uh hello again everyone um this is the
call to order for the Chesapeake Beach
Board of Appeals 700 p.m November 8th
2023 we will begin with a roll call of
board members um please announce that
you are presid present uh Mr Paul dhy
present Miss Amy Everett present Mr
Steven sharp present I am Mr Jody star
we have a quorum uh the first item today
is the approval of the minutes uh of the
last meeting for this session uh October
30 2023 case
20233 uh were there any concerns by
board members with the minutes as they
will
provide right uh at that point I will
entertain a motion to approve the
minutes do I
have I will make a motion to approve I
have a second second all in favor hi
motion passes thank you uh we'll begin
with a couple announcements um during
the 30th of October meeting we establish
a time limit of two hours per session
for this case so we will end tonight
around 9 p.m. uh we also have a planed
schedule for this case the next session
will be next Tuesday November 14th at
700
p.m. um one note for everyone here um
please direct all questions and comments
to the board itself or the board's legal
counsel um this applies to the gallery
as well do not direct questions or
comments to the petitioner or any staff
members here um
lastly uh we're going through the order
of presentation um as defined in the
board of appeals rules of procedure
uh we are starting again with the
appellant testimony and evidence
including Witnesses by Mr Blitz uh once
he has concluded it will pass to Mr
pounds uh for towns St testimony and
evidence um at that point we will open
the floor to members of the public or or
entities whose rights are impacted by
this appeal um and we will wrap up with
summary statements before we close the
public hearing and go into
deliberations uh what this means is if
um if members of the public have
attended tonight with the intent to
State your opinion it most likely won't
happen tonight um if this is
inconvenient we will take WR written
statements if you'd like to provide them
either tonight or via email to uh to
town Town Hall staff um and at the same
time I'd urge you to submit your remarks
at the conclusion of the testimony uh
taking what you hear into account you're
welcome to submit written comments at
any time but we the board would most
appreciate comments that are written uh
within the scope of what we're able to
rule on so take that into mind as you're
submitting comments or stating public
opinions uh okay uh that is all the
announcements um on to the board's
business um this is a continuation of
case
20233 Roden reel Incorporated Donovan
Estates LLC consider an application from
the Roden reel and Donovan Estates of
4160 Mir Avenue Chesapeake Beach
Maryland for decision on interpretation
or alleged error to article 6 section 29
9-23 29-31 A1 and A6 of the Chesapeake
Peach zoning ordinance in section c390
c310 and c311 of the chesap beach Town
Charter applicant requests that the
Chesapeake Beach zoning uh board of
appeals to quote order the zoning
administrator and planning and zoning
commission to immediately commence and
prioritize the processing and review of
the relevant site plans submitted by
Roden real Donovan EST States uh and
that the zoning administrator and
planning and zoning commission be
ordered to apply the zoning ordinances
in effect as of January 29 2021 when the
applicants were submit when the
applications were submitted and for such
other and further relief as the nature
of their cause requires um before going
uh back to where we left off um Mr
pounds has requested uh to enter an
objection before we begin thank you this
is an objection I wanted to make for you
know future purposes for uh appeal
purposes and also for the status of the
hearing itself so um uh Mr chair uh
members of the council good evening uh
my name is Todd pounds and I represent
the town of chese beach basically uh Mr
chair members of the council this is a
hearing uh you know as all of you know
uh a hearing is designed to have
testimony which is sworn which is
presented which is uh given by
individuals under oath uh in fact Mr
susman raised it uh a couple of hearings
ago asking Mr Blitz indeed if he was
going to be having sworn testimony
presented uh and also there's been
members of the public who have also
asked whether indeed testimony was going
to be presented that hasn't happened uh
basically we have been you know
listening to uh where we spend what is
now multiple hours uh which is going to
be more multiple hours tonight uh which
I'm going to use the term droning on and
on regarding non a non-sworn testimony
with regard to um items which are
basically his opinion uh this is this is
not evidence uh as a result none of this
is evidence uh going on and on uh does
not present evidence especially when you
know the individual giving this is not
sworn and indeed this is not evidence
for you to be considering at all with
regard to really any any type of
deliberation or any type of giving in
opinions at all these are in essence
arguments and opinions but it is not
evidence um in fact any evidence was
just been presented uh so far in the
multiple hours is almost none uh because
if you only look at what the sworn
testimony would have been furthermore uh
an exhibit book was presented uh which
shows minutes uh of hearings before the
Town Council uh and also before the
board of appe uh before the Planning
Commission well those minutes you know
theoretically are here say uh because in
essence they're uh they were developed
and written by someone else who observed
it but but but and and they are not in
essence uh evidence in and of themselves
so any of that should be also considered
irrelevant uh the video which we saw
which was a video of a council you know
meeting goes on to state that indeed
what their opinions are and and was
opinions going on with regard to the
council but indeed is not uh evidence
unless indeed it is for the
considerations and ultimately what the
decisions uh would would be so in
essence we uh uh are have and we will
continue to spend uh many hours uh
listening to Mr Blitz basically go on
and on about nothing more than his
opinion uh and his in his belief that's
not evidence that is not evidence for
you to be considering that's not
evidence for you know you to in any way
be reviewing uh with regard to this case
this is uh nothing but unsworn
statements of someone who is not a party
uh and there nothing more than
expressing their opinion worse what
concerns me is half truth which is given
with regard to these opinions you know
we spent a half an hour last meeting
talking about the referendum under C-
311 and how certain rights of Mr Donovan
were violated as a result of this him
not being able to do certain things well
under the you know and and the board you
know let the testimony go on but in
essence the the Hal truth was the fact
that he didn't have any rights under C11
okay basically in order for him to have
a right any rights under the referendum
Not only would have to he would have to
be involved but also it would have to be
at least 50% of the total number of
Voters who voted in the last regular
preceding regular Town election uh as
such you know if if we're going to be
making these statements and Broad
statements going on expressing opinions
which are un not sworn testimony you
know we at least have to be tell telling
the truth with regard to what's in the
ordinance as opposed to in essence only
picking and choosing things that he
believes is his in his best interest um
uh so again uh the fact that we are
spending multiple hours with actually
limited to almost no evidence actual
evidence being presented to the board
other than uh unsworn testimony is
simply not proper and I'm making the
objection uh with regard to that also
you know uh uh various statements were
made with regard to the book uh for the
statutes and code and also uh sections
were stated to the board that in essence
you know for opinions by the court of
appeals well the court of appeals was
the old Court in the the highest court
in the state of Maryland now called the
Supreme Court uh in the cases that that
were were in
and and it was asked that indeed you
make an interpretation as to the
opinions of the highest court in the
state of Maryland well ladies and
gentlemen if you're a judge in the in
the court you can't do that okay you
know you you're making interpretations
as to what the highest court of the uh
state says for a judge is improper
especially even more improper would be
that of an administrative board so there
and even worse than that was the fact
that and I wrote it down he said that in
in in essence you know if you uh uh look
at I want to get the exact phrasing that
was
done it was asking you to follow the
logic okay which says well the case
isn't on point but I want to show it to
you and you should interpret what the
highest court in this court is stay uh
staying for an Essence for some
particular purpose I mean that is just
absolutely completely uh improper to be
doing any of that so basically you know
what uh what in essence the applicant is
ultimately ex asking you to do is to do
things which are beyond your ability uh
and the ability of an administrative
board to review uh things that are not
on point you know with regard to that uh
you know that interpretation of that
language so basically uh preliminarily
I'm going to move that in essence all
the testimony was stricken should be
stricken from last meeting because it is
nothing but expressions of opinion and
statements of someone who's unsworn
someone who is uh not a party to the
case and who someone who is just uh
stating his opinions as to any testimony
which which should be in the proper uh
uh way that a hearing should be
conducted thank you thank you one
moment Mr Blitz would you like to
respond to that sure uh we have provided
uh 29 exhibits of um giving you exhibits
of government documents yes they are
hearsay but they fall under what a very
typical hearsay exception for government
documents furthermore hearsay isn't a
limitation on evidence before this board
or almost any administrative proceeding
with a few exceptions not related to
zoning um the point of almost all of
the uh information that I'm providing
you is that we're asking you as a board
to consider the actions of the Planning
and Zoning commission and Zoning
administrator to have been in violation
of the the town code and I'm providing
you not only the minutes of what they
did how they did it various exhibits of
communications but also what the town
did to help you interpret that case all
of the information I believe is quite
relevant to your ability to decide
whether first the moratorium which was
one of the two reasons why the zoning
administrator said he wasn't going to
review the site plans um was valid in
the first instance citing you sections
such as the charter sections is my job
to point out to you what I what areas of
law I believe were violated with respect
to the
referendum any citizen can start the
petition for referendum to an ordinance
but not a resolution that was the whole
point of
the uh the review of that section in
fact well I'm not I'm not GNA I'm not
not going to tell you what in in
answering this I'm not going to give you
for uh uh what what information is about
ready to come because we will have Mr um
Donovan testify about his ability to do
referendums um
so anyway
um it's not a half-truth to say that a
uh an ordinance is required to do a
resolu uh to do a referendum because the
referendum language is strictly related
to ordinances as well as um the timing
for doing a referendum is based upon the
nature of the timing for ordinances that
is when they go into effect when they
um publication notices and things like
that so citing you law is the the areas
of law that I'm asking you to
consider I'm not asking you to interpret
the law but you have the power to
interpret the law it's just that further
on if it goes to a court your judgment
about that isn't going to be given a
whole lot of weight that is your your
job is to interpret whether the the
zoning administrator and the um planning
and zoning commission violated the law
that's your job so we're going to cite a
lot of Law and tell you the laws that we
think are applicable with respect of the
cases they're provided for you as
Authority for the proposition that you
had to pass such a a legislative act
through an ordinance and not a
resolution and that's one of the reasons
why the first uh no the second reason
that they were refusing to uh do the
site plan reviews which was the
moratorium uh
was
improper
so I'll just end with the fact
that it's very typical when trying to
prove what a government body does
whether it's an administrator or a
committee or a commission or a Town
Council to provide the official record
of what they did minutes aren't just
some hear say they are literally the
official document that records what they
did on that
day when you passed your minutes for
this prior meeting you were saying
that's what occurred it doesn't just
detail all of the things that occurred
obviously doesn't need to but if there
were motions done or ordinances passed
or resolutions done the votes that are
taken those things all get recorded in
the minutes and that is literally the
official recognition of what you did
it's not that you can't go and get other
evidence of it you could do a whole
transcript we played a a video there's
nothing here say about that video you
got to watch listen to to them directly
what they get to say um and and so I I
think the this is more of an argument
against the case as a mo as opposed to
an objection about
evidence one
moment
uh at the first hearing an oath was
administered to people in attendance my
recollection and please tell me if I'm
wrong that you also uh swore to to
that a recollection correct or wrong it
is
correct so I'm going to be calling Mr
Blitz as a witness
I'm going to be calling Mr Blitz as a
witness that's up to you whether you
want to call Mr Blitz as a witness thank
you
um um so um the objection is noted but
overruled this board does explicitly
have some language in our um in the
governing documents that say that
hearsay is explicitly allowed in
testimony like this um and that the
board will take that under consideration
when hearing the evidence um so we are
aware of that um the only evidence that
will be excluded from this testimony is
repetitious or unduly prejudicial
evidence so uh please continue with that
and as you both noted none of us here
are uh situated to interpret the law so
if you feel like you would like to add
something please do correct the board
when we need to um
okay uh I noticed that a few other
members of the public stepped in um
since we began um I just want to make
sure it's clear um that members of the
public are welcome to testim or to come
and and speak and we will hear your
testimony but it will probably not
happen tonight um if that is
inconvenient for you please do uh leave
us written testimony or wait patiently
until it is time to hear public com so
thank you okay uh without further ado
we pass it back to Mr Blitz to continue
his
presentation thank you uh Eric Blitz on
behalf of the rod and Rio of the
appellants um if I could have the
PowerPoint
please so first we're just I'm not going
to review both sessions but just the
last session just to bring us up to
where we left off uh in the last session
we reviewed in detail the legal reasons
that a zoning moratorium must be passed
by an ordinance and not a mere
resolution to be legally effective the
moratorium changed the legal effect and
applicability who it applies to of
pre-existing zoning ordinance
sections 2923 C 2931
A6
and the deadline for review which was 60
days in 2925a
5c it was a legislative act we went
through all the reasons why it's a
legislative act that General
applicability and
effect the moratorium impacted the
rights of property owners under the
zoning code and because zoning powers
are an Express power under Maryland
law I gave you the statute they must be
passed by ordinance they must be used
through ordinance Powers not resolutions
we went over the town Charter
Provisions setting forth the important
procedural rights that protect that
citizen rights when legislative acts are
done but we're avoided in this
instance we have the introduction in
passage rules where you introduce an
ordinance and then at a subsequent
meeting you would hear the public
testimony and then
passage in ches Beach it's no less than
6 days and no longer than 60 days is the
time frame it can be done by an that
part can be shortened by an emergency
ordinance but this wasn't passed as an
emergency
ordinance the resolution avoided the
mayor's power of
veto and the timeline for passing an
ordinance
importantly it avoided the right of
referendum which as I cited you the
section is protected in
zoning under Maryland
5213 and this statutory is in uh
provision is
important because it too is an Express
power and that means the town cannot
have done it in in contravention of
state law just doesn't it's void abono
and then it avoided the delay between
the introduction public hearing and
passage and the delay in passage and
going into effect that is it went into
effect immediately and I pointed out the
zoning provision that says using the
zoning power has to go into effect no
earlier than 10 days after the fact
because it's presumed to be being done
by an
ordinance so we reviewed the many
different context that a proposed
moratorium was described as
temporary and having a maximum
duration and there were debates over the
maximum
duration both at the Planning and Zoning
commission level and the Town Council in
the first instance it was initially
resolved to be nine months then there
was a resolution to extend that
moratoriums maximum duration for an
additional three months to end on March
18 2022 I I I'll generally use the the
date March 18th 2022 uh depending on the
way you count it it could be March 19th
but I don't think it's really relevant
to your thing and there was a debate on
that resolution that acknowledged that
the maximum duration was being set by
that
resolution so during my presentation uh
last time on the Town Council video that
you watched uh I mentioned that there
was no record of the planning zoning
commission having held a public hearing
and passing a resolution to request an
extension of the
moratorium I need to correct that
statement slightly because while there
was no public hearing as is
required uh held by the commission on
extending the moratorium they did and
they didn't pass a formal resolution
like they did the first time they did
take a vote um and they voted for the
extension they did did it in a work
session not at a regular session it was
not included in the the commission's
agenda for that work session to give
prior notice to the public and just as
importantly there was no opportunity for
the public comment in a work session and
no opportunity to comment that was
provided for in that August 12th
meeting so while they provided the isite
process that that is the commission did
of giving a a recommendation to the Town
Council or something that affects zoning
um for the original recommendation they
did not do so for the extension
request I'd like to submit exhibit 30
which is the agenda and minutes for the
Planning and Zoning commission work
session of August 12th
2021 who that Mr put the agenda what's
that the agenda no this uh this is the
agenda and the
minutes for what
date August
1221 so I
believe I need
to
addition things
now and you may wish to just keep them
as a separate pile so that as we go
through them you put it in your books
just because there's things already in
your books that would
so obviously this is more than just this
exhibit this is all the
ones
[Music]
you'll have a story you'll have a story
on tap
to okay
so with the three-month extension the
moratorium was nominally going to end on
that March 18th or 19th of
20222
and slide
five and the next step in this process
is that the commission passed its
recommended comprehensive plan on
January 26th of
2022 um so March 18th came and passed
and so even by its terms the moratorium
had
expired
um and then the Town
Council adopted that new plan on April
21st of 22 so that's after the
expiration of the moratorium and it
became effective on May 11th 22 and I'm
offering exhibit
31 which
is the
ordinance
0234 cover page as well as the
resolution from the
commission which shows as you can see on
the thing the the passage date just to
get that in
so I'll remind the board that at this
point in
time the comprehensive plan was six
years over the deadline under Town law
and over and over the 10year deadline
under state law and with respect to that
state law they did not make an extension
request as required to gain an
extension um they had to have made that
to the Maryland office of
planning so note that this is the
passage of the comprehensive plan but
not the Imp implementing
ordinances which were also required
under the terms of the moratorium
resolutions it's the implementing zoning
amendments which would be applied during
any site plan review for the five rod
and reel site plan projects as they
provide the specific
standards which a project must
meet and as you'll
see tonight the commission wasn't even
close to completing the implementing
ordinances at that point in
time because the zoning Amendment had
not been passed to implement the zoning
ordinance and because the Town Council
had never passed any other additional
resolutions or ordinances to extend the
moratorium we waited an additional 60
days to see whether the zoning
administrator and planning and zoning
commission would take up the five site
plans as they were required to do at 60
days after the expiration of that
moratorium on March
18 um they did
not so therefore on May
20th I wrote a demand
letter which I'll offer is exhibit 32
it's my letter
to
Chris
May Mr BL what exhibit number that was
32
and I don't know
whether you'll find this helpful or what
process but I have a typewritten list of
all the exhibits that I could either
give to you to validate or give to
Sharon she could validate and then
distribute to everybody I just it it
might be easier for everybody to have
that list and I've already got it going
so when we're done the whole case I
guess yes I'll give that to
you
um I don't know which slide I'm on
here
right so as you can see I made the
request that all the five site plans be
processed um and pointed out that the
moratorium purpose was to have the Town
Council pass both the comprehensive plan
and the Amendments uh the implementing
ordinances I'm
sorry which are amendments to the zoning
code and so on page two I pointed out
that even by its own terms the
moratorium had expired despite the
three-month extension and I noted that
since the mayor and Town Council had
held two regular sessions on April 21st
and May 19th and did did not seek to
extend the moratorium or otherwise
address those resolutions in r213 or
r218 um and that neither the zoning
administrator nor the Planning and
Zoning commission responded to my demand
letter they certainly did not start the
site plan review
process um instead I received a response
from the town attorney Mr pounds in a
letter dated May 25th 2022 which I'll
offer as
exhibit 33
uh you have
it it's in your binder it's not in the
new
Pat
Mr pound you basically it's it's on the
thing right there read it along with
everybody um so as you can see in that
letter the town attorney took the
position that the moratorium was not
terminated because it could only be
terminated by the Planning and Zoning
commission and the Town
Council I've submitted countless
examples where the town put out Public
Notices and press releases describing
the moratorium as being temporary and
having a fixed maximum duration
submitted the examples where the zoning
administrator and the Planning and
Zoning commission took the same position
and with respect to the commission you
saw how they debated what the maximum
duration should be and they settled on
nine
months and I've submitted the evidence
that the Town Council also debated the
maximum duration of the moratorium
settling on nine months and then
extending it by a second resolution for
an additional three
months and then you heard during the
video the very specific question
question of councilman Bodin seeking
confirmation that Not only was the
moratorium set to expire on December
19th 2021 at that point in time at their
meeting that with three-month extension
it would expire on March
19th Mr pounds confirmed that
understanding as councilman Bodine asked
there's no Gap and it expires on March
19th and Mr bound said
correct yet after this March expiration
end of May the new response was that the
moratorium was still in
effect and was in effect indefinite only
to be terminated by the Planning and
Zoning commission and the Town
Council and it was kind of at this point
I knew that we needed to appeal to the
board of appeals as this was getting out
of hand so I sent Mr pounds a letter
which I'll submit as exhibit
34 which is my letter of June 3 20
[Music]
22 so because Mr pounds represents the
mayor in Town Council it was unclear in
his letter that we just looked at
whether he was also repes presenting the
zoning administrator in the Planning and
Zoning commission you know his letter
did not say
so uh
so but he you know he referenced my
letter of May 20th to the zoning
administrator and commission to whom it
was directed so it was implied that he
represented them um so I inquired
whether the letter of May 25th was on
behalf of the zoning administrator and
planning and zoning commission or
whether I could expect a formal
response from them that's what I really
want I received no reply from Mr pounds
and we received no other correspondence
from the zoning administrator or the
Planning and Zoning
commission we waited a few weeks for a
response received none that's when we
filed our appeal to this board on June
24th of
2022 so while the Town Council would
never have needed to pass a second
resolution r21 d-8 which was your ex
exhibit
27 to extend the moratorium for an
additional 3 months if the moratorium
was as Mr pounds had been arguing in his
letter still in
effect and then only terminated by the
Planning and Zoning commission and the
Town Council let's look at the specific
language of that original
resolution
earlier I had made reference to this
what I view as somewhat sloppy language
of the resolution in my letter of May
20th of 22 and earlier in the preceding
I think on the first day um and
explained why it was
inoperative um in my opinion this issue
would not have occurred if a formal
ordinance had been used rather than a
simple
resolution I if Mr Blitz is going to
State his opinion we need to designate
as an expert okay and I'll be frank I'm
sitting here wondering and I'm going to
have the video going forward I don't
remember him being sworn in okay at the
beginning and if he and if he
represented that he was and he wasn't
we're gonna we're going to be addressing
that as another problem but if he's
going to be expressing his opinion at
this point he's gonna have to be
designated as an expert and I I withdraw
the opinion it's not
critical and if you would like to swear
me now we can do that start all over
again with regarded The Testament no now
I'm merely saying if you if you have if
the board not you Mr pounds if the board
has questions I'll I'll clearly be sworn
again if if that if the board feels it's
necessary I'm just so I have this right
the opinion is withdrawn we're
continuing
on
so let's go back to the
language this moratorium is expected to
last 9 months from the date of the
adoption all time periods for any
development project are hereby stayed
until this moratorium is terminated by a
Planning Commission and Town Council for
any currently filed or future
applications unless otherwise stated
herein now if this language is meant to
mean that the moratorium in the Town
Council sought to pass was indefinite
subject to the discretion of the
Planning Commission and Town Council
later to determine when it would be
terminated then Not only would the rod
and Rio and every other property owner
in town have a very strong argument for
an inverse condemnation form of taking
but it would contradict all the previous
descriptions including the first
sentence of the this now therefore
Clause that the moratorium was temporary
you can see in the very top it's saying
it's temporary I don't think the Town
Council meant for this re their
resolution to be indefinite but under
the interpretation that the moratorium
was only terminated by the Planning and
Zoning commission and the Town Council
the board should note that this means
that the resolution would be attempting
to vest the commission with a
legislative
function under no circumstances can a
Town Council delegate a legislative
function to the commission to decide
even if jointly with the Town Council
when a moratorium would
end even if it could delegate regulatory
rul making Authority that wouldn't fall
in the the scope of ending the effect of
a zoning
ordinance to vest the commission with
such an explicit legislative Authority
would exceed the powers of a Planning
and Zoning commission granted under the
annotated code of Maryland section 2931
of your zoning code and section 24513 of
the subdivision regulations which
describe the powers of the commission
and none of them include legislative
powers even the power to prepare a
comprehensive plan or a zoning ordinance
recommendation
whether it's for amendments repeals
reclassifications are only a
recommendation to the Town Council
they're not a legislative power that's
to
it they're not acting under their own
authority to pass such
things not only that such an
interpretation would vest direct
legislative authority to the
commission which is one of the two
parties to participate in the decision
of whether
legislative Act
expires one can't argue that this kind
of resolution delegated a regulatory
Authority because that would violate
section 10 code which is in your
binder the slide of that b provides that
agencies boards and commissions
established by an authorizing ordinance
may not promulgate regulations of
General applicability remember that term
General applicability unless that
Authority is granted to such a body by
an
ordinance this gets back to the idea in
Municipal law that I described at the
last hearing and I believe also in the
first hearing that something that has
the effect of law whether it is
modifying that effect or the
applicability of that law such as the
right of site plan review in this case
or terminating such a modification
a is when the ACT is what the law
describes as being of general
applicability and effect it means it
applies as a substantive legal
restriction on everyone in the general
public that falls within the scope of
that
law so as section 102b recognizes to
grant that regulatory power to the
commission it requires an ordinance to
authorize such a power it can't be
accomplished through a
resolution
I mean in similar fashion the language
in the resolution is a little bit sloppy
in that it just avoids the power of the
mayor to have a role in the change of
something that's legislative in nature
doesn't say the mayor and Town Council
it just says the Planning and Zoning
Commission in the Town Council I'm G
have to here I mean because now we're
going back to the what I originally
stated my motion as being the hath
truths I mean if you read it agencies
boards and commissions in other words
what it's saying is you guys cannot know
promate any rules and regulations
without an ordinance by the Town Council
that's what it says okay so all of this
going on and on and on about half truths
about saying that the council can't do
it that's untrue okay it's just you guys
that administrative boards can't do it
so I just want to say let's not twist
things too much for the half truths
thank you it's not an objection about
evidence and it's a argument and my
argument isn't that it's it's improper
for the Town Council to make legislative
judgments that's literally their job
it's that they could not delegate that
Authority through a resolution we're
talking about the language of the
resolution to the Planning and Zoning
commission commission cannot take on
legislative Authority and it can't take
on regulatory Authority without it being
done through the passage of an ordinance
so it could not have participated in the
termination of the
moratorium recall also how the law
requires the commission to complete the
comprehensive plan review according to a
deadline so under the interpretation
that the rotten reel was now being given
that the moratorium was indefinite and
that the commission has a role in
determining when the moratorium ends it
would mean that they they would have the
power to decide if and when
they have to finish their work on the
comprehensive
plan I would
suggest
that's difficult to
imagine as Mar as I cited the Maryland
law makes it very explicit of what the
deadlines
are so it's a possible that the language
in this sentence was attempting to
address the time periods for
development such as a requirement that
the site plan once granted is good for
one year unless it's extended that's in
section 29025 A7 of your code that at
least would be consistent with the idea
that the moratorium was described as
having a maximum duration that was
debated and
settled but using the
language it's going back to
[Music]
it
in the beginning of that se that second
highlighted sentence all time periods
for the development project are hereby
state so there are other deadlines that
happen under a site plan review process
once it gets going so it could have been
referring to
that I don't
know so let's go to slide
12
so you already have this in evidence
this is exhibit
27 and I'm just
ref referring you to the whereas Clause
where they say it's a temporary
moratorium they also determined that
they there was a need to extend
it okay so if you if you are extending
the moratorium and you say there was a
need to extend it you're implied that it
was the first 9mon moratorium was going
to
expire again at the bottom that it's
needed so what's clear to me and I think
should be clear to you is that when the
Town Council was extending that
moratorium they believe they needed to
do so and that the first resolution's
nine-month duration was going to expire
in
December they wouldn't have needed to do
an extension if they had an indefinite
power to have the moratorium last as
long as they decided it should
last in the original
resolution attempting to impose the
moratorium the Town Council had said
that they were acting on the
recommendation of the
commission
and though they did change the
recommendation from
uh one year to nine months I
guess
um and the record of the commission's
resolutions clearly indicate they
believe that the moratorium had a
defined
duration because they debated whether it
would be nine months 12 months whichever
is earlier uh for the Implement that is
under the Planning and Zoning
commission's resolution they said that
it was the earlier of the completion of
the comprehensive plan and the
implementing ordinances or 12
months so I can't explain the in
congruity between the mountain of
evidence that the moratorium would have
had an outer limit on its duration and
this language in the resolution but I
think that given that it is merely a
resolution and not an ordinance that the
board should consider whether is merely
sloppy language that failed to fulfill
the true intent of the Town Council when
it passed those two
resolutions um
so by June 3rd of 22
2022 this is after the expiration of the
moratorium the purported moratorium is
still being used to justify the
continued denial of the rod and reels
site
plans and the zoning administrator and
this Planning and Zoning commission are
continuing to meet their obligations
under the zoning code and process those
site plans
perhaps one of the best explanations for
this continued
refusal is that while the Town Council
had passed the comprehensive plan at
this
point which became effective in May 11th
of 22 the commission wasn't even close
to finishing the implementing
ordinances those implementing ordinances
are what would be necessary because
those are the zoning code Provisions
that would the commission has to apply
during the site review site plan
review I mean I don't want to make this
all about the rod and reel this was
necessary for all other property owners
who in town who would want to file a
category one site plan they were all
prohibited from doing it
moratorium was directed at the rod and
reel applications but is certainly
applied everywhere to everybody that
wanted to file a site one a category one
site plan so it was still being extended
even past its March 19th
date
often and and I think you can take
judicial notice of the fact that the
town did it in the past municipalities
will pass one implementing zoning
ordinance to implement the changes that
are made in a comprehensive plan it has
the
advantage of having both the
commission's reg recommendations to the
Town Council but also the town council's
deliberations being kind of integrated
so that all of the things can be
evaluated together
um but this wasn't being done in this
case
um
and from the beginning even before the
commission held their Republic hearing
and adopted their comprehensive
plan and certainly before the Town
Council had adopted it there were
motions before the commission already to
offer peacemeal legislation in order to
specifically Target the rotten re site
plans so this is them offering Rec
ordinances to Target the rod and re site
plans even before they had passed their
comprehensive
plan an example of this was in the
minutes of the commission for Fe
February 15 24 which you already have as
exhibit 15 which was the same meeting
where the commission considered its
motion to recommend the
moratorium on page two there was a
motion to set a date on a draft zoning
text amendments to limit the height of
all buildings within all districts
within the town to 35 fet and another
motion to remove residential allocations
in the town center and the marina areas
where three of the rotten re site plan
applications are located three of the
five those were Pro
proposals to change the zoning even even
before the commission had finished its
comprehensive
plan and well before the Town Council
adopted the plan which wouldn't have
happen for another 14
months while that height limitation
motion was deferred until their March
meeting it was not on their agenda for
that March meeting and was not discussed
as you can see in the meeting minutes of
March 24th 2021 which I'll offer is
exhibit
35 oh fine the here here's ultimately
where we're going on this you know
basically there are two questions in
which this board is going to be asked to
answer okay those are the two questions
in which was outlined at the beginning
of this meeting tonight now we're
getting to the point of hearing uh I
guess it's testimony depending on
whether Mr Blitz has actually been sworn
and that Roden reel was in essence
picked on by the Planning Commission
with regard to its review or that that
in essence it was targeting these
projects which one way the other I'm not
sure how that in essence uh is in any
way relevant to ultimately the ultimate
question which you're going to be asked
is addressing those two questions I mean
whether the Planning Commission picked
on them whether they were mad at him or
anything else you know that's completely
separate in this thing from where
complet are relevant from where uh uh
you know where we are tonight and
ultimately question is going to be you
know indeed did they present these
applications which I have not heard any
testimony which I hope we hear something
that indeed these five applications went
before the Planning Commission they were
reviewed by the Planning Commission and
that Planning Commission in essence made
made those decisions uh with regard to
the these applications that were going
before I hope we're going to be you know
heading down that road because if indeed
they chose to try to do this whole
process rather than presenting to the
Planning Commission for their review is
what they should have done then this
whole proceeding is really becoming
irrelevant because that's what they
should have
done um you very briefly be heard
yes there's going to be a lot of
evidence coming up to demonstrate that
the way the town's actions were done was
arbitrary and capricious and part of
that is
directing a municipal ordinance that's
in effect for
everybody directing it at the rod and
reel to limit it you saw in the
resolution
itself of the Planning and Zoning
commission they said the need for this
resolution were the five site plans that
had recently been filed it was also
included in the Town Council resolution
there I don't think there's any doubt
that these were targeted at the rotten
reel
but furthermore even if e that's that's
that's S one is making a big assumption
and number two is you know even if that
is true if if they were targeting the
broad and real that's all fine but that
doesn't go to the two questions that's
going to be ultimately asked by the
uh all right thank you one
moment
uh the objection is overruled but we
will take your advice under
consideration you Mr
blitz so I believe I I just left off at
uh supplying you the minutes which was
exhibit 35 the minutes of the Planning
and Zoning Commission of March 24
2021
what's also informative about the March
24th 2021
minutes is that the chairman of the
commission as you can see
here believed that the moror moratorium
was set to expire in nine months and
chairman Brown stated that the
moratorium being passed by the Town
Council and to expire by the end of the
year the commission needs to devote all
its time to the comprehensive
plan so after the Town Council adopted
the commission's recommendation and
made and recom I apologize adopted the
commission's recommended comprehensive
plan and it became effective in May of
2022 instead of one single implementing
ordinance the commission made a series
of recommendations over time and as
you'll see the Town Council then took up
these separate ordinances over a period
of 18 months and they still have not
finished
them so the first major group of
implementing ordinances came with the
commission's recommendation of a new
zoning map and a series of text
amendments at its June uh I apologize
July 27th 2022 meeting for which it held
a public
hearing and that is I will submit 30
exhibit 36 which are the minutes of the
commission of July 27th
2022
so chair greengold stated in this public
hearing was called to receive comments
regarding the revised draft zoning map
and the draft supporting text amendments
that are necessary to implement the
recommendations of the newly adopted
comprehens a plan and note that this was
occurring after the continued refusal of
the zoning administrator and the
Planning and Zoning commission to
process the site plans that had been
filed on
January
21st I think of of
20121 and after the nominal expiration
of the moratorium in March 19th of
2022 if it had not been for the
moratorium which I believe we've
established was invalid from the outset
objection you know I think again this
has been going on and on about Mr Blitz
stating his opinion moratorium was valid
okay it was adopted by the Town Council
it was a proper resolution that has a
proper document it is 100% adopted and I
can appreciate the fact that he needs it
to be invalid to make to try to you know
make his case at all but the fact that
he's going on and on St that is
completely unro so I'm keep objecting
that that one will be sustained sounded
an awful lot like an opinion we haven't
established anything yet we're hearing
you present evidence right please
[Music]
continue so even after the public
hearing on the proposed new map and the
text amendments in July the August 4th
minutes show that the commission was
still considering changes to the zoning
map and the text amendments discussed in
July and not finalized its Town Council
recommendation I'll submit exhibit 37
which are the minutes of the commission
of August 4th
2022 sorry Mr buz what was that
again
of the
Z submit the minutes of the Town Council
of November 7th
2022 is exhibit
38 to show that the Town Council did not
consider
them first implenting ordinance of the
[Music]
um text amendments until that December
of
2022 so this is where they they
introduced the
ordinance the Town Council public
hearing was
set then I'll submit the minutes of the
Town Council public hearing and town
council meeting of November
17th 20122 is
exhibit
39
[Music]
so this shows that eight months after
the moratorium had ended in March of
2022 and despite the town zoning
administrator and planning and zoning
commission continuing to fail to proc
process those site plans the Town
Council was having its first hearings in
considering the first two implementing
ordinances after the hearings and some
motions to amend the Town Council
adopted those
ordinances those were ordinances
02212 and
02213 which were the first implementing
ordinances in this
process and as you can see on page seven
of that exhibit which is Page four of
the Town council's
minutes of November 17
2022 the Town Council considered and
passed ordinance
02213 but even on this date they were
doing so the Town Council was being
advised by the
commission that it was continuing its
work on more implementing
ordinances so I'll to demonstrate that
point I'll submit exhibit 40 which is
the report of chair greengold of the
Planning and Zoning commission to the
mayor and Town Council dated November 17
[Music]
2022
so as you can see by this November
17th
report to the mayor and Town
Council this demonstrates that the
commission was not finished proposing
its implementing
ordinances uh to implement the
comprehensive plan it was just beginning
the planning process of an element that
should have been included in the
comprehensive plan in the first instance
which is the critical area plan for the
town
as you can see at the but end there the
commission was just beginning to address
the ches be B Bay's uh ches Beach's
critical area local area
program which for years was done
concurrently with the with and as part
of the comprehensive
plan um and you should recall that all
five of the Roden reel site
plans are critical area plans
um to understand
why they really should have been done
part as part of the comprehensive plan
process um you should understand that
the town's critical area program like
all Maryland municipalities have one
that are in the critical area are
integrated into the zoning
ordinance it does that through overlay
zones an Ida which is means intensely
developed area limited development areas
I'm you know again you know now Mr uh
Blitz is giving his opinions uh based
upon what he thinks the Planning
Commission should have done and how they
should have done his job know that's up
to the Planning Commission and their
discretion so Mr Blitz can't sit here
and give his opinion as to what he
thinks should have been done uh the
Planning Commission has their own
discretion they had their own hearings
many public hearings uh with regard to
uh you know what what would happen with
regard to the ultimate comprehensive
plan so Mr Blitz giving his opinion as
to what they should have done now is is
Way Beyond he can possibly testify to
unless he's going to now testify as a
possible land planner expert in which he
wants to qualify himself as that then I
can examine him on that
too
uh the objection is sustained with
regard if I could be heard on the
objections before you rule
themad I don't care about the
opinion that's not the point of this the
point is that these are five critical
area sight plans they hadn't completed
them and I'm trying to show you how even
though they had passed the comprehensive
plan they had not passed the comp the
critical area amendments that would be
necessary for that site plan review and
I'm describing at this point something
that you can take judicial notice of
which is your own zoning code which
describes the overlay zones and how the
and I'm going to demonstrate how those
are related to the questions that are
going to be be posed in a site plan and
so it's not so much about whether they I
agree that commission didn't have to
pass it as part of the comprehensive
plan but but the fact that they didn't
and are just now doing it 18 months
after the
moratorium means we were still being
held up from having those things done
because those are also going to have to
be implement the those standards are
going to have to be applied in any site
plan review so the question is I'm just
expressing the fact that you've got a
critical area program that at this point
they're just starting to get to and I'm
explaining why that's necessary for site
plan
[Music]
review Mr Bliss I my recollection or
understanding is that the objection was
sustained only as to your opinions that
you expressed that it should be done at
the same
time is that the opinion you were
suggesting that I made because I don't
know what opinion I offered in that
context but I I said that most
municipalities do it at the same time I
don't know that that's necessarily an
opinion I think but it's me explaining
what
I see in most experiences I think we've
done enough and I think uh this board
could probably do with a f minute
break let's pick this up in
five
Mr Blitz can I ask you to try and uh
speak
up I I know you're having issues with
your voice I'm having issues with my
ears the problem is this broadcast is
just for them it doesn't
broadcas yeah all right everybody uh we
will resume with uh Mr blitz's
presentation so we were at the stage
where the commission was beginning to
address the comprehensive I mean the uh
chese B critical area program
um and I was explaining how that's
integrated into your zoning code so
you've got overlay zones which are
intensely developed limited development
areas and resource conservation areas um
they're buffers buffer exemption or
modification zones and habitat
protection areas uh and a few other
things that are implemented through that
zoning
ordinance um and just like the
comprehensive plan provides the policy
um for to support the zoning
ordinance the local critical area
program provides a lot of the policy
guidance to implement the the specific
provisions of your zoning code that
apply to the critical
area so as you can imagine there's a a
big overlap between
the base zoning that a commission needs
to consider as well as the rec
recommendations it's going to make with
respect to the changes to the critical
area
program in a in essence the the critical
area of local program is effectively the
comprehensive plan for those aspects of
the zoning ordinance that are related to
the critical
area
um and those implementing ordinances
once incorporated into the town's zoning
ordinance would then be applied
to the rod re site plans so while
technically the Town Council had passed
the comprehensive plan and it became
effective on May 11th of
2022 which was in your previous exhibit
31 um missing from that were the
critical area amendments which would be
relevant to the rod and re site
plans and so at this point in November
2022 the Town Council is just being
advised by the chair of the commission
that they were going to start taking
those up over the next few
months and before we move on to the
continuation of the implementing
ordinances I want to go back to exhibit
39 for a minute to demonstrate a detail
of the process that's important for the
board to consider in this
case not
advancing
want me to run through
them oh yeah okay it's working so let me
go sure I don't go too far
here okay so this is where we left
off so this is on page one and two of
the minutes of the November 17th hearing
minutes the Town
Council which was that first
implementing ordinance and as you can
see I provided a letter that was
addressing the proposed definition of
the maritime district and the
elimination of a bullet
point and I'll offer that as exhibit 41
which is my letter of November 17
2022 to the mayor in Town
Council
this is the relevant
portion of that
letter and it shows that I was reminding
the Town Council of the consistency
requirement that I had previously
described to you between the requirement
that these zoning ordinances be
consistent with the comprehensive plan
and to be implementations of a
comprehensive plan uh they're supposed
to be consistent um once it's adopted by
the Town
Council on page two of my
letter I pointed out that the first
bullet point of the maritime commercial
MC Zone included four bullet points in
the comprehensive plan to describe the
purpose of the zone and two of the five
projects for which the rod and reel
filed site plan applications are
located within that MC
Zone and the first bullet point of the
purposes Clause of the comprehensive
plan was quote
promoting the diversity of Maritime and
water related commercial uses and
intensities that have long defined the
town's historic
Waterfront my letter then pointed out
that ordinance
01222 that was the subject of the public
hearing um and the town was then
considering for passage
um had that first bullet point removed
from the purposes section of that
zone my letter relayed the fact that the
Planning and Zoning commission took a
vote to remove that bullet point not
withstanding that very same bullet point
was one of the four
describing the purposes of the MC Zone
and that was part of the comprehensive
plan now the reason this is important is
that the commission was yet
again
targeting the effect of what they were
doing at the rod and re site plan
applications by removing an important
bullet point to describe the Zone
despite it being an explicit
contradiction to their own recommended
comprehensive plan the OB point because
staying in his opinion as to what the
board may or may not have been thinking
or what may may have been doing he wants
to qualifies himself as an expert on
that that's fine but he hasn't he's just
stting an opinion as to what he thinks
the Planning Commission was thinking and
obviously he's not qualified to do that
that's not the kind of opinion you can
object to you don't need an expert for
that I'm asking the board to join me in
an join me in an inference and that I
can do all day long as long as the board
wants to hear it um so my point is
that there was an explicit
contradiction
and I'll I'll also make the point that
the MC
Zone which you're going to see when I
submit the next
exhibit basically is just the rod and
real properties there's one other
property but it's it's most just the rod
and re
properties so that's what I
mean by what the inference that you can
draw you don't have to draw it I'm not
ask demanding you draw it I'm saying
that it's a it's an inference that you
could
make they were removing a bullet point
because it described the nature of that
zone as the historic intensities which
is pretty much the rod and reel
properties
and that it was a contradiction to the
comprehensive plan that had just been
passed um the the objection is um
overruled for the moment please
continue
so this is just the last paragraph I
believe of that letter where you can see
that I'm asking that that bullet point
be added back into the implementing
ordinance by an amendment like Town
Council and now I'll offer exhibit 42
which is a combination of three
documents all demonstrating the points
that I've raised here page one is the
relevant page 67 of the comprehensive
plan that was passed on April of 22
showing the Four bullet
points that Define the purposes of the
MC Zone page two is the proposed land
use map on page 58 of the comprehensive
plan which shows the limits of the MC
Zone and then there is the March 23 2021
minutes which
show the vote to take out that
buet
so this is from page three of the March
23 21 2021 minutes of the commission and
there was an explicit motion made before
the commission to remove the first
bullet point that motion passed
next I'm handing out to the
board section 290
f
[Music]
so in subsection
L on page two you can see that Town
Council did not amend the zoning
ordinance to to add that bullet point
back in uh so now the current Zoning for
the ches be Beach is that as I described
in the purposes of the maritime
commercial district is now inconsistent
with the comprehensive
plan I think you can draw the
inference sustain
continue I'm you're oh sorry
um I assume the can you say the reason
for the objection I mean again uh you
know during during his if this is truly
testimony that he's giving you know
asking you to draw you know whatever
inference you can draw is up to you
that's up to decision with regard to
making it if he wants to make some type
of argument at closing or whatever he
can make suggestions but right now he's
telling you without being an expert or
anything like that the inference he
thinks you should be making uh with
regard to something that in essence the
Planning Commission did or didn't do or
whether they were fair or unfair to the
you know rod and reel or the
applications or somehow you know again
you know asking you to put yourself in
this in the shoes of the Planning
Commission that indeed they after all of
the mass number of hearings that they
had they could make decisions on their
own so the idea that he's at asking you
directing you to draw that inference is
is very much improper the objection with
regard to the language directing the
board to draw an inference is sustained
please continue content of your
presentation I could just be heard just
for the
record I this is not a trial where you
put on evidence and then make legal
arguments I'm putting on the
presentation of an appeal case that has
a lot of legal
issues that you need to to
resolve I'm pointing out the areas of
the law I'm pointing out the areas of
the ordinance that is relevant as a fact
and I'm asking you to draw inferences
based upon that because that's our case
is in part you making judgments about
whether the actions of the Planning and
Zoning commission and the zoning
administrator were arbitrary comous and
violated the town's zoning law as well
as Maryland
law I can ask you during the
presentation direct you to the inference
that I'm asking you to make doesn't mean
you have to make it you don't but I get
to make those arguments I'm making all
kinds of legal arguments during the
context of this presentation this is an
administrative proceeding that's the way
they
go this is a an appeal alleging error I
get to I get to make the points about
what I believe was the basis for the
error so when I ask you to draw an
inference I'm really just saying follow
along my
argument if you'd rather me St say say
that phrase that way follow me along in
my argument it sounds kind of clunky
but
uh the objection is still sustained
please
continue so the the commission and the
Town Council have continued to recommend
and
introduce and pass implementing
ordinances even into
2023 in March the Town Council took the
interesting steps of passing resolution
R
23-2 I'm going to offer the public
hearing minutes and minutes of the Town
Council of March 16 2023 is exhibit
43
Mr Blitz I
apologize
uh that was number
43 minutes of the Town Council it well
it's the public hearing minutes and the
minutes of the Town Council of March 16
2023
yes as you can see on page eight a
motion was introduced at the same
meeting at which it was considered and
passed and therefore did not follow the
requirements for legislative enactment
set forth in the charter and Maryland
law that was resolution
r232 reporting to lift the
moratorium as you can see by looking at
the first two pages of this
exhibit which are the public hearing
minutes there's no record of a public
hearing on this
resolution and as we previously reviewed
with respect to the original resolution
r213 and
r218 they did not attempt at all to
follow the requirements for changing the
effect and
applicability of a provision that
changes the effect for applicability of
a zoning code
provision on this one they didn't even
hold a public hearing on the topic and
so so did not even allow public comment
on it before its
consideration I'll next submit exhibit
44 which is the resolution itself r
23-2
so this is a copy of the resolution
r232 first the board should note that in
the second where as Clause the
resolution improperly recites what the
condition for ending the moratorium was
to be as it only references the
completion of the comprehensive plan
remember the moratorium was to allow the
completion of the comprehensive plan and
the implementing
ordinances there was apparently some
discussion of the need for implementing
ordinances at the Town council's work
session the week before on March 7th
2023 and I'll submit is exhibit 45 the
minutes of the Town Council
informational work session of March 7th
2023
as you can see on page one of those
minutes the coming moratorium resolution
r232 was discussed and at the end of
that paragraph the minutes showed that
there was a discussion of whether the
zone text amendments and cleanup
amendments would be implemented in time
for the resolution's
approval so at least the ideas of the
implementing ordinances being necessary
was subject to
discussion but back to the resolution
itself the resolution makes no mention
of any consent or resolution of the
Planning and Zoning commission to
terminate the
moratorium which was as you will
recall was what the town attorney was
saying in his May 25th 2021 letter was
necessary for the moratorium to be
terminated this is because there was no
consideration by the Planning and Zoning
Commission of a termination of the
moratorium the commission never
considered it as far as their minutes
disclose they certainly held no public
hearings about ending the moratorium nor
do I find any evidence that they passed
any resolution recommending or
authorizing it I'll submit exhibit 46
which is a minutes package for the
Planning and Zoning commission for the
meetings of January 25th 2023 February
22nd 2023 and March of
2023 which were the three months prior
to this resolution being considered by
the Town Council merely to demonstrate
that in no time did the Planning and
Zoning commission hold a hearing make a
motion or consider the termination of
the
moratorium and that's exhibit
46 of course I'm to object on that
because you know again we're dealing
with the half
truths um and he just said that the
Planning Commission didn't uh uh uh
consent to the uh termination of the
moratorium Planning Commission doesn't
have that Authority Town Council has
that Authority the Town Council adopted
the moratory not the Planning Commission
so we' you know we' spent the last 10
minutes talking about what the whe what
the Planning Commission did or did not
do with regard to the moratorium the
Town Council did that not the not the
Planning Commission so you know it's
it's you know and again we're dealing
with these these half truths that are
being you know asserted and then he
comes back and you know makes the
statement oh the Planning Commission
didn't consent to the uh lifting of the
moratorium it's not their resolution nor
they have the authority nor do they have
anything to do with it so
um just want to make that comment Mr Mr
chair if I could he be heard I'm going
to object at this point to the use of
objections for argument because I sub my
objection is a motion to strike his
entire testimony for the last 15
minutes you made a motion an objection
to an exhibit I offered which is three
minutes of a Planning and Zoning
Commission on three different dates all
government documents or the official
record of that committee offered to
demonstrate that they didn't consider
something it's relevant because your
letter said that the town that the
Planning and Zoning commission had to
participate in that
decision that's already an Evidence and
so therefore let me finish
therefore I don't see how you can object
to the admission of the minutes of a
commission to prove that they didn't do
something
but what's happening here is that Mr
pounds is using objections when I
introduce minutes to make
counterarguments in the middle of my
case and this is a lot like the first
hearing where half the time we're being
distracted by what I view is argument
well then first of all we can't go down
the road of half truths and number two
is you know that the fact that I think
we all passed government 101
uh and that you know we all know that it
is indeed the legislative body that
makes legislative decisions I mean now
now the fact that Mr Blitz is coming
back and saying oh well the Planning
Commission which is an administrative
agency making certain decisions on
behalf of the Town Council they can't
they don't have the authority we all
know it okay so
again with regard to the half TRS or
spend just want to make sure that indeed
that's being recognized oh um we're g
to okay um I
um I understand the that okay so
objections from now on and should have
been the whole time will be given to
prevent testimony or evidence from
entering into the record not to correct
things that have been said or said in
meeting minutes um it is only to keep it
in or out of the record so please use a
objections for that
purpose um so um Mr Blitz your objection
is sustained and um Mr pounds your
objection is
overruled please continue with the
presentation
so I submitted
those exhibits to demonstrate that not
once in any of those minutes is there a
reference to any discussion for
terminating the
moratorium much less a public
hearing remember I in the first hearing
I cited the law where you have the
Planning and Zoning commission giving
recommendations about anything that
changes powers under the zoning
ordinance they did that for the original
resolution I'm pointing out that they
didn't do it for the termination of that
moratorium
going to submit exhibit
47 which is the report of the chair of
the Planning and Zoning commission to
the mayor and Town Council dated March
16
2023 two days before the town council's
meeting where it passed the resolution
r232
this report let me do the
slide this report from the
commission the chair of the commission
to the mayor in Town Council also didn't
mention the resolution or any
recommendation of the commission in
terminating the
moratorium but it did note that they
were working on more implementing
ordinances this time it was about the
compatibility standards as you can see
at the bottom there
um and I think my argument would be if
if the commission had considered it
would have been included in that report
certainly would have been included in
those
minutes and it's also interesting that
in the the second paragraph you can see
that the chair notes that the commission
was beginning the discussion of the
critical area comprehensive
review and she notes that that was due
every six
years so the moratorium That was
supposed to have lasted nine months then
was extended for an additional three
months was some two years later being
quietly terminated by a simple
resolution without any public press
releases without any public hearing or
input without a commission
recommendation hearing or
resolution at some point you have to ask
how do how long does a property owner
have to wait to have their site plans
reviewed was this process
fair is this how you expect the zoning
laws in your town to be applied to
Citizens and Property
Owners while nominally lifting the
moratorium
the zoning administrator and the
Planning and Zoning commission have
still not taken any action on the site
plans so that was in March of this year
they still haven't done anything with
the site
plans the Roden reel has received no
Communications from either of them
suggesting the start of that review or
scheduling of any hearings as is
required under their zoning
ordinance these applications were on
file in January of
2021 the more orium recognized that they
were on
file as these applications were recited
in the commission's resolution and the
Town Council resolution
r213 as being the very purpose of the
moratorium yet both the zoning
administrator and the commission
continued even up to this date to act as
if they don't exist and were never
filed
the commission continued to
recommend additional implementing
ordinances which would still be
necessary for Rod re site plan
application
review I'll submit exhibit 48 which are
the minutes of the July 20th 23 Town
Council public hearing and meeting
minutes
as you can see on page one of the
hearing minutes the Town Council was
taking up ordinances
02316 17 and 18 which are amending the
zoning ordinance to implement the design
standards for tow houses a new standard
of compatibility and up toate and an
update to the urban for Forest sections
of the
code all three of these flow from
recommendations that you can read in the
April 2022 comprehensive plan the design
standards for tow houses which would
have which would impact the Roden reel's
stin it place and Homeplace
applications and the standard of compat
standards of compatibility which would
impact them all were very big issues
discussed during the comprehensive plan
process and so even as late as July of
this year they were just getting to
implementing Those portions of the
plan the first two ordinances would
impact some of the rod and reel site
plan applications if those laws were
retroactively applied to the
applications all three of the ordinances
were passed by the Town Council which
you can see on page five of the exhibit
which is page three and four of the uh
Town Council session
minutes
next I'm going to offer as exhibit 49
the Town Council public hearing
minutes and minutes of the Town Council
of September 21st 2023 is exhibit
49 hi Mr Bliss what was 48 48
was the minutes of the July 20th 23 Town
Council public hearing and
minutes so this is
49
proved but your
agend got that and so that's not have
binders is just being replaced with the
actual formal
minutes so I offer this to show you that
the Town Council is still offering
implementing ordinances in this case
ordinance
023 21 on the standards for conditional
uses also subject to much debate during
the comprehensive plan process and
implementing the comprehensive plan
policy recommendations into the zoning
ordinance
so the board understands that the
implementing ordinances are not yet
complete even as of this
date one of the rationals for
dramatically changing the zoning
ordinance in the center of the town
which is primarily the MC Maritime
commercial District impacting The Three
Rod and Reel projects was the threat of
sea level
rise you can read that in the
comprehensive plan it was also used to
justify less dramatic changes that would
apply to the Senate
property I'm going to offer as exhibit
50 pages 38 to 48 of the comprehensive
plan that was passed in April of
2022
so as you can see from this exhibit what
the comprehensive plan did was use
projections from the Maryland Commission
on climate change to plot what areas had
a a 5% higher chance of flooding uh they
did this using two maps showing the
projected risk areas for the year's 2050
and
2100 but using a 10% exceedence
probability rather than the 5% and then
the map show the lower risk areas of 1%
and two10 of a
percent so oops I apologize I think I
went the wrong
direction so this slide shows the 2050
predicted reach of periodic flooding
which is a map seven of your
comprehensive
plan
this one is the 20 the year 2100
predicted reach for periodic flooding
which is map eight of your comprehensive
plan and what the plan did was
established three zones of
vulnerability which you can see here are
shown on page
42 of the comprehensive plan and two of
those zones of vulnerability shown on
maps nine and 10 of the comprehensive
plan would cover four of the five rotten
re site plans
applications now I want to be
clear that we're not contesting in this
hearing the commission's role in using
such
information the maps making
corresponding plans or even judgments
they made we can't challenge that in
that Con in this context it's not
relevant what I'm showing
you is to point out to the commission
was creating these zones of
vulnerability in the comprehensive plan
and had two specific recommendations in
the plan based upon these
zones and this is all in the same
exhibit as this slide shows there were
three substantive recommendations for
the vulnerability zones first that for
areas that expected to be submerged when
the Bay water level rises by 2.1 ft the
plan recommends that the regulations and
policies be adopted to prevent further
Dev development or intensification of
land use activities and that no
residential land uses be
permitted this recommendation has a
direct impact on one of the five Roden
reel five uh Roden reel applications
known as Harbor Vista
West the second recommendation was that
detailed plans for three vulnerability
zones be adopted and most important to
this case that the town would postpone
formal review and approval of
development plans in these
areas so under this concept even after
the moratorium would expire there would
be a recommendation that any development
plans not be reviewed until the specific
details for these vulnerability zones
would be
developed this could explain why even
after the council passed the resolution
to r232 in March of 23 reporting to end
the moratorium the zoning administrator
and the planning of zoning commission
have still not not taken up the site
plan applications that were filed in
January of
2021 those plans for the vulnerability
zones have not yet been developed and no
implementing ordinances have been
submitted yet they're still working on
those and they're in their study for the
comprehensive
plan and those vulnerability zones cover
potentially large swaths of
town I'm going to show you
in exhibit
51 which
is Page
24 of a draft
plan dated June 22nd
2023 of the coastal resiliency steering
committee as well as a on the second
page uh a a screenshot of the Town
Council I mean the the town's website
describing the plan for this committee
and I offer that as exhibit
51 to that because now we're discussing
a draft plan that was wasn't adopted at
all I mean
this hold on um that objection is
sustained because it is a draft why
don't you state it Mr Mr Blitz
turn so reason for showing this plan is
to show you that a whole bunch of
implementing ordinances that would be
applicable to the media are still being
worked on and what the schedule is
second page of this exhibit shows that
is it going to be
considered
um it was held a meeting in November 2nd
of
2023 um to discuss the public comments
and it basically sets forth what they're
going to do so these are upcoming
implementing ordinances that directly
impact the rot real site I'm not
offering there's no you don't need to
evaluate the truth or the veracity of
anything in this draft plan it's merely
showing that they're current this is
where they are currently working on for
implementing ordinances which were a
very big part of a comprehensive plan
and as I read to you one of the
recommendations for these zones was
removal of all
residential um development in the MC
Zone well that's three of the five
projects for the rod and reel that's why
we're offering it's there's nothing
about the validity of this document it
show really showing where they are in
the process of developing and
implementing
orance
the objection will be sustained for
black
Foundation where that document came from
who prepared
it
just so the board knows it's a plan
directly on the website of the town you
can take judicial notice of that it's a
town document that is being offered by
the town as where the the coastal
resiliency board is in this part of the
process that's all I'm really just
trying to show
you but you if it's sustained that's
fine okay thank
you reminder we have about five minutes
left this evening
so
so I'll finish off with exhibit which is
now
51 uh September 21st 2023 report of the
chair of Planning and Zoning commission
to the mayor and Town
Council Deber uh 21st
2023
this report
shows the continuing implementing
ordinances that are going to continue to
come commission was making revisions to
the local critical area
program those will come in as ordinances
they are also now working on the new
signage regulations and intend on
revisiting the development of housing in
relationship to Steve
slopes and I think this is
probably the best point for a stopping
point um I'd like to
um let the board know that um I will
clearly be finishing the applicant's
testimony at the next hearing just so
you can think about schedule um
and um I thank you for your time and
consideration you think you'll eat the
whole following two hours or will it be
some fraction of
that that really depends on the extended
scope of cross-examination because that
will be a lot more testimony from Mr
Woodburn and Mr Donovan so let's make
the assumption that it will take the
entire time and if it happily doesn't um
we will determine whether or not to
break or to go directly into um Mr to's
uh presentation or whatever he likes to
provide okay um at this point uh I'll
entertain a motion to adjourn the
meet yeah I'm about to do it um our next
meeting will be uh November 14th which
is Tuesday at 700 pm here at chese Beach
Town Hall um at this point in time I'll
entertain a motion to adjourn this
meeting until then I will make such a
motion I have a second second all in
favor I all right thank you motion
adjourn
ajour