Board of Adjustment - Regular Meeting

Okay, Erin, I guess you get the stage. Okay, I don't think I need to say anything else. We can just say state that the the wool is as reflected at the last meeting. Technically, normally we do call the serve. So, I need a roll call to start the second phase here. Okay. No motions, just a roll call. Okay. Amy, can we have a roll call, please? Chairperson Sbert here. Vice Chairperson Mooney

here. Member Phillips here. Member Clauss here. Member Phillips Pig. Hi.

We have five forum. Okay, now I'll hand it off to All right. If any time on Zoom you can't hear me, please speak up and remind me to speak into the microphone because I am famous for moving as I talk. Um, so this is the board of adjustment and board of administrative review. Um, as you note there are two different boards because by virtue of being on the board of adjustment, congratulations. You are also automatically members of the board of administrative review. Um but as going through the processes for that review for that board, you will understand why that is the case because it is very similar to the processes you go through for the board of adjustment.

Okay. So this will be the outline of our topics. Um we'll just go over kind of the membership authority and duties because the board of adjustment is very much regulated by chapter 89. So pretty much all your authorities, powers, and limitations come from those sections. So even your membership and your duties are all outlined in that chapter. So we'll go over those. Um the board procedures, they're not necessarily the meeting preparation. You don't necessarily have to do any of that, but we still find it helpful for you to understand what happens behind the scene and why we do it. So we go over that and then as well as kind of the procedures for running a meeting, what should happen in a meeting and why. Then we'll kind of go over the reasons why we care so much, the appeals, the standards for actually granting variances, and what can happen if someone disagrees with either your decision of granting or um denying a variance. It can go to circuit court. And we'll go over a couple cases and some lessons learned from those cases. Then discuss about the board administrative view and the ethical considerations that you should always have in mind when making these decisions. just make me slow down. So who makes up you see those my tricks for speaking um who makes up the board of adjustment. So it is required by statute that there are five members. Those five members actually have to be elected for five years. So by statute you are if you were a full member you are the longest kind of um appointed board member for most cities. Um technically the alternate members can be lesser years but most cities also have those appointed for five years as well. Um you also have to be residents of the city of Fenton and there's your authority for those. The statute also says, as we just did tonight and you're supposed to do annually, you do have to elect a chairperson or a vice chairperson. And

that is because, as you'll see as the meetings go on, it really is kind of like a quasi judicial procedure. So, you do have to have a chairperson who is there running the meetings, the chairperson or in the absence, the vice chairperson filling in. they have the authority through chapter 89 and through your code to actually administrative oaths and even compel attendance of witnesses. So for example, if something comes up and you have a flood flood plane question and you really want that answer, you technically have the authority to drag Dan Howard in here and ask him questions. Usually never has to be done. Usually people just come, but it can happen to third parties and those kinds of things as well. again doesn't happen much but that is why the statute makes you elect those and have that positions in place. So what can a board decide? The board can decide appeals where it is alleged there is any error or order requirement decision or determination. What that really means is is they are alleging that Amy is wrong. So an interpretation of the code in deciding whether something is a permitted use or defining what something is they are saying that they think the decision or the interpretation that Amy made was not correct. So they're going to come before you and give you those reasons for that. The more common one is the variances and there are two types of variances. So you can grant a variance when they're either practical difficulties or an undue hardship. There are different tests for these and we'll go over that. Um, and then also it can be all matters referred to you. So, the board of alderman does technically have the authority to actually put other things to the board of adjustment rather than just the zoning code. Most cities keep it to this zoning code or have like a separate appeals appeals. Um, but technically you can have other matters referred to you by the board.

So then with those matters, what can you do when something comes before you per statute and ordinance? You do have the authority. You are a very powerful board. You are the only board that actually has the authority to modify or change the application of the code to someone's property. Even the board of alderman cannot approve an application that is in violation of a setback for example. They have to you are the only board that actually has the authority to say okay well instead of a 30-foot setback you can have a 20 foot setback. So you are a very powerful board in that because you have the authority to change what the code says to a property. But in that the authority is supposed to be um when carrying out the strict letter of the ordinance. So you really are supposed to think of and think about the spirit and intent of the ordinance. What is the reasoning behind having that 30foot setback and can that reasoning and intent still be kept in place by granting that small thing. So that's kind of what you're looking at and still staying within the spirit of the ordinance. Um, and you are not allowed to grant a variance or really an appeal without competent and substantial evidence given to you. So, someone just coming before you and saying, "Hey, I want it." And sit down, even if you want to give it to them, absent trying to pluck something from Amy's memo, there's been no evidence put forth for you to actually be able to um grant that variance. And again, with this, you have the authority to actually reverse the decision. So, you can actually grant the permit that Amy denied because it violated our code. Um, you can also affirm, which means you're upholding

that denial. Um, you can modify it and grant conditions as well. So you can you as have we've seen you can grant a variance but because we are allowing a variation to that setback we are going to require we've seen before that we're going to allow the patio but it has to be open walls to minimize the effect it might have on the neighboring or we're going to require landscape again to minimize or things like that depending on what the circumstances are. And then the idea again you're of keeping with the spirit and intent of the ordinance you are supposed to be making such order requirement or decision that ought to be made. And that kind of brings back to that competent and substantial evidence. There is competent substantial evidence to support that there should be a variation or that the interpretation of the code is not supported then you should make that order. If there is not, then you actually are empowered by the statute to uphold the city's denial of that permit. So, who can appeal to the board? It actually can be from a grieve person's um neighborhood associations or technically even an officer or department of board of the city if they are affected by a final decision of the administrative officer. What that really means is most people what you're going to see is someone coming before you who has been denied a permit from Amy. She is the mostly the administrative officer that you are going to see these appeals from because she's the one reviewing the site plans and the special use permits and the permitted uses and all of that fun stuff. Um but that's usually you won't see it before the you associations or that kind of thing. It's really someone who asks for a permit and and denies. So, who may call a meeting? Per the statute, a meeting is held at the call

of the chairperson or such other times as a board may determine. Many cities just have a standard meeting night for the board of adjustment to make sure that they're going to have a quorum and have people available. Um, and then if there's not an item, they cancel it. Um, some cities actually do just wait and don't schedule meetings and then if they get a petition, they schedule the next available meeting. Um, so even though the statute says it's at the call of the chairperson, almost every city operates as really it's staff that is determining whether or not you need to meet and then working with the chairperson to actually make that happen. A little detour into the sunshine wall. While it doesn't affect you guys as much with notices because everything has to be 15 days notice for you. Um, so we don't have to newspaper notice. So obviously we're going to have our meetings kind of posted within 24 hours in advance. But you do have to have your agenda and your tenative agenda posted within 24 hours. Notice we are not allowed to just change and add items to the agenda. So if there was for some reason a rule or a bylaw that you wanted to talk about, we need to actually put that on the agenda and talk about making those changes. We're not allowed to just say, "Hey, by the way, I was thinking about this. What are your thoughts?" Because that violates arguably violates sunshine by not giving the public the right to hear or at least decide whether they want to come and hear that decision. Um, of course, there's exceptions for social ministerial meetings. So um you know you guys all can go to the Christmas party and all that but what Sunshine looks at is whether or not there is a quorum of you. Um the smaller the boards the easier that happens because there is only five technically on this board even you know county even though they three alternatives we don't get to count that. So there's actually only five members on the board. So you have quorum at three. Um so you technically if you were

actually talking about board of adjustment business three of you together um you possibly just violated sunshine again because of the res judicado rules that we will talk about later and the fact that you are a quasi judicial board. This shouldn't come up much because you shouldn't be talking about cases at all outside of these meetings period even with one member. Um, so it doesn't come up that much, but it's still a thing to keep in mind if you're wanting to talk about a rule change or something like that. Be careful.

What about someone comes up and asks you about what's going to be one of the meetings or whatever coming up and they want to talk about it with that a problem? I mean, say it's say it's a city official or, you know, or just, you know, go blow off the street, you know, it's just you, just one person.

Yeah. I mean, that's not a problem. If it's the applicant, that can be a problem. Other representatives, but no, someone just off the street, that's not a problem. Okay. Now if it is something that changes your opinion or influences your decision you so if you know someone says oh you know I'm really against this variance because it's really going to affect you know my neighborhood if you go and look and you will see it's going to be really close to my house you need to put that on the record in order for it to be relied upon to support that decision. Okay.

So, that might be, you know, and if you have a bunch of conversations that you then you're not and you don't put it on the record and that's a basis for your determination, you're also depriving the other side of the right to basically contradict or talk about that opinion that you have. And if by chance someone would sue the city and it came out a deposition that that was really what made you deny the variance, we would probably lose because you relied on something outside of the record. So you would have to So you have to bring it in. Just have to say I've discussed this with some constituents or whatever. You don't have to name names.

No, not at all. Okay. Just that that you did have discussion. Yeah. Now technically because you're a quasi board of someone if if a lawyer was on the other side they could object and say hey that's hearsay you can't rely on that. Um but then and then I and I would my answer to any hearsay for any kind of administrative board is I would encourage you to always accept it and then give it the weight you believe it deserves. Um,

uh, does that pertain to like for instance, I asked Amy questions about a previous meeting and things like that. There's no problem with her being and I out of a meeting at that time. We can because it definitely could influence a decision with with what I find out or with what she tells me. But that's not a problem. You're only talking about individuals or somebody like that that isn't involved with it.

Correct. I'm talking about members of the board, an applicant, a representative of the applicant. I mean, possibly a neighbor. you are going to have to be careful about that because a neighbor can also be here and be testifying and being adverse. So, I mean, you do want to be careful about it because it is a rule that everything should be on the record. This is really a judicial proceeding. I'm not allowed to have secret conversations with other sides and have my judge rely on it. And so, that's the thing you guys have. It's kind of weird, but you are judges in a way. That's kind of the role that they put you in because you are on that quasi judicial and so that's why you have to be careful of having conversations with the applicant and stuff because that could be considered one-sided conversation. But with Amy, absolutely, you can ask questions. I mean, if you start talking about the merits, Amy also knows this really well. and like actually that's a question I think you should ask at the board meeting is that's more let's have the applicant answer that but she's great at knowing that versus no no this is procedure they understand what they're asking for and why and and that kind of did that help

yes

okay um closed session is just generally not allowed for board of adjustment um and that is that same thing with the one-sided I'm not allowed to go um because I actually and that's a important thing sometimes I forget to remind I do represent the city not the board of adjustment the board of adjustment is unique from other boards of the city and that they are a actual independent body so you know planning and zoning parks and wreck they are recommending body to the board of adjustment I mean to the board of alderman excuse me the board of adjustment is not they are independent final decisionmaking body and so because of that and because I actually represent the city, I'm not your attorney. So, I'm not allowed to go into close session and tell you about the case. I have to have that decision with the city and then, you know, obviously I have direction from the city. You'd be able to tell my position based on how I act in a case, but um that's that's the reason that technically you're not allowed to do that.

So, as members of the board of adjustment, are we not covered by the city's DNO? you would be covered by official immunity in official uh official I always say official immunity but it's actually the your policy that covers your official actions. Okay. Yes.

So per chapter 89 we have to give a reasonable time for hearing of the PO. actually put within I think 30 days of receiving a notice you have to get public notice which can be given by newspaper and then also due notice and the reason I point this out is because these are actually all in the statute so you know over the years you had to figure out what does that actually mean what's the difference between due notice verse public notice um but due notice is considered to those of interest and that can actually even be by newspaper notice as well they found out um most cities also post the property property as well as give notice um through um properties with a certain feat so that the public knows about it because we all know newspaper notice doesn't actually give most people notice.

Yeah. Um so who are actually the parties of interest? It of course is going to be the owner or or the owner's representative who that is complaining of that order. Usually a dener of a permit that they are being appealed from. Um it actually also has to be the public official that made that order and they are also going to be under oath and saying why they made that decision. Um and then adjoining property owners are usually the name parties of interest. Um but as we know with the board of adjustment anyone can actually come and testify as well. That's just who we actually um have to provide make sure we're giving notice to. But if the public wants to come and testify, they they absolutely can. But if they do, they become a party of record in the case and goes on to the court, they will get notice of that as well. Um others who must be invited, the city clerk or someone, it's usually um to keep the minutes because by law, we actually do have to keep minutes of the board of adjustment meeting. Um and you have to keep the vote or if someone abstains the abstension of the each member. Um keep records of examination other official actions feld in the office of board. Um so that's your find that's your findings of fact and conclusions of law and those kind of things are going to be all kept with Amy. Um we also keep a court reporter. There is question under 89 whether or not you actually have to have a court reporter. It is the absolute safest thing because you do have to have someone to take down all the testimony objections there too. And you have to if someone actually challenges the court, you have to be able to provide that transcript to the court. If you do not have a good transcript, you'll have to do the whole hearing over because the court will remand it back to you because they won't be able to review

it. And that's one of the reasons you want to make sure you follow these procedures, right? Because the worst thing is missing a procedure and the court making you redo it and you didn't even they didn't even say if your decision was right or wrong. You just had have to completely start over. Not a fun position to be in. So suggested evidence again as I said everything is going to be on the record. Um, so city zoning ordinance. This is why we have this is why we have that long city attorney statement um that now the city attorney reads but it's you have to have that zoning code. You have to have incorporating evidence. If anything has to do with the building code, you have to have that building code. Um the application of course because you need to know what the person applied for. Um, and then you're going to want the city officials letter a member that denies that application because there it will state right there what the reason what code violation section the application was denied for. Um, you might need a site or building or elevation plans if you're you writing any kind of setbacks or those kind of variance. You're going to want to have that those site plans right there. Um, of course, we do require the person to actually file a petition for appeal for the zoning regulations and try to provide what either their practical difficulty or their hardship is, their reasons for thinking that they um meet the burden for a variance. Um, photos can also be very helpful to to depict kind of the topography or what exactly the area looks like. um copy of the notice of public hearings is required because you want to just have right in your record proof that you required it. So you don't have to have any kind of extra evidence to prove to the judge, no, I follow the procedures. Let's move on to the substance. Um, and of course,

if there is any correspondence between the applicant or city official, again, you're going to just want to make sure that you put that into evidence because again, anything that doesn't get into the evidence does not actually count as support for or against the decision that you make. The thing that Amy always always checks on is not only will there be a quorum present, but really can we have our goal always is to have five members if we can. The concurring vote of four members is needed for you to actually reverse or grant any kind of variance or to grant an appeal. So even if there is five of you, if there is a 32 vote, while almost this is very hard for the public to understand, they did not win in this board for a board of aldermen and it's a motion. They just won. 32 wins in board of adjustment. It does not. You have to have four yes votes in order to get your variance or overturn. And again, the idea behind that is it's not supposed to be easy to override the code. You really are supposed to have a really good reason to override that code. So, you need four votes. So, we do say if you only have four members present on the record with the court reporter, get the applicant's consent to move forward with only four because that means they need a unanimous vote. They need all four to say yes. They don't get one no vote. Um, so just to avoid them later arguing that their due process rights were violated because they now needed a unanimous, we always just make sure we get their consent first or they

can continue and try to get a night where five will be present. While again technically three of you are um meet. It is a quorum. You can meet because you can't really do anything without four. There's really no purpose to do so. Okay. So, running the meeting, introduction of the meeting, um the chairperson does need to actually call that meeting to order and state that it was duly publicized and take notice that it is made part of the record. Um technically, most of this is done by the um city city attorney statement now, which used to be the chairperson. Um the chairperson or clerk does have to call the role because we do have to establish that we have a quorum there and at least four there to make action. Um, again, we want to state that the city code is made part of the record and it's always helpful to actually explain the court reporter's role. Luckily, we don't have very lively board of adjustment meetings. Um, but I have been to some where people are yelling over each other. But even if a, you know, member of you is trying to talk, where's their where the actually applicant is talking, it actually is almost impossible for the court reporter to type two people talking at the same time. they can amazingly do fairly well but not you know good enough for an actual transcript. Um so it's nice to explain to the to the applicant the process everything is under oath. You need for have to talk one at a time. Um because this isn't a very common you know forum for most people and it's not like the planning and zoning commission where someone does just come up and say what they want to develop and why. that's really not what this is. This is why can't you develop incompliance with the code. Um so it's a little different. Um so it does help to kind of have a little bit of that um procedure within the script for them.

So I said like that after that it is like a trial. Now, if someone doesn't request, and most don't request that you follow the formal rules of evidence, then you don't have to, and most don't, but if you get an attorney that comes up, they do have the right to actually cross-examine Amy, and they can start asking her questions and cross-examine. They can ask for Dan Howard to be brought up and they can put him under oath and they can ask him questions because it is like a trial. Now again like we invented that doesn't happen very often but I have been a part of those and as the city attorney you are there to you know advise of whether or not you would again with if you ever were in that situation and someone does you know object to evidence the golden rule always is I'm going to accept the evidence and I will give it the way it deserves what that means the attorneys get to decide later on you don't have to say what that means then you just make your decision and you would let the attorneys go have fun. Um, but that's puts the city in a better position than you just saying, "No, I don't like that evidence. I'm not going to accept it." Because then that gives them an additional argument that you didn't accept evidence. And if by chance the court would agree, guess what? I'm going to have to do it all over again. So, it's better just to say, "We're going to accept all the evidence and we're just going to look." Um, but so technically someone can come with exhibits. They can say, "I want this to be entered." The chairman would say, "I'm going to enter in this into evidence as exhibit C." Mark it in. Core reporter will take it. It's now exhibit C. Um, again, that doesn't happen that much because Amy does most of the work to put all that in, but sometimes she'll have an applicant come with pictures or something. Um, usually I will help them

out. I'll say, "Do you want that to be part of the record exhibit?" Um, but a lot of times they get it in advance, so it's already a part of Amy's presentation and that is a part of the record. And then after that, it really is kind of common sense rules. You really are just framing the issue and discussing um through the chair. So if you you don't want the if you do have a neighbor or someone upset, you don't want them talking to each other. You don't want the public to be able to try to cross-examine the applicant. If they have a question, they need to ask it to you. Then the chair will decide whether or not you want to redirect it to the applicant or not. Um, again, stick to the facts, speak to the issue. Um, and what that means is really don't cut off an applicant ever. That's not what I mean. Um, we will hear all the time the history of why someone wants something and why they need something and and all kinds of things that don't necessarily have to do at all with um the variance request or why they can't meet the setback. Uh but that's your job to then parse all that out.

Next slide.

Yeah. So, and that's where the board decision comes in and where I really mean you have to speak to the issue and stick to the facts. Um because just because someone, you know, doesn't object to it um doesn't mean that that is ne and someone has a you know long history of you know issues with the city that have nothing to do with the variance. um that doesn't mean that the city then needs to grant that variance. they really need to stick to. Okay. But you you said you could build over here without violating the ordinance and so I don't think you met the requirement for a fair and the thing of you're making a record and that's what I said you can go through you can drive by the property. We always encourage that that you you do do that. Um if it is kind of a variance asking for a se back can't be on the next slide. Um, but you want to make sure that then you then state that you went by the property, this is what you saw, and this is how it influenced your decision. So the applicants can actually be like there's not I mean you I know you just described that there's a drop off on the back of my property but it's it's actually the entire side and the back and you're to you know and that's why I need a variance and it allows them to then you say well I know and that's where the board decision comes in and this is the hardest job for any board of adjustment but after you close the record really you are supposed to have a discussion of whether or not they meet the standard and for you it's almost always um going to be practical difficulties whether or not they meet the standard for practical difficulties. Now the hard fun part as you'll see is there's not a there's not a specific standard on that. Um, but the things that you're going to want to talk about, for example, for a setback, if someone is asking for a setback variance

for a specific reason, you are going to want to talk about is there something unique about the property that is making them require that variance? Did you hear the applicant say that? What did the applicant say their practical difficulty was? You're allowed to ask them that during their presentation. If they just say, "I want a pool. like okay well it's our job to actually uphold the code minus a practical difficulty. So what is your practical difficulty that is that is require and give they have to give the answer um which you know can seem kind of mean um but they'll give you one I promise it might not be one that is actually legally good but they'll give you one for sure um so don't be afraid to ask questions ask you know and there it is a fine line of you are not trying to design the project for them. You're not. But if they can do what they want to do on the other side of their property, I'm not designing it for you. I'm just saying I think there's other options without you violating my code and therefore you do not need practical difficulties. Um so you know don't be scared to kind of also say are there alternatives are there other things you can do without violating the code. Um but and then once you have that discussion it's the board decision where you're going to have that discussion say well you know we heard you we saw that the property actually does have quite a drop off at the end. It is a corner lot so it actually has three front yards. it has a you know and you are putting those stuff in there to say why you heard that this property

does meet the requirements for that variance.

Yes. So if someone if someone just wants it that way if if there are if they could make it smaller or they could move something so that they would be in compliance. Is that not a practical? It generally is not. But it depends there. Again, there is no exact test to a practical difficulty. If it is, I would have I would have to remove a 300y old tree. Is that would I win in court that Yeah, you can make them tear down that tree. Yeah, I probably would. But is it unfair for your board to say, you know what, actually, I'm gonna let you keep that old historic awesome tree and let you violate the setback by two feet. Yeah. And so that's where the practical difficulty and kind of the balancing and the spirit of the intent of the code kind of has to come forth. The code isn't, in my opinion, but board can disagree with me, isn't necessarily meant to keep like for example a non-conforming property or something or a property from ever being able to improve and to just fall apart. So, you know, some cities have decided that if a and I'm not saying Fenton is not you not have this precedent, but some cities do that if it is at an old old historic house that they are allowed to, for example, build an addition that doesn't go further into the setback than this old historic house already does. Is that technically probably a practical difficulty? Do they need that addition? No. But is the alternative that they might tear down this historical house

and build up a cookie cutter house the city doesn't want? Yeah. And so there is because there is no exact test of practical difficulties. There is some of that in every decision a board of adjustment makes. So you wouldn't you wouldn't ask somebody, can't you move this a foot one way or another? are and and they just don't want to because they don't like that design. That's not a practical difficulty. That is not a practical

or or it's just not convenient. If you're moving um what what can I think of um say a deck say and moving it puts a railing in front of a window. Is that a practical difficulty? I mean, in the strict law of law, no. Okay. No, it's not. Okay. It would it's it's it to me seems like a convenience or or a design preference,

right? And then and it's on my slide, but you know, I this is more fun. And um the you you also can't know you need a variance. So, I also can't I can't be the one who cost it. I can't buy a property knowing that I'm going to ask for a variance. you get that on the record, you can deny it all day. Um because you you're it's not a practical difficulty. If I bought the property knowing knowing I couldn't do that and I would have to get an exception for it, that's not a practical difficulty. So those kind of things also go into it where there is a little bit of you know the facts that matter of but so I've seen someone admit that the real estate agent told them just buy the property. Of course, they could get a variance for 12 in denied.

So if you if you bought the property and didn't check is ignorance an excuse. Okay. Yeah. The law says that is you that does not meet it but you should have known. Okay. The law and then technically you're going to announce the decision for the record. That's the fun of the chair. Your variance has been granted. Please talk to Amy or it has not. Also, please talk to Amy. Unfortunately, both ways it is. Well, she started it. So,

um so by law um said we actually won, you are not required to have findings of fact, but we do think it is um better. the code requires it and um courts keep ignoring that case um because there actually was a recent case where the court um with basically remanded the case because they found the um they were really really examining whether or not the city's findings of facts and conclusions of law were sufficient. Um and you don't see that too often um because technically they're not required. Um but this was in doublea market LLOC um and where they really found that the findings of fact have to include a factual resolution of matters in contrast. So in this they kind of just barely recited the facts and kind of ignored any of the facts that the other side raised and didn't make any kind of really conclusions. Um and so they found that the findings of fact weren't necessarily sufficient, but the court was very nice and found that there was with because it incorporated letters um that were received from the residents that that was enough to still support the sufficient competent evidence because that was enough to to support it. Um, but I thought this case was just interesting is one it shows that cases the courts are kind of ignoring and are putting in 536 which as you know I didn't mention 536 I mentioned 89. Chapter 89 is the chapter that regulates board of adjustment. Um, but for some reason courts keep trying to bring in 536 which is the ad administrative procedure act um dealing with non-contested and contested cases. Um, and it does have very detailed procedures of how you're supposed to run things and all kinds of things. Um, and

it just doesn't apply to you guys because it is a different chapter. Um, but it it is interesting the courts kind of keep bringing that in. So stay tuned to see if anything changes on how we operate soon. Um, so anyone who is upset about your this Oh no, this is appeals. Sorry. So, this is um if they are upset about a determination Nikki made or Nikki made. Wow. Sorry, Amy. A long long day. Um it still requires four votes. So, it's it's not something that you have much and we will usually walk you through it because it is a little different. Um because unlike Amy just saying it's the city's position to uphold the code um for an avariance because that is the city's position. Um on this she will actually have to testify why she made the determination probably the history of the ordinance and why she thinks it says what it says and that kind of thing. Um the other side will then say what they think and then it really is just up for you guys to determine um based on what was submitted um which way which interpretation you think is more supported by the evidence. Um again it does require four what you see more and there is not also just in case so you're not creative there is nothing that prohibits someone from applying for both of saying I think Amy's wrong and calling this a fence. Um, so I don't think I'm I should have to follow the fence rules, but if you disagree with me, I also meet the practical difficulties for a fence and don't have to meet the setback. So technically, they can apply for both at the same time, which I have seen. Um, so rules about granting variances, we've kind of already talked about this, but the idea is mere inconvenience as

you said on a clause is not enough. Um, it really is supposed to be for severe interference with the landowner's ability to use the land and exercise sparingly. And I think the real cases will kind of help on that, too. Um, again, it's practical difficulty or unnecessary hardship without the variance. They have to prove it. It is their burden, not the city's burden. So, it is not up to Amy to say, you know, they have to comply with the 50oot setback. is for them to prove substantial evidence why they don't have to comply with it. Um and again the spirit it has to reflect the spirit and kind of intent of the ordinance and as always we want to ensure public safety and welfare precedent is um kind of everything we had talked about of really looking at and why the decision of the board of you explaining your decision of the board is important because what precedent means is you know from law it's a decision that you know basically can be used against you as the standard in similar cases. So if you grant someone a variance to install a pool and most of the fact is because they wanted one um and then their next door neighbor wants to install a pool and the conditions are the exact same. Yeah, you just set a precedent because you don't have the unique characteristics of saying why you set why you granted the variance to the one. Why aren't you granting it to the other? And that's why the facts really are everything. If it truly is unique and meets the standard of practical difficulties, meaning it is because of the topography or something unique about that land or the use of the land, you don't have to worry about setting a precedent because the neighbor is not

going to come and be able to show the exact same thing. Now, different neighborhoods, you know, are usually different. So you will see that you know someone coming and said oh well you know I have counted this many in the city that have this well thank you let me know if you want to make a complaint on any of those otherwise I'm looking at you this property and whether or not you meet the the variance requirements for that um so again facts are everything but and you know we have seen you know if if usually if Amy does see that a variance is getting granted similarly over and over again. What that means to us is it's time for a code change that something's wrong. Um and we and I think we have seen that and where you know a developer you know built the property to the line and had you know basically all built out to have a deck but they were at the building line so no no deck was allowed and you saw a lot of variance requests for that code change to allow a deck to spend those kind of things. Um so when you start seeing that you really um do want to look at the facts because if you are as I said if there's nothing unique about it you do have a um possible concern of creating that um your city code just requires not all of these are necessarily be relevant to all variances. Um, obviously if you're just getting a setback, it's not going to constitute a change in the district map or impair the adequate supply of light or air to the adjacent property. Um, but technically all of these findings have to be required in addition to um meeting the test for practical or um undue hardship. Um, so use variance. We'll go through very quickly because you don't get very many of these. What a use variance is is asking for a use that is not allowed in the district. I.e. I'm asking for, you know, commercial within

a residential, residential within a commercial, asking for a use that is just plain not allowed within the district. For that, you have to have unnecessary hardship. The funny part is is the common term everyone uses for variance is unnecessary hardship. Actually, that's the rarest variance. You almost never see someone ask for a use variance. And that is because it is almost impossible and I mean impossible to get. In order to get a use variance, you have to prove that the land cannot yield a reasonable turn from any other allowed use. That's a really high standard to prove that no other use that is allowed within the district that's property is zoned can give a reasonable use, a reasonable return. Um, it also has to be unique to the property and it cannot alter the essential character of the area. So again, that's a huge hurdle because normally when you are allowing a use that is not allowed anywhere within a district, you're probably going to alter the essential character of the area. There's probably a reason that use isn't allowed. So you don't see that one much. Um, so let's go to practical difficulties. That's what we see more. That's our um area variances because and our area variances sorry I did skip that is basically looking at again I want to vary my setback I want to have a higher fence so it's something that's allowed within the district but I need to make a variation of the code requirements in order to do it I want to have a bigger addition than I'm allowed I want to put you know more bigger driver those kind of things so I need to come and ask for a variation within that code. Um, as I said, there's no actual set standard of what you are allowed to look at for practical difficulties. These are just

some of the factors that the court looked at. But the court also didn't look at weight of them. So, you don't necessarily have to find yes to all of them or no to all of them to support a decision. Thank you, court. It again is just the competent evidence. Um, so you are going to look at how substantial the variance is. Are you looking for your two feet from my setback or are you looking from 30 feet from my setback leaving a two you it does matter how much are you asking for? Is there any effect on the governmental facilities? Um, is there going to be a substantial change in the character of the neighborhood by um granting that variance? Are there any alternatives to the variance? Many times there are. Um and then kind of the general whether viewed in the manner in which the difficulty arose in considering above the factors does justice serve by allowing the variance. So that's where unfortunately because I can't just say yes it's illegal, yes it doesn't because it really is saying looking at all of these your standards. But what matters I guess is that as long as it's on the record, your decision and your evidence as long as there is competent evidence to support that decision, your decision is upheld. So a in other words, the court will defer to this board's decision. So even if the other side puts forth evidence that does support their decision, as long as there's evidence that supports your decision, you win. And that's why unfortunately there's not like a now some cities do do a checkbox and say you have to do this this this and this or you don't get a variance or you have to get two out of the five factors or um we

have never done that and it does it has created issues in some cities. It results um a lot of times in honesty in in cities approving decisions that really clearly by the record should shouldn't have been approved. um it almost is um easier when there is a little more discretion. So, how do you decide if you've got something that the variation is not substantial yet? There are other alternatives and that's for the board to weigh. To me, if there is another alternative that works, I feel like that supports not getting a variance every time because why can't you do that? Now if it's an alternative that you know sure it works but practically for everyone you know so I mean I have seen varian instances where it's like sure there's an alternative but that alternative requires me to tear up the entire driveway to rework my garage to go over there I so I mean you do have to look at just because it works is it really practical to so that kind of um again facts matter and that's why I Don't be scared to ask questions of of them of you know what would it take for you to do this and that because they'll tell you or they'll say oh I've never looked at it maybe you should you want to come back um so appeals to circuit court oh yeah the other evidence so sorry I think the economic hardships is the only one that I don't think we've talked about yet is technically economic hardships are not to be considered when they pertain to the person themselves. So what that with an example of that was someone um you know had a lot of expensive cars so they wanted a they needed a bigger storage area and

otherwise it was going to cost them tons of well that's personal to that person. Now, if you don't, you know, give me a variance, I'm going to have to spend $50,000 to do this to my property in order to then be able to, well, that then is an economic hardship related to the nature and character of my property. And that actually might be able to be considered. It might come up with the alternative. It's like, well, yeah, I could do that, sure, but that's going to cost me $60,000 to do that, whereas this cost me two. So, it's economic hardship for you to make me do that alternative versus this alternative. Um, those are just things to look at and the effect of course that it has on adjoining properties. So, appeals to circuit court. The thing to remember, I've had people you you clients yell at me as I didn't give them a warning um that this case could go to court. Well, congratulations, Board of Adjustment. Unfortunately, every single case you hear could go to court. Sadly, um the board of alderman could be upset about the decision and take you to court. the person who got denied a variance could be upset about the decision and take it to court. Surprisingly, the neighbor who didn't know about it, who now found out that you just gave the person a variance, can take you to court. So, just because you granted something, doesn't necessarily mean you can't go to court. And that is because you are a final decision maker. So anytime unfortunately you make a final decision you can make someone unhappy and the court and the statute say if you make someone happy they're

any relief they get is from the court. Um so they do have to file within 30 days after the decision. So that is very nice um because at least there is some limitations. A lot of other stuff is five years years. So you do you have that limitation. It does have to be filed within 30 days. Um, again, we already talked about the court is going to defer to your decision and the court has the same authority you do. They can refers affirm partly and they can do conditions as well. Um, during an appeal, it will not stay the board's decision. So, if you denied something, it stays denied. If you granted something, arguably the person can go forward with it. the risk is on them if there's an appeal and the court overturns it and says it shouldn't have been granted but technically it's not stayed. They couldn't move forward. They better be confident.

Oh yeah. When it comes to the court, you said we could all get involved with a court case no matter what we do. Uh the board, not you individually. The board, right? And if we do, uh who pays the cost? In other words, the city, okay, the city will take up our court costs, our whatever and so on, but we still have to appear and be involved in it. But, uh, there's no real

I mean, you don't because that's the fun part of it being on the record. The court is only reviewing the record. So, they are not allowed to come and ask you why you made a decision or what you made. We are relying solely on that record and that what is why it's important. If you want something to support that decision, it needs to be on that record. But no, when um someone challenges it, we get an order from the court to produce the transcript and our entire record within like 90 days and we have to put it all forth. Um and then we each side write a brief saying why we win and they say why they think our decision was unlawful and not supported by confident evidence. The attorneys then go before the judge argue and then the judge decides there is no discovery, no depositions. Um and that is the same reason I'm all out of order tonight. Um that you we have the board of administrative appeal. It's the same reason we are making someone go through the contested case procedures. So they have to put all their evidence before you now and say what your case is. We get to decide it and then the court doesn't get to depose the alderman. They don't get to depose you. They are on the record for that decision. And that is a benefit because it cuts down your cost for legal review if you get sued for those cases. Um, so real examples, let's go to those. Those are fun because all of these have kind of lessons. So this case, um, and they're all none of them are new. So sorry for sorry all of these. So this case affirmed denial of an area variance. I think all all of these are variances. But in this

case, someone was seeking it and might have even already built a pool. And the evidence showed that the land actually was really uniquely shaped even for the neighborhood. So the record and everyone agreed the property was very uniquely shaped and there was no way for them to build the pool on this property without getting the variance that they sought. City still denied variance. Sued court upheld that even though yes your property is unique and yes you can't get a pool that's not a practical difficulty. Not every person, every home is entitled to a pool. It is a single family residence. You are using the home for a single family residence and therefore you're good. Now, this is an old case. Courts have relaxed a little bit since then. Um, but there is still the idea and that is absolutely supported by the law that not every property is designed to have a pool. a storage structure, a whatever, a play structure. It's just not and you don't have a property right to that. So just because you might be able to prove you can't do it. If it actually is going to cause I think in this property it was pretty close to the neighbors and stuff. It actually is going to cause issue, you don't have to grant that just because this is the only way they can do it. Um now if it's their only use, let's talk. But this is an accessory. Um the other case is board of alderman versus city of Cville. And in this case, the board of alderman granted a variance for a storage structure that was

actually already built. Um and it was an elderly couple and they had a slope of the yard that did make it hard for them to park on the street. Um, and they wanted to have the covering so they could park closer to their house and so that they wouldn't have to walk from the street um, when it was raining. Needless to say, I'm hoping you can guess, a court found that in no way was unique. Um, every single house on that street had that same exact slope of yard. And because everyone had that same slope of yard, that could not be considered a unique characteristic justifying a variance. And having to walk in the rain is a mere inconvenience, not a practical difficulty. It was clear by the record of this case, the board was um you know persuaded by the fact that it was already up and being used and they were going to have to tear it down um if their variance was denied but um they did not meet the requirements for a variance. So would would being suppose they um were really old and or suppose they had to use a wheelchair. Would that be a practical difficulty?

I would argue no. I would argue they're going it the wrong route. Um if they do actually have um a disability, they need to seek an accommodation. We do have a um a reasonable affordable housing act where you can go and seek accommodations to our zoning code and things like that and it is used for wheelchairs and that kind of thing. Sometimes they need um in order to get like the slope right and stuff they do need to violate some stuff that takes care of that without doing something that runs with the land. So I might not have mentioned that but that's the thing with the variance. Um you can put as many conditions as you want and try to say that it is only going to you go to this person and all of that. Um but generally the common law 101 is that variances because they relate to the land. Economic hardships to the land not the person. They do not go to the person. So they run with the land. So once you grant a property the variance to put a storage structure in violation of the setback, they forever get that new setback for that storage structure. And again, that's why it's supposed to be unique and really a severe hardship because it runs with the land forever. Now, you can try to, you know, erase things by, you know, changing the zoning code and that kind of thing, but you and it might not be applicable once you do that. Um but generally it runs with the lane. Um tennis court. The point of this one is that it is irrelevant that neighbors are in support of the variance. Um so in this case again always thinking asking for forgiveness is better. Um they built the tennis court in violation of the code. They actually got letters from every single neighbor saying they

supported it and were in favor of it. Um and you see many times that will actually persuade the board. Um but this I just like this case because it is just reminder. It is irrelevant. That is not a practical difficulty. It doesn't matter that it didn't make the neighbors happy. It might make the neighbor that moves in you next week unhappy. Um so that's irrelevant. Um that's not evidence for someone to be able to support for um a practical difficulty. Storage structural. This is the one I already talked about where uh they tried to get a variance and they um it was reversed because in this case they actually were um given the variance to build a larger storage structure in violation of the code. But the court held that the evidence was that it had nothing to do with the topography of the land that required the variance, but it was just the fact that the property owner had so many vehicles he needed a big storage unit. That's not a practical difficulty. That that reason was unique to the person, not anything having to do with the topography of the land. Um, and then this one is kind of gets um is what I use kind of get to your question um clause of with the department is this is actually this case came out when it was only recreation or only medical marijuana, excuse me. And so they were trying to use they actually and they did have some unique characteristics. They only had two front yards or and so we know whenever you have two front yards that actually means you have two full setbacks. You don't have that nice big back. So you have limitations of when you're developing when you have two front yards. They again, you know, submitted that letter from all the neighbors saying they supported the variance and they actually tried to throw in the medical, too, and argued that they had to have a drive-thru because they had patients

that were unable to actually be able to get, you know, to their um store, even though they had, you know, curbside pickup and and that kind of thing, which the record showed. Um but the court still held that even with that evidence um that there was still no absolute showing that they could not operate without a drive-thru. So therefore because there was no showing that they could not operate without a drive-thru, they did not meet the requirements for a variance. And that kind of goes back to that town and country old old case where it said just because you yeah sure you can't fit a pool I don't care you can use the house without a pool here you can use your medical business without the drive-thru. Um so those are kind of the things that the court looks at. So, board of administrative review, we always go through pretty fast, but this is under chapter 160. Um, where the board of alderman automatically appointed you all to serve as the board of administrative review. Um, the procedures basically apply to any decision made by any final action of any city official. So, this is where Nikki can come in, the board of alderman, even an employee or know any even it wouldn't be by anybody planning commission any kind of final decision the point of this board is to do exactly what I said fill that gap so we already have that all zoning decisions have to go to you so this is trying to now fill the gap and saying okay any other final decision that we might make that you think is unlawful before you sue me you need to go through this review board and bring it to my attention and tell about it. Um, so what they do, they have to actually file petition within 10 days of

that final decision. And again, it can be the board of alderman's decision as well, like denying contract, even denying SUP, that kind of thing. The city clerk with the attorney will actually review and see if it is a final decision that's eligible for review under the code. Um, you do have the authority to state the final action of any decision. Um, but it probably wouldn't come up too much. You do have to set a time to review the decision. As soon as reasonably practical, just like the board of adjustment, that will be done with staff in determination of when we can have uh council present. Um, because just like the BZA, we will have to provide public notice of the hearing. Um, but the hearing is similar to the BCA where you're going to have court reporter, evidence, testimony under oath. And unlike the board of adjustment case, um, expect there to be an attorney on the other side. Doesn't mean there will be, but operate that there will be. Um, and I will be much more active as well of actually, you know, taking, you know, testimony from Amy and those kind of things or from whatever official it is. um that decision decision is being appealed from. Um so the board reviews the facts and the information that are going to be presented through the petitioner. We do require that the petitional provide a basically the law and facts of why they think the determination by the board or the official or whatever they're appearing is illegal. We also require them to do a lot of work if they want to allege that a decision from the city is a taking. They don't have to do this within the 10 days of the petition, but they do have to do it before you and prove exactly what was taked, the damage

of the taking, and have all evidence of that um before you at the hearing. Just like the board of adjustment, we're going to require four of the five members have to support any decision. The big difference however is your decision is advisor. So unlike the board of adjustment your decision is not final. You actually will take your decision back to the board of alderman. And the idea behind this of course is um at the end of the day once someone is through this decision or process um if they the next step is to sue the city. So, it makes sense that it's the board of aldermen who has the finer determination to review that evidence and determine whether or not yes, they're willing to go forward with the risk of being sued and going through the court with the record they have or other decisions. Um, but that's the point behind this and the reason we have you guys be that board is because you are already used to hearing from attorneys, having to look at evidence, having to have that court reporter there. Um and this one is a little bit when it does happen is a little more on a little more robust because usually there actually is a very other active side. Um so ethical considerations we already talked about the ex part communication. Um as I said the reason we don't do that is because it endangers the right of really saying you had a fair decision. Um, I c you can't say you had the other party had a fair determination and fair if if you made your determination on tons of facts they never got to hear or answer to or let you know their opinion on. Um, so you have to have that they have to be able to hear your evidence in order to have that. Um, so you can't have that exparte

communication. Um, and so just the golden rules, do not discuss matters with the application attorneys and don't hear evidence outside the hearing or you'll be in trouble of possibly violating the due process of the house. Um, so ethical consideration section 105464 is your specific statute. It addressed quasi judicial board specifically and you are not allowed to proceed or hear any matter if any of the party is any of the if well you know any of these parties or any of these this one doesn't go quite as far as the like nepotism like nepotism should be he should know the party is this one it's much closer but so if you don't know the person as your grandparent technically under the statute you you didn't violate it, but um it is a personal obligation because I really don't know who your grandparent is. Um so it really is up to you to kind of look at this list and if someone is on, you know, coming before the board that is one of these people, you absolutely cannot hear this case or you violate the statute, which is violation of a law, which you do not want to do. So really make sure that no one is coming for that is with those. Um the other general ethical statutory prohibition is really that you are not allowed to hear any kind of decision or take any kind of action um that is going to give you financial gain. So for board of adjustment the best example I can think of is say you are a developer and someone is coming and they're asking for a variance and you are the developer. Well do you have a conflict? Well, you could. I mean, if if the variance is granted and that actually results in me being able to build more, which results in my contract being more, well, then

yes, I absolutely just got a financial gain and that's a violation of the ethical statutes. Um, but that's really what you're looking at. You can't use or disclose confidential information for a financial gain. you can't make any kind of decision on this board if it's going to render in any kind of financial gain towards you, your family member, or your dependence. Um, but kind of the developer one is the the only one I've really ever seen come up in in the board of adjustment. I'm so close, Ralph. One more slide. I'm sorry. I just What slide? This is the B. But you know, you know this slide, so you're good. But no, this is um this is the idea that one, there's kind of two with bias that if you already have your mind made up on a decision, again, you're not having that fair process. And so you cannot come to a decision of the board saying, "Oh, yes, I'm yes, I'm going to grant this variance or no, I'm not going to grant this variance." Um, but that no way means that you can't already have a idea of how you are going to rule. Um, and so if there is some kind of relationship between you and the applicant, that is where you see the bias allegations come up the most. It's not just you don't see that often that oh well that's my neighbor and yes of course he's biased towards not wanting this development. You don't see that much. It's more really that's his neighbor and their best friend so of course he was going to vote yes to that. Um it's not bias or even appearance of conflict for that to occur. You can of

course make a decision on your neighbors varants. Should you? However, no. And I would recommend if you can avoid it, not because it does have that ability for someone to claim that you were biased, that of course you had your mind made up. You're going to give your neighbor or your best friend whatever they asked for because they're your neighbor or best friend. Um, and it has that kind of appearance that you, you know, acted improper because of that. So even though it's not a financial gain and not a conflict, we always do recommend that if you do have that close relationship with the person, um if you can step back and recuse yourself from that. That's why we have the three alternatives to just avoid that kind of issue. And that's all I have.

And I went a little over. Sorry. Have to Adjourn. Adjourn. I need a motion to adjurnn. I so move. You have a second. Second. Roll call vote, please. Member Clauss. I. Member Phillips. I. Chairperson Sbert. I. Vice Chairperson Mooney. Hi. Member Phillips Fig. Hi. We are adjourned. Okay. Yeah,

sorry.