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[15:00] And she'll file an affidavit of mailing with the zoning officer, neither of which were done by Mr. Potter. They were probably 8-10 other parties in this case, members of the community that should have received notice of his motion to reconsideration, they did not find it, they're not here today to argue in opposition or in support of it. And affidavit was not filed with the zoning officer. However, in spite of that defect, I would suggest to the board that you overlook
[15:29] So the procedure will defect and consider the case on the merits.
[15:34] The other issue is vote required, the zoning ordinance and the rules of procedure require
[15:39] that the reconsideration or to deny it.
[15:42] And so when you take a vote later today, you need three members to confirm the motion.
[15:49] Then the standard for reconsideration.
[15:52] And that's a rule of procedure XV3 double I.
[15:56] Revise, repower of the board governs.
[15:58] reconsideration only lies upon a showing of a mistake of fact or law.
[16:03] In this particular case, Mr. Potter's motion accurately cites a mistake of law.
[16:08] His mistake of law is that the board reversed his own hearing officer on the mistaken belief
[16:16] that the former youths had continued based upon the intent of the applicant.
[16:25] that's a mistake of law. The board of course in this order sort of disagreed with that.
[16:33] Next, the issue that was raised by Mr. Schaller in his opposition, the standing
[16:37] of the zoning officer in the county to file an appeal. He makes the argument that the county
[16:43] is not agreed and therefore it cannot file an appeal. The problem with that argument is this is not
[16:49] and appeal. State law does in fact say that only an
[16:53] aggrieved person may file an appeal from an administrative agency to the court.
[16:59] This is not an appeal. It's a request for reconsideration. There is no agreement requirement
[17:04] for motion for reconsideration of an agency's determination. So Mr. Potter here appropriately has,
[17:12] He was a party before the board, and therefore he can file a motion for reconsideration.
[17:21] And again, the reasons for that are the following, just so that the record is clear.
[17:25] Under the zoning orders, 297-414-A, the zoning officer, when you state that he's not a party
[17:33] in interest, the following relies on that particular conclusion by Mr. Schale.
[17:37] One, the docket in the case identifies Charles County zoning officer as Apalee.
[17:42] Apalee is a party definition.
[17:47] Room 2K of the room's procedure expressly defines a party to include respondents in an administrative appeal.
[17:53] The zoning officer is such a respondent.
[17:56] Room Procedure XII, it places the zoning officer in the initial burden of presenting evidence and
[18:04] an argument to justify the decision appealed from.
[18:07] Only a party can make argument and present evidence.
[18:11] Section 297-414-A of the zoning orders uses the broad term.
[18:17] Any party in interest, not the narrow agreed person, as alleged by Mr.
[18:21] Schaller, therefore the board should give the language its plain meeting.
[18:25] The zoning officer was a party in interest.
[18:29] And fifth, the Maryland decision relied on by Mr. Schaller, all concerned the standing
[18:37] of administrative bodies for appeal and adverse decision, which I stated earlier.
[18:41] And this is not an appeal of an adverse decision to the court.
[18:44] This is a reconsideration about the same tribunal that rendered the decision and therefore is
[18:49] not analogous to an appeal from an administrative agency to the court.
[18:54] Then the practical analysis if you were to adopt Mr. Schallers position, basically the county would never be in a position to be able to appeal to the court any decision rendered by this board or any other administrative agency if you were to conclude without specific facts that the county attorney has no authority to file an appeal in this case by analogy Mr. Schallers document.
[19:22] document a reconsideration. That just is not practical.
[19:29] And so at the end of the day, I would conclude,
[19:33] and I would suggest that this board also conclude, that the motion is timely. It is based on a mistake
[19:40] of law. It's sufficient for reconsideration. And then lastly, there are three independent grounds,
[19:47] however, that Mr. Potter failed to address in his motion all of which were cited in the order.
[19:56] And again, we're going back to rule XV3I, the revised repower of the board, and the grounds for reconsideration.
[20:03] And basically, that particular section says the following.
[20:07] A motion that merely restates arguments considered and rejected that the original hearing does not satisfy the standard.
[20:12] It is a request to relitigate and Mr. Potter has not requested to relitigate.
[20:17] He's not requested to add additional evidence.
[20:20] The county frame does argument as a mistake of law specifically that the board improperly imported an intent element into the only order section 297468 despite the ordinance mandatory shall be deemed abandoned language.
[20:35] That's a mistake of law.
[20:38] Therefore, I would suggest that you deny the motion on its merits, not on the procedural
[20:46] defect Mr. Potter has in his particular pleading, and then the merits would be the following,
[20:52] and there are three independent grounds to deny it.
[20:56] Number one, equitable tolling under the National Waste Managers' case, which was cited by
[21:03] I believe, Mr. Scheller, and which was in the original order.
[21:07] A county attorney had ruled in this case or communicated to Mr. Holmes that his case had not been
[21:15] abandoned under the terms because he had intent to proceed.
[21:20] Although arguably that particular conclusion was inaccurate, from an equitable standpoint,
[21:26] point, it induced Mr. Holmes to proceed with attempting to try to gain, get approval.
[21:36] So, equitable tolling was not denied by Mr. Potter in his motion, and that's an independent
[21:42] ground to confirm your original order.
[21:46] Second, detrimental reliance on the county attorney's written advice.
[21:50] clearly Mr. Holmes relied on the advice of the county attorney and it would be a poor argument
[21:57] for the county attorney to tell Mr. Holmes five six seven eight nine years ago that you have
[22:03] not abandoned the law doesn't apply to you because you have an intent to reconstruct the structure
[22:09] and then the same county attorney come in here today and say the deadline passed you had no intent
[22:15] And so Mr. Holmes detrimental relied on the county attorney's written advice and the order very clearly states that is one of the bases of the denial of overturning of the zoning officer's decision.
[22:31] And then the last bases again that Mr. Potter failed to recognize in the original order under session 29746A of the zoning ordinance in the Mark Lounge case.
[22:41] case, he makes the argument that that particular case, which dealt with a revealed provision
[22:50] with a one-year building permit trigger and a case involving no municipal delay and no
[22:56] advice of counsel or stock or, therefore, that case is not even applicable here.
[22:59] That was not a non-conforming use or the type of case that we have here today.
[23:09] Therefore, my recommended disposition to this Board, and of course, it's up to you to make this particular decision based upon the pleading file by Mr. Potter and file by Mr. Schaller, but I would suggest the file that you find that the zoning officer has standing on the zoning ordinance 297-414 as a party and interest to file the motion for reconsideration that you find the motion is timely and satisfies the rules of procedure.
[23:34] of a filing standard of the motion
[23:36] asserting a mistake of law.
[23:40] That you deny the motion for reconsideration
[23:42] on the merits, on the ground set forth.
[23:45] And what I would suggest you do at the end of this case
[23:48] is make a motion to have me prepare for your approval
[23:54] and amended order and decision clarifying
[23:57] why you deny this particular motion for reconsideration.
[24:04] And as I stated earlier, any vote you do make today requires an affirmative vote of three members.
[24:12] And so those would be my comments on this particular case.
[24:16] And so you now in the past year, where you can make the appropriate motion.
[24:21] Thank you, Mr. Brock.
[24:23] Well, at this point, if we're to follow our legal counsel's suggestions, then I'll go back
[24:31] to the maker of the motion is still on the floor, Mr. Trainer, would you like to withdraw
[24:35] your motion?
[24:40] Sure, I was from my motion. And the seconder, Mr. Shersado, would you withdraw
[24:45] your motion? Yeah, let's draw off the second. Okay, so at this point we have no motion on the floor
[24:52] and I'll accept another motion. Okay, I have a question, Mr. Brown. So should we, do we need to
[25:02] rule on kind of the two separate things. I see the issue of standing and then the issue
[25:09] of whether we do the reconsideration or those two separate issues we need to address.
[25:16] No, I think we should vote on a global motion to you. Do you deny the motion for reconsideration?
[25:23] And if your answer to that is affirmative, you deny the motion for reconsideration and that
[25:28] you would then instruct a need to prepare a decision in order to explain why you denied
[25:35] the motion to reconsideration.
[25:42] In that case, Mr. Chairman, I would like to move to reconsider.
[25:52] So I have a motion on the floor.
[25:54] Do I have a second for the motion to reconsider, which we go pretty much against our legal counsel
[26:00] again that and not withdraw
[26:07] seeing no second then the motion dies for lack of a second at
[26:15] this point
[26:16] is here another motion to come to the floor mr.
[26:32] Brown would you read would you restate what we should
[26:36] be doing at this point and we should be denying a motion to reconsider which was made by mr. Potter correct
[26:44] Yes, my suggestion would be based upon the pleading file by Mr. Potter and the pleading
[26:51] file by Mr. Schaller and the order that you approved a month or so ago that you deny Mr.
[27:01] Potter's motion for reconsideration stop.
[27:09] Is anybody willing to do that?
[27:13] So, so you're saying like, so we have to basically reaffirm what was affirmed by this board already?
[27:24] No, no, all we have to do is either we agree with Mr. Potter that we're going to reconsider our decision or we disagree with Mr. Potter that we're going to reconsider our decision.
[27:35] it is my suggestion based upon the pleadings and the argument that you vote to deny his motion
[27:42] for reconsideration.
[27:49] Even though the motion that just died. Well, Mr. Trainers motion was to grant Mr.
[27:55] Paolo's request for reconsideration to reconsider your decision. Right, right. But the fact that nobody
[28:02] second it isn't that the fact that I'm saying we we have to just we have to
[28:07] still need a permanent vote vote of three person okay those are for us say
[28:14] that you denied mr. Pardis motion for reconsideration okay okay all right
[28:19] okay well I move that the county's motion for reconsideration be denied and
[28:28] a second.
[28:31] They have a second by Ms. Walker.
[28:33] Most of them made by Mr. Cassada, the second by Ms. Walker.
[28:36] Now, the floor is open for discussion.
[28:38] Just a moment.
[28:39] Chairperson.
[28:41] Chairperson, was that Mr. Walker?
[28:43] Was that Mr. Watkins?
[28:46] No, Mr.
[28:46] The second is that.
[28:47] Walker made the second.
[28:50] She was muted.
[28:54] Oh, she was muted.
[28:55] Okay. Thank you.
[28:56] I didn't hear it.
[28:56] Okay. Thank you so much.
[28:58] So just to confirm before you move forward,
[29:00] Mr. Chasada has made the motion and Mrs. Walker has seconded it.
[29:05] Correct.
[29:06] I'm clear.
[29:06] Thank you so much.
[29:07] Sorry.
[29:08] I second.
[29:08] I apologize.
[29:09] Thank you.
[29:10] Mr. Chasada.
[29:12] So make her the motion.
[29:13] Would you like to speak?
[29:14] Yeah.
[29:15] So, you know, based on the background information provided by Mr. Brown, you know, was inclined
[29:24] find that, you know, to agree that the county had standing, you know, but upon reviewing
[29:30] his interpretation of previous case law, and that the, you know, it seems like then
[29:38] the county encouraged, you know, encouraged, initially encouraged the continuation, and
[29:46] that, you know, there isn't that, you know, that didn't seem as clear before, but it seems
[29:52] like Mal with the reading of the case letter, if it was something.
[30:01] Mr. Holmes's, I guess, you know, kind of went against the idea that there was intentional
[30:12] and abandonment. And so if I'm reading that correctly, you know, as I looked it over
[30:18] that, what you said earlier, Mr. Brown, that if there was that intent was abandonment requires
[30:26] in 10, correct?
[30:29] No, not necessary. I mean, although the, Mr. Holmes's counsel or prior counsel made
[30:37] the argument that he had an intent not to abandon the property, that was not necessarily accurate.
[30:46] However, you'll order rest on three additional alternative basics, and that is
[30:53] It's equitable, totally, detrimental reliance, and
[31:07] the intent was distinguished because in
[31:12] this particular case, even if you ignore whether or not he had intent, just on the equitable
[31:18] basis alone, you could grant the approval, which is what you did in the original order.
[31:23] So we don't need to give a total rationale at this particular moment, because we've already
[31:30] We drafted the order. We're going to stand on the four corners of the order and then if you if your motion passes, I will draft a document that reaffirms that order and what you heard today from Mr. Potter and from Mr. Schauer.
[32:11] I agree with what Mr. Trasata said and Council Brown and stand on the merits of what we made a decision and we're going to, you know, let's move forward and
[32:25] Let's help maybe this person try to restart his restaurant.
[32:30] Okay.
[32:32] Anybody else would like to speak?
[32:34] I would like to speak for a few minutes if I may, Mr. Chairman.
[32:38] Of course, Mr. Chairman.
[32:39] Thank you.
[32:40] I believe we should reconsider the decision we made
[32:43] because we made a terrible mistake.
[32:47] We made two mistakes.
[32:49] In fact, the first was in ignoring the law,
[32:53] which prevents a continued non-conforming use when it's been abandoned for more than a year.
[33:03] As the board were given a lot of discretion on a lot of issues, but we're not given any discretion
[33:09] on that one. And for us to out of our own sense of justice or righteousness, ignore the laws that
[33:20] our elected representatives pass is, I'm sorry, it feels to be like theft of democracy.
[33:28] These folks have been elected to make decisions.
[33:33] We've been elected to apply them to specific cases, and we've been appointed.
[33:37] We haven't been elected.
[33:39] So I think we made a terrible mistake in extending the ability to hold the nonconforming use
[33:50] for more than a year, simply on what some county employee interpreted as Mr. Holmes' intention.
[34:01] The second part of it, though, is that this wasn't just one year.
[34:07] If you want to disagree with me, if you want to embrace the concept of equitable tolling
[34:15] or detrimental reliance, which really in this case is the same thing that Mr. Holmes
[34:21] apparently relied on the absolutely erroneous interpretation by the county attorney's
[34:29] office who imported a non-existing intentioned provision into the law, that we basically incorporated
[34:39] that provision ourselves. Again, it's something we don't have authority to do. But this isn't just
[34:45] a one-year issue. They were out of pocket for eight years and they continue to have no
[34:53] functioning restaurant as far as I know. And we could see from the last year of correspondence
[35:04] that's between Mr. Holmes and the county,
[35:07] that the issue wasn't some delay on the part of the state.
[35:11] The issue was Mr. Holmes' recouncitrance
[35:14] in complying with the county's reasonable requirements,
[35:19] specifically the requirement to submit a budget
[35:23] which has been an existing requirement
[35:25] for at least six of the eight years.
[35:28] So we have an egregious offender
[35:31] we're letting off the hook. I think it's a mistake and I think we should take advantage of this
[35:38] opportunity to reconsider our mistake and avoid the terrible consequences of having other
[35:48] non-conforming uses come to us based on similar sorts of mistaken interpretations of the law
[36:00] by county employees leads the county to vulnerability, and more importantly, it leaves the county's laws vulnerable.
[36:13] So I will vote no on Mr. Chusev's motion.
[36:17] Thank you, Mr. Trader. Mr. Watkins, would you like to say anything?
[36:21] No, I guess I do want to say something but I heard what Mr. Trainer said and I understand
[36:31] that but I'm still kind of not I don't I guess I don't buy this mistake of law argument.
[36:41] We had hearings I'm not I'm sort of surprised that if this was the county position
[36:52] that none of that came through as part of the discussion
[36:56] when we had the public session.
[36:59] So that makes me a little concerned.
[37:03] So that's just my opinion.
[37:06] You can move on from there.
[37:08] As you're welcome, Mr. Wackens.
[37:10] I'd like to make it a...
[37:12] I know for the record before we move into a vote here
[37:15] and what I'd like to do is
[37:20] After observing and going back through and observing, you know, that what we did only
[37:24] made the 12th at the work session concerning the permit timing, I made a policy remark
[37:34] and a pre-judgment on this case which I should not have done at that time.
[37:42] And I like to, you know, just let everyone know that, you know, that I was, I was at time.
[37:47] I shouldn't have done that when I came up with the permit timing as a policy remark.
[37:54] Okay. So at this point, assuming we're ready to vote, then Madam Clerk, would you please,
[38:03] if you could reread the motion and take a roll call vote?
[38:07] But we have a motion on the floor from Mr. Tressada and seconded by Ms. Walker to deny
[38:18] the motion for reconsideration.
[38:22] Are we ready to take a vote?
[38:24] We are.
[38:26] Okay.
[38:27] Mr. Vice Chair, Benjamin Watkins.
[38:30] I agree with the motion.
[38:35] The motion seconded by Jennifer Walker again, your vote.
[38:39] I agree.
[38:40] The motion made by Mr. Trasada, again, your vote,
[38:47] your muted, sir.
[38:49] Your muted, Mr. Trasada.
[38:51] Yes.
[38:53] Thank you so much.
[38:54] And Mr. Trainer.
[38:57] No.
[38:58] Thank you, Mr. Trainer.
[38:59] And finally, our Chairperson, but Hamburg.
[39:04] I agree with the motion.
[39:07] That means we have four people in agreement with the motion and one, not in agreement.
[39:12] the motion passes that it will be the denial of the motion for reconsideration.
[39:18] Thank you very much.
[39:20] And I will prepare in order for your review and approval,
[39:25] memorializing the basis for your decision today.
[39:28] Okay. Thank you for that.
[39:34] Then at this point, I'm clerked and we're looking for any additional visits
[39:40] to come before the board to consider the decision.
[39:43] We don't have anything else this evening to consider.
[39:48] So excuse me. Can you let us we have our next meeting is going to be on.
[39:55] So next.
[39:57] October. Yes. We have upcoming on the 13th.
[40:02] We will see Falcon Ridge on the 13th on the 13th.
[40:05] October of October.
[40:08] As it stands right now, we don't have anything in September.
[40:12] We had initially had a meeting scheduled to discuss our board rules and procedures,
[40:18] which we have taken off the books.
[40:20] So right now, we have nothing in September.
[40:24] Ms. Kerr, has an attorney been assigned from the county attorney's office to go over the
[40:30] procedures?
[40:31] I'll let our zoning administrators speak to that.
[40:35] Read.
[40:39] Thank you, Mr. Trent. Thank you, at least. At this time, we haven't had an attorney sign to the board to review those documents where we're with the county attorney's office and as soon as one week, they haven't an attorney sign, we'll get a move on that.
[40:58] that they're hiring new attorneys as we speak.
[41:04] They're, Elizabeth Able has now taken on a judgeship
[41:09] over in the cross-count quarter.
[41:12] So, Mr. Trader, as a chair in reviewing all,
[41:17] you know, the different suggestions
[41:19] and changes that we had for our procedures,
[41:22] I sent it back to the county to the attorneys office
[41:24] and asked me them to review everything
[41:26] before it came back to us.
[41:27] I understand. Okay. Then we will have October the 13th and will that be an
[41:36] impression meeting? It will be. We wanted to make sure that the Falcon Ridge
[41:41] community had an opportunity to come into the building and be heard. So we
[41:45] will be meeting in the blue room. And I'll be out of that. I'll be out of town that
[41:50] Okay? Yeah. Okay. Um, then any other, uh, any other business?
[41:57] Nothing else. Then I'll take a motion to adjourn. Mr. Chairman, I move. We adjourn.
[42:04] I'll second. Mr. Tringer, we have a motion made by Mr. Tringer,
[42:07] Secretary by Miss Walker, for adjournment on the favor eye.
[42:12] Those opposed same sign. Motion carries. Thank you all very much for your time this evening.