer on the other side might
[1:23:01] not be objecting because I also have a
[1:23:03] rule of boards are going to hear on
[1:23:05] illrelevant information. I'm not going
[1:23:06] to take your time up with object. I'm
[1:23:08] going to object once and let you decide
[1:23:09] what you want to hear. Some lawyers
[1:23:11] might do that, too. So, as the chair,
[1:23:13] you have that option to say, you know,
[1:23:14] hey, we're kind of out of order here.
[1:23:16] So, keep that in mind as well. Um, is
[1:23:19] there Oh, yeah. I may gave a caveat
[1:23:21] earlier about lawyers.
[1:23:24] This happens a lot. John owns a
[1:23:27] business. John has a friend helping him
[1:23:29] design his plans for the business. John
[1:23:32] sends his friend who's denying or
[1:23:34] designing the plans to apply for a
[1:23:35] variance.
[1:23:37] He gets to he comes up there and he
[1:23:39] calls witnesses. He starts providing
[1:23:42] testimony. He can testify, but you can't
[1:23:45] have non- lawyers serving as lawyers. In
[1:23:48] other words, if you have an engineer
[1:23:50] that shows up and he starts calling
[1:23:52] other people, other witnesses that show
[1:23:54] up, that's not allowed. That's the pract
[1:23:57] quasi judicial decisions are the
[1:23:59] practice of law. Reasonzonings are
[1:24:01] different. You will see that at city
[1:24:03] council or excuse me, town council. You
[1:24:05] will see non- lawyers. That's
[1:24:07] legislative.
[1:24:08] That's where they're not take they're
[1:24:10] taking in input, but all you need as a
[1:24:14] council is a plausible basis to make
[1:24:16] your legislative decision. You're not
[1:24:17] making it off of an evidentiary standard
[1:24:20] like you all are. Y'all are taking in
[1:24:21] evidence. So a non-awyer can't come and
[1:24:24] present evidence and present witnesses
[1:24:26] unless they're the applicant. I can
[1:24:28] represent myself in court. I can
[1:24:29] represent myself in front of quasi
[1:24:31] judicial board. What I can't do is have
[1:24:34] Steve, my engineer, come and lead my
[1:24:36] whole case. And that gets tough. The
[1:24:39] rule on that is I as your attorney have
[1:24:42] to inform you of that. I have to tell
[1:24:43] you at this time there's an individual
[1:24:46] who is not a lawyer. You're not a lawyer
[1:24:48] sir or ma'am. Nope. Okay. Technically he
[1:24:51] cannot represent this person. I have to
[1:24:53] inform you of that ethically.
[1:24:56] Then you then Mr. Chair, you all make
[1:24:58] the call. You make the call as to
[1:25:00] whether you're not going to allow them
[1:25:00] to proceed. The rule is I just can't I
[1:25:04] can't help facilitate the unlawful
[1:25:05] practice of law. If you all say, you
[1:25:08] know what, we're going to let them
[1:25:08] proceed and I've done my ethical duty. I
[1:25:11] don't recommend it. But that's all the
[1:25:12] opinion tells me to do. So no non-
[1:25:15] lawyers come and represent other people.
[1:25:17] It's my recommendation. Businesses get
[1:25:19] tricky.
[1:25:20] >> I was going to say you want to address
[1:25:21] Yep.
[1:25:21] >> Corporations and LLC's.
[1:25:22] >> Corporations get tricky because you have
[1:25:24] the shareholder that comes.
[1:25:27] Cases are unclear about that. You can't be a non-awyer
[1:25:31] in court and represent a business in
[1:25:33] district court or superior court. Can't
[1:25:35] do it. Correct. But then you fall into
[1:25:37] the argument of I'm the property owner.
[1:25:39] I'm the manager of Steve Smith LLC. I'm
[1:25:42] Steve Smith. That's me. You know, should
[1:25:45] I be able to provide my evidence? Still
[1:25:47] looking into that issue. I haven't had
[1:25:49] it come up yet, but I'm still I still
[1:25:51] don't have a definitive answer. My
[1:25:52] knee-jerk reaction is to tell you no
[1:25:55] because that's it's not good for an
[1:25:57] individual to be represented by someone
[1:25:58] else.
[1:25:59] >> You look at corporations as people.
[1:26:02] >> So, that that'll be we'll probably have
[1:26:04] that conversation in the future if it
[1:26:06] ever comes up. I don't have a direct
[1:26:07] answer.
[1:26:07] >> And the reason why At least in district
[1:26:10] and superior courts, a corporation or
[1:26:12] LLC cannot appear but through a lawyer
[1:26:15] is because court doesn't know what the
[1:26:18] bylaws are of this company. They don't
[1:26:20] know I'm John Smith. Here's my business
[1:26:22] card on the president of John Smith
[1:26:24] Incorporated. That's great, but you
[1:26:27] know, if you're not a majority
[1:26:28] shareholder, can you make decisions on
[1:26:29] behalf of this company? Um,
[1:26:32] your bylaws say you need this many votes
[1:26:34] or shares voted to make that. So,
[1:26:37] >> the reason why uh in civil and criminal
[1:26:40] courts they criminal but more civil
[1:26:42] courts they require an attorney is
[1:26:44] because the attorney's job is to sort
[1:26:46] that out and then take that company's
[1:26:49] position to court. So the the danger
[1:26:52] here would be uh I'm John Smith. I'm the
[1:26:54] president of John Smith Incorporated.
[1:26:55] I'm here for this application and we
[1:26:57] proceed. Uh and what we didn't know was
[1:27:00] that his soon to be ex-wife is vice
[1:27:02] president and some other divorce decree
[1:27:04] she's going to get 80% of the business.
[1:27:06] >> Oops. you didn't have the power to make
[1:27:08] that call. Yeah.
[1:27:09] >> So, um these are, you know, trip wires
[1:27:13] we try to avoid and that's what we're
[1:27:14] here for.
[1:27:17] That might be a landmines.
[1:27:20] >> Absolutely. Um I'm going to do we have
[1:27:22] any more questions? I was just going to
[1:27:23] wrap it up with the uh vested rights
[1:27:25] section and then answer any overall
[1:27:26] questions we had. Anybody have any
[1:27:28] questions on the Okay, perfect. So,
[1:27:31] vested rights, there's two types of
[1:27:32] vested rights. best of rights is you're
[1:27:35] going to encounter them with some of
[1:27:36] your older developments or when there's
[1:27:38] a change in the zoning code that affects
[1:27:40] a property owner. Um, so if you expand a
[1:27:44] lot of money after you've had some type
[1:27:46] of governmental approval, which is case
[1:27:48] law tells us allows you to build, that's
[1:27:51] how I interpret it. Some people disagree
[1:27:53] with me, but I that's my interpretation
[1:27:55] is are you allowed to use your property
[1:27:57] a certain way? Do you have that
[1:27:59] approval? Okay, so let's start there.
[1:28:02] Let's say John was uh approved to
[1:28:04] develop his lots a residential lot in
[1:28:07] the 2000s 2008 decline in the um economy
[1:28:12] wasn't able to build it completely but
[1:28:13] he started building he had a building
[1:28:15] permit he started building it up building up he finished
[1:28:18] it in 2015 well code enforcement comes
[1:28:21] by and says wait a minute John uh that
[1:28:24] doesn't comply with the setbacks from
[1:28:26] 2015 wait a minute John expended
[1:28:29] substantial expenditures towards the
[1:28:30] completion of his project. He spent a
[1:28:32] lot of money to build it. He he had good
[1:28:34] faith reliance on governmental approval.
[1:28:36] He relied on his building permit. He
[1:28:38] relied on his site plan. He relied on
[1:28:41] his plat.
[1:28:43] And then he spent the money. And an
[1:28:44] injustice would happen here. That's the
[1:28:46] last one. Owner would be would be harmed
[1:28:48] without that vested right. John's going
[1:28:50] to have to tear down his house. That's
[1:28:51] an injustice. So that's an example of a
[1:28:54] vested right. That's one of our more
[1:28:55] complicated administrative decisions. We
[1:28:58] will certainly
[1:29:00] cover that more as we get closer. If we
[1:29:02] ever have one of those um statutory
[1:29:05] vested right, that's when you can submit
[1:29:07] a plan to a zoning administrator and
[1:29:09] say, "I had all these prior approvals.
[1:29:11] Here's my site plan based on those prior
[1:29:13] approvals. I had a building permit.
[1:29:16] Please, please accept this as my vested
[1:29:18] right." So, common law is more court-
[1:29:21] made. That's more evidentiary based. You
[1:29:23] have to present the evidence. Statutory,
[1:29:25] it's laid out. Did you have a building
[1:29:27] permit? Do you have a site plan? Can you
[1:29:30] present it to the zoning administrator?
[1:29:31] It gets approved. Here's the caveat.
[1:29:34] Statuto vested rights only last, I
[1:29:36] believe,
[1:29:38] three years, maybe two. I always get
[1:29:40] them mixed up. Two two years. Perfect.
[1:29:42] >> I was holding down too.
[1:29:43] >> Thank you so much. Um, so two years. If
[1:29:46] you don't build within two years, best
[1:29:48] rights go away. Expire. That's the
[1:29:51] difference. Common law is why most
[1:29:53] people try to go for it because common
[1:29:56] law it's a reasonable time is what is
[1:29:59] the closest thing we can find to a time
[1:30:01] period they vest as long as the permit's
[1:30:04] valid
[1:30:05] and so you might see both but you don't
[1:30:07] really need to worry about the
[1:30:08] expiration unless someone comes back to
[1:30:10] you and says hey zoning administrator
[1:30:12] told me two years has already gone by
[1:30:14] I'm expired hey I have a vested right
[1:30:16] sir statute says what it says two years
[1:30:19] you didn't get an extension so that's
[1:30:21] hopefully an easy case for you. That's
[1:30:22] really the only difference. But again,
[1:30:24] you'll have that laid out prior to or
[1:30:26] during the hearing, probably during a
[1:30:27] staff report. Have some background on
[1:30:28] Mr. Plan Director. Perfect. So, you'll
[1:30:31] get that background more when you see
[1:30:33] one of those. Um, but those are some of
[1:30:36] our more complicated ones. Um, is there
[1:30:39] any questions about anything you've
[1:30:40] heard tonight? Any questions about the
[1:30:42] process?
[1:30:45] >> Perfect. Thank you all for
[1:30:47] >> I I have a
[1:30:48] >> Yes, sir. Yes, sir.
[1:30:50] >> a comment. Uh so first the has anybody
[1:30:54] here seen an actual application form
[1:30:58] that John gets
[1:31:00] to uh for a variance?
[1:31:03] I didn't think so. Um the applica
[1:31:07] basically the application that the um
[1:31:11] applicant uh has to fill out has three
[1:31:16] basic questions on it. And they are the
[1:31:21] same questions that uh and they write
[1:31:24] out an answer and uh to to those
[1:31:27] questions and that is what we get in
[1:31:33] advance to look at and those are the
[1:31:37] three criteria
[1:31:39] that we use to make a decision.
[1:31:45] So, it's it's all it's really pretty
[1:31:48] straightforward when it gets a two-page
[1:31:51] questionnaire
[1:31:52] and or maybe it's three now, I don't
[1:31:54] know. But it's just it's it's um and
[1:31:57] they fill it out most of the time
[1:31:59] handwritten [clears throat]
[1:32:01] and um John will provide that to us and
[1:32:05] but what it says, what those questions
[1:32:08] are these three questions that I made
[1:32:12] copies of. Uh and I'll this is verbatim
[1:32:17] but I I'll just read the three questions
[1:32:19] and it's really kind of summing up what
[1:32:21] >> yes sir
[1:32:21] >> what you've said but
[1:32:24] uh question one there are practical
[1:32:26] difficulties or unnecessary hardships in
[1:32:30] the way of carrying out the strict
[1:32:31] letter of the ordinance.
[1:32:35] That's criteria one.
[1:32:39] variance is in harmony with the general
[1:32:41] purpose and intent uh of the ordinance
[1:32:44] and preserves its spirit. That's two.
[1:32:49] And the third one is the granting of the
[1:32:52] variance secures the public safety and
[1:32:55] welfare and does substantial justice.
[1:32:59] So when we make uh to grant a variance,
[1:33:03] we should answer yes on all of those
[1:33:07] three.
[1:33:09] um things are they they can say
[1:33:13] they can meet two of them and the third
[1:33:15] one they fall down on and we should deny
[1:33:19] the variance
[1:33:21] but um the application form would be an
[1:33:25] interesting thing John to um it's
[1:33:31] I don't think any of the words have
[1:33:32] changed the format's changed
[1:33:34] >> no I'll send um it's it's
[1:33:36] [clears throat] available for download
[1:33:37] online our website, but I'll send y'all
[1:33:39] a copy of it. So, you see
[1:33:40] >> that that it's it's a brief way of
[1:33:43] finding out what we're supposed to do
[1:33:45] and how how we make decisions, you know.
[1:33:47] >> Aren't we uh having this training uh now
[1:33:50] because there's an anticipated hearing
[1:33:52] coming up?
[1:33:53] >> No.
[1:33:54] Okay.
[1:33:55] >> No, we just uh wanted to give a training
[1:33:57] to you guys just so you have the heads
[1:33:59] up. You can ask ask any questions you
[1:34:01] wanted to.
[1:34:02] >> Well, this was extremely helpful for me.
[1:34:04] So, thank you.
[1:34:05] >> Thank you.
[1:34:06] >> Yes. And there there will be questions.
[1:34:09] >> Just take
[1:34:10] >> that come up whether it's procedural or anything else. Um you know we are
[1:34:15] available. I think our emails are on
[1:34:16] there. We I've got some business cards.
[1:34:19] Please take some. Um there you know we
[1:34:22] are the board's attorney. This board's
[1:34:24] attorney. We don't represent the town or
[1:34:25] anybody else. You guys lawyers. We're
[1:34:27] here to help. Um so you know please
[1:34:31] reach out to questions as they come up.
[1:34:33] Um, tonight you probably felt like you
[1:34:35] were drinking from a lot of information
[1:34:37] coming at you. It's hard to swallow all
[1:34:39] at one time. Um, but that's that's what
[1:34:41] we're here for.
[1:34:42] >> And thankfully you don't see all of that
[1:34:44] at once, right? So you're not going to
[1:34:45] see a vested right with the variance all
[1:34:47] in one night.
[1:34:48] >> Thankfully not.
[1:34:49] >> Hopefully not.
[1:34:50] >> Hopefully you don't see a vest.
[1:34:52] >> That's right. Um,
[1:34:56] oh gosh. I think uh we've covered most
[1:34:58] of it uh tonight. Um, as these questions
[1:35:01] come up, reach out to us.
[1:35:03] Um, as any attorney client, you know,
[1:35:07] there's no confidentiality
[1:35:09] between you. So, one of the marks asked
[1:35:12] me a question, no problem. Here's your
[1:35:14] answer. And I talked to another mark
[1:35:16] later and I can't, you know, and they
[1:35:18] said, "Well, don't tell the other mark I
[1:35:19] asked that question." Can't do it. No
[1:35:22] big deal. No big secret, but as between
[1:35:24] you guys, there's no confidentiality.
[1:35:28] So, the board knows, the board knows.
[1:35:31] That's a good way to put it.
[1:35:33] >> I assume they deliberate in open session
[1:35:36] and closed.
[1:35:38] >> Correct. Yes, sir.
[1:35:38] >> Yes, sir. Has to be an open session.
[1:35:41] >> That's always the toughest part is
[1:35:42] having everyone lean into the mic at
[1:35:44] first. Like I said, everyone's instinct
[1:35:45] is have conversations back and forth.
[1:35:48] Lean in. Yes. I think that
[1:35:53] » it's easier tonight when there's nobody
[1:35:54] learing at you. They comment about, you
[1:35:56] know, please rule for me.
[1:35:58] >> Oh, a room full of people. Um it could
[1:36:00] it can be intimidating at times 100%
[1:36:02] that's okay. You know that's okay.
[1:36:05] >> Um that's kind of why we wanted to get
[1:36:06] on board early,
[1:36:08] >> you know, kind of get this stuff under
[1:36:09] our hands so we can use it.
[1:36:11] >> This was great.
[1:36:13] >> Thank you.
[1:36:14] >> Appreciate you saying that. Thank you.
[1:36:16] >> Absolutely.
[1:36:17] >> All right. No further questions. That's
[1:36:19] all I have. You got anything else, Tim?
[1:36:20] >> Uh no.
[1:36:22] >> Thank you all.
[1:36:22] >> The lawyer to say he's done talking is
[1:36:24] really good. So we're good.
[1:36:26] >> We'll get to do it all. If the only
[1:36:27] thing we need is a motion to adjourn.
[1:36:30] >> Move to adjourn the meeting.
[1:36:32] >> Second.
[1:36:35] >> Vote.
[1:36:36] >> All in favor?
[1:36:37] >> I
[1:36:39] did.
[1:36:40] Great job.