[1:46] uh hello again everyone um this is the

[1:48] call to order for the Chesapeake Beach

[1:50] Board of Appeals 700 p.m November 8th

[1:53] 2023 we will begin with a roll call of

[1:56] board members um please announce that

[1:59] you are presid present uh Mr Paul dhy

[2:01] present Miss Amy Everett present Mr

[2:04] Steven sharp present I am Mr Jody star

[2:08] we have a quorum uh the first item today

[2:12] is the approval of the minutes uh of the

[2:15] last meeting for this session uh October

[2:17] 30 2023 case

[2:20] 20233 uh were there any concerns by

[2:23] board members with the minutes as they

[2:25] will

[2:26] provide right uh at that point I will

[2:29] entertain a motion to approve the

[2:30] minutes do I

[2:33] have I will make a motion to approve I

[2:35] have a second second all in favor hi

[2:39] motion passes thank you uh we'll begin

[2:42] with a couple announcements um during

[2:46] the 30th of October meeting we establish

[2:48] a time limit of two hours per session

[2:50] for this case so we will end tonight

[2:53] around 9 p.m. uh we also have a planed

[2:56] schedule for this case the next session

[2:59] will be next Tuesday November 14th at

[3:02] 700

[3:03] p.m. um one note for everyone here um

[3:07] please direct all questions and comments

[3:10] to the board itself or the board's legal

[3:12] counsel um this applies to the gallery

[3:15] as well do not direct questions or

[3:17] comments to the petitioner or any staff

[3:20] members here um

[3:22] lastly uh we're going through the order

[3:25] of presentation um as defined in the

[3:28] board of appeals rules of procedure

[3:30] uh we are starting again with the

[3:32] appellant testimony and evidence

[3:34] including Witnesses by Mr Blitz uh once

[3:37] he has concluded it will pass to Mr

[3:39] pounds uh for towns St testimony and

[3:42] evidence um at that point we will open

[3:44] the floor to members of the public or or

[3:47] entities whose rights are impacted by

[3:48] this appeal um and we will wrap up with

[3:51] summary statements before we close the

[3:53] public hearing and go into

[3:55] deliberations uh what this means is if

[3:58] um if members of the public have

[3:59] attended tonight with the intent to

[4:01] State your opinion it most likely won't

[4:03] happen tonight um if this is

[4:06] inconvenient we will take WR written

[4:08] statements if you'd like to provide them

[4:10] either tonight or via email to uh to

[4:12] town Town Hall staff um and at the same

[4:16] time I'd urge you to submit your remarks

[4:18] at the conclusion of the testimony uh

[4:21] taking what you hear into account you're

[4:23] welcome to submit written comments at

[4:25] any time but we the board would most

[4:27] appreciate comments that are written uh

[4:29] within the scope of what we're able to

[4:30] rule on so take that into mind as you're

[4:33] submitting comments or stating public

[4:36] opinions uh okay uh that is all the

[4:39] announcements um on to the board's

[4:42] business um this is a continuation of

[4:44] case

[4:45] 20233 Roden reel Incorporated Donovan

[4:48] Estates LLC consider an application from

[4:50] the Roden reel and Donovan Estates of

[4:52] 4160 Mir Avenue Chesapeake Beach

[4:54] Maryland for decision on interpretation

[4:56] or alleged error to article 6 section 29

[4:59] 9-23 29-31 A1 and A6 of the Chesapeake

[5:03] Peach zoning ordinance in section c390

[5:06] c310 and c311 of the chesap beach Town

[5:09] Charter applicant requests that the

[5:11] Chesapeake Beach zoning uh board of

[5:13] appeals to quote order the zoning

[5:15] administrator and planning and zoning

[5:17] commission to immediately commence and

[5:18] prioritize the processing and review of

[5:21] the relevant site plans submitted by

[5:22] Roden real Donovan EST States uh and

[5:24] that the zoning administrator and

[5:26] planning and zoning commission be

[5:27] ordered to apply the zoning ordinances

[5:29] in effect as of January 29 2021 when the

[5:33] applicants were submit when the

[5:34] applications were submitted and for such

[5:36] other and further relief as the nature

[5:38] of their cause requires um before going

[5:42] uh back to where we left off um Mr

[5:44] pounds has requested uh to enter an

[5:47] objection before we begin thank you this

[5:50] is an objection I wanted to make for you

[5:52] know future purposes for uh appeal

[5:54] purposes and also for the status of the

[5:57] hearing itself so um uh Mr chair uh

[6:00] members of the council good evening uh

[6:02] my name is Todd pounds and I represent

[6:04] the town of chese beach basically uh Mr

[6:07] chair members of the council this is a

[6:09] hearing uh you know as all of you know

[6:12] uh a hearing is designed to have

[6:13] testimony which is sworn which is

[6:16] presented which is uh given by

[6:18] individuals under oath uh in fact Mr

[6:22] susman raised it uh a couple of hearings

[6:24] ago asking Mr Blitz indeed if he was

[6:26] going to be having sworn testimony

[6:28] presented uh and also there's been

[6:30] members of the public who have also

[6:32] asked whether indeed testimony was going

[6:34] to be presented that hasn't happened uh

[6:37] basically we have been you know

[6:39] listening to uh where we spend what is

[6:42] now multiple hours uh which is going to

[6:44] be more multiple hours tonight uh which

[6:48] I'm going to use the term droning on and

[6:49] on regarding non a non-sworn testimony

[6:53] with regard to um items which are

[6:56] basically his opinion uh this is this is

[6:58] not evidence uh as a result none of this

[7:01] is evidence uh going on and on uh does

[7:05] not present evidence especially when you

[7:07] know the individual giving this is not

[7:09] sworn and indeed this is not evidence

[7:12] for you to be considering at all with

[7:15] regard to really any any type of

[7:18] deliberation or any type of giving in

[7:20] opinions at all these are in essence

[7:22] arguments and opinions but it is not

[7:25] evidence um in fact any evidence was

[7:27] just been presented uh so far in the

[7:30] multiple hours is almost none uh because

[7:33] if you only look at what the sworn

[7:35] testimony would have been furthermore uh

[7:38] an exhibit book was presented uh which

[7:40] shows minutes uh of hearings before the

[7:44] Town Council uh and also before the

[7:46] board of appe uh before the Planning

[7:48] Commission well those minutes you know

[7:50] theoretically are here say uh because in

[7:52] essence they're uh they were developed

[7:55] and written by someone else who observed

[7:58] it but but but and and they are not in

[8:01] essence uh evidence in and of themselves

[8:04] so any of that should be also considered

[8:07] irrelevant uh the video which we saw

[8:10] which was a video of a council you know

[8:12] meeting goes on to state that indeed

[8:15] what their opinions are and and was

[8:18] opinions going on with regard to the

[8:19] council but indeed is not uh evidence

[8:23] unless indeed it is for the

[8:25] considerations and ultimately what the

[8:27] decisions uh would would be so in

[8:29] essence we uh uh are have and we will

[8:33] continue to spend uh many hours uh

[8:36] listening to Mr Blitz basically go on

[8:38] and on about nothing more than his

[8:40] opinion uh and his in his belief that's

[8:43] not evidence that is not evidence for

[8:45] you to be considering that's not

[8:46] evidence for you know you to in any way

[8:49] be reviewing uh with regard to this case

[8:52] this is uh nothing but unsworn

[8:54] statements of someone who is not a party

[8:57] uh and there nothing more than

[8:58] expressing their opinion worse what

[9:01] concerns me is half truth which is given

[9:04] with regard to these opinions you know

[9:06] we spent a half an hour last meeting

[9:09] talking about the referendum under C-

[9:12] 311 and how certain rights of Mr Donovan

[9:16] were violated as a result of this him

[9:19] not being able to do certain things well

[9:22] under the you know and and the board you

[9:25] know let the testimony go on but in

[9:27] essence the the Hal truth was the fact

[9:31] that he didn't have any rights under C11

[9:34] okay basically in order for him to have

[9:36] a right any rights under the referendum

[9:38] Not only would have to he would have to

[9:40] be involved but also it would have to be

[9:42] at least 50% of the total number of

[9:45] Voters who voted in the last regular

[9:48] preceding regular Town election uh as

[9:52] such you know if if we're going to be

[9:53] making these statements and Broad

[9:55] statements going on expressing opinions

[9:58] which are un not sworn testimony you

[10:01] know we at least have to be tell telling

[10:02] the truth with regard to what's in the

[10:04] ordinance as opposed to in essence only

[10:07] picking and choosing things that he

[10:08] believes is his in his best interest um

[10:18] uh so again uh the fact that we are

[10:21] spending multiple hours with actually

[10:24] limited to almost no evidence actual

[10:27] evidence being presented to the board

[10:29] other than uh unsworn testimony is

[10:31] simply not proper and I'm making the

[10:33] objection uh with regard to that also

[10:36] you know uh uh various statements were

[10:38] made with regard to the book uh for the

[10:41] statutes and code and also uh sections

[10:44] were stated to the board that in essence

[10:47] you know for opinions by the court of

[10:49] appeals well the court of appeals was

[10:51] the old Court in the the highest court

[10:53] in the state of Maryland now called the

[10:55] Supreme Court uh in the cases that that

[10:57] were were in

[10:59] and and it was asked that indeed you

[11:01] make an interpretation as to the

[11:04] opinions of the highest court in the

[11:05] state of Maryland well ladies and

[11:07] gentlemen if you're a judge in the in

[11:10] the court you can't do that okay you

[11:12] know you you're making interpretations

[11:13] as to what the highest court of the uh

[11:17] state says for a judge is improper

[11:20] especially even more improper would be

[11:22] that of an administrative board so there

[11:25] and even worse than that was the fact

[11:27] that and I wrote it down he said that in

[11:30] in in essence you know if you uh uh look

[11:34] at I want to get the exact phrasing that

[11:37] was

[11:38] done it was asking you to follow the

[11:41] logic okay which says well the case

[11:43] isn't on point but I want to show it to

[11:45] you and you should interpret what the

[11:47] highest court in this court is stay uh

[11:49] staying for an Essence for some

[11:50] particular purpose I mean that is just

[11:53] absolutely completely uh improper to be

[11:56] doing any of that so basically you know

[11:59] what uh what in essence the applicant is

[12:03] ultimately ex asking you to do is to do

[12:05] things which are beyond your ability uh

[12:08] and the ability of an administrative

[12:09] board to review uh things that are not

[12:11] on point you know with regard to that uh

[12:14] you know that interpretation of that

[12:16] language so basically uh preliminarily

[12:19] I'm going to move that in essence all

[12:21] the testimony was stricken should be

[12:23] stricken from last meeting because it is

[12:26] nothing but expressions of opinion and

[12:29] statements of someone who's unsworn

[12:31] someone who is uh not a party to the

[12:34] case and who someone who is just uh

[12:36] stating his opinions as to any testimony

[12:39] which which should be in the proper uh

[12:42] uh way that a hearing should be

[12:43] conducted thank you thank you one

[12:51] moment Mr Blitz would you like to

[12:53] respond to that sure uh we have provided

[12:56] uh 29 exhibits of um giving you exhibits

[13:01] of government documents yes they are

[13:03] hearsay but they fall under what a very

[13:05] typical hearsay exception for government

[13:07] documents furthermore hearsay isn't a

[13:10] limitation on evidence before this board

[13:13] or almost any administrative proceeding

[13:15] with a few exceptions not related to

[13:18] zoning um the point of almost all of

[13:25] the uh information that I'm providing

[13:28] you is that we're asking you as a board

[13:32] to consider the actions of the Planning

[13:34] and Zoning commission and Zoning

[13:36] administrator to have been in violation

[13:38] of the the town code and I'm providing

[13:41] you not only the minutes of what they

[13:44] did how they did it various exhibits of

[13:46] communications but also what the town

[13:48] did to help you interpret that case all

[13:53] of the information I believe is quite

[13:55] relevant to your ability to decide

[13:58] whether first the moratorium which was

[14:02] one of the two reasons why the zoning

[14:04] administrator said he wasn't going to

[14:06] review the site plans um was valid in

[14:10] the first instance citing you sections

[14:13] such as the charter sections is my job

[14:17] to point out to you what I what areas of

[14:19] law I believe were violated with respect

[14:22] to the

[14:24] referendum any citizen can start the

[14:27] petition for referendum to an ordinance

[14:29] but not a resolution that was the whole

[14:32] point of

[14:34] the uh the review of that section in

[14:39] fact well I'm not I'm not GNA I'm not

[14:42] not going to tell you what in in

[14:44] answering this I'm not going to give you

[14:47] for uh uh what what information is about

[14:50] ready to come because we will have Mr um

[14:53] Donovan testify about his ability to do

[14:56] referendums um

[14:59] so anyway

[15:03] um it's not a half-truth to say that a

[15:08] uh an ordinance is required to do a

[15:10] resolu uh to do a referendum because the

[15:13] referendum language is strictly related

[15:16] to ordinances as well as um the timing

[15:21] for doing a referendum is based upon the

[15:24] nature of the timing for ordinances that

[15:26] is when they go into effect when they

[15:29] um publication notices and things like

[15:32] that so citing you law is the the areas

[15:36] of law that I'm asking you to

[15:38] consider I'm not asking you to interpret

[15:41] the law but you have the power to

[15:42] interpret the law it's just that further

[15:45] on if it goes to a court your judgment

[15:48] about that isn't going to be given a

[15:50] whole lot of weight that is your your

[15:52] job is to interpret whether the the

[15:55] zoning administrator and the um planning

[15:58] and zoning commission violated the law

[16:00] that's your job so we're going to cite a

[16:02] lot of Law and tell you the laws that we

[16:04] think are applicable with respect of the

[16:07] cases they're provided for you as

[16:09] Authority for the proposition that you

[16:12] had to pass such a a legislative act

[16:14] through an ordinance and not a

[16:16] resolution and that's one of the reasons

[16:18] why the first uh no the second reason

[16:22] that they were refusing to uh do the

[16:25] site plan reviews which was the

[16:27] moratorium uh

[16:29] was

[16:29] improper

[16:34] so I'll just end with the fact

[16:38] that it's very typical when trying to

[16:43] prove what a government body does

[16:46] whether it's an administrator or a

[16:48] committee or a commission or a Town

[16:51] Council to provide the official record

[16:54] of what they did minutes aren't just

[16:57] some hear say they are literally the

[17:00] official document that records what they

[17:03] did on that

[17:05] day when you passed your minutes for

[17:08] this prior meeting you were saying

[17:11] that's what occurred it doesn't just

[17:13] detail all of the things that occurred

[17:15] obviously doesn't need to but if there

[17:17] were motions done or ordinances passed

[17:19] or resolutions done the votes that are

[17:22] taken those things all get recorded in

[17:25] the minutes and that is literally the

[17:26] official recognition of what you did

[17:29] it's not that you can't go and get other

[17:31] evidence of it you could do a whole

[17:32] transcript we played a a video there's

[17:36] nothing here say about that video you

[17:38] got to watch listen to to them directly

[17:40] what they get to say um and and so I I

[17:44] think the this is more of an argument

[17:47] against the case as a mo as opposed to

[17:49] an objection about

[17:53] evidence one

[17:57] moment

[18:05] uh at the first hearing an oath was

[18:08] administered to people in attendance my

[18:11] recollection and please tell me if I'm

[18:13] wrong that you also uh swore to to

[18:18] that a recollection correct or wrong it

[18:21] is

[18:23] correct so I'm going to be calling Mr

[18:26] Blitz as a witness

[18:29] I'm going to be calling Mr Blitz as a

[18:31] witness that's up to you whether you

[18:33] want to call Mr Blitz as a witness thank

[18:37] you

[18:40] um um so um the objection is noted but

[18:44] overruled this board does explicitly

[18:46] have some language in our um in the

[18:50] governing documents that say that

[18:51] hearsay is explicitly allowed in

[18:54] testimony like this um and that the

[18:57] board will take that under consideration

[18:59] when hearing the evidence um so we are

[19:02] aware of that um the only evidence that

[19:04] will be excluded from this testimony is

[19:07] repetitious or unduly prejudicial

[19:09] evidence so uh please continue with that

[19:12] and as you both noted none of us here

[19:14] are uh situated to interpret the law so

[19:18] if you feel like you would like to add

[19:19] something please do correct the board

[19:22] when we need to um

[19:25] okay uh I noticed that a few other

[19:29] members of the public stepped in um

[19:31] since we began um I just want to make

[19:33] sure it's clear um that members of the

[19:36] public are welcome to testim or to come

[19:39] and and speak and we will hear your

[19:40] testimony but it will probably not

[19:41] happen tonight um if that is

[19:45] inconvenient for you please do uh leave

[19:48] us written testimony or wait patiently

[19:51] until it is time to hear public com so

[19:55] thank you okay uh without further ado

[19:58] we pass it back to Mr Blitz to continue

[20:02] his

[20:04] presentation thank you uh Eric Blitz on

[20:06] behalf of the rod and Rio of the

[20:07] appellants um if I could have the

[20:09] PowerPoint

[20:18] please so first we're just I'm not going

[20:21] to review both sessions but just the

[20:22] last session just to bring us up to

[20:24] where we left off uh in the last session

[20:27] we reviewed in detail the legal reasons

[20:30] that a zoning moratorium must be passed

[20:32] by an ordinance and not a mere

[20:33] resolution to be legally effective the

[20:36] moratorium changed the legal effect and

[20:39] applicability who it applies to of

[20:43] pre-existing zoning ordinance

[20:45] sections 2923 C 2931

[20:49] A6

[20:51] and the deadline for review which was 60

[20:55] days in 2925a

[20:58] 5c it was a legislative act we went

[21:02] through all the reasons why it's a

[21:03] legislative act that General

[21:05] applicability and

[21:07] effect the moratorium impacted the

[21:10] rights of property owners under the

[21:12] zoning code and because zoning powers

[21:15] are an Express power under Maryland

[21:19] law I gave you the statute they must be

[21:23] passed by ordinance they must be used

[21:25] through ordinance Powers not resolutions

[21:32] we went over the town Charter

[21:34] Provisions setting forth the important

[21:36] procedural rights that protect that

[21:39] citizen rights when legislative acts are

[21:42] done but we're avoided in this

[21:46] instance we have the introduction in

[21:48] passage rules where you introduce an

[21:50] ordinance and then at a subsequent

[21:53] meeting you would hear the public

[21:56] testimony and then

[21:58] passage in ches Beach it's no less than

[22:01] 6 days and no longer than 60 days is the

[22:04] time frame it can be done by an that

[22:07] part can be shortened by an emergency

[22:09] ordinance but this wasn't passed as an

[22:12] emergency

[22:14] ordinance the resolution avoided the

[22:16] mayor's power of

[22:19] veto and the timeline for passing an

[22:24] ordinance

[22:25] importantly it avoided the right of

[22:28] referendum which as I cited you the

[22:31] section is protected in

[22:35] zoning under Maryland

[22:38] 5213 and this statutory is in uh

[22:42] provision is

[22:43] important because it too is an Express

[22:48] power and that means the town cannot

[22:52] have done it in in contravention of

[22:54] state law just doesn't it's void abono

[22:59] and then it avoided the delay between

[23:01] the introduction public hearing and

[23:02] passage and the delay in passage and

[23:05] going into effect that is it went into

[23:07] effect immediately and I pointed out the

[23:09] zoning provision that says using the

[23:12] zoning power has to go into effect no

[23:15] earlier than 10 days after the fact

[23:18] because it's presumed to be being done

[23:20] by an

[23:25] ordinance so we reviewed the many

[23:27] different context that a proposed

[23:29] moratorium was described as

[23:31] temporary and having a maximum

[23:34] duration and there were debates over the

[23:36] maximum

[23:37] duration both at the Planning and Zoning

[23:40] commission level and the Town Council in

[23:43] the first instance it was initially

[23:45] resolved to be nine months then there

[23:47] was a resolution to extend that

[23:50] moratoriums maximum duration for an

[23:53] additional three months to end on March

[23:56] 18 2022 I I I'll generally use the the

[24:00] date March 18th 2022 uh depending on the

[24:04] way you count it it could be March 19th

[24:06] but I don't think it's really relevant

[24:08] to your thing and there was a debate on

[24:11] that resolution that acknowledged that

[24:13] the maximum duration was being set by

[24:15] that

[24:18] resolution so during my presentation uh

[24:21] last time on the Town Council video that

[24:23] you watched uh I mentioned that there

[24:26] was no record of the planning zoning

[24:28] commission having held a public hearing

[24:30] and passing a resolution to request an

[24:33] extension of the

[24:35] moratorium I need to correct that

[24:37] statement slightly because while there

[24:39] was no public hearing as is

[24:43] required uh held by the commission on

[24:46] extending the moratorium they did and

[24:49] they didn't pass a formal resolution

[24:50] like they did the first time they did

[24:53] take a vote um and they voted for the

[24:56] extension they did did it in a work

[24:59] session not at a regular session it was

[25:02] not included in the the commission's

[25:05] agenda for that work session to give

[25:07] prior notice to the public and just as

[25:10] importantly there was no opportunity for

[25:11] the public comment in a work session and

[25:14] no opportunity to comment that was

[25:16] provided for in that August 12th

[25:24] meeting so while they provided the isite

[25:29] process that that is the commission did

[25:31] of giving a a recommendation to the Town

[25:34] Council or something that affects zoning

[25:37] um for the original recommendation they

[25:39] did not do so for the extension

[25:43] request I'd like to submit exhibit 30

[25:46] which is the agenda and minutes for the

[25:48] Planning and Zoning commission work

[25:50] session of August 12th

[25:56] 2021 who that Mr put the agenda what's

[25:59] that the agenda no this uh this is the

[26:03] agenda and the

[26:07] minutes for what

[26:10] date August

[26:17] 1221 so I

[26:20] believe I need

[26:26] to

[26:38] addition things

[26:44] now and you may wish to just keep them

[26:49] as a separate pile so that as we go

[26:52] through them you put it in your books

[26:53] just because there's things already in

[26:55] your books that would

[27:10] so obviously this is more than just this

[27:12] exhibit this is all the

[27:26] ones

[27:29] [Music]

[27:36] [Music]

[27:41] you'll have a story you'll have a story

[27:43] on tap

[27:45] to okay

[27:47] so with the three-month extension the

[27:50] moratorium was nominally going to end on

[27:52] that March 18th or 19th of

[27:55] 20222

[27:56] and slide

[27:59] five and the next step in this process

[28:03] is that the commission passed its

[28:05] recommended comprehensive plan on

[28:08] January 26th of

[28:11] 2022 um so March 18th came and passed

[28:15] and so even by its terms the moratorium

[28:17] had

[28:18] expired

[28:20] um and then the Town

[28:23] Council adopted that new plan on April

[28:26] 21st of 22 so that's after the

[28:30] expiration of the moratorium and it

[28:32] became effective on May 11th 22 and I'm

[28:36] offering exhibit

[28:38] 31 which

[28:41] is the

[28:43] ordinance

[28:45] 0234 cover page as well as the

[28:48] resolution from the

[28:51] commission which shows as you can see on

[28:54] the thing the the passage date just to

[28:56] get that in

[29:13] so I'll remind the board that at this

[29:15] point in

[29:17] time the comprehensive plan was six

[29:19] years over the deadline under Town law

[29:22] and over and over the 10year deadline

[29:25] under state law and with respect to that

[29:27] state law they did not make an extension

[29:29] request as required to gain an

[29:32] extension um they had to have made that

[29:35] to the Maryland office of

[29:42] planning so note that this is the

[29:45] passage of the comprehensive plan but

[29:47] not the Imp implementing

[29:50] ordinances which were also required

[29:52] under the terms of the moratorium

[29:54] resolutions it's the implementing zoning

[29:57] amendments which would be applied during

[30:00] any site plan review for the five rod

[30:03] and reel site plan projects as they

[30:05] provide the specific

[30:07] standards which a project must

[30:10] meet and as you'll

[30:12] see tonight the commission wasn't even

[30:15] close to completing the implementing

[30:16] ordinances at that point in

[30:19] time because the zoning Amendment had

[30:22] not been passed to implement the zoning

[30:25] ordinance and because the Town Council

[30:31] had never passed any other additional

[30:32] resolutions or ordinances to extend the

[30:35] moratorium we waited an additional 60

[30:37] days to see whether the zoning

[30:40] administrator and planning and zoning

[30:41] commission would take up the five site

[30:43] plans as they were required to do at 60

[30:45] days after the expiration of that

[30:47] moratorium on March

[30:48] 18 um they did

[30:52] not so therefore on May

[30:56] 20th I wrote a demand

[31:00] letter which I'll offer is exhibit 32

[31:03] it's my letter

[31:04] to

[31:10] Chris

[31:21] May Mr BL what exhibit number that was

[31:26] 32

[31:33] and I don't know

[31:35] whether you'll find this helpful or what

[31:38] process but I have a typewritten list of

[31:41] all the exhibits that I could either

[31:44] give to you to validate or give to

[31:46] Sharon she could validate and then

[31:47] distribute to everybody I just it it

[31:50] might be easier for everybody to have

[31:52] that list and I've already got it going

[31:54] so when we're done the whole case I

[31:57] guess yes I'll give that to

[31:59] you

[32:08] um I don't know which slide I'm on

[32:13] here

[32:15] right so as you can see I made the

[32:19] request that all the five site plans be

[32:22] processed um and pointed out that the

[32:28] moratorium purpose was to have the Town

[32:31] Council pass both the comprehensive plan

[32:34] and the Amendments uh the implementing

[32:36] ordinances I'm

[32:38] sorry which are amendments to the zoning

[32:41] code and so on page two I pointed out

[32:44] that even by its own terms the

[32:46] moratorium had expired despite the

[32:48] three-month extension and I noted that

[32:51] since the mayor and Town Council had

[32:52] held two regular sessions on April 21st

[32:55] and May 19th and did did not seek to

[32:57] extend the moratorium or otherwise

[32:59] address those resolutions in r213 or

[33:04] r218 um and that neither the zoning

[33:06] administrator nor the Planning and

[33:07] Zoning commission responded to my demand

[33:09] letter they certainly did not start the

[33:12] site plan review

[33:14] process um instead I received a response

[33:17] from the town attorney Mr pounds in a

[33:19] letter dated May 25th 2022 which I'll

[33:23] offer as

[33:25] exhibit 33

[33:43] uh you have

[33:44] it it's in your binder it's not in the

[33:47] new

[33:55] Pat

[33:58] Mr pound you basically it's it's on the

[34:01] thing right there read it along with

[34:03] everybody um so as you can see in that

[34:05] letter the town attorney took the

[34:07] position that the moratorium was not

[34:10] terminated because it could only be

[34:11] terminated by the Planning and Zoning

[34:13] commission and the Town

[34:15] Council I've submitted countless

[34:17] examples where the town put out Public

[34:20] Notices and press releases describing

[34:23] the moratorium as being temporary and

[34:24] having a fixed maximum duration

[34:27] submitted the examples where the zoning

[34:29] administrator and the Planning and

[34:30] Zoning commission took the same position

[34:33] and with respect to the commission you

[34:35] saw how they debated what the maximum

[34:37] duration should be and they settled on

[34:39] nine

[34:40] months and I've submitted the evidence

[34:42] that the Town Council also debated the

[34:45] maximum duration of the moratorium

[34:47] settling on nine months and then

[34:49] extending it by a second resolution for

[34:51] an additional three

[34:52] months and then you heard during the

[34:55] video the very specific question

[34:56] question of councilman Bodin seeking

[35:00] confirmation that Not only was the

[35:02] moratorium set to expire on December

[35:05] 19th 2021 at that point in time at their

[35:09] meeting that with three-month extension

[35:11] it would expire on March

[35:14] 19th Mr pounds confirmed that

[35:17] understanding as councilman Bodine asked

[35:20] there's no Gap and it expires on March

[35:22] 19th and Mr bound said

[35:24] correct yet after this March expiration

[35:28] end of May the new response was that the

[35:30] moratorium was still in

[35:33] effect and was in effect indefinite only

[35:36] to be terminated by the Planning and

[35:37] Zoning commission and the Town

[35:41] Council and it was kind of at this point

[35:43] I knew that we needed to appeal to the

[35:45] board of appeals as this was getting out

[35:47] of hand so I sent Mr pounds a letter

[35:50] which I'll submit as exhibit

[35:53] 34 which is my letter of June 3 20

[36:00] [Music]

[36:14] 22 so because Mr pounds represents the

[36:18] mayor in Town Council it was unclear in

[36:21] his letter that we just looked at

[36:25] whether he was also repes presenting the

[36:27] zoning administrator in the Planning and

[36:28] Zoning commission you know his letter

[36:29] did not say

[36:31] so uh

[36:33] so but he you know he referenced my

[36:36] letter of May 20th to the zoning

[36:37] administrator and commission to whom it

[36:40] was directed so it was implied that he

[36:42] represented them um so I inquired

[36:45] whether the letter of May 25th was on

[36:47] behalf of the zoning administrator and

[36:49] planning and zoning commission or

[36:51] whether I could expect a formal

[36:53] response from them that's what I really

[36:57] want I received no reply from Mr pounds

[37:00] and we received no other correspondence

[37:02] from the zoning administrator or the

[37:03] Planning and Zoning

[37:05] commission we waited a few weeks for a

[37:08] response received none that's when we

[37:11] filed our appeal to this board on June

[37:13] 24th of

[37:17] 2022 so while the Town Council would

[37:20] never have needed to pass a second

[37:22] resolution r21 d-8 which was your ex

[37:26] exhibit

[37:29] 27 to extend the moratorium for an

[37:32] additional 3 months if the moratorium

[37:34] was as Mr pounds had been arguing in his

[37:37] letter still in

[37:42] effect and then only terminated by the

[37:44] Planning and Zoning commission and the

[37:45] Town Council let's look at the specific

[37:47] language of that original

[37:55] resolution

[37:57] earlier I had made reference to this

[38:00] what I view as somewhat sloppy language

[38:02] of the resolution in my letter of May

[38:04] 20th of 22 and earlier in the preceding

[38:08] I think on the first day um and

[38:11] explained why it was

[38:14] inoperative um in my opinion this issue

[38:17] would not have occurred if a formal

[38:20] ordinance had been used rather than a

[38:21] simple

[38:22] resolution I if Mr Blitz is going to

[38:25] State his opinion we need to designate

[38:26] as an expert okay and I'll be frank I'm

[38:28] sitting here wondering and I'm going to

[38:30] have the video going forward I don't

[38:32] remember him being sworn in okay at the

[38:34] beginning and if he and if he

[38:36] represented that he was and he wasn't

[38:38] we're gonna we're going to be addressing

[38:40] that as another problem but if he's

[38:41] going to be expressing his opinion at

[38:43] this point he's gonna have to be

[38:44] designated as an expert and I I withdraw

[38:47] the opinion it's not

[38:49] critical and if you would like to swear

[38:52] me now we can do that start all over

[38:55] again with regarded The Testament no now

[38:57] I'm merely saying if you if you have if

[38:59] the board not you Mr pounds if the board

[39:02] has questions I'll I'll clearly be sworn

[39:05] again if if that if the board feels it's

[39:07] necessary I'm just so I have this right

[39:09] the opinion is withdrawn we're

[39:11] continuing

[39:16] on

[39:17] so let's go back to the

[39:24] language this moratorium is expected to

[39:26] last 9 months from the date of the

[39:28] adoption all time periods for any

[39:30] development project are hereby stayed

[39:32] until this moratorium is terminated by a

[39:34] Planning Commission and Town Council for

[39:36] any currently filed or future

[39:37] applications unless otherwise stated

[39:40] herein now if this language is meant to

[39:42] mean that the moratorium in the Town

[39:44] Council sought to pass was indefinite

[39:47] subject to the discretion of the

[39:48] Planning Commission and Town Council

[39:50] later to determine when it would be

[39:53] terminated then Not only would the rod

[39:55] and Rio and every other property owner

[39:57] in town have a very strong argument for

[39:59] an inverse condemnation form of taking

[40:02] but it would contradict all the previous

[40:05] descriptions including the first

[40:07] sentence of the this now therefore

[40:09] Clause that the moratorium was temporary

[40:12] you can see in the very top it's saying

[40:14] it's temporary I don't think the Town

[40:16] Council meant for this re their

[40:17] resolution to be indefinite but under

[40:20] the interpretation that the moratorium

[40:21] was only terminated by the Planning and

[40:23] Zoning commission and the Town Council

[40:25] the board should note that this means

[40:28] that the resolution would be attempting

[40:29] to vest the commission with a

[40:32] legislative

[40:33] function under no circumstances can a

[40:36] Town Council delegate a legislative

[40:39] function to the commission to decide

[40:42] even if jointly with the Town Council

[40:44] when a moratorium would

[40:46] end even if it could delegate regulatory

[40:49] rul making Authority that wouldn't fall

[40:52] in the the scope of ending the effect of

[40:56] a zoning

[40:57] ordinance to vest the commission with

[41:00] such an explicit legislative Authority

[41:02] would exceed the powers of a Planning

[41:04] and Zoning commission granted under the

[41:06] annotated code of Maryland section 2931

[41:09] of your zoning code and section 24513 of

[41:13] the subdivision regulations which

[41:15] describe the powers of the commission

[41:17] and none of them include legislative

[41:19] powers even the power to prepare a

[41:22] comprehensive plan or a zoning ordinance

[41:25] recommendation

[41:27] whether it's for amendments repeals

[41:31] reclassifications are only a

[41:32] recommendation to the Town Council

[41:34] they're not a legislative power that's

[41:38] to

[41:39] it they're not acting under their own

[41:41] authority to pass such

[41:47] things not only that such an

[41:50] interpretation would vest direct

[41:53] legislative authority to the

[41:55] commission which is one of the two

[41:57] parties to participate in the decision

[41:59] of whether

[42:01] legislative Act

[42:04] expires one can't argue that this kind

[42:06] of resolution delegated a regulatory

[42:09] Authority because that would violate

[42:11] section 10 code which is in your

[42:16] binder the slide of that b provides that

[42:19] agencies boards and commissions

[42:21] established by an authorizing ordinance

[42:24] may not promulgate regulations of

[42:26] General applicability remember that term

[42:29] General applicability unless that

[42:31] Authority is granted to such a body by

[42:34] an

[42:35] ordinance this gets back to the idea in

[42:38] Municipal law that I described at the

[42:39] last hearing and I believe also in the

[42:41] first hearing that something that has

[42:44] the effect of law whether it is

[42:46] modifying that effect or the

[42:48] applicability of that law such as the

[42:51] right of site plan review in this case

[42:54] or terminating such a modification

[42:57] a is when the ACT is what the law

[43:00] describes as being of general

[43:02] applicability and effect it means it

[43:04] applies as a substantive legal

[43:07] restriction on everyone in the general

[43:09] public that falls within the scope of

[43:11] that

[43:12] law so as section 102b recognizes to

[43:15] grant that regulatory power to the

[43:17] commission it requires an ordinance to

[43:19] authorize such a power it can't be

[43:21] accomplished through a

[43:25] resolution

[43:33] I mean in similar fashion the language

[43:35] in the resolution is a little bit sloppy

[43:37] in that it just avoids the power of the

[43:39] mayor to have a role in the change of

[43:42] something that's legislative in nature

[43:44] doesn't say the mayor and Town Council

[43:47] it just says the Planning and Zoning

[43:48] Commission in the Town Council I'm G

[43:50] have to here I mean because now we're

[43:52] going back to the what I originally

[43:54] stated my motion as being the hath

[43:55] truths I mean if you read it agencies

[43:58] boards and commissions in other words

[44:00] what it's saying is you guys cannot know

[44:03] promate any rules and regulations

[44:04] without an ordinance by the Town Council

[44:06] that's what it says okay so all of this

[44:09] going on and on and on about half truths

[44:11] about saying that the council can't do

[44:13] it that's untrue okay it's just you guys

[44:16] that administrative boards can't do it

[44:17] so I just want to say let's not twist

[44:20] things too much for the half truths

[44:22] thank you it's not an objection about

[44:24] evidence and it's a argument and my

[44:27] argument isn't that it's it's improper

[44:30] for the Town Council to make legislative

[44:32] judgments that's literally their job

[44:34] it's that they could not delegate that

[44:36] Authority through a resolution we're

[44:39] talking about the language of the

[44:41] resolution to the Planning and Zoning

[44:43] commission commission cannot take on

[44:46] legislative Authority and it can't take

[44:48] on regulatory Authority without it being

[44:50] done through the passage of an ordinance

[44:52] so it could not have participated in the

[44:55] termination of the

[45:02] moratorium recall also how the law

[45:05] requires the commission to complete the

[45:07] comprehensive plan review according to a

[45:10] deadline so under the interpretation

[45:13] that the rotten reel was now being given

[45:15] that the moratorium was indefinite and

[45:17] that the commission has a role in

[45:19] determining when the moratorium ends it

[45:22] would mean that they they would have the

[45:24] power to decide if and when

[45:26] they have to finish their work on the

[45:29] comprehensive

[45:32] plan I would

[45:35] suggest

[45:37] that's difficult to

[45:39] imagine as Mar as I cited the Maryland

[45:43] law makes it very explicit of what the

[45:45] deadlines

[45:48] are so it's a possible that the language

[45:51] in this sentence was attempting to

[45:52] address the time periods for

[45:54] development such as a requirement that

[45:57] the site plan once granted is good for

[45:59] one year unless it's extended that's in

[46:02] section 29025 A7 of your code that at

[46:07] least would be consistent with the idea

[46:08] that the moratorium was described as

[46:10] having a maximum duration that was

[46:12] debated and

[46:13] settled but using the

[46:16] language it's going back to

[46:18] [Music]

[46:24] it

[46:29] in the beginning of that se that second

[46:32] highlighted sentence all time periods

[46:33] for the development project are hereby

[46:35] state so there are other deadlines that

[46:38] happen under a site plan review process

[46:42] once it gets going so it could have been

[46:44] referring to

[46:45] that I don't

[46:48] know so let's go to slide

[46:54] 12

[46:57] so you already have this in evidence

[46:58] this is exhibit

[47:01] 27 and I'm just

[47:03] ref referring you to the whereas Clause

[47:06] where they say it's a temporary

[47:09] moratorium they also determined that

[47:12] they there was a need to extend

[47:15] it okay so if you if you are extending

[47:19] the moratorium and you say there was a

[47:21] need to extend it you're implied that it

[47:22] was the first 9mon moratorium was going

[47:25] to

[47:27] expire again at the bottom that it's

[47:34] needed so what's clear to me and I think

[47:37] should be clear to you is that when the

[47:39] Town Council was extending that

[47:41] moratorium they believe they needed to

[47:43] do so and that the first resolution's

[47:46] nine-month duration was going to expire

[47:48] in

[47:50] December they wouldn't have needed to do

[47:52] an extension if they had an indefinite

[47:54] power to have the moratorium last as

[47:57] long as they decided it should

[48:11] last in the original

[48:14] resolution attempting to impose the

[48:16] moratorium the Town Council had said

[48:17] that they were acting on the

[48:18] recommendation of the

[48:20] commission

[48:21] and though they did change the

[48:24] recommendation from

[48:26] uh one year to nine months I

[48:28] guess

[48:30] um and the record of the commission's

[48:32] resolutions clearly indicate they

[48:34] believe that the moratorium had a

[48:36] defined

[48:38] duration because they debated whether it

[48:40] would be nine months 12 months whichever

[48:43] is earlier uh for the Implement that is

[48:48] under the Planning and Zoning

[48:49] commission's resolution they said that

[48:52] it was the earlier of the completion of

[48:54] the comprehensive plan and the

[48:56] implementing ordinances or 12

[48:59] months so I can't explain the in

[49:01] congruity between the mountain of

[49:03] evidence that the moratorium would have

[49:05] had an outer limit on its duration and

[49:08] this language in the resolution but I

[49:10] think that given that it is merely a

[49:12] resolution and not an ordinance that the

[49:14] board should consider whether is merely

[49:18] sloppy language that failed to fulfill

[49:20] the true intent of the Town Council when

[49:21] it passed those two

[49:23] resolutions um

[49:29] so by June 3rd of 22

[49:34] 2022 this is after the expiration of the

[49:38] moratorium the purported moratorium is

[49:40] still being used to justify the

[49:42] continued denial of the rod and reels

[49:44] site

[49:46] plans and the zoning administrator and

[49:49] this Planning and Zoning commission are

[49:50] continuing to meet their obligations

[49:52] under the zoning code and process those

[49:54] site plans

[49:57] perhaps one of the best explanations for

[49:59] this continued

[50:01] refusal is that while the Town Council

[50:03] had passed the comprehensive plan at

[50:05] this

[50:06] point which became effective in May 11th

[50:10] of 22 the commission wasn't even close

[50:12] to finishing the implementing

[50:16] ordinances those implementing ordinances

[50:18] are what would be necessary because

[50:21] those are the zoning code Provisions

[50:23] that would the commission has to apply

[50:26] during the site review site plan

[50:31] review I mean I don't want to make this

[50:34] all about the rod and reel this was

[50:35] necessary for all other property owners

[50:38] who in town who would want to file a

[50:41] category one site plan they were all

[50:43] prohibited from doing it

[50:46] moratorium was directed at the rod and

[50:48] reel applications but is certainly

[50:50] applied everywhere to everybody that

[50:51] wanted to file a site one a category one

[50:53] site plan so it was still being extended

[50:56] even past its March 19th

[51:11] date

[51:15] often and and I think you can take

[51:18] judicial notice of the fact that the

[51:20] town did it in the past municipalities

[51:23] will pass one implementing zoning

[51:26] ordinance to implement the changes that

[51:28] are made in a comprehensive plan it has

[51:31] the

[51:32] advantage of having both the

[51:34] commission's reg recommendations to the

[51:36] Town Council but also the town council's

[51:38] deliberations being kind of integrated

[51:41] so that all of the things can be

[51:43] evaluated together

[51:46] um but this wasn't being done in this

[51:49] case

[51:51] um

[51:53] and from the beginning even before the

[51:56] commission held their Republic hearing

[51:58] and adopted their comprehensive

[52:00] plan and certainly before the Town

[52:02] Council had adopted it there were

[52:04] motions before the commission already to

[52:06] offer peacemeal legislation in order to

[52:09] specifically Target the rotten re site

[52:10] plans so this is them offering Rec

[52:14] ordinances to Target the rod and re site

[52:17] plans even before they had passed their

[52:19] comprehensive

[52:24] plan an example of this was in the

[52:26] minutes of the commission for Fe

[52:28] February 15 24 which you already have as

[52:31] exhibit 15 which was the same meeting

[52:34] where the commission considered its

[52:35] motion to recommend the

[52:38] moratorium on page two there was a

[52:40] motion to set a date on a draft zoning

[52:42] text amendments to limit the height of

[52:43] all buildings within all districts

[52:46] within the town to 35 fet and another

[52:50] motion to remove residential allocations

[52:52] in the town center and the marina areas

[52:56] where three of the rotten re site plan

[52:58] applications are located three of the

[53:01] five those were Pro

[53:04] proposals to change the zoning even even

[53:07] before the commission had finished its

[53:08] comprehensive

[53:10] plan and well before the Town Council

[53:14] adopted the plan which wouldn't have

[53:17] happen for another 14

[53:19] months while that height limitation

[53:21] motion was deferred until their March

[53:23] meeting it was not on their agenda for

[53:25] that March meeting and was not discussed

[53:28] as you can see in the meeting minutes of

[53:30] March 24th 2021 which I'll offer is

[53:33] exhibit

[53:35] 35 oh fine the here here's ultimately

[53:39] where we're going on this you know

[53:40] basically there are two questions in

[53:42] which this board is going to be asked to

[53:44] answer okay those are the two questions

[53:46] in which was outlined at the beginning

[53:47] of this meeting tonight now we're

[53:49] getting to the point of hearing uh I

[53:52] guess it's testimony depending on

[53:53] whether Mr Blitz has actually been sworn

[53:55] and that Roden reel was in essence

[53:57] picked on by the Planning Commission

[53:59] with regard to its review or that that

[54:02] in essence it was targeting these

[54:03] projects which one way the other I'm not

[54:06] sure how that in essence uh is in any

[54:11] way relevant to ultimately the ultimate

[54:12] question which you're going to be asked

[54:14] is addressing those two questions I mean

[54:16] whether the Planning Commission picked

[54:17] on them whether they were mad at him or

[54:19] anything else you know that's completely

[54:22] separate in this thing from where

[54:24] complet are relevant from where uh uh

[54:27] you know where we are tonight and

[54:28] ultimately question is going to be you

[54:31] know indeed did they present these

[54:33] applications which I have not heard any

[54:35] testimony which I hope we hear something

[54:38] that indeed these five applications went

[54:39] before the Planning Commission they were

[54:41] reviewed by the Planning Commission and

[54:43] that Planning Commission in essence made

[54:45] made those decisions uh with regard to

[54:47] the these applications that were going

[54:49] before I hope we're going to be you know

[54:51] heading down that road because if indeed

[54:55] they chose to try to do this whole

[54:57] process rather than presenting to the

[54:59] Planning Commission for their review is

[55:02] what they should have done then this

[55:04] whole proceeding is really becoming

[55:05] irrelevant because that's what they

[55:06] should have

[55:09] done um you very briefly be heard

[55:12] yes there's going to be a lot of

[55:14] evidence coming up to demonstrate that

[55:17] the way the town's actions were done was

[55:19] arbitrary and capricious and part of

[55:22] that is

[55:24] directing a municipal ordinance that's

[55:28] in effect for

[55:29] everybody directing it at the rod and

[55:32] reel to limit it you saw in the

[55:34] resolution

[55:35] itself of the Planning and Zoning

[55:38] commission they said the need for this

[55:41] resolution were the five site plans that

[55:43] had recently been filed it was also

[55:45] included in the Town Council resolution

[55:48] there I don't think there's any doubt

[55:49] that these were targeted at the rotten

[55:54] reel

[55:56] but furthermore even if e that's that's

[55:59] that's S one is making a big assumption

[56:01] and number two is you know even if that

[56:03] is true if if they were targeting the

[56:05] broad and real that's all fine but that

[56:07] doesn't go to the two questions that's

[56:08] going to be ultimately asked by the

[56:13] uh all right thank you one

[56:23] moment

[56:30] uh the objection is overruled but we

[56:32] will take your advice under

[56:34] consideration you Mr

[56:39] blitz so I believe I I just left off at

[56:42] uh supplying you the minutes which was

[56:44] exhibit 35 the minutes of the Planning

[56:47] and Zoning Commission of March 24

[56:53] 2021

[56:57] what's also informative about the March

[56:59] 24th 2021

[57:01] minutes is that the chairman of the

[57:03] commission as you can see

[57:05] here believed that the moror moratorium

[57:08] was set to expire in nine months and

[57:11] chairman Brown stated that the

[57:12] moratorium being passed by the Town

[57:14] Council and to expire by the end of the

[57:16] year the commission needs to devote all

[57:18] its time to the comprehensive

[57:22] plan so after the Town Council adopted

[57:24] the commission's recommendation and

[57:28] made and recom I apologize adopted the

[57:32] commission's recommended comprehensive

[57:33] plan and it became effective in May of

[57:37] 2022 instead of one single implementing

[57:39] ordinance the commission made a series

[57:41] of recommendations over time and as

[57:43] you'll see the Town Council then took up

[57:45] these separate ordinances over a period

[57:47] of 18 months and they still have not

[57:50] finished

[57:52] them so the first major group of

[57:54] implementing ordinances came with the

[57:56] commission's recommendation of a new

[57:58] zoning map and a series of text

[58:00] amendments at its June uh I apologize

[58:03] July 27th 2022 meeting for which it held

[58:07] a public

[58:09] hearing and that is I will submit 30

[58:14] exhibit 36 which are the minutes of the

[58:15] commission of July 27th

[58:23] 2022

[58:39] so chair greengold stated in this public

[58:43] hearing was called to receive comments

[58:45] regarding the revised draft zoning map

[58:48] and the draft supporting text amendments

[58:50] that are necessary to implement the

[58:52] recommendations of the newly adopted

[58:54] comprehens a plan and note that this was

[58:57] occurring after the continued refusal of

[58:59] the zoning administrator and the

[59:01] Planning and Zoning commission to

[59:03] process the site plans that had been

[59:04] filed on

[59:05] January

[59:08] 21st I think of of

[59:13] 20121 and after the nominal expiration

[59:15] of the moratorium in March 19th of

[59:23] 2022 if it had not been for the

[59:25] moratorium which I believe we've

[59:27] established was invalid from the outset

[59:30] objection you know I think again this

[59:33] has been going on and on about Mr Blitz

[59:35] stating his opinion moratorium was valid

[59:37] okay it was adopted by the Town Council

[59:39] it was a proper resolution that has a

[59:41] proper document it is 100% adopted and I

[59:44] can appreciate the fact that he needs it

[59:47] to be invalid to make to try to you know

[59:51] make his case at all but the fact that

[59:53] he's going on and on St that is

[59:55] completely unro so I'm keep objecting

[59:58] that that one will be sustained sounded

[1:00:00] an awful lot like an opinion we haven't

[1:00:01] established anything yet we're hearing

[1:00:02] you present evidence right please

[1:00:11] [Music]

[1:00:22] continue so even after the public

[1:00:25] hearing on the proposed new map and the

[1:00:27] text amendments in July the August 4th

[1:00:29] minutes show that the commission was

[1:00:31] still considering changes to the zoning

[1:00:33] map and the text amendments discussed in

[1:00:35] July and not finalized its Town Council

[1:00:38] recommendation I'll submit exhibit 37

[1:00:41] which are the minutes of the commission

[1:00:42] of August 4th

[1:00:49] 2022 sorry Mr buz what was that

[1:00:53] again

[1:00:55] of the

[1:01:16] Z submit the minutes of the Town Council

[1:01:20] of November 7th

[1:01:23] 2022 is exhibit

[1:01:26] 38 to show that the Town Council did not

[1:01:29] consider

[1:01:34] them first implenting ordinance of the

[1:01:40] [Music]

[1:01:42] um text amendments until that December

[1:01:45] of

[1:01:52] 2022 so this is where they they

[1:01:54] introduced the

[1:01:55] ordinance the Town Council public

[1:01:58] hearing was

[1:02:09] set then I'll submit the minutes of the

[1:02:12] Town Council public hearing and town

[1:02:14] council meeting of November

[1:02:16] 17th 20122 is

[1:02:19] exhibit

[1:02:23] 39

[1:02:32] [Music]

[1:02:42] so this shows that eight months after

[1:02:45] the moratorium had ended in March of

[1:02:47] 2022 and despite the town zoning

[1:02:50] administrator and planning and zoning

[1:02:51] commission continuing to fail to proc

[1:02:54] process those site plans the Town

[1:02:56] Council was having its first hearings in

[1:02:58] considering the first two implementing

[1:03:01] ordinances after the hearings and some

[1:03:03] motions to amend the Town Council

[1:03:05] adopted those

[1:03:06] ordinances those were ordinances

[1:03:09] 02212 and

[1:03:12] 02213 which were the first implementing

[1:03:16] ordinances in this

[1:03:20] process and as you can see on page seven

[1:03:23] of that exhibit which is Page four of

[1:03:25] the Town council's

[1:03:27] minutes of November 17

[1:03:31] 2022 the Town Council considered and

[1:03:34] passed ordinance

[1:03:37] 02213 but even on this date they were

[1:03:39] doing so the Town Council was being

[1:03:41] advised by the

[1:03:42] commission that it was continuing its

[1:03:44] work on more implementing

[1:03:47] ordinances so I'll to demonstrate that

[1:03:50] point I'll submit exhibit 40 which is

[1:03:53] the report of chair greengold of the

[1:03:56] Planning and Zoning commission to the

[1:03:57] mayor and Town Council dated November 17

[1:04:15] [Music]

[1:04:23] 2022

[1:04:26] so as you can see by this November

[1:04:29] 17th

[1:04:31] report to the mayor and Town

[1:04:35] Council this demonstrates that the

[1:04:37] commission was not finished proposing

[1:04:38] its implementing

[1:04:39] ordinances uh to implement the

[1:04:41] comprehensive plan it was just beginning

[1:04:43] the planning process of an element that

[1:04:45] should have been included in the

[1:04:47] comprehensive plan in the first instance

[1:04:49] which is the critical area plan for the

[1:04:53] town

[1:04:56] as you can see at the but end there the

[1:04:59] commission was just beginning to address

[1:05:01] the ches be B Bay's uh ches Beach's

[1:05:05] critical area local area

[1:05:07] program which for years was done

[1:05:09] concurrently with the with and as part

[1:05:12] of the comprehensive

[1:05:14] plan um and you should recall that all

[1:05:18] five of the Roden reel site

[1:05:20] plans are critical area plans

[1:05:27] um to understand

[1:05:30] why they really should have been done

[1:05:32] part as part of the comprehensive plan

[1:05:36] process um you should understand that

[1:05:39] the town's critical area program like

[1:05:41] all Maryland municipalities have one

[1:05:44] that are in the critical area are

[1:05:46] integrated into the zoning

[1:05:49] ordinance it does that through overlay

[1:05:52] zones an Ida which is means intensely

[1:05:55] developed area limited development areas

[1:05:59] I'm you know again you know now Mr uh

[1:06:02] Blitz is giving his opinions uh based

[1:06:05] upon what he thinks the Planning

[1:06:06] Commission should have done and how they

[1:06:08] should have done his job know that's up

[1:06:10] to the Planning Commission and their

[1:06:11] discretion so Mr Blitz can't sit here

[1:06:13] and give his opinion as to what he

[1:06:16] thinks should have been done uh the

[1:06:18] Planning Commission has their own

[1:06:20] discretion they had their own hearings

[1:06:21] many public hearings uh with regard to

[1:06:25] uh you know what what would happen with

[1:06:26] regard to the ultimate comprehensive

[1:06:28] plan so Mr Blitz giving his opinion as

[1:06:31] to what they should have done now is is

[1:06:34] Way Beyond he can possibly testify to

[1:06:36] unless he's going to now testify as a

[1:06:38] possible land planner expert in which he

[1:06:42] wants to qualify himself as that then I

[1:06:43] can examine him on that

[1:06:53] too

[1:07:08] uh the objection is sustained with

[1:07:10] regard if I could be heard on the

[1:07:11] objections before you rule

[1:07:14] themad I don't care about the

[1:07:16] opinion that's not the point of this the

[1:07:19] point is that these are five critical

[1:07:22] area sight plans they hadn't completed

[1:07:24] them and I'm trying to show you how even

[1:07:28] though they had passed the comprehensive

[1:07:29] plan they had not passed the comp the

[1:07:32] critical area amendments that would be

[1:07:34] necessary for that site plan review and

[1:07:37] I'm describing at this point something

[1:07:40] that you can take judicial notice of

[1:07:42] which is your own zoning code which

[1:07:45] describes the overlay zones and how the

[1:07:48] and I'm going to demonstrate how those

[1:07:50] are related to the questions that are

[1:07:53] going to be be posed in a site plan and

[1:07:56] so it's not so much about whether they I

[1:07:59] agree that commission didn't have to

[1:08:01] pass it as part of the comprehensive

[1:08:04] plan but but the fact that they didn't

[1:08:07] and are just now doing it 18 months

[1:08:10] after the

[1:08:13] moratorium means we were still being

[1:08:16] held up from having those things done

[1:08:20] because those are also going to have to

[1:08:22] be implement the those standards are

[1:08:25] going to have to be applied in any site

[1:08:26] plan review so the question is I'm just

[1:08:31] expressing the fact that you've got a

[1:08:33] critical area program that at this point

[1:08:36] they're just starting to get to and I'm

[1:08:38] explaining why that's necessary for site

[1:08:40] plan

[1:08:41] [Music]

[1:08:47] review Mr Bliss I my recollection or

[1:08:50] understanding is that the objection was

[1:08:52] sustained only as to your opinions that

[1:08:56] you expressed that it should be done at

[1:08:59] the same

[1:09:01] time is that the opinion you were

[1:09:04] suggesting that I made because I don't

[1:09:06] know what opinion I offered in that

[1:09:08] context but I I said that most

[1:09:11] municipalities do it at the same time I

[1:09:13] don't know that that's necessarily an

[1:09:15] opinion I think but it's me explaining

[1:09:18] what

[1:09:18] I see in most experiences I think we've

[1:09:22] done enough and I think uh this board

[1:09:24] could probably do with a f minute

[1:09:26] break let's pick this up in

[1:09:52] five

[1:14:18] Mr Blitz can I ask you to try and uh

[1:14:21] speak

[1:14:22] up I I know you're having issues with

[1:14:24] your voice I'm having issues with my

[1:14:28] ears the problem is this broadcast is

[1:14:30] just for them it doesn't

[1:14:35] broadcas yeah all right everybody uh we

[1:14:39] will resume with uh Mr blitz's

[1:14:44] presentation so we were at the stage

[1:14:46] where the commission was beginning to

[1:14:48] address the comprehensive I mean the uh

[1:14:51] chese B critical area program

[1:14:55] um and I was explaining how that's

[1:14:59] integrated into your zoning code so

[1:15:01] you've got overlay zones which are

[1:15:03] intensely developed limited development

[1:15:05] areas and resource conservation areas um

[1:15:08] they're buffers buffer exemption or

[1:15:11] modification zones and habitat

[1:15:13] protection areas uh and a few other

[1:15:15] things that are implemented through that

[1:15:17] zoning

[1:15:18] ordinance um and just like the

[1:15:20] comprehensive plan provides the policy

[1:15:24] um for to support the zoning

[1:15:27] ordinance the local critical area

[1:15:30] program provides a lot of the policy

[1:15:32] guidance to implement the the specific

[1:15:36] provisions of your zoning code that

[1:15:38] apply to the critical

[1:15:41] area so as you can imagine there's a a

[1:15:43] big overlap between

[1:15:47] the base zoning that a commission needs

[1:15:50] to consider as well as the rec

[1:15:53] recommendations it's going to make with

[1:15:54] respect to the changes to the critical

[1:15:57] area

[1:16:02] program in a in essence the the critical

[1:16:05] area of local program is effectively the

[1:16:08] comprehensive plan for those aspects of

[1:16:10] the zoning ordinance that are related to

[1:16:12] the critical

[1:16:14] area

[1:16:16] um and those implementing ordinances

[1:16:19] once incorporated into the town's zoning

[1:16:22] ordinance would then be applied

[1:16:23] to the rod re site plans so while

[1:16:27] technically the Town Council had passed

[1:16:29] the comprehensive plan and it became

[1:16:31] effective on May 11th of

[1:16:34] 2022 which was in your previous exhibit

[1:16:37] 31 um missing from that were the

[1:16:40] critical area amendments which would be

[1:16:42] relevant to the rod and re site

[1:16:45] plans and so at this point in November

[1:16:49] 2022 the Town Council is just being

[1:16:51] advised by the chair of the commission

[1:16:54] that they were going to start taking

[1:16:55] those up over the next few

[1:17:01] months and before we move on to the

[1:17:04] continuation of the implementing

[1:17:06] ordinances I want to go back to exhibit

[1:17:09] 39 for a minute to demonstrate a detail

[1:17:11] of the process that's important for the

[1:17:14] board to consider in this

[1:17:20] case not

[1:17:22] advancing

[1:17:45] want me to run through

[1:17:52] them oh yeah okay it's working so let me

[1:18:02] go sure I don't go too far

[1:18:04] here okay so this is where we left

[1:18:12] off so this is on page one and two of

[1:18:15] the minutes of the November 17th hearing

[1:18:17] minutes the Town

[1:18:19] Council which was that first

[1:18:21] implementing ordinance and as you can

[1:18:23] see I provided a letter that was

[1:18:24] addressing the proposed definition of

[1:18:26] the maritime district and the

[1:18:28] elimination of a bullet

[1:18:30] point and I'll offer that as exhibit 41

[1:18:34] which is my letter of November 17

[1:18:37] 2022 to the mayor in Town

[1:18:51] Council

[1:19:04] this is the relevant

[1:19:06] portion of that

[1:19:09] letter and it shows that I was reminding

[1:19:12] the Town Council of the consistency

[1:19:13] requirement that I had previously

[1:19:15] described to you between the requirement

[1:19:18] that these zoning ordinances be

[1:19:20] consistent with the comprehensive plan

[1:19:23] and to be implementations of a

[1:19:25] comprehensive plan uh they're supposed

[1:19:27] to be consistent um once it's adopted by

[1:19:30] the Town

[1:19:35] Council on page two of my

[1:19:40] letter I pointed out that the first

[1:19:44] bullet point of the maritime commercial

[1:19:47] MC Zone included four bullet points in

[1:19:49] the comprehensive plan to describe the

[1:19:52] purpose of the zone and two of the five

[1:19:55] projects for which the rod and reel

[1:19:56] filed site plan applications are

[1:20:00] located within that MC

[1:20:03] Zone and the first bullet point of the

[1:20:05] purposes Clause of the comprehensive

[1:20:08] plan was quote

[1:20:09] promoting the diversity of Maritime and

[1:20:12] water related commercial uses and

[1:20:14] intensities that have long defined the

[1:20:17] town's historic

[1:20:21] Waterfront my letter then pointed out

[1:20:24] that ordinance

[1:20:27] 01222 that was the subject of the public

[1:20:29] hearing um and the town was then

[1:20:31] considering for passage

[1:20:34] um had that first bullet point removed

[1:20:38] from the purposes section of that

[1:20:41] zone my letter relayed the fact that the

[1:20:43] Planning and Zoning commission took a

[1:20:45] vote to remove that bullet point not

[1:20:48] withstanding that very same bullet point

[1:20:51] was one of the four

[1:20:53] describing the purposes of the MC Zone

[1:20:56] and that was part of the comprehensive

[1:20:57] plan now the reason this is important is

[1:21:01] that the commission was yet

[1:21:04] again

[1:21:05] targeting the effect of what they were

[1:21:08] doing at the rod and re site plan

[1:21:10] applications by removing an important

[1:21:12] bullet point to describe the Zone

[1:21:16] despite it being an explicit

[1:21:18] contradiction to their own recommended

[1:21:20] comprehensive plan the OB point because

[1:21:23] staying in his opinion as to what the

[1:21:24] board may or may not have been thinking

[1:21:26] or what may may have been doing he wants

[1:21:28] to qualifies himself as an expert on

[1:21:30] that that's fine but he hasn't he's just

[1:21:32] stting an opinion as to what he thinks

[1:21:34] the Planning Commission was thinking and

[1:21:36] obviously he's not qualified to do that

[1:21:38] that's not the kind of opinion you can

[1:21:39] object to you don't need an expert for

[1:21:41] that I'm asking the board to join me in

[1:21:43] an join me in an inference and that I

[1:21:46] can do all day long as long as the board

[1:21:49] wants to hear it um so my point is

[1:21:55] that there was an explicit

[1:22:00] contradiction

[1:22:04] and I'll I'll also make the point that

[1:22:08] the MC

[1:22:09] Zone which you're going to see when I

[1:22:12] submit the next

[1:22:15] exhibit basically is just the rod and

[1:22:17] real properties there's one other

[1:22:20] property but it's it's most just the rod

[1:22:23] and re

[1:22:24] properties so that's what I

[1:22:27] mean by what the inference that you can

[1:22:29] draw you don't have to draw it I'm not

[1:22:32] ask demanding you draw it I'm saying

[1:22:34] that it's a it's an inference that you

[1:22:36] could

[1:22:37] make they were removing a bullet point

[1:22:41] because it described the nature of that

[1:22:44] zone as the historic intensities which

[1:22:47] is pretty much the rod and reel

[1:22:50] properties

[1:22:51] and that it was a contradiction to the

[1:22:54] comprehensive plan that had just been

[1:22:57] passed um the the objection is um

[1:23:01] overruled for the moment please

[1:23:14] continue

[1:23:17] so this is just the last paragraph I

[1:23:19] believe of that letter where you can see

[1:23:22] that I'm asking that that bullet point

[1:23:28] be added back into the implementing

[1:23:30] ordinance by an amendment like Town

[1:23:33] Council and now I'll offer exhibit 42

[1:23:36] which is a combination of three

[1:23:38] documents all demonstrating the points

[1:23:39] that I've raised here page one is the

[1:23:42] relevant page 67 of the comprehensive

[1:23:45] plan that was passed on April of 22

[1:23:49] showing the Four bullet

[1:23:51] points that Define the purposes of the

[1:23:53] MC Zone page two is the proposed land

[1:23:56] use map on page 58 of the comprehensive

[1:23:59] plan which shows the limits of the MC

[1:24:01] Zone and then there is the March 23 2021

[1:24:05] minutes which

[1:24:08] show the vote to take out that

[1:24:21] buet

[1:24:37] so this is from page three of the March

[1:24:40] 23 21 2021 minutes of the commission and

[1:24:46] there was an explicit motion made before

[1:24:48] the commission to remove the first

[1:24:49] bullet point that motion passed

[1:25:15] next I'm handing out to the

[1:25:19] board section 290

[1:25:51] f

[1:26:00] [Music]

[1:26:13] so in subsection

[1:26:18] L on page two you can see that Town

[1:26:21] Council did not amend the zoning

[1:26:22] ordinance to to add that bullet point

[1:26:25] back in uh so now the current Zoning for

[1:26:28] the ches be Beach is that as I described

[1:26:32] in the purposes of the maritime

[1:26:33] commercial district is now inconsistent

[1:26:36] with the comprehensive

[1:26:44] plan I think you can draw the

[1:26:51] inference sustain

[1:26:55] continue I'm you're oh sorry

[1:26:59] um I assume the can you say the reason

[1:27:01] for the objection I mean again uh you

[1:27:04] know during during his if this is truly

[1:27:07] testimony that he's giving you know

[1:27:09] asking you to draw you know whatever

[1:27:11] inference you can draw is up to you

[1:27:13] that's up to decision with regard to

[1:27:14] making it if he wants to make some type

[1:27:16] of argument at closing or whatever he

[1:27:18] can make suggestions but right now he's

[1:27:21] telling you without being an expert or

[1:27:23] anything like that the inference he

[1:27:25] thinks you should be making uh with

[1:27:28] regard to something that in essence the

[1:27:30] Planning Commission did or didn't do or

[1:27:33] whether they were fair or unfair to the

[1:27:35] you know rod and reel or the

[1:27:37] applications or somehow you know again

[1:27:41] you know asking you to put yourself in

[1:27:44] this in the shoes of the Planning

[1:27:45] Commission that indeed they after all of

[1:27:48] the mass number of hearings that they

[1:27:50] had they could make decisions on their

[1:27:52] own so the idea that he's at asking you

[1:27:56] directing you to draw that inference is

[1:27:59] is very much improper the objection with

[1:28:01] regard to the language directing the

[1:28:03] board to draw an inference is sustained

[1:28:05] please continue content of your

[1:28:07] presentation I could just be heard just

[1:28:09] for the

[1:28:10] record I this is not a trial where you

[1:28:14] put on evidence and then make legal

[1:28:16] arguments I'm putting on the

[1:28:18] presentation of an appeal case that has

[1:28:20] a lot of legal

[1:28:22] issues that you need to to

[1:28:25] resolve I'm pointing out the areas of

[1:28:27] the law I'm pointing out the areas of

[1:28:29] the ordinance that is relevant as a fact

[1:28:32] and I'm asking you to draw inferences

[1:28:34] based upon that because that's our case

[1:28:37] is in part you making judgments about

[1:28:40] whether the actions of the Planning and

[1:28:42] Zoning commission and the zoning

[1:28:43] administrator were arbitrary comous and

[1:28:47] violated the town's zoning law as well

[1:28:49] as Maryland

[1:28:50] law I can ask you during the

[1:28:54] presentation direct you to the inference

[1:28:56] that I'm asking you to make doesn't mean

[1:28:58] you have to make it you don't but I get

[1:29:01] to make those arguments I'm making all

[1:29:03] kinds of legal arguments during the

[1:29:05] context of this presentation this is an

[1:29:07] administrative proceeding that's the way

[1:29:10] they

[1:29:11] go this is a an appeal alleging error I

[1:29:15] get to I get to make the points about

[1:29:17] what I believe was the basis for the

[1:29:20] error so when I ask you to draw an

[1:29:22] inference I'm really just saying follow

[1:29:24] along my

[1:29:28] argument if you'd rather me St say say

[1:29:31] that phrase that way follow me along in

[1:29:33] my argument it sounds kind of clunky

[1:29:50] but

[1:30:02] uh the objection is still sustained

[1:30:03] please

[1:30:20] continue so the the commission and the

[1:30:23] Town Council have continued to recommend

[1:30:25] and

[1:30:28] introduce and pass implementing

[1:30:30] ordinances even into

[1:30:32] 2023 in March the Town Council took the

[1:30:35] interesting steps of passing resolution

[1:30:37] R

[1:30:41] 23-2 I'm going to offer the public

[1:30:43] hearing minutes and minutes of the Town

[1:30:45] Council of March 16 2023 is exhibit

[1:30:50] 43

[1:31:05] Mr Blitz I

[1:31:07] apologize

[1:31:09] uh that was number

[1:31:12] 43 minutes of the Town Council it well

[1:31:15] it's the public hearing minutes and the

[1:31:17] minutes of the Town Council of March 16

[1:31:20] 2023

[1:31:22] 2023

[1:31:25] yes as you can see on page eight a

[1:31:28] motion was introduced at the same

[1:31:31] meeting at which it was considered and

[1:31:33] passed and therefore did not follow the

[1:31:35] requirements for legislative enactment

[1:31:37] set forth in the charter and Maryland

[1:31:40] law that was resolution

[1:31:42] r232 reporting to lift the

[1:31:49] moratorium as you can see by looking at

[1:31:52] the first two pages of this

[1:31:56] exhibit which are the public hearing

[1:31:59] minutes there's no record of a public

[1:32:01] hearing on this

[1:32:04] resolution and as we previously reviewed

[1:32:07] with respect to the original resolution

[1:32:09] r213 and

[1:32:11] r218 they did not attempt at all to

[1:32:14] follow the requirements for changing the

[1:32:16] effect and

[1:32:18] applicability of a provision that

[1:32:19] changes the effect for applicability of

[1:32:22] a zoning code

[1:32:24] provision on this one they didn't even

[1:32:26] hold a public hearing on the topic and

[1:32:29] so so did not even allow public comment

[1:32:31] on it before its

[1:32:35] consideration I'll next submit exhibit

[1:32:38] 44 which is the resolution itself r

[1:32:50] 23-2

[1:33:05] so this is a copy of the resolution

[1:33:09] r232 first the board should note that in

[1:33:12] the second where as Clause the

[1:33:13] resolution improperly recites what the

[1:33:15] condition for ending the moratorium was

[1:33:17] to be as it only references the

[1:33:19] completion of the comprehensive plan

[1:33:21] remember the moratorium was to allow the

[1:33:24] completion of the comprehensive plan and

[1:33:26] the implementing

[1:33:28] ordinances there was apparently some

[1:33:30] discussion of the need for implementing

[1:33:33] ordinances at the Town council's work

[1:33:35] session the week before on March 7th

[1:33:38] 2023 and I'll submit is exhibit 45 the

[1:33:42] minutes of the Town Council

[1:33:43] informational work session of March 7th

[1:33:50] 2023

[1:34:10] as you can see on page one of those

[1:34:12] minutes the coming moratorium resolution

[1:34:14] r232 was discussed and at the end of

[1:34:17] that paragraph the minutes showed that

[1:34:20] there was a discussion of whether the

[1:34:21] zone text amendments and cleanup

[1:34:23] amendments would be implemented in time

[1:34:25] for the resolution's

[1:34:27] approval so at least the ideas of the

[1:34:29] implementing ordinances being necessary

[1:34:31] was subject to

[1:34:33] discussion but back to the resolution

[1:34:38] itself the resolution makes no mention

[1:34:41] of any consent or resolution of the

[1:34:43] Planning and Zoning commission to

[1:34:45] terminate the

[1:34:46] moratorium which was as you will

[1:34:50] recall was what the town attorney was

[1:34:52] saying in his May 25th 2021 letter was

[1:34:55] necessary for the moratorium to be

[1:34:59] terminated this is because there was no

[1:35:01] consideration by the Planning and Zoning

[1:35:02] Commission of a termination of the

[1:35:05] moratorium the commission never

[1:35:07] considered it as far as their minutes

[1:35:09] disclose they certainly held no public

[1:35:11] hearings about ending the moratorium nor

[1:35:13] do I find any evidence that they passed

[1:35:16] any resolution recommending or

[1:35:17] authorizing it I'll submit exhibit 46

[1:35:22] which is a minutes package for the

[1:35:24] Planning and Zoning commission for the

[1:35:26] meetings of January 25th 2023 February

[1:35:29] 22nd 2023 and March of

[1:35:33] 2023 which were the three months prior

[1:35:36] to this resolution being considered by

[1:35:38] the Town Council merely to demonstrate

[1:35:41] that in no time did the Planning and

[1:35:43] Zoning commission hold a hearing make a

[1:35:45] motion or consider the termination of

[1:35:47] the

[1:35:50] moratorium and that's exhibit

[1:35:55] 46 of course I'm to object on that

[1:35:58] because you know again we're dealing

[1:36:01] with the half

[1:36:02] truths um and he just said that the

[1:36:06] Planning Commission didn't uh uh uh

[1:36:09] consent to the uh termination of the

[1:36:12] moratorium Planning Commission doesn't

[1:36:14] have that Authority Town Council has

[1:36:16] that Authority the Town Council adopted

[1:36:18] the moratory not the Planning Commission

[1:36:20] so we' you know we' spent the last 10

[1:36:22] minutes talking about what the whe what

[1:36:24] the Planning Commission did or did not

[1:36:26] do with regard to the moratorium the

[1:36:28] Town Council did that not the not the

[1:36:30] Planning Commission so you know it's

[1:36:33] it's you know and again we're dealing

[1:36:36] with these these half truths that are

[1:36:38] being you know asserted and then he

[1:36:39] comes back and you know makes the

[1:36:41] statement oh the Planning Commission

[1:36:42] didn't consent to the uh lifting of the

[1:36:45] moratorium it's not their resolution nor

[1:36:47] they have the authority nor do they have

[1:36:49] anything to do with it so

[1:36:52] um just want to make that comment Mr Mr

[1:36:55] chair if I could he be heard I'm going

[1:36:57] to object at this point to the use of

[1:37:00] objections for argument because I sub my

[1:37:04] objection is a motion to strike his

[1:37:06] entire testimony for the last 15

[1:37:10] minutes you made a motion an objection

[1:37:13] to an exhibit I offered which is three

[1:37:15] minutes of a Planning and Zoning

[1:37:18] Commission on three different dates all

[1:37:20] government documents or the official

[1:37:22] record of that committee offered to

[1:37:25] demonstrate that they didn't consider

[1:37:27] something it's relevant because your

[1:37:29] letter said that the town that the

[1:37:31] Planning and Zoning commission had to

[1:37:33] participate in that

[1:37:35] decision that's already an Evidence and

[1:37:38] so therefore let me finish

[1:37:41] therefore I don't see how you can object

[1:37:44] to the admission of the minutes of a

[1:37:47] commission to prove that they didn't do

[1:37:50] something

[1:37:51] but what's happening here is that Mr

[1:37:54] pounds is using objections when I

[1:37:57] introduce minutes to make

[1:37:59] counterarguments in the middle of my

[1:38:00] case and this is a lot like the first

[1:38:02] hearing where half the time we're being

[1:38:06] distracted by what I view is argument

[1:38:11] well then first of all we can't go down

[1:38:13] the road of half truths and number two

[1:38:15] is you know that the fact that I think

[1:38:18] we all passed government 101

[1:38:22] uh and that you know we all know that it

[1:38:25] is indeed the legislative body that

[1:38:27] makes legislative decisions I mean now

[1:38:30] now the fact that Mr Blitz is coming

[1:38:32] back and saying oh well the Planning

[1:38:34] Commission which is an administrative

[1:38:35] agency making certain decisions on

[1:38:37] behalf of the Town Council they can't

[1:38:39] they don't have the authority we all

[1:38:41] know it okay so

[1:38:45] again with regard to the half TRS or

[1:38:48] spend just want to make sure that indeed

[1:38:50] that's being recognized oh um we're g

[1:38:53] to okay um I

[1:38:58] um I understand the that okay so

[1:39:02] objections from now on and should have

[1:39:04] been the whole time will be given to

[1:39:06] prevent testimony or evidence from

[1:39:08] entering into the record not to correct

[1:39:12] things that have been said or said in

[1:39:15] meeting minutes um it is only to keep it

[1:39:18] in or out of the record so please use a

[1:39:21] objections for that

[1:39:22] purpose um so um Mr Blitz your objection

[1:39:28] is sustained and um Mr pounds your

[1:39:33] objection is

[1:39:34] overruled please continue with the

[1:39:42] presentation

[1:39:44] so I submitted

[1:39:46] those exhibits to demonstrate that not

[1:39:49] once in any of those minutes is there a

[1:39:51] reference to any discussion for

[1:39:52] terminating the

[1:39:53] moratorium much less a public

[1:39:56] hearing remember I in the first hearing

[1:39:59] I cited the law where you have the

[1:40:02] Planning and Zoning commission giving

[1:40:03] recommendations about anything that

[1:40:05] changes powers under the zoning

[1:40:07] ordinance they did that for the original

[1:40:10] resolution I'm pointing out that they

[1:40:12] didn't do it for the termination of that

[1:40:19] moratorium

[1:40:23] going to submit exhibit

[1:40:27] 47 which is the report of the chair of

[1:40:30] the Planning and Zoning commission to

[1:40:32] the mayor and Town Council dated March

[1:40:35] 16

[1:40:36] 2023 two days before the town council's

[1:40:39] meeting where it passed the resolution

[1:40:49] r232

[1:41:03] this report let me do the

[1:41:09] slide this report from the

[1:41:12] commission the chair of the commission

[1:41:14] to the mayor in Town Council also didn't

[1:41:16] mention the resolution or any

[1:41:18] recommendation of the commission in

[1:41:21] terminating the

[1:41:22] moratorium but it did note that they

[1:41:24] were working on more implementing

[1:41:26] ordinances this time it was about the

[1:41:28] compatibility standards as you can see

[1:41:30] at the bottom there

[1:41:32] um and I think my argument would be if

[1:41:36] if the commission had considered it

[1:41:38] would have been included in that report

[1:41:40] certainly would have been included in

[1:41:41] those

[1:41:48] minutes and it's also interesting that

[1:41:50] in the the second paragraph you can see

[1:41:53] that the chair notes that the commission

[1:41:55] was beginning the discussion of the

[1:41:56] critical area comprehensive

[1:41:58] review and she notes that that was due

[1:42:00] every six

[1:42:05] years so the moratorium That was

[1:42:07] supposed to have lasted nine months then

[1:42:10] was extended for an additional three

[1:42:12] months was some two years later being

[1:42:15] quietly terminated by a simple

[1:42:17] resolution without any public press

[1:42:19] releases without any public hearing or

[1:42:22] input without a commission

[1:42:24] recommendation hearing or

[1:42:27] resolution at some point you have to ask

[1:42:30] how do how long does a property owner

[1:42:32] have to wait to have their site plans

[1:42:34] reviewed was this process

[1:42:37] fair is this how you expect the zoning

[1:42:40] laws in your town to be applied to

[1:42:41] Citizens and Property

[1:42:45] Owners while nominally lifting the

[1:42:49] moratorium

[1:42:51] the zoning administrator and the

[1:42:52] Planning and Zoning commission have

[1:42:54] still not taken any action on the site

[1:42:57] plans so that was in March of this year

[1:43:00] they still haven't done anything with

[1:43:01] the site

[1:43:03] plans the Roden reel has received no

[1:43:05] Communications from either of them

[1:43:06] suggesting the start of that review or

[1:43:08] scheduling of any hearings as is

[1:43:11] required under their zoning

[1:43:14] ordinance these applications were on

[1:43:16] file in January of

[1:43:19] 2021 the more orium recognized that they

[1:43:22] were on

[1:43:23] file as these applications were recited

[1:43:26] in the commission's resolution and the

[1:43:27] Town Council resolution

[1:43:30] r213 as being the very purpose of the

[1:43:38] moratorium yet both the zoning

[1:43:40] administrator and the commission

[1:43:42] continued even up to this date to act as

[1:43:45] if they don't exist and were never

[1:43:49] filed

[1:43:53] the commission continued to

[1:43:54] recommend additional implementing

[1:43:56] ordinances which would still be

[1:43:58] necessary for Rod re site plan

[1:44:00] application

[1:44:03] review I'll submit exhibit 48 which are

[1:44:06] the minutes of the July 20th 23 Town

[1:44:08] Council public hearing and meeting

[1:44:19] minutes

[1:44:32] as you can see on page one of the

[1:44:34] hearing minutes the Town Council was

[1:44:36] taking up ordinances

[1:44:38] 02316 17 and 18 which are amending the

[1:44:41] zoning ordinance to implement the design

[1:44:43] standards for tow houses a new standard

[1:44:46] of compatibility and up toate and an

[1:44:49] update to the urban for Forest sections

[1:44:51] of the

[1:44:52] code all three of these flow from

[1:44:55] recommendations that you can read in the

[1:44:57] April 2022 comprehensive plan the design

[1:45:01] standards for tow houses which would

[1:45:03] have which would impact the Roden reel's

[1:45:05] stin it place and Homeplace

[1:45:08] applications and the standard of compat

[1:45:10] standards of compatibility which would

[1:45:12] impact them all were very big issues

[1:45:15] discussed during the comprehensive plan

[1:45:17] process and so even as late as July of

[1:45:20] this year they were just getting to

[1:45:22] implementing Those portions of the

[1:45:24] plan the first two ordinances would

[1:45:30] impact some of the rod and reel site

[1:45:32] plan applications if those laws were

[1:45:35] retroactively applied to the

[1:45:37] applications all three of the ordinances

[1:45:39] were passed by the Town Council which

[1:45:42] you can see on page five of the exhibit

[1:45:44] which is page three and four of the uh

[1:45:47] Town Council session

[1:45:49] minutes

[1:45:54] next I'm going to offer as exhibit 49

[1:45:57] the Town Council public hearing

[1:46:00] minutes and minutes of the Town Council

[1:46:03] of September 21st 2023 is exhibit

[1:46:09] 49 hi Mr Bliss what was 48 48

[1:46:15] was the minutes of the July 20th 23 Town

[1:46:19] Council public hearing and

[1:46:23] minutes so this is

[1:46:37] 49

[1:46:41] proved but your

[1:46:45] agend got that and so that's not have

[1:46:51] binders is just being replaced with the

[1:46:53] actual formal

[1:46:59] minutes so I offer this to show you that

[1:47:02] the Town Council is still offering

[1:47:03] implementing ordinances in this case

[1:47:06] ordinance

[1:47:07] 023 21 on the standards for conditional

[1:47:10] uses also subject to much debate during

[1:47:13] the comprehensive plan process and

[1:47:15] implementing the comprehensive plan

[1:47:16] policy recommendations into the zoning

[1:47:19] ordinance

[1:47:23] so the board understands that the

[1:47:25] implementing ordinances are not yet

[1:47:27] complete even as of this

[1:47:29] date one of the rationals for

[1:47:31] dramatically changing the zoning

[1:47:33] ordinance in the center of the town

[1:47:34] which is primarily the MC Maritime

[1:47:36] commercial District impacting The Three

[1:47:38] Rod and Reel projects was the threat of

[1:47:40] sea level

[1:47:41] rise you can read that in the

[1:47:43] comprehensive plan it was also used to

[1:47:46] justify less dramatic changes that would

[1:47:49] apply to the Senate

[1:47:51] property I'm going to offer as exhibit

[1:47:55] 50 pages 38 to 48 of the comprehensive

[1:47:59] plan that was passed in April of

[1:48:19] 2022

[1:48:30] so as you can see from this exhibit what

[1:48:33] the comprehensive plan did was use

[1:48:35] projections from the Maryland Commission

[1:48:38] on climate change to plot what areas had

[1:48:41] a a 5% higher chance of flooding uh they

[1:48:45] did this using two maps showing the

[1:48:47] projected risk areas for the year's 2050

[1:48:50] and

[1:48:51] 2100 but using a 10% exceedence

[1:48:54] probability rather than the 5% and then

[1:48:57] the map show the lower risk areas of 1%

[1:48:59] and two10 of a

[1:49:01] percent so oops I apologize I think I

[1:49:05] went the wrong

[1:49:08] direction so this slide shows the 2050

[1:49:11] predicted reach of periodic flooding

[1:49:13] which is a map seven of your

[1:49:15] comprehensive

[1:49:19] plan

[1:49:20] this one is the 20 the year 2100

[1:49:23] predicted reach for periodic flooding

[1:49:25] which is map eight of your comprehensive

[1:49:30] plan and what the plan did was

[1:49:33] established three zones of

[1:49:35] vulnerability which you can see here are

[1:49:37] shown on page

[1:49:39] 42 of the comprehensive plan and two of

[1:49:42] those zones of vulnerability shown on

[1:49:45] maps nine and 10 of the comprehensive

[1:49:46] plan would cover four of the five rotten

[1:49:49] re site plans

[1:49:53] applications now I want to be

[1:49:55] clear that we're not contesting in this

[1:49:58] hearing the commission's role in using

[1:50:00] such

[1:50:01] information the maps making

[1:50:03] corresponding plans or even judgments

[1:50:06] they made we can't challenge that in

[1:50:08] that Con in this context it's not

[1:50:10] relevant what I'm showing

[1:50:13] you is to point out to the commission

[1:50:16] was creating these zones of

[1:50:17] vulnerability in the comprehensive plan

[1:50:20] and had two specific recommendations in

[1:50:22] the plan based upon these

[1:50:26] zones and this is all in the same

[1:50:29] exhibit as this slide shows there were

[1:50:33] three substantive recommendations for

[1:50:35] the vulnerability zones first that for

[1:50:37] areas that expected to be submerged when

[1:50:40] the Bay water level rises by 2.1 ft the

[1:50:45] plan recommends that the regulations and

[1:50:47] policies be adopted to prevent further

[1:50:49] Dev development or intensification of

[1:50:51] land use activities and that no

[1:50:54] residential land uses be

[1:50:56] permitted this recommendation has a

[1:50:58] direct impact on one of the five Roden

[1:51:00] reel five uh Roden reel applications

[1:51:03] known as Harbor Vista

[1:51:06] West the second recommendation was that

[1:51:09] detailed plans for three vulnerability

[1:51:11] zones be adopted and most important to

[1:51:14] this case that the town would postpone

[1:51:16] formal review and approval of

[1:51:18] development plans in these

[1:51:21] areas so under this concept even after

[1:51:23] the moratorium would expire there would

[1:51:26] be a recommendation that any development

[1:51:28] plans not be reviewed until the specific

[1:51:30] details for these vulnerability zones

[1:51:32] would be

[1:51:36] developed this could explain why even

[1:51:38] after the council passed the resolution

[1:51:40] to r232 in March of 23 reporting to end

[1:51:45] the moratorium the zoning administrator

[1:51:47] and the planning of zoning commission

[1:51:49] have still not not taken up the site

[1:51:50] plan applications that were filed in

[1:51:52] January of

[1:51:57] 2021 those plans for the vulnerability

[1:51:59] zones have not yet been developed and no

[1:52:02] implementing ordinances have been

[1:52:04] submitted yet they're still working on

[1:52:07] those and they're in their study for the

[1:52:09] comprehensive

[1:52:10] plan and those vulnerability zones cover

[1:52:13] potentially large swaths of

[1:52:17] town I'm going to show you

[1:52:20] in exhibit

[1:52:29] 51 which

[1:52:32] is Page

[1:52:35] 24 of a draft

[1:52:38] plan dated June 22nd

[1:52:41] 2023 of the coastal resiliency steering

[1:52:46] committee as well as a on the second

[1:52:50] page uh a a screenshot of the Town

[1:52:53] Council I mean the the town's website

[1:52:57] describing the plan for this committee

[1:53:01] and I offer that as exhibit

[1:53:03] 51 to that because now we're discussing

[1:53:06] a draft plan that was wasn't adopted at

[1:53:11] all I mean

[1:53:13] this hold on um that objection is

[1:53:15] sustained because it is a draft why

[1:53:17] don't you state it Mr Mr Blitz

[1:53:21] turn so reason for showing this plan is

[1:53:27] to show you that a whole bunch of

[1:53:28] implementing ordinances that would be

[1:53:30] applicable to the media are still being

[1:53:32] worked on and what the schedule is

[1:53:35] second page of this exhibit shows that

[1:53:37] is it going to be

[1:53:39] considered

[1:53:41] um it was held a meeting in November 2nd

[1:53:44] of

[1:53:46] 2023 um to discuss the public comments

[1:53:50] and it basically sets forth what they're

[1:53:53] going to do so these are upcoming

[1:53:55] implementing ordinances that directly

[1:53:57] impact the rot real site I'm not

[1:54:01] offering there's no you don't need to

[1:54:03] evaluate the truth or the veracity of

[1:54:05] anything in this draft plan it's merely

[1:54:07] showing that they're current this is

[1:54:09] where they are currently working on for

[1:54:12] implementing ordinances which were a

[1:54:14] very big part of a comprehensive plan

[1:54:17] and as I read to you one of the

[1:54:19] recommendations for these zones was

[1:54:21] removal of all

[1:54:23] residential um development in the MC

[1:54:26] Zone well that's three of the five

[1:54:29] projects for the rod and reel that's why

[1:54:32] we're offering it's there's nothing

[1:54:34] about the validity of this document it

[1:54:35] show really showing where they are in

[1:54:38] the process of developing and

[1:54:39] implementing

[1:54:48] orance

[1:55:07] the objection will be sustained for

[1:55:09] black

[1:55:10] Foundation where that document came from

[1:55:12] who prepared

[1:55:18] it

[1:55:21] just so the board knows it's a plan

[1:55:23] directly on the website of the town you

[1:55:26] can take judicial notice of that it's a

[1:55:28] town document that is being offered by

[1:55:30] the town as where the the coastal

[1:55:33] resiliency board is in this part of the

[1:55:35] process that's all I'm really just

[1:55:37] trying to show

[1:55:39] you but you if it's sustained that's

[1:55:42] fine okay thank

[1:55:45] you reminder we have about five minutes

[1:55:48] left this evening

[1:56:18] so

[1:56:22] so I'll finish off with exhibit which is

[1:56:25] now

[1:56:27] 51 uh September 21st 2023 report of the

[1:56:31] chair of Planning and Zoning commission

[1:56:33] to the mayor and Town

[1:56:34] Council Deber uh 21st

[1:56:48] 2023

[1:57:01] this report

[1:57:03] shows the continuing implementing

[1:57:06] ordinances that are going to continue to

[1:57:07] come commission was making revisions to

[1:57:10] the local critical area

[1:57:12] program those will come in as ordinances

[1:57:14] they are also now working on the new

[1:57:16] signage regulations and intend on

[1:57:18] revisiting the development of housing in

[1:57:21] relationship to Steve

[1:57:25] slopes and I think this is

[1:57:29] probably the best point for a stopping

[1:57:32] point um I'd like to

[1:57:35] um let the board know that um I will

[1:57:40] clearly be finishing the applicant's

[1:57:43] testimony at the next hearing just so

[1:57:46] you can think about schedule um

[1:57:50] and um I thank you for your time and

[1:57:52] consideration you think you'll eat the

[1:57:53] whole following two hours or will it be

[1:57:56] some fraction of

[1:57:57] that that really depends on the extended

[1:58:02] scope of cross-examination because that

[1:58:05] will be a lot more testimony from Mr

[1:58:07] Woodburn and Mr Donovan so let's make

[1:58:10] the assumption that it will take the

[1:58:11] entire time and if it happily doesn't um

[1:58:15] we will determine whether or not to

[1:58:16] break or to go directly into um Mr to's

[1:58:22] uh presentation or whatever he likes to

[1:58:24] provide okay um at this point uh I'll

[1:58:27] entertain a motion to adjourn the

[1:58:31] meet yeah I'm about to do it um our next

[1:58:34] meeting will be uh November 14th which

[1:58:37] is Tuesday at 700 pm here at chese Beach

[1:58:40] Town Hall um at this point in time I'll

[1:58:43] entertain a motion to adjourn this

[1:58:45] meeting until then I will make such a

[1:58:47] motion I have a second second all in

[1:58:50] favor I all right thank you motion

[1:58:53] adjourn

[1:58:58] ajour

November 8, 2023 Board of Appeals Hearing Case #2023-03

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