[0:00] foreign

[0:02] [Music]

[3:24] are you ready

[3:31] um Hello everybody welcome

[3:33] um this is the board of appeals meeting

[3:35] uh 7 P.M September 19th 2023. uh we are

[3:40] here to hear case number 2023-03

[3:46] um we will begin with our roll call of

[3:48] the members present

[3:50] um I will ask if you're present please

[3:51] respond informatively uh Mr Paul Doherty

[3:54] president Miss Amy Everett

[3:57] Stephen sharp present I am Jody Hoon

[3:59] star

[4:00] chair uh we are also joined by town

[4:03] clerk Sharon hum and legal counsel Fred

[4:06] Sussman at this point I'll pass it to

[4:08] Sharon for confirmation of posting and

[4:10] any documents entered into the record

[4:14] in the matter of the application for

[4:16] case number

[4:18] 2023-03 rod and reel Inc Donovan

[4:21] estate's LLC I caused to be published in

[4:24] the southern Maryland News newspaper a

[4:27] notice of the public Hearing in this

[4:29] case the three consecutive weeks

[4:31] beginning Friday September 1st

[4:33] continuing Friday September 8th and

[4:36] Friday September 15th on August 24

[4:39] 2023 I transmitted to the Planning

[4:42] Commission notice of time and place with

[4:44] a copy of application on August 24 2023

[4:49] I mailed by registered mail notice to

[4:52] the applicant and adjoining property

[4:54] owners of said properties involved in

[4:56] the case and signs giving notice of said

[4:59] case were posted on said properties

[5:01] August 29 2023 by the Department of

[5:05] Public Works

[5:08] yeah

[5:10] um at this point do you have a affidavit

[5:13] to enter into the record yes I do yes I

[5:16] do

[5:21] yes that'll be exhibit one okay it's a

[5:24] bit one

[5:26] foreign

[5:28] okay in that case uh we will begin with

[5:31] case 2020 303 to consider an application

[5:34] from Rod and Reel Inc or Donovan Estates

[5:37] LLC of 4160 Mears Avenue Chesapeake

[5:40] Beach uh for a decision on

[5:42] interpretation or alleged error

[5:44] um to article uh six of the Chesapeake

[5:46] Beach zoning ordinance uh and some

[5:50] sections of the Chesapeake Beach Town

[5:51] Charter applicant requests the

[5:53] Chesapeake Beach zoning board of appeals

[5:55] to quote order of the zoning

[5:57] administrator and planning and zoning

[5:58] commission to immediately commence and

[6:00] prioritize the processing and review of

[6:02] the relevant site plans submitted by Rod

[6:03] and Reel Inc and Donovan Estates and

[6:06] that the zoning administrator and

[6:07] planning and zoning commission be

[6:08] ordered to apply the zoning ordinances

[6:10] in effect as of January 29 2021 when the

[6:14] applications were submitted and for

[6:16] other such and further relief as the

[6:18] nature of their cause requires at this

[6:20] point I will pass it to Mr Blitz

[6:22] representing rod and reel and Donovan

[6:25] Estates

[6:27] oh apologies one note

[6:29] um in the event that the presentation

[6:31] here tonight extends past 8 30 PM we

[6:33] will adjourn this session to resume

[6:35] October 30th 7 pm at this point in time

[6:39] we don't know how long it will take to

[6:40] hear the full presentations and to

[6:41] receive public comments it may be one or

[6:45] more evenings if you have provided your

[6:47] contact information on the sign-in sheet

[6:48] be aware that you may not have the

[6:49] opportunity to speak this evening

[6:52] now Mr Blitz if you please

[6:56] thank you

[6:57] um members of the board

[6:58] chair uh my name is Eric Blitz I

[7:01] represent the rod and reel Inc in

[7:02] Donovan Estates LLC Donovan Estates LLC

[7:06] is a wholly owned subsidiary of Rod and

[7:08] Reel so throughout this hearing I'll

[7:11] basically just be referring to the rod

[7:13] and reel as that's the real party in

[7:16] interest in moving forward in this case

[7:19] um

[7:20] I'm going to sit down just to make sure

[7:22] I'm closer to the mic if that's okay

[7:24] with you

[7:27] [Music]

[7:34] um quick question on just process

[7:37] do we need to

[7:39] have Mr pounds entered in as

[7:42] representing a party at this time

[7:46] all right pardon is Mr pounds here to

[7:48] represent a party and if so should he be making a statement in the

[7:52] beginning of the case that he is

[7:54] I'm following the instructions of the

[7:56] chair and the chair instructed this uh I

[7:59] mean when it's time my turn I certainly

[8:00] will enter my appearance just for the

[8:03] record on Todd pounds

[8:06] I'm the town attorney and uh I will be I

[8:10] will be speaking when I'm addressed

[8:19] for the record

[8:21] there's a record being made of this so

[8:23] that are we supposed to hear it or what

[8:25] no I'm sorry you can't hear it I'll try

[8:27] to speak up as loudly microphones

[8:30] it was don't aren't for broadcast

[8:32] they're just for the record all right

[8:37] um by way of introduction I'll summarize

[8:39] uh the issues and some of the key

[8:41] evidentiary points uh you will hear in

[8:43] this case uh to give you some background

[8:47] um context for the information we will

[8:49] present to you tonight

[8:50] um

[8:52] as the chair noted this is an appeal

[8:54] alleging error by the Planning and

[8:55] Zoning commission and the zoning

[8:57] administrator

[8:58] um in failing or refusing to review

[9:01] properly filed site plans for five

[9:04] properties owned by the rod and reel

[9:07] the rationale for their refusal was a

[9:09] Reliance upon an invalid moratorium that

[9:12] purported to Halt the processing of some

[9:14] category one site plans uh and then

[9:17] later when the moratorium had obviously

[9:19] expired

[9:21] um and they had spent countless time and

[9:23] energy on explaining

[9:25] um and promoting the moratorium as a

[9:27] temporary

[9:29] um moratorium and only for a discernible

[9:31] duration

[9:33] um they apparently changed their

[9:34] argument and took the position that the

[9:36] moratorium was in fact indefinite

[9:39] um we will just demonstrate why the

[9:42] attempt at passing a moratorium on site

[9:44] plans review was invalid and therefore

[9:46] they were in error in relying upon it uh

[9:50] to deny uh the rod and reel site review

[9:53] applications

[9:55] um we'll also show how absurd the later

[9:57] position is that the moratorium was

[9:58] indefinite

[10:00] um and therefore subject to their

[10:02] discretion to turn out

[10:04] um how long it would be

[10:07] um we're going to show how the

[10:09] obligation to process site plan

[10:10] applications when they are submitted is

[10:12] a mandatory obligation on their part on

[10:15] the part of the administrators that's

[10:17] the zoning administrator and the

[10:18] Planning and Zoning Commission

[10:20] and not something that can simply be

[10:22] removed by simple resolutions of the

[10:24] Town Council

[10:27] um then if after considering all the

[10:29] evidence that we will produce uh for you

[10:31] that demonstrates that their Reliance on

[10:33] the purported moratorium uh was legally

[10:36] faulty we will demonstrate that the harm

[10:38] caused by this failure is a good reason

[10:40] for this board to exercise its appeal

[10:43] Authority in a responsible fashion

[10:46] um we will be asking you to

[10:48] find that the refusal

[10:51] of both the zoning administrator and the

[10:53] Planning and Zoning commission to

[10:54] process the site plans to have been in

[10:57] air but

[10:58] that in the just responsible I'm sorry

[11:02] the just and responsible response to

[11:04] this is to exercise your Authority

[11:07] um to order the site plans to be

[11:10] reviewed

[11:11] um with the law in effect at the time uh

[11:14] that therefore the the site plans would

[11:18] have proceeded in January of

[11:21] 2021

[11:24] um but for this uh erroneous

[11:26] interpretation and Reliance on the

[11:28] moratorium

[11:30] um but before we get to the request

[11:31] relief we need to establish the

[11:33] administrative agents namely the zoning

[11:35] administrator and the Planning and

[11:37] Zoning Commission

[11:38] we're in air

[11:40] um

[11:41] so unlike your more typical variance

[11:43] case or special exception case

[11:46] um in this case you were determining if

[11:48] there it was an error on the part of the

[11:51] zoning administrator and the Planning

[11:52] and Zoning commission and then crafting

[11:54] your relief uh this makes this appeal

[11:57] more like a legal hearing uh than you

[12:00] may be used to and I will try to go slow

[12:02] in explaining my Reliance on certain

[12:04] statutes and cases

[12:07] um

[12:09] we have lots of exhibits to demonstrate

[12:11] the factual points that I'll rely upon

[12:13] um

[12:17] I've I've prepared booklets that I'll

[12:19] hand out to each of you for all of the

[12:21] exhibits that doesn't necessarily mean

[12:24] they're in the record but that way

[12:25] Council and each of you can look at the

[12:28] exhibits as I talk to them rather

[12:30] because they'll be handed just one the

[12:33] official exhibit and I've provided a

[12:35] copy to uh Mr pounds

[12:38] [Music]

[12:40] closer to them like I will try yes but

[12:43] that's not going to help you here

[12:46] oh do you okay

[12:50] let me bring it closer then

[12:53] how's that

[12:54] yes great

[13:05] um similarly I'll be asking you to

[13:06] consider the impact of various statutes

[13:08] and code sections and even some case law

[13:11] and I'll hand out that binder so let's

[13:13] get started the first three exhibits are

[13:15] pro forma introductions to make sure

[13:17] they're in the record

[13:18] um the first is the zoning applications

[13:21] I mean the application for appeal that's

[13:23] filed in this case

[13:25] um so that would be

[13:28] submitted it as I believe exhibit two

[13:35] and let me go ahead and hand out those

[13:37] binders

[13:39] and why it was really

[13:41] good

[13:42] what's that

[13:47] really that's Town Council

[13:55] so the black binders

[13:59] [Music]

[14:02] foreign

[14:10] ERS are the exhibits

[14:13] file

[14:16] apologize

[14:18] [Music]

[14:30] and Mr chair just for procedural

[14:32] purposes uh I also had no objection to

[14:34] the uh affidavit as far as exhibit one

[14:37] uh I and and as far as exhibit two which

[14:41] is just the application but many of the

[14:42] exhibits I'm going to be objected to as

[14:44] we go forward

[14:47] so at this time I would ask Mr pounds to

[14:49] identify who he's representing in this

[14:50] case

[14:52] I am uh I've been asked to uh present

[14:55] the position of the town as released

[14:58] this application so in essence I am the

[15:00] town attorney uh I'm not acting as a

[15:03] town attorney even though I am the town

[15:04] attorney Town attorney uh and I may have

[15:07] that capacity but primarily uh since the

[15:10] uh zoning administrator as all of you

[15:12] know that uh has resigned and he's taken

[15:15] another position the town does not

[15:17] presently have a current zoning

[15:19] administrator uh which they've recently

[15:22] been hired and moving forward but they

[15:25] have not uh been up to speed with regard

[15:27] to any of these projects whatsoever so

[15:30] um uh as a result I'm the one who's

[15:32] presenting this uh on behalf of the town

[15:34] uh much of what and I'm going to be

[15:37] saying much about Mr Blitz as said

[15:39] earlier we're going to be objecting to

[15:41] and that we believe is completely

[15:43] incorrect so

[15:45] um obviously we're going to follow

[15:46] whatever procedure the chair wants to

[15:48] follow with regard to the hearing and so

[15:50] I'm

[15:51] you know I guess

[15:53] since he had an opening statement right

[15:55] into his case uh we did not have an

[15:57] opening statement but we're going to

[15:59] follow the instructions on the chair

[16:00] thank you Mr chair so my question is

[16:05] yeah

[16:06] sorry

[16:08] so my question is

[16:10] the Town Administrator and the Planning

[16:13] and Zoning commission or the Apple

[16:14] leaves in this case

[16:16] and then you can also represent the

[16:19] mayor and Town Council who can join this

[16:21] case under the law as parties so I'm

[16:23] trying to figure out and establish for

[16:25] the record

[16:26] are you representing the Planning and

[16:28] Zoning commission all all of them the

[16:30] Planning and Zoning commission and the

[16:32] zoning administrator and the mayor and

[16:34] Town Council the record

[16:36] filed an appeal in this case we are that

[16:39] is only thing that is that is going to

[16:41] be heard with regard to this uh review

[16:43] by the board of appeals only your appeal

[16:46] so with regard to uh who I represent I'm

[16:50] representing the town has released to

[16:52] this appeal that's all it's going to be

[16:53] heard by this board and that's who I

[16:55] represent

[16:58] so

[16:59] just for the record I'm trying to

[17:00] identify who the parties to the case are

[17:02] uh their Autumn they're automatically

[17:04] not the case this is simply an appeal

[17:06] any any other case that may have been in

[17:08] court or any other place that is not

[17:11] those parties are separate and distinct

[17:13] from what is going here tonight what is

[17:15] going on here tonight is you filed an

[17:17] appeal and that's what is being

[17:19] addressed is your appeal that's it so Mr

[17:22] pounce you can't say that you represent

[17:24] the town you need to identify who you

[17:26] represent there are

[17:28] four options Mr but you have my answer

[17:31] please proceed well I'm going to direct

[17:33] this thing to the board

[17:36] the Planning and Zoning Commission and

[17:38] the zoning administrator are those who

[17:40] we allege that committed error

[17:42] they are automatically

[17:44] parties to this appeal and can be

[17:47] represented

[17:48] in addition the mayor and Town Council

[17:51] have the right to join this case as

[17:53] parties themselves

[17:55] I'm trying to identify

[17:58] because Mr pounds has just said he

[18:00] represents the town which isn't unless

[18:02] he's saying he represents the mayor in

[18:04] Town Council

[18:05] isn't a thing there's these are the

[18:07] parties the potential parties that Mr

[18:09] pounds could represent

[18:14] just let you filed an appeal yes and the

[18:17] appeal is before the board of appeals

[18:19] and and I am presenting the case on

[18:22] behalf of the Town through the board of

[18:24] appeals that's it

[18:28] the town

[18:30] you mean the corporate body of the town

[18:32] of Chesapeake Beach it's you know are we

[18:36] going to stay here all night that's fine

[18:37] the reason I'm asking is we have to know

[18:40] who are parties to this appeal this is

[18:46] huh

[18:48] the we know that don't don't direct

[18:51] comments to

[18:54] the Planning and Zoning commission and

[18:55] the zoning administrator are the people

[18:57] that the rod and reel alleged commit

[18:59] error and therefore they're the applese

[19:01] we're the appellants in this case

[19:04] so they're automatically parties I don't

[19:06] know whether Mr pounds represents them

[19:09] or whether he's trying to introduce and

[19:11] represent the mayor in Town Council

[19:14] who do have the right to join this as

[19:16] parties but we should we have to let the

[19:18] record reflect who the parties to this

[19:20] appeal are in addition anybody that

[19:23] testifies in this case under Maryland

[19:24] law becomes a party because they get a

[19:27] notice if this goes to subsequent

[19:30] um appeals and courts and things like

[19:31] that and so that's why you have them

[19:34] sign up so you have their information so

[19:36] we have to identify who the parties are

[19:38] and I'm trying to find out whether the

[19:39] mayor and Town Council or parties to

[19:41] this case

[19:42] at this point your clients are the going

[19:45] parties

[19:48] there's no process for Apple leaves in

[19:53] an adversarial role

[19:55] uh if if Mr Townes uh determined to

[20:02] speak or offer evidence he will I hope

[20:05] identify who he's offering that evidence

[20:08] for and at that point in time uh

[20:12] that individual or those individuals of

[20:16] that group may as a matter of all become

[20:19] a party but they may not okay the reason

[20:23] I asked at the beginning was he was

[20:24] mentioning that he's maybe making

[20:26] objections for him to make objections he

[20:28] has to represent a party

[20:32] okay I'll proceed

[20:34] we typically allow on this board the

[20:37] petitioner to do their entire

[20:39] presentation and have never heard

[20:41] objections at the time the statements

[20:43] were made I'm not saying that I'm not

[20:45] open to that if that's how you would

[20:48] recommend proceeding we have never done

[20:50] it

[20:52] um I guess I will leave that question

[20:54] open why don't you proceed with your

[20:56] presentation and assume that no

[20:58] interruptions or objections will come

[20:59] and if it does

[21:01] what yeah

[21:03] thank you

[21:06] so

[21:08] we've got the application we're just

[21:10] doing the pro formas right now so the

[21:12] second one is that I'm offering would be

[21:15] exhibit three and this represents uh

[21:28] and we start early I don't know how a an

[21:32] order of the Court would have any uh

[21:34] really binding or any type of

[21:36] governments as to what the board is

[21:39] going to be you know seeking

[21:41] um uh or what what the questions are

[21:44] going to be addressing so uh this is a

[21:46] this is we're here based on appeal

[21:49] um and so I obviously I think it's going

[21:52] to be the relevance would be up the

[21:54] council into the Mr chair but we're

[21:56] going to start right out there how

[21:58] that's going to be relevant these

[21:59] proceedings for the purpose of while

[22:01] we're here I have no idea that that's

[22:02] not good Mr Blitz I think I take issue

[22:06] with your characterization that is the

[22:09] opinion the order of the court in this

[22:12] case this case is an administrative

[22:14] appeal and is not uh part of the

[22:18] judicial proceeding that was decided a

[22:20] number of months ago so let me make my

[22:23] argument for why it should be

[22:25] number one

[22:27] um as you'll hear tonight uh improper

[22:29] delay using an arbitrary and capricious

[22:31] denial of procedural rights guaranteed

[22:33] by Maryland law and town laws is a big

[22:35] part of the rationale for this appeal

[22:38] paragraph two page one of the order

[22:40] directs the portion of this board's

[22:43] process

[22:44] you are under a court order to do it

[22:46] according to that process

[22:48] the court found that the rodent real Inc

[22:51] was an agree a grieved party

[22:53] which is a prerequisite requirement for

[22:56] the appeal to this board and you can see

[22:58] that uh in the his finding on page 14 of

[23:02] the original order

[23:04] the court found that the rod and reel

[23:05] had filed its application in a timely

[23:07] manner that also is subject in this case

[23:11] and it's it's important for this board

[23:14] who is under this court order to know

[23:17] that and see the the rationale of the

[23:20] Court the court order specifies

[23:22] procedural conduct required of this

[23:25] board with respect to this case in its

[23:28] final paragraph of the order which

[23:29] should be memorialized in the record of

[23:32] the appeal as it forms a part of the law

[23:34] of the case so I think it's I think it's

[23:38] quite obvious that it needs to come into

[23:40] the order you are being directed by a

[23:42] judge to hold this hearing in a certain

[23:44] way with procedures dictated by the

[23:46] court order that should be brought into

[23:48] the record I'm not disputing that but

[23:50] with the only thing I was disputing was

[23:53] your characterization that that order is

[23:57] an order in this case I apologize if I

[24:00] said that I didn't mean to say that

[24:01] that's what I was questioning I

[24:03] apologize for Mr Sussman um I just

[24:06] misheard you and didn't realize what you

[24:08] were saying

[24:10] so help we've taken care of the

[24:13] admission

[24:13] because I don't think it's been ruled

[24:15] upon I mean so my question now is Mr

[24:17] pounds is making an objection he needs

[24:20] to identify which party he represents

[24:24] I would agree with that okay basically

[24:27] uh you know well the parties in this

[24:31] case okay we're talking about this case

[24:33] as opposed to you know any other case

[24:37] the court case or anything like that is

[24:39] the town of Chesapeake Beach because

[24:40] that that is the party here uh which is

[24:43] the part the other two parties in the

[24:46] court case are not going to be part of

[24:48] this case so as it applies to the town

[24:50] of Chesapeake Beach that was not a party

[24:53] to the court case therefore uh uh how is

[24:57] any Court decision would have been on

[25:00] those parties are different than

[25:01] whatever they would be going on with

[25:03] regard to anything on this matter okay

[25:06] which is in essence on behalf of the

[25:09] town so uh as a result the relevance on

[25:12] behalf of the Town becomes it means that document becomes completely

[25:15] irrelevant so I would object because the

[25:18] town has a corporate body can't be a

[25:20] party

[25:21] to this case

[25:23] the people that can be a party to this

[25:25] case

[25:26] are

[25:27] the mayor

[25:28] the Town Council

[25:31] the Planning and Zoning administrator

[25:33] and the planning on zoning Commission

[25:37] I need to know

[25:39] if Mr pounds is going to be here

[25:41] representing somebody as an attorney

[25:42] whether he represents any of those four

[25:43] parties so that we know that whether

[25:45] they are parties of record in this case

[25:49] you know and then then okay and then the

[25:52] council wants to keep you know going

[25:54] back and forth here's the problem the

[25:56] problem is is that exhibit two the

[25:58] application Zuni board of appeals town

[26:01] of Chesapeake Beach doesn't say anything

[26:04] about any other parties or anything his

[26:06] application that he filed that he

[26:09] introduced says the town of Chesapeake

[26:11] Beach not any other parties this is his

[26:14] document his appeal so therefore uh you

[26:18] know by his own document he wants to try

[26:20] to switch it and turn it and change it

[26:22] the problem is that he's the one that

[26:24] presented the application he's the one

[26:26] who filled it out he's the one who

[26:27] presented this

[26:28] he's stuck with his own document

[26:31] so respectfully

[26:34] I'm not trying to by introducing the

[26:37] order change who the parties are the

[26:39] parties right now

[26:41] or the rod and reel because I understand

[26:43] it as as an appellant

[26:47] by introducing the order all I'm doing

[26:49] is telling putting into evidence for you

[26:52] what the court found with respect to the

[26:54] procedures that are required in this

[26:56] board of appeals hearing in this case

[26:59] and the rationale for that that doesn't

[27:02] change the parties

[27:03] but for an attorney to represent someone

[27:07] here and make objections they have to

[27:10] say who they represent and it can't be a

[27:12] corporate body as far as I know I've

[27:13] never heard of the corporate body of

[27:17] Chesapeake Beach being the party in a

[27:19] board of appeals case in a zoning case

[27:24] I mean perhaps they could but it I

[27:27] that's when you you filed it okay

[27:30] and that's what the document says you

[27:33] filed it this is what it says and of

[27:35] course the a corporation can have a

[27:38] presentation through the attorney that's

[27:39] what a corporation does I mean this is

[27:42] this isn't anything new that you're this

[27:44] is your uh this is your appeal you filed

[27:48] it you're stuck with it I don't know

[27:50] what you think I'm stuck with all I've

[27:52] done is is gone to court to force the

[27:55] board to hear this case

[27:57] and one

[27:59] and then we're holding the case

[28:03] we're the party now

[28:05] we're complaining about only the conduct

[28:10] of the Planning and Zoning commission

[28:11] and the zoning administrator

[28:14] because we wouldn't be able to challenge

[28:16] directly into the board of appeals

[28:19] the conduct of the town or the Town

[28:22] Council

[28:23] but they are entitled to represent

[28:26] themselves and join a zoning case

[28:29] and in doing so it has nothing to do

[28:32] with that order I'm not trying to make

[28:34] that order change who the parties are

[28:36] the parties right now are just the board

[28:38] of appeals we're trying to find out

[28:39] whether other parties are going to join

[28:41] by Mr pounds representation

[28:43] Mr bullets I think Mr pounds has made it

[28:45] quite clear that he is representing the

[28:48] corporate entity of the town of pet

[28:50] Chesapeake Beach and that is the entity

[28:53] uh

[28:56] that can move forward and I would

[28:59] determine that your

[29:03] opinion in order are invisible

[29:08] thank you

[29:12] uh

[29:15] next is a letter dated August 14th 2023

[29:19] this is the last of what I would

[29:20] describe as pro forma introductions

[29:25] um August 14th 2023.

[29:28] like the gallery please

[29:30] um

[29:39] feed that's required to have this appeal

[29:41] just getting that into the record

[29:43] that's why I call them pro forma these

[29:45] first three are just kind of

[29:46] need to be sure

[29:50] so I'm going to begin

[29:52] um testimony

[29:54] um

[29:55] with uh Mr Paul Woodburn um Paul would

[29:57] you come up to the lectern to answer

[30:00] these questions so that you can be heard

[30:05] um

[30:06] or anybody attending in the in speaking

[30:09] from the audience Please be aware that

[30:10] we're going to do a blanket swearing in

[30:12] right now

[30:14] um if you come and speak to the lectern

[30:16] please uh note your name down on uh any sheet along with your name address

[30:21] and uh who you represent or if you're

[30:24] speaking on your own behalf obviously

[30:25] witness

[30:27] um so for the swearing in for anybody

[30:28] stepping to lectern please know uh do

[30:31] you solemnly swear or affirm under the

[30:33] penalty of perjury that the testimony

[30:34] you're about to give and the responses

[30:36] and statements you're about to make

[30:37] believe the whole truth and nothing but

[30:39] the truth I do

[30:41] okay thank you

[30:45] um

[30:47] Mr Woodburn um

[30:50] if Mr woodburns could be testifying he

[30:52] has a document as we can proceed forward

[30:53] but if he indeed is going to be

[30:55] expressing an opinion such as an expert

[30:57] witness obviously we're going to be you

[31:00] know objecting to that as well as the

[31:02] fact that I'm probably going to avoid

[31:03] the error uh uh on his request to uh

[31:06] issue any opinions

[31:09] understand that that's fine if we get to

[31:11] that but

[31:12] [Music]

[31:13] I get to put on his qualifications from

[31:15] the start anyway before we get into that

[31:17] objection I think Mr

[31:19] um pounds is kind of

[31:21] got a trigger finger on objections here

[31:24] um Mr

[31:25] um Woodburn um what's your profession

[31:28] oh no can you actually say where you

[31:30] live please

[31:31] in your full name uh my name is Paul

[31:33] Woodburn I'm a professional engineer I'm

[31:35] with the offices of Atwell engineering

[31:38] at 11721 Woodmore Road in Mitchellville

[31:42] Maryland and are you licensed to

[31:44] practice Engineering in Maryland I am

[31:47] um have you submitted site plans to

[31:49] municipalities before I have and in that

[31:53] process do you put your seal on

[31:54] documents uh as an engineer submitted to

[31:57] the various local jurisdictions

[32:00] um and

[32:02] do you represent well no in January of

[32:05] um 2021 did you represent the rod and

[32:08] reel yes

[32:09] and so you were acting as the agent for

[32:12] the rod and reel yes

[32:14] um and did you have uh occasion to file

[32:16] five site plans with the uh town clerk

[32:20] on January 29th 2021

[32:22] I did

[32:24] um and was that for the review of the

[32:26] site Plans by the Planning and Zoning

[32:28] Commission of Chesapeake Beach Maryland

[32:30] yes uh in your experience uh were the

[32:33] plans to be reviewed by the zoning

[32:34] administrator of the Town who at the

[32:36] time was Christopher Jakubiak

[32:39] oh yeah I missed the question sure

[32:42] um in your experience were the plans

[32:45] also to be reviewed by the zoning

[32:46] administrator of the Town who at the

[32:48] time

[32:49] this is January of 2021 at the time was

[32:53] Christopher Jakubiak

[32:57] what's the basis basis yeah well one of

[33:00] these things is one is his experience I

[33:03] don't know what his experiences or basis

[33:05] for his experience but uh as I said if

[33:08] this if it's just to your knowledge

[33:11] that's fine and that's going to be a yes

[33:14] or no question but if he's going to be

[33:15] expressing an opinion here uh I just

[33:18] want to let you know that

[33:20] starting off that's where we're going

[33:22] very quickly so if he if he says you're

[33:25] based on your experience yes or no then

[33:27] I'll withdraw the objection but we're

[33:29] going to quickly hit that wall

[33:31] that's what I said in your experience uh

[33:33] I'll ask a preliminary question before

[33:35] you get to that Mr Mr Woodburn have you

[33:37] presented prior to filing the site plans

[33:39] with the right

[33:41] the rod and reel in on January 29th 2021

[33:45] had you experienced had you um filed uh

[33:48] other plans with the town of Chesapeake

[33:50] Beach prior to that yes how many can you

[33:53] guess

[33:55] 1000 okay so in your experience were the

[33:59] plans to be reviewed also be reviewed by

[34:01] the zoning administrator of the Town who

[34:03] at the time was Christopher jukubiak all

[34:05] experience yes

[34:06] um so for the five site plans were each

[34:08] of them to be considered category one

[34:10] site plans I believe they're category

[34:12] one site plans okay and why is that

[34:15] uh because they're in critical area and

[34:18] they include multi-family dwelling units

[34:20] as the use correct correct

[34:23] um

[34:26] and can you describe the five Projects

[34:28] please and and give them names so that

[34:31] the

[34:32] word he knows what those are

[34:34] sure so uh

[34:37] through the first three are and um we

[34:40] call Harbor Vista there's Harbor Vista

[34:42] North Harbor Vista South Harbor Vista

[34:44] West

[34:46] um and they're down next to kellum's

[34:47] field just so you have an idea of the

[34:49] general location

[34:51] sure and Council I'm going to leave it

[34:53] up to you as far as how far this but

[34:55] obviously where are we going today is

[34:57] this is going to be far uh different

[34:59] from the ultimate questions that the

[35:01] board is going to be looking to testify

[35:03] to even in Mr blitz's opening statements

[35:05] so the fact that there were five

[35:07] projects if he wants to do a brief

[35:09] summary of the five that's fine but you

[35:11] need details we're going to be objecting

[35:13] that also so I'm assuming this is going

[35:15] to be just a summary of where we're

[35:17] going with this it is going to be a

[35:18] summary and I would ask that you'd not

[35:20] make objections in the middle of his

[35:21] testimony I'll do my case you do your

[35:23] case okay

[35:25] so three uh as I said are on we call

[35:28] Harbor Vista

[35:32] Northwest and South

[35:34] um two are on Gordon Senate Avenue one's

[35:37] on Old Bayside across from the library

[35:40] um the fourth project is called stenets

[35:43] place

[35:45] um which is off of C Street the two open

[35:48] grass lots I'm sure you all know where

[35:50] that is

[35:51] and the the last project is called Home

[35:54] Place

[35:56] um

[35:56] it's on Cox Road

[35:58] called what sir Home Place

[36:01] on Cox Road

[36:05] Mr Woodburn we're all five projects uh

[36:07] located in the critical area

[36:09] yes and

[36:12] did you submit critical area site plans

[36:14] along with the applications

[36:16] um

[36:17] we do okay

[36:22] so at this time

[36:26] I'm going to offer a copy of the

[36:28] application

[36:30] to

[36:33] the Planning and Zoning Commission

[36:41] and at least I'm gonna

[36:45] help

[36:58] but I don't have one

[37:07] I would also uh like to submit my PDF

[37:10] the entire site plans this is just the

[37:12] applications

[37:13] not going to be asking you really to at

[37:15] this stage

[37:17] review any of those details but you do

[37:19] need to be in the record because those

[37:21] are all the things

[37:25] Mr Blitz are you asking they be

[37:27] introduced collectively as exhibit six

[37:34] if that's okay yes

[37:36] for the purpose of

[37:38] Mr chair and Council just to indicate

[37:42] that there were projects and these are

[37:45] the projects the note fashion

[37:47] okay

[37:52] Tom are you sure that that was six

[37:57] it is okay

[38:06] it's good

[38:08] I'll call Mr Woodburn back up but I've

[38:10] gotta a lot of the legal side of this to

[38:13] go over first

[38:16] I'm going to want to examine Mr Woodburn

[38:20] is is he

[38:22] you can't just set somebody down and

[38:24] bring them back if it's Mr bird Barn I

[38:27] wouldn't examine him now

[38:29] um you know

[38:33] I think that's appropriate yeah he can

[38:35] cross-examine I'm going to bring him

[38:37] back and he can cross-examine him again

[38:38] after that so Mr Woodburn can you return

[38:40] to the left turn please

[38:51] okay I didn't know if he had something

[38:53] else so Mr Weber you testified earlier

[38:55] that uh indeed you were the one who

[38:58] actually prepared the site plans the

[39:00] five site plans that are being discussed

[39:01] here

[39:02] honor my direction correct so you didn't

[39:06] actually do it it was under your

[39:07] direction

[39:08] well my office did them under my

[39:10] direction it takes more than one person

[39:12] to prepare these plans yes okay so uh

[39:15] you're the one who signed it signed

[39:17] these applications correct and you're

[39:19] either you stamped them

[39:21] the applications no plans yes okay who actually uh stamped the plans

[39:27] uh I'd have to look at each one I know I

[39:30] stand some I don't know if I stamped

[39:32] everyone okay so basically you're

[39:33] telling me that applications were filed

[39:35] and you were unaware of it wasn't you

[39:38] who actually uh uh either signed or

[39:41] stamped them no I didn't say that I said

[39:44] I don't know if I signed everyone but I

[39:46] did oversee and

[39:49] um

[39:51] worked on each site plan

[39:55] um and you know all the computations and

[39:57] the applications that go with them okay

[40:00] so basically uh this you testified this

[40:03] was a category one multi-flame family

[40:05] plans that included the critical area

[40:07] right let me ask something Mr Woodburn

[40:10] um did these have five applications go

[40:12] before the Planning Commission uh with

[40:15] regard to their review

[40:17] ever or under this application during

[40:21] the time that the Planning Commission

[40:22] was reviewing the uh the comprehensive

[40:25] plan that these five applications go

[40:28] before the Planning Commission

[40:31] I was not involved in any review of them

[40:33] why not

[40:36] ified so we have five applications your

[40:38] testimony that were filed but none of

[40:40] these applications went before the

[40:42] Planning Commission for the review for

[40:44] the comprehensive plan is that your

[40:45] testimony a test I could read it in if

[40:48] you'd like an email that I received from

[40:50] the Planning and Zoning I want to know

[40:52] what your knowledge is my knowledge if

[40:53] I'm gonna read it I'll be happy to get

[40:55] it do you have knowledge that indeed the

[40:57] Planning Commission reviewed these five

[40:59] applications

[41:01] I do not have knowledge that they did or

[41:03] did not review them can you tell me why

[41:05] this these applications would not have

[41:07] gone before the Planning Commission for

[41:08] the review objection

[41:11] look

[41:12] the entire case is about the fact that

[41:14] the Planning and Zoning commission and

[41:16] the zoning administrator didn't review

[41:17] the applications I didn't ask

[41:20] Mr Woodburn about that so it's beyond

[41:23] cross-exam the scope of

[41:24] cross-examination to cross to expand Mr

[41:28] uh Woodburn's testimony at this point

[41:32] we're going to be going over in quite

[41:34] detail why the Planning and Zoning

[41:36] Commission in the zoning administrator

[41:37] didn't review the site plans we don't

[41:39] need Mr Woodburn for that well a couple

[41:41] things first of all this obviously is

[41:43] within the scope of his knowledge and

[41:45] what he was testifying to as well as the

[41:48] fact that the rules or procedure for the

[41:50] board of appeals does call for broad uh evidence to be incorporated into the

[41:57] record so you know under the board of

[42:00] appeals own rules that have that would

[42:03] be admitted

[42:07] okay so uh basically there's a question

[42:10] pending for you Mr Woodburn yeah no uh

[42:12] no there's a question for the board I I

[42:15] objected to the scope of the

[42:16] cross-examination

[42:20] I think the scope's appropriate broad

[42:23] latitude is given in these

[42:24] Administrative Hearings and if I think

[42:27] it's going way too far I'll uh say

[42:30] something about it okay so the last

[42:32] question was Mr Woodburn why were these

[42:34] applications not presented to by the uh

[42:36] to the Planning Commission for their

[42:38] review

[42:41] I received after submitting the

[42:44] applications and email from Christy

[42:46] Kubiak

[42:47] February 5th 2021 905 a.m and I'll read

[42:51] it says hi Paul this is unprecedented

[42:54] and imposed is a significant challenge

[42:56] to the Planning Commission and the

[42:57] town's planning zoning and project

[43:00] review functions

[43:01] no town could reasonably and reasonably

[43:04] handle

[43:05] or excuse me responsibly handle a load

[43:08] of projects like this without

[43:09] significant delays to or derailing

[43:13] of its comprehensive Plan update and or

[43:16] zoning review and update further these

[43:18] projects if implemented have real

[43:20] potential compound

[43:22] to compound the challenges the planning

[43:25] commissions work on planning and

[43:26] ordinance drafting to seeking to address

[43:29] is seeking to address today is the news

[43:32] in the newspaper is legal notice of

[43:34] public hearing to be conducted by the

[43:36] Planning Commission on two 24-21 to

[43:39] consider a resolution

[43:40] recommending to the mayor and Town

[43:43] Council that

[43:44] they adopt an ordinance creating a

[43:46] temporary moratorium on the processing

[43:48] of major development projects which

[43:50] would include these five plans please

[43:53] contact Sharon hum at Town Hall if you

[43:55] want a copy of the resolution Chris okay

[43:58] so and obviously uh Mr pounds uh it's

[44:03] not going to be made a part of the

[44:04] record that email I was planning on it

[44:06] but it's by cross-examining he's

[44:08] jumbling up our case to in the timeline

[44:12] so if you want it now we can do it but I

[44:15] think it would be appropriate okay so I

[44:18] haven't seen a copy of that

[44:20] okay

[44:21] everybody this is

[44:24] the B exit seven

[44:29] and that's the email of February 5th uh

[44:33] 2021.

[44:34] [Music]

[44:35] from Mr Jakubiak to

[44:39] Paul Woodburn with a copy to me and

[44:43] um another engineer working at Mr

[44:46] Woodburn's office I believe

[44:48] foreign

[44:56] basically based upon that one email

[44:59] about Mr uh Kubiak

[45:01] um uh you're telling me that's what

[45:03] caused these five projects not to be

[45:05] sent to the Planning Commission

[45:07] I can't make a judgment call not I don't

[45:09] know well you're the one submitted his

[45:11] email

[45:13] I mean I'm I didn't never talk to Mr GK

[45:15] after that you can take it for face

[45:17] value you heard what I said okay so

[45:19] basically uh who made the decision at

[45:22] that point so you're telling me if

[45:23] that's the whole email that made the

[45:25] decision not to file any type of

[45:27] applications with the Planning

[45:29] Commission

[45:30] just because of the way it was phrased

[45:32] we filed all five site plans the result

[45:35] of that was an email seven days later

[45:38] that you just received into the record

[45:40] on exhibit seven saying they weren't

[45:42] going to be reviewed and that the

[45:43] moratorium was going to be the one of

[45:45] the two rationales for not reviewing it

[45:48] Mr Woodburn can't testify as to why the

[45:52] town did or didn't do something

[45:54] he could you can ask him whether he

[45:56] heard from him I know what to ask him

[45:59] Council but so basically the question

[46:00] comes into so in essence is that your

[46:04] testimony that based upon that eggmail

[46:05] that those projects were not sent before

[46:08] the Planning Commission is that your

[46:10] testimony

[46:11] my testimony is that I know that those

[46:14] site plans were not reviewed and the

[46:16] reason that was given was emailed to me

[46:19] on the date that I

[46:21] let me ask you this is Mr Kubiak part of

[46:24] the Planning Commission

[46:26] hey no at that time

[46:29] um

[46:31] he's the zoning administrator I believe

[46:34] so your testimony is that he was not

[46:36] part of the actual Planning Commission

[46:37] correct so you could have in essence

[46:40] brought those applications to the

[46:41] Planning Commission to be reviewed

[46:43] objection we did it's one of the

[46:46] exhibits the very uh first exhibit no

[46:50] first exhibit was our appeal

[46:52] um it's it's the exhibit that

[46:55] the application which was filed with the

[46:58] town that's the way you file for site

[47:00] plans you don't file it but the first

[47:03] person to review those is Mr

[47:06] um jacobiak the zoning administrator and

[47:08] then the Planning and Zoning commission

[47:09] gets the file and holds a hearing

[47:12] the refusal or the failure of them to

[47:15] hold the hearing which they have never

[47:16] done

[47:18] is what's at stake in this case why are

[47:20] you asking Mr

[47:23] wood burn I generally don't get into

[47:25] debates okay but but the reason I'm

[47:28] objecting is I will answer that question

[47:30] okay because he is the one who testified

[47:33] he was acting as an agent for Rod and

[47:35] Reel he's the one who filed the

[47:37] applications so in essence he is the one

[47:40] and even though he didn't sign off on

[47:42] them he's the one whose office and he's

[47:45] supervised and he was in charge of these

[47:47] applications so in essence if he's the

[47:49] one to charge the applications and why

[47:52] didn't you take him for the Planning

[47:54] Commission to be reviewed

[47:56] the question is as simple as that or

[47:59] does he know maybe doesn't know or or

[48:02] anything but that's the question because

[48:04] I can tell you that's going to be part

[48:05] of my case and I'm setting this up for

[48:08] later on if you can do what's happening

[48:09] so so Mr boardburn

[48:12] and that's that's the question is do you

[48:14] have any knowledge as to why these five

[48:16] applications were not presented to the

[48:18] uh uh Planning Commission

[48:23] let's let's move on

[48:30] are there any further questions aside

[48:31] from based upon his limited testimony of

[48:34] what he's gone so far nothing more

[48:36] obviously there will be more when he

[48:38] comes we'll have another chance when he

[48:39] adds uh substantial commentary yeah

[48:43] thank you Mr Woodburn um

[48:46] so the board's going to need to consider

[48:48] the legal context of what is happening

[48:50] in this case so I'll start with an

[48:52] explanation of that

[48:54] um

[48:55] are you testifying no I'm giving them

[48:58] I'm giving my presentation and my please

[49:03] let me speak report Mr Blitz cannot give

[49:05] you legal

[49:09] that's Mr Sussman but as far as him you

[49:12] know having legal opinions to the board

[49:14] that's that's completely improper I'm

[49:16] going to object right now to the entire

[49:19] process of of interrupting our case at

[49:22] every turn solely for the reason of

[49:25] interruption what's happening

[49:26] introduction that's not I am presenting

[49:28] an argument can I please finish this

[49:31] case

[49:34] I get to make a presentation as I bring

[49:38] in evidence I can explain the legal

[49:40] context of what we our case is about to

[49:45] make the legal argument so that you

[49:46] understand the context of all the

[49:49] evidence that will come in a big part of

[49:51] this case is a legal argument

[49:54] this is an appeal on alleged error so I

[49:57] need to explain to you as a board and I

[50:00] need to convince you if I'm going to be

[50:02] successful of the merits of those things

[50:05] we're going to be bringing a lot of

[50:07] legal arguments because that's what

[50:08] you're going to have to decide you're

[50:10] going to have to decide whether the

[50:12] Planning and Zoning commission and the

[50:14] zoning administrators failure to process

[50:15] site plans and the reasons for that were

[50:18] in error that's the case so I'm going to

[50:22] be talking a lot of Law and explaining

[50:24] what our position on the law is I'm not

[50:26] giving an opinion to you about the law

[50:28] Mr Sussman can always weigh in if you

[50:32] have questions about the law or

[50:34] questions about what I say but I get to

[50:35] present a case and it shouldn't be

[50:38] interrupted at every turn when all I'm

[50:40] doing is presenting

[50:42] the basic case

[50:48] oh you continue okay

[50:53] first we start with you know the basic

[50:55] property rights as it relates to zoning

[50:58] power

[50:59] um the default is that you own property

[51:03] um

[51:04] and if you own it fee simple and and

[51:06] the owners get to decide uh free from

[51:09] all interference uh on what is done with

[51:12] that property including what is built

[51:13] there that's the base

[51:15] all limitations on that basic property

[51:18] right are evaluated on whether they are

[51:21] consistent with the law

[51:24] such as zoning in this context

[51:28] a zoning regulation does not direct a

[51:31] property owner of what to build

[51:33] uh or when to build it but provides the

[51:36] youth limitations applicable to that

[51:38] property as well as many other site plan

[51:40] limitations on design orientation

[51:43] mitigation that may be required Etc

[51:49] that range of options

[51:52] is limited by the zoning code

[51:57] and

[51:58] sometimes the subdivision regulations

[52:02] um but the decision remains with the

[52:04] property owner

[52:05] that discretion that I'm describing is

[52:08] important to remember because unless a

[52:10] regulation on property development is

[52:12] valid

[52:13] and applied according to due process of

[52:15] law

[52:17] then the default is that the owner is

[52:19] entitled to Bill

[52:21] foreign

[52:26] in the exhibit that I submitted uh for

[52:29] the order of the circuit court for

[52:31] Calvert County you can see on page 10

[52:33] of exhibit three

[52:36] um

[52:37] the Court's point that the Supreme Court

[52:38] of the United States has recognized in

[52:40] multiple cases the high importance of

[52:42] property rights

[52:43] so there's a legal process associated

[52:45] with zoning which must be clear and

[52:47] constitutionally precise

[52:50] it must not be impermissibly

[52:52] overburdened the property interest and

[52:54] it must be fairly and non-arbitrarily

[52:57] applied to property owners

[52:59] treating every property owner of a

[53:01] similarly situated property interest

[53:04] within the town zoning wall equally and

[53:07] without bias or improper discrimination

[53:12] a part of that due process is

[53:15] if there are administrative procedures

[53:17] that are set up to allow properties to

[53:18] qualify under the zoning law

[53:21] uh to develop their property

[53:23] um you know it's a foundational concept

[53:25] of zoning law in Maryland

[53:28] throughout the country you know this is

[53:29] traces back all the way to the Euclid

[53:32] decision of the Supreme Court which you

[53:35] know that's a century ago that

[53:37] um established the constitutionality of

[53:39] zoning that

[53:41] both the substantive law and the process

[53:46] for administering it must not be

[53:49] arbitrary or unreasonable and there has

[53:51] to be a constitutional due process in

[53:52] the administration of all zoning laws

[53:57] the importance of this point

[53:59] is that when conducting the

[54:01] administration of the zoning law the

[54:03] Planning and Zoning commission and the

[54:04] zoning administration's task is not to

[54:06] legislate

[54:08] or to create substantive policy on their

[54:10] own but to administer the laws properly

[54:12] passed by the Town Council

[54:14] and with respect to property rights

[54:16] existing at the time

[54:20] I apologize with respect to the

[54:22] properties existing at the time that the

[54:24] applications are filed

[54:25] um

[54:32] those conducting the administrative

[54:34] functions of the Town zoning laws in

[54:37] site plan review

[54:38] or reviewing the applications to

[54:40] determine their consistency with

[54:42] existing zoning laws

[54:45] and while during site plan review the

[54:47] Planning and Zoning commission has broad

[54:49] broader discretion than the zoning

[54:51] administrator uh to achieve uh more

[54:54] abstract principles

[54:56] um

[54:58] determining whether the proposed site

[55:00] plan complies with the zoning code that

[55:02] applies at the time of the review

[55:04] typically measured as of the time of the

[55:07] application

[55:10] this fundamental

[55:12] principle of zoning law is made clear in

[55:14] the very first sentence of the town code

[55:17] section on site plan review

[55:19] so in your binders on

[55:22] um

[55:23] the law I point out I provide you

[55:25] section

[55:26] 290-23a of the Town zoning code I'm

[55:29] going to read you the section

[55:31] you know focusing your attention on

[55:35] that's uh

[55:37] 293 23A

[55:40] want site plans prepared and approved in

[55:43] accordance with the provisions of this

[55:45] article should be required to assist

[55:46] Town administrative officials in the

[55:49] review of applications

[55:51] for building permits and assure

[55:52] compliance with all applicable

[55:54] requirements of this Charter

[55:57] I bring all this up because the rod and

[56:00] reel in initiating the site plan process

[56:02] is legally required to do so for this

[56:05] development

[56:06] okay so I've described the basic

[56:09] fundamental property rights and now

[56:10] there's a process site plan review that

[56:14] applies the zoning

[56:18] to the to the site plan that's being

[56:20] presented

[56:24] now the Planning and Zoning commission

[56:26] is responsible for reviewing and it's

[56:29] exclusively responsible for reviewing

[56:31] all category site one category one site

[56:34] plans you've heard from Mr Woodburn that

[56:36] they were all category one site plans

[56:38] and that's in section 290 23 C3 and 4.

[56:42] this is not a discretionary Authority

[56:46] the commission must undertake a process

[56:48] and approve or disapprove or approved

[56:50] with conditions any site plan filed with

[56:52] it

[56:54] the commission can reject the site plan

[56:55] only for non-compliance with then

[56:58] existing zoning and or subdivision law

[57:00] or other laws impacting the development

[57:03] plan such as the county stormwater

[57:05] regulations or is a common example

[57:08] um

[57:09] in addition because the rod and reel

[57:11] properties are located in the critical

[57:13] area which you've heard

[57:16] the Planning and Zoning commission's

[57:18] exclusive and mandatory review Authority

[57:20] is repeated again in your town code in

[57:23] section 290 25a2 and 2A

[57:29] and that process is set forth in A5 and

[57:32] I'll I'll read it to you

[57:35] number five procedure for processing

[57:38] upon receipt

[57:40] of the site plan the Planning and Zoning

[57:43] commission shell

[57:44] conduct a review soliciting comments

[57:47] from other technical agencies

[57:48] departments agents agencies and

[57:51] officials as the ploning and Zoning

[57:52] commission may deem appropriate

[57:55] subsection B

[57:57] the site plan shall be approved if it

[58:00] meets the requirements of this article

[58:03] comma the other requirements of this

[58:05] chapter and all other federal state and

[58:07] town regulations and all necessary

[58:08] permits and approvals have been obtained

[58:11] C

[58:12] the Planning and Zoning commission shall

[58:15] approve conditionally approve or reject

[58:18] a site plan within 60 days from the

[58:21] filing of the application

[58:23] notice of such actions shall be given in

[58:25] writing to the applicant

[58:29] as you may be able to tell I emphasized

[58:32] the words shell those are all

[58:35] in statutory language considered indicia

[58:39] of a mandatory obligation it's saying in

[58:43] the law

[58:44] that the Town Council and mayor passed

[58:48] to apply in the zoning code to the

[58:51] properties filed by this rod and reel

[58:53] this this is the site plan review for

[58:55] critical area site plans and it must be

[59:00] reviewed and

[59:02] by either approving it conditionally

[59:04] approving it or rejecting that site plan

[59:06] within 60 days of the filing application

[59:08] so that gives you the timeline where the

[59:10] town code mandates that

[59:21] it should be noted that

[59:23] resolution is done in Chesapeake Beach

[59:25] with a preliminary site plan approval

[59:26] typically that includes conditions set

[59:30] by the Planning and Zoning commission so

[59:31] what they do is review it

[59:33] first at a hearing have a preliminary

[59:35] site plan

[59:37] that's reviewed

[59:39] then

[59:40] conditions for the developer to meet

[59:44] before you get back to the final site

[59:47] plan review

[59:49] um I've done lots of site plan reviews

[59:51] with the Chesapeake Beach so I I know

[59:54] how the process works I just want to

[59:55] make sure you understand that how it

[59:57] typically Works doesn't technically have

[1:00:01] to

[1:00:01] have both a preliminary and final but

[1:00:04] that's almost always the way it is on

[1:00:06] anything

[1:00:07] substantive

[1:00:09] um

[1:00:13] I want to point out another important

[1:00:15] code section that's relevant as we begin

[1:00:18] this timeline sorry

[1:00:22] um section

[1:00:24] 290-31e1 of your zoning code

[1:00:27] provides another binding obligation of

[1:00:29] the commission

[1:00:30] it's grounded in law and not in a

[1:00:32] discretionary power

[1:00:35] and addresses the condition the

[1:00:37] commission's meeting obligations with

[1:00:39] respect to site plan admissions

[1:00:41] I'll read it

[1:00:44] the Planning Commission shall establish

[1:00:47] a regular meeting schedule and shall

[1:00:49] meet frequently enough so that it can

[1:00:51] take action on all complete applications

[1:00:54] in an expeditious manner

[1:00:57] the Planning Commission shall hold

[1:00:59] meetings quarterly or more often as the

[1:01:01] planning commission's duties require

[1:01:03] if there is no business before the

[1:01:05] Planning Commission the chairman May

[1:01:06] cancel the meeting

[1:01:08] so not the meetings also have to be as a

[1:01:13] mandatory process

[1:01:17] be held and they have to be held

[1:01:19] frequently enough so that they can take

[1:01:21] action on to complete applications in an

[1:01:24] expeditious manner so that's the

[1:01:26] standard that the town code provides to

[1:01:28] the Planning and Zoning commission when

[1:01:29] they get site plan reviews and this

[1:01:33] especially with critical area

[1:01:40] now the zoning administrator also a

[1:01:43] party that we allege error is required

[1:01:46] under your code the town code

[1:01:49] to assist in the in the administration

[1:01:54] of site plan review and that's found in

[1:01:58] subsection C2 of section 290-23 which

[1:02:02] also uses the mandatory language the

[1:02:05] shell language and says the

[1:02:07] administrator shall review the

[1:02:09] application for completeness and will

[1:02:10] refer the application to the appropriate

[1:02:12] individuals or agencies for review

[1:02:14] comment or approval

[1:02:18] note that for category one-site plans

[1:02:20] like in the critical area that we have

[1:02:22] in this case

[1:02:24] um this would need to be done in time to

[1:02:26] fit within the 60-day resolution

[1:02:28] requirement

[1:02:30] uh this obligation of the zoning

[1:02:32] administrator is restated in the section

[1:02:34] establishing the zoning administrator's

[1:02:36] Authority as set forth in section

[1:02:39] 290-2615

[1:02:42] typically uh the zip Tana zoning

[1:02:46] administrator provides a staff report to

[1:02:47] the commission which provides the

[1:02:49] administrator's view of the proposed

[1:02:52] development and its compliance with the

[1:02:53] zoning ordinance subdivision regulations

[1:02:55] or other related laws uh consistent with

[1:02:57] his authority in 290-2613.

[1:03:09] so to recap we've got a mandatory

[1:03:11] obligation of the Planning and Zoning

[1:03:13] commission to review category 1 site

[1:03:15] plans hold a public hearing on them and

[1:03:17] must provide a decision within 60 days

[1:03:19] of the filing

[1:03:21] mandatory obligation of the zoning

[1:03:23] administrator to assist in that

[1:03:24] pre-hearing review for category one site

[1:03:27] plans and assist the Planning and Zoning

[1:03:29] Commission

[1:03:33] you've we already brought into the

[1:03:35] record

[1:03:36] I believe it's exhibit seven is it

[1:03:39] Paul's letter seven the email that Mr

[1:03:41] Woodburn received on February 5th seven

[1:03:45] days after we file the site plans after he

[1:03:52] filed the site plans for the rod and

[1:03:54] reel

[1:03:57] it's important to

[1:03:59] understand the be that this is the

[1:04:01] beginning of refusal to process the site

[1:04:04] plans and he's telling you the two

[1:04:06] reasons why

[1:04:07] he believes those site plans shouldn't

[1:04:10] be reviewed

[1:04:12] if you want I can read it again to

[1:04:14] emphasize it you've already got it in

[1:04:15] the record but I don't want to

[1:04:17] take more time but the point

[1:04:19] is

[1:04:21] that he makes two

[1:04:24] reasons why site plan review shouldn't

[1:04:27] proceed

[1:04:29] one that it would compound the

[1:04:32] challenges of the Planning and Zoning

[1:04:33] commissions work

[1:04:35] on planning

[1:04:37] and ordinance drafting

[1:04:39] um that they were doing with the

[1:04:41] comprehensive plan

[1:04:43] and then second that

[1:04:46] a moratorium was going to be proposed

[1:04:48] prior to this there was no moratorium

[1:04:50] being discussed

[1:04:53] at all

[1:04:57] notice in this email that the zoning

[1:04:59] administrator completely ignores the

[1:05:02] 60-day review requirement and the

[1:05:03] obligation of the commission to hold

[1:05:05] meetings

[1:05:06] as often as necessary to get that work

[1:05:08] done

[1:05:09] so when he says that

[1:05:13] one of the reasons for not reviewing the

[1:05:16] site plans and not having the Planning

[1:05:19] and Zoning commission review the site

[1:05:20] plans is that it's too much work

[1:05:24] I I cited you the section the section of

[1:05:28] the town code says they shall meet must

[1:05:30] meet as often as necessary to to do both

[1:05:34] of their functions

[1:05:35] to explain that

[1:05:38] understand that the Planning and Zoning

[1:05:39] commission has two different types of

[1:05:42] functions they have the planning and

[1:05:44] policy oriented function and that would

[1:05:46] have been done for the comprehensive

[1:05:48] plan

[1:05:50] um and that's what Mr uh jacobiak was

[1:05:53] referring to that they were working on a

[1:05:55] comprehensive plan

[1:05:56] that's a policy thing

[1:05:58] they also are administrators

[1:06:01] two different roles and they have to do

[1:06:03] both of them under the law at the same

[1:06:06] time and hold as many meetings as

[1:06:07] necessary to do both of those functions

[1:06:09] that administrative function is site

[1:06:12] plan reviews like we filed for the rod

[1:06:14] and reel but also subdivision plots get

[1:06:18] reviewed if

[1:06:20] the the

[1:06:22] Town opens a new road they they do a

[1:06:24] review they have a series of required

[1:06:28] administrative tasks

[1:06:31] under the town code that they must

[1:06:33] complete

[1:06:34] and a lot of those flow from Maryland

[1:06:38] statutory law

[1:06:40] [Music]

[1:06:44] the I'm going to take take on the first

[1:06:48] I'm going to divide the presentation now

[1:06:50] between the two reasons why Mr Kubiak

[1:06:54] was saying they weren't going to

[1:06:55] do the site plan reviews

[1:07:00] I mean we've been going on for some time

[1:07:02] now and I've been letting him just kind

[1:07:04] of go on with his presentation that's

[1:07:06] fine but Mr jubiak has no Authority okay

[1:07:09] so you keep speaking of talking about Mr

[1:07:11] jubiakin is is his emails and so forth

[1:07:14] he's got no Authority the Planning

[1:07:16] Commission or or to the Town Council he

[1:07:18] is someone who makes recommendations

[1:07:20] that's it and so you know the idea that

[1:07:23] somehow Mr Jupiter gets made final

[1:07:26] decisions here

[1:07:27] you've been we've been going on for some

[1:07:29] time and obviously you know we've been

[1:07:31] dancing around some of the key points of

[1:07:33] the law so I'm going to be asked to have

[1:07:35] just a few minutes when this ends

[1:07:39] um uh but you know I just want to bring

[1:07:41] up that point of saying at this point

[1:07:44] I don't know what the relevance is what

[1:07:46] Mr jubiak was doing but uh thank you I

[1:07:49] noted uh with regards to Mr jacobiak and

[1:07:52] we will give you some minutes to uh

[1:07:54] respond in bulk later in the minute

[1:07:56] please continue so

[1:07:58] just to respond to that Mr jakku I just

[1:08:01] read Mr jacobiak's Authority Under The

[1:08:04] Zone obligation under the zoning code to

[1:08:06] assist in site plan review that's what

[1:08:08] he was doing when he sent his February

[1:08:10] 5th meeting I just read you the statute

[1:08:13] that's what I'm referring to

[1:08:23] so as I was saying I'm going to divide

[1:08:25] up the rest of this dealing first with

[1:08:28] the part that's associated with his

[1:08:30] rationale for not proceeding with site

[1:08:32] plan review

[1:08:34] which was that there would be

[1:08:38] that the commission it would be two

[1:08:40] burdensome on the commission to do the

[1:08:42] site plan reviews because they were also

[1:08:44] doing the comprehensive plan

[1:08:49] I've pointed out the statute that says

[1:08:51] they have to do both at the same time

[1:08:52] and do it as expeditiously with as many

[1:08:55] meetings as necessary to do it

[1:08:57] so what's particularly ridiculous about

[1:09:00] this point in in the zoning

[1:09:03] administrators argument in his email

[1:09:06] is at this point in time

[1:09:09] the town's comprehensive plan and the

[1:09:11] implementing zoning ordinance was

[1:09:13] already four years late

[1:09:16] excuse me Mr pleasure are you going to

[1:09:18] have a present evidence uh to uh

[1:09:22] elucidate on these points that you're

[1:09:24] making now or are you testifying uh I

[1:09:27] will present well

[1:09:30] number one you want to testify raise

[1:09:32] your right hand and take the oath okay

[1:09:35] or if you already took the other so we

[1:09:37] can clear away I do include to include

[1:09:41] any facts that I offer

[1:09:45] that's fine

[1:09:46] is that okay I mean you you're except

[1:09:49] accepting that I mean we are moving

[1:09:51] towards closing throughout a lot of what

[1:09:54] he's talking about this is not testimony

[1:09:55] does not you're Way Beyond where we

[1:09:57] started with it's this is definitely

[1:09:59] like a closing type argument but

[1:10:02] um

[1:10:04] this is you know where this is right now

[1:10:06] not making a closing argument I'm making

[1:10:08] the explanation of why we say that the

[1:10:12] Planning and Zoning administrator and

[1:10:14] the Planning and Zoning commission which

[1:10:16] are the parties that we allege committed

[1:10:17] error were wrongful in denying site plan

[1:10:20] review so I get to go through all of the

[1:10:23] reasons and the rationales and those

[1:10:25] things that are related to that that

[1:10:27] make their decisions completely unjust

[1:10:30] with respect to the rod and reel

[1:10:32] applications that were filed that's kind

[1:10:34] of the raison Detra of this case so I'm

[1:10:38] going to explain why first the first

[1:10:42] argument of the zoning administrator in

[1:10:45] his February 5th email

[1:10:47] was so ridiculous

[1:10:51] so remember that the applications were

[1:10:53] filed on January 29th of 2021

[1:10:56] that means the 60-day requirement

[1:10:59] um to hold a hearing

[1:11:00] on those site plans would put that date

[1:11:03] on March 30th of 2021.

[1:11:06] that hearing did not occur

[1:11:10] at this point

[1:11:11] the last comprehensive plan of the town

[1:11:13] of Chesapeake Beach had been passed on

[1:11:16] January 20th 2011. you can make take

[1:11:20] judicial notice of that because it's the

[1:11:22] official government thing it's on your

[1:11:24] website that's actually where I get the

[1:11:26] date we'll have other exhibits that

[1:11:28] actually

[1:11:29] um probably show that as well

[1:11:32] um so it it's not a

[1:11:35] issues so the point is that at that

[1:11:37] point in time the last comprehensive

[1:11:39] plan was January 20th of 2011.

[1:11:43] now the legal obligation on the Planning

[1:11:45] and Zoning commission is to propose a

[1:11:47] new plan at least every six years under

[1:11:49] the town law

[1:11:51] that's found in section 290-31a1

[1:11:56] and it reads

[1:11:57] a purpose

[1:12:00] the Planning Commission shall advise the

[1:12:03] Town Council on all matters relating to

[1:12:05] the orderly growth of the town of

[1:12:06] Chesapeake Beach more specifically the

[1:12:09] Planning Commission with the advice and

[1:12:11] assistance of the Town staff and or

[1:12:13] retained town planning experts shall

[1:12:15] number one

[1:12:17] prepare and recommend a comprehensive

[1:12:19] plan for the town of Chesapeake Beach

[1:12:21] and review and update said plan at least

[1:12:23] once every six years

[1:12:25] notice the mandatory language in that

[1:12:28] section

[1:12:29] this is not a discretionary Authority

[1:12:31] the mayor and Town Council through a

[1:12:32] legislative act adopted a zoning code

[1:12:36] that uses the mandatory language shell

[1:12:39] to establish that one of the legal

[1:12:41] obligations of the Planning and Zoning

[1:12:42] commission for Chesapeake Beach is to

[1:12:44] prepare and recommend a new

[1:12:46] comprehensive plan at least every six

[1:12:48] years

[1:12:49] now there is also a state mandate that

[1:12:52] comprehensive plans be reviewed at least

[1:12:54] every 10 years and that's found in

[1:12:56] section 3-301 of the land use article of

[1:12:59] the annotated code of Maryland and

[1:13:01] that's in your white notebook

[1:13:04] but that's at least every 10 years

[1:13:06] municipalities are authorized to do it

[1:13:09] as often as they want and this

[1:13:12] municipality Chesapeake Beach

[1:13:14] Road a law

[1:13:16] it binds the Planning and Zoning

[1:13:18] commission to do it every six years

[1:13:20] the reason I bring that up is

[1:13:23] the art the first argument of Mr

[1:13:25] Jakubiak for not

[1:13:27] preparing a site plan

[1:13:29] was that the commission was working on a

[1:13:32] comprehensive plan

[1:13:33] and that's why I say

[1:13:35] it's kind of ridiculous to say we we

[1:13:38] don't have time to do your site plans

[1:13:41] when they're six years late on doing

[1:13:43] their current plan

[1:13:46] sorry to interrupt you uh several times

[1:13:49] you've mentioned a white notebook

[1:13:51] did I not pass those out no I apologize

[1:14:04] I did

[1:14:06] foreign

[1:14:20] [Music]

[1:14:29] make one comment

[1:14:31] okay

[1:14:33] um you know we've been going on about

[1:14:34] various things Mr chubiak did this Mr

[1:14:37] trivia didn't do that uh I just want to

[1:14:40] make sure that the the board understands

[1:14:42] it's the Town Council that made the

[1:14:44] decision okay the Town Council is the

[1:14:46] one who passed a moratorium that told

[1:14:48] him what he can and can do this has

[1:14:50] nothing to do with Mr zubiak didn't

[1:14:52] comply with dysregulation didn't comply

[1:14:54] with that maybe the Town Council

[1:14:56] everybody knows the Town Council runs

[1:14:59] the town they make decisions on behalf

[1:15:01] of the town they tell the people in the

[1:15:04] town what they can and can't do so in

[1:15:07] essence this this this tirade of going

[1:15:10] on with Mr Kubiak didn't do this it

[1:15:13] didn't comply with that doesn't make any

[1:15:14] difference because the Town Council

[1:15:16] passed a moratorium it was a legislative

[1:15:18] function and they said this is what

[1:15:20] you're going to do this is what you're

[1:15:21] not going to do and I'm going to be

[1:15:23] talking about that later but but I just

[1:15:24] want to kind of it's one of the many

[1:15:27] things we're going to be bringing up

[1:15:28] thank you all right thank you continue

[1:15:32] and kind of object to having our case

[1:15:35] constantly that wasn't an objection it

[1:15:37] was merely just an argument

[1:15:39] under the board's rules we present our

[1:15:42] entire case first

[1:15:44] that's it our witnesses can be

[1:15:46] cross-examined but I'm making the legal

[1:15:48] arguments about why

[1:15:51] the failure of the Planning and Zoning

[1:15:54] commission to process site plans was

[1:15:56] wrongful and I get to explain all of the

[1:15:59] reasons and we're starting with the fact

[1:16:01] that the zoning administrator who I've

[1:16:03] demonstrated is legally obligated to

[1:16:05] assist with site plan review with the

[1:16:07] Planning and Zoning Commission

[1:16:10] sent the letter and gave two rationales

[1:16:12] why they weren't going to do it

[1:16:14] and the first one is that they were too

[1:16:17] busy because they were working on the

[1:16:18] comprehensive plan and that these five

[1:16:20] site plans would have

[1:16:22] made that difficult or impossible you

[1:16:25] didn't say that but he

[1:16:27] you can read the letter I don't wanna

[1:16:29] put Mr words in Mr jacobiak's um

[1:16:39] I'll read the relevant section

[1:16:42] um further these projects if implemented

[1:16:45] have real potential to compound the

[1:16:46] challenges of the planning commission's

[1:16:48] work on planning and ordinance drafting

[1:16:51] is seeking to address

[1:16:53] wasn't

[1:16:54] a complete sentence but

[1:16:56] so

[1:16:59] we're back to the idea of why that was

[1:17:01] ridiculous first

[1:17:05] they were he was pointing to the fact

[1:17:06] that they were working on a

[1:17:07] comprehensive plan and I'm pointing out

[1:17:09] that they were legally already six years

[1:17:12] behind

[1:17:15] and I was talking about the state

[1:17:16] deadline as well

[1:17:19] but that state deadline also actually

[1:17:22] has an important point

[1:17:24] because even though the town law is

[1:17:26] mandatory on the zoning administrator

[1:17:28] and the Planning and Zoning commission

[1:17:29] well I apologize on the Planning and

[1:17:31] Zoning commission not the zoning

[1:17:32] minister

[1:17:34] um

[1:17:36] you're going to hear

[1:17:39] that the commission did not even meet

[1:17:42] the state's 10-year deadline

[1:17:44] the final resolution proposing the

[1:17:46] updated comprehensive plan was adopted

[1:17:48] by the Planning and Zoning Commission on

[1:17:50] November 9th 2021.

[1:17:52] okay and you can take judicial notes to

[1:17:55] that given that the previous plan had

[1:17:57] been adopted on January 20th January

[1:17:59] 20th of 2011 the commission was over 10

[1:18:03] months late in meeting the state

[1:18:04] deadline

[1:18:06] this failure has important consequences

[1:18:08] because both the state and town

[1:18:10] deadlines are meaningful substantive

[1:18:12] legal obligations of the Chesapeake

[1:18:14] Beach Planning and Zoning Commission

[1:18:16] property owners and citizens have the

[1:18:18] right to rely upon those requirements

[1:18:20] being met

[1:18:21] and especially when their properties are

[1:18:24] the ones being regulated by those zoning

[1:18:26] laws

[1:18:27] this is necessary to meet basic due

[1:18:30] process

[1:18:32] um in the application of the regulations

[1:18:34] to property owners

[1:18:37] these obligations are enforceable

[1:18:40] because Maryland's adoption of what is

[1:18:42] known as smart growth which includes as

[1:18:45] one of the of its many state mandates

[1:18:48] the obligation of the Planning and

[1:18:49] Zoning commission and the Town Council

[1:18:52] to adopt and apply what are known as the

[1:18:54] smart growth visions

[1:18:56] in their comprehensive plans

[1:18:59] including any updates to the plan

[1:19:02] to understand why these deadlines are

[1:19:05] not merely aspirational goals under

[1:19:07] state law but meaningful deadlines with

[1:19:09] consequence

[1:19:11] the board should consider section 3-304

[1:19:14] of the land use article of the annotated

[1:19:16] code of Maryland

[1:19:18] that section requires inclusion of the

[1:19:21] required plan elements in subtitle one

[1:19:24] I'm not going to review

[1:19:26] all the details of what those are but

[1:19:28] their divisions

[1:19:29] it's not really relevant to my point

[1:19:32] um in accordance with the review

[1:19:34] schedule in section

[1:19:36] 3-303 of the land use article

[1:19:39] that imposes a deadline

[1:19:41] which we just covered the required plan

[1:19:44] elements have been added to over the

[1:19:46] years they started off I believe at 12

[1:19:48] and up to 17 or 18 of them now

[1:19:52] um but notice that under subsection B

[1:19:54] the local jurisdiction can request but

[1:19:57] must establish good cause

[1:20:01] May request a six-month extension of

[1:20:05] that deadline

[1:20:07] and they do that request to the Maryland

[1:20:09] office of planning

[1:20:11] the commission could have made up to two

[1:20:13] extension requests but they did not make

[1:20:15] any requests nor did the department of

[1:20:17] planning Grant such an extension to the

[1:20:19] Chesapeake Beach

[1:20:20] planning a zoning commission

[1:20:22] um

[1:20:31] thank you

[1:20:48] apologies Mr Bliss please continue

[1:20:52] okay thanks

[1:21:00] so since the plant the previous plan had

[1:21:03] been adopted in 2011 January 20th I

[1:21:05] believe the date was

[1:21:07] um the new plan was required by Town law

[1:21:09] on January 20th of 2017.

[1:21:13] therefore at the time the rod and reel

[1:21:15] had filed the five site plans and the

[1:21:17] zoning administrator was taking the

[1:21:19] position that the commission did not

[1:21:20] have time to review its applications

[1:21:22] because it needed to work on finishing

[1:21:24] an update to the comprehensive plan that

[1:21:27] plan was already four years overdue

[1:21:32] the commission didn't really begin

[1:21:34] discussing work on the comprehensive

[1:21:36] plan until 2018 after the deadline

[1:21:40] a year after the date

[1:21:42] when Mr Foltz was appointed chair of the

[1:21:45] to replace Miss riser in February of

[1:21:47] 2018.

[1:21:49] in the February 15 2018 minutes of the

[1:21:52] Town Council for the report to the

[1:21:53] planning zone of the Planning and Zoning

[1:21:55] Commission

[1:21:56] councilman Jaworski reported the

[1:21:59] commission held a meeting on February 14

[1:22:01] 2018.

[1:22:02] and that it discussed the upcoming

[1:22:04] conference a plan update with the hope

[1:22:06] that it would be completed in one year

[1:22:07] so he's saying that in 2018.

[1:22:14] the town does not have the commission's

[1:22:16] meeting minutes for that February 14

[1:22:18] meeting up on its website

[1:22:21] um

[1:22:22] so I will submit the February 5th 2000

[1:22:27] 2018 Town Council minutes relevant to Mr

[1:22:29] Jaworski's comment

[1:22:32] and obviously most of the time

[1:22:35] I'm just submitting the minutes for

[1:22:38] these bodies not all of the attachments

[1:22:40] that are on the files on the website

[1:22:42] because those aren't actually

[1:22:43] technically so I believe we're on

[1:22:46] exhibit eight then

[1:22:47] which would be

[1:23:06] thank you

[1:23:10] just as a note we are coming short on

[1:23:12] time so if there's a natural break in

[1:23:14] your presentation please plan for it now

[1:23:25] so then I'm going to move forward with

[1:23:27] the next exhibit which are the minutes

[1:23:29] of the Planning and Zoning Commission of

[1:23:31] May 9 2018.

[1:23:35] hand her up for a moment

[1:23:37] these exhibits in our binder yes

[1:23:42] what was the date of that Mr Blitz

[1:23:45] May 19 2018.

[1:23:58] so uh

[1:23:59] using that exhibit the Planning and

[1:24:01] Zoning commission according to the

[1:24:02] Planning and Zoning commission itself

[1:24:04] they did not begin the process of

[1:24:05] updating the comprehensive plan until it

[1:24:07] held workshops on September 12th and

[1:24:09] 18th of 2018. I actually attended one of

[1:24:13] those

[1:24:14] um that's in the fifth whereas Clause of

[1:24:16] the uh moratorium resolution that we're

[1:24:17] going to get to

[1:24:19] um

[1:24:20] but this shows that they did begin

[1:24:22] addressing the conference plan as an

[1:24:25] agenda item in May of 2018

[1:24:27] and the zoning administrator then

[1:24:29] provided a presentation on economic

[1:24:31] development and land uh availability and

[1:24:33] walkability

[1:24:35] so that's when they're starting a year

[1:24:38] after the commission was due the the

[1:24:40] comprehensive win was due that's true

[1:24:42] I'm going to judge I don't seem to have

[1:24:44] any any minutes from either 2018 or 19.

[1:24:48] oldest one I got is 2020 in my book I

[1:24:52] don't know if you guys have a different

[1:24:53] book but somehow it's not in there

[1:24:57] I'm sorry mine's in there oh yours in

[1:25:00] there okay yeah it's a good bit in but

[1:25:03] a few pages after exhibit seven if you

[1:25:05] had that okay I'll look again thank you

[1:25:13] next I'm going to submit

[1:25:17] all as one exhibit a series of minutes

[1:25:21] of the Planning and Zoning commission

[1:25:22] that go from June 20th of 2018

[1:25:26] to January 27th of 2021. what was the

[1:25:30] first date uh June 20th 2018.

[1:25:36] foreign

[1:25:45] January 27th of 21 which is

[1:25:49] chosen because that was the period

[1:25:51] between when they started the work on

[1:25:53] the comprehensive plan and when we filed

[1:25:55] our cycling application

[1:26:06] [Music]

[1:26:08] the point

[1:26:10] that I want to demonstrate with those

[1:26:11] minutes is that during this period

[1:26:14] the commercial worked on many different

[1:26:16] administrative reviews including site

[1:26:19] plan reviews while at the same time

[1:26:21] often in the same meeting

[1:26:24] working on the comprehensive plan

[1:26:27] remember that's their legal obligation

[1:26:29] to do but it was one of the reasons why

[1:26:31] Mr Jakubiak was saying there would not

[1:26:33] be any site plan review

[1:26:37] while the commission didn't meet every

[1:26:38] month typically they missed about three

[1:26:40] months a year

[1:26:42] um they also had a few extra work

[1:26:44] sessions so they were keeping a pretty

[1:26:45] regular schedule

[1:26:47] like the point of this exhibit is to

[1:26:49] show that

[1:26:51] by doing both of their tasks from 2018

[1:26:54] to 2020

[1:26:56] that included some major site plan

[1:26:58] reviews including one for the rod and

[1:27:00] reel and one for Beach Elementary those

[1:27:03] are all in the minutes package that I

[1:27:05] just gave you

[1:27:08] so in that minutes package you know in

[1:27:10] May of 2018 the commission gets started

[1:27:13] and puts comprehensive plan as a regular

[1:27:14] agenda item

[1:27:16] in June and July of 2018 the commission

[1:27:18] considered Harbor Vista South Extension

[1:27:21] requests and works on the comprehensive

[1:27:23] plan

[1:27:25] in November of 2018 they did a

[1:27:28] reapproval of the site plan for a

[1:27:29] portion of Richfield station and also

[1:27:31] work on the comprehensive plan

[1:27:33] February 2019 they did a sign review

[1:27:36] issue in Richfield station and work on

[1:27:38] the comprehensive plan so there's I'm

[1:27:41] making the point they're doing both

[1:27:43] their administrative tasks and their

[1:27:44] planning tasks at the same time

[1:27:47] May of 2019 there was a big issue

[1:27:50] associated with a street opening

[1:27:52] at the 18th Street entrance so they

[1:27:54] handled that

[1:27:57] they did the same in June of 2019

[1:27:59] apparently that was a big issue

[1:28:01] in December of 2019 the commission

[1:28:03] worked on a revision of the site plan

[1:28:04] for Richfield station and a review and

[1:28:07] approval of this Subdivision plat in the

[1:28:09] middle subdivision

[1:28:13] in that package you might want to take

[1:28:16] note of the June 2020 meeting because at

[1:28:19] that time the commission was setting

[1:28:20] timeline goals for finishing their work

[1:28:22] on the comprehensive plan

[1:28:24] with a projection that they would

[1:28:26] finally complete the plan in May or June

[1:28:29] of 2021.

[1:28:32] so as I mentioned they handled Beach

[1:28:34] Elementary that was in August 2020 and

[1:28:37] in the same meeting they had they did

[1:28:38] work on the comprehensive plan

[1:28:41] November 2020 again Beach Elementary for

[1:28:44] their final Flight Plan and the

[1:28:45] comprehensive plan in the same meeting

[1:28:48] in December of 2020 the commission

[1:28:49] worked on the revisions of the rod and

[1:28:51] real Redevelopment site plan and

[1:28:53] comprehensive plan in the same meeting

[1:28:55] this takes us up to the time when the

[1:28:57] commission acted on the request for a

[1:28:59] moratorium suggested in Mr jakubiak's

[1:29:02] email of February 5th 2021.

[1:29:07] so you cautioned me about time I don't

[1:29:10] know whether you want to stop now the

[1:29:12] next segment would take

[1:29:16] 15 to 20 minutes so this is a good time

[1:29:21] to

[1:29:23] um

[1:29:23] return this session and reopen at a

[1:29:27] later date

[1:29:29] um

[1:29:30] I did tell Mr pounds you could have a

[1:29:33] few minutes if there's anything you

[1:29:34] would like to address now or if you'd

[1:29:35] like to hold till next time briefly if

[1:29:38] you please very very very briefly like

[1:29:40] if like three three minute briefly I'll

[1:29:42] take the three minutes okay uh basically

[1:29:45] you know it's interesting and obviously

[1:29:47] Mr Blitzen going on for some time now

[1:29:50] and so now he's talking about other

[1:29:51] projects uh you know with regard to this

[1:29:54] I mean like I said before you know this

[1:29:56] is you know and I'm going to be bringing

[1:29:58] this up just a little bit kind of a

[1:30:00] heads up here you know if indeed Mr

[1:30:02] jubiak was making the comments that

[1:30:04] that's not going to be reviewed you go

[1:30:06] before you know as a developer you know

[1:30:07] the applicant here isn't somebody who's

[1:30:10] brand new at this uh I mean he's been a

[1:30:12] round he should have definitely gone to

[1:30:14] the Planning Commission so I've got

[1:30:15] these projects you know started

[1:30:17] reviewing them right away nobody did it

[1:30:20] okay nobody in fact uh Mr Woodbury you

[1:30:22] know even admitted that he never you

[1:30:24] know had you know with regard to these

[1:30:26] projects somehow they want to wait until

[1:30:28] afterwards uh to ask you somehow use the

[1:30:32] law that indeed has been changed there's

[1:30:35] going to be no doubt that the Town

[1:30:37] Council has the right to change the law

[1:30:39] they can make those decisions that's

[1:30:41] part of what the County Council does

[1:30:42] that's part of what the uh uh uh you

[1:30:46] know their obligation isn't the zoning

[1:30:47] code also what's going to be interesting

[1:30:49] and we're going to be bringing this up

[1:30:50] too you know again I'm going to keep my

[1:30:52] three minutes these projects aren't

[1:30:54] something that just came out of the

[1:30:55] woodwork now these Prime projects have

[1:30:57] been going on for the last 10 years or

[1:30:59] so and uh you know many many years and

[1:31:03] you know Council you know went on and on

[1:31:04] about well the planning process was

[1:31:06] delayed everything was delayed well if

[1:31:08] these things have been going on for the

[1:31:09] last years and he was aware of it the

[1:31:12] delay would have helped them to use the

[1:31:13] Old Law you know why are they waiting

[1:31:15] till the comprehensive process starts to

[1:31:17] suddenly file these applications to

[1:31:19] another move forward so you know you

[1:31:21] know since those those were important

[1:31:23] too and also you know uh again I'm gonna

[1:31:26] keep my three minutes it it says that

[1:31:29] the Beach Elementary project was being

[1:31:32] reviewed well you know an elementary

[1:31:34] school is different than a category one

[1:31:38] development which is going to include

[1:31:40] both development for residential as well

[1:31:43] as areas that's going to be you know

[1:31:46] critical area so the idea that you're

[1:31:48] going to compare that to helping out

[1:31:50] kids and making sure their project gets

[1:31:52] built seems to be kind of disingenuous

[1:31:54] but uh we look forward to the new data

[1:31:56] we will continue on thank you I need to

[1:31:58] reply to some of that on the record so

[1:32:00] firstly briefly

[1:32:04] we don't go to a Planning and Zoning

[1:32:06] commission until they schedule a meeting

[1:32:08] that's the way the law works we file

[1:32:10] applications typically the zoning

[1:32:12] administrator gives us comments and we

[1:32:14] work with the zoning administrator to

[1:32:15] get it ready before the Planning and

[1:32:17] Zoning commission Planning and Zoning

[1:32:18] commission sets the schedule and the

[1:32:20] hearing just like you did for this

[1:32:21] hearing we don't have we don't go to any

[1:32:24] meeting and say oh we're here to present

[1:32:26] our case they schedule us

[1:32:28] they never did

[1:32:29] second

[1:32:31] made reference to Beach Elementary it

[1:32:33] literally is a category one site plan

[1:32:36] thank you

[1:32:37] um at this point I'm going to make a

[1:32:40] motion for the board

[1:32:42] um to pause where we're at to resume on

[1:32:46] October 30th

[1:32:48] 7 pm

[1:32:49] do I have a second

[1:32:51] thank you

[1:32:53] so this meeting I guess is in recess

[1:32:57] um and I would advise Council to think

[1:33:00] on ways

[1:33:02] um we are not we are acting as a

[1:33:04] legislative body but obviously no one

[1:33:06] other than Town Council has legal

[1:33:08] experience I'd advise you to take that

[1:33:10] into account uh in terms of how you

[1:33:13] address the board and how you come to

[1:33:14] this meeting

[1:33:15] um

[1:33:16] thank you

[1:33:20] [Music]

[1:33:40] I was worried I'm like oh my God

[1:33:53] you know I'm going home

[1:34:01] you need those separators

[1:34:07] so

September 19th Board of Appeals Hearing

Transcript