1 00:00:04,799 --> 00:00:07,359 Okay, welcome everyone. This is the call 2 00:00:07,359 --> 00:00:09,280 to order for the Chesapeake Beach Board 3 00:00:09,280 --> 00:00:13,920 of Appeals. Um, this is March 17, 2025. 4 00:00:13,920 --> 00:00:16,160 Uh, we are here today to approve some 5 00:00:16,160 --> 00:00:18,240 meeting minutes and then to continue 6 00:00:18,240 --> 00:00:20,840 deliberations on case 7 00:00:20,840 --> 00:00:23,920 20230. Uh, as always, we begin with our 8 00:00:23,920 --> 00:00:25,920 roll call. Uh, please answer that you 9 00:00:25,920 --> 00:00:29,599 are present. Uh, Mr. Mr. Paul Dhy 10 00:00:29,599 --> 00:00:32,880 present. Amy Everett present. I am Mr. 11 00:00:32,880 --> 00:00:36,000 Jody Hunstar. We have a quorum. Uh the 12 00:00:36,000 --> 00:00:38,239 first agenda item is meeting minutes 13 00:00:38,239 --> 00:00:40,160 approval for our previous meeting of 14 00:00:40,160 --> 00:00:41,719 March 6, 15 00:00:41,719 --> 00:00:44,480 2025. Um does anybody have issues with 16 00:00:44,480 --> 00:00:47,920 those minutes as they saw them? 17 00:00:47,920 --> 00:00:49,920 Hearing none. Uh I would entertain a 18 00:00:49,920 --> 00:00:52,239 motion to approve the meeting minutes. 19 00:00:52,239 --> 00:00:54,559 Move to approve. I will second that. 20 00:00:54,559 --> 00:00:58,320 Body in favor? Hi. Okay. We are on to 21 00:00:58,320 --> 00:01:01,039 the continuation of case 202303 Rod and 22 00:01:01,039 --> 00:01:02,960 Incorporated Donovan Estates LLC to 23 00:01:02,960 --> 00:01:04,479 consider an application from the Rodri 24 00:01:04,479 --> 00:01:06,880 Incorporated Donovan Estates of 4160 25 00:01:06,880 --> 00:01:08,799 Mirrors Avenue Ches Beach Maryland for a 26 00:01:08,799 --> 00:01:10,479 decision on interpretation alleged error 27 00:01:10,479 --> 00:01:14,240 to article 6 section 2923 2931 A1 and A6 28 00:01:14,240 --> 00:01:15,760 of the Chesapeake Beach zoning ordinance 29 00:01:15,760 --> 00:01:18,640 in section C309 C310 C311 of the 30 00:01:18,640 --> 00:01:20,479 Chesapeake Beach Town Charter. applicant 31 00:01:20,479 --> 00:01:22,720 request the Chesapeake Beach Zoning 32 00:01:22,720 --> 00:01:24,400 Board of Appeals to quote order the 33 00:01:24,400 --> 00:01:25,600 zoning administrator and planning and 34 00:01:25,600 --> 00:01:26,799 zoning commission to immediately 35 00:01:26,799 --> 00:01:28,880 commence and prioritize the processing 36 00:01:28,880 --> 00:01:31,200 and review of the relevant site plans uh 37 00:01:31,200 --> 00:01:33,600 submitted by the Rod and uh and that the 38 00:01:33,600 --> 00:01:34,960 zoning administrator and planning and 39 00:01:34,960 --> 00:01:36,400 zoning commission be ordered to apply 40 00:01:36,400 --> 00:01:38,000 the zoning ordinances in effect as of 41 00:01:38,000 --> 00:01:40,799 January 29, 2021 when the applicants 42 00:01:40,799 --> 00:01:42,720 when the applications were submitted and 43 00:01:42,720 --> 00:01:44,479 for such other and further relief as the 44 00:01:44,479 --> 00:01:47,520 nature of their cause requires. Okay. um 45 00:01:47,520 --> 00:01:50,079 where we left it off last time were I 46 00:01:50,079 --> 00:01:52,960 believe with two things. Um and we do 47 00:01:52,960 --> 00:01:55,840 not have to go in that direction if the 48 00:01:55,840 --> 00:01:58,560 board so chooses but I think um they 49 00:01:58,560 --> 00:02:01,439 were good ones. Um and we can take them 50 00:02:01,439 --> 00:02:05,439 in any order. Uh, I think Amy, you had a 51 00:02:05,439 --> 00:02:07,119 concern, well, not concern, you were 52 00:02:07,119 --> 00:02:09,759 interested in looking at the timing of 53 00:02:09,759 --> 00:02:13,120 the appeal and seeing if it fell within 54 00:02:13,120 --> 00:02:16,319 um the threshold, the number of days in 55 00:02:16,319 --> 00:02:19,360 order to um to be accepted by the board 56 00:02:19,360 --> 00:02:22,160 of appeals. Um, so that's number one. 57 00:02:22,160 --> 00:02:25,520 And number two was uh Paul had asked us 58 00:02:25,520 --> 00:02:27,680 all to get together uh some questions 59 00:02:27,680 --> 00:02:29,280 that we could kind of tick down the 60 00:02:29,280 --> 00:02:32,160 list. Um, I have my own list, but I 61 00:02:32,160 --> 00:02:34,080 don't I don't know if they're worth 62 00:02:34,080 --> 00:02:35,840 reading. I'll happily defer to you, 63 00:02:35,840 --> 00:02:37,200 Paul, if you'd like to go through some 64 00:02:37,200 --> 00:02:40,160 of yours. Um, I think the idea was good 65 00:02:40,160 --> 00:02:44,000 and it helped me, uh, consolidate my own 66 00:02:44,000 --> 00:02:47,200 thoughts. Um, which I'm happy to to 67 00:02:47,200 --> 00:02:48,519 discuss. So, 68 00:02:48,519 --> 00:02:52,720 um, I guess I'll I'll So, not to run 69 00:02:52,720 --> 00:02:56,400 over everybody, um, Paul, you'd had uh 70 00:02:56,400 --> 00:02:58,319 had some questions. Do you are there any 71 00:02:58,319 --> 00:03:01,120 of them or all of them that you would 72 00:03:01,120 --> 00:03:04,879 like to work through? Um well I think 73 00:03:04,879 --> 00:03:07,120 the first two that I had are the most 74 00:03:07,120 --> 00:03:09,319 important 75 00:03:09,319 --> 00:03:12,640 ones and and this goes back to the the 76 00:03:12,640 --> 00:03:14,040 powers of this 77 00:03:14,040 --> 00:03:19,120 board as uh described in the in the code 78 00:03:19,120 --> 00:03:21,760 the ordinance that institutes this 79 00:03:21,760 --> 00:03:23,120 board. 80 00:03:23,120 --> 00:03:26,400 First question is at what points in time 81 00:03:26,400 --> 00:03:28,879 was an order, requirement, decision or 82 00:03:28,879 --> 00:03:31,920 determination made by the planning and 83 00:03:31,920 --> 00:03:33,599 zoning administrator or a commission 84 00:03:33,599 --> 00:03:37,910 that was relevant to this appeal. 85 00:03:37,920 --> 00:03:41,200 Um, yeah, I'll happily 86 00:03:41,200 --> 00:03:44,040 uh chime in there. I think from my own 87 00:03:44,040 --> 00:03:46,920 notes, I had I'd initially 88 00:03:46,920 --> 00:03:49,840 noted two ones that I think could 89 00:03:49,840 --> 00:03:54,720 possibly be decision points from um the 90 00:03:54,720 --> 00:03:56,400 administrator or related to the 91 00:03:56,400 --> 00:03:57,840 administrator's duties. You know, we'd 92 00:03:57,840 --> 00:04:00,560 have to there's some specifics there. Um 93 00:04:00,560 --> 00:04:03,120 the first one I think we can discard is 94 00:04:03,120 --> 00:04:06,879 um the decision on whether or not the 95 00:04:06,879 --> 00:04:08,840 moratorum ended and they should have 96 00:04:08,840 --> 00:04:11,840 reopened the site plans. I think that's 97 00:04:11,840 --> 00:04:13,599 pretty well off the table for me as not 98 00:04:13,599 --> 00:04:16,639 a decision point. Uh that's that's that 99 00:04:16,639 --> 00:04:19,680 was made. Um I think Can you elaborate 100 00:04:19,680 --> 00:04:21,759 on why you say that? So I think that the 101 00:04:21,759 --> 00:04:26,000 dec so um I think that the decision was 102 00:04:26,000 --> 00:04:31,759 made initially by um in response um to 103 00:04:31,759 --> 00:04:35,199 the engineer Mr. Woodburn I think um for 104 00:04:35,199 --> 00:04:37,680 Mr. Kubiaak and that was the decision 105 00:04:37,680 --> 00:04:39,400 point. The decision to 106 00:04:39,400 --> 00:04:42,360 re-evaluate that. I don't 107 00:04:42,360 --> 00:04:44,960 think that just doesn't quite quite fit 108 00:04:44,960 --> 00:04:46,160 with what I think the scope of our 109 00:04:46,160 --> 00:04:48,160 duties are or what what we're asked to 110 00:04:48,160 --> 00:04:49,880 do here. I think 111 00:04:49,880 --> 00:04:53,199 um I think the only the only decision 112 00:04:53,199 --> 00:04:56,080 Mr. Jacubak made that can be evaluated 113 00:04:56,080 --> 00:04:59,479 by this board is the initial email 114 00:04:59,479 --> 00:05:04,080 response to Mr. Woodburn. And we can put 115 00:05:04,080 --> 00:05:06,560 some brackets around that for for what 116 00:05:06,560 --> 00:05:08,800 falls into that. Was there a decision 117 00:05:08,800 --> 00:05:10,320 made 118 00:05:10,320 --> 00:05:15,909 when the moratorium was lifted? 119 00:05:15,919 --> 00:05:17,840 You said you didn't think I don't think 120 00:05:17,840 --> 00:05:20,960 so. That decision point? Yeah. Was there 121 00:05:20,960 --> 00:05:23,120 a decision point? I don't think Was 122 00:05:23,120 --> 00:05:25,440 there a decision made? 123 00:05:25,440 --> 00:05:29,919 Yes. I was claiming um I don't think a a 124 00:05:29,919 --> 00:05:33,680 decision was made. I don't think from my 125 00:05:33,680 --> 00:05:36,639 interpretation on how this worked was 126 00:05:36,639 --> 00:05:39,039 that the the planning and zoning 127 00:05:39,039 --> 00:05:40,840 administrator made a 128 00:05:40,840 --> 00:05:43,840 determination or if he made a decision 129 00:05:43,840 --> 00:05:47,360 it was made at the time as to at when he 130 00:05:47,360 --> 00:05:50,320 responded to um Mr. Woodburn and that 131 00:05:50,320 --> 00:05:51,720 then the 132 00:05:51,720 --> 00:05:55,520 moratorum just made that not that never 133 00:05:55,520 --> 00:05:59,360 that question never reopened. Um I don't 134 00:05:59,360 --> 00:06:01,360 much know how better to to phrase it. So 135 00:06:01,360 --> 00:06:03,919 to clarify, you're saying that Jacob's 136 00:06:03,919 --> 00:06:08,000 letter of February 5th, 2021, Yes. was 137 00:06:08,000 --> 00:06:11,520 the only response and that in 2022 when 138 00:06:11,520 --> 00:06:13,759 the moratorium was lifted and the 139 00:06:13,759 --> 00:06:17,000 request came to re-examine the 140 00:06:17,000 --> 00:06:20,840 applications, the response came from 141 00:06:20,840 --> 00:06:24,800 pounds and not the commissioner or the 142 00:06:24,800 --> 00:06:27,039 board or the board of appeals, whatever. 143 00:06:27,039 --> 00:06:30,080 So therefore there was not a decision is 144 00:06:30,080 --> 00:06:32,720 that that's my I yes that is my 145 00:06:32,720 --> 00:06:34,720 interpret but but that was be that was 146 00:06:34,720 --> 00:06:37,520 before the moratorium was lifted 147 00:06:37,520 --> 00:06:41,919 2022 mortorium was 20 well there was a 148 00:06:41,919 --> 00:06:45,400 yeah so there was a 149 00:06:45,400 --> 00:06:49,080 request to rev to evaluate the site 150 00:06:49,080 --> 00:06:53,199 plans sometime in 2022 151 00:06:53,199 --> 00:06:55,919 that's when uh town attorney responded 152 00:06:55,919 --> 00:06:59,120 that the morator was still in place. 153 00:06:59,120 --> 00:07:04,720 And am I correct in saying when this particular response was the 154 00:07:04,720 --> 00:07:06,599 triggering event that caused the 155 00:07:06,599 --> 00:07:10,800 appeal? Was that that that uh response 156 00:07:10,800 --> 00:07:13,680 uh email from Mr. Pens? We have to be 157 00:07:13,680 --> 00:07:16,599 led to believe that it was 158 00:07:16,599 --> 00:07:18,800 because during this case and in 159 00:07:18,800 --> 00:07:21,319 summation 160 00:07:21,319 --> 00:07:25,280 um we have been told that there is he 161 00:07:25,280 --> 00:07:26,800 even says in the summation there is no 162 00:07:26,800 --> 00:07:29,680 distinct act upon which any appeal 163 00:07:29,680 --> 00:07:33,199 period could be initiated. So therefore 164 00:07:33,199 --> 00:07:35,039 that's that's the only thing that's 165 00:07:35,039 --> 00:07:39,000 happened in you know the timing of it. 166 00:07:39,000 --> 00:07:41,400 Um so and 167 00:07:41,400 --> 00:07:46,039 I personally don't feel 168 00:07:46,039 --> 00:07:50,240 that well yeah I think the only decision 169 00:07:50,240 --> 00:07:52,720 that was made was February 5th 2021 170 00:07:52,720 --> 00:07:54,560 whether it was a lack of a decision 171 00:07:54,560 --> 00:07:56,720 being the decision I think that that is 172 00:07:56,720 --> 00:08:00,479 the only point in which information was 173 00:08:00,479 --> 00:08:03,120 even was communicated directly about 174 00:08:03,120 --> 00:08:06,080 this case which is also agreed upon by 175 00:08:06,080 --> 00:08:08,160 Blitz that that was the only form only 176 00:08:08,160 --> 00:08:10,639 communication from either commissioner 177 00:08:10,639 --> 00:08:13,919 or the board about it. I think decisions 178 00:08:13,919 --> 00:08:16,800 were made by others in the town that 179 00:08:16,800 --> 00:08:21,039 have been discussed but the appeal that 180 00:08:21,039 --> 00:08:25,120 we need to examine is what the what the 181 00:08:25,120 --> 00:08:28,000 planning and zoning administrator or the 182 00:08:28,000 --> 00:08:30,400 board did. 183 00:08:30,400 --> 00:08:32,479 What do you think happened after the 184 00:08:32,479 --> 00:08:36,469 moratorium was lifted? 185 00:08:36,479 --> 00:08:41,039 I can't say we can't say for sure, 186 00:08:41,039 --> 00:08:43,680 right? I think we can we could make some 187 00:08:43,680 --> 00:08:45,680 guesses, but I don't think that's Yeah, 188 00:08:45,680 --> 00:08:48,480 I don't know that that pertains and I 189 00:08:48,480 --> 00:08:49,760 think there's an argument to be made, 190 00:08:49,760 --> 00:08:53,360 not to pile on here, um that that there 191 00:08:53,360 --> 00:08:55,760 are two different interpretations of 192 00:08:55,760 --> 00:08:58,800 when the moratorum was lifted. One was 193 00:08:58,800 --> 00:09:00,959 once it expired and the other one is 194 00:09:00,959 --> 00:09:03,680 when they got together to formally vote 195 00:09:03,680 --> 00:09:05,920 and pass the zoning ordinances. It 196 00:09:05,920 --> 00:09:08,399 seemed like they uh lined that 197 00:09:08,399 --> 00:09:16,110 particular um vote up. Um 198 00:09:16,120 --> 00:09:19,680 yeah, you do you do you think that that 199 00:09:19,680 --> 00:09:23,040 was was that an important point for you? 200 00:09:23,040 --> 00:09:25,279 Well, I'm asking the question. Yeah. 201 00:09:25,279 --> 00:09:29,630 Whether they're now first of 202 00:09:29,640 --> 00:09:33,120 all the moratorum was formerly lifted by 203 00:09:33,120 --> 00:09:35,470 a 204 00:09:35,480 --> 00:09:38,920 resolution before 205 00:09:38,920 --> 00:09:41,640 that I think you're implying 206 00:09:41,640 --> 00:09:45,120 that it sort of expired by itself 207 00:09:45,120 --> 00:09:47,760 possibly. 208 00:09:47,760 --> 00:09:49,480 I'm not sure I agree with 209 00:09:49,480 --> 00:09:52,959 that. But, you know, I was I was 210 00:09:52,959 --> 00:09:56,839 thinking of the point at which the the 211 00:09:56,839 --> 00:10:00,160 resolution that formally lifted the res 212 00:10:00,160 --> 00:10:03,240 the the moratorum 213 00:10:03,240 --> 00:10:05,560 um 214 00:10:05,560 --> 00:10:08,959 occurred. At that point, the the site 215 00:10:08,959 --> 00:10:10,480 plans review of the site plans could 216 00:10:10,480 --> 00:10:12,120 have been picked 217 00:10:12,120 --> 00:10:15,360 up. Was there some decision made not to 218 00:10:15,360 --> 00:10:17,600 do it? 219 00:10:17,600 --> 00:10:19,360 was 220 00:10:19,360 --> 00:10:24,150 yeah that one it yeah 221 00:10:24,160 --> 00:10:27,640 I think that I have not seen any 222 00:10:27,640 --> 00:10:30,079 evidence it would just seem to be a lack 223 00:10:30,079 --> 00:10:31,480 of 224 00:10:31,480 --> 00:10:34,320 action or on the part of the zoning 225 00:10:34,320 --> 00:10:37,279 administrator if they did reopen them at 226 00:10:37,279 --> 00:10:39,760 that point it would have been with 227 00:10:39,760 --> 00:10:43,040 regards to the new zoning ordinances 228 00:10:43,040 --> 00:10:45,200 right I mean so there's a lot of 229 00:10:45,200 --> 00:10:48,959 speculation I think I think there's a 230 00:10:48,959 --> 00:10:50,800 couple of things going on there, though. 231 00:10:50,800 --> 00:10:54,160 Is that was there was there an 232 00:10:54,160 --> 00:10:56,880 application to look at? It was said that 233 00:10:56,880 --> 00:10:58,560 no, we're not going to be able to look 234 00:10:58,560 --> 00:11:01,800 at this these applications. Here's your 235 00:11:01,800 --> 00:11:05,680 money. So, was there an open application 236 00:11:05,680 --> 00:11:09,360 for them to examine after the moratorum? 237 00:11:09,360 --> 00:11:11,399 And I think 238 00:11:11,399 --> 00:11:16,000 if if the case is one one I don't think 239 00:11:16,000 --> 00:11:18,640 it's our duty to I don't think it's 240 00:11:18,640 --> 00:11:20,760 within our purview to say if this 241 00:11:20,760 --> 00:11:24,240 moratorum was legal not legal the 242 00:11:24,240 --> 00:11:26,640 duration or anything else that is beyond 243 00:11:26,640 --> 00:11:29,560 our purview that was done by town 244 00:11:29,560 --> 00:11:32,800 council I don't think that pertains but 245 00:11:32,800 --> 00:11:34,040 if it was 246 00:11:34,040 --> 00:11:39,399 illegal as Blitz has said it is 247 00:11:39,399 --> 00:11:43,519 then it's to me it's a moot point as to 248 00:11:43,519 --> 00:11:46,320 whether it occurred or when it occurred 249 00:11:46,320 --> 00:11:49,720 because then it just goes back to what 250 00:11:49,720 --> 00:11:52,320 happened when the applications occurred 251 00:11:52,320 --> 00:11:54,959 and what was the timing of the events 252 00:11:54,959 --> 00:11:57,279 after that if they had 60 days to look 253 00:11:57,279 --> 00:12:00,240 at it what happened in 60 days if they 254 00:12:00,240 --> 00:12:03,200 did and then 30 days after that what 255 00:12:03,200 --> 00:12:05,600 happened I think that that is what I 256 00:12:05,600 --> 00:12:07,519 think is the key of what we're actually 257 00:12:07,519 --> 00:12:10,160 looking that and I think that things may 258 00:12:10,160 --> 00:12:11,760 or may not have occurred correctly after 259 00:12:11,760 --> 00:12:14,760 that. That's not that's not ours to 260 00:12:14,760 --> 00:12:17,519 determine because the the commission did 261 00:12:17,519 --> 00:12:22,440 not do that and it and that and 262 00:12:22,440 --> 00:12:25,279 if I just think in many ways that is not 263 00:12:25,279 --> 00:12:27,760 what the appealable offense would be if 264 00:12:27,760 --> 00:12:30,639 we determined there's an appeal. 265 00:12:30,639 --> 00:12:32,880 Yeah, that that kind of echoes the same 266 00:12:32,880 --> 00:12:34,720 thing I've been rambling about for the 267 00:12:34,720 --> 00:12:37,440 All right, so the second question is 268 00:12:37,440 --> 00:12:40,480 let's let's presume that uh the only 269 00:12:40,480 --> 00:12:43,519 decision we can rule on or action is at 270 00:12:43,519 --> 00:12:46,790 the beginning. 271 00:12:46,800 --> 00:12:47,800 Was 272 00:12:47,800 --> 00:12:50,880 it an error as a result of a 273 00:12:50,880 --> 00:12:57,190 misinterpretation of the code? 274 00:12:57,200 --> 00:13:00,320 Decision not to review the Yeah. to 275 00:13:00,320 --> 00:13:04,240 whatever to review the uh site plans. 276 00:13:04,240 --> 00:13:05,800 I 277 00:13:05,800 --> 00:13:09,470 mean it's 278 00:13:09,480 --> 00:13:13,200 yeah I think this so just to back up one 279 00:13:13,200 --> 00:13:16,160 step this particular 280 00:13:16,160 --> 00:13:18,800 um instance is is difficult for me 281 00:13:18,800 --> 00:13:21,040 because I think it puts us as the board 282 00:13:21,040 --> 00:13:25,440 in a a spot where we're not it's no one 283 00:13:25,440 --> 00:13:28,160 gets a fair shake here. Right. is that 284 00:13:28,160 --> 00:13:30,320 uh the first thing is is was there a 285 00:13:30,320 --> 00:13:33,360 decision made like did appeal denial 286 00:13:33,360 --> 00:13:35,079 like whatever was was this a decision 287 00:13:35,079 --> 00:13:38,959 point? Um if we say that Mr. Jacubak 288 00:13:38,959 --> 00:13:41,920 made no decision then there's nothing to 289 00:13:41,920 --> 00:13:44,000 appeal here right there was never a 290 00:13:44,000 --> 00:13:45,680 decision that's in scope for this board 291 00:13:45,680 --> 00:13:49,279 if he didn't actually make a decision. I thought we kind of agreed that there 292 00:13:49,279 --> 00:13:51,760 was a decision. So hold on a sec. So the 293 00:13:51,760 --> 00:13:55,079 second part of that is if he did make a 294 00:13:55,079 --> 00:13:57,920 decision no matter what happens what 295 00:13:57,920 --> 00:14:00,639 date we use for the appealable range for 296 00:14:00,639 --> 00:14:08,240 the timeliness it's well outside like if this date is when the the thing 297 00:14:08,240 --> 00:14:10,639 happened it's outside of f the appeal is 298 00:14:10,639 --> 00:14:12,079 outside of five days the appeal is 299 00:14:12,079 --> 00:14:13,399 outside of 30 300 00:14:13,399 --> 00:14:16,920 days doesn't matter what we 301 00:14:16,920 --> 00:14:20,680 pick right 302 00:14:20,680 --> 00:14:26,430 Not just say un Yeah. Anyway 303 00:14:26,440 --> 00:14:32,240 um sorry Paul so is is your point that 304 00:14:32,240 --> 00:14:33,839 it would be moot to talk about whether 305 00:14:33,839 --> 00:14:35,680 there was even an error because the 306 00:14:35,680 --> 00:14:38,000 timing had passed. I think we have to 307 00:14:38,000 --> 00:14:40,560 right but I don't think that I don't 308 00:14:40,560 --> 00:14:44,240 think that that changes the outcome. Um 309 00:14:44,240 --> 00:14:46,680 it might technically change the outcome 310 00:14:46,680 --> 00:14:52,590 but it the imposition of the 311 00:14:52,600 --> 00:14:55,639 moratorum does 312 00:14:55,639 --> 00:14:58,519 that by 313 00:14:58,519 --> 00:15:01,600 necessity mandate that appeals cannot be 314 00:15:01,600 --> 00:15:06,629 heard. 315 00:15:06,639 --> 00:15:09,519 If you know if an appeal can't be heard 316 00:15:09,519 --> 00:15:12,320 then the fact that it wasn't filed is 317 00:15:12,320 --> 00:15:14,880 not relevant. I've seen nothing to I've 318 00:15:14,880 --> 00:15:16,800 seen nothing to indicate that an appeal 319 00:15:16,800 --> 00:15:18,000 couldn't have been filed and we couldn't 320 00:15:18,000 --> 00:15:21,040 have heard appeals during that time. I 321 00:15:21,040 --> 00:15:23,680 permits can't be pulled during permits 322 00:15:23,680 --> 00:15:25,920 and whatnot can't be pulled during uh 323 00:15:25,920 --> 00:15:28,720 during an appeal and different you know 324 00:15:28,720 --> 00:15:30,240 new construction according to that 325 00:15:30,240 --> 00:15:32,800 couldn't happen. But I read nothing that 326 00:15:32,800 --> 00:15:40,990 an appeal couldn't happen. So, 327 00:15:41,000 --> 00:15:44,639 okay. So, right. 328 00:15:44,639 --> 00:15:48,320 So, where are we? I think we go down I 329 00:15:48,320 --> 00:15:51,680 think we go down our list which is first 330 00:15:51,680 --> 00:15:53,519 um unless someone wants to make an 331 00:15:53,519 --> 00:15:56,079 argument for a different point in time. 332 00:15:56,079 --> 00:15:57,519 The only decision point we're 333 00:15:57,519 --> 00:16:00,199 considering is Jacubak's initial 334 00:16:00,199 --> 00:16:02,720 response to Mr. Woodburn. On what date 335 00:16:02,720 --> 00:16:04,639 do you say that was? February. February 336 00:16:04,639 --> 00:16:06,199 5th, 337 00:16:06,199 --> 00:16:10,350 2021. 338 00:16:10,360 --> 00:16:11,880 Um, 339 00:16:11,880 --> 00:16:15,560 and if we believe that that's the only 340 00:16:15,560 --> 00:16:19,920 point, did Mr. Jacubak make a decision 341 00:16:19,920 --> 00:16:28,150 in his role as the zoning administrator. 342 00:16:28,160 --> 00:16:29,759 Can we discuss further? Yeah. Yeah. 343 00:16:29,759 --> 00:16:33,519 So I think I think it was a 344 00:16:33,519 --> 00:16:35,839 decision. Um and I think that his 345 00:16:35,839 --> 00:16:37,880 decision was 346 00:16:37,880 --> 00:16:41,440 further clarified by the fact that they 347 00:16:41,440 --> 00:16:44,399 had a meeting that they discussed this 348 00:16:44,399 --> 00:16:46,160 these issues that they had been 349 00:16:46,160 --> 00:16:47,759 discussing some of the things that he 350 00:16:47,759 --> 00:16:49,680 brought up in that letter. Um you know 351 00:16:49,680 --> 00:16:51,519 since 2018 they had been talking about a 352 00:16:51,519 --> 00:16:52,720 comprehensive plan. They had been 353 00:16:52,720 --> 00:16:55,440 talking about other things. Um and then 354 00:16:55,440 --> 00:16:58,240 they had the meeting February 24th, you 355 00:16:58,240 --> 00:17:03,040 know, um to which parties here spoke. Um 356 00:17:03,040 --> 00:17:05,199 so I think that it was it was a decision 357 00:17:05,199 --> 00:17:08,199 and it was a wellstated decision. Not 358 00:17:08,199 --> 00:17:10,640 wellstated decision, but a a clear 359 00:17:10,640 --> 00:17:12,959 statement 360 00:17:12,959 --> 00:17:14,439 whether it 361 00:17:14,439 --> 00:17:17,360 was correctly done or I'm not sure, but 362 00:17:17,360 --> 00:17:20,839 it was a decision. Was it 363 00:17:20,839 --> 00:17:25,079 denial? denial of the site plans in a 364 00:17:25,079 --> 00:17:28,360 not they weren't denied they 365 00:17:28,360 --> 00:17:32,559 were not ruled on which is different 366 00:17:32,559 --> 00:17:35,039 decision is 367 00:17:35,039 --> 00:17:36,960 right but at the same time it wasn't put 368 00:17:36,960 --> 00:17:39,919 on hold and therefore I would see that 369 00:17:39,919 --> 00:17:42,559 as a denial it's not like hey until we 370 00:17:42,559 --> 00:17:43,679 can do this let's go ahead and put this 371 00:17:43,679 --> 00:17:47,280 on hold and you know 372 00:17:47,280 --> 00:17:49,880 they were put on hold 373 00:17:49,880 --> 00:17:53,120 so they just said they and do it. I 374 00:17:53,120 --> 00:17:55,760 don't It's the same as putting it on 375 00:17:55,760 --> 00:17:58,160 hold. 376 00:17:58,160 --> 00:18:02,400 Yeah. Um I take I I I take this as it 377 00:18:02,400 --> 00:18:05,520 was a denial and not a clear denial. It 378 00:18:05,520 --> 00:18:08,720 was an unclear denial, which is not 379 00:18:08,720 --> 00:18:10,240 fair. I don't I don't think anyone would 380 00:18:10,240 --> 00:18:12,400 argue. Well, I I do agree that that was 381 00:18:12,400 --> 00:18:15,919 a decision made at that point. 382 00:18:15,919 --> 00:18:16,919 Okay. 383 00:18:16,919 --> 00:18:19,520 So if that was a decision by the 384 00:18:19,520 --> 00:18:21,200 planning and zoning commission, he was 385 00:18:21,200 --> 00:18:22,960 and we agree he was acting in his 386 00:18:22,960 --> 00:18:25,799 authority as the um zoning 387 00:18:25,799 --> 00:18:28,880 administrator. Um 388 00:18:28,880 --> 00:18:30,760 uh is it an 389 00:18:30,760 --> 00:18:35,280 error? Um I think that's the next am I right Fred? That would be the next 390 00:18:35,280 --> 00:18:38,160 criteria would be the decision was made. 391 00:18:38,160 --> 00:18:40,799 Was it an error in interpretation 392 00:18:40,799 --> 00:18:48,230 of the zoning code of the zoning code? 393 00:18:48,240 --> 00:18:52,039 Um, I would say that the 394 00:18:52,039 --> 00:18:53,640 considerations 395 00:18:53,640 --> 00:18:56,280 that caused the 396 00:18:56,280 --> 00:19:03,029 decision was outside the code. 397 00:19:03,039 --> 00:19:07,000 It was considerations 398 00:19:07,000 --> 00:19:08,520 of 399 00:19:08,520 --> 00:19:13,310 considerations emerging from the town 400 00:19:13,320 --> 00:19:15,760 council. It was known that the town 401 00:19:15,760 --> 00:19:18,960 council was considering a moratorum. 402 00:19:18,960 --> 00:19:20,559 Actually, now that I now that I say it, 403 00:19:20,559 --> 00:19:21,880 I wonder if we 404 00:19:21,880 --> 00:19:28,160 even should get to that right. Like if it was an a decision was made, maybe 405 00:19:28,160 --> 00:19:29,960 the next step 406 00:19:29,960 --> 00:19:33,640 isn't was it an error, the next step 407 00:19:33,640 --> 00:19:37,520 is is it is it appealable? Was the 408 00:19:37,520 --> 00:19:40,559 appeal filed timely? Is it within the 409 00:19:40,559 --> 00:19:42,559 stated guidelines that we have here? We 410 00:19:42,559 --> 00:19:43,919 might not even need to get to whether or 411 00:19:43,919 --> 00:19:48,000 not it was an error in the code. 412 00:19:48,000 --> 00:19:49,880 I agree that it's 413 00:19:49,880 --> 00:19:52,559 um unsatisfying to consider this 414 00:19:52,559 --> 00:19:53,799 particular 415 00:19:53,799 --> 00:19:56,080 question if our guidelines state that an 416 00:19:56,080 --> 00:19:58,480 appeal needs to be filed within 5 days, 417 00:19:58,480 --> 00:20:01,600 30 days. I think those are the two and I 418 00:20:01,600 --> 00:20:03,280 think I think the guidance is that we 419 00:20:03,280 --> 00:20:06,080 stick to the stricter of the two within 420 00:20:06,080 --> 00:20:09,679 5 days was an appeal filed. Is that 421 00:20:09,679 --> 00:20:13,919 sorry before even talking about that is that the question we we should 422 00:20:13,919 --> 00:20:17,360 be discussing here? 423 00:20:17,360 --> 00:20:18,880 Well, I mean, what makes something 424 00:20:18,880 --> 00:20:22,000 appealable, right? So, we ha you have to 425 00:20:22,000 --> 00:20:24,160 go back. So, you think the this this 426 00:20:24,160 --> 00:20:29,190 particular the error comes first. 427 00:20:29,200 --> 00:20:31,080 Well, I 428 00:20:31,080 --> 00:20:33,200 mean, yeah, I guess you're right. I 429 00:20:33,200 --> 00:20:34,960 guess you can't appeal, but you need to 430 00:20:34,960 --> 00:20:37,200 have Yeah. So, I think you need to have 431 00:20:37,200 --> 00:20:41,440 it. Sorry, disregard my tangent. Um, so 432 00:20:41,440 --> 00:20:43,360 Paul was saying that was is this an 433 00:20:43,360 --> 00:20:45,520 error? Paul was saying it was outside of 434 00:20:45,520 --> 00:20:48,480 the code considering uh considerations 435 00:20:48,480 --> 00:20:51,440 emerging from the town council. You mean 436 00:20:51,440 --> 00:20:52,960 particular? It was it was more 437 00:20:52,960 --> 00:20:56,909 operational 438 00:20:56,919 --> 00:20:59,520 considerations. I would I'm not sure how 439 00:20:59,520 --> 00:21:02,400 to describe it administrative or 440 00:21:02,400 --> 00:21:06,149 operational considerations. 441 00:21:06,159 --> 00:21:09,039 Can those be considered errors if we're 442 00:21:09,039 --> 00:21:10,440 our job is to 443 00:21:10,440 --> 00:21:14,120 interpret the statutes of 444 00:21:14,120 --> 00:21:17,440 the zoning ordinance? It's kind of, you 445 00:21:17,440 --> 00:21:20,950 know, 446 00:21:20,960 --> 00:21:23,480 well, the code does the code 447 00:21:23,480 --> 00:21:28,200 does have words in it that describe how 448 00:21:28,200 --> 00:21:32,000 the the commission and administrator 449 00:21:32,000 --> 00:21:34,559 should conduct business. 450 00:21:34,559 --> 00:21:36,799 So to some extent that's that's an those 451 00:21:36,799 --> 00:21:38,120 are 452 00:21:38,120 --> 00:21:40,120 operational 453 00:21:40,120 --> 00:21:43,240 guidelines but in this case I I don't 454 00:21:43,240 --> 00:21:47,950 think that what 455 00:21:47,960 --> 00:21:52,720 happened is within I would say within I 456 00:21:52,720 --> 00:21:54,039 don't want to say 457 00:21:54,039 --> 00:21:58,440 this I I think it was 458 00:21:58,440 --> 00:22:05,549 more administrative in nature 459 00:22:05,559 --> 00:22:09,280 the the administrator and and the 460 00:22:09,280 --> 00:22:11,159 commission 461 00:22:11,159 --> 00:22:14,799 knew that the that the the council was 462 00:22:14,799 --> 00:22:16,360 considering a 463 00:22:16,360 --> 00:22:19,200 moratorum and in fact the count the the 464 00:22:19,200 --> 00:22:23,520 commission um recommended it. Yeah. So, 465 00:22:23,520 --> 00:22:27,480 if our job is to come through and say 466 00:22:27,480 --> 00:22:31,280 the zoning administrator uh made an 467 00:22:31,280 --> 00:22:34,080 error because he did not do this 468 00:22:34,080 --> 00:22:37,200 specific article that this specific 469 00:22:37,200 --> 00:22:41,720 section whatever of the zone of the 470 00:22:41,720 --> 00:22:45,000 code, can we say he made an error? 471 00:22:45,000 --> 00:22:47,360 Right. Yeah. If he's operating in this 472 00:22:47,360 --> 00:22:50,799 administrative kind of gray area 473 00:22:50,799 --> 00:22:53,840 capacity. Well, it you know if the code 474 00:22:53,840 --> 00:22:56,120 says that 475 00:22:56,120 --> 00:22:58,880 site critical area site plans have to be 476 00:22:58,880 --> 00:23:01,520 reviewed within 60 days and they don't 477 00:23:01,520 --> 00:23:04,039 get reviewed within 60 478 00:23:04,039 --> 00:23:07,000 days. Is that an 479 00:23:07,000 --> 00:23:15,470 error? Is that is that a uh error of 480 00:23:15,480 --> 00:23:17,120 interpretation because they weren't 481 00:23:17,120 --> 00:23:19,760 reviewed in 60 days? 482 00:23:19,760 --> 00:23:23,440 I agree. That's um 483 00:23:23,440 --> 00:23:26,039 yeah please 484 00:23:26,039 --> 00:23:28,799 that is that the planning commission 485 00:23:28,799 --> 00:23:31,520 which is supposed to complete it review 486 00:23:31,520 --> 00:23:34,960 within 60 days of the critical area site 487 00:23:34,960 --> 00:23:40,310 plan it's listed in there. Yes. 488 00:23:40,320 --> 00:23:42,640 Right. Not the zoning administrator, 489 00:23:42,640 --> 00:23:45,120 right? It's the commission. It doesn't. 490 00:23:45,120 --> 00:23:47,200 So, the zoning administrator can take as 491 00:23:47,200 --> 00:23:48,600 much time as he 492 00:23:48,600 --> 00:23:51,600 wants to to look at the site plans and 493 00:23:51,600 --> 00:23:55,270 make recommendations. 494 00:23:55,280 --> 00:23:57,520 My recollection, I don't have it here in 495 00:23:57,520 --> 00:23:59,760 front of me, is that there's no time 496 00:23:59,760 --> 00:24:04,480 limit for the uh zoning administrator to 497 00:24:04,480 --> 00:24:06,720 make a determination on flity of the 498 00:24:06,720 --> 00:24:08,880 bank plan. The 60-day period we're 499 00:24:08,880 --> 00:24:13,279 talking about is uh I think tied to the 500 00:24:13,279 --> 00:24:19,669 planning commission. 501 00:24:19,679 --> 00:24:21,000 Well, in any 502 00:24:21,000 --> 00:24:24,000 case, once the moratorum was lifted 503 00:24:24,000 --> 00:24:27,840 before the 60 days expired, 504 00:24:27,840 --> 00:24:30,480 you mean it was in place? It was That's 505 00:24:30,480 --> 00:24:32,159 right. It was in place before the 60 506 00:24:32,159 --> 00:24:33,159 days 507 00:24:33,159 --> 00:24:37,240 expired. And I agree that once the 508 00:24:37,240 --> 00:24:40,400 uh once the moratorum was in place, I I 509 00:24:40,400 --> 00:24:41,760 think it was out of the hands of both 510 00:24:41,760 --> 00:24:45,120 the administrator and the uh commission. 511 00:24:45,120 --> 00:24:49,799 So, it does say um it does say in 512 00:24:49,799 --> 00:24:51,840 29023C3 the planning and zoning 513 00:24:51,840 --> 00:24:53,279 commission will review and take action 514 00:24:53,279 --> 00:24:56,320 on all category 1 site plans. So, this 515 00:24:56,320 --> 00:24:58,480 was a concern I had of mine before is 516 00:24:58,480 --> 00:25:03,520 that the wording of this I don't think 517 00:25:03,520 --> 00:25:06,080 explicitly states that everything has to 518 00:25:06,080 --> 00:25:08,880 be done within a certain time period. I 519 00:25:08,880 --> 00:25:10,640 think once they've received information 520 00:25:10,640 --> 00:25:14,000 they whatever then they they are in that 521 00:25:14,000 --> 00:25:16,640 time period. Um I have not been 522 00:25:16,640 --> 00:25:20,240 convinced that that the administrator 523 00:25:20,240 --> 00:25:23,360 was obligated to get underway. Um early 524 00:25:23,360 --> 00:25:26,559 on in this whole thing we were told that 525 00:25:26,559 --> 00:25:29,120 the commission had to put in whatever 526 00:25:29,120 --> 00:25:31,600 time they needed to to get this done in 527 00:25:31,600 --> 00:25:34,080 60 days. That was their job. Their job 528 00:25:34,080 --> 00:25:35,360 is elsewhere. This is what they 529 00:25:35,360 --> 00:25:38,000 volunteer for. Um, I don't think that 530 00:25:38,000 --> 00:25:40,720 this code was written to imply that they 531 00:25:40,720 --> 00:25:43,200 had to drop everything and get five site 532 00:25:43,200 --> 00:25:45,480 plans done in 60 days and have a 533 00:25:45,480 --> 00:25:47,520 determination with all the other pieces 534 00:25:47,520 --> 00:25:49,039 and parts involved and all the other 535 00:25:49,039 --> 00:25:51,679 people involved in referencing that 536 00:25:51,679 --> 00:25:53,200 information. 537 00:25:53,200 --> 00:25:59,679 That said, if the 60 days was to be set 538 00:25:59,679 --> 00:26:02,039 and we decided there was an error for 539 00:26:02,039 --> 00:26:04,640 that, that decision would have had to 540 00:26:04,640 --> 00:26:08,000 been made by March 30th. And if appeal 541 00:26:08,000 --> 00:26:10,240 was to be filed because it was not done, 542 00:26:10,240 --> 00:26:12,480 whether there was a moratorum or not 543 00:26:12,480 --> 00:26:16,600 brings you to April 29th, 2022 or 544 00:26:16,600 --> 00:26:20,000 2021. And let me stop you for a second. 545 00:26:20,000 --> 00:26:26,480 What? That's assuming that the appeal needs to be filed within 30 days, 546 00:26:26,480 --> 00:26:29,039 right? I'm just giving the the most 547 00:26:29,039 --> 00:26:30,640 whether it's five days or 30 days. But 548 00:26:30,640 --> 00:26:33,200 the provisions relating to critical area 549 00:26:33,200 --> 00:26:36,159 site plans provide for five day appeal 550 00:26:36,159 --> 00:26:37,840 period. Correct. I'm just giving the 551 00:26:37,840 --> 00:26:40,480 most time period given that like if it's 552 00:26:40,480 --> 00:26:43,840 60 days and if it's 30 days. Yeah. 553 00:26:43,840 --> 00:26:45,760 Right. So then that would be what? April 554 00:26:45,760 --> 00:26:47,240 4th. April 555 00:26:47,240 --> 00:26:49,880 3rd. Yeah. 556 00:26:49,880 --> 00:26:53,679 Um, so there is an error if we believe 557 00:26:53,679 --> 00:26:56,159 that the planning administrator and 558 00:26:56,159 --> 00:26:58,880 commission together everything they had 559 00:26:58,880 --> 00:27:00,720 to do had to come up with a decision in 560 00:27:00,720 --> 00:27:02,919 60 days. Here's here's the 561 00:27:02,919 --> 00:27:05,200 wording. Says planning and zoning 562 00:27:05,200 --> 00:27:06,640 commission shall approve, conditionally 563 00:27:06,640 --> 00:27:09,840 approve or reject a site plan within 60 564 00:27:09,840 --> 00:27:13,200 days from the filing of the application. 565 00:27:13,200 --> 00:27:16,679 Which one? This is 566 00:27:16,679 --> 00:27:23,789 uh 567 00:27:23,799 --> 00:27:26,760 29023. 568 00:27:26,760 --> 00:27:32,990 No, I'm sorry. 290 569 00:27:33,000 --> 00:27:36,200 29025 290 570 00:27:36,200 --> 00:27:44,909 25 parents 571 00:27:44,919 --> 00:27:49,240 5 right so once the commission is in 572 00:27:49,240 --> 00:27:52,159 receipt right but 573 00:27:52,159 --> 00:27:54,320 it says upon receipt of of the site plan 574 00:27:54,320 --> 00:27:58,080 the planning and zoning commission 575 00:27:58,080 --> 00:27:59,240 shall 576 00:27:59,240 --> 00:28:04,240 So in and 5 A you're reading 5C in 5 A 577 00:28:04,240 --> 00:28:10,750 it says upon receipt of it 578 00:28:10,760 --> 00:28:12,440 I 579 00:28:12,440 --> 00:28:16,240 skeptical interpretation of that I think 580 00:28:16,240 --> 00:28:19,720 once once the once the site once the 581 00:28:19,720 --> 00:28:24,070 application's submitted 582 00:28:24,080 --> 00:28:25,840 and the fee paid with with the 583 00:28:25,840 --> 00:28:27,600 application I think I think that 584 00:28:27,600 --> 00:28:34,510 constitutes receipt. 585 00:28:34,520 --> 00:28:38,039 Um but in any 586 00:28:38,039 --> 00:28:42,520 case, the moratorum was was 587 00:28:42,520 --> 00:28:46,520 imposed 7 weeks after 588 00:28:46,520 --> 00:28:49,600 submission. That's less than 60 days. 589 00:28:49,600 --> 00:28:51,120 Okay. 590 00:28:51,120 --> 00:28:54,679 Once that happened, I I think 591 00:28:54,679 --> 00:28:57,200 the administrator and the commission 592 00:28:57,200 --> 00:29:00,320 were were obligated to cease any work on 593 00:29:00,320 --> 00:29:04,350 that those plans. 594 00:29:04,360 --> 00:29:09,000 So, um, so if I'm 595 00:29:09,000 --> 00:29:11,279 reading what you're saying, Paul, is 596 00:29:11,279 --> 00:29:13,279 that you don't think the zoning 597 00:29:13,279 --> 00:29:17,039 administrator acted in error or error of 598 00:29:17,039 --> 00:29:18,480 interpret? I'm not necessarily saying 599 00:29:18,480 --> 00:29:22,110 that. 600 00:29:22,120 --> 00:29:25,760 Um well I I guess yes I I I guess I am 601 00:29:25,760 --> 00:29:28,799 saying that I think it was I I don't 602 00:29:28,799 --> 00:29:30,799 think it was an if there was an error I 603 00:29:30,799 --> 00:29:32,159 don't think it was an error resulting 604 00:29:32,159 --> 00:29:43,230 from an interpretation of the code. 605 00:29:43,240 --> 00:29:45,720 Um yeah, I think I think I agree with 606 00:29:45,720 --> 00:29:48,600 you was that a decision was 607 00:29:48,600 --> 00:29:52,750 made and 608 00:29:52,760 --> 00:29:56,640 um and it was not an error. 609 00:29:56,640 --> 00:29:57,760 There's there's several other 610 00:29:57,760 --> 00:29:59,960 considerations that you 611 00:29:59,960 --> 00:30:03,399 know sort of floating around which 612 00:30:03,399 --> 00:30:07,200 may probably shouldn't 613 00:30:07,200 --> 00:30:10,720 um be part of our decision but you know 614 00:30:10,720 --> 00:30:13,279 some external considerations 615 00:30:13,279 --> 00:30:16,640 or if you'd like to um well I'm trying 616 00:30:16,640 --> 00:30:19,840 to read lips so I'm sorry I'm sorry. 617 00:30:19,840 --> 00:30:24,240 Okay. So one is you know the the 618 00:30:24,240 --> 00:30:26,240 appellent brought up the issue that the 619 00:30:26,240 --> 00:30:28,919 moratorum was 620 00:30:28,919 --> 00:30:31,039 illegal. I don't think we have the 621 00:30:31,039 --> 00:30:34,640 authority to rule on that. 622 00:30:34,640 --> 00:30:37,039 I agree. I think that's that's within 623 00:30:37,039 --> 00:30:39,679 the bounds of the court. Yeah. I don't 624 00:30:39,679 --> 00:30:42,559 think that the U zoning administrator or 625 00:30:42,559 --> 00:30:45,120 the commission planning commission had 626 00:30:45,120 --> 00:30:46,960 authority to rule on that either. That's 627 00:30:46,960 --> 00:30:51,230 right. 628 00:30:51,240 --> 00:30:54,640 Um, another point that I wanted to make 629 00:30:54,640 --> 00:30:55,880 is 630 00:30:55,880 --> 00:30:59,200 that even if we decided that there was 631 00:30:59,200 --> 00:31:02,590 an 632 00:31:02,600 --> 00:31:08,320 error and we ordered the order, I still 633 00:31:08,320 --> 00:31:12,320 question whether I I I believe we can 634 00:31:12,320 --> 00:31:14,760 tell the zoning commission 635 00:31:14,760 --> 00:31:18,880 to review plans like in a certain Right. 636 00:31:18,880 --> 00:31:21,720 I don't think we have the power to order 637 00:31:21,720 --> 00:31:25,679 them to review plans according to 638 00:31:25,679 --> 00:31:30,350 superseded 639 00:31:30,360 --> 00:31:33,120 code. In other words, provisions that 640 00:31:33,120 --> 00:31:36,590 were in place by in 641 00:31:36,600 --> 00:31:40,559 2021 that have been since superseded by 642 00:31:40,559 --> 00:31:42,120 newer 643 00:31:42,120 --> 00:31:45,799 um or updated code 644 00:31:45,799 --> 00:31:50,230 provisions. I 645 00:31:50,240 --> 00:31:53,480 If it was if it was a normal matter of 646 00:31:53,480 --> 00:31:57,640 business where the planning and zoning 647 00:31:57,640 --> 00:31:59,720 commission didn't or the zoning 648 00:31:59,720 --> 00:32:02,000 administrator didn't pick up a thing 649 00:32:02,000 --> 00:32:04,480 just of their own valition and then 650 00:32:04,480 --> 00:32:06,960 waited you know some amount of time in 651 00:32:06,960 --> 00:32:09,399 which in which case zoning changes 652 00:32:09,399 --> 00:32:12,880 happened. I would be I think willing to 653 00:32:12,880 --> 00:32:14,880 make them use the old zoning code 654 00:32:14,880 --> 00:32:16,799 provided it was scoped within the 655 00:32:16,799 --> 00:32:18,640 authority of the administrator in 656 00:32:18,640 --> 00:32:20,240 planning and zoning. Right? Like if this 657 00:32:20,240 --> 00:32:22,000 had nothing to do with the moratorium or 658 00:32:22,000 --> 00:32:24,960 town council. If the planning and zoning 659 00:32:24,960 --> 00:32:27,519 commission itself made a mistake 660 00:32:27,519 --> 00:32:29,840 resulting in harm to an applicant and 661 00:32:29,840 --> 00:32:31,840 the applicant then comes and says hey 662 00:32:31,840 --> 00:32:34,200 they you know they did this 663 00:32:34,200 --> 00:32:38,159 wrong. I don't I wouldn't feel so I 664 00:32:38,159 --> 00:32:39,640 wouldn't think it would be that 665 00:32:39,640 --> 00:32:42,320 controversial to do it in a case where 666 00:32:42,320 --> 00:32:43,760 all the decisions were self-contained 667 00:32:43,760 --> 00:32:46,799 within planning zone. In this case, it's 668 00:32:46,799 --> 00:32:50,000 a lot of time and it involves the town 669 00:32:50,000 --> 00:32:54,320 council and lots of other external 670 00:32:54,320 --> 00:32:55,760 folks. So, the the decision wasn't 671 00:32:55,760 --> 00:32:57,360 contained within I wouldn't have such a 672 00:32:57,360 --> 00:32:59,480 problem with that, but in this case, I 673 00:32:59,480 --> 00:33:01,919 don't I don't think we I don't want to 674 00:33:01,919 --> 00:33:03,039 do that. I don't think we should do 675 00:33:03,039 --> 00:33:07,039 that. the um try to follow you but yeah 676 00:33:07,039 --> 00:33:11,039 okay doesn't um you know the zoning code 677 00:33:11,039 --> 00:33:13,600 is put in place by the commission by the 678 00:33:13,600 --> 00:33:16,159 council and the mayor 679 00:33:16,159 --> 00:33:18,799 yeah maybe it's not possible and you 680 00:33:18,799 --> 00:33:21,000 know once that once that 681 00:33:21,000 --> 00:33:23,440 occurs I don't think an administrative 682 00:33:23,440 --> 00:33:26,240 body such as ours 683 00:33:26,240 --> 00:33:29,120 have the ability to override it 684 00:33:29,120 --> 00:33:31,519 as far as I understand we only have what 685 00:33:31,519 --> 00:33:34,880 is within this book right here, this 686 00:33:34,880 --> 00:33:37,600 code, that's it. We don't have rights 687 00:33:37,600 --> 00:33:40,399 beyond that. So, we don't have rights to 688 00:33:40,399 --> 00:33:42,559 tell every person that we want to what 689 00:33:42,559 --> 00:33:44,720 to do. And yeah, I agree with you. The 690 00:33:44,720 --> 00:33:52,190 town council sets that. 691 00:33:52,200 --> 00:33:58,240 Amy, no. Uh, do you take that as is did 692 00:33:58,240 --> 00:34:00,000 the planning and zoning administrator 693 00:34:00,000 --> 00:34:02,880 act in error at any Sorry, can you hear 694 00:34:02,880 --> 00:34:05,120 me? Uh, did the planning and zoning uh 695 00:34:05,120 --> 00:34:10,000 administrator act in error in your take? 696 00:34:10,000 --> 00:34:13,200 I think that I'm not fully convinced it 697 00:34:13,200 --> 00:34:15,760 was an error per se, but if there was an 698 00:34:15,760 --> 00:34:18,919 error, I don't believe it was an 699 00:34:18,919 --> 00:34:22,079 interpretation of it. I just I don't I 700 00:34:22,079 --> 00:34:23,720 was agreeing. Yeah, I think it was more 701 00:34:23,720 --> 00:34:27,790 administratively whatnot, but 702 00:34:27,800 --> 00:34:31,520 um I think he was within his rights. I 703 00:34:31,520 --> 00:34:35,040 will agree with that. I think that leads 704 00:34:35,040 --> 00:34:37,119 us closer to the end. We don't need to 705 00:34:37,119 --> 00:34:40,399 there a ton of thorny directions this 706 00:34:40,399 --> 00:34:43,159 could take in a lot of ways. But if the 707 00:34:43,159 --> 00:34:46,639 commission or the board of appeals 708 00:34:46,639 --> 00:34:48,159 doesn't think the zoning administrator 709 00:34:48,159 --> 00:34:51,679 acted in error, then this is a 710 00:34:51,679 --> 00:34:54,790 dismissal. 711 00:34:54,800 --> 00:34:56,720 If they didn't act in error, then it's 712 00:34:56,720 --> 00:34:59,680 not an appealable offense. Correct? And 713 00:34:59,680 --> 00:35:02,640 then what would happen then? 714 00:35:02,640 --> 00:35:05,119 That raises a point that I had earlier 715 00:35:05,119 --> 00:35:06,680 or a question I had 716 00:35:06,680 --> 00:35:12,069 earlier. Dismissal versus denial. 717 00:35:12,079 --> 00:35:13,200 Now, you want to give us the rundown, 718 00:35:13,200 --> 00:35:17,880 Fred? I think a dismissal uh 719 00:35:17,880 --> 00:35:20,640 contemplates a lack of jurisdiction on 720 00:35:20,640 --> 00:35:24,640 the part of the board. Uh denial is a 721 00:35:24,640 --> 00:35:32,470 decision on the merits. 722 00:35:32,480 --> 00:35:35,150 So, 723 00:35:35,160 --> 00:35:38,119 if you find 724 00:35:38,119 --> 00:35:43,079 that there was there was uh an appeal 725 00:35:43,079 --> 00:35:46,640 filed that was not timely. I think that 726 00:35:46,640 --> 00:35:48,240 goes to the jurisdiction of the board 727 00:35:48,240 --> 00:35:50,280 and that would be a 728 00:35:50,280 --> 00:35:53,680 dismissal. If you find that 729 00:35:53,680 --> 00:35:58,470 uh 730 00:35:58,480 --> 00:36:01,599 then no error was made, no error. uh 731 00:36:01,599 --> 00:36:04,480 then I think that also would probably be 732 00:36:04,480 --> 00:36:10,280 a uh be a uh dismissal as opposed to a 733 00:36:10,280 --> 00:36:12,400 denial. But I'd have to think on that 734 00:36:12,400 --> 00:36:17,270 one a little bit. 735 00:36:17,280 --> 00:36:20,560 The implications have to do with 736 00:36:20,560 --> 00:36:26,430 revenue. 737 00:36:26,440 --> 00:36:28,400 Okay. 738 00:36:28,400 --> 00:36:31,480 And and no, I'm not an attorney, 739 00:36:31,480 --> 00:36:34,560 but there's a phrase called dismissal 740 00:36:34,560 --> 00:36:37,000 with prejudice and without 741 00:36:37,000 --> 00:36:39,200 prejudice. Is that true? Is that 742 00:36:39,200 --> 00:36:40,960 correct? 743 00:36:40,960 --> 00:36:43,359 Well, I don't I don't think that would 744 00:36:43,359 --> 00:36:45,400 come into play in this particular 745 00:36:45,400 --> 00:36:49,760 situation. Uh because there's nothing in 746 00:36:49,760 --> 00:36:52,800 the rules, the code that makes that 747 00:36:52,800 --> 00:36:55,400 distinction with or without 748 00:36:55,400 --> 00:37:02,390 prejudice. Uh, 749 00:37:02,400 --> 00:37:05,320 I mean, would wouldn't a dismissal imply 750 00:37:05,320 --> 00:37:09,119 that the appellant could then turn 751 00:37:09,119 --> 00:37:11,359 around and come back and re refile the 752 00:37:11,359 --> 00:37:15,990 appeal. 753 00:37:16,000 --> 00:37:18,960 If if there was a dismissal, that would 754 00:37:18,960 --> 00:37:23,200 probably mean that 755 00:37:23,200 --> 00:37:25,640 uh if there were a new appealable 756 00:37:25,640 --> 00:37:28,640 determination, appealable decision from 757 00:37:28,640 --> 00:37:30,880 the uh planning administrator, zoning 758 00:37:30,880 --> 00:37:33,359 administrator or planning commission, 759 00:37:33,359 --> 00:37:37,280 then that would be subject to appeal. 760 00:37:37,280 --> 00:37:39,359 So conditions would have to change 761 00:37:39,359 --> 00:37:44,320 before Yes. Okay. 762 00:37:44,320 --> 00:37:47,680 If however there was a uh determination 763 00:37:47,680 --> 00:37:51,680 on the merits and the application or the 764 00:37:51,680 --> 00:37:54,200 appeal was uh 765 00:37:54,200 --> 00:37:58,359 denied then that probably would mean 766 00:37:58,359 --> 00:38:01,480 that there would be 767 00:38:01,480 --> 00:38:05,560 uh no opportunity to come back on 768 00:38:05,560 --> 00:38:08,720 that because you made a decision on the 769 00:38:08,720 --> 00:38:13,030 merits. 770 00:38:13,040 --> 00:38:14,800 Well, dismissal, the appellent could 771 00:38:14,800 --> 00:38:17,440 come back with a different argument 772 00:38:17,440 --> 00:38:19,119 or would that be a new Well, it has to 773 00:38:19,119 --> 00:38:23,270 be timely. 774 00:38:23,280 --> 00:38:25,760 Has to go through the same analysis. Was 775 00:38:25,760 --> 00:38:30,480 there a uh decision which is the first 776 00:38:30,480 --> 00:38:32,640 cate first question. Was there a 777 00:38:32,640 --> 00:38:36,000 decision made? Then was a decision of 778 00:38:36,000 --> 00:38:38,079 interpretation. 779 00:38:38,079 --> 00:38:42,000 uh if there was was it timely filed 780 00:38:42,000 --> 00:38:44,480 uh so just go through the whole analysis 781 00:38:44,480 --> 00:38:47,680 uh one more time. 782 00:38:47,680 --> 00:38:51,079 So, in terms of where we go from here, 783 00:38:51,079 --> 00:38:55,359 um I think you got the gist of it, Fred, 784 00:38:55,359 --> 00:38:57,440 that the any decision that we'd be 785 00:38:57,440 --> 00:38:59,440 willing to we three of us would be 786 00:38:59,440 --> 00:39:04,079 signing on to um would be a um dismissal 787 00:39:04,079 --> 00:39:06,480 and finding of no error on behalf of the 788 00:39:06,480 --> 00:39:08,640 zoning administrator. 789 00:39:08,640 --> 00:39:10,960 uh with regards to this this case is 790 00:39:10,960 --> 00:39:13,599 there 791 00:39:13,599 --> 00:39:16,079 well first you would have to make a 792 00:39:16,079 --> 00:39:19,280 determination was there a decision um do 793 00:39:19,280 --> 00:39:21,040 we is this like where I want to formally 794 00:39:21,040 --> 00:39:22,640 like get us all on the record on this 795 00:39:22,640 --> 00:39:24,400 type of thing I think we are already 796 00:39:24,400 --> 00:39:27,520 decided it was mine 797 00:39:27,520 --> 00:39:30,320 right you made a decision or you haven't 798 00:39:30,320 --> 00:39:32,720 made the decision because nothing final 799 00:39:32,720 --> 00:39:34,640 but you seem to be a little bit of a 800 00:39:34,640 --> 00:39:37,359 consensus that 801 00:39:37,359 --> 00:39:42,880 uh that Chris Jacobiaak in 2021 made a 802 00:39:42,880 --> 00:39:43,800 uh 803 00:39:43,800 --> 00:39:46,240 decision. Okay, that's where we are. 804 00:39:46,240 --> 00:39:48,960 It's my unless someone says differently. 805 00:39:48,960 --> 00:39:55,280 I concur. Then question is uh was it was 806 00:39:55,280 --> 00:39:57,280 there an appeal taken from that in a 807 00:39:57,280 --> 00:40:00,560 timely manner? Uh the one the I think 808 00:40:00,560 --> 00:40:02,320 this is what Amy was just getting at 809 00:40:02,320 --> 00:40:06,640 which is I think where we were which was in order to make an appeal you'd 810 00:40:06,640 --> 00:40:09,280 have to the wrongdoing would have had to 811 00:40:09,280 --> 00:40:11,599 have been made right like been an appeal 812 00:40:11,599 --> 00:40:13,200 had to be had to be an offense. So, we 813 00:40:13,200 --> 00:40:15,040 were trying to figure out if we thought 814 00:40:15,040 --> 00:40:17,760 it was an error before we worried about 815 00:40:17,760 --> 00:40:20,000 the timeliness question. Right. Right. 816 00:40:20,000 --> 00:40:22,880 And I think we agree that it was not an 817 00:40:22,880 --> 00:40:24,640 error or if it was an error, it wasn't 818 00:40:24,640 --> 00:40:27,760 in in anything in the scope of of what 819 00:40:27,760 --> 00:40:28,880 we're seeing. Not a matter of 820 00:40:28,880 --> 00:40:30,960 interpretation 821 00:40:30,960 --> 00:40:33,520 relating to the zoning ordinance. Yes. 822 00:40:33,520 --> 00:40:35,760 on the chat and then we wouldn't need to 823 00:40:35,760 --> 00:40:38,400 get to the timeliness question because 824 00:40:38,400 --> 00:40:42,560 we've already decided that there's no 825 00:40:42,560 --> 00:40:46,510 appealable error that happened 826 00:40:46,520 --> 00:40:50,119 here. Am I missing I 827 00:40:50,119 --> 00:40:53,920 think I think that kind of 828 00:40:53,920 --> 00:40:57,119 I think you've got it captured. 829 00:40:57,119 --> 00:40:59,440 Okay. Uh is that is that enough for you, 830 00:40:59,440 --> 00:41:03,520 Fred? um to to begin drafting. Oh, let 831 00:41:03,520 --> 00:41:05,560 me suggest 832 00:41:05,560 --> 00:41:10,240 that I take tonight's discussion, go 833 00:41:10,240 --> 00:41:14,160 back and put together a draft of a 834 00:41:14,160 --> 00:41:15,839 resolution 835 00:41:15,839 --> 00:41:19,000 uh embodying what you all talked about 836 00:41:19,000 --> 00:41:23,440 and any related matters that I may think 837 00:41:23,440 --> 00:41:26,000 uh are necessary or appropriate to go in 838 00:41:26,000 --> 00:41:29,599 the resolution. and then uh get drafts 839 00:41:29,599 --> 00:41:33,560 out to uh the three of 840 00:41:33,560 --> 00:41:36,720 you hopefully in the next week or so, 841 00:41:36,720 --> 00:41:39,040 week, week and a half. Uh so you have an 842 00:41:39,040 --> 00:41:41,359 opportunity to review it, you know, 843 00:41:41,359 --> 00:41:44,119 before uh the next meeting on the 844 00:41:44,119 --> 00:41:47,359 31st. And I would encourage 845 00:41:47,359 --> 00:41:52,400 uh you to send any suggested revisions 846 00:41:52,400 --> 00:41:55,200 or comments directly to me, not to each 847 00:41:55,200 --> 00:41:58,880 other. Uh so it's just it remains 848 00:41:58,880 --> 00:42:01,119 attorney client privilege and we don't 849 00:42:01,119 --> 00:42:04,400 get into issues about uh open meetings. 850 00:42:04,400 --> 00:42:07,599 So and then I'll take and digest what 851 00:42:07,599 --> 00:42:12,200 you all tell me and uh either make some 852 00:42:12,200 --> 00:42:15,839 revisions or hold them till the next 853 00:42:15,839 --> 00:42:18,950 meeting. 854 00:42:18,960 --> 00:42:22,440 So, do we make a recommendation 855 00:42:22,440 --> 00:42:26,240 now for your for your 856 00:42:26,240 --> 00:42:29,040 I think you've given me guidance. I 857 00:42:29,040 --> 00:42:30,720 think the minutes can reflect that there 858 00:42:30,720 --> 00:42:31,640 was a 859 00:42:31,640 --> 00:42:33,760 consensus because you're not making a 860 00:42:33,760 --> 00:42:35,160 final 861 00:42:35,160 --> 00:42:38,400 decision. You're uh you're giving me, 862 00:42:38,400 --> 00:42:41,599 you know, preliminary guidance. 863 00:42:41,599 --> 00:42:45,910 Okay. 864 00:42:45,920 --> 00:42:47,599 Go ahead. 865 00:42:47,599 --> 00:42:49,520 If this case could go further or 866 00:42:49,520 --> 00:42:51,920 whatever else do we want to okay but if 867 00:42:51,920 --> 00:42:55,839 this is not found to be the case then 868 00:42:55,839 --> 00:42:59,040 whatever like I know just even in this 869 00:42:59,040 --> 00:43:02,800 appeal you know it was stated okay so if 870 00:43:02,800 --> 00:43:04,240 you don't think the if you say that the 871 00:43:04,240 --> 00:43:09,760 moratorium was legal then we state da da do would we do a similar thing here 872 00:43:09,760 --> 00:43:12,400 or no because we were saying that if we 873 00:43:12,400 --> 00:43:15,359 if there had been an error the timing 874 00:43:15,359 --> 00:43:17,680 would be such and that therefore it 875 00:43:17,680 --> 00:43:19,359 would not have been timely. Well, do we 876 00:43:19,359 --> 00:43:22,359 get into that or no? 877 00:43:22,359 --> 00:43:24,520 In draft 878 00:43:24,520 --> 00:43:27,800 resolution portion about timing. 879 00:43:27,800 --> 00:43:31,520 Okay, cool. Thanks. 880 00:43:31,520 --> 00:43:37,000 Right. Um with that um attempted to uh 881 00:43:37,000 --> 00:43:39,200 journ um is there any other business 882 00:43:39,200 --> 00:43:41,640 before the board? Anything talking 883 00:43:41,640 --> 00:43:45,760 about? Uh our next meeting is what day? 884 00:43:45,760 --> 00:43:48,720 31st. The 31st at 6:30. Two weeks from 885 00:43:48,720 --> 00:43:50,880 today. Yep. Two weeks today. 6:30. Um 886 00:43:50,880 --> 00:43:53,960 and we will get back together uh to 887 00:43:53,960 --> 00:43:58,160 review what Fred's putting together. Um 888 00:43:58,160 --> 00:44:00,240 uh at this time, I'll entertain a motion 889 00:44:00,240 --> 00:44:02,400 to adjurnn. I'll make a motion to 890 00:44:02,400 --> 00:44:05,920 adjurnn. A second. I'll second. Favor. I 891 00:44:05,920 --> 00:44:30,470 mean journ. Thank you. 892 00:44:30,480 --> 00:44:31,800 That was a short 893 00:44:31,800 --> 00:44:35,800 meeting. Yeah.