that's one too Sharon I good all right welcome everybody this is the
call to order for the chese beach uh
board of appeals June 18th
2024 uh as a brief introduction we're
here today to uh start with some
administrative business meeting minutes
and receip of comments uh followed by
allowing questioning of Mr Donovan and
Mr Woodburn by folks who have not
already done so um then questioning of
Mr blitz's presentation uh and if all
that wraps up in time we will begin Mr
pound's presentation
by house uh we start with the roll call
I will go around please announce that
you're present Mr Richard Burch present
Mr Paul dhy present Everett present I am
Mr we have a quorum uh we will start
with the approval of the meeting minutes
for case
20233 from the May 29th session both
open and close uh does any board member
have issues with the meeting minutes
they were
provided hearing none uh I will
entertain a motion to approve the
minutes I will make that motion have a
second second all in favor I right
approved um okay the board uh is in um
board acknowledges uh receipt of
rebuttal
submissions um in this case for case
2020 uh
303 uh regarding exhibit 70 uh we re
reiterate that the board has read them
and we'll take them under
advisement uh Sharon have we received
any other public com ments no you okay
we continue on
um you mind
proving oh that was his okay yeah all
right um okay um we continue with case
20233 Rod real Incorporated Don Estates
LLC to consider an application from the
rod real Donovan Estates of 4160 M
Avenue uh Chesapeake Beach Maryland for
decision on interpretation or Alle
alleged error to article 6 section 29023
29031 A1 and A6 of the chese beach
zoning ordinance and uh C309 c310 and
c311 of the Chesapeake Beach Town
Charter applicant requests that the
Chesapeake Beach zoning board of appeals
to quote order the zoning administrator
and planning and zoning commission to
immediately commence and prioritize the
processing and review of the relevant
site plan submitted by Rod rail
Incorporated Donovan Estates l
and that the zoning administrator and
planning and zoning commission be
ordered to apply the zoning ordinances
in effect as of January 29 2021 when the
applications were submitted and for
other uh and further relief as the
nature of their cause
requires okay uh we are going to move
into a bit of question and answer um I
understand that Mr Woodburn needs to
leave a little bit early so we will
start with him um this is for anybody
who has not already questioned Mr
Woodburn um if you would like to
uh please step forward and announce who
you are who you represent and enter your
name and address on the signing sheet um
and then we will ask the witness to
respond to any questions into the mic
next to Mr
Blitz Daniel
deal uh I do have questions but until
the previous correspondents have been
replied to I'm uh would hold my question
so the the problem is that I think this
is the only time we we've asked the
witness to come back here um kind of out
of turn so to rectify um some confusion
on behalf of the public who didn't who
weren't clear that they were going to
get to ask him questions um so I cannot
he's he's come back today voluntarily um
and I'm not sure if we will be able to
provide him again later so um if you
have questions for the testimony Mr
Woodburn provided you're welcome to ask
them yeah but I understand but I mean
the even now allegations of towards
board I I I I think
it yes I do but not at the price that it
it's a it's just a if the board is going
to be threatened with a lawsuit if they
were to look at it I don't see how me
just a general person from the public
that has no relation to a new of it
that's just an observant could find any
protection I hear
you he did this did you say your name
Dan thank you um yeah we at this there's
going to be more time to talk about
concerns of the public during the public
session um this is specific to
information Mr Woodburn provided so
you're welcome to bring that up again um
is there anybody else who would like to
ask questions to Mr
Woodburn can you confirm that you have
not already questioned Mr Woodburn dur I
have not I think I only question West
Donovan though though I uh would take
offense to to that you haven't you
haven't held anybody else accountable to
certain Rules and Things so you would
say that I wouldn't be able to question
Donovan again as it is I don't have any
questions for him but no I I have not uh
questioned the
engineer no
see yes okay so Randle Gman 3248 Ana
Chase chese Beach Maryland
I have been sworn in
before I don't know if I need to can you
hear me
okay
so Paul um so so uh you were the town
engineer were that was that full-time or
part-time uh part-time part time and and were you the town engineer when the
projects before the board of appeals
were
submitted to the town the projects that
are currently in yeah no so you weren't
the town engineer at that time
no so they didn't have a town engineer
uh they have I I don't want to speak for
the town but I believe it's Wayne Newton
is the town engineer at that time
yes so so you were not the town engineer
when these projects came came in you
were not under any you weren't being
paid by them at any
time
okay most of my questions were based on
that so
um so when you went before the Planning
Commission uh you were just talking
about the project from uh from the
standpoint of RNR not from town engineer
you were you were not the town engineer
we didn't get to the Planning Commission
you didn't no uh so you just helped uh
develop the uh drawings and such so
that for this for this current here yeah
for this current hearing um the uh plans
never made it to the commission they
didn't get reviewed way I understand it
so it never made it to that level okay
so when these plans were originally
submitted back
in January 29 2021 2013 or no oh no e
plans yeah here when plans were origin
when the when when the first plans were
submitted uh for these Pro projects were
you the town engineer at that time so
you're saying when there was previous
submittals on these projects not not the
current application yeah this was a
reapplication right the other one went
away the other approval went away in
2018 right yes I was engaged on projects
for the town yes so you were engaged on
projects for the town and you were also
working on the uh these projects as well
uh for this
company um I could yeah probably yeah
okay back
then when when when uh so when these
were submitted to the town you were the
town
engineer uh I being paid by the town yes
to do Town Projects but not the not
these projects not new developments not
these projects these projects would be
reviewed by the zoning administrator
okay it's not me
yeah okay let me see if I have any other
ones that kind of U clarifies it
out all right
thanks anyone else like to step forward
and ask questions of Mr
Woodburn or any board members as well
no I'm just trying to remember but you
were saying you have said in the past to
correct me if I'm wrong that when these
plans came in there was another engineer
you were unsure of who it was that was
dealing with these plans at that time uh
I believe is Wayne Newton
but they never got reviewed so I never
got anything formal back right some of
these plans were developed earlier than
2021 they were there were carryover
aspects right and you worked for you
were saying you worked for the town at
both times so there was previous
approvals on these sites not the current
application you this current application
things changed uh but the uh previous uh
plans that you know my office would have
prepared um they would have been
submitted to the zoning administrator
and who they when I say they mean the
town and the zoning administrator used
to review the plans I I'm not 100% sure
but I can remember Chris jbak he's the
zoning administrator at the time um and
Bill Watson he was the zoning
administrator before Mr
jabak um and they did have other uh
reviewers uh that the town engaged but I
don't remember all of them
all right thank you Mr Woodburn thank
you safe to release him yes have a good
trip yeah
appreciate um now the same thing we will
take questions of Mr Donovan if you have
not already asked Mr Donovan questions
during his previous
testimony please step forward announce
your name enter on the signning sheet
none do I have to do the same thing or
it's same same
issue Daniel Deval previous
Reserve uh any board members have oh
apologies apologies
questions of Mr Donovan yes uh if you
didn't announce your name if you would
my name is Laura Blackwelder 3256 Canon
K Court J Beach Maryland
20732 I just go ahead and start oh yeah
one
okay have my written questions with
me um
Mr Donovan hello hello uh you had prior
approvals to this during the 2010
comprehensive plan
correct for for all of these site plans
or which ones did you have approvals
for it it definitely wasn't all of them
um and in
2010 we now this is you're tested in my
memory because this is 14 years
ago
so I don't think we had approvals for
any of them I think the previous owner
of harba Vista North might have had one
when they owned the property and it stet
it it was not
um it was not for the 11 tow houses it
was a totally different design and
development but that's really tested my
memory there okay so your testimony is
that none of these particular projects
have ever had approvals no that's not no that's
yeah
appr okay I ask a different question
maybe I'll rephrase it thank you yeah
um which of
these um proposals that as part of your
appeal are you claiming has had previous
approvals
um the the same thing applies going back
to my knowledge
Harbor now let me think Harbor Vista
South was previously
approved in 2016 but I think the design
changed um
but it nothing that we submitted
in uh January of
21 was exactly the same as the previous
approvals okay so basically anything in
this appeal that
claims
that these should have been approved or
the your owed
money um because these were previous ly
approved or somehow you were wronged
because at one time these were approved
and now they're not um and we tar and
the Planning Commission was targeting
you during comprehensive
planning couldn't be true I don't think
we question just too many C well we've
never made any of those claims but
you're talking about Miss Blackwater
there there's a lot of um arguments a
lot of arguments have been made that
these have been previously approved and
therefore it is logical to now approve
them
again um
so that's okay I I you don't have to
answer that my question to you
is if some of these were approved
previously why did you not go through
with your
development I'm pretty sure I've already
testified on that same exact question
you have but you should be allow be
required to ask answer that of Miss
Blackwelder when she crosses so um it
was the financial
crisis um was was definitely part of it
and then with Harbor Vista South um when
we got that
approval the
construction delays and then I believe
we were delayed by um I think it was
Army Corps of
Engineers on some of the approvals at
the Ry re Resort
Redevelopment
um it we were using that lot as parking
for our customers and
employees just like we were at harb of
Vista North and harb of Vista
West um and those delays allowed for the
uh Harbor Vista South
um approval to
lapse
um and Harbor Vista self as the only
site plan that you are claiming had
approval at any given time no I I didn't
say
that
okay
if you while you let your approval
elapse MH did you you
revise any other approvals or submit for
any other approvals did you build
something else instead of following
through with what you had approval
for we haven't built
anything in the zoning you built the rod
and re
Resort well I'm talking about these sure
talking about on these five Parcels um
and the zoning changed during the course
you know so we haven't built
anything right so you had approvals
which gave you the
opportunity to act on your
approvals however you decided to build
something
else is that
correct and you acted on those approvals
instead
um again we didn't build anything on
these five parcels
correct but you did have the opportunity
to build are you asking if we were still
cooking french fries and at the
restaurants yeah we were doing both at
the same time putting heads in beds so
you know I I'm not too
sure you
know we got the approval for the rod re
development in 2016 the
Redevelopment and we mve forward with
that
right you moved
forward and you
revised
correct yes and when you revise did you
not add 13 or 14 hotel rooms and double
the the space of your gaming facility No
Object just because she's asking about a
development that's not the subject of
any of these applications it just is not
relevant
she's asking about the rod and real
Redevelopment that's a total it's not
subject to this hearing I think that
this speaks for development within the
town and
by you know your client I personally
think it does you know have some kind of
relevance at least to be able to hear
it fair enough uh the objection is
overrule you may uh restate and answer
the question
so my question
is you had
approvals or you're claiming you had
approval for Harbor Vista
South and you knew that comprehensive
planning was
happening and you knew that there were
concerns about um capacity and things
like that and you you obviously knew
that there was
a expansion of the gaming
Hall and an expansion of the
hotels at the Roden reil site so
wouldn't it have been logical to assume
that during comprehensive
planning the town might need to adjust
to those things
and why didn't you move forward with the
approvals that you had when it was such
a risk
well I
think you stated a whole lot of opinions
there not relevant facts concerning the
Roden
Redevelopment and I don't remember what
exactly the um traffic study
said
um but we did do a traffic study when we
got the approval for the rotten re
Redevelopment and
um harva Vista South as well
and I the the wastewater treatment plant
at the time has plenty had plenty of
capacity as it still does
today and the traffic studies showed
that um traffic would not be a problem
once route 261 had the left turn
lane um built and the bridge got wider
but uh every everything
else um in your question
was was definitely more opinion than
what what I
recall but I hope with the traffic study
and the treatment plant having the
capacity answers your
question and so the traffic studies from
the previous approvals did
not account for
the double size of the game room or 14
extra hotel
rooms and your traffic studies for these
approvals were sub were taken during Co
is that
correct
um well we never submitted that well I
shouldn't say because I'm not too sure
if we submitted a traffic study with
these five sight plans um I think what
we did was an amendment because the
hotel
Redevelopment wasn't isn't complete yet
so um but you keep saying we doubled the
size of the game room and that's that's
um not true we we
are we're allowed 278 machines and
that's all we have and that's all we had
so we we did not double the size of the
game
room
so and then
um I I don't
uh I don't know if that answers your
question or not
but well the the capacity of your
building would be based on the the
square footage of your rooms
no it's it's based on seat count
and you're saying the capacity of your
building only accounts the seat count of
the machines that you have is that what
you're claiming under
testimony I don't really know what the
relevance is of this we're talking about
the board of appeals for the five site
plans so if I could
just intervene to
help the calculation of capacity for
what purpose so there's a calculation
for the purposes of determining the uh
off street parking requirements there's
a requirement for the edus that may be
necessary there's different requirements
under building codes for Life
Safety the all of the different uses at
the resort property have different
methods of calculation so I'm just
offering that to help you ask the
questions I think think you're trying to
get to so when you if you're talking
about the gaming room then you could
just focus just on the gaming room but
obviously the whole property has many
other uses that also have different
methods of
calculation
sure um and I don't want to make this
too
painful my question is very simple
um the traffic studies that you
submitted
were they
current did they well first of all were
they taken during Co during the covid-19
pandemic um like I said previously we
did traffic studies in
2016 I don't recall if we um actually
amended those in 2020 and they were
included in the site plan we submitted I just don't
recall okay so if but this the original
traffic studies were done in
2016
now I will say the bridge we didn't have
a new bridge yet in town but the traffic
study did account for the new
bridge
okay so comprehensive planning was done
during covid-19
and it had started before then but sure um your plans were submitted during
the
pandemic and you
were
aware
that the Planning Commission had
concerns about
traffic is that
correct um I understand that to be true
yeah okay so is
could you have expected the Planning
Commission to
approve high capacity
development in light
of everything that was coming that
everything that had come to the town
since a last comprehensive planning
period I object I don't see
how her mind she was the planning ising
at the time I don't see how he can
answer for her she's got can what she
I'll
rephrase um she can ask the question we
don't know her expertise of her was on
the planning zoning at that
time she she has the open floor to ask
her questions
until do you mind rephrasing the I'll
try I wish I brought my uh picker
question excuse me Mr Donovan can you
please speak into the mic speak a little
louder I'm having difficulty hearing you
yeah yeah
absolutely can you rephrase the uh sure
um can you imagine a scenario where a
Planning Commission might not want to
approve a high capacity
development with traffic studies that
were taken 10 years prior even if
amended
when they have no ability to gauge the
traffic based on new development that
has occurred
during previous 10 years calling for
speculation it's just not an appropriate
question
sustained were you aware that site plans
expire and
that once you have a
approval and authorization I think you
had authorization for an extra year to
entertain your
approval were you aware that it could
potentially
expire
yes and when you decided to let it
expire were you aware that there was a
risk that it would not get
approved afterwards
at that time no because the zoning was
still in
place now if the zoning changed well
then yes obviously but at the time that
they expired the zoning was still the
same so I I would have no reason to
think
otherwise but you do understand and you
did understand what comprehensive
planning does
correct yeah you've had rezoning occur
in town before that you knew of is that
correct too yes
okay no further
questions so I had voiced my concern and
the reason I had voiced it is because
there might be something said uh when he was asked
questions uh that made me want to ask
another question and actually I really
have only the same questions from the
first
time are you gonna allow me to ask him
you're gonna ask him the same question
you asked him during his original
testimony
uh about this I'm gonna ask about some
things she just talked
about No Object because the ruling was
we were only taking people that had
previously not had a chance to ask
questions Mr getman has asked questions
yes otherwise we'd open a door I agree
I'm sorry you cannot ask answer or ask
okay I just want that on record on the
record all
right uh anyone else want to question Mr
Donovan board
members two questions
um I have two questions for you
um with these properties I know I had
asked you before um if anything else had
happened with these properties but did
you were any of these properties do you
ever try to sell them or use them for
any other purpose than what you what
you've had
planned no no okay and um the attorney
that was here the other week um said he
was an expert on imminent domain you had
expressed that right that was in our
he didn't say he was an expert he can't
say he's an expert attorneys can't hold
themselves out as an expert okay so
that's Amy terminology that he focused
on that field or for the termin wasn't
iment I mean it was a taking it's a
different type of
law
um the note the minutes and what we said
is that he specializes in the area of
emminent domain an inverse
condemnation Mr Blitz is that accurate I
believe he did say that okay so but he
wasn't I think Mr pound's point is
nothing in this case is about eminent
domain that is he may he may have been
saying what he test what he practices
What fields he is Mr pound is correct
none of his testimony was about eminent
domain it was about takings I understand
that however if he is serving as Co
counsel and that is a specialty Mr
Donovan you had stated before that the
reason why you then put in your claim in
2021 is that the Town Council had had a
meeting and it sounded like they were
going to have that they were considering
eminent domain of your property and that
concerned you and therefore you put in
the paperwork with these applications
did you then confer with your Council
regarding that objection with respect to
asking about conversations with Council
okay that's privilege but you're fine
until you said that last bid it was all
fine how do you okay I I know how to I
just found I think what you were talking
about is when the Planning
Commission um was talking about stets
and those two Parcels that had been in
our family since
1936 and making those a park that's what
I was talking about and they said it on
more than one occasion
um I think that's what you're referring
to yeah it just it piqu my curiosity
when that that's the cause of us
submitting the site
plans I think that's I
have all right thank you Mr Donovan sure
all right
okay um so at this point it will be more
of uh blanket questions for Mr blitz's
presentation um we'll be following the
same guidelines established during our
last session with Mr flip Fisher the
line between cross- examination
clarifying questions isn't something the
board feels comfortable delineating the
board has decided to allow questions
this is not a court of law if lawyers
feel that this violates their
professional code of ethics they must
use their judgment as to whether they
can answer the question if one or more
questions are declined to be answered
the presentation will remain in the
record and the record will reflect a
refusal to answer questioner may profer
as to what questions would be posed if
given the opportunity same rules
um Mr BS would you like to start
questions if I could be heard first oh
go ahead so you had
asked for Council to come up with
adequate
procedures for having me testify in a
case in which I am the
attorney um and as I noted with respect
to Mr fiser at the last hearing it's
against the rules of professional
conduct to act as an attorney in the
same proceeding that you are testifying
for on issues that are
contested I'm going to read you the
section of the professional rules of
conduct so
you understand it it's rule
19-33 point7
and it says attorney is witness
subsection
a an attorney shall not act as an
advocate at a trial in which the
attorney is likely to be a necessary
witness unless the testimony relates to
UNC an uncontested
issue the testimony relates to the
nature and the value of legal services
rendered in the
case or the disqualification of the
attorney would work substantial hardship
on the client subsection B attorney May
advocate in a trial in which another
attorney in the attorney's firm is
likely to be called as a witness unless
precluded by rule
19-31
D7 as I've stated repeatedly I have not
acted as a witness in this proceeding
but as an attorney making a presentation
that included arguments about the
relevance of the documents the
documentary evidence that we had or
the statutes that I'm directing your
attention to that's not testimony none
of that's in my personal
knowledge personal knowledge is somebody
called me and I tell you what they said
or I I tell you what they said only I
would have that
knowledge that would be testimony I
haven't given any of that
and for example when I submit the
records of the minutes of the meeting of
the Planning and Zoning commission or
the Town Council which we've had plenty
of as an exhibit that doesn't mean I'm
the sponsoring witness who has personal
knowledge of those proceedings I wasn't
at most of those proceedings probably
the document submitted is the evidence I
as a lawyer offer them as Government
documents which even in a courtroom are
come in under a hearsay exception is
government
documents and this hearsay doesn't apply
in this proceeding anyway
my point is that in offering those
documents I'm not acting as a witness
but as the lawyer and when I explain
what the laws are as you know from all
our previous hearings when I'm telling
you directing your attention to various
Charter Provisions or iite a case or
describe what happened in that case in
the
decision I'm not testifying I'm acting
as any lawyer would in presenting you
the law that I think is relevant to this
case
now I should have known when Mr pound
started making statements in the middle
of my
case which was back in February he
started saying there was half truths
being said and those half truths I
believe related to my statements about
his
letter which I literally just read into
the record and then it got converted
into a whole question of whether I had
ever been sworn we had two whole
hearings about whether I had been sworn
in the proper way to swear
and and what I didn't realize now and
what then but I do realize now is that
was all just the predicate to try to
disqualify the board's at the rod and
reel's
attorney from serving as their
attorney that somehow I needed to become
a witness it all starts with a false
premise that I'm was in any way
testifying I'd ask you to think what
evidence have I offered as a
witness what statement of fact that is
in my personal knowledge that I offered
to you I would say there's none so what
would I be cross-examined
on the danger and the reason I rais
these
points is that is exactly what you heard
at the last meeting from Mr pounds
because he made a profer of all the
questions he was going to ask Mr
Fischer and it was very instructive
because at least half of these proferred
questions have nothing to do with Mr
feser's
testimony and were often completely
irrelevant to the case or any evidence
that had thus far been
provided that's why I can't allow myself
to be subject to
cross-examination under oath to a series
of questions that have nothing to do
with any testimony I gave if it was
any testimony that was given I'd like it
to be
identified and I would probably ask that
the board just strike that testimony
because I don't think it's necessary to
my case there's literally nothing I have
said as that would come from my personal
knowledge that has any bearing on any
issue in this case it's just simply not
testimony it's to ask me to testify
again when it violates the rules of
professional conduct is unfair and an
unsupportable
request therefore I'm going to
respectfully decline to be subject to
cross-examination by Mr pounds or any
other party I will always answer
questions of the board because those
would not be in the nature of
cross-examination I have a duty other
than being sworn in I have a duty as an
officer of the court to give you the
truth as I know it regardless it has
nothing to do with being a witness I I'm
not supposed to make misstatements to
you so I'm already under that obligation
but I'm not going to start down the road
that would effectively allow Mr pounds
to later disqualify me in fact if if you
started having me testify now I'd have
to literally stop the case and say well
I'm now out as the
lawyer so when you ask whether it was
possible to come up with procedures to
accommodate that I simply said say that
there
aren't
so the one thing I would ask you to
think about
is at the same time Mr pounds made the
original request to cross-examine me he
made the request to cross-examine your
board's attorney Mr
susman
and the board ruled against having that
occur because it would interfere with
the relationship of the board with their
attorney
well that's exactly what would happen if
I was subject to
cross-examination I'd have to withdraw
as
councel so I'm just not going to do that
if Mr pounds wants to make a profer like
he did for Mr Fischer then I suppose we
can listen to all the profit questions
uh what I think you'll find is that
they're all well beyond the scope of any
direct quote testimony I made it won't
involve testimony but it'll be questions
about that are in the form of argument
against our argument I would suggest
that that's Mr pound's opportunity to
put on his case but it's not done
through cross-examination of me so again
respectfully I understand your role I
want to be supportive of your role but I
can't be put in a position of being
cross-examined in a case that I'm the
advocate for the rod and
reel I think we understand your position
and
is there anything you'd like to uh well
first of all yeah thank you Mr chair um
before at the you first mentioned
something to Mr Blitz you mentioned the
process about that he was going to have
an opportunity to uh in Ence State his
position with regard to examination did
I hear that
correctly uh sorry say that again uh and
again I was I can read it again please
um okay so we'll be following the same
guidelines is established during our
last session with Mr fiser the line
between cross-examination clarifying
questions isn't something the board
feels comfortable delineating the board
has decided to allow questions this is
not a court of law if lawyers feel that
this violates a professional code of
ethics they must use their judgment as
to whether they can answer the question
if one or more questions are declined to
be answered the presentation will remain
in the record and the record will
reflect a refusal to answer a questioner
May the questioner may profer as to what
questions would be posed if given the
opportunity okay then thank you I I was
reading I wasn't writing as fast as I
was listening so thank you um and I can
appreciate you know everything that uh
you know Mr Blitz has said with regard
to uh uh his position uh obviously we
have a couple problems number one is we
spent a whole evening which uh resulted
in very early on in this process of Mr
Blitz raising his right hand and and
being absolutely positively
unequivocally sworn it um now the
purpose of being sworn in is there is an
expectation by the public that what
they're hearing is the truth um because
there are major civil and criminal
sanctions as a result for failure to lie
under oath we went through a whole
evening and that occurred F furthermore
um uh and know and I I only have limited
documents that I'm going to be
presenting but I like might as well
present one right right now and this is
an email uh exchange between Mr susman
and Miss wall
uh discussing uh another is this related
to Mr the questioning of Mr Blitz it is
okay and and and primarily is that Mr
Blitz would be subject to
cross-examination and not only that but
the chair Mr uh susman even said that
chair and I and he and I agree as to the
following including the fact that Mr
Blitz would be subject to cross-
examination so indeed and this was back
in January
and these are emails if you like me to
I'll be more than happy to introduce now
thank
you I object as there's no party that
he's representing that he would have
that knowledge so that's again um sort
of I should be able to examine each and
every document within town hall to
provide me equal footings as he is being
provided again this is
very this is what everybody's making a
claim to
things aren't just straightforward yes
um the objective is to get into the
record so that we're all on the same any
more of the copy I do have extra
copies onto the same page um but yes but
miss wall could be here and then he
could submit that but otherwise that's
just out of
procedure we have really I think part of
why it's difficult is we have wide
openen procedures here is uh something
of this rigor that the lawyers are
accustomed to is not something we have
procedures for um and so we're trying to
do the best we can to figure out how to
manage this and going forward obviously
if we know you know we knew everything
in advance it would be much much better
laid out but unfortunately I
can't Sor just from myp
yeah my objection is can we hold a
minute and give Mr susman yes
while Mr is reading I just want to
confirm that has been accepted in
evidence no yeah I I still reserve my
right to make an objection I'm still
reading it okay
one let us know when you are okay um
here you've read it to your satisfaction
Mr Blitz
so my first concern is that there's
Communications about the process and
procedures of the board that are
occurring without me being present in
the
communications completely improper but
what I don't understand about these
communications is whether these are
Communications
from Miss
wall and Mr
susman well but it's also got members of
the board it well it's got the chair I
apologize just the chair
and I I guess I'm trying to my question
is how did Mr hounds have a copy of of
Correspondence that's occurring outside
of the operation of the public
hearings for
communications between Town
staff and Mr
susman and I don't know
whether at at January 5th
2024 Miss wall had assumed the position
of zoning administrator at that time but
she subsequently has and then that would
mean she's a party
communicating with Mr susman she had she
had or had not 2024 uh January 5th of
let let let me know because number one
Miss B is not a party and number two he
I can address the comments he's made the
officer the zoning administrator is one
of the parties we alleged commit error
by law she is a
party just in the same way the Planning
and Zoning commission
is doesn't mean I can call her because I
don't have the power to subpoena
Witnesses just like anybody else doesn't
have that power
so I'm going to object to the in in to
the introduction of communications
outside the
record between the board's Council and
the board members and the Town
Administrator as I don't think they
properly come into evidence in any way
and I'd also just make the point that
any discussion outside of this context
doesn't really
change the outcome of my respectful
declination to be
cross-examined I can say pleas and
basically the reason for this email was
because the public was informed and was
communicated to the public with regard
to this process which public should be
the ultimate uh you know truth barrier
but the public was informed that indeed
through the almost 30 hours of of
narrative by Mr Blitz in this that they
would be opportunity to cross-examine
him as I am the member of the public and
he's speaking for me okay except for
Mr except for Mr Deval then the rest of
the public then would like to an
opportunity and they they would be
informed that indeed the the Mr Blitz
would be subject to
cross-examination they were asked about
it and it was confirmed that he would uh
that we are definitely going to be
bringing that up obviously you know in later on but one
moment
e e
all right the uh Sharon what's our
latest exhibit
number we will enter this in as exhibit
70 we are denying the objection
overruling the objection and this will
come in uh the chair would like I
believe we already have a 70 that's
sorry
711 pound you may make your
uh statement regarding what is in the
contents of this and I would like you to
briefly pause at the end of it so I can
point out one section okay uh basically
this uh under the email which is uh
number one addressed as you know I spoke
to the chair and he and I agree on the
following and that indeed um uh number
three and this is on the email uh dated
January the 19th the chair will give the
parties a record and opportunity to ask
questions of Mr Blitz at the end of the
testimony and presentation questions
should generally be limited to the scope
to address information presented by Mr
Blitz and that was the email from Mr
susman on the other email can you read
the last line of that block oh sure um
Mr Blitz May object to any questions and
the chair May rule on Mr blitz's
objection on a case- by case
basis um that is not exactly what we're
doing here but I feel it is close
enough um that uh you may ask him
questions and he may opt not to
answer oh it's my understanding he's not
answering anything yes okay we can be
here for a couple
days how you'd like to do it okay um uh
and then also uh so
Mr so
uh so Mr Blitz uh earlier on I just to
clarify we are accepting the lay of the
land with regards to questioning each
other
we given given all the objections and
problems here I would ask Bo please to
review my
rebuttal I mean that clearly outlines
how just inappropriate
and um I mean it was just a pretty
embarrassing to be for lawyers to treat
each other that way we look at I look at
lawyers we with respect we we we
understand we need we need to keep this
a little we're trying to
follow what do you what are you trying
to follow I'm trying you're letting him
talk out here I'm trying not let him
talk you're not you're not saying
anything about it you you you've already
said you don't have you're making up
procedures as you're going and I and I
think you guys are really putting forth
a lot of great effort but but you
refused me to be able to ask a second
question I didn't refuse made you made
that determination but there's a whole
lot of other things you're just playing
it by ear we're we're trying not to uh
we'd like sit down gallery to
please okay we're trying to have it so
that we can finish finish Mr blitz's
presentation which he's done which Then
followed by his questioning which is
Then followed by Mr pound's presentation
followed by his questioning and then it
opens the floor to the public and you
can say anything within the context of
this case that you would like to say uh
to the board or give presentation on
that is the general rule of how we're
trying to follow this and we are doing
the best that we can so so you had just
been asking a question about we were
sure of something but I wasn't quite
sure what you were asking so um the
statement I was making sure that we are
we're ready to begin questioning of Mr
Blitz by Mr pounds with the caveat that
you may opt not to answer I I have
already opted you should just now be
like a profer just like he did for Mr f
are we beginning that Mr pounds I want
to make sure I'm clear so I can ask a
bunch of questions that he's already
said he's not going to answer yes um uh
and and now since I could make a profer
which I could probably do on closing uh
you and you guys will have closing as
well that will follow everything
absolutely so I want to make sure
that okay let's just let's just go down
the road a little bit and see where we
can go okay so Mr Blitz you know you
were here during the beginning of these
proceedings that's a foundation to make
sure that he indeed admits that he was
here I mean here not here
yes Mr uh Mr Blitz is refusing to answer
he may proceed with your questions okay
are we talking to the mic please oh I'm
sorry so uh and Mr Blitz you were here
this that evening in which you raised
your hand and and sworn in to be a
witness under
oath so is your is your refusal to even
respond a a refusal to respond
Mr pounds just like you did last time I
have blanket refused it's now your turn
to make a profer which is just a list of
the questions that you would have asked
if you had been given the opportunity
you did this at the last hearing with Mr
fiser I'm in the same position as Mr
Fisher I've declined to answer questions
on
cross-examination you can then put into
the record so that they are preserved
your list of questions so don't pause
after each one just just like he did for
Mr
fer if I don't mean to instruct you but
I'm just saying that's that's my
intention about or or uh understanding
about what the board's asking right now
the board's understanding as
well I mean so want to make sure because
I uh first of all then I want to make
sure that we have I did a motion last
time that that indeed Mr Blitz you know
made us aware that he was not under
Earth I did a motion to strike his
entire testimony um that indeed to make
sure that anything he said was not in
evidence was not part of this case as as
he just stated that he was a lawyer
making arguments okay if that is true
then anything that you would have hear
for the heard for the last 30 hours from
him then we have to understand is not
evidence is not testimony is not under
oath and this and is nothing more than
him making
verbal comments as opposed to anything
else uh I made that motion before it was
denied I'm going to make it again now um
because I can tell you because that is
part of where I'm going to be going in
the case that motion is also denied you
may proceed with your profer thank you
uh so
uh okay so we're going to the profer so
first of all I would have asked
okay these are going to be the proper
questions that I I would have asked so
Mr blitz so to make sure we understand
each other you and I just I just said
you swore yourself in but now you've
made the decision that you were not
going to be indeed uh testifying or even
though it was under oath what was the
reason that you decided to change your
mind isn't it true that basically the
reason a person is sworn in is because
there's an expectation that you're
telling the truth are you now telling
the public that indeed you can no longer
have the expectation to tell a truth
because you refu you've decided to
change your mind as to you're being uh
indeed under oath with regard to these
testimony uh is that the reason or is
there some other reason will you please
tell what the reason is for you know for
this testimony um with regard to the
previous exhibit
which indeed you introduced and which
you showed that indeed permits had been
issued were you indeed the attorney for
RNR and also the attorney for the town
during this process did you shepher the
those previous permits through the town
uh and and with regard to received
approvals in that way you also heard the
testimony of Mr Woodburn with regard to
his testimony was he indeed the town
attorney the town engineer at the time
uh and also the engineer for our RNR and
indeed what did uh he act as under both
capacities uh during that time uh isn't
it true that the town engineer is very
important to the town and also to the
public to make sure that indeed they are
given an opportunity to review
everything that needs to be done with an
application uh as opposed to just doing
yourself here tonight the testimony was
that indeed um uh Mr uh Newton was
indeed the the uh engineer but you were
talking about the projects with regard
to the evidence which was entered
earlier uh in this process and indeed uh
whether that uh he was the engineer
during that time and who was in essence
operating in the best interest of the
town during that time isn't it true you
were also the uh attorney for the board
uh Planning Commission at that time and
helped Shepherd those other uh permits
through uh uh the Planning Commission at
time to receive those permits that
indeed permits were issued and indeed
the uh isn't that correct and indeed
with regard to those permits that were
being issued uh those permits expired
they were renewed and they expired again
some 10 years have passed and then uh
there was a decision not uh to uh renew
those applications until the
comprehensive plan process was uh in in
Essence beginning that uh with regard to
the pl comprehensive plan process uh you
were aware that the zoning administrator
at the time said no with regard to these
applic uh these types of uses the
Planning Commission that indeed
according to Mr um uh Donovan that
indeed the Mr Donovan stated that they
didn't even bother going to the Planning
Commission to review any type of
testimony or application that indeed
that was their decision uh and then
indeed no application or request was
made of town council with regard to uh
that decis ision to uh uh request that
these properties remain in any type of
Zone whatsoever that indeed the pro then
Pro the process then began uh to the
board of
appeals that indeed if you were uh the
attorney for the town and also for the
developer uh whether this created a
conflict of interest issues in
representing both parties
and indeed is it uh since you were being
paid by the town that in desence did you
have an obligation to act in the best
interest of the town with regard to
these application uh with regard to
these
applications uh so after those permits
expire 10 years go by and then uh they
begin the comprehensive plan process the
uh the engineer earlier on testified
that indeed things change uh and indeed
things do change um the area which is
now classified as a flood plane and uh
and indeed the your request with regard
to these applications is to indeed build
uh houses in a flood plane uh and isn't
it true based upon your experience as a
town attorney that flood plane is going
to cause harm to the public and also
with regard to your uh uh the public can
be harmed and also create a tremendous
financial burden on the town with regard
to this town uh harm to that can happen
to the public that indeed that that
indeed do you think based upon your
previous experience as the town attorney
whether indeed building houses in the
flood plane is
appropriate the again uh and I wanted to
confirm for the record that indeed the
zoning administrator said no to this use
the uh you never bothered to go for
before the Planning Commission uh and
also you never bother to actually make a
formal application to the Town
Council the the uh the town then uh Town Council
then passed a moratorium and and indeed
uh uh I would ask your opinion based
upon the Town Council whether indeed the
uh planning the um uh board of appeals
can indeed overturn a decision of the
Town Council that that is who is the one
who actually runs the town who's the one
that makes decisions of the town and
with regard to your uh definition of and
your belief that indeed the uh board of
appeals has these Powers which I'm going
to get into in one minute that indeed
they can overturn the Town Council uh
I'm also going to be introducing um a
new town ordinance that's going to be
coming in dealing with critical area
changes and then I'm going to ask you
whether in your opinion based upon your
experience that indeed the board the
board of appeals can overturn the Town
Council with regard to that uh uh
critical area legislation since indeed
uh this will affect any type of decision
with regard to granting your application
or granting your request by the board
should the board even be reviewing that
application uh or does the board can the
board unilaterally just decide to
overturn the Town
Council indeed the um uh with regard to
the evidence which has already been
introduced uh indicating that the chair
and Mr susman both agreed that you would
be subject to
cross-examination uh and now you've
decided not to whether that indeed
creates some type of um of um uh issue
with regard to making sure the public is
fully informed making sure the public
does have an opportunity to participate
since indeed you made that decision to
swearing in at the beginning of the
process and then suddenly at the end of
this process you made the decision to
indeed you were not under oath uh and
obviously you were going to have to make
the determination as to whether the
public was indeed misled who misled him
under what conditions were they were
misled and indeed uh uh should issues be
addressed with regard to the uh public
being misled with regard to uh the fact
that indeed they were informed as well
as the fact under oath you swore and did
the did the presentation uh and
absolutely the uh ceremony of swearing
in and then suddenly at the end of the
case you decided to indeed make change
your mind I would also want to make uh
find out when exactly you decided to
change your mind and if indeed the
public uh uh was indeed intentionally
misled as a result of that decision and
the timings of those decisions uh next
we want to discuss all the powers which
have been uh enumerated to this board of
appeals uh by you and apparently the
powers are quite extensive as to what is
happening uh in other words uh
apparently the board of appeals has the
power to order individuals to engage in
certain acts I was unaware that the
board of appeals had any power
whatsoever to order any individual but
apparently uh you you now do the power
is to order Town officials to engage in
particular acts the power over
administrative agencies telling the uh
Planning Commission what they can and
can't do the power is to tell
administrative agencies how to hear
cases in other words you are now going
to be telling them where how and where
they can hear the case and what they can
do the power to of the board of appeals
that can tell administrative agencies
how to rule on cases because it's
presumed that indeed if you're telling
them to hear the case then you're also
telling them how they indeed can rule in
the case and they must follow your
instruction with regard to how they can
hear a case the power to tell the
administrative agencies how that they
will hear cases on an expedited basis uh
the powers that would require them to
follow a particular
law uh you know with regard to determination
uh later it's been determined that
indeed the board of appeals now has what
is apparent revenue and taxing Authority
as indeed Mr uh Blitz has informed the
public and the Town Council that indeed
uh revenue and taxing issues that may be
occurring will now be coming through the board of appeals indeed that
indicates that indeed the board of
appeals now has revenue and taxing
Authority which can be reviewed also
based upon uh Mr um Fishman um um uh
Fishman fish Fisher I'm sorry um that
indeed the this board now has apparent
authority over taking issues uh I would
ask the Mr uh Blitz whether he is aware
whether the board actually understands
what taking issues are uh and also I
would ask that indeed uh has has he is
he aware of any possible issue with
regard to taking of property that can be
heard by an administrative board other
than by courts um uh and also uh the
general power of the uh of the board of
appeals to overturn Town Council in
making decisions which which without
that determination to come first then in
essence uh the rest of the uh this whole
process becomes moot so in essence the the underlying decision that has to
be made is that you have the authority
to overturn Town
Council uh I would ask Mr Blitz
including the fact that um uh whether
indeed uh these courts types of cases
indeed should be handled in the courts
or by the board of appeals if is by the
board of appeals the uh I would ask why
he's the one that chose the board of
appeals obviously we're here because he
chose them uh no one else chose them but
him he's the one that made the decision
and in essence uh I'm going to ask him
why um uh and also I'm G to ask him the
question of that something that was said
earlier by the chair in in an earlier
meeting we generally do not handle this
type of case uh that's very prophetic
and also the question is why are we here
uh in doing this but again that was his
decision to bring this type of case uh I
would also ask him based upon his
experience whether and I think he even
brought it up tonight the board of
appeals can interpret Supreme Court
cases uh indeed many courts don't even
uh interpret Supreme Court cases because
indeed the Supreme Court interprets
their own cases as opposed to an
administrative agency uh especially uh
lay preval on a board of appeals uh and
then I would ask questions such as
whether the uh board of appeals can uh
indeed overturn decisions of the Town
Council and whether he is aware of any
other decisions to overrule those
decisions of Town
Council uh I would further ask him uh
about the uh inth Authority uh that that
he has that indeed is is being stated by
Mr Blitz you know regarding that
authority to make those
decisions I would ask uh uh him that
indeed uh if he was aware of my letters
which have been in uh introduced before
the board that are part of this record
that indeed the uh being informed by the
uh individuals from the town in other
words the Town Council the zoning ad
administrator and also the uh uh Town
Administrator that indeed the board of appeals does not have this
Authority whatsoever and that in essence
uh the decision by this board of appeals
to indeed overturn that uh uh those
decisions and that information so in
essence uh and also information that
indeed make sure this board is on notice
that indeed the proper authority to
handle this type of jurisdiction if
there is a claim by uh Roden reel would
be the courts um that indeed that's
what's going to be the true issue here
uh because one way or the other it's
going to happen you know that's what's
going to happen here so in essence also
uh I would ask Mr Blitz in essence if
indeed the mechanism in which he he
would think that the board of appeals
would intend to enforce a particular
order uh I think that would be very
interesting that indeed how the board of
appeals plans to enforce the order
because if indeed they are try going to
try to enforce it uh uh through the
courts well then in essence that's what
we've been saying that this proceeding
should be in the courts the whole time
and in essence the last 30 hours have
been a complete waste of the Public's
time and also as I put down it's
basically becomes a sham because indeed
it should have been in the courts to
begin with and if you decide that indeed
you have the power but can't enforce it
then indeed Mr Blitz is indeed
misleading the public and also the town
uh the board of appeals so that's going
to be interesting the way
indeed uh the the uh board of appeals
tries to enforce a particular order when
according to the records that have
already been submitted and are a part of
this record both the zoning
administrator the Town Administrator and
the board of appeals uh and the Planning
Commission uh intend not to follow your
instructions because indeed you don't
have the authority and it's going to be
interesting to see what happens indeed
when you make an order and it ignored by
these by these uh
agencies uh and then I would ask Mr
Blitz which is an interesting question
uh he has said a number of times that he
believes that uh one of the powers that
you have uh is to issue this permit
yourself uh uh in other words don't make
an order to someone else don't try to
get someone else to to engage a
particular act in which apparently he's
saying with regard to all those Powers
you do but in essence that that the
board of appeals has the power to issue
the permit themself uh and uh and I said
it before and I'll say it again I
encourage you to do it I mean if you got
the power sign off on it and indeed
issue these permits yourself okay now
the downside okay which of course you
haven't signed when you whenever you
wish and everybody to sign off on them
everybody up there to sign off on them
uh because what's important if there is
any exposure any liability or any issues
the person excuse me uh sorry for
interrupting but aren't these questions
you're supposed to be uh posing
hypothetically to Mr uh as opposed to
making your argument your summation your
closing argument okay well okay then I
will redirect that question okay Mr
Blitz has said a number number of times
that indeed the board should indeed
issue the permit okay and uh he has said
a number of times and to move this along
I agree okay indeed I agree and and as a
proper to make sure the board is aware
you know whenever you sign off on the
permit it means that you are liable so
indeed if anybody gets flooded if
anybody gets harmed if anybody in
essence uh uh is is in any way damaged
as a result of these houses going in a
flood plane it's not going to be the
town it's not going to be the Town
Council it's going to be the board of
appeals okay and indeed he's the one
requesting it I encourage you to do it
indeed if you've got the power to do it
we're we're going on and on with regard
to this additional power that he says
you have which that that's perfectly
fine to do can you please direct this at
him that's what the profer is right that
no the profer was to you okay because
indeed he wasn't going to know indeed
whether you had the power to do this or
the liability as a result of it purpose
of what we're doing here is instead of
cross examination you're giving a proper
which are the questions you would have
asked him I think addressing us
completely different matter
arew address that in make sure the board
was informed with regard to that indeed
they would be personally liable you know
for the issuance of the permit that you
suggested thank you um uh
well I think those are the questions
that I would have immediately for Mr
Bliss okay um we
are but on time so we are going to open
the floor up to questions for Mr Blitz
if you would like to leor announce your
name
and it's up to your judgment as to how
you interpret them because we are
allowing the public to ask you questions
whether you interpret them as clarifying
or cross- examinations is
okay actually pause uh this been a
little while let's take five minutes and
do it again is that all right with you
it it's only actually really
quick I listening to here I find that if
there was
questions that they could be submitted
to the board Bo and ask that way from
the general public that that would be a
proper way one moment
unfortunately the questions have to be
asked at this at this stage in our uh
process there will not be a further step
to ask questions of Mr blitz's
presentation I'll take the five let's do
five thank you
way
actually on or did I did go on
vacation that was in
Germany after was after your
trip no it was fun River
Cru
Prague there
was well Ed
tourist one
wall I have
project you
think to
concentration oh that there was
one and
seven I really my
no that
inter
all
[Music]
and I neighor we live about as far as of
the building
there
research he's been on the board of
recors the
home a long time
very so we work
closely very
person it's
like job
you go do
now good C on
you okay we will resume um once again
members of the public if you have
questions about um Mr blitz's
presentation you may step forward and
ask
them um just to clarify these are just
profer questions cuz he's not answering
anything uh no he is he has license to
answer if he so chooses he may blank it
or individually
however okay um to help you out Miss
Blackwelder whether it's Miz or miss or
um if you're asking me questions that
are in the nature of
cross-examination then I'm going to
decline to answer them and you should
profer you're asking questions about the
General application our case
what something that I would it's not a
factual question but a question about
the arguments that have been presented I
can answer those so I don't I don't know
whether you're trying to cross-examine
me as a witness or you're just trying to
ask the applicant questions about the
presentation that's been made so far
okay so so I'm not a lawyer so I
wouldn't know the differentiation so why
don't you ask them in all yeah um
the first question is are you aware that
the board of appeals does not have the
power to rule on a moratorium would you
agree with that no I would not agree
with that it's a question of Law and
that's I have
said actually why don't you restate that
question just to make sure I got it
correctly Miss blackw Welter can you
speak this way into the mic so we can
all hear you could you excuse me while I
get a piece of paper so I can read
something from the
code um it's right at the chair yeah go
ahead I'll be right
back excuse
and I I apologize but there was no
agenda posted for this and the last
meeting I was under the oppression that
Mr Woodburn was going to be questioned
by Mr pounds and and not that Mr Donovan
or Mr Blitz would be questioned by
anyone
um so I'm a bit unprepared for this
okay
um so 290
d32e confines the duties of the board of
appeals regarding interpret ation
questions where it is alleged that there
is an error made in the enforcement of
this chapter meaning chapter
290
so is the implementation or a
resolution to have a moratorium on site
plan development
Within Chapter
290 it changed the effect of the section
of the zoning code
that applied uh required site plan
review and required the zoning
administrator to assist with site plan
review and
so the allegations made in in our appeal
is that the board I mean the zoning
administrator and the Planning and
Zoning commission failed to follow that
obligation in
Reliance upon on a moratorium that had
was first described as a temporary
moratorium was then
extended for an additional three months
and then after that expiration and the
comprehensive plan still had not been
completed we waited 60 days to see
whether our pending applications would
be taken up I shouldn't say hour the rod
and reel applications were taken up they
were not I sent a letter to the zoning
administrator and planning zoning
commission demanding that now that the
moratorium had expired by its own terms
that they go ahead and do that that's
already in evidence um
that I received no response
from
um the zoning administrator Planning and
Zoning commission um that is the rod and
reel didn't we received a response from
Mr pounds
instead arguing that the moratorium was
only terminable terminated at the point
that the Planning and Zoning commission
and the town administ uh I apologize the
um Town
Council uh said so uh or he didn't he
didn't use those words I shouldn't say
it but it's an exhibit so I can
certainly read it if you want but that's
what the case is about and so your
question
is whether it's within the scope of this
board's authority to rule on such a
matter on a moratorium correct well
they're not ruling on the moratorium
they're ruling on whether it was legally
effective and therefore a justification
for a a an adequate legal justification
for not following the requirements of
the zoning code which require site
plan upon submission to be reviewed and
considered so so it's
not that the board doesn't have the
authority to
overturn an action of the Town Council
that's not what it's what we're asking
for we're saying that the re the
moratorium that the Planning and Zoning
commission and the zoning administrator
relied upon for not filing the site
plans was legally invalid and therefore
their failure to follow the law was
invalid in the same way that a board of
appeals can uh review the
constitutionality of a law um po versus
Baltimore that I cited I believe at the
last hearing of the hearing before um
and so it's not that they're
overturning
the Town Council it's that they're
saying that the effect of what the Town
Council did was invalid and therefore
the administrators were wrong in in
relying upon it to fail to Grant the
relief we were seeing seeking uh
actually I shouldn't say Grant consider
the applications process
them nothing in our case presumes that
they were going to necessarily grant
them we didn't get them that
review did that answer your
question yes
um did you ever challenge the Town
Council and the mayor
legally about the moratorium that you
claim is
invalid and do you have a document that
this board of appeals can rely on
stating that the moratorium is in fact
invalid oh no there's not a document
that would say that this that's what
this case is turning upon is this
board's determination we've made the
arguments as to why it's invalid we had
couple nights is on that Bas describing
all the laws that come into play and why
it was
invalid um and I should mention that
even after the moratorium expired the
applications were not processed and
therefore you've got a problem there as
well
um but um I want to make sure I'm honing
in on exactly what your question is oh
you asked me whether there's a document
no there's no
document and you asked whether we went
to the Town Council no we didn't go to
the Town Council there's no process for
going to the Town Council in a zoning
case or to contest their actions I did
and this is already in evidence I'd have
to site the exhibit but
um I did send the mayor and Town
Council a long letter explain a
three-page letter it's already in
evidence explaining
why it was in appropriate to use a
resolution uh to pass an ordinance and
they had to use an uh pass a moratorium
and that they had to use an ordinance
that was sent to them uh prior to their
action in adopting that resolution so
they obviously disagree but no I we
didn't go to the Town Council to do
anything there's no process or procedure
for
that did you file a legal challenge to
the moratorium against the Town Council
and the mayor
no and when you say we uh did I
obviously you're talking about for the
rotten reel I assume correctly yes sure
you are your client
um so are you asking the board of
appeals to
decide on the Merit of a moratorium the
vity of a moratorium in the absence of a
ruling on the moratorium
I don't understand your question what
ruling on the moratorium are you asking
for or or referencing in your question I
think that's more my point that there is
no ruling on the moratorium
therefore the board of appeals is being
asked to decide and rule on the
moratorium is that what you're asking
them to do being they're as yes they are
being asked to consider whether it was
lawful for the Planning and Zoning
administrator and Zoning administrator and planning
and zoning commission to rely upon the
moratorium which was invalid according
to our theory of the
case as an excuse for not following
their statutory obligation to process
site plans upon being submitted in
addition the second part of the case is
that they didn't provide that review
even though the moratorium had
expired
so I don't know whether you're asking
whether we have to go to court first
that's a legal question no we don't have
to go to for court first in in fact many
instances we have to come to this board
first to exhaust our administrative
remedies before we can go to
court we could have done a declaratory
judgment action against the ordinance
but we don't have to but you would agree
that deciding the valid validity of a
resolution to implement a moratorium or
the legality of a resolution to
implement a Mor moratorium is not within
scope of this board I would not agree
with that I would say it's absolutely in
the scope of this board that's
what the courts have held is that the
predicate Acts or the legal uh legal
basis for administ
action if it's either unconstitutional
or unlawful it's up to this board as the
first body to take a ruling if such an
appeal is filed we filed that appeal
it's incumbent upon this board
to decide whether we've proven our case
if they do they're going to be the first
they get the first crack at this and
that exhausts our administrative
remedies and you are asking that this
board
make that
determination without your providing
proof within your appeal that there has
been a ruling by a body who is
authorized to make that ruling on a
moratorium there is no such body that
makes that ruling that that doesn't
happen
there's we don't go and get a ruling
about the moratorium and then bring it
to this board we bring it to the board
first they decide whether we're right
that the moratorium was invalid and
therefore the Planning and
Zoning commission and the zoning
administrator should have processed the
applications or that after it had
expired that they then should have
process the
applications and then we have asked for
the relief to be crafted in response to
that but you don't go and get a ruling
then to then submit to this board
there's no need to do that or requirement to do
that or that I know of any way of doing
that so you're saying that moratoriums
aren't challenged in court they are yes
you can oh no you can challenge a
moratorium in court yes correct so that
would be something that this board of
appeals could require as proof to Grant
your request which is a very big request
um if they were to Grant what you're
asking as part of your appeal no because
we elected to file an
appeal so that we exhaust our
administrative remedies which is a
requirement of Marilyn law in bringing
certain
cases so that's what we elected to do
once we decide to do that the rod and
Rio has the right for this board to make
a
determination about whether we've proven
our case as I've said
before what we've what we're alleging
but you we don't have to go to any court
or other body to get a ruling to then
bring to this board of appeals in fact I
can't imagine what we would then be
asking of this board if that were the
case do you have any document from Mr
jabak was the zoning administrator at
the time stating that the site plans
that are subject to this
appeal are
complete I'm Sorry Miss uh black waler
can you repeat that I didn't hear
it my question
was do you or your client have any
document from Mr Chris chak the joning
the zoning
administrator um at the time of
submission of these site plans that
confirms that the plans that were that
are subject to this site plan or I'm
sorry that were subject to this appeal
were
complete uh my reason for pausing is to
F figure out in my own mind whether this
is getting close to cross-examination
type question because it's acting asking
a fact I think it would not and
therefore she's just asking whether the
applicant ever received such a a
statement from Mr jabak and I would say
no what we re the only response we ever
received from Mr jabak about the
applications was the exhibit that we
filed which is the February 5th email
telling us that they
were well I'm not going to repeat what
that document said that but that was the
only communication we received from Mr
jabak that I know of it's the only thing
in evidence that's for
sure so Mr jabak returned your money
for filing the appeals but he did
not indicate that they were complete now
the the evidence shows that Miss wall
returned
the filing fees for the applications
although she didn't return the one for
Harbor Vista North which had been filed
previously
and Mr uh jabak would have or had
nothing to do with that as far as I know
I
but that we submitted into evidence the
letter from Miss wall returning those
fees didn't it still means the
applications are continued to be pending
you can't just deny the pending of an
application
you have no way of knowing why Mr dubak
did not bring those site plans to the
Planning Commission yes we submitted
that into the record it was the February
5th email that where he stated why he
wasn't doing it he was saying that this
was an unreasonable burden on the
Planning and Zoning Commission in the
town I mean if you want I'll get out the
exact exhibit so that you can see it but
that's
that was the zoning administrator's
position with respect to the
applications it's exhibit
7 and that's what I'm referring
to just let the record show that I'm
showing Miss Blackwelder ex my copy of
exhibit
7 and that was the only communication we
received from Mr jabc that I'm aware of
um with respect to the applications
okay but this
letter still doesn't say that a complete
site plan package was correct I answered
your question on that we never received
a any confirmation or anything like that
from Mr jabak about that it was never
brought up correct so this this letter
could just be giving you a heads up
no it was telling us that a moratorium
was about ready to be proposed it said
that there would be a public notice
going out they gave us the date of the Planning and Zoning commission's
uh
intended
moratorium um and that that was the
reason you know that the site that that
was his response to the site
plans the filing of the site plan
applications okay
so you said yourself Chris tobia cannot
be subpoenaed is that correct my
understanding is that nobody can be
subpoenaed in this board okay and Chris
tobc did not bring these site plans to
the Planning Commission correct my
knowledge no I mean we were never given
notice of any hearing so when when the
zoning administrator gets done their
review
actually I don't want to testify I'm
just going to leave it at
that
so are complete site is a complete site
plan package part of your submission to
this board of appeals yes it's exhibits
two and three I
believe so exhibits two and
three are site plans
no I apologize exhibit two is
the
application because Sharon had it
her exhibit one would have been the
um the board
secretary uh affidavit with respect to
posting of properties and giving
certified letters so exhibit two was
that so let me move
ahead
to I apologize it's exhibits five and
six five was the whole package of all
the site plans in digital form and six
was the actual form application
so the
complete
package of your site plans have been
submitted to this board of
appeals and you are stating that that package constitutes a complete site
plan package with everything per the
code that would be required by the
Planning Commission to review a site
plan I'm not going to answer that
because that's asking me to testify
about the
evidence I
apologize is there something that you
know of in the code that
determines when a site plan package
submitted to the zoning administrator is
complete well there are standards in
your zoning code that set forth what is
supposed to go in an
application that doesn't
necessarily validate what we what the
Roden reel filed as being complete but
there are standards for what is to be
included in a site plan yes that's
listed and it's it's in a couple
different sections because you would
have a basic
application you would have
the requirements in your section on for
category one site plans which all of
these were and then all of these were
critical area impacted by the critical
area so that they also had critical area
plans and program uh documents
associated with the compliance your or
the town's ordinance provides those
required elements of a site plan yes it
doesn't but there's nothing in there
that confirms that what we filed meets
that I'm just saying there are
requirements so
if Chris chubak made the determination
not to bring your site plans to the
Planning
Commission at any
point it feasibly could have been
because he did not feel like they were
complete enough for the Planning
Commission to act on them well you
normally if a zoning administrator felt
they were incomplete they would let the
applicant know whether they're he never
told us that they were incomplete or
alluded to it or said you you're missing
something there was no correspondence
other than the one I've handed you which
was
exhibit one seven so that's the only communication
we receive from Mr jabak so I don't I
don't have any basis to believe or
there's nothing in our evidence that we
presented to the board that suggests Mr
chubak was considering those
questions correct there's nothing in
your evidence
however this board does not have the
capability of
subpoenaing Mr
jabak and getting his testimony on this
topic I understand it correct and I
would point out that neither did we
because there'd be a whole lot of
questions that I would have been able to
ask Mr jabc that support our
case right
um I believe that a court would be well
suited to facilitate that
process so just to summarize you did not
challenge the moratorium legally never
you never challenge the moratorium
legally but the legality of the mor
atorium is a key component of your case
I would phrase it differently than
you're asking it this is a legal
proceeding we are challenging it in a
legal proceeding it's a required
proceeding to exhaust our administrative
remedies
so your
first premise was that but but if you
are using that term to mean we didn't go
to court about the moratorium first
that I can confirm I've already answered
that for
you are you aware of a section in the
board of
appeals uh in
290
um-
32 I'm going to apologize I can't bring
you to the correct spot but I believe
that appeal there's a a requirement for
an appeal to be filed within five days
so did you file an appeal to the board
of
appeals by February 10th
2021 no and you can't set a deadline
based upon the non-action or inaction
anything that's an inaction
of the administrator continues and so it
any any requirement that you file an
appeal within a certain period of days
has to be predicated upon that action
being determinable as to when it
occurred the cont it's been a continuing
violation up through this date that the
applications filed by the rod and reel
have not been processed by either the
zoning administrator or the Planning and
Zoning commission despite the moratorium
having clearly expired
okay so was the
inaction that you are agreed
by did that occur
before had it occurred by February 5th
2021 when this letter was sent to you
probably not it
would the
obligation
for the review of critical area site
plans is 60 days following the filing of
the application so it's possible that Mr
jabak wrote that letter saying that they
would pass a moratorium well it's quite
possible they didn't they wouldn't pass
the
moratorium and so 60 days could be the
deadline for then processing the
applications if the either the Planning
and Zoning commission had decided not to
recommend it or the Town Council decided
not to pass such a moratorium then the
rod and reel wouldn't necessarily be AG
grieved until the deadline for
processing applications in my opinion um
just
because the mere statement that they're
going to do
that moratorium isn't sufficient so what
was the
date of
inaction that you are basing your
appeals case on that was filed within
five days of that inaction up through
and including today's
date what was the start date start date
the start date that been January
209th of 2021 when we filed the
applications I suppose if you're looking
for a start
date but I don't know so if that's the
case did you
file an
appeal by February
6 no we did not of 2021 no we did
not this this appeal was filed
on June
24th
2022 and it was filed time in a timely
fashion
basically any
correspondence that occurred up to June
19th 2022
is potentially just
correspondence and there was a certain
action
on by June
19th
2022 that caused you to file an
appeal oh are you're asking what caused
us to file the
appeal the appeal is required in five
days by the code your your case not accepting the that it
requires 5 days but I can say any
deadline for filing an appeal or action
where it's involving inaction continues
so long as the inaction continues our
appeal involves the allegation that
Planning and Zoning commission and the
zoning administrator have failed to meet
their statutory obligation to process
the site plans they have failed up
through and including this date the
reason we filed this
appeal was we received a
letter which is already in evidence from
Mr pounds saying that the
moratorium continue to exist even after
we thought it had
expired and we said enough is enough
we're going to take this to the board of
appeals so you are asking the board of
appeals to decide on the moratorium you
didn't challenge the moratorium legally
Court moratorium to court okay already
answered
that I've said we are using the legal
process that's allowed under Maryland
law and that includes bringing the
action to this board of appeals that's
what we're doing and it's based on a
moratorium for what you never filed a
legal case against that's true but we
don't have to file a legal case against
to challenge it before this
board but you would agree that the board
would somehow have to find
that moratorium to be legally invalid
and they are not that is not within the
scope of what they decide no it's
absolutely in the scope just like just
like if we were challenging the
constitutionality of the action that is
something that can be brought to this
board in fact the law is in many
instances it must be brought first to
the board po po versus Baltimore was the
case that started it this is very old
foundational law of Maryland where they
wanted to challenge the
constitutionality of a Baltimore City
Zoning
action and the court said no you've got
to take that first to the board of
appeals let them decide the issue
first and even in that case as I relayed
to the board when I brought that case up
before the
party seeking to declare the law
unconstitutional argued before the court
that a board doesn't have the authority
to declare something
unconstitutional they rejected that said
no they
do so that specific point was brought up
so I don't want to interrupt this I find
this actually very very good question um
but we are at time um would you like to
continue this
where we leave off during the next
session or should we give you a couple
more minutes now I appreciate that
this this I appreciate the time you've
given me and the time you've taken I'd
like to turn it over to the lawyers now
and
um I do appreciate it thank you as you
know I think
that this is a little bit out of scope
for the board of appeals and and the
process doesn't
uh lend itself to this gravity of
decision but I do appreciate your time I
appreciate what you're doing thank you very much remind the public
that if you if you want to um speak
outside of the context of what Mr Blitz
or Mr pounds presents you will have an
open microphone once they've completed
which case you can State your own
expertise even if it you know
tangentially related to what's been
provided yes we are going to resume this
if you have a question for Mr Blitz and
that will
be on August 19th 2024 at 6: p.m. um
sorry not 6 p.m apologies 6:30
p.m. um the plan is to uh ask questions
of of Mr Blitz as long as long as there
are questions available um and at which
point it will go over to Mr pounds for
his
presentation I said what
I August 9 18 6:30 p.m. yes
I you will be first first in line uh
next time okay um un is there any urgent
business any board members would like to
bring up this
point hearing none uh at this time I
will entertain a motion to adjourn until
August 19 20124 at 6:30 pm I will make a
motion to adjourn have a second second
all in favor hi right this motion is
adjourned thank you
everybody hope you guys