Okay, welcome everyone. This is the call
to order for the Chesapeake Beach Board
of Appeals. Um, this is March 17, 2025.
Uh, we are here today to approve some
meeting minutes and then to continue
deliberations on case
20230. Uh, as always, we begin with our
roll call. Uh, please answer that you
are present. Uh, Mr. Mr. Paul Dhy
present. Amy Everett present. I am Mr.
Jody Hunstar. We have a quorum. Uh the
first agenda item is meeting minutes
approval for our previous meeting of
March 6,
2025. Um does anybody have issues with
those minutes as they saw them?
Hearing none. Uh I would entertain a
motion to approve the meeting minutes.
Move to approve. I will second that.
Body in favor? Hi. Okay. We are on to
the continuation of case 202303 Rod and
Incorporated Donovan Estates LLC to
consider an application from the Rodri
Incorporated Donovan Estates of 4160
Mirrors Avenue Ches Beach Maryland for a
decision on interpretation alleged error
to article 6 section 2923 2931 A1 and A6
of the Chesapeake Beach zoning ordinance
in section C309 C310 C311 of the
Chesapeake Beach Town Charter. applicant
request the Chesapeake Beach Zoning
Board of Appeals to quote order the
zoning administrator and planning and
zoning commission to immediately
commence and prioritize the processing
and review of the relevant site plans uh
submitted by the Rod and uh and that the
zoning administrator and planning and
zoning commission be ordered to apply
the zoning ordinances in effect as of
January 29, 2021 when the applicants
when the applications were submitted and
for such other and further relief as the
nature of their cause requires. Okay. um
where we left it off last time were I
believe with two things. Um and we do
not have to go in that direction if the
board so chooses but I think um they
were good ones. Um and we can take them
in any order. Uh, I think Amy, you had a
concern, well, not concern, you were
interested in looking at the timing of
the appeal and seeing if it fell within
um the threshold, the number of days in
order to um to be accepted by the board
of appeals. Um, so that's number one.
And number two was uh Paul had asked us
all to get together uh some questions
that we could kind of tick down the
list. Um, I have my own list, but I
don't I don't know if they're worth
reading. I'll happily defer to you,
Paul, if you'd like to go through some
of yours. Um, I think the idea was good
and it helped me, uh, consolidate my own
thoughts. Um, which I'm happy to to
discuss. So,
um, I guess I'll I'll So, not to run
over everybody, um, Paul, you'd had uh
had some questions. Do you are there any
of them or all of them that you would
like to work through? Um well I think
the first two that I had are the most
important
ones and and this goes back to the the
powers of this
board as uh described in the in the code
the ordinance that institutes this
board.
First question is at what points in time
was an order, requirement, decision or
determination made by the planning and
zoning administrator or a commission
that was relevant to this appeal.
Um, yeah, I'll happily
uh chime in there. I think from my own
notes, I had I'd initially
noted two ones that I think could
possibly be decision points from um the
administrator or related to the
administrator's duties. You know, we'd
have to there's some specifics there. Um
the first one I think we can discard is
um the decision on whether or not the
moratorum ended and they should have
reopened the site plans. I think that's
pretty well off the table for me as not
a decision point. Uh that's that's that
was made. Um I think Can you elaborate
on why you say that? So I think that the
dec so um I think that the decision was
made initially by um in response um to
the engineer Mr. Woodburn I think um for
Mr. Kubiaak and that was the decision
point. The decision to
re-evaluate that. I don't
think that just doesn't quite quite fit
with what I think the scope of our
duties are or what what we're asked to
do here. I think
um I think the only the only decision
Mr. Jacubak made that can be evaluated
by this board is the initial email
response to Mr. Woodburn. And we can put
some brackets around that for for what
falls into that. Was there a decision
made
when the moratorium was lifted?
You said you didn't think I don't think
so. That decision point? Yeah. Was there
a decision point? I don't think Was
there a decision made?
Yes. I was claiming um I don't think a a
decision was made. I don't think from my
interpretation on how this worked was
that the the planning and zoning
administrator made a
determination or if he made a decision
it was made at the time as to at when he
responded to um Mr. Woodburn and that
then the
moratorum just made that not that never
that question never reopened. Um I don't
much know how better to to phrase it. So
to clarify, you're saying that Jacob's
letter of February 5th, 2021, Yes. was
the only response and that in 2022 when
the moratorium was lifted and the
request came to re-examine the
applications, the response came from
pounds and not the commissioner or the
board or the board of appeals, whatever.
So therefore there was not a decision is
that that's my I yes that is my
interpret but but that was be that was
before the moratorium was lifted
2022 mortorium was 20 well there was a
yeah so there was a
request to rev to evaluate the site
plans sometime in 2022
that's when uh town attorney responded
that the morator was still in place.
And am I correct in saying when this particular response was the
triggering event that caused the
appeal? Was that that that uh response
uh email from Mr. Pens? We have to be
led to believe that it was
because during this case and in
summation
um we have been told that there is he
even says in the summation there is no
distinct act upon which any appeal
period could be initiated. So therefore
that's that's the only thing that's
happened in you know the timing of it.
Um so and
I personally don't feel
that well yeah I think the only decision
that was made was February 5th 2021
whether it was a lack of a decision
being the decision I think that that is
the only point in which information was
even was communicated directly about
this case which is also agreed upon by
Blitz that that was the only form only
communication from either commissioner
or the board about it. I think decisions
were made by others in the town that
have been discussed but the appeal that
we need to examine is what the what the
planning and zoning administrator or the
board did.
What do you think happened after the
moratorium was lifted?
I can't say we can't say for sure,
right? I think we can we could make some
guesses, but I don't think that's Yeah,
I don't know that that pertains and I
think there's an argument to be made,
not to pile on here, um that that there
are two different interpretations of
when the moratorum was lifted. One was
once it expired and the other one is
when they got together to formally vote
and pass the zoning ordinances. It
seemed like they uh lined that
particular um vote up. Um
yeah, you do you do you think that that
was was that an important point for you?
Well, I'm asking the question. Yeah.
Whether they're now first of
all the moratorum was formerly lifted by
a
resolution before
that I think you're implying
that it sort of expired by itself
possibly.
I'm not sure I agree with
that. But, you know, I was I was
thinking of the point at which the the
resolution that formally lifted the res
the the moratorum
um
occurred. At that point, the the site
plans review of the site plans could
have been picked
up. Was there some decision made not to
do it?
was
yeah that one it yeah
I think that I have not seen any
evidence it would just seem to be a lack
of
action or on the part of the zoning
administrator if they did reopen them at
that point it would have been with
regards to the new zoning ordinances
right I mean so there's a lot of
speculation I think I think there's a
couple of things going on there, though.
Is that was there was there an
application to look at? It was said that
no, we're not going to be able to look
at this these applications. Here's your
money. So, was there an open application
for them to examine after the moratorum?
And I think
if if the case is one one I don't think
it's our duty to I don't think it's
within our purview to say if this
moratorum was legal not legal the
duration or anything else that is beyond
our purview that was done by town
council I don't think that pertains but
if it was
illegal as Blitz has said it is
then it's to me it's a moot point as to
whether it occurred or when it occurred
because then it just goes back to what
happened when the applications occurred
and what was the timing of the events
after that if they had 60 days to look
at it what happened in 60 days if they
did and then 30 days after that what
happened I think that that is what I
think is the key of what we're actually
looking that and I think that things may
or may not have occurred correctly after
that. That's not that's not ours to
determine because the the commission did
not do that and it and that and
if I just think in many ways that is not
what the appealable offense would be if
we determined there's an appeal.
Yeah, that that kind of echoes the same
thing I've been rambling about for the
All right, so the second question is
let's let's presume that uh the only
decision we can rule on or action is at
the beginning.
Was
it an error as a result of a
misinterpretation of the code?
Decision not to review the Yeah. to
whatever to review the uh site plans.
I
mean it's
yeah I think this so just to back up one
step this particular
um instance is is difficult for me
because I think it puts us as the board
in a a spot where we're not it's no one
gets a fair shake here. Right. is that
uh the first thing is is was there a
decision made like did appeal denial
like whatever was was this a decision
point? Um if we say that Mr. Jacubak
made no decision then there's nothing to
appeal here right there was never a
decision that's in scope for this board
if he didn't actually make a decision. I thought we kind of agreed that there
was a decision. So hold on a sec. So the
second part of that is if he did make a
decision no matter what happens what
date we use for the appealable range for
the timeliness it's well outside like if this date is when the the thing
happened it's outside of f the appeal is
outside of five days the appeal is
outside of 30
days doesn't matter what we
pick right
Not just say un Yeah. Anyway
um sorry Paul so is is your point that
it would be moot to talk about whether
there was even an error because the
timing had passed. I think we have to
right but I don't think that I don't
think that that changes the outcome. Um
it might technically change the outcome
but it the imposition of the
moratorum does
that by
necessity mandate that appeals cannot be
heard.
If you know if an appeal can't be heard
then the fact that it wasn't filed is
not relevant. I've seen nothing to I've
seen nothing to indicate that an appeal
couldn't have been filed and we couldn't
have heard appeals during that time. I
permits can't be pulled during permits
and whatnot can't be pulled during uh
during an appeal and different you know
new construction according to that
couldn't happen. But I read nothing that
an appeal couldn't happen. So,
okay. So, right.
So, where are we? I think we go down I
think we go down our list which is first
um unless someone wants to make an
argument for a different point in time.
The only decision point we're
considering is Jacubak's initial
response to Mr. Woodburn. On what date
do you say that was? February. February
5th,
2021.
Um,
and if we believe that that's the only
point, did Mr. Jacubak make a decision
in his role as the zoning administrator.
Can we discuss further? Yeah. Yeah.
So I think I think it was a
decision. Um and I think that his
decision was
further clarified by the fact that they
had a meeting that they discussed this
these issues that they had been
discussing some of the things that he
brought up in that letter. Um you know
since 2018 they had been talking about a
comprehensive plan. They had been
talking about other things. Um and then
they had the meeting February 24th, you
know, um to which parties here spoke. Um
so I think that it was it was a decision
and it was a wellstated decision. Not
wellstated decision, but a a clear
statement
whether it
was correctly done or I'm not sure, but
it was a decision. Was it
denial? denial of the site plans in a
not they weren't denied they
were not ruled on which is different
decision is
right but at the same time it wasn't put
on hold and therefore I would see that
as a denial it's not like hey until we
can do this let's go ahead and put this
on hold and you know
they were put on hold
so they just said they and do it. I
don't It's the same as putting it on
hold.
Yeah. Um I take I I I take this as it
was a denial and not a clear denial. It
was an unclear denial, which is not
fair. I don't I don't think anyone would
argue. Well, I I do agree that that was
a decision made at that point.
Okay.
So if that was a decision by the
planning and zoning commission, he was
and we agree he was acting in his
authority as the um zoning
administrator. Um
uh is it an
error? Um I think that's the next am I right Fred? That would be the next
criteria would be the decision was made.
Was it an error in interpretation
of the zoning code of the zoning code?
Um, I would say that the
considerations
that caused the
decision was outside the code.
It was considerations
of
considerations emerging from the town
council. It was known that the town
council was considering a moratorum.
Actually, now that I now that I say it,
I wonder if we
even should get to that right. Like if it was an a decision was made, maybe
the next step
isn't was it an error, the next step
is is it is it appealable? Was the
appeal filed timely? Is it within the
stated guidelines that we have here? We
might not even need to get to whether or
not it was an error in the code.
I agree that it's
um unsatisfying to consider this
particular
question if our guidelines state that an
appeal needs to be filed within 5 days,
30 days. I think those are the two and I
think I think the guidance is that we
stick to the stricter of the two within
5 days was an appeal filed. Is that
sorry before even talking about that is that the question we we should
be discussing here?
Well, I mean, what makes something
appealable, right? So, we ha you have to
go back. So, you think the this this
particular the error comes first.
Well, I
mean, yeah, I guess you're right. I
guess you can't appeal, but you need to
have Yeah. So, I think you need to have
it. Sorry, disregard my tangent. Um, so
Paul was saying that was is this an
error? Paul was saying it was outside of
the code considering uh considerations
emerging from the town council. You mean
particular? It was it was more
operational
considerations. I would I'm not sure how
to describe it administrative or
operational considerations.
Can those be considered errors if we're
our job is to
interpret the statutes of
the zoning ordinance? It's kind of, you
know,
well, the code does the code
does have words in it that describe how
the the commission and administrator
should conduct business.
So to some extent that's that's an those
are
operational
guidelines but in this case I I don't
think that what
happened is within I would say within I
don't want to say
this I I think it was
more administrative in nature
the the administrator and and the
commission
knew that the that the the council was
considering a
moratorum and in fact the count the the
commission um recommended it. Yeah. So,
if our job is to come through and say
the zoning administrator uh made an
error because he did not do this
specific article that this specific
section whatever of the zone of the
code, can we say he made an error?
Right. Yeah. If he's operating in this
administrative kind of gray area
capacity. Well, it you know if the code
says that
site critical area site plans have to be
reviewed within 60 days and they don't
get reviewed within 60
days. Is that an
error? Is that is that a uh error of
interpretation because they weren't
reviewed in 60 days?
I agree. That's um
yeah please
that is that the planning commission
which is supposed to complete it review
within 60 days of the critical area site
plan it's listed in there. Yes.
Right. Not the zoning administrator,
right? It's the commission. It doesn't.
So, the zoning administrator can take as
much time as he
wants to to look at the site plans and
make recommendations.
My recollection, I don't have it here in
front of me, is that there's no time
limit for the uh zoning administrator to
make a determination on flity of the
bank plan. The 60-day period we're
talking about is uh I think tied to the
planning commission.
Well, in any
case, once the moratorum was lifted
before the 60 days expired,
you mean it was in place? It was That's
right. It was in place before the 60
days
expired. And I agree that once the
uh once the moratorum was in place, I I
think it was out of the hands of both
the administrator and the uh commission.
So, it does say um it does say in
29023C3 the planning and zoning
commission will review and take action
on all category 1 site plans. So, this
was a concern I had of mine before is
that the wording of this I don't think
explicitly states that everything has to
be done within a certain time period. I
think once they've received information
they whatever then they they are in that
time period. Um I have not been
convinced that that the administrator
was obligated to get underway. Um early
on in this whole thing we were told that
the commission had to put in whatever
time they needed to to get this done in
60 days. That was their job. Their job
is elsewhere. This is what they
volunteer for. Um, I don't think that
this code was written to imply that they
had to drop everything and get five site
plans done in 60 days and have a
determination with all the other pieces
and parts involved and all the other
people involved in referencing that
information.
That said, if the 60 days was to be set
and we decided there was an error for
that, that decision would have had to
been made by March 30th. And if appeal
was to be filed because it was not done,
whether there was a moratorum or not
brings you to April 29th, 2022 or
2021. And let me stop you for a second.
What? That's assuming that the appeal needs to be filed within 30 days,
right? I'm just giving the the most
whether it's five days or 30 days. But
the provisions relating to critical area
site plans provide for five day appeal
period. Correct. I'm just giving the
most time period given that like if it's
60 days and if it's 30 days. Yeah.
Right. So then that would be what? April
4th. April
3rd. Yeah.
Um, so there is an error if we believe
that the planning administrator and
commission together everything they had
to do had to come up with a decision in
60 days. Here's here's the
wording. Says planning and zoning
commission shall approve, conditionally
approve or reject a site plan within 60
days from the filing of the application.
Which one? This is
uh
29023.
No, I'm sorry. 290
29025 290
25 parents
5 right so once the commission is in
receipt right but
it says upon receipt of of the site plan
the planning and zoning commission
shall
So in and 5 A you're reading 5C in 5 A
it says upon receipt of it
I
skeptical interpretation of that I think
once once the once the site once the
application's submitted
and the fee paid with with the
application I think I think that
constitutes receipt.
Um but in any
case, the moratorum was was
imposed 7 weeks after
submission. That's less than 60 days.
Okay.
Once that happened, I I think
the administrator and the commission
were were obligated to cease any work on
that those plans.
So, um, so if I'm
reading what you're saying, Paul, is
that you don't think the zoning
administrator acted in error or error of
interpret? I'm not necessarily saying
that.
Um well I I guess yes I I I guess I am
saying that I think it was I I don't
think it was an if there was an error I
don't think it was an error resulting
from an interpretation of the code.
Um yeah, I think I think I agree with
you was that a decision was
made and
um and it was not an error.
There's there's several other
considerations that you
know sort of floating around which
may probably shouldn't
um be part of our decision but you know
some external considerations
or if you'd like to um well I'm trying
to read lips so I'm sorry I'm sorry.
Okay. So one is you know the the
appellent brought up the issue that the
moratorum was
illegal. I don't think we have the
authority to rule on that.
I agree. I think that's that's within
the bounds of the court. Yeah. I don't
think that the U zoning administrator or
the commission planning commission had
authority to rule on that either. That's
right.
Um, another point that I wanted to make
is
that even if we decided that there was
an
error and we ordered the order, I still
question whether I I I believe we can
tell the zoning commission
to review plans like in a certain Right.
I don't think we have the power to order
them to review plans according to
superseded
code. In other words, provisions that
were in place by in
2021 that have been since superseded by
newer
um or updated code
provisions. I
If it was if it was a normal matter of
business where the planning and zoning
commission didn't or the zoning
administrator didn't pick up a thing
just of their own valition and then
waited you know some amount of time in
which in which case zoning changes
happened. I would be I think willing to
make them use the old zoning code
provided it was scoped within the
authority of the administrator in
planning and zoning. Right? Like if this
had nothing to do with the moratorium or
town council. If the planning and zoning
commission itself made a mistake
resulting in harm to an applicant and
the applicant then comes and says hey
they you know they did this
wrong. I don't I wouldn't feel so I
wouldn't think it would be that
controversial to do it in a case where
all the decisions were self-contained
within planning zone. In this case, it's
a lot of time and it involves the town
council and lots of other external
folks. So, the the decision wasn't
contained within I wouldn't have such a
problem with that, but in this case, I
don't I don't think we I don't want to
do that. I don't think we should do
that. the um try to follow you but yeah
okay doesn't um you know the zoning code
is put in place by the commission by the
council and the mayor
yeah maybe it's not possible and you
know once that once that
occurs I don't think an administrative
body such as ours
have the ability to override it
as far as I understand we only have what
is within this book right here, this
code, that's it. We don't have rights
beyond that. So, we don't have rights to
tell every person that we want to what
to do. And yeah, I agree with you. The
town council sets that.
Amy, no. Uh, do you take that as is did
the planning and zoning administrator
act in error at any Sorry, can you hear
me? Uh, did the planning and zoning uh
administrator act in error in your take?
I think that I'm not fully convinced it
was an error per se, but if there was an
error, I don't believe it was an
interpretation of it. I just I don't I
was agreeing. Yeah, I think it was more
administratively whatnot, but
um I think he was within his rights. I
will agree with that. I think that leads
us closer to the end. We don't need to
there a ton of thorny directions this
could take in a lot of ways. But if the
commission or the board of appeals
doesn't think the zoning administrator
acted in error, then this is a
dismissal.
If they didn't act in error, then it's
not an appealable offense. Correct? And
then what would happen then?
That raises a point that I had earlier
or a question I had
earlier. Dismissal versus denial.
Now, you want to give us the rundown,
Fred? I think a dismissal uh
contemplates a lack of jurisdiction on
the part of the board. Uh denial is a
decision on the merits.
So,
if you find
that there was there was uh an appeal
filed that was not timely. I think that
goes to the jurisdiction of the board
and that would be a
dismissal. If you find that
uh
then no error was made, no error. uh
then I think that also would probably be
a uh be a uh dismissal as opposed to a
denial. But I'd have to think on that
one a little bit.
The implications have to do with
revenue.
Okay.
And and no, I'm not an attorney,
but there's a phrase called dismissal
with prejudice and without
prejudice. Is that true? Is that
correct?
Well, I don't I don't think that would
come into play in this particular
situation. Uh because there's nothing in
the rules, the code that makes that
distinction with or without
prejudice. Uh,
I mean, would wouldn't a dismissal imply
that the appellant could then turn
around and come back and re refile the
appeal.
If if there was a dismissal, that would
probably mean that
uh if there were a new appealable
determination, appealable decision from
the uh planning administrator, zoning
administrator or planning commission,
then that would be subject to appeal.
So conditions would have to change
before Yes. Okay.
If however there was a uh determination
on the merits and the application or the
appeal was uh
denied then that probably would mean
that there would be
uh no opportunity to come back on
that because you made a decision on the
merits.
Well, dismissal, the appellent could
come back with a different argument
or would that be a new Well, it has to
be timely.
Has to go through the same analysis. Was
there a uh decision which is the first
cate first question. Was there a
decision made? Then was a decision of
interpretation.
uh if there was was it timely filed
uh so just go through the whole analysis
uh one more time.
So, in terms of where we go from here,
um I think you got the gist of it, Fred,
that the any decision that we'd be
willing to we three of us would be
signing on to um would be a um dismissal
and finding of no error on behalf of the
zoning administrator.
uh with regards to this this case is
there
well first you would have to make a
determination was there a decision um do
we is this like where I want to formally
like get us all on the record on this
type of thing I think we are already
decided it was mine
right you made a decision or you haven't
made the decision because nothing final
but you seem to be a little bit of a
consensus that
uh that Chris Jacobiaak in 2021 made a
uh
decision. Okay, that's where we are.
It's my unless someone says differently.
I concur. Then question is uh was it was
there an appeal taken from that in a
timely manner? Uh the one the I think
this is what Amy was just getting at
which is I think where we were which was in order to make an appeal you'd
have to the wrongdoing would have had to
have been made right like been an appeal
had to be had to be an offense. So, we
were trying to figure out if we thought
it was an error before we worried about
the timeliness question. Right. Right.
And I think we agree that it was not an
error or if it was an error, it wasn't
in in anything in the scope of of what
we're seeing. Not a matter of
interpretation
relating to the zoning ordinance. Yes.
on the chat and then we wouldn't need to
get to the timeliness question because
we've already decided that there's no
appealable error that happened
here. Am I missing I
think I think that kind of
I think you've got it captured.
Okay. Uh is that is that enough for you,
Fred? um to to begin drafting. Oh, let
me suggest
that I take tonight's discussion, go
back and put together a draft of a
resolution
uh embodying what you all talked about
and any related matters that I may think
uh are necessary or appropriate to go in
the resolution. and then uh get drafts
out to uh the three of
you hopefully in the next week or so,
week, week and a half. Uh so you have an
opportunity to review it, you know,
before uh the next meeting on the
31st. And I would encourage
uh you to send any suggested revisions
or comments directly to me, not to each
other. Uh so it's just it remains
attorney client privilege and we don't
get into issues about uh open meetings.
So and then I'll take and digest what
you all tell me and uh either make some
revisions or hold them till the next
meeting.
So, do we make a recommendation
now for your for your
I think you've given me guidance. I
think the minutes can reflect that there
was a
consensus because you're not making a
final
decision. You're uh you're giving me,
you know, preliminary guidance.
Okay.
Go ahead.
If this case could go further or
whatever else do we want to okay but if
this is not found to be the case then
whatever like I know just even in this
appeal you know it was stated okay so if
you don't think the if you say that the
moratorium was legal then we state da da do would we do a similar thing here
or no because we were saying that if we
if there had been an error the timing
would be such and that therefore it
would not have been timely. Well, do we
get into that or no?
In draft
resolution portion about timing.
Okay, cool. Thanks.
Right. Um with that um attempted to uh
journ um is there any other business
before the board? Anything talking
about? Uh our next meeting is what day?
31st. The 31st at 6:30. Two weeks from
today. Yep. Two weeks today. 6:30. Um
and we will get back together uh to
review what Fred's putting together. Um
uh at this time, I'll entertain a motion
to adjurnn. I'll make a motion to
adjurnn. A second. I'll second. Favor. I
mean journ. Thank you.
That was a short
meeting. Yeah.