Board of Zoning Appeals - Regular Meeting

Okay, this December 3rd, 2025 hearing of the Sykesville Board of Zoning Appeals is now in session. Going to read a statement. Uh, as a preliminary matter, our town attorney, Alyssa Leavonne, has submitted a letter to the board of zoning appeals that was dated October 21st this year, challenging the board's jurisdiction to hear the appeal the to hear both the appeal of the planning commission decision regarding the proposed amendment to the concept plan of the Warfield development and the appeal of the letter from the Sykesville Town Manager regarding regarding partial B of the Warfield uh development. So, Mr. Barisox here representing the developers of Warfield has submitted memorandum in opposition to Miss Leavon's positions. Tonight, the board will hear oral arguments from both Miss Leavon and Mr. Bowersox. And we'd like we request each argument be no more than about 10 minutes in length. At the conclusion of the oral arguments, the board will go into a closed session to confer with council regarding the legal issues presented to these matters. So, right now we're ready to hear the uh Miss Leavon's uh argument or Mr. Bowers, what whichever goes first. Should we? It doesn't matter to me.

I'll be All right. Miss Lavant, Miss Lavan will present your your said I'm not going to repeat what is in the letter that I submitted. I don't want to waste anybody's time. You've all had it now for a period of time and I'm certain you've been able to read it. So, I just want to address some things that were raised in the memoranda that I received on Monday.

Excuse just one second if I may. Um I'm under I understand that by proceeding in this way we're hearing uh missile events uh objections with regard to both cases and the uh memorandum I filed on behalf of each of them but we're hearing them together. Yeah. Well I'll clarify that. Yes Mr. Mosox that's correct that um for purposes of this particular issue that is the jurisdictional issue um Miss Levan raised the issue as to both cases yes

you addressed in your memorandum both of the cases as well I think for purposes of time and instead of getting up getting up and getting down getting down I think it's fair to say that M can address both of the cases in person as as you will be able to in your uh presentation as well. I just wanted to make clear that this is not a consolidation per se of the two separate cases. No, it will not be merely for expedience or whatever you want to call it that we're proceeding like this. Okay. Thank you. I'm sorry.

No, that's fine. Um so, as I saying, I I'm not going to repeat what's in what I submitted in writing, but I'm just going to address the memoranda that were submitted by the applicant. Um and I I'm going to there were separate memorandum. One had to do with the appeal of the act of the town the action of the town manager and one had to do with the uh um the appeal the question of the appeal from the planning commission. So I'm going to address the uh question of the appeal the action of the town manager first. Um, and I I just want to add to the arguments in my uh letter to you that um in response to the arguments of the appel of the applicant that they have set up a series of um what we call straw man arguments in the law. You you create an argument that wasn't an actual argument and then you knock it down. Um so the first one concerns whether the zoning administrator is um an administrative official within the meaning of the ordinance. But of course, the zoning administrator is an administrative official under the ordinance. We never said he wasn't. Um, this action wasn't taken by the zoning administrator. It was taken by the town manager. And the town manager is not an administrative official for zoning purposes. They are two separate roles. Um, and then the applicant uh calls me out for not citing the uh Greel case um and asserts that the case has a definition of ministerial that favors the conclusion that the act appealed from here was not ministerial but it doesn't say that Israel uses the word ministerial act in exactly one sentence. Um and it says under the circuit court's holding this is a ministerial duty imposed as a matter of law. it is the type of duty which under the above cited cases is an appropriate subject for common law mandamus action. Um and then this is followed by another argument about

whether Mr. Castantino's act was legislative which of course it wasn't. Um and we never argued that it was and that is entirely irrelevant to what's before you. The applicant then argues that because the cases from which I drew the definition of a ministerial act talk about um that whether it is a ministerial act in um the context of other types of action including um a vote counting case in and this isn't that that the definition of ministerial in those cases doesn't apply and that's not the way case law works. Um, it's a difference without distinction. To assert that the definition I provided to you of ministerial act doesn't apply, the applicant would have to offer a logical reason why the fact that those cases make the definitions contained in them inapplicable. Um, and generally that would require the applicant offer a competing definition supported by the case law which it hasn't. And that takes us back to my first point um about citing to the Gizreel case but not telling us what Greel said that was different from what I said to you. There are in fact many cases that all describe what a ministerial duty is in terms that are similar. Um one is Evans versus Burus which said as the issuance of a building permit. This is not a case where municipal authorities have the right to exercise initial discretion. It's not a request for a variance. It's not a request for peace no reasonzoning. And that's exactly what we've got here. According to the record, in that case, Evans, at the time of the original issuance of the permit, petitioner's project complied with the provisions of land use codes and building codes. And as such, the issuance of the building permit was purely a ministerial act. All the town manager did here was tell the applicant what the ordinance says about the process. Um other cases in the zoning context make clear that if there

is an objective career uh criteria that a person can can say something meets or does not meet without making a judgment call you can say yes this criteria has met or no it has not been met. That is a ministerial act. And I would point you for example to grasser versus county which is 349 Maryland 542 at 553. And on that I will um I will rest on my submission in the letter. Okay. Thank you. M do you want me to go ahead and address the other one before if you can?

Okay. Um [clears throat] so regarding again I'm not going to repeat what's in my letter but regarding the appeal from the planning commission the applicant has cited warf at hand point versus department of natural resources. Um but in that case although the court noted that at the time the appeal was initially filed from the planning commission it would have been cognizable by the board of zoning appeals there. Um K County had thereafter amended its appeal to add a provision virtually identical to the provision here at issue that within 30 days of the decision any person agreved by the decision of the planning commission or planning director may file a notice of appeal with the circuit court. So, appellent um seems to be arguing that um notwithstanding that our provision our similar provision um the section that they cited um gives them out of chapter 24 gives something alternative right to bring uh the appeal to this board. Um but that conclusion would disobey what the courts have called a cardinal rule um of statutory interpretation and that is that seemingly in Congress provisions must be read to be in harmony rather than in conflict um and that's why versus Johnson among other things 103 Maryland 250 and then there's another wellestablished principle that more spec a more specific enactment covers a more general statute and that you can find it for example in lens doler versus Wisner 223 Maryland 218. In this case, the more specific provision of ALA PEC zone must control the general provision in an entirely different chapter of the code, particularly in light of the conclusion of the court in the warf at Hendy's point case. the applicant makes um makes an argument about the distinction between between

the words shall and may and whether the use of the word shall versus the use of the word may make something mandatory as opposed to uh permissive. Um I can say that there are very few cases where the court actually holds that may is ordinarily permissive. I found only five that even discussed may because most of the cases are talking about shall whether shall is um directory. Um and then they sort of they make the the shall versus may distinction, but but they're focused in those cases on the shall question, not the may question. So um I only found uh I I said five, but I think there were six going back to 1961. Um which is older than I am. And um the most recent was just a little more than a year ago. and it noted specifically quote a precedent that May is not controlling on the mandatory or per permissive nature of statute. Um, understanding that May quote unquote is susceptible to multiple reasonable interpretations, the court interpreting a section of the business regulations article in the case that I'm citing um, which used the word may held that it was not discretionary and that's um, Bethesda African Cemetery Coalition versus Housing Opportunities Commission 489 Maryland at one. So it's well settled that the use of the term shall will sometimes be construed as merely permissive or directory. Um the question of construction turns upon the intent of the legislature in this case um the city council. Um and the judge um in a case that was cited in that Bethesda African Cemetery case um noted mere words do not control the whole surroundings, the purposes of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than from another. And the cardinal rule that seemingly in

Congress provisions shall be made to harmonize rather than conflict must all be considered in determining whether particular words have a mandatory or directory effect. um ascribed to them. And the court of appeals has variously said that shall will not be construed as mandatory in cases where that construction would produce an impractical result or would otherwise defeat the broader goals embodied under a particular law. Moreover, [snorts] whether statute is considered mandatory or directory must be ascertained from the provisions of the statute itself, and a construction that is internally inconsistent must be avoided. So, so this the the fact that the um the provision that the applicant is pointing to uses the word may in that particular context is not dispositive of whether that provision overrules the more specific provision um that uh in the PEC's zone these appeals go to the circuit court and I think that when you um read those in light of the conclusion in um the uh warf case that the applicant cited um you would come to the conclusion that this appeal should that the appeal for the planning commission goes to the circuit court and not to this body and that's all I have.

Okay. Thank you. All right then, Mr. Bower Sox. Yes. Thank you, Mr. Chairman. I'm going to to uh mirror Miss Leavan's sequencing. I'll also take the thrive appeal first. That is the appeal of the decision of a zoning administrator. Okay.

So, uh it it's I'm not even going to address the straw man uh discussions. Um but the the focus it seems is that Mr. Constantini's decision was a ministerial decision and therefore something that cannot be appealed under the um town code. Um [snorts] clearly Mr. Costantini is an administrative official. I don't think anybody's arguing that. Uh so the appeal would be consistent with um section 4-305 of the land use article Maryland land use article which is very much similar with your ordinance uh number 180-105. In other words, there is an allowance to hear and decide appeals where the board has the authority to hear and decide appeals where it's alleged there is an any error in any order decision or or determination made by an administrative official in regard to the enforcement of this chapter or of any ordinance adopted there too. um in addressing um the town of Lla and the Miles Point cases which Miss Levan has cited in her letter. These have nothing to do with the issue that's before you this evening. Those involved legislative actions essentially legislative actions of the two respective towns involved. Namely, there were both petitions for

referendum of an an of annexation in the town of Lla and then secondarily uh in actually was two towns in Talbit County. One was um um um Miles River. What's the matter with me? Um, one was uh I believe Eastston and the other was um name escapes me. Soon as I walk out, it'll come to me. But those those questions have to do with a challenge to a a uh uh annexation by referendum. That is a state statutory process. You can find it now in um the local government article. And there's certain requirements that you have to adhere to. It has nothing to do with what may be appealable to a board of zoning appeals. Annexations are not appealable to a board of zoning appeals. The decisions of an administrative official in and handling them are not appealable to a board of of uh zoning appeals because they're not decided underneath the opaces or the umbrella of your zoning ordinance or any other code that you've adopted pursuant to article 66, excuse me, uh the local government article, land use article, excuse me, of the annotated code. That's what those cases are about. It's true there are discussions in them about um you know ministerial acts versus other acts. But that's really a red herring for what we're here to consider when you look at

your code. Um, town code 180-107 provides that an appeal to the board may be taken by any person agrieved by any decision of the zoning administrator. Well, um, he may not be the zoning administrator in name, but he's performing all the functions of the zoning administrator. The fact that you don't have an appointed zoning administrator can't mean you can hide from someone performing the fact the function of a zoning administrator in doing the things that the zoning administrator typically does. Um it's also consistent with the board's rules of procedure when they talk about applications to the board. Your rule three says that an application application or applications uh shall include an application for a special exception or variance or an appeal of a decision of the zoning administrator. So he's performing that function. Um it also says in in rule seven all applications to the board shall be filed with the zoning administrator or designate. Now he's acting as a designate for that. Um you can't avoid this relationship and this function by not designating him a zoning administrator and title. So when we talk about the um LLA and Miles Point properties, we're talking about a state process for annexation of municipalities expanding its borders

through the legislative process of annexing neighboring property, not zoning. Question. the Gizrael case. I mentioned that merely because it happened to be also addressed in the town of Lada case and it gave us an example of what a ministerial act is. Now, that doesn't change the fact that town of the Plato was actually an annexation, but it talks about it a ministerial act in an annexation context being the kind of thing where you're counting signatures on a petition for rent forendum. you're you're taking some steps to um in that case in Gizrael, Ocean City received a referendum to challenge an annexation. The state code says you have to have 20% of the qualified voters of the mun municipality sign a petition for a referendum. But they never went and purged their voting rules currently to find out how many real qualified voters there were in Ocean City at the time. And the court said that they had to do it and that the function of doing the counts is a ministerial action. That's that's the purpose. Let's look at what Mr. Constantini actually did. um in his letter of August 28th, he was responding to mine of August 21st, which I provided you a copy of. There were some pretty specific um requests made of Mr. Constantini at the time to look at certain facts and look at certain circumstances.

Uh and we made it clear that this isn't a PEC approval situation un um under 144, but we were filing an individual site development plan which is actually covered by section 180-143 of your code by virtue of a pattern book. And you have that pattern book. And the pattern book is mentioned in my August 21 letter. That pattern book, if you go to page two, it describes a process. And the process says you do a PEC approved plan, you do a um a PEC concept plan, a PEC preliminary plan, then you move to the individual site plan, and section 143 says that the pattern book uh controls, you know, what you're considering in the individual site plans. Pardon me. In his decision, contrary to it being a ministerial decision, Mr. Constantini indicated that the concept site plan that was shown in the conditional use because we never got to submit a site plan to start the process. He's looking at the BZA's your April 29 concept plan has been shown through the conditional use approval process proposes modifications of internal roadways and parcel entryways that are different than the approved preliminary PEC plan. [snorts] You saw that approved PEC plan when we were before you in April. I believe you certainly saw the

concept plan and there if there's changes then he's saying if there's changes these changes can affect the design and functionality of environmental environmental features across a larger warfield development. The only way we can find out if any of those circumstances exist is to do a site plan review so that we can figure out which of those features may need to be addressed. So there's this circular argument that if you want to come in after you've gotten an approved conditional use unanimously recommended by your planning commission that you somehow have to go back to the beginning.

Mr. embarrass I think you're getting into the substance of the appeal.

I I'm just illustrating what my request was about and what his decision was about. He is making sightspecific determinations based on speculation about what a site plan for a particular individual parcel's development is going to is going to show. Um and it it's it this is more than a ministerial act. This is more like a quasi judicial act or an administrative act. with respect to the um appeal of the planning commission's I think it was July 7th decision denying um the um concept the concept plan amendment warfandy it's interesting Miss Lan says there's a cardinal rule statuto construction that you don't want to have any interpreted in such such a way the two provisions are in congruous. There is nothing in congruous about section 24-5. That language is very very clear and it says Excuse [snorts] me.

Any person or persons jointly or severally agreed by any fi any final decision of the planning and zoning commission regarding planning and zoning controls may appeal the same to the board of zoning appeals [snorts] of the town of Sykesville. So whether that conflicts and it appears it does conflict with the permissive relief availed in 180-95. It doesn't mean the two are in congruous. You have specific code sections in your zoning code that say shall is always mandatory language. may is permissive. It's not you don't have to look to opinions to interpret it. Your code provides that guidance in the code. 180-95 says may appeal to the circuit court. 24-5 which happens to deal solely with the planning commission and power and authority. An appeal of a planning administration dealing with a zoning or planning um matter may be appealed to the board of zoning appeals. Now, if you follow what Mrs. Leavan was saying, Miss Levan, I'm sorry, was saying you have the inongruous result of being forced to ignore the clear language of 24-5 in order to accommodate 180-95. Whether we like it or not, it appears that someone who is agrieved by your

planning commission as your code is currently written, we didn't write it, has the option of taking an appeal either to the circuit court or to this board. I mean, there's no more magic about it. I'm sure you may have encountered other circumstances where you've had cases before you where you've seen that the terms of your zoning code or maybe other codes have provisions that seem not to mesh or maybe even contradict each other. But may is permissive. Uh may means you may bring an appeal and in this case we may bring an appeal to the board of zoning appeals. Pardon me. [snorts] Shall if this if one if 180-95 had said shall then that would be mandatory and you would have a problem with interpretation in that situation. you don't hear. There is an election of forums for relief. Um, and I I know I'm uh there's also well there's I know I'm I'm stretching my time limit um trying to be as accommodating as I can. I would suggest merely please um I'd like to incorporate by reference the terms of my me very the two memoranda I filed and please take a look at the warf versus handy case because it is not necessarily as Miss Levan suggests to you. You'll notice as you read that case

that not only did the court conclude that um a zoning administrator is excuse me, a planning commission is a [clears throat]

um administrative official for purposes of an appeal to the board of zoning appeals. Generally under state law, there's some discussion in there about whether a local legislature can deviate from the authority conferred by the state law, which opens the opportunity to appeal those kinds of decisions to a board of zoning appeals. But um bear with me. Warf at Handy's point also talks about how not only that court opinion concludes that a planning commission is an administrative official for purposes of an appeal to a board but the the opinion sites to attorney general's opinions opinions of the attorney general which are in agreement with that decision. Um, and there's another case in their Howard research which I've mentioned that's discussed in there as well that does similarly. I'd encourage you to be sensitive to what that case actually says. And with that, I'll I'll close. Thank you very much.

Just have a a short read to that. Um, and first of all, I just want to make sure that to be clear that I was not suggesting there is no zoning administrator or that Mr. Castantini is not the zoning administrator. My point was that he wears two hats and that in writing the letter um he was wearing the the town manager hat as he signed the letter and that was because there had been no there had been no um application submitted um that required action for him as the zoning administrator. They weren't asking for an administrative adjustment. that they weren't asking for an interpretation of the zoning ordinance or any of the other things that might come to you on appeal when he's wearing his zoning administrator hat. He was just sending back a letter that said, "Here's the process. You you said you want to do this. Here's the process that you have to do it by." And that is is utterly ministerial there. It wasn't wasn't judicial. It wasn't legislative. It wasn't any of those things. It was just here's what the code says. Um, so I I I don't want to mislead this um board um that I thought there was no zoning administrator. There there clearly is a zoning administrator and it is Mr. Pasi. Um

so um and then the other the the one other point I want to address is that um regard to the other matter the planning commission appeal um a a provision can be perfectly clear that is not the same thing as being inconsistent with another provision. You can have two entirely clear provisions that are that stand on their own and and are not ambiguous. The question here is are they inconsistent with one another notwithstanding their individual clarity. So um the applicant is telling you that um a person who um brings a um an application under um chapter 180 um with respect to the EC zone gets to choose where its appeal goes. Well, no, you don't get to form shop. There's an answer. one of those provisions governs and if you accept the argument of the applicant then you're saying one section says you shall appeal to the BCA and the other one says you may appeal somewhere else well how can you may appeal somewhere else if shall is mandatory and the other provision says shall right plainly you have two inconsistent provisions and so you have to decide how to read those two provisions together in a way that makes sense that's what the principles of statuto interpretation ation tell you you have to make them both have meaning so that either one of them um is uh what they call nubatory. Um and in order to do that you um you the the correct interpretation I have profered is that the um the general provision has to um be subordinated to the specific provision which pertains to the application before you

if I may just

the first of all the um both of the provisions 180-95 and 24-5 [snorts] use the term may. I was using the example of one that may be shall and another may for argumentative purposes. The reality before you is they both say may. The only way you can reconcile them as being consistent with one another is that there is an election. It may not be the most a perfect situation, but that's what your code says. That's what it actually says. You don't have to contemplate anything else. You don't have to engage in anything to interpret the meaning. There is another cannon of interpretation that says you read statutes. You read the terms of a statute according to the plain meaning of the terms. That's the only way you can reconcile those two. Thank you. Okay. Okay. [clears throat] So, at this time, I'm going to uh motion that we go into a closed session so that we can confer with council. Uh at the conclusion of that, we will have another open session. So, during the close session, we ask motion session.

So, why I'm not motion yet? So I I now move that we go into close session per this pursuant to the statute of authority of the annotated code of Maryland general provisions article section 3-305 subsection 7. This board of zoning appeals will meet in the close session to consult with council to legal issues and we will return to open session after the closed session ends. Can I get a second? Second. Second. All right. All right. So done. We're going into close session. Thank you.

Okay, the open session is now back in session. Uh the board has determined that we do have jurisdiction. Well, you need to take a vote on this first. You need to take a vote as to whether or not the motion should I was about to do that. Oh, okay. Yeah. [laughter] Don't confuse me. Fine. That's too easy to do. Yeah.

We've determined that we uh that we uh probably we'll go forth with these. So, we're going to take a motion right now on each of the appeals separately. Uh, I move that we uh do have the jurisdiction to hear the planning commission appeal uh which we will do uh at a later date and there will be a written determination explaining our decision for this matter at a later date. The record will be left open for that later date when the case will be heard. So, anybody second that motion? Second it. All those in favor? I

All right. So that has been that we have determined is moved that we do have the jurisdiction to hear the planning commission appeal at a later date to be determined. Secondly, uh for the appeal of the town manager letter, we I move that we uh have determined that we do have uh jurisdiction to hear that appeal. So, and that will also be have a written determination explaining that decision that will be distributed at a later date and the record for this case will also be left open for when that case is heard at a later date. Second,

second. All those in favor? I. All right. So, that has been determined. We uh that motion is passed. We will hear both of these cases at later dates and there will be a a written determination uh to be distributed explaining that decision and we will I guess deal with dates and times. Yes. Now will be here for another three hours to determine dates. All right. [laughter] Well, from a from an advertising standpoint, do we want to try to pick a date so that we can announce it as soon as we can? Yes. But there's a lot of calendars to coordinate. So, yeah, we're going to try to do that.

We We can pull our I can pull our people to get you dates that may be available [clears throat] if you have any you want to What I'm saying is we'll just have to revertise everything apparently. So, more fees to the actual appeals. May I ask, do you have to readvertise them? If they if this is basically Well, I would say this. Would it be continued? If it's going to be continued to a specific date and we determine that tonight, then I don't think it has to be readvertised. That's right. My understanding is we're not picking a date tonight. Well, that's what I want to know. If you're not, then you have then I would agree it needs to be That's what I'm saying.

I understand. If we pick a date tonight, then no, we're not. Can you work on that tonight? Can we? Yeah. Yeah, we can do this tonight. We can. How about you guys? So, uh, what is the window that we're looking at? I'll look at the board first. I think I think we've already said that we're uh next week's out that next week's out. Then we're in the once we get to Christmas then I know I'm out until the middle uh I'll be out of the country for two weeks and back like the 12th or something. Um so mid January or probably late January might be

late January probably. Um I will be back on the 27th I think and then I have court on the 28th. So of February January January. So, so the so the week of the 13th or 12th, I'm sorry, 13th through 16th in January is out. Yeah. Okay. So, we had too many. All right. So, February, let's see. And these are vital people, so we can't Yeah, Joe. How much are the advertising costs? Uh, it's whatever the um certified letters are, which I don't price varies. So, typically we request an amount and then there's We can put that send it to you.

Yeah, if it's easier just to do that. Last time was around $100 to send out the letters and then there's also the cost advertising the newspaper as well. What's that? Yeah, that's what I'm see. So, so the week of the 8th and the 15th are out of December just and then we're into the holiday. So, we have to go into J. Okay. In January, we're not available until after the 28th. Is that correct? We're really into February. Actually, we're really into February. 29th. We're in February. Yeah. Yeah. February. I'm open.

First week or should I mean the 4th through the 11th? It looks good to me. I mean, Tuesday. Are you a Tuesday or Wednesday? Is that the third or the fourth? I can't do the third. The fourth would be I'm just I mean I don't want it all revolve around me, but I'm sharing what I got. I'm okay with the fourth. Fourth for me, too. Fourth Wednesday to Wednesday.

Anybody can't make it the fourth. I'm looking right now. six o'clock. We like that. Not so much, but I'll I'll leave earlier. It'll still be dark. [laughter]

All right. So, I'm trying to make my calendar work.

Here we go. February. Did you say the third is out? It's the fourth. Yeah, we can try that. Try that or we can say [laughter] words are important. February 4th, 6 I've come to uh I've come to doubt my technological skills. It looks okay. I wasn't going to say. Thank you, Steve. By the way, the answer I was looking for earlier was St. Michael's. I just No, you're right. as soon as you walk out the door. I actually helped them with that. Yeah.

Oh, the the Talba County matter. Yeah. Yeah. [cough] [clears throat] Right. I knew as soon as I left the room, it would come to Thank you all for both. Thank you very much. For both on both appeals that night test to hear. We're done. Yeah. I think is that it? We should cut off by 10:00, right? Okay. Yeah. I move to adjourn. Second. All right. All in favor? All right. I'm low, too. Meeting is a journ. Hearing is