uh evening this is the call to order for
the Chesapeake Beach Board of Appeals
October 21st
2024
um or I will go quickly um here we are
today to do some administrative business
meeting minutes and comment receipt uh
at which point we will move into Mr
pound's presentation and then follow up
with questions for Mr pounds time allows
uh as always we start with a roll call
for board members I'll go around please
answer your presid
Mr Richard Burch Mr Paul dhy present M
Amy Everett present Mr Steven sharp
present and Mr Jody hunar we have a
quorum uh first item on the agenda is
the approval of the uh meeting minutes
for 20233 for the August 19th sessions
both open and close did anybody have any
changes and its problems
anything uh in that case I would
entertain a motion to approve the
minutes I will make a motion to approve
the minutes I have a second second all
in favor I all right the Motions are
approve or minutes are approved uh
Sharon have we received any public
comments to be entered into the record
yes one from Rita
Hayes okay um if we can get that on the
record and make sure uh both Mr pounds
and Mr Blitz have a copy of those
comments um we've done these
announcements before so I'll go through
them quickly uh will be doing two hours
tonight oh oh we have the closed session
minutes there oh I did them sorry I did
them together but we can we can do it
again um I thought I didn't guess not
okay uh I'll entertain a motion to
approve the Clos session minutes I'll
make that motion I have a second second
all in favor I all right Mo meeting
minutes are approved for the Clos
session uh okay so two hours tonight
will end at 8:00 pm uh any questions or
comments should be directed to uh the
board legal council here um if we get to
the point where we are going to allow
questions of Mr pounds I will indicate
to the gallery uh when it is time for
that um the order of like the agenda for
the next uh session or two will be uh
Town staff testimony and Evans by Mr
pounds questioning of town presentation
by any parties of record um at which
point we will close the meeting and then
the following meeting will take
testimony and evidence by person or
entities whose rights are Ed by the
appeal will be members of the public um
so there will be no public comment
tonight at the conclusion of Mr pound's
presentation and the questioning we will
hold a dedicated meeting to receive
public comment this will be announced
both in this hearing and Via an email at
least from the town uh okay that's it
for the announcements um we are on a
continuation of case 20233 Roden re
corporated Donovan States LLC to
consider an application from Roden
Incorporated Donovan States 4160 Avenue
chesap beach for a decision on
interpretation or alleged error to
article uh 6290 23 29031 A1 and A6 of
the Chesapeake Beach zoning ordinance
and C309 c310 c311 of the Chesapeake
Beach Town Charter applicant requests
the Chesapeake Beach zoning uh 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 the
rod real Incorporated Donovan estat LLC
and that the zoning administrator and
planning and zoning Commission order to
apply the zoning ordinances in effect as
of January 29 2021 when their
applications were submitted and for
other and further relief as the nature
of their Clause requires at this point
we will move to Mr pounds uh take it
away okay uh Mr chair members of the
board good evening uh as you know my
name is Todd pounds and I represent the
town of Chesapeake Beach in opposition
to this application which is in essence
designed to construct houses and would
which has been designated in an area
which is a flood plane uh Mr Woodburn as
the uh applicants engineer and also Mr
Donovan fully admit that these
applications are in the flood plane um
and just to make sure the record is
clear flood plane is indicated in an
area that is expected to flood uh at the
early on in these proceedings and Mr
chair just let you know I'm sitting down
because Mr Blitz I think is issue so I
told him I wouldn't stand up there but
that's it but early on in these
proceedings uh the chair made a comment
we generally do not handle this type of
matter and I thought that it's very
telling for these type of proceedings
especially in this case which has gone
been going on for approximately 35 hours
uh so throughout this time at the
beginning of this meeting as happened
tonight the chair stated the standard of
review of the Court board of appeals and
just for the record I'm going to maybe
paraphrase a little bit but obviously
chair's uh introduction is going to be
more telling and more um applicable this
standard is indicated is basically that
the board of appeals may pass an order
requiring the zoning administrator to
accept the applications which are the
subject of these proceedings and also
have these applications reviewed by the
Planning Commission uh on an expedited
basis under the law prior to the
adoption of the comprehensive plan and I
appreciate I may have paraphrased it a
little bit but but I got pretty close
enough and there's been many hours of of
what I'll call testimony to arrive at
the standard now we started out and
everybody I think can agree that the uh
Court would have good 100% jurisdiction
to hear this type of case and we started
out in court that the applicant wanted
the board of appeals we are here because
they're the ones that wanted the board
of appeals as opposed to being in court
uh the question is why why was the board
of appeals chosen over a jurisdiction
which everybody fully knew was
applicable I'll leave that for for later on but what's important is I never
agreed to that with the court the court
case is still pending because I never
agreed to any of this and that will be
you know viewed for for subsequent
actions now you've been hearing quite a
bit over all of these hours about I had
an application that was to be filed uh
and that the application was here and
ready and it was not accepted I think
it's important and I want to make sure
that indeed for the record is clear what
it means to have an application because
at some point in time what does it mean
to have property rights associated with
that application or because is it just
an application because without the
property rights associated with the
application it becomes less and less as
an important as Mr Blitz has said many times that he has the application
so what does it mean to actually have
property rights with regard to the
application and that is under what is
known as the law of vesting in other
words at what point does this
application become vested so the
developer has his property rights that
cannot be changed well prior to 1972 and
I've got these cases here which I'll
submit them you know for the record if
you like at the end but prior to 1972
the standard was that the developer must
be issued a
permit not just an application that may
that has has not been accepted but
actually have a permit which indeed has
been reviewed and has been accepted and
a permit being issued that's what it was
foror in
1972 in 1972 in the court of Rockville
Fuel and feed company versus gaitherburg
the court changed that said no for
vesting rights you have to have not only
a permit but you also have to have begun
construction so then another words so
obviously these applications are
absolutely nowhere near this standard
that is set forth by the court uh in
1972 uh with regard to what the law was
at that time of a permit and beginning
of
construction that that opinion was
further supp uh supported in 1975
in which the case of uh County Council
of Montgomery County versus District
land Corporation in which the owner uh
and a developer got his permits okay and
then began expending uh fees for
engineering fees okay and development
fees and development applications and he
spent over a million dollars of his own
money for these development uh studies
and plans for the development of the
property and all of a sudden the local
jurisdiction Chang The Zone on him so he
said no no no I've had to have some type
of right because I've just expended a
million dollars and the court said no
we've the standard is and we've we we've
elicited it vested rights means the
building permit and began
construction then uh in 1996 in the town
of Sykesville versus West Shore
communication that developers said okay
I have read the law I understand what
the law is and he had a large piece of
property and then in the back of the
property in the woods he cleared out an
acre of land and he began construction
so all of a sudden he had his permits
and he uh began Construction in a rear
area of the area and the local
municipality changed the Zone he said no
uh I have complied with the law and I've been with the law and because it
was in the woods the the court then
changed the rule as to what it is now to
not only do you have to have the permit
not only have you have to begin
construction but that construction has
to be visible to the public and again
I'm happy to give you those cases for
you to review at your leisure but now
that is the standard permit construction
and visible to the public that's the
standard in which somebody has an actual
property rights you know with regard to
Applications this this testimony of well
have an application has no absolute
applicability to actually having
property rights to actually having a
right to uh to that property uh or to
those applications uh as it's being
elicited and just for fun I've also um
uh included a case of taba County versus
miles point which HS which is held that
the board of appeals cannot overturn
decisions of a Town Council but I'll I'll give that to you just for just
for your uh review also so basically
what Mr P what case was
that and I do have a copy for you Mr
justment it's
um uh talba County versus miles Point
415 Maryland
372 uh Atlantic 3D 2 Atlantic 3D uh
344
2010 so basically uh the ult ultimately
the board of appeals is looking to issue
an order that will say to the zoning in
administrator here take these plans
that's the uh uh now I'm going to for
the purposes of this presentation I'm
going to ignore the second part of the
standard which you've been reviewing of
that it will go to the Planning
Commission for their review and that in
essence the Planning Commission will
have an expedited hearing uh under some
other law right now I'm going to ignore
that BAS basically the order in which
you're being asked to apply is that to
the zoning administrator here take this
well just is to let you know the zoning
administrator is going to say no I'm not
going to take that because the board of
appeals does not have the authority to
tell me to do anything the board of
appeals doesn't have the jurisdiction to
tell another town official to do
anything and especially the uh the town
law is what the town law is and if the
board of appeals wants to try to change
the town law with regard to these
applications they can try but the Dison
administrator is not going to follow
whatever supposed law that the board of
appeals thinks that they may or may not
have as well as the instruction of the
Town Council that she is not going to
the to zoning administrator is not going
to accept that order and accept these
plans that's going to be interesting
yeah apparently is testifying about what
the zoning administr a decision the
zoning administrators had made about
whether they would if the
board if the board issued the order that
we requested that they would reject
it that would need
testimony I can tell you I only me
change that to make to to please you um
I am telling you what I I think is going
to be presumed as to what's going to
happen so obviously I don't have a
crystal ball but I have an idea as to
what's going to happen so that's what my
understanding as the probability is
going to happen if it satisfies your
concerns Mr Blitz oh please continue um
so here we are so it's uh basically it's
taken 35 hours to in essence for the
board to come back and in essence pass
an order for the zon administrator to
say here um and so we will see what
happens with regard to that now earlier
on the proceeding uh a number of letters
were submitted by Town officials uh and
those came from the Town Council from
the zoning administrator and also the
Planning Commission and what happened
was there was a lot of you know
consternation going on why is pounds
doing this why is pounds doing that why
is he submitted these ex that's an
expart communication which it isn't but
you know at least accuse me of the right
thing okay that came out that but
everybody was informed now I'm going to
tell you the reason that that was done
because I wanted to make sure that this
board was completely aware early in
these proceedings many many months ago
many many meetings ago that in desence
you were informed specifically by the
town official that the Town Council the
zoning administrator and also the
Planning Commission that you don't have
the authority to do is being asked so
we're not going to get I could have
easily waited till tonight to to
introduce all of those records but I
wanted to make sure that you were given
all of that notice way back when you can
yell at me all you want to don't care
because I wanted to make sure that the
record was clear that you were informed
many many months ago many many meetings
ago as to what the law was and uh as
what the others individual that that
board of appeals does not have this
Authority
now so it is Undisputed
that the Town Council has issued
ordinances and resolutions to protect a
particular issue um in a way that the
board of appeals believes that they have
the power to over overrule the Town
Council and those
decisions uh and is is apparent that the
board of appeals believes that it has
the authority to overrule the Town
Council uh was indicated in the record
and from the town officials that is
untrue uh also if indeed the board of
appeals believes that it has the ability
to overturn various laws to for this
application to have uh houses being
built in a flood plane and again the
flood plane isn't is based upon the
testimony of the applicant's own expert
then also it is important for the board
of appeals to change other laws and and
in essence to vetos other laws which
have been passed by Council which are
going to affect this application in
including the coastal resiliency plan
and also the critical areas plan which
also must be changed because those will
also have an adverse effect on this
application so here we are in a
situation in which it is presumed and
believed that the order from the uh uh
board of appeals to the zoning
administrator uh is going to order that
person to do a particular thing and that
person doesn't uh is not going to do it
as what is believed is going to happen
now what um because if you simply order
them to say here and they say no so we
have a situation and appears one of the
primary problems with regard to this
proceedings is that it appears that
there's only a few people that believes
the board of appeals uh actually has
this Authority um obviously Mr Blitz
believes that you do but but the rest of
the board is sitting up on the dis we
don't know and I guess we'll make that
determination with regard to uh the
issue and the order that's ultimately
issued excuse
me so I think so all obviously also as
indicated in an earlier letter you know
there's been a lot of discussion with
regard to a moratorium and what what
should be appropriately you know uh done
uh what's interesting and that this is
going to be a complete side note you
know
this is completely offside note but you
know Mr susman and I were at a lunch the
other day and the iron is at the chief
judge or the justice that was there
actually began discussions about
resolutions and ordinances and and their
applicability and I started to call her
as a witness which would have been fun
but um uh but what we are doing here is
certainly so with regard to where we
are and and as part of my present ation
I'm finding it hard to believe that
we've been here for 35 hours and spent
many many thousands of dollars in town
resources not to in essence have some
type of order being issued um uh indeed
that could have been stopped earlier on
but it was not one of the things that Mr
blit Mr Blitz has been saying many many
times is for the board to issue the
permit issue it I mean I've said it many times I mean if you think you have
that authority to do it feel free to do
that okay and just to let you know and I
want to make sure you understand with my
old uh hat as a zoning lawyer when you
issue a permit it means become you
become liable you're the one that
becomes liable if you issue and you sign
off on it you become liable for that
application so and obviously the since
the board of appeals is not an entity
sign off on yourselves and these houses
that are in a flood plane that in
doesn't get flooded or people that are
harmed is they're going to go after the
people that in essence sign that
permit nothing can stop you from doing
it okay the town's not doing that okay
but indeed if Mr Blitz has told you many
times throughout the be's proceedings
you have the authority and issue the
permit do it I mean you know sign off on
yourself and please feel free to do it
yourself so so now the questions have
reson as to whether uh the board Bo's
actions are in essence to overrule a
particular law or actions of the Town
Council or the perceived perceived
ability or the power to overrule the
town in the way it acts or whether
indeed this is a
misrepresentation as to the public
that's what scares me okay because if
indeed that there there has been
an idea and representations by this
board that you have the authority to
overturn these actions by Council and
the council's actions are law okay that
is done so now if you indeed have uh can
make this representation through
whatever mechanism in which we've been
sitting here for a long time uh and
we're going to be talking about the
powers in which you've been told you
have um indeed if you sit there and say
well we have this power to do this the
question comes into is that a
misrepresentation to the public
now that's what that's and and so why I
care you know and I'll be C candid I
really don't care what happens to the
board uh I care what happens to the
public because as I've said many many
times I have been charged by the Town
Council you protect the public and uh
and so that's what I ful intend to
do now um
uh now and and again to let to let you
know as you know and as I've speeded I'm
the town attorney for uh the um uh Town
Council if indeed somebody came to that
dis during a town council meeting and
said that I think you have powers that
the Town Council does not have
I'd have stopped him like that and said
no the Town Council does not have
authority to do that the mayor would
have stopped them like that and said no
the Town Council does not have the
authority to do that the council would
have said no the council does not have
authority but the board of appeals chose
not to do that with regard to all uh
going through this entire proceeding so
let's go over exactly all the powers
that you've been informed and I've been
keeping track uh which has been sort of
fun for me too so basically uh the board
of appeals include including that you
can order individuals to engage in acts
so it's interesting because you know
when you're dealing with variances or
you're dealing with property that's one
thing but now when you're being ordered
individuals to actually engage and tell
them an individual what you can do that
is something that even the courts are
very limited because it's very specific
as to what they can do but the courts
have that ability but you've been
informed that indeed you can order
individuals to engage in Acts by telling
the zoning zoning administrator you will
do something now also you've been told
that you have the power to order Town
officials to engage in Acts by by saying
that the zoning administrator and the
Planning Commission will in will do a
particular act as well as you will
overturn uh uh or laws that have been
passed by the County Council again that
is a very specific law and that is
something that you simply do not D do
next is power over administrative
agencies that in essence you're going to
issue an order to tell the Planning
Commission what they can and can't do
that they will in essence hear a case on
an expedited basis at as well as the law
that they will follow and in essence
that you will tell the administrative
agencies how to hear cases next is power
the board of appeals to tell the
administration how to rule on cases well
there's no sense sending it there if you
don't tell them how to rule because
otherwise what's the point of of of Ying
so it's presumed that this you've told
them how to rule on that case and then
powers to tell the administrative
agencies that they will hear the cases
on an expedited basis uh in essence you
will tell them when that they will hear
the case not only hearing the case but
also doing it powers to require them to
follow a particular law that is not the
current law so in essence they instead
of them advising that in essence they're
going to follow the law that they think
is appropriate no you're being told
throughout this that indeed they you
will we're going to order them to follow
another current law next is the power
over revenue and Taxation Authority
which is interesting
because the this this document here that
was introduced by Mr Hayes and also I've
got a document here in which uh as I
thought was introduced earlier uh by Mr
sus by Mr um uh blitz so basically as
indicated by uh Miss Hayes and also that
in essent there's a dispute with regard
to fees and connection fees with regard
to the usages of water and and US of the
sewer so Miss Hayes in which you've
already introduced that into the record
now and I'm going to be introducing uh you know in this was a letter from Mr
Blitz that in essence discusses this
water and connection fees now why is
that important because in essence
this is a public document which has been
uh submitted before the uh uh Town
Council my clients reserve the right uh
reserves the right to appeal first to
the board of appeals so it's interesting
in that uh in essence now the board of
appeals has new rights uh with regard to
connections and the fees associated with
those connections uh in which I don't
know if you even knew that you were
being told but it's being represented
because it is now in the town record
that somehow the board of appeals
according to Mr Blitz has that ability
to review these connections with deal
with fees and also you've introduced the
letter from Miss Hayes which in essence
uh also has to do with
fees I did did not make the
argument to anyone that the board of
appeals had the authority to review edu
counts you're having a letter described
to you that was submitted as an expar
communication and has not yet been
entered into the record it should be
that that step should go first before we
discuss what I say about it or my
opinions that's why I'm
objecting Mr pound is free to make all
the arguments he wants obviously about
that letter I'll have a rejoiner my
point is he's making a bunch of
arguments about something that I said
that hasn't been submitted to you yet in
the record would you like to enter that
letter
sure and and I was going to introduce it
anyway but uh again this dealt with just
so the record is clear uh right now the
only thing I was talking about is these
additional powers that apparently you're
being told that you have which is a
question that you don't
so you just have one copy for the
board oh I'm I thought this was the
additional thing the letter from Blitz
you said you were submitting that's
something different
at this point I'm going to object to the
introduction of this as an exhibit well
it's a public record I mean you know you
can like it or not but it's the the town
records I could be heed on heard on the
objection Mr pounds is trying to
introduce a letter about an issue that
has absolutely nothing to do with the
board of appeals case that you're
hearing it is a separate zoning
violation for different property rotten
re property and a and a contest about
the edus this is completely irrelevant
to this case and should not be
considered it was objectionable when it
was submitted as an next parte it's
objectionable now it's simply not
relevant to any aspect of this case
doesn't touch the properties doesn't
impact the
properties
and Mr pounds is making
well I I'll leave it there for the
objection as to the exhibit if if if
you're going to admit the exhibit then
I've got other arguments but my point is
this is bringing in something that is
completely irrelevant to this case i'
like to ask Mr susman to review this
well I I can tell you you know if it
makes it easier Mr susman I can tell you
what the only thing I care about is my
comment that poers over revenue and
Taxation which indeed Mr assman put in
his letter Mr Blitz put in his letter so
whether you want to introduce the letter
or not I really don't care okay but but
what what important to me is that's what
was said it's in the town records and to
make sure that indeed the board is
informed that the board is being the
board is being represented that indeed
you have that power also so except that
it doesn't say that let me explain the
context just so you
understand this rod and reel for the rod
and reel development Pro property
received a notice of violation for two
thing for a series of things some of
which were zoning and some of which were
for a dispute about
edus I responded and in this
case I was responding about
um the fact that I'm providing the
evidence against the edus and I'm saying
with respect to any violation of a
zoning ordinance I'm reserving the right
to appeal to the board because that's
literally your the power you have is if
there's a zoning violation somebody can
come and appeal this to the board of
appeals all I was doing was saying that
but it has nothing to do with this case
it's merely saying you brought two a
series of things some of which are
zoning
violations in the in the notice of
violation we're merely preserving our
right to rather than send this letter
also take the case to the board of
appeals should we need to my point is
this is about a different property from
the properties we're dealing with and
has nothing to do with the case and has
really almost nothing to do with the
board of appeals power literally all I'm
doing is saying we reserve our right to
go to the board of appeals if if we have
to in this other case
we're going to allow this into the
record um as stated and not as a power
of forward as what's been represented
here please continue Mr poun okay so
next the power which has been uh
discussed is the power to determine
taking of property issues and what's
interesting we had taking of property
issues uh which is interesting we had
almost a full hearing to discuss uh
whether indeed this is was a taking and
I think it was interesting in that uh a
council for the applicant came but
refused to answer questions uh you know
with regard to any of that which is uh
interesting too now Mr susman and Mr
Blitz fully know know what the term
taking means and taking is a very unique
term of Art in the law it means that in
essence
um uh that that nearly all the property
rights and ability have been taken from
the owner which is interesting because
now we're not dealing with his ability
to do various things because in essence
it's been admitted and also been
determined that we're talking about
property which is in the flood plane uh
so any limitations on its property would
be more uh as a result of environmental
or that as opposed to any take
that inessence was subject to any
resoning of his property or actions by
Council as indicated by the cases which
I said earlier we are a long way from as
the law currently exists permits being
issued construction beginning and
construction that is in essence also VI
visible to the public so there uh that
application generally is not uh at all
applicable
next is um General powers and authority
to overturn the decisions of Town
Council so basically in these
applications that that in essence I'm
going to presume that you're going to
issue an order because we've been here
the way we have that in essence in order
to move forward the the this board's
also going to have to make sure that
indeed overturns other laws which have
been uh put forward by the Town Council
including Coastal resiliency and uh laws
with with regard to critical area
because with regard that overturning
those laws in essence uh this your your
order you know doesn't have much effect
either which was interesting is the per
Mr Blitz issue with regard to
constitutionality that one I put a
little smiley face by because in essence
uh the board of appeals in essence is
being told to review Supreme Court cases
or cases from the supr Supreme Court of
Maryland and in essence to make that
determination
as to what is appropriate most Circuit
Court judges don't do that uh most
Circuit Court judges will not overturn
or impose their opinions upon you
especially upon you know any case upon
if indeed the uh uh Court special
Supreme Court or Supreme Court of
Maryland makes those issues of The
confid Confident constitutionality but
uh you were being instructed and it was
earlier on uh that indeed the board of appeals needs to also
address those uh issues of
constitutionality then in a recent
hearing uh that in essence that the
board of appeals is exhausting the
administrative remedies in order to
eventually get to court um in essence
you know and that's the law is is that
in essence when you have uh remedies
that in essence you are required to go
through an administrative counsel before
administrative counsil or administrative
agency before you can go to court but we
started in court I mean this this isn't
something that you know you need to go
through an administrative exhausting
administrative agency and I put two
smiley faces by that one because you're
saying that we need to go through this
process to get to court when in essence
we started in court to begin with so why
are you being informed that indeed you
have needed to do that in the first
place so uh again uh and one and again
I'm going to reiterate it one of the
interesting things that has been said a
number of times is that this board
should go ahead and actually issue the
permits well again I encourage it uh
indeed sign off on it so you know and
actually allow the applicant to begin
these construction of these houses in
the flood plane but in essence as I
stated when you sign off on an
application if somebody gets hurt or
some property gets damaged the person
who signs it is the one who becomes Li
so feel free uh that that that will be a
decision for the
board now earlier
on uh in this process we had a situation
in which Mr Blitz was sworn
in excuse me
again and this again this causes me a
great deal of concern so Mr Blitz was
sworn in and um uh and then during the
process there was an email sent to uh
that in essence discussed the process of
cross-examination of Mr Blitz and uh
what H and during that process which is
in evidence it stated that
indeed uh Mr Blitz was under oath unless
he changed his mind and that was a
letter an email from Mr susman he said
after my discussion with
um with the chair and in essence unless
Mr Blitz objects to any questions is
what the uh actual phrase was I saw that
at the beginning when it was first sent
ignored it but suddenly and what causes
me pause and concern was at the end of
the applicant's case when Mr Blitz said
no I've changed my mind I am no longer
under oath I've decided that I was never
under oath and in essence that by I
didn't didn't don't have that testimony
objection I never said I changed my mind
okay I merely said I was not testifying
and being cross-examined like a witness
and I explained the reasons why I never
said I changed my mind okay the the
testimony was I was not I'm not under
oath and I was never under oath and
that's fine you know let the record
State what whatever the record States
but my concern is the appearance and
I'll be frank with you and I'm going to
be candid that how did you know Mr BL
was going to do this that's what bothers
me than anything else unless Mr Blitz
objects to the question this was done
many many months before Mr Blitz decided
that I'm no longer under oath that in
essence uh and that that is in the
record and uh I'm going to leave that up
to you but what concerns me is um now as
soon as Mr Blitz did that this is a huge
concern I have I immediately said I
object and I move to strike
and then it was
denied that in essence so Mr Blitz
turned around and changed his mind as to
well I'm going to change my mind
rephrase that to make him he said I am
no longer under oath but what what is
the now the meaning of
that testimony or whatever it is because
under oath the people thought he was
under oath and then all of a sudden not
under oath because he changed it so and
then in instead of uh approve saying
granted it was
denied so I'm sitting here thinking to
myself there's no way they're going to
deny it twice there's no way he's going
to do that I again that night objection
moveed to strike his in testimony denied
so now we have a question out there of
what's the truth how do the public
supposed to know what indeed throughout
this entire 35 hours of testimony except
for the limited testimony of the other
witnesses as to what actually happened
here and whether this is testimony or
not I don't know but I got I have a
great concern as to in essence
what exactly happened and most
importantly that misrepresentations were
not made to the public because I can
tell you there is absolutely misconduct
that is worse nothing worse than a
governmental agency who makes
misrepresentations and in essence spends
the public but that's and I want to make
I'm not accusing anybody but I'm just
saying the appearance causes me pause
and I'm very concerned about the way
that has proceeded because who knows
what that 35 hours of testimony was who
knows nobody knows I mean what is it was
it testimony was it not testimony but
what I do know is that the public was
misled so we have a situation in which
there which I'm presuming that there's
going to be an order issued to tell the
zon administrator here um and I'm also
presuming that in essence The Zone
administrator is going to say no
so you know there been it's been said
you know many times through various witnesses that this is a process
and proceedings that belongs in court
well there's there's no dispute that
this started in court and in essence it
was Mr Blitz who wanted this case to go
before the board of appeals but I think
it's interesting in that right at the
near the beginning of the case the Mr
the chair said we do not handle this
type of matter we generally do not
handle this type of
matter which is an interesting uh uh how
this is going to proceed from this point
so if indeed the court issues an order
okay which I've stated I'm fully
expecting some type of order to be
issued because otherwise we've been
sitting here for the last 35 hours and
spend a tremendous amount of money so
and the Zone administrator says no now
what uh so now what's going to happen if
indeed the board then tries to go to
court to enforce this well then that
means this whole proceedings was nothing
more than a sham because we were in
court to begin with and we're here so
now we have to go back to court to
indeed enforce powers in which you in
essence did not
have um again this as a as an attorney
who's been doing Municipal work for
almost 30 years this is extremely
serious to me this is exactly the type
of um uh thing that in essence I am told
to stop okay the Town Council has told
me to stop it to in essence protect the
public and based upon what has happened
it concerns me that there was an
intentional spinning of the public by
the government that I'm not going to put
up with um so but you you do whatever
you want to do and we'll see so what's
uh also interesting about this is uh
early on in the proceeding there is a
question about how the board is going to
vote okay in essence that in essence
many uh a couple of the board members
missed meetings and as a result that
they missed testimony so in essence they
can't vote because in the end I can
disagree with Mr sesan's assessment that
they can't go back and look at the video
because the code doesn't provide that I
get it that's fine the problem is with
Mr blitz's uh withdrawal of his
testimony or withdrawal of his swearing
in and we don't know exactly what
process that
is there's no reason why everybody can't
vote because in essence you know that is no longer testimony there's no
longer evidence because in essence
there's no reason why they can't go back
and look at that meeting that they
missed and make that
determination so that's going to be very
interesting uh and I can tell you either
way either if it's going to be three
people or if it's going to be everybody
else that's going to be entitled to vote
because of where we are right now now
and because of the fact that we don't
know what the testimony is or what
indeed has been introduced into evidence
or where it was both answers are going
to be wrong okay however you vote both
answers are going to be incorrect
because in essence who's going to be
right I've never even heard of that
before that in essence how are you going
to handle that situation and how is that
vote going to occur so I can tell you
either way it's going to be
unenforceable because somebody's going
to have to somebody much smarter than
all of us are going to is going to have
to review that to make that
determination because now you've got an
issue as to who can vote who knows okay
now uh the obviously this is going to be
going on
um okay so basically let's make sure we
you know I go over briefly um how we are
here basically what happened
approximately 12 to 14 years ago permits
were issued for this development the
developer didn't build pursu to these
event uh these permits that were issued
the permits were extended but again uh
for various reasons one way the other he
chose not to build so for the purpos of
the proceeding I'm to div you know avoid
any issues that we discussed before
about you know Mr Blitz and whether he
was attorney for the board attorney for
the town ignore all of that but what's
important is um uh in essence there was
a determination that indeed uh the
comprehensive uh plan was indeed going
through the process and uh again there's
no dispute uh by Mr Woodburn or by the
applicant who both testified that indeed
these properties are in the flood plane
just object just to clarify Woodburn Mr
uh Donovan did not testify that all the
properties are in the flood plane home
place is clearly not in the flood plane
not anywhere close to the flood plane so
lumping all the properties in together
and this discussion I'll I'll address
the flood plane arguments later but I
just want to point out that home place
isn't anywhere close to a flood plan
then then I can I can I can only stay
what they said in their testimony okay
but uh with that profer I won't object
to that offer and so if I do say
properties is in the flood plane let's
assume that I also say that excluding
the Home Place uh but rest a little more
uh so in essence
so what's interesting is so the
applicant um uh decided that indeed he F
wanted to prepare these applications
during the comprehensive plan
process and according to Mr Donovan you
know you went and talked to the the
zoning administrator at that time who
said no uh that in essence he's not
going to uh he's going to rezone it to
take these property out of development
Mr Donovan stated that indeed it never
went to the Planning Commission which
the Planning Commission had an
incredibly long process um as a personal
opinion it went on too long but in
essence everybody got heard everybody
you know there was meeting after meeting hearing after hearing that
in essence and uh with for the Planning
Commission and Mr Donovan said that he
never participated in the Planning
Commission process also you know it goes
to the Town Council and he met with a
couple of the members who also stated
they're not making any changes to the
Planning Commission so we have an issue
with regard to uh in essence the uh
question is did he really take the
necessary steps to protect his own
property or
was this the idea that I'm just going to
file these applications and see what
happens and I think it's in essence um
with regard to something that both Mr
Donovan and also Mr Woodburn said said
and you know with regard to their review
is the quoting term things
change uh I mean unfortunately in ches
Pake Beach things change especially in
the last 12 to 14 years and and also
after those applications in essence
expired 10 years go by before in essence
he files he prepares these applications
uh with regard to the comprehensive
plan so in essence uh uh the
comprehensive plan process goes through
and it's made its decision that um that
indeed uh
Mr the applicant really did not
participate in the whole comprehensive
plan process except for to file these
appli ations
so what is important here and um is and
I want to be absolutely stressed in on
the record of the importance of the
board of appeals uh the board of appeals
plays a fundamental and vital role in
the function of government to avoid
hardships as a they appear that's what's
important for the board to do but uh uh
what's important is you know for those
in to make sure that people are not
hared by uh hardships when variances can
fix this matter but the problem is is
that that does not apply to applications
for zones or changing the zones or
overturning uh decisions of Town Council
so the question is um you know earlier
on the coun the chair said we do not
generally handle this type of matter
which begs the question of why now so uh
there are two things that concern me and
I'm going to put them on the record
number one is that the in essence the
board of appeals is completely correct
that indeed you have all of these
authorities and powers that in essence
uh are outlined and requested by Mr
Blitz that indeed you have the authority
to do pretty much anything you want to
and overturn the ability of Town Council
and overturn any law that they've passed
um I do not believe that the you've
already gotten records letters in the
record and and also that in essence you
don't have that Authority the other part
of this is that in essence Mr Blitz is
wrong that in essence then the question
is what is the impression that you have
in essence imposed upon the public um
that becomes deadly serious okay and you
know I sent a letter a little while ago
you know I advise you to get your own
lawyer oh Todd's crazy pounds is crazy
and everything else
um you know I would not want to be in
that position but that's that's
completely your decision because in Ence
the board of appeals is the one who put
themselves into this position
but so basically so the question is
what's going to happen
next and this is again my presumption as
to where we are and where we're going so
I think the board's going to issue an
order because 30 5 hours all this time
all these months all these thousands of
dollars spent I can't imagine an order
not being spent that's fine now with
regard to the order it's going to have
to be specific uh it's not going to be
and I wrote down the word slop uh it's
not going to be you're going to have to
do details not only the findings of fact
but also the legal basis as to how the
board of appeals has the full legal
ability to overturn Council and to and
again to show these powers that indeed
you're going to order the zoning
administrator to take a particular act
and I'm presuming and believe the zoning
administrator is going to say no I'm
going to follow the law and the
instructions of the Town Council and how
you're going to enforce that that's
going to have to be in the order so then
um as I stated once the order is done
then it's going to be given to the
zoning administrator who again is my
understanding is going to be rejected so
where does that leave all of us um uh
with regard to my concern again is how
has this been presented to the public um
that's a great deal that I have concerns
um so you've you've you've already been
told and I did it on purpose that in
essence early on in the proceeding by
the Town Council by the zoning
administrator and also the Planning
Commission you don't have the authority
to do any of the things which you are
being told pursuing the standard to do
now again I could have waited till the
night could have waited till the night
to do it but no no no I wanted to be
able to look at you and say you were
fully informed you had notice many many
months ago many many hearings ago you
were fully informed and chose to ignore
it and that's your option but uh
again I wanted to make sure that indeed
that is the reason that was done is
because that plan was done many many uh months ago so this is going to be
I'll be frank for for a lawyer for my
purposes it's going to be fun to watch I
mean uh like I said I'm presuming an
order is going to be done I'm I'm
expressing I'm expecting an order to be
sent the zoning administrator is going
to rejecting it um and in essence you're
going have to show me the powers to
enfor what you're doing in essence the
zoning administrator rejects it the Town
Council rejects it so now you have to go
to court to say no court we do have the
powers to do all this when in essence we
started out in court so the question is
if we start it out in court why don't
you have the power to enforce it
yourself so again um
uh so
again that's where I believe we are and
the town's position with regard to the
case so in essence to if you want to see
these um uh cases would you like them
now or would you like them later or I
don't I I didn't bring enough for
everybody um would you like me to
resubmit enough to everybody uh that's
completely up to you regarding the cases
of dealing with vesting uh in other
words at some point with regard to these
applications because what's important is
oh these applications say I've got
property rights well no you don't um
property rights occur in the recent
cases permit Construction Construction
that's visible to the public uh we are
we're absolutely nowhere near that and
again what's fun is another case here
which you can review is that a uh uh um
board of appeals can overturn Town
Council which you can look at that you
know for fun also but that uh is the
town's presentation uh again with regard
to the introduction of these would you
like to do that now or would you like to
do that later how would you like to do
that I I I would you want me to submit
others with everybody email it to
everybody
out I was gonna say email to Shar okay
so I'm gonna give uh one copy of each of
them to Sharon and then I will email the
rest of it to everybody
else what are you wait we're getting
documents submitted outside the context
of the meeting as exhibits what getting
the cases that Mr pound cited just
now yes physical copies right there just
not enough for the rest of
us that how's
working okay so you're going to submit
them to the clerk now so that it's in
the record that they've been submitted
and then you're going to follow up with
an email copies digital copies is that
what the idea is passing it to Sharon
will be good get it Sharon we'll get the
rest of it that acceptable and these are
just court cases right that's right
the record I'm going to do this and then
make the note and then I will email you
tomorrow and copies of all the cases for
everyone I do have an extra copy if
anybody would like to have that for the
record I will be emailing
that okay thank you Mr pounds uh let's
go ahead and take 10 minut or let's take
five minutes and we will reconvene for
any questions for Mr pounds
here
so Mr sesman I only have one copy of the
taba County case um do you want me to
submit this and I can just reprint
another one when I email that or how
would you like me to do that that was
that case in which says the board of
appeals can't overturn the council book
I don't get whatever you want however
you want I can submit it and just re
print another
copy okay submit
this okay
four yeah three three dealing with the
vesting issue and then one dealing with
the
other for
[Music]
spe
talk
[Music]
oh yeah yeah yeah
how did you guys
do I text should
text
not but
show
e
[Music]
okay um we are reconvening for questions
from Mr pounds at this time we will
allow any parties of record to ask
questions of the town's presentation
questions should be limited in scope to
address the information presented please
step forward announce who you are and
who you represent and your name and
address on the signing sheet you may
then direct your questions to the
relevant party um and the board may also
ask
questions um Mr susman would you mind
doing a blanket swearing in of all like
is any member of the public planning to
step forward and ask
questions um do we want to
do uh are you planning on
questioning very okay um since we're
doing this um we're still following the
guidelines established during the May
29th session with Mr fiser um the line
between cross-examining clarifying
questions isn't something the board
feels comfortable delineating but the
board has decided to allow allow
questions if lawyers feel that this
violates the 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
refuser refusal to answer the questioner
may profer as what questions would be
posed given the opportunity um and I'd
advise that if um yes you may use your
uh go ahead um Mr uh thank you Mr chair
um Mr
pounds you discussed that we had already
gone to
court and isn't it true that we didn't
go to court on the substance of this
case we went to court to allow this
proceeding to even occur that is it was
a proceeding of
mandamus to have admin ministrative
relief which is what we asked for so we
didn't ask to go to court first
we filed an appeal to this board and you
sent a letter saying we can't have it so
we went to court isn't that
true what my testimony is is that we
were in court and that in essence
there's no dispute that the court has
jurisdiction to hear all of this case
and that for some reason Mr Blitz didn't
want a court he wanted that in essence
to come and have this board hear the
case that was the question that that in the presentation as I do and my
question is we were in court you could
have filed an amended complaint we were
there let's do there okay and I never
consented to any of this so to answer
your question you are correct but my
point is
why you know if Court can resolve this
why did you want the board of appeals so
badly that's the point I was
making I just want to make it clear to
the board we we originally came after we
were denied planning site plan re after
the Roden reel was denied site plan
review and zoning permit review we filed
appeal to the board contesting that yes
let me make sure um I want to we we will
have a time for summaries and
clarifications yes I I agree this is
kind of argumentative make questions to
Mr P uh Mr okay no that's fair
Mr pounds when you sent the letter to
the rod and reel or to
me to
me saying that
the we couldn't have this board of
appeals hearing at that time were you
representing the board of
appeals I don't know letter you're
speaking of it's in the it's in the
record and we submitted the
letter I don't so
many we can we can discuss later I I
don't mind referring that later but I I
don't remember what you're talking
about actually it might be fine faster
for me to find it this
way so You' like we can reserve that to
a future meetings as we're going to be
back and we can answer the question
later that's up to the
chair take a moment to look and if not
let's move along
we'll just Reserve
that um let's see
no further
questions thank you does any member of
the board have questions they'd like to
ask this yeah I have one question um Mr
pounds you made this statement several
times that this
board has no power to direct Planning
and
Zoning to take any
action ordinance uh the ordinance that
empowers the board
29032 um gives us the power to decide on
matters of
interpretation or errors in an
order by the administrator
or Planning and Zoning
commission so if this board were to
decide a matter let's say not this
matter in particular but let's say just
hypothetically
would decide that the Planning and
Zoning
administrator incorrectly interpreted
some
provision are you implying that this
board does not have the authority to
direct planing and Zoning
administrator
to change his mind on an interpretation
of a provision and and I want to make
sure so basically I think it's very
interesting the fact that you the
examples that you just gave where errors
in the order of a zoning administrator
okay that is exactly what the board of
appeals is designed to do to make sure
that indeed if the zoning administrator
goes out there and makes a mistake or
issues a uh a decision with regard to a
piece of property that creates a
hardship or that indeed the strict
interpretation creates a hardship which
as you know is your standard that in
essence the that homeowner where than
being stuck with that with the absolute
interpetation has a place to go that is
absolutely what it is but I think that
but I'm going to answer your question
directly that with regard to the um uh
incorrect interpretation by the zoning
administrator so in essence what you've
done is saying okay you've had the
zoning administrator who believes that
the Town Council is the one who makes
the laws they have made the laws they
have instructions from the Town Council
as to how those laws are going to be
interpreted now your question is in
essence well no we're going to issue our
interpretation of it and now the zoning
Administration zoning administrator is
to interpret uh our belief and
interpretation rather than the Town
Council I am presuming I ask you to let
me finish first I am presuming based
upon what I understand that the Zone
administrator is going to say no I'm
following the law I'm following the Town
Council I'm following the instructions
of the Town Council that's my
understanding as to what and we're
talking about your hypothetical
obviously well you you're you're
assuming here that uh that I'm talking
about a particular
instance in other words that this board
might direct Planning and Zoning
to
um I don't know
ignore ignore what's happened and and
direct the uh the site plans to be
reviewed under roal ordinances I'm just
I'm asking in a general way because you
made the statement that it seems to be
that under no instance can this board
direct the Planning and Zoning
administrator and yet we're allowed to
decide on matters of
interpretation and if we decide that
planning and zoning administr has
misinterpreted
something it sounds like you're saying
that we cannot tell the Planning and
Zoning
administrator to change his mind and
what's interesting is uh and then I
understand your point with regard to
your hypothetical but the problem with
your hypothetical is it does not also
add in the condition that the Town
Council says otherwise so now we are
back to the point of the the the board
of appeals believes that it can overturn
decisions of the Town Council which goes
to my point of saying at what point is
that a misrepresentation to the
public okay now and I'm and I'm going to
finish answering your question too um
because you mentioned that and I think
did your question also include the the
Planning Commission and make issuing
orders with regard to the Planning
Commission was that part of your
question yes Planning Commission and the
administrator I can't speak for the plan
commission okay I'm not here to speak
for them uh but I can tell you this uh I
think it will be amusing that in this
sense the board of appeals issues an
order telling the Planning Commission to
do
something uh do me a favor could can you
invite me to to when that meeting is
because the Planning Commission will
probably tell the board of appeals what
they can do with your
order so so but I I can't speak for them
but I I think that will be fun to watch
oh if if the Planning and Zoning admin
ministrator or commission issues an
order and the board of appeals decides
that that order there's a
misinterpretation involved in that
order are you saying that this board
cannot reverse that
order again could you repeat the
question because your question was was
dealt with multiple people involved and
ultimately I think the answer is going
to be the same but um uh I'm going to
ask you to repeat it thing because I
want to make sure the record is clear as
to what we're talking about because I
can tell you where we're going to go
with
it if an order is issued by the
administrator or the Planning and Zoning
commission to a developer
say and this board decides that that
order um was an error because it it
because it was a result of a
misinterpretation
CIF I can stop you there when you say an
order was issued who issued that order
that you just referred to Manning and
only administrator or the commission
planning on commission okay so they're
the ones that issue the order yes okay
and then you decide can you decide I
apologize I want to make sure I
understand it so the question is can is
if can the board of appeals in essence
act to overrule the Planning Commission
and if the board of appeals thinks that
the Planning Commission overruled
something or made a
mistake correct you know it's
interesting I think that's that's in my
if you want my opinion or I think you
better raise that with the Planning
Commission first because I'm not going
to be telling with the Planning
Commission what they can and cannot do
in that instance they are an independent
body they're an independent agency in
this town and in essence the question is
do you have the authority to overrule
that other administrative body is in ESS
is what your question is okay and you
can ask them but if they were to ask me
I would say no they're going to make
their own decisions with regard to it
and you know in essence and if Town
Council says something different that's
going to control in my opinion if this
board has the power to decide and that's
what the ordinance
says decide on an order
and if that decision doesn't result in a
change what's the point when you say
result in a change what does that mean
well again getting back to let's say the
Planning and Zoning administrator issues
an order to a
developer and this and and that
developer comes to this
board and argues that the order was an
error because of some
misinterpretation and this board decides
that that order would should not have
been issued because of a
misinterpretation that we cannot go back
to that to the to the
administrator to say reverse the order
withdraw the order I want to make sure
we understand exactly what you're saying
okay because in this case it was not the
Zone administrator it was Town Council
who issued the order
I talking about a general case I'm not
talking
about necessarily this particular case
and and and I agree with you okay if
indeed the zoning
administrator has an application and uh
and he makes a decision okay that is the
purpose of the board of appeals is to
for to have uh the public or the
applicant over uh uh make that decision
as opposed to the zoning administrator's
decision in essence to show hardship or
in essence that in essence you would
have the ability to in essence have them
make that decision now again we're
talking General right we're not talking
about this case because once you insert
Council changes all the rules okay but
the answer to your question is your
question is correct because that's what
the board of appeals is designed to do
is the zoning administrator in essence
to uh um have a remedy if they make a
decision but the problem is is this can
you order the zoning administrator which
I think is what you are making making
that thing can you order the zoning
administrator to take that other
decision no you would make the decision
and overrule them but you cannot order
them we overrule the
decision but we can't change the
decision by you cannot order them to
change it you can overrule it but you
cannot overrule them to change it I
don't understand the distinction oh
there's a huge distinction massive
distinction okay because in essence they
make a decision and then they have a
question and then they go to the board
of appeals in order to um you know uh
determine if indeed there is a hardship
because that's what the board is
establishing hardships uh let's say somebody has a deck okay and
you guys see it all the time about
somebody saying you know I've got a deck
and all of a sudden it's and I have to
put it two feet into the setback okay
and it's a corner area and it's no big
deal and the neighbor says sure I like
my neighbor go ahead and put the deck in
there zoning administrator says I'm
sorry all I can do is follow the rules
okay I don't have the ability to do
variances then they come to the board of
appeals and say oh there's a hardship
okay because this deck has a couple of
feet that in essence and nobody cares
now you guys are uh are with the ability
to make that decision you can't tell the
zoning administrator to change because
they're required to follow the language
of the law deck in the in the setback
you can't have it but you guys can say
deck okay we'll move it over what's the
big deal and and then it can be approved
can you order the zoning administrator
to do anything no can you make that
decision say yes we're going to grant
that variance yes
we cannot order a Planning and Zoning
administrator to withdraw an order oh no
I mean no absolutely not we can decide
in order but we can't tell them to
withdraw the order absolutely because in
essence what you're doing is you're
going to say hey you can hey you know
you interpret the law however you want
to interpret it you can violate the law
if you want to you know no if you want
to do that that's what your power is
okay you can't order somebody else to do
anything
I have no further
questions some questions and
clarifications um you stated that the
case that brought us all here is still
pending because you didn't agree to it
absolutely can you like we had an order
to start this so how is it still pending
oh because I I never consented to any of
this and the judge the judge said you
know judge wanted to dismiss it and I
said absolutely not because if you
dismiss it it's going to require me to
immediately file an appeal because this
is my belief that this whole process was
inappropriate and wrong to begin with so
it is still pending Mr Blitz and I have
had what six continuances five whatever
we got another one coming up in another
hearing coming up in November which I'll
speak to him about continuing that
depending on where we are with that so
but the case is still pending
um you stated also that several
officials Town officials had sent us
letters right saying that we didn't have
the right to tell them what to do
paraphrasing right um so if it were
determined that the code just say did
say that whatever else code what code I
mean like the just um the ordinance
whatever the whatever our rule or
whatever our rights are here let's just
say the the TR the legal interpretation
says we can are you saying that because
a town official said we can't that
suedes it I'm telling you say that well
no you were saying you were saying that
individuals Town Administrator Town
Council you said people individuals
wrote to us and told us we
can't say individuals you was based upon
who they are that's right right I was
just wondering if you felt that they had
more PLL than than the legal
interpretation of what is actually in
writing they might be the same they
might be the same I'm just asking you
because you told us because these
individuals said
so leg interpretation I'm not saying
that I'm saying what you said is that
these individuals told us we cannot and
therefore we cannot are
they you have a legal interpretation
that indeed you have the authority to do
that okay and if you read you know the
ordinances and so forth and the statute
that you know has been cited that we've
been talking about in ordinance okay in nauseum if you read it it doesn't say
that you have the authority okay not
answering my question no no no I I am
but the question is you know you're
asking me to make the assumption that
indeed legally you have the ability to
do that legally you don't so so uh
indeed if you think you do great okay
then I was going to say what's going to
happen is when you issue your order
you're going to have to in essence say
yes legally we have this ability and
authority to do this XYZ okay it's going
to come to me I'm going to review it to
make sure that indeed in my opinion that
indeed you do have the authority and
then I'm going to present it to the to Z
administrator okay but I'm not conceding
at all that you have the authority to
begin with at all that wasn't my
question my question was about the
individuals but okay okay go ahead the
individual no I've asked and you have
not answered but okay now please ask ask
again and I'll see if I can do you were
just stating that they said no and
therefore the answer was no that we
could not do this so do they have are
they the legal say so as to what we can
and cannot do that's interesting okay
and you're you're saying that they said
no so you have to follow them okay
that's what I heard you say Okay um
uh I'm what I in essence in saying that
you have been informed that their
position is that you have that you
cannot okay their position okay so the
question then becomes this if you engage
in conduct that in essence when you have
been fully informed that inessence of
that and you decide to issue an order
okay which can be viewed as harmful to
the public then the question is with
full knowledge as to what you've been
informed by the Town Council then I was
going to say I want to make sure you're
aware as to where we possibly could be
going with that okay because you have
been informed that that in essence you
don't have the authority now if you're
saying you do great get some legal
opinions from Mr susman okay because I
can assure you you ask me a question I'm
gonna give you a direct answer it ain't
G to stop here okay so it's going to be
yes Mr susman has the authority and that
this board has that authority to
overrule decisions of Town Council which
in essence is what this whole proceeding
is
about okay moving on um so you said that
um in regards to taking oath Mr Blitz
changed his mind when did that
occur you referenced that it occurred
but can you tell us exactly when what
point you're referring to were it
happened at a meeting in which he got up
and he said I'm not under oath I was
never under oath
and therefore I'm not under oath okay I
just thought we might have that spe I
understand we we all were I just thought
perhaps you had it in your notes as to
exactly when it
happened go through my notes
but off the top of my head I don't
remember that but it was I can tell you
this he was at the end of his
presentation um so
the abilities that this group has and
how we vote on different issues that
come to us um when those are modified or
created or whatnot who is the final say
so I this all happened before I got here
but do you have to sign off on all that
for the legality of for the town's sake
as to what happens what
basic
do if the board of appeals is going to
issue an order and it's slop okay I'm
not going to sit there and listen to
slop watch slop what I'm
asking that when when there are
different rules that we have to adhere
to and
um I don't have anything in front of me
um but whether it's you know how many
people are on this board right how we go
through these hearings different
situations like that right these are
this is a legal thing so being the
attorney for the town is that in your
purview to look at all the rules for the
different boards and committees to see
if they're if we're following processes
that are legal or no o over overturn
sure but in essence Mr susman is the
board's lawyer okay so in essence on on just to make sure that indeed Things
Are Not Unusual sure sure I've reviewed
all the rules for all of the all the
administrative boards you know in the
town sure okay well because you stated
that whether there's three of us that
Vote or five of us that vote it's all
wrong um so that implies that the very
basis
of our being is flawed no and I'm just
wondering how then are you interpreting
that whether it's three or five or wrong
no no if indeed there was uh evidence
which was been presented and in essence
because a couple of members didn't make
proceedings then yes uh it would be
three that would have to make the
decision okay because U you know Mr
sesman and I discussed it early on
because in essence uh the code does not
permit you to go watch it on the video
tape okay but the problem is that now
when they in Ence I've changed my mind
for that almost what 30 some hours of
was it testimony or evidence or whatever
it is what was it I don't know okay but
what's important is
we don't know what it is so in essence
you're not held by that standard anymore
because in essence we don't know what
evidence or testimony came in didn't
come in was applicable not applicable
nobody knows anymore because that's the
way the hearing preceded now the
question is because we don't know
whatever that
was where does that leave the board I
don't know okay and I can tell you one
way or the other who knows uh and I can
tell you I have never heard of a
situation in which what happened never
even heard of it so in
Ence however happened then I would say
part of that's going to have to be yes
we have the ability to vote this way
but I can tell you it is not it is not
going to be enforced one way or the
other okay and I was going to say it's
going to have to be some type of Appel
of Judges come up because I I've never
even heard of a case like that
right thanks for the
clarifications any further questions Mr
pounds okay thank you Mr pounds okay and
I can tell you Mr chair you know I'm I'm
somebody who is believes in being open
you know we're going to have another
hearing on what I think is the 13th if
somebody has another
question I'll answer it okay I mean so I
mean I'm not going to sit there and say
this is it it's all done I mean just you
know I'm here I'll be available it works
okay um is there any other business
actually let me I have a point if you're
ready to hear it yeah so there was a lot
of discussion about an
issue there was a lot of discussion just
now about an issue that I have no idea
what it is and why it's being talked
about and apparently there's been
discussions outside the context of this
hearing about the number of people who
can vote on this thing that was never
brought up and discussed and you haven't
heard my input on that point so what are
we talking about apparently there's some
issue that hasn't been part of the
record this is a proceeding issue all
this Mr Mr Suman would you like to
summarize the issue Mr Bliss is that
under the uh town code uh a decision of
the board had to be made by uh a
majority of the entire board who
attended the
proceedings and just for clarification
so Mr susman and I haven't had any
expart communication he was sitting up
there and we said how many the number
and I looked at him I said three and he nodded so that's how that is all
the discussions he and I have had on
it okay so at some point I'm going to do
a my opinion on that that issue or do
you not even need my op no I welcome it
I mean I I welcome Mr blitz's opinion
and um send me a copy too I mean so I
can review that so yes I'm not gonna
provide it in writing I'm gon provide it
to the board in in an open
meeting maybe uh provided at the next
meeting yes that's what I would
suggest what what provision of the town
code you don't you if you don't know
then don't I'll look I don't have it
right here in front of me in the
board's describing the board's Authority
yes thank you okay um so we are
announcing the next meeting which is
November 13 2024 at 6:30 p.m. um because
we have concluded uh the town's
presentation and questioning this
session will be a dedicated meeting to
receive public comments if members of
the public would like to be heard and
November 13th 6:30 p.m. is when they
should attend um that is all we will do
during that particular session if it's
five minutes if it's five minutes if it
goes on it goes on um okay uh is there
any other business before the board at
this
time hearing none I'll entertain a
motion to
adjourn I will make a motion to adjourn
second second all in favor hi meeting's
adour thank you
here presuming that we're going to need
a December me