[Music]
everybody um I think we are ready to go
um once again um we've had some
technical difficulties here so briefly I
will summarize for the recording where
we are uh we have done the call to order
and roll call for the ches beach board
of appeals uh 7 p.m. November 14
2023 we have a quorum on the board we
went through some brief announcements uh
concerning uh how this meeting is run um
and then we reintroduce the continuation
of case
2023-the from Mr pounds before we
continue Mr
pounds announce that date just so people
in the public can apologies good idea
yes uh one announcement that is
important for the recording is that our
plan schedule is to resume Thursday
January 4th 2024 at 7 pm that's January
4th
2024 uh thank
you uh Mr pounds okay Mr chair uh
members of the board again uh good
evening uh Todd pounds representing the
town of Chess be Beach uh ladies and
gentlemen uh basically we you know we're
here today uh basically to hear uh you
know was supposed to be sworn testimony
and hearing with regard to this
application as it turns out at the
beginning of this uh the board uh indeed
instructed Mr Blitz whether he was going
to have certain Witnesses testify and
indeed uh Witnesses got up raised their
hand and swore uh took the o to SW to
tell the truth uh I remember seeing two
people uh uh and nence uh we had sworn
in Mr Donovan and also Mr Woodburn uh at
that time I didn't really look but I
really didn't see Mr Blitz indeed
swearing himself in uh at that time Mr
Blitz uh then began his testimony which
became a narrative in which he began to
speak uh and go on uh which has now gone
on for about five hours regarding his
interpretation and what was supposed to
be quote unquote testimony uh at the end
of the uh the last hearing at the
beginning of the last hearing I made a
motion that indeed that was completely
improper for Mr Blitz to just uh give a
narrative like this uh indeed as a
result because it is indeed not
testimony he can't sit there and just
you know give a narrative and testimony
as he's going to be going forward Mr
susman then testified didn't testify but
he then made the statement uh I think
and Leisa if I didn't if I'm
paraphrasing that correctly let me know
I think that Mr Blitz swore himself in
uh and Mr Blitz definitively stated that
point yes I swore myself then uh at that
time the uh the hearing went on and we
spent another couple of hours uh indeed
for the rest of the hearing basically
you know which is in essence Mr Blitz
you know stating his quote narrative
which was indeed testimony as evidence
now what that why that is that important
a narrative is just someone talking okay
that is not uh in any way evidence that
is not in any way for you to be
evaluated as as evidence testimony is
evidence that's the reason he has to be
sworn at so as it turns out I then uh uh
contacted Miss wall and I wanted to
indeed verify that indeed Mr litz had
sworn himself in and as it turns out he
did not um he did not uh swear himself
in with with regard to uh that he did
not raise his hand and according to the
video it did not appear that he said I
agree to tell the truth so in essence
that is a big problem uh in that we are
now five hours which is most of it into
is what Mr Blitz was talking about as
being a narrative which means that
indeed without him swearing himself in
none of it is evidence uh I mean none of
it is to be considered by you as
evidence in the trial that is nothing
more than him doing his talking and
really it's it's you know maybe
considering his opinion but it indeed is
not in any way fore to considered as uh
evidence uh or as testimony as a result
of his fear to SW SAR himself
in now again you know now it's
Undisputed that we do have you know uh evidence that came in through the
records okay that doesn't apply to these
those are records and you can certainly
review those records as you think is
appropriate but this is primarily
talking about what Mr Blitz was talking
about uh in essence uh his
what I'm going to call a narrative that
indeed testimon so basically everything
that he has said so far I'm moving to
strike because in essence it is not
evidence and you're not and and you're
not to really consider that at all well
here's a problem uh here you have a
board and you're into this for five plus
hours and I'm asking you for course
under the law indeed you're not to be
considered anything that is said okay I
mean so is a problem for this board
because in essence
would you know if you're being
instructed to indeed not review any type
of evidence or anything like that to
just open it and close it and pretend
like you never heard it well that's
almost impossible especially going on
for five hours I can certainly
understand if it was one comment here
which 99% of the time you see that as
far as AEM motion to strike a comment a
motion five hours it becomes almost
impossibility okay but at the same time
that's where we are and uh so that's
what I'm going to be asking you to do is
in essence with this motion to uh uh
indeed strike everything that he's
indeed said so here's the other problem
uh which is as a lawyer okay I consider
it a big problem I mean a big problem um
Mr Mr Blitz when he was asked by Mr
susman did you swear yourself then and
he was definitive yes
okay it wasn't a I think so I mean if
I'm wrong on that we can go back and
look at it but it was a yes I did and
all sudden the testimony began to
proceed the problem is that is a
definitive statement by a lawyer to this
board during a hearing that's a problem
lawyers cannot make you know definitive
statements which are in essence
misrepresentations to a board you're not
supposed to make it anyway especially D
to a board during the hearing and that's
what's happened so uh where does that leave him what does that leave the
board I don't know okay I'll be frank
because this all this happened you know
I I got it yesterday and in essence I
contacted Mr susman this morning first
thing this morning was about 7:30 this
morning when I sent the email and I said
we have a problem okay this is a problem
with regard to you know where we are
with regard to all this and so uh
basically when you came in today we were
Mr susman uh Mr Blitz and Miss wall and
I were all in the room trying to figure
this out and believe me nobody has a
solution to this because now we have in
essence what I consider a big deal an
attorney making a definitive
misrepresentation to this board um how
that's going to be handled or what what
is the consequences of that I'll be
frank I don't know but indeed it's a
problem
so basically you know and the reason I
say that okay and I'm going to put it on
the record because you you can make what
whatever judgment you want to because
I'm not sure ethically where we are with
all this I mean I don't know because uh
you know we have an attorney who's been
uh getting a narrative which was
supposed to be a statement and testimony
the last five hours which now should be
stricken and yet the attorney made a
misrepresentation to the board yes I was
on their oath which everyone assumed he
was but now was not uh where that leaves
us all I don't know um but uh I I did I
have contact with the council because my
obligation to inform councel indeed of
what's going on that's my job that's my
lawyer I'm the lawyer they the client
and I was told one thing follow the law
okay and in essence uh and then in
speaking to the mayor I'll be Frank what
he said was if you need professional
interpretation all this you may need it
okay which we may need that too but it's
one of these things where uh I'm
bringing it up because indeed it is a
concern of mine that indeed I think is
very
valid so you know and and it's one thing
that uh uh was brought up but I even
have the note here before was brought up
about possibly uh trying to say okay
well let's swear men now and backdate
everything and just say oh okay I'm
going to accept everything as it as was
as it was done because I indeed you know
had it written down here beforehand in
preparing my notes the problem is you
can't do that you can't just sit there
and say because there's very D various
Dynamics out there that are indeed
there's testimony and then narrative and
then say well no I've changed my mind I
wanted to be testimony now so you just
accept everything as testimony you
simply can't do that okay and I can give
you an example of it uh let's say you go
out and rob a bank and you get caught
and you give the money back and you can
say oh I gave the money back so all of a
sudden it's no longer a problem no it is
a problem because that's indeed where
the issue comes in so uh so why is all
this important because it has to be done
right okay and indeed it has not uh
especially with the fact that we uh for
five hours of what was purported to be
testimony which was nothing but
narrative in essence which you should be
completely ignoring because it it does
is not evidence at all and as a result
you know by this motion to strike in
essence asking you to say no you need to
ignore everything you've been hearing
and sitting here for the last five years
which creates an impossibility but for
right now indeed this motion to strike
uh is you should ignore everything that
uh basically everything you've heard
from Mr blitz so far because it's
reported to be testimony and it is not
thank
you um at this point uh Mr Blitz would
you like to offer a response sure thank
you Eric Blitz on behalf of the Roden
reel um I think from the
beginning Council for the town has tried
to make make this
proceeding something that it
isn't he's tried to turn this into a
trial make objections that wouldn't even
be sustained in a trial such as
objections to uh government
documents um claiming they were hearsay
administrative bodies can take in
hearsay it's even in your own
rules and create a circus-like
atmosphere challenging all of our
evidence and this is in essence a Hail
Mary to try to strike our entire
presentation let me be clear I think I
was I was sworn
in today a half hour before this
proceeding I was told that by Mr susman
and Mr pounds that somebody believes I
wasn't Mr pounds just testified that it
was Miss wall she hasn't obviously
testified so he's BR bringing in uh
information but my point is I don't
think it matters because I don't
think that in an administrat proceeding
what I'm
doing is testifying I'm not offering
facts of my own recollection or
independent judgment I'm submitting
documents and while I submit documents
I'm giving you the arguments about why
those documents are relevant and
pointing out to you the the relevant
portions of those documents so when I
made arguments about the effect of the
charter on the question of whether you
had to do a resolution or an ordinance
I'm not testifying about that I'm making
this this uh Roden reel's
presentation Mr pounds kind of bounced
back and forth in his objection as to
whether I was make doing a narrative or
evidence and said well it a narrative is
in evidence anyway well then what is the
swearing in
business about because you don't need to
swear in the presentation of the lawyer
under land use article
4306 a part party to an appeal can be
represented by themselves or by a lawyer
I've seen plenty of administrative
proceedings where the only person that
shows up is the lawyer they present
the argument in favor of
aarian now I've never really seen
lawyers sworn in but you had us all
stand up everybody in the room and I
think I was standing up and I think I
got sworn in but apparently I I did I
didn't raise my hand I know that so if
you believe that that's necessarily
relevant to being sworn in I don't think
it is I think I kned my head but
when Mr susman I think it wasn't in the
second hearing it was in the last
hearing asked well weren't you sworn in
I thought I was so I said yes my point
is he's trying to strike our entire
presentation which most of which other
than Mr Donovan's testimony in the
beginning and Mr Woodburn's testimony
have been me introducing a series of
documents and explaining to you what law
I think applies I think that's very
typical presentation made in an
administrative hearing where you don't
have Rules of Evidence where you take in
all the information you can and
determine then whether it is relevant to
the cause of action or the decision that
you need to make you will hear testimony
from countless people that will provide
information that isn't relevant that is
members of the public will often talk
about things that aren't really
necessarily relevant to the case you let
it in why because that's the nature of
administrative proceedings so when I'm
making arguments about
the
documents almost all of which were
either correspondents or from the town
or resolutions minutes we you know
plenty of at least three quarters of the
exhibits were minutes these are
government documents I don't need to
swear to them there's no standard by
which you have to I mean you overruled
all those objections that he was trying
to make to prevent those documents from
coming in
and all I'm doing is presenting the
arguments in favor of Roden reel's
position that there was an error
committed I don't I don't I didn't
testify to any independent facts that I
can recall I didn't offer any
opinions um I think I might have said
something about the common way that
things happen in um a hearing before I
think I made some sort of statement like
that so I mean that's kind of typical
statements by lawyers as to as to
addressing what the case is that's not
testimony um but again I think I was
testified I um Mr pounds is right that
as a member of the bar I am committed to
telling you the truth doesn't matter
whether I'm test sworn in or not I think
I have I don't think there's anything
there at the last hearing
and this is kind of why I think this is
coming up now Mr pound started talking
about half truths and he said it about
three or four times about things that I
had said and one of them was about his
own
letter and I literally just read that
letter into the record it was his words
it was a question of whether the the
Planning and Zoning commission also had
to approve the ending of the
moratorium my
point is
that it's typical for when making a
presentation in an administrative
proceeding to decide is this a timeline
type case or is this you know just a
couple key issues this was a timeline
case and I I have taken you through the
timeline by showing you what the town
did or didn't do by introducing a lot of
exhibits that were all admissible
I think you only denied one at the end
of last hearing that I recall
um
and the standard for such admission in
an administrative proceeding like this
is largely relevance so if it's re if
it's irrelevant or if it's duplicative
but basically everything else comes
in
so again I think I got sworn in but I I
can tell you everything I've told you in
this presentation I believe to be
accurate and that's true with respect to
my commentary about the town Charter or
my commentary about um the effect of the
land use article on uh whether you have
to pass an or a moratorium by an
ordinance or
resolution that's what lawyers do is
make arguments about the the various
laws this has largely been a legalist IC
case I get that it's not like your
standard variance case where you get a
lot of testimony about the particular
property and you're determining whether
a variance should be granted that has a
lot more testimony this is a challenge
saying that what some what the two
administrated bodies did the zoning
administrator and the Planning and
Zoning commission were improper and
illegal and therefore should be remedied
it's ultimately a a legal case we have
facts and
I was ready today to actually have the
most testimony you've heard because we
were going to have Mr Woodburn and Mr
Donovan testify because now that we've I
believe
established
the illegitimacy of the delay in
reviewing the site plans that we're now
ready to talk about the remedy and
because the remedy involves lots of
questions
of what what what the course of conduct
for these properties were and the
history that requires testimony so my
point is I think I was sworn in I did
tell the truth and um I don't think
striking all of the presentation which
is just that is just a presentation it's
not testimony I didn't testify all I I
mean I don't know of any particular fact
that I gave you that would be something
that you would have to test credibility
about I if I tell if I say here's a copy
of your Charter the way to argue that I
presented the incorrect version of the
charter is for somebody to say well wait
a minute I've got this version of the
charter but other than that I'm pointing
your pointing your attention to part
portions of the charter and saying this
is relevance to our argument and that's
what I did and this is an administrative
proceeding so that you're not trying to
convert this into a trial where you have
lots of objections over evidence and and
lots of back and forth I
mean if I had to uh do anything again
the one thing I complained about was a
cross-examination about um it being
argumentative uh Mr pounds made a
question and I was saying it was being
argumentative and on reflection I was
like this isn't a
trial just just let him answer the
question if he can so anyway that's that
would be my point I think um I'm
certainly willing to uh be sworn in I do
not typically I do a lot of zoning cases
I've represented Boards of appeal I have
never sworn in a lawyer or been required
to be sworn in on uh but I'm certainly
willing to because I believe everything
that I've uh presented to you is the
truth and I can tell you that if
you believe that everything should be
struck then we essentially start over
and we do this all over again but I'm
going to make the same argument I don't
need to be sworn in for that I'm making
a
presentation thank you very very briefly
one
moment all right uh Mr pounds very
briefly um again your job ultimately is
to base a decision based upon evidence
uh that's what you're ultimately going
to be looking to do and that is
ultimately going to be your job
basically Mr Blitz was talking about me
going back and forth between you know uh
testimony and what I call a narrative
and what difference does it make well it
makes huge difference okay huge
difference because the narrative is
something that's not evidence that's an
opinion that's whatever he wants us to
say testimony is evidence so in essence
what in uh everything he's been talking
about the last five hours as it turns
out is is nothing but a narrative is not
evidence for you to consider and uh and
as a result if it's not testimony then
indeed you should not be considering it
now you you and you should be ignoring
everything that's not evidence indeed if
he wants Mr Blitz talks about a number
of time of making his argument that's
fine you make an argument at the end of
the case okay when you present all the
evidence you make certain arguments with
regard to you know what what the uh
evidence shows uh in showing your
position that's fine but the problem is that his arguments are during the
case and becomes and that is not
evidence that becomes a narrative and
that's what in essence we've been going
through for the last five hours uh so in
essence I appreciate Mr Blitz talking
about that he uh indeed uh admitted that
he did not raise his hand and he cannot
testify for sure that indeed I mean is
that what he just said that he admits
that he did not raise his hand yeah but
that's all I said I said I did believe I
was sworn in so so in essence uh uh as
far as being sworn in um so basically
you know and why this is important if
it's not evidence that indeed you should
not be considering it uh as stated one
of the things that I was instructed to
do uh is to make sure it's this is done
right and uh so that's the reason I'm
here this evening ladies and gentlemen
thank you very
much
um thank you all right at this point in
time um the board is going to go into a
Clos session with legal council to
discuss the arguments you've heard um
this is from the open meetings act
General provision article section
3-35 uh the statutory authority to close
session um this me meeting will be
closed under the following subsections
of the Maryland annotated code General
provision article
3305b uh and we are going into close
session to consult with Council to
obtain legal
advice um so what's going to happen here
is uh the board will go into the back
room and deliberate with our Council and
then we will come back out here and
announce any decisions that have been
made um and unfortunately nothing will
happen out here while we are doing that
so if if I may clarification uh the
board is not going to deliberate with
Council going to uh discuss legal issues
associated with motion and response with
councel okay at this point the um uh I
guess I will entertain a motion uh by
the board to go into closed session I
will so move have a second second all in
favor roll call roll call all right
um uh okay um Mr dhy present Miss
Everett present and Mr hunar I am
present I take it the presence me I CL
session yes all right I all in favor all
right we are going into close session
and we will resume once that is
complet
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is the video still going okay okay um so
the board of appeals has um closed its
closed session um at this point um the
board is going to discuss how we want to
evaluate the objection uh that has been
raised um during the session um and I
guess the board will start with a
discussion which revolves around
reviewing a limited segment of the video
uh from our first meeting here I don't
have the
first for the uh around the swearing in
of witnesses and participants um during
the first and third session of case 20
23-3 um is there anything the board that
I misstated that we want to
discuss well I mean I certainly would
like to see the video before I made a
determination
I concur I think that it's important
that we watch the video just so we have
a clear understanding of what's happened
and I think we owe it to
everybody all
right I agree with both of those so at
this point I will entertain a motion
that we direct Town staff to um find the
appropriate times during previous
meeting sessions and and prepare them to
be displayed during our next uh our next
meeting on the on January 4th
um I will entertain a motion to do
that I will still move second second all
in favor I okay so um with that um
during our next session on Thursday
January 4th 2024 at 7 pm we'll Begin by
reviewing um some
select uh sections of the record um from
this case around Witnesses being sworn
in and testimony being given
um okay uh the in that case it is 15
after and we go for if I could be
briefly heard yes um if you're going to
review testimony I think you should
review all also the point in time that
you were asking me whether I was sworn
in because I was just informed that I
didn't definitively say what I said was
I believe I did you asked whether I was
sworn in I believe I did but if you want
me to I'll be sworn in right now so it
was that statement I don't know whether
you really need to see that but my point
is this argument about whether I had
made some commitment to whether I did I still do believe I got sworn in but um
I remember I was standing and I was
trying to get West to stand
up we will we will get those things for
you okay um and
uh um I think Town staff is best uh
situated to get that queued up we have
the records we'll find the point in time
if you'd um if there are points that
you'd like to highlight or not highlight
you are welcome to submit them to Sharon
and we will have that queued up for our
next meeting
um okay uh the we are entirely blocked
by this motion so once again I'd like to
apologize to members of the public
another date you showed up and do not
get to speak so we're sorry um but we
must um solve this particular issue
before we go on uh and in that case
there is no more business that the board
can take this evening so I will
entertain a motion to adjourn and then
resume on Thursday January 4th 2024 at
700 p.m.
do I move to adjourn have a second that all in favor all right we
are adjourned thank you
everybody