[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.