[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