[0:00] at 6:32

[0:28] yeah

[0:58] e

[1:52] good evening everybody this is the call

[1:54] to order for the chesc beach board of

[1:56] appeals 6:30 p.m. March 14th 202 24 we

[2:01] begin with a roll call please answer if

[2:04] you are present uh Mr Richard Burch

[2:07] present Mr Paul dhy present Miss Amy

[2:10] Everett present I Mr Jody star um we are

[2:16] now going to ask Sharon if we received

[2:19] any public comments since the last

[2:21] session we have not public comments um

[2:25] okay uh first thing on the docket is the

[2:28] approval of the minutes from our last

[2:30] meeting this would be case

[2:32] 20233 uh the meeting date was February

[2:34] 8th 2024 and we should have received

[2:37] this from uh Sharon on around February

[2:41] 22nd um does anybody have any comments

[2:44] they'd like to make on those meeting

[2:45] minutes at this this

[2:49] time all right hearing none I will

[2:52] entertain a motion to approve the

[2:54] minutes I'll make that motion second right all in favor I hi hi all

[3:01] right the minutes are approved uh normal

[3:04] set of announcements we'll be limiting

[3:06] tonight's session to two hours we'll end

[3:08] around 8:30 uh anybody in the gallery

[3:10] please direct any comments and questions

[3:12] concerning the ad administration of this

[3:14] hearing to the chair or uh legal council

[3:16] Mr susman here um third parties of

[3:19] record may ask questions of any uh given

[3:22] testimony at the conclusion of that

[3:23] testimony question should be limited in

[3:25] scope to the to uh address information

[3:27] presented I will indicate to the gallery

[3:29] when this option is available uh in

[3:31] terms of our order presentation we are

[3:33] still on step number one which is

[3:35] appellant testimony by uh an Evidence by

[3:38] Mr Blitz uh once that is completed we

[3:40] will move to Mr pounds uh for Town step

[3:42] testimony and evidence um at which point

[3:45] uh any persons or entities whose rights

[3:47] are impacted by the appeal this would be

[3:48] members of the public will be allowed to

[3:50] speak um and we will follow that up with

[3:53] summary statements at which point we

[3:55] will close this hearing and begin

[3:57] deliberations um so members of the

[3:59] public this means you most likely won't

[4:01] be able to speak

[4:02] today all right uh we are ready to

[4:06] continue um this is a continuation of

[4:08] case 20233 Rod Incorporated donov EST

[4:11] States LLC to consider an application

[4:12] from Rod uh uh 4160 MIRS Avenue

[4:16] Chesapeake Beach Maryland for decision

[4:18] on interpretation or alleged error to

[4:19] article 6 section 29023 2931 A1 and A6

[4:23] of the chesap beach Zing ordinance and

[4:25] C309 c310 and c311 of the chesap beach

[4:28] Town Charter applicant requests the

[4:29] Chesapeake Beach zoning board of appeals

[4:31] to quote order the zoning administrator

[4:32] and planning and zoning commission to

[4:34] immediately commence and prioritize

[4:35] processing and review of the relevant

[4:37] site plans submitted by Roden real

[4:38] Incorporated Donan Estates LLC and that

[4:41] the zoning administrator and planning

[4:42] and zoning commission be ordered to

[4:43] apply the zoning ordinances in effect as

[4:46] of January 29 2021 when the applications

[4:49] were submitted and for such other and

[4:50] further relief as the nature of their

[4:52] case or their cause requires and I will

[4:55] pass it to Mr Blitz for his presentation

[4:58] good evening Eric Blitz on behalf of the

[5:00] Roden reel Don States LLC um so tonight

[5:04] we're going to start with the testimony

[5:07] of Mr Donovan Wesley

[5:10] Donovan um I'd ask that he be sworn just

[5:13] in case so we don't have any

[5:21] issues sare PTY the perjury testimony

[5:27] that you were about to give and the

[5:29] respon and statements you're about to

[5:31] make will be the truth the whole truth

[5:33] and nothing but the truth I do your name

[5:37] Wesley Donovan than thank you thank you

[5:41] so Mr Donovan um let's start with the

[5:44] homl property

[5:46] um for that property how long had the

[5:48] Donovan family own that property uh it

[5:52] was the house my father grew up in

[5:55] so late 40s early 50s thereabouts okay

[6:00] and eventually the Home Place property

[6:02] was transferred to Donovan Estates LLC

[6:05] for the development of that property

[6:06] correct yes okay and Donovan Estates LLC

[6:10] is wholly owned by the Roden reel

[6:13] yes for the Sate property how long had

[6:15] the Donan family own that property uh

[6:19] 1936 um now right now State Property

[6:22] consists of two building pads correct

[6:24] yes um what was it used for before give

[6:27] us a little history of what was used for

[6:30] uh in

[6:31] 1936 my great-grandfather opened up

[6:34] stennis

[6:36] restaurant and it remained there until

[6:40] Hurricane Isabel in 2003 I believe

[6:45] okay and eventually the SED property was

[6:49] transferred to the rod and reel for

[6:51] development as well correct that's

[6:55] [Music]

[6:58] correct

[7:00] and you were present for the previous

[7:02] testimony uh that set forth some of the

[7:04] many permits um for the developments of

[7:07] the rod and reel properties that were

[7:09] are at issue in this case yes and um

[7:13] that were obtained during the prior

[7:14] years and all of which expired correct

[7:17] okay

[7:20] um with respect to the zoning permits

[7:22] issued for the state place in

[7:25] 2006 uh and subsequently renewed for a

[7:27] few years um

[7:31] we've heard testimony that they

[7:33] did they raised the grade did

[7:37] utilities the town was allowed to put a some sort of pump on the property

[7:44] um

[7:46] and my question is why did that not uh

[7:50] continue to the building

[7:52] phase um well in in 2008 we had the

[7:58] financial crisis

[8:00] and at that point it was decided upon

[8:03] that it it didn't make sense to proceed

[8:07] it at that

[8:10] point because the market didn't support

[8:14] multif family

[8:18] correct in 2009 you still had approvals

[8:20] for the Home Place correct yes and was

[8:24] those same market conditions um

[8:27] responsible for that project not moving

[8:29] forward

[8:29] they were

[8:31] okay well I guess let me just ask was

[8:34] that the same for the Harbor vist Harbor

[8:36] Vista West North and Harbor Vista South

[8:39] properties during that period yeah

[8:42] during that period for

[8:44] sure

[8:45] so we've heard testimony about all of

[8:49] the Preparatory work that was done

[8:50] including utilities and site work some

[8:53] mitigation at the three properties for

[8:56] critical area mitigation for the um

[8:59] Harbor Vista north south and west

[9:02] effectively um so Mr Donovan at some

[9:06] point the Roden reel decided to restart

[9:08] the devel development of these

[9:09] properties correct yes and when was

[9:12] that

[9:14] uh well Harbor Vista South was about

[9:19] 2015

[9:22] um you started that project first as a

[9:26] restart yeah that's the one that we

[9:29] started started with correct okay and

[9:30] what led you to the decision to move

[9:33] forward on that project in

[9:35] 2015 well we we we were doing that in

[9:39] conjunction with um the rod re uh Resort

[9:44] development Redevelopment but we had

[9:47] done a feasibility

[9:49] study and at that time in 2015 it came

[9:54] back saying that all of the projects we

[9:57] were looking to do that

[9:59] had were in the previous comprehensive

[10:02] plans were uh economically viable at

[10:06] that point

[10:08] okay so you testified that um you looked

[10:12] at Harbor Vista South did you also start

[10:15] Pro the process for the other properties

[10:17] the Redevelopment of those uh or the

[10:20] development of

[10:22] those well we we have we had already

[10:25] done some of the prep work sure okay so

[10:27] let's go to the Sate property okay

[10:29] [Music]

[10:31] um the original proposal was for

[10:34] townhouse development and that didn't

[10:36] proceed you mean the condom you talking

[10:39] about the 200 six six those were 32

[10:43] condominium units yeah that did not

[10:46] proceed because of the financial crisis

[10:48] and you heard testimony about the work

[10:50] with the State Highway

[10:52] Administration yeah I did and did that

[10:54] play a role in the timing of the

[10:56] Redevelopment of the um sted property as

[10:59] to why we didn't do it or I mean I know

[11:03] that we put in the sidew the sidewalk

[11:06] the curb and gutter and that's when the

[11:09] town we gave the town the easement for

[11:11] the pump so the water would uh you know

[11:16] not the water wouldn't built up on SE

[11:19] Street on the town Town Street there

[11:23] okay I want to correct Mr Donovan's

[11:25] testimony no easement was given what

[11:27] he's referring to is

[11:29] if the project had proceeded there would

[11:32] have been an easement on the plat which

[11:34] is kind of typically H but since it

[11:36] didn't go forward there is no easement

[11:38] for

[11:39] that I just he said there was an

[11:41] easement it's not actually an easement

[11:43] the town the pump is there pump is there

[11:46] yeah so there's no written

[11:57] easement I just I don't want him making

[12:00] an unfactual statement and it's a legal

[12:02] conclusion and he's thinking about an

[12:05] easement on a development plat rather

[12:07] than an actual easement that actually

[12:08] got recorded I think the board

[12:09] understands you continue

[12:11] okay

[12:18] um so what led the rod and re to decide

[12:22] to proceed with the multi family

[12:23] developments that were filed in on

[12:25] January 29th of 2021 that are the

[12:28] subject of this appeal

[12:34] so I I think it was October or

[12:39] November of

[12:41] 2020 we had started watching the

[12:43] Planning and Zoning meetings at that

[12:45] time and there was discussion of

[12:49] using the state property which had been

[12:53] in our family since

[12:56] 1936 about making that a Ark and it

[13:03] uh it it raised some red flags uh very

[13:08] quickly you could

[13:10] say so what did you do

[13:13] then so at that point you

[13:17] know we had already done some of the

[13:20] prep work in anticipation of the

[13:24] development um then it was decided upon

[13:26] the best thing for us to do was to make

[13:29] application to the town for the zoning

[13:34] [Music]

[13:46] permit if you had gotten approval after

[13:49] filing these five

[13:51] applications would you have been able to

[13:53] afford to build all these properties at

[13:55] the same

[13:57] time uh find

[14:00] would would not have been an issue we we

[14:02] had spoken to two

[14:04] Banks

[14:06] um Community Bank and Westco

[14:15] bank

[14:17] now we've had plenty of testimony about

[14:19] the previous development plans and the

[14:21] work that was done on some of these

[14:23] properties had you had the rotten reel

[14:25] purchased Water and Sewer Capital

[14:27] connection charges for any of the

[14:29] properties to serve those

[14:30] developments uh stet we did home place

[14:35] and when we bought

[14:38] uh uh the marina in 2005 it it it the

[14:45] previous owner had water and sewer

[14:48] taps were transferred to the rod and

[14:51] reil with the property

[14:53] correct okay so I'm going to offer as

[14:56] exhibit

[14:57] 60 um

[14:59] a letter from the

[15:02] town looks like Lorie Smith the

[15:04] treasurer dated April 14th

[15:08] 2016 a letter from Leslie Porter the

[15:12] town treasur on November 19th

[15:17] 2008 with an

[15:20] attachment and the water sewer Capital

[15:23] connection charge payment

[15:25] agreement with Fishing Creek Landings

[15:28] Corp that's for the property he just

[15:30] referenced

[15:32] um which is a

[15:34] four make sure four-page document so

[15:37] I'll offer those three as exhibit

[15:55] 60 Mr Blitz what was the first uh date

[15:58] of the first first letter top

[16:18] letter for the so the board understands

[16:22] what

[16:23] those you should have a copy of them I

[16:25] want to make sure you do because they

[16:26] were handed out at the last time but um

[16:29] basically they show

[16:30] the recreation of from the town of the

[16:34] water and sewer Capital connection

[16:35] charges that were paid for these

[16:37] properties and were assigned to these

[16:47] properties

[16:56] which and the exhibit showed the payment

[17:01] of

[17:03] $480,000 in November 3rd of

[17:07] 2008 for the payment of those Capital

[17:09] connection charges

[17:15] um so Mr Donovan according to these

[17:17] documents the rod and

[17:19] reel were the related parties like

[17:21] Gerald and Fred at certain period of

[17:24] time before it had 28 Taps for the

[17:26] marina correct I believe so that's that

[17:29] came from Fishing Creek Landings believe

[17:31] [Music]

[17:33] so as part of that settlement you also

[17:36] took over the Wetland permits and the

[17:38] other permits for the development

[17:39] approvals that he had already obtained

[17:41] correct and those are what you used for

[17:45] the mitigation work correct yes

[17:48] including the frag mighy removal we

[17:50] talked about or Paul Woodburn y testify

[17:54] to and that document also states that

[17:57] 24 taps I that's a colloquialism for a

[18:00] capital connection charge it's actually

[18:02] a bad one just because there's something

[18:04] else in the water and sewer code called

[18:05] a tap but they've been called Taps for

[18:08] Generations

[18:10] um let's see uh that was um 24 Taps had

[18:14] been purchased uh Capital connection

[18:16] charges had been purchased for Home

[18:18] Place correct correct and there was

[18:20] already one there for the single family

[18:22] home correct

[18:25] okay and that 32 had been purchased for

[18:28] stin Place

[18:34] correct and just clarifying for the

[18:37] board you've already got this in

[18:38] evidence the current application is to

[18:41] build only 11 units on Senate place now

[18:45] not the full 32 at the time they

[18:48] purchased them those there was a bigger

[18:51] development couldn't go

[18:54] there

[18:57] um

[19:03] and is it true that the rod and reel

[19:05] granted the town an easement underneath

[19:07] the railway Trail end point um as it

[19:10] comes across your property near the

[19:12] harbor Vista West and along towards

[19:15] Harbor Vista North yes and that was done

[19:18] with the understanding that the town

[19:20] would build the sewer line underneath it

[19:23] yes and there was already an existing

[19:24] water line correct yes and so those

[19:27] water and sewer lines were put in to

[19:31] serve the harbor V West Property correct

[19:35] those are

[19:36] town uh property that is a town

[19:40] infrastructure yes

[19:46] okay when in February of

[19:49] 2021 um you heard that the response to

[19:53] your submissions the applications for

[19:56] these five projects that there was a

[19:59] proposed

[20:00] moratorium what if anything did you do

[20:02] in

[20:03] response so we asked to meet with

[20:06] um uh the folks here at Town Hall um you

[20:11] met with Town Administrator the

[20:14] mayor and the council except for um Mr

[20:23] parck

[20:24] and would you describe what those

[20:27] meetings were like and what what was um

[20:30] not said but what the discussion was

[20:33] about yeah I

[20:37] couldn't on

[20:44] sustain you won't even answer that no

[20:47] it's been

[20:52] 16 after the moratorium passed did you

[20:56] hear anything else from the mayor and

[20:57] town council members I did get an email

[21:00] from uh Mr Morris

[21:03] okay so I'll show

[21:06] you it would be marked for exhibit 61 an

[21:10] email from Greg Morris to Wesley Donovan

[21:12] dated March 22nd 21 show that to Mr

[21:15] Donovan to identify is that the email

[21:18] you received it

[21:20] is or what's the objection you say

[21:26] that a Council for representing of

[21:30] council if this a communication between

[21:32] one individual and another individual

[21:35] that's fine there just that's becomes

[21:38] completely irrelevant for these

[21:39] proceedings if indeed Mr Morris states

[21:41] that indeed he's representing the

[21:43] council we're stting a formal council

[21:45] opinion uh then that that becomes

[21:47] different too so but it sounds like this

[21:49] is just

[21:51] personal

[21:52] so so as you can see by the email the

[21:56] signature is Greg Morris Town Council

[21:59] he's

[22:01] communicating as Mr Donovan testified in

[22:04] response to this

[22:06] meeting and I think it's perfectly

[22:10] reasonable it's not hearsay it's comes

[22:13] in as a letter from a council member

[22:17] to a client about these devel about this

[22:20] development and about the moratorium I'm

[22:22] tempted to allow this one hearsay is

[22:24] still allowed here there's no hearsay

[22:26] exception so well I I don't care comes

[22:29] in I just want to say it comes in from

[22:31] Greg Morris as opposed to any

[22:33] representation from Town

[22:37] Council well I think I would agree with

[22:40] that that is a single council member

[22:42] doesn't represent the Town Council

[22:45] absent a designation or something like

[22:47] that so he's speaking as a council

[22:49] member not as on behalf of the whole

[22:51] town Council Town Council is a body so

[22:55] this one is overruled we're going to

[22:56] allow this okay so that would exhibit

[23:22] 61 and so just for the record I guess

[23:25] I'll read read this in it's not that

[23:27] long of a letter

[23:31] to from Greg Morris sent Monday March

[23:34] 22nd 2021 11:13 amm to Wesley Donovan

[23:38] regarding the subject is meeting request

[23:41] hi West

[23:42] Mary I was wondering regarding the Sate

[23:45] Place project did I hear that certain un

[23:50] USG site utilities had been completed

[23:53] there Andor the grade had been raised to

[23:56] accommodate any previous approval and or

[23:59] pump

[24:00] station has been installed in

[24:02] preparation for the

[24:04] dwellings that's a question any of these

[24:08] things seem to be well beyond shovels in

[24:10] the ground to me even though you haven't

[24:12] started on the actual dwelling structure

[24:15] that's also a question uh not sure about

[24:18] any previous status rep permitting for

[24:21] this site I'm basically only trying to

[24:23] elevate any

[24:26] consideration I wanted to ask ask you

[24:28] about the sale of any of the properties

[24:30] as well not as a means to stop but

[24:33] rather to have a better discussion and

[24:35] understanding moving forward and see if

[24:38] there were any options here for the

[24:40] town seems the town could be in Market

[24:43] to purchase a lot outright undeveloped

[24:46] as a means to meet some of the Green

[24:50] spaceopen Space

[24:52] desires there is solid support for this

[24:55] generally speaking maybe these down

[24:58] toown lots are not for sale or might be

[25:00] cost prohibitive but I thought it was

[25:02] important to ask the state Place may be

[25:05] too far invested in un utilities other

[25:09] for use as an open Green Space I'm not

[25:13] sure despite what might have been

[25:17] spitballed during the Planning and

[25:18] Zoning well pnz meeting I cannot imagine

[25:22] the town even thinking imminent domain

[25:25] is an option for any of these properties

[25:27] wanted to to say that thanks Greg

[25:33] Morris Mr donov did you reply to that

[25:36] email or or no Mr Morris a response no I

[25:41] did

[25:42] not I also did not hear from any other

[25:45] council

[25:49] person did you keep track of the rod and

[25:52] reel's expenses in preparing the site

[25:55] plans for submission to the Planning and

[25:57] Zoning Commission

[26:01] I'm sorry you're gonna have to restate

[26:02] this whole thing okay I asked did you

[26:05] take did you keep track of the rod and

[26:07] reel's expenses in preparing the site

[26:09] plans for submission to the Planning and

[26:11] Zoning commission it's the objection to

[26:13] this

[26:14] one how much he

[26:16] spent site plans he testified that that

[26:19] was his decision they felt they were

[26:21] viable to do that but difference doesn't

[26:23] make at this point for for for your

[26:25] purposes uh the board does not have the

[26:27] authority to Grant damages at all if

[26:30] he's going to claim that he was damaged

[26:31] in some way great we have another

[26:33] hearing have you more appropriate board

[26:35] but you guys don't have any dages or or

[26:38] consider damages with regard to any type

[26:40] decision the board understands that um

[26:44] as this testimony is is not close enough

[26:47] to repetitious yet to Warrant um

[26:50] blocking this from coming in so the

[26:52] objection is overruled please continue

[26:54] okay so Mr Donovan I'm going to show you

[26:57] a um list of expenses it says it's

[27:01] labeled soft costs associated with site

[27:04] plan preparation rod and real Inc which

[27:06] I've marked for identification is is

[27:09] exhibit

[27:10] 62 and ask did you prepare the

[27:14] information for the preparation of this

[27:16] document yes are are those numbers

[27:18] accurate

[27:21] yes and the total according to this is

[27:23] $172,100

[27:25] n50 correct okay I offer that as exhibit

[27:54] 62 Mr Donovan you've heard during our

[27:57] presentation in this case how the

[27:59] moratorium was passed by a resolution

[28:01] correct yes

[28:03] sir and you've heard how under the

[28:06] charter the right to take ordinances to

[28:08] referendum is available yes sir do you

[28:11] have any personal experience with

[28:13] organizing a referendum petition I

[28:21] do it is not completely irrelevant we

[28:24] went through how the right of

[28:28] petitioning a change or effect to zoning

[28:31] is guaranteed under Maryland law the

[28:34] right to referendum is guaranteed by

[28:35] Maryland law but in town Charter it's

[28:38] only available for an ordinance it's not

[28:40] available for a resolution and we're

[28:43] just G to overrule over uh objections

[28:44] overr please continue okay so did you

[28:47] have any personal experience with

[28:48] organizing a referendum petition yes I

[28:51] do what is your experience describe it

[28:55] please I uh I organized a referendum

[28:59] about the uh water and sewer rates for

[29:03] that were getting applied here in town

[29:05] and when was

[29:08] that I don't remember the year I know

[29:11] that uh Bruce wall was the

[29:14] mayor um and

[29:19] um uh I can remember remember Jeff crin

[29:23] being a council member

[29:25] because I I just remember that part of

[29:28] it I I couldn't tell the year

[29:31] okay

[29:33] um but it was the previous

[29:35] administration okay was it successfully

[29:38] accepted as a petition for referendum

[29:41] yes and thereafter was that question

[29:44] that was raised by referendum eventually

[29:46] voted upon in election by Town

[29:50] citizens say that again after the

[29:53] question was raised by the referendum

[29:56] was the question posed to be answered by

[29:58] a vote of the citizens at the next

[30:01] election uh it I believe so

[30:06] yes was that successful yeah okay no

[30:10] further questions Mr

[30:15] Donovan uh Mr P would you like to

[30:17] cross-examine

[30:19] yes so um Mr Donovan uh you stated um

[30:25] basically your name and address what is

[30:27] your position with

[30:29] r president so you are President you are

[30:34] the officer of

[30:35] RR yes so uh and Mr Woodburn was the

[30:40] engineer the time of this project

[30:43] correct and was there uh any other

[30:46] Engineers other than Mr Woodburn working

[30:49] on this

[30:50] project uh Ben Dyer was the only civil

[30:53] engineer and that's who uh Paul worked

[30:56] for did you have any other Engineers

[30:59] other than Mr Mr Whitburn working on

[31:02] this project working on this

[31:05] project not that I recall now okay so

[31:08] basically um you stated that this was uh family property and for his home

[31:14] place in state property that was

[31:16] purchased in the

[31:20] 1936 uh State Property was correct and

[31:23] it was by your great-grandfather and it

[31:25] was then transferred to uh RNR

[31:30] correct and you know you and so with

[31:32] regard to

[31:37] the sums that were

[31:41] paid

[31:45] and and you stated the

[31:48] um with regard to I believe it was to

[31:50] the tap fees that was paid by

[31:55] uh and who are they paid who's a paid by

[31:58] to to darald and

[32:00] Frederick he should have the exhibit

[32:03] shown to him when he's if you're asking

[32:05] him to I don't have it in front of me

[32:06] sir are you

[32:16] hear he what I'm gon I'm going to come

[32:19] back to that one but uh okay so

[32:21] basically you uh and you admitted based

[32:23] upon Mr Woodburn's testimony and also

[32:25] you testified you had the uh perid for

[32:28] all of these uh these projects back in

[32:31] uh

[32:33] 2006 no I I didn't say that and when did

[32:37] you have the projects for uh permits for

[32:39] these

[32:41] projects

[32:43] so we had the approval for senet for 32

[32:48] condominiums that was

[32:53] 2006

[32:56] um we when then we had Harbor Vista

[33:01] South in

[33:06] 2016

[33:08] um and I forget how many how many units

[33:12] that was for at the time right

[33:15] now and then uh speak up and speak

[33:19] directly into the microphone so they can

[33:21] hear you sure um those are the two I

[33:24] remember right now okay let's let's go

[33:27] over the um sted so in

[33:30] 2006 uh you had a zoning permit for sted

[33:35] is that correct yep and that in fact uh

[33:39] it was even renewed uh one time and I

[33:42] can't tell the day it looks like about a

[33:44] year later would that be correct sounds

[33:46] right so then uh there was a decision

[33:49] not to move forward in fact um uh and

[33:54] then because 2008 financial crisis were

[33:57] any other

[33:59] decision what I wrote down was did not

[34:02] make sense to move forward isn't that

[34:06] correct correct because of the

[34:08] financial uh crisis we were going

[34:11] through as a country okay and so um and

[34:14] in 2009 there were the same market

[34:16] conditions uh where it did not benefit

[34:19] you to go forward correct so that was

[34:22] your decision not to go forward is that

[34:24] correct yes it was not the town in any

[34:28] way uh influence influencing that

[34:31] decision was

[34:32] it no it wasn't the state was

[34:35] it no okay so in essence that was your

[34:39] financial and individual decision not to

[34:41] move forward with these uh projects and

[34:45] the

[34:46] permits

[34:49] yeah so then in um approximately

[34:55] 2015 uh and in fact you know that that

[34:58] applies to all the projects right I

[35:01] mean okay so

[35:03] what you had permits for all of these

[35:05] projects no what projects didn't you

[35:08] have permits for Harbor Vista

[35:11] West Harbor

[35:13] Vista in Harbor Vista

[35:17] North home

[35:20] place okay so you did not have it for

[35:23] Harbor Vista West Harbor Vista north and

[35:26] home place

[35:28] correct okay and but you have permits

[35:30] for state and uh trying to

[35:34] read herb Vista South

[35:39] okay tenant was 2006 10 years later was

[35:44] Harbor Vista South okay so basically um

[35:48] uh for the three of the projects you

[35:50] never did have zoning

[35:52] permits correct okay so the town never

[35:55] approved anything with regard to those

[35:58] three

[36:00] projects not a zoning permit no okay so

[36:04] um uh and then the other two projects I

[36:06] want to make sure the record is clear

[36:08] here those were your decisions and they

[36:10] were financial decisions as to not not

[36:12] to go forward is that

[36:15] correct yes and then uh uh you stated

[36:19] that there were sha State Highway played

[36:23] a role uh with regard to certain

[36:26] development

[36:28] at the time they were raising route

[36:34] 261 okay and uh basically the the and

[36:38] you said was there any type of formal

[36:40] agreement with the town or State Highway

[36:43] with regard to any development rights

[36:46] that you would be entitled to with

[36:47] regard to that development no not that

[36:50] I'm aware of no so so the state was

[36:53] doing it but there was no agreement with

[36:56] you and words that the state would in

[36:58] any way do anything to benefit you or

[37:00] that you would receive any benefit from

[37:02] that no and uh and with regard to the

[37:06] pump which was installed as a matter of

[37:08] fact that pump was a benefit to your

[37:11] other projects isn't that correct yeah

[37:14] okay then what was the pump there for it

[37:17] kept the uh the flooding off of C Street

[37:20] from what I

[37:22] recall and did the uh uh who paid for

[37:26] that pump

[37:28] town taxpayers at Chesapeake Beach the

[37:31] town paid for that yeah so rod reel was

[37:34] not in any way a harmed for you know

[37:37] with regard to that

[37:40] installation hared no so and uh so and

[37:44] you testified that in approximately

[37:47] October of

[37:49] 2020 uh you saw various planning of

[37:51] zoning meetings uh which were going on

[37:54] in the town yeah I think it was October

[37:57] and I it it was one of them one of those

[38:00] months okay and you saw where indeed the

[38:03] uh uh attitudes with regard to the

[38:05] Planning Commission was changing with

[38:07] regard to

[38:09] development no what I said is they

[38:11] started taking talking about State

[38:14] Property which had been in our family

[38:16] since

[38:17] 1936 and making it a

[38:22] park okay that's one of the things they were they were talking about that

[38:26] absolutely and then so uh and that that

[38:30] would be part of the uh zoning

[38:31] administrator was planning on that

[38:33] also he was at the meeting okay now Mr

[38:37] uh and and you of course sat here

[38:39] through the testimony of Mr Woodburn

[38:41] right yes sir and you sat here through

[38:42] his entire testimony yes sir and Mr

[38:45] Woodburn testified that in no time did he sit down with zoning Min

[38:51] administrator to talk about any zoning

[38:54] changes that were coming do you remember

[38:55] he said that I do remember him saying

[38:57] that ask so if indeed you have something

[39:00] going on that may affect your property

[39:02] why not sit down and talk to the zoning

[39:05] administrator you could watch them live

[39:07] on sitting at home and on zoom and

[39:12] YouTube uh you know that's when we first

[39:15] saw it we we didn't have to talk to

[39:17] anyone it was a public meeting well I

[39:20] mean after the meeting and you knew what

[39:22] they were discussing at no time did you

[39:24] sit out and talk to the zoning

[39:26] administrator with regard to the zoning

[39:27] check no okay in fact you didn't talk to

[39:29] him about any of these properties no

[39:31] okay so in fact uh Mr Woodburn testified

[39:35] that you never went to any of the

[39:36] Planning Commission meetings you know to

[39:38] discuss any particular Zoning for these

[39:40] properties objection just because you talked about what Mr Woodburn talked

[39:45] about and then

[39:46] Mr Donovan going to those

[39:49] meetings Mr Woodburn testified that he

[39:52] didn't go to those meetings so don't

[39:54] talk about you can ask Mr Donovan

[39:56] whether he went to those meetings but

[39:58] don't refer to Mr D Mr Woodburn because

[40:01] Mr Woodburn didn't talk about Wesley

[40:03] Donovan going to those

[40:05] meetings but M you heard Mr Woodburn say

[40:09] that in his testimony didn't you jaction

[40:12] can we restate this you heard Mr

[40:14] Whitburn testify with uh earlier that he

[40:17] did not go uh and represent you at any

[40:20] of the Planning Commission hearings he

[40:22] definitely did not represent us at any

[40:24] of those meetings and did you go to any

[40:26] planning Comm hearings uh I don't recall

[40:29] I remember watching them but I don't

[40:31] remember if I that was during Co at the

[40:34] height of it so but this you're the

[40:36] president of rod reel isn't that correct

[40:39] absolutely and uh and all of a sudden

[40:41] you become aware that indeed your

[40:43] properties could be affected yes and you

[40:46] made the decision not to do anything

[40:48] with to talk people he didn't say he

[40:50] didn't do anything okay well I know that

[40:52] you answered then uh let's restate that

[40:55] one my question is you did not go before

[40:57] the Planning Commission at all with

[40:59] regard to possible rezonings of your

[41:01] property did you no did you do anything

[41:04] to protect your interest we did what we

[41:08] filed five site plans for development of

[41:10] those properties okay and uh uh so that was your plan to in essence just

[41:18] file these applications and that's what

[41:20] all you were planning on doing we had a

[41:22] right to do it okay and uh do you have

[41:26] any facts with you today that any of all

[41:30] or all of those site plan applications

[41:32] would have been approved

[41:34] objection calls for massive

[41:37] speculation that that becomes if he's

[41:39] going to testify that indeed he filed it

[41:42] okay well let me ask you what was the

[41:44] purpose of you filing the

[41:46] applications to develop the

[41:49] properties and that goes to my last

[41:52] question

[41:53] of what gives you the idea that those

[41:56] would have been approved for

[41:59] development what was

[42:01] submitted we were allowed to do I had no

[42:05] reason to believe that they would not

[42:06] have been approved and uh but you do not

[42:11] know that they

[42:14] would I do not know that they wouldn't

[42:26] either I wish I would have found

[42:32] [Music]

[42:43] out so I'm uh looking at the uh memo

[42:47] that uh we were discussing earlier dated

[42:49] November 3rd

[42:51] 208 and it talks about the 24 Capital

[42:54] connection fees you're aware that Mr

[42:56] Blitz was talking about this earlier yes

[42:58] sir okay and this was in other words

[43:00] received from Gerald and Frederick

[43:04] Donovan show in the document if you're

[43:06] going to refer to a do I mean you you

[43:08] know what I'm talking about right you

[43:10] can present him evidence if you're going

[43:12] to ask a specific question I'd like to

[43:14] see

[43:16] it okay okay and uh neither Gerald or

[43:21] Frederick Donovan uh were they ever

[43:24] members of uh RNR applicant in this case

[43:28] yes they were okay and uh were they

[43:31] members in

[43:34] 2008

[43:35] Yes what were their positions in

[43:39] 2008

[43:42] uh they were the

[43:45] owners they were the owners of the when was the applicant what is the

[43:50] formal title of the applicant here rod

[43:52] and reel Incorporated Inc Inc okay when

[43:56] was Rod and re Inc actually

[44:00] Incorporated I don't have that off I

[44:03] don't have that data off the top of my

[44:04] head sir come of the

[44:06] year

[44:08] [Music]

[44:19] no can you uh make sure that I

[44:22] understand can you explain to me why you

[44:25] did not in any way uh meet with you now

[44:29] meet with the the town zoning

[44:31] administrator or the Planning Commission

[44:33] with regard to uh your understanding

[44:37] could be a rezoning of your

[44:42] properties why we didn't meet with them

[44:45] there was no need

[44:49] to and why

[44:52] not they hadn't passed anything they

[44:55] hadn't uh

[44:59] they hadn't passed the new comprehensive

[45:01] plan at that point well you you were

[45:05] aware that they were reviewing it for

[45:07] possible adoption right yeah so in

[45:11] essence you made that decision not to

[45:14] meet with them knowing that indeed it

[45:16] could possibly adopted which would have

[45:18] changed the zoning of your

[45:20] property cor

[45:24] right and uh and you did not ever meet

[45:28] with uh Town Council either before their

[45:31] adopting adoption of the uh

[45:35] comprehensive plan objection he

[45:37] testified that he did meet with members

[45:40] that that occurred slight uh in February

[45:43] of 2021 the comprehensive plan wasn't

[45:47] passed for another year and a half or

[45:48] two okay ex uh then and you actually met

[45:51] with uh the Town Council where did you

[45:54] meet with individual members individual

[45:56] members okay and uh and what was your

[45:59] purpose of of that

[46:01] meeting uh uh is this the same meeting

[46:03] we've we we had overruled or sustained

[46:07] 10 minutes ago so it's a different

[46:08] meeting I'm I'm I've lost the timeline

[46:11] of this it would be the same meeting I

[46:12] just didn't know that

[46:14] you sustained retion about that meeting

[46:17] but maybe you did there was a question

[46:18] on a meeting of of meeting Town staff

[46:21] who it sounded like there was other

[46:22] legal counsel in that was not true okay

[46:26] continue the question but these are the meetings that

[46:29] they were talking about which was they

[46:31] asked to meet with the mayor and Town

[46:33] Council publicly and well no they were

[46:36] one-on-one meetings okay and he

[46:37] testified that the only one that didn't

[46:39] was Mr parck I believe councilman parck

[46:42] is that the right

[46:43] pronunciation

[46:45] yes we're going to allow this my mistake

[46:48] on

[46:49] them okay so in essence you met with the

[46:53] council uh except for Mr partic Right

[46:57] and what did you and this was before or

[46:59] after the Planning Commission had

[47:02] adopted the resolution adopted their

[47:04] decision with regard to a recommendation

[47:06] of the resoning section do you know the

[47:10] timeline as far as the

[47:12] meeting uh it was February of

[47:17] 21 February of 21 yes sir okay and um uh

[47:21] and what was what did you discuss in the

[47:24] meeting the moratorium

[47:28] so it was the moratorium as opposed to

[47:30] the

[47:31] rezoning yeah because the rezoning they

[47:35] were a long way away from

[47:38] uh uh doing the comp plan at that

[47:42] point they had they had many many months

[47:46] still to go on resoning I'd like to

[47:49] pause here I'd like to know uh if we're

[47:51] talking about this meeting with people

[47:52] attend can we list who attended this

[47:55] meeting one more time for

[47:57] who were the main parties in this

[47:58] meeting they were separate meetings with

[48:02] individuals Mr Donovan maybe just I

[48:05] don't want to interrupt Mr um pounds

[48:07] cross but just to help with the board

[48:11] you had meetings with separate people

[48:14] can you list those people

[48:16] out that you met and and who else on

[48:19] your side maybe was at present at those

[48:21] meetings as best as you can recall this

[48:23] is for the sure the board themselves it

[48:25] was uh myself and Mary atlantum then we

[48:28] met with individually um the mayor Town

[48:32] Administrator on a zoom I

[48:35] believe and then we met

[48:38] with um each council member except for

[48:42] Mr paric so we met with

[48:45] uh oh my goodness I'm going to forget

[48:48] Peggy's last name

[48:51] um what is it Hartman thank you uh we

[48:55] met with councilwoman

[48:57] Hartman uh councilman

[49:00] Morris um Mr

[49:04] jorski uh councilwoman Bodine and

[49:09] um my

[49:11] goodness Mr

[49:13] Fink these were individual or this was a

[49:16] collective all

[49:19] individual okay and and I can tell you

[49:21] thank you because that clarifies so in

[49:24] essence they were not meeting as a

[49:26] council oh no they were just meeting as

[49:30] individuals they were meeting on behalf

[49:32] of town business but it was not uh uh

[49:36] Quorum if that's what you're it was all

[49:40] oneon-one

[49:41] okay they were meeting as a to hear the

[49:44] concerns of a constituent would that be

[49:46] fair that's more than fair

[49:51] yes well the reason I say that and and I

[49:55] think you said it too this was not in

[49:57] any way Town business that they were

[50:02] conducting it was dealing with town the

[50:05] town issue at the at the

[50:07] time but it was a one-on-one meeting

[50:11] okay so it goes back to where I started

[50:13] all of this you did not meet with the

[50:16] Town Council as a council to discuss

[50:19] your concerns with regard to the

[50:23] resoning in

[50:25] 2021 in

[50:28] February uh I wouldn't say that I

[50:32] mean I think I gave lots of public

[50:35] testimony

[50:37] after March of

[50:39] 2021 here in this room

[50:43] publicly and but but did you actually

[50:46] discuss with Council the

[50:50] resoning

[50:52] when at any time yes publicly yes

[50:57] what did you tell

[50:58] councel I'm not going to remember ver

[51:00] verb

[51:02] adom

[51:04] but I disagree with some of the

[51:07] decisions and some of them I agreed

[51:10] with you say some of the decisions is

[51:12] that the Planning Commission or is that

[51:14] the council would have been

[51:16] both

[51:25] and you're certainly aware that uh

[51:33] rezonings would change the use of

[51:37] properties and as an experienced

[51:39] developer well let start you are an

[51:41] experienced

[51:42] developer objection would you classify

[51:44] yourself as an experienced

[51:46] developer is that are you g to do both

[51:49] of those questions I want to object to

[51:50] the first one not the second one well

[51:51] I'm making the Assumption as the

[51:53] president of a development company that

[51:55] he's experienced developer maybe that

[51:56] was a bad assumption there's no

[51:58] testimony that it's a development

[51:59] company it's not so so Mr uh have you

[52:02] developed other properties

[52:07] before uh you could say that sure okay

[52:10] and how many properties would you

[52:12] estimate that you've developed can you

[52:14] clarify whether you're asking about him

[52:15] doing it as the rod and reel or him

[52:18] personally because he has other business

[52:19] interests and things like that have you

[52:22] been involved or you individually with

[52:24] regard to any company or any entity uh

[52:28] that has indeed developed

[52:31] property sure yes and so uh how many

[52:36] properties would you be involved in or

[52:38] you were involved in a company or an

[52:40] entity that developed

[52:43] properties now I wouldn't say I'm an

[52:45] experienced developer nor would I say

[52:49] um I

[52:52] know I know a lot about development but

[52:55] um

[52:57] I would say a handful I don't know the

[52:58] exact number okay fair enough well as in

[53:01] your experience a developer have you

[53:03] seen or heard or understand rezonings

[53:06] that

[53:08] occur I've been learning as I go with

[53:11] rezoning

[53:12] and and all of it's been here with the

[53:17] town

[53:19] then that's learning as you go that's

[53:21] fine but so were you aware that indeed a

[53:24] resoning process means property

[53:27] resed

[53:29] sure and so I want to make sure that

[53:32] indeed you're aware of that and yet you

[53:34] chose not to meet with the planning

[53:36] administrator or the Planning Commission

[53:39] with regard to a possible resoning of

[53:41] your

[53:43] property

[53:51] correct and

[53:53] Mr Woodburn t testified a number of

[53:57] times with regard to resoning uh when we

[53:59] discussed that and he used the phrase a

[54:01] number of times of things change you

[54:04] remember him saying that uh

[54:07] vaguely and based I'm G to ask you either as

[54:11] your experience in development or in

[54:14] your experience as a businessman do

[54:17] things change every day and things

[54:21] change has things have things changed in

[54:23] chesp Beach yes and things Chang with

[54:27] regard to uh flooding which may or may

[54:30] not be occurring in chesp

[54:32] Beach yes and and you aware of uh

[54:36] potential climate change and flooding

[54:37] issues which may be uh proed to be

[54:41] occurring in ches Beach I am and uh one

[54:45] of the things that the town wanted to

[54:47] address is possible flooding issues are

[54:49] you aware of that

[54:51] action it's not the town okay got to be

[54:54] specific about who's doing what

[54:56] we'll allow it go ahead please answer

[54:58] the question or restate if you would Mr

[55:01] pounds if you just say it again sure and

[55:02] you're aware that indeed uh the town may

[55:05] be uh addressing flooding issues and

[55:08] changes which may occur are you aware of

[55:09] that I am and are you aware that there

[55:12] was concern with regard to your

[55:14] properties okay and we can go through

[55:16] them if you want to regarding potential

[55:18] for flooding on your

[55:19] properties I am aware of that and so in

[55:23] essence let's make sure we understand

[55:25] each other you want this board to to

[55:30] assist in the approval of resoning or of

[55:33] a development

[55:35] applications for you to put houses on

[55:39] property which the town is classifying

[55:41] as being flooding objection there's no testimony about classifications what

[55:46] they was this is a gray area we're gonna

[55:49] uh you can consider how you'd like to

[55:51] restate that or we can I get that but

[55:54] you you testified earlier that indeed

[55:56] you're aware that your property is

[55:58] indeed classifying as being uh in a

[56:00] flood plane flood

[56:03] plane not all of them but yes that's Mr

[56:07] and Mr Woodburn said

[56:10] that I don't recall him saying that home

[56:13] place was in a flood plane it's the

[56:15] highest point in

[56:17] town

[56:18] but uh yes some of them are in the flood

[56:25] plane

[56:28] and and so basically you know your

[56:31] testimony was that things change every

[56:33] day that's what you just said they do

[56:35] and things change uh both politically

[56:39] things

[56:41] change you could say that sir and and

[56:44] with regard to uh the use of properties

[56:47] things

[56:49] change correct and with regard to

[56:52] environmental issues things change

[56:55] correct and with with regard to the the

[56:57] feelings of citizens things change yes

[57:01] so in essence uh with regard to the

[57:06] opinions of Mr z uh the zoning

[57:09] administrator did you contact and you

[57:11] never met with him with regard to any

[57:13] possible changes that he saw with regard

[57:16] to the town that may affect your

[57:23] property can you state that again sure

[57:25] with regard to the town uh the Town

[57:27] Administrator uh you never met with him

[57:29] with regard to a possible zoning change

[57:32] with regard to his Pro your

[57:38] property not that I recall no never met

[57:41] with the Planning

[57:42] Commission no so uh and were and you

[57:46] were aware that indeed they were going

[57:49] to be classifying your property in the

[57:51] flood plane were you aware of that

[57:52] objection there's no testimony of that

[57:55] the whole town is is within the flood

[57:57] almost the whole town is in the flood

[57:59] plane

[58:00] ordinance you keep on using the term

[58:02] flood plane that's all these properties

[58:04] it flood plane doesn't mean you don't

[58:07] develop as Mr Woodburn testified you

[58:10] address the consequences of that

[58:12] development almost always by raising the

[58:14] grade so that you're out of the flood

[58:17] plane and so the point is you're asking

[58:21] him

[58:23] about the the conclusion

[58:26] of somebody whether it's the planning

[58:29] and Zone I think you said the Planning

[58:30] and Zoning commission about the flood

[58:32] plane they weren't making anything about

[58:33] the flood plane they don't control the

[58:35] flood plane federal government does they the Town Council would pass a has a

[58:40] resolution with or I mean an ordinance

[58:42] stat to with respect to um the buffer

[58:47] that's added onto the flood plane for

[58:49] grade but beyond that that's not

[58:52] something the commission so knowledge of

[58:55] whether there's known flood risks on the

[58:58] properties I believe is what Mr pounds

[59:00] is getting at is that correct and what

[59:03] he did about it as far as trying to

[59:06] protect his property but he was asking

[59:07] about the conclusions of the Planning

[59:09] and Zoning Commission on this they

[59:10] hadn't concluded this until I guess the

[59:13] comprehensive plan was adopted the fact

[59:16] of the flood plan or flood plans

[59:19] or we're not discussing that the

[59:21] question is is there any

[59:24] awareness being in a flood zone

[59:26] is that is that a fair assessment of

[59:29] corre correct okay that that objection

[59:32] is

[59:33] overruled if you'd please restate the

[59:35] question again sure and with regard to

[59:37] the uh and you were aware and in fact

[59:40] I'm going to accept and ask that Mr

[59:42] blitz's statement now be accepted in the

[59:45] record when he said almost the whole

[59:46] town is in the flood plane okay and uh

[59:49] we're going to accept that now as

[59:51] testimony which is in the record no it

[59:53] isn't it was part of my objection you

[59:54] don't convert that to testimony

[59:56] understand let's we're questioning the

[59:58] witness right now please oh and you're

[1:00:01] aware that your properties except for

[1:00:03] the Home Place were indeed class being

[1:00:05] classified within the flood

[1:00:07] plane and when hurricane Isabelle came

[1:00:11] through in

[1:00:13] 2003

[1:00:15] um Stant got flooded the restaurant we

[1:00:19] cleaned it up only to have it flood 3

[1:00:22] days later I'm fully aware of what

[1:00:25] flooding can do do here in town and what

[1:00:29] it has

[1:00:30] done

[1:00:31] um in part that's why we raised the Lots

[1:00:35] at stets so it wouldn't

[1:00:39] flood and same with the Roden reil

[1:00:42] Redevelopment the

[1:00:44] resort and

[1:00:47] um were those were those so in essence

[1:00:51] you were going to be putting in various

[1:00:54] uh dirt and fill to raise the

[1:00:59] levels we did that at

[1:01:02] stet correct and uh but you had you

[1:01:06] gotten permits from the court of

[1:01:07] Engineers or anyone else to do that with

[1:01:10] regard to these

[1:01:12] applications uh we have file we filed

[1:01:15] for zoning

[1:01:18] permits my question is did you receive

[1:01:21] any any approvals from the core of

[1:01:23] engineers or from the Marland Department of the environment or anyone

[1:01:28] else with regard to uh putting in fill

[1:01:33] on those lights with regard to those

[1:01:34] applications if you know whether that's

[1:01:36] even

[1:01:40] required we did it at

[1:01:43] stet but

[1:01:46] uh we did not do that with these five

[1:01:50] applications

[1:01:52] now so you never even filed for the

[1:01:54] application for that

[1:01:57] well I would think you would do that

[1:02:00] after you got zoning

[1:02:02] approval so your position that the to

[1:02:05] why spend all that money without the

[1:02:08] zoning approval can I just object on

[1:02:11] this

[1:02:11] basis Mr pounds is asking a hypothetical

[1:02:14] that doesn't even exist under the law

[1:02:16] you don't go to the core of army

[1:02:17] Engineers you go to the Coward County

[1:02:19] for the grading permit the zoning permit

[1:02:22] allows the grading permit so it's issued

[1:02:25] by the town the of our Engineers mde

[1:02:27] doesn't have anything to do with it at

[1:02:28] that stage and so you're asking

[1:02:31] hypotheticals about them he doesn't know

[1:02:33] because he's a lay person and the board

[1:02:35] does not know as well we do not know the

[1:02:37] tick tock of how this process should

[1:02:39] work so i' urge you to present to the

[1:02:42] board what we should be paying attention

[1:02:44] to with regards to the tick top of this

[1:02:46] and you may consider doing that during

[1:02:49] your section of the presentation and and

[1:02:51] what what and basically the point that

[1:02:53] I'm making is is simply that uh if he

[1:02:56] had already done that or not and and

[1:02:58] that's all he want to testify to that he

[1:03:00] had not it's a fair question

[1:03:09] continue we are coming up on an hour I

[1:03:11] would like to take a break sometime in

[1:03:13] the next five minutes if that take does

[1:03:16] that work all right we will take a break

[1:03:18] for five minutes thank

[1:03:24] you

[1:03:54] e

[1:07:24] any

[1:07:29] thank you thank you Mr chair the uh so

[1:07:31] Mr Donovan basically you know we were

[1:07:33] talking about the previous permits which

[1:07:35] had been uh issued uh and the permits

[1:07:40] that I see uh expired back in 2012 and

[1:07:45] the other one expired in I believe in

[1:07:49] 200 11 would that be correct to your the

[1:07:52] best of your knowledge or you want to

[1:07:53] see these uh permits here yeah if

[1:07:57] I yeah if I could see him that'd be

[1:08:22] great it looks like both of these for

[1:08:26] State place is that

[1:08:28] correct I can't read that

[1:08:35] one I don't know what this one is

[1:08:38] for I can't read

[1:08:45] that 415 Gordon standed Avenue so that's

[1:08:48] Harbor vist North

[1:08:54] okay

[1:08:56] your testimony is with regard to give

[1:08:59] you this one here

[1:09:03] [Music]

[1:09:04] too

[1:09:10] eight looks like it

[1:09:13] was

[1:09:15] 9909 this is for

[1:09:18] 87 6 8216 C

[1:09:22] Street May s that's the stance for 216

[1:09:26] unit developments it's a renewal on 9909

[1:09:29] so it must have been issued one probably

[1:09:31] one year before that oh it looks like

[1:09:34] I'm sorry zoning permit application

[1:09:37] dated 7606 so this is the renewals that

[1:09:41] were going on from 2006 through

[1:09:45] 2009 we'll go over that one first so uh

[1:09:48] and you were are aware that you with

[1:09:50] regard to what your Council just said

[1:09:52] with regard to this was a 2006 a and a

[1:09:56] renewal in

[1:10:00] 2009 yeah and then so this would have

[1:10:03] expired probably in

[1:10:06] 2010 uh that sounds correct yes so in

[1:10:10] essence but you didn't file these new

[1:10:11] applications until

[1:10:14] 2021 it at stet it would have been for

[1:10:18] uh town house is not um two 16 unit

[1:10:22] buildings it that was two condom

[1:10:25] buildings andt it's the zoning

[1:10:29] changed so for 11 years though you did

[1:10:33] not file any applications with regard to

[1:10:34] that property no

[1:10:37] sir again I want to make sure I'm clear

[1:10:39] nothing in the town or the state that

[1:10:42] prevented you from doing that

[1:10:44] [Music]

[1:10:45] no and with regard

[1:10:50] to the other property of Senate uh again

[1:10:54] this was a Ed in

[1:10:57] 2012 oh which one is that that's not

[1:11:03] stance is this the one I couldn't

[1:11:08] read Gordon Sate uh this would have been

[1:11:11] for Harbor

[1:11:13] Vista

[1:11:16] North 116 unit yep that's har Vista

[1:11:19] North and do you have read the renal

[1:11:22] date on

[1:11:24] it

[1:11:26] uh data approved renewal

[1:11:32] 91412 so would that renewed for a period

[1:11:35] of one year after

[1:11:37] that

[1:11:40] uh looks like

[1:11:47] it MH okay so basically and for this

[1:11:51] project uh uh after this permit expired

[1:11:57] eight years went by and you did not do

[1:11:58] anything with regard to that site did

[1:12:06] you I think

[1:12:09] we I feel like we applied for that and

[1:12:12] reapplied for a building there which build which property are we

[1:12:17] talking about now har Vista North I

[1:12:19] believe correct so yeah you applied in

[1:12:22] 2019 for it correct

[1:12:26] that a little I we we made a we applied

[1:12:31] to build in 2019 the Harbor Vista North

[1:12:38] property okay and was a Form application

[1:12:42] submitted it was okay what happened to

[1:12:46] it

[1:12:48] um we in we chose not to uh do that

[1:12:53] development and

[1:12:57] I don't even think we had zoning

[1:12:58] approval from what I recall I know we

[1:13:01] made application I believe we made an

[1:13:04] application I shouldn't say I know I

[1:13:06] believe we did one reason whether you withdrew the

[1:13:11] application if if you if you know yeah

[1:13:15] let's stick with your personal knowledge

[1:13:16] just for the board's and Mr pound's

[1:13:18] edification Mr Donovan wasn't the only

[1:13:20] person doing these things Mr Donovan

[1:13:22] Gerald Gerald Donovan was leading the

[1:13:25] for a lot of

[1:13:26] this I'm asking you as the president of

[1:13:29] RNR are you aware of

[1:13:33] this I believe so okay was the was the

[1:13:39] application approved

[1:13:41] no uh was it denied no was it

[1:13:48] withdrawn I don't know that I don't know

[1:13:51] if it was formally withdrawn I I I

[1:13:55] honestly don't know that are you aware

[1:13:57] of why it didn't go forward for any

[1:14:01] reason

[1:14:05] no to your knowledge was anything with

[1:14:08] the town or the state which would have

[1:14:10] prevented those that that project from

[1:14:12] going

[1:14:14] forward no not I don't have any

[1:14:16] knowledge that would have prevented

[1:14:20] [Music]

[1:14:24] that

[1:14:28] with regard to these

[1:14:29] applications uh you tell the board why

[1:14:34] there were not any continuing renewals

[1:14:36] filed with regard to these development

[1:14:41] sites

[1:14:43] and you mean if you know

[1:14:46] personally can you restate the question

[1:14:49] sure with regard to the applications

[1:14:50] that we were just discussing and that

[1:14:52] are in exhibits you know with regard to

[1:14:54] the town can you tell me why uh you did

[1:14:58] not file for continuing renewals with

[1:15:01] regard to these developments I do not

[1:15:02] recall why

[1:15:04] no uh so you don't know it at all you

[1:15:08] don't know at

[1:15:09] all not with any 100% certainty now okay

[1:15:14] you anything from the town or the state

[1:15:15] prevent you from requesting a

[1:15:18] renewal not that I'm aware of now so

[1:15:20] this would have been a decision that you

[1:15:23] made

[1:15:25] if you know if I

[1:15:27] [Music]

[1:15:29] know no not

[1:15:37] [Music]

[1:15:45] no you know Mr chair there's something

[1:15:48] that is sticking in my craw okay

[1:15:52] and and we can speak to Mr s about it or

[1:15:55] whatever the problem is this Mr Woodburn

[1:15:59] testified that he was acting as the

[1:16:02] engineer for the applicant and also the

[1:16:06] question about whether he was acting as

[1:16:08] also the engineer for the town um and he

[1:16:11] testified he thought someone else was

[1:16:13] operating as the

[1:16:15] engineer um and as it turns out there

[1:16:18] was no other engineer other than him um

[1:16:22] objection well you're making an argument

[1:16:24] so I'm I'm not making an argument I'm

[1:16:26] sort of just stating as to continue the

[1:16:29] question is the question

[1:16:32] is I can profer that okay or go into it

[1:16:38] further okay because let me let me tell

[1:16:40] you the other part of that before you

[1:16:41] answer that question we have the exact

[1:16:43] same problem with Mr Blitz okay he with

[1:16:47] Mr ridiculous okay from what I

[1:16:49] understand he was acting as the attorney

[1:16:51] for the applicant and also the town

[1:16:52] attorney so we have a problem um and

[1:16:58] with regard to all of this so I'm so

[1:17:02] we're right now we're in a phase where

[1:17:04] I'd like to complete the cross of the

[1:17:07] witness if there are concerns about Mr

[1:17:11] blitz's role that I am as of right now

[1:17:14] aside from what we've already discussed

[1:17:16] if there's new information I'd like to

[1:17:17] see it written and provided to the board

[1:17:19] and thus we can discuss it with our

[1:17:21] legal council and make sure we

[1:17:22] understand what is that you're saying um

[1:17:25] as for the engineer who worked for both

[1:17:28] the rod and reel and the town I sure

[1:17:32] would like to hear more about that but I

[1:17:33] don't believe now is the appropriate

[1:17:36] time um if there are questions about

[1:17:39] that you would like to ask the witness I

[1:17:40] think that

[1:17:42] is acceptable now um but other than that

[1:17:45] I would like to hear about that later

[1:17:47] okay now let me let me ask you Mr

[1:17:49] Woodburn is not here tonight um uh is is

[1:17:53] the applicant going to make him

[1:17:54] available to come or should we subpoena

[1:17:56] him

[1:17:57] or or doesn't have any procedures for

[1:17:59] subpoenas otherwise the Planning and

[1:18:01] Zoning commission and the um zoning

[1:18:04] administrator who have not entered their

[1:18:06] appearance would be the board may ask

[1:18:09] witnesses to attend at their convenience

[1:18:13] uh we have no power to enforce that

[1:18:17] um let me ask you could I ask the board

[1:18:20] to ask him to

[1:18:23] appear um

[1:18:27] yes you may do that um why don't you put

[1:18:32] it in writing and we will enter into the

[1:18:36] record and we will make a request for

[1:18:38] any witnesses to reappear at the end of

[1:18:40] Mr blitz's

[1:18:42] presentation um and we are doing this

[1:18:44] partially because we did not allow the

[1:18:47] public to ask questions at the end of at

[1:18:50] appropriate times in the leadup to this

[1:18:54] um

[1:18:55] yes so at the end of the testimony at

[1:18:59] the end of your presentation we will ask

[1:19:00] witnesses to come back if they would

[1:19:02] they're not required to and we cannot

[1:19:03] make them um and we will do the best we

[1:19:06] can for that thank you and uh so

[1:19:09] obviously part of this is we never have

[1:19:13] begun cross-examination of Mr Blitz

[1:19:15] which I would like the public to at

[1:19:17] least have that opportunity cross-

[1:19:19] examine yeah wait a minute then then

[1:19:21] what is this test did he have testimony

[1:19:22] or not it did not have testimony we we

[1:19:24] went over all that I've been making

[1:19:26] arguments the entire time there was a

[1:19:28] couple times where I've been I apologize

[1:19:30] there will be questioning at the end of

[1:19:32] Mr blitz's testimony which will

[1:19:33] Encompass the entire

[1:19:34] presentation um as

[1:19:38] to I want this in writing I want it I

[1:19:40] want to hear what it is that you

[1:19:42] want and what you think the board should

[1:19:45] do about it and then we will discuss it

[1:19:47] with our legal councel I can say I

[1:19:49] personally don't really like this

[1:19:51] but is unclear on the procedures at this

[1:19:54] point so make your request we'll talk

[1:19:56] about it we'll figure it out you will be

[1:19:58] allowed to ask some questions at the end

[1:20:00] of the presentation to Mr

[1:20:02] Blitz how that differs from

[1:20:05] cross-examining a witness is not yet

[1:20:07] decided this is an administrative

[1:20:09] hearing and we've never done anything

[1:20:10] like this so does that get to answer

[1:20:13] your question I don't like this either

[1:20:15] yeah uh but at the same time I have a

[1:20:17] fiduciary duty to my client and and this

[1:20:21] was a problem and so write it up

[1:20:26] and it'll be short and sweet it's not

[1:20:28] going to be anything long because you

[1:20:29] know one of the reasons I'm not gonna

[1:20:30] make it real long is because obviously

[1:20:33] it's going to be spread around and I

[1:20:34] don't want an idea as to where on the

[1:20:36] Arena fair enough G to straight be

[1:20:38] straightforward the request okay we will receive that um are

[1:20:44] we done with the

[1:20:48] cross as far as Mr Donovan

[1:20:53] um

[1:21:00] yes I am you want me to redirect with

[1:21:03] him first or do you want to go to

[1:21:05] members of the public let's you redirect

[1:21:07] yeah go ahead and redirect

[1:21:10] okay so first um Mr Donovan you were

[1:21:15] asked about the incorporation of the rod

[1:21:18] and reel would if I suggested that it

[1:21:21] occurred in 1972 would that sound about

[1:21:24] right as from your perspective it would

[1:21:27] okay just so you hear the

[1:21:30] date

[1:21:32] um you were also asked about permits and

[1:21:35] you testified that no permit had been

[1:21:37] granted for Harbor Vista North but we

[1:21:39] already have an exhibit that

[1:21:41] shows the zoning permit for Harbor Vista

[1:21:46] North so I want you to be able to look

[1:21:48] at that and then correct your

[1:21:50] testimony yeah I don't remember this but

[1:21:53] clear clearly we were okay you state the

[1:21:55] date on that so this is this is one one

[1:21:59] of the things that Mr susman was using

[1:22:01] to Mr P I apologize Mr pounds was using

[1:22:05] to cross was one of the zoning permits

[1:22:07] for Harbor Vista North the

[1:22:11] date

[1:22:13] is the application date is

[1:22:17] 91611 the approval date is

[1:22:20] 92211 it looks like it was re renewed on

[1:22:24] 94

[1:22:28] 1412 and that's it for this piece of

[1:22:32] paper I verify that's exhibit 57

[1:22:37] correct for some reason mine doesn't get

[1:22:40] written as what it is but that's my

[1:22:44] understanding okay

[1:22:53] um

[1:22:58] the minutes from that we approved today

[1:23:01] say that it's 57

[1:23:03] okay that's the packet of zoning permits

[1:23:07] correct it's the first you had three

[1:23:09] different ones 57 58 59 andain permits

[1:23:13] okay thank

[1:23:15] you

[1:23:18] so now you testified um in answers to Mr

[1:23:23] pound's questions that you didn't meet

[1:23:24] with the Planning and Zoning commission

[1:23:26] but isn't it true that you provided

[1:23:28] testimony about the comprehensive plan

[1:23:30] throughout the pro process yeah I

[1:23:34] did and

[1:23:39] you oh that's it just want to make sure

[1:23:42] that's

[1:23:44] [Music]

[1:23:50] clear I don't like any of this either in

[1:23:53] case anyone so we'll probably all end

[1:23:55] this together on this one

[1:23:58] [Music]

[1:24:03] guys and I I just want to make sure your

[1:24:07] testimony is correct because I I think

[1:24:09] you might have said that you'd got no

[1:24:11] permit for home place but isn't it true

[1:24:13] that you got a grading permit for home

[1:24:16] place which is itself based upon a

[1:24:18] zoning permit yeah

[1:24:20] correct that just so you know it was

[1:24:23] just for great it wasn't for the whole

[1:24:26] thing that hadn't been hadn't gone

[1:24:28] through that part of the process

[1:24:32] yet uh no further

[1:24:35] questions

[1:24:37] um at this point in time we will hear

[1:24:40] from any members of the public who would

[1:24:42] like to ask questions com on up state

[1:24:44] your name raise your hand in the air Mr

[1:24:47] susman would you do the

[1:24:49] honors and this blanket swearing in for

[1:24:52] anybody here and I have signed in

[1:24:54] previously on one of these she okay then

[1:24:56] just sayate your name that'll be all

[1:24:57] right so it's it's Randall

[1:24:59] Gman getman do you were affirm or that

[1:25:03] the penalties of perjury that the

[1:25:05] testimony you are about to give and the

[1:25:07] responses and statements you are about

[1:25:09] to make will be the TR whole truth and

[1:25:12] nothing but the truth I

[1:25:15] do I I actually uh um Mr Donan I I I

[1:25:19] have a question for you so I think you stated in that in 202

[1:25:24] 21 um you were aware that the Planning

[1:25:27] and Zoning was was looking at other uses

[1:25:31] for your property I think he said Green

[1:25:33] Space or park or something it would have

[1:25:36] been in November October of 2020 2020

[1:25:41] okay

[1:25:42] did did you ever were you aware before

[1:25:46] that that the Planning and Zoning uh

[1:25:49] were there any other indications that

[1:25:51] they were working on things in the

[1:25:53] comprehensive plan

[1:25:54] that might have affected you being able

[1:25:57] to develop your properties prior to that

[1:26:01] prior to November of

[1:26:05] 2020 I was aware that they were redoing

[1:26:08] the comprehensive

[1:26:10] plan after we watched whatever meeting

[1:26:14] the October or November whichever one we

[1:26:17] went back and

[1:26:18] watched so to kind of help you out I'd

[1:26:22] like to call attention to exhibit 10

[1:26:25] which is the minutes of the Planning and

[1:26:27] Zoning for June 20 2018 I got this out

[1:26:31] of your

[1:26:36] package okay and and

[1:26:39] so in there it's there's a couple of

[1:26:41] things I wanted to call out you know it says that Mr Blitz uh Esquire was

[1:26:47] present on behalf of applicant owner

[1:26:49] Roden reel to request the second

[1:26:51] one-year extension of the preliminary

[1:26:53] site plan for the harbor V South

[1:26:56] Apartments that was granted in 2017 by

[1:26:59] the Planning Commission so I just want

[1:27:01] to point that out and then in the next

[1:27:05] paragraph the commission had concerns

[1:27:08] talking about the Planning and Zoning

[1:27:09] commission had concerns that they are in

[1:27:12] the beginning stages of preparing the

[1:27:14] new comprehensive plan and there could

[1:27:16] be changes to the zoning ordinance that

[1:27:18] would affect the construction of the

[1:27:20] future of of the project in the future

[1:27:23] yeah

[1:27:25] so you were you were aware I assume

[1:27:28] since he was representing you that you

[1:27:30] were aware of it back in at least June

[1:27:32] of

[1:27:34] 2018 correct yeah back then yeah but

[1:27:38] they weren't talking about taking stets

[1:27:41] and making it into a park but yeah we

[1:27:44] were knew we knew that they were going

[1:27:46] through the comprehensive plan

[1:27:47] absolutely and that they were and that

[1:27:49] they were maybe heading in a direction

[1:27:52] uh that that could have prevented you

[1:27:55] from doing your projects in 2018 yeah no I'm gonna read it again I don't

[1:28:02] remember that at all okay you should

[1:28:05] have told

[1:28:07] him because it's here that he was here

[1:28:10] representing you and it says that they

[1:28:13] were in the beginning stage of the

[1:28:14] comprehensive plan you also stated that

[1:28:17] throughout the comprehensive plan

[1:28:21] process uh you were monitoring it as

[1:28:23] well

[1:28:24] after yeah correct so the only point I

[1:28:27] was really making and and is is is that this thing has been

[1:28:33] going on for a long time the

[1:28:35] comprehensive plan yes absolutely and and the discuss and the potential

[1:28:40] discussions of uh of changes to the

[1:28:43] zoning

[1:28:44] ordinance uh you know the comprehensive

[1:28:47] plan what they were thinking what the

[1:28:49] directions that they were they were

[1:28:51] going to was in the process changing way

[1:28:55] back in 2018 the things that they were

[1:28:58] discussing from what I recall it was a

[1:29:01] lot of the zoning administrator teaching

[1:29:04] the Planning Commission about the

[1:29:06] comprehensive plan I I understand that

[1:29:10] especially having been in the

[1:29:11] development of the 2010 2011

[1:29:13] comprehensive

[1:29:15] plan yeah my name's on that yeah so I

[1:29:18] understand what you're saying I I don't

[1:29:20] recall any uh thing that came close to

[1:29:25] what we saw about when they were talking

[1:29:27] about Senate specifically what they were

[1:29:28] doing to your thing but correct yeah and I I'm there was also uh

[1:29:37] um later on in your in your your

[1:29:40] testimony you you you talked about the uh um the

[1:29:45] discussions uh about

[1:29:50] the the uh sorry um

[1:29:56] the zoom meetings that took place in in regard to to the

[1:30:02] moratorium um those were very public and

[1:30:05] you did get to address I know because I

[1:30:06] was listening yeah we did yeah so you you were participating that but that

[1:30:11] was in when they were looking at the

[1:30:15] moratorium that's that's all I now the

[1:30:17] only thing that I can recall right now

[1:30:20] that that they were talking about

[1:30:24] previous

[1:30:25] to the one where they were talking about

[1:30:27] s that would have

[1:30:29] affected not all of the stuff we were

[1:30:32] looking to develop was the height limit

[1:30:35] okay but I don't remember any zoning

[1:30:38] changes per se okay thanks no problem

[1:30:42] that's all I

[1:30:50] have all right um any members of the

[1:30:53] board have questions that they like

[1:30:56] answered by the witness at this point in

[1:31:01] time during this time I know you talked

[1:31:04] about an

[1:31:05] economic um situation 208 whatever right

[1:31:10] sure um that lasted for a few years was

[1:31:11] there anything else going on with these

[1:31:13] properties in that time

[1:31:17] period

[1:31:20] um not that I can recall now

[1:31:32] all right last call all right thank you

[1:31:36] for providing testimony Mr Blitz um we

[1:31:38] have 30 minutes left tonight so you are

[1:31:40] welcome to continue um wherever you

[1:31:43] would

[1:31:52] like

[1:32:22] top

[1:32:25] okay

[1:32:28] so most of the rest of this is the

[1:32:30] argument about the requested relief and

[1:32:33] how you do it what authorities you have

[1:32:35] to do it and why you should do what

[1:32:38] we're asking

[1:32:40] for and it presents the both legal

[1:32:43] reasons as well

[1:32:47] as some probably

[1:32:50] additional legal arguments about why you

[1:32:53] do it

[1:32:55] so we're going to start with the board's

[1:32:56] Authority in this case and it's an

[1:32:58] expansive authority to craft relief it's

[1:33:02] given to you by both Maryland law and

[1:33:04] town law it's section 4306 F of the land

[1:33:09] use article section 29032 g and that is

[1:33:14] important because it gives this board

[1:33:17] the power to assume all of the powers of

[1:33:20] the zoning administrator and the

[1:33:22] Planning and Zoning Commission in

[1:33:24] crafting

[1:33:26] relief either reviewing and approving

[1:33:29] the site plans and issuing the zoning

[1:33:31] permits yourself according to the laws

[1:33:33] that existed on the date the

[1:33:34] applications were

[1:33:35] filed or ordering the zoning

[1:33:38] administrator and the Planning and

[1:33:39] Zoning commission to review those site

[1:33:42] plans according to the laws that existed

[1:33:44] on the date of the applications were

[1:33:46] filed and ordering the zoning

[1:33:48] administrator to issue a permit if the

[1:33:50] site plans are approved according to

[1:33:53] those laws at that

[1:33:55] time so it's 4306

[1:34:01] F that gives you those all expansive

[1:34:08] Powers the consequence of the

[1:34:10] administrative error which was the

[1:34:12] failure to process the site plans as

[1:34:14] required under the town

[1:34:17] code is

[1:34:19] first let me make the simple point that

[1:34:24] the rod and reel based upon the evidence

[1:34:26] that you've heard is an AG grieved

[1:34:30] party it and its wholly owned subsidiary

[1:34:33] owned the properties and sought

[1:34:35] development through the site plan

[1:34:36] approval process by filing its

[1:34:40] applications the failure of the Planning

[1:34:42] and Zoning commission and the zoning

[1:34:44] administrator to even begin the process

[1:34:46] of site plan review within the 60 days

[1:34:49] after the applications were

[1:34:51] filed even if they relied upon the validity or effectiveness of the

[1:34:56] moratorium in good faith was an

[1:34:59] error the applicate the applicants were

[1:35:02] the ones harmed by that error that makes

[1:35:05] them AG grieved

[1:35:14] parties second both the zoning

[1:35:16] administrator and the Planning and

[1:35:17] Zoning commission act in an

[1:35:19] administrative capacity when conducting

[1:35:22] site plane reveal

[1:35:24] and slight plan review is kind of like

[1:35:26] the quintessential example of

[1:35:28] administrative capacity rather than the

[1:35:30] commission's discretionary policy

[1:35:33] Powers so when the commission was

[1:35:36] deciding what the comprehensive plan

[1:35:38] should be taking testimony that's all

[1:35:41] discretionary policy

[1:35:43] Powers uh and cannot easily be

[1:35:45] challenged under the law and we don't

[1:35:47] challenge it in this

[1:35:49] case okay we don't challenge their power

[1:35:52] to do it through the comprehensive plan

[1:35:55] that's not what this case is

[1:35:56] about but site plan review and the

[1:35:59] obligation to properly conduct that site

[1:36:02] plan review is Administrative in nature

[1:36:05] the administrators apply the law in

[1:36:08] effect at the time and determine if the

[1:36:12] property owner's proposed development

[1:36:14] meet the standards set forth in the

[1:36:18] ordinances in that context they are

[1:36:20] administering the law not enacting it

[1:36:25] and therefore the rod and reel has

[1:36:27] standing to bring this

[1:36:33] appeal with respect to the request for

[1:36:38] Relief I think you're jumping ahead

[1:36:41] from yeah I don't think I'm using that

[1:36:45] for

[1:36:49] this the consequence of the

[1:36:51] administrator's failure to process the

[1:36:53] site plans as required by the zoning

[1:36:56] ordinance was the delay in

[1:36:59] permitting that delay in permitting

[1:37:01] delayed the start of construction which

[1:37:04] itself as you heard from Mr Woodburn

[1:37:06] could have sufficiently progressed to

[1:37:08] create a vested entitlement to the

[1:37:11] permits such that the subsequent changes

[1:37:13] to the zoning ordinance that occurred

[1:37:15] well after would not have

[1:37:19] mattered based upon the evidence we've

[1:37:21] provided you in this case

[1:37:24] can there be any doubt that the purpose

[1:37:26] of the attempt at passing a

[1:37:28] moratorium or the denial of the site

[1:37:31] plan

[1:37:32] review after the moratorium had

[1:37:35] expired was motivated by the goal of

[1:37:38] changing the law to make the proposed

[1:37:40] developments

[1:37:42] impossible I argue that it was clearly

[1:37:45] the goal of the

[1:37:46] delay if the board concludes that the

[1:37:48] means and manner of achieving that delay

[1:37:52] were wrongful and the moratorium was

[1:37:55] without effect as we've

[1:37:57] argued then the fair and just result is

[1:38:00] to put the Roden reel back in the same

[1:38:02] legal position it would have been in

[1:38:04] when it filed its

[1:38:07] applications the board does not need to

[1:38:09] presume that the rod and real site plans

[1:38:12] would have been approved if the law in

[1:38:14] effect on January 29th 2021 were applied

[1:38:18] to the applications because we're at

[1:38:20] this point we're not asking the board to

[1:38:22] approve the site plans at this stage

[1:38:24] merely asking for the order from this

[1:38:26] appeal be that the site plans be

[1:38:29] processed in accordance with the laws in

[1:38:31] effect at that

[1:38:34] time if not for the delay caused by the

[1:38:37] zoning administrator and the Planning

[1:38:38] and Zoning commissions failure to

[1:38:40] process the site plans in a reasonable

[1:38:42] and timely

[1:38:43] manner that is what would have

[1:38:46] occurred by granting the requested

[1:38:49] relief you would be restoring the rod

[1:38:51] and reel to its original starting

[1:38:52] position and there would still be a

[1:38:54] review of the site plans to determine

[1:38:56] the sufficiency of the plans according

[1:38:59] to the standards in effect when the

[1:39:00] applications were

[1:39:03] filed the same would apply for to the

[1:39:05] eventual zoning permit that would be

[1:39:07] issued after the final site plan

[1:39:08] approval if the law in effect as of

[1:39:11] January 29th 2021 supports the issuance

[1:39:13] of the zoning

[1:39:15] permit then it can be if if we get such

[1:39:19] an order from this board then it can be

[1:39:22] approved

[1:39:25] um remember that in this context the

[1:39:27] error in this case was on the part of

[1:39:29] both the zoning

[1:39:31] administrator and the Planning and

[1:39:33] Zoning

[1:39:34] commission

[1:39:36] um and the zoning administrator is the

[1:39:38] one that issues zoning permits the

[1:39:41] application is for a zoning permit it

[1:39:43] triggers the requirement for site plan

[1:39:45] review because it's category one site

[1:39:47] plan and that that brings the Planning

[1:39:50] and Zoning commission into the process

[1:39:52] so both of them had a role in this in

[1:39:55] the required processing of these site

[1:39:59] plans as We R reviewed at the last

[1:40:03] hearing I believe the applications you

[1:40:05] know request that zoning permit

[1:40:10] um at the same time that the site plan

[1:40:14] review is triggered so if we could go to

[1:40:16] slide three

[1:40:18] please so that

[1:40:22] yeah

[1:40:24] so with respect to the obligation of the

[1:40:26] zoning permit I mean zoning

[1:40:27] administrator to issue a zoning permit

[1:40:29] in accordance with the approved slate

[1:40:31] plan as either approved directly by this

[1:40:34] board or the commission pursuant to your

[1:40:37] order in this case should you grant it should be noted that subsection C of

[1:40:42] 29027 which I'm showing you of your

[1:40:45] zoning ordinance which you already have

[1:40:47] in your

[1:40:49] binders and I want you to take note of

[1:40:52] the last

[1:40:53] sentence which reads no zoning permit

[1:40:57] shall be issued except in Conformity

[1:40:59] with the provisions of this chapter and

[1:41:01] when it says chapter it's referring to

[1:41:04] the zoning ordinance because it's

[1:41:05] chapter 50 I believe of your total town

[1:41:09] code except after written order from the

[1:41:13] board of

[1:41:15] appeals as I mentioned earlier the

[1:41:19] zoning administrator also acts as in an

[1:41:21] administrative capacity not a policy

[1:41:23] capacity when administering the intake

[1:41:25] of a zoning permit application including

[1:41:28] ones like the rod and reel that require

[1:41:30] site plan

[1:41:32] review they do so also when they're

[1:41:34] issuing a zoning

[1:41:37] permit as this last Clause indicates of

[1:41:40] the LA the last Clause of this of this

[1:41:42] last sentence that obligation can be

[1:41:45] modified by this board and then the

[1:41:48] zoning administrator is required to

[1:41:49] issue a zoning permit in accordance with

[1:41:51] this board's order

[1:41:54] so if you

[1:41:56] choose to Grant the relief you have the

[1:42:00] option of doing the work

[1:42:02] yourself of the review of the site plans

[1:42:05] and the issuance of the zoning order or

[1:42:07] ordering them to do it in accordance

[1:42:08] with the law in effect at the time

[1:42:12] that's your choice in Grant in crafting

[1:42:15] the

[1:42:22] relief

[1:42:25] we we are going sort of way over as to

[1:42:28] what that says and what it means as far

[1:42:29] as as as well as the powers of the board

[1:42:32] to in essence issue permits or even

[1:42:35] review applications um I mean that is

[1:42:39] going way be this and I think the proper

[1:42:41] interpretation of that and I can appreci

[1:42:43] I'm G to object to the introduction of

[1:42:45] argument in the middle of my argument

[1:42:47] that's not an objection okay um because

[1:42:50] I think that goes to the board of

[1:42:51] appeals as far as any waivers or

[1:42:53] variances that may be required with

[1:42:55] regard to the application the objection

[1:42:57] is overruled uh interpretations of the

[1:43:00] same text may be presented during

[1:43:05] your

[1:43:07] so I think the board should consider

[1:43:09] whether the Roden reel was treated

[1:43:11] fairly in this

[1:43:13] process the law cannot be applied

[1:43:16] arbitrarily arbitrarily or

[1:43:18] capriciously and would administrative

[1:43:20] agents use their discretion to ignore or

[1:43:23] refuse to abide by clear statutory

[1:43:26] commands they must do so based upon

[1:43:29] objective rationale not one based upon

[1:43:31] their subjective

[1:43:33] preferences so laws must be applied

[1:43:35] equally to everyone and the

[1:43:36] administration of those laws can't be

[1:43:38] gained to favor or Prejudice a party

[1:43:41] subject to that

[1:43:42] law and I argue that is exactly what

[1:43:45] occurred in this case the zoning

[1:43:48] administrator and planning and zoning

[1:43:49] commission did not want these projects

[1:43:53] and the Roden reel that the Roden reel

[1:43:55] applications proposed so immediately

[1:43:57] mere seven days after the applications

[1:43:59] were filed they were announcing

[1:44:02] justifications for delaying the

[1:44:04] processing of those applications and

[1:44:07] then they did delay the processing of

[1:44:09] those

[1:44:11] applications I'm going to hand out

[1:44:14] as demonstrable EV uh um evidence a

[1:44:19] little timeline that'll help as I go

[1:44:22] through

[1:44:23] the

[1:44:29] next

[1:44:31] [Applause]

[1:44:45] ofation

[1:44:48] yeah

[1:44:52] yes

[1:44:54] all the and things shown on this are in

[1:45:10] evidence again this is sort of a summary

[1:45:12] and a compilation which more appropriate

[1:45:15] would be a closing but to help the board

[1:45:17] out I I'm not going to to it I'd like

[1:45:19] this in evidence we give it a can we

[1:45:21] give it a

[1:45:21] number

[1:45:24] might be a summary of the same things

[1:45:30] but so that would be exhibit 63

[1:45:35] Sharon

[1:45:38] 63 would you want me to mark one of them

[1:45:41] with an exhibit uh sticker it's okay I

[1:45:43] think we've got it

[1:45:50] okay so I'm showing this not to rehash

[1:45:53] the evidence but to help you put into

[1:45:55] context this argument that the delay was

[1:46:00] unreasonable the delay in processing the

[1:46:03] site plans and that's constrained the

[1:46:06] Roden reel's rights to develop its

[1:46:10] properties so after the applications are

[1:46:13] filed on January 29th 21 as you've heard

[1:46:17] seven days later on February 5th the

[1:46:19] zoning administrator sent sent that

[1:46:22] email

[1:46:24] and saying that it would create a burden

[1:46:25] on the commission and the moratorium

[1:46:27] would be proposed and as we have shown

[1:46:29] you a version of these five projects

[1:46:32] have been long planned for and accounted

[1:46:34] for since at least the 2010

[1:46:36] comprehensive plan and many permits had

[1:46:39] been issued and mitigation work rating

[1:46:40] work had been done and some utility work

[1:46:44] and so it's not as though the zoning

[1:46:46] administrator the Planning and Zoning

[1:46:47] commission had not known of these

[1:46:49] projects and that they were planned for a long time

[1:46:56] you'll recall that because there are

[1:46:58] critical area site plan reviews it

[1:47:00] triggers the 60-day review requirement

[1:47:03] under your ordinance and I just want to

[1:47:05] address that some people in thinking

[1:47:07] about the fairness of the delay some

[1:47:09] people may find the 60-day deadline for

[1:47:11] processing critical area site plans

[1:47:13] inconvenient or even

[1:47:15] unreasonable or point out that it's not

[1:47:17] typically followed and none of those are

[1:47:20] reasons to ignore a statutory deadline

[1:47:24] passed by the legislative body of the

[1:47:26] town and is part of the law applicable

[1:47:28] to the rod and reel's

[1:47:30] applications neither the zoning

[1:47:32] administrator nor the Planning and

[1:47:33] Zoning commission get to Simply ignore

[1:47:35] such a statutory command because they

[1:47:36] view it as unreasonable impracticable or

[1:47:39] similarly or simply

[1:47:45] undesirable furthermore the the debate

[1:47:49] that we've heard from some questions

[1:47:50] from the audience about this subject um

[1:47:55] the history of compliance with this

[1:47:57] deadline misses two critical legal

[1:47:59] points that have nothing to do with

[1:48:01] practicality or the delays the the

[1:48:04] deadlines

[1:48:06] reasonableness we demonstrated that the

[1:48:08] obligation of the zoning administrator

[1:48:09] and the commission to process properly

[1:48:11] filed applications includes the site

[1:48:14] plans those are in the town's laws

[1:48:16] mandatory obligations there are two

[1:48:18] reasons why this 60-day requirement is

[1:48:21] particularly relevant in this

[1:48:24] case first because it reconfirms the

[1:48:27] mandate to process site plans and

[1:48:29] establishes a

[1:48:33] timeline second and perhaps most

[1:48:36] importantly from a legal perspective at

[1:48:38] least it reinforces that the Mandate

[1:48:41] flows from a

[1:48:43] statute the Mandate flows from a

[1:48:47] statute it is the Mandate and the effect

[1:48:50] of the 60-day deadline that because they

[1:48:53] statutory their effectiveness and their

[1:48:56] applicability can only be modified by a

[1:48:59] legislative

[1:49:02] act this provision of the town's zoning

[1:49:05] ordinance is important because it means

[1:49:06] that a moratorium changing the effect

[1:49:09] and

[1:49:10] applicability of the statute is

[1:49:13] legislative in

[1:49:14] nature and it is of a general

[1:49:17] applicability and

[1:49:18] effect and as we've argued that must be

[1:49:21] passed by an ordinance not a resolution

[1:49:22] to be legally

[1:49:24] effective that has nothing to do with

[1:49:26] whether the 60-day deadline is

[1:49:27] reasonable or practical it's

[1:49:30] demonstrating that the ability of the

[1:49:33] town to change that deadline must be

[1:49:36] done in the proper

[1:49:42] fashion in the absence of a statutory

[1:49:44] deadline imposed or Mand on a mandated

[1:49:47] act by administrative a agents such as

[1:49:50] the zoning administrator and the

[1:49:51] commission

[1:49:53] they would typically have to so say

[1:49:55] there was no deadline in the statute

[1:49:57] they would typically have to act with

[1:49:59] due diligence and in a reasonable period

[1:50:01] of time and another reason why this

[1:50:04] 60-day deadline is relevant to this case

[1:50:07] is that it helps the provide the context

[1:50:10] of what is a reasonable period of time

[1:50:13] so if

[1:50:14] you if you're asking was it reasonable

[1:50:18] to wait 3 years and still hasn't started

[1:50:22] the process processing the 60-day

[1:50:24] deadline helps inform you of what is

[1:50:27] reasonable because that's what the

[1:50:30] legislature of the Town decided should

[1:50:33] be

[1:50:36] done even if the board were to find that

[1:50:38] my arguments about the impropriety of

[1:50:42] passing a moratorium impacting statutory

[1:50:45] statutorily defined duties by a simple

[1:50:48] resolution and not an ordinance being

[1:50:51] unpersuasive

[1:50:53] the board would still need to consider

[1:50:55] whether the zoning administrator and the

[1:50:56] Planning and Zoning commission acted

[1:50:58] reasonably in failing to commence the

[1:51:00] review of the rotten re site plans I

[1:51:03] submit that even if they believe the

[1:51:05] moratorium to be

[1:51:07] effective it was not reasonable to

[1:51:09] continue to refu refuse to process the

[1:51:12] site plans after the moratorium had

[1:51:16] expired and regardless of the moratorium

[1:51:18] it was certainly not a reasonable delay

[1:51:21] of site plan review when it's been over

[1:51:24] 3

[1:51:28] years I'll remind you that we've already

[1:51:31] produced the evidence that the

[1:51:35] moratorium was destined to last one year

[1:51:38] until Mr pal said No it's it's

[1:51:40] indefinite B well he didn't say it's

[1:51:42] indefinite he said it was terminated

[1:51:44] only upon the act of the Planning and

[1:51:46] Zoning commission and the um Town

[1:51:51] Council

[1:51:55] the other thing I want to make clear in

[1:51:58] the context of the reasonableness

[1:52:00] argument

[1:52:04] is we don't challenge the authority of

[1:52:06] the mayor and Town Council to pass a

[1:52:08] legislation imposing a zoning moratorium

[1:52:11] they have that

[1:52:13] power however to do so they must do it

[1:52:15] in the correct Manner and they must act

[1:52:17] in accordance with the

[1:52:20] law in order for the zoning

[1:52:22] Administration TR to and the Planning

[1:52:23] and Zoning commission to rely upon it

[1:52:25] and use such a moratorium as the

[1:52:28] justification for refusing to process

[1:52:30] the site

[1:52:31] plans it must have been done in a legal

[1:52:35] fashion I'll remind you also that we

[1:52:37] already have produced the evidence that

[1:52:39] we advised the town before they even

[1:52:41] passed the moratorium that passing it

[1:52:44] through a resolution was invalid so they

[1:52:46] had

[1:52:51] notice

[1:52:53] if the moratorium that the Town Council

[1:52:55] had tried to impose had been passed

[1:52:57] through an

[1:52:58] ordinance which was the required

[1:53:00] legislative mechanism with all the due

[1:53:03] process protections offered by the town

[1:53:05] Charter and Maryland law that we've

[1:53:07] covered then the moratorium could have

[1:53:10] been valid if it was for a reasonable

[1:53:12] time period so that's the second

[1:53:15] standard it's not just whether the

[1:53:18] moratorium that was passed was done

[1:53:21] correctly

[1:53:23] what's the reasonable period for such a

[1:53:25] moratorium if in if in

[1:53:29] effect you'll recall that in the very

[1:53:31] beginning of this proceeding in almost

[1:53:33] the very beginning of the hearing I I

[1:53:36] described the interrelationship between

[1:53:38] the zoning laws and the property rights

[1:53:41] and that's where this comes

[1:53:51] due

[1:53:53] if the moratorium had been passed

[1:53:56] through an

[1:53:57] ordinance our only alternative basis for

[1:54:00] challenging the zoning administrator and

[1:54:02] commission's refusal to process the site

[1:54:04] plans would be based on either the

[1:54:07] length of the

[1:54:09] delay or as was argued by Mr pounds in

[1:54:12] his letter of May 25th 2022 that you

[1:54:15] have in evidence that the moratorium was

[1:54:18] only terminated by the subsequent action

[1:54:19] of the Town Council and Planning

[1:54:20] Commission that's exhibit 33

[1:54:24] and under Mr pound's interpretation set

[1:54:27] forth in that letter it would mean that

[1:54:28] the moratorium was of an indefinite

[1:54:30] duration when

[1:54:33] passed otherwise the one-year period

[1:54:35] described in the moratorium

[1:54:38] resolution that it extended the nemon

[1:54:42] with a three additional months wouldn't

[1:54:45] have

[1:54:46] mattered

[1:54:48] and the commission would have been

[1:54:50] required to take up those um

[1:54:52] applications after the expiration of

[1:54:54] that one year you'll recall that we

[1:54:57] produced evidence that 60 days after the

[1:55:00] expiration of one year after the

[1:55:02] moratorium I wrote a letter to the

[1:55:04] Planning and Zoning commission and the

[1:55:06] zoning administrator demanding that now

[1:55:08] that the moratorium expired we wanted

[1:55:11] site plan

[1:55:12] review we waited the 60 days to see

[1:55:14] whether they met their obligation just

[1:55:21] naturally

[1:55:27] at this time the Town Council had not

[1:55:29] yet passed the comprehensive plan much

[1:55:31] less the implementing ordinances that

[1:55:32] would affect the site plan

[1:55:35] review so as you can see in the timeline

[1:55:38] that occurred in April of TW

[1:55:49] 2022 so then even after the Town Council

[1:55:53] passed its March 16th 2023 resolution

[1:55:57] which is after we had filed this

[1:56:01] appeal like nine months

[1:56:04] after

[1:56:06] um the zoning administrator and planning

[1:56:08] and zoning commission still failed to

[1:56:10] take up the site plan

[1:56:12] applications so far that delay is three

[1:56:15] years I submit that the length of such a

[1:56:18] moratorium becomes unreasonable burden

[1:56:20] on the Roden reel's property rights

[1:56:23] then and therefore legally suspect when

[1:56:25] it exceeds one

[1:56:27] year 3 years is certainly too

[1:56:30] long especially when the justification

[1:56:33] given to complete the comprehensive plan

[1:56:35] and implementing ordinance had failed to

[1:56:37] meet both the deadlines of the Town law

[1:56:41] and Maryland

[1:56:51] law

[1:56:57] I'm about ready

[1:56:59] to go into a different topic have about

[1:57:03] five minutes left so it might be it it

[1:57:05] probably is going to go well beyond that

[1:57:06] which is why I'm kind of flagging it so

[1:57:09] if I this might be a good stopping point

[1:57:12] because the next topic is all kind of

[1:57:13] together I have one

[1:57:15] minute um what and you can time me uh

[1:57:19] what what is the purpose of the because

[1:57:21] he's been going on for some time about

[1:57:23] his opinion with regard to the issues of

[1:57:27] whether the moratorium should have been

[1:57:29] you know by an ordinance or by

[1:57:30] resolution and I can appreciate his

[1:57:32] opinion and and whether we're going to

[1:57:35] be getting into that indeed Council

[1:57:37] actually is the body that runs the town

[1:57:39] and we're going to be getting into that

[1:57:40] later on but one thing I wanted to point

[1:57:44] out how about how about 30 seconds

[1:57:49] now I don't think so

[1:57:53] I am I think I'm aware of where you're

[1:57:55] going with it and I sure would like to

[1:57:57] hear it in your section of the

[1:57:58] presentation I I can tell you I don't

[1:58:00] think you are aware of it and I can tell

[1:58:02] you in 30 seconds because this is going

[1:58:03] to change everything he just said that's that's why I don't want to hear

[1:58:07] it we're still in the midst of Mr

[1:58:09] blitz's testimony we owe him a chance to

[1:58:12] get through his portion in which case

[1:58:14] you may State your position and we will

[1:58:17] apply the exact same rules to Mr Blitz

[1:58:19] where you may go and give your

[1:58:21] interpretation on moratoriums and uh

[1:58:25] legales and we will let you do it um we

[1:58:28] will do it during your time

[1:58:31] so ah

[1:58:33] okay the next meeting is scheduled for

[1:58:38] April 17th at 6:30 p.m. we'll do the

[1:58:42] same uh same thing two hours um for

[1:58:46] everyone's awareness um so at this point

[1:58:49] in time I'll entertain a motion to

[1:58:50] adjourn the meeting until April 17th at

[1:58:53] 6:30

[1:58:54] p.m. I will make that motion I have a

[1:58:57] second second all in favor I we're

[1:59:00] adjourned thank you

[1:59:05] everybody

March 14, 2024 Board of Appeals Hearing

Transcript