Board of Zoning Appeals - Regular Meeting

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All right. I call to order this meeting of the King George County Board of Zoning and Appeals. If uh we would all stand for the Pledge of Allegiance, please. One nation with us. [Music] Okay, we have a quorum. So, we'll call that uh approval of minutes for January 28th, 2025. They are in the package in front of you. They are short and sweet. Give you a couple seconds to peruse those. When ready. Anyone wants to provide a motion to accept the meeting meeting

minutes? Is there an issue? You were the vice motion. Waiting for a motion. There you go. Motion to accept a minute. Do I have a correction? Yes. microphone, please. Motion to accept the minutes. We have a motion properly seconded. All in favor? I I. Any nays, abstensions? Motion carries. We have no public hearing this evening. We have no old business, so we'll get right into new business. Case number Z2024. uh 01963 Amazon request by Charles W. Payne Jr. Council to Amazon Data Center Incorporated for an appeal to the zoning determination made by the zoning administrator. The zoning determination asked whether the previous resoning profer amendment, special exception, and comprehensive plan amendment associated with the Birwood data center project have vested rights. The project application spans 869 acres across nine separate parcels located off Route 3. Uh yeah, if uh just one moment, please. I'm Kevin Buckley. just to [Music]

disclose like my name is Kevin Buckley. I work for RNR Mechanical as a division of MCOR. We actually do work as a contractor. I have nothing to do with any money, contracts, anything. I'm just a service guy that works on chillers. So just just all aware for for Amazon. Yes. For the Amazon Corporation in Crystal City. So I just be aware I'm just a like a technician that works on machines. It should have no bearing whatsoever. I have nothing to do with money, contracts, anything to do with jobs. Okay. Thank you. So before you present, county or Amazon, you guys have any any objections? No objection. Oh, sorry, sir. We're getting the signal for a microphone, please. Sorry. I I was just discussing this briefly with Mr. Smolnik. It it the the may be better if Mr. Buckley doesn't participate. just given an apparent issue. Not saying that he's personally biased or anything, but you know, those of us who are attorneys operate on the appearance of of something and and it may just be better if Mr. Buckley would. I'm sorry. Okay. At this time, I'll just recuse myself from this this case. We no participation in discussions or votes. Uh I I don't have any difficulty with you staying there. Okay. Okay. Chairman, may I ask for the record, please? Mr. Buckley, what Amazon entity in Crystal City are you associated with,

sir? Two of the microphone, please. Two of the buildings on 15th Street. Um just they're just Amazon. It's that we're doing some tenant work basically in um a secured server room that we do the HVAC my company does and I'm just like I said I'm a service guy that does work for them. I understand. Thank you very much sir. Okay. And with the recusal we do still have a quorum. So Okay. Thank you. Appreciate that. Good evening members of the board. My name is Mary Stewart and alongside my co-consel Richard Stewart, we represent the county. Um, I will note that Mr. Smallnick is present here tonight. As was mentioned, this is case Z20401963. And before we dive into the meat of this petition, um, I think it's very important that we return to the powers and duties of the boards of zoning appeals as found in state code. I'm specifically referring to section 15.2-2309 and I have printed out multiple handouts and I'm happy to pass that up if you all would like it. Um, but I'm just going to read the first three sentences. I think it will be very uh helpful just for guiding um how the meeting goes tonight. Yes, sir. If you have printouts, may we have them? Absolutely. Thank you. and I've highlighted the section that I'm referring to just to make it easy for everyone. Um, but as you see it says, "The board of zoning appeals shall have the following powers and duties." Uh, number one, to hear and decide appeals from any order, requirement, decision, or determination. And then skipping down to the highlighted

section, the decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. And I highlighted these two sentences um for two different reasons. First, the that whether or not the administrator officer was correct. Um I think that's important to highlight here because the initial question from Amazon was whether or not they had vested rights. the zoning administrator responded and said that it was not his not within his prerogative to respond as to whether or not there were vested rights. So the question before the BCA tonight is whether Mr. Smallik as zoning administrator was correct in saying that he did not have to make a determination of vested rights or if he was incorrect and should have made a determination of vested rights. The question of vested rights is not before the BCA at this hearing. Um second, the determination of the administrative officer shall be presumed to be correct means that when we walk in this room this evening, zoning administrator is right. Um it is the petitioner's burden to show that the zoning administrator is incorrect. That is a burden that they carry. So at the end of the day, you're in between. You're like, I'm not sure who is right in this case. The zoning administrator is presumed right unless the petitioner shows otherwise. With those two matters, um, we can go ahead and dive right into the case. So, the county recommends denying case this case as the response was timely given the circumstances and the zoning administrator does not have proper authority to determine if Amazon has vested rights. Yes.

This is just an overview of the parcels. It's nine parcels. They're all zoned industrial. And I'm going to go ahead and read the parcels uh for purposes of the record. It's tax map 21 parcel 50 tax map 21 parcel 48 tax map 21 parcel 48D tax map 21 parcel 47 tax map 21 parcel 44 tax map 21 parcel 43 tax map 21 parcel 35 tax map 21 parcel 33 and tax map 21 parcel 25 of those parcels are owned by Amazon um one parcel tax map 21 parcel 33 three is owned by Birwood Power Partners, but Amazon has easement rights over that parcel. This is a timeline of the events um relevant to this matter. So, in April 2nd, 2024, the board of supervisors initiated an action to downgrade certain land parcels owned by Amazon back to agricultural status. May 8th, 2024, the request for zoning determination letter was sent to the county by Charlie Payne on behalf of Amazon. In late May, the parties agreed to a standstill agreement and in reliance on that, the county did not move forward on the downzoning action. In fact, uh Mr. Stewart appeared before the planning commission in June and said that they could that they needed to take it off of their agenda um and that he would let them know if they needed to put it back on the agenda. July 30th, 2024, the board of supervisors and the county attorney met with Amazon and they determined that there was no path forward um where the parties would agree and therefore at that time the county decided that they should respond to the request for dzoning determination letter since it didn't seem like the parties were going to come to any sort of agreement and Mr. Small answered that letter on August 8th, 2024. We discussed this a little bit, but the two issues on appeal are, was the county's response to the request for

determination timely? And second, was the zoning administrator's answer sufficient? We'll take up the first question first. Yes. Can we back up two slides, please? Absolutely. Can you walk back through downgrade means to all of us? Absolutely. Um, so it means that they were considering just reszoning the property. So the property was originally agricultural. When Amazon came in, they asked to have it um changed to industrial for the purposes of their project. It was zoned industrial and the county at that time was considering taking it back to agricultural instead of being industrial zoned and what represents a standstill agreement. Um I'm going to have Mr. Stewart speak about that in just a moment after I've set out the relevant code section. So the relevant code for this is section 15.2-2286 subsection A4. Um and it says that the zoning administrator shall respond within 90 days unless the requesttor has agreed to a longer period. And it was the county's understanding that there was an agreement for a longer period and Mr. Stewart on behalf of the county was the one who spoke to Mr. Payne on behalf of Amazon. So he's going to relay exactly um what his understanding of that agreement was. Uh, thank you, Mary. Um, Mr. Chairman, members of the BCA. I don't want to break this because this tree is 200 years old and this was a special handmade gift to the county last week, so I'm gonna be careful with it. Um, you saw it. It was pretty amazing. Um, so going back into the spring of last year when I helped the county as county attorney, I began to have some discussions with Mr. Payne who

represents AWS. And and I know that you all know as members of the BZA, there were some um changes. there was some new thoughts with a new board and the new board didn't exactly agree with where they were in this and so they um rescended the performance agreement. They considered reszoning land back to agriculture that had been zoned by the previous board to industrial. Um Charlie and I spoke on multiple occasions trying to figure out a way where we could work out the differences between Amazon and the county. And what he said to me was, "I want a standstill agreement." And I said, "What's a standstill agreement?" And he said, "Let's just stop all deadlines in place and not do anything so that we can try to work this out." I said, "Okay, I would consider that a tolling agreement." Doesn't matter what the word is. And I said, "I need something in writing." He said, "I don't want to put it in writing because Amazon doesn't like paper trails because the newspaper is going to foy it." I said, "Okay, I will take your word and I'll proceed on a gentleman's agreement." And I proceeded to go to the board of supervisors, reported that to them. They said, "Okay, let's back off, try to work it out, and see what happens." And that's what we did. As a result of that, I went to the planning commission on two different occasions and asked them to remove the resoning request from their agenda and we would eventually just let them know if we needed to go back there. There was some other actions taken in reliance on that. Now, I didn't have a written agreement. I've known Charlie Payne for a very long time and I didn't think I needed a written agreement and that's my mistake, Mr. Chairman. That's my

mistake. But I relied on that. I acted on that and I thought we had an agreement to put a stop on all the deadlines. It was shortly thereafter I I had a special session and then we actually met I think it was July 30th instead of June. I think thing says June 30th. It was actually July 30th. We went to Hshler Fleer in Fredericksburg because Amazon and they didn't want to be seen down here because the press might report it. So we all went up there. Mr. Smallnick, two of the supervisors, myself. We were in the room for five minutes when we realized there was no way anybody was going to make a deal that day. So everybody got up and left. Came back. I said, "Matt, I guess you might as well go on and respond to that zoning determination letter." And he did within eight days. And those are the facts as I know them. Now, I I've talked to Jamie and she's a an honorable attorney. And I'm the first one to say that. Charlie Payne told her there was no deal. I disagree with that. I believe that there was. I relied on that. But if that's not enough, um, then I would assert my 30-5 privilege. May I approach, Mr. Chairman? Yes, sir. Wait a second. He They confused him again. They put them all on different things. Let me make sure I got enough for you. Yeah. So, Mr. Chairman, as you'll see, there are two ways this works. The King George County ordinance does not specify that Mr. Smolnik is able to make a vested rights determination. and and that was put in his

letter because the county ordinance does not specify that he has that authority. You go to the Virginia code which they have invoked and there's a statute that says he may he may make those determination. Doesn't say he has to or he shall. I don't think he may make those determinations with the concurrence of the county attorney. And I will tell you standing here tonight as the county attorney, I did not concur that he had that authority. Neither the necessary information or the authority to make it. So that's the end of that. But because it says you have to concur with the county attorney, I get what's called a 30-5 continuence. And if you look at this, because I'm a member of the general assembly, there's a statute that says I get a continuence on any timeline out there. And the simple reason is because I couldn't do what I do without it. There's just simply no way. I was in a special session in July and it looks as if I was in on July 18th. I was in a long time before that. I was in a long time after that. And that's just sort of the life we live when we serve in the general assembly. You just don't go for one day and accomplish everything that you were going to do. you have to spend a lot of time in advance and a lot of time afterwards. So I will assert my 30-5 right and and I will tell you that that is an absolute right under the law and it is reversible error if that right is ignored and it says so right in the statute. Now I've talked to Miss Wisegarver about that and I believe she sent and I'll just mention this now. I don't think she knew. At least she told me she didn't. And she sent communication at least to the chairman. And Mr. Chairman, that's absolutely prohibited to have exparte

communication with members of the BZA either by me or by them. Um there's no penalty for it, but it is not allowed and you're not simply supposed to do it. And I I saw in that thing that she sent y'all that I really wasn't in special session. So, I brought you the minutes of that special session and you'll see why the where the president proemp called us in at 2:00 p.m. that afternoon and we did some certain other votes and then you'll notice that Senator Lucas motioned that we recess pursuant to a resolution um until we had at least 48 hours notice. So that language tells you we were recessed and still in session. When when you see language that says we have adjourned siny die s i nee di two simple words then we're out of special session. I am currently in special session under the law from this very special session as I stand here today and I've been through a regular session uh in the midst of that. So I just want to clear those those two things up. Um there are only two issues here and that's whether Mr. Smolnik's determination was correct and whether or not it was timely. Mary will talk to you more about the correctness of it in the statute, but I believe I'm entitled to rely when a requesttor says, "I want a standstill agreement." I think I'm entitled to rely on that. Now, I should have gotten it in writing, and I apologize. I didn't think I had to, but

if you all don't think that's enough, then I am certainly entitled to assert my 30-5 uh right of continuence. and I would ask that you all find as such. Thank you, Mr. Chairman and members. And so we'll continue on to the second question was was the zoning administrator's answer sufficient? Um, and there's a couple code sections that are relevant here starting with 15.2-2286A. And I've taken a screenshot of the code section to put up there because I think it's important to see how it's laid out. in that for subheading A, it says, "A zoning ordinance may include, among other things, reasonable regulations and provisions as to any or all of the following matters." And that's important because the word may, a zoning ordinance may is permissive. Um, and that's what Mr. Stewart mentioned a little while ago. It doesn't say shall include, which would mean that everything that comes after has to be included in a local ordinance ordinance. It just says may, which means that it can be included, but it's at the discretion of the county. And so this is the subsection um that was just referred to. And so in specific cases for when the zoning administrator is making a decision um he can make findings of fact and with concurrence of the attorney for the governing body conclusions of law regarding determinations of rights occurring under those statutes. Um and that is what the petitioner has invoked in this case saying that he had the authority to do so. This is the King George County ordinance. Um this is taken directly from Mr. Small neck's uh answer to the to the letter on August 8th. I know it's a little hard to read, but I wanted to include the entirety of the section without cutting any out uh to start with. And so what we're really looking at is subsection E. It's kind of in the middle. I don't think my pointer works this morning uh this evening, but it's right in the middle. And so it says the administrator has such duties as are conferred by this ordinance and the code of Virginia, including and then it goes on to list seven specific provisions

that are included um in this ordinance. And so on the next slide, I've listed those seven just to make it a little bit easier to read. And you'll see here that there is no mention of making conclusions of law. Um, and this is what Mr. Smolnik relied on when he uh wrote his answer to Amazon. Go back. And so with the facts applied, the Virginia code allows for counties to determine what is appropriate to include in their local ordinance. Although Virginia Code allows for the county to include a provision for the zoning administrator in concurrence with the county attorney uh to make findings of law, it is not a required provision. In fact, the King George County ordinance does not specifically include that provision. However, if it is the BCA's position that all of the language set out in the Virginia code regarding possible authority of the zoning administrator is forced upon the county, then uh Mr. Smallik did not make a legal determination as zoning administrator because Mr. Stewart and Mr. Small did not concur. Um, and therefore no conclusion of law was made as required by the statute and Mr. Smallnick responded as he saw fit. And I've just uh pasted that same language that was bolded from the earlier slide uh so we don't have to keep flipping back and forth slides for your reference. And at this point I want to point out something else as well. Um in the letter that you all received from the petitioner on March 21st. Um it sets out there's on page two in subheading two there's a paragraph that talks about uh and I quote Amazon's request did not seek any conclusions of law. Uh rather the request asked the zoning administrator

to consider the facts presented and determine that Amazon had vested rights in the resoning, the proper amendment, the specs amendment and the comp plan amendment. Um and this is a misstatement of the law. Um I have a case case law. It is Braggill Corporation versus Fredericksburg. It's a Supreme Court of Virginia case um from 2019. And I'll hand this out after I read the short quote. Uh but that there were two issues before the Supreme Court of Virginia and the second issue had to do with vested rights and I quote whether a landowner has acquired a vested right in property is a question of law. We review Denovo. Thank you. Um, and so there is no question about whether or not this was a question of law. The Supreme Court has said, and it's on page eight. Um, I've highlighted it for you. It's a small little snippet, um, in that big packet of papers. And so because it was a question of law, uh, Mr. Small Neck had one opinion, Mr. Stewart had another. They did not concur. And so the statute did not require them to make a determination. And so the staff recommends that you deny case number Z20401963 as the response was timely given the circumstances and the zoning administrator does not have proper authority to determine if Amazon had vested rights. Um, do you have any questions for staff at this time? Can you uh take us back to whether a loan a land owner is required to vested right in property is a question of law

uh only in that you spoke about not concurring and then if they did not concur specifically the law states what? So um if we'll look right here subsection three um in specific cases make findings of fact and with concurrence of the county the attorney for the governing body conclusions of law regarding determinations of right. So in this case the zoning administrator has to make a determination if there is concurrence with the attorney for the governing body uh when it comes to conclusions of law. And so because they did not concur, um it wasn't the zoning administrator was not required to make a determination of law. Seems an interesting expectation that we would put that upon Mr. Small Neck and not Mr. Stewart. And Mr. Chairman, um Mr. Scaramuzzi, that's why the law reads as it does. And so King George County ordinance does not include the authority for Mr. Smolnik to make a legal rights a vested rights determination because that is a determination of law. The Virginia code says that you can put that in there, but if you do, you've got to have the concurrence of the county attorney or the attorney representing the body. And that's the whole point here. I didn't concur. Any other questions? Forgot. Thank you. Thank you. May I take a minute and pass out a few binders to y'all, please? Binders. Old old school, not the PowerPoint. Mr. Chairman, could I I'm sorry. May I

inquire as to what's in here? You'll get a copy. Well, be I would like to know before they're passed out because this we're we are producing a record here and I thought the BZA had to review only what was a part of the record. You've just introduced multiple exhibits in your presentation and so and I have the ability to do the same. Mr. Chairman, we introduced law. That that's all I introduced. If she's got case law, that's fine. But that's all I'm asking. I don't want I I know where this is going and it's going over to the circuit court at some point and I don't want to adulterate the record. And so I my understanding is you all review the record based upon what's in the record and we can argue law and facts to you. I'm just asking what's in it before you look it. I don't think there's anything wrong with it. There are documents relating to the appeal and relating to the history of the discussions between these parties. As the county set forth in its presentation, the burden is on my client here tonight to prove by a prepoundonderance of evidence that the decision made by the zoning administrator was incorrect. I have to be able to meet that burden. And that's what I'm prepared to do here tonight. Well, the the challenge from where I sit is that's a massive binder. There's no way we're going to be able to absorb even a small fraction of that. I mean, so it's it's really probably not going to be too helpful, but if if you I promise you I do not intend to walk through this page by page, but as Mr. Stewart noted, I do have to create a record for the for a potential appeal. And so I need to be able to have a copy included in the record.

Mr. Chairman, that's not what I'm objecting to. I'm objecting to her giving you a binder of things at one time. I think she has to do it like everybody else does. She can present her argument and if she has a a a case to present to you all, then she can offer it and hand it out just like we did. Uh I need a call. I'm procedural stuff here. you you are allowed to accept whatever evidence you deem appropriate, but once it's in the record, it's in the record and it should be the basis of the decision. So, if the volume of evidence at this time would be too much to fairly consider and make a decision on, you are within your rights to reject it at this time. Um that being said it is um if it is relevant maybe worth considering there's the so my again my concern it could be relevant but there's just no way to consume that in a reasonable amount of time and and have it weigh on on the discussion this evening. Now, if you wanted to table this, have that presented, give us a month to go through it. I mean, there's just no way that we can reasonably assess. Chairman Moss, the the binder was simply for ease of your reference so that you can look at it and flip to what I'm talking about. My presentation walks through these items, summarizes them, and discusses their relevance. I think they're important to be included in the record. And the binder, while I guess slightly intimidating looking, is is really just for the ease of of your board so that everybody can flip to what I'm talking to.

So, it's intended to be detailed reference where your presentation will go through the outline. That's correct, sir. I'm sure there's some precedent thing here that I am going to miss. And And Mr. Chairman, all I'm asking is she do it one at a time like we did. I didn't come up with a binder full of things. it and this is the way we would do it in any evidentiary hearing. You're a quasi judicial body and there may be things here that aren't relevant to this case and I should have the opportunity to stand up and say, "Wait a minute. This this doesn't belong in the record. It should be done one at a time." That that's all I'm asking for. I I see no reason why Mr. Stewart can't raise any objection that he has to a particular document at the time. I I suppose I could undo all of these binders and hand things up one item at a time. It just I thought, frankly, I thought it would be much simpler if I could just give y'all the binder so that you have it to flip through. I I have to be able to create a record for appeal. And this is this is the way that I know to do it. I don't believe that we're operating under the federal under the rules of evidence. And so, you know, I'd just like for the board to be able to consider what I have in my presentation just as it did for Mr. Stewart's presentation. And that's all I'm asking for. Consider hers just as I did, just like you considered mine one thing at a time. She is trying to create a record. And once she hands you that and you all accept it, everything in there is a part of the record whether it should be or not. And if she doesn't

like the decision today, she's going to file what's called a ridicersori to the judge in the circuit court. And everything in there is part of the record and the judge has to review that. Just asking you to take them one item at a time. And to be honest, that's that's really the consideration that I have is we can take it one item at a time. As I mentioned, as I go through my presentation, I will be addressing one item at a time. I'm fed the material like I was first comfortable with that handing me that binder and then I'm responsible for that information when I haven't been fed the information. I I'm not comfortable with that. I I feel like if that binder is huge and the amount of information in there, I I don't feel like that's fair to the board like we too much information in there that could be missed and and not even deliberately just I am happy to take this apart and introduce it. item by item if that is what you would prefer that I do. It might just take a little bit extra time on my end because I've got it all compiled in these and I'll need to undo it. I I believe for the sake of this meeting that's the approach we're going to need to take and we're going to have to establish an exhibit for each one of them as part of the record. I mean that again the binder is nice because it has it all in one place but as been stated it's becomes an overall record even though the things you don't introduce here are still going to be part of the case. And you know, I I would just like

to see exhibits by exhibit and we can make a determination as we go. I'm happy to do that. My preference. Any other thoughts, comments? I concur. I think one item at a time is appropriate. Okay. What I may do is um I may hand one binder to Mr. Stewart so that I don't have to undo his and then I'll pass up individual copies to you all. Is that acceptable? He wants to be resp I just also remind your council can advise you but your bylaws allow for 10 minutes for the presentation for I'd appreciate a little bit of leeway on that. The county's presentation exceeded that time limit. May I proceed? Uh, Chairman Moss. Yes. Thanks. Thanks for your flexibility on working through these these exhibit issues, y'all. Um, my name is Jamie Weisgarver. I'm here with my colleague, Eliza Unrain, and we represent Amazon Data Services, Inc., the appellant in this uh particular proceeding. Uh I know that Miss Stewart walked you all through a timeline of events during her presentation. I also have a timeline of events. Mine begins a little bit earlier than Miss Stewart's does, but I think this context is really relevant to the appeal for you today. And so I'd like to talk about it a little bit. On October 9th of 2023, uh, Birwood Power Partners LP submitted um a few items to the King George County Board of Supervisors. The conditional

reasonzoning application, the comprehensive plan amendment, the profer application amendment, and the special exception permit application. You have the uh the case numbers assigned to each of those four items in our request for a zoning determination. This all relates to the Birchwood site, Amazon's property. It's about 869 acres. Uh to be developed in multiple phases was always the plan. um the recorded profer statement which was actually um referenced as an exhibit to our request for a zoning determination as exhibit A. I was a little worried that that may not have made it to you because I did not see that exhibit attached at to the materials that were a part of the agenda for today. So that's my number one item is the recorded proper statement that should have been part of the zoning determination request and I was worried that it was not. So, I would like to hand that up. It's under tab number one. M I don't want to waste any time. Um it it is all irrelevant to this proceeding and I think I just asked the board to keep the issues at hand before you. The issue is was Mr. Moment correct in the way he responded and was it timely. She wants to go through the entire reasonzoning case. None of that is relevant. The only thing that's relevant is whether I concurred with Mr. Small according to state law and I didn't. So, I just I want to lodge that objection up front so I don't have to keep coming up here doing it because everything in the book is about the

reasoning and there's nothing about the request for determination. I I disagree with that. Everything that I'm planning to present here today is relevant from Amazon's perspective. The context of how we got to where we got is very important and that's part of the materials that I have here. I'm going to keep moving if you don't mind while Miss Unrain hands you these just for the sake of time. On September 5th of 2023, the board of supervisors approved all four of these items. And uh the approval letter dated September 18th was also supposed to be part of our zoning determination letter as exhibit B. Again, my concern was that that may be missing because I did not see it attached to the agenda. And so I'd like to introduce that as it under tab number two. Mr. Stewart and Miss Unrin can provide you all with that. I'm gonna keep moving. Um following the approvals on September 18th, Amazon purchased the property from Birwood. The purchase price was approximately $168 million. I have a copy of the deed here in the binder. That deed is under tab 10, Mr. Stewart. And I would also like for that to be included as part of the record. Only if he responded and if he responded only I'm sorry those are the only two issues. So my objection remains. I'm going to keep moving Mr. Chairman if it's okay with you. Amazon. Yeah. But I mean, I'm still it's it's just overload of information. I I I can appreciate that you brought all this stuff, but without having had this stuff in advance,

it's just uncomfortable. It just doesn't Let me Let me do this. Let me walk through my argument. I'll hit pause on the exhibits. I'll refer to them and then maybe circle back at the end and see what what we can admit into the record if that may be easier for you. And Mr. Chairman, I would just ask if you would make a determination as to whether it's admitted on an item by item basis because again, if you all take it and accept it, it's part of the record and it convolutes the record when it really has no business in there. So, if you would item by item say we're going to accept it's admitted or it's not. I disagree with the characterization that it doesn't have any business in the record. And I'm I'm not trying to be argumentative. I just as as both parties has have acknowledged, Mr. chairman, I I have a burden here and I have a record to create and and I'm not um I'm not doing so to uh to impose upon your board, sir, but I have to represent my client and and get into the record what may be needed on appeal quite frankly and and I'm trying to do so efficiently and and respectfully, sir. And and I'm h I'm happy to go about that whoever however you want. I am sensitive to your time concerns. I'm sensitive to Mr. Stewart's objections and so if you would like for me to just keep moving through my presentation and then circle back at the end, I I'm happy to do that to to the documents. Yeah, I would appreciate that. And um again, I'll just keep saying I it just feels very very awkward to have this mass of information put on us. you know, at this moment, we had no opportunity to read this beforehand to to see what it was about. We we can't speak to relevance

cuz look, there's no way I can read through that and digest it now. Right. So, that's that's that's the awkwardness here. Um, I understand. Mr. Chairman, sir, can I make a recommendation? It's a small one. Can we reset her clock and when someone else is speaking we stop the clock? She was given 10 minutes and we've already used 5 minutes of her time. Well, I would very much appreciate that, Mr. Scaramazi. Yeah, we'll do that. Of course, we don't want this to go on for hours, but 10 minutes may not be sufficient. 30 seconds maybe. I I am not trying to keep us here all night. I am really trying to move efficiently. That that was in fact my goal, sir. Um in doing all this um not not to overwhelm. So I'll I'll keep it moving. Okay. Um okay. So we have the approvals of all four of the items that I mentioned. Amazon purchases the property and begins development efforts. Many of those development efforts appear uh are itemized in our request for a zoning determination. They include site plan meetings, um submission of storm water pollution prevention plans, completion of a rough grading plan, traffic impact analysis, um hiring engineers to communicate with VOTE, obtaining DEEQ permits, um working with the US Army Corps of Engineers for uh dealing with wetland impacts, um undertaking a cultural resources survey. A lot of what's in these binders is just evidence that all of those actions have occurred, that those items have taken place, that Amazon hired those folks to perform that work in reliance upon these approvals. The total cost of those

efforts, at least as of the date of our request for a zoning determination in May, was around $6 million, and that's in addition to the purchase price of about $169 million. Um, on December 12th of 2023, the board the board voted to approve an economic development local performance agreement. You heard the county reference that agreement that was between Amazon, the county, and the economic development authority. And the goal of that agreement was really to um implement processes and develop the infrastructure necessary to support this data center data center project that had been approved. Then on January 2nd, so just, you know, less than a month later, the county administrator and the county attorney resigned, there were three new members on the board. And despite having previously voted to approve that performance agreement, one of the members moved to reconsider this legal contract and and totally renegotiate it. uh on January 16th that uh mo that resolution to um reconsider the uh performance agreement was approved. And then on January 22nd uh Amazon informed the county that it objected to any sort of reconsideration of this performance agreement that was a a binding agreement between the parties. April 2nd, that's where the county's timeline began. That's where I'm at now. April 2nd, the board initiated a downzoning action, a peacemeal downzoning action of Amazon's property. You asked what that means. They're trying to undo the reszoning. They're trying to turn the property back from industrial to agricultural so that Amazon cannot complete its project. Um they the board also moved to reverse our comp plan amendment. And again, this is from my perspective sort of text meal

textbook peacemeal downzoning in connection with a peacemeal amendment to the comp plan. Uh, and remember all of this is occurring a mere number of months after the board had approved the comp plan amendment, the specs amendment, those four items that I mentioned. So this is not a scenario where you know the approvals were issued and then sort of the project sat and got stale or you know not it's not part of like a larger plan by the county to sort of redesign its its zoning. Um what they're trying to do is unwind approved zoning. Um and and they just don't like the deal that the prior board agreed to and now they want to renegotiate it and they're putting pressure on Amazon to do so. Okay. Now, that brings me to our zoning determination letter. That was May 8th. I know the county has presented a little bit about um the authority to of the zoning administrator. Contrary to what Mr. Stewart says, that's that statute 15.2-2286, 2-2286 which you should still have in front of you. It does say shall the zoning administrator is is in has the authority to make findings of fact and with a concurrence of the attorney for the governing body conclusions of law and he did not do so. Specifically in that statute is the zoning is the is the obligation of the zoning administrator to make decisions on vested rights. It references specifically Virginia Code 15.2-2307, which I believe you also have in front of you. Vested rights happen when three things occur. The land owner obtains or is the beneficiary of a significant affirmative governmental act. The landowner relies in good faith on the significant affirmative governmental act. and the landowner incurs extensive obligations or or

substantial expenses in diligent pursuit of that specific project. That's exactly what happened here. That's what we set forth in our request for a zoning determination. You had these four approvals. Amazon purchases the property and proceeds to de to develop it and pour money into the project on the assumption that it would that it had the approvals that it that it obtained. Um all of the reasons why those um approvals constitute significant affirmative governmental acts are detailed in our prior letter. I will not rehash them for you here. You have that in front of you. It was made part of the agenda. Um I've talked a little bit already about Amazon's reliance on those acts and all of the uh development actions that it undertook. I won't go through those again here. And again, and of course, we've already discussed the expense not only of the de of the development activities, but also just the cost of purchasing the property. So, when Amazon learned that the county was seeking to peacemeal downzone its property, it requested a zoning determination of the zoning administrator that it had vested rights in these approvals. That decision is well within the authority of the zoning administrator and and what Amazon got in instead of a decision on vested rights was just nothing a nonresponse and now we are left now we find ourselves in the exact position that the statute is designed to prevent. My client is left completely in limbo. We have this project that has been approved that they have invested large sums of money into that they believe they have vested rights to continue in. But when asked when when

asking the county to appine on that what we got not only was it a late response but it was a nonresponsive response. I know Mr. Stewart has addressed the timeliness argument. That's one of the main issues that we've raised on appeal. The statute provides that the zoning administrator must respond in 90 days. It's undisputed that that didn't happen here. The response was due on August 6th. It didn't come in until August 8th. There it's Amazon's position that there was no standstill agreement, not verbal, not certainly not in writing. I haven't seen any reference to any sort of standstill agreement in any writing. And presumably, if there had been some sort of agreement like that, it would have bumped the deadline by more than two days. In in my mind, what happened here was just a miscalculation of of the deadline. Um, but more importantly, you know, I don't want to get too hung up on the timeliness because more importantly, the response just wasn't responsive. it it didn't give an answer. And so how can how can a developer that's in the position of Amazon continue to move forward with a project when the very question that the statute requires the zoning administrator to to answer the zoning administrator won't answer. And and I am I am understanding of the fact the information that's been presented most recently in this agenda. I gather from that that there was a disagreement perhaps between the county attorney and Mr. Smallnick. It sounds like perhaps the zoning administrator, Mr. Smalnick, was in between a rock and a hard place and and I appreciate that, but he's obligated to provide Amazon with an answer and he didn't do so. And and

that's why we're here today. I I would I submit that the this board has the ability to determine that that nonresponse was incorrect and untimely. And for all of those reasons, Amazon has vested rights. In in my mind, I mean, this is a super clear-cut case of vested rights. I mean, we've got we've met all of the elements and and walked through them. I've got, you know, that that is part of what this binder is here. and uh it just seems like that's a decision that this board can and should make uh in a matter that's that's very important to my client. Um I want to let's see may I I'm trying to determine the best way to reference these documents in the binder. I've referenced a couple of them already going through the recorded proper. The first two should have been part of the letter that should already be in the record. Um the deed uh that's that's just evidencing that Amazon purchased the property as I stated. Um many of these tabs including uh tab three is the general development plan. That document uh which is also attached to the proper statement um sets forth uh at least it sets forth many things but one thing that it does is show that the project was always uh contemplated to be done in phases over a period of time is that somebody calling okay okay uh let's see the next tab that I have is um uh presentation to the board of supervisors by Amazon's council. Again, this relates to um the fact that the pro that it was always contemplated that the project would be phased. Site plan application meeting

and a log of site plan e uh site work efforts between the county and Amazon. This is a log that details meetings and communications between my client and the county in furtherance of the site plan work. I have that at tab 16. A submission of a storm water pollution prevention plan is at tab four. The rough a rough grading plan at tab five. Graphic impact analysis at tab 7. Uh engineers hired to respond to VOTE comments at tab 17. Uh archaeological surveyors hired to prepare reports that's at tab 9. These are all the activity not all these are many of the activities that Amazon undertook in reliance on the government acts just to give you context of where we are. The performance agreement that both of us uh have referenced here tonight. I had that at tab 11 and I'm prepared to introduce. And then I believe the remaining tabs for the most part are meeting minutes from the board of supervisors meetings. That's January 2nd, January 16th, 2024, January 22nd, 2024, April 2nd, 2024. And those are all of the items. I would like for for the reasons that I explained that it's my job to create a record tonight understanding that not that the board by no means has the ability to read every single page of this. These are all items that support my argument tonight and I believe should be part of the record for consideration. Your honor or your honor, can you tell I'm used to used to being in circuit court? Uh Mr. Chairman, I uh

I respectfully request that um that uh the BZA determine that the zoning administrators August 8th, 2024 decision was not correct and that this board determined that Amazon has vested rights in the resoning, the profer amendment, the specs amendment, and the comp plan amendment. Okay. So, so for staff, um, I want to clarify that what determination we're supposed to be making. So, is it that we're looking at the two things, the timeliness and whether or not it was sufficient, or is it both of those things and then the added burden of determining vested interest? May, Mr. Chairman, I I think this question may be more appropriately directed toward the the board's council, sir. Well, Mr. chairman, she got a whole lot more time than I did, so I'd like an opportunity to address it as well. Um, if you look at the statute we gave you, 15.2-2309, your role here tonight is to determine if Mr. Smolnik's answer was responsive. Did he respond? And if you decide he didn't, you just say, "No, he didn't respond properly. And was it timely? Yes, it was timely. It wasn't." Um those are the only two issues. This board does not have the authority to determine uh vested rights in a case that is required by a court of law. He didn't have that authority. Actually, I wanted to put Lucy on the spot and ask her when she uh was organizing

administratively what you understood the intent of tonight's session to be. Administratively, I wasn't the zoning administrator at the time. My understanding was whether or not Mr. Smolnik's response can be appealed. In my understanding, it did not include a question of determination of vested rights. And then I was not the zoning administrator. Understand? And then uh council u same question what was your understanding for the intent of this evening? So the jurisdiction for for this board um is it can reverse affirm or modify this determination. So this determination itself is all that is before the board today and you can reverse affirm or modify this determination. Mr. Chairman, if I may, I I would just add referencing back to 15.2309, 22309. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct and our position is that that determination was not correct and this board can modify it as it sees fit and it would be appropriate for this board to determine that Amazon's rights are vested. Mr. Chairman, I I apologize for continuing to stand up here. That's not right. That is a misstatement of law to this board. If you determine that his

decision was correct, then you say it was correct. If you determine that it wasn't correct, then it was you say it wasn't correct. If you determine you want to modify it, then you could say, "Look, I think you need to be more responsive or whatever." You don't have the authority to determine vested rights in this case. I I'm I understand why they filed this appeal to the BCA, but here's the reality of the situation. If you say it wasn't correct, he didn't respond within 90 days, they don't get vested rights. That's not the way the statute and the law works. They've got to file a mandamus before the circuit court judge to order him to write a new response. Think about it this way. I send a letter for vested rights to a zoning administrator on a piece of property that I have in King George County and I want it to be a nuclear bomb test site. It's where I want to explode nuclear ordinance and he doesn't respond within 90 days. Do I suddenly get a nuclear bomb test site? No. That's ridiculous. We have a mechanism in our law called a writ of mandamus. What that action says is public official, you must do your job. You didn't do it here and you must do it. Your role on a on an appeal from this determination are just the issues of whether or not he responded and whether it was time or you don't get to decide vested rights. I'm sorry, but in a determination from um a letter from the zoning administrator, that's not what the the body gets to do. I turn to you really what I'm I really need to define what it is we're supposed to take action on and there's been lots of discussion and the same law has been

spoken to from from two different approaches. So the the issue is you know what what will you affirm the opinion of the zoning administrator that his duty as the zoning administrator do not require him to interpret the Virginia code and that issuing a vested rights determination is outside of his legal responsibilities. Will you disagree with that and reverse this determination or will you modify it somehow which would be uh in your discretion as to as to how to modify it? I I do not recommend that on the record as it is now that you make a a vested rights determination. there would be a significant amount of facts that would need to be determined and we don't have um I I think that the county does not have um its facts uh in the record at this time and I would discourage um reaching a attempting to to make a vested rights determination tonight. Any discussion the board? I would absolutely concur that I don't think our view here or our perspective

or our challenge is to um agree or disagree with vested rights. I think there are two questions on the table and uh I think when it's time we should discuss our positions on those two items and do you want me to talk about what I meant by the two items? Was he timely and was he uh could he make a decision with legal ramifications in his uh position as zoning administrator? Any other discussion? Yeah, I wasn't. Yeah. No, I'm sorry. Mr. Barney asked if I was waiting for a response. I was simply conveying a position. Correct. Any other board members thoughts on Yeah, I mean I'm not comfortable with the vested rights. I think we ought to go on the merits of two things. timeliness and uh you know whether it was adequate response, sufficient response. based on based on Madam Miss Mohler, will you please speak into the microphone? I'm having a really hard time hearing you. I have almost no voice right now, so it's really hard. Um, based on what we're legal council is

telling us, we have no purview in the in the vested right. Board has no purview in the vested right. So, we'll stick with what we have perview with is what the council is saying, the board's saying, right? That's my understanding. Yes. All right. What if we just take it one at a time? timeliness. I I have one question that I mean we're we're we're st talking about a standstill agreement between two lawyers and why why is Mr. Payne not here to represent himself since he is the second party in that standstill agreement? There was no standstill agreement. Well, and he has a conflict tonight is my understanding. Did he say there was no standstill agreement? That's correct. And worth noting, you know, there's no standstill agreement referenced in the zoning determination letter or in any other correspondence between the parties. And this was August 6, 2024 or August 6, 2023 and August 8th. Uh 24 was due August 6th submitted August 8th, sir. from chairman. I'll reiterate um we had our meeting with Amazon officials and Mr. on July

30th and we had been trying up to that point. Everybody agreed to just stop so that we didn't pour flame on the fire between the county and Amazon. We met on July 31st for a very short period of time. When it became apparent we were getting nowhere, everybody got up and left the room. And eight days later, he sent his letter. We talked about it and I said, "Looks like to me we're not going to get anywhere. You might as well send the letter." So we did. Even if we don't have the stand, I'm not going to tell if you believe me. I relied on what he told me and I should have gotten it in writing. And that's mistake after 30 some years of practicing law taking the word of another attorney. I still get to assert 30-5 because if you go to the code, he has to consult with me and I did not concur that he had that authority. So that's kind of how I see it. I see that. Yeah. someone you know for a while gentleman's agreement whether it did or didn't happen no one would know unless it's in writing. Um but I do think 30.5 allows the the latitude. It's my opinion. I agree. Anybody thoughts? Microphone please. the um what you just said that in one sentence I didn't catch what you were trying to get at. Can you elaborate? Uh sure. Stand still agreement potentially there was one but you know in in the world of dotting eyes and and crossing tees if it's not in

writing it didn't exist. Um, so that's where I'm leaning in terms of a standstill agreement, but um the uh 30-5 with being in session would then be in in play and I think that's what allows for the latitude. That's again one person's opinion. Does does this type of thing come under the purview of our board this time? Yes, that's why I made sure that I asked of um of the county what what the intent was for this evening that they knew and understood and then also of our council so we could really narrow down what it is we were supposed to make a determination on this evening. that maybe it's my fault, but it seems like a lot of of the uh give and take that we've seen tonight think that some of it is under our purview, but I think some of it is probably not under our purview. Is that an in did I incorrectly see that? Well, again, that's why I wanted to narrow down and and more strictly define u because again there was a lot of conversation back and forth. So, so you're agreeing with me. A lot of it's not within our purview. Well, I I won't say that. What I will say is that the determination of the intent this evening was to determine if the U zoning administration administrator's letter was timely and sufficient. Um, and we have the opportunity to reverse affirm or modify that uh the terms in that letter. Um, there's potential

that vested rights could be something we take on, but uh definitely advise that we not tackle that this evening. um if it were to be brought again, um it would have to be after we make the determination on whether or not the zoning administrator's letter was uh timely and if the answer was sufficient. Okay. Well, thank you. Yeah, concise. Good enough. Rambling. Okay. So, you have my thoughts on the timeliness thing. So we're taking them timeliness first. Um I'm looking for for discussion on the timeliness point. I don't have another comment. I'm good. Thanks. What I heard from you is that what's on the table is the question of was the response timely? Yes, sir. Were you looking for votes? I I was just looking for a discussion first. Of course. Um uh we know it had to be the sixth count days. Yeah. So, what day started the clock? How do we know it had to be the sixth? Who counted out the days? The sixth is 90 days after the date of submission of the request for a zoning determination. 90 work days. We're not disputing that. If it was a question if we were under it's no it's 90 days unless it falls on a holiday or

a weekend and then you go to the next workday but it's 90 days period. We're not disputing that if we were held to the 90 days it would be two days late but we are entitled to rely you remember the statute that Mary showed you all it's 90 days unless the requesttor agrees to a longer time. They agreed to a longer time. They just didn't put it in writing and we should have had them put it in writing. But even if that's not enough for you all, the 30-5 extends that deadline. That statute extends any deadline. If I represent an individual and a deadline comes up, I get an extension on that pursuant to law. But do you understand what I'm getting at? Like I'm trying to understand how you figured this because we're arguing over two days. So how did we figure this 90 days? They sent the request that now we're arguing over two days. They sent the request in on such a day. I can't remember what the day was. They sent it in and it was due I think on the six if we were being held to the 90 days and it was sent on the 8th. Do do you see my point? Yes, ma'am. I do. It was two days. Like now we're talking about two days over bested and if we're gonna say we're going to hold you to these two days. Like how do we calculate these two days? Well, the statute says 90 days unless they request a longer time. It I'm saying they did. I understand. But but even if you all don't think that's okay, the 30-5 gives us the extension. So, doesn't matter if it was two days or 20. I understand that too. But like where do where does the calculation start and where does it end that we're arguing

over two days too? If it's helpful said another way, the clock that 90day clock begins to run when we submit our request for a zoning determination letter. So the date of that letter is what starts the clock. Anybody know what the date of that letter? 90. May 5th, but it might have been May. No, we got there May 5th. Okay. It was May 8th, 2024. That's what starts the 90day clock. May 8th according to the timeline. Right. And you know, we made this argument in in our letter to the board attached to or in response to the agenda, but you know, 30-5, the zoning administrator was not a part of the legislature. You know, that that doesn't provide him relief from the deadlines. That that's a mandatory statutory deadline. Yeah. But it does say that he had to have concurrence from the government attorney. That's where I see the latitude. But again, I'm one person. Do you want to vote on one then the other or do you Well, that's what I was a collective, I guess, is the way I'll go cuz Well, when we make the motion, if you want when we make the motion, the motion will be covering both elements. Um but I want to have the discussion individually so we don't get wrapped around the axle or pulled in different directions. I want to keep the discussion focused initially on timeliness. So if there I've said my piece, you know, if there's no other discussion on timeliness, well, I believe there's enough gray space, the space between May 8th and uh August 6 or August 8th, right, to

determine that a two-day flotation still results in uh a pers, in my view, a perspective ive that he was timely. It's just it's, you know, again, he's not working the weekends, but the but the clock says uh 90 days. Well, that's not work days for him. and and the standing point may have occurred, but I think uh the attorney, I'm sorry, ma'am, I don't remember your name, but I think this does sound to me like 30-5 applies to you, not to us, you and him. But are were you repres if is it the case that since you're representing that it it applies to him as well? Yes, sir. Once once I represent the the privilege is given to the client as well as me. Thank you. So he enjoys that privilege just like I do if I represent him. I'd also recommend we conclude our business on the first part and then vote on the second part. Vote on the first part then vote on the and statement. Okay.

To be fair, Mr. Barney is asking me if this is all coming down at this point right now to the one point of is it is two days timely or not? Yeah. So, it's in writing. It's 90 days. So, if it's 91 days, technically it's late. Well, how do we know it's not 89? That's my point. It's a gray space. Well, no. If it's 90 days or sooner, it's timely according to what's written. But again, it's the how I read it. There's the requirement for matters of law that the zoning administration administrator and the government attorney or this case the county attorney have to concur. But if the county attorney is in session, that invokes 30-5, which means any timelines that would have been held to that it's no longer applicable and in that case two days late would be reasonable. Microphone please. Was it hand delivered? Did it go through internal mail? Did it sit on somebody's desk? You know, Mr. Stewart can correct me if I'm wrong, but I heard him say that there's no dispute here that it was two days late. The only question is whether or not that lateness was justified. Correct. That that is my understanding of the position. So I So I don't actually think you have to count out the days. We we've

done that. It was late. The county agrees. It's just a question of was it justified? Concur. Mr. Scaramuzia. I am okay with uh doing two separate motions if we want to uh vote on the the timeliness. I know the the summary was just basically to deny the case holistically, but we've already determined that we're not going to address vested rights here. So that is part of uh what was brought as we started tonight. So if we're going to toss one out, I think we can address these one at a time. Um, did we actually legally conclude that we're not going to uh that he didn't have uh authority to judge vested rights? So, council my my can you repeat the question please? question was did we legally, you know, from the board's position legally decide that he uh that he does not have proper authority to determine if it Amazon has vested rights? Is that made clear here from the board? The board, I don't believe, has clearly made that determination one way or the other at this point.

And then my position there would be that the zoning administrator would have the authority to put in writing the uh conclusion of the zoning administrator and the county attorney on anything relevant to law. the the zoning administrator can be on their own when it comes to uh elements in our ordinance. There was a list of the the seven things and none of them alluded to law. And again, that's my position that I I believe based on what's here and what I read that if there's an element of law that the county attorney must concur with the zoning administrator. And I I wouldn't disagree, but I think he would have said or should have said, "I don't have that authority flat out." Yeah. So, he he did say that in his letter. He said that he didn't have the uh I don't know if specifically said the words authority, but that's pretty much what the the final two two sentences were. Mr. Chairman, that's exactly right. The the zoning Mr. Small sent a letter saying I do not have that authority under the V on the King George County ordinance. That was his response and that's what they've appealed. and 10. So, it's up to us then to affirm or reject that. Correct. Right. I move that we vote on the on the topic. We either move to affirm. Actually, I recommend uh I move that we affirm that he has the right to make that decision. The decision he made was correct.

We have a motion. We have a second. Microphone, please. This is going to be important. Second. I'm I apologize for interrupting again. Is that motion to affirm the decision of the zoning administrator? Yes. That was my motion. Yes. So, we have a motion properly seconded. All in favor? I opposed. I don't know that we had any discussion with regards to the second part of this. We we talked about the timeliness and that's all we're voting on right now. Okay. I I I I'm believe that. All right. So, let's let's do this again one more time. So, we have a motion that has been properly seconded. All in favor? All right. I Okay. So, so was the response sufficient? That's the next topic of discussion. Or or did did that motion cover both? Timely. What? No. Timely. We just the motion to affirm that the this decision covers uh and sufficient. Yes. So we're done. Yes. All right. We've covered the timeliness and and whether it were was sufficient because Mr. Scar Muzi's uh motion covered both and that goes back to my point is I wasn't prepared because I have questions

regarding the sufficient when you said we were only going to discuss timing. I was okay with that. I believe that it was timely given the gray area and the response was fine. We move on to part two. Well, no. What we have to do is we we that was my hesitation that you guys talked me back out. Well, then we have to do that again. So I would like to make a motion. Well, let me before you do that discussion. Yeah, please bring up your point because I I Okay, so this is where I like to go against lawyers in law. I go, I I live in a world of shall statements and anytime you write an ordinance that gives may or should or could or might, it leaves for ambiguity that puts it in the situation we're sitting here today. Um I personally I I believe the ordinance is inadequate as written. I don't have any control over that ordinance obviously, but that's really why we're here and it just sets the stage for the the appeal. I mean, as far as I'm concerned, because our judgment is basically just going to be a judgment and it's just going to move on. So, I I just wanted to go on record to make that comment with regards to how this is written, whether the merit of I think the ambiguity in the ordinance allows for Mr. Smallnick's response, you know, and it gets within the clarity mic, you know, realm of it. So, I agree on everything you just said. And I would make one point and that's why the board of zoning appeals is here to deal with vagaries and resolve them. Nope. You hit right where I'm going. So

further discussion any further discussion? Timeliness sufficient to this part. We're we're are on it now. So if you have any other discussion it's open. I'm assuming that this is the second part you were talking about. No I was talking about there are two parts timeliness and uh sufficient the answer was sufficient. Was there an answer? Was it sufficient? That's that's one part. Was it an answer and was it sufficient? And the first part being my in my view that we've covered timeliness. However, I don't think we voted on that. Thought that was what we just voted on. Two different things. Was he timely? Just look at the word. Was his response timely? Did we take a vote on that? Was that even a question? No. because the the motion that you made covered both. So I thought we were done until we had to resend that to uh have the discussion continue about what was sufficient. So So do we need to be clear? Nothing has been rescended. Well, how do we we we you have to make a motion to resend. Okay. Well, then let's make a mo I make a motion that we res resend the previous motion. We have a motion. Do we have a second? Okay. Thank you. Do we have a second? Have a second. Second. All in favor of rescending I I one nay. Okay. We we do any any more discussion on

timeliness or whether the letter was sufficient. So timeliness you have to quote Mr. smaller I believe acted in a timely manner based on the facts that he had on hand. He believed that there was a standill was unaware that the other side did not have that information because it was not put in writing. And there's this he said, she said, whatever. And because Mr. Stewart did not get it in in writing and it doesn't exist in a physical form, Mr. Smaller was acting on what Mr. Stewart told him. This is why the 90 days was violated. I believe Mr. Stewart acted in a timely manner, but timeline I believe has been messed up because of this. Any further discussion? It seems to me that this point here, Mr. Smolnik did not make a legal determination because Mr. Stewart and Mr. Smolnik did not concur. Therefore,

no conclusion of law was made. Mr. Smolnick's responded as he saw fit. So this this is not part of the timeliness thing. Do we need a vote on this separately? Sorry, I couldn't hear you. Well, pardon me. I couldn't hear you well. This this page acts applied continued to the microphone, please. Um, can you hear me now? Okay, sir. So, we've got past this timeliness thing. Yeah. And now we're talking about facts applied and they're saying that uh in specific cases making findings of fact and with concurrence of the attorney for the governing body conclusions of law regarding determination of rights. Is that what we're talking about as part two? It can. Yeah, it can apply to both the timeliness and it can apply to whether the response was sufficient. It can apply to both. That's my viewpoint. All right. So, let's talk about this sufficiency thing. Is there any more details to that? Does everything hang on the timeliness or is that something separate the sufficiency part? Do you have a Mr. Attorney any statement on that

or sorry my mic wasn't turning on? Um, if if the board would like to discuss the uh um the implications of the timeliness issue, that would be me opining on a specific uh legal matter and I don't think that would be appropriate to do in an open session. Okay. Well, I was talking about the other part, not the timeliness part. the second part whether the answer was sufficient. Yes. What what are your feelings on that? I thought we might discuss that if that's an issue before us, but I've been getting a back and forth. People keep talking about the two days and then whether somebody didn't respond in time or how does how is that affecting the the entire matter? Okay. So, we think we decided that the two days thing wasn't such a big deal. So, what is the big deal or are we done? Well, that's why this is opened for for you to kind of hash that out or ask our attorney or any of the other folks um to satisfy your questions and in in those arenas. I would uh I think what I would like to do in my mind is to clarify what um sufficiency in my mind was that he made an an accurate determination and he stated what that was timely is you know as the response

was timely given the circumstances. So you can vote in part or you can vote together. Curious and curious. Is there more discussion? Is there hearing? None. Do we have a motion? I have a motion. I would make the motion that we deny case Z-2024-01963 as the response was timely given the circumstances and the zoning administrator in his message was correct. He does not have proper authority to determine if Amazon has vested rights. So we have a motion. We have a motion. It's properly seconded. All in favor? I I'm abstaining on that because I'm still not sure if what we're talking about we're talking about the same. Okay. Well, let's get through the vote then. So, one abstension. Yes. Okay. Four eyes, no nays, one abstension. Well, two abstensions. Does Okay, thank you all. Um, thank you, Mr. Chairman. I I am not trying to prolong this, but I need to know what what part of my presentation can be accepted into the record and what part can't. So, that's where I was asking about procedural things because I don't know how that works. Um, I don't know how that

works. At this point, you've made the determination. So, whatever was before you when you made that determination is what is in the record. That's what we have. Okay. Uh, we have no old business. So that takes us to we have a motion to adjurnn. I move to adjourn. Second. Motion properly seconded. Discussion. It was. It was second. Did hear a second. We can do discussion. All in favor? I I We are adjourned.