Agenda - Planning Commission - 05/04/2017

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Zoning Bulletin March 25, 2017 I Volume 11 I Issue 6 that there was "ample evidence of record" for the court to "appreciate the area considered by the Board." The court found that the Board had referenced: testimony concerning roads and intersections surrounding the property; testimony regarding commercial development surrounding the property, including other gas stations within a one -mile radius from the Property; and testimony regarding the flood plain surrounding the property. The court also rejected the Opponents' argument that the Board erred in as- signing the burden of proof to the Opponents. The court said it was "undisputed that 'both the burden of production and the burden of persuasion on the issue of whether the special exception should be granted [ ]' fall on the applicant, whereby the applicant must persuade the Board 'by a preponderance of the ev- idence that the special exception will conform to all applicable requirements.' " Still, explained the court, "[w]hile an applicant for a special exception bears both the burden of persuasion and of production, the concurrent presumption in favor of a special exception applicant is not a mutually exclusive eviden- tiary burden." Rather, "the party favored by the presumption" (i.e., the Ap- plicant) "is not relieved of the requirement of presenting evidence to establish a prima facie case as to those issues for which he bears the burden of proof if the adverse party sufficiently rebuts the presumption," said the court. Here, the court found that the Opponents failed to "set forth sufficient evi- dence to indicate that the proposed fuel service station would have any adverse effects above and beyond those inherently associated with such use." Thus, here, the court found that the Board had "simply stated that, in light of the Ap- plicants having presented sufficient evidence demonstrating compliance with BCZR § 502.1 and the general presumption of validity enjoyed by special exception uses, the evidence as a whole did not warrant denial of the, petition for the special exception." The court concluded that the Board's opinion did not inappropriately assign the burden of proof to the Opponents; rather, the Board had properly opined that the evidence presented by the Opponents was not sufficient to rebut the presumption of the validity of a special exception. See also: Schultz v. Pritts, 291 Md. 1, 11, 432 A.2d 1319 (1981). See also: Alviani v Dixon, 365Md. 95, 775A.2d 1234 (2001). See also: People's Counsel for Baltimore County et al. v. Loyola College in Maryland, 406 Md. 54, 956 A.2d 166 (2008). Zoning News from Around the Nation INDIANA House Bill 1133, which "would have prevented local communities from banning Airbnb and similar services has failed at the Indiana General Assembly," Reportedly, lawmakers may move to consider the bill again. Source: IndyStar; www.indvstar.com © 2017 Thomson Reuters 11