[0:04] Okay, welcome everyone. This is the call

[0:07] to order for the Chesapeake Beach Board

[0:09] of Appeals. Um, this is March 17, 2025.

[0:13] Uh, we are here today to approve some

[0:16] meeting minutes and then to continue

[0:18] deliberations on case

[0:20] 20230. Uh, as always, we begin with our

[0:23] roll call. Uh, please answer that you

[0:25] are present. Uh, Mr. Mr. Paul Dhy

[0:29] present. Amy Everett present. I am Mr.

[0:32] Jody Hunstar. We have a quorum. Uh the

[0:36] first agenda item is meeting minutes

[0:38] approval for our previous meeting of

[0:40] March 6,

[0:41] 2025. Um does anybody have issues with

[0:44] those minutes as they saw them?

[0:47] Hearing none. Uh I would entertain a

[0:49] motion to approve the meeting minutes.

[0:52] Move to approve. I will second that.

[0:54] Body in favor? Hi. Okay. We are on to

[0:58] the continuation of case 202303 Rod and

[1:01] Incorporated Donovan Estates LLC to

[1:02] consider an application from the Rodri

[1:04] Incorporated Donovan Estates of 4160

[1:06] Mirrors Avenue Ches Beach Maryland for a

[1:08] decision on interpretation alleged error

[1:10] to article 6 section 2923 2931 A1 and A6

[1:14] of the Chesapeake Beach zoning ordinance

[1:15] in section C309 C310 C311 of the

[1:18] Chesapeake Beach Town Charter. applicant

[1:20] request the Chesapeake Beach Zoning

[1:22] Board of Appeals to quote order the

[1:24] zoning administrator and planning and

[1:25] zoning commission to immediately

[1:26] commence and prioritize the processing

[1:28] and review of the relevant site plans uh

[1:31] submitted by the Rod and uh and that the

[1:33] zoning administrator and planning and

[1:34] zoning commission be ordered to apply

[1:36] the zoning ordinances in effect as of

[1:38] January 29, 2021 when the applicants

[1:40] when the applications were submitted and

[1:42] for such other and further relief as the

[1:44] nature of their cause requires. Okay. um

[1:47] where we left it off last time were I

[1:50] believe with two things. Um and we do

[1:52] not have to go in that direction if the

[1:55] board so chooses but I think um they

[1:58] were good ones. Um and we can take them

[2:01] in any order. Uh, I think Amy, you had a

[2:05] concern, well, not concern, you were

[2:07] interested in looking at the timing of

[2:09] the appeal and seeing if it fell within

[2:13] um the threshold, the number of days in

[2:16] order to um to be accepted by the board

[2:19] of appeals. Um, so that's number one.

[2:22] And number two was uh Paul had asked us

[2:25] all to get together uh some questions

[2:27] that we could kind of tick down the

[2:29] list. Um, I have my own list, but I

[2:32] don't I don't know if they're worth

[2:34] reading. I'll happily defer to you,

[2:35] Paul, if you'd like to go through some

[2:37] of yours. Um, I think the idea was good

[2:40] and it helped me, uh, consolidate my own

[2:44] thoughts. Um, which I'm happy to to

[2:47] discuss. So,

[2:48] um, I guess I'll I'll So, not to run

[2:52] over everybody, um, Paul, you'd had uh

[2:56] had some questions. Do you are there any

[2:58] of them or all of them that you would

[3:01] like to work through? Um well I think

[3:04] the first two that I had are the most

[3:07] important

[3:09] ones and and this goes back to the the

[3:12] powers of this

[3:14] board as uh described in the in the code

[3:19] the ordinance that institutes this

[3:21] board.

[3:23] First question is at what points in time

[3:26] was an order, requirement, decision or

[3:28] determination made by the planning and

[3:31] zoning administrator or a commission

[3:33] that was relevant to this appeal.

[3:37] Um, yeah, I'll happily

[3:41] uh chime in there. I think from my own

[3:44] notes, I had I'd initially

[3:46] noted two ones that I think could

[3:49] possibly be decision points from um the

[3:54] administrator or related to the

[3:56] administrator's duties. You know, we'd

[3:57] have to there's some specifics there. Um

[4:00] the first one I think we can discard is

[4:03] um the decision on whether or not the

[4:06] moratorum ended and they should have

[4:08] reopened the site plans. I think that's

[4:11] pretty well off the table for me as not

[4:13] a decision point. Uh that's that's that

[4:16] was made. Um I think Can you elaborate

[4:19] on why you say that? So I think that the

[4:21] dec so um I think that the decision was

[4:26] made initially by um in response um to

[4:31] the engineer Mr. Woodburn I think um for

[4:35] Mr. Kubiaak and that was the decision

[4:37] point. The decision to

[4:39] re-evaluate that. I don't

[4:42] think that just doesn't quite quite fit

[4:44] with what I think the scope of our

[4:46] duties are or what what we're asked to

[4:48] do here. I think

[4:49] um I think the only the only decision

[4:53] Mr. Jacubak made that can be evaluated

[4:56] by this board is the initial email

[4:59] response to Mr. Woodburn. And we can put

[5:04] some brackets around that for for what

[5:06] falls into that. Was there a decision

[5:08] made

[5:10] when the moratorium was lifted?

[5:15] You said you didn't think I don't think

[5:17] so. That decision point? Yeah. Was there

[5:20] a decision point? I don't think Was

[5:23] there a decision made?

[5:25] Yes. I was claiming um I don't think a a

[5:29] decision was made. I don't think from my

[5:33] interpretation on how this worked was

[5:36] that the the planning and zoning

[5:39] administrator made a

[5:40] determination or if he made a decision

[5:43] it was made at the time as to at when he

[5:47] responded to um Mr. Woodburn and that

[5:50] then the

[5:51] moratorum just made that not that never

[5:55] that question never reopened. Um I don't

[5:59] much know how better to to phrase it. So

[6:01] to clarify, you're saying that Jacob's

[6:03] letter of February 5th, 2021, Yes. was

[6:08] the only response and that in 2022 when

[6:11] the moratorium was lifted and the

[6:13] request came to re-examine the

[6:17] applications, the response came from

[6:20] pounds and not the commissioner or the

[6:24] board or the board of appeals, whatever.

[6:27] So therefore there was not a decision is

[6:30] that that's my I yes that is my

[6:32] interpret but but that was be that was

[6:34] before the moratorium was lifted

[6:37] 2022 mortorium was 20 well there was a

[6:41] yeah so there was a

[6:45] request to rev to evaluate the site

[6:49] plans sometime in 2022

[6:53] that's when uh town attorney responded

[6:55] that the morator was still in place.

[6:59] And am I correct in saying when this particular response was the

[7:04] triggering event that caused the

[7:06] appeal? Was that that that uh response

[7:10] uh email from Mr. Pens? We have to be

[7:13] led to believe that it was

[7:16] because during this case and in

[7:18] summation

[7:21] um we have been told that there is he

[7:25] even says in the summation there is no

[7:26] distinct act upon which any appeal

[7:29] period could be initiated. So therefore

[7:33] that's that's the only thing that's

[7:35] happened in you know the timing of it.

[7:39] Um so and

[7:41] I personally don't feel

[7:46] that well yeah I think the only decision

[7:50] that was made was February 5th 2021

[7:52] whether it was a lack of a decision

[7:54] being the decision I think that that is

[7:56] the only point in which information was

[8:00] even was communicated directly about

[8:03] this case which is also agreed upon by

[8:06] Blitz that that was the only form only

[8:08] communication from either commissioner

[8:10] or the board about it. I think decisions

[8:13] were made by others in the town that

[8:16] have been discussed but the appeal that

[8:21] we need to examine is what the what the

[8:25] planning and zoning administrator or the

[8:28] board did.

[8:30] What do you think happened after the

[8:32] moratorium was lifted?

[8:36] I can't say we can't say for sure,

[8:41] right? I think we can we could make some

[8:43] guesses, but I don't think that's Yeah,

[8:45] I don't know that that pertains and I

[8:48] think there's an argument to be made,

[8:49] not to pile on here, um that that there

[8:53] are two different interpretations of

[8:55] when the moratorum was lifted. One was

[8:58] once it expired and the other one is

[9:00] when they got together to formally vote

[9:03] and pass the zoning ordinances. It

[9:05] seemed like they uh lined that

[9:08] particular um vote up. Um

[9:16] yeah, you do you do you think that that

[9:19] was was that an important point for you?

[9:23] Well, I'm asking the question. Yeah.

[9:25] Whether they're now first of

[9:29] all the moratorum was formerly lifted by

[9:33] a

[9:35] resolution before

[9:38] that I think you're implying

[9:41] that it sort of expired by itself

[9:45] possibly.

[9:47] I'm not sure I agree with

[9:49] that. But, you know, I was I was

[9:52] thinking of the point at which the the

[9:56] resolution that formally lifted the res

[10:00] the the moratorum

[10:03] um

[10:05] occurred. At that point, the the site

[10:08] plans review of the site plans could

[10:10] have been picked

[10:12] up. Was there some decision made not to

[10:15] do it?

[10:17] was

[10:19] yeah that one it yeah

[10:24] I think that I have not seen any

[10:27] evidence it would just seem to be a lack

[10:30] of

[10:31] action or on the part of the zoning

[10:34] administrator if they did reopen them at

[10:37] that point it would have been with

[10:39] regards to the new zoning ordinances

[10:43] right I mean so there's a lot of

[10:45] speculation I think I think there's a

[10:48] couple of things going on there, though.

[10:50] Is that was there was there an

[10:54] application to look at? It was said that

[10:56] no, we're not going to be able to look

[10:58] at this these applications. Here's your

[11:01] money. So, was there an open application

[11:05] for them to examine after the moratorum?

[11:09] And I think

[11:11] if if the case is one one I don't think

[11:16] it's our duty to I don't think it's

[11:18] within our purview to say if this

[11:20] moratorum was legal not legal the

[11:24] duration or anything else that is beyond

[11:26] our purview that was done by town

[11:29] council I don't think that pertains but

[11:32] if it was

[11:34] illegal as Blitz has said it is

[11:39] then it's to me it's a moot point as to

[11:43] whether it occurred or when it occurred

[11:46] because then it just goes back to what

[11:49] happened when the applications occurred

[11:52] and what was the timing of the events

[11:54] after that if they had 60 days to look

[11:57] at it what happened in 60 days if they

[12:00] did and then 30 days after that what

[12:03] happened I think that that is what I

[12:05] think is the key of what we're actually

[12:07] looking that and I think that things may

[12:10] or may not have occurred correctly after

[12:11] that. That's not that's not ours to

[12:14] determine because the the commission did

[12:17] not do that and it and that and

[12:22] if I just think in many ways that is not

[12:25] what the appealable offense would be if

[12:27] we determined there's an appeal.

[12:30] Yeah, that that kind of echoes the same

[12:32] thing I've been rambling about for the

[12:34] All right, so the second question is

[12:37] let's let's presume that uh the only

[12:40] decision we can rule on or action is at

[12:43] the beginning.

[12:46] Was

[12:47] it an error as a result of a

[12:50] misinterpretation of the code?

[12:57] Decision not to review the Yeah. to

[13:00] whatever to review the uh site plans.

[13:04] I

[13:05] mean it's

[13:09] yeah I think this so just to back up one

[13:13] step this particular

[13:16] um instance is is difficult for me

[13:18] because I think it puts us as the board

[13:21] in a a spot where we're not it's no one

[13:25] gets a fair shake here. Right. is that

[13:28] uh the first thing is is was there a

[13:30] decision made like did appeal denial

[13:33] like whatever was was this a decision

[13:35] point? Um if we say that Mr. Jacubak

[13:38] made no decision then there's nothing to

[13:41] appeal here right there was never a

[13:44] decision that's in scope for this board

[13:45] if he didn't actually make a decision. I thought we kind of agreed that there

[13:49] was a decision. So hold on a sec. So the

[13:51] second part of that is if he did make a

[13:55] decision no matter what happens what

[13:57] date we use for the appealable range for

[14:00] the timeliness it's well outside like if this date is when the the thing

[14:08] happened it's outside of f the appeal is

[14:10] outside of five days the appeal is

[14:12] outside of 30

[14:13] days doesn't matter what we

[14:16] pick right

[14:20] Not just say un Yeah. Anyway

[14:26] um sorry Paul so is is your point that

[14:32] it would be moot to talk about whether

[14:33] there was even an error because the

[14:35] timing had passed. I think we have to

[14:38] right but I don't think that I don't

[14:40] think that that changes the outcome. Um

[14:44] it might technically change the outcome

[14:46] but it the imposition of the

[14:52] moratorum does

[14:55] that by

[14:58] necessity mandate that appeals cannot be

[15:01] heard.

[15:06] If you know if an appeal can't be heard

[15:09] then the fact that it wasn't filed is

[15:12] not relevant. I've seen nothing to I've

[15:14] seen nothing to indicate that an appeal

[15:16] couldn't have been filed and we couldn't

[15:18] have heard appeals during that time. I

[15:21] permits can't be pulled during permits

[15:23] and whatnot can't be pulled during uh

[15:25] during an appeal and different you know

[15:28] new construction according to that

[15:30] couldn't happen. But I read nothing that

[15:32] an appeal couldn't happen. So,

[15:41] okay. So, right.

[15:44] So, where are we? I think we go down I

[15:48] think we go down our list which is first

[15:51] um unless someone wants to make an

[15:53] argument for a different point in time.

[15:56] The only decision point we're

[15:57] considering is Jacubak's initial

[16:00] response to Mr. Woodburn. On what date

[16:02] do you say that was? February. February

[16:04] 5th,

[16:06] 2021.

[16:10] Um,

[16:11] and if we believe that that's the only

[16:15] point, did Mr. Jacubak make a decision

[16:19] in his role as the zoning administrator.

[16:28] Can we discuss further? Yeah. Yeah.

[16:29] So I think I think it was a

[16:33] decision. Um and I think that his

[16:35] decision was

[16:37] further clarified by the fact that they

[16:41] had a meeting that they discussed this

[16:44] these issues that they had been

[16:46] discussing some of the things that he

[16:47] brought up in that letter. Um you know

[16:49] since 2018 they had been talking about a

[16:51] comprehensive plan. They had been

[16:52] talking about other things. Um and then

[16:55] they had the meeting February 24th, you

[16:58] know, um to which parties here spoke. Um

[17:03] so I think that it was it was a decision

[17:05] and it was a wellstated decision. Not

[17:08] wellstated decision, but a a clear

[17:10] statement

[17:12] whether it

[17:14] was correctly done or I'm not sure, but

[17:17] it was a decision. Was it

[17:20] denial? denial of the site plans in a

[17:25] not they weren't denied they

[17:28] were not ruled on which is different

[17:32] decision is

[17:35] right but at the same time it wasn't put

[17:36] on hold and therefore I would see that

[17:39] as a denial it's not like hey until we

[17:42] can do this let's go ahead and put this

[17:43] on hold and you know

[17:47] they were put on hold

[17:49] so they just said they and do it. I

[17:53] don't It's the same as putting it on

[17:55] hold.

[17:58] Yeah. Um I take I I I take this as it

[18:02] was a denial and not a clear denial. It

[18:05] was an unclear denial, which is not

[18:08] fair. I don't I don't think anyone would

[18:10] argue. Well, I I do agree that that was

[18:12] a decision made at that point.

[18:15] Okay.

[18:16] So if that was a decision by the

[18:19] planning and zoning commission, he was

[18:21] and we agree he was acting in his

[18:22] authority as the um zoning

[18:25] administrator. Um

[18:28] uh is it an

[18:30] error? Um I think that's the next am I right Fred? That would be the next

[18:35] criteria would be the decision was made.

[18:38] Was it an error in interpretation

[18:40] of the zoning code of the zoning code?

[18:48] Um, I would say that the

[18:52] considerations

[18:53] that caused the

[18:56] decision was outside the code.

[19:03] It was considerations

[19:07] of

[19:08] considerations emerging from the town

[19:13] council. It was known that the town

[19:15] council was considering a moratorum.

[19:18] Actually, now that I now that I say it,

[19:20] I wonder if we

[19:21] even should get to that right. Like if it was an a decision was made, maybe

[19:28] the next step

[19:29] isn't was it an error, the next step

[19:33] is is it is it appealable? Was the

[19:37] appeal filed timely? Is it within the

[19:40] stated guidelines that we have here? We

[19:42] might not even need to get to whether or

[19:43] not it was an error in the code.

[19:48] I agree that it's

[19:49] um unsatisfying to consider this

[19:52] particular

[19:53] question if our guidelines state that an

[19:56] appeal needs to be filed within 5 days,

[19:58] 30 days. I think those are the two and I

[20:01] think I think the guidance is that we

[20:03] stick to the stricter of the two within

[20:06] 5 days was an appeal filed. Is that

[20:09] sorry before even talking about that is that the question we we should

[20:13] be discussing here?

[20:17] Well, I mean, what makes something

[20:18] appealable, right? So, we ha you have to

[20:22] go back. So, you think the this this

[20:24] particular the error comes first.

[20:29] Well, I

[20:31] mean, yeah, I guess you're right. I

[20:33] guess you can't appeal, but you need to

[20:34] have Yeah. So, I think you need to have

[20:37] it. Sorry, disregard my tangent. Um, so

[20:41] Paul was saying that was is this an

[20:43] error? Paul was saying it was outside of

[20:45] the code considering uh considerations

[20:48] emerging from the town council. You mean

[20:51] particular? It was it was more

[20:52] operational

[20:56] considerations. I would I'm not sure how

[20:59] to describe it administrative or

[21:02] operational considerations.

[21:06] Can those be considered errors if we're

[21:09] our job is to

[21:10] interpret the statutes of

[21:14] the zoning ordinance? It's kind of, you

[21:17] know,

[21:20] well, the code does the code

[21:23] does have words in it that describe how

[21:28] the the commission and administrator

[21:32] should conduct business.

[21:34] So to some extent that's that's an those

[21:36] are

[21:38] operational

[21:40] guidelines but in this case I I don't

[21:43] think that what

[21:47] happened is within I would say within I

[21:52] don't want to say

[21:54] this I I think it was

[21:58] more administrative in nature

[22:05] the the administrator and and the

[22:09] commission

[22:11] knew that the that the the council was

[22:14] considering a

[22:16] moratorum and in fact the count the the

[22:19] commission um recommended it. Yeah. So,

[22:23] if our job is to come through and say

[22:27] the zoning administrator uh made an

[22:31] error because he did not do this

[22:34] specific article that this specific

[22:37] section whatever of the zone of the

[22:41] code, can we say he made an error?

[22:45] Right. Yeah. If he's operating in this

[22:47] administrative kind of gray area

[22:50] capacity. Well, it you know if the code

[22:53] says that

[22:56] site critical area site plans have to be

[22:58] reviewed within 60 days and they don't

[23:01] get reviewed within 60

[23:04] days. Is that an

[23:07] error? Is that is that a uh error of

[23:15] interpretation because they weren't

[23:17] reviewed in 60 days?

[23:19] I agree. That's um

[23:23] yeah please

[23:26] that is that the planning commission

[23:28] which is supposed to complete it review

[23:31] within 60 days of the critical area site

[23:34] plan it's listed in there. Yes.

[23:40] Right. Not the zoning administrator,

[23:42] right? It's the commission. It doesn't.

[23:45] So, the zoning administrator can take as

[23:47] much time as he

[23:48] wants to to look at the site plans and

[23:51] make recommendations.

[23:55] My recollection, I don't have it here in

[23:57] front of me, is that there's no time

[23:59] limit for the uh zoning administrator to

[24:04] make a determination on flity of the

[24:06] bank plan. The 60-day period we're

[24:08] talking about is uh I think tied to the

[24:13] planning commission.

[24:19] Well, in any

[24:21] case, once the moratorum was lifted

[24:24] before the 60 days expired,

[24:27] you mean it was in place? It was That's

[24:30] right. It was in place before the 60

[24:32] days

[24:33] expired. And I agree that once the

[24:37] uh once the moratorum was in place, I I

[24:40] think it was out of the hands of both

[24:41] the administrator and the uh commission.

[24:45] So, it does say um it does say in

[24:49] 29023C3 the planning and zoning

[24:51] commission will review and take action

[24:53] on all category 1 site plans. So, this

[24:56] was a concern I had of mine before is

[24:58] that the wording of this I don't think

[25:03] explicitly states that everything has to

[25:06] be done within a certain time period. I

[25:08] think once they've received information

[25:10] they whatever then they they are in that

[25:14] time period. Um I have not been

[25:16] convinced that that the administrator

[25:20] was obligated to get underway. Um early

[25:23] on in this whole thing we were told that

[25:26] the commission had to put in whatever

[25:29] time they needed to to get this done in

[25:31] 60 days. That was their job. Their job

[25:34] is elsewhere. This is what they

[25:35] volunteer for. Um, I don't think that

[25:38] this code was written to imply that they

[25:40] had to drop everything and get five site

[25:43] plans done in 60 days and have a

[25:45] determination with all the other pieces

[25:47] and parts involved and all the other

[25:49] people involved in referencing that

[25:51] information.

[25:53] That said, if the 60 days was to be set

[25:59] and we decided there was an error for

[26:02] that, that decision would have had to

[26:04] been made by March 30th. And if appeal

[26:08] was to be filed because it was not done,

[26:10] whether there was a moratorum or not

[26:12] brings you to April 29th, 2022 or

[26:16] 2021. And let me stop you for a second.

[26:20] What? That's assuming that the appeal needs to be filed within 30 days,

[26:26] right? I'm just giving the the most

[26:29] whether it's five days or 30 days. But

[26:30] the provisions relating to critical area

[26:33] site plans provide for five day appeal

[26:36] period. Correct. I'm just giving the

[26:37] most time period given that like if it's

[26:40] 60 days and if it's 30 days. Yeah.

[26:43] Right. So then that would be what? April

[26:45] 4th. April

[26:47] 3rd. Yeah.

[26:49] Um, so there is an error if we believe

[26:53] that the planning administrator and

[26:56] commission together everything they had

[26:58] to do had to come up with a decision in

[27:00] 60 days. Here's here's the

[27:02] wording. Says planning and zoning

[27:05] commission shall approve, conditionally

[27:06] approve or reject a site plan within 60

[27:09] days from the filing of the application.

[27:13] Which one? This is

[27:16] uh

[27:23] 29023.

[27:26] No, I'm sorry. 290

[27:33] 29025 290

[27:36] 25 parents

[27:44] 5 right so once the commission is in

[27:49] receipt right but

[27:52] it says upon receipt of of the site plan

[27:54] the planning and zoning commission

[27:58] shall

[27:59] So in and 5 A you're reading 5C in 5 A

[28:04] it says upon receipt of it

[28:10] I

[28:12] skeptical interpretation of that I think

[28:16] once once the once the site once the

[28:19] application's submitted

[28:24] and the fee paid with with the

[28:25] application I think I think that

[28:27] constitutes receipt.

[28:34] Um but in any

[28:38] case, the moratorum was was

[28:42] imposed 7 weeks after

[28:46] submission. That's less than 60 days.

[28:49] Okay.

[28:51] Once that happened, I I think

[28:54] the administrator and the commission

[28:57] were were obligated to cease any work on

[29:00] that those plans.

[29:04] So, um, so if I'm

[29:09] reading what you're saying, Paul, is

[29:11] that you don't think the zoning

[29:13] administrator acted in error or error of

[29:17] interpret? I'm not necessarily saying

[29:18] that.

[29:22] Um well I I guess yes I I I guess I am

[29:25] saying that I think it was I I don't

[29:28] think it was an if there was an error I

[29:30] don't think it was an error resulting

[29:32] from an interpretation of the code.

[29:43] Um yeah, I think I think I agree with

[29:45] you was that a decision was

[29:48] made and

[29:52] um and it was not an error.

[29:56] There's there's several other

[29:57] considerations that you

[29:59] know sort of floating around which

[30:03] may probably shouldn't

[30:07] um be part of our decision but you know

[30:10] some external considerations

[30:13] or if you'd like to um well I'm trying

[30:16] to read lips so I'm sorry I'm sorry.

[30:19] Okay. So one is you know the the

[30:24] appellent brought up the issue that the

[30:26] moratorum was

[30:28] illegal. I don't think we have the

[30:31] authority to rule on that.

[30:34] I agree. I think that's that's within

[30:37] the bounds of the court. Yeah. I don't

[30:39] think that the U zoning administrator or

[30:42] the commission planning commission had

[30:45] authority to rule on that either. That's

[30:46] right.

[30:51] Um, another point that I wanted to make

[30:54] is

[30:55] that even if we decided that there was

[30:59] an

[31:02] error and we ordered the order, I still

[31:08] question whether I I I believe we can

[31:12] tell the zoning commission

[31:14] to review plans like in a certain Right.

[31:18] I don't think we have the power to order

[31:21] them to review plans according to

[31:25] superseded

[31:30] code. In other words, provisions that

[31:33] were in place by in

[31:36] 2021 that have been since superseded by

[31:40] newer

[31:42] um or updated code

[31:45] provisions. I

[31:50] If it was if it was a normal matter of

[31:53] business where the planning and zoning

[31:57] commission didn't or the zoning

[31:59] administrator didn't pick up a thing

[32:02] just of their own valition and then

[32:04] waited you know some amount of time in

[32:06] which in which case zoning changes

[32:09] happened. I would be I think willing to

[32:12] make them use the old zoning code

[32:14] provided it was scoped within the

[32:16] authority of the administrator in

[32:18] planning and zoning. Right? Like if this

[32:20] had nothing to do with the moratorium or

[32:22] town council. If the planning and zoning

[32:24] commission itself made a mistake

[32:27] resulting in harm to an applicant and

[32:29] the applicant then comes and says hey

[32:31] they you know they did this

[32:34] wrong. I don't I wouldn't feel so I

[32:38] wouldn't think it would be that

[32:39] controversial to do it in a case where

[32:42] all the decisions were self-contained

[32:43] within planning zone. In this case, it's

[32:46] a lot of time and it involves the town

[32:50] council and lots of other external

[32:54] folks. So, the the decision wasn't

[32:55] contained within I wouldn't have such a

[32:57] problem with that, but in this case, I

[32:59] don't I don't think we I don't want to

[33:01] do that. I don't think we should do

[33:03] that. the um try to follow you but yeah

[33:07] okay doesn't um you know the zoning code

[33:11] is put in place by the commission by the

[33:13] council and the mayor

[33:16] yeah maybe it's not possible and you

[33:18] know once that once that

[33:21] occurs I don't think an administrative

[33:23] body such as ours

[33:26] have the ability to override it

[33:29] as far as I understand we only have what

[33:31] is within this book right here, this

[33:34] code, that's it. We don't have rights

[33:37] beyond that. So, we don't have rights to

[33:40] tell every person that we want to what

[33:42] to do. And yeah, I agree with you. The

[33:44] town council sets that.

[33:52] Amy, no. Uh, do you take that as is did

[33:58] the planning and zoning administrator

[34:00] act in error at any Sorry, can you hear

[34:02] me? Uh, did the planning and zoning uh

[34:05] administrator act in error in your take?

[34:10] I think that I'm not fully convinced it

[34:13] was an error per se, but if there was an

[34:15] error, I don't believe it was an

[34:18] interpretation of it. I just I don't I

[34:22] was agreeing. Yeah, I think it was more

[34:23] administratively whatnot, but

[34:27] um I think he was within his rights. I

[34:31] will agree with that. I think that leads

[34:35] us closer to the end. We don't need to

[34:37] there a ton of thorny directions this

[34:40] could take in a lot of ways. But if the

[34:43] commission or the board of appeals

[34:46] doesn't think the zoning administrator

[34:48] acted in error, then this is a

[34:51] dismissal.

[34:54] If they didn't act in error, then it's

[34:56] not an appealable offense. Correct? And

[34:59] then what would happen then?

[35:02] That raises a point that I had earlier

[35:05] or a question I had

[35:06] earlier. Dismissal versus denial.

[35:12] Now, you want to give us the rundown,

[35:13] Fred? I think a dismissal uh

[35:17] contemplates a lack of jurisdiction on

[35:20] the part of the board. Uh denial is a

[35:24] decision on the merits.

[35:32] So,

[35:35] if you find

[35:38] that there was there was uh an appeal

[35:43] filed that was not timely. I think that

[35:46] goes to the jurisdiction of the board

[35:48] and that would be a

[35:50] dismissal. If you find that

[35:53] uh

[35:58] then no error was made, no error. uh

[36:01] then I think that also would probably be

[36:04] a uh be a uh dismissal as opposed to a

[36:10] denial. But I'd have to think on that

[36:12] one a little bit.

[36:17] The implications have to do with

[36:20] revenue.

[36:26] Okay.

[36:28] And and no, I'm not an attorney,

[36:31] but there's a phrase called dismissal

[36:34] with prejudice and without

[36:37] prejudice. Is that true? Is that

[36:39] correct?

[36:40] Well, I don't I don't think that would

[36:43] come into play in this particular

[36:45] situation. Uh because there's nothing in

[36:49] the rules, the code that makes that

[36:52] distinction with or without

[36:55] prejudice. Uh,

[37:02] I mean, would wouldn't a dismissal imply

[37:05] that the appellant could then turn

[37:09] around and come back and re refile the

[37:11] appeal.

[37:16] If if there was a dismissal, that would

[37:18] probably mean that

[37:23] uh if there were a new appealable

[37:25] determination, appealable decision from

[37:28] the uh planning administrator, zoning

[37:30] administrator or planning commission,

[37:33] then that would be subject to appeal.

[37:37] So conditions would have to change

[37:39] before Yes. Okay.

[37:44] If however there was a uh determination

[37:47] on the merits and the application or the

[37:51] appeal was uh

[37:54] denied then that probably would mean

[37:58] that there would be

[38:01] uh no opportunity to come back on

[38:05] that because you made a decision on the

[38:08] merits.

[38:13] Well, dismissal, the appellent could

[38:14] come back with a different argument

[38:17] or would that be a new Well, it has to

[38:19] be timely.

[38:23] Has to go through the same analysis. Was

[38:25] there a uh decision which is the first

[38:30] cate first question. Was there a

[38:32] decision made? Then was a decision of

[38:36] interpretation.

[38:38] uh if there was was it timely filed

[38:42] uh so just go through the whole analysis

[38:44] uh one more time.

[38:47] So, in terms of where we go from here,

[38:51] um I think you got the gist of it, Fred,

[38:55] that the any decision that we'd be

[38:57] willing to we three of us would be

[38:59] signing on to um would be a um dismissal

[39:04] and finding of no error on behalf of the

[39:06] zoning administrator.

[39:08] uh with regards to this this case is

[39:10] there

[39:13] well first you would have to make a

[39:16] determination was there a decision um do

[39:19] we is this like where I want to formally

[39:21] like get us all on the record on this

[39:22] type of thing I think we are already

[39:24] decided it was mine

[39:27] right you made a decision or you haven't

[39:30] made the decision because nothing final

[39:32] but you seem to be a little bit of a

[39:34] consensus that

[39:37] uh that Chris Jacobiaak in 2021 made a

[39:42] uh

[39:43] decision. Okay, that's where we are.

[39:46] It's my unless someone says differently.

[39:48] I concur. Then question is uh was it was

[39:55] there an appeal taken from that in a

[39:57] timely manner? Uh the one the I think

[40:00] this is what Amy was just getting at

[40:02] which is I think where we were which was in order to make an appeal you'd

[40:06] have to the wrongdoing would have had to

[40:09] have been made right like been an appeal

[40:11] had to be had to be an offense. So, we

[40:13] were trying to figure out if we thought

[40:15] it was an error before we worried about

[40:17] the timeliness question. Right. Right.

[40:20] And I think we agree that it was not an

[40:22] error or if it was an error, it wasn't

[40:24] in in anything in the scope of of what

[40:27] we're seeing. Not a matter of

[40:28] interpretation

[40:30] relating to the zoning ordinance. Yes.

[40:33] on the chat and then we wouldn't need to

[40:35] get to the timeliness question because

[40:38] we've already decided that there's no

[40:42] appealable error that happened

[40:46] here. Am I missing I

[40:50] think I think that kind of

[40:53] I think you've got it captured.

[40:57] Okay. Uh is that is that enough for you,

[40:59] Fred? um to to begin drafting. Oh, let

[41:03] me suggest

[41:05] that I take tonight's discussion, go

[41:10] back and put together a draft of a

[41:14] resolution

[41:15] uh embodying what you all talked about

[41:19] and any related matters that I may think

[41:23] uh are necessary or appropriate to go in

[41:26] the resolution. and then uh get drafts

[41:29] out to uh the three of

[41:33] you hopefully in the next week or so,

[41:36] week, week and a half. Uh so you have an

[41:39] opportunity to review it, you know,

[41:41] before uh the next meeting on the

[41:44] 31st. And I would encourage

[41:47] uh you to send any suggested revisions

[41:52] or comments directly to me, not to each

[41:55] other. Uh so it's just it remains

[41:58] attorney client privilege and we don't

[42:01] get into issues about uh open meetings.

[42:04] So and then I'll take and digest what

[42:07] you all tell me and uh either make some

[42:12] revisions or hold them till the next

[42:15] meeting.

[42:18] So, do we make a recommendation

[42:22] now for your for your

[42:26] I think you've given me guidance. I

[42:29] think the minutes can reflect that there

[42:30] was a

[42:31] consensus because you're not making a

[42:33] final

[42:35] decision. You're uh you're giving me,

[42:38] you know, preliminary guidance.

[42:41] Okay.

[42:45] Go ahead.

[42:47] If this case could go further or

[42:49] whatever else do we want to okay but if

[42:51] this is not found to be the case then

[42:55] whatever like I know just even in this

[42:59] appeal you know it was stated okay so if

[43:02] you don't think the if you say that the

[43:04] moratorium was legal then we state da da do would we do a similar thing here

[43:09] or no because we were saying that if we

[43:12] if there had been an error the timing

[43:15] would be such and that therefore it

[43:17] would not have been timely. Well, do we

[43:19] get into that or no?

[43:22] In draft

[43:24] resolution portion about timing.

[43:27] Okay, cool. Thanks.

[43:31] Right. Um with that um attempted to uh

[43:37] journ um is there any other business

[43:39] before the board? Anything talking

[43:41] about? Uh our next meeting is what day?

[43:45] 31st. The 31st at 6:30. Two weeks from

[43:48] today. Yep. Two weeks today. 6:30. Um

[43:50] and we will get back together uh to

[43:53] review what Fred's putting together. Um

[43:58] uh at this time, I'll entertain a motion

[44:00] to adjurnn. I'll make a motion to

[44:02] adjurnn. A second. I'll second. Favor. I

[44:05] mean journ. Thank you.

[44:30] That was a short

[44:31] meeting. Yeah.

March 17, 2025 Board of Appeals #2023-03 Rod n Reel

Transcript