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r M M <br />County Attorney Vitunac explained that if the Board wished to <br />choose Alternative 3, they would first have to determine the need <br />issue, and then assign the rest of it to them. The right to make <br />the determination of need cannot be assigned. <br />Commissioner Macht asked if the determination of need would <br />trigger that contract. The implementation of that contract could <br />occur at any time, it seemed to him, and that's between the two <br />parties. <br />County Attorney Vitunac reminded the Board that once a year <br />they have an obligation to hold a hearing like this to make a <br />determination in their legislative capacity, not judicial. This <br />gives them a very wide scope to determine what "need" means. The <br />history of this matter does come into play and it seems that the <br />developer's intention of developing some subdivision always has <br />been there. It was known to the people who wrote the agreement <br />back in 1985, so it should have some bearing on need. But the test <br />is going to be whether their decision was fairly debateable and <br />whether reasonable people could differ. If they could differ, then <br />the Board's determination will be upheld by the court. In other <br />words, the Board cannot be arbitrary or capricious. <br />Chairman Adams believed we were back to the term "need", which <br />is more than just capacity. She recalled that earlier in the <br />meeting the Board had discussed.concerns about the tax base. She. <br />pointed out there are all kinds of needs and she felt it was time <br />to move on with this. <br />Commissioner Eggert was concerned about where the County <br />stands. She felt there is not strictly a County need, but she <br />recognized there is a developer's need. She was concerned there is <br />the jeopardy of paying for the relocation of the railroad crossing <br />if they say there is a need, but not a County need. <br />Commissioner Bird speculated on the possibility of relocating <br />the railroad crossing, the County giving up the right-of-way from <br />the railroad to the edge of the developer's property, and <br />abandoning the remainder of that right-of-way through his property. <br />Commissioner Macht was not willing to say that there is never <br />going to be a need. He might be willing to say there is not a <br />current need. He pointed out the comments of Director Davis who <br />mentioned access for emergency services and that 57th Street is <br />clearly on the grid. <br />Commissioner Bird believed that the crossing at 53rd Street <br />was substituted. <br />44 <br />April 9, 1996 600K 97 PAGE 778 <br />