all right uh welcome everybody um this
is the call to order for the Chesapeake
Beach Board of Appeals 7 PM October 30
2023 I will'll begin with a roll call um
please answer in the affirmative uh Mr
Richard Burch Mr Paul dhy present miss a
Everett present Mr Stephen sharp present
I am Jody honstar we have a full house
tonight um
so we will start with the approval of
minutes from the past meetings uh I will
do all three of these at once so we are
considering the approval of the minutes
of September 19 2023 the board of
appeals case
20233 for Roden reils Incorporated
Donovan Estates LLC it's number one
number two uh approval of the minutes
for October 16 2023 the board of appeal
special meeting and number three the
approval of minutes for October 16th
2023 the board of appeals close session
um does any member of the board have
issues with the minutes as they receive
them hearing none I will entertain a
motion to approve the
minutes I just want move we have a
second right all in favor I
approved um we will start today with
some procedural matters for this case
for 20233 Roden reil Incorporated uh
Donan Estates
um for this session and the next
meetings we will be limiting our time to
2hour sessions today and going forward
uh we have another plan session for this
same case that will begin November 8th
at
7M um and at this point I believe we
need to pass it by motion so I will make
uh I'll entertain a motion to have
two-hour sessions for this particular
case I will make that motion second you uh pass okay um a little bit
of administrative business
yes motion to continue okay uh in that
case uh I will hear a motion to continue
this meeting on the 8th of
November I will make that motion
second all right all in
favor um now for this case um during our
last session um we need to clarify a bit
about the order of presentation um we'll
be following the standard order
presentation as documented in the board
of appeals rules procedure attachment a
from here on since we are resuming from
the meeting on 919 uh this is as follows
we'll begin with uh one appellant
testimony and evidence including
Witnesses which will be followed by
staff uh Town staff testimony and
evidence um and then after that will be
testimony and evidence by person or
entity whose rights are impacted by the
appeal members of the public if you so
choose to speak uh and we will wrap up
with any summary statements um at which
point we will close the public hearing
and begin
deliberation um one additional note on a
different topic um please do direct all
comments and questions to the board
chair or legal counsel um this is uh for
the petitioner uh and staff and also
applies to the gallery please do not
direct questions at the petitioner or
his
staff um finally uh a note for the
gallery um documents were submitted to
the board in hard copy form during the
previous session these documents are
available on Chesapeake Beach
maryland.gov on the page for the notice
of public hearing for the uh town of
Chesapeake Beach Board of Appeals posted
October 26th at the bottom next to the
Bold text that's uh for applicant
exhibits you'll find a link uh to all
the evidence we have on hand um if any
additional document uh documents or
evidence is to be presented please
submit it to the town in advance of the
public hearing so it can be made
available for the gallery or provide
extra copies which I understand has been
done
today
um okay so any other procedural items
that the board would like to discuss
before we get into
it all right uh hearing none um this is
uh the board of appeals continuation
case 20233 Roden reel Incorporated
Donovan Estates LLC to consider an
application from Roden reel and Donovan
um of 4160 mirors Avenue Chesapeake
Beach Maryland for a decision on
interpretation or alleged error to
article 6 section 2923 29031 A1 and6 of
the Chesapeake Beach zoning ordinance in
c390 c310 and c311 of the Chesapeake
Beach Town Charter applicants request
the Chesapeake Beach zoning board of
appeals to order uh the zoning
administrator and planning and zoning
commission to immediately commence and
prioritize the processing and review of
the relevant site plan submitted by rod
reel uh Donovan and that uh the zoning
administrator and planning and zoning
commission be ordered to apply the
zoning ordinances in effect as of
January 29 2021 when the applications
were submitted and for such other and
further relief as the nature of their
calls requires at this point I will pass
it to Mr Blitz for continuation of his
presentation thank you Mr chair Eric
Blitz on behalf of the rod and reel um
if we could BJ if we could start the I
have a PowerPoint just to
help both the public and the board
perhaps
um follow
along and I just got to make sure I
don't go too fast
um
so briefly to summarize where we are in
our presentation you know we the rod
real filed five category one site plans
on January 29th to the Planning and
Zoning commission site plans are
required of property owners to develop
their property mandatory statutory
obligation of the Planning Commission to
review site plans mandatory statutory
obligation of the zoning administrator
to assist the Planning and Zoning
Commission in the review of those site
plans and the review by the commission
has a 60-day deadline after the filing
of the application for the site plans
that's required by Maryland statute
um and then we presented evidence on
February 5th the zoning administrator
sent an email to the rotten reel agent
giving notice of two reasons why the
site plans would not be reviewed that's
on exhibit
seven uh the first reason was that five
applications imposed a significant
challenge to the commission uh and the
town's planning zoning and project
review functions because it would delay
and derail the commission's work on
ongoing comprehensive Plan update and
the second reason was notice of a
February 4th meeting um or a hearing
scheduled by the commission to recommend
to the Town Council adopt an ordinance
to impose a temporary moratorium on the
processing of site plans including the
rod and reel's five site
plans we also showed why the
comprehensive plan was already four
years late at that time and the
statutory obligation of the Town zoning
code mandating the commission conduct a
review of the comprehensive plan every
six years meant that the commission was
supposed to have been done in
2017 um and we pointed out that Maryland
provides an additional legal requirement
of 10 years for comprehensive plan
review which meant that at this point
the commission hadn't met that
obligation either um and Maryland does
allow two six-month extensions but the
commission did not make those requests
and there's a consequence to the failure
to meet Maryland's deadline and that is
under Maryland statute it's illegal to
make any changes to zoning
classifications so we then submitted the
commission the minutes of the commission
that big packet of all of the um minutes
from 2018 to 2021 where we showed the
zoning administrator during that period
of time I mean the Planning and Zoning
commission during that time was working
on the comprehensive plan at the same
time that we're working on the uh other
site plan reviews
so that's where we are right now for our
next step I think it's important for the
board to understand the Dual duties of a
Planning and Zoning commission so it has
two different types of Duties one is in
the area of planning and policy um and
that's associated with the comprehensive
plan and that's quasi legis
legislative we don't get to challenge
what the plan actually is they they have
it's very was very very hard to
challenge it let's put it that way um
the other are the administrative
duties I don't know whether I'm close
enough to the mic so people can hear me
so I'll try to get a little
closer um which includes recommendations
to the town council site plan reviews um
subdivision and plat reviews under the
subdivision regulations um and under
Maryland law they must do those
concurrently there's no statutory
Authority in the town code or Maryland
law that allows the commission to
prioritize one over the
other at the time of the Roden reel's
application for site plan
review uh were filed in January of 2021
the commission had been working on the
comprehensive plan and the
administrative duties on site plan
requests for almost three years
including some major site plan reviews
um yet a mere s days after the Roden
reel filed its
applications there there was a
moratorium being proposed to prevent
my client's site plan review from going
forward please consider the uh statutory
and important role of comprehensive plan
in the town zoning Authority because
it's relevant to the zon the rod and
reels applications and the commission's
long overdue plan a comprehensive plan
takes undertakes the integration of a
whole set of data for existing velopment
patterns with things like infrastructure
population growth PL rates the plans for
the future and makes recommendations and
each time the comprehensive plan is
updated they're looking at the current
plan those patterns and making
adjustments um but when a comprehensive
plan is passed it becomes the legal
basis upon which the zoning ordinances
implementing the plan are passed by the
town it gives guidance to citizens
Property Owners um and stakeholders
about the potential restrictions of
their property rights and that's one
reason has to be updated
regularly as I mentioned before in ches
Beach it has to be done every six
years and this is a a quote from the
land use article section
3201 that reinforces that point about
comprehensive plans that it gives
guidance to public and private actions
and and that's that guidance is
important because people are then
relying upon that plan being done
expeditiously so the other thing that
was mentioned in the zoning
administrators email saying they weren't
going to um review the site plans was
this idea of a
moratorium
and from that email there is
no doubt that it was targeting the rod
and reel applications uh you'll see
evidence tonight that reinforces that
point there was no evidence that a
moratorium was being publicly discussed
prior to the Roden reels applications so
and you can you will see that there's
information in the minutes that make it
clear that they were directly targeting
the particular
property one small small but important
point is is that Mr jaak's email of
February 5th gives notice of what would
be the correct manner of implementing a
moratorium if the Town Council decided
to implement one which would be through
an
ordinance so now I'm going to
submit which I believe Sharon is exhibit
11
F Mr chair you know it's one thing is I
think Mr uh Blitz did give a brief uh
summary as he what he found to be the
history and background here can I have a
few minutes to say well the places that
he either incorrectly stated as to what
this history and why are we here or
would he did not state as to the reasons
why we here based of the other testimony
uh not right now uh you're welcome to
object but the uh presentation has wide
latitude to give uh their version of
testimony right now you are uh granted
time after he is finished thank
[Music]
you so exhibit
11 is the public
notice of the meeting of the commission
on February
24th as you can see it was published on
February 5th and 19th according to the
schedule at the bottom of
2021 and what I want you to focus on is
a couple things in that
notice they made clear that the
moratorium was going to be
temporary they proposed in this notice a
nine-month
moratorium that the moratorium was to
make distinctions between which
developments would be impacted in this
case in this notice it said those
proposing four or fewer dwelling units
would not be
impacted and it was also clear from this
notice that the moratorium was to allow
the completion of the comprehensive plan
and the implementing
ordinances as we go forward I'm going to
be reinforcing that point a lot because
when we get to the end you'll see why it
matters so the recommendation for the
moratorium came from the
commission and was made to the mayor in
Town
Council and the commission only has the
authority to propose such laws to the Town Council that affect zoning and
the subdivision powers of the town which
are then passed through the Town Council
through
ordinances next I would like to
submit the
agenda for February 24th 2021 meeting of
the Planning and Zoning commission which
would be exhibit
12
and the board should recognize that um
on the subsequent Pages after the
minutes that it includes the formal
resolution proposed at that time at the
time of the agenda of what the
moratorium resolution would be so it's
got in your binder you've got a copy of
this um and so it's got the resolution
and and the reason I'm pointing that out
is the subsequent minutes don't have a
final copy of the resolution so the only
way you're going to know it what the
final version of the resolution by the
commission was is to look at what they
introduced and then the minutes of what
they say they changed just for just for
my clarification are these documents
being offered into evidence or they just
being presented okay then I'm going to
be objecting to both of those pleas
introduce
over okay
so so you can see on this exhibit that
the agenda attached um has that full
resolution and there are a few key
points that I want to bring your
attention to with respect to this
exhibit as introduced the most motion
was to ask the Town Council for an
ordinance to impose a moratorium that
would end at the earlier of either the
town council's adoption of the new
comprehensive plan and the implementing
ordinances most notably amendments to
the zoning ordinance and zoning map or
the expiration of 12 months from the
date the moratorium becomes effective so
was an alternate one could happen faster
if they completed the thing but at a at
a maximum it was to last 12 12
months the motion itself indicates that
the moratorium would be
temporary and
proposed that it would have a defined
dur duration to be limited to that 12
months now there's really no explanation
at the hearing or in the minutes of why
their legal notice said the proposal was
for nine months but when it came to do
it was 12 months I don't think it really
matters but I'm just saying that there's
no real explanation for why when they
proposed it at the the commission level
it was different than the legal
notice
um so I'm directing your attention to
the fourth and fifth whereas Clauses in
this because it recites the commission's
purposes and the reasons for passing
their resolution which is remember is a
recommendation to the Town
Council the commission is identifying
the rod and reel's applications and
using the two rationals provided by the
zoning administrator which is in your
exhibit 7 which was the February 5th
2021
email it makes it clear that the purp
and I can appreciate you know and and as
Mr BS knows whereas Clauses are not part
of the resolution they are introductory
Clauses they are not meant to be part of
the testimony they are not meant to be
part of the resolution and so they
really are nothing but introductory and
they're really irrelevant but I can
appreciate apprciate the fact that of
what's you know trying to be asserted
here but uh you know I can appreciate
what Mr Blitz is trying to do here but
you know at the same time you know
whereare Clauses simply are not part of
the document
itself is that an objection yes okay um
overruled it's entirely fine to be
admitted into evidence it has been
admitted into evidence please
continue and it's important for me to
just let you all know
that the resolution itself at the end
adopts the wew Clauses as being
incorporated as part of the
resolution
um so it made it clear that the purpose
of the moratorium was to Halt the rod
and re applications so that they could
complete their work on the comprehens of
plan in implementing
ordinances the draft resolution ution
being proposed recognized another
important legal proposition which I'm
going to explain
now in the fourth paragraph of the the
whereas
Clause it
reads whereas adoption of zoning
ordinances plan development ordinances
and regulation subdivision ordinances
and regulations and other land use organ
ordinances and
regulations excuse me shall be
consistent with the comprehensive plan
and that's basically quoting from a
statutory provision of Maryland
law which is section
3-3 I'm pointing that out because that's
an accurate representation of what is
referred to as the consistency
requirement and that's that the town's
or zoning ordinances must be consistent
with the comprehensive
plan it makes all those zoning
ordinances dependent upon having a valid
and some would say internally consistent
non-ambiguous and understandable
comprehensive Plan before imposing the
zoning ordinance limitations on property
rights um there used to be a legal
question about whether a comprehensive
plan was more of a planning document or
more like a law required but kind of
itself not separately
enforceable and and it comes up in your
special exception cases um that the
board can hear in 2008 the Maryland
court of appeals now called the Maryland
Supreme Court found that a compr ensive
plan was not
binding in a special exception case in
the context of a somewhat it's a
somewhat famous car case in Maryland
called terp and run um for the purpose
of Mr susman I'm sure he probably knows
it but it's 403 Maryland
574 um the legislative reaction to that
case was quick and immediate um what
they did was change the law so that the
comprehensive plan was a uh had the
legal status of a
law um the reason that's important in
this case is
twofold because zoning ordinances must
be consistent with the comprehensive
plan as they are dependent on the plan
for validity the only way any Town
zoning laws that are applicable to a
property in town including the rod and
reels five
properties um for site plan review is
the amendments to the comprehensive plan
that were be cons were being considered
by the Commission in
2021 to be adopted in or to be
implemented in what are known as
implementing
ordinances
um and so it's important to recognize
that they had to do both they recognize
it in their recommendation to the Town
Council um and that they had to do it
within 12
months the other reason that it's
important in this case that you
recognize that a comprehensive plan has
the status of a
law is that it must be prepared and
adopted according to the town Charter
the Maryland zoning law and the
procedural requirements of the zoning
code which would include the requirement
that the update be adopted at least
every six years but also that any change
to the legal requirement ments for
processing site plans under the zoning
ordinance has to be adopted by
substantive
legislation which requires passage of an
ordinance and not merely a
resolution the proposed resolution uh
for the moratorium attached to the
minutes also makes it clear that it was
not all site plan reviews that were
being prevented by the
moratorium um it was only some of them
in the motion itself in the agenda it
accepts out certain properties and
develop Vel mment activities that are of
record and they they cite the
grandfathering Clauses of your town code
in sections 2456 and
2457 as well as minor reviews for the
applicabil excluding minor reviews from
the applicability of the
moratorium this is important because it
introduces a legal distinction in the
availability of site plans for property
owners that is not made by the existing
zoning
ordinance which requires review of all
submitted applications remember we went
over the command language of the site
plan in your zoning code to make that
cont that distinction in the context of
zoning the substantive law is being
changed and therefore it is a law of
general applicability and
effect which we're going to demonstrate
tonight that requires the passage of an
ordinance
so now I'm going to submit exhibit
13 which
is February 12th
2021 report to the mayor and Town
Council from Larry Brown who was the
chairman of the Planning and Zoning
Commission
and just procedurally I'll be objecting
to that also
please apologize Mr pounds can you say
that one more time be objecting to that
document also thank you
over
so on page two of that report in the
second to last paragraph uh what I'm
pointing out is that the commission is
going to consider the moratorium at its
upcoming F February meeting so this is a
report prior to the resolution and the
meeting of the Planning and Zoning
commission to the Town Council the
Chairman's reporting on this page two
the commission is going to consider a
moratorium at its upcoming February
meeting that it would be temporary
says it right there um to end when the
work on the comprehensive plan was
finished or the expiration of 12 months
whichever occurs
first and it also reinforces the
point that they're directing this
towards the five site plans that had
been filed by the Roden
reel now as part of the testimony on
that subject before the commission I
submitted a detailed letter to the
Planning and Zoning commission was made
a part of their
record on behalf of the rod and reel
which I'll offer is exhibit 14 that's my
letter dated February 23rd
2021
which commission one day before there
February
24th hearing on the moratorium
resolution
so I'm not going to go over the details
of it's such a long letter
um I'm just going to get in some of the
key points I recognize it's a relatively
long letter while I encourage you to the
board to read all over read this and all
other evidence carefully when
considering the case during your
deliberations I think I think it's
better in this context just for me to
point out what I think is important
relative to the narrative we're going
through right now so in that letter I
put forth my client's arguments to the
commission against the
moratorium I described how it was
specifically targeting the Roden re 5
site plans which had already been filed
and at that time were required to be
reviewed by that commission by March
30th of 2021 that's in the first
paragraph and the third paragraph on
page
two how it was unjust to my client to
have because all five projects had not
only been previously permitted in the
past or had various stages of site plan
approvals already these 2021 proposals
were substantially the same including
Harbor Vista South which had been
approved by the commission as late as
2016 that's in the last paragraph of
Page Three and that the comprehensive
plans of the town for its entire history
with zoning since 1972 called for
exactly these kind of developments on
these properties those that's covered in
Pages four through
eight I described that the plan existing
at the time in
2021 and which the commission was
seeking to amend through its update had
literally recognized the pendency of the
anticipated development of these five
site plans they were called for in the
prior comprehensive plan they're
referred to as part of and part of their
calculations and finally I listed all
the site work and mitigation that had
already been done on these projects
under the previous permits and the
detrimental Reliance of the rod and reel
on all the past comprehensive
plans so at the hearing before the
commission they had notice of these
problems as did the Town Council who was
copied on that
letter and they held their meeting on
February 24th and I'll submit the
minutes to reflect what
occurred in that meeting so that's
exhibit 15 which is the minutes of the
February 20 for 2021 minutes of the
planning
Z continue objection Mr
chair oh over couple points um that I'd
like to make about these
minutes
so this is from the the relevant
paragraph um chairman Brown introduced
the motion for the moratorium saying
they were recommending that the mayor
and Town Council adopt a temporary
moratorium so that the temporary part
was
reinforced now during the debate this is
the part of the minutes that reflect the
debate and the Motions on that
resolution there was a motion by
commissioner Evans to amend the
resolution to reflect a 9-month
moratorium instead of a 12month ex
remember it's it's kind of the earlier
of finishing the comprehensive plan and
the zoning ordinances and his outer
limit duration he was trying to move the
outer limit duration to nine months that
motion failed though um and that's
relevant because the duration of the
proposed moratorium was a matter of
debate by the commission and as you will
see by the Town
Council
so it establishes that the moratorium as
proposed to the Planning and Zoning
commission was for an established
duration it was not of an indefinite
duration now that resolution was
eventually adopted as proposed by the
commission uh it had the um it had a
couple of adjustments um to whereas
Clauses um that you can find in the
minutes they're not relevant to our case
but I just wanted to let you know that
there was those kind of changes made
um there's there's another change that's
made through the proposal which were a
little bit at variance with what was
originally published as notice and
described by chairman Brown in his
report and that's the scope of which
properties would be
affected it was amended during the
debate on the resolution uh Commission
green gold mooved to exempt any project
currently in the development approval
system which has received development
plan or plat approval for the commission
from the
commission um you know this was made as
a from a request of Mike repy for
Richfield station um and that amendment
was
approved the reason I point that out is
it demonstrates the differential
treatment of site plan
review and that's a substan of change to
the effect of the town's zoning laws
which would require an ordinance to
pass so at the end of the hearing the proposed resolution of the Planning
and Zoning commission passed on a vote
of 4 to
one I'd like to offer
three documents at once and then I'll go
over their import or actually Four it's
exhibits 16 through
19 and let me read them off what they
are for the record um 16 would be the
minutes of the Town Council
informational work session of March 8
2021 17 would be a um press release by
issued by the town U by Holly wall the
Town
Administrator
um
the 18 would be a report um from Holly
wall to the town mayor and Town Council
on the moratorium dated March 11th
2021 and 19 would be the town's meeting
agenda for March 18th 2021 so was 17 17
was a press release issued by the
town
on the
moratorium dated March 11
2021 so that would be 16 17 18 and
19 and we do object to all of them
over
18 okay I I uh hand it to just handed
over to us uh 18 is the um memorandum
from Holly wall to the mayor and Town
Council about the moratorium that's
dated March 11th
2021 and 19 is the uh town meeting
agenda for March 18
2021 thank
you
okay so exhibit 16 um like to point out
again
reinforcing they said it would be a
temporary 12month
moratorium applying only to category one
projects category one site
plans what's interesting about this is the first instance where there's
a formal distinction between category
one and category two site plans um as it
was introduced because the commission's
motion and resolution to the Town
Council didn't use the that distinction
so this is a resolution being offered to
the Town Council um a slight variance to
what the commission offered but it's
doing essentially the same thing it's
making the distinction based upon site
plan uh
categories
um exhibit 17 was the press release
again I'm reinforcing that at that time
it was made clear there would be a
temporary pause category one and two I
mean category one um site plans with a
one-year
moratorium exhibit 18
uh the report to the town by the Town
Administrator to the um Town Council
mayor and Town Council was virtually
identical to the press release it was
done on the same day um it too
reinforces the Mortor was to be
temporary and of one-ear duration but
includes the recommendation of the Town
Administrator to pass the moratorium as
a resolution not as an ordinance as
recommended by the Planning and Zoning
commission and then we've got the agenda
the applicable part part of the agenda
of the Town Council of March 18th
20121 which I offer to show you that the
agenda called for the Town Council to
consider and vote vote on a moratorium
as a resolution it would be resolution r
21-3 as a resolution on category one
site
development that's on page two of those
that
agenda now we get to the issue of why
the moratorium was void from the outset
and therefore the first reason that the
subsequent failure of the zoning
administrator and the Planning and
Zoning commission to follow the required
process and do the site planning reviews
was an error under the zoning
ordinance um so what I need to
demonstrate to you is the important
legal reasons why passing a moratorium
through a resolution instead of an
ordinance of the Town Council is not
valid um and you could you should
consider what is procedurally different
in the adoption of the Town Council
resolution and an ordinance because it's
those procedural safe it's those
procedural safeguards that are required
for ordinances which were being sidest
stepped remember that I established
under the zoning ordinance section 29025
a5c the requirement that slight plan
must be reviewed within 60 days of the
filing of the application and that meant
the deadline for the commission's
hearing on those site plans absent of
moratorium um or absent a stipulation by
the rod and reel which does happen
sometimes applicants stipulate to a
longer period if they wish but that
deadline was March 30th of
2021 under the town's Charter a
resolution typically used to pass
pronouncement of the council rather than
laws can be effective immediately but an
ordinance which must be used to pass
substantive
legislation what is called a under the
law an action of general and continuing
effect is typically introduced at a town
at one town council meeting a public
hearing is scheduled for the next
month's meeting and a vote is taken at
that next
meeting using a typical practice for
passing a law that applies to everyone
and stays in effect until it
sunsets as this 12-month period would
have done the Town Council would not
have acted in time for that deadline of
the Planning and Zoning
commission so when the agenda was
published and I learned that the
moratorium on the agenda was being
proposed as a resolution and not the
introduction of an
ordinance I was shocked I I quickly sent
a mayor to the mayor and Town Council
complaining about the impropriety of
using a resolution instead of an
ordinance which was dated and sent on
March 16 2021 via email two days before
the town council meeting and I offer
that as exhibit
[Music]
20
again for the record objection
over as you can see from the letter um I
informed the mayor and Town Council
of at least my opinion that the of the
impropriety of passing a zoning more
through a simple
resolution and not abiding by the
procedural requirements for an ordinance
as required by the town
Charter and I point that out because
they had notice of the potential
impropriety time to correct it but but
did not do
so because the zoning ordinance imposes
a mandate on the zoning administrator
and planning and zoning commission to
process site plans through a specific
ordinance
section a moratorium has the effect of
changing the impact of the legal
requirement that has the force of law
it's not merely an internal process such
as appointing a member to the Planning
and Zoning commission or to to your
board it's not merely a sense of the
Town Council like you would see in a
resolution supporting a kids's choir or
a fundraising
drive it impacts the effectiveness of a
town law equally important in this case
is it changes the applicability of that
zoning law it's making a distinction
between who who the site plan
requirement applies
to in general a resolution is not used
to pass law applying to everyone but
merely a method by which the legislature
expresses an opinion and while a
resolution can direct internal processes
of a town Administration or address
temporary suspensions of
processes a mandated zoning process is
not an internal administrative process
is something that the property owners
have a legal entitlement to under the
chess Beach zoning ordinance so long as
the te town is regulating private
property rights you'll remember how he
started this whole presentation on
understanding that zoning comes along
and puts a burden on fundamental
property
rights so next I would like to offer
exhibit 21 which is the resolution
itself of the Town Council resolution R
21-3 is exhibit
21 so that's a copy of the resolution
that was passed by the Town Council on
March 18th
2021 uh let me point out to those except
for Mr Burch uh that have your exhibits
I moved this resolution up to
exhibits so it's actually two exhibits
further in your package I just moved it
up in
time um but you've got it
um so what I'd like to hand out
now
because you don't have it in your um
white book and I'm I'm providing it now
are sections
c-39 310 and 311 of the Town
Charter they are in your um white book
Mr
ibody
it's a bliss this is exhibit 22 it's not
an exhibit it's it's copies of law so it
goes in your white binder for
this you should
have so it's really just copies
of because I'm going to go I'm going to
be reviewing the
effect of those T three town Charter
sections with respect to our argument
tonight I'm going to start with section
309 of the
[Music]
charter and it's a it's our argument
that if the Town Council wanted to pass
such a zoning moratorium it must have
passed it by meeting the same
requirements of an ordinance under c-309
of the Town
Charter to do
otherwise bypasses the procedural
protections and requirements of
ordinances and that
includes let me go to slide
17 okay so that's section
c-309
um that includes the requirement that no
ordinance be passed at the same meeting
at which it's introduced of course the
resolution doesn't have that requirement
and they did
that that' be voted upon by not less
than six nor more than 60 days after
introduction that wasn't followed in
this case and it become effective 20
days after passage or seven days after
the last legally required publication
notice unless it meets the standards for
emergency ordinance which requires a
separate affirmative vote of five of the
council
members which also did not occur in this
context
as importantly a simple resolution is
not subject to The veto power of the
mayor that's set forth in section c-310
of the charter or the rights of the
citizens to petition that act to
referendum that's in
c311 those don't apply to resolutions so
by doing a resolution they were taking
away those
two Charter
powers
so to pass
a to bypass uh the charter safeguards by
passing a simple
resolution um on a matter that I would
submit as as Grave and substantial that
it impacts all the property owners in
town is inappropriate and consist and
inconsistent with the town's Charter and
as you'll see Maryland
law point out what's kind of obvious but it was the moratorium was introduced
as a resolution and it was passed as one
that is it was not
adopted according to the terms or the
requirements in C309 for an ordinance
the reason that's technically important
is
while sometime sometimes a Town Council
can pass a resolution that meets all the
requirements procedurally of an
ordinance and have the legislative
effect that happens I believe with
Charter amendments might happen with
annexations but there's a couple
different spots in Maryland law for
whatever reason the the general assembly
used the term resolution instead of
ordinance they still have to follow the
requirements of an ordinance in their
Town
Charter um so there was no delay under
the charter
requirement um that they be passed upon
less than six nor more than 60 days
after an introduction and that's
designed to give the public and the
their representatives time to see what
the exact legislative proposal is uh but
also time to prepare and provide comment
resolution you don't do that you just
pass it introduce it that night and pass
it the moratorium by its terms went into
effect immediately there thereby
repealing the 60-day review requirement
that was about to expire in in another
12
days uh and you know instead of the
20-day passage rule under the
Charter um it became effective
immediately in addition legislation has
distinguished from a mere opinion of the
council by resolution must be presented
to the mayor or for
approval um and the mayor has the power
under
c310 shown there to
veto
an
ordinance but he doesn't have that power
for a resolution it was merely a sense
of the
council
and he wouldn't have that if he was it
was the Town Council merely directing an
internal
process there's a timeline associated
with that veto power as you can see in
section
c310 it's defining what becomes
law to become a law after presentation
of the ordinance to the
mayor
it's the third sentence of
c310 which reads any ordinance approved
by the mayor shall be law any ordinance
disapproved by the mayor shall be
returned to the clerk in a message
stating the reasons for his
disapproval upon receipt of any
ordinance disapproved by the mayor the
clerk shall promptly deliver the
ordinance an accompanying message
stating the reasons for the mayor's
disapproval to the members of the
council any disapproved ordinance shall
not become law unless subsequently
passed by by a favorable vote of 56 of
the whole Council within 35 calendar
days from the time of the return of the
ordinance and if the mayor fails to
return any ordinance within six days of
its delivery as afer said it shall be
deemed to be approved by him by the
mayor and shall be in the become law in
the same manner as an ordinance signed
by him so this is just like bills in
Congress or in Maryland's General
Assembly the legislature can pass a bill
but the chief executive must sign or
veto or if they ignore it then it
becomes law automatically or it's called
a pocket veto sometimes but the event
the VTO can then be overturned by a
super majority Town Charter provides
roughly the same
process what's important in this section
is that this is what converts a
legislative act into a
law so while a mayor can sign that
resolution as a certification of what
occurred and may even support the
resolution um the mayor is not given the
power to to veto that simple
resolution and that's why a simple
resolution doesn't become
law I mentioned a few minutes ago how
this area of law in zoning has a
specific difference that makes it all
the more important that the town follow
its own Charter obligations when passing
a zoning
moratorium a resolution that is not
passed in accordance with the
requirements of an ordinance is not
subject to
referendum as you can see in section
3-11 the citizens have the right to
petition laws passed either approved by
the mayor or if veto passed over his V
his or her veto to then petition the law
pass through an ordinance to referendum
so it's following that same process of
the timeline for the mayor's veto and
it's defining it as law when you are
allowed to petition its
referendum that's
in you can read it yourself the people
Reserve to themselves the power known as
the referendum by
petition then in section sub subsection
B there's a deadline for the petition
that is consistent with the timing of
when a law is passed by an ordinance to typically goes into effect that rule
of 20 days after signature signature of
the mayor were over the mayor's veto or
seven days after the last required
publication that's because only
ordinances not simple resolutions can be
taken to
referendum this is important in zoning
law because there is a special
protection of the referendum rights in
Maryland's Municipal zoning law which is
binding upon the
town I refer you to section 5- 213 of
the local government article of the
initated code of Maryland that law reads
A municipality May adopt zoning
regulations subject to any right of
referendum of the voters at a regular or
special election as may be provided in
the town
Charter so the town provides a
referendum in their Charter they passed
a resolution to change the effect and
applicability of a law the the section
of the zoning code that requires site
plan reviews and they did so by avoiding
the power of the citizens to
take that law to
referendum a right that is required and
protected by Maryland
law so zoning powers in Maryland are
Express Powers which means they must
flow from an Express Authority in
Maryland statutory law and section 5213
in the subtitle on Express Powers is
Grants those powers to Maryland
municipalities
furthermore Maryland law is clear that
the use of those Express Powers must be
but done by
ordinance Maryland section
5-23 Grant of Express
powers in subsection a in addition to
but not in substitution of the powers
that have already been or have been or
may be granted to it the legislative
body of a municipality May exercise the
express provi Powers provided in this
subtitle by adopting
ordinances furthermore it provides in
sub subsection B that such an ordinance
adopted by the legislative body of a
municipality may not conflict with state
law so as I pointed
out Maryland law state law protects the
right of referendum they changed the
applicability of a zoning
power that required legislation they did
so without an ordinance and so they Sid
stepped and avoided the right of the
Roden reio or any other citizen to take
that act of the Town Council to
referendum
so note that the delegation of zoning
power is is directly tied to the passage
of ordinances not
resolutions um and because it's an
delegated Express power and not what's
called an inherent power it must be done
in strict accordance with the statutes
that delegates that
power so in this case it's clear from
this section and the local government
article
5213 that to protect the right of ref
referendum in the zoning amends
amendments that an ordinance must have
been used to change an Express
legislation that changes the effect and
applicability of a zoning
law it's true that the Town Council
could have passed a moratorium as an
emergency
ordinance uh but they did
not um an emergency ordinance would have
changed that part of the
timeline um for passing legislation but
it would still require the mayor's
Ascent or veto and importantly it still
allows for a
referendum a resolution does
not also for an emergency ordinance to
pass you need a separate vote of a super
majority five five members of the whole
Council to pass
it
to further see the Practical differences
between subjects that need to be passed
through an ordinance um versus those
that can be done by a
resolution you can note on the same
night on the exhibit for March 18th 2021
minutes that's
exhibit 22 but we haven't gotten to
exhibit
22 oh no it's the agenda not the minutes
I'm sorry that would be exhibit
19 on that same night the Town Council
adopted a town walkability plan by
resolution Town what to town walkability
plan that plan is a guidance document uh
without any legal effect on the citizens
um or Property Owners um on its own it
doesn't create any new mandates or
obligations or amend the effect of any
existing town code sections doesn't act
as a law that limits or defines the
rights of citizens but instead acts as a
policy guide this is the kind of
document that can be passed by a
resolution the moratorium resolution
attempted to alter the legal rights of
citizens including those of the rod and
reel but and did
so uh Mr Blitz uh why don't we pause and
take five minutes for everybody um we
will resume uh after a five minute break
okay
thanks
for
it take me 20
minutes
that
all the material was on the website
includes exhibit numbers I don't think
so I
think
yeah do have numbers on have numbers or
is it okay so M I'll just do
it I'll hold
on
[Laughter]
do you need this back okay she
photocopied that for me okay yeah I went
through and did the whole like
Wilson Oh I got the numbers and stuff
and then I'm like no you can't change
the
order I've already labeled them on these
school supplies finally came in handy I
ran out of post
too
no because last time it was
overwheling you where
you now I
haveed
[Music]
yeah you're going to do a good
job
he eight hours was the estimate last
time it's G be tonight tonight we're
doing tonight we're doing two eight
hours
total we're C it at 9: pick up
again thanks
hello oh I see what you're
saying
oh right
[Music]
okay
police officer
here all make your way to your seats uh
we can
resume
please continue when you're ready Mr
blz so we went over the fact that we
have a zoning law it gets changed the
effect of it as well as the general
applicability who it applies to makes
distinctions between different
parties so the important legal
principles have been addressed by the
Maryland courts as well um so it's not
just my
interpretation in your legal package I
provided you a copy of two cases that
demonstrate this point the first is
Inlet Associates versus ass house
Condominium
Association and in that case the issue
is whether as part of a developer
agreement the quick claim and
abandonment of a public Street to the
developer could be accomplished by by a
simple resolution of the Town Council in
that case of Ocean
City Maryland's highest court found that
it could not and an ordinance was
required and the rationale and reasoning
of the court is important to this
case Court found what that while noting
that an ordinance is distinctly a
legislative
act the court went through prior case
law in which the standard is that if a
municipal action is one of General
application prescribing a new plan or
policy is considered legislative and
therefore must be accomplished by an
ordinance the court recognized the
special procedural requirements like
those I described of the chess Beach
Charter as being unique to
ordinances and most importantly as I
explained in the distinction between the
express ordinance making powers given to
municipalities such as zoning an Express
power rather than implied the court
found that those those Express Powers
must be enacted by
ordinance just like in our case where
there's a specific zoning power that is
an Express power one that protects the
right of referendum in the town
Charter the closing of a street had a
specific Pro provision in state
Municipal law that also was an Express
power so that required that that
disposition of the property be
accomplished by an
ordinance um
it should also be noted that as was
mentioned in the inlet Associates case
the Reliance of the city council on the
attorney's opinion or even a long
pattern of Conduct in enacting Street
closings through resolutions doesn't
make it any less improper or legal or
illegal for them to use a resolution
instead of an ordinance apparently chess
uh Ocean City had been closing streets
through resolutions for a long time and
that was part of their argument that
everybody was used to it doing it that
way
some might argue that a moratorium on
site plans is a temporary action and
therefore not legislative because it
merely suspends a process rather than
amend a law that might be true if for
example it's sought to change the
process of a zoning
administrators that's in this town is
posted on the town's website which is
strictly an administrative set of rules
it sets up a six-week process of review
for site plans before it goes to the
required hearing but it would not be
true if it removed the obligation of the
zoning administrative and planning
zoning commission to review site plans
because there is already a law that
makes that process mandatory including
the 60-day
deadline the specifics of the process
listed on the website is entirely
administrative um but the entitlement to
a critical area site plan within 60 days
is a mandatory
process
so by attempting to use a resolution to
pass a moratorium that changes the
obligation of the review of the Planning
and Zoning commission to review site
plans even on a temporary basis as long
as it's longer than 60 days it
effectively renders moot the requirement
that a zone that a zoning ordinance
which property owners are entitled to
rely upon
be in
effect that 60-day notice is clearly
designed to favor The Prompt
resolution of sight plan applications
that's why it's in the law the Town
Council made a legislative judgment that
it had to be done within 60
days if it makes a new legislative
judgment to change the effect of that
our argument is it cannot be done
through a resolution had to be done
through an
ordinance because it changed the effect
of certain developments it grandfathered
certain Lots certain properties that
Exempted it out from the effect of the
moratorium that's a policy judgment
about the effectiveness of which site
plans can go
forward and that's legislative in
nature rod Applications had been
submitted prior to the proposed
moratorium but they were suspended While
others who had also previously filed
were not to be impacted by the effect of
the
moratorium so two with the respect to
the distinction between the treatment of
category one and category site category
two site plans that's making a legal
distinction that's now at variance with
the current zoning ordinance by
passing a
resolution to make that distinction in a
moratorium is to make that policy
decision and therefore it's
legislative in my letter to the mayor
and Town Council warning them of the
impropriety of using a resolution um
instead of an ordinance I cited a case
that had just been published um by the
Maryland Supreme Court at that time I
believe it was still called the Maryland
court of
appeals and that's the kobari and homes
of Maryland versus mayor and City
Council of H Grace which is also in your
package there the Maryland Supreme Court
found that an agreement with a developer
that suspended a recruitment fee must be
passed by an ordinance and not a mere
resolution because like the zoning power
in this case the right of municipalities
to impose fees in Maryland is also an
Express power not an
implied so under the inlet case you have
to pass those use those Express power
hours through the passage of an
ordinance not a
resolution you may know that the fees
associated with cases like this um
appeal are set by the mayor and Town
Council and accomplished by passing an
ordinance not a resolution those all
those fees that however however much we
had to pay to have this hearing that's
set by
ordinance
so in the havarian
case I was going to read a long quote
for it but I think it's overdoing that
it it's just reinforcing the same
ideas they're making the point that the
zoning power being an Express power is
subject to the requirement for
ordinances then on page 1187
they say in addition to the legislative
Grant of General ordinance making Powers
the general assembly has granted Express
ordinance making authority to Municipal
leg legislative bodies for specific
types of legislative enactments outlined
in Title Five subtitle two of the local
government article and they cite section 5203 which
we
reviewed in addition to but not in
substitution of the powers that have
been or may be granted to it the
legislative body of municipality May
exercise the Express Powers provided in
the subtitle by adopting ordinances and
that's their
[Music]
emphasis so remember that the resolution
goes into effec in immediately an
ordinance takes time and in the case of
ches beach unless passed as an emergency
ordinance which would then identify a
shorter period the time is 20 days after
the signature of the mayor or passage
over the mayor's veto or the 7-Day rule
after the last required publication
whichever is later so it's a time period
of later in this case the resolution
establishing the moratorium by its terms
wining to affect immediately but that's
at odds with the 10day requirement after
hearing that is found in Maryland
law I'm going to refer you to section
4-23 of the land use
article this section of Maryland law
directs the procedure for passing a
zoning regulation or a boundary change
it requires a hearing and allow public
comment requires publication um so when
the Town Council attempted to pass a
moratorium which changed the legal
effect of section 29023 of the zoning
ordinance the council did the first two
requirements of subsection B that you
can read there
um though perhaps without a special
public hearing they might have not
completely complied but I want to focus
your attention on subsection
B3 that's the 10day requirement that I'm
referring
to so this section requires after that
hearing that the zoning regulations may
not become effective until 10 days after
the hearing in or
hearings that this town's council's
resolution does not do because it went
into effect
immediately when passing an ordinance in
the normal course that wouldn't really
matter because ordinance is going to
effect way after the 10day rule so it'd
be 20 days well after so it just it
really doesn't come up that often when
you're passing an ordinance but it does
come up and VI get violated when you
pass it by a
resolution
so I I'll just finish this topic by
quoting from my March 16 2021 letter to
the Town Council that made it clear that
the May to the mayor and Town Council
that the that they were notified of the
procedural infirmity and I said quote
the proposed moratorium is not merely a
sucession of discretionary
administrative proceedings but a
limitation on legal rights and property
owners in cheser Beach found within
Maryland law and the chese beach zoning
code Al although one of the purported
justifications for the proposed
moratorium is to facilitate Planning and
Zoning commission's attempt to propose
planning changes via the comprehensive
plan process that does not save the
moratorium from the requirement that it
be enacted through an ordinance because
the planning power is also an Express
power of municipalities in Maryland
again so that's making the distinction
between the implementing ordinance and
the a comprehensive plan also an Express
power
also and so this was affecting the site
plan review for something that also has
to be passed by an
ordinance so that's why the the
moratorium was void and without effect
and therefore an erroneous justification
for the planning administrator and the
zoning administrator I'm sorry and
planning and zoning commission from
undertaking the administrative Act of
site plan
review
so this is the
resolution and I want to turn to our
second count in the Roden reel
application for
appeal which alleges that the board that
if the board were to disagree with our
contention that the moratorium was void
from the outset due to this procedural
infirmity of passing it through a
resolution and not an
ordinance that even after the moratorium
had expired ired by its own terms the
Roden reel renewed its demand that site
plan reviews be reviewed and the zoning
administrative Planning and Zoning
commission continued to ref refuse to
review site plans as required by the
zoning
ordinance so you've heard me describe
lots of evidence which reflected that
the proposed moratorium was to end by
its terms at earlier of 12 months or the
completion of both the comprehensive
plan and the implementing
ordinances there are all those
references to the moratorium being
temporary in the commission's resolution
it's hearing the attempt to amend the
commission's resolution down uh uh the
moratorium down to 9 months which failed
the press release the reports the
agendas and the minutes they all make
reference to this limitation of
period going to submit exhibit
22 which is the minutes of the Town
council meeting of March 18th
2021
right objection
overall so this is where the Town
Council is commiss considering the
commission's
recommendation as part of the minutes
package delivered to the Town Council
chairman Brown of the um Planning
Commission made a report to the Town
Council dated March 10th and that's
going to be exhibit
23 which is dated March 10th 2021 from
chairman
Brown that's exhibit 23
yes
so this is CH uh the important the
section of um chairman Brown's report
that I want to
emphasize and I'll quote the pertinent
portion of the
paragraph in that report which reads in
the second paragraph on page
one at this February hearing the
commission heard from 15 members of the
public on a motion recommending a
temporary moratorium be placed on the
commission's acceptance and cons
consideration of new applications of new
applications for development projects
until the comprehensive Plan update at
all is completed or 12 months whichever
occurs first the motion for a temporary
moratorium passed and was forwarded to
the Town Council for consideration so
returning to exhibit
22 uh the Town Council
minutes when the resolution was
introduced it was introduced with that
outer limit at 12 months but there was a
debate about that during the Town
Council and this is the section of those
minutes on page
three where there was an amendment that
was proposed by councilman
thinkink that quote to amend the
moratorium period to six months and that
was seconded by councilman fav um the
vote to amend the moratorium period to
months was tied with three votes in
favor and three against and the mayor
bro then broke the tie by vote voting in
opposition so therefore that motion
failed next the minutes reflect that the
motion of councilman Morris moved to say
uh well quote amend the 12-month
moratorium period to nine months that
was seconded by councilman Fab and this
time the vote was forward to2 in favor
uh so the moratoriums maximum duration
was reduced to nine months
so what's clear from these minutes is
that Town Council passed the resolution
not an ordinance at the S meeting at
which it was introduced that there was a
debate about the maximum duration of the
moratorium which was settled to be nine
months these minutes were approved by
the town council meeting at their
subsequent meeting on April 15th with no
questions about the characterization of
the moratorium
vote and I'll submit the public hearing
minutes as well as Public Town Council
minutes as exhibit
24 so that's the Town Council hearing
minutes and town council meeting minutes
of April 15
2021 April
15
so now I'd like to call uh Mr Donovan to
provide some
testimony I believe he's already been
sworn but I don't know whether you want
to rewear him or what you like to
swear Mr Donovan were you present when
the oath was administered last time yes
sir your right hand yes sir
you please identify yourself for the
record and where you live uh Wesley
Donovan 2335 Golf Club Drive and what's
your role with the Roden reel uh
president um and are you familiar with
the fact that F site plan applications
were filed on behalf of the Roden reel
in January 29th of 2021 yes you know who
the zoning administrator for ches be
Beach was in January of 2021 uh Mr Chris
tubc and did you know that at that time
yes and were you shown a copy or given a
copy of the email from of February 5th
2021 from the zoning administrator
that's exhibit seven if you need to see
it no no I I did okay so you were so
other than the February 5th letter after
January 29th 2021 when you file the
applications um were you ever contacted
by the zoning administrator with respect
to the site plans or scheduling a
hearing for site plan review no
was the Roden reel ever given notice of
any scheduled hearing or hearings of the
Planning and Zoning commission to
conduct site plan review on the five
applications
no so other than the February 5th 2021
email from the zoning administrator Mr
jabak were you contacted anyone by
anyone from the town about the site plan
applications
no show
you April 13th letter to refresh your
recollection well yeah I did get this
but not to review the site
plans well it's about the site review of
the site plans isn't
it well I would say this is about the
moratorium but okay yeah okay you were
you you received this letter of April 13
2021 correct yes okay I did so let's admit that as exhibit
25
what what is
[Music]
that board can see in that
exhibit the town count uh the Town
Administrator is returning the fees for
the site plan reviews and citing the
reason as the
moratorium that's a copy of
it due to the category one site plan
moratorium that was passed by Town
Council on March 18 2021 the town will
not be reviewing these projects at this
time and are therefore returning the
checks provided with the associated
projects
so as you may have noticed in my letter
of the Planning and Zoning Commission of
the February 23rd
2021 that'se been previously
submitted
um I noted that it was very unlikely
that the commission would meet its
deadline under the moratorium to finish
both the comprehensive plan and the
zoning implementing zoning ordinances
before the year-long moratorium that was
being
proposed so after this passage oh did
you availability AC cross I didn't uh
yes Mr pounds you're welcome to cross if
the witness has done his testim I'm done
having testified so if you wanted to
cross on what we just talked about
please limit it to the testimony that's
been given well I mean uh so is it just
going to be about the testimony he just
gave I mean okay uh so I'm going to be
calling Mr Donovan again based upon
substantial other evidence with regard
to what was not discussed in this case
if it's not been discussed by him just
now you cannot talk about it you're
welcome to cross-examine him on the
content that he has
provided okay uh if he should testify
further we can do this all
again yes I Absolut absolutely will be
doing that uh so Mr Donovan uh you were
informed uh of the
moratorium was I informed yes well I
received this letter saying that uh the
moratorium
passed on March 18th and the town would
not would not be reviewing the site
plans and uh and that's the the town
right is that your understanding the
town corre that's your understanding sir
uh yeah okay and the town your
understanding is the Town Council right
I receiv received this letter from Holly
wall Town
Administrator okay is it you know asking
what your is it your understanding that
Miss wall is the one who makes decisions
with regard to the
town I don't know what you're what
you're getting at but the Town Council
passes ordinances and the mayor has the
right to veto or sign them into law okay
so it's your understanding that indeed
the Town Council is the one who makes
decisions with regard to the town is
that correct
yes sir okay and that's your
understanding yes and in an Essence Miss
Wall's the one who implements those laws
that uh is passed by the Town Council
isn't that your understanding as the
Town Administrator I that's my
understanding that she that is part of
her position yes okay and so I just want
make sure you understand the town I make
sure I'm very clear on this and I make
sure the record is very clear the Town
Council makes decisions on behalf of the
town isn't that your
understanding my understanding yes sir
let's make sure we understand it's not
you Mr Don been that makes the decisions
is that is that
correct do what it's not you that makes
the decisions on behalf of the town is
that correct no definitely do not Mr
Blitz can State his opinions but it's
not Mr Blitz that makes those decisions
is that correct objection to scope
cross please move on okay that that's
your understanding in essence so when
the Town Council makes decisions they
make decisions on behalf of the
Town correct and uh and so uh with
regard to the uh uh decisions with
regard to the moratorium that that is
made by the Town
Council it was correct and and also the
Planning Commission uh is the one who uh in essence implements and makes
recommendations with regard to this
comprehensive plan that was your
understanding also
yes okay and you have five plans did you
submit those plans to the Planning
Commission to review during their
application
process when during the application
process I I don't you mean the
comprehensive plan process the
comprehensive plan process yes objection
to the scope of the Cross is succeeding
the scope of the direct and I'm not
sure he's the one that discussed the
more the moratorium goes directly to
exactly what the planning commissions
decision making goes directly to what
his testimony
was he read directly from the letter of
Holly
wall I don't know what you're getting at
with respect to asking him about his
understanding of zoning process or the
ordinance process he he didn't testify
about that well very simple five
applications which are the subject to
these hearing this hearing did you
submit those to the Planning Commission
for their
review you want me to answer that I ask
a question oh one
moment allow the question please answer
you can repeat it if you would yeah the
five applications which are the subject
this uh hearing did you submit those
five applications to the Planning
Commission for their
review it gets submitted to the
uh they got submitted to Chris
chubak as the the town zoning
administrator so you did not submit
those to the plan
commission I think what happens and I
could be incorrect but you submit the plans to the zoning
administrator the zoning administrator
then reviews those with planning and
Zoning so your testimony is you don't
know no his testimony was just what he
said okay so me so you you think that
you submitted to Mr Zubia and those
plans should have gone to the Planning
Commission is that your understanding I
believe
we we
submitted um believe the applications
are part of the exhibit
um you give me a second I might be able
to find them but we submit site plans to
the
town those that exhibit goes to Mr Zu
zubak
right cubc
yes I'd have to look at who exactly they
were addressed to but I'm pretty sure
that they go to Chris cu accus the town
zoning administrator or he was at the
time
rather me you're
not am I 100% sure now okay Mr Mr this
is your applications
right section I mean the rod and reel's
applications yeah okay well rodel's and
who's the president of the rod reel I am
okay so obviously you're the one who's
ultimately in charge with things that
happen with regard to the rod and
reel sure okay so so
basically so your testimony is you can't
testify whether those applications were
submitted to the Planning Commission
pursu to the comprehensive plan
process can you repeat that yes you
cannot testify that indeed those five
applications were submitted to the
Planning Commission pursuing to the
comprehensive plan process objection to
the argumentative phrasing of the
question no it isn't a question you're
asking him a negative of whether he
can't say
something being argumentative to point
please objection sustained um let's
bring this back to the testimony that
was given okay now you testimony that
indeed testimony earlier that these
applications Were Somehow approved back
in
2016 objection that was not part of this
direct examination I
sustain I will be calling Mr donov in
our case okay please continue Mr
blz just like to make the point that's
in your zoning ordinance
that applications for site plans are
filed with the Planning and Zoning
administrator for the benefit and of the
Planning and Zoning commission which
then takes those up according to a
process that's all set forth in your
ordinance that we reviewed in the first
hearing you don't necessarily file it
directly with you file it with the town
at this to the Planning and Zoning
commission the zoning administrator
first crack at it is because he's his
job is to review the site plan and give
comment to the planning and Zoning
commission it was filed with the site
the Planning and Zoning commission the
form that you file goes to the Planning
and Zoning
commission
so
um I'm just looking back at where we
dropped
off
so I I think I I had ended with I was
making the point that in my letter of
February 23rd
2021 to the Planning and Zoning
commission and that was copied to the
Town
Council I made the I rendered an opinion
that there was almost no chance that
they were going to be able to convince
to complete the comprehensive plan and
the implementing Zone ordinances before
a year-long moratorium as you'll recall
they shortened it to 9
months so after the passage of the
moratorium resolution the Planning and
Zoning commission continued its work on
the comprehensive
plan and by September it was clear that
they weren't going to finish the
comprehensive plan within the nine-month
P town period uh 9month period that the
Town Council had attempted to establish
in the first
resolution just Lish that I'm going to
submit the minutes of the Town Council
informational work session of September
8th 2021 as exhibits
26 as you you can see from
that um Mr jabak reported to the Town
Council his
view that the town's has a nine-month
temporary moratorium in
place which will expire on December 18th
2021 he reported to the commission that
had complete that the commission had
completed a draft of the comprehensive
plan and was set for a public hearing on
November 9th
2021 but after that hearing the
commission would still need a couple
months before giving final
approval he gave some options but was
recommending extending the moratorium
for an additional three
months now for the extension
request Planning and Zoning commission
held no public hearing to make this
request they did not debate it at all as
can be discerned from any public
comments public minutes and did not vote
on a resolution to recommend that to the
Town
Council so while the Town Council
followed the practice of having the
Planning and Zoning commission make a
its recommendation for the
original moratorium resolution it did
not do so for its the request apparently
made by the zoning administrator to
extend the
moratorium at the Town council meeting
held on September 16th 2021 the second
resolution was considered and that's
resolution r21 d8
that was also voted and
res introduced and voted upon at the
same
meeting and which purports to extend the
moratorium for three months and that is
exhibit
27
I apologize that I did have a slide for
Mr for the minutes that showed Mr jacub
ex's recommendation that they extend it
for an additional three
months so this is the temporary
resolution we just admitted as exhibit
207 I
believe so while this second resolution
was also not an ordinance and therefore
just as invalid as the first
resolution when attempting to alter the
effect and applicability of a specific
zoning ordinance mandating site plan
reviews what this resolution makes
absolutely clear as if it wasn't already
clear with all the public previous
statements that you've seen in EV
evidence is that the moratorium was to
be temporary not indefinite that it had
a set
duration if it didn't they would be no
reason to extend its passage by this
resolution
r218 in the first paragraph the council
recites that the moratorium passed by
resolution
r213 was temporary and in the second
paragraph it reads whereas the Town
Council has determined there is a need
to extend the moratorium for the
continuing reason as stated in the
previous resolution for an additional
three
months then in the actual resolve Clause
it reads the Town Council has adop has
determined an additional three months is
needed for the moratorium and hereby
extends the moratorium for an additional
three months after the time period as
referred in the resolution
r213 therefore it's clear that the
additional three months was quote needed
um and that the council was intending to
extend the time period from a total of
nine
months even more instructive is the
debate on this at the Town Council and
now I'd like to play a video of that
debate from the town
council's presentation that starts at
the 50 minute 12 Mark and ends at the
5829 and I believe Mr CH I mean
obviously you know you can conduct the
hearing want to but you know first of
all you know all of the minutes uh are
completely irrelevant in this case
because minutes are nothing more than a
documentary of to what happened minutes
are just a documentation as to what
happened the only thing that really
matters with with regard to a hearing is
what the decision was okay and it's
great to have minutes it's great to have
a history as to what happened and you
know and and you know you lit in all the
other minutes which are nothing more
than again a documentation documentary
representation but they don't apply to
decisions and that's the only thing that
matters now now he wants to have a video
as to what happened during I mean the
minutes are bad enough but if you want
to have the video you know that just just okay having a b debate great I
mean Council has a debate Council has a
debate you know once twice a month uh
you know and there's a differences of
opinions but all that matters ultimately
is what did they decide and so that we
understand uh we will still allow the
video and the
next documentation
in thank
you and obviously
objection
[Music]
over oh he's
doing
let's
go
minutes
just in little Chesapeake Beach some
days we do three and four a
day those who which we did is that
zero
5829 it was
512 do we have to remove the PowerPoint
so that they can see it
first
Mr Bliss how long does that
served eight
minutes
okay
said 52 yes you know just a basic one
page history we'll see okay all right thank Larry thank you Crystal
CLA um I have no more questions and
thank you Mr Mayor one follow-up comment
yes sir thank you uh to follow on with
councilwoman Vine's comment there um
this is right moratorium for an
additional mon just as a quick sumary
before I get to the council the Planning
Commission has submitted a request to
the Town Council for more time to devote
to the completion of the comprehensive
plan our planning is zoning
administrator brief the Town Council
during the uh recent work session as a
result of that we have before us a
before the council a resolution
extending the moratorium which is
currently set to expire in December of
21 for an additional three three months
uh is there a motion to approve move to
approve is there a second second okay uh
I'll begin discussion with Dr
Bodine oh yeah um if you actually look
at the word I just have have two
questions I think um I'm fully supported
this because it was voted upon
unanimously by the funding and Zoning
commission so this is what they want and
support above their
activities if you look at under the
therefore be it resolved that
and you look at the second
sentence um it says time period as
reformed in the resolution
r213 is that like a legal thing as
reformed that's a typo sorry um uh and I can tell you I did make the change
and for some reason before it got sent
to Holly the change was not made what's
the reasoning it's well we are now
getting into the issue of whether I'm
giving legal opinions okay or opinions
with regard to the resolution uh which I
know it's still on the video but legal
opinions still would not be part of any
evidence here and this video is now part
of the evidence here
so if I could be heard on the objection
when he's finished okay so in essence
you know uh it was just you know a type
of that's being corrected that's fine
but uh you know any other legal opinions
which just may be coming to obviously
creates an issue which probably should
be redacted from the video so first this
is a public meeting of the Town Council
any it's already public it's part of the
record it's literally a public document
so if you give legal advice during to
the Town Council during an open session
of the Town Council it's part of the
record and is part of the evidence that
we can present with respect to the key
issues which I'm going to get to promise
you this isn't just given to you
gratuitously there's some key issues
being raised in this debate in this
video so that's that's why I believe it
should be admitted well objection
because it goes back to this is a debate
this isn't evidence this isn't a
decision by the council this is just a
discussion between the council that's
all it is okay so in essence if it's
going to be admitted you know there's a
p you know there's a you know area of
law called giving it appropriate weight
which means discussions that mayor may
not be you know going on between Council
would have no weight because it doesn't
necessarily mean how they would vote
they're just talking okay so in essence
having some type of discussion creates
some type of evidentiary hearing or
evidentiary matter for something in the
future really is is is some something
that goes way way way out of bounds as
far as what anybody could do okay
because this isn't a decision this is
nothing more than what they may talking
or what may have they were thinking at
the time so one moment
please the objection is overruled but
the board hears the argument about the
weight of what we are seeing here thank
you Mr CH please
proceed be it should be referred rather
than reformed it should have been
referred so I apologize and I'll make
that change but yeah that's my my
mistake and I I caught it but it was
made but it did not seem to get the
Holly so sorry about that no no problem
I just wasn't honestly I wasn't sure if
it was like something I just you know
like a legal thing um P do we need to do
an amendment to change this to referred
if so I would like to introduce that
Amendment you know I don't see any
reason if you wanted to to cross it out
and then put a tick mark there and just
put the correct word um because what matters is the
signatures um question how much um
testimony are we expecting here from
Council minutes is it all from um Mr
pounds when is that gonna wrap up
shortly yes well it goes
another four minutes so most most of
what I care about is actually the parts
that's coming up all this is just kind
of part of the debate what this is is
all of the public debate of the Town
Council on this resolution that is the
resolution is introduced and the Town
Council gets to
debate the mayor turned to Dr Bodin
first she provided her comments then we
had some questions to the council but
that's all part of the debate on this
legislative
act or attempted a legislative
act so if it's not not done um um
just just handwriting it and there's
absolutely nothing wrong with doing that
if you'd like to do
that I don't think
we
um any additional comments rry yeah yeah
I just I thought you were gonna talk P
I'm sorry I just wanted to if you wanted
to change it um yeah my other comment
was one thing that came up at the work
session and just want to make sure I
understand the way it's written is that
our current moror that we currently have
expires on December 18th
this moratorium uh takes effect December
19th at
1201 and this moratorium would expire on
March 19th is anything I said
incorrect well I think it's clear
no Tod Todd do I got it oh yeah no this starts right away there's no doubt
about it but doesn't it starts on
December 19th right it's an extension
that that's right there's no there with this we have drafted with you know
excluding the typo there is no Gap there
is no Gap in the expires on March 19th
correct got it thank you very much for
your help thank you
Charlie I don't have any questions um
just from a substantive standpoint you
know when this came before the council
initially
um we had a a good debate about the
timing of the moratorium I was opposed
to a morat
um that extended indefinitely Or
extended for a long period of time not
because I didn't want Planning and
Zoning to do their work but because I
wanted to keep the comprehensive plan on
the front burner and if the moratorium
had needed to be extended it it would um
now we we sit here today with a uh very
uh completed draft of the comprehensive
plan uh it would be pointless now not to
extend this for another three months
uh I I just don't see I I just can't
imagine anyone actually making
applications now knowing what uh is in
the comprehensive plan under the old
rules let alone becoming substantially
vested in their project um but but it
would be pointless to not accept uh
three more months as requested by the
planning and zoning committee in my
opinion that's all thank you Charlie and
Larry I'll disagree with my colleague Mr
thinkink about being pointless um I did
not support the moratorium when we voted
on it in March uh given recent
discussions and reports and as just was
acknowledged a moment ago uh we will not
have an approved comprehensive plan in
three months along with the required
changes in the uh code to support the
new moratorium or to support the new
comprehensive plan so I'm not quite sure
what what we're doing here um I think
we're going to be if this passes we're
going to be back at this again in March
because we won't have a new
comprehensive plan and the required
changes in code to support it and I just
am concerned that this just drags on and on so thank you thanks for your
comment uh Mr
Mars uh yes
um
I would certainly we certainly did uh
have debate and pretty good discussion
about this at the last work session so
anybody that's in the audience tonight
that needs a little more background
about the decisions tonight um I would
certainly refer you to that work session
um we've got a public uh we've got a
um a public meeting scheduled in
November for this I know we're taking
public comment now I don't under
estimate public comment on this either I
think that
U there's going to be some um forces
against some of the things that um
they're
proposing um in my mind extending the
moratorium for three months does make
sense um and it does give Council in my
mind it gives it's going to give Council
the time it needs to do what it to do
its part at the end of this I'm
confident that uh we're going to get
this done
um first part of next year I do not see
how I could support any additional
extensions of the moratorium uh but I in
my opinion All Things Considered today I think we've got this in hand they've
been working very hard there's a draft
plan that's in front of everybody and
the Public's reviewing it now um there
could be some changes on the council
level uh once it gets there um but I
don't see that dragging on at all I
think uh we're going to vote some of
that up and down and um I think we uh I
can see the Finish Line on this so I'm
in support of three months um thank you Greg and lastly Keith yeah
thank you mayor so yeah I definitely
support this I was in favor of a 12mon
moratorium to start with and that was
what was requested to do the job and
we're getting very close and hopefully
we will cross that Finish Line soon
thank you okay thank you okay we have a
motion we have a second now is time to
vote all all those in favor say I I I
post no and the motion passes four to
one thank you
everybody uh next U that's the end
correct yes it is um at this point we
have five minutes left you're welcome to
that time but be aware yes I think I can
kind of close out this thing so
um so what it's clear from the debate
the minutes and what you've just watched
is that the council believed the
moratorium would expire on December 19th
2021 that they wanted to extend the
moratorium for three additional months
and if they passed this second
resolution it would expire on March 19th
2022 it's also nice to see that Council
councilman jorski made the point seemed
to be ignored by everybody else on the
council that even with this three- Monon
extension the moratorium would expire
before the comprehensive plan and the
implementing ordinances would be
passed I prepared a transcript of this I
don't know whether you want it for
guidance it's just a literally the
transcript of what you read I it's in
your book and if you want me to offer it
as an exhibit so that you have it in the
record yes put it in exhibit okay so
that would be exhibit
29
288
and I I'll submit the minutes of the
Town council meeting of September 16th
2021 as exhibit
29 just for the record I'm be objecting
to both of those all
over
almost
okay so that is a pretty good stopping
point for the next segment that will
kind of wrap up why a lot of that was
relevant
and we'll see you at the next hearing I
believe thank you um at this point in
time EXC yes um I know one of the things
that we were told is that you have
public comment this evening yes there
will not be public comment this evening
uh public comment will happen that's not
the way it goes I'm sorry but that's the
way the rules are written for this type
of procedure I'd love to tell you and
maybe I should have told you at the
beginning that public comment you are
going to have all the time you want to
give public comment but the order of
operations here is that the case is
presented Town staff responds then
public is allowed to um to address it
will not be tonight it will not be
tonight it will probably not be next
time as well the last estimate we had
was that this would be approximately
eight hours your public comment has a
real basic effect on what's going on
here I think a lot of time is being
wasted I don't know why this isn't being
presented in front of a judge okay
because that's all we're hearing back
here at least that's all I'm hearing
decisions that you guys can make in
regards to what he's bringing up this
was presentant a judge has passed this
back down to us for some judgment that
they can then consider if it should move
to that case but the order of operations
from the circuit court is that the um we
need to come to a ruling here on this
board for to continue on its legal path
and the um this board this is the first
time we've heard anything like this and
so we're learning along with you but we
are going to follow the rules that are
set up same stuff that came up in 19 I'm
hearing the same thing um the
19th I think Public public comment is
very important in this case I mean I
just I I don't even know why it's going
to go any further if public comment was
you able to present it public comment is
entirely welcome and I'm sorry that you
can't comment during this meeting and
possibly the next one and maybe the one
after that the the plan of here is going
to testify for eight hours right is that
the
ballpark six and six and a half hours at
the end of that come for six ands yes
that is his presentation his right based
on what he is asking of this board here
today
what are our rights uh your rights are
to testify when it and as the public
when it is time to receive your comments
you're welcome to give them at the
stadium and you're welcome to write to
them to write to us if you'd like to
deliver in letters we will read it out
for this board at the appropriate time
we would love to have public comment but
unfortunately there's a lot going on
here and we have to public comments are
directed to you how it is really to the
Donovan family unfortunately I don't
know if that's you're
I think it should I think they should
drop the
appeal we will receive your public
comments with regards to this case and
with regards to the five site plans and
how the process went for that um this is
not a referendum on the donovans or
other business within the town uh our
scope is narrow here which is why we're
trying to understand The Narrative of
what happened for these past three or
four years and allow the story to be
presented so that then we can understand
and come to a judgment which can then go
farther in the legal realm if that is
what's to happen we will certainly take
public comment we don't mean to keep you
from giving public comment and we
certainly don't want you to sit here if
you feel like you're just waiting to
give it you are welcome to write it and
we will read it back uh when it is time
for public comments if you feel like
this is too much of your own time spent
here tonight so I I apologize if I was
learning something new and I'm not
hearing anything new
um I've read the minutes I've watched
the eight minute videos and stuff it
just seems like a real waste of time to
me a lot of the information for me but
anybody else that has their opinion that
they want to give on this entire Fiasco
unfortunately that's the prerogative of
the presentation the the presentation
we're receiving tonight is we want them
and they're given the chance to present
first and up until it's conclusion
people that they in the right in less
than six and a half hours then you need
to re recheck what um thank you for your
comment um you are welcome to give it in
writing or when we open up public
comments it
is um so uh at this time I'll entertain
a motion to adjourn the meeting until
November 8th at 7M here in town hall
thank you do I have a second I will make
that motion
oh sorry motion second all in
favor thank you we are adjourned until
November 8th at 7
P.M