[0:17] that's one too Sharon I good all right welcome everybody this is the

[0:22] call to order for the chese beach uh

[0:24] board of appeals June 18th

[0:26] 2024 uh as a brief introduction we're

[0:29] here today to uh start with some

[0:31] administrative business meeting minutes

[0:33] and receip of comments uh followed by

[0:36] allowing questioning of Mr Donovan and

[0:38] Mr Woodburn by folks who have not

[0:40] already done so um then questioning of

[0:43] Mr blitz's presentation uh and if all

[0:46] that wraps up in time we will begin Mr

[0:48] pound's presentation

[0:50] by house uh we start with the roll call

[0:55] I will go around please announce that

[0:57] you're present Mr Richard Burch present

[1:00] Mr Paul dhy present Everett present I am

[1:04] Mr we have a quorum uh we will start

[1:07] with the approval of the meeting minutes

[1:09] for case

[1:11] 20233 from the May 29th session both

[1:14] open and close uh does any board member

[1:17] have issues with the meeting minutes

[1:19] they were

[1:22] provided hearing none uh I will

[1:25] entertain a motion to approve the

[1:27] minutes I will make that motion have a

[1:30] second second all in favor I right

[1:35] approved um okay the board uh is in um

[1:40] board acknowledges uh receipt of

[1:43] rebuttal

[1:44] submissions um in this case for case

[1:46] 2020 uh

[1:48] 303 uh regarding exhibit 70 uh we re

[1:52] reiterate that the board has read them

[1:54] and we'll take them under

[1:55] advisement uh Sharon have we received

[1:58] any other public com ments no you okay

[2:03] we continue on

[2:11] um you mind

[2:13] proving oh that was his okay yeah all

[2:17] right um okay um we continue with case

[2:21] 20233 Rod real Incorporated Don Estates

[2:24] LLC to consider an application from the

[2:26] rod real Donovan Estates of 4160 M

[2:29] Avenue uh Chesapeake Beach Maryland for

[2:31] decision on interpretation or Alle

[2:33] alleged error to article 6 section 29023

[2:37] 29031 A1 and A6 of the chese beach

[2:40] zoning ordinance and uh C309 c310 and

[2:43] c311 of the Chesapeake Beach Town

[2:45] Charter applicant requests that the

[2:47] Chesapeake Beach zoning board of appeals

[2:50] to quote order the zoning administrator

[2:51] and planning and zoning commission to

[2:53] immediately commence and prioritize the

[2:55] processing and review of the relevant

[2:56] site plan submitted by Rod rail

[2:58] Incorporated Donovan Estates l

[3:00] and that the zoning administrator and

[3:01] planning and zoning commission be

[3:03] ordered to apply the zoning ordinances

[3:04] in effect as of January 29 2021 when the

[3:07] applications were submitted and for

[3:09] other uh and further relief as the

[3:11] nature of their cause

[3:13] requires okay uh we are going to move

[3:15] into a bit of question and answer um I

[3:19] understand that Mr Woodburn needs to

[3:21] leave a little bit early so we will

[3:22] start with him um this is for anybody

[3:25] who has not already questioned Mr

[3:27] Woodburn um if you would like to

[3:30] uh please step forward and announce who

[3:31] you are who you represent and enter your

[3:33] name and address on the signing sheet um

[3:36] and then we will ask the witness to

[3:37] respond to any questions into the mic

[3:39] next to Mr

[3:44] Blitz Daniel

[3:46] deal uh I do have questions but until

[3:49] the previous correspondents have been

[3:51] replied to I'm uh would hold my question

[3:55] so the the problem is that I think this

[3:57] is the only time we we've asked the

[3:59] witness to come back here um kind of out

[4:02] of turn so to rectify um some confusion

[4:07] on behalf of the public who didn't who

[4:09] weren't clear that they were going to

[4:10] get to ask him questions um so I cannot

[4:13] he's he's come back today voluntarily um

[4:16] and I'm not sure if we will be able to

[4:18] provide him again later so um if you

[4:21] have questions for the testimony Mr

[4:22] Woodburn provided you're welcome to ask

[4:24] them yeah but I understand but I mean

[4:28] the even now allegations of towards

[4:31] board I I I I think

[4:34] it yes I do but not at the price that it

[4:38] it's a it's just a if the board is going

[4:43] to be threatened with a lawsuit if they

[4:45] were to look at it I don't see how me

[4:47] just a general person from the public

[4:49] that has no relation to a new of it

[4:51] that's just an observant could find any

[4:55] protection I hear

[4:57] you he did this did you say your name

[5:01] Dan thank you um yeah we at this there's

[5:06] going to be more time to talk about

[5:09] concerns of the public during the public

[5:10] session um this is specific to

[5:13] information Mr Woodburn provided so

[5:14] you're welcome to bring that up again um

[5:17] is there anybody else who would like to

[5:18] ask questions to Mr

[5:20] Woodburn can you confirm that you have

[5:22] not already questioned Mr Woodburn dur I

[5:25] have not I think I only question West

[5:28] Donovan though though I uh would take

[5:31] offense to to that you haven't you

[5:33] haven't held anybody else accountable to

[5:37] certain Rules and Things so you would

[5:38] say that I wouldn't be able to question

[5:40] Donovan again as it is I don't have any

[5:42] questions for him but no I I have not uh

[5:46] questioned the

[5:48] engineer no

[5:50] see yes okay so Randle Gman 3248 Ana

[5:55] Chase chese Beach Maryland

[6:02] I have been sworn in

[6:06] before I don't know if I need to can you

[6:09] hear me

[6:10] okay

[6:13] so Paul um so so uh you were the town

[6:19] engineer were that was that full-time or

[6:21] part-time uh part-time part time and and were you the town engineer when the

[6:27] projects before the board of appeals

[6:29] were

[6:30] submitted to the town the projects that

[6:33] are currently in yeah no so you weren't

[6:36] the town engineer at that time

[6:38] no so they didn't have a town engineer

[6:42] uh they have I I don't want to speak for

[6:44] the town but I believe it's Wayne Newton

[6:46] is the town engineer at that time

[6:50] yes so so you were not the town engineer

[6:55] when these projects came came in you

[6:57] were not under any you weren't being

[6:59] paid by them at any

[7:01] time

[7:15] okay most of my questions were based on

[7:18] that so

[7:24] um so when you went before the Planning

[7:28] Commission uh you were just talking

[7:31] about the project from uh from the

[7:34] standpoint of RNR not from town engineer

[7:37] you were you were not the town engineer

[7:39] we didn't get to the Planning Commission

[7:41] you didn't no uh so you just helped uh

[7:44] develop the uh drawings and such so

[7:49] that for this for this current here yeah

[7:52] for this current hearing um the uh plans

[7:57] never made it to the commission they

[7:58] didn't get reviewed way I understand it

[8:01] so it never made it to that level okay

[8:05] so when these plans were originally

[8:07] submitted back

[8:09] in January 29 2021 2013 or no oh no e

[8:15] plans yeah here when plans were origin

[8:19] when the when when the first plans were

[8:22] submitted uh for these Pro projects were

[8:26] you the town engineer at that time so

[8:29] you're saying when there was previous

[8:31] submittals on these projects not not the

[8:34] current application yeah this was a

[8:36] reapplication right the other one went

[8:37] away the other approval went away in

[8:39] 2018 right yes I was engaged on projects

[8:44] for the town yes so you were engaged on

[8:47] projects for the town and you were also

[8:50] working on the uh these projects as well

[8:54] uh for this

[8:55] company um I could yeah probably yeah

[9:03] okay back

[9:06] then when when when uh so when these

[9:10] were submitted to the town you were the

[9:12] town

[9:13] engineer uh I being paid by the town yes

[9:16] to do Town Projects but not the not

[9:19] these projects not new developments not

[9:20] these projects these projects would be

[9:22] reviewed by the zoning administrator

[9:25] okay it's not me

[9:27] yeah okay let me see if I have any other

[9:30] ones that kind of U clarifies it

[9:40] out all right

[9:45] thanks anyone else like to step forward

[9:48] and ask questions of Mr

[9:52] Woodburn or any board members as well

[10:15] no I'm just trying to remember but you

[10:16] were saying you have said in the past to

[10:19] correct me if I'm wrong that when these

[10:21] plans came in there was another engineer

[10:24] you were unsure of who it was that was

[10:25] dealing with these plans at that time uh

[10:28] I believe is Wayne Newton

[10:30] but they never got reviewed so I never

[10:32] got anything formal back right some of

[10:35] these plans were developed earlier than

[10:38] 2021 they were there were carryover

[10:40] aspects right and you worked for you

[10:41] were saying you worked for the town at

[10:43] both times so there was previous

[10:44] approvals on these sites not the current

[10:46] application you this current application

[10:49] things changed uh but the uh previous uh

[10:54] plans that you know my office would have

[10:56] prepared um they would have been

[10:58] submitted to the zoning administrator

[11:00] and who they when I say they mean the

[11:03] town and the zoning administrator used

[11:04] to review the plans I I'm not 100% sure

[11:07] but I can remember Chris jbak he's the

[11:10] zoning administrator at the time um and

[11:13] Bill Watson he was the zoning

[11:16] administrator before Mr

[11:18] jabak um and they did have other uh

[11:22] reviewers uh that the town engaged but I

[11:25] don't remember all of them

[11:34] all right thank you Mr Woodburn thank

[11:36] you safe to release him yes have a good

[11:39] trip yeah

[11:41] appreciate um now the same thing we will

[11:44] take questions of Mr Donovan if you have

[11:46] not already asked Mr Donovan questions

[11:49] during his previous

[11:51] testimony please step forward announce

[11:54] your name enter on the signning sheet

[12:01] none do I have to do the same thing or

[12:04] it's same same

[12:07] issue Daniel Deval previous

[12:24] Reserve uh any board members have oh

[12:26] apologies apologies

[12:30] questions of Mr Donovan yes uh if you

[12:33] didn't announce your name if you would

[12:35] my name is Laura Blackwelder 3256 Canon

[12:38] K Court J Beach Maryland

[12:49] 20732 I just go ahead and start oh yeah

[12:52] one

[12:54] okay have my written questions with

[12:57] me um

[12:59] Mr Donovan hello hello uh you had prior

[13:05] approvals to this during the 2010

[13:09] comprehensive plan

[13:11] correct for for all of these site plans

[13:13] or which ones did you have approvals

[13:16] for it it definitely wasn't all of them

[13:22] um and in

[13:26] 2010 we now this is you're tested in my

[13:30] memory because this is 14 years

[13:32] ago

[13:34] so I don't think we had approvals for

[13:39] any of them I think the previous owner

[13:42] of harba Vista North might have had one

[13:47] when they owned the property and it stet

[13:50] it it was not

[13:53] um it was not for the 11 tow houses it

[13:57] was a totally different design and

[14:01] development but that's really tested my

[14:04] memory there okay so your testimony is

[14:07] that none of these particular projects

[14:11] have ever had approvals no that's not no that's

[14:15] yeah

[14:18] appr okay I ask a different question

[14:20] maybe I'll rephrase it thank you yeah

[14:24] um which of

[14:27] these um proposals that as part of your

[14:31] appeal are you claiming has had previous

[14:38] approvals

[14:41] um the the same thing applies going back

[14:45] to my knowledge

[14:47] Harbor now let me think Harbor Vista

[14:50] South was previously

[14:52] approved in 2016 but I think the design

[14:57] changed um

[15:02] but it nothing that we submitted

[15:06] in uh January of

[15:09] 21 was exactly the same as the previous

[15:15] approvals okay so basically anything in

[15:18] this appeal that

[15:20] claims

[15:22] that these should have been approved or

[15:25] the your owed

[15:26] money um because these were previous ly

[15:29] approved or somehow you were wronged

[15:31] because at one time these were approved

[15:33] and now they're not um and we tar and

[15:37] the Planning Commission was targeting

[15:39] you during comprehensive

[15:44] planning couldn't be true I don't think

[15:47] we question just too many C well we've

[15:50] never made any of those claims but

[15:52] you're talking about Miss Blackwater

[15:54] there there's a lot of um arguments a

[15:58] lot of arguments have been made that

[15:59] these have been previously approved and

[16:01] therefore it is logical to now approve

[16:04] them

[16:06] again um

[16:08] so that's okay I I you don't have to

[16:10] answer that my question to you

[16:13] is if some of these were approved

[16:18] previously why did you not go through

[16:21] with your

[16:24] development I'm pretty sure I've already

[16:26] testified on that same exact question

[16:29] you have but you should be allow be

[16:31] required to ask answer that of Miss

[16:33] Blackwelder when she crosses so um it

[16:38] was the financial

[16:40] crisis um was was definitely part of it

[16:44] and then with Harbor Vista South um when

[16:48] we got that

[16:50] approval the

[16:52] construction delays and then I believe

[16:55] we were delayed by um I think it was

[16:59] Army Corps of

[17:00] Engineers on some of the approvals at

[17:04] the Ry re Resort

[17:06] Redevelopment

[17:08] um it we were using that lot as parking

[17:12] for our customers and

[17:15] employees just like we were at harb of

[17:17] Vista North and harb of Vista

[17:20] West um and those delays allowed for the

[17:26] uh Harbor Vista South

[17:29] um approval to

[17:31] lapse

[17:34] um and Harbor Vista self as the only

[17:37] site plan that you are claiming had

[17:41] approval at any given time no I I didn't

[17:44] say

[17:45] that

[17:51] okay

[17:53] if you while you let your approval

[17:56] elapse MH did you you

[18:00] revise any other approvals or submit for

[18:03] any other approvals did you build

[18:05] something else instead of following

[18:07] through with what you had approval

[18:10] for we haven't built

[18:13] anything in the zoning you built the rod

[18:15] and re

[18:16] Resort well I'm talking about these sure

[18:20] talking about on these five Parcels um

[18:24] and the zoning changed during the course

[18:28] you know so we haven't built

[18:31] anything right so you had approvals

[18:34] which gave you the

[18:35] opportunity to act on your

[18:38] approvals however you decided to build

[18:41] something

[18:42] else is that

[18:45] correct and you acted on those approvals

[18:51] instead

[18:54] um again we didn't build anything on

[18:56] these five parcels

[18:59] correct but you did have the opportunity

[19:02] to build are you asking if we were still

[19:04] cooking french fries and at the

[19:06] restaurants yeah we were doing both at

[19:08] the same time putting heads in beds so

[19:13] you know I I'm not too

[19:16] sure you

[19:18] know we got the approval for the rod re

[19:21] development in 2016 the

[19:25] Redevelopment and we mve forward with

[19:28] that

[19:30] right you moved

[19:32] forward and you

[19:36] revised

[19:38] correct yes and when you revise did you

[19:42] not add 13 or 14 hotel rooms and double

[19:48] the the space of your gaming facility No

[19:52] Object just because she's asking about a

[19:53] development that's not the subject of

[19:55] any of these applications it just is not

[19:57] relevant

[20:03] she's asking about the rod and real

[20:05] Redevelopment that's a total it's not

[20:06] subject to this hearing I think that

[20:09] this speaks for development within the

[20:11] town and

[20:13] by you know your client I personally

[20:16] think it does you know have some kind of

[20:19] relevance at least to be able to hear

[20:22] it fair enough uh the objection is

[20:24] overrule you may uh restate and answer

[20:27] the question

[20:31] so my question

[20:34] is you had

[20:37] approvals or you're claiming you had

[20:39] approval for Harbor Vista

[20:42] South and you knew that comprehensive

[20:45] planning was

[20:47] happening and you knew that there were

[20:50] concerns about um capacity and things

[20:56] like that and you you obviously knew

[21:00] that there was

[21:02] a expansion of the gaming

[21:05] Hall and an expansion of the

[21:08] hotels at the Roden reil site so

[21:12] wouldn't it have been logical to assume

[21:14] that during comprehensive

[21:16] planning the town might need to adjust

[21:19] to those things

[21:23] and why didn't you move forward with the

[21:25] approvals that you had when it was such

[21:27] a risk

[21:30] well I

[21:32] think you stated a whole lot of opinions

[21:35] there not relevant facts concerning the

[21:39] Roden

[21:41] Redevelopment and I don't remember what

[21:44] exactly the um traffic study

[21:48] said

[21:50] um but we did do a traffic study when we

[21:54] got the approval for the rotten re

[21:56] Redevelopment and

[21:58] um harva Vista South as well

[22:03] and I the the wastewater treatment plant

[22:06] at the time has plenty had plenty of

[22:09] capacity as it still does

[22:12] today and the traffic studies showed

[22:16] that um traffic would not be a problem

[22:20] once route 261 had the left turn

[22:24] lane um built and the bridge got wider

[22:31] but uh every everything

[22:34] else um in your question

[22:37] was was definitely more opinion than

[22:40] what what I

[22:42] recall but I hope with the traffic study

[22:45] and the treatment plant having the

[22:47] capacity answers your

[22:50] question and so the traffic studies from

[22:53] the previous approvals did

[22:56] not account for

[22:59] the double size of the game room or 14

[23:02] extra hotel

[23:03] rooms and your traffic studies for these

[23:06] approvals were sub were taken during Co

[23:10] is that

[23:12] correct

[23:15] um well we never submitted that well I

[23:20] shouldn't say because I'm not too sure

[23:22] if we submitted a traffic study with

[23:25] these five sight plans um I think what

[23:28] we did was an amendment because the

[23:33] hotel

[23:35] Redevelopment wasn't isn't complete yet

[23:38] so um but you keep saying we doubled the

[23:42] size of the game room and that's that's

[23:46] um not true we we

[23:49] are we're allowed 278 machines and

[23:53] that's all we have and that's all we had

[23:57] so we we did not double the size of the

[24:00] game

[24:01] room

[24:03] so and then

[24:08] um I I don't

[24:11] uh I don't know if that answers your

[24:13] question or not

[24:17] but well the the capacity of your

[24:19] building would be based on the the

[24:21] square footage of your rooms

[24:25] no it's it's based on seat count

[24:31] and you're saying the capacity of your

[24:33] building only accounts the seat count of

[24:36] the machines that you have is that what

[24:39] you're claiming under

[24:41] testimony I don't really know what the

[24:43] relevance is of this we're talking about

[24:45] the board of appeals for the five site

[24:48] plans so if I could

[24:50] just intervene to

[24:54] help the calculation of capacity for

[24:57] what purpose so there's a calculation

[25:00] for the purposes of determining the uh

[25:04] off street parking requirements there's

[25:06] a requirement for the edus that may be

[25:11] necessary there's different requirements

[25:13] under building codes for Life

[25:16] Safety the all of the different uses at

[25:19] the resort property have different

[25:23] methods of calculation so I'm just

[25:26] offering that to help you ask the

[25:27] questions I think think you're trying to

[25:29] get to so when you if you're talking

[25:32] about the gaming room then you could

[25:34] just focus just on the gaming room but

[25:36] obviously the whole property has many

[25:38] other uses that also have different

[25:39] methods of

[25:41] calculation

[25:42] sure um and I don't want to make this

[25:45] too

[25:48] painful my question is very simple

[25:53] um the traffic studies that you

[25:55] submitted

[25:58] were they

[26:00] current did they well first of all were

[26:03] they taken during Co during the covid-19

[26:09] pandemic um like I said previously we

[26:13] did traffic studies in

[26:15] 2016 I don't recall if we um actually

[26:22] amended those in 2020 and they were

[26:25] included in the site plan we submitted I just don't

[26:30] recall okay so if but this the original

[26:34] traffic studies were done in

[26:38] 2016

[26:40] now I will say the bridge we didn't have

[26:43] a new bridge yet in town but the traffic

[26:46] study did account for the new

[26:50] bridge

[26:53] okay so comprehensive planning was done

[26:56] during covid-19

[26:59] and it had started before then but sure um your plans were submitted during

[27:06] the

[27:07] pandemic and you

[27:09] were

[27:11] aware

[27:12] that the Planning Commission had

[27:15] concerns about

[27:17] traffic is that

[27:21] correct um I understand that to be true

[27:26] yeah okay so is

[27:29] could you have expected the Planning

[27:31] Commission to

[27:33] approve high capacity

[27:36] development in light

[27:38] of everything that was coming that

[27:41] everything that had come to the town

[27:43] since a last comprehensive planning

[27:45] period I object I don't see

[27:48] how her mind she was the planning ising

[27:53] at the time I don't see how he can

[27:55] answer for her she's got can what she

[27:59] I'll

[28:00] rephrase um she can ask the question we

[28:04] don't know her expertise of her was on

[28:07] the planning zoning at that

[28:09] time she she has the open floor to ask

[28:12] her questions

[28:15] until do you mind rephrasing the I'll

[28:18] try I wish I brought my uh picker

[28:22] question excuse me Mr Donovan can you

[28:25] please speak into the mic speak a little

[28:27] louder I'm having difficulty hearing you

[28:29] yeah yeah

[28:35] absolutely can you rephrase the uh sure

[28:39] um can you imagine a scenario where a

[28:43] Planning Commission might not want to

[28:47] approve a high capacity

[28:51] development with traffic studies that

[28:54] were taken 10 years prior even if

[28:56] amended

[28:59] when they have no ability to gauge the

[29:02] traffic based on new development that

[29:04] has occurred

[29:05] during previous 10 years calling for

[29:09] speculation it's just not an appropriate

[29:13] question

[29:20] sustained were you aware that site plans

[29:23] expire and

[29:25] that once you have a

[29:28] approval and authorization I think you

[29:31] had authorization for an extra year to

[29:35] entertain your

[29:37] approval were you aware that it could

[29:39] potentially

[29:41] expire

[29:44] yes and when you decided to let it

[29:50] expire were you aware that there was a

[29:53] risk that it would not get

[29:56] approved afterwards

[29:59] at that time no because the zoning was

[30:01] still in

[30:04] place now if the zoning changed well

[30:07] then yes obviously but at the time that

[30:11] they expired the zoning was still the

[30:14] same so I I would have no reason to

[30:16] think

[30:17] otherwise but you do understand and you

[30:20] did understand what comprehensive

[30:22] planning does

[30:24] correct yeah you've had rezoning occur

[30:29] in town before that you knew of is that

[30:31] correct too yes

[30:35] okay no further

[30:48] questions so I had voiced my concern and

[30:52] the reason I had voiced it is because

[30:54] there might be something said uh when he was asked

[30:58] questions uh that made me want to ask

[31:00] another question and actually I really

[31:02] have only the same questions from the

[31:04] first

[31:05] time are you gonna allow me to ask him

[31:08] you're gonna ask him the same question

[31:10] you asked him during his original

[31:11] testimony

[31:13] uh about this I'm gonna ask about some

[31:16] things she just talked

[31:19] about No Object because the ruling was

[31:22] we were only taking people that had

[31:25] previously not had a chance to ask

[31:27] questions Mr getman has asked questions

[31:30] yes otherwise we'd open a door I agree

[31:34] I'm sorry you cannot ask answer or ask

[31:36] okay I just want that on record on the

[31:40] record all

[31:42] right uh anyone else want to question Mr

[31:48] Donovan board

[31:52] members two questions

[31:55] um I have two questions for you

[31:58] um with these properties I know I had

[32:00] asked you before um if anything else had

[32:02] happened with these properties but did

[32:04] you were any of these properties do you

[32:06] ever try to sell them or use them for

[32:08] any other purpose than what you what

[32:11] you've had

[32:14] planned no no okay and um the attorney

[32:19] that was here the other week um said he

[32:22] was an expert on imminent domain you had

[32:24] expressed that right that was in our

[32:28] he didn't say he was an expert he can't

[32:30] say he's an expert attorneys can't hold

[32:32] themselves out as an expert okay so

[32:33] that's Amy terminology that he focused

[32:36] on that field or for the termin wasn't

[32:39] iment I mean it was a taking it's a

[32:41] different type of

[32:44] law

[32:51] um the note the minutes and what we said

[32:55] is that he specializes in the area of

[32:57] emminent domain an inverse

[33:01] condemnation Mr Blitz is that accurate I

[33:05] believe he did say that okay so but he

[33:08] wasn't I think Mr pound's point is

[33:11] nothing in this case is about eminent

[33:13] domain that is he may he may have been

[33:15] saying what he test what he practices

[33:18] What fields he is Mr pound is correct

[33:21] none of his testimony was about eminent

[33:22] domain it was about takings I understand

[33:25] that however if he is serving as Co

[33:28] counsel and that is a specialty Mr

[33:30] Donovan you had stated before that the

[33:33] reason why you then put in your claim in

[33:36] 2021 is that the Town Council had had a

[33:39] meeting and it sounded like they were

[33:40] going to have that they were considering

[33:43] eminent domain of your property and that

[33:45] concerned you and therefore you put in

[33:47] the paperwork with these applications

[33:49] did you then confer with your Council

[33:52] regarding that objection with respect to

[33:55] asking about conversations with Council

[33:57] okay that's privilege but you're fine

[34:00] until you said that last bid it was all

[34:02] fine how do you okay I I know how to I

[34:06] just found I think what you were talking

[34:09] about is when the Planning

[34:11] Commission um was talking about stets

[34:15] and those two Parcels that had been in

[34:18] our family since

[34:19] 1936 and making those a park that's what

[34:23] I was talking about and they said it on

[34:27] more than one occasion

[34:30] um I think that's what you're referring

[34:33] to yeah it just it piqu my curiosity

[34:35] when that that's the cause of us

[34:38] submitting the site

[34:42] plans I think that's I

[34:50] have all right thank you Mr Donovan sure

[34:54] all right

[35:01] okay um so at this point it will be more

[35:05] of uh blanket questions for Mr blitz's

[35:08] presentation um we'll be following the

[35:11] same guidelines established during our

[35:13] last session with Mr flip Fisher the

[35:15] line between cross- examination

[35:16] clarifying questions isn't something the

[35:18] board feels comfortable delineating the

[35:20] board has decided to allow questions

[35:22] this is not a court of law if lawyers

[35:24] feel that this violates their

[35:25] professional code of ethics they must

[35:26] use their judgment as to whether they

[35:27] can answer the question if one or more

[35:29] questions are declined to be answered

[35:31] the presentation will remain in the

[35:32] record and the record will reflect a

[35:34] refusal to answer questioner may profer

[35:36] as to what questions would be posed if

[35:39] given the opportunity same rules

[35:43] um Mr BS would you like to start

[35:45] questions if I could be heard first oh

[35:47] go ahead so you had

[35:49] asked for Council to come up with

[35:52] adequate

[35:53] procedures for having me testify in a

[35:56] case in which I am the

[35:58] attorney um and as I noted with respect

[36:01] to Mr fiser at the last hearing it's

[36:04] against the rules of professional

[36:05] conduct to act as an attorney in the

[36:08] same proceeding that you are testifying

[36:11] for on issues that are

[36:13] contested I'm going to read you the

[36:17] section of the professional rules of

[36:19] conduct so

[36:21] you understand it it's rule

[36:25] 19-33 point7

[36:28] and it says attorney is witness

[36:30] subsection

[36:31] a an attorney shall not act as an

[36:34] advocate at a trial in which the

[36:36] attorney is likely to be a necessary

[36:38] witness unless the testimony relates to

[36:42] UNC an uncontested

[36:44] issue the testimony relates to the

[36:46] nature and the value of legal services

[36:48] rendered in the

[36:49] case or the disqualification of the

[36:52] attorney would work substantial hardship

[36:54] on the client subsection B attorney May

[36:58] advocate in a trial in which another

[37:01] attorney in the attorney's firm is

[37:02] likely to be called as a witness unless

[37:04] precluded by rule

[37:07] 19-31

[37:10] D7 as I've stated repeatedly I have not

[37:14] acted as a witness in this proceeding

[37:17] but as an attorney making a presentation

[37:20] that included arguments about the

[37:22] relevance of the documents the

[37:25] documentary evidence that we had or

[37:28] the statutes that I'm directing your

[37:29] attention to that's not testimony none

[37:33] of that's in my personal

[37:35] knowledge personal knowledge is somebody

[37:37] called me and I tell you what they said

[37:39] or I I tell you what they said only I

[37:44] would have that

[37:46] knowledge that would be testimony I

[37:49] haven't given any of that

[37:52] and for example when I submit the

[37:55] records of the minutes of the meeting of

[37:57] the Planning and Zoning commission or

[37:58] the Town Council which we've had plenty

[38:00] of as an exhibit that doesn't mean I'm

[38:03] the sponsoring witness who has personal

[38:07] knowledge of those proceedings I wasn't

[38:09] at most of those proceedings probably

[38:11] the document submitted is the evidence I

[38:14] as a lawyer offer them as Government

[38:17] documents which even in a courtroom are

[38:20] come in under a hearsay exception is

[38:22] government

[38:23] documents and this hearsay doesn't apply

[38:26] in this proceeding anyway

[38:28] my point is that in offering those

[38:30] documents I'm not acting as a witness

[38:32] but as the lawyer and when I explain

[38:35] what the laws are as you know from all

[38:39] our previous hearings when I'm telling

[38:40] you directing your attention to various

[38:43] Charter Provisions or iite a case or

[38:46] describe what happened in that case in

[38:48] the

[38:49] decision I'm not testifying I'm acting

[38:52] as any lawyer would in presenting you

[38:55] the law that I think is relevant to this

[38:57] case

[39:00] now I should have known when Mr pound

[39:02] started making statements in the middle

[39:04] of my

[39:06] case which was back in February he

[39:10] started saying there was half truths

[39:12] being said and those half truths I

[39:14] believe related to my statements about

[39:16] his

[39:17] letter which I literally just read into

[39:20] the record and then it got converted

[39:22] into a whole question of whether I had

[39:24] ever been sworn we had two whole

[39:26] hearings about whether I had been sworn

[39:28] in the proper way to swear

[39:30] and and what I didn't realize now and

[39:34] what then but I do realize now is that

[39:38] was all just the predicate to try to

[39:41] disqualify the board's at the rod and

[39:44] reel's

[39:45] attorney from serving as their

[39:47] attorney that somehow I needed to become

[39:50] a witness it all starts with a false

[39:53] premise that I'm was in any way

[39:55] testifying I'd ask you to think what

[39:58] evidence have I offered as a

[40:01] witness what statement of fact that is

[40:04] in my personal knowledge that I offered

[40:07] to you I would say there's none so what

[40:10] would I be cross-examined

[40:13] on the danger and the reason I rais

[40:16] these

[40:17] points is that is exactly what you heard

[40:21] at the last meeting from Mr pounds

[40:24] because he made a profer of all the

[40:26] questions he was going to ask Mr

[40:29] Fischer and it was very instructive

[40:32] because at least half of these proferred

[40:34] questions have nothing to do with Mr

[40:35] feser's

[40:37] testimony and were often completely

[40:39] irrelevant to the case or any evidence

[40:41] that had thus far been

[40:43] provided that's why I can't allow myself

[40:46] to be subject to

[40:48] cross-examination under oath to a series

[40:51] of questions that have nothing to do

[40:53] with any testimony I gave if it was

[40:57] any testimony that was given I'd like it

[41:01] to be

[41:02] identified and I would probably ask that

[41:05] the board just strike that testimony

[41:06] because I don't think it's necessary to

[41:08] my case there's literally nothing I have

[41:10] said as that would come from my personal

[41:13] knowledge that has any bearing on any

[41:16] issue in this case it's just simply not

[41:21] testimony it's to ask me to testify

[41:26] again when it violates the rules of

[41:27] professional conduct is unfair and an

[41:31] unsupportable

[41:32] request therefore I'm going to

[41:34] respectfully decline to be subject to

[41:37] cross-examination by Mr pounds or any

[41:39] other party I will always answer

[41:42] questions of the board because those

[41:44] would not be in the nature of

[41:46] cross-examination I have a duty other

[41:48] than being sworn in I have a duty as an

[41:51] officer of the court to give you the

[41:54] truth as I know it regardless it has

[41:57] nothing to do with being a witness I I'm

[41:59] not supposed to make misstatements to

[42:01] you so I'm already under that obligation

[42:05] but I'm not going to start down the road

[42:08] that would effectively allow Mr pounds

[42:11] to later disqualify me in fact if if you

[42:14] started having me testify now I'd have

[42:15] to literally stop the case and say well

[42:17] I'm now out as the

[42:19] lawyer so when you ask whether it was

[42:22] possible to come up with procedures to

[42:25] accommodate that I simply said say that

[42:28] there

[42:30] aren't

[42:32] so the one thing I would ask you to

[42:34] think about

[42:37] is at the same time Mr pounds made the

[42:40] original request to cross-examine me he

[42:42] made the request to cross-examine your

[42:44] board's attorney Mr

[42:46] susman

[42:49] and the board ruled against having that

[42:52] occur because it would interfere with

[42:54] the relationship of the board with their

[42:56] attorney

[42:57] well that's exactly what would happen if

[42:59] I was subject to

[43:01] cross-examination I'd have to withdraw

[43:03] as

[43:04] councel so I'm just not going to do that

[43:07] if Mr pounds wants to make a profer like

[43:09] he did for Mr Fischer then I suppose we

[43:11] can listen to all the profit questions

[43:14] uh what I think you'll find is that

[43:16] they're all well beyond the scope of any

[43:18] direct quote testimony I made it won't

[43:22] involve testimony but it'll be questions

[43:25] about that are in the form of argument

[43:28] against our argument I would suggest

[43:30] that that's Mr pound's opportunity to

[43:32] put on his case but it's not done

[43:35] through cross-examination of me so again

[43:37] respectfully I understand your role I

[43:39] want to be supportive of your role but I

[43:41] can't be put in a position of being

[43:44] cross-examined in a case that I'm the

[43:46] advocate for the rod and

[43:49] reel I think we understand your position

[43:53] and

[43:57] is there anything you'd like to uh well

[43:59] first of all yeah thank you Mr chair um

[44:02] before at the you first mentioned

[44:05] something to Mr Blitz you mentioned the

[44:08] process about that he was going to have

[44:10] an opportunity to uh in Ence State his

[44:14] position with regard to examination did

[44:16] I hear that

[44:17] correctly uh sorry say that again uh and

[44:21] again I was I can read it again please

[44:23] um okay so we'll be following the same

[44:26] guidelines is established during our

[44:28] last session with Mr fiser the line

[44:29] between cross-examination clarifying

[44:31] questions isn't something the board

[44:32] feels comfortable delineating the board

[44:34] has decided to allow questions this is

[44:36] not a court of law if lawyers feel that

[44:38] this violates a professional code of

[44:40] ethics they must use their judgment as

[44:41] to whether they can answer the question

[44:43] if one or more questions are declined to

[44:44] be answered the presentation will remain

[44:46] in the record and the record will

[44:47] reflect a refusal to answer a questioner

[44:50] May the questioner may profer as to what

[44:52] questions would be posed if given the

[44:54] opportunity okay then thank you I I was

[44:57] reading I wasn't writing as fast as I

[44:59] was listening so thank you um and I can

[45:01] appreciate you know everything that uh

[45:04] you know Mr Blitz has said with regard

[45:05] to uh uh his position uh obviously we

[45:09] have a couple problems number one is we

[45:11] spent a whole evening which uh resulted

[45:14] in very early on in this process of Mr

[45:17] Blitz raising his right hand and and

[45:20] being absolutely positively

[45:22] unequivocally sworn it um now the

[45:26] purpose of being sworn in is there is an

[45:28] expectation by the public that what

[45:30] they're hearing is the truth um because

[45:33] there are major civil and criminal

[45:35] sanctions as a result for failure to lie

[45:38] under oath we went through a whole

[45:40] evening and that occurred F furthermore

[45:43] um uh and know and I I only have limited

[45:48] documents that I'm going to be

[45:49] presenting but I like might as well

[45:50] present one right right now and this is

[45:52] an email uh exchange between Mr susman

[45:55] and Miss wall

[45:57] uh discussing uh another is this related

[46:01] to Mr the questioning of Mr Blitz it is

[46:04] okay and and and primarily is that Mr

[46:07] Blitz would be subject to

[46:09] cross-examination and not only that but

[46:11] the chair Mr uh susman even said that

[46:14] chair and I and he and I agree as to the

[46:17] following including the fact that Mr

[46:19] Blitz would be subject to cross-

[46:21] examination so indeed and this was back

[46:24] in January

[46:28] and these are emails if you like me to

[46:29] I'll be more than happy to introduce now

[46:30] thank

[46:31] you I object as there's no party that

[46:36] he's representing that he would have

[46:39] that knowledge so that's again um sort

[46:42] of I should be able to examine each and

[46:45] every document within town hall to

[46:48] provide me equal footings as he is being

[46:51] provided again this is

[46:54] very this is what everybody's making a

[46:56] claim to

[46:57] things aren't just straightforward yes

[47:01] um the objective is to get into the

[47:03] record so that we're all on the same any

[47:05] more of the copy I do have extra

[47:07] copies onto the same page um but yes but

[47:11] miss wall could be here and then he

[47:13] could submit that but otherwise that's

[47:16] just out of

[47:20] procedure we have really I think part of

[47:23] why it's difficult is we have wide

[47:25] openen procedures here is uh something

[47:29] of this rigor that the lawyers are

[47:30] accustomed to is not something we have

[47:32] procedures for um and so we're trying to

[47:36] do the best we can to figure out how to

[47:38] manage this and going forward obviously

[47:40] if we know you know we knew everything

[47:42] in advance it would be much much better

[47:44] laid out but unfortunately I

[47:47] can't Sor just from myp

[47:51] yeah my objection is can we hold a

[47:54] minute and give Mr susman yes

[48:18] while Mr is reading I just want to

[48:20] confirm that has been accepted in

[48:21] evidence no yeah I I still reserve my

[48:24] right to make an objection I'm still

[48:25] reading it okay

[48:50] one let us know when you are okay um

[48:54] here you've read it to your satisfaction

[48:56] Mr Blitz

[49:10] so my first concern is that there's

[49:13] Communications about the process and

[49:16] procedures of the board that are

[49:18] occurring without me being present in

[49:21] the

[49:23] communications completely improper but

[49:26] what I don't understand about these

[49:28] communications is whether these are

[49:33] Communications

[49:36] from Miss

[49:39] wall and Mr

[49:44] susman well but it's also got members of

[49:47] the board it well it's got the chair I

[49:50] apologize just the chair

[49:57] and I I guess I'm trying to my question

[50:02] is how did Mr hounds have a copy of of

[50:10] Correspondence that's occurring outside

[50:12] of the operation of the public

[50:15] hearings for

[50:18] communications between Town

[50:22] staff and Mr

[50:24] susman and I don't know

[50:28] whether at at January 5th

[50:32] 2024 Miss wall had assumed the position

[50:36] of zoning administrator at that time but

[50:39] she subsequently has and then that would

[50:42] mean she's a party

[50:44] communicating with Mr susman she had she

[50:47] had or had not 2024 uh January 5th of

[50:57] let let let me know because number one

[50:59] Miss B is not a party and number two he

[51:01] I can address the comments he's made the

[51:04] officer the zoning administrator is one

[51:07] of the parties we alleged commit error

[51:09] by law she is a

[51:14] party just in the same way the Planning

[51:16] and Zoning commission

[51:18] is doesn't mean I can call her because I

[51:21] don't have the power to subpoena

[51:23] Witnesses just like anybody else doesn't

[51:25] have that power

[51:28] so I'm going to object to the in in to

[51:31] the introduction of communications

[51:33] outside the

[51:34] record between the board's Council and

[51:39] the board members and the Town

[51:42] Administrator as I don't think they

[51:44] properly come into evidence in any way

[51:48] and I'd also just make the point that

[51:51] any discussion outside of this context

[51:53] doesn't really

[51:55] change the outcome of my respectful

[51:59] declination to be

[52:03] cross-examined I can say pleas and

[52:07] basically the reason for this email was

[52:10] because the public was informed and was

[52:13] communicated to the public with regard

[52:16] to this process which public should be

[52:18] the ultimate uh you know truth barrier

[52:21] but the public was informed that indeed

[52:24] through the almost 30 hours of of

[52:27] narrative by Mr Blitz in this that they

[52:29] would be opportunity to cross-examine

[52:31] him as I am the member of the public and

[52:33] he's speaking for me okay except for

[52:37] Mr except for Mr Deval then the rest of

[52:40] the public then would like to an

[52:41] opportunity and they they would be

[52:43] informed that indeed the the Mr Blitz

[52:47] would be subject to

[52:48] cross-examination they were asked about

[52:50] it and it was confirmed that he would uh

[52:54] that we are definitely going to be

[52:55] bringing that up obviously you know in later on but one

[53:25] moment

[53:55] e e

[54:28] all right the uh Sharon what's our

[54:30] latest exhibit

[54:34] number we will enter this in as exhibit

[54:37] 70 we are denying the objection

[54:40] overruling the objection and this will

[54:41] come in uh the chair would like I

[54:44] believe we already have a 70 that's

[54:46] sorry

[54:52] 711 pound you may make your

[54:57] uh statement regarding what is in the

[55:00] contents of this and I would like you to

[55:02] briefly pause at the end of it so I can

[55:04] point out one section okay uh basically

[55:07] this uh under the email which is uh

[55:10] number one addressed as you know I spoke

[55:12] to the chair and he and I agree on the

[55:15] following and that indeed um uh number

[55:18] three and this is on the email uh dated

[55:21] January the 19th the chair will give the

[55:24] parties a record and opportunity to ask

[55:25] questions of Mr Blitz at the end of the

[55:27] testimony and presentation questions

[55:29] should generally be limited to the scope

[55:31] to address information presented by Mr

[55:33] Blitz and that was the email from Mr

[55:35] susman on the other email can you read

[55:38] the last line of that block oh sure um

[55:40] Mr Blitz May object to any questions and

[55:42] the chair May rule on Mr blitz's

[55:44] objection on a case- by case

[55:46] basis um that is not exactly what we're

[55:49] doing here but I feel it is close

[55:51] enough um that uh you may ask him

[55:55] questions and he may opt not to

[55:58] answer oh it's my understanding he's not

[56:00] answering anything yes okay we can be

[56:03] here for a couple

[56:04] days how you'd like to do it okay um uh

[56:09] and then also uh so

[56:16] Mr so

[56:20] uh so Mr Blitz uh earlier on I just to

[56:24] clarify we are accepting the lay of the

[56:28] land with regards to questioning each

[56:31] other

[56:32] we given given all the objections and

[56:36] problems here I would ask Bo please to

[56:38] review my

[56:41] rebuttal I mean that clearly outlines

[56:43] how just inappropriate

[56:46] and um I mean it was just a pretty

[56:50] embarrassing to be for lawyers to treat

[56:53] each other that way we look at I look at

[56:55] lawyers we with respect we we we

[56:59] understand we need we need to keep this

[57:00] a little we're trying to

[57:02] follow what do you what are you trying

[57:04] to follow I'm trying you're letting him

[57:07] talk out here I'm trying not let him

[57:08] talk you're not you're not saying

[57:10] anything about it you you you've already

[57:13] said you don't have you're making up

[57:15] procedures as you're going and I and I

[57:17] think you guys are really putting forth

[57:19] a lot of great effort but but you

[57:22] refused me to be able to ask a second

[57:24] question I didn't refuse made you made

[57:27] that determination but there's a whole

[57:29] lot of other things you're just playing

[57:31] it by ear we're we're trying not to uh

[57:34] we'd like sit down gallery to

[57:38] please okay we're trying to have it so

[57:41] that we can finish finish Mr blitz's

[57:43] presentation which he's done which Then

[57:44] followed by his questioning which is

[57:46] Then followed by Mr pound's presentation

[57:47] followed by his questioning and then it

[57:49] opens the floor to the public and you

[57:51] can say anything within the context of

[57:55] this case that you would like to say uh

[57:57] to the board or give presentation on

[58:00] that is the general rule of how we're

[58:01] trying to follow this and we are doing

[58:04] the best that we can so so you had just

[58:07] been asking a question about we were

[58:10] sure of something but I wasn't quite

[58:12] sure what you were asking so um the

[58:14] statement I was making sure that we are

[58:17] we're ready to begin questioning of Mr

[58:21] Blitz by Mr pounds with the caveat that

[58:23] you may opt not to answer I I have

[58:26] already opted you should just now be

[58:28] like a profer just like he did for Mr f

[58:32] are we beginning that Mr pounds I want

[58:34] to make sure I'm clear so I can ask a

[58:36] bunch of questions that he's already

[58:37] said he's not going to answer yes um uh

[58:41] and and now since I could make a profer

[58:44] which I could probably do on closing uh

[58:47] you and you guys will have closing as

[58:48] well that will follow everything

[58:50] absolutely so I want to make sure

[58:55] that okay let's just let's just go down

[58:57] the road a little bit and see where we

[58:58] can go okay so Mr Blitz you know you

[59:01] were here during the beginning of these

[59:19] proceedings that's a foundation to make

[59:21] sure that he indeed admits that he was

[59:23] here I mean here not here

[59:30] yes Mr uh Mr Blitz is refusing to answer

[59:32] he may proceed with your questions okay

[59:35] are we talking to the mic please oh I'm

[59:37] sorry so uh and Mr Blitz you were here

[59:41] this that evening in which you raised

[59:42] your hand and and sworn in to be a

[59:46] witness under

[59:49] oath so is your is your refusal to even

[59:53] respond a a refusal to respond

[59:56] Mr pounds just like you did last time I

[59:59] have blanket refused it's now your turn

[1:00:01] to make a profer which is just a list of

[1:00:03] the questions that you would have asked

[1:00:05] if you had been given the opportunity

[1:00:07] you did this at the last hearing with Mr

[1:00:09] fiser I'm in the same position as Mr

[1:00:11] Fisher I've declined to answer questions

[1:00:15] on

[1:00:17] cross-examination you can then put into

[1:00:19] the record so that they are preserved

[1:00:22] your list of questions so don't pause

[1:00:25] after each one just just like he did for

[1:00:26] Mr

[1:00:28] fer if I don't mean to instruct you but

[1:00:30] I'm just saying that's that's my

[1:00:33] intention about or or uh understanding

[1:00:35] about what the board's asking right now

[1:00:37] the board's understanding as

[1:00:40] well I mean so want to make sure because

[1:00:43] I uh first of all then I want to make

[1:00:47] sure that we have I did a motion last

[1:00:50] time that that indeed Mr Blitz you know

[1:00:53] made us aware that he was not under

[1:00:55] Earth I did a motion to strike his

[1:00:57] entire testimony um that indeed to make

[1:01:00] sure that anything he said was not in

[1:01:02] evidence was not part of this case as as

[1:01:05] he just stated that he was a lawyer

[1:01:07] making arguments okay if that is true

[1:01:11] then anything that you would have hear

[1:01:13] for the heard for the last 30 hours from

[1:01:16] him then we have to understand is not

[1:01:18] evidence is not testimony is not under

[1:01:21] oath and this and is nothing more than

[1:01:25] him making

[1:01:27] verbal comments as opposed to anything

[1:01:29] else uh I made that motion before it was

[1:01:32] denied I'm going to make it again now um

[1:01:36] because I can tell you because that is

[1:01:38] part of where I'm going to be going in

[1:01:40] the case that motion is also denied you

[1:01:42] may proceed with your profer thank you

[1:01:44] uh so

[1:01:47] uh okay so we're going to the profer so

[1:01:50] first of all I would have asked

[1:02:09] okay these are going to be the proper

[1:02:10] questions that I I would have asked so

[1:02:13] Mr blitz so to make sure we understand

[1:02:15] each other you and I just I just said

[1:02:17] you swore yourself in but now you've

[1:02:19] made the decision that you were not

[1:02:20] going to be indeed uh testifying or even

[1:02:23] though it was under oath what was the

[1:02:25] reason that you decided to change your

[1:02:27] mind isn't it true that basically the

[1:02:29] reason a person is sworn in is because

[1:02:31] there's an expectation that you're

[1:02:32] telling the truth are you now telling

[1:02:35] the public that indeed you can no longer

[1:02:37] have the expectation to tell a truth

[1:02:39] because you refu you've decided to

[1:02:41] change your mind as to you're being uh

[1:02:44] indeed under oath with regard to these

[1:02:46] testimony uh is that the reason or is

[1:02:48] there some other reason will you please

[1:02:49] tell what the reason is for you know for

[1:02:52] this testimony um with regard to the

[1:02:54] previous exhibit

[1:02:56] which indeed you introduced and which

[1:02:58] you showed that indeed permits had been

[1:03:00] issued were you indeed the attorney for

[1:03:02] RNR and also the attorney for the town

[1:03:05] during this process did you shepher the

[1:03:08] those previous permits through the town

[1:03:10] uh and and with regard to received

[1:03:13] approvals in that way you also heard the

[1:03:15] testimony of Mr Woodburn with regard to

[1:03:18] his testimony was he indeed the town

[1:03:20] attorney the town engineer at the time

[1:03:23] uh and also the engineer for our RNR and

[1:03:27] indeed what did uh he act as under both

[1:03:30] capacities uh during that time uh isn't

[1:03:33] it true that the town engineer is very

[1:03:36] important to the town and also to the

[1:03:37] public to make sure that indeed they are

[1:03:40] given an opportunity to review

[1:03:42] everything that needs to be done with an

[1:03:44] application uh as opposed to just doing

[1:03:47] yourself here tonight the testimony was

[1:03:50] that indeed um uh Mr uh Newton was

[1:03:54] indeed the the uh engineer but you were

[1:03:57] talking about the projects with regard

[1:03:59] to the evidence which was entered

[1:04:01] earlier uh in this process and indeed uh

[1:04:05] whether that uh he was the engineer

[1:04:07] during that time and who was in essence

[1:04:09] operating in the best interest of the

[1:04:11] town during that time isn't it true you

[1:04:13] were also the uh attorney for the board

[1:04:15] uh Planning Commission at that time and

[1:04:17] helped Shepherd those other uh permits

[1:04:20] through uh uh the Planning Commission at

[1:04:23] time to receive those permits that

[1:04:25] indeed permits were issued and indeed

[1:04:27] the uh isn't that correct and indeed

[1:04:29] with regard to those permits that were

[1:04:31] being issued uh those permits expired

[1:04:34] they were renewed and they expired again

[1:04:37] some 10 years have passed and then uh

[1:04:40] there was a decision not uh to uh renew

[1:04:44] those applications until the

[1:04:46] comprehensive plan process was uh in in

[1:04:49] Essence beginning that uh with regard to

[1:04:53] the pl comprehensive plan process uh you

[1:04:56] were aware that the zoning administrator

[1:04:58] at the time said no with regard to these

[1:05:00] applic uh these types of uses the

[1:05:02] Planning Commission that indeed

[1:05:04] according to Mr um uh Donovan that

[1:05:08] indeed the Mr Donovan stated that they

[1:05:10] didn't even bother going to the Planning

[1:05:12] Commission to review any type of

[1:05:14] testimony or application that indeed

[1:05:16] that was their decision uh and then

[1:05:19] indeed no application or request was

[1:05:21] made of town council with regard to uh

[1:05:25] that decis ision to uh uh request that

[1:05:29] these properties remain in any type of

[1:05:31] Zone whatsoever that indeed the pro then

[1:05:35] Pro the process then began uh to the

[1:05:38] board of

[1:05:42] appeals that indeed if you were uh the

[1:05:45] attorney for the town and also for the

[1:05:48] developer uh whether this created a

[1:05:50] conflict of interest issues in

[1:05:52] representing both parties

[1:05:56] and indeed is it uh since you were being

[1:05:58] paid by the town that in desence did you

[1:06:00] have an obligation to act in the best

[1:06:02] interest of the town with regard to

[1:06:04] these application uh with regard to

[1:06:05] these

[1:06:06] applications uh so after those permits

[1:06:09] expire 10 years go by and then uh they

[1:06:12] begin the comprehensive plan process the

[1:06:15] uh the engineer earlier on testified

[1:06:17] that indeed things change uh and indeed

[1:06:20] things do change um the area which is

[1:06:24] now classified as a flood plane and uh

[1:06:27] and indeed the your request with regard

[1:06:30] to these applications is to indeed build

[1:06:33] uh houses in a flood plane uh and isn't

[1:06:36] it true based upon your experience as a

[1:06:38] town attorney that flood plane is going

[1:06:40] to cause harm to the public and also

[1:06:43] with regard to your uh uh the public can

[1:06:47] be harmed and also create a tremendous

[1:06:49] financial burden on the town with regard

[1:06:51] to this town uh harm to that can happen

[1:06:54] to the public that indeed that that

[1:06:57] indeed do you think based upon your

[1:06:59] previous experience as the town attorney

[1:07:01] whether indeed building houses in the

[1:07:03] flood plane is

[1:07:05] appropriate the again uh and I wanted to

[1:07:08] confirm for the record that indeed the

[1:07:10] zoning administrator said no to this use

[1:07:13] the uh you never bothered to go for

[1:07:15] before the Planning Commission uh and

[1:07:18] also you never bother to actually make a

[1:07:20] formal application to the Town

[1:07:24] Council the the uh the town then uh Town Council

[1:07:30] then passed a moratorium and and indeed

[1:07:33] uh uh I would ask your opinion based

[1:07:35] upon the Town Council whether indeed the

[1:07:39] uh planning the um uh board of appeals

[1:07:42] can indeed overturn a decision of the

[1:07:45] Town Council that that is who is the one

[1:07:48] who actually runs the town who's the one

[1:07:49] that makes decisions of the town and

[1:07:51] with regard to your uh definition of and

[1:07:55] your belief that indeed the uh board of

[1:07:59] appeals has these Powers which I'm going

[1:08:01] to get into in one minute that indeed

[1:08:03] they can overturn the Town Council uh

[1:08:06] I'm also going to be introducing um a

[1:08:09] new town ordinance that's going to be

[1:08:11] coming in dealing with critical area

[1:08:13] changes and then I'm going to ask you

[1:08:15] whether in your opinion based upon your

[1:08:17] experience that indeed the board the

[1:08:19] board of appeals can overturn the Town

[1:08:21] Council with regard to that uh uh

[1:08:24] critical area legislation since indeed

[1:08:28] uh this will affect any type of decision

[1:08:30] with regard to granting your application

[1:08:32] or granting your request by the board

[1:08:35] should the board even be reviewing that

[1:08:37] application uh or does the board can the

[1:08:39] board unilaterally just decide to

[1:08:41] overturn the Town

[1:08:47] Council indeed the um uh with regard to

[1:08:50] the evidence which has already been

[1:08:53] introduced uh indicating that the chair

[1:08:55] and Mr susman both agreed that you would

[1:08:58] be subject to

[1:08:59] cross-examination uh and now you've

[1:09:02] decided not to whether that indeed

[1:09:04] creates some type of um of um uh issue

[1:09:09] with regard to making sure the public is

[1:09:11] fully informed making sure the public

[1:09:13] does have an opportunity to participate

[1:09:15] since indeed you made that decision to

[1:09:17] swearing in at the beginning of the

[1:09:19] process and then suddenly at the end of

[1:09:22] this process you made the decision to

[1:09:24] indeed you were not under oath uh and

[1:09:27] obviously you were going to have to make

[1:09:28] the determination as to whether the

[1:09:30] public was indeed misled who misled him

[1:09:33] under what conditions were they were

[1:09:34] misled and indeed uh uh should issues be

[1:09:39] addressed with regard to the uh public

[1:09:41] being misled with regard to uh the fact

[1:09:44] that indeed they were informed as well

[1:09:46] as the fact under oath you swore and did

[1:09:49] the did the presentation uh and

[1:09:52] absolutely the uh ceremony of swearing

[1:09:55] in and then suddenly at the end of the

[1:09:58] case you decided to indeed make change

[1:10:00] your mind I would also want to make uh

[1:10:02] find out when exactly you decided to

[1:10:05] change your mind and if indeed the

[1:10:07] public uh uh was indeed intentionally

[1:10:10] misled as a result of that decision and

[1:10:13] the timings of those decisions uh next

[1:10:15] we want to discuss all the powers which

[1:10:18] have been uh enumerated to this board of

[1:10:21] appeals uh by you and apparently the

[1:10:25] powers are quite extensive as to what is

[1:10:28] happening uh in other words uh

[1:10:30] apparently the board of appeals has the

[1:10:33] power to order individuals to engage in

[1:10:36] certain acts I was unaware that the

[1:10:38] board of appeals had any power

[1:10:39] whatsoever to order any individual but

[1:10:42] apparently uh you you now do the power

[1:10:45] is to order Town officials to engage in

[1:10:48] particular acts the power over

[1:10:50] administrative agencies telling the uh

[1:10:53] Planning Commission what they can and

[1:10:55] can't do the power is to tell

[1:10:56] administrative agencies how to hear

[1:10:58] cases in other words you are now going

[1:11:00] to be telling them where how and where

[1:11:02] they can hear the case and what they can

[1:11:04] do the power to of the board of appeals

[1:11:06] that can tell administrative agencies

[1:11:08] how to rule on cases because it's

[1:11:10] presumed that indeed if you're telling

[1:11:12] them to hear the case then you're also

[1:11:14] telling them how they indeed can rule in

[1:11:16] the case and they must follow your

[1:11:18] instruction with regard to how they can

[1:11:20] hear a case the power to tell the

[1:11:22] administrative agencies how that they

[1:11:24] will hear cases on an expedited basis uh

[1:11:27] the powers that would require them to

[1:11:29] follow a particular

[1:11:32] law uh you know with regard to determination

[1:11:38] uh later it's been determined that

[1:11:39] indeed the board of appeals now has what

[1:11:41] is apparent revenue and taxing Authority

[1:11:44] as indeed Mr uh Blitz has informed the

[1:11:48] public and the Town Council that indeed

[1:11:50] uh revenue and taxing issues that may be

[1:11:53] occurring will now be coming through the board of appeals indeed that

[1:11:57] indicates that indeed the board of

[1:11:58] appeals now has revenue and taxing

[1:12:00] Authority which can be reviewed also

[1:12:03] based upon uh Mr um Fishman um um uh

[1:12:09] Fishman fish Fisher I'm sorry um that

[1:12:13] indeed the this board now has apparent

[1:12:15] authority over taking issues uh I would

[1:12:18] ask the Mr uh Blitz whether he is aware

[1:12:21] whether the board actually understands

[1:12:23] what taking issues are uh and also I

[1:12:27] would ask that indeed uh has has he is

[1:12:30] he aware of any possible issue with

[1:12:32] regard to taking of property that can be

[1:12:34] heard by an administrative board other

[1:12:35] than by courts um uh and also uh the

[1:12:40] general power of the uh of the board of

[1:12:44] appeals to overturn Town Council in

[1:12:47] making decisions which which without

[1:12:50] that determination to come first then in

[1:12:53] essence uh the rest of the uh this whole

[1:12:56] process becomes moot so in essence the the underlying decision that has to

[1:13:00] be made is that you have the authority

[1:13:02] to overturn Town

[1:13:06] Council uh I would ask Mr Blitz

[1:13:08] including the fact that um uh whether

[1:13:11] indeed uh these courts types of cases

[1:13:15] indeed should be handled in the courts

[1:13:17] or by the board of appeals if is by the

[1:13:19] board of appeals the uh I would ask why

[1:13:22] he's the one that chose the board of

[1:13:23] appeals obviously we're here because he

[1:13:25] chose them uh no one else chose them but

[1:13:28] him he's the one that made the decision

[1:13:30] and in essence uh I'm going to ask him

[1:13:33] why um uh and also I'm G to ask him the

[1:13:37] question of that something that was said

[1:13:39] earlier by the chair in in an earlier

[1:13:41] meeting we generally do not handle this

[1:13:44] type of case uh that's very prophetic

[1:13:47] and also the question is why are we here

[1:13:50] uh in doing this but again that was his

[1:13:52] decision to bring this type of case uh I

[1:13:54] would also ask him based upon his

[1:13:56] experience whether and I think he even

[1:13:58] brought it up tonight the board of

[1:14:00] appeals can interpret Supreme Court

[1:14:03] cases uh indeed many courts don't even

[1:14:06] uh interpret Supreme Court cases because

[1:14:09] indeed the Supreme Court interprets

[1:14:11] their own cases as opposed to an

[1:14:13] administrative agency uh especially uh

[1:14:16] lay preval on a board of appeals uh and

[1:14:18] then I would ask questions such as

[1:14:20] whether the uh board of appeals can uh

[1:14:24] indeed overturn decisions of the Town

[1:14:26] Council and whether he is aware of any

[1:14:28] other decisions to overrule those

[1:14:30] decisions of Town

[1:14:39] Council uh I would further ask him uh

[1:14:42] about the uh inth Authority uh that that

[1:14:46] he has that indeed is is being stated by

[1:14:48] Mr Blitz you know regarding that

[1:14:50] authority to make those

[1:14:52] decisions I would ask uh uh him that

[1:14:55] indeed uh if he was aware of my letters

[1:14:59] which have been in uh introduced before

[1:15:01] the board that are part of this record

[1:15:03] that indeed the uh being informed by the

[1:15:07] uh individuals from the town in other

[1:15:10] words the Town Council the zoning ad

[1:15:13] administrator and also the uh uh Town

[1:15:15] Administrator that indeed the board of appeals does not have this

[1:15:21] Authority whatsoever and that in essence

[1:15:25] uh the decision by this board of appeals

[1:15:28] to indeed overturn that uh uh those

[1:15:31] decisions and that information so in

[1:15:34] essence uh and also information that

[1:15:37] indeed make sure this board is on notice

[1:15:40] that indeed the proper authority to

[1:15:41] handle this type of jurisdiction if

[1:15:43] there is a claim by uh Roden reel would

[1:15:47] be the courts um that indeed that's

[1:15:50] what's going to be the true issue here

[1:15:52] uh because one way or the other it's

[1:15:54] going to happen you know that's what's

[1:15:56] going to happen here so in essence also

[1:15:59] uh I would ask Mr Blitz in essence if

[1:16:02] indeed the mechanism in which he he

[1:16:05] would think that the board of appeals

[1:16:08] would intend to enforce a particular

[1:16:11] order uh I think that would be very

[1:16:13] interesting that indeed how the board of

[1:16:15] appeals plans to enforce the order

[1:16:18] because if indeed they are try going to

[1:16:21] try to enforce it uh uh through the

[1:16:25] courts well then in essence that's what

[1:16:27] we've been saying that this proceeding

[1:16:29] should be in the courts the whole time

[1:16:31] and in essence the last 30 hours have

[1:16:33] been a complete waste of the Public's

[1:16:35] time and also as I put down it's

[1:16:37] basically becomes a sham because indeed

[1:16:41] it should have been in the courts to

[1:16:42] begin with and if you decide that indeed

[1:16:44] you have the power but can't enforce it

[1:16:47] then indeed Mr Blitz is indeed

[1:16:49] misleading the public and also the town

[1:16:51] uh the board of appeals so that's going

[1:16:53] to be interesting the way

[1:16:55] indeed uh the the uh board of appeals

[1:17:00] tries to enforce a particular order when

[1:17:02] according to the records that have

[1:17:04] already been submitted and are a part of

[1:17:06] this record both the zoning

[1:17:08] administrator the Town Administrator and

[1:17:11] the board of appeals uh and the Planning

[1:17:13] Commission uh intend not to follow your

[1:17:17] instructions because indeed you don't

[1:17:19] have the authority and it's going to be

[1:17:21] interesting to see what happens indeed

[1:17:22] when you make an order and it ignored by

[1:17:25] these by these uh

[1:17:40] agencies uh and then I would ask Mr

[1:17:42] Blitz which is an interesting question

[1:17:44] uh he has said a number of times that he

[1:17:46] believes that uh one of the powers that

[1:17:49] you have uh is to issue this permit

[1:17:53] yourself uh uh in other words don't make

[1:17:56] an order to someone else don't try to

[1:17:58] get someone else to to engage a

[1:18:00] particular act in which apparently he's

[1:18:03] saying with regard to all those Powers

[1:18:04] you do but in essence that that the

[1:18:06] board of appeals has the power to issue

[1:18:09] the permit themself uh and uh and I said

[1:18:13] it before and I'll say it again I

[1:18:14] encourage you to do it I mean if you got

[1:18:16] the power sign off on it and indeed

[1:18:20] issue these permits yourself okay now

[1:18:24] the downside okay which of course you

[1:18:25] haven't signed when you whenever you

[1:18:27] wish and everybody to sign off on them

[1:18:29] everybody up there to sign off on them

[1:18:31] uh because what's important if there is

[1:18:34] any exposure any liability or any issues

[1:18:36] the person excuse me uh sorry for

[1:18:39] interrupting but aren't these questions

[1:18:41] you're supposed to be uh posing

[1:18:43] hypothetically to Mr uh as opposed to

[1:18:47] making your argument your summation your

[1:18:49] closing argument okay well okay then I

[1:18:52] will redirect that question okay Mr

[1:18:53] Blitz has said a number number of times

[1:18:55] that indeed the board should indeed

[1:18:57] issue the permit okay and uh he has said

[1:19:00] a number of times and to move this along

[1:19:03] I agree okay indeed I agree and and as a

[1:19:06] proper to make sure the board is aware

[1:19:09] you know whenever you sign off on the

[1:19:10] permit it means that you are liable so

[1:19:13] indeed if anybody gets flooded if

[1:19:15] anybody gets harmed if anybody in

[1:19:18] essence uh uh is is in any way damaged

[1:19:22] as a result of these houses going in a

[1:19:24] flood plane it's not going to be the

[1:19:26] town it's not going to be the Town

[1:19:27] Council it's going to be the board of

[1:19:29] appeals okay and indeed he's the one

[1:19:32] requesting it I encourage you to do it

[1:19:34] indeed if you've got the power to do it

[1:19:36] we're we're going on and on with regard

[1:19:38] to this additional power that he says

[1:19:39] you have which that that's perfectly

[1:19:42] fine to do can you please direct this at

[1:19:45] him that's what the profer is right that

[1:19:46] no the profer was to you okay because

[1:19:48] indeed he wasn't going to know indeed

[1:19:51] whether you had the power to do this or

[1:19:52] the liability as a result of it purpose

[1:19:55] of what we're doing here is instead of

[1:19:56] cross examination you're giving a proper

[1:19:58] which are the questions you would have

[1:19:59] asked him I think addressing us

[1:20:02] completely different matter

[1:20:04] arew address that in make sure the board

[1:20:07] was informed with regard to that indeed

[1:20:10] they would be personally liable you know

[1:20:12] for the issuance of the permit that you

[1:20:14] suggested thank you um uh

[1:20:26] well I think those are the questions

[1:20:27] that I would have immediately for Mr

[1:20:33] Bliss okay um we

[1:20:38] are but on time so we are going to open

[1:20:41] the floor up to questions for Mr Blitz

[1:20:44] if you would like to leor announce your

[1:20:47] name

[1:20:52] and it's up to your judgment as to how

[1:20:55] you interpret them because we are

[1:20:57] allowing the public to ask you questions

[1:20:58] whether you interpret them as clarifying

[1:21:00] or cross- examinations is

[1:21:05] okay actually pause uh this been a

[1:21:07] little while let's take five minutes and

[1:21:09] do it again is that all right with you

[1:21:12] it it's only actually really

[1:21:15] quick I listening to here I find that if

[1:21:20] there was

[1:21:22] questions that they could be submitted

[1:21:24] to the board Bo and ask that way from

[1:21:26] the general public that that would be a

[1:21:30] proper way one moment

[1:22:05] unfortunately the questions have to be

[1:22:07] asked at this at this stage in our uh

[1:22:10] process there will not be a further step

[1:22:12] to ask questions of Mr blitz's

[1:22:14] presentation I'll take the five let's do

[1:22:17] five thank you

[1:22:50] way

[1:22:52] actually on or did I did go on

[1:23:02] vacation that was in

[1:23:05] Germany after was after your

[1:23:09] trip no it was fun River

[1:23:13] Cru

[1:23:22] Prague there

[1:23:34] was well Ed

[1:23:44] tourist one

[1:23:53] wall I have

[1:23:56] project you

[1:23:59] think to

[1:24:03] concentration oh that there was

[1:24:18] one and

[1:24:42] seven I really my

[1:24:45] no that

[1:24:58] inter

[1:25:26] all

[1:25:39] [Music]

[1:26:10] and I neighor we live about as far as of

[1:26:16] the building

[1:26:19] there

[1:26:21] research he's been on the board of

[1:26:23] recors the

[1:26:25] home a long time

[1:26:29] very so we work

[1:26:42] closely very

[1:26:45] person it's

[1:26:47] like job

[1:26:52] you go do

[1:26:55] now good C on

[1:26:58] you okay we will resume um once again

[1:27:01] members of the public if you have

[1:27:03] questions about um Mr blitz's

[1:27:06] presentation you may step forward and

[1:27:09] ask

[1:27:21] them um just to clarify these are just

[1:27:24] profer questions cuz he's not answering

[1:27:25] anything uh no he is he has license to

[1:27:28] answer if he so chooses he may blank it

[1:27:31] or individually

[1:27:35] however okay um to help you out Miss

[1:27:39] Blackwelder whether it's Miz or miss or

[1:27:42] um if you're asking me questions that

[1:27:44] are in the nature of

[1:27:46] cross-examination then I'm going to

[1:27:48] decline to answer them and you should

[1:27:49] profer you're asking questions about the

[1:27:52] General application our case

[1:27:54] what something that I would it's not a

[1:27:59] factual question but a question about

[1:28:03] the arguments that have been presented I

[1:28:04] can answer those so I don't I don't know

[1:28:07] whether you're trying to cross-examine

[1:28:08] me as a witness or you're just trying to

[1:28:10] ask the applicant questions about the

[1:28:13] presentation that's been made so far

[1:28:16] okay so so I'm not a lawyer so I

[1:28:18] wouldn't know the differentiation so why

[1:28:21] don't you ask them in all yeah um

[1:28:27] the first question is are you aware that

[1:28:29] the board of appeals does not have the

[1:28:30] power to rule on a moratorium would you

[1:28:33] agree with that no I would not agree

[1:28:35] with that it's a question of Law and

[1:28:39] that's I have

[1:28:41] said actually why don't you restate that

[1:28:44] question just to make sure I got it

[1:28:47] correctly Miss blackw Welter can you

[1:28:49] speak this way into the mic so we can

[1:28:52] all hear you could you excuse me while I

[1:28:54] get a piece of paper so I can read

[1:28:56] something from the

[1:28:57] code um it's right at the chair yeah go

[1:29:01] ahead I'll be right

[1:29:22] back excuse

[1:29:28] and I I apologize but there was no

[1:29:30] agenda posted for this and the last

[1:29:34] meeting I was under the oppression that

[1:29:37] Mr Woodburn was going to be questioned

[1:29:39] by Mr pounds and and not that Mr Donovan

[1:29:42] or Mr Blitz would be questioned by

[1:29:45] anyone

[1:29:49] um so I'm a bit unprepared for this

[1:30:12] okay

[1:30:14] um so 290

[1:30:19] d32e confines the duties of the board of

[1:30:22] appeals regarding interpret ation

[1:30:24] questions where it is alleged that there

[1:30:25] is an error made in the enforcement of

[1:30:29] this chapter meaning chapter

[1:30:32] 290

[1:30:34] so is the implementation or a

[1:30:40] resolution to have a moratorium on site

[1:30:43] plan development

[1:30:46] Within Chapter

[1:30:49] 290 it changed the effect of the section

[1:30:55] of the zoning code

[1:30:57] that applied uh required site plan

[1:31:01] review and required the zoning

[1:31:03] administrator to assist with site plan

[1:31:06] review and

[1:31:08] so the allegations made in in our appeal

[1:31:14] is that the board I mean the zoning

[1:31:15] administrator and the Planning and

[1:31:17] Zoning commission failed to follow that

[1:31:20] obligation in

[1:31:22] Reliance upon on a moratorium that had

[1:31:27] was first described as a temporary

[1:31:30] moratorium was then

[1:31:32] extended for an additional three months

[1:31:36] and then after that expiration and the

[1:31:38] comprehensive plan still had not been

[1:31:40] completed we waited 60 days to see

[1:31:42] whether our pending applications would

[1:31:44] be taken up I shouldn't say hour the rod

[1:31:47] and reel applications were taken up they

[1:31:50] were not I sent a letter to the zoning

[1:31:52] administrator and planning zoning

[1:31:54] commission demanding that now that the

[1:31:56] moratorium had expired by its own terms

[1:32:00] that they go ahead and do that that's

[1:32:03] already in evidence um

[1:32:07] that I received no response

[1:32:11] from

[1:32:14] um the zoning administrator Planning and

[1:32:16] Zoning commission um that is the rod and

[1:32:19] reel didn't we received a response from

[1:32:21] Mr pounds

[1:32:24] instead arguing that the moratorium was

[1:32:27] only terminable terminated at the point

[1:32:30] that the Planning and Zoning commission

[1:32:32] and the town administ uh I apologize the

[1:32:35] um Town

[1:32:38] Council uh said so uh or he didn't he

[1:32:42] didn't use those words I shouldn't say

[1:32:43] it but it's an exhibit so I can

[1:32:46] certainly read it if you want but that's

[1:32:48] what the case is about and so your

[1:32:53] question

[1:32:54] is whether it's within the scope of this

[1:32:57] board's authority to rule on such a

[1:33:00] matter on a moratorium correct well

[1:33:03] they're not ruling on the moratorium

[1:33:04] they're ruling on whether it was legally

[1:33:07] effective and therefore a justification

[1:33:09] for a a an adequate legal justification

[1:33:12] for not following the requirements of

[1:33:15] the zoning code which require site

[1:33:17] plan upon submission to be reviewed and

[1:33:22] considered so so it's

[1:33:24] not that the board doesn't have the

[1:33:27] authority to

[1:33:28] overturn an action of the Town Council

[1:33:30] that's not what it's what we're asking

[1:33:33] for we're saying that the re the

[1:33:36] moratorium that the Planning and Zoning

[1:33:38] commission and the zoning administrator

[1:33:39] relied upon for not filing the site

[1:33:41] plans was legally invalid and therefore

[1:33:45] their failure to follow the law was

[1:33:48] invalid in the same way that a board of

[1:33:51] appeals can uh review the

[1:33:54] constitutionality of a law um po versus

[1:33:58] Baltimore that I cited I believe at the

[1:34:01] last hearing of the hearing before um

[1:34:04] and so it's not that they're

[1:34:07] overturning

[1:34:09] the Town Council it's that they're

[1:34:12] saying that the effect of what the Town

[1:34:14] Council did was invalid and therefore

[1:34:17] the administrators were wrong in in

[1:34:19] relying upon it to fail to Grant the

[1:34:23] relief we were seeing seeking uh

[1:34:24] actually I shouldn't say Grant consider

[1:34:27] the applications process

[1:34:30] them nothing in our case presumes that

[1:34:33] they were going to necessarily grant

[1:34:35] them we didn't get them that

[1:34:39] review did that answer your

[1:34:42] question yes

[1:34:45] um did you ever challenge the Town

[1:34:48] Council and the mayor

[1:34:50] legally about the moratorium that you

[1:34:52] claim is

[1:34:54] invalid and do you have a document that

[1:34:57] this board of appeals can rely on

[1:34:59] stating that the moratorium is in fact

[1:35:04] invalid oh no there's not a document

[1:35:07] that would say that this that's what

[1:35:09] this case is turning upon is this

[1:35:12] board's determination we've made the

[1:35:14] arguments as to why it's invalid we had

[1:35:17] couple nights is on that Bas describing

[1:35:20] all the laws that come into play and why

[1:35:23] it was

[1:35:24] invalid um and I should mention that

[1:35:28] even after the moratorium expired the

[1:35:31] applications were not processed and

[1:35:33] therefore you've got a problem there as

[1:35:36] well

[1:35:38] um but um I want to make sure I'm honing

[1:35:42] in on exactly what your question is oh

[1:35:44] you asked me whether there's a document

[1:35:46] no there's no

[1:35:47] document and you asked whether we went

[1:35:50] to the Town Council no we didn't go to

[1:35:52] the Town Council there's no process for

[1:35:55] going to the Town Council in a zoning

[1:35:58] case or to contest their actions I did

[1:36:03] and this is already in evidence I'd have

[1:36:05] to site the exhibit but

[1:36:10] um I did send the mayor and Town

[1:36:14] Council a long letter explain a

[1:36:17] three-page letter it's already in

[1:36:19] evidence explaining

[1:36:22] why it was in appropriate to use a

[1:36:25] resolution uh to pass an ordinance and

[1:36:27] they had to use an uh pass a moratorium

[1:36:31] and that they had to use an ordinance

[1:36:33] that was sent to them uh prior to their

[1:36:36] action in adopting that resolution so

[1:36:38] they obviously disagree but no I we

[1:36:40] didn't go to the Town Council to do

[1:36:43] anything there's no process or procedure

[1:36:45] for

[1:36:47] that did you file a legal challenge to

[1:36:51] the moratorium against the Town Council

[1:36:52] and the mayor

[1:36:54] no and when you say we uh did I

[1:36:58] obviously you're talking about for the

[1:37:00] rotten reel I assume correctly yes sure

[1:37:03] you are your client

[1:37:05] um so are you asking the board of

[1:37:08] appeals to

[1:37:12] decide on the Merit of a moratorium the

[1:37:16] vity of a moratorium in the absence of a

[1:37:19] ruling on the moratorium

[1:37:25] I don't understand your question what

[1:37:27] ruling on the moratorium are you asking

[1:37:29] for or or referencing in your question I

[1:37:32] think that's more my point that there is

[1:37:35] no ruling on the moratorium

[1:37:37] therefore the board of appeals is being

[1:37:40] asked to decide and rule on the

[1:37:43] moratorium is that what you're asking

[1:37:45] them to do being they're as yes they are

[1:37:48] being asked to consider whether it was

[1:37:51] lawful for the Planning and Zoning

[1:37:52] administrator and Zoning administrator and planning

[1:37:57] and zoning commission to rely upon the

[1:38:00] moratorium which was invalid according

[1:38:02] to our theory of the

[1:38:05] case as an excuse for not following

[1:38:08] their statutory obligation to process

[1:38:10] site plans upon being submitted in

[1:38:14] addition the second part of the case is

[1:38:18] that they didn't provide that review

[1:38:23] even though the moratorium had

[1:38:29] expired

[1:38:31] so I don't know whether you're asking

[1:38:33] whether we have to go to court first

[1:38:35] that's a legal question no we don't have

[1:38:38] to go to for court first in in fact many

[1:38:40] instances we have to come to this board

[1:38:41] first to exhaust our administrative

[1:38:43] remedies before we can go to

[1:38:45] court we could have done a declaratory

[1:38:49] judgment action against the ordinance

[1:38:51] but we don't have to but you would agree

[1:38:55] that deciding the valid validity of a

[1:38:58] resolution to implement a moratorium or

[1:39:01] the legality of a resolution to

[1:39:03] implement a Mor moratorium is not within

[1:39:07] scope of this board I would not agree

[1:39:09] with that I would say it's absolutely in

[1:39:11] the scope of this board that's

[1:39:13] what the courts have held is that the

[1:39:18] predicate Acts or the legal uh legal

[1:39:22] basis for administ

[1:39:24] action if it's either unconstitutional

[1:39:26] or unlawful it's up to this board as the

[1:39:29] first body to take a ruling if such an

[1:39:32] appeal is filed we filed that appeal

[1:39:34] it's incumbent upon this board

[1:39:36] to decide whether we've proven our case

[1:39:40] if they do they're going to be the first

[1:39:43] they get the first crack at this and

[1:39:45] that exhausts our administrative

[1:39:48] remedies and you are asking that this

[1:39:51] board

[1:39:53] make that

[1:39:55] determination without your providing

[1:39:58] proof within your appeal that there has

[1:40:01] been a ruling by a body who is

[1:40:03] authorized to make that ruling on a

[1:40:05] moratorium there is no such body that

[1:40:08] makes that ruling that that doesn't

[1:40:11] happen

[1:40:13] there's we don't go and get a ruling

[1:40:15] about the moratorium and then bring it

[1:40:17] to this board we bring it to the board

[1:40:21] first they decide whether we're right

[1:40:25] that the moratorium was invalid and

[1:40:27] therefore the Planning and

[1:40:29] Zoning commission and the zoning

[1:40:31] administrator should have processed the

[1:40:34] applications or that after it had

[1:40:36] expired that they then should have

[1:40:39] process the

[1:40:41] applications and then we have asked for

[1:40:44] the relief to be crafted in response to

[1:40:47] that but you don't go and get a ruling

[1:40:50] then to then submit to this board

[1:40:52] there's no need to do that or requirement to do

[1:40:58] that or that I know of any way of doing

[1:41:02] that so you're saying that moratoriums

[1:41:04] aren't challenged in court they are yes

[1:41:06] you can oh no you can challenge a

[1:41:09] moratorium in court yes correct so that

[1:41:13] would be something that this board of

[1:41:15] appeals could require as proof to Grant

[1:41:20] your request which is a very big request

[1:41:25] um if they were to Grant what you're

[1:41:28] asking as part of your appeal no because

[1:41:31] we elected to file an

[1:41:35] appeal so that we exhaust our

[1:41:37] administrative remedies which is a

[1:41:39] requirement of Marilyn law in bringing

[1:41:43] certain

[1:41:44] cases so that's what we elected to do

[1:41:48] once we decide to do that the rod and

[1:41:50] Rio has the right for this board to make

[1:41:52] a

[1:41:54] determination about whether we've proven

[1:41:56] our case as I've said

[1:41:58] before what we've what we're alleging

[1:42:01] but you we don't have to go to any court

[1:42:05] or other body to get a ruling to then

[1:42:07] bring to this board of appeals in fact I

[1:42:09] can't imagine what we would then be

[1:42:12] asking of this board if that were the

[1:42:18] case do you have any document from Mr

[1:42:22] jabak was the zoning administrator at

[1:42:24] the time stating that the site plans

[1:42:27] that are subject to this

[1:42:29] appeal are

[1:42:33] complete I'm Sorry Miss uh black waler

[1:42:36] can you repeat that I didn't hear

[1:42:39] it my question

[1:42:42] was do you or your client have any

[1:42:45] document from Mr Chris chak the joning

[1:42:48] the zoning

[1:42:51] administrator um at the time of

[1:42:54] submission of these site plans that

[1:42:56] confirms that the plans that were that

[1:42:58] are subject to this site plan or I'm

[1:43:01] sorry that were subject to this appeal

[1:43:04] were

[1:43:11] complete uh my reason for pausing is to

[1:43:13] F figure out in my own mind whether this

[1:43:15] is getting close to cross-examination

[1:43:18] type question because it's acting asking

[1:43:19] a fact I think it would not and

[1:43:23] therefore she's just asking whether the

[1:43:24] applicant ever received such a a

[1:43:27] statement from Mr jabak and I would say

[1:43:31] no what we re the only response we ever

[1:43:34] received from Mr jabak about the

[1:43:37] applications was the exhibit that we

[1:43:39] filed which is the February 5th email

[1:43:42] telling us that they

[1:43:43] were well I'm not going to repeat what

[1:43:45] that document said that but that was the

[1:43:48] only communication we received from Mr

[1:43:50] jabak that I know of it's the only thing

[1:43:53] in evidence that's for

[1:43:58] sure so Mr jabak returned your money

[1:44:04] for filing the appeals but he did

[1:44:08] not indicate that they were complete now

[1:44:12] the the evidence shows that Miss wall

[1:44:17] returned

[1:44:20] the filing fees for the applications

[1:44:24] although she didn't return the one for

[1:44:26] Harbor Vista North which had been filed

[1:44:29] previously

[1:44:31] and Mr uh jabak would have or had

[1:44:35] nothing to do with that as far as I know

[1:44:37] I

[1:44:38] but that we submitted into evidence the

[1:44:41] letter from Miss wall returning those

[1:44:44] fees didn't it still means the

[1:44:46] applications are continued to be pending

[1:44:48] you can't just deny the pending of an

[1:44:50] application

[1:44:55] you have no way of knowing why Mr dubak

[1:45:00] did not bring those site plans to the

[1:45:02] Planning Commission yes we submitted

[1:45:04] that into the record it was the February

[1:45:06] 5th email that where he stated why he

[1:45:09] wasn't doing it he was saying that this

[1:45:12] was an unreasonable burden on the

[1:45:14] Planning and Zoning Commission in the

[1:45:16] town I mean if you want I'll get out the

[1:45:19] exact exhibit so that you can see it but

[1:45:22] that's

[1:45:23] that was the zoning administrator's

[1:45:25] position with respect to the

[1:45:27] applications it's exhibit

[1:45:32] 7 and that's what I'm referring

[1:45:35] to just let the record show that I'm

[1:45:37] showing Miss Blackwelder ex my copy of

[1:45:40] exhibit

[1:45:41] 7 and that was the only communication we

[1:45:45] received from Mr jabc that I'm aware of

[1:45:47] um with respect to the applications

[1:45:57] okay but this

[1:45:59] letter still doesn't say that a complete

[1:46:04] site plan package was correct I answered

[1:46:07] your question on that we never received

[1:46:09] a any confirmation or anything like that

[1:46:12] from Mr jabak about that it was never

[1:46:16] brought up correct so this this letter

[1:46:20] could just be giving you a heads up

[1:46:23] no it was telling us that a moratorium

[1:46:25] was about ready to be proposed it said

[1:46:29] that there would be a public notice

[1:46:30] going out they gave us the date of the Planning and Zoning commission's

[1:46:36] uh

[1:46:37] intended

[1:46:38] moratorium um and that that was the

[1:46:41] reason you know that the site that that

[1:46:44] was his response to the site

[1:46:47] plans the filing of the site plan

[1:46:51] applications okay

[1:46:58] so you said yourself Chris tobia cannot

[1:47:02] be subpoenaed is that correct my

[1:47:04] understanding is that nobody can be

[1:47:06] subpoenaed in this board okay and Chris

[1:47:09] tobc did not bring these site plans to

[1:47:13] the Planning Commission correct my

[1:47:15] knowledge no I mean we were never given

[1:47:17] notice of any hearing so when when the

[1:47:19] zoning administrator gets done their

[1:47:22] review

[1:47:23] actually I don't want to testify I'm

[1:47:25] just going to leave it at

[1:47:30] that

[1:47:35] so are complete site is a complete site

[1:47:39] plan package part of your submission to

[1:47:42] this board of appeals yes it's exhibits

[1:47:45] two and three I

[1:47:47] believe so exhibits two and

[1:47:50] three are site plans

[1:47:56] no I apologize exhibit two is

[1:47:59] the

[1:48:01] application because Sharon had it

[1:48:05] her exhibit one would have been the

[1:48:11] um the board

[1:48:14] secretary uh affidavit with respect to

[1:48:16] posting of properties and giving

[1:48:18] certified letters so exhibit two was

[1:48:22] that so let me move

[1:48:24] ahead

[1:48:39] to I apologize it's exhibits five and

[1:48:42] six five was the whole package of all

[1:48:45] the site plans in digital form and six

[1:48:49] was the actual form application

[1:48:55] so the

[1:48:56] complete

[1:49:01] package of your site plans have been

[1:49:04] submitted to this board of

[1:49:06] appeals and you are stating that that package constitutes a complete site

[1:49:15] plan package with everything per the

[1:49:17] code that would be required by the

[1:49:20] Planning Commission to review a site

[1:49:22] plan I'm not going to answer that

[1:49:24] because that's asking me to testify

[1:49:25] about the

[1:49:28] evidence I

[1:49:34] apologize is there something that you

[1:49:36] know of in the code that

[1:49:38] determines when a site plan package

[1:49:41] submitted to the zoning administrator is

[1:49:45] complete well there are standards in

[1:49:50] your zoning code that set forth what is

[1:49:54] supposed to go in an

[1:49:57] application that doesn't

[1:49:59] necessarily validate what we what the

[1:50:02] Roden reel filed as being complete but

[1:50:04] there are standards for what is to be

[1:50:06] included in a site plan yes that's

[1:50:08] listed and it's it's in a couple

[1:50:11] different sections because you would

[1:50:14] have a basic

[1:50:16] application you would have

[1:50:19] the requirements in your section on for

[1:50:25] category one site plans which all of

[1:50:27] these were and then all of these were

[1:50:30] critical area impacted by the critical

[1:50:32] area so that they also had critical area

[1:50:36] plans and program uh documents

[1:50:39] associated with the compliance your or

[1:50:42] the town's ordinance provides those

[1:50:45] required elements of a site plan yes it

[1:50:49] doesn't but there's nothing in there

[1:50:50] that confirms that what we filed meets

[1:50:52] that I'm just saying there are

[1:50:57] requirements so

[1:50:59] if Chris chubak made the determination

[1:51:03] not to bring your site plans to the

[1:51:06] Planning

[1:51:08] Commission at any

[1:51:11] point it feasibly could have been

[1:51:14] because he did not feel like they were

[1:51:17] complete enough for the Planning

[1:51:20] Commission to act on them well you

[1:51:23] normally if a zoning administrator felt

[1:51:25] they were incomplete they would let the

[1:51:27] applicant know whether they're he never

[1:51:31] told us that they were incomplete or

[1:51:33] alluded to it or said you you're missing

[1:51:36] something there was no correspondence

[1:51:38] other than the one I've handed you which

[1:51:40] was

[1:51:41] exhibit one seven so that's the only communication

[1:51:47] we receive from Mr jabak so I don't I

[1:51:50] don't have any basis to believe or

[1:51:53] there's nothing in our evidence that we

[1:51:55] presented to the board that suggests Mr

[1:51:57] chubak was considering those

[1:52:00] questions correct there's nothing in

[1:52:01] your evidence

[1:52:04] however this board does not have the

[1:52:08] capability of

[1:52:10] subpoenaing Mr

[1:52:13] jabak and getting his testimony on this

[1:52:17] topic I understand it correct and I

[1:52:20] would point out that neither did we

[1:52:22] because there'd be a whole lot of

[1:52:23] questions that I would have been able to

[1:52:25] ask Mr jabc that support our

[1:52:29] case right

[1:52:32] um I believe that a court would be well

[1:52:36] suited to facilitate that

[1:52:40] process so just to summarize you did not

[1:52:45] challenge the moratorium legally never

[1:52:48] you never challenge the moratorium

[1:52:49] legally but the legality of the mor

[1:52:52] atorium is a key component of your case

[1:52:56] I would phrase it differently than

[1:52:58] you're asking it this is a legal

[1:53:00] proceeding we are challenging it in a

[1:53:02] legal proceeding it's a required

[1:53:04] proceeding to exhaust our administrative

[1:53:08] remedies

[1:53:10] so your

[1:53:12] first premise was that but but if you

[1:53:16] are using that term to mean we didn't go

[1:53:19] to court about the moratorium first

[1:53:23] that I can confirm I've already answered

[1:53:25] that for

[1:53:27] you are you aware of a section in the

[1:53:32] board of

[1:53:33] appeals uh in

[1:53:38] 290

[1:53:43] um-

[1:53:46] 32 I'm going to apologize I can't bring

[1:53:49] you to the correct spot but I believe

[1:53:51] that appeal there's a a requirement for

[1:53:53] an appeal to be filed within five days

[1:53:57] so did you file an appeal to the board

[1:54:00] of

[1:54:01] appeals by February 10th

[1:54:06] 2021 no and you can't set a deadline

[1:54:11] based upon the non-action or inaction

[1:54:14] anything that's an inaction

[1:54:17] of the administrator continues and so it

[1:54:23] any any requirement that you file an

[1:54:26] appeal within a certain period of days

[1:54:29] has to be predicated upon that action

[1:54:32] being determinable as to when it

[1:54:36] occurred the cont it's been a continuing

[1:54:39] violation up through this date that the

[1:54:41] applications filed by the rod and reel

[1:54:43] have not been processed by either the

[1:54:45] zoning administrator or the Planning and

[1:54:47] Zoning commission despite the moratorium

[1:54:50] having clearly expired

[1:54:55] okay so was the

[1:54:57] inaction that you are agreed

[1:55:01] by did that occur

[1:55:06] before had it occurred by February 5th

[1:55:11] 2021 when this letter was sent to you

[1:55:27] probably not it

[1:55:30] would the

[1:55:33] obligation

[1:55:35] for the review of critical area site

[1:55:38] plans is 60 days following the filing of

[1:55:41] the application so it's possible that Mr

[1:55:45] jabak wrote that letter saying that they

[1:55:48] would pass a moratorium well it's quite

[1:55:51] possible they didn't they wouldn't pass

[1:55:52] the

[1:55:53] moratorium and so 60 days could be the

[1:55:58] deadline for then processing the

[1:56:00] applications if the either the Planning

[1:56:02] and Zoning commission had decided not to

[1:56:04] recommend it or the Town Council decided

[1:56:07] not to pass such a moratorium then the

[1:56:11] rod and reel wouldn't necessarily be AG

[1:56:12] grieved until the deadline for

[1:56:14] processing applications in my opinion um

[1:56:18] just

[1:56:20] because the mere statement that they're

[1:56:22] going to do

[1:56:24] that moratorium isn't sufficient so what

[1:56:28] was the

[1:56:30] date of

[1:56:32] inaction that you are basing your

[1:56:35] appeals case on that was filed within

[1:56:38] five days of that inaction up through

[1:56:41] and including today's

[1:56:42] date what was the start date start date

[1:56:46] the start date that been January

[1:56:49] 209th of 2021 when we filed the

[1:56:53] applications I suppose if you're looking

[1:56:54] for a start

[1:56:57] date but I don't know so if that's the

[1:57:01] case did you

[1:57:03] file an

[1:57:06] appeal by February

[1:57:09] 6 no we did not of 2021 no we did

[1:57:14] not this this appeal was filed

[1:57:28] on June

[1:57:30] 24th

[1:57:36] 2022 and it was filed time in a timely

[1:57:41] fashion

[1:57:43] basically any

[1:57:45] correspondence that occurred up to June

[1:57:49] 19th 2022

[1:57:54] is potentially just

[1:57:56] correspondence and there was a certain

[1:57:58] action

[1:57:59] on by June

[1:58:02] 19th

[1:58:05] 2022 that caused you to file an

[1:58:09] appeal oh are you're asking what caused

[1:58:11] us to file the

[1:58:13] appeal the appeal is required in five

[1:58:16] days by the code your your case not accepting the that it

[1:58:22] requires 5 days but I can say any

[1:58:25] deadline for filing an appeal or action

[1:58:29] where it's involving inaction continues

[1:58:31] so long as the inaction continues our

[1:58:33] appeal involves the allegation that

[1:58:35] Planning and Zoning commission and the

[1:58:37] zoning administrator have failed to meet

[1:58:38] their statutory obligation to process

[1:58:41] the site plans they have failed up

[1:58:42] through and including this date the

[1:58:44] reason we filed this

[1:58:47] appeal was we received a

[1:58:52] letter which is already in evidence from

[1:58:55] Mr pounds saying that the

[1:58:58] moratorium continue to exist even after

[1:59:01] we thought it had

[1:59:03] expired and we said enough is enough

[1:59:07] we're going to take this to the board of

[1:59:11] appeals so you are asking the board of

[1:59:14] appeals to decide on the moratorium you

[1:59:16] didn't challenge the moratorium legally

[1:59:19] Court moratorium to court okay already

[1:59:22] answered

[1:59:23] that I've said we are using the legal

[1:59:26] process that's allowed under Maryland

[1:59:28] law and that includes bringing the

[1:59:29] action to this board of appeals that's

[1:59:31] what we're doing and it's based on a

[1:59:34] moratorium for what you never filed a

[1:59:36] legal case against that's true but we

[1:59:38] don't have to file a legal case against

[1:59:41] to challenge it before this

[1:59:43] board but you would agree that the board

[1:59:47] would somehow have to find

[1:59:52] that moratorium to be legally invalid

[1:59:55] and they are not that is not within the

[1:59:57] scope of what they decide no it's

[2:00:00] absolutely in the scope just like just

[2:00:03] like if we were challenging the

[2:00:05] constitutionality of the action that is

[2:00:08] something that can be brought to this

[2:00:09] board in fact the law is in many

[2:00:13] instances it must be brought first to

[2:00:15] the board po po versus Baltimore was the

[2:00:18] case that started it this is very old

[2:00:20] foundational law of Maryland where they

[2:00:22] wanted to challenge the

[2:00:24] constitutionality of a Baltimore City

[2:00:27] Zoning

[2:00:29] action and the court said no you've got

[2:00:32] to take that first to the board of

[2:00:35] appeals let them decide the issue

[2:00:39] first and even in that case as I relayed

[2:00:44] to the board when I brought that case up

[2:00:49] before the

[2:00:53] party seeking to declare the law

[2:00:56] unconstitutional argued before the court

[2:00:59] that a board doesn't have the authority

[2:01:01] to declare something

[2:01:03] unconstitutional they rejected that said

[2:01:05] no they

[2:01:08] do so that specific point was brought up

[2:01:12] so I don't want to interrupt this I find

[2:01:14] this actually very very good question um

[2:01:17] but we are at time um would you like to

[2:01:21] continue this

[2:01:22] where we leave off during the next

[2:01:23] session or should we give you a couple

[2:01:24] more minutes now I appreciate that

[2:01:28] this this I appreciate the time you've

[2:01:31] given me and the time you've taken I'd

[2:01:34] like to turn it over to the lawyers now

[2:01:36] and

[2:01:38] um I do appreciate it thank you as you

[2:01:41] know I think

[2:01:44] that this is a little bit out of scope

[2:01:46] for the board of appeals and and the

[2:01:49] process doesn't

[2:01:53] uh lend itself to this gravity of

[2:01:56] decision but I do appreciate your time I

[2:01:58] appreciate what you're doing thank you very much remind the public

[2:02:01] that if you if you want to um speak

[2:02:04] outside of the context of what Mr Blitz

[2:02:06] or Mr pounds presents you will have an

[2:02:08] open microphone once they've completed

[2:02:11] which case you can State your own

[2:02:12] expertise even if it you know

[2:02:14] tangentially related to what's been

[2:02:18] provided yes we are going to resume this

[2:02:20] if you have a question for Mr Blitz and

[2:02:22] that will

[2:02:24] be on August 19th 2024 at 6: p.m. um

[2:02:30] sorry not 6 p.m apologies 6:30

[2:02:32] p.m. um the plan is to uh ask questions

[2:02:36] of of Mr Blitz as long as long as there

[2:02:38] are questions available um and at which

[2:02:41] point it will go over to Mr pounds for

[2:02:43] his

[2:02:46] presentation I said what

[2:02:50] I August 9 18 6:30 p.m. yes

[2:02:55] I you will be first first in line uh

[2:03:00] next time okay um un is there any urgent

[2:03:05] business any board members would like to

[2:03:07] bring up this

[2:03:09] point hearing none uh at this time I

[2:03:12] will entertain a motion to adjourn until

[2:03:14] August 19 20124 at 6:30 pm I will make a

[2:03:18] motion to adjourn have a second second

[2:03:20] all in favor hi right this motion is

[2:03:23] adjourned thank you

[2:03:45] everybody hope you guys

June 18, 2024 Board of Appeals Rod n Reel Con't Hearing

Transcript