Detroit Board of Zoning Appeals — Board Member Training

4:31PM Aug 26, 2024

Speakers:

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petitioner

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rules

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zoning

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Okay, I mentioned that you received the approval criteria. Number four, city council has district meetings throughout the year. I invite you to attend your district meeting. I will be going to those meetings representing the board of zoning, but it's your choice and your council person, but it would be advantageous to us all if you could attend, not all the time, but occasionally. Let me get through this. Okay? And that's also for you to communicate with your council person make sure that they know you know what they're what's going on in the district, and there's just anything that they might want to communicate back and forth to us. We do conduct our meetings by Robert's Rules of Order. That is not an issue, but there are times when we forget that we have a chair that chairs the meeting, I just ask that we remember that we conduct our meetings by Robert's Rules of Order. Be aware that we are recording. I've been told by staff who sits out there and looks at us that sometimes our faces and tell what we're thinking contrary to what we're saying. So let's just be conscious that we're being recorded, not so much the faces, but if your mics are on and you're having side conversations, those conversations are heard live. So mute your mic and just remember that we are being recorded

when respect to peer for his reading reports. I ask that you pay attention to those reports. Oftentimes, she will indicate that certain aspects of the approval criteria have been met, so you can reference the staff report. A lot of times, questions are asked answered in the staff report. So that's a good document to review and be aware of and to listen when she's given that report.

I'm going to let attorney dimmers deal with this one in the training. But when you go into board discussions, let's be careful that we don't open things back up for petitioners to have back and forth. Complete your discussion before you go into your discussion. If you want to spend four or five hours talking to the petitioner, that's fine, but once you close the discussion, it's not proper to bring the petitioner back again. We operate under Robert choose of order. I uh, one of the other things that I asked Mr. Dermos to cover is that we are an appeals board. We take appeals we are not problem solvers. We are not here to fix things. We are an appeals board. We do have authority to impose conditions, but those conditions should be in light of us doing appeals, not trying to fix things. These are not things to say what you can or cannot do, but just be cautious of the lane that we're in. I often tell people that the border zoning appeals exists to let you run a red light if you have an emergency. You know you're supposed to stop at stop signs and red lights. But you know, if you have an emergency and the cop pulls you over and says, Hey, what's going on? And say, Well, I gotta get to the hospital, you know, he's gonna give you a variance and not give you a ticket, you know. But that's discretion, and you all have that discretion. But remember, you all are an appeals board. People are here to ask you to run that red light when you say, give me a good reason why. And you. Agree with that, fine, but don't try to fix his problem running red lights. Okay. Lastly, you have in front of you a draft document called BCA case report, January 2024 through July 2024 the ordinance requires that I provide a report to you all for our cases

for each year.

This is the report, a draft report for this year. The report will be finalized at our next annual board training. But this is a draft report for cases going back to January 2024 broken down by district in order of district one through seven. I hope that this is useful information to you, to be able to see you know what's going on with cases, what's going on with cases in your district, and hopefully, I know that board member not gets questions from her council person from Time to time. What's going on this? This report will be one that you all will be receiving that will allow you to keep up with those cases. And so with that, Mr. Chair, I have successfully procrastinated time for Mr. Dimon to get here, and I will take questions on what I have presented, and thank you for the opportunity to continue serving. And if you don't know, I have been reappointed for my third term ending in 2030 Thank you. Congrats, Director Brown, you're going to outlast all of us now as appointees. Hey, I'd actually forgot my question, but I forgot what I was I was going to ask you something around. I forgot what the topic was in, but I got notes. I think you were asking me around communication with council person in the district meetings. Yeah, district meetings, I will say this. And it's great to talk to your council persons board members, because if you, if you go out there, sometimes you are put on the spot. So I just want to bring that to your attention to so it's one of the good things to do, is go through the trainings and you know, definitely come to the hearings, but you're going to be asking questions sometimes, not all the times. I think those questions should be geared towards the department and not the board members, but sometimes individuals get that confused, but it'd be good to be a piece of fuse if and such, if such a thing could happen. And just be curious. Be sure not to talk about particular cases if you are asked on the spot do something. So

we're watching Mr. Chair, and I have a question concerning that very point, I did not know that requirement.

It's not a requirement, it's not a requirement, it's suggested. It's suggested.

And I was also under question that there should be some distance between your council president.

Well, I would say that's to me. Mean, distance is okay. It's okay to talk to your council member as long as they don't sway a vote. I mean, just keep that in mind, okay, but they should not sway any votes

at all, swaying votes in the discussion of matters and preferences, yeah, any discussion about Okay, not that there has

been particularly cases that we're about to hear, yeah, that we know is coming up.

And I have a question for Director, you made a suggestion, a point that we fix cases by additional suggestions. Last week, last case, made a suggestion that they do a parking provide a parking lot. Is that a situation in

you were definitely within, within the parameters of what you were supposed to that was. A good, a good case where you all debated and came up with a good, a good solution that that, but that there have been times when, you know, if you see me going up to Robert and saying, Hey, Robert, you know that that's, that's and that's just me making sure that we stay within parameters most of the time, if it gets out of hand, I'll say something to Tony dimmers, and then we'll intervene. But for the most part, your discussions have been in line with making good decisions,

and the follow up on that is when we make conditions, it seems to me we have to be careful when making conditions, because if you make one condition, as opposed to a condition with many legs or many different parts, if any of those parts are not legal, cannot be can be thrown out, then the whole condition would be,

yeah, and I think number one, you all debate very well. Number two, Attorney demons. And I would would be on top of that to suggest amending things, you know, but I think the debate is, what's important, if you Oh, what I was going to say about about conditions, I would suggest that we view department conditions and make sure that those make sense first, because nine times out of 10, they're here because of a condition that needs to be met or they don't want to meet. PND, does conditions also so make sure those conditions make sense, and then if additional conditions are needed, they would be attached, I think, to those, those conditions that have already been put out there, so that that helps you to be consistent, and it shows that we reviewed the case and we understand what the departments who have the responsibility of letting us know what's going on with the case that we are in line with what they're what they're recommending.

Thank you, sir, member

Watson, just to also add to that question or add a response to that question, we are preparing a guidance document on imposing conditions on grants, similar to the guidance documents that you use in making other decisions as a board, because there are ordinance provisions that specifically govern the kind of conditions that you can impose and the limits of those conditions. And our hope is that it will include, you know, questions and the legal language that will really give good guidance on what's proper and what's not. Because it has started to come up more this board has become a little bit more creative in its use of conditions. We want to make sure you have good guidance on that. So we expect that to be coming. Be coming

pretty soon. Our Well, you know what he's got. Let me sit down before you sit down. Director Brown for you, go ahead and that's regarding this document here, the number of cases this council know about what's happening in their in their district. I mean, I see four cases in district seven, but they get they get the docket. They get the docket. Okay, only if they ask about a case. Do I give specific information? Okay, now, I mean, do they tend to correlate looking at zoning cases and what type of development is happening in their district? Do you know? No, they they don't generally get involved in this aspect of things, unless there's a specific case like concrete crushing or another marijuana or something like that. But in terms of how development is happening in their district and how much is going on, they don't get that. But I should say, however, they will be getting this report, quarterly, quarterly. So so they will have the opportunity I did indicated my last interview that I would provide more information for them to know what's going on with DCA cases. Yeah, and thank you. That was again that that meets, does that ordinance for that report or rules of decision rules? Yeah, so it's our rules that that require that report be submitted. So if in your discussion of the rules and procedures. Pages, you see something additional that needs to be included with that report. Make sure that that's put on the record. Okay, I don't see Sherman at Osborne.

I was looking at the number of cases as well for district seven. I see there was four total cases. But I don't see the cases listed in the

in the docket? I'm sorry, what's what's your question?

It was four cases in district seven, but I don't see any of them listed.

It's not all in their report. In your draft. You may miss your page. Yeah, it's in the copy. Another copy, it just didn't, yeah, okay, thank you. I was born then I

was that's, that was what I was addressing, was the cases that I left off. But also, I know you emailed us a copy as well of this draft, and and I believe there were only three in district seven, and the report says four. So I

was up that that report only. The report goes through July. The numbers are through August. I stopped at July because we have not completed August yet. Okay, those haven't been I haven't processed those yet. Okay, one

more. The other thing was, this may be on a state level, but I was hoping that you or attorney dimers could offer some insight. I know that the Open Meetings Act is called board members, commission members, everyone back to in person, but the petitioners are still able to present over zoom. And like you said, if somebody is asking for permission to run a red light, do you know if there's been any discussion through any like municipality or state, where I get it the general public access to zoom, but where we can, I don't know why. I won't say mandate, but have the petitioners come in person. Encourage, no,

but let the Open Meetings Act. Is a tough one person, personally, I like zoom because it gives the community way more access to this process than they would have to have to come downtown, pay for parking, go through security, sitting here for an hour to get one minute to speak is not to me, good public service. I'm angry by the time I have to get up here to speak.

And I'm not speaking about the public, I'm talking about the petitioner, the public. I think they should have as much access to these meetings as they can, as we can provide. But to the petitioner, you're asking for us to give you permission to run the red light.

I will let it. I will let that be discussed in the rules and procedures. I'm not sure if we can mandate that or not, because of the way I was just asking if anybody, if you've heard, anybody have it. I was telling you what I have been advocating for since the Open Meetings Act was instituted during the pandemic, that it be opened up

more

and so more. The course has done the same thing. So still virtual and you're not coming in person, letters, even you know, when it comes to civil offenses, is handled by them, they don't come in anymore. Well, I won't say anymore, but Well, they do. In some cases they won't. I've been dealing with probate for the last eight years. We have been virtual the last six and I hate it, because I can't talk to a judge. My attorney is sitting off to the side. Is it is the worst is, as convenient as Zoom is, to be able to conduct all business that way, again, makes me as a consumer very uncomfortable.

Just one quick question. Hello, everyone. Are we going to cover the conflict of interest and recusing yourself? Mister

Demas is going to do he's going to cover everything that we have discussed, okay, this year, and since all of you have been on the board, yes, that will be discussed. Thank you. All right, thank you. I'm gonna go down that draft completed. Thank you for catching that. The two of you. I didn't even notice that when I come so now I'm gonna bring up. The illustrious amenable, my good friend, Donovan demurries, well before you, before you proceed. How long is the presentation today?

Six hours. Providence. Discuss. Robert didn't like

my joke, but I had to say things. Here is face back to him. So

I don't expect this meeting to run longer than a normal board meeting, so it will depend on questions and feedback. But we got the

reason, reason we've asked him really is glad to cut out here early I pick up my daughter at 12. That won't be a problem, but I'm sure Who else have kids in DPS? But it's my first go around at it. And got the communication yesterday to 12 o'clock pickups,

1240 for me. So I got a little bit of extra

time. 1212, 10 for me.

Yeah. So I understand if we we're here at 12 pin. Chairperson, Thomas, something's gone terribly wrong, and it's probably your all's fault, not mine, so we'll just leave it at that. We do have some breakfast for you all, so I just recommend we maybe take 510 minute break. We've got bagels and donuts over here, coffee cream, etc. So if you're if that's with you maybe. Let's take 10 minutes grab some food, and then we can jump into training. Let's go ahead

and go into it, and we can do it on our you know, sure, and just start talking, and you can go down there grab something. Hey guys, I'm not sure everybody. Attorney de donuts and bagos and coffee you want to partake? Feel free

take a donut. Yeah,

um, did you bring donuts

to Jonathan? Or there's donuts at the top, and bagels. Brought donuts too. So so many donuts? Yeah, it will just give me a minute to pull up the presentation and pass out. Okay, okay, okay,

that's what I use. Toes, my hand.

Grab it now. Might as Well grab them now. I

Okay,

Go with participation. This is

what we are. We already Have.

I this is what they do there. For chairperson, this is what they do there. I.

I put something together, okay, send it over to file industry closures and how to march in order. Goes

a lot more than you would need. But

really it's the same route as last year, stepping off at Michigan at six, walking up to Roosevelt Park, and we just changed the order, and we'll have a few like firefighters are going to have engine the operators have. We'll be finished by,

oh, it's our head. I didn't make any edits. Hopefully,

I'm hearing that we may have a special guest, but they show up, Jim and

more, it's gonna be a good time.

And we'll start a stage all over that area, by the building trades and IBEW and operators will start staging a service. And then police will come and officially close off at like 738 o'clock and move everybody on to border Howard and Sixth Street. Start at nine o'clock. We step off and everybody will stop moving toward Michigan at sixth and a couple of unions are having vehicles like busses, somewhere on Bagley train station, they can just walk from Roosevelt Park and get into their busses and grow off. Sorry, gotcha, but there'll be a lot of people walking back.

Okay. Be all right,

yeah, I'll get that over to You today. Okay? I appreciate

it.

Okay? Yeah, I I say Johnson wrote a book. I

Good. How are you doing? Good, okay,

Jonathan, you have the floor

at our laptop computers,

because it's a totally inconvenience For me. How do you get the whatever

that configuration? Document say he sent the cross? I guess he sent all this up across in advance.

Oh, that that's, that's what. Sam has an ordinance. That's a city ordinance. I think you should have one anyway. We used to get one coming into the board. Remember April? But I well, I think it's the paper reduction act with the department. So we used to get the ordinance, a copy of the ordinance when we came on the board. Yeah, when we first started. But then again, that was about 10, yeah. Plus years ago, I guess over I could say that

flavored cream is down here.

I don't like cream. Now take that back. I like it. My body does something

quirky. That's something quirky there. I

Very law department, right? You?

Uh, have we had sufficient amount of time to eat bagels and donuts and have coffee. Good, fantastic. All right, well, we can jump right into then Good morning board members. Jonathan rare city of Detroit law department, it's good to see you all this morning. The purpose of today's hearing is to review a couple of key items that are on the sports agenda, the first being some proposed changes to the board's Rules of Procedure, changes that are largely precipitated by the increase in the board from seven to nine members. And then secondly, a review of some case studies that my colleague Eric savage and I have developed for you as a kind of way to practice our work as board and handling complicated cases, there's, of course, though, plenty of time to be able to ask and answer any questions that you have, so as it is appropriate or as it makes sense in the hearing or even if it doesn't and you just need to ask a question, please feel free to raise your hand, interrupt me, interrupt my colleague, and we will be happy to take your question. So with that, we've got the PowerPoint presentation on your screen. We also have a few printed materials in front of you. You should have a very large bound booklet, which is mostly the city's zoning ordinance as of this year. It is regularly updated by the planning commission, by council, and so I wanted you to have a more up to date copy also. So when I get really nerdy and cite a section reference, you can go and find it and check my work. So whether you want to bring that every hearing or not, it's completely up to you. But the other resource that's at the very beginning of it are the guidance documents that the law department has prepared for you all for your hearings, guidance on how to handle variance, requests, guidance on how to handle community appeals, artships, the different subject matter that are before you. So all of that will be in one place now, and I'd like to make it a habit of giving you a new booklet every time that we hold the training. I've also given you two copies of the proposed rules of procedure. One is a red line. That's just a term in law that we use to describe kind of a tracked changes document where you can see what's being changed. Honestly, for most people, that's kind of difficult to read, because you can see what's been deleted or added, and it's it's very complicated. There's also a clean version that doesn't have any of those changes tracked, and that is the version that we're proposing as the revised version of the rules. Just know this is not the final version by any stretch. The law department has a municipal division that is kind of specializes in legal opinions and municipal ordinance issues, and they will take a good hard look at the rules as well. So what you will be reviewing today, and hopefully what you motion to approve are rules that would still go through at least one or two more layers of review. Any questions so far

regarding amending the rules? Yes. When are you proposing? Is this a time right now you're going to give it to us, for us to look over, and then you're going to ask for an approval later, or you're you're speaking specifically for today to approve these today.

Chairperson, Thomas, we the law department and the PCA staff are asking for your approval of this version of the rules. You're welcome to propose additional changes. I don't anticipate that's significant. Substantive changes will occur after today's hearing. The final reviews are mostly just to make sure that references are appropriate and that the rules are consistent with state law.

My concern is we haven't had a chance to look at this yet. That's

correct, so this is a chance to just, you know, walk you through the high level review, and if you're not comfortable making a motion on it today, we can absolutely table it for a future hearing.

Can I? Can I? Can I actually discount Absolutely, let's approve this at the next hearing. It could be part of our procedural matters. I

have no objection to that, Chairperson,

okay, I appreciate that. It gives every board member opportunity to go absolutely all right,

I might be trying to sneak one past you. You gotta make sure I'm not.

And number two, I just want to let the audience know this is a zoning hearing. I'm not sure if everyone's aware of it, but let's put it out there. Thank you for watching

a restatement of what you just said. So I clearly understand we examine this, make suggestions as to what we think should be changed and or added to, and we will submit that on the 19th.

Hearing date is the 16th of September. I believe September

you may have no changes. Board Member Watson, I'm not sure what these changes are. Primarily are changes to make the rules up to date, because the old rules cited the old 1984 code, and to increase the rules to account for nine board members instead of seven. There are a couple of other changes and tweaks that I'm going to review with you, but largely the rules are the same aside from those things, so it's not a particularly controversial set of changes.

So outside of that, I'll suggest not offending anything outside of the changes that the law department offered up. If we want to. Yeah, we can. But for this, for this draft, let's look over this draft here and approve it on the 16th of September, after giving every board member a chance to look over the red line item zoning, and then we can come back and suggest other changes, but we're looking at what they're looking at redraft Well, looking at these red line items and review. Your

microphone might not be quite picking you up, sir, I can hear you here, but not through the

former moment. Yeah,

I had a I'm confused. I'm looking I think I have two versions, and one is red and one is blue on it. And I'm wondering, okay, I strike through, I assume it's language removed and underlines, I'm assuming is added language, yes, but I have one that's black and red, another one that's black and blue. Which one we're referring to here?

Just Just to clarify, there are two documents that you have in your possession. One says draft, August 2024 at the top, if there are no red lines in that that's the clean copy. That's if all the suggested changes are accepted. The other draft that has blue marks on it that cross things out and underlying new text, that's the red line. That's a legal term that we use, even though it comes out blue in this print, just to refer to the tracked changes that are being proposed. So this is highlighting all the changes. Board Member Bowman. This is if all the changes were accepted.

Okay, which, which ones? I can't start it up. Which would which one? Red or blues, all the changes were accepted.

Yeah, yeah. June 20 for June, August 14. I have three and then the August 20. Oh,

I see the August 14 is like an update of the June 20 version.

Yeah, the Yeah. We've been reviewing these rules for a while. So there's an old version that was a June 20, but that don't, don't get confused by it. This is why I gave you a clean version and a red line, the one where you see cross throughs, that is the red line version. That is the one that tracks changes. You should have another copy with no track changes on it, no blue marks, nothing. It will say draft dated August 2020 24 because it's not final yet. This board hasn't approved. It hasn't gone through public hearing yet.

Okay, so before we move, we're looking at the Red Line document with the blue, the red blue document,

three documents. I have three. June, 20, August, 20 and August 14.

August 14, that date at the top, June 20. That's the document that he wants to look at, as well as the draft dated August the 20th. And I'm looking around. I. It with the septic changes?

Yeah, I think this document was for sure. I'm

not sure about that document. It's no issue. The bottom line is, the two that I gave you today are the ones you're looking at. They are actually the same document. One just shows you the changes, and one does not. It shows you all the changes having been accepted. You're welcome to look at either one. Frankly, I don't think it's essential to board review every single change that's being proposed, though you're certainly invited and welcome to do that. The goal of the presentation now is just to cover the high level, important changes that are being made, and not walk through every single little one, because most of them simply don't require your attention. It's changing code references, it's grammatical changes, it's things like that. Okay, so with that in mind, April, if you don't mind getting to the next slide, I do have our contact information in the presentation today. We will make sure you get a copy of it if you haven't already. But both myself and Terry Erica savage our counsel to this board, and I've been doing this for a little over three years now. Erica is newer to the team, but we are here to help you on these issues that we're talking about today. And frankly, any issue, I've had phone calls or individual meetings with almost everybody on the board at this point, and so you should have my phone number. You know how to reach me, and I encourage you to do so anytime about any hearing or any question that you may have, including especially the ones that are up here on the screen, and go to the next slide. So again, part one today is going to be about the rules of procedure and the proposed revisions, and then we'll likely take a brief break before getting to part two, which will be the case studies that attorney savage and I will be walking through. So let's jump into the rules. Again, we've covered a little bit of this already, but for the past calendar year, the law department and the BCA staff have been preparing proposed changes to the BCA rules. Mainly these proposed changes were triggered by the increase of this board from seven to nine members, that affects quorum, that affects voting, right all of those bits of language needed to be updated as a result of the ordinance that was passed by council, because we are changing those rules pursuing section two, dash 111, of the city's charter that change these proposed changes have to go through a public hearing process where the public is given an opportunity to be told about the changes, provide their own bits of comment and input Before the rules become final. And so this is the next step, building towards that public hearing. And then at the conclusion of that public hearing, subject any further changes, the rules become effective once they're published. And at that time, we will give you a brand new set of visa rules of procedure with a brand new date and a brand new set of details. So that's, that's what we're doing right now, is we're giving you an opportunity to review some of those changes prior to that public hearing and prior to they they become final go to the next slide. April, so I'm just going to walk through some of the notable changes. Again, not going to walk you through every single proposed individual change. So in section 1.03 if you could go the next slide April. This is where some of the changes were made in terms of the number of board members. This shows up in section 103 the change goes from seven to nine. And also in Article Three, where meetings and voting are discussed, quorum is discussed. There are changes there as well increasing the vote, as has been the case and as will continue to be the case, a quorum is the majority of board members then serving. So presently, there is a board of nine members serving. That means that at a minimum, a vote of five will always be required to take any formal action as board even if only six board members are present at a given hearing. Similarly, if a board member were to step down, you would still require a vote of five, because that would be a majority of eight board members then serving, and that will continue to be the case. The rules are just being updated presently to reflect that in section 1.04 a the original rule said, Oh yes, Chairperson, just

want to, just want to interject a little bit. So with that being stated with each one of the board members, if you guys decide to step down, please let the department and your city council member know ahead of time, because that also means that's going to be problematic for the board if they don't find a replacement soon enough, it could be an issue in a serious way, potentially, since we need five members to pass anything on the board. So I just want to put that out there.

Thanks. Jefferson Thomas, any other questions? About the quorum rules. Okay, so another change that's being proposed here is just to be consistent with our current practice. The rules currently state that elections and nominations occur in December, but the practice of the board for many, many years has been that those occur in January. So we're proposing changing the rules to be consistent with the board's practice, and so that would mean that there wouldn't be any elections or denominations at the end of the year, which can be a little bit of a crazy season, especially with the holidays, and that upon returning from the holidays in January, at the next very first meeting in January, nominations and elections would occur for this board section 2.02 we're just making it clear in the rules that if there is a question about a conflict of interest, that the law department is available to help provide preliminary guidance, but not to make a determination. It's not the law department's place, nor is it appropriate for the law department in all cases to determine that a conflict of interest exists. However, we are here to provide counsel and guidance on that if board members have questions about what they may perceive for themselves as a conflict of interest. So we're just making it clear that the law department's available for that question and board member not I know you had a question about conflicts of interest. Is this a good time to ask about that or or did you want to table that? Please go ahead

so I know that we had, you know, there was an issue with one of the cases, and I ended up recusing myself because I I was aware of this particular business and their egregious practices in the community in which I live. And so as a result of, you know, I guess my knowledge and the information that I was bringing, I was asked to recuse myself, because it seemed, you know, I guess they thought that, you know, I may have been too biased, and I thought it was, it's almost a fine line. And so we even discussed it afterwards, because if you are aware of what a particular business is doing, so obviously, we are appointed by our city council members to represent our community, and if we feel that an establishment you know adversely impacts a community, then how do we respond to that? Does that mean that we have a conflict of interest. Does it mean that, you know, if we are expressing our concerns, that we know about that, you know, we cannot be objective and in voting on the issue? And I think it's a I think it's a very important issue because of who we represent. You know, I don't just represent the city councilwoman. I represent the community in which I live. And so I think, you know it, I think it bears perhaps more discussion, and I understand that the way it was done, in terms of Kimberly, you know, do you want to, you know, putting the onus on me to actually recuse myself, and I ended up doing it. But it was just, it was just an interesting predicament to be in, and so it's, you know, how do you bring your total self to this position representing the interest of the community as well as you know, being as objective as you need to be in presenting or voting on a case, if

I may, chair just briefly. Thank you for a very, very well stated and nuanced explanation of a very complicated situation to add further complexity to the situation, that case is currently being appealed to circuit court. So for the purposes of you know, ensuring that the law department has the best opportunity to defend this Court's decision in that case, I want to encourage this discussion to continue, but to keep the conversation about conflicts of interest generally and not specific to that case as much as we can, and if that just becomes too difficult, then we can have a separate conversation off of the record. But I think it's appropriate to try to protect the case, if that's all right, but I think it's a very important question. I think it's worth the conversation as long as the chairperson sees the same Yeah, and I'm just

going to add on a little bit to the case, similar, well, hypothetical cases like that, if that's occurred, I think what board members are so directly impacted by a project that that comes before the board? I think you know, at times you. You may not know it, but you could be biased of when it comes to the board and the decisions and just the look of it, if you, even if you're not, the look of it is, you know, that can be challenging, not just to the audience, the community as a whole. One good thing to do if you are in such position, I particularly think, is to contact that community association, block club, the neighbors, and get them out there in droves so you won't have to make the statements that you would normally make, and that's to any board member, if you're asked to recuse yourself, or if you are in that position that you know, I think it is good to recuse yourself so you won't make it look like you know you making the decision that you may you shouldn't be making. But get, I mean, get that army there so you won't have to be put in that position, is my point.

I think that's fair. And I you know what, what just keeps ringing in my mind is when we go back to 54, 121, and that one specific question where it says, Will your establishment adversely impact the community? The businesses and I always add residential depending on you know if it's relevant or not. And so you know that that's the one that really makes me ask tough questions.

Mr. Chair,

so to to and attorney generous, the the our zoning organizational athlete gives us specific situation where a member must recuse if there's a conflict of interest or the appearance of a conflict of interest, and if that member does not, that's malfeasance, and it's very specific in the ethical duties under Article Two,

can you read that? Because that you and I went back and forth over that? Yes,

ma'am, we dropped down page four,

the rules, procedures, rules and

procedures.

Yeah, well, let's read the whole thing where it says ethics and conflict prevention, Article Two, on page three, ethical duties. Each member of the Board shall comply with the ethical standards of conduct as provided in section 2106, of the six charter, and with the provisions of this article, in the event of a conflict between city charter provisions and vision of the articles of the city charter shall prevail, be a member of the board show neither solicit nor accept gratuities, favors or anything of monetary value from any individual entity that has an interest in in or may benefit from a decision of court. See, remember, the Board shall not obtain for him or herself or for any person with whom he or she has an immediate familial or direct business relationship, any financial interest in a matter which may be affected by a decision board made during the members ginger on the board, a member shall not appear before the board as a petitioner, representative of petitioner or party interest in the petition during the member's term of office. And here's the portion C, a member shall avoid the appearance of impropriety by not discussing cases which notice of hearings has been provided to the petition of pursuing to Section Five, two, outside of a legally constituted meeting or an individual conversation with staff, a member shall further disclose any communication issue as with the petitioner representative petitioner, regarding the petitioners case after the notice has been provided to such petitioner, pursuant to section 5s, 9.02 such disclosure shall be made after the case has been called pursuant to section 504 members shall conduct themselves in a fair, courteous and understanding manner at all times. Conflict of Interest in voting, I remember the voice, shall abstain from discussing voting in any matter in which the memory is involved. In a real or apparent conflict of interest, in a real or apparent conflict in. The potential conflicts of interest shall be evaluated on a case by case basis, reasonable consideration and application of principles provided in this section. Circumstances in which a conflict of interest may exist shall include, but not be necessarily limited to matters with the board member or any individual with an immediate, familiar or different direct discipline with the board member has a direct financial or beneficial interest. Matters involving property that is fully or partially owned by the board member, or which is adjacent to property owned by board. Matters which involve property that is wholly or partially owned by the board member. Matters in which any individual with an immediate, familiar, direct business relationship with board member is an applicant, always an applicant, or has a direct financial benefits of interest in the code board member who believes he or she is subject conflict shell immediately upon first knowledge that the potential conflict exists, declare that a potential conflict exists, disclose except where it is, abolish confidence the generation of conflict, recuse him or herself from the matter in the event that the Board Member conflict, board member who has recused him or herself to raise potential conflict without another board member, a majority of the board members, has present me both to declare the member at issue ineligible to participate. And basically it says here, if your home or if you have property in in in adjacent to the issue being considered that is a conflict. No,

no, the rules don't say that board member Watson, I don't see that in the rules. Yeah, I'm what specific provision Are you referring to? Board Member? Was sorry, is there? I read through the whole thing, but the specific provision that you see as applicable living near the property,

I didn't read it there. But there is a, there is a requirement for a recusal if you if your property is adjacent to a matter under consideration. No, that

not that I'm aware board member, unless it's in here,

yeah, it's got the two Roman numeral, two, small case on page five.

Oh, I see, right. So that language specifically says matters involving property that is wholly or partially owned by the board member, or which is adjacent to property owned by such board member. Meaning, meaning, so, for example, board member Watson, if the property before the board is before that's before you is something that I own, or partially own, or my property is right next to it, then I have a potential conflict of interest here, because I stand a gain from the board's decision. That's not the same as board member till not specific situation. One, her property was not directly adjacent to the property, nor was it the property itself. And the intent of that rule is to protect board members from ruling on decisions where they have a financial interest

without going into particulars of the case, as you say, let me give you a hypothetical chart I have a business property on Whittier. On where? On Whittier Street, Whittier.

I just want to know where to go to your business. Okay,

stop on Stockwell. There's someone getting ready to do something across the alley right now. It's detrimental to my business on we and I say before the board that they have a history of being a problem in the community, a problem for all of the residents adjacent and around that particular matter under consideration I should, in My mind, I should recuse myself rather than give you a five or 10 minute rebuttal for not accepting this case, I should recuse and remove myself from consideration. I should not vote on that man. Yes or No,

I think that would be a very reasonable and conservative position to take. I don't personally think that that is what the rule is covering in this situation, because I think what the rule all of these examples are examples where a board member has a financial interest in the case and stands to gain from that financial interest. However, I think in that situation, board member Watson, if you looked at that situation and said, You know what, Attorney Demers, I think my bias is going to overcome my ability to judge impartially, then I should at least share that with the board, if not outright, recuse myself. That would be my recommendation in that case, and that's, that's the way I would approach it. Ultimately, it would be the board's. Position. If the board came to the position you just stated that this is, this is a conflict of interest in terms of how we understand the rules to state to then take a vote to have you remove yourself. I would not consider that a black and white case of an absolute conflict of interest, as you presented it.

My concern is the malfeasance. If I in this hypothetical situation for five minutes, yes, just say how terrible this blah blah blah is and how it affects my property and all that kind of stuff. When I go on for five minutes, and I've already indicated by my opposition and my statements? Yes, I have an I have an opinion. It's not going to be changed that the petitioner can't get a fair rendering or vote for me because I position myself dead against

sure and board member Watson, that could be true even if you lived a mile away from the property or a block away from the property where you've made statements on the record in this hypothetical situation that have made it clear that your mind cannot be moved. And I think that that would similarly be appropriate for the board to then take a step back and consider whether or not a conflict of interest exists here, regardless of the location of your property, based on the statements that you've made, that would appear to be an apparent conflict of interest and an inability to judge the case courteously, which is what the rules speak about fairly and courteously, if you're not able to even entertain the arguments are being made by the applicant, I don't know how that could be characterized as courteous. So I think your instincts are very strong. For board member Watson, I think we should all be very conservative in our approach to conflicts of interest. My only slight disagreement with you is characterizing that hypothetical as an obvious slam dunk conflict of interest, because I don't think that's what this rule will say. And then to the malfeasance point. Board member Watson, just very briefly I see board member, Bowman, malfeasance is typically in the form of, you know, financial misbehavior, right? So embezzlement would be a form of malfeasance when someone opposes a project as opposed to stand financially from the outcome of that project. That is a slight difference, but an important difference from Malcolm. What these rules are really, really concerned about is board member Roberts being entrepreneurial, getting involved in a business venture, and that venture coming before this. Board and chairperson Thomas isn't here, and board member Roberts facilitates that hearing when he stands to gain from a critical variance of that project that is the primary concern of these rules. But that doesn't mean we can't be more cautious, and I think we should.

And what about the appearance? Just regard the appearance of and just

okay that that is so, you know, that's why I encourage you all to call me if you perceive the risk of a conflict of interest, so that we can walk through those situations. And I generally encourage board members to recuse themselves, even when there's a potential appearance of impropriety or conflict, because it has the, you know, the potential to really undermine the board's collective work.

Okay, this board member, I

actually kind of accumulated, by, I think, three or four questions. The first one is, let's say you have okay, we need five people to approve, and if the vote runs short of five, then it would be a fail, a denial of a variance, for instance. Now if I was recusing myself, and there are only five people present at a meeting, would that then negate the quorum? So if I recusing myself, it would become a denial. No, no,

it's a great question. Board member moment. So in section 2.02, subsection e, if her accusal Put board number under the section results in the loss of a quorum. That matter, including testimony, shall be postponed until the next regularly scheduled meeting at which an eligible quorum is present. So it does affect the quorum, it affects the quorum, but it does not kill the case. It simply postpones it to a quorum.

It would be similar to if I just left the meeting or something like that, and we lost more.

No. I mean, yes, I guess, I suppose it would be a similar outcome. So I don't encourage you to leave any

meetings. Okay. Well, no, I would make it sure I understand that, because it seems like that would could itself be kind of a, you know, conflict. But obviously that's already been addressed. Great question. Go take that further down the road. Another. Another thing came to mind is, I'm looking at familiar relationships and business relationships. What if you have neither, but you are simply friends with the petitioner like, I mean, you know each other well, you hang out. You. Just cool together. Would that be a conflict of interest? That's

a great question. Board Member Bowman under the rules as strictly interpreted, similar to board member Watson's question, I would not characterize that as a black and white conflict of interest. However, if in your assessment or the board's assessment, you lack the ability to judge impartially and in a fair and courteous way, you should probably recuse yourself, or the Board may choose to have you recused because of the apparent conflict of interest. And

if you feel you can judge fairly and impartially, it's still like I'm thinking of linkages where I disclose that you wanted. It wasn't the petitioner, but one of the community members that if I know the petitioner, if I disclose that and then say, I believe I can still roll it partially. Would that be appropriate?

I think so. Board member Bowman, and in fact, in cases where board members have communications with applicants after the case is the notice the rules specifically say that you must disclose that kind of communication before. Karen, so I think it would be appropriate to follow the same course of action and other apparent conflicts of interest. Great question.

Board Member, Chairman,

I know you had a question

as well. So if a petitioner brings a case in front of us, and it does directly affect myself or my property. That's not an automatic recusal. When

you say effect, meaning that it will impact the quality of life at that property. No, in my opinion, that is not an automatic conflict of interest. However, if it is going to benefit you financially in a significant way, right? If you're if you're going to even benefit from the synergy of a new business next to yours? Technically, that may not be a black and white conflict of interest, but we are getting into territory where it's going to be very difficult for you to exercise fair, impartial, courteous judgment because you have a strong financial interest in seeing that business.

I think attorney Dems in those types of cases, just please reach out to

our council,

which is attorney dimmers or attorney savage when it comes to issues like that, especially for advice. So I think that will probably help solve any problems that come up

like that. And how will we so in similar situation, when it comes up at the board meeting, we're asked you to intervene, and

it shouldn't come up at the board meeting, we should have a discussion.

But here's an issue, and the question of accuser, as one board members see that another board member might be biased because they have a personal interest in the issue of accuser comes up. So we then go to Jonathan Ford a determination is that, well, what do we do in that situation?

Sure. So if it turns out unexpectedly, in a hearing that you perceive another board member, or any other board member perceives their fellow board members possessing a conflict of interest under the rules, specifically, I think it's 202 C, just confirming that yes, 202 C, in the event that a board member questions that a conflict, that questions the conflict of a board member who has recused him or herself, or raises a potential conflict regarding another board member, a majority of other board members of the other board members then present may vote to declare the member at issue ineligible to participate, which is similar to what happened recently, In that if, if you were to identify that another board member has a conflict of interest, the meeting would pause. There'd be board only discussion. The conflict would be discussed, and a motion would be entertained to ask that or to have that board member recused, unless the motion were unnecessary, because board member recused themselves. This board member, I board

member, yes, oh, thank

you. Lots of questions. I appreciate the questions.

Okay, I just wanted to say that, you know, in terms of being impartial, we have 10 questions that we have to answer or respond to, and in terms of showing our impartiality, and so just because you may be partial or you may have an issue with one of the questions does not necessarily mean that you cannot be impartial for the other areas. That's just one area, you know, one, one particular question. So I think we also have to take that into consideration. And it's good that we have these questions to guide us as we're, you know, to ask the petitioner, which makes it easier for us not to be impartial when we are asking our questions in voting over all on the particular, you know, the. Case,

that's a that's a fair comment board member not and I think presuming good faith on the part of our fellow board members is an important part of having healthy board dynamics

more round. So

based off I'm looking for some guidance here from the board. And from attorney dimmers, I know that 2.02 A says to abstain from discussing or voting. And then we go down to C, and it says the must board member who believes that he or she is subject to a conflict of interest must immediately upon first knowledge what's the appropriate time to reveal that I believe I must like, is it during procedural matters? Is it before inspector purifier goes over the matter where? Where would you say is the appropriate time to disclose that

chairperson times you have an opinion about that? Well,

I usually ask the chairperson is after me. But when I, when I typically ask the anyone have any questions for Miss pierful After that initial presentation, I think they've great time to just go, go ahead and state that you're going to recuse yourself if you're going to do so if you find that you can't be, you know, if you're going to be biased in some type of way on a project, I think you should, number one, recuse yourself, and I think that's a prime time to do so, okay, yeah, thank you.

I couldn't agree more Jefferson Tom,

and that's before we get into the meats of the case. So Correct? Yeah,

you don't want to do it at the beginning of the day, because there are three or four hearings in a day, and you're probably not recusing yourself from all of them. So I appreciate that

I have one, you know. We're going to go on for this matter. I will, you know, so let not state that, because this is a training, and I think everyone should be asking these questions. I love the fact y'all are asking these questions actually. But one, one matter. We don't get we all gonna get caught up in and at one, one time or another, because we're, you know, we're involved in our communities and various community associations, things like that. Is a 2.0 1e regarding ethical issues, a board member shall avoid the appearance of impropriety by not discussing cases for which notice of hearing has been published and provided to the petitioner. And I'm not sure if anyone's come to you guys thus far, but once that notice is there, you cannot discuss a matter period, you should not be discussing anybody, even with council members, that does not doesn't look good on and that's in the rules. So we shouldn't be doing it. And we go out to these community events, and believe me, community members of the community will be coming up to you, asking questions, particularly when they find out you on the board. I've had it last hundreds of times, so yeah, but do not, please, do not discuss opinion matter. Got a floor.

I can't say it any better, and I can't restate further how we started this conversation, which is that the updated rules will be crystal clear, that you are invited to consult with the law department on these exact questions. I also think the quality and the extent of the questions reveals how complicated this is, which is why you all are involved in making these decisions where conflicts exist, and also, again, why I want to restate the importance of presuming good faith, and you know, and your other board members, because of how complicated this specific topic is. And one

of the things I do to avoid that is I will talk to community members and ask them to request a training on how you know the community should engage. Should this their particular issue come before us? And so I think that that's another good thing to do, because a lot of times the community just does not know what should be included in a community appeal. So I've really been pushing that among my community members, community contacts, and I tell them, like, look, once it gets to, you know, board of zoning appeals, I can't talk to you, so let's just do the proper planning ahead of time, so then you'll know how to respond, and you'll know what information is needed. So that's what, how I do it.

And you know something, high. I think I have changed. I think I had, I thought I was going to recuse myself at one point. It was, it wasn't anything business wise. I think I was in, I don't know, maybe a foster home or something, or it was store or something down the street. And, you know, I asked a petitioner. I'm like, Hey, I. A, you know, I used to live in the area, and, you know, I think my foster mother at the time lived down the street, and she may oppose it, but, you know, I didn't care about the, you know, care about the project, but the concern of it. But I asked the petitioner, I'm like, hey, you know, you have any problem, you stay here. I could, you know, won't be biased or anything like that. And a guy was like, No, you're good. Yeah, we went along and presided over the case. So disclosure number one, and definitely reaching out to council would be a great thing to do, so we could probably move on from

that matter. Thanks, Chairperson, Thomas. Uh, proceeding to the items on your slide on the screen, there are a couple of other changes I wanted to highlight for you. One, is mostly a technical issue that won't really concern your day to day work, but does concern the work of the staff and the law department. We wanted to clarify that the record of the BCA hearing does not include the full transcript of the hearing under the Michigan court rules, the record includes the minutes, the decision, etc. It does not include a transcript. And this has been an issue where the city has ended up having to pay a lot for the transcript and appeals. When your cases are appealed to start to court. So we're just trying to be as consistent as possible with the Michigan court rules and our rules that the BCA staff do not have to pay out of their budget for a transcript that an appellant

wants. And we're replacing that word with what we're just we're leaving

it silent because we're gonna, actually, I think I've replaced it to cite the Michigan court rules specifically about the transcripts of responsibility of the appellant. Do we mention

anything about four years? We do not, not in the rules

if moving down now to section section 6.0 1b this is an important rule for you all to consider in your voting decisions and receive some discussion within the law department. Under this rule, a motion to grant a request if it does not receive a submission sufficient amount of favorable votes is automatically characterized as a denial. That is the current rule, and we're keeping that rule. We had a fair amount of discussion about that because, from an appeals perspective, it can be sometimes difficult to understand the basis for the denial, if all that was made was a motion in favor of the application, and only three votes are cast, and so we're working with our appellate team just to make sure that we can clearly link the denial to the board's discussion and the evidence and facts that were presented to the board, because under the court rules, your decisions have to be based on content, facts and information, and must have a sound basis. And so we don't we didn't want to confuse the courts on that by having these kind of automatic denials entered and no explanation given, no motion given for denial. But at the same time, we didn't want to leave this board in a quagmire where three or four board members are going back and forth with motions and no one is receiving a sufficient amount of votes to deny or approve an application. So we're leaving the rule as it is. I just wanted to invite you into some of the thinking that we we put into that, and also see if you have comments or questions, I will say,

and I have noticed, especially on the appeals court, and we, we make a motion, and the motion is made, I make a motion to deny the Building Safety Engineering, blah, blah, blah, or No, I Make a motion to deny the appellants reversal of the decision of Building Safety Engineering, if the if we don't get the necessary votes, that denial then becomes a, if it fails in that denial is a what? Was the results?

There's no automatic grant. In that case, there's only an automatic denial when a motion to grant is made and this insufficient amount of votes are obtained.

The point to me, it seems to be, if we made the motion in the reverse and did not make a motion to deny, a motion to approve, we could get two different outcomes, yes or no.

In my experience, I'm not sure I've ever seen that. I haven't been here as long as chairperson, Thomas, some of the

other board members we have, unfortunately we we've actually had a matter before us where we you guys weren't here, but the two of us, at least, were myself and by we were we may have over. We moved to there was a motion to deny. The building and safeties, maybe denial, and then we came back for another vote. We voted on that came back for another vote, and they actually voted that down as a body. So we're in quagmire there.

Like, what do we do now?

We had to, I don't know we had to do another vote, or it was something else we did, but we should never even in that situation in their first place, and hopefully we won't, with nine people

here, there are options at that point, such as taking the case under advisement, under

advisement, and came back and voted accordingly.

The point, point I want to make is that everybody, every board member, should be aware the wording of their motion can determine an outcome. Yes, if you we had a situation where the motion was made to deny or believe and it failed for lack of support, whereas if it was made to affirm, it might have passed. So you need to be aware of that. Yeah, right. I

think we're going to discuss that later. Promotions. Are we doing that today?

We didn't get a chance to talk about your opinion. Yes, I wasn't. I wasn't. To discuss, but we're gonna have, I think, another training in November, and we can always bring it up as a procedural

matter. So we need to be aware of how you word your emotion. You can, you can be defeated just by word of promotion, as opposed if you worded it in the reverse. You need to we need to know that, if I may, forward, we thought we had, well, we thought it was going to pass, but it failed because it was worded denial.

Right just to and I see you, board member, I'm coming right to you, sir, just to re emphasize the salient point that board member Watson is making here, if you are seeking a motion to approve a request that an applicant, the party before you, not the city department, the party before you is asking a variance, non conforming, use change a hardship, if you want To see their request approved, you should have confidence that you're going to get five votes, because if you only get four or less, that vote will transform into a denial. So be careful in making too rapid of a motion to approve something that doesn't have a sufficient amount of support from your fellow board members, or you will inadvertently kill a project. And I've seen that happen a handful of times since I've been working with the board where a well meaning board member didn't really have a sense for his fellow board members votes and inadvertently undercut a project. And we can talk about the mechanics of that, but I just that is such an important strategic tool that you need to have in your back pocket when you're looking to see a project approved. Or Bowman, did you have question? Yeah,

I would just try to, I think maybe, I think I'm clear on the distinction between a denial vote failing and an approval vote of failing, but just to and I'm going to put out an analogy, and I don't know if it's going to be if you think it's correct one, but I'm thinking in terms of, for instance, if you have a criminal trial and there's a presumption of innocence that anything other than a, you know a unanimous jury verdict, or anything other than a confirmation that one knows guilt beyond a reasonable doubt is an acquittal and or at the very least a lack of conviction. And in this case, I think the default, the presumption, if you will, would be one of denial if it's coming to us. In other words, it's conditional on our approval, so in the absence of our approval, it's denied, and anything other than that, and since they've had their hearing, as opposed to before they had the hearing, since they had the hearing, then that matter would have been settled that way. Am I kind of getting it right?

I think so. You know, the analogy can tend to suffer a little bit between criminal and zoning law, but I do think you know zoning law, and this is something I think is important for you all to remember, as we see these cases, zoning law is biased against change. So the reason why the effect of a more vote for an application is an automatic denial is because the burden is on the person in front of you to change zoning, because zoning is intended to, you know, have a uniform environment, complimentary neighborhood and business dynamic. Six and every time that folks come to you, they're asking for tweaks and adjustments to those rules, and the rules are biased against those changes, so there's just a little bit more burden in place on the applicant, kind of like how there's greater burden place on a prosecution to prove their case. So that's that's why the rules are a little bit tougher on the applicants than they are the city. Yeah, great questions. There's one final moment or one final rule change. I just wanted to flag for your attention. There's some confusion in the rules and how it's currently set up, where potentially someone who gives public comment and gives their address may or may not be entitled to a full record or transcript of hearing delivered to them. We just want to be clear that that's not the case, because that would be extremely burdensome to the Board staff and very expensive, especially when we have the very high profile hearings and dozens and dozens of public commenters participate. So we're just clarifying that those individuals are welcome to participate, not entitled to a full record and transcript of the hearing that they participated in, and that is, that is it for notable items from the rules. The next part of the presentation is focused on some case studies that are themselves drawn from cases that have come before this board. We have several prepared we before you

just go back to that last one. I just want the board to please because sometimes I struggle, and don't want the senior members, if you, if you can avoid it, to make these motions. If I want number one, you guys be stronger in motion making seriously be stronger in your motion making look over, uh, what the case matter is you're hearing in front of petitioner, look at the rules, and you feel a particular way about a particular matter. Make the motion. Because sometimes I can sit up here for maybe 30 seconds before somebody raise a hand and that's just telling me that either one, there's no confidence there and make an emotion, or number two, that you just, you know, don't want to make a decision on the case. And I mean, I'm seeing more and more, you know, volunteers late, but we we're gonna have another meeting, another training on this particularly motion making, because I really want that to happen, but get stronger at it. I know Council picked the right people to do the job. I hope you guys have the confidence in yourselves to know that you guys are doing an important job here and just be stronger and making that decision. I

mean, this would be a good place for you to describe what emotion should contain. Well,

we went over before, but we're going to go in more, because I know that this could be a lot of information today, and we've only we spent an hour just on, I think his first item, he shifted to the second one. But I know that we're behind the time, okay, but especially, especially because of 54 121, uh, approved criteria, they have to meet all those, okay? So even if you have to go and rat off each particular item, do that order, once you agree with do that while making the motion.

So we know what the elements are. Yeah, those

are the elements. Is right there before you

case number 1514, be approved

according to according to the approval criteria, yeah, but if they miss one of those elements, then that's when, you know, Hey, you can't meet all of them. So that's when I did. Now, probably in order, unless you can make a case that that should happen. And number two, I know we're a pellet board, but a lot of things that the petitioners appeal based off of building the safeties appeals denial. We need to really look at that, the reasons why building a safety, denying something. Now, sometimes it may be a mistake, but majority times, I mean, I don't think that we should let me rightly correct characterize this. We shouldn't be overturning building a safety and will, I think we sometimes what I won't say this. We shouldn't put our emotions into the votes. The ordinance is an ordinance, and I know there's feelings when it comes to certain topics. It could be certain people. It could be 100 year old. You know? I. Lady to come before us that didn't go pulling dicks off ability and safety denial and hey, the ordinance is right there, and that's a tough, tough decision, but it's right there in black and white. We can't just override what the word is is before us. So just keep that in mind, your motion shouldn't be in this and I know your conscious is you're rightfully assured the motion shouldn't be there real quick. There are other avenues to do to get the get something done. So

hope so. My favorite is this, a petitioner has built a garage extending over the property line. They spend 30, $40,000 and we have ruled because of the expense granting the parents, and we should because they've done some they haven't obtained a permit, right? They built it. It's costly, but they're not entitled to variance because of the money situation. And we have not. I've seen one request for variance in that

situation and and I think at the same time, I want to believe this under, where you are over these are important questions. Let's look at this in context seriously. And I think it's a case by case situation, as always. We shouldn't get out it's always case by case. Just keep that in consideration. Keep it in context in this case by case, I'm not sure which matter you're referring to, but yeah, okay, yes, Chair, thank

you for the I got a comment. So easier said than done. I do believe that my Councilwoman did make the correct choice when she approached me and asked me to be appointed to this board. And I feel that I am competent and can make, uh, unbiased decisions and gather all the knowledge. And as I grow as a board member, I make strong motions. But I'm just want to be clear that like, Chair is saying, you get x amount of public comment on to the positive or negative of a project that is not, we're not. That's not here to sway us. We're strictly looking at the Board of zoning, but we're strictly looking at the procedure. Is that what it is we're looking at the procedure that brought this individual to us to request an appeal, and are we, I know you said, you know, you know you have a one of our elders saying something about a project you know you have to stay with with the project itself. But

I guess, I think context is throughout my day, community testimonials as well. Yeah,

so throughout my day, outside of this board, I'm always solving problems, and that'll be something that I'm looking at, trying to put that down and pick up. Being a board, I guess, a board member, because there was a, just to be specific, there was a case that we saw where I can hear what the public is saying, and I can hear what the what the person is saying. I'm like, Well, is there a way that we can solve this for both parties? Nobody's gonna walk away 100% happy, but at least we can get some action for the public and for this individual. So am I looking at that incorrectly? Is it

just no no board member? Osborn public comment is a requirement because it's important for public bodies like this one to receive input from the community, especially from the neighbors who are most impacted by these projects, and you can and should receive their comments and take it into account in your decision making. What you then have to do is discern what of those comments is material to the specific question in front of you and what is not so. For example, in a case where a BC denial is being appealed by an owner of a gas station or a business, the public comment may have all sorts of comments about what happens at that business or what doesn't, but the specific issue before you is with did BC make the correct decision to deny the conditional land use at the time, right? And so public comment sometimes is very well informed and pointed on that issue, and sometimes it is is in a different direction. Sometimes it's just someone saying their Twitter name and trying to get some PR so you have to discern and figure out, you know, what's material to your decision making, what's not, in terms of problem solving and being creative. I think we've already seen the board do this in some cases. And I think parking variance case from last week was a really interesting example of that, where you. Nobody really wanted to grant them a zero parking variance in a part of the city where parking is at an extreme it's extremely limited right now. However, you also saw the value of the business, and you crafted what I thought was a very creative condition that essentially requires them to hold a parking agreement in place that satisfies that parking requirement for 10 years. If you had just given them the variance those leases that they had mentioned, they could have just chewed them up and spit them out, right, and they would have had a variance forever for those parking spaces. And I thought the way that you approach that satisfied the concerns of board members, community members and that sharp development team that wanted to bring a new business to the city. So there are always ways to do creative work. And I thought that was a really good example. I see board member Hilton. I also saw board member rappers.

Oh, I was just gonna say that again, going back to 54. 121, question number four, explain how your business will not cause any ad for adverse impact on the businesses. And I always add residential it's relevant around you. And I believe that the community input is really important as long as it's relevant to the case, because it can actually help to answer this question in particular. So if the community is saying, you know, and this is not so much in terms of a b seed or planning and development denial, as it is for a variance for something, but those community that community input can actually help you see if the response of the applicant or the petitioner to these questions, if they're telling the truth, yeah. And so I think that we need to pay very close attention to public comment,

and I'm going to piggyback on that and once again, keep it in context, because we've had matters before us where, you know, we may have denied a project that based off of a community testimonial, one or two people, and that may not be good enough for number one, it should not be good enough you live, you know, a couple blocks away. Just don't like the project. Keep it in context, because when it goes to court, they're going to overturn it. Come back to us anyway. So just keep that in context, seeing that happen. So if there's four people living next door and and you know, in support, you got one person opposition, I don't think that's and they meet all the elements. That's a tough one to say that should be denied. Portman Watson, I

will follow up. So we have to be careful. Also, not every situation requires the petitioner to do a community.

None of them do. Those are always encouraged, but no, none of them require

so we cannot. I've seen situations where if they have not reached out the community to deny they had no community when it wasn't a necessity for petitions. They did all the paperwork they did, and

no projects to be denied based off a lack of support from the community. I think that's a hard one.

It was, it was called. It was called to task because the community had not been reached. We had not reached out to the community. Maybe the denial was, was not correct statement, but they were brought to task because there was no community involved. Okay, often, and as you said, it's not a require if the petitioner has done the Some. Some of the cases, variants that we hear, do not require that they reach out. So we can't hold the petitioner to task because he they have not reached out the community when, in fact, they did all the other elements you follow. I heard we and we have, we have berated the petitioner for not reaching out to the community. In some instances,

I think all these comments are very thoughtful for me, the win is seeing board member not actually open the binder that are printed for you all and look at the section reference. So I'm already that this hearing feels like a success for me, and I appreciate that, regardless of the different opinions about how to approach it, that you're coming back to the ordinance, which is frankly. A significant improvement, and I appreciate how you're trying to stay anchored to that. I'll leave it at that.

I have a Oh, go

ahead. Roberts, go ahead. Roberts,

when we put conditions

into a motion, how do we make sure that those conditions are followed?

It's a great question. So the board of zoning appeals is not an enforcement arm of the city. So BCS responsibility is to enforce zoning. If a property is not compliant with its zoning, including BCA grants and conditions to those grants, it's BCS responsibility to enforce. BC has said on the record in these hearings that it's very difficult to enforce certain kinds of conditions. Thinking of the case from last week. I'm thinking of the case involving car wash, where you all impose some conditions in that case as well a little over a year ago, that's BCS situation. You're welcome to take that into account in your decisions. But there are annual inspections that happen at businesses. There are one off inspections that can occur when zoning issues have taken place. There's nothing stopping a board member from notifying BC that the board member is aware of an issue or a concern, but it is beast these responsibilities, of course, not the boards,

just to piggyback off that. I mean, our decisions follow the land, not the distance itself. So just keep that in mind when we're making these zoning decisions, it's going to always follow lag, unless they come up to the VCA and try to ask for an adjustment to great point. I will say this. The reason why I called him last time is regarding that community engagement piece. Just want to make sure for the board I think, I think that needs to clarify the requirement for community petitions, if you will. It may be some confusion, can you can you help us out there?

Meaning, when is a property owner actually required to do more involved community engagement?

Requirement versus encouragement? It

Yeah. So to be clear, nothing in the approval criteria for any of decisions that you make require a neighborhood advisory council or some sort of formal community agreement or community engagement process. There are ordinances in the city for some marijuana uses very large developments that trigger the community benefits ordinance that require that kind of engagement that is not within your purview as a board to enforce some sort of obligation to engage the community. There's also nothing wrong with encouraging it and advising it as it is related to the approval criteria and considering the impact of that development and the variance and the non conforming use, etc, its impact on the neighborhood.

So with that being said, reason why I went back to that is always keep this in context. I'm not sure the context of that particular situation. I don't remember actually, but lacking that. I don't see how a denial is an order. They meet each point of the criteria, all to the questions, and they haven't reached out to the community, no community opposition. I don't see how a project should be denied before this board because they did not reach out to the community. I just don't see it. I don't see how it can happen. I've seen it happen in the past, and we did deny something big stop for that, but being empowered with the knowledge, I don't see how that should happen for a moment.

Yeah, I'm thinking that perhaps the one, one way in which that would make sense is, and specifically is pertaining to the part that board member Knox brought up section. Is it the fourth one of those questions that we go through about adverse effect on the community, that perhaps the petitioner is ignorant of an adverse effect on the community because the petitioner had not considered certain aspects of how the business as structured, moving in that direction, in the direction that you know is being moved into that's causing them to appear before us that um, that person would have been aware of an adverse effect on The community if the person had interacted more with the community. So in other words, the interaction itself isn't necessarily what would be required, but the fact that perhaps the petitioner failed to meet that criteria because the petitioner was ignorant of. Are failing to meet that criteria in the absence of having received feedback from the community, I

will push back on that just a little bit, not understanding that the total context of that hypothetical the community had two bites of Apple, if you will. It's a hearing before before us, which is building a safeties hearing, they're coming to us, likely to appeal, building a safer decision, or it may be approval on a traditional use or whatever, but there's a hearing before us, and not just that. Our department sends out notices within anyone within 300 feet, and community associations in that area, so individuals are informed, maybe not everybody, maybe not everybody, within 400 feet, but the community are informed with their 300 feet so they know about it now they choose not to act. We cannot, once again, put our emotions in these decisions. It may look unfair, but absent any community opposing we cannot. I don't see how we can deny a project based off of that. I just don't see it personally. You guys may, you guys are, all of us are board members. All of us are equal here. I don't see it particularly. I do see a handful right now.

And so, and we may already get this, but so when P and D planning and development or B seed, when they have their public hearings, and this is for Director rip rod, and there are letters of opposition or support during that particular phase, do we typically get that, no,

we don't get, we don't get on most cases we do not get those letters, but they are referenced in the report, in the red, yeah. If you read the report, it will say so many letters I've seen that, yes, yeah. And what I would do is, when the departments give that report, asked them to reference that, yeah, because they don't, all they send us is the letter and some basic information.

Basic information, okay? And then secondly, to Attorney dimmers, is it possible, so in order for there to be a requirement for community engagement, would that be legislative? So that city council would have to insert that into the legislation, that all development projects would need to engage in some type of community engagement, I don't know, but is that the rule doesn't currently exist. That's correct, that rule does not currently exist. So if we wanted that rule to exist, we would actually have to talk to city council, correct? Yeah, city council

would have to change the code to make the change that you suggested. Okay,

thank you.

Yeah, I think at the same time, I don't know, I'm looking at the zoning and you would act, how's that? And that's a state that it's not council. So that's something we have to keep into consideration as well.

Council would have to in the process of trying to create an ordinance that you're describing console state law, Michigan Constitution, because it needs to be our zoning power flows out of the state law that gives the city the authority to enact zoning ordinances, so everything that we do as a city and as a board zoning appeals must be consistent with state law. That law is called the Michigan zoning Enabling Act. It's theoretically possible that what you're describing could occur, but I think extremely unlikely and not something I could really stick to without further analysis.

Board Mayor Watson and Oswald,

under the special land use procedure planning and development, there is a requirement that the community be petitions or engaged. There is a requirement for that. Not all cases, require that engagement, and that is the only requirement for the community involvement under the special land

use you're referring to public notice, yeah,

I recently read that under the special land use requirement, there is a requirement that they engage the community, especially from the larger projects, they must hold meetings. It's an absolute, absolute must. Am I right? Bruno,

no. I mean, just so. My understanding is, you know, if you're applying for a special land use, meaning at the conditional land use, multi family and our two. On Property. You don't have to hold a certain amount of meetings with a certain amount of attendees, but you, when you go to BC, you will have to BC will have to issue notices to affected property owners within a certain physical proximity to that site, and they'll be invited to attend the hearing at BC, just like this board does with the BC. And just

to just let you know, this is what makes these petitioners, they get engaged ahead of time, at least the smart ones, so they won't have these community issues, and they're not. They'll be my new number individuals coming before at least the BCA or BC, for that matter, if they engage them prior to you know, it's the least likelihood of any opposition. So they try to get ahead of the game, which is smart to me, and try to solve some issues before coming to the city, then in the city, attempting to help solve the problems themselves more.

My question was answered, okay?

Music to my ears. If there are no further questions about the rules, I would like to shift our attention to the case studies. We have a few case studies prepared. We dropped one. We're probably going to drop another for the sake of time, so we'll probably do two case studies today. These are intended to kind of be a refresher on some of the more controversial types of cases that we see. They're also intended to promote discussion and feedback, so it will be interactive. We're just going to talk to you the whole time, and we want to use this as an opportunity to kind of tease out any of the questions or concerns you have about these kinds of cases, too. I will say these cases are based off of actual cases that have come before you that won't be a huge surprise, but we've changed the names and information about the case to kind of tailor our presentations. So I'll briefly open on the first one just to say that this is a kind of community appeal that will be coming before you that attorney savage will present community appeals as you remember our administrative appeals, they are appeals where a community member who's been impacted by a city land use decision comes to the BCA to appeal that decision and ask this board to overturn or modify the decision in some way, but there's a preliminary determination that has to be made before you can even get into the nuts and bolts of that, and that's whether that person who's on the appeal has standing to appear before you. And so that's kind of the focus of this case study. And attorney Savage is going to take care of that. I'll be moving slides on the screen, and again, you'll have frame materials in front of you. I'm going to pass out a hand or printed copy of the case study as well. Good.

Thank you. Ernie Savage, oh, I'm sad. You guys want any more refreshments?

Or yeah, I'll give some in a minute.

Good morning. Mark, I believe attorney demerson, excuse me, a little horse, Erica. Savage law department. I'm colleagues attorney jimmers. So this particular case study is, you know, it's kind of a multiple choice of sorts regarding the aggrieved person standard, I think, given the nature of how everything is going, I'm just going to kind of read through the background a little bit. Some of the statements might sound familiar. A lot of them were made on some of the hearings that I observed and watched, and so quote, actually out of them. So it's a little bit of a hodgepodge of sorts. So, but in this particular one, Diana Ross is doing a community appeal, and it's regarding Barry Gordy's special land use request to construct a four separate three story, five unit townhouse buildings. So this is basically townhouse. There's going to be a total of 20 units. It's going to be two buildings. It's going to be 10 units on each zoning lot. So I'm just giving you a summary. You'll have a second to read in detail if you want. Right there you see a summary of the conditional land uses. You can see most of them to be deficient. The front, back, you can see the setbacks requirements, and then BC did find that it was consistent with the master plan. It's going to encourage economic development in the area, and that it's going to eliminate some vacant land and upgrade the area. So, generally speaking, this is the background. And after you guys go look at the multiple choice, you can go back and read that a little bit again, if you would like. So I just wanted to go through the aggrieved person standard. I. Which is on page two. It says that under MCL, 125, point, 3604, an aggrieved person by a local government zoning or land use decision possession standing to file an appeal with the person's local Zoning Board of Appeals. Under Michigan case law, an aggrieved person is a person who, and I'm going to the 123, a person. You can be an individual, a partnership, a corporation, an association, and a government entity, or any legal entity. You have to claim some legal protective interest, personal interests, pecuniary interests, of property rights. So it can't just be that you're in the neighborhood. You have to have an actual legal interest in the property in the project. And then lastly, they have to show some special damages, evidence of special damages arising from the decision that was made by BC in this particular case, BC, they have to be different in kind, more significant and degree than the impacts of others in the neighborhood. So what we wanted to do, oh, wait, let's go to the bottom merely owning or residing in the local community is not sufficient to show that you're an aggrieved person. You can't have generalized concerns. Okay, so what the way I did this? Because I thought it would just be a cool way to do it. It's just I gave you some fact patterns, and I know it's a lot of them, but are you going to just be doing this reading them, and as you read them, I want you to look back at the VC decision of what was granted with the setbacks. Look back the grief person standards of the three criteria, and look at this particular fact pattern and decide whether or not you feel that this person may or may not be aggrieved under Michigan law. Now we can do it two ways. I can give you a second to look at them, and you circle the ones that you like or are most intriguing to you to have a grief person standard, or we can read through them a little bit together. You want

to each track pattern.

So each pattern is a person that you as you read it. This is a person who will be standing right here, and this is what they would say to you when, before you have to make your determination of whether you feel that under the aggrieved person standard, that they're aggrieved and you should proceed to hear their appeal. Now let's be clear, this doesn't mean that you're going to grant the appeal. So there's two different things. There's two parts. One, you have to determine whether they're aggrieved person, which is the only part point of this exercise are they aggrieved for you, then to part two, listen to their appeal and rule on their appeal. So this exercise is only to say, I'm reading what they're saying to me. This is where they live. This is where they work. This is what their claim is, is this person aggrieved? Under Michigan law, should we proceed to continue to hear their appeal and rule on their appeal? As I stated, a lot of these statements are real statements that have been made to the board. And so Mr. Chair, if you if you want me to just read them or just summarize them, or do you want to have them take a second to just read them?

I know you guys want to read it yourselves. First glance it over, and each one of fact patterns on page number three, she asked us look over and see, how will we decide on each one of these matters? I think it's 10 eight. We're just trying to figure out if they're agreeing. Yeah. Person, standard,

we try to determine if Diane or Ross is the agreed. Person, yeah. I'll just

start reading them. I'll read the first one. So, yes, this is what Diana Ross is saying when she's coming up to you. I live directly across the street from the proposed site. I sought out to live in this vacant land because I'm a Vietnam War vet construction, other loud noises trigger my PTSD, these sound houses have outdoor activities that's going to give me severe anxiety, like basketball courts. I lived in my home for 30 years. I can't afford medical expenses to move. So this is what the. ANNA Ross says to you, when she comes up to you and says she's an aggrieved person, under Michigan law, to have standing to hear her appeal. And remember, as I read these, the standard you have to be a person, you have to have a legal interest, and you have to show special damages. The second, she says, I live on Motown Street, three houses down from the development. This is not consistent with the Master's plan. The neighborhood consists of all single family detached homes. They range between 14 and 20 square feet. I mean fee setbacks. Our neighborhood has large, stately homes, the setback for this development are much smaller and create much too much density. It will impact the historic character of our neighborhood. My neighbors and I provided BC with research that no other similar neighborhood has this small of a setback. Several residents from our community are going to speak here today. We oppose the

can we do this? Are you asking us for a response? Well, I

was just going to go through them, but if you want to, let's, let's do one by one. Okay, that's fine.

I like these scenarios, by the way. Okay, no

problem. They should sound familiar, yeah. Okay, so let's go them back to number one. So we'll do one other side. So number one, the Vietnam War, of that loud noise triggers anxiety. They don't have medical expenses to move.

So how, what do you guys think?

And I will say this, I don't think that all of these necessarily have a right or wrong answer. Okay, the whole idea, I mean, some of them do have a right or wrong answer, I will be honest. But the whole idea is to make sure that every time you hear a certain pattern of facts, that your mind reverts back to the legal standard, and we get the legal standard of an aggrieved person out of the way before we move forward, listening to all of the other contexts and depths of the appeal itself. Because a lot of times what happens is that the person starts giving their whole appeal, and noone has stopped and determined standing first. Yeah, because the board does it. So under this particular one, does anybody have any thoughts about the main three criteria?

Well, there was a part. What stands out to me was the part in the criteria. Go back here, where it talks about it has to be a special and not a general. Here we go. Okay? Here we go. Yeah. Number three, the appeal, appellant must provide some evidence of special damages arising from the decision damage or result from an actual, even likely injury to or burden on protected interest that is, one, different in kind, or two more significant degree than the impacts that others in the local community. And it seems to me that this does meet that criteria. So if I see we must meet all three,

though. So you already identified this person. Is a person, and number two, at the cleanup a legal interest,

yeah, because the person's there.

Yeah. So it looks like, while

intuitively, it seems kind of add that this person's particular health issue would be some affect what other people can do. It seems that it meets that these three conditions,

okay, I'm not in charge. I saw board member Sherman. Next, you see and then board member not

on the surface, it looks like that. They may meet the agreed person standard, but we don't actually know, because we don't know if someone else in the community suffers from the same thing, and it's supposed to only affect one person in the community, not others, according to number three. So there's other residents that sought to live out next to vacant land or loud noises trigger their PTSD, according to the aggrieved standard, they're not aggrieved.

Okay, I'm gonna let everybody get that thought. I'm

sorry you read that. Ace, they do meet the agreed person centered. It

depends on if someone else in the neighborhood has the same conditions as the appellant. That's what determines whether you're aggrieved or

not you're correct. But the other thing you have to consider is all of the. Criteria, and not just, I mean, there might be an offset possibility that there's another world war two that right next door with PTSD, but that's probably low likelihood and improve the special damages. So when you go through it, you have to go through all three, and not just tack on to one particular one, all three, all I'm saying, but all of the criteria about a grief person standards. So let's say there is a person who also is a war vet, which is very specific and also has PTSD and also lives next door, then that would be something, but we wouldn't have that in these facts. And I don't think that that's something that we would go look for either. We would have to go off of the statements that are being made by the person, by the appellant, right?

But if they're saying that they're aggrieved because they have PTSD, if someone else in the community also has PTSD, and they're not the only person no affected by the new development. So that will take you according to this rule, and they're not agreed.

Well, you're assuming facts that are not in evidence, because we don't know. We know. No

in the comments say, Hey, I got PTSD too, which a lot of the community testimony, like I've seen the case, where everyone latched on to the same point, and if everyone latches on to the same point, then they're not aggrieved.

Okay, board member, nah. What's next?

I do not believe that this meets the standard of an aggrieved person, although it's a it's a compelling case, or it's a sad case, it doesn't meet the standard for that, because, first of all, there's no there's no real evidence that this person has PTSD. There was no doctor's letter that was provided. And I remember when we had a similar case, and it was very obvious that there was going to be a medical impact, and that person actually had proof that there was that their health would be adversely impacted by development. But this, I mean, there can be no development in this community if this person is saying that they construction and other loud noises trigger my PTSD, so I don't think that this meets the standard,

okay. Board member Osborne, can you just still have a second question

I was going to ask who's who does the investigation of the just under this one the PTSD, when this person comes to us, are we required to ask them if they have document of a medical document from their doctor, or does it happen ahead of time?

Yeah. And the reason why we i The point of this exercise is a lot of it to what questions would be asked, what would be in the file, what would be going through your mind as you read this, to see. But let's just, I mean, again, I don't like to, I like to hear the probative questions, because the questions that you all are asking are giving you an idea of how you pinpoint to where you need to be under the standards of the law. But, and some of them are intentionally vague for that purpose, so you can kind of, but some of these are really what people said, though, and so it's based off of, did they give you the documentation and the record, was it provided to the board when? And that would be something that may depend. But for the purpose of this, if you want to assume that the person did, provides medical paperwork, and it is a real Vietnam vet, and it is a real PTSD. They were a combat veteran, so but the questions themselves and the way you're going about it is more is what's most I wanted to go through so you can see what's coming up through the fact patterns. But yes, that's to your point. They should

be in the appellant meets the criteria number one, he's a person. He meets. Number two, he has a protective interest. His home is across the street from the folks project. That makes sense, specifically, a protected entrance. However, number three, fact that he has a mental condition, I don't think, makes him an agreed person. It qualifies him at number 3am, I wrong? The

fact that he has a PCSD, yeah. Alone would not qualify you as an agreed person all of the factors together. So the question would be, is it another thing that you should also be thinking about is, what is this being zoned to do? This is being zoned to be a townhouse, not a manufacturing use, not a you know, business is going to be townhouse, residential units. Construction is one thing, day to day, life at the unit is another thing. So the PTSD alone know that that's not enough. But again, for all of it, you have to go through the criteria, are there special damages? Is it? Is it? Is it enough that he's saying I can't afford the medical care, so therefore I have a legal I have a I have a interest in this because I can't treat it.

My question is, was I right or wrong? Two is two is good. Three is

I think? Well, you said PTSD alone doesn't make you agree that I would agree with that,

I will deny him on number three, and the other two are good, one and two are good. Number three, he does not meet the standard, but number three, okay.

I mean, I don't want to be quick to say what's true, what's not true, especially whatever people have assumed

it's based on our interpretation of the rules board

member?

Yeah, and this particular one, I mean, I will say this one is written very closely, very closely. There's about as close as you can get, but it's not, it's a very fine line. And I will, for this particular one, I will focus on the use of the units, and because this is a land use hearing and what the actual alleged grievance is, how the land is going to be used, versus what this person's grief is, which is, I get triggered by noises, and then, what are your special damages? I I don't want to say because there's so many different things, but I would say this one's close

the thing he was bringing up about, what if there was another veteran and somehow that would nullify it, the special damages preclude the possibility that anybody else might also have the same similar issue. Or does it just mean that it's not general in the sense that affects everyone looking at a head nodding and shaking?

Well, I think special damage is different, different in kind. Um, yeah, if there was evidence that someone who's similar situated is in the same, you know, has the same fact pattern as you so this is a world war two vet with, I mean, Vietnam vet with PTSD. So we're going to good luck with us finding another one of those. But let's just say we're just neighbors. I live on one side of the project, you live on the other side of the project. I don't like to set back. You don't like to set back. Like everything about us is the same. Neither one of us wants noise in the neighborhood. No, that's not different. In that's not unique. Maybe one of them can prove more of a financial interest than the other, though, maybe one of them can prove a legal interest that the other one can't prove, and that might do it. So the idea is to get in the habit of going through all of the criteria for each appellant, and you're looking at the person who's in front of you, what's in front

of you? Yeah, and I'm gonna also add that me context is important. I look through this and I think that first sentence was telling to me, I live directly across the street. Me in context. I'm not sure what directly across the street is. It could be a boulevard where you're separated by a divider, which is further than living the next door, or something like that, so that person may not be impacted. Mean, you have a whole, you know, what is it? 1000 feet, or something about 1000 feet on a boulevard that I think context is important. It's very

important. And again, like I said, I don't want everyone to be as focused on this is the right answer. This is the right answer, but I want everyone to get in the habit of making standing and knowing the standards, how to apply the legal standards for standing for each set of facts that you hear. So I'm going to because some of the same questions might come out. So I'm gonna try to quickly go through the next one that I already read it. So the second one is the person said that this isn't consistent with the Master Plan. This is Miss Ross. She's saying that all the setbacks are. The neighborhood are much larger than this. We have large stately homes in this neighborhood, and these setbacks of 10 feet are just much too small. And there's no other neighbor we gave research to BC, but there's no other neighborhood that's like us that has setbacks this dense, and everyone in the neighborhood is here. We're all opposed. I

mean, on the surface, I don't see how this person meets the greed person standard.

Everybody is affected.

I mean, everything was a lot of dip there. To me, this was only thing that looked like they did meet was wanted to the criteria. They are a person and they live in an impacted area, but I didn't see anything on three that will meet a agreed person standard.

So I don't see special damages. They're basically restating. I mean, they're giving an argument. As far as the, you know, the criteria we go through that, you know, they could say, Well, does it meet the master plan? Are they consistent with and it is not. So they're giving an argument, but it doesn't make them an agreed person, because they don't have special circumstances that'll just generally affect the law and effect of the neighborhood.

I think this one is a little more, not as close as the first one, so, but it is statements that you have heard real statements. So the key that I want everyone to remember is that when someone and they already have in writing, and this is already what's been said, submitted in the letter, this is what said as they come up, then that conversation could possibly get cut off in five minutes before they keep talking more about the neighborhood and speaking for an extra hour, Going through the context, because it may have been established really quickly. It sounds good, but they don't have standing.

And just to double down on that one, this is particular one. Look at it in context, especially with the backpackers giving something like this building and safety will take action on and can consider, I mean, if a number of individuals came out there like they said they did here, my neighbors and I provided, you know, building a safety with our objections, I think that would be noted, noted by building A safety, and they will likely take an action on that matter.

Okay, so the next one, Diana Ross is saying, I live a block away, on Joe Jackson Boulevard. I rent my home. I've been living in this neighborhood for 10 years with no pathway to affordable home ownership. Mayor Lionel Richie promotes affordable housing and encourages home ownership. I saved for 10 years for a house. I'm finally able to afford a house in this neighborhood. These townhouses are a step in the wrong direction. They're not going to offer any affordable housing, and it's going to basically eliminate my chances of buying an affordable home. Mayor Richie lied to us. I sacrificed my money and I saved for nothing.

Number one, he's not an agreed person. He's a he's a tenant with no ownership. The Tennessee isn't does not give him standing in as an agreed person. And the Tennessee is not a legally protecting interest, and he suffers no personal security or property rights impacted by the citizen usually has no property rights other than a tenant. Lastly, okay, there is no special damages because he can't afford to buy a property in the future. I don't think

and that, and most of that comment is the statement is something that was at a hearing that talks about affordable housing, and I rent, and I would not be able to afford a neighborhood house in the neighborhood, if this goes up. So that's a real fact. Writer, something that happened. So did anybody else have any other thoughts on this? Yeah, I

want to push back just a little bit, because renters do have an interest.

30 days, 30 days, 30 days.

Well, regardless, it's interest, legally, it's interest. I just want to say, just say that although they are renting and there's an interest, I just I will agree with you that they didn't make any special damages that requirement. So any other discussion points. I think they're Miss Goldman on here, okay, I saw your face, like, What are you talking

about? So in this particular case, when this person makes this statement to this board, would it be our response that, no, you're not aggrieved, or Yes, you are, we be making that decision. We have

Yes, okay, and what you will be constantly doing is going back to your legal standard and saying where they're deficient. So as chair member, Board Chair Thomas indicated you have an interest. You know you meet criteria. One, you might have an interest, but do you meet the other criteria? Do you have special damages? Do you have financial interests, or any other pecuniary interest in the project, other than Mary Richard told you that there will be affordable housing in the area,

and that will come up as form of a motion, I make a motion that this person is agreed? Yeah. Yeah. Okay,

so you stay with Chairman Thomas said, the applicant is a person. Number two, they have a legally protected interest in Tennessee. What about three, their special damages, and that arises from the decision

that's different other than kind. I don't see it because other people go in the same situation as that person. It looks like they're gonna have to move to another neighborhood to me and purchase their home.

You can say that everybody in their rental complex where they rent may be in the same situation, right? Everybody who rents in that neighborhood may be in the same situation. When

we that under the circumstances where you have a facility as far as this single half family homes for a long time, and then to have someone come in and take change a portion of that neighborhood to create this kind of housing for the many people there be there, I think that that is does not necessarily say that they gave the right permission To have them build those buildings there, and to do those things compared to people who lived in the neighborhood, because the neighborhood had been there for a long time, and they had set things up simply for single family homes. And to go ahead and make that change is something which obviously affects the people who have lived there for a long time, bought property there and want to stay and that like the community.

Okay, so board member, we were you saying that that might have established standing for this.

Well, this, the question is, is whether or not that the people who want to build the apartment buildings and do that are really understanding what it's like for the other people who have lived there for a long time, and whether or not they really have the right to do that. And so the special damages arising out of them doing this to the people that live there should become the key as to what the decisions made.

Okay, the first part of your statement, to me sounds like what you would be considering when you actually listen listen to the merits of the appeal. So when you're actually listening to the merits of the appeal, you're going to determine whether or not the department went through all the criteria to determine whether you know the impacts of the neighborhood, the impacts of you know, the 15 criteria. But when we are establishing standing to hear the appeal, we have to be sure that we go through that they have an actual aggrieved person, aggrieved persons, I'm sorry, that they meet the agreed person standard. So, so when you say the special damages are created because the developer is, I think I heard you say the developer, what they're doing is impacting this person in a special way. Is that what you said? But this particular person still has to show that they have damages different in kind from anyone else. They still have to show that they have an interest, a pecuniary interest, a legal interest, or something in the project that's different. So even though the people in the neighborhood may all be impacted by it, you have to still show a specific. Specific interest that's different, much higher standard.

But what I am saying is that in that neighborhood, whatever that way you want to define that area, those people have lived there for a number of years. They built the single family houses. They've created that particular neighborhood, and now they're coming in, and the people are are trying to say, we're going to take a part of that and change that. That's my point, that the people who've been long term residents purchased their property there are now going to be affected by the change in that particular neighborhood, the definition of of that is, and I think that that is something that the courts would always look at from that standpoint, and that there are people who are saying, I've lived there for 10 years, 20 years. I want to buy this. I want to create this. I want to upgrade what I what I have to maintain living in that kind of neighborhood. I think that has to be listened to, and the person wants to put up the other apartment buildings does not necessarily have the right to veto the way the people had lived there for all those years,

not apartment buildings apart, where we use our townhouses, the townhouses. And this fact pattern here is townhouses, not apartments, I'm sure. And this fact pattern here, number three, it's, it's townhouses. They're building, not apartment buildings.

Yeah, they're building townhouses, and

these are townhouses look like in front of back pattern itself is there? It must be for sale.

I'm assuming.

It depends on the fact that. But, but to your point, member, we, I believe a lot of what you're saying is something that has to be taken into consideration when the lower proceedings are taking place, so when they're having the public hearings, and BC is making its decision and they're going through the 15 criteria, those are the things that they're supposed to be going through to determine the impacts that certain things are going to make on the neighborhoods. The master plan when it gets to this appellate board, it's supposed to be an aggrieved person. So it is something that you can detect, because if BC aired and BC did not do a good job of setting the 15 criteria, and that person is aggrieved and has standing to be before you. You may find that in your ruling, but you can't get to that until you first determine that that person has standing to be before you. So you have to look at it that way, that process you're discussing that should have already taken place at the lower floor proceedings would be seen. They should have already taken the community testimony. Hopefully they've taken all of this into consideration. But as an appellate board, you're going to determine whether they may have made an oversight, but you're not going to hear it unless it's someone who has standing. Thank you. Okay, we're moving

say, generally, in fact, exclusively, that I can think of when we've been hearing cases, it is the developer is the petitioner and or the person modifying the property. And developer may be too broad a term, but is someone connected to the property. Is the petitioner? And people that would seem to fall under all this would be the type of people you would see making comments when we open things up to comments from the community. Remember,

this is a community appeal. So this is a this case study is regarding

a community appeal. Do we ever hear community appeals? Yeah,

so before, before you proceed, I think the problem is, I don't think we've been, they haven't been on the board to see a community appeal just yet. I don't believe Mr. Bola and Mr. Osborne has been here for so they haven't seen that in context. Okay, we have two on the 16th when we come back. So maybe that's good for us. The reason why we're Yeah,

so this is actually not, I believe attorney Dimas gave a brief overview when he started, but this is actually when a member of the community has appealed the decision, as opposed to the petitioner coming before you because they want the variance. A member of the community is protesting the, you know, the decision of BC. So.

We had a case recently where we had to determine if the gentleman was agreed. There was quite a bit of confusion between the the agreement being the appellant and the original Petitioner being the original Petitioner granted the variance. The green person was appealing that decision, we had to determine and we kept referring to the green person as the petitioner back and forth. So we had to distinguish that the appellant at the time was not the original petition, correct, but we had to call him the aggrieved appellant, or some other term he

called the appellant

so, so we had to say

so in this particular fact pattern, Diana Ross, she's just the aggrieved community person. She she's just does not like Barry Courtney's development, and she's coming to you to say, make it stop. BC made it, made a mistake, just as a member of the community. Okay, I'm going to go through because I don't have to go through all of these. I'm just going to do a couple more. That's my favorite. And then which one? Huh? What number? Let me look actually. I want to do four so I live on Diana Ross I live on Aretha Street, two two houses down from building C and D. I'm the last house on the block, and I want to dead end the residents and visitors of the townhouses will naturally turn around in my driveway once they realize they are at a dead end. My dogs, Tito and Randy, are Dobermans and bar constantly every time they hear noises outside. Randy has also been medically diagnosed with anxiety, and he's on medicine, he will attack strangers who come in close proximity. I picked this house because it's next to vacant lots. There's no major activity nearby. I have no money to move, and I will have to move if this development is built.

No, I think she's agreed. What was that? I think that she's agreed because she is the last house on the block, only one person and I claim the last house on the block, good

point. I think the burden of proof may be harder for her to prove. Because, one, we don't know if they will turn around in her driveway. And then secondly, she has not provided any medical proof that her husband has a mental condition that would cause him to attack people, her dog,

based off of a real dogs?

Yeah, I disagree. This is not gonna disagree with you, in particular when I say that I do not beat this person. Meet the great person. Standard number one, that city sign that turnaround driveway issues be solved by the city by addressing them with a signs. And it's a dead end and that that this shouldn't even be in here. I know these funny faces, but it's not a that's not a zoning issue to me. And Randy and Tito or dogs. It's supposed to be a grief person, standard, not pet. I don't see any. I don't see how they can meet number three at all. Yes, as a person, yes, they live in a protected area, well, like legally protected as a legally protected interest, but by living next door. But, yeah, that dog got me, okay, yeah,

I would say I don't think. I don't think the issue that the dogs barking that that somehow makes the person, the human, not an aggrieved person, because the dog's barking does affect effectively. What I think the implication here is that the anxiety that Randy is really the aggrieved person. Randy is. Randy's a dog.

Yeah, Randy was a person. Oh,

okay,

so we're clear who we are determining is a grief person is Diana Ross, because she has two dogs, and one of her dogs has a medically diagnosed condition. The dog forgot about. The dog has anxiety. And I will repeat these are based off of very similar fact pattern that was not too long ago before, where the dog had a medically diagnosis. Okay,

so if it's um, so if um, a family member is harmed, but not me myself. I would not be the aggrieved person, but the family member would. Well,

again, I'll guide you that the aggrieved person standard is a standard that takes several things into consideration. And so again, one of this exercise is to not get caught up on the big picture and to get caught up on boom, boom, boom, where am I? Where are my three prongs? Where are my four prongs? My standard and go through them to make sure that you're comfortable that Diana Ross is aggrieved under this fact pattern, not Randy or or Tito. Which one not Randy.

So while that dog is not a person, those dogs are homeless property,

right? They're not humans.

I mean, it's Diana's dog, so her but she has to deal with with her dog. Does that make her leave?

I would think so. Well,

yeah, because if that dog goes crazy and bite somebody, you know, then you know, she's going to be held liable. So that could be a special damage. No special maybe a special damage, because her house is a dead end house. So although there's no way to prove that the house the cars are going to drive to her drive, you know, down to her house to turn around if they're already parked down there. And it's a real popular townhouse, they could, I don't know. It's closer than any of the other ones.

Maybe this one was written to be close. I will say that is what this one was waiting to be very close. Oh, okay,

okay, I do see Miss Bowman and Miss Osborne.

Okay, yeah. Also, I mean special damages don't necessarily have to be to the individual. That we're saying is agree when, when special damages also include injury to the the individual's property, damage to the individual's property. And in this case, then, if we're to think of the dog not as people, but as property, it's still damage to those beings as property,

land. Um, well, the

special damages have to be different in kind? Um, who says, provide some evidence of special damages arising from the decision damaging results resulting from an actual, or even likely injury to a burden on protected interest that is different in kind, or more significant in degree than anybody else in the local community? Well, you know,

if the dog is goes, you know, has mental issues or whatever's wrong with them, the people are in their car. So how would he be able to attack them? I mean, unless he bites the bumper off. I don't know what, how that might be, how that would add to this case of her having a dog like that. So,

yeah, actually think

board member Bowman's question is the right question. So the three prongs are not like different factors. They're checks. They're boxes you have to check. So who's the community appellant? Are they a person, meaning a corporation or individual? In this case, yes. Do they have a legally protected interest? Their dog is their personal property, and that is a legally protected interest. Check, has that interest been damaged in some way that is different in kind and more significant degree than others similarly situated? Well, in other words, has that dog been harmed in some way? That's constant, special damages. So the question is not really about, is a dog? Does a dog count? The question is, are the damages significant? But I guess the only thing I want to say, because I know we have to be mindful of time we're at court until this will be the just, I think, yeah, I

have, like, 10 more minutes. So, yeah, these

are really good questions, but I just wanted to be clear that the three prompt, they're not like factors. They're checks. First is that a person second to they have a legally protected interest, meaning, you know, they have a legal if they have an illegal business that they're operating, that's not going to satisfy number two, but most of the cases that come before, you easily satisfy checkbox number one and check box number two, where you spend all your time, is on number three, which is, has that protected interest that you identified at number. Or two been subject to special damages, which are different in kind and more significant in degree than others similarly situated. So just want to clarify that piece of it, because I heard the questions kind of going in different directions there, and because I want to be mindful of our time. So

did anybody else have any other thoughts or opinions about Miss Ross having standing for this one,

I would just say that I believe Ms Ross has special damages because of the condition of her dog and because no one else can claim they have the last household I would think that person's agreed. Okay,

I'm still gonna go my first notion. No,

oh yes, I'll give the

job. Are these discussions with regard to damages? Different in kind, different in kind, different kind of there's no neighbors over there. According to this fact pattern, the last person on the block empty houses, she's gonna be on the person's impact in regarding a dog barking and chasing individual anxiety. Yeah, I want to go with that

in this particular one, I think what I wanted to point out on this one was a situation where a dog can be your protected interest, okay, a dog, which I've seen since I've been here, having some type of response to what's going on, if you can legally prove it, if you can somehow determine but the damages themselves are what's at issue. As Attorney dimmer said, you know, okay, you have a dog. They have an interest. When they have a condition, you can't afford it to treat or move. So now, how is this different in kind and so there were things thrown in there to make this person different. They're at a dead end. They are right, two doors down, you know there that that was thrown in there. And so I won't necessarily say that anyone's right or anyone's wrong, but I will say this one went very close, that first one was very close. But generally speaking, the thing that you would have to determine is all three points, and I think that when when the questions are being asked, and even as I hear you all asking the questions, you want to make sure that you don't get into the guts of the appeal itself, but you want to determine, should this person be standing before me to make this claim that BC, let this go forward. Should this person be standing here? Is this the right person to make this claim? And it's such a high standard, because you don't want 50 community appeals, because you you don't respect the high standard that it is to be different, to be aggrieved, to be unique, to have a protected interest that's being violated. So I mean, I know everybody wants to say this is the right answer, this is the wrong answer, but I will say that most of the points that you all have brought up are the right points, and most of the comments and questions that were being asked are the questions that you need to go through when you determine standing for the grief person.

I'm going to add to me. We're all individuals here, so we're all interpret these rules maybe differently. We're not going to always agree. The important thing to do is make a decision on the matter. And I know this wasn't discussed before, but, and I don't want this to be used at all times, but when, when you feel as though you moved on a topic and you're remember, you have 72 hours through cancer. So if you don't feel comfortable about that decision you made, I know we have it done as a board, but but a new members in particular. You haven't seen it happen yet, but that will come up a time or two. Hopefully it's, you know, that way, it's only come up ever so often. So, yeah,

you have to be on your permission.

The last thing I'll add, and that's bring Jonathan back up, is whenever any attorney. So this is a law department training. So whenever any attorney, or our litigation attorneys, are looking at someone who pills your decision, the number one thing that they're looking for is record, record. I mean, you may not have made the best decision, but when you made your decision, you apply standard and you discussed it and you express your logic, and the appellate court can see, and they can walk through your reasoning and your rationale, even if they do overturn it, they might still respect it, or they might leave it alone because you created a good record. And so you always want to go back, and I know you're not lawyers, but you always want to make sure that you go through each one and you hit each one as best you can and create a good record, even if it might have been a mistake close call that someone else will

overturn. And remember, this is a very high standard to meet. So

very high standard, very high standard, and which is the reason why it wasn't even easy to create a slam dunk factory. And you might want to go through some of the other ones that are on there that I didn't get to. But just kind of think about them and the questions

you would ask the number of votes to prove that someone has agreed. If you don't get that number, we're going

to get the number. We're going to have the number of votes either gay or nay. So it only takes five board members to make that decision. So we're going to make the decision regardless. There's no way around it, either yay or nay. We're going to act cast votes and do we discuss?

We try to figure this out. We'll have a discussion point, and then

make a decision. You have a discussion, it's

gonna be an open discussion before the petitioner, which is the great person, okay? And most of the time, even the original BC Petitioner even comes and sit there, because you're gonna hear his case next. I'm not sure. Well, sometimes to split it up so there's no clothes.

Everything will be okay.

I was gonna make another statement, very high standard, which is gonna remind you guys that everybody did not meet this day, so just keep that in mind. And unfortunately, but fortunately, left the BGA actually came up with the reason why they came up with this agreement because of the BCA, Detroit, BCA, I think it came up out of a rise, out of, I think, one of medical marijuana related cases here in city, Detroit. So, yeah, unfortunately, but fortunately, we advanced health events a lot. I did see Horton represented. I was just gonna make a comment about that last case

with the agreed person. Do we get these criteria put in the documentation before so we can, or do we need to bring this with us every time? Yes,

every time, every time we're

you may have said it beginning, but we go, we going over a lot of information, and I'm just trying to be clear.

Okay, yeah, all right, Attorney savage or attorney dimmers, I'm

gonna hand it back over to Attorney here, but she was not happy that we've gone over. So thanks a lot.

We are concluded there are other, you know, items we were happy to discuss, but for the sake of time, I'm happy to conclude. Thank you all so much for your engagement and interest. And as we said at the beginning, you know, we are here for you to answer questions. My contact information will be up there on the slide. Our contact information, but yeah, all we need at this point is to close out and I'll bring director brown up for the motion to conclude. Okay,

Director Brown, I suggest that we have a prior to this and second week of November. We won't, we won't schedule any cases on the second week of November. Just keep that mark that down. Guys, second training, second week of November still got two case studies that I think are crucial, that we go over. And I think that would give us enough time. Instead of bringing rules and procedures back on the 16th, we just deal with it in November. Because there's some, there's some, or would that? Will that mess up the timing? Yeah, because, because. Is because, because we have, it has to be posted, has to be a public hearing. So it's not after you all do that. There are a whole bunch of other steps that come into place. So it doesn't just get approved once you do it. Okay? So

the thing I want you all to remember that this, these trainings are important and crucial. A lot of good information came out today. You will get approval criteria with each case I am going to add to the approval criteria all of them suggested questions and yes no for you to be able you all don't use those because I get them back in there. Nothing on them, but I create them for you all to be able to use them. So, like, if you're doing the agreed person, you can check yes and check no, that way kind of have something to use with you to go along. So with that, Mr. Chairman, we can open it up for community comment. Okay, okay, any public comment, public comment, starting nine by phone, option plus WiFi plus WiFi keyboard. Any public comment director drops anyone any public comment, Star nine by phone option plus wi fi, Mac device. One comment.

Okay, I'm asking you to unmute you got 124124, you state your name and your public comment. 124, state your name and your public comment. You have to unmute yourself. Maybe the phone is unmuted, muted. I keep 124, okay, Director Ron, we got to move on. All right. Mr. Chairman, I do see another hand, 558, public comment. I You gotta unmute yourself. Hello, yes, hello.

My name is Vanessa peak, and one of the things that I want to Hi, how's everyone doing? But anyway, in terms of one of the things that we're finding when it comes to the issue of letters of recommendation, information is being provided by BC is untruthful, and we've got situations and so we are, as residents, making sending letters, but when We get to, when we get the notice of the decision, our comments are not included in the BC correspondence, and this is becoming a big issue. And when we go to these hearings, I want everyone to know, BC only gives us two minutes to talk, and we're afterthought. We're actually coming to a meeting and to a hearing, and we as residents feel that we're coming to a hearing only to be told what is going to come to your community regardless to if you want it or you don't. Thank you.

Thank you. Ms, P Thank you. Okay, Director Brown, I will say, I will state that in this for MS peak in particular, or any other community organizations, if you are submit any information to a building of safety when it when it comes time for a BCA here, please send that information also to the building

border zoning appeals department. You okay, 124124 again. Want to try it again. 124 Okay. Director Brown, all right, any new business? Director Brown, no new business. Next, hearing, data sets. Oh, gee, okay, you said your name, ma'am. What you for? That's, that's it. Mr. Okay. Thank you. Any old Business Director Brown, no business. I will state this. I am. We have Hello. Speak.

You're not letting me speak.

Hello, you're not letting me speak. Hello. I.