at 6:32
yeah
e
good evening everybody this is the call
to order for the chesc beach board of
appeals 6:30 p.m. March 14th 202 24 we
begin with a roll call please answer if
you are present uh Mr Richard Burch
present Mr Paul dhy present Miss Amy
Everett present I Mr Jody star um we are
now going to ask Sharon if we received
any public comments since the last
session we have not public comments um
okay uh first thing on the docket is the
approval of the minutes from our last
meeting this would be case
20233 uh the meeting date was February
8th 2024 and we should have received
this from uh Sharon on around February
22nd um does anybody have any comments
they'd like to make on those meeting
minutes at this this
time all right hearing none I will
entertain a motion to approve the
minutes I'll make that motion second right all in favor I hi hi all
right the minutes are approved uh normal
set of announcements we'll be limiting
tonight's session to two hours we'll end
around 8:30 uh anybody in the gallery
please direct any comments and questions
concerning the ad administration of this
hearing to the chair or uh legal council
Mr susman here um third parties of
record may ask questions of any uh given
testimony at the conclusion of that
testimony question should be limited in
scope to the to uh address information
presented I will indicate to the gallery
when this option is available uh in
terms of our order presentation we are
still on step number one which is
appellant testimony by uh an Evidence by
Mr Blitz uh once that is completed we
will move to Mr pounds uh for Town step
testimony and evidence um at which point
uh any persons or entities whose rights
are impacted by the appeal this would be
members of the public will be allowed to
speak um and we will follow that up with
summary statements at which point we
will close this hearing and begin
deliberations um so members of the
public this means you most likely won't
be able to speak
today all right uh we are ready to
continue um this is a continuation of
case 20233 Rod Incorporated donov EST
States LLC to consider an application
from Rod uh uh 4160 MIRS Avenue
Chesapeake Beach Maryland for decision
on interpretation or alleged error to
article 6 section 29023 2931 A1 and A6
of the chesap beach Zing ordinance and
C309 c310 and c311 of the chesap beach
Town Charter applicant requests the
Chesapeake Beach zoning board of appeals
to quote order the zoning administrator
and planning and zoning commission to
immediately commence and prioritize
processing and review of the relevant
site plans submitted by Roden real
Incorporated Donan Estates LLC and that
the zoning administrator and planning
and zoning commission be ordered to
apply the zoning ordinances in effect as
of January 29 2021 when the applications
were submitted and for such other and
further relief as the nature of their
case or their cause requires and I will
pass it to Mr Blitz for his presentation
good evening Eric Blitz on behalf of the
Roden reel Don States LLC um so tonight
we're going to start with the testimony
of Mr Donovan Wesley
Donovan um I'd ask that he be sworn just
in case so we don't have any
issues sare PTY the perjury testimony
that you were about to give and the
respon and statements you're about to
make will be the truth the whole truth
and nothing but the truth I do your name
Wesley Donovan than thank you thank you
so Mr Donovan um let's start with the
homl property
um for that property how long had the
Donovan family own that property uh it
was the house my father grew up in
so late 40s early 50s thereabouts okay
and eventually the Home Place property
was transferred to Donovan Estates LLC
for the development of that property
correct yes okay and Donovan Estates LLC
is wholly owned by the Roden reel
yes for the Sate property how long had
the Donan family own that property uh
1936 um now right now State Property
consists of two building pads correct
yes um what was it used for before give
us a little history of what was used for
uh in
1936 my great-grandfather opened up
stennis
restaurant and it remained there until
Hurricane Isabel in 2003 I believe
okay and eventually the SED property was
transferred to the rod and reel for
development as well correct that's
[Music]
correct
and you were present for the previous
testimony uh that set forth some of the
many permits um for the developments of
the rod and reel properties that were
are at issue in this case yes and um
that were obtained during the prior
years and all of which expired correct
okay
um with respect to the zoning permits
issued for the state place in
2006 uh and subsequently renewed for a
few years um
we've heard testimony that they
did they raised the grade did
utilities the town was allowed to put a some sort of pump on the property
um
and my question is why did that not uh
continue to the building
phase um well in in 2008 we had the
financial crisis
and at that point it was decided upon
that it it didn't make sense to proceed
it at that
point because the market didn't support
multif family
correct in 2009 you still had approvals
for the Home Place correct yes and was
those same market conditions um
responsible for that project not moving
forward
they were
okay well I guess let me just ask was
that the same for the Harbor vist Harbor
Vista West North and Harbor Vista South
properties during that period yeah
during that period for
sure
so we've heard testimony about all of
the Preparatory work that was done
including utilities and site work some
mitigation at the three properties for
critical area mitigation for the um
Harbor Vista north south and west
effectively um so Mr Donovan at some
point the Roden reel decided to restart
the devel development of these
properties correct yes and when was
that
uh well Harbor Vista South was about
2015
um you started that project first as a
restart yeah that's the one that we
started started with correct okay and
what led you to the decision to move
forward on that project in
2015 well we we we were doing that in
conjunction with um the rod re uh Resort
development Redevelopment but we had
done a feasibility
study and at that time in 2015 it came
back saying that all of the projects we
were looking to do that
had were in the previous comprehensive
plans were uh economically viable at
that point
okay so you testified that um you looked
at Harbor Vista South did you also start
Pro the process for the other properties
the Redevelopment of those uh or the
development of
those well we we have we had already
done some of the prep work sure okay so
let's go to the Sate property okay
[Music]
um the original proposal was for
townhouse development and that didn't
proceed you mean the condom you talking
about the 200 six six those were 32
condominium units yeah that did not
proceed because of the financial crisis
and you heard testimony about the work
with the State Highway
Administration yeah I did and did that
play a role in the timing of the
Redevelopment of the um sted property as
to why we didn't do it or I mean I know
that we put in the sidew the sidewalk
the curb and gutter and that's when the
town we gave the town the easement for
the pump so the water would uh you know
not the water wouldn't built up on SE
Street on the town Town Street there
okay I want to correct Mr Donovan's
testimony no easement was given what
he's referring to is
if the project had proceeded there would
have been an easement on the plat which
is kind of typically H but since it
didn't go forward there is no easement
for
that I just he said there was an
easement it's not actually an easement
the town the pump is there pump is there
yeah so there's no written
easement I just I don't want him making
an unfactual statement and it's a legal
conclusion and he's thinking about an
easement on a development plat rather
than an actual easement that actually
got recorded I think the board
understands you continue
okay
um so what led the rod and re to decide
to proceed with the multi family
developments that were filed in on
January 29th of 2021 that are the
subject of this appeal
so I I think it was October or
November of
2020 we had started watching the
Planning and Zoning meetings at that
time and there was discussion of
using the state property which had been
in our family since
1936 about making that a Ark and it
uh it it raised some red flags uh very
quickly you could
say so what did you do
then so at that point you
know we had already done some of the
prep work in anticipation of the
development um then it was decided upon
the best thing for us to do was to make
application to the town for the zoning
[Music]
permit if you had gotten approval after
filing these five
applications would you have been able to
afford to build all these properties at
the same
time uh find
would would not have been an issue we we
had spoken to two
Banks
um Community Bank and Westco
bank
now we've had plenty of testimony about
the previous development plans and the
work that was done on some of these
properties had you had the rotten reel
purchased Water and Sewer Capital
connection charges for any of the
properties to serve those
developments uh stet we did home place
and when we bought
uh uh the marina in 2005 it it it the
previous owner had water and sewer
taps were transferred to the rod and
reil with the property
correct okay so I'm going to offer as
exhibit
60 um
a letter from the
town looks like Lorie Smith the
treasurer dated April 14th
2016 a letter from Leslie Porter the
town treasur on November 19th
2008 with an
attachment and the water sewer Capital
connection charge payment
agreement with Fishing Creek Landings
Corp that's for the property he just
referenced
um which is a
four make sure four-page document so
I'll offer those three as exhibit
60 Mr Blitz what was the first uh date
of the first first letter top
letter for the so the board understands
what
those you should have a copy of them I
want to make sure you do because they
were handed out at the last time but um
basically they show
the recreation of from the town of the
water and sewer Capital connection
charges that were paid for these
properties and were assigned to these
properties
which and the exhibit showed the payment
of
$480,000 in November 3rd of
2008 for the payment of those Capital
connection charges
um so Mr Donovan according to these
documents the rod and
reel were the related parties like
Gerald and Fred at certain period of
time before it had 28 Taps for the
marina correct I believe so that's that
came from Fishing Creek Landings believe
[Music]
so as part of that settlement you also
took over the Wetland permits and the
other permits for the development
approvals that he had already obtained
correct and those are what you used for
the mitigation work correct yes
including the frag mighy removal we
talked about or Paul Woodburn y testify
to and that document also states that
24 taps I that's a colloquialism for a
capital connection charge it's actually
a bad one just because there's something
else in the water and sewer code called
a tap but they've been called Taps for
Generations
um let's see uh that was um 24 Taps had
been purchased uh Capital connection
charges had been purchased for Home
Place correct correct and there was
already one there for the single family
home correct
okay and that 32 had been purchased for
stin Place
correct and just clarifying for the
board you've already got this in
evidence the current application is to
build only 11 units on Senate place now
not the full 32 at the time they
purchased them those there was a bigger
development couldn't go
there
um
and is it true that the rod and reel
granted the town an easement underneath
the railway Trail end point um as it
comes across your property near the
harbor Vista West and along towards
Harbor Vista North yes and that was done
with the understanding that the town
would build the sewer line underneath it
yes and there was already an existing
water line correct yes and so those
water and sewer lines were put in to
serve the harbor V West Property correct
those are
town uh property that is a town
infrastructure yes
okay when in February of
2021 um you heard that the response to
your submissions the applications for
these five projects that there was a
proposed
moratorium what if anything did you do
in
response so we asked to meet with
um uh the folks here at Town Hall um you
met with Town Administrator the
mayor and the council except for um Mr
parck
and would you describe what those
meetings were like and what what was um
not said but what the discussion was
about yeah I
couldn't on
sustain you won't even answer that no
it's been
16 after the moratorium passed did you
hear anything else from the mayor and
town council members I did get an email
from uh Mr Morris
okay so I'll show
you it would be marked for exhibit 61 an
email from Greg Morris to Wesley Donovan
dated March 22nd 21 show that to Mr
Donovan to identify is that the email
you received it
is or what's the objection you say
that a Council for representing of
council if this a communication between
one individual and another individual
that's fine there just that's becomes
completely irrelevant for these
proceedings if indeed Mr Morris states
that indeed he's representing the
council we're stting a formal council
opinion uh then that that becomes
different too so but it sounds like this
is just
personal
so so as you can see by the email the
signature is Greg Morris Town Council
he's
communicating as Mr Donovan testified in
response to this
meeting and I think it's perfectly
reasonable it's not hearsay it's comes
in as a letter from a council member
to a client about these devel about this
development and about the moratorium I'm
tempted to allow this one hearsay is
still allowed here there's no hearsay
exception so well I I don't care comes
in I just want to say it comes in from
Greg Morris as opposed to any
representation from Town
Council well I think I would agree with
that that is a single council member
doesn't represent the Town Council
absent a designation or something like
that so he's speaking as a council
member not as on behalf of the whole
town Council Town Council is a body so
this one is overruled we're going to
allow this okay so that would exhibit
61 and so just for the record I guess
I'll read read this in it's not that
long of a letter
to from Greg Morris sent Monday March
22nd 2021 11:13 amm to Wesley Donovan
regarding the subject is meeting request
hi West
Mary I was wondering regarding the Sate
Place project did I hear that certain un
USG site utilities had been completed
there Andor the grade had been raised to
accommodate any previous approval and or
pump
station has been installed in
preparation for the
dwellings that's a question any of these
things seem to be well beyond shovels in
the ground to me even though you haven't
started on the actual dwelling structure
that's also a question uh not sure about
any previous status rep permitting for
this site I'm basically only trying to
elevate any
consideration I wanted to ask ask you
about the sale of any of the properties
as well not as a means to stop but
rather to have a better discussion and
understanding moving forward and see if
there were any options here for the
town seems the town could be in Market
to purchase a lot outright undeveloped
as a means to meet some of the Green
spaceopen Space
desires there is solid support for this
generally speaking maybe these down
toown lots are not for sale or might be
cost prohibitive but I thought it was
important to ask the state Place may be
too far invested in un utilities other
for use as an open Green Space I'm not
sure despite what might have been
spitballed during the Planning and
Zoning well pnz meeting I cannot imagine
the town even thinking imminent domain
is an option for any of these properties
wanted to to say that thanks Greg
Morris Mr donov did you reply to that
email or or no Mr Morris a response no I
did
not I also did not hear from any other
council
person did you keep track of the rod and
reel's expenses in preparing the site
plans for submission to the Planning and
Zoning Commission
I'm sorry you're gonna have to restate
this whole thing okay I asked did you
take did you keep track of the rod and
reel's expenses in preparing the site
plans for submission to the Planning and
Zoning commission it's the objection to
this
one how much he
spent site plans he testified that that
was his decision they felt they were
viable to do that but difference doesn't
make at this point for for for your
purposes uh the board does not have the
authority to Grant damages at all if
he's going to claim that he was damaged
in some way great we have another
hearing have you more appropriate board
but you guys don't have any dages or or
consider damages with regard to any type
decision the board understands that um
as this testimony is is not close enough
to repetitious yet to Warrant um
blocking this from coming in so the
objection is overruled please continue
okay so Mr Donovan I'm going to show you
a um list of expenses it says it's
labeled soft costs associated with site
plan preparation rod and real Inc which
I've marked for identification is is
exhibit
62 and ask did you prepare the
information for the preparation of this
document yes are are those numbers
accurate
yes and the total according to this is
$172,100
n50 correct okay I offer that as exhibit
62 Mr Donovan you've heard during our
presentation in this case how the
moratorium was passed by a resolution
correct yes
sir and you've heard how under the
charter the right to take ordinances to
referendum is available yes sir do you
have any personal experience with
organizing a referendum petition I
do it is not completely irrelevant we
went through how the right of
petitioning a change or effect to zoning
is guaranteed under Maryland law the
right to referendum is guaranteed by
Maryland law but in town Charter it's
only available for an ordinance it's not
available for a resolution and we're
just G to overrule over uh objections
overr please continue okay so did you
have any personal experience with
organizing a referendum petition yes I
do what is your experience describe it
please I uh I organized a referendum
about the uh water and sewer rates for
that were getting applied here in town
and when was
that I don't remember the year I know
that uh Bruce wall was the
mayor um and
um uh I can remember remember Jeff crin
being a council member
because I I just remember that part of
it I I couldn't tell the year
okay
um but it was the previous
administration okay was it successfully
accepted as a petition for referendum
yes and thereafter was that question
that was raised by referendum eventually
voted upon in election by Town
citizens say that again after the
question was raised by the referendum
was the question posed to be answered by
a vote of the citizens at the next
election uh it I believe so
yes was that successful yeah okay no
further questions Mr
Donovan uh Mr P would you like to
cross-examine
yes so um Mr Donovan uh you stated um
basically your name and address what is
your position with
r president so you are President you are
the officer of
RR yes so uh and Mr Woodburn was the
engineer the time of this project
correct and was there uh any other
Engineers other than Mr Woodburn working
on this
project uh Ben Dyer was the only civil
engineer and that's who uh Paul worked
for did you have any other Engineers
other than Mr Mr Whitburn working on
this project working on this
project not that I recall now okay so
basically um you stated that this was uh family property and for his home
place in state property that was
purchased in the
1936 uh State Property was correct and
it was by your great-grandfather and it
was then transferred to uh RNR
correct and you know you and so with
regard to
the sums that were
paid
and and you stated the
um with regard to I believe it was to
the tap fees that was paid by
uh and who are they paid who's a paid by
to to darald and
Frederick he should have the exhibit
shown to him when he's if you're asking
him to I don't have it in front of me
sir are you
hear he what I'm gon I'm going to come
back to that one but uh okay so
basically you uh and you admitted based
upon Mr Woodburn's testimony and also
you testified you had the uh perid for
all of these uh these projects back in
uh
2006 no I I didn't say that and when did
you have the projects for uh permits for
these
projects
so we had the approval for senet for 32
condominiums that was
2006
um we when then we had Harbor Vista
South in
2016
um and I forget how many how many units
that was for at the time right
now and then uh speak up and speak
directly into the microphone so they can
hear you sure um those are the two I
remember right now okay let's let's go
over the um sted so in
2006 uh you had a zoning permit for sted
is that correct yep and that in fact uh
it was even renewed uh one time and I
can't tell the day it looks like about a
year later would that be correct sounds
right so then uh there was a decision
not to move forward in fact um uh and
then because 2008 financial crisis were
any other
decision what I wrote down was did not
make sense to move forward isn't that
correct correct because of the
financial uh crisis we were going
through as a country okay and so um and
in 2009 there were the same market
conditions uh where it did not benefit
you to go forward correct so that was
your decision not to go forward is that
correct yes it was not the town in any
way uh influence influencing that
decision was
it no it wasn't the state was
it no okay so in essence that was your
financial and individual decision not to
move forward with these uh projects and
the
permits
yeah so then in um approximately
2015 uh and in fact you know that that
applies to all the projects right I
mean okay so
what you had permits for all of these
projects no what projects didn't you
have permits for Harbor Vista
West Harbor
Vista in Harbor Vista
North home
place okay so you did not have it for
Harbor Vista West Harbor Vista north and
home place
correct okay and but you have permits
for state and uh trying to
read herb Vista South
okay tenant was 2006 10 years later was
Harbor Vista South okay so basically um
uh for the three of the projects you
never did have zoning
permits correct okay so the town never
approved anything with regard to those
three
projects not a zoning permit no okay so
um uh and then the other two projects I
want to make sure the record is clear
here those were your decisions and they
were financial decisions as to not not
to go forward is that
correct yes and then uh uh you stated
that there were sha State Highway played
a role uh with regard to certain
development
at the time they were raising route
261 okay and uh basically the the and
you said was there any type of formal
agreement with the town or State Highway
with regard to any development rights
that you would be entitled to with
regard to that development no not that
I'm aware of no so so the state was
doing it but there was no agreement with
you and words that the state would in
any way do anything to benefit you or
that you would receive any benefit from
that no and uh and with regard to the
pump which was installed as a matter of
fact that pump was a benefit to your
other projects isn't that correct yeah
okay then what was the pump there for it
kept the uh the flooding off of C Street
from what I
recall and did the uh uh who paid for
that pump
town taxpayers at Chesapeake Beach the
town paid for that yeah so rod reel was
not in any way a harmed for you know
with regard to that
installation hared no so and uh so and
you testified that in approximately
October of
2020 uh you saw various planning of
zoning meetings uh which were going on
in the town yeah I think it was October
and I it it was one of them one of those
months okay and you saw where indeed the
uh uh attitudes with regard to the
Planning Commission was changing with
regard to
development no what I said is they
started taking talking about State
Property which had been in our family
since
1936 and making it a
park okay that's one of the things they were they were talking about that
absolutely and then so uh and that that
would be part of the uh zoning
administrator was planning on that
also he was at the meeting okay now Mr
uh and and you of course sat here
through the testimony of Mr Woodburn
right yes sir and you sat here through
his entire testimony yes sir and Mr
Woodburn testified that in no time did he sit down with zoning Min
administrator to talk about any zoning
changes that were coming do you remember
he said that I do remember him saying
that ask so if indeed you have something
going on that may affect your property
why not sit down and talk to the zoning
administrator you could watch them live
on sitting at home and on zoom and
YouTube uh you know that's when we first
saw it we we didn't have to talk to
anyone it was a public meeting well I
mean after the meeting and you knew what
they were discussing at no time did you
sit out and talk to the zoning
administrator with regard to the zoning
check no okay in fact you didn't talk to
him about any of these properties no
okay so in fact uh Mr Woodburn testified
that you never went to any of the
Planning Commission meetings you know to
discuss any particular Zoning for these
properties objection just because you talked about what Mr Woodburn talked
about and then
Mr Donovan going to those
meetings Mr Woodburn testified that he
didn't go to those meetings so don't
talk about you can ask Mr Donovan
whether he went to those meetings but
don't refer to Mr D Mr Woodburn because
Mr Woodburn didn't talk about Wesley
Donovan going to those
meetings but M you heard Mr Woodburn say
that in his testimony didn't you jaction
can we restate this you heard Mr
Whitburn testify with uh earlier that he
did not go uh and represent you at any
of the Planning Commission hearings he
definitely did not represent us at any
of those meetings and did you go to any
planning Comm hearings uh I don't recall
I remember watching them but I don't
remember if I that was during Co at the
height of it so but this you're the
president of rod reel isn't that correct
absolutely and uh and all of a sudden
you become aware that indeed your
properties could be affected yes and you
made the decision not to do anything
with to talk people he didn't say he
didn't do anything okay well I know that
you answered then uh let's restate that
one my question is you did not go before
the Planning Commission at all with
regard to possible rezonings of your
property did you no did you do anything
to protect your interest we did what we
filed five site plans for development of
those properties okay and uh uh so that was your plan to in essence just
file these applications and that's what
all you were planning on doing we had a
right to do it okay and uh do you have
any facts with you today that any of all
or all of those site plan applications
would have been approved
objection calls for massive
speculation that that becomes if he's
going to testify that indeed he filed it
okay well let me ask you what was the
purpose of you filing the
applications to develop the
properties and that goes to my last
question
of what gives you the idea that those
would have been approved for
development what was
submitted we were allowed to do I had no
reason to believe that they would not
have been approved and uh but you do not
know that they
would I do not know that they wouldn't
either I wish I would have found
[Music]
out so I'm uh looking at the uh memo
that uh we were discussing earlier dated
November 3rd
208 and it talks about the 24 Capital
connection fees you're aware that Mr
Blitz was talking about this earlier yes
sir okay and this was in other words
received from Gerald and Frederick
Donovan show in the document if you're
going to refer to a do I mean you you
know what I'm talking about right you
can present him evidence if you're going
to ask a specific question I'd like to
see
it okay okay and uh neither Gerald or
Frederick Donovan uh were they ever
members of uh RNR applicant in this case
yes they were okay and uh were they
members in
2008
Yes what were their positions in
2008
uh they were the
owners they were the owners of the when was the applicant what is the
formal title of the applicant here rod
and reel Incorporated Inc Inc okay when
was Rod and re Inc actually
Incorporated I don't have that off I
don't have that data off the top of my
head sir come of the
year
[Music]
no can you uh make sure that I
understand can you explain to me why you
did not in any way uh meet with you now
meet with the the town zoning
administrator or the Planning Commission
with regard to uh your understanding
could be a rezoning of your
properties why we didn't meet with them
there was no need
to and why
not they hadn't passed anything they
hadn't uh
they hadn't passed the new comprehensive
plan at that point well you you were
aware that they were reviewing it for
possible adoption right yeah so in
essence you made that decision not to
meet with them knowing that indeed it
could possibly adopted which would have
changed the zoning of your
property cor
right and uh and you did not ever meet
with uh Town Council either before their
adopting adoption of the uh
comprehensive plan objection he
testified that he did meet with members
that that occurred slight uh in February
of 2021 the comprehensive plan wasn't
passed for another year and a half or
two okay ex uh then and you actually met
with uh the Town Council where did you
meet with individual members individual
members okay and uh and what was your
purpose of of that
meeting uh uh is this the same meeting
we've we we had overruled or sustained
10 minutes ago so it's a different
meeting I'm I'm I've lost the timeline
of this it would be the same meeting I
just didn't know that
you sustained retion about that meeting
but maybe you did there was a question
on a meeting of of meeting Town staff
who it sounded like there was other
legal counsel in that was not true okay
continue the question but these are the meetings that
they were talking about which was they
asked to meet with the mayor and Town
Council publicly and well no they were
one-on-one meetings okay and he
testified that the only one that didn't
was Mr parck I believe councilman parck
is that the right
pronunciation
yes we're going to allow this my mistake
on
them okay so in essence you met with the
council uh except for Mr partic Right
and what did you and this was before or
after the Planning Commission had
adopted the resolution adopted their
decision with regard to a recommendation
of the resoning section do you know the
timeline as far as the
meeting uh it was February of
21 February of 21 yes sir okay and um uh
and what was what did you discuss in the
meeting the moratorium
so it was the moratorium as opposed to
the
rezoning yeah because the rezoning they
were a long way away from
uh uh doing the comp plan at that
point they had they had many many months
still to go on resoning I'd like to
pause here I'd like to know uh if we're
talking about this meeting with people
attend can we list who attended this
meeting one more time for
who were the main parties in this
meeting they were separate meetings with
individuals Mr Donovan maybe just I
don't want to interrupt Mr um pounds
cross but just to help with the board
you had meetings with separate people
can you list those people
out that you met and and who else on
your side maybe was at present at those
meetings as best as you can recall this
is for the sure the board themselves it
was uh myself and Mary atlantum then we
met with individually um the mayor Town
Administrator on a zoom I
believe and then we met
with um each council member except for
Mr paric so we met with
uh oh my goodness I'm going to forget
Peggy's last name
um what is it Hartman thank you uh we
met with councilwoman
Hartman uh councilman
Morris um Mr
jorski uh councilwoman Bodine and
um my
goodness Mr
Fink these were individual or this was a
collective all
individual okay and and I can tell you
thank you because that clarifies so in
essence they were not meeting as a
council oh no they were just meeting as
individuals they were meeting on behalf
of town business but it was not uh uh
Quorum if that's what you're it was all
oneon-one
okay they were meeting as a to hear the
concerns of a constituent would that be
fair that's more than fair
yes well the reason I say that and and I
think you said it too this was not in
any way Town business that they were
conducting it was dealing with town the
town issue at the at the
time but it was a one-on-one meeting
okay so it goes back to where I started
all of this you did not meet with the
Town Council as a council to discuss
your concerns with regard to the
resoning in
2021 in
February uh I wouldn't say that I
mean I think I gave lots of public
testimony
after March of
2021 here in this room
publicly and but but did you actually
discuss with Council the
resoning
when at any time yes publicly yes
what did you tell
councel I'm not going to remember ver
verb
adom
but I disagree with some of the
decisions and some of them I agreed
with you say some of the decisions is
that the Planning Commission or is that
the council would have been
both
and you're certainly aware that uh
rezonings would change the use of
properties and as an experienced
developer well let start you are an
experienced
developer objection would you classify
yourself as an experienced
developer is that are you g to do both
of those questions I want to object to
the first one not the second one well
I'm making the Assumption as the
president of a development company that
he's experienced developer maybe that
was a bad assumption there's no
testimony that it's a development
company it's not so so Mr uh have you
developed other properties
before uh you could say that sure okay
and how many properties would you
estimate that you've developed can you
clarify whether you're asking about him
doing it as the rod and reel or him
personally because he has other business
interests and things like that have you
been involved or you individually with
regard to any company or any entity uh
that has indeed developed
property sure yes and so uh how many
properties would you be involved in or
you were involved in a company or an
entity that developed
properties now I wouldn't say I'm an
experienced developer nor would I say
um I
know I know a lot about development but
um
I would say a handful I don't know the
exact number okay fair enough well as in
your experience a developer have you
seen or heard or understand rezonings
that
occur I've been learning as I go with
rezoning
and and all of it's been here with the
town
then that's learning as you go that's
fine but so were you aware that indeed a
resoning process means property
resed
sure and so I want to make sure that
indeed you're aware of that and yet you
chose not to meet with the planning
administrator or the Planning Commission
with regard to a possible resoning of
your
property
correct and
Mr Woodburn t testified a number of
times with regard to resoning uh when we
discussed that and he used the phrase a
number of times of things change you
remember him saying that uh
vaguely and based I'm G to ask you either as
your experience in development or in
your experience as a businessman do
things change every day and things
change has things have things changed in
chesp Beach yes and things Chang with
regard to uh flooding which may or may
not be occurring in chesp
Beach yes and and you aware of uh
potential climate change and flooding
issues which may be uh proed to be
occurring in ches Beach I am and uh one
of the things that the town wanted to
address is possible flooding issues are
you aware of that
action it's not the town okay got to be
specific about who's doing what
we'll allow it go ahead please answer
the question or restate if you would Mr
pounds if you just say it again sure and
you're aware that indeed uh the town may
be uh addressing flooding issues and
changes which may occur are you aware of
that I am and are you aware that there
was concern with regard to your
properties okay and we can go through
them if you want to regarding potential
for flooding on your
properties I am aware of that and so in
essence let's make sure we understand
each other you want this board to to
assist in the approval of resoning or of
a development
applications for you to put houses on
property which the town is classifying
as being flooding objection there's no testimony about classifications what
they was this is a gray area we're gonna
uh you can consider how you'd like to
restate that or we can I get that but
you you testified earlier that indeed
you're aware that your property is
indeed classifying as being uh in a
flood plane flood
plane not all of them but yes that's Mr
and Mr Woodburn said
that I don't recall him saying that home
place was in a flood plane it's the
highest point in
town
but uh yes some of them are in the flood
plane
and and so basically you know your
testimony was that things change every
day that's what you just said they do
and things change uh both politically
things
change you could say that sir and and
with regard to uh the use of properties
things
change correct and with regard to
environmental issues things change
correct and with with regard to the the
feelings of citizens things change yes
so in essence uh with regard to the
opinions of Mr z uh the zoning
administrator did you contact and you
never met with him with regard to any
possible changes that he saw with regard
to the town that may affect your
property can you state that again sure
with regard to the town uh the Town
Administrator uh you never met with him
with regard to a possible zoning change
with regard to his Pro your
property not that I recall no never met
with the Planning
Commission no so uh and were and you
were aware that indeed they were going
to be classifying your property in the
flood plane were you aware of that
objection there's no testimony of that
the whole town is is within the flood
almost the whole town is in the flood
plane
ordinance you keep on using the term
flood plane that's all these properties
it flood plane doesn't mean you don't
develop as Mr Woodburn testified you
address the consequences of that
development almost always by raising the
grade so that you're out of the flood
plane and so the point is you're asking
him
about the the conclusion
of somebody whether it's the planning
and Zone I think you said the Planning
and Zoning commission about the flood
plane they weren't making anything about
the flood plane they don't control the
flood plane federal government does they the Town Council would pass a has a
resolution with or I mean an ordinance
stat to with respect to um the buffer
that's added onto the flood plane for
grade but beyond that that's not
something the commission so knowledge of
whether there's known flood risks on the
properties I believe is what Mr pounds
is getting at is that correct and what
he did about it as far as trying to
protect his property but he was asking
about the conclusions of the Planning
and Zoning Commission on this they
hadn't concluded this until I guess the
comprehensive plan was adopted the fact
of the flood plan or flood plans
or we're not discussing that the
question is is there any
awareness being in a flood zone
is that is that a fair assessment of
corre correct okay that that objection
is
overruled if you'd please restate the
question again sure and with regard to
the uh and you were aware and in fact
I'm going to accept and ask that Mr
blitz's statement now be accepted in the
record when he said almost the whole
town is in the flood plane okay and uh
we're going to accept that now as
testimony which is in the record no it
isn't it was part of my objection you
don't convert that to testimony
understand let's we're questioning the
witness right now please oh and you're
aware that your properties except for
the Home Place were indeed class being
classified within the flood
plane and when hurricane Isabelle came
through in
2003
um Stant got flooded the restaurant we
cleaned it up only to have it flood 3
days later I'm fully aware of what
flooding can do do here in town and what
it has
done
um in part that's why we raised the Lots
at stets so it wouldn't
flood and same with the Roden reil
Redevelopment the
resort and
um were those were those so in essence
you were going to be putting in various
uh dirt and fill to raise the
levels we did that at
stet correct and uh but you had you
gotten permits from the court of
Engineers or anyone else to do that with
regard to these
applications uh we have file we filed
for zoning
permits my question is did you receive
any any approvals from the core of
engineers or from the Marland Department of the environment or anyone
else with regard to uh putting in fill
on those lights with regard to those
applications if you know whether that's
even
required we did it at
stet but
uh we did not do that with these five
applications
now so you never even filed for the
application for that
well I would think you would do that
after you got zoning
approval so your position that the to
why spend all that money without the
zoning approval can I just object on
this
basis Mr pounds is asking a hypothetical
that doesn't even exist under the law
you don't go to the core of army
Engineers you go to the Coward County
for the grading permit the zoning permit
allows the grading permit so it's issued
by the town the of our Engineers mde
doesn't have anything to do with it at
that stage and so you're asking
hypotheticals about them he doesn't know
because he's a lay person and the board
does not know as well we do not know the
tick tock of how this process should
work so i' urge you to present to the
board what we should be paying attention
to with regards to the tick top of this
and you may consider doing that during
your section of the presentation and and
what what and basically the point that
I'm making is is simply that uh if he
had already done that or not and and
that's all he want to testify to that he
had not it's a fair question
continue we are coming up on an hour I
would like to take a break sometime in
the next five minutes if that take does
that work all right we will take a break
for five minutes thank
you
e
any
thank you thank you Mr chair the uh so
Mr Donovan basically you know we were
talking about the previous permits which
had been uh issued uh and the permits
that I see uh expired back in 2012 and
the other one expired in I believe in
200 11 would that be correct to your the
best of your knowledge or you want to
see these uh permits here yeah if
I yeah if I could see him that'd be
great it looks like both of these for
State place is that
correct I can't read that
one I don't know what this one is
for I can't read
that 415 Gordon standed Avenue so that's
Harbor vist North
okay
your testimony is with regard to give
you this one here
[Music]
too
eight looks like it
was
9909 this is for
87 6 8216 C
Street May s that's the stance for 216
unit developments it's a renewal on 9909
so it must have been issued one probably
one year before that oh it looks like
I'm sorry zoning permit application
dated 7606 so this is the renewals that
were going on from 2006 through
2009 we'll go over that one first so uh
and you were are aware that you with
regard to what your Council just said
with regard to this was a 2006 a and a
renewal in
2009 yeah and then so this would have
expired probably in
2010 uh that sounds correct yes so in
essence but you didn't file these new
applications until
2021 it at stet it would have been for
uh town house is not um two 16 unit
buildings it that was two condom
buildings andt it's the zoning
changed so for 11 years though you did
not file any applications with regard to
that property no
sir again I want to make sure I'm clear
nothing in the town or the state that
prevented you from doing that
[Music]
no and with regard
to the other property of Senate uh again
this was a Ed in
2012 oh which one is that that's not
stance is this the one I couldn't
read Gordon Sate uh this would have been
for Harbor
Vista
North 116 unit yep that's har Vista
North and do you have read the renal
date on
it
uh data approved renewal
91412 so would that renewed for a period
of one year after
that
uh looks like
it MH okay so basically and for this
project uh uh after this permit expired
eight years went by and you did not do
anything with regard to that site did
you I think
we I feel like we applied for that and
reapplied for a building there which build which property are we
talking about now har Vista North I
believe correct so yeah you applied in
2019 for it correct
that a little I we we made a we applied
to build in 2019 the Harbor Vista North
property okay and was a Form application
submitted it was okay what happened to
it
um we in we chose not to uh do that
development and
I don't even think we had zoning
approval from what I recall I know we
made application I believe we made an
application I shouldn't say I know I
believe we did one reason whether you withdrew the
application if if you if you know yeah
let's stick with your personal knowledge
just for the board's and Mr pound's
edification Mr Donovan wasn't the only
person doing these things Mr Donovan
Gerald Gerald Donovan was leading the
for a lot of
this I'm asking you as the president of
RNR are you aware of
this I believe so okay was the was the
application approved
no uh was it denied no was it
withdrawn I don't know that I don't know
if it was formally withdrawn I I I
honestly don't know that are you aware
of why it didn't go forward for any
reason
no to your knowledge was anything with
the town or the state which would have
prevented those that that project from
going
forward no not I don't have any
knowledge that would have prevented
[Music]
that
with regard to these
applications uh you tell the board why
there were not any continuing renewals
filed with regard to these development
sites
and you mean if you know
personally can you restate the question
sure with regard to the applications
that we were just discussing and that
are in exhibits you know with regard to
the town can you tell me why uh you did
not file for continuing renewals with
regard to these developments I do not
recall why
no uh so you don't know it at all you
don't know at
all not with any 100% certainty now okay
you anything from the town or the state
prevent you from requesting a
renewal not that I'm aware of now so
this would have been a decision that you
made
if you know if I
[Music]
know no not
[Music]
no you know Mr chair there's something
that is sticking in my craw okay
and and we can speak to Mr s about it or
whatever the problem is this Mr Woodburn
testified that he was acting as the
engineer for the applicant and also the
question about whether he was acting as
also the engineer for the town um and he
testified he thought someone else was
operating as the
engineer um and as it turns out there
was no other engineer other than him um
objection well you're making an argument
so I'm I'm not making an argument I'm
sort of just stating as to continue the
question is the question
is I can profer that okay or go into it
further okay because let me let me tell
you the other part of that before you
answer that question we have the exact
same problem with Mr Blitz okay he with
Mr ridiculous okay from what I
understand he was acting as the attorney
for the applicant and also the town
attorney so we have a problem um and
with regard to all of this so I'm so
we're right now we're in a phase where
I'd like to complete the cross of the
witness if there are concerns about Mr
blitz's role that I am as of right now
aside from what we've already discussed
if there's new information I'd like to
see it written and provided to the board
and thus we can discuss it with our
legal council and make sure we
understand what is that you're saying um
as for the engineer who worked for both
the rod and reel and the town I sure
would like to hear more about that but I
don't believe now is the appropriate
time um if there are questions about
that you would like to ask the witness I
think that
is acceptable now um but other than that
I would like to hear about that later
okay now let me let me ask you Mr
Woodburn is not here tonight um uh is is
the applicant going to make him
available to come or should we subpoena
him
or or doesn't have any procedures for
subpoenas otherwise the Planning and
Zoning commission and the um zoning
administrator who have not entered their
appearance would be the board may ask
witnesses to attend at their convenience
uh we have no power to enforce that
um let me ask you could I ask the board
to ask him to
appear um
yes you may do that um why don't you put
it in writing and we will enter into the
record and we will make a request for
any witnesses to reappear at the end of
Mr blitz's
presentation um and we are doing this
partially because we did not allow the
public to ask questions at the end of at
appropriate times in the leadup to this
um
yes so at the end of the testimony at
the end of your presentation we will ask
witnesses to come back if they would
they're not required to and we cannot
make them um and we will do the best we
can for that thank you and uh so
obviously part of this is we never have
begun cross-examination of Mr Blitz
which I would like the public to at
least have that opportunity cross-
examine yeah wait a minute then then
what is this test did he have testimony
or not it did not have testimony we we
went over all that I've been making
arguments the entire time there was a
couple times where I've been I apologize
there will be questioning at the end of
Mr blitz's testimony which will
Encompass the entire
presentation um as
to I want this in writing I want it I
want to hear what it is that you
want and what you think the board should
do about it and then we will discuss it
with our legal councel I can say I
personally don't really like this
but is unclear on the procedures at this
point so make your request we'll talk
about it we'll figure it out you will be
allowed to ask some questions at the end
of the presentation to Mr
Blitz how that differs from
cross-examining a witness is not yet
decided this is an administrative
hearing and we've never done anything
like this so does that get to answer
your question I don't like this either
yeah uh but at the same time I have a
fiduciary duty to my client and and this
was a problem and so write it up
and it'll be short and sweet it's not
going to be anything long because you
know one of the reasons I'm not gonna
make it real long is because obviously
it's going to be spread around and I
don't want an idea as to where on the
Arena fair enough G to straight be
straightforward the request okay we will receive that um are
we done with the
cross as far as Mr Donovan
um
yes I am you want me to redirect with
him first or do you want to go to
members of the public let's you redirect
yeah go ahead and redirect
okay so first um Mr Donovan you were
asked about the incorporation of the rod
and reel would if I suggested that it
occurred in 1972 would that sound about
right as from your perspective it would
okay just so you hear the
date
um you were also asked about permits and
you testified that no permit had been
granted for Harbor Vista North but we
already have an exhibit that
shows the zoning permit for Harbor Vista
North so I want you to be able to look
at that and then correct your
testimony yeah I don't remember this but
clear clearly we were okay you state the
date on that so this is this is one one
of the things that Mr susman was using
to Mr P I apologize Mr pounds was using
to cross was one of the zoning permits
for Harbor Vista North the
date
is the application date is
91611 the approval date is
92211 it looks like it was re renewed on
94
1412 and that's it for this piece of
paper I verify that's exhibit 57
correct for some reason mine doesn't get
written as what it is but that's my
understanding okay
um
the minutes from that we approved today
say that it's 57
okay that's the packet of zoning permits
correct it's the first you had three
different ones 57 58 59 andain permits
okay thank
you
so now you testified um in answers to Mr
pound's questions that you didn't meet
with the Planning and Zoning commission
but isn't it true that you provided
testimony about the comprehensive plan
throughout the pro process yeah I
did and
you oh that's it just want to make sure
that's
[Music]
clear I don't like any of this either in
case anyone so we'll probably all end
this together on this one
[Music]
guys and I I just want to make sure your
testimony is correct because I I think
you might have said that you'd got no
permit for home place but isn't it true
that you got a grading permit for home
place which is itself based upon a
zoning permit yeah
correct that just so you know it was
just for great it wasn't for the whole
thing that hadn't been hadn't gone
through that part of the process
yet uh no further
questions
um at this point in time we will hear
from any members of the public who would
like to ask questions com on up state
your name raise your hand in the air Mr
susman would you do the
honors and this blanket swearing in for
anybody here and I have signed in
previously on one of these she okay then
just sayate your name that'll be all
right so it's it's Randall
Gman getman do you were affirm or that
the penalties of perjury that the
testimony you are about to give and the
responses and statements you are about
to make will be the TR whole truth and
nothing but the truth I
do I I actually uh um Mr Donan I I I
have a question for you so I think you stated in that in 202
21 um you were aware that the Planning
and Zoning was was looking at other uses
for your property I think he said Green
Space or park or something it would have
been in November October of 2020 2020
okay
did did you ever were you aware before
that that the Planning and Zoning uh
were there any other indications that
they were working on things in the
comprehensive plan
that might have affected you being able
to develop your properties prior to that
prior to November of
2020 I was aware that they were redoing
the comprehensive
plan after we watched whatever meeting
the October or November whichever one we
went back and
watched so to kind of help you out I'd
like to call attention to exhibit 10
which is the minutes of the Planning and
Zoning for June 20 2018 I got this out
of your
package okay and and
so in there it's there's a couple of
things I wanted to call out you know it says that Mr Blitz uh Esquire was
present on behalf of applicant owner
Roden reel to request the second
one-year extension of the preliminary
site plan for the harbor V South
Apartments that was granted in 2017 by
the Planning Commission so I just want
to point that out and then in the next
paragraph the commission had concerns
talking about the Planning and Zoning
commission had concerns that they are in
the beginning stages of preparing the
new comprehensive plan and there could
be changes to the zoning ordinance that
would affect the construction of the
future of of the project in the future
yeah
so you were you were aware I assume
since he was representing you that you
were aware of it back in at least June
of
2018 correct yeah back then yeah but
they weren't talking about taking stets
and making it into a park but yeah we
were knew we knew that they were going
through the comprehensive plan
absolutely and that they were and that
they were maybe heading in a direction
uh that that could have prevented you
from doing your projects in 2018 yeah no I'm gonna read it again I don't
remember that at all okay you should
have told
him because it's here that he was here
representing you and it says that they
were in the beginning stage of the
comprehensive plan you also stated that
throughout the comprehensive plan
process uh you were monitoring it as
well
after yeah correct so the only point I
was really making and and is is is that this thing has been
going on for a long time the
comprehensive plan yes absolutely and and the discuss and the potential
discussions of uh of changes to the
zoning
ordinance uh you know the comprehensive
plan what they were thinking what the
directions that they were they were
going to was in the process changing way
back in 2018 the things that they were
discussing from what I recall it was a
lot of the zoning administrator teaching
the Planning Commission about the
comprehensive plan I I understand that
especially having been in the
development of the 2010 2011
comprehensive
plan yeah my name's on that yeah so I
understand what you're saying I I don't
recall any uh thing that came close to
what we saw about when they were talking
about Senate specifically what they were
doing to your thing but correct yeah and I I'm there was also uh
um later on in your in your your
testimony you you you talked about the uh um the
discussions uh about
the the uh sorry um
the zoom meetings that took place in in regard to to the
moratorium um those were very public and
you did get to address I know because I
was listening yeah we did yeah so you you were participating that but that
was in when they were looking at the
moratorium that's that's all I now the
only thing that I can recall right now
that that they were talking about
previous
to the one where they were talking about
s that would have
affected not all of the stuff we were
looking to develop was the height limit
okay but I don't remember any zoning
changes per se okay thanks no problem
that's all I
have all right um any members of the
board have questions that they like
answered by the witness at this point in
time during this time I know you talked
about an
economic um situation 208 whatever right
sure um that lasted for a few years was
there anything else going on with these
properties in that time
period
um not that I can recall now
all right last call all right thank you
for providing testimony Mr Blitz um we
have 30 minutes left tonight so you are
welcome to continue um wherever you
would
like
top
okay
so most of the rest of this is the
argument about the requested relief and
how you do it what authorities you have
to do it and why you should do what
we're asking
for and it presents the both legal
reasons as well
as some probably
additional legal arguments about why you
do it
so we're going to start with the board's
Authority in this case and it's an
expansive authority to craft relief it's
given to you by both Maryland law and
town law it's section 4306 F of the land
use article section 29032 g and that is
important because it gives this board
the power to assume all of the powers of
the zoning administrator and the
Planning and Zoning Commission in
crafting
relief either reviewing and approving
the site plans and issuing the zoning
permits yourself according to the laws
that existed on the date the
applications were
filed or ordering the zoning
administrator and the Planning and
Zoning commission to review those site
plans according to the laws that existed
on the date of the applications were
filed and ordering the zoning
administrator to issue a permit if the
site plans are approved according to
those laws at that
time so it's 4306
F that gives you those all expansive
Powers the consequence of the
administrative error which was the
failure to process the site plans as
required under the town
code is
first let me make the simple point that
the rod and reel based upon the evidence
that you've heard is an AG grieved
party it and its wholly owned subsidiary
owned the properties and sought
development through the site plan
approval process by filing its
applications the failure of the Planning
and Zoning commission and the zoning
administrator to even begin the process
of site plan review within the 60 days
after the applications were
filed even if they relied upon the validity or effectiveness of the
moratorium in good faith was an
error the applicate the applicants were
the ones harmed by that error that makes
them AG grieved
parties second both the zoning
administrator and the Planning and
Zoning commission act in an
administrative capacity when conducting
site plane reveal
and slight plan review is kind of like
the quintessential example of
administrative capacity rather than the
commission's discretionary policy
Powers so when the commission was
deciding what the comprehensive plan
should be taking testimony that's all
discretionary policy
Powers uh and cannot easily be
challenged under the law and we don't
challenge it in this
case okay we don't challenge their power
to do it through the comprehensive plan
that's not what this case is
about but site plan review and the
obligation to properly conduct that site
plan review is Administrative in nature
the administrators apply the law in
effect at the time and determine if the
property owner's proposed development
meet the standards set forth in the
ordinances in that context they are
administering the law not enacting it
and therefore the rod and reel has
standing to bring this
appeal with respect to the request for
Relief I think you're jumping ahead
from yeah I don't think I'm using that
for
this the consequence of the
administrator's failure to process the
site plans as required by the zoning
ordinance was the delay in
permitting that delay in permitting
delayed the start of construction which
itself as you heard from Mr Woodburn
could have sufficiently progressed to
create a vested entitlement to the
permits such that the subsequent changes
to the zoning ordinance that occurred
well after would not have
mattered based upon the evidence we've
provided you in this case
can there be any doubt that the purpose
of the attempt at passing a
moratorium or the denial of the site
plan
review after the moratorium had
expired was motivated by the goal of
changing the law to make the proposed
developments
impossible I argue that it was clearly
the goal of the
delay if the board concludes that the
means and manner of achieving that delay
were wrongful and the moratorium was
without effect as we've
argued then the fair and just result is
to put the Roden reel back in the same
legal position it would have been in
when it filed its
applications the board does not need to
presume that the rod and real site plans
would have been approved if the law in
effect on January 29th 2021 were applied
to the applications because we're at
this point we're not asking the board to
approve the site plans at this stage
merely asking for the order from this
appeal be that the site plans be
processed in accordance with the laws in
effect at that
time if not for the delay caused by the
zoning administrator and the Planning
and Zoning commissions failure to
process the site plans in a reasonable
and timely
manner that is what would have
occurred by granting the requested
relief you would be restoring the rod
and reel to its original starting
position and there would still be a
review of the site plans to determine
the sufficiency of the plans according
to the standards in effect when the
applications were
filed the same would apply for to the
eventual zoning permit that would be
issued after the final site plan
approval if the law in effect as of
January 29th 2021 supports the issuance
of the zoning
permit then it can be if if we get such
an order from this board then it can be
approved
um remember that in this context the
error in this case was on the part of
both the zoning
administrator and the Planning and
Zoning
commission
um and the zoning administrator is the
one that issues zoning permits the
application is for a zoning permit it
triggers the requirement for site plan
review because it's category one site
plan and that that brings the Planning
and Zoning commission into the process
so both of them had a role in this in
the required processing of these site
plans as We R reviewed at the last
hearing I believe the applications you
know request that zoning permit
um at the same time that the site plan
review is triggered so if we could go to
slide three
please so that
yeah
so with respect to the obligation of the
zoning permit I mean zoning
administrator to issue a zoning permit
in accordance with the approved slate
plan as either approved directly by this
board or the commission pursuant to your
order in this case should you grant it should be noted that subsection C of
29027 which I'm showing you of your
zoning ordinance which you already have
in your
binders and I want you to take note of
the last
sentence which reads no zoning permit
shall be issued except in Conformity
with the provisions of this chapter and
when it says chapter it's referring to
the zoning ordinance because it's
chapter 50 I believe of your total town
code except after written order from the
board of
appeals as I mentioned earlier the
zoning administrator also acts as in an
administrative capacity not a policy
capacity when administering the intake
of a zoning permit application including
ones like the rod and reel that require
site plan
review they do so also when they're
issuing a zoning
permit as this last Clause indicates of
the LA the last Clause of this of this
last sentence that obligation can be
modified by this board and then the
zoning administrator is required to
issue a zoning permit in accordance with
this board's order
so if you
choose to Grant the relief you have the
option of doing the work
yourself of the review of the site plans
and the issuance of the zoning order or
ordering them to do it in accordance
with the law in effect at the time
that's your choice in Grant in crafting
the
relief
we we are going sort of way over as to
what that says and what it means as far
as as as well as the powers of the board
to in essence issue permits or even
review applications um I mean that is
going way be this and I think the proper
interpretation of that and I can appreci
I'm G to object to the introduction of
argument in the middle of my argument
that's not an objection okay um because
I think that goes to the board of
appeals as far as any waivers or
variances that may be required with
regard to the application the objection
is overruled uh interpretations of the
same text may be presented during
your
so I think the board should consider
whether the Roden reel was treated
fairly in this
process the law cannot be applied
arbitrarily arbitrarily or
capriciously and would administrative
agents use their discretion to ignore or
refuse to abide by clear statutory
commands they must do so based upon
objective rationale not one based upon
their subjective
preferences so laws must be applied
equally to everyone and the
administration of those laws can't be
gained to favor or Prejudice a party
subject to that
law and I argue that is exactly what
occurred in this case the zoning
administrator and planning and zoning
commission did not want these projects
and the Roden reel that the Roden reel
applications proposed so immediately
mere seven days after the applications
were filed they were announcing
justifications for delaying the
processing of those applications and
then they did delay the processing of
those
applications I'm going to hand out
as demonstrable EV uh um evidence a
little timeline that'll help as I go
through
the
next
[Applause]
ofation
yeah
yes
all the and things shown on this are in
evidence again this is sort of a summary
and a compilation which more appropriate
would be a closing but to help the board
out I I'm not going to to it I'd like
this in evidence we give it a can we
give it a
number
might be a summary of the same things
but so that would be exhibit 63
Sharon
63 would you want me to mark one of them
with an exhibit uh sticker it's okay I
think we've got it
okay so I'm showing this not to rehash
the evidence but to help you put into
context this argument that the delay was
unreasonable the delay in processing the
site plans and that's constrained the
Roden reel's rights to develop its
properties so after the applications are
filed on January 29th 21 as you've heard
seven days later on February 5th the
zoning administrator sent sent that
email
and saying that it would create a burden
on the commission and the moratorium
would be proposed and as we have shown
you a version of these five projects
have been long planned for and accounted
for since at least the 2010
comprehensive plan and many permits had
been issued and mitigation work rating
work had been done and some utility work
and so it's not as though the zoning
administrator the Planning and Zoning
commission had not known of these
projects and that they were planned for a long time
you'll recall that because there are
critical area site plan reviews it
triggers the 60-day review requirement
under your ordinance and I just want to
address that some people in thinking
about the fairness of the delay some
people may find the 60-day deadline for
processing critical area site plans
inconvenient or even
unreasonable or point out that it's not
typically followed and none of those are
reasons to ignore a statutory deadline
passed by the legislative body of the
town and is part of the law applicable
to the rod and reel's
applications neither the zoning
administrator nor the Planning and
Zoning commission get to Simply ignore
such a statutory command because they
view it as unreasonable impracticable or
similarly or simply
undesirable furthermore the the debate
that we've heard from some questions
from the audience about this subject um
the history of compliance with this
deadline misses two critical legal
points that have nothing to do with
practicality or the delays the the
deadlines
reasonableness we demonstrated that the
obligation of the zoning administrator
and the commission to process properly
filed applications includes the site
plans those are in the town's laws
mandatory obligations there are two
reasons why this 60-day requirement is
particularly relevant in this
case first because it reconfirms the
mandate to process site plans and
establishes a
timeline second and perhaps most
importantly from a legal perspective at
least it reinforces that the Mandate
flows from a
statute the Mandate flows from a
statute it is the Mandate and the effect
of the 60-day deadline that because they
statutory their effectiveness and their
applicability can only be modified by a
legislative
act this provision of the town's zoning
ordinance is important because it means
that a moratorium changing the effect
and
applicability of the statute is
legislative in
nature and it is of a general
applicability and
effect and as we've argued that must be
passed by an ordinance not a resolution
to be legally
effective that has nothing to do with
whether the 60-day deadline is
reasonable or practical it's
demonstrating that the ability of the
town to change that deadline must be
done in the proper
fashion in the absence of a statutory
deadline imposed or Mand on a mandated
act by administrative a agents such as
the zoning administrator and the
commission
they would typically have to so say
there was no deadline in the statute
they would typically have to act with
due diligence and in a reasonable period
of time and another reason why this
60-day deadline is relevant to this case
is that it helps the provide the context
of what is a reasonable period of time
so if
you if you're asking was it reasonable
to wait 3 years and still hasn't started
the process processing the 60-day
deadline helps inform you of what is
reasonable because that's what the
legislature of the Town decided should
be
done even if the board were to find that
my arguments about the impropriety of
passing a moratorium impacting statutory
statutorily defined duties by a simple
resolution and not an ordinance being
unpersuasive
the board would still need to consider
whether the zoning administrator and the
Planning and Zoning commission acted
reasonably in failing to commence the
review of the rotten re site plans I
submit that even if they believe the
moratorium to be
effective it was not reasonable to
continue to refu refuse to process the
site plans after the moratorium had
expired and regardless of the moratorium
it was certainly not a reasonable delay
of site plan review when it's been over
3
years I'll remind you that we've already
produced the evidence that the
moratorium was destined to last one year
until Mr pal said No it's it's
indefinite B well he didn't say it's
indefinite he said it was terminated
only upon the act of the Planning and
Zoning commission and the um Town
Council
the other thing I want to make clear in
the context of the reasonableness
argument
is we don't challenge the authority of
the mayor and Town Council to pass a
legislation imposing a zoning moratorium
they have that
power however to do so they must do it
in the correct Manner and they must act
in accordance with the
law in order for the zoning
Administration TR to and the Planning
and Zoning commission to rely upon it
and use such a moratorium as the
justification for refusing to process
the site
plans it must have been done in a legal
fashion I'll remind you also that we
already have produced the evidence that
we advised the town before they even
passed the moratorium that passing it
through a resolution was invalid so they
had
notice
if the moratorium that the Town Council
had tried to impose had been passed
through an
ordinance which was the required
legislative mechanism with all the due
process protections offered by the town
Charter and Maryland law that we've
covered then the moratorium could have
been valid if it was for a reasonable
time period so that's the second
standard it's not just whether the
moratorium that was passed was done
correctly
what's the reasonable period for such a
moratorium if in if in
effect you'll recall that in the very
beginning of this proceeding in almost
the very beginning of the hearing I I
described the interrelationship between
the zoning laws and the property rights
and that's where this comes
due
if the moratorium had been passed
through an
ordinance our only alternative basis for
challenging the zoning administrator and
commission's refusal to process the site
plans would be based on either the
length of the
delay or as was argued by Mr pounds in
his letter of May 25th 2022 that you
have in evidence that the moratorium was
only terminated by the subsequent action
of the Town Council and Planning
Commission that's exhibit 33
and under Mr pound's interpretation set
forth in that letter it would mean that
the moratorium was of an indefinite
duration when
passed otherwise the one-year period
described in the moratorium
resolution that it extended the nemon
with a three additional months wouldn't
have
mattered
and the commission would have been
required to take up those um
applications after the expiration of
that one year you'll recall that we
produced evidence that 60 days after the
expiration of one year after the
moratorium I wrote a letter to the
Planning and Zoning commission and the
zoning administrator demanding that now
that the moratorium expired we wanted
site plan
review we waited the 60 days to see
whether they met their obligation just
naturally
at this time the Town Council had not
yet passed the comprehensive plan much
less the implementing ordinances that
would affect the site plan
review so as you can see in the timeline
that occurred in April of TW
2022 so then even after the Town Council
passed its March 16th 2023 resolution
which is after we had filed this
appeal like nine months
after
um the zoning administrator and planning
and zoning commission still failed to
take up the site plan
applications so far that delay is three
years I submit that the length of such a
moratorium becomes unreasonable burden
on the Roden reel's property rights
then and therefore legally suspect when
it exceeds one
year 3 years is certainly too
long especially when the justification
given to complete the comprehensive plan
and implementing ordinance had failed to
meet both the deadlines of the Town law
and Maryland
law
I'm about ready
to go into a different topic have about
five minutes left so it might be it it
probably is going to go well beyond that
which is why I'm kind of flagging it so
if I this might be a good stopping point
because the next topic is all kind of
together I have one
minute um what and you can time me uh
what what is the purpose of the because
he's been going on for some time about
his opinion with regard to the issues of
whether the moratorium should have been
you know by an ordinance or by
resolution and I can appreciate his
opinion and and whether we're going to
be getting into that indeed Council
actually is the body that runs the town
and we're going to be getting into that
later on but one thing I wanted to point
out how about how about 30 seconds
now I don't think so
I am I think I'm aware of where you're
going with it and I sure would like to
hear it in your section of the
presentation I I can tell you I don't
think you are aware of it and I can tell
you in 30 seconds because this is going
to change everything he just said that's that's why I don't want to hear
it we're still in the midst of Mr
blitz's testimony we owe him a chance to
get through his portion in which case
you may State your position and we will
apply the exact same rules to Mr Blitz
where you may go and give your
interpretation on moratoriums and uh
legales and we will let you do it um we
will do it during your time
so ah
okay the next meeting is scheduled for
April 17th at 6:30 p.m. we'll do the
same uh same thing two hours um for
everyone's awareness um so at this point
in time I'll entertain a motion to
adjourn the meeting until April 17th at
6:30
p.m. I will make that motion I have a
second second all in favor I we're
adjourned thank you
everybody