all
right
okay
[Music]
n
o' uh hello everybody uh welcome this is
the call to order for the chesap beach
board of appeals um 7M January 4th 2024
uh we start with a board roll call
please announce that you are present uh
Mr Paul dhy present Miss Amy Everett
present Mr Sten sharp I am Jody honstar
um we have a quorum um a note on uh
public comments um we're going to start
doing a new thing here where um at the
beginning of each meeting we'll ask
Sharon if there have been any public
comments since the last time we got
together um and so that's what this is
so Sharon have we received any public
comments to be entered into the record
um concerning uh case
20233 yes we've received six uh six
comments okay uh we will do this every
time uh the contents of the comments
will not be addressed at this time time
but they will be entered into the record
um and addressed later um one notice
about witness questions um people who
have signed up as a party of record May
uh ask questions of a witness at the
conclusion of that witness's testimony
just so you're
aware
um uh okay uh next item is the meeting
minutes approval which were from we kind
of punted on uh last go round um we have
three minutes to approve uh three three
sets of minutes uh for the meeting on
November 8th 2023 November 14th 2023 and
also November 14th for the board of
appeals closed session um at this point
in time I will entertain a motion by any
board member to approve all of these
minutes I will make that motion I have a
second all in
favor all right uh meeting minutes
yes
I have yours I have
yours
yeah okay can we make sure the copies
are
[Music]
provided also a copy from
me uh okay
um see okay so the next bit is normal uh
normal announcements uh tonight we'll be
we be having a two-hour maximum length
session we will end around
900m unless the you know we need to end
earlier for other reasons um for the
public uh direct all comments and
questions to the board uh chair myself
or our legal counsel this applies to
everybody um please do not ask the
petitioner staff members uh any
questions or make comments um we uh in
the order of presentation here we are
still uh considering Appel and testimony
and Evans given by Mr Blitz once that's
completed I will move to Mr pound M Mr
pounds for his testimony and evidence
from any staff um at which point in time
after all that the public will get their
chance to um be heard um once the public
is done we'll move to summary statements
um at which point we will close off and
begin of deliberation so as normal if
you came to have your voice heard it
will probably not happen tonight uh we
are accepting written comments at any
time whether you'd like to leave them
here with us in paper form or submit
them via email to the Town staff members
any of those are fine or you can hold
them and give them verbally whenever it
is time for um public
statements uh okay
um
yes heard something I didn't fully
understand yeah you you said that those
that signed up as a party would be able
to ask questions of a someone who
testifies at the conclusion of their
testimony yep at the conclusion of
testimony of their testimony yes and and
you and you uh you said that all
questions had to be directed to the
board so I wouldn't be asked yeah you
you kind of um yes you could also said
that public comment wouldn't be tonight
but it sounds like if he ends his
testimony yes public comment would be
tonight it's not necessarily comment but
it's questioning the questioning the
witness is permitted yes questioning the
W thank you questioning the witness
about the witnesses testimony
yes uh okay thank you yeah um so uh
before we continue with this actual case
we are still kind of in a holding
pattern to address an objection that was
raised by uh Mr pounds on November
14th um at the conclusion of our last
meeting we decided that we were going to
pull up a video um from uh the sessions
at which um Mr Blitz and others the oath
um and we were going to review that
video and then the board was going to
discuss whether or not we thought there
were any problems um whether or not Mr
Mr blit Mr Blitz did or did not take the
oath um to tell the whole truth and all
that jazz so
um we are going to pass it off to St uh
Town staff to play a video that is as
condensed as we could possibly make it
concerning all relevant sections
regarding
uh the oath to Witnesses or to members
in this room so uh let's start
there just getting that into the record
that's why I call them proforma these
first three are just kind of need to
be so I'm GNA begin um testimony
um with uh Mr Paul Woodburn um Paul
would you've come up to the lecturn to
answer these questions so that you can
be
heard
for anybody attending and the and
speaking from the audience Please be
aware that we're going to do a blanket
swearing in right now okay um if you
come and speak to the lect and please uh
note your name down on uh any any sheet
um along with your name address and uh
who you represent or if you're speaking
on your own behalf obviously witness um
so as for the swearing in for anybody
stepping to lean please know uh do you
solemnly swear or affirm under the
penalty of perjury that the testimony
you're about to give and the responses
and statements you're about to make be
the whole truth and nothing but the
truth I
do thank
you
um Mr Woodburn um just if Mr W is G be
testifying as a fact when this we can
proceed forward but if he indeed is
going to be expressing an opinion such
as an expert witness obviously we're
going to be you know objecting to that
as well as the fact that I'm probably
going to avoid the error uh
uh on his request to issue any opinions
are there any further questions aside
from based upon his limited testimony of
what he's gone so far nothing more
obviously there will be more when he
comes we'll have another chance when he
adds a substantial
commentary thank you Mr Woodburn um so
the board's going to need to consider
the legal context of what is happening
in this case so I'll I'll start with an
explanation of that
um with are you testifying no I'm giving
the pre I'm giving my
presentation and my please let me speak
Mr cannot give you legal opinions uh
with regard to that as Mr susman but as
far as him you know having legal
opinions to the board that's that's
completely improper I'm going to object
right now to the entire process of of
interrupting our case at every turn
solely for the reason of interruption
objection that's not I am presenting an
argument can I please finish
present I get to make a
presentation as I bring in evidence I
can explain the legal context of what we
our cases about to make the legal
argument so that you understand the
context of all the evidence that will
come in a big part of this case is a
legal argument this is an appeal on
alleged error so I need to explain to
you as a board and I need to convince
you if I'm going to be successful of the
merits of those things we're going to be
bringing a lot of legal arguments
because that's what you're going to have
to decide you're going to have to decide
whether the Planning and Zoning
commission and the zoning administrators
failure to process site plans and the
reasons for that were in error that's
the case so I'm going to be talking a
lot of Law and explaining what our
position on the law is I'm not giving an
opinion to you about the law Mr susman
can always weigh in if you have
questions about the law or questions
about what I say but I get to present a
case and it shouldn't be interrupted at
every turn when all I'm doing is
presenting basic
case how you continue on this okay um
before going uh back to where we left
off um Mr pounds has requested
uh to enter an objection before we begin
thank you this is an objection I wanted
to make for you know future purposes for
uh appeal purposes and also for the
status of the hearing itself so um uh Mr
chair uh members of the council good
evening my name is Todd pounds and I
represent the town of chesp beach
basically uh Mr chair members of the
council this is a hearing uh you know as
all of you know uh a hearing is designed
to have testimony which is sworn which
is presented which is uh given by
individuals under oath uh in fact Mr
susman raised it a couple of hearings
ago asking Mr Blitz indeed if he was
going to be having sworn testimony
presented uh and also there's been
members of the public who have also
asked whether indeed testimony was going
to be presented that hasn't happened uh
basically we have been know listening to
uh where we spent what is now multiple
hours uh which is going to be more
multiple couple hours tonight uh which
I'm going to use the term droning on and
on regarding n a non-sworn testimony
with regard to um items which are
basically his opinion uh this is this is
not evidence uh as a result none of this
is evidence uh going on and on uh does
not present evidence especially when you
know the individual giving this is not
sworn and inde this is not evidence for
you considering at all with regard to
really any any typee of deliberation or
any type of giving in opinions at all
these are in essence arguments and
opinions but it is not evidence um in
fact any evidence which just been
presented uh so far in the multiple
hours is almost none uh because if you
only look at what the sworn testimony
would have been furthermore uh an
exhibit book was presented uh which
shows minutes uh of hearings before the
Town Council uh and also before the
board of uh before the Planning
Commission well those minutes you know
theoretically are here say uh because in
essence they're uh they were developed
and written by someone else who observed
it but but and they are not in essence
uh evidence in and of themselves so any
of that should be also considered
irrelevant uh the video which we saw
which was a video of a council you know
meeting goes on to state that indeed
what their opinions are and and what's
opinions going on with regard to the
council but indeed is not uh evidence
unless in indeed it is for the
considerations and ultimately what the
decisions uh would would be so in
essence we uh uh are have and we will
continue to spend uh many hours uh
listening to Mr Blitz basically go on
and on about nothing more in his opinion
uh in his in his belief that's not
evidence that is not evidence for you to
be considering that's not evidence for
you know you to in any way be reviewing
uh with regard to this case this is uh
nothing but UNS sworen statements of
someone who is not a party uh and there
nothing more than expressing their
opinion but worse what concerns me is
half truth which is given with regard to
these opinions you know we spent a half
an hour last meeting talking about the
referendum under C- 311 and how certain
rights Mr Donovan were violated as a
result of this him not being able to do
certain things well under the you know
and and the board you know let the
testimony go on but in essence the H the
Hal truth was the fact that he didn't
have any rights under C11 okay basically
in order for him to have a right any
rights under the referendum Not only
would have to he would have to be
involved but also it would have to be at
least 50% of the total number of Voters
who voted in the last regular preceding
regular Town election uh as such you
know if if we're going to be making
these statements and Broad statements
going on expressing opinions which are
un not sworn testimony you know we at
least have to be tell telling the truth
with regard to what's in the ordinance
as opposed to in essence only picking
and choosing things that he believes is
his in his best interest um
uh
so again uh the fact that we are
spending multiple hours with as limited
to almost no evidence actual evidence
being presented to the board other than
uh unsworn testimony is simply not
proper and I'm making the objection uh
with regard to that also you know uh uh
various statements were made with regard
to the book uh for the statutes and code
and also uh sections were stated to the
board that in essence you know for
opinions by the court of appeals the
court of appeals was the old Court in
the highest court in the state of
Maryland now called the Supreme Court uh
in the cases that that were were and and
and it was asked that indeed you make an
interpretation as to the opinions of the
highest court in the state of Maryland
well ladies and gentlemen if you're a
judge in the in the court you can't do
that okay you know you you're making
interpretations as to what the highest
the uh state says for a judge is
improper especially even more improper
would be that of an administrative board
so there and even worse than that was
the fact that and I wrote it down he
said that in in essence you know if you
uh uh look at I want to get the exact
phrasing that was
done it was asking you to follow the
logic okay which says well the case
isn't on point but I want to show to you
and you should interpret what the
highest court in this court is uh
staying for an Essence for some
particular purpose I me that is just
absolutely completely uh improper to be
doing any of that so basically you know
what uh what in essence the applicant is
ultimately ex asking you to do is to do
things which are beyond your ability uh
and the ability of an administrative
board to review uh things that are not
on point you know with regard to that uh
that inter ration of that language so
basically uh preliminarily I'm going to
move that in essence all the testimony
was stricken should be stricken from
last meeting because it is nothing but
expressions of opinion and statements of
someone who's unsworn someone who is uh
not a party to the case and someone who
is just uh stating his opinions as to
any testimony which which should be in
the proper uh way that a hearing should
be conducted thank you thank you one
moment at the first hearing an oath was
administered to people in
attendance my recollection and please
tell me if I'm wrong that you also uh SW
it to
that I recollection correct or wrong it
is
correct
I'm going to be calling Mr Blitz as a
witness I'm going to be calling Mr Blitz
as a
witness that's up to
you um in my opinion this issue would
not have occurred if a formal ordinance
had been used rather than a simple
resolution Mr Blitz is going to State
his opinion we need to designate as an
expert okay I'll be frank I'm sitting
here wondering and I'm going to have the
video going forward I don't remember him
being sworn in at the beginning and if
he and if he represented that he was and
he wasn't we're going to we're going to
be addressing that as another problem
but if he's going to be expressing his
opinion at this point he's gonna be
designated as an expert and I I'll
withdraw the opinion it's not
critical and if you would like to swear
me now we can do that start all over
again with regard the T no I'm merely
saying if you if you have if the board
not you
Mr if the board has questions I I'll
clearly be sworn again if if that the
board feels it's necessary and just so I
have this right the opinion is withdrawn
we're continuing
on uh okay um so at this
point um I think the board has a couple
options um the first one I'm
yeah
okay first um I'm going to formally
object to the playing of the video
without including the clips that I
requested be
added uh one of those clips was
testimony
from I believe it was October 30th I've
got it written down hold
on where
Mr pound I mean Mr suspen interrupted to
ask whether I was offering evidence and
I
submitted uh to them at that time that I
had been sworn
and agreed to be uh sworn again that's
not the clip that was there in
addition he just had played the entire
argument of Mr pounds on the motion
without including my
counterargument it's simply unfair for
the board to sit there and listen
to an argument that wasn't about the the
swearing in but was all about the case
and his opinion Mr pound's opinion that
what I've been providing is not
testimony if it wasn't testimony you
wouldn't need to be sworn in I agree
that 95% of what I've provided has not
been testimony it has been legal
argument that doesn't need to be sworn
in
so first I I make that objection with
respect to the failure to provide the
information that I asked to be included
this
morning
um second I'd like to Mr pounds has made
a motion to exclude
evidence that's what this motion
is um as the clip showed there was a
blanket squaring in of everyone with no
formality as to indicate who was being
sworn in the only person that responded
at that time was Mr Woodburn at the
lectern but that blanking blanket
swearing in included everyone who was to
testify including members of the
public there was no formality of verbal
response standing or raising one's hand
required of any of these parties but
most important for the purp purposes of
Mr pound's motion there was no formality
as to the identity of those who were
being sworn you had a bunch of people
out in the public who were also being
sworn at the same
time do we have any practical way of
testing whether members of the public
were properly sworn in during that
blanket swearing in other than their
presence none of them said I do or make
any other verbal indication that was
demonstrated their oath as in that
clip I believe I was sworn in with
everybody else s in the blanket swearing
in and the rod and Rio can't be
prejudiced by the lack of formality that
this board employed to exclude some
witnesses over others or some testimony
over others all of whom were subject to
the same blanket swearing in
process you will notice that Mr Donovan
was also not standing or taking any
demonstrable Act of formality with
respect to the blanket swearing in yet
he was allowed to testify on October
30th here ing based upon the prior
blanket swearing in of all the witnesses
on September 19th the only standard was
whether he was present during the
blanket swearing in which Mr susman at
that time confirmed prior to the start
of Mr Donovan's
testimony later during the presentation
um in the hearing of September 19th Mr
susman asked if I was going to be
providing the evidence of a statement I
just made about the lateness of the
comprehensive plan that's the one I was
referring to that I asked to be
included this is where I made a mistake
because I should have simply said yes we
were going to introduce an ordinance and
resolution that adopted the 2010 and
2022 plan uh which were eventually
introduced and admitted is exhibit 31
that showed those dates um furthermore
because it involved official actions of
agencies of the town of chesek beach the
board could simply have taken judicial
notice of those instead of pointing that
out I proferred that I believed I had
been sworn in but offered to be reworn
right then and there I raised my right
hand I asked I even asked the board as
they moved past that question whether we
were okay with
whether there was an issue of me being
sworn before proceeding and the didn't
get a response from the board primarily
because Mr pounds continued with a
different argument at the
time
um importantly
Mr pounds did not raise the issue of me
being sworn in then or the form of the
swearing in when it was clearly time to
do
so there was a substantial degree of
informality in the board's approach to
squaring in and that's fine that H often
happens in administrative hearing
contexts where the rules of evidence and
procedures for Testimony don't apply
they're not the same as what what you
would do in a court your own rule of
procedure in section 14 subsection D
notes that wide latitude that is given
to
Witnesses the rod and reel should not be
prejudiced by the exclusion of evidence
based upon that informality in the
squaring in
process Mr pounds also seeks the
exclusion of all evidence up to the
point in the previous hearing without
distinguishing any of the evidence from
that was offered in Prior hearings the
over breath of his requested relief
excluding all evidence in blanket form
is telling for several
reasons Mr Pal's argument makes to the
asks the board to accept what I believe
is a faulty
premise from the very first hearing and
now again uh not I shouldn't say now in
the clip you just watched which was last
hearing um he conflates the entirety of
my presentation in an administrative
hearing with testimony that would be
need to be sworn it is not testimony to
draw to the board's attention an
ordinance a state statute or case law
and to point out what parts of those
sources of legal Authority uh apply or
relevant to the issues in the case it's
not testimony to explain the meaning of
those legal authorities as the Roden
Regal's position on that it is not
testimony to explain the Roden reel
position on the effect of an ordinance
or statute um in the actions
of administrative
agencies that we are raising the appeal
about it's merely the presentation of
the elements of the argument that
supports the rod reel's position that
there was an administrative error that's
a legal judgment with we're which we're
asking this board to make it's not
testimony when I submit government
documents into evidence we now have 51
exhibits all of which have been
introduced some of which had objections
and were ruled at that time I believe
one or two were the objections were
sustained uh including at the last
hearing
um but we have of all those exhibits
most of them are minutes agendas reports
of public officials to the Town Council
and official correspondence received
from the town you don't need a
sponsoring witness for such documents in
an administrative hearing like you would
in a court case because hearsay isn't an
issue the only reason you need a
sponsoring witness is when there's
hearsay
rules you know typical court case those
government documents can come in usually
by stipulation but also can can be
certified and it comes under a hearsay
exception it's not testimony when I
point out which parts of those documents
I'm drawing the board's testimony to
which is n just I'm just relying on your
memory that's 90% of what I was doing
showing you statutes pointing out what I
think is relevant showing you minutes
pointing out what I think is relevant
those are legal arguments about the
evidence that I just
submitted it's not testimony when I
explain why a document is important to
our case um it's the presentation of the
Ron rail's
lawyer this as I will remind you again
is a challenge the legality of the
failure of the zoning administrator and
planning and zoning Commission
to undertake the required site plan
review so it's not surprising that there
would be a presentation of why various
ordinances and statutes are relevant and
how they impact the
case I'd like to point out that Mr
pound's argument is basically trying to
relitigate the very same questions that
the board has already ruled upon this
was already raised that there were
challenges in the very first
hearing was I
providing evidence should it be admitted
and I made the argument no this is
argument this is me pointing to
obviously the exhibits are evidence my
arguments about those documents are not
testimony they're the
arguments the conse quence of any
failure to properly be sworn had to be
raised at the time I was offering the
evidence to make a motion to exclude
that
evidence and as part of that
objection becomes part of the record for
which any subsequent review determines
whether it should have whether that was
material evidence allowed or not allowed
um the board's own rules of procedure
require the the objections be made in a
timely manner in section 14 subsection e
it reads objections to testimony must be
made at the time the information is
presented or they will be considered
waved Mr pound say now many hearings
later seeking to object to all that
evidence previously admitted without
distinguishing between what needs
testimony and what does not and ignoring
the obligation to raise that objection
at the time and I would as I said he did
raise the objection and was
overruled Hound's also tries to convert
my arguments about case law as legal
opinions as though I'm giving you an
opinion I'm making an
argument the case that he referenced
well he didn't reference the case but
that he was talking to me about talking
about my arguments
about was one that said that the length
of the
moratorium required the full context to
be considered all I was saying was that
in this case for you to consider the
context
of
the all the evidence that we were
providing to determine whether that
duration of the moratorium was that
issue Mr pounds continues to try to
convert this administrative proceeding
into a trial and it's just not set up to
for such a
proceeding even in a variance or special
exception case that you would typically
handle the board would hear from the
applicant about the impact of various
ordinances or case law that are to be
applied and that occurs throughout the
presentation it's not some form of
formal closing where you're do what like
you would do in a court where there's a
clear bifurcation between between EV the
period of evidence and then thing it's
done all at the same time in
administrative proceedings you don't
have a closing in administrative
proceedings like a trial it's a
summation your your rules of procedure
even call it that that's what it is is
is merely a summation but it's not all
of the legal arguments you make those
arguments throughout the proceeding
and by making those arguments I'm not
giving an
opinion that would require expertise I'm
making the legal arguments just like any
lawyer would make in any
case I want to make one final practical
point about so much of the documentary
evidence that has already been submitted
so far um I designed the presentation to
provide the context for each document as
I sought to have them admitted
I designed the order of presentation to
either follow a timeline so the board
could follow the events as they unfolded
or to provide the legal context of why
various statutes and ordinances that I
was pointing to were relevant this is a
reasonably complex case so I thought
this was the best way to present the
information in a manner that you could
digest the documentary evidence as it
was
presented the Practical alternative
is to just submit exhibit after exhibit
or all the exhibits on Moss to which
there would no doubt have been
objections as to the relevance so I
would have literally been making all the
same points yet be doing so in the
context of
objections and you don't have to do that
in an administrative
proceeding you can you get to integrate
argument with the thing and
therefore I would say that Mr P pound's
motion to exclude evidence should be
denied as
untimely and over Brad uh the exclusion
of all evidence is way over broad at the
at the very least his motion should have
identified the particular evidence that
he
thought needed to be sworn testimony and
that I had given
um and that hasn't been
done um so I'll conclude there thanks
okay um before you before you start um
we are about two objections deep so far
so top level objection is was to the
swearing in of Mr Blitz which is the
initial the blocker right now at the top
level we then had a follow-up objection
U by Mr Blitz as to the contents of the
video um which I am going to overrule
but also advise the board to take his
comments into consideration um that was
a bit of an objection with extra in
there so do please take uh take Mr blit
the contents of Mr blitz's objection
into account um with that I would like
to get back to the first objection of as
to whether or not um to the swearing in
but given all that's happened I'm going
to stop and ask a question of Mr pounds
briefly without the context of
objections is there anything else you
would like to add at this point and then
I would really like to hear from the
rest of the board so you have a couple
minutes uh
oh okay so basically okay is there any
is there any additional information
aside from we heard most of your
original objection we've heard a bit of
counter from uh Mr Blitz is there
anything you would like to add to that
briefly at this time and I will be brief
basically uh I like to present to the
board and state what does it mean to
swear in I mean what what does that mean
and is there any rules of law that uh
require as far as swearing it in and the
law
under the Maryland General Provisions
1-33 because that's the only thing
really addresses what swearing in means
the person making an oath shall solemnly
swear or affirm it doesn't say you can
just stay stay quiet it doesn't say that
you can just accept it you have to
affirmatively do something to say yes as
Mr Woodburn did he said yes uh he's
going to swear to tell the truth what's
interesting is he didn't raise his right
hand which is a custom that we have in
in the United States and I did do some
research to find out if that is part of
the law and I have found that it is part
of the law but it is a custom that we
have in the United States so I can't say
that that was a violation but I've never
seen it done in which you don't raise
your right hand but at least Mr wurn did
say yes he will tell the truth I think
we all saw the video Mr Blitz did not
say that at all okay with regard to any
type of testimony at all and um so again
law as far as the rules the person
making a nose shall solemnly swear or
affirm it doesn't mean you can just sit
there and stay quiet and then somehow
accept that as being a blanket U
swearing yourself in now also you know
and and Mr Blitz has said it a number of
times you know I'm trying to create that
I'm trying to create some type of trial
uh in this now I'm trying to set up a
mechanism to make sure everybody's
telling the truth okay that is it uh and
the fact that you know we've gone on and
on with these dissertations in which
you're not sworn uh you just can't have
that and one of the things that um um
uh you know is and and what's
interesting is is and I've said it a few
times is these little twists with regard
to the you know trying to compare
testimony that he that supposedly
testimony he given with regard to the
books those documents are in evidence
those are in evidence those those
documents are done they're in evidence
you can certainly review those do
whatever whatever you want to do with
them those have those been accepted
question is all these other statements
that have been made by Mr Blitz on and
on and on and I think on the testimony I
said just the last hearing this should
go back for this his entire hearing okay
with everything he has said so basically
we have evidence and then we have
basically his dissertations as to you
know what they were simply are not
evidence for you to consider and that's
what this is okay basically in making
your uh decisions you are to review
evidence not any types of dissertations
that he's going to be making at all
um and and so basically and there's the
comments about you know way you can't
have a waiver with regard to telling the
truth okay you can't say oh well you
didn't catch it at the beginning and
therefore it's a waiver no you can't do
that especially the fact that stud on
the video even Mr susman brought it up
and brought up the fact that are you
testifying here and he said yes well we
have a problem because now he has made a
formal statement an admission to the
board which is absolutely untrue and
that is a problem okay I'm not going to
say you know any type of things but the
fact that that in essence with regard to
the testimony that's being said supposed
testimony and then making an affirmative
statement also to the board is
absolutely a problem and not valid um uh
so in in essence
what was interesting is that that
objection that I made that Mr susman
indicated that I seem to have remembered
okay and that's fine uh but he
definitively asked Mr Blitz if he made
that statement and Mr Blitz indeed said
it was so uh you know that's what you're
trying to do here is just just so we all
are on the same page and that everybody
and I can tell you this as far as
anybody coming up here that I call
they're going to get sworn at okay
that's I mean that's a given um uh you
know as far as some blanket and I can
appreciate the fact blanket if you it's
a small hearing but a large hearing like
this for multiple times going on you
know people are coming and going people
may be here one night not here another
night if they're coming up and their
names on the list they're going to get
sworn it again thank you Mr chair thank
you um board has heard a lot on this um
the first question for the board is do
we feel like we want to go into a brief
Clos session to discuss discuss legal
options with Council or do we feel well
informed enough to deliberate as we
sit
opinions I I do not feel the need to go
in a closed
session we can deliberate and that we
might have to go into a closed session
based
onate for the next move but I think we
can continue
yeah I think we
continue um okay
so um I guess where to start
um initially this seemed to be whether
the the question right here seem to be
whether or not we could determine if Mr
Blitz clearly took the oath clearly
didn't take the oath or kind of no
evidence either way um from there we can
move on to questions of is the informal
blanket oath enough or are there you
know opinions
thoughts I'm not going to start this one
I don't overwhelm everybody so feel free
to
uh like strong opinion I think I'm
confident in my opinion want me to start
yeah h on um so it's my opinion if we're
discussing whether he SP took the oath
let took the oath it's my opinion that
the video makes it clear that he did not
and by his own admission right now he
said nobody else except for Mr Woodburn
did implying that he did not um so I
don't think he took
de for that aspect that's my take
on Mr Bliss pointed this out there was a
point in on the September 19th
meeting which was not in the
clip where Mr Blitz
was presenting some information
and Mr susman asked him if he was
testifying and if so did he uh take an
oath is he willing to take an oath and
Mr
Blitz I heard him said raise his right
hand I do affirm the facts or something
to that effect and then things went P by
past that very
quickly it was very
informal but that's how we've been
operating I mean I would accept that
Point as Mr
Blitz taking an
oath I'm just I'm going by that video
because you can hear you can hear him
while he's standing you can hear him
when he's sitting and when oath was
taken he turned to Donovan which looked
like he was trying to tell him I I agree
with that yeah I agree I say there was
there was a point which was not in that
clip where I would say Mr Blitz did take
a oath although it was very for informal
very
quick you know and there's another
statement I'll make you know a lot of uh
a discussion about evidence whether this
is evidence whether it's a
narrative the the documents are
evidence we
can't accept those documents with
without some sort of
explanation
and I in my
opinion almost all of what Mr Blitz has
been saying in these three or four
meetings has been an
explanation why these documents are
relevant I would not call it
testimony and therefore didn't formally
require an
oath there were a few times I think
where Mr Blitz stated an opinion which
you know cross that cross over into
testimony um but I don't think those
instances were were I I think they were
rare I don't think they were
significant but I would be willing to
accept everything that's presented been
presented so
far even did you say you started to say
something in that yeah I agree with Amy
um there was no swearing I
mean very impr
prompt video clearly shows it the video
clearly shows it there was no swearing
in if that's what we're discussing here
that's the main topic there was
not think what's left to be decided then
if there is missing video did it happen
after I mean if that's if that is the
case well I would say I would say that I
would also say that
Mr Blitz
as's
attorney does he need to be sworn in if
he's not presenting
testimony and and I don't believe the
majority of what Mr Blitz has said so
far has been
testimony just explaining these
exhibits that we've been
given the um what Mr Blitz said today
which I I think is apt is that up until
this point in time our board has
typically had one person Gallery um this
is by far the most formal and the most
attended of our meetings and we started
it off as if it were like all the others
which it quite clearly is not um if we
were to go back and say we did it wrong
and that this swearing in is
Meaningful and um we would effectively
be penalizing Mr Blitz for what he's
done uh so far due to our
informality so I kind of I hear there
was no AB there was absolutely no direct
swearing in but as we've seen
most didn't um with a rare exception of
people who stepped to the Le Lector
right when we admitted the oath um so
I'm hesitant to punish him for our lack
of um
rigor so
i' i'
yeah well as I as I said
earlier um I think there were only a
very few
times when Mr blitz's statement
statements crossed over as
testimony and so I don't think I don't
think it was
significant
um I would be willing to
accept and also again the September 19th
meeting there was a
point where Mr Blitz raised his hand
said I do
affirm don't remember the exact
words but that being said I'd be willing
to
accept uh some type of r ractive
swearing
in of Mr
Blitz to cover our
bases I have mixed feelings I think that
in the efficiency of time in this
specific instance it can make sense
because if we don't then we're going to
hear all this yes and we already have
significant time invested in this and
the community wants the response right
um but I also don't want to set a
precedence that this is okay um I think
the underlying thing that bothers me is
that we've heard from Mr Blitz multiple
times that he insists he did swear in
and at that time and he did not so it's
just it's sitting a little uneasy with
me simply because of that imbalance of
information um but I I do understand the
need to possibly retro okay
this if I may
in the note that I had that I made based
upon my review of the video various
videos in addition to this one I found
that on the uh 18th of
September there were two references to
swearing in the one that we have which
was at uh I think 30 minutes 20 seconds
that the blanket swearing
in and there was another one dialogue
from the with Mr
Bliss at an hour 9 minutes 16 seconds I
think that may be what Mr Bliss was
referring to and that's the same point
that I was referring to same point in
time
I
both our attorney and somebody else has
seen it I think it's I think it's
yeah
um I if the board is inclined to
administer another oath uh administer an
oath to Mr Blitz given the little bit of
ambiguity as to whether he did take and
those
previously uh I think the oath should be
retroactive and
prospective without commenting on what
he has said so far is really testimony
or what he may say in the future is
testimony as opposed to
uh arent of
council uh but it would cover certainly
any uh any testimony for which o might
argu arguably have been or be
required I can safely so from opinion
side I'm not overly happy as you are
with the retroactive I take Mr blitz's
statement that he believed he was under
oath and he was acting as if he did he
has not said otherwise um as enough for
me um that said if this is an
improvement over this this is an
uncomfortable thing that we all agree to
and doesn't no one's entirely happy then
so be it
right not going to dictate I mean if
there's
so yeah
um is it the sense of the board to uh
administer and not to Mr blitz so
there's no
ambiguity would that would that satisfy
you Stephen A
retroactive I mean how far back are we
going to go until until this the the
beginning of this case everything said
on video on record Mr Blitz is stating
that this was under oath he believed it
to be so and now we're adding paper work
to make it so now going forward
everything will be under everything will
be everything from now on will be by the
record this will you know it help to see
the
video yeah yeah you could get that for
us in the other
room are we able to do that in the
conference room to watch that clip at 1
hour 9 minutes and 16 seconds for
Stephen me to if uh sta can provide it
yeah um okay and that so we will will go
into close session briefly review that
and no no just go
back can think Fred understands that you
intend on playing it outside of the
context of the record which okay I'll
let him make a comment about but you're
if you're GNA close a
meeting you can't take in
evidence you're not closing the meeting
to go back and look at a
video pardon never mind go ahead the
purpose of a close meeting would be to
consult with me about legal issues
associated with that if you want to
watch a video then that'll have to be
produced here so that's not something we
could do tonight if if to continue with
this we would be at ease to see this
video we would then need to do it at a
different
time it depends whether she can't put it
here Mr Blitz is saying we can't watch
it back there because it's evidence and
you're saying you can't show it to us
right now because we're
three can you play it on your
phone but is that okay for a public
setting do we have any options to view
it here whether be on our phone or
anything else and if it cannot be
displayed up there right now do we have
any other options to watch this video
that's a technological issue I don't
know right I think the public has the
right to uh view it as well right if
there's a way to have a laptop uh put
here and have everybody come up and
watch it at the same time that possible
but I think that'll be a little bit
unwieldy I don't think it necessarily be
proper for the uh board to be able to
see or watch the video and the public
not I mean this isn't the biggest screen
in the world but I can go like I don't
think you have Wi-Fi but I can go
through my phone for the internet
internet I have the link to the that I
sent this morning to that video so I
could play it on
this if you think if you think this is
big you know broad enough for people to
look at I don't know how we would show
both the board and the audience at the
same
time thumbs up from the
audience I don't know you can't share
the
screen it's that I can't stream a
YouTube video so I have to download it
and and I maybe if you want to take a
break can we can we pause a break pause
the meeting give you five minutes to do
that five 10
minutes all right we're
gonna all right we're gonna recess for
10 to 15 minutes here and try and get
this technological issue sorted out so
please
wel
all right everybody we'll uh get started
in a second here if you'll take your
seats uh okay at this time I believe
Town staff has pulled up the meeting
from 19th September at 1 hour and N
minutes more or less and we will see
that
now point in the
administrator's argument in his email is
at this point in time the town's
comprehensive plan and the implementing
zoning ordinance was already four years
late excuse me Mr blit are you going to
have a present evidence uh to uh
elucidate on these points that you're
making now or are you testifying uh I
will pres Pro well number one if you
want to testify raise your right hand
and take the oath okay or if you already
took the oath so it can be clear what
you're I do include to include any facts
that I
offer that's fine is that okay you
you're accept accepting that I mean we
are moving towards closing through a lot
of what he's talking about this is not a
testimony it's not we wav beond where we
started with it's this is definitely
like a closing type argument but
this is you know where this is right now
not making a closing argument I'm making
the explanation of why
we I think that's good enough
um how do
we how do we feel what we've what did we
learn that was new and did that
change can I ask Mr Blitz is that what
you wanted us to see this morning
okay continue on oh no I mean it's it's
open floor um I think in terms of um
moving forward I personally am fine I
that was good enough for me the meeting
is informal and I believe Mr Blitz has
been presenting and speaking as if he
was under oath and it appears that he
believed so too um I have no need to do
a retroactive but if it is something
that the board wishes to do I'm entirely
supportive of that
uh I would be in favor of doing
retroactive just to be
safe we're not dictating so if you have
if you don't this is with you um it's
not something I'm happy about I think
it's you
know do things but um it also seems like
logical
movement
anything you'd like to add at this time
Fred um okay in that
case um guess we can uh vote on it we'll
vote on um a retroactive oath
um that will be issued Mr Blitz to
retroactively over all testimony given
up to the beginning of this
case
um and going forward yes um okay so I
guess I'll just start uh Amy how do you
would you are you uh you approve um
issuing a new oath to Mr Blitz at this
time I
approve I approve I approve I also
approve um the board approves um a
motion I suppose for Mr susman to
reissue a oath to Mr Blitz that will
cover any testimony that has been given
in this case and all moving
forward I could just ask for a
clarification as I mentioned there's a
big argument as to what's testimony and
what is legal argument I'm certainly
willing to T to swear an oath I think I
already was sworn in about any testimony
I give because I just don't think I gave
testimony IE I I do remember one error
that I made which was I talked about
whether the town had previously adopted
all of the zoning ordinances in one
ordinance and I said that's the way the
town had done it in the past well that
you know that's technically a factual
statement but I just want to make it
clear that I'm swearing to testify only
to things that I'm are providing actual
testimony not my arguments or anything
like that I don't want that conflation
of the idea that there's testimony that
are facts and all my legal arguments
because that's not testimony I think
this oath is or this retroactive oath is
specifically targeted to address the
objection before the board right now um
we will assume
well raise your right hand please do you
solemnly swear or affirm under the
penalties of perjury that the testimony
that you have already given in these
proceedings and the testimony you are
about to give and will give through the
end of these proceedings and the
responses and statements that you have
made or are about to make have been and
will be the whole truth and nothing but
the truth I do with the
record uh one moment at at the
conclusion of this we are stating that
the initial objection is
overruled and basically I just wanted to
say that uh uh I wanted to give an
objection as to the the entire process
here uh because you know you can't sit
here and do retroactive uh swearing in I
mean it's nice and I understand the
timing understand you want to cut time
and everything else but the problem is
you can't unring the Bell you don't know
in essence what's what is happening here
or what's not happening here and even Mr
Blitz come back he just said that that
well some of it said was testimony some
of wasn't testimony and he's only being
sworn as to the testimony whatever that
may or may not be um so I mean and I
mean this is a big deal I mean it's a
big deal because you know in essence
what you are supposed to consider is
supposed to be evidence argument is not
okay but uh that that's what it is that
you're supposed to be doing and so you
know the idea that uh you know you were
having you know an retroactive swearing
in um I I've never even heard of it
before but uh uh but but I can tell you
the problem is is that now you are put
under a very difficult situation in that
you're thinking to yourself all this
testimony that you've heard how much of
it is testimony not testimony the truth
not the truth you can't do that so um in
essence it becomes an issue and I really
wanted to make sure that was protected
for the potential appeal purposes thank
you understood um the objection is
overruled we will continue uh with this
case U Mr Blitz are you prepared to
continue tonight and if so approximately
how much how much longer last time You'
mentioned you had approximately two
hours of time left is that still the
ball park it is so unfortunately we're
not going to get done tonight well how
much time do you have tonight half an
hour uh is does half an hour move your
move the ball forward at all or is that
more trouble than it's
worth if you could give me a
moment
my
concern is
that the summaries that I would be
giving of where we are set up the rest
of the testimony and we're going to get
we're just not going to get into that
testimony sufficiently okay so at this
point in time we've been here for an
hour and 10 of our normal 2hour session
um and we will not not resume case 20233
today the only thing we have done is um
ruled on an objection by Mr pounds
clearing the way to resume the case at
our next session um at this time I will
entertain a motion to adjourn this no no
not doing that have to tell when the
next session yes um the motion uh for
our next meeting will be January 25th at
7 pm and at this time I'll entertain a
motion to adjourn this meeting until
January 25th at 700 p.m. do I have a
second I will second that uh all in
favor all right we are adjourned
until January 25th at 7 pm
no