May 28, 2013 Minutes
The Board of Appeals held its regularly scheduled meeting on Tuesday, May 28, 2013 at 7:00 p.m. in the Commissioners Meeting Room of the Charles County Government Building, La Plata, Maryland.
The following were present:
Luke Hannah, Chairman
Natalie McKinney, Vice Chairman
Frederick Mower, Member
Jean Schappet, Member
Brendan Moon, Member
Shelley Wagner, Planning
Matthew Claggett, Associate County Attorney
Carrol Everett, Clerk
The Chairman called the meeting to order at 7:00 p.m. and stated there was a quorum. Cindy Terry, Alternate, was absent.
The Chairman announced the process by which all Board of Appeals hearings are to be conducted.
The Chairman announced that anyone wishing to make a statement pertinent to the operations of the Board can do so at this time, excluding the items on tonight’s agenda.
7:00 PM, Public Hearing:
Docket #1306 – La Plata Memorial Gardens, for an appeal of a Zoning Officer decision, as provided in Article XXV, Sections 297-416 and 297-417 of the Charles County Zoning Ordinance.
Adam Storch, Associate County Attorney began testimony on behalf of the Zoning Officer.
Mr. Storch referred to Section 297-416 P. of the Charles County Zoning Ordinance entitled “Abandonment and failure to initiate”. It states that “whenever an approved special exception is not in use or does not operate for a period of three years, or whenever an approved special exception is not initiated and commenced within three years after the date of approval, the approved special exception is automatically null and void without any further action by the Board being required.”
Mr. Storch continued that the sole issue before the Board tonight is whether the Applicant “initiated and commenced” the use of its Special Exception before July 11, 2011.
Mr. Storch also noted that it is important to the County because of the precedent it sets. If preliminary work can meet the “commenced” requirements, then there is nothing to prevent the holder of a special exception to wait over three years to commence building so long as he has performed some preliminary work.
Mr. Storch stated that the Applicant can re-apply for a Special Exception if he chooses to do so.
Mr. Storch asked the Board to affirm the decision made by the Zoning Officer that the Special Exception had expired.
Mr. Steve Scott, Esquire, represented the Applicant.
The Chairman swore in the following representatives for the Applicant:
Lorenzi, Dodds & Gunnill
3475 Leonardtown Rd.
8025 Tiki Pl
Mr. Scott began testimony by asking the question “what does initiating and commencing" mean. He stated that there is no definition defined in the Zoning Ordinance.
Mr. Scott stated that real estate projects are diverse and should be considered on a “case-by-case” basis as to whether they have been “initiated and commenced”.
Mr. Scott continued that they are asking the Board consider the Special Exception to be valid and accurate.
Ms. Lagana stated that she has been a land planner in real estate development projects for 12 years. She has been involved with this project since 2007. She briefly described the preliminary work that has been done so far. She did not agree with the County’s interpretation of “initiating and commencing” the project.
Ms. Lagana stated that in her opinion, the development work prior to actual construction means “initiating and commencing” a project.
Ms. Lagana stated that the character of the surrounding neighborhood is still compatible with the Special Exception use as a cemetery. She added that all the Board’s findings in the Order signed in 2008 are accurate and still apply.
Questions from the Board included the following: When did you feel the project had commenced? Has this project commenced?
Mr. Mower stated that this project was initiated but had not commenced.
Mr. Larner stated that he has been a commercial real estate agent and developer for 15 years. He agreed with the statements made by Ms. Lagana.
Mr. Larner stated that he has already expended a great deal of money on this project... He applied for a State permit in October 2010 that is still pending a Use and Occupancy permit from the County.
Mr. Larner stated that road improvements will be necessary at the intersection of Radio Station Road and MD Route 488. He added that this issue is vital to the project going forward.
Mr. Scott presented three design scenarios proffered by the State. Depending on the final design, Mr. Larner may end up with more or less land. Mr. Larner may have so little land, that he will not be able to do the project.
Mr. Larner briefly described a summary of the efforts he has taken so far with respect to the project.
Mr. Larner stated there is a definite community need for cemetery plots in Charles County.
Questions from the Board included the following: When did you feel the project had commenced? Would you agree with Ms. Lagana’s assessment of when the project commenced?
In the past three years, has the cemetery been in operation?
Mr. Moon stated that he has heard several different definitions for commencement of the project.
Further questions from the Board included the following: Why didn’t you file for an extension? Why has it taken over 4 years to get this project done? Did you have a lawyer when you got your Special Exception approved in 2008?
The Chairman stated that it is clear in his mind that the project has been initiated but not commenced.
Actions by the Board
A MOTION was made by Mr. Mower, seconded by the Vice Chairman to uphold the Zoning Officer’s decision that the Special Exception for Docket #1210 has expired and deny the appeal for Docket #1306. With all voting in favor, the MOTION passed.
A MOTION was made by Ms. Schappet, seconded by Mr. Mower, to approve the Minutes for April 23, 2013. With all voting in favor, the MOTION passed.
The following Decision & Orders were signed:
Docket #1307 – Weatherly Farm, LLC
Docket #1309 – Febrey & Liza Pinggoy
The meeting adjourned at 7:45 PM.