Carroll County, MD CCG 24 News, 9 Dec 2022

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From YouTube: Forest Conservation Appeal - December 9, 2022

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https://www.carrollcountymd.gov

A

A

A

Yeah, I remember checking the hats: agriculture, because the contractors yeah some sort of noise.

B

Over here, okay, I got. I have the same thing: yeah.

C

Morning morning,.

C

Good morning hi they switched their response.

D

My compliance, yeah good good, good.

E

All right, I guess we can get started.

E

uh This is the hearing for forest conservation variance decision.

E

Before the forest conservation appeals board, um it was continued from november 16 2022.

E

It's a de novo hearing, so anything you want in the record uh if there's.

E

Any further appeals of the matter it needs to come in today. At this hearing.

E

So we can, we can get started. Okay uh with your permission, I'll remain seated as when I address.

D

You, my name is clark schaefer, 73, east main street. I'm an attorney representing uh shorty.

D

Kuhn and his wife, the property owners here today- and I I'm sure, mr almond I I do have.

D

A brief opening statement, but I think mr alder probably uh enter his appearance. Yes,.

B

uh James allman, um on behalf of uh that carroll, county bureau of land and resource management.

D

uh If I may, uh my uh understanding and and reading of this statute is that this board of appeals.

D

Is an ad hoc board, that's appointed by the county commissioners? If and when an environmental appeal.

D

An appeal from an environmental regulation comes up. They don't come up that often so.

D

The county does not have a standing, as you probably all know, all this, the county does.

D

Not have a standing board of appeals to hear these matters. I've been practicing for 40 years.

D

In the county in in land use- and I this is the first one- I've ever handled or been in front of.

D

um This is, as mr dixon uh briefly alluded to. This is a quasi-judicial hearings. My understanding.

D

Meaning that you sit as both judge and jury so to speak, both you're you're to.

D

Find you're you're to you're to find facts and you're going to make interpret the law.

D

In accordance with the facts, you find, and you were limited in your determination to what is presented.

D

Here today now mr dixon used the word, the latin phrase de novo, uh which we in the legal profession.

D

Are are very familiar with what it means is it's brand new. Essentially I don't know what the.

D

Literal translation is, but it means it's brand new. It's not appellate, based on the record, so.

D

That means that your job is to decide whether, based on the evidence presented the variants.

D

Should be granted or denied simply simply you're not required to defer to mr hyde's.

D

Decision this is not it may. It may seem like it's an attack when mr hein and his.

D

Decision-Making process, because there will be evidence that that tells you why we think.

D

He was wrong and and miss miss misread the statute and applied it incorrectly.

D

We you'll see we do not believe that that the review was fair, balanced or in accordance with law.

D

um And uh appreciate your time uh to uh because I'm pretty sure it's volunteer.

D

um To come in here and listen to these things, um I would note for the record that I'm looking at.

D

The because we're on the record here, meaning that if, if there's an appeal, the only thing.

D

That will go to the court would be a transcript of every word. That was said here and evidence.

D

That's put into evidence and then there would be no more testimony or very it's very limited.

D

Availability, you can't put additional testimony on so that may explain some of the weird uh processes.

D

Here and I'll engage in one now, I'm looking at the at the room uh that we're in in the county.

D

Building and I'm seeing no one here other than chris hein, jim almond myself, my client, his son.

D

Our expert witness john lemmerman and john bowman and david b craft, who work with and.

D

For chris hein, no other persons are here, uh and I just make that clear for the records.

D

Because the record doesn't have pictures of the room. Thank you. I'm prepared to proceed with my.

D

Case all right, uh the people that are going to testify uh stand up and raise your right hand.

E

You have to take an oath everybody. uh Do you swear or affirm under the penalties of perjury.

E

That the testimony you were about to give is the truth, the whole truth and nothing but the truth.

E

All right, when you testify state your name, your address your occupation and.

E

Would you spell your last name for the record, just as a point of order, um since.

B

This is a de novo hearing. Would it be the county that goes first, because we.

B

Are the ones that are putting on the case on why the variance should be, or I'm I'm fine either.

B

Way, I think it's us because we are taking the appeal we're the moving party here. Okay,.

D

Okay, everybody stand up. Did all my people stand up, they did. Did you stand up yeah? Yes,.

D

Okay- and I saw john and I know david did all right, may I may I hand the board.

D

A copy of the very section of the code, if you haven't already, I gave it to them, highlight the.

E

Whole code- oh that section no, I didn't get that right now. All right just wanted that to be in.

D

Front of you and writing as we proceed through the years. What section of the code is that, if 150.33.

E

Oh 150 33. and by the by.

D

To add to my travails and troubles um as I'm working with these ordinances yesterday, I get in.

D

The mail, the update, good luck, which is I've, got it in this in that big book over there. That updates.

D

The environmental codes, uh so I I didn't exhaust and it and it's in a format- that's not redlined. So.

D

You can't tell what the changes are, so I did take the trouble to compare, for instance, that section.

D

And I think the the changes were relatively minor, so it's pretty much the same ordinance we've been.

D

Working from, but if anything comes up here today, where I, where I'm referring to something, that's.

D

Not accurate, please tell me because you're more familiar with them than I am absolutely.

D

All right, that being said, I'm willing to call my first witness.

C

Okay: okay call chris hein is an adverse witness.

B

Okay, I mean: do you want to sit chris? Why don't you bring them over closer to me? So all right.

D

Okay, mr hein, um you were here and took the oath. uh Did you not? Yes, I did.

D

um What is your, uh what is your uh position with the county? I am the director of land and resource.

A

Management and what what uh bureaus do you have jurisdiction over or do you are underneath you.

D

I have the bureau of resource management and the bureau of development review, okay and how.

D

About zoning zoning is under my purview, but it is not a bureau. Okay, anything else under your.

D

Purview, that's not a bureau ag preservation, okay and then the bureau of resource management is in.

D

Is the is the group that handles the environmental reviews, correct that is correct and would be fair.

D

To say that consists of the administration, the forced conservation ordinance, the water.

D

Resource protection ordinance and the stormwater management ordinance. That's correct. All right.

D

um What's your education and background, I am a um by education. Environmental engineer have a.

A

Bachelor's degree in civil engineering and a master's degree in environmental engineering.

A

I'm a licensed and practicing civil engineer in the state of maryland right now, can you explain.

D

To the board, what is the, what is the overall purpose of the forced conservation ordinance.

A

Forest conservation is a derived from state law which is to preserve and.

A

Amount of forest within the state and protects environmentally sensitive areas, and and so on.

A

From a forest perspective, it works in conjunction with the water resources, protection and the storm.

D

Water management and, of course, there's the health department and all their regulations correct. No.

A

It's a standalone ordinance. Well, I know it's a standalone wordage, but it well the strike. It's.

D

Okay, the overall goal, though, wouldn't you would you agree with me that the overall goal was to.

D

Protect h, slash enhance in the environment when reviewing development projects, sure.

D

um And those those various ordinances are designed to address those concerns. Correct yes, right now,.

D

Is it possible in this case, you have denied a variance on a 0.08 acre.

D

Area of forest correct that is correct, right and you your reasons. You've stated in writing and.

D

We'll talk about them a little bit more today, but uh as part of that, if that variance were granted.

D

Would the property owner mr kuhn, and even though his name's walter.

D

He's I'll referred to him as shorty.

D

Would he then have had to purchase an equivalent amount of uh forest in a forest bank.

A

There are a variety of ways that that can address the environmental impact, so.

A

That is one option. Well, it's an option, meaning that.

D

If the variants were granted, that's what he could do to uh he would. He would have.

D

To do that in in to get the variance granted correct if the variants were granted. Yes, okay,.

D

um By the way, matthew, her just walked in the room he's my new partner uh and he's here to.

D

Either watch me or help me one or the other. um Thank you, um okay! So now what are forest banks.

A

So forest banks- and I, um as you ask me what my area of expertise is my area of expertise.

A

Is civil engineering and I oversee the forest conservation enforcement in the county, but it.

A

Is not my area of expertise, so um I will do my best to answer the question, but I would.

A

Defer to mr bowman, who is here also that if you want some good answers from that.

A

Perspective, that's fine, but essentially a forest bank is establishing planting new.

A

Forested areas in currently unforced areas to offset mitigation for development activities.

D

Okay, so, and if, if you think I should just talk to john bowman about this, let me know, but.

D

um I think this a lot of even I know some of this stuff, so forest banks are specifically addressed.

D

In the forest conservation ordinance, are they not? Yes, they are yeah and in order to uh qualify as a.

D

Forest bank is there a process and procedure that a property owner needs to go through.

A

We are starting to get a far a field of my area of expertise, so I would defer.

A

To john bolton because that's cool john all right.

D

But you're familiar with the very the the essential mechanism aren't.

D

You and the essential mechanism is that a property owner somewhere in carroll county.

D

uh Applies for and establishes what is known as a forest bank on their on their.

D

Property they own correct, yes, and once they get that certified as a forest bank.

D

That person can then sell uh acreage areas of that forest bank to people like shorty, kuhn.

D

Who needs it to comply with a carroll county forest conservation, ordinance, correct.

A

That is correct, okay, and there, in fact, is an active market for that in carroll. County is.

D

There not, yes happens all the time, doesn't it yes, okay and you have to okay. So so can you is.

D

It possible for you to quantify in any way the net benefit to the environment that would occur.

D

Comparing preserving this .08 acres versus purchasing 0.08 acres in a forest bank, is it.

D

Better, is it better to preserve this 0.08 acres, or is it better to buy 0.08 acres in a forest.

D

Bank no, I cannot quantify that. However, there is no provision in the county code that establishes.

A

Any size, limitations or, and and so on, regarding what can be varied and what can't it is a black.

A

And white statement that priority one forest cannot be removed from constant from the easement.

D

Well, then, why are we here today.

A

Because a variance can be issued for any provision, technical provision of the code specifically says.

A

That you cannot do that. I got I misunderstood you, but so you you can a property owner can ask.

D

For a variance from the priority one for us correct if there is an unnecessary hardship.

A

Yeah, based on the criteria, I'm not trying to trick you or anything, chris, okay and and and.

D

This property owner did correct. Yes, they did, and you did in fact consider that variance request.

D

Did you not absolutely and did, and you did in fact deny it correct, correct- I denied it. Okay.

D

So do you do you acknowledge that you had the discretion to grant it? Yes, okay,.

D

What criteria do you use to evaluate the forest, a forced conservation, variance.

A

The criteria that's outlined in the code that I must consider: okay,.

D

And do you do you get these variance requests all the time fairly regularly? You know.

A

A couple per year, so I don't know if that in your mind, is frequent or infrequent, but.

A

A couple per year: well, let me be, maybe I wouldn't clear: do you get variance.

D

Requests from the environmental regulations regularly during the year a couple per year.

D

Your whole department, the ones that make them their way to myself. No okay, let's.

D

Be clear, does your department get a lot of them every year.

A

I don't monitor the number of of requests that come into various staff. The way the process works.

A

Is that my staff works with the property owners if there is a variance request and they try and.

A

Iron out all the details to to put together good information, it only then makes to its.

A

Way to my desk for the final determination, so the number that come to myself for for review.

A

I would have to guess I've addressed four or five looking at all of the codes this past year.

D

Will do all of them come to you or do some of them not come to you? No, the the well, the.

A

Final variance requests all come to me for final determination and you're telling me.

D

You only did three or four in the past year to my recollection, yes, well, there was two of.

D

Them in this, in this application, weren't there um there was a water resource protection and.

D

A forced conservation variance request. Yes, there were two, so this was two out of the four four yep.

A

And to my recollection, I can think of maybe three others that I've processed this year.

D

Now so I think you just described it when the very the, when the variance request is made. It's.

D

Usually made by the property owners engineer, isn't it or a man use consultant? Yes right and they fill.

D

Out a form and and uh send it in to your staff, correct, yes, and do you know whether or not your.

D

Staff engages in discussions with them and and back some back and forth on these things. Yes, yes,.

A

They do because we want my staff wants to make sure that all the information that's necessary.

A

For me to be able to make an informed decision is present in the application. Okay, do you know.

D

Whether or not your staff engaged in that process with regard to this forced conservation, variance.

A

I believe so, but I couldn't speak to the amount of discussion. Okay, I wasn't privy to.

D

That did you engage in that discussion when it came to your desk. No okay,.

D

Is part of your consideration uh in just in determining uh whether to grant a variance to.

D

Balance and weigh the interest of the government versus the interest of the property owner.

A

I'm not sure how to answer that. I review as per the requirements that are in the county code. Okay,.

D

um Now this variance application, uh when was when was it filed? Do you know.

A

If I said august 30, 30th 2021 would that uh I think that's in one of the are the tim? Are the.

D

Excuse me, uh I I gave a voluminous exhibits last time. Are they in evidence? Are they up.

D

There they're not in evidence but they're up here, okay, so I think one through six I'd like.

D

To move those into evidence, I've, I think they're, basically copies from the county files and I've.

D

Provided them to mr almond uh three four weeks ago, I have no objection. Okay, if we move those in sure.

E

They're in evidence, okay, thank you. It's one of those technical things where you get to.

D

Court and the judge says: did you ever move those into evidence? uh You're honor? I don't.

D

Remember well they're, not in evidence, then schaefer. um So, okay, so would it.

D

Do you disagree with me that august 30th 2021, the off convenience application package was filed.

A

What I can state is that the documentation that I.

A

Have here is that I received the variance request from my staff on june 15 to 2022.

A

So that would be the earliest date, and that would be the date that I would have received. The variance request.

D

Well, well, I'd like to refer to exit my exhibit one page, one which is a big thick thing, but.

D

It's the first page and it's a letter from my office saying in close, please find our package.

D

For the creation of one-off commands for this property- and I won't read the rest of the letter.

D

um And it and it it has a whole big package that you're required to submit with that.

D

Off conveyance application would that do you I mean I, I know you do you if that is that true.

A

um Yes, I mean this is the first that I'm seeing this letter, okay, but that.

D

That does convince you that that's when it was filed, correct, yes, all right and then.

D

On september, 27 2021 john bowman who's works for you right, yes, uh issued a comment letter.

D

That noted the forced conservation easement on the driveway parcel is.

D

That does, do you think that's true, I'm I have no knowledge of it, but.

D

Okay, well, that's in exhibit one. That's that's uh I'll find that okay um now do you? Does your file.

D

Reflect did you bring your file with you today? Where does john bowman? Have it with him, john.

D

Bowman has it okay, john. Are you checking me out on these things as I go through this number yeah yeah.

D

Okay and then on september, on february, 22nd, 2022, okay, some four or five months later. Does your file.

D

Reflect that rtf, which is the land use consultant for shorty kuhn, filed the variance request.

B

Who's testifying here is it chris or jonathan? Well, it's chris! So so, but if john, if john, you.

B

Can call john as a witness, uh maybe I can call him as a witness just temporarily, with.

D

The permission of the board, so he can sit up here and clark. I have no issue with conceding.

B

The timeline of when all the letters were sent um and by by the applicants and by the county.

D

Well, okay, I appreciate that, um but I I've got a little more meat to it than that.

D

um Rtf requested the variance on february 22nd 2022 now, at the same time, rtf requested another.

D

Environmental variance for the same property did it not the water resource conservation of variants,.

A

There was a water resources, conservation variance requested. I don't have that file with me because.

A

That's a separate issue, but yes, I do recall addressing the water resources conservation.

A

um Easement request, variance, request, yeah and it we'll see. We think it's a big issue so.

D

Did you grant that water resource conservation easement? Yes, I did okay.

D

Did you issue a written decision uh granting it? Yes, I did.

D

And in that written decision, did you say that one of the reasons you were granting.

D

It was because there was no other area on the property where you could locate where.

D

You could locate it and that you found that the environmental benefits outweighed the detriment.

A

I do not recall- and I don't have my file here, but I would say that to me there's a fundamental.

A

Difference between establishing an easement and addressing a impact to an existing easement.

D

Well, but it's it was a variance request from the water resource conservation.

D

Requirements: correct, yes, all right and if you look at exhibit three page five.

D

I'll show you I've got a copy of what I've got you up there. If you did it three page five, if.

D

You see at the bottom of the page, as you can find each of the three or fifth page, I'm showing you a.

D

Document dated signed by you on march 28, 2022. and I've I've I didn't yell. I don't think I yellowed.

D

Out on yours, did I okay, I yellowed some things on here or highlighted them. Can you tell me and.

D

You can read the whole thing, what's that say the highlighted area? Well, whatever you I mean, that's.

A

The highlighted area, the highlander area says due to the nature of the existing site conditions.

A

There are no alternative, feasible options for the proposed development to the proposed lawton.

D

Okay, now that's the same lot. We're talking about here, correct! Yes, it is okay. Well, is there a.

D

Different finding for this variance: yes, how could you have a different finding for this I mean I'm.

D

Not talking about a result, I'm talking about a finding. Is there a different factual finding for.

D

This result, or this case so again, like I just stated to me, there's a fundamental difference.

A

Between the establishment of an easement and the limitations that you're then putting.

A

Onto a property versus an existing easement, that's established and those impacts to the.

A

um To an existing easement, okay and I'll I'll, I hear that okay, I disagree, but I hear it now.

D

But chris, due to the nature of the existing, there are no alternative, feasible options for.

D

The proposed development to the proposed slot. That's a factual statement. Is it not.

D

That's not a I'm, I'm dealing with a different easement. I got lesser standards here or something.

D

Yes, okay and and that's no longer your factual statement.

D

When you refer to this forced conservation easement, is it.

B

For the record, I'm just going to object to this whole line of questioning for relevance. We are here for the appeal of the forest conservation.

B

um Variance denial, not water resource denial, not any other denials we are here, they appealed the.

B

Forest conservation variance denial, so I just want to put that on the record. May I respond the road.

F

Will allow it and give it the weight it deserves. Excuse me we all we all deserves. Okay. Thank you.

D

Now, when did you find out about the alleged.

D

Contractors, equipment, storage, yard, that's on this property.

B

If you can answer it answer it, chris, that's.

A

I would have found out about it when I received the package from john bowman.

A

With the variance request- because it is mentioned in the variance request.

A

You don't remember, do you remember if you found out about it before then no do you.

D

Remember, do you know if your department found out about it before then I do not.

A

Know do: does your department regularly inspect properties that apply for variances.

A

From a perspective of needing to know what is present on the property and what will.

A

Impact the variance then, yes, that would be a matter of normal, and you also have google.

D

Earth available too, you use that, don't you sure, okay and so would that process have occurred in.

D

As part of the review of the water resource conservation or easement, or variance request.

A

The water resources um reviewer and again, I'm speaking to what one of my staff does.

A

As part of their regular course of business, and is they limit what they look at to what.

A

Is submitted on the plan and, if I recall correctly, the plan that was submitted.

A

For the water resources, variance request was limited to just the location of the.

A

Southern part of the property and did not indicate show the entire property so that.

A

Was the scope of what we looked at for the water resources, easement uh variance request.

D

Well, in any event, it's clear, then, that you found out about the you. You were aware the contrary when.

D

You were considering the variance the forced conservation variance request. Yes, because it.

A

Was documented in the report, the staff report- john bowman, pointed it out to you. Yes right and.

D

Did you after that time, did you send a letter to rtf the land use consultant, saying.

D

I will not be considering your force conservation variance request.

D

Because you have a zoning violation on your property, please and I'm paraphrasing I've got the.

D

Letter in in the exhibits, please fix this address this and then after you do, you can submit a new.

D

Variance application is that essentially what you said? Yes, because I was uh as I was reviewing.

A

The the variance request I was confused by the the the justification for the variance request.

A

um And um felt that more information- and I requested that in my letter, that more.

A

Information be provided in a future variance request and county code also allows that.

A

If a, if there is a violation of the code chapter 155 that we do not have to process further.

A

um Reviews and so on until those are addressed satisfactory, can we hand that a copy that to.

D

The board, mr roman, mr oleman, has a copy of that provision of the code and I'm familiar with it, but.

D

Jim, if you have an extra copy- well, I I that's. Okay, I've got the book here. Excuse me, I've got the book.

D

Okay. Okay, uh I'm sorry! Mr hyde go ahead! You you were telling me about that section. Yeah.

A

So 155-004 b indicates that um myself, the director um that uh the preparation of a planet- uh that's.

B

Right, why don't you just read the entire section b? Sure I can do that? It's okay with me, but you can.

D

Paraphrase, if you want it says, whenever chris hein finds a director of land and resource management,.

B

Finds that any person, corporation, etc or owner has failed to comply with this chapter or the rules or.

A

Regulations of any other department or agency of the county in connection with the preparation of.

A

Any plans required under this chapter or has failed to perform any pwa, which is a public.

A

Works agreement between himself or herself in the county, the department of land, resource management.

A

May refuse to review any plans and refuse to grant any further approvals to such person, etc.

A

So essentially I have the authority to basically say I'm not going to hear this because you were in.

A

Violation of chapter 155, which requires that the development site development of a contractor's.

A

Equipment storage yard needs to comply with 155. now subsequent to then mr schaefer.

A

Requested that I go ahead and and and process the variance request anyways, which I then did.

C

Well, you were not aware that section of the law when you uh sent that initial letter I object.

B

To that question, why you don't know what mr hein was aware of? Let me ask him: that's why I'm asking.

D

Him you well, I object as a leading question. Then, okay, were you aware of that section when.

D

You did when you did that uh when you sent that letter saying I'm not going to consider.

D

Your variance request until you clean up the contracts from a storage or were you aware of.

D

That section at that time, yes, I was. Why didn't you cited? You didn't you didn't invoke. It then.

A

No, I did not invoke it. Okay, in fact, not only didn't you invoke, it.

D

But I then sent you the letter you just referred to saying: hey chris stay in your own lane right.

D

Don't you can't link this zoning to this? Fourth controvery, I sent you it's that letter correct.

A

You sent a letter asking me to go ahead and process. The variance I object is that letter.

B

In evidence right now, yes, it is, it's page is 518. dear mr hein. This office represents mr I'll.

D

Paraphrase it's 5 18.. We respectfully suggest that the alleged zoning violation which your office.

D

Apparently is prosecuting or asking that it be prosecuted is separate, and, apart from the forest.

D

Conservation, easement variance request. Accordingly, we request that you immediately proceed to address.

D

The variance request we will deal with any zoning prosecution that occurs it when it arises.

D

um That's my letter right. Yes, it is, and then that letter was dated august 10th sent by email to you.

D

On august 10, 2022, correct yes, and on august 15th, you issued your ruling on the variance. Did you not.

A

uh Yes, I did and that ruling was denied correct. That is correct. Right now. Did you deny that.

D

The that variance, because we refused to deal with the contracts, equipment, storage, yard, no.

A

And if I, if I may point back to 155004 b, there's a keyword in there in the middle of it, which says.

A

That I may refuse to review any plans and refuse to grant so essentially I was allowed to refuse.

A

You made the request and then I decided that I would go ahead and process it, but but this is.

D

The first time you've ever mentioned, 155.004 in any correspondence or communications regarding.

D

This matter is it not, that is correct right now. Let's talk about 155.004, okay,.

D

Have have you made a finding that shorty kuhn has failed to comply with this chapter or the.

D

Rules or regulations of any other department or agency of the county in connection with.

D

The preparation of any plans required under this chapter have you made that finding? I have.

A

Not issued a finding along those lines, well, you're telling me today, you you did because.

D

You're telling me that's justification for you not to not do a process of variance.

D

Why would you rely on if you haven't made that finding? Are you making that finding today you're at this table objection.

B

This is about he's not making a finding today this again, this is about the forest conservation appeal.

B

This is not about his finding regarding an alleged contractor's equipment, storage yard that may or.

B

May not be on the property, mr allman, mr hein himself. In response to my questioning said he.

D

Relied on this section now you don't want to talk about this section. I I think it's totally relevant.

F

Every world we will allow it and give it the weight it deserves all right. Thank you, so you making that finding today, chris.

A

I'm not sure what the you can you can you can if you don't, if you're.

D

Not doing it finding, can you please restate the question. You can't ask for legal advice.

D

You're on the stand: bud. Okay, that's fine! uh Are you making that finding.

D

Today, did you have you made the finding previously or are you making it today.

A

And again, as you as you've indicated, the contractor's equipment, storage yard.

A

um Question of whether that is a permitted or not permitted um use of the property is an ongoing.

A

Investigation with the zoning administrator as an ongoing investigation, that would be my.

A

Finding that they um that it is not in compliance which, after 155 until that has been resolved, okay.

A

Fair enough, it's fair enough, but I got a couple follow-ups here. Okay, the first follow-up is where.

D

Do you get the authority to make a finding that a property owner has committed a zoning violation.

D

Isn't that the specific statutory responsibility of a person known.

D

As the zoning administrator, which is an official statutory position,.

A

Yes, but as this was an ongoing investigation, that was the basis of my decision well before you made.

D

That finding what what kind of investigation did you conduct? What kind of zoning investigation.

D

Did you can did you conduct in order to reach the conclusion that this was a zoning violation.

A

Nothing beyond the information provided me to me by the zoning administrator. Okay now, furthermore,.

D

Your office referred this matter to the zoning administrator for investigation. Did it not.

A

My office- yes, I personally did not okay, but john bowman did didn't he. Yes, okay, and so you knew that.

D

The zoning administrator had the file in his uh it's jay boyd. As a zoning administrator, correct.

D

Yes, yes, okay had the had the file in his office, correct, yes and and is what's jaywood's job when.

D

He gets a when he gets a complaint. We can get into the complaint thing at another forum, but.

D

Which, what's he do answer the questions? I'm sorry, can you ask the question again? What does jay void.

D

As zoning administrator do when he gets a complaint about an alleged zoning body, I'm.

B

Again going to object to the relevance, but you can continue just for the record, which we do. He.

A

Opens his own investigation, that's his job right, yes, and then he conducts an investigation, correct.

D

Yes and then, if he concludes, there is a zoning violation, he issues a notice of violation, correct.

D

That's correct all right has he issued such such one in this case, as I believe you've stated, there.

A

This is a separate issue, and so I have not. I don't have the time to go and and look into every zoning.

A

Violation that the county is is processing that that j is processing. So I have not done.

A

Any investigation into the um this specific zoning investigation other than asking jay if there has.

A

Been any correspondence back with the property owner reaching out to try and address the notice.

A

Of violation, what do you say he said? No, does he do you know? So you is your testimony. You do.

D

Not know if he's issued a notice of violation, I believe now I can't say for sure if I know.

A

Or not right, but I know that the investigation has been open and that the zoning administrator.

A

Has reached out to the property owner to address the violation, and so when I checked.

A

I I couldn't give you the date when I asked whether any progress has been made towards.

A

Addressing that violation, the answer was no you we have we'll have other testimony but I'll profit to.

D

You there has been no zoning violation issued and, furthermore, there has been communication with the.

D

Zoning office about this matter it could, it may have been a world because it was me, okay, right.

D

As soon as we got, do you think the property owner just ignored this, when, when he found out that his.

D

His life, his his livelihood, was at stake here. Do you think he just I mean well never mind.

D

I'm sorry, I shouldn't have gazed it that way. um Now, let's we're still on 155.004, okay, okay,.

D

You fat, you're you're, finding that shorty kuhn failed to comply with this chapter.

D

Etc or the rules or regulations of any other department agency by the way.

D

You refer to the site plan section in this section, but really what you're referring to.

D

Is the zoning ordinance in 155 aid? Aren't you that's the violation, that's the alleged.

D

Violation is that you're not zoned for the use, and you have the use on your property. Therefore,.

D

It's a zoning violation, that's the essence of the matter. Isn't it but there's also the issue.

A

That development needs to follow the processes of 155, and that was not done. So that's also a.

A

Violation, so if so, oh, never mind, I'm not going to get into that. Okay, how do you, how do you reconcile.

D

The in connection with the preparation of any plans required under this chapter.

A

I'm going to object to the relevance but chris because you're on the stand.

B

You have to answer when it's my turn: what what will clean all this.

D

Explain: you're citing that you're citing that section as a defense.

D

Of your actions, I'd like you to explain how that's relevant in connection with the preparation of.

D

Any plans I mean, is there a question there? Well, what's the question, how do you explain.

D

That that, based on the the evidence and and the variance application and.

D

The information you had regarding the contractors come to storage yard.

D

How do you explain that you've found that shorty kuhn violated a rules or regulation in connection.

D

With the preparation of any plans required under this chapter, because this chapter requires that.

A

When development occurs, chapter 150 5 requires that it go through a process. What we have evidence.

A

Of is a contractor's equipment, storage yard that did not go through that process, so that.

A

Is in violation of chapter 155 the requirement to prepare plans? Well, in fact, 155 says if you're.

D

Going to do a project, you need to get a site plan, a testimony, not questioning no problem.

C

D

Now, as you sit here today, I'm just a excuse me of my business already are.

D

You are you testifying here that the uh contracts equipment, storage, yard.

D

Has had no influence or part of your decision to deny the variants? No, I'm not saying that.

D

You're not saying that okay! Well, how did it, what part did it play? So if we, uh let's see.

A

So per uh 150.33 c, which is the legal requirement that they have to demonstrate that there's a.

A

um The reason for the variance item number three states that they must demonstrate in sufficient.

A

Detail that the variance request is not based on conditions or circumstances which are the result.

A

Of actions by the applicant in the original or in the variance request, there were three items.

A

That they indicated were the reasons for the request: steep topography, the uh the inability.

A

To have septic and existing structures so to address the existing structures. I stated in my.

A

Letter that, uh let's see and I'm reading from um from my findings regarding existing improvements,.

A

This includes an unpermitted contractor equipment, storage yard, which should not be an impediment to.

A

The permitted residential development right so essentially saying that you can't build.

A

Something through a regular process, because you've got something unpermitted there to me is not.

A

That's a hardship that you have put on yourself by developing something outside the regular process.

D

Now, why wasn't that a factor in the water resource conservation, easement.

A

As I said, we take I'm treating these two different. These two different requests, variance requests.

A

Separate and the water resources variance request was um when, when we look at water.

A

Resources, enforcement and code. We look at what's submitted on the plan, which was limited to the.

A

Southern part of the of the property, in fact, your real goal here in considering this force.

D

Conservation variance request was to force the property owner to continue. I'm not finished yet.

D

Was the force the property owner to clean up, slash, address the contract equipment storage, or was it.

D

Not objection the council can't know the state of mind of the witness in he would answer. He can.

D

Answer that that wasn't his state of mind. Well, I'm speaking right now in what he was thinking.

B

About as he was going through his decision on whatever the grant or deny of variance.

B

Council and the applicants have gotten a letter from the witness describe driving his thoughts.

B

um And reasoning and denying the variance so we can't go into.

B

um The state of mind or what they were thinking, um mr schaefer, has no way of knowing what.

B

uh Mr hein was thinking at the time other than the letters that they received from the county.

B

Laying out the reasons why the forest conservation easement was denied. No, you.

B

Finished, I am mr schaefer has a way of knowing we're finding out and he just asked the question.

D

Of mr hein, did you or didn't you he's under oath? That's the way I want to try to find out. Did you.

D

Or did you not do you hear the question? Remember the question repeat the question: please did you or.

D

Did you not really use this your authority to deny or approve the force conservation variance request.

D

As a means to try to achieve the cleanup slash addressing of the contrast, equipment, storage.

D

Yard no, this was not the motivation. Okay, the the fact that those letters are four or five.

D

Days apart and you change your position and deny that that doesn't indicate that much which letters.

A

Are you talking about the the your your letter's saying? I won't consider your forced conservation.

D

Variance request to you to you till you address the zoning violation. My letter saying chris, you.

D

Can't do that and five days later, your letter saying okay denied, are you based on that are.

D

You you're saying under oath to this board that the cleanup of the forest conservation or the.

D

Contrast, equipment, storage yard was not a goal or or aim of yours. Objection asked and answered.

D

That's I just repeated the question he refused to answer. He objected to it. I then said I have.

D

A way to find out, I can ask him what he did now. He can say no or he can say yes or he can say. I don't.

D

Know I believe I answered the question. I said no, no, it was not a motivating factor. Okay. Well then,.

A

Factors that were taken into consideration regarding the variance and those factors are.

A

Outlined in my response and the findings and the contractors equipment, storage yard is just one.

A

Aspect of the many things that uh that I responded to as a reason for the denial okay. So what.

D

Happened after the last hearing here here when we, uh when we tried to settle the case or tried.

A

To address it so so, as I indicated before, I was kind of confused when I received the the variance.

A

Request because, as I stated, there were three primary arguments for the variance request and and.

A

And why I was really confused is that the variance request stated that the property owner wished to.

A

Be on the northern side, that of the property, but they couldn't because of three factors.

A

Those factors who are steep slopes because of the latin inability for septic and then the existing.

A

Structures- and so I responded to those, but I would I was confused as to why they um those were.

A

Factors- and we can show exhibits as to why why I was confused. No no at the uh at the last hearing.

A

And it was pointed out that the area where which in other food would help to bring up the exhibits.

A

But the area that I viewed from my research had flatter slopes, so it was conducive to to building.

A

A residence and had soils from uh that indicated that they would be well drained that that area was.

A

Added to the subject property through an add-on, and there was a restriction in that add-on d.

A

That said, that no development could occur, and mr schaefer indicated that that indicated that they.

A

Could not do any work in that area so subsequently I discussed it with the bureau of development.

A

Review and they clarified that development could occur in that area if, if a plat was created for.

A

The entire property- and that's something that that we return that is done, and so that would take.

A

The restriction from development off of that area and would allow the property owner to put the off.

A

Conveyance in that area, which is what they wanted to do, according to their original variance request.

D

So one of the reasons you denied the variance forced conservation variants was that you said.

D

That the the property owner could use another portion of his land for the off conveyance is that.

D

Correct that's correct all right and that area of the property happened to be where there looks to.

D

Be some equipment and stuff located on correct on a portion of it yeah one portion of it. Okay,.

D

Now we then said: no, you can't because of this add on d, correct, correct and you said well, okay,.

D

I'm 99 sure I'm going to grant the variance if that's true, yes and- and we said good and.

D

Then you went back to your office and talked to laura matthias, correct. That is correct who's. The.

D

Person who works for you in development review, correct, that's, correct and she's administers the.

D

Subdivision regulations of carroll county correct yes, and she told you that if we did a thing.

D

Called a special purpose plot, the property owner could put a building lot back there right. Yes, on.

D

The northern portion of the property could okay correct right now. What is a special purpose? Plaid.

A

Again, my background is in civil engineering and I do not have the land development, expertise.

A

That my staff have so um david b craft from that department from that bureau is here and.

A

And can speak some spiritually fair enough, but but would you agree with me that your.

D

Position uh would require the property owner to file a whole new set of applications and plans.

A

I am going to defer to david b craft on the on the mechanism, the specifics on obtaining a new plat.

A

But my understanding is that it is not a lengthy process and it's one that I believe you could.

A

Speak to because I understand that you've taken projects through the special purpose flat process.

D

Okay but well, but it's self-evident: is it not chris that if you need to go to another area.

D

Property and pursue development of it, you have to start a whole new process. It would be a new.

A

Process, but that would not be an unnecessary hardship, which is the criteria of the variance.

A

Request, okay, and, and what is it do you do you know what that new process is just in general.

D

Again, I would defer to david b craftica. Well, let me let me just help you out a little bit.

D

Basically, because we can you get him later, you need to file application and new plans correct.

A

I will defer to david b craft I'm going to object to this line of.

B

Questioning is what it has to do with an appeal of a forest conservation.

B

B

He cited it as a reason. He turned it down. That's that's the relevance um so so then you.

D

You then sent me an email saying describing that you would talk to laura matthias and that you.

D

Found out, we could do a special purpose, plot, etc correct. So the email that I sent, you was an effort.

A

To talk through a process that the property owner could potentially go through to, if and and that's.

A

The if they desired to put the off conveyance on the southern part of the property, but again the.

A

Variance request they indicated they would prefer that it'd be on the northern side of the property.

D

Let me show you a set of emails, can you can you look through those.

D

There's three of them there. Basically, I think, there's three of them, including your.

D

Highlighter, excuse me, including the email uh I have uh just referred to.

D

And really it's the last page chris that I'm most interested in but feel free to.

D

Look through all of them now I'm familiar with them. Okay, and that's that is uh I'd like to.

D

I'd like to offer this, as my exhibit seven seven seven.

D

D

So that's a you know, one page email. I don't know that we need to read it, but.

D

In that email, would you agree to me that you said.

D

Essentially, I would, I would grant the variance if you went through the special purpose plot.

D

And cleaned up the uh contract equipment, storage yard, it's a little more complex.

A

Than that so so, as I indicated there were those three reasons why they requested the.

A

Variance and the one and then the subsequent information we received about the add-on and.

A

So from my perspective, looking at the the overall property and looking at that add-on portion where.

A

Where I feel that there's the potential for the off-convance to be put there and not have to get.

A

The variance request on the southern part right so what I indicated as a course of action that the.

A

um The property owner could go through is that if they went through the site plan process, which.

A

uh I don't know what the right term is made: it a permitted, contractor's equipment, storage.

A

Yard that that site plan process may encumber a significant portion of that area, that is from.

A

A physical perspective developable and if that occurred, then they could submit another variance.

A

Request and there would be legitimate um concern or it would be legitimate that.

A

The encumbrance on that northern part was such that the only location remaining would be on.

A

The southern half, but that would be that would rely on that, would require going through that.

A

Process of bringing the contractor's equipment storage yard in into compliance by going through.

A

The site plan process, so I offered that as a potential path for them to move forward through.

A

But it does not have any relevance in my mind to the variance request again, their variance.

A

Requests stated that they would prefer to have the off conveyance on the northern side, but they.

A

Had these limitations, those limitations do not exist, and so the variance could not be issued.

D

The latest paragraph of that email or the second, the last in the second sentence, says.

D

Third sentence, however: the off conveyance will not be approved until the site plan.

D

Is approved and all legal documents recorded, so you may explicitly, did you not make it make the.

D

Cleanup of the contractor's equipment storage yard explicitly tied to the granting of the.

D

Off conveyance approval and variants, I'm going to object to that question.

B

um I'm going to object to that question, because what we are here for is the did not an appeal of.

B

A denial of a forest conservation easement that was originally set for this hearing sometime in.

B

Mid-November, there was additional information that was provided by the applicants on the day.

B

Of that hearing that the county was unaware of um and then the county wanted to, investigate that.

B

So this case was continued to today, any.

B

um Communications between the um the county and.

B

Applicants or the county and the applicant's attorney regarding the process or the best.

B

Process, theoretically on how to bring this property into compliance, is it will relevant.

B

It has no bearing on what we're here, for which is the appeal of the forest conservation easement. Any.

B

Thing that happens after or any communications that occurred. uh You know.

B

Between when this case was continued, and today has no bearing on chris's mr heinz original denial of.

B

The forest conservation uh variance request and the uh appellant's appeal of that denial.

G

I have a question yes, chris, could you describe to me what the site plan process is sure yeah? It's.

A

Oh yeah, I don't want to take all day with it. Well, but that's what you recommended that they.

G

Would go through to get clearance eventually for us yeah, so the site plan process is that.

A

um It starts with a pre-submittal conference and to to discuss with staff and what the.

A

um What the project needs is to be a development of concept plans to indicate conceptually what.

A

It is that they want to construct once concept approvals are achieved. Then it goes to planning.

A

Commission for concept review, then final plans are produced and um then once the final plans.

A

Are approved then it can go to then it goes to planning, commission or potentially the chair of.

A

The planning commission for final approval and then there are final plans produced.

A

And construction can occur for any improvements that are necessary. This sounds like a very long.

G

Process, how long would it take them to go through this like? Well, it typically takes about a year.

G

A year yeah, okay, I'm going to advise the board at this point that uh settlement negotiations. That's.

E

Typically, not something that ever is part uh comes into evidence, so they may occur, but the body.

E

Deciding a matter doesn't usually find out what happened in settlement negotiations. Well, are you.

D

Telling me you're not going to admit my exhibit. No, it's admitted okay, I'm just I'm just telling.

E

The board settlement negotiations- typically, that's not that nothing about them coming to evidence, may.

D

I may I continue with him sure. Are you okay? um I just I'm going to address that and chris really.

D

The process would be that you recommended or ask required, or whatever would be, that the applicant.

D

Would need to file a conditional use request to the board of zoning appeals of carroll county for.

D

A contract equipment storage are correct. I again want to stay for the record. My objection to this.

B

Entire line of questioning are you objecting to mr barrett's question. I mean I'm just fine, I'm.

B

Objecting to your question, I'm not objecting to mr barrett's question. I'm objecting to objecting.

B

To your question, I think I'm entitled, if we're going to have testimony about the process, I'd.

D

Like to have the testimony be accurate about the process and that's why I'm asking the question.

D

Okay, that's fine! I just wanted for the record. I mean you're taking attendance and putting that.

B

On the record, okay, that's fine, so he would need to file a condition. A conditional use.

D

Application to the carroll county board of zoning appeals correct. That is correct and.

D

That's a board like this. Well, it's a board with quasi-judicial powers, correct, that's correct!.

D

There's application fees and a process correct yes, but that process is not an undue hardship. Okay,.

D

I'm not conceding that, but that's not the question so that takes two three four months right.

A

I don't you don't know, if you don't know, you don't know. Okay and there's cost to it. Correct, yes, and.

D

The board sends notices to all the neighbors, etc. Right, yes, and then you have a public hearing like.

D

This one correct yes and then, within 30 days, the board renders a written decision granting.

D

Or denying your conditional use right? Yes and then you start the site plan process right, yes and.

D

I think your site plan was a good general summary, but I just want to ask one question:.

D

About it, during the site plan review process, do all the county agencies and plus the state.

D

State highway administration plus carroll county health department do they review the site plan.

A

Yeah all the applicable agencies in this case, because state highway isn't anywhere near it.

A

State highway would not review it. Okay, but, for instance, it would get a water resource.

D

Conservation review, would it not yes it would. It would get a sediment control review right? Yes,.

A

It would do they take do those take time. Yes, they do okay and there could now, as you sit here today,.

D

Having ascertained in your opinion that the uh that the developer or that the owner could.

D

Get a lot or a conditional use approval for for kind of on that northern portion of the property.

D

Right, you, you think, that's that's! That's your recommendation that he pursue that correct. That.

A

Was there were, that was the indication and the variance request that that's what the develop.

A

The property owner wished: okay, okay, but you don't you don't know, as you sit here today,.

D

Whether he could he could achieve either of those uh ends. Do you both ends being single.

D

Family lot or contrary equipment, storage yard, you don't know if he could meet all the requirements.

D

Do you I don't, but I believe the burden is on them to provide that in the variance request.

A

For me to make a determination on so if you get a variance request, I I got a hundred acre farm.

D

And I want to take a one acre off convenience for my to sell that you get that and I need a.

D

Variance from the forest conservation ordinance, let's say: okay, do you then look at my whole farm.

D

And see if there's any place else on it, I could put that one acre lot without needing a forced.

B

Conservation variance I'm just going to object for the record. This is a hypothetical, so hypothetical.

D

Because it illustrates the fact uh profit to you that it illustrates the fact that that is not.

D

The analytical method that is employed in hardly any reviews of zoning of water resource or of.

D

Forest conservation, variances, and if it were it would be ridiculous. Wouldn't it wouldn't it chris.

B

No again, I'm objective, that's testimony, that's not a question. Well, do you do you commonly use as an.

D

Analytical technique when you're reviewing a water of variance environmental variants, do you look at.

D

The whole parent trap, we, we call it the parent tract the the bigger piece that the owner owns.

D

And they're kind of cut a piece off. Do you look at the parent tract and say I google, like you, did.

D

Here I google earth it. It looks like I looked at the soil types. I think you could probably.

D

Get some perks up there. I don't I'm not sure, but so do you do that in your typical variance case.

A

Yes, working through staff, we do. Oh, you do yes and you tell people, sorry, I'm not going to approve.

D

Your variance you've got to go, you can do it over here. Go. Go investigate that piece of ground.

D

You tell them that again, I have processed four or five thereabouts.

A

Of those this is a hypothetical. I would need to look at the specifics.

D

Bear with me one second, please, foreign.

D

D

Well, let me strike that.

D

The the the forest conservation variance request and the water.

D

Resource conservation variance request we're both filed on february 22nd, 2022.

D

We're now december 9 2022, or I think it's the ninth yeah. It is. [music] um Why wasn't this.

D

This being hey, why don't you look at another piece of ground brought up sometime prior to to to when you deny the variance.

A

So again, speaking to to process staff works with the property owner to to get gain. All the.

A

Information, so I can make an informed decision. I received the um the variance request package.

A

On june 15th, in my review of it, I did look at the end of the forest conservation fairs request. I did.

A

Look at the entire property and as I've indicated, I was confused about the the request because again.

A

The request was steep slopes, which we will show that this the slopes are flatter in the.

A

Area that we're talking about septic, which again the soils, indicate that septic should work and.

A

um And uh other features that were there, so I did look at that specifically as part of my my review.

A

Is that, because, fundamentally, what they're asking for is they're, saying we'd like to put it on the.

A

North side, but we can't because of these issues, so we want to put on the south side, which then.

A

Requires this variance to the forest conservation easement and when I looked at the north side,.

A

Their arguments did not hold water because of those of what we've discussed today. So that's.

A

Why I denied the variants? Because they really didn't say that did they we wanted to put it on.

D

The north side, but we can't they didn't, say that did they they said there were other buildings.

D

Or structures that existed on the property, but they didn't say we wanted to put it on.

D

The north side did they, yes, they did. So if you refer to the variance request from the from rtf.

A

Middle of the second paragraph, it is it states. Ideally, the lot would use the existing driveway.

A

Entrance and access location on the north side of morgan run making a much more cost effective.

A

Option and then they reiterate that at the um end of the first paragraph on the second page, it says.

A

As mentioned earlier, it would have been more cost effective and efficient. Had the op conveyance been.

A

Able to be placed on the north side, what's the date of that letter, this is may 18 2022. This was.

A

The variance request submitted to my office, okay, I'm I got the letter. What part were you reading.

D

There, okay I'll go back so ideally where's the ideally second paragraph uh sort of was it six.

A

Lines up from the bottom, it says. Ideally, the lot would use the existing driveway entrance.

A

And access located on the north side of morgan run making it a much more cost effective option.

A

And then it goes into it was deemed not possible due to those three items that we've talked about.

A

And then it reiterates that statement at the end of the paragraph on the second page, which says as.

A

Mentioned earlier, it would have been more cost effective and efficient. Had the off conveyance.

A

Been able to be placed on the north side of morning run so I think it's my interpretation.

A

Of that was they wanted it to be on the north side of morgan ron and but they couldn't because.

A

Of those factors, those factors have not worn out. So that's why? I'm not sure why we're here, because.

A

My my interpretation is of this request was that they wanted to be on the north side. Well. Well, then,.

D

Why did you? Why did you say when you reviewed the water resource confirmation that duty, the.

D

Nature of existing, so there are no alternate fees watch for for the proposed development on.

D

The proposed line again we're talking about two different applications here. Well, we're.

A

Talking about the same property, aren't we again when looking at the water resources.

A

Code and looking at and so on, you look at what is submitted on um on the plan that is before us.

D

Okay, I just did you also say in your water resources. uh We're not decision. Objection is.

B

Relevance also asked and answered: no, it's not it's not asked and answered, but, um and it is relevant.

D

And it's relevant for the reasons I've I've laid out before is that when an administrative agency.

D

Administers its regulations, it has a duty to treat similar cases. Similarly, it's fairness.

D

To the property owner and the applicant, and that's why it's relevant, it's also relevant.

D

Because these same this, the same rationale that he's well a different rationale.

D

Okay, well I'll leave that alone for now. Okay, I do want to say that just just this is exhibit six.

D

I'm showing page one of exhibit six, you know what that is. uh Could you identify it for the.

B

Record mr shaffer yeah, it's a exhibit plaid of the proposed and existing forest conservation.

D

Easement for uh the [ __ ] properties that it's done so I got the right one. It's just the one.

B

I cleaned all this up. Don't worry laughs.

B

Examination review so it would take like 10-15 minutes. Okay, look.

D

At page two, I'm sorry they're saying same drawing just a different type.

D

That that, chris, is that the exhibit that shows the water resource protection easement, your department.

D

Required slash negotiated, slash accepted from the property owner in as part of the variance request.

D

For water resource conservation, it looks like it I'm not familiar with it. You have that up there.

D

This shows this is the why the lodge this.

D

Is this that we want to create this weight area? Is the bill that has.

D

Been determined to be the billable area after environmental reviews.

D

Okay, so there was discussions that ensued or, and the result was that this, the entire.

D

Undisturbed area was required to be put in a water resource conservation and forest.

D

Conservation easement, they kind of just doubled up on it, because there's some forest in that area.

D

Too and anyway, I just wanted you to see that that's that's already part of the requirements.

D

And that that area is about 2.632 acres, and is it's in that easement correct? You know.

A

I do not know okay.

D

Now you granted that easement correct the water resource conservation easement, yes,.

A

But we're not here discussing that easement! Well, I I will let mr roman do that, but.

D

Did that water resource protection easement provide an environmental benefit or enhancement.

D

You can answer yes, okay, and, in fact, if you look at your the your your.

D

Bible, the variance definition in your code is one of the criteria.

D

Number look at look at a3. uh What is this under 150 33.33? That's for forest conservation.

B

Variance appeals, the water resource management has its own uh variance section, can can we? I.

B

Mean it's probably in your book I'm aware of that jim okay! If you can, we look at a3 sure.

B

And we're looking at everything else, do you have a copy of that? I can find it. Yes.

A

15033, a three okay: what's that say, it can be proven that some action associated with the.

A

Project will result in measurable environmental enhancement that can be equated to the estimated.

A

Benefit which would have achieved if the technical requirement that the applicant is requesting.

A

Really from would have been accomplished: okay, okay and you just testified that the.

D

Water resource conservation, easement provided an environmental benefit or enhancement. Did you not.

A

Yes, okay, so why didn't? Why wasn't that and- and I note by the way, that the the.

D

Four criteria listed under a are in the oh [ __ ]. I just saw a cartoon on this.

D

The disjunctive, it's the word or is used not and meaning that any one of those four.

D

Can be the basis for a variance, so why wasn't that the? Why didn't that uh equal grain of a.

D

Variance again, I'm going to object for relevance, but chris you can answer yeah. So a court pursuant.

A

To 15033c, the applicant must submit a written variant request for variance which meets and.

A

Then there are five requirements, and so that's what I review a variance request related to.

D

Will be, do you do you think your test? Listen we're here today we're at the novo. Do you.

D

Think that the that there's an action associated with the project that would meet that criteria.

D

I mean and again we're getting back to the the estimated benefit we talked about that.

D

Earlier in terms of 08 versus 08 forest bank, so we got, you said that you thought there was a net.

D

Benefit right right and so this, so this allows that they can apply for a variance right and.

A

Then they were required to meet the four, the five criteria for a variance to be issued and.

A

What I've determined is, they did not meet all five criteria. So that's why the variance was.

A

Denied did you clearly in my findings? Okay, we okay, so I I mean the answer is no clark.

D

I do not believe that there's an action associated with the project that that meets three right, no.

A

A variance request must meet those five criteria. In order for me to be able to issue the variance.

A

Which they did not achieve? Okay? Well, that's a semantic difference. I mean the the it says if.

D

It says the county may grant a variance. May, oh, may you mean you can turn it down for any reason.

B

Objection, that's a question you said: may all right continue I'll continue.

D

Do you does that mean in your opinion, you could turn it down for any reason.

A

It means that I have a prescribed code which tells me what I need to review the variance.

A

Request against to determine if they meet all of those criteria and that's what would allow me to.

A

Issue the variance in this case they did not meet all five of the criteria which was outlined in.

A

My findings, and so I could not issue the variance. Okay, you are you go, are you? Are you refusing just.

D

To answer my question of whether or not you think the enhancement associated with the water resource.

D

Easement is a benefit uh that can be equated to the estimated benefit of the 08 acres being.

D

Being left being being put a driveway being put over 0.08 acres, if I may I'll point out the number.

A

Four of the five criteria states demonstrate insufficient detail that the variance does not.

A

Arise from a condition relating to uh no I'm sorry that was the wrong. One uh number five demonstrate.

A

Insufficient detail that the granting of the variance will not adversely affect water quality, a.

A

Result in the environmental degradation condition on or off site and ice. My response to that.

A

Was the applicant has stated that the proposed preservation mitigation are sufficient to offset.

A

The proposed environmental impact of releasing the forest conservation easement, so I did not have an.

A

Issue with that, however, there were two other items which we've already talked about items number one.

A

Number three which they did not meet, which is why I had to deny the variance. Oh, you could, okay, so.

D

If mr kuhn complied with the forced conservation, ordinance, meaning no, no variance, okay,.

D

Do you agree he would then be forced in order to exercise his off conveyance rights, to attempt to.

D

Relocate the off commands to the northern portion of the property, as you refer to it.

D

No okay: what would you where, where could he you've you've analyzed where he could move.

D

The off commands to well when he, if he wanted he well, let me back up. Does mr [ __ ] appear to.

D

Have all commands rights to this property this this one acre is a he's eligible for it. To my.

A

Knowledge, yes yeah. I mean he's eight ten months into the process. Okay, so he's eligible for an.

D

Off demands, he owns a property, that's eligible for an alternate. It's correct! Yes, all right. He.

D

Wants to put it here right where the here, where we applied for it, he wanted to put it there right.

A

That's where he applied for it, yes, but that was he didn't really want to. He really wanted.

D

To put it elsewhere, is your testimony correct, which I disagree with, but he he applied to put.

D

It here right, yes, okay and you're- telling him you don't want him to put he. You won't give him.

D

A variance to allow him to put it there because he can put it somewhere else, doesn't that equal.

D

That he would be forced to to relocate his off conveyance. If you don't give this variance.

A

No there are, there are a lot of constraints when you're going through a development process. There.

A

um He could propose to put the off conveyance in the middle of morgan run, but there are physical.

A

Constraints there in this case there's a legal constraint which is the existing easement, which.

A

County code says cannot be released, and that is a constraint that the developer needs to.

A

Work through and because there is a viable option, one that they indicated, that they.

A

Would prefer because it was cheaper that to me is a viable option, a reason not to.

A

Request not to allow the variance of releasing that easement, I'm going to try one more time.

D

If he, if the property owner is not allowed to put the off conveyance where he applied for it,.

D

Do you agree with me that we'd have to relocate it to another place on.

D

His property or try to try to relocate it yeah, if he's not allowed to put it in one location,.

A

He would have to put in another right and if he did that and you you in fact specifically.

D

Identified a place where you thought he could put it right or should put it right.

D

The northern portion of the property- yes right- okay and you- google earth- did.

D

And looked at the soil types and stuff like that right: okay! Now, if he did that.

D

He would then need to go through. We I'm not going to get into the special purpose. Plait.

D

Etc, right yes, okay, and that would involve addressing the water resource conservation.

D

uh Ordinance, the forest conservation easement, yes, the storm, the stormwater regulations, yes,.

D

Health department, regulations etc. Correct, yes, but those are not hardships just a minute. Chris.

D

Well, you can say that go ahead if he did that he would do that for the purpose of locating a single.

D

Family house, on a one acre lot correct or about one, a minimum of one acre lot right. uh No, what.

A

um Strike that if he did that he would be doing it for the purpose of getting eligibility for a.

D

Building permit for a single-family residential structure, correct, yes, okay, and if that occurred,.

D

And if he got all his approvals and if there weren't environmental constraints.

D

That prevented him from using that land if all the in the health department, the perks, worked and.

D

It all worked and the sight distance was okay and all that good stuff. He would then build a.

D

House there or be eligible to build a house there right. Yes right, do you do you believe.

D

That would result in an environmentally degraded condition on the northern portion of the property.

A

No, if you meet all applicable codes, then it would not.

D

It, wouldn't you, you, don't think, putting a single family house on.

D

A vacant piece of ground infects, the environment.

A

So we're getting into semantics, then, as far as allowable impacts and and impacts. So yes, there would be a theoretical.

A

um Environmental impact, but it's allowable through addressing the appropriate county and state and.

A

Federal codes now I'm specifically referring to 150.33 c1, the you know you like the c-section.

D

Of that code, so let's talk about c1, you don't like the a section, but you like the c-section.

D

What c1 say: c1 states describe the special conditions or exceptional circumstances.

A

Peculiar to the property, which would cause the undue hardship or that prevent the applicant.

A

From complying with the subchapter with on-site or off-site mitigation, and evidence that compliance.

A

Would result in an environmentally degraded condition on or off site? Okay, so so you understand.

D

That we just talked about whether I'm not going to go over it again, but whether or not that moving.

D

Into another place is going to involve development on another portion of the property right.

D

Correct, okay and- and you mean, let's be honest- well not honest- I mean I am almost but um and.

D

When somebody tells you they're honest you better watch out, um this is an environmentally tough site.

D

Isn't it chris, it's got morgan run running through it. That's yes, it is so any any development on this.

D

Site is going to have environmental challenges, isn't it? Yes? Yes, they all do don't they. They.

A

All do yeah all right now. um Can you look at uh where you've got that uh 150.33 e capital e.

A

Yes, okay, did you provide that notice to the maryland department.

D

Of natural resources within 15 days, of the receipt of the request for the variances.

D

So when I process the variance request, I then provide it to mr bowman and mr.

A

Bowman addresses that do you know if he did it or not? I do not know good.

D

Do you know if dnr uh sent in an objection or to this variance request? I am not aware.

A

Of any good, if, if you were aware one, you would have cited it in your uh decision, were you not.

D

Would you not yes, okay, like I'm almost finished with him, um may I request a five-minute recess.

B

No objection, thank you.

C

D

um I'm I am almost finished, but I have a couple more questions. Mr hein.

D

Do you does your file reflect that this off command's approval or this all convenience.

D

Application has received all necessary approvals, except for forced conservation.

A

I do not have a file to that effect. Okay, okay, well, we'll put that on another evidence, but the.

D

If this were well, never mind done done now, do you do you know? Have you ever met the members.

D

Of the board of appeals, yes, I have okay how what was the occasion uh we had a uh another appeal.

A

Hearing, when was that july july, thereabouts, okay, do you know them from them being on the.

D

Members of the environmental advisory council- yes, sorry you can answer, I'm just objecting.

B

For the record yeah, so uh yes, uh the board of county commissioners have appointed them to the.

A

Environmental advisory commission, uh which is um uh its advisory to the county commissioners,.

A

The appeal process, in this case it is up to the county commissioners, whether they want to hear.

A

It or appoint a committee and in the two previous examples of an appeal of this sort, we have relied.

A

On the volunteers from the eac to preside as the as the board for these types of hearings, in fact,.

D

Your department staffs the environmental advisory committee. Does it not? uh Yes, one of my employees.

A

Is the employee representative that works with the eac? Do you ever appear in front of the ac.

A

Oh I've, I've presented and talked once or twice yes and you haven't talked to anybody on this.

D

Panel about this case prior to no absolutely not okay. Thank you. uh That's all. I have.

E

Any cross: um well, I just a point of order, so uh mr hein is my only witness.

B

um So I was just wondering if I could just put on my whole case now, while he's.

B

On the stand- um and I have no objection to that- uh just out of interest of time.

B

And um because I'm doing it that way, I would uh be happy to give the floor to any of the uh the board.

B

Members who want to ask uh mr hein questions of his testimony regarding the questions from.

B

Mr schaefer okay go ahead, so they can ask questions. Well, the only thing as soon as.

G

That map arrives wherever it is. I'd like to take another look at it absolutely well. We can.

B

I mean yeah, that's coming up in my case, so you can ask questions now or you can ask questions.

E

After the end of his presentation with mr hines, so either one either one, you could do. Why don't you.

D

Introduce it for identification and if he wants to, I mean maybe you're coming it's coming. I don't.

D

Want to force you, okay, okay, okay, mr hein. Thank you. Several questions. You've already answered.

B

So, as uh mr hannah as you've stated that in your position as director landon resource management.

B

You have experience with uh forest conservation easements. Is that correct? That's correct.

B

um And are you familiar with the property located at 3033, salem bottom road? Yes, I am okay.

B

B

Picture yes to the best of your knowledge, this is a fair and accurate depiction of.

B

The property located yes, it is. I would like to introduce this, as exhibit one.

B

So I'm just going to keep this, can I can I see a little closer? Does.

D

That come off that board. It does okay, good yeah and I have um clock for you.

D

You have a paper copy for me. I do give me one second.

B

Is this okay, that's good to find it. I have it somewhere. I swear.

C

B

B

You know why don't we just go up with the map, so sure we're going to be pointing things out and.

B

Clark you can have, um I was going to suggest that or I'd go over there, whatever you want shorty.

D

Yeah: okay, perfect.

B

Chris, can you please uh actually is there a far conservation he's been on the property.

B

Yes, there is, and can you point out where it is yes, it's this green area here, okay, so for.

B

The record is that green sort of triangular uh area on the map- yes, okay- and what is the.

B

Purpose of a forest conservation easement it's to preserve a environmentally sensitive areas.

A

In this case related to forest, and did the owners request a variance from the forest.

B

Consultation easement, yes, they did. Okay and specifically, they requested relief from the.

B

Policy protecting what are known as priority one trees, that's correct, okay, which is not allowed.

A

Correct and what is a priority? One forest? It's a! I will go off of memory again. This is not my.

A

Area of expertise, and mr bowman could speak to it more specifically, but to my remembering it is.

A

Forested areas that, due to steep slopes or water resources, are a higher priority than other forests.

A

So that was that's the designation of what creates a priority one for us and the applicants.

B

Submitted a variance uh request is that correct? Yes, I'm gonna be coming up with my exhibit too.

A

Okay, so just for reference, this is morgan run through here. It's not obvious. This is.

A

The north side that we're talking about- and this is the south side over here- hey chris, yes,.

D

Not fair understood, I need to hear what you say to him. Well, I know.

D

Apparently, there's only one of us: no, I have infant honestly. So, uh mr heinz, so you just.

B

Testified that you received a variance request for this for the forest hydration. Yes, okay, is this.

B

A fair and accurate depiction of the letter you received is that the one day to march yes, okay and.

B

Oh yeah they're, free.

B

um I would just like to introduce this uh exhibit too no objection into evidence. Okay,.

C

I apologize as I'm getting organized.

C

All right so, mr hein and I know we've already done this, but I I think it's very.

B

um Important to reiterate, um can you please read the highlighted section on exhibit two.

B

Sure it says the location of the offcome van slot was not just haphazardly chosen. Ideally.

A

The lot would use the existing driveway entrance and access located on the north side of morgan.

A

Run, making a much more cost effective option. It was deemed not possible due to steep slopes.

A

Existing improvements associated well and septic area. You want me to continue. Yes, um additionally,.

A

The owner developer is a contractor by trade who performs perp tests and install septic systems.

A

And it was determined that any usable ground on the north side of morgan run would not support.

A

A sewage disposal area, just a potential septic system replacement area for the existing house.

A

Therefore, the only area that supports and supported the sewage disposal area.

A

Is the approved perk, tested area on the south side of morgan run.

A

These reasons, which are not based on conditions or circumstances which are the result of actions.

A

By the applicant or why the owner is requesting a variance to remove to remove a minimal area.

A

Of easement, as mentioned earlier, it would have been more cost effective and efficient. Had the.

A

Off convance been able to be placed on the north side of morgan run again. That was the this is.

B

The variance request- yes, okay, and so can you just point to what uh we sort of have been colloquially.

B

Referring to as the north side of the property, yes, so we've used morgan run as the the defining.

A

Line so this is the north side of morgan run. This is the south side of morgan run. Okay, more.

D

Accurately the north area will be like this, would it not on this area? Yes, so, can I ask a question.

G

So this is the conservation, that's the easement, yes easement- and this says is this: the proposed.

G

It's in this area on the south side of [music] yeah, that's what I was like, okay and in order to.

B

Get to um well for the proposed off conveyance they're. um They want to build a residential lot.

B

Is that correct, that's correct, okay, and to support that residential lot.

B

Are do the applicants want to build a driveway to that lot? Yes, and where are they proposing to.

B

Build that driveway, maybe john, can point to the very specific location since it's not shown on.

A

Here but generally, it would have to go through the protected easement, which is why we're here today.

H

Absolutely a driveway on the northern portion. Would the house also be located.

F

On the northern portion, or would they have to cross morgan run with the driveway.

A

And access it and so on, they just have to conform to the the appropriate codes. So.

A

If they wanted to build over here, but build a bridge across the morgan run.

A

And they went through all the appropriate requirements. They certainly could do that.

B

um All right, mr heinz, so again, another question yes, so this is proposed um con easement, uh no.

A

This eastman is an existing eastway no, but this is proposed. According to this map proposed kind.

G

Of what is that? Where is it so so that area is maybe john can point to it. So as part of the off.

A

Conveyance and please correct me if I misspeak um as part of the proposed off conveyance here, they.

A

Were going to put additional area into easement, did I accurately that's correct? Okay, I can answer.

D

That one yeah I just want to make sure I'm not okay and not only going to, but we're required.

D

To do so in order to achieve a water resource conservation, when would this become what does.

G

It take to go from proposed forest conservation to um an easement. That's a legal process. Yeah.

D

You execute an easement uh sign it and then it's recorded as a condition of the offerings approval.

D

The way the system works is it's all based on building permits and you can't get a building.

D

Permit to get off the mains approval and you can't get off your main approval to you. You deliver all.

D

The documents you promised you were going to deliver, including these easements okay, does.

F

Anyone know why this particular strip is part of the easement and say this part: isn't we do or yeah.

F

Testimony would be he bought this this piece as an add-on peace five years ago. No, it's okay.

D

And he didn't know what he bought. I think 50 I think 15 000 for it from a neighbor okay. He.

D

Thought he was buying access to where he wanted to put himself in his life. He didn't know it had.

D

A forced conservation he's wanted his fault, it was, it was recorded in the land records there.

D

Was an easement on it? Okay, but he didn't find out about that until again, his fault. He should have.

D

Known until this came up that john lemmerman have said it yeah and then, when he found out about it,.

D

He said: well, we got to ask for a variance yeah and that's that's. Okay, that's where we are, but what's.

F

Special about this triangle- that's not special about this area, so this is an existing easement.

A

So it was created as part of the development that occurred over here. Okay, so with this previous.

A

Development had to put the property into easement if this, this also is an easement on this side.

A

As part of that development and that property extended onto this side of salem bottom and so.

A

Then, as mr schaefer just indicated, this property over here was sold to the cones okay, with the.

A

Easement already in place right, the easements that are shown here are proposed easements as part of.

A

The off conveyance development process just seems strange that this is disconnected, and I mean this.

G

Is all part of really yep so yeah this this one? This parcel and extended onto this side of uh say.

A

On the bottom road and when they developed it, they had a requirement to put so much property.

A

Into easement and because it was over here- and they really couldn't do any development as part.

A

Of what they were doing here, that was an obvious place to put it as well as it's a priority. One.

A

For it, so that's the type of force that we would prioritize in wanting to preserve. Okay,.

I

So that driveway would go through the proposed easement area. Also, yes,.

I

We're going to show you photos, but- and it's but yeah right through here. Where would the lot be to.

D

The house, uh you can see john, can you point it yeah see that corner there is this. It is so.

H

So this triangle piece he's the uh my witness he's a surveyor from rtf.

D

Good john, thank you speak up, so that makes will pick you up. Please right so this triangle here.

H

On this exhibit flat is the eastern area, so the line that sits like right here so there's.

H

Going to be a small sliver about right here, just wide enough to get access through yeah.

H

Which you can see, which would be this little rectangle there and you, may I don't know if.

D

I detect this was a question, but it's not I apologize, but it is somewhat unusual as.

B

uh Clark are you testifying? This is mine, I'm trying to explain it, but you can. I was allowed.

C

To explain that when it's your turn, okay! So, um mr just to reiterate in the uh variance request that.

B

um They said that it would be more cost effective to have the off conveyance on the northern side.

A

Correct yes, because on the northern side, as you can see here, they've got an existing driveway.

A

Back to an existing residence right and so the cost and so on, associated with getting.

A

The driveway and so on, that's already in place and that driveway wouldn't be going through any.

B

Forest conservation, correct amusements. um They also said that um not the impossible due to steep.

B

Slopes and existing improvements, as well as uh septic area, that's correct, so essentially.

B

It's your understanding when you read this, that um the northern part of the property.

B

um For lack of a better term just can't handle the uh residential lot from the.

B

Often vans, which is why they requested uh to put the open banks on the southern side. Yes,.

G

I don't understand those words um yeah. Could you use the library yeah absolutely and do you.

A

Want to grab the next example. Yes, we'll step you through each of those those statements and.

A

One thing yeah, which one is the residence on the northern side. I believe you can correct me.

A

If I'm wrong, this is the residence down here yeah. This is where we live right here: okay,.

B

I would like to introduce into exhibit three a map of the same property, 3033, salem bottom road with.

B

um Contour lines that detail these steepness of the slopes on the property; no objection as.

B

um Exhibits yes, exit. Three, I'm calling it opposition exhibit three. uh So mr.

B

Hyde, can you just for the record and for the board, explain the difference between.

B

Or what these contour lines mean and the difference in the width sure of the lines.

A

So if you're not familiar contour lines indicate lines of equal elevation right so everywhere, along.

A

A single line is the same elevation and steepness would be indicated by how close or far apart those.

A

Lines are so if lines are very close together, it's very steep if they're far apart, it's relatively.

A

Flat in comparison to the steepness, and so in the variance request, it indicated that they couldn't.

A

Despite wanting to, they couldn't put it over here, because it was steeper here than here.

A

And when I looked at that to validate that, I looked at this. The contours here relate and.

A

Related to the contours over here- and this to me- is a much flatter area, so I don't see how that.

A

Argument stood the test of looking at the physical properties, except do we know if there's any other.

G

Issues putting a house there because that's where the house would have to go then right. So there may.

G

Be other issues exactly, but you don't know about it. I don't know you had to go based on what the.

A

Evidence that was provided to me now this is from a lidar map. Lidar data. Can you just explain to the.

A

Board but sure data means yeah, so lidar is data is produced by an airplane flying over. It has a laser.

A

That scans, it takes those returns and it basically creates billions of points and then those points.

A

Can be turned into a contour map because those points have an elevation of elevation information.

A

Yep, it's amazing yes, very expensive, but very accurate. Yes, yes, it is. Is that what they call.

D

Fluent topography, um yes, you can do that on drones. You can do that in aircraft as yeah.

B

It's my understanding is an aircraft right. Yes, yeah they're, saying there's.

I

This is not steep enough that it would be a hindrance. Is it more like up in this area.

I

Where it gets a little flatter yeah, so that's that's what they're proposing as far as the.

A

The off conveyance is putting it up in this this flatter area. It still is going to be a torturous.

A

Sight to try and build on, but that's we don't evaluate on that. We evaluate on what the code says.

B

um The request for the variance also um provided that um there were existing proof improvements.

B

On the northern side of the property um that I guess prohibited um and often means residential.

B

A lot from going on the northern side, can you point out those existing improvements.

B

Please yeah so based on the aerial, I'm just looking at the developed type areas and so.

A

There's the existing house and then some some outbuildings and so on and from this area here.

A

Is what mr schaefer has been discussing, which is what our zoning administrator has.

A

Determined is a unpermitted contractor's equipment storage. That's not accurate.

A

Okay, there's been no determination by the zoning administrator in this matter. Okay, semantics.

B

Mr heim, would you say that this.

B

Just grouping of material and buildings is an improvement on the property. Yes, it is.

G

Chris, can I ask a question? Yes, so you you wouldn't put it there you're a lot. I mean you're, not you're.

G

Not you wouldn't prefer to put your house there, because it's not as deep it's not as beautiful a.

G

Place as this it's obviously, this is going to be a lot better for the house and prettier preferred.

D

Yeah I mean that makes all the sense to me in that this is more beautiful. The location for the lot.

G

Versus over there, which all these structures in there, so there is some issues: [music] okay,.

B

C

B

B

And then swords map not yet.

G

Mr because that's the word I was trying to think of aesthetics, aesthetics are much better.

J

In southern side,.

G

Is that why you're we're in pause is that a man-made pond.

A

Yes interesting fact: there are no natural ponds in the state of maryland.

G

Yeah we're too far south and we didn't have glacial.

A

Action that created natural ponds and lakes.

D

Decrease, not natural nope, mr hein. Yes,.

B

um Did was any evidence in regard to this variance request provided to you regarding.

B

um That the ground is not suited the north, the ground on the northern part of the property is.

B

Not suitable for development because of um it wouldn't support a sewer disposal area.

A

The statement was made sort of qualitatively that, because the property owner is in the.

A

Business that they did not feel that there was any suitable area, but there was no no perc tests. No no.

A

Quantitative information related to the north side of the property. So it's fair to say they.

B

Made a claim correct: they did not provide any evidence to back up that claim. Correct.

B

Now for septic systems.

B

um Is the type of soil important to the approval of a septic system? Yes, because you.

A

um Septic system is looking to drain the liquids off into into the ground. Is it fair to say that.

B

The tuck of soil would be determinative on whether or not a septic system can be installed. Yes,.

D

And the objection is he's not an expert in that area and I don't know how he can testify as to.

D

The unless he is septic systems and soils and how you get them in a professional engineer, mastered.

D

In the state of maryland, I know you are okay, so a rejections noted. um I would like to introduce.

G

um One other question um is: is the permeability is, uh could you put a well in there and is that.

G

An issue we're getting to that okay: does this house have a septic system.

F

Does anyone know s, I see I assume it does but yeah existing.

F

Is it does the existing residents have a septic system? Yes, okay,.

B

Yeah I'd like to introduce, as respondents exhibit for a map of the same property.

B

3033 salem bottom road: it's a hydraulic soil group map um again the same property overlay.

B

I can't mess with the gases, so um can you explain to the board what the different colors on this.

B

Map represent yeah, so this is a hydrologic, soil group mapping and that's produced by.

A

Nrcs, which is a national resource conservation service and are they part of the united states.

A

Department of agriculture- yes, yes, they are yep, and so the the colors represent the hydrologic.

A

Soil groups are grouped into four categories: a b c and d, and they kind of generally describe.

A

um Characteristics of those soils, the primary one being how well drained infiltrainable, they.

A

Are and so an a soil and and is the most it can infiltrate the best a desoil, the least.

A

And, as you can see, from the legend, most of the the predominance of the property is hydrologic.

A

Cell type b, which would indicate that is well drained down through here, where the pond is.

A

That, because of the pond and so on, that's d and then, where the stream channel that's type.

A

C so, generally speaking, one looking at a map like this, what could infer that the areas that.

A

Are in blue would be well drained and would support septic diseases. How is this map made.

F

Yeah any idea, it's it's! A national um data set that's produced by nrcs, but.

A

It comes from a national organization from a united states cabinet department.

B

And so um the type b soil- and you might have said this- it's.

B

Well drained and would theoretically support percolation, yes, okay and type.

B

B is on both the north and south sides of the property. Yes, it is.

B

Any other questions regarding the maps to the board members permeability is good.

G

Okay, let's finish with the maps for now, would you like me to leave.

A

These up here for your reference, um where they can see them yeah sure this one here.

D

This could be our library, yeah.

C

Okay, so, mr hein, you received a variance. This is why we're here a variance request. Yes,.

B

For this property and um in evaluating variances, do you look to the county code.

B

Yes, I do and in evaluating the bearings for a forest conservation appeal, do you look at.

B

150.33 variances, which has already been discussed. Yes, I do um in um evaluating forest conservation.

B

uh Variances you look at water resource variance appeals under the water resource code. No, you look.

B

At any other codes, when you're evaluating a forest conservation, no state statutes, federal statutes.

B

When you're evaluating a forest conservation, easement variance request, you follow the.

B

uh 150 33, which is the forest conservation code in carroll county. Yes, I do.

K

B

One second, as I pull out into it,.

B

Right there and you received a forest conservation.

B

Variance requests for this, which you ultimately denied is that correct, that's correct. I would.

B

Like to introduce into evidence your denial letter um clark, I have a copy, I don't know if you want.

B

Another copy it's from august 15th. Well, if you've got an extra one I'll.

D

Take it, but so it has because he has the exhibits, marked on that's helpful to me.

D

B

Mr hein, can you please read to the board the.

B

um The letter- I guess, starting with um per the request of mr schaefer, can you just read.

B

From that point, on sure per the request of mr clark schaefer attorney for the developer, I.

A

Have proceeded with review and decision regarding the variance request for the [ __ ] property. It.

A

Is my determination that there is a reasonable potential for the off conveyance to be located.

A

On the north side of the property and thereby not require the extinguishment of the existing forest.

A

Conservation easement. I have therefore disapproved the request for variance my findings. Report is.

A

Attached to this letter, you want to continue with the next paragraph for um so hold on one second.

B

B

You provide also in that letter your findings. Is that correct? Yes, it is. Can you please read.

B

To the board, your findings um with regard to the variance request are we: are we going to really.

D

Read three or four pages of findings: it's already. It's been an hour and 45 minutes on your testimony.

B

I would like to spend at least 20 minutes on mine. I object it's in the record. It speaks for.

D

Itself, I don't mind him testifying about it and I don't mind him cherry picking, some stuff out of.

D

It, but I think it's well object forward, we'll allow it and give it the weight it deserves.

A

Okay, this application for variance v fc22009, submitted by john lumberman of rtf request relief.

A

From the carroll county procedure for release of force conservation, easement documented in l3 of.

A

The carroll county maryland to forest conservation, technical manual, the manual the policy for.

A

Which relief is requested is that priority one forest is not eligible for release of easement.

A

The specific request: can you hold up for right there so that priority one forest.

B

In uh opposition exhibit one that represents the uh sort of triangular.

B

um Marking on the map is that correct? Yes, I'm going to object here and I'm going to explain my.

D

Objection, I have not objected to repeated. Excuse me leading questions from mr almond of mr hein.

D

Because in most instances I felt that they just moved the case along and it were not objectionable.

D

But what is occurring and on this one, it's substantive is mr almond posits an answer.

D

Do you believe that the reason the priority one forest was mr heinen goes yup and then, mr almond.

D

Testifies again and says, and wouldn't you say that that's the reason why the you know I'm that's what.

D

He just did on that question. Is he he said it and then mr hyde says yup and then he goes well.

D

Wouldn't it be yup, we need mr heinz testimony based on non-leading questions, especially when.

D

His own attorney is asking the question: this is not cross-examination where you, you could presume.

D

Mr heim is an adverse witness and doesn't really want to say stuff he's testifying for him, so I.

D

Object to it, I was asking mr hein to read the uh his letter and for the advocation and just for the.

B

Help of the board members to point out what he's referring to, um but I I will bring that up in my.

B

um Closing so you can continue with reading the letter. The specific request is to release.

A

A portion of priority one forest easement to allow for the construction of a driveway.

A

To support the development of an off-convance residential building lot, the subject: property.

A

Is located at 3033, salem bottom road westminster? The property is bisected by morgan ron with an.

A

Existing residence to the north of the stream and undisturbed forest to the south of the south of.

A

The stream, the applicant desires to subdivide and off conveyance on the portion of the property to.

A

The south of morgan run to facilitate access to the property south of morgan run the applicant.

A

Obtained 1.132 acres of property adjacent to salem bottom road that was owned and owned.

A

By morgan run stables llc in 2019., the 1.132 acres includes a 0.58 acre force conservation.

A

Easement that was created in 2009 as part of the residential subdivision, the view at morgan run.

A

Given the steep slopes and proximity to morgan run the forested area within the subject, easement is.

A

Rated as priority one, as defined by the manual, the location of the forest conservation, easement.

A

Is such that access from salem bottom road to the remainder of the southern portion of the property.

A

Cannot be achieved without release of a portion of the easement, the applicant has requested a.

A

Release of 0.084 acres of the easement to allow for the construction of a driveway to a proposed.

A

Residential dwelling, the applicant is requesting a variance request pursuant to section 15033 a1.

A

Of the carroll county code, which states that a the county may grant a variance from any of the.

A

Technical requirements included in this subchapter if there are exceptional circumstances that.

A

One strict adherence to the provisions of this subchapter could result in unnecessary hardship.

A

Or environmental degradation, the applicant asserts that compliance with the policy and the manual.

A

That extinguishing extinguishment of priority on forest is not permitted is an unnecessary hardship.

A

Pursuant to section 15033c, the applicant must submit a written request for a variance which.

A

Meets the following requirements: number one describe the special conditions or exceptional.

A

Circumstances peculiar to the property which would cause the undue hardship or that prevent the.

A

Applicant from complying with the subchapter with on-site or off-site mitigation and any evidence.

A

That compliance would result in an environmentally degraded condition on or off site the applicant.

A

Claims a new hardship and that the right to develop an off conveyance on the subject, property.

A

Is not possible due to the restriction of the forest conservation easement. The applicant asserts.

A

That, due to several factors that development of the office off conveyance on the north side.

A

Of the property is not feasible and therefore must occur on the south side of the property.

A

The applicant states, development on the north side of morgan run was deemed not possible due to steep.

A

Slopes, however, lidar data and derived contour mapping indicates that there are many portions.

A

Of the property north of morgan run that are substantially flatter than the proposed area south.

A

Of morgan run the variance application states. The owner developer is a contractor by train.

A

Who performs perk tests and installs in septic systems? And it was determined that any usable.

A

Ground on the north side of morgan run would not support us to a disposal area. Just a potential.

A

Septic system replacement area for the existing house, however, no evidence was provided regarding.

A

Actual percolation test date on the north side of the property. Furthermore, hydrologic soil mapping.

A

From the natural resource conservation service represents that the predominant hydrologic soil.

A

Type on the north portion of the property is b, which is characterized as well-drained.

A

Soils and would theoretically support percolation. Additionally, no discussion was.

A

Made regarding the feasibility of alternative solutions such as sand, mound, septic systems.

A

Available evidence indicates that the development of an off conveyance may be feasible on the north.

A

Side of the property, thereby allowing the priority one force conservation, easement.

A

On the south side of the property to remain intact, without causing an undue hardship to the applicant.

A

Should I continue number two demonstrating sufficient detail that the granting of the.

A

Variants will not confirm the applicant a special privilege and that would be denied to other.

A

Applicants, this request is not viewed as a special privilege that would be denied to other applicants.

A

Number three demonstrate insufficient detail: that the variance request is not.

A

Based on conditions or circumstances, which are the result of actions by the applicant.

A

The applicant has chosen to pursue the development of an off conveyance lot on a portion of their.

A

Property that requires the extinguishment of a priority one force conservation easement that.

A

Is specifically prohibited by county policy, the applicant states that the off conveyance.

A

Must be developed on the south side of the property because the north side was deemed not possible due to steep slopes, existing improvements and associated well in septic areas.

A

As discussed in item, one above evidence has not been provided regarding limitations of steep.

A

Slopes or well in septic systems septic areas regarding existing improvements. This includes.

A

An unpermitted contractor equipment storage yard, which should not be an impediment to the.

A

Permitted residential development right, therefore, the conditions and circumstances of requiring the.

A

Variants are the result of action by the developer, both in creating the unpermitted use and in the.

A

Choice of location, the proposed off conveyance number four demonstrate insufficient detail that.

A

The variance does not arise from a condition relating to land or building use, permitted.

A

Or non-conforming on a neighboring property, this request is not viewed as a situation arising from.

A

A condition on a neighboring property number five demonstrating sufficient detail that the granting.

A

Of variance will not adversely affect water quality result in environmental degradation.

A

Condition on or off site the applicant has stated that the proposed preservation and mitigation are.

A

Sufficient to offset the proposed environmental impact of releasing the forest conservation, you.

A

Spent it is found that the applicant has not met the requirements of section 15033c1 and three.

A

Of the requirements for approval of variance, therefore, this request is not consistent with.

A

The spirit and purpose of chapter 150 and the variance is disapproved you can take a drink.

B

Before I ask you, I'm good, thank you just a few uh questions and then I'll be done. um Is it fair.

B

To say, mr hein, that this is the reasoning in which the variance request was denied yes and.

B

That variance request is what was introduced as oppositions exhibit. Two applicants exhibit five.

B

B

Pursuant to uh county code, 150.33 requesting a variance from the technical requirements release.

B

Of forest conservation easement? Yes, so it was a variance for the forest conservation easement. Yes,.

A

B

And that variance was denied. I apologize was denied because.

B

The information and the evidence provided by the applicant did not, in your opinion,.

B

Amount to the unnecessary hardship requirement to grant a variance objection, leading he's going to.

D

Say yes, we all know that, but he's not testifying. I think we should let him give the answer. Yes,.

B

B

When you were considering the forest conservation variants, did you look at the water resource.

B

uh Management code, no.

B

I have no further questions at this time. I do have some cross.

D

Is now the time? Yes? Okay, so I heard you say you didn't look at the water resource code.

D

um When you were considering the variance, but were you aware that this off commands application.

D

Was in process and being reviewed through your department at the time you looked at this variance.

A

Yes, because you had previously granted a water resource conservation, easement, correct, yes and.

D

You so you were familiar with the property, at least from that perspective, correct, yes, and and.

D

When you granted that what a resource you didn't know about the contracts, equipment, storage, yard.

B

No again, this has been asked and answered. Well, I didn't remember the answer, but apparently.

D

He's saying no um and then or how familiar so are you you're, you're, you've you've testified.

D

As to your familiarity with the property and showing the maps and.

D

Pointed out soil types and stuff correct: yes, you ever visited the property. No, you.

D

Ever conducted any physical tests or inspections on the property, no okay.

D

You have taken great pains through your attorney to introduce evidence.

D

That suggests that the northern portion of the property is buildable. Is that correct.

A

I don't know if I would categorize it at great pains, but we haven't provided the information.

A

That was available to me as part of this review, so you did a paper investigation.

D

Of the environmental characteristics of this property and then came to the.

D

Conclusion that the northern portion was buildable correct. Yes, I need to make a.

A

Determination, based on the evidence provided to me and common information, that's available.

A

For my analysis, okay, but you don't know if it's really buildable do you. I do not. Okay.

D

Many a slipped twix cup and lip when it comes to trying to get a building lot permitted correct.

A

You'll have to define lots of things happen that can prevent you from getting a final.

D

Governmental approval, after a year or so of review, is that correct? There is a process that.

A

Development requires that we go through based on county code, yes, and and on I mean the health.

D

Department requires perk test. You think they'll be successful. Based on your investigation, correct.

A

I was not provided information that would that substantiated, that perk test would not work.

A

On the north side, let me ask the same question: based on your investigation: did you testify that.

D

You thought that perk test would be successful on the northern portion, I'm not asking if they.

D

Would be, but did you think they would be there's a better chance that they would than not? Okay and.

D

The well you didn't do any kind of hydrological uh study. Did you so you don't know if a well is.

D

Good up there right nope did you look at the site distance where the driveway would enter.

D

That, uh if it were located where it would uh enter the new, the northern portion of the site, no okay.

D

Do you know, do you know well never mind? I I've made my point there. All right so am I.

D

To understand, then, based on that testimony that the essence, aside from the contrary, storage yard,.

D

That the essence of your rationale for denying the variance was you could locate this on another.

D

Portion of your property, this ultimates, the variance application, did not substantiate to me.

A

That that was not an option. Is it your testimony that, in order to get a variance, a variance.

D

Application must substantiate that to you. Yes, remember my hypothetical about the hundred acre.

D

Farm and the guy wants to take one acre off in the front. I recall you mentioning that, and he needs.

D

A water resource concert or he needs an easement for his conservation easement from a priority. One.

D

Forest in order to do it because that's where he wants his son to live, it's hypothetically remember.

D

That I remember you talking about that. Yes, and I ask you, do you and analy and would you if you.

D

Analyze that would you, then look at the rest of the farm and determine whether or not there was.

D

Another place that again same investigation did here. Look at the maps, give them and say.

D

I'm not going to give you this variance, you could put it over here. Would you do that.

A

I'm I can't answer to hypotheticals. I look at all the information presented to me in the variance.

A

Request, okay, but you did that here, yes, and that's one of the reasons you turn down the variance.

A

I turned down the variance because the indications were that the preference was to be on the north.

A

Side and that there were factors, as listed in the variance request that prevented that.

A

Again that a it is a constraint, a legal constraint to putting the property on the.

A

Southern side and development needs to work within all of the constraints. I understand.

D

I I understand why you're reading your decision, but.

D

If I make a variance application and in it I make a statement that is not supported.

D

Okay, in other words, you, which you're saying that's the case here, right that the application.

D

Contains a statement which is basically can't use the northern portion or its restricted use.

D

And you're saying that's not supported right, correct, okay, so that's part of a variance.

D

Application right does that disc go ahead. Does that disc? Does that then end a story disqualify.

D

The person from getting the variance do if they have other reasons why they might have a hardship.

A

No, and actually, if you recall my first response to the variance, was that I could not hear it.

A

Because of the contractors, equipment, storage, yard and then at the end of that, I recommended.

A

That additional information be supplied. But then your request was to go ahead and move.

A

Forward with reviewing the variance request with the info with the data provided chris.

D

What you said is further information required. What you said is, I will not consider your variance.

D

Application until you clean up the contractor's equipment, storage yard, and when you do you.

D

May submit another variance application with additional information. That's what really happened.

D

And it well, yes: okay, we're talking semantics, it's essentially indicating the same thing.

A

Which is that there was not enough information from my perspective and I was recommending a.

A

Course of action, which would substantiate their claims and in real life. I think you testified.

D

And I'll ask you I'll ask you in real life, the practical effect of that letter would have been.

D

That the applicant could not achieve his off conveyance approval for approximately a year.

D

And a half to two years, but that is not an undue hardship. Well, I didn't ask you whether it was an.

D

Undue hardship- I just asked you if that was true in real life. That's the effect of that.

D

Letter right, yes, but you don't think that's a hardship. It's not that's the process. Do you.

D

Think it's a hardship that mr kuhn applied for a off conveyance in august, 30th 2021 achieved all.

D

Achieved all agency approvals, except this one and then found out, including a variance from your own.

D

Department indicating you were, you were familiar with the property. At least your department was, and.

D

Then was told on the date of your letter. Sorry bud can't put it can't can't qualify, no off conveyance.

D

Approval for you, do you think, that's a hardship to a property owner. No, that is the process. Well,.

D

What the off conveyance application filed in uh august 30th 2021, contained evidence that there.

D

Was a force there were forced conservation easements on the property today. Did it not.

A

I can't speak to that. I did not see it well. There there's a title report in there that refers by.

D

Labrinfolio number two: the forest conservation easement. Do you deny that that's the case.

D

And then the county 10 months later or whatever I don't know there says sorry.

D

Okay, I'm sorry, I already did that, um but but I think your answer is.

D

It's not a hardship in your opinion. No, the county has a process for development, as outlined in.

A

Chapters 155. now your testimony with the maps um and I'll just I think everybody remembers.

D

What, basically, what it was was designed to be a tabletop [music] to evidence, a table.

D

Top look at a piece of real estate to determine its eligibility for development. Is that correct.

A

No, I would say that we were looking at the evidence available to myself and making the.

A

Determination of the variance request. Well perhaps the word tabletop was not clear, but you never went.

D

To the site, you didn't get any studies, you didn't do anything other than look at paper.

D

On a computer screen or or real paper, is that correct? That is correct, because the burden is.

A

On the developer, to submit the information for my review? Well, not here, because the developer.

D

Didn't have any obligation to present evidence to you on the northern portion of the property diddy.

A

When the argument was is made that the preference would be on the northern part, but it's not.

A

Possible because of certain factors, then information about the northern part of the the.

A

Property is certainly applicable, well, one inches for it shortly after february, 22nd 2022, then why'd.

D

You wait six seven months to ask for it. I did not see this variance request until june 15th. Well,.

A

I mean it was in your department right. I did not see this variance request until june 15th of 2022.

D

You don't think it's a hardship that you wait, that your department waited that long objection.

B

Is confused to the hardship? No okay! Now, in fact, you're well aware that the tabletop, as I refer.

D

To it, review you conducted is just a first step in actually achieving any kind of development. Correct.

A

I'm not sure I quite understand, there's a prescribed process of review and approvals.

A

That go through county code for development that entail more than the mat looking at the maps you.

D

You showed right correct that review process entails more than that correct. Okay, thank you.

D

I mean because if, if it were that easy, uh all these land use, consultants will be out of business.

D

Wouldn't they is that really a question yeah it is, I mean, is it really that easy to to analyze.

D

A piece of property like like this: there is a process that each technical agency goes.

A

Through and the evaluation of subdivision- and it includes a variety of um of of investigations and.

A

Etc, one more uh the priority forest that that evaluation is based on a set of criterias that.

D

You mentioned steep slopes, water there's a list of them in there, isn't it in in the code. I would.

A

Defer to john bowman, I'm not an expert in that! Well, you testified on on direct examination about.

D

What a priority force was a testimony. I said that I'm not an expert, but my understanding is exactly.

A

What you just said, which is that it's based on steep slopes and proximity to water bodies etc, but.

A

The exact definition I would defer to john bowman and everybody in the industry knows that that's a.

D

Starting point is that correct to evaluating the environmental effects of the forest conservation.

B

Easement, I'm going to object to that. He doesn't know what everybody in the industry thinks he's.

B

Chris, isn't clairvoyant he's many things he's not clairvoyant, he doesn't know what everyone in the.

B

Industry thinks the starting point of development is: is priority one force designation, a designation.

D

That occurs as a result of a application of a broad set of criteria to a to to a large land.

D

Area I would have to defer to john bowman on that. You talked about steep slopes and water.

D

Resource right, you look at those right. What's the one that got this one in priority, one do you know.

A

I I can't say specifically, but I assume that it's both because it's immediately adjacent to morgan.

A

Run and at steep slopes, okay, whatever, but do you admit or acknowledge that in fact you really need.

D

To look at the specific forest involved in order to analyze how valuable it is environmentally.

D

In other words, you might have a 60 acre piece. That's priority forest.

D

If somebody applies for a variance through the edge of it, do you look to? Is it? Does the analysis.

D

Include: let's look at that part of the forest and see what you're what you're doing down there.

A

So I had no evidence to indicate that there was a a question as to whether the force.

A

Was priority one or not? Nobody um was arguing that it was not um excuse me. I'm not arguing.

D

That it's not okay. I base my decision on the information that's submitted to me for my review.

D

Did the information submitted to you for review include.

D

The fact that there are any specimen trees in the area no okay did it did. It include.

D

That there's any uh water resources in the air that would be damaged by the easement.

A

uh I would have to go back and refresh my memory, but I do not recall well you're welcome to go.

D

Read read whatever report you want to read, but I I don't think there is, but I'm asking you.

A

Again, I would have to refer to the staff report, feel free.

A

A

So one of the statements is in the description of the um the creation of the easement. It says the.

A

View at morgan run was a subdivision recorded in 2009. It resulted in the recreation of two forced.

A

Conservation easements over existing streamside forest. So that's one indication of environmental.

A

A

No, I do not see any additional mention of that. Okay, now.

D

Your code contains at 150.26 a retention priorities, uh section.

D

Right the force conservation code, I would need to refer to the code.

A

Okay, what do you have it? I mean I've got a copy, but I'm not sure I've got a copy of one page.

A

A

He said 150.26.26.

A

A

Oh wait: this is 155.9. Can you hand me the binder.

D

Thank you, and by the way, I think, that's one of the ones that did not change by my reading.

D

When I got the new supplement yesterday, so I think that whatever you have there.

D

Hopefully is up to date, yes, through the administrator, 1526 retention priorities.

A

Yeah, that's the section. Yes, okay, it talks about retention. Priorities done objection.

B

We're here for a forest conservation variants, not talking about the wisdom of retention priorities.

B

And the county policy, one of the reasons he did. He considered this a a tough one was it's in a.

D

Priority forest area- I also mentioned that in his letter overall, we will allow it with the.

F

Weight it deserves, okay, any any of those items. In b, the following categories of trees, shrubs.

D

Or other forests located in specifically identified sensitive locations shall be.

D

Considered a priority for retention and protection. Remember that section there.

A

Right so again we're getting into the weeds as it were, of forest conservation law, which I am not I'm.

D

Not in those region law, I'm in the weeds of facts, you have a standard report. You have a staff report.

D

You just referred to it right. Does that stay up report talk about any any any sensitive of the.

D

Any items that are identified as sensitive in your own code as being in this force to say this 08 air.

D

Acre area, no, the extent of my review is based on the facts presented to me, which include a staff.

A

Report which indicate that this was a priority one forest period period, the end now do you.

D

Just also just point out to you: do you see in at the top in section a the last line in section a.

D

Under retention priorities.

A

Trying to find the beginning of it, it seems to be a long sentence. No well. Okay, yeah! That's the.

A

Last line existence would either be economically prohibitive or otherwise unwarranted. Is that what.

A

You're referring to yeah what I want you to say well, well, I'll, tell you what I wish. I want you to.

D

Say is you recognize that economically prohibitive is part of the analysis that the code suggests.

D

Should be considered when addressing variances and other relief under the code, no, you can read.

A

What section is not related to variances? This is just about retention priorities. It doesn't.

A

It does not say that to my knowledge, in the variance for sex. Well, it's it's! I.

D

Won't read it because it says what it says, and I don't know if you have it up there, but I do.

D

um Okay, now I'd like to get this more as identification as my uh seven eight eight.

D

Yeah good job's good thanks.

D

Showing you a photograph, do you recognize what that shows.

A

Substantively, yes, I mean it's trees and and a roadway. You have no idea whether that's.

D

The area that we're talking about here today or not nope you've never seen that area no.

D

I'll introduce this through showing kevin.

D

D

I think I'm almost finished. Let me just double check my notes here.

G

What is the name of that? Exhibit a photograph exhibit eight just a photograph exhibit eight.

G

That's what it is you kind of jumped the gun. I introduced it for identification, meaning it's not.

D

An evidence, but in order to put it in evidence, I need to authenticate it and in order to authentic.

D

Authenticate it, I need to call witness that'll tell what it says. I'll tell you that that's.

D

The area that's the 0.08 area. That's generally, generally, that's the area where the driveway would.

D

Go and shorty [ __ ] will testify. He took the photo when he took it and whose pickup truck that.

D

Was okay? Look at that when the road was paved and that's all I have for mr hyde. I just have a few.

B

Questions on the redirect, mr hein, to reiterate, you received a forest conservation variance request.

B

Yeah under one chapter 150., essential objection, asked and answered in that.

B

Request you looked at chapter 150. Yes, can you say what portion of chapter 150 you look to.

B

In determining uh whether or not to grant or deny the variance section, 150 33.

A

Which relates specifically to the variance request, okay, and is there any requirement that the.

B

Head of the department or bureau chief visit, the property that they are.

B

um You know analyzing a variance for no, there is none and.

C

B

And you were, is it fair to say.

B

That you were looking at the you are applying the variance request from the applicants.

B

To section 150 33 of the county code he's testifying for him, he'll say yes now well,.

A

Actually, I would like to elaborate just a little bit on it as, and I think I've stated this before.

A

What I am presented with are are is evidence and facts that I need to base my decision on.

A

Yes, there's the potential to go out and go out and visit and so on. But what I'm.

A

Required to do is look at the evidence. That's provided to me and evaluate versus 150.33.

A

C, which are the requirements for to allow me to issue a variance, which is what I did.

A

So you didn't look at the variance request to determine the development potential of.

B

The property, no, you didn't look at the variance request to determine the beauty of the property.

B

Let's say no again, excuse me, please let the witness answer. You didn't look at the variance.

B

Requests for you know the different types of trees uh on the property. No, I can only. I can only base.

A

My decisions on the law, which and the evidence presented to myself, I have no further questions.

D

No follow-up questions. I call you next witness mr shaffer does does.

A

The board have any questions. [music] um No, I'm good call john lemerman.

D

John, will you state your name and address for the record, please sure john lemmerman.

H

Registered professional land, surveyor and planner of rtf associates lemmerman is l-e-m-m-e-r-m-a-n.

D

Right, mr lemon, can you briefly describe your background and experience with regard to.

D

Carroll, county uh zoning and development sure I've worked at rtf since 1989, so it's over 33.

H

Years been licensed professional for 21 years of in the business for 17 years, the priority the.

H

Majority of my business has been in carroll county in land, surveying planning and development. Mr.

B

Schaefer just to speed things up. Are you trying to get uh him in as an expert witness? I am, but.

D

I, but I want to ask him a couple more because I think his background is is okay, because you were.

B

Going to stipulate, I would have no objection to him being well. Then then, I'll I'll go ahead and.

D

Ex I'm fine with! uh If, if you're going to accept that I'd like to offer him as an as a qualified.

D

Expert in the area of uh land planning and design, yeah, no objection and can I get a nod in the wink.

D

From the board yeah- and I just saw a nod in the wink and a yeah- the the transcript doesn't.

D

Recognize the nods and winks he's accepted as an expert yeah good. Thank you so john in in that, in.

D

That capacity have you processed uh more than a few plans through the carroll county subdivision.

D

Review process: yes, all right and did there come a time when carroll county adopted what.

D

I'll refer to as the environmental codes, yes and they've reviewed and amended them over the.

D

Years, correct, correct and that's what 15 20 years ago when they first adopted east coast. You know.

H

um I believe the forest conservation code might have been enacted in 95.. Okay, all right now.

D

And have you dealt with forced conservation, easements and policies and practices during.

D

The course of your career- uh yes, very much so now- you're, of course, the consultant that, along with.

D

My office and mr kuhn filed the off commands application. Is that correct, correct right now.

D

Prior to filing an off-convenience application, do you do you do any uh work uh on behalf of.

D

The property owner, uh yes, extensive, we'll go ahead and you get john. You got your your little.

D

Soft-Spoken, I'm sorry, so I want to make sure everybody can hear you and the transcript can.

D

Hear you okay go ahead! um So, yes, um typically, uh if you're going to pursue an off conveyance.

H

The first step is doing some deed work going out to do some cert land surveying of the property.

H

Doing some mapping topographical mapping, um you lay out pose lots based on the topography and.

H

And your knowledge of the regulations, you submit plans to the local health department for review.

H

And approval to perk test and ultimately dig to perk tests resubmit with the perk test results.

H

And your layout of your lot, so they approve it for perk test and well in this case. Otherwise it.

H

Would be public water and sewer and wait a minute john! You do that before you follow the ultimates.

D

Application! Oh yes, because why? Because you have to determine if it's a viable, even a viable option,.

H

To build there before you even get involved in the rest of the process, so otherwise you would.

D

You would perhaps file an offer mains application and then find out. You couldn't even meet the.

D

Basic requirements for development of the site correct correct, so you did that in this case,.

D

Yes, absolutely, and you did you do that in consultation with a property owner absolutely.

D

Did the property owner pay pay to have that done yes, and and did that and did you consult with.

D

The property owner as to his preferred location for his sons, lot and house: yes yeah. He actually.

H

Was was shooting for two hoping for two lots because he has two sons, but unfortunately it.

H

Wouldn't we could only get one there for the environmental restrictions, and so this is the.

D

Obviously, the one that you you applied for correct so after the health department work.

H

um Basically, typically, the next step is doing a forest and delineation.

H

um Field visit plan and report and then get your plans together. You do you have to address before.

H

You can submit you have to do storm water management, computations analysis before you.

D

Can submit what, before you can even submit to the op for with an off conveyance application, really.

H

Yeah, you have to have a complete package together for every department to review to go in with this.

H

Off commands application, so, yes, there's you have to address every agency's work and requirements.

H

In a package that goes in at one time so before the the submittal there's a significant amount.

H

Of work time and effort involved well, let's, let's talk about the stormwater management part of that.

D

So you're telling me you needed concept, stormwater management approval for this location before you.

D

Even submitted the application, no, we just have to address stormwater get through the computations.

H

Do the design and uh and our reports to submit for review? Okay, so you do the work and then you.

D

Submit it with the ultimates application yeah every department that you have to submit to for.

H

With an out off commands, application typically has their own checklist requirements. Ask questions is.

G

This permitting is this permitted for permits. Well, this is to get an off commands approved.

D

Then you get permits at the end of that process. You know you're not even close to permits yet.

D

um And and for instance, uh this is a little out of order, but this the storm water management review.

D

That occurred for this off conveyance has at this point has occurred. Correct.

H

Correct we actually have every approval required, except for forest conservation on this project.

H

um And development reviews, but all their comments have been addressed, they just typically don't.

H

Give you an approval letter and to all the other agencies have done so. Those approvals.

H

Include floodplain management because we're not affecting it stormwater management, which.

H

By their own requirements retains after you address their requirements,.

H

Retains 100 wooded hydraulic status of the site, even after development.

H

um What does that mean? That means the numbers that you have to meet to address storm order.

H

Management and the options that we were given in the state manual and local manual is.

H

Hydraulically, the number runoff numbers are intended to be fully wooded, even after development.

H

um So you're going and that's that was what carroll county has told the carroll county.

H

Chapter of surveyors when it was being implemented so, okay, so you you went I'm going to interrupt you.

D

Because I want to show this, I'm going to show you this. This is six six, three, okay, I'm showing.

D

You uh what's in evidence, as exhibit 6 page three. What is that you recognize it sure after you get.

H

um Off commands or sorry, stormwater management approval, part of that final requirement is to and.

H

This particular design and how it was addressed a besides level, spreaders that are going to.

H

Sheet flow runoff, there's a conservation easement that is 1.552 acres, that's below the proposed off.

H

Command so it'll be on the remainder parcel being offered to the county. Okay and and that's the.

H

Exhibit plot that will get attached to the deed of easement that gets recorded, but for convenience of.

D

Reference I'll show you that is the alternate slot which, by now you're familiar with the outlines of.

D

This is the stormwater management conservation, easement offs off the lot on the parent tract.

D

Was talking about that that and again.

D

This will be required to be deeded before the austin base will be finally approved.

D

It right now we know that it is required and that it's part of the approval process.

D

Absolutely what kind environmental benefits yeah? You said, what can't you do in the.

D

Stormwater management easement, it's a permanent conservation easement. It cannot be disturbed. I.

H

Must stay vegetated, so the property owner without that easement the property owner, could do a lot.

D

In that area's property or her property correct, correct, including motorized.

H

Vehicles and things like that, but with this easement all that's off the table.

D

Right to my knowledge, yes, does that create an environmental enhancement in your opinion, yes,.

D

So today, um mr leonerman is an expert in design and land planning, not in.

B

Knowing about I'm sorry, knowing about the different environmental benefits, you may want.

D

To restate that, so it's on the record right. um I object to the last answer um that he believed.

B

That um storm was at the basically the storm. Water management provides environmental benefits.

B

Yeah um yeah that um yeah as an expert in planning and land design that he can't speak.

B

um As an expert to the environmental benefits of stormwater management and I'm just putting that.

B

On for the record, okay, well, my license says I'll: ask you: what did do you do? You uh have.

D

uh uh Any expertise in that area. um It is part of my profession and my licensing. Yes, all right.

H

There's yes well, so, okay, I was go ahead. Listen to other things that you know. Engineering is.

H

Approved which is significant to this situation, because this particular proposed driveway access.

H

um Is the safest place and the only place that was approved on the south side of the property.

H

Did you just say this, the the .08 easement variance request is we we all know it's for.

D

A driveway correct, correct so that and you're saying that that location and I'm testifying.

D

For him, I get it, but he just said is: is the the only place that met or came close to meeting site.

D

Distance requirements: yes, so it was the safest location to access and the only one approved.

H

What are site distance requirements so that what are the short sight distances uh requirements.

H

Are measurements from if you are sitting at a proposed entrance entering onto a public roadway.

H

um The distances that you can see in either direction and those distances are regulated.

H

um Specifically, based on the the speed limit of the the road, the higher the speed limit, obviously,.

H

Further away, you need to be able to see on coming traffic, so it's a public safety issue. All right go.

H

Ahead, are you finished with your approvals? No I'm continuing on with that. um So soil conservation.

H

Has approved, we have approved sediment and erosion control plans for the construction of the driveway.

H

Through the woods and everything else and and construction of the house, this is carroll county.

H

Soil conservation has approved. That um said it to me and erosion control plans, the health department.

H

Of course has heard it by this point for private septic and well, and then water resource protection.

H

You've heard enough about, but we've got that approval also- um and you know in those approvals.

H

There's been five plans generated as far to this off conveyance package to address those.

D

Now pursuing those approvals does that involve time, money and effort.

H

uh Yes, um in this case, it's been probably.

H

At minimal three years worth of time, effort and tens and tens and thousands of dollars between.

H

The surveying the plans, the processing and to get to this point, and, quite frankly, I'm personally and.

H

Professionally offended that it's not considered a hardship and it's disregard somebody's time.

H

And efforts are totally disregarded for the removal of .0.08 acres. I appreciate that.

D

Were there application fees that needed to be paid to the county in order to pay for these.

D

Reviews that were conducted yes and are they fairly substantial, they're, not nominal, correct.

D

I mean you were talking in the I don't know it's eight to ten thousand dollars worth or well. The.

H

County review fees aren't quite that much, but as far as addressing forest conservation, excluding.

H

The variance requests um the reforestation requirements for this one building site is.

H

1.527, acres and purchasing of a bank is the only way to mitigate it because of the site conditions.

H

So at sixteen thousand, an acre yeah he's going to write a check for over twenty four thousand.

H

Dollars: twenty four thousand four hundred and thirty two: if it was sixteen thousand.

H

Which seems no wait a minute. He didn't write that check yet you're, saying that, based on the.

D

Approvals you've obtained so far if he were to go forward with this he'd be required to.

D

Buy more force back than the 0.08 acres, we talked about right, that's correct! That would cost money.

B

Look forward to this whole line uh under relevance just for the record. Okay, we think it's part of the.

D

Hardship uh but he disagrees um but you'll you'll figure you'll you get to make the call.

D

Now, if oh, and and also would there be, is there going to be a requirement that the.

D

Owner convey a strip of land along salem, bottom road to carroll county as part of.

D

The final approval of this that is correct and that's for a road wide and that's in case the.

D

County ever wants to widen salem bottom road at that point of area, correct, correct, okay,.

D

um Now you've you've been here all morning and you've heard mr hein testified. Did you.

D

Not yes, I have, and you're and prior that you were aware that mr hein, at least in part.

D

Is basing his uh evaluation on the ability to relocate this to another.

D

Piece of property, another area of the property, correct, correct.

D

Now, if and you're you're familiar with the special purpose nomenclature, or are you not I'm sorry to.

D

Repeat the question special purpose: platt you ever heard of them before I'm sorry, yes, they're.

D

Rare aren't they uh they are rare, have they are they mentioned anywhere in the county's zoning.

D

Ordinances or regulations, not to my knowledge, it's it's a made-up process that the development review.

D

And planning have developed to handle certain special situations, correct, correct and in this.

H

Particular case, if we went that route to relocate the lot to the northern side, it would basically be.

H

Going through the subdivision requirements and be plotted all right, that's what I was going to get.

D

To what described the process, as you understand it, if you, if the owner, was to go and pursue.

D

A special purpose, plaid of the whole property by the way, is what I'm told to be the plot of.

D

The whole property be planted. What would be the process? Well with all the work to date would be.

H

Disregarded and time and costs and efforts- and we would be starting over with the surveying and.

H

The mapping and the health department perk tests, the redesign addressing forest and delineations.

H

On that side of the property addressing every one of those agencies that I've listed already.

H

And their county fees are more there's different requirements as far as typically- um and I just I'm.

H

Repeating this based on experience, because I have had experience with other situations where this.

H

A lot was relocated under those circumstances, and I had to go through the subdivision.

H

Process so there's there are a lot of different requirements like road frontage in fee strips.

H

The entire property in this case would have to be dedicated road parcel, a road widening along the.

H

Entire road front: it's not just the off conveyance, because so are you saying that the property owner.

D

Would be required to donate a larger piece of ground to the county, likely that's correct and.

D

And in your experience, the well the the lot owner or the applicant would be required to go through.

D

Pay new review fees for new for the new piece of ground, absolutely and attorney fees. Also, the new.

D

Title certificate etc: right right! Yes, right! How long does that the process take? In your estimation,.

D

I mean and let's assume that you start today, you would do your preliminary stuff that you.

D

Just perk and storm water calculations and everything else correct, correct right about.

D

How long from from uh soup from start to end? If, if it met all the criteria, if it was able.

D

To get through the criteria and get approved as a final special purpose plot, with a lot.

D

On the northern portion about how long would that take from today to to getting that final approval,.

H

My best estimation, under current circumstances and the situation in minimal two years, all right now.

D

In in this, this parcel ground is eligible for an off commands, correct.

H

This particular piece to what we're doing yes, it is, and and.

H

D

Is a special purpose plant equal to an off conveyance in terms of the process.

D

You have to go through no you're you're, so you're you're forfeiting your off commands.

H

Rates and you're going through the subdivision process, which eliminates your off commands rights.

D

Now you were here and are familiar with the water resource protection easement.

D

Correct correct, right and- and we showed the uh easement area that you that that was required or.

D

Will be required around the buildable area? Can you explain how that came to be sure.

H

um I was concerned once I delineated the variable water resource protection buffer.

H

Because it encompasseded most of the lot I reached out to county staff, let me let me.

D

Let me interject, you were required under county code as part of the review process to identify.

D

What you recruit you refer to as a variable water resource conservation, what protection.

D

Area, correct, okay, so there's a there's, there's language that tells you how to do that. 100 feet.

D

60 feet and you drew that out right, correct and then what did you do? I reached out to county staff.

H

um With a by email with a sketch showing how it would accomplish the lot and offered a solution of.

H

Instead of offered up what I thought was a solution to to, it should have easement basically.

H

Where the stormwater management easement is now but below the site, where the steep slopes down.

H

To the stream would be, I thought that would be environmentally beneficial trade-off if they you.

H

Know because we were always at the stormwater management easement, I'm not I'm saying it's in.

H

That location, but it's I'm not talking that saying that it was. I was proposing that staff came back.

H

With chris, mr chris hines input- and this was significant time before his review- so he may not.

H

Have remembered this at the time, but uh they came back and said well the rest of the undisturbed.

H

Portion of the off command slot is going to be retained in forest conservation easement anyway. So.

H

We'll just make the remaining portion water resource protection easement, also and based.

H

On that determination, we filed our variance and ultimately got our water resource protection.

H

Approval and soon variance, and so the the in the entire undisturbed area of the site, is going if.

D

It's approved is going to be in this uh forest conservation and water resource easement, correct.

D

Say that one more time I was the entire undisturbed area of the site is going to be.

D

In this easement right, yes, correct all right and the easement is 2.362 acres out of uh three point.

D

Eight two six acre total land right I mean I'm reading off the the exhibit a okay.

D

So what did you say about leading down to the stream you? You thought there should be an.

D

Easement there or proposed that that you would offer an easement there or the property owner.

D

Would offer an easement there now before we did the off command submittal? I was dressing a water.

H

Resource requirements, I delineated it and emailed them a proposal of hey here's how it affects the.

H

Lot, it encompasses the building area and um the only usable area on the site. So I proposed.

H

And this is this is for the submittals. You know significant time before the ultimate submittal.

H

Proposed up water resource easement from the bottom of the site, down to the stream on the.

H

Steep slopes, thinking that would be beneficial and the county came up with a separate solution.

H

Which is also beneficial by taking the rest, it's not affecting the remainder but adding the.

H

Easement on the undisturbed area of the lot- and, of course that's- I thought that was a reasonable.

H

Okay, did you see that occurred before the off conveyance? Was application was submitted? Yes, okay,.

D

Part of the process you described earlier, the work you have to do in order to submit it right, correct.

D

So there was more than casual discussions between you and chris hines department regarding this, the.

D

Environmental uh effects and sensitivity of this building site correct, correct, okay and the result.

D

Was that you got a variance and an approval for, what's shown on that, drawing correct the.

D

Water resource protectionism, yes and then the sep, the storm water was a separate process. You went.

D

Through that with stormwater department right, that's correct and that's another department.

D

That's under chris hyde, correct! Yes, it is all right all right um I'll! Just you know the last.

D

We had a big I'm not going to spend a lot of time on this, but this track consists of two.

D

What's what are called add-on parcels? Correct, yes right and if you look at six, four exhibit.

D

D

D

D

Okay, so what are adult horses john? They are land added to the original.

H

Parcel and there's there's special little items, unlike the special purpose plaque, they.

D

Are addressed in the carroll county subdivision regulations? Aren't they yes and if you do an.

D

Add-On, if you buy an add-on, parcel you're required to put the magic language in the.

D

Deed of conveyance. Aren't you? Yes, what's the magic language I mean, I don't know if you can go.

D

From memory, I think I can, but I can read it from the deed, okay and well yeah. Let me ask you that.

D

Is that is that magic language in both of these add-on deeds? Yes, okay, we'll read it out. Will you.

H

After a paragraph in the deed, under the legal description, it says the land conveyed herein.

H

Is being transferred to an adjoining landowner to enlarge the grantees existing property and.

H

Shall be considered merged under the subdivision regulations of carroll county with the existing.

H

Property and of the grantee such land conveyed is not intended for development other than the then.

H

Applicable government regulations and that's the language in the dean I'm reading here.

H

Which covers, which is the north side that chris hein has referred to as having flatter slopes.

H

That's when I'm out on area, so it's a kind of an important point, because when I'm writing.

H

My variances for an off commands request, which is limited to the bounds of the original tract.

H

And it is a factual statement and my professional.

H

It cannot be relocated on the north side of the stream on the parent track, because.

H

The steep slopes there's very little room for a septic system replacement for the.

H

Existing house, which is required for health and public safety reasons by the health department.

D

Well now, you're talking about the developability of the northern portion right, I am well good what.

D

Did you say I'm sorry what about the existing house? How did that have an effect on it.

H

I'm saying the area that chris hein has referred to as possibility reloadicating the off commands.

H

Is off is on an add-on area that had restrictive language that couldn't be developed. So when I.

H

Wrote my variance request. It was specifically for an off conveyance request and and its eligibility.

H

And another, the fact is that it cannot be relocated to the north side of the stream.

H

And in fact, that is the policy and process of the carroll county of carroll county that you.

D

Can't put an off command slot on an add-on parcel correct. It has been established over.

H

And over yes now, mr mr hein went back and talked and they said well, you can do.

D

It by special purpose plaid, but anyway, that's that's where it is all right.

D

We covered most of this john, so I will go through a pretty assuming we. We try to relocate it to the.

D

Northern portion, the process is start all over number one or that you describe the process.

D

Do you know what sort of easements you might have to give or to vote or or whether you'd have to ask.

D

For any variances from any of the environmental codes, if you try to develop that parcel, I can't.

H

Say with any certainty, but I can be certain that there will be water resource protection, easements.

H

Involved at least evaluated same departments same easements same environmental concerns.

D

D

D

I'm looking at section a for now uh with strict adherence to the provisions of.

D

This sub chapter result in unnecessary hardship or environmental degradation.

H

Repeat the question: please clark, read read that when you think do.

D

You think in this case, if, if there was no variance given.

H

If there was no variance given yeah, yes, absolutely, I believe it's a hardship and why um well because.

H

Again, there's been three years worth of time: effort, money, tremendous efforts and time and.

H

And it's being totally disregarded and the line's been drawn in the sand. Apparently.

H

um Over 0.08 acres that is going to be mitigated and offered to be mitigated. So I don't understand.

H

With all this environmental stuff, what the negativity is environmentally okay.

D

D

Again, section number three of the 150.333: do you believe the water resource conservation, easement.

D

And the stormwater management easement that are required and will be required, uh are.

D

um Measurable environmental enhancement, yes, okay. As a question as far as those easements go, the.

I

Storm water and the water resources. Yes, sir, are you doing anything to that area to enhance it or.

I

Is that just you're setting it aside? uh No those are conservation, easements, so you're, basically.

H

Taking that and then it's legally protected not like you're doing anything more to make.

I

Them that's correct, but it's environmentally correct it's, but it's permanently protecting.

H

It forever basically and those easements prevent the property owner from taking actions in those.

D

Areas correct that is correct. Yes, like you can't even you can't even throw your weight.

D

Dog waste in that area, under the terms of the easements correct, I can't verify that one.

D

Is it european is, it is? Is it your opinion uh that adherence to the technical requirement.

D

Is not necessary to fulfill the purpose of the forest conservation ordinance.

H

I'm sorry my mind was a little bit behind you repeat that one more time, I'm sorry! Well, if, if, if.

D

Would adherence to the technical requirement, which is you can have.

D

A variance okay would that be necessary to fulfill the purpose of this chapter.

D

Would that would that in enhance the environmental benefits.

H

With the variance well, I'm confused I'll, read you the language. I don't want to take it out. It.

D

Says you need to show one of these things either the first one you talked about the third one. You.

D

Talked about or the fourth one, which is, it can be proven that adherence to the technical requirement.

D

That is not disturbing the 0.008 acres, okay and buying the and buying the the force back.

D

Would not be necessary to fulfill the purpose of this chapter.

D

Do you think it's necessary to have this variance or have this to do you think it's necessary uh to.

D

Not to to deny this variance, I do not, because I it's being mitigated elsewhere right in the.

H

County now, at any time, in your dealings with the county, including your written dealings,.

D

Did you seek to deceive or mislead the county with regard to the condition of.

D

This property: no did you seek to to hide any uh aspects about this property that.

D

You felt were uh unfavorable or anything like that. Absolutely not.

D

Okay, that's all I have for mr lemerman.

D

I miss anything. Let me ask him, john. Did I miss anything you'd like to say on your list.

B

What do you mean his list? He's made a note of uh okay, okay, I.

B

Just wanted to, I wasn't sure what clark was referring to all right.

B

I just have a few follow-up questions, I'm I don't have anything further to say. That's all. I have for.

D

You all right, mr lemmerman, um can you just and I'm sorry um I just didn't write this down? Can.

B

You repeat again, who uh you work for rtf, what they do sure rtf associates, land, surveyors and planners.

H

um We've what dudes rtf? What does your day-to-day? What is the mission of rtf.

H

um We do land surveying, we do help with building permits which addresses.

H

Agency requirements such as store motor management, zoning and everything else involved. We do minor.

H

Subdivisions some major subdivisions, we do some simplified site plans and minor commercial site.

H

Plans is it fair to say that you work alongside developers in what you do every day. Yes, okay,.

B

So when you testified that it was your opinion that strict adherence to the provisions of this.

B

Sub chapter could result in unnecessary hardship you're coming to that from the perspective of.

B

Someone who works in the development community, not someone who works in a government capacity.

H

I'm taking that from a view of someone who works with in the community with the community and.

H

um Watch small businesses go under because of the requirements, so um that's my perspective.

B

You mentioned, and your council went through the painstaking process of.

B

Development in carroll county and the cost of the development.

B

And the costs that have already been borne by the property owners, is it fair to say that it would.

B

Be cheaper for the applicants, the property owners to just develop on the northern side.

B

Of their property, not at this point, no, when you say not at this point, can you elaborate.

H

um Sure the like north side was not viable option under the requirements for off conveyances, so we.

H

Move forward with the south side and the hardship is the time and effort and costs.

H

That have been involved up to this point and I think it's wrong to be disregarded.

H

Or something that's going to be mitigated, I don't think there. You know the application.

H

Was asking for anything um that would lower the standards of the environment requirements.

B

um One last question mr lemon, and um are you aware that you could have uh applied for and.

B

Gone through the forest conservation uh variance process prior to filing the off conveyance.

H

I'm aware that's an option sure, but that wasn't an option that you undertook uh in this particular.

B

Case that is correct because, um unfortunately, the add-on to the property owner that was.

H

Sold for the access, the seller, knowing that it was for access to his property and that it was.

H

Probably knowingly in forest conservation did not disclose that information to him and unfortunately,.

H

The attorney wasn't for the record, it was not clark, schaefer was semi-retired and I don't.

H

Know, unfortunately, yeah it's a unfortunate set of circumstances that led us to this point. Okay,.

I

Can I, when you were describing your process, though, yes, sir, didn't you one.

I

Of the first things you said, was it a search on deeds? Yes, would that have turned that on.

H

um As far as surveying related at that point, in the project we take the deeds and the legal.

H

Descriptions and plot them, we don't do full title searches. So we don't pick up stuff that.

H

I mean unless we happen to stumble across it. In this case, we did not until mr bowman, unfortunately,.

H

Let us know in his first review letter, which I thanked him for and we tried to address.

H

Accordingly, so I have a question: um yes: when did you when were you contracted to do your services.

H

My job number is 18-50, which means in 28 uh yeah 2018.

G

So you were paid in 2018, that's when you started doing your analysis and your surveying and all.

G

Those work- and this was done in advance of requesting the variance approval, correct.

G

Yes, okay, so in june, was it in june that the official request came in for the variants. I.

H

Variance requests initially went in in february of 22nd of 2022. It was revised and resubmitted.

H

Yes, thank you, may 8th, may 18th or give or take a day, um 22., 2, okay and then yeah so by then you.

G

Had done you were, you were engaged in trying to do this analysis of uh getting all the data and.

G

Approval for the for the process of the southern part right. You were working on that surveying as.

G

Before he, even you made the official request year. Yes, because there's a lot of work to give.

G

To that point, you're spending money and time, but not knowing the outcome of the requests for the.

G

Variance right so and part of that is we we did file in february initially, and we got with two.

H

Variance requests, environmental and it's got one back. I hadn't have any reason to believe that.

H

There was major issues because that was approved and are perceptive. The same reasons that this was.

H

Variance request was being asked, for it cannot be relocated, in other words, and the hardships.

B

I said one final follow-up question: does the existing driveway that goes up to the.

B

Northern portion of the property uh meet site, distance approval.

H

I do not. I cannot answer that. We haven't done a official state uh measurements on that one. Okay,.

B

I have no further questions. Just a couple follow-ups foreign.

D

So, john, you know you answered the questions about developers. Developers are also known as property.

D

Owners, aren't they yes and and a shorty kuna property owner. Yes, and do you represent a lot.

D

Of owners that want to take small projects off yeah that started forte yeah and then.

D

um I believe you said that somebody at the county- I think it was john bowman- is the one that first.

D

Made you aware of the fact that this was in that the driveway was proposed to go through a forest.

D

Conservation easement correct. Yes, unfortunately, and you said subsequent to that, you then filed.

D

Your variance request, correct and then you you've been going through, that up until.

D

Chris hein turned it down in august of this year or something right, correct, correct at any time.

D

During that process, did anybody from did you have interactions with county staff during that during.

D

That time period county staff- yes at any time during that process, did anybody tell you hey this.

D

This this variance through this priority force uh easement. This is not happening or it's unlikely.

D

To happen or you've really got an uphill battle there uh did anybody say anything that to you.

H

um No, but I I did get contacted by jonathan bowman, um it was a courtesy email. um I believe.

H

And he requested additional information for the variance requests which we.

H

Felt we adequately addressed and resubmitted okay, oh, that was a recent medal. Yes, I got it.

D

Okay, now could it could? I have a minute to see what he is trying to get me to address foreign.

J

Can we see the big maps.

D

Thank you we'll we'll get it to them through the evidence process. You talked about.

J

J

I think that's a very important thing to see what.

J

J

Argument for the student s.

J

I see what you say all right, john, can you is this more? I don't know which one it is.

B

Let me see clark, I can that's, exhibit one four, two, two, two, I'm sorry yeah, that's two.

D

And you're interested tim yeah, we should. I assume there was one on there seen that.

B

Back 10 000 emails to answer.

B

Jim, what's what's this one, this is yes, yeah, one, two, three, okay, here's one two.

G

D

D

This one, this is two correct. No, it's three yeah, there's three, so I need two and I'll wait.

D

D

May we approach so we can talk about these up here. Yes,.

D

With reference to exhibit to use this all right, the original track one run down about here, this.

D

Is an add-on and there's an add-on here? Is that about right? That's correct, right! The off.

D

Conveyance location proposed is over here right, correct now, when you look at this original tract.

D

Or when you look at this track, you knew this was add one right and you knew this was happening.

D

Right! That's not! No! That's not! Just from here! Oh it's up here! It's up here right! I'm sorry.

D

Okay, and so you knew- or at least you testified, I can't do an optimates there.

D

Right, correct, okay, so then you look at this site and you go. Where can we put.

D

An off demand slot right correct, so this is my options for off commands.

H

um This is the only area that is adequate, aren't realized to get along.

H

So that's I have a question yeah.

F

um So those those other outbuildings up there, those are on the add-on number one that is correct.

H

For sure community won't still walk.

D

Yes, I am finished. Thank you. Okay, um just one cliff out, you testified that you're familiar.

B

With the county's process of special purpose, plots yes, with a special purpose flat, be used.

B

For an off conveyance on the northern portion of the property, no you're at that point, you're.

H

Forfeiting you're off commands rights and you're going through subdivision process.

B

But you could develop it.

H

You can attempt to sure right. Okay, if you could attempt to develop it.

B

Correct, yes, okay, thank you sure. No further, no follow-up questions.

D

So no I'm I've never finished. Yes, okay,.

D

Okay, I've got shorty kuhn, as a witness, who'll, probably be 15.

D

To 25 minutes, do you want to go straight through.

G

Yeah, that's just may we have a five minute bathroom recess sure thank you.

B

Okay, thank you did not just say one thing to him: it's private.

B

um I would like to call david b craft to the stand.

B

David now, um at the beginning of this hearing, you stood up and um raised your right hand, support and.

B

Tell the truth, the whole truth, that's correct. Okay, um can you just state your name for the.

B

Record david b craft jr- I am development review coordinator two here at the carroll county office.

K

Building 225 north center street westminster maryland. You got that down pat um how long.

B

Have you been in your position, so I've started at the county at this position on november 15 2018.

K

So a little over four years gotcha, and um can you explain your responsibilities as part of your job.

K

So, whenever a property owner a developer is looking to propose development within carroll.

K

County that would encumber on chapter 155. I am one of three or four that review that plan for.

K

Chapter 155.: are you so you're familiar with chapter 155? Yes, okay, um were you uh present.

B

When the previous witness mr john lennerman, was testifying, yes did you hear his testimony? I did.

B

um And I apologize I'll be paraphrasing he test the move. He testified basically to the effect that.

B

um Because there was the add-on deed to the northern portion of the property that the.

B

There there could be no off conveyance right um or something that that effect is in your opinion is.

B

That correct! No okay, can you please explain uh to the board why you feel that that is incorrect, so I.

K

Feel it is incorrect and to fully answer this I'll have to give some background. So, as mr schaefer had.

K

Noted within those two add-on deeds, there is a section in there that mentions no developments.

K

Unless accessory uses that was put into the code after the county had required any new add-on.

K

Pieces to have a new meets and bounds description provided after the county required that back in.

K

The day there was opposition, from mostly from farmers in the area who said that having to.

K

Survey, their whole property would offset the price that they were even paying for this piece of land.

K

Having roughly 70 percent of the county being agricultural zoning property with the more.

K

Majority of that being farmers, the county, seceded and said: okay, when you do have an add-on thing, you.

K

Have to put this piece of this paragraph and that deed, so that way, it is clear to the tax office.

K

That this is not a new piece of land, but it should be combined with your current piece of property.

D

I just make an objection for the record because I I understand you'll accept this.

D

Anyway, but he's this is being based on hearsay, that he's heard from other people about the.

D

History of development rules in carroll county I'll just make that for the record.

K

I wouldn't I was not present. um I may not have been alive when those conversations were had.

D

And there are no written records of those legislative proceedings. Are there that you.

D

Know of not that I know of okay, so you're basing this on what people have told you.

D

Or talked to you about over the years correct, I am basing this on my training for this position.

D

You're training for the position that allowed you to ascertain the legislative.

D

Intent of the county commissioners back in 1970 mark you'll have this opportunity.

B

To cross-examine him, okay, when I'm finished with my uh direct so.

B

With the property, the [ __ ] property, as we've been discussing all day, has.

B

An add-on to the northern portion correct.

B

I believe that's correct. Okay, can they use their off conveyance rates on that northern portion.

K

After following a new meets and bounds description, yes, and that would be done via the special purpose.

K

Plant that wasn't mentioned previously, and can you just sort of explain what a special.

B

Purpose plaque is so a special purpose plant, as mr shaffer had noted, is not necessarily.

K

Annotated in our code, it is merely a plot of record that is recorded with the state.

K

Of maryland, that shows the meets and bounds of a prop property, and it serves a certain purpose.

B

I have no further questions all right here. We go um so special purpose. Plaid is not mentioned.

D

Anywhere in the subdivision breaks right: that's right! There's no process describing.

D

It there's no right to it in writing uh in in the subdivision breaks right. It is not written.

D

Down yeah and in fact the subdivision breaks, talk about off conveyances and subdivision plots right.

D

There are two ways to divide property in carroll, county, one's buy-off, conveyance and the otherwise.

D

By subdivision, plaque correct that is correct and special purpose plot you've. Added to that correct.

D

That's not correct, oh no! What what's how's what's wrong with that, so a special purpose plant is not.

K

Creating a new lot of record, it is merely showing current property boundary, so it is more or less.

K

And recording what currently exists on site, there's, no new properties being created.

K

Through that process, so a special purpose plant would follow what we would call an amended plant.

K

Process it would not be a new creation of land. You just make you just make up the process for.

D

A special purpose right, don't you I mean you, apply different processes to different special purpose.

D

Plants, don't you I do not how many special purpose plights have you handled in your four years? I.

K

One or two yeah they're, very rare, aren't they they are and are they.

D

For various purposes they are have you ever handled, one that was for an off commands.

K

I personally have not okay. Now you, you referred to meats and bounds descriptions.

D

Right meets amounts by created by meats and bounds, right lots created by meats and bounds.

K

Yeah, it's a refreshment. I I reference lots created by meats and bounds. Well, he asked mr.

D

Roman issue can they use the off conveyance rights on the northern portion, and you said.

D

Well, they would have to follow new, meets and bounds correct yes, so they would have to have a.

K

New meets and balance description of that parent property with those two add-ons. What's the well.

D

How about the uh the lot to be created that would be determined through the off conveyance process.

D

I will, can you read me the definition of all command slot out of your subdivision rigs.

D

And by the way that plot would be recorded, you said right.

D

So that plant would be recording, that's correct. Rick. Can you read me the definition of domain slot.

K

A notable lot, which was created by illegal division subsequent to april 23, 1963 buck.

K

Created without being described on a lawfully recorded subdivision plot.

D

Okay, so how do you, how do you reconcile that definition with your statement that we could.

D

Move our all conveyance and not lose the right, but we need to put it on a recorded plaque.

K

Well, you would be planning the original property, but you would not have to plant.

K

The off conveyance lot it's going to be shown on the plot. Isn't it slot not to my knowledge.

D

Well so you're gonna, you would require the property owner to plot their whole.

D

Property- let's say they own 40 acres, but and then you would record that plaid.

D

In the land records right, yes, and that would show a 40 acre piece of ground. Yes,.

D

And then you would create your off conveyance after that.

K

Once the new description has been made, yes,.

D

So it's a two-step process to get there so that you're telling me that's the same. That's the.

D

Equivalent of an off conveyance isn't that more onerous for the property owner off commands. What.

D

Do you mean you know what the word onerous means, the more difficult, more uh expansive and more.

D

Time consuming more burden, it is additional steps, yes yeah, and so it's not really the equivalent of.

D

Exercising your ultimates rights is it it would follow the same all conveyance process. So it's.

K

Not the exact same as if they were to put this lot on a portion of the parent property. So how.

D

Much does it cost to say I own a 100 acre farm, I'm going to be hypothetical again because I'm I own.

D

A 100 acre farm- I want to do this you're going to you're going to special purpose plant me. Let's say.

D

You know how much it costs to survey a hundred acre farm. I did not you, don't you care.

K

I don't have a hundred acres. Unfortunately, I think it costs more to survey a hundred acre.

D

Farm than it does a three acre off the main slot, I do okay. Are you aware that, prior to 1989, there.

D

Was actually absolutely no process for approving off conveyances, I am aware: are you aware that off.

D

Conveyances were created were authorized in 1978 when the county adopted its agricultural zone.

D

Were possibly before, then, can you repeat that question the county created the what's now.

D

Known as the ag zone that covers 97 4 of the whole county land mass in about 19 in 1978, are you aware.

D

Of that, from your training, I was not you wear that from talking to people like about special.

D

Purpose plants- I was not okay. Are you aware that at that time the county told people that owned.

D

Agricultural land that, instead of the 100 acre farm instead of the 80 lots, you were entitled to.

D

That now you're entitled to approximately one lot per 15 acres, I'm going to object to the relevance.

B

He went into the history, you can answer, I'm just putting it on for the record council. I was not.

D

And are you aware that the agricultural community and property owners said wait a minute you're.

D

Not going to make me go through a big expense of elaborate process to take a couple. Lots off for my.

D

Kids, are you and the county said no we're going to create off conveyances, which are very much simpler.

D

And objection is this: testimony: are you asking a question? Are you aware of that? I'm not okay.

D

All right um is it true and in 1989. Are you aware that 1989 the county adopted what are now pretty.

D

Much the off conveyance regulations, I'm aware yeah, um and are you aware that off conveyance.

D

Rights are more valuable than subdivision rights, I think that's subjective, but it can be good.

D

They are a property right, aren't they they come. They come from the property.

D

Right, that's, correct and property has to be eligible for it right. That's correct, okay,.

D

Now, can you describe precisely the process that a special purpose plant goes through.

K

Sure so a special purpose plants is first, is issued a file number through the county.

K

As mentioned, it would be an amended plat file number, so an ap dash, whatever number.

K

It would be amending david, what's it amending, it is so the amended file number is not constituting.

K

That it has to be a plot to begin with, it's more or less a filing system for our records.

K

So it's not necessarily amending any physical plot, it's more or less, creating.

K

A way for us to follow it through the system through the review process.

K

Okay, so once it's submitted to the county it will go to whomever is felt to be necessary to review.

K

It at that point they will issue their comments and move towards getting approvals from all those.

K

Agencies similar to the off conveyance process at that time, the plans will then be submitted to the.

K

County on mylar paper, which is for archiving and those will be circulated to those same agencies.

K

For their signatures and then be recorded with the circuit court with any type of easements.

K

That are required at the same time. Would there be any environmental review conducted? There can.

K

Be for a special purpose play, it depends what that special purpose is for yeah. It depends on.

D

What the special purpose is for right right if it's to build something, there's an environmental.

D

Review correct, there is, and it's just as honorous or more onerous than what we went through correct.

K

So the special purpose plant for this property would not involve any environmental review.

K

That will be conducted with the off conveyance process. So, okay, so you're, saying.

D

That it would just be another step, but but the for this property there would be two.

D

Steps now special purpose plot, get it reviewed and approved correct correct then submit an off.

D

Commands application to divide a lot off within that area, described by the special purpose plot.

K

So I would say those two processes. I don't see any reason they could not occur simultaneously.

D

Okay, but it's still two steps right, sure, okay and and the off commands.

D

Review is the same off conveyance review that this one has already.

D

Gone through correct, that's correct for a different piece of property.

K

You mean like a different portion, different area of the property, that's correct, yeah, all right and.

D

Do you do you dispute john lemmerman's testimony that there are significant review fees and uh cost.

D

uh Associated with the pro, with applying for and trying to get approval of, a off conveyance.

K

So all I'm aware of is the county review fees, I'm not sure of what mr limerman or any other.

K

Land surveyor charges for them. If you're aware of what they do, you think there's significant numbers.

D

Or you don't even want to say, I'm sure they are okay and and what about the county review fees.

D

Of course, what's the cost of file an automates application forget about the reviews? You know.

D

So I I could tell you for this particular property: the review fees was 869.40 to date,.

K

Correct all right, that's all I have for mr uh be craft. I have no follow-up.

D

I'm called john leverman in rebuttal [music] foreign.

D

You're still under oath, you remember that, yes, I do all right. You just heard mr beekraft describe.

D

A process you you understood what he described or did you not understood what he was saying.

H

Yes, yeah: well, what's your experience? What do you, what is your experience with these things.

H

um It's an extra step, um it's additional costs additional time and in my past experiences, you're.

H

Basically, going through the subdivision process and subject to a lot of additional regulations.

H

That pop up in the process, because it is a process because once you ask for permission.

D

From the government to do anything and in this case a subdivision plan right it, the this, the.

D

Code gives the government the ability to request stuff from you. Does it not? Yes like easements? Yes,.

D

Like road widening strips correct, like maybe certain cases, maybe a hydrological study or.

D

Something like that, depending on the area. No I'm not talking about this case, but it gives.

D

The government, the ability to to put you through a harsher review, doesn't it it opens you up. Yes,.

H

Absolutely it does it cost more to survey a larger piece of property than a smaller piece of property.

D

Yes, significantly more, yes, depending on the size of the property and the topography, and yes, okay,.

D

And you would have to survey to do that plot. Wouldn't you uh yes to meet the code.

H

Of maryland requirements, yes, thank you. That's all I have. I have no questions. Call shorty, kuhn.

D

Shorty state your name and address for the record, please walter, kuhn, 3033, salem bottom.

J

Road westminster, how long have you lived and you remember sure they got to understand you so do I.

D

uh um How long have you lived there approximately 34 years right and do you live there with your.

D

Wife, wife, kids, your kids live there too, one okay, and is that the one that you're building the house.

J

For well he's going to build a house, I'm trying to give him a piece of property that I'm having.

J

Trouble giving him that's. That's your son. You had two sons right: one's named cody, yes, and that's.

D

Here and that's the that's, the one that is going to build this house. Yes, if, if this is approved,.

D

If this is approved, is this, where you and cody would would prefer to locate the off command slot.

J

um Yes, I would like to have it over there. Why um well, actually it's the only that I've seen I had.

J

Access to having a lot there, my understanding I was actually accessible to have more lots.

J

That's available available on that, and uh but this was the only position that I've seen that we could.

J

Pull a lot from that was perkable on my original 20, acre partial, and you knew that that the add-on.

D

Piece was was off the table right. Yes, at least you thought it was yeah. I thought all that was awful.

J

And, and so you looked at your property talked to your son and you decided on this location is.

D

That correct, yes, why do you think this is a good location for you and your personal preferences.

J

um Actually, it was the only location that I could find. Okay, because of.

D

The topography and the steep slopes of photoponics um now just a minute here.

D

And so at some point in your pursuit this, this has been a long pursuit.

D

Like four or five years correct yes, at least personally to you, yes, and at some point you.

D

Bought the add-on piece that the that the forest conservation variance has gone through correct. Yes,.

D

From a neighbor right, yes, you've been down there 20 30 years, you get along with your neighbors.

J

um I'll get along with everybody down around through there, okay.

D

um And you paid 15 000 for it correct yes and did that money come from your son? Yes, it did.

D

Right but it's entitled to you because you're entitled to the parent tract right well, we was.

J

Going to do that and then when he gets the lot, then we'll just all be in his name, but he had to.

J

Buy purchase it to get them right away. Now you were you informed that settlement that you were.

D

Buying a piece of ground that was subject to a forest conservation easement. Oh no, I was not.

D

You acknowledge that it was likely that that was in your title, pile or title report or something.

D

Like that correct, yes, do you know that or you don't know, I do not know that you found out.

D

About it about the same time, john lemmerman found out yes, yes, all right, all right um is cody married.

D

Yes, he is now children, no okay, he's living in your basement. Yes right, um let me show you.

D

What's been marked for identification is my eight.

D

Through, what's what's that, what's exhibit 8 show, that's actually a picture that I walked up in.

J

The woods approximately, where the center line of the driveway would be looking from the hill.

J

Down to the road yeah jim- I'm sorry that's somewhere here and and is it did you you.

D

You did you take that picture. Yes, I did photograph yes about. When did you take it.

D

um A couple days before the previous hearing- yes, okay, so about a month or a month or six.

D

Weeks ago, or so now did does that show where you believe the 0.08 acre driveway is is proposed.

D

To be located, yes, does it show pretty much the entire length of it? You know if you look.

D

At the foreground to the to the pickup truck, that's probably a little bit more longer than.

J

The distance that we need to go through that problem and how wide is it 50 feet.

D

Okay, so there's a 40-foot swath that would go through that area. Is that correct right right.

D

Did you purposely manipulate that photograph to not show any bigger trees or any environmental.

D

Features or anything like that, and I just took the picture where I knew that were thinking the.

J

Drive was going to go so I'm going to offer that into evidence is my exhibit eight, no objection.

D

Trudy, I'm not going to go through it all, but you did you hear john lemmerman ten.

D

Thousand dollars pursuing this uh these approvals, it's in that area, yes, already.

D

Do you desire to assuming the county would allow you and they now say they would.

D

Do you desire to move the the lot somewhere else you want to where it's not a place.

J

Where not at this point, it's not going to be feasible for us at this point, we got too much.

J

Wrapped up in this one yeah, were you told by mr lemmerman that you have all the approvals.

D

Except this one and you're 30 60 days away from getting final approvals. Yes, and was your son.

D

Anxious to obtain a building permit and start building a house. We've been anxious for years.

J

D

You know you're aware.

D

I mean I informed you and mr that is that, as soon as I got the letter that the county, mr hein.

D

Was taking the position you had an illegal zoning use on the northern portion of your property.

D

Correct right, right and you're, aware that that was referred to the zoning administrator for action is.

D

That correct right did you did you did you and I discuss that you asked me that, did you tell me.

D

To to talk to the zoning administrator and deal with that issue, yes, do you intend to deal with.

D

That issue, as it goes through the uh the uh zoning enforcement uh process. Yes, we do, is it customary.

D

That the way that process works is that the zoning administrator tells you to fix it. Yes, you know.

D

What fix it means, apply for conditional use and get a site plan right and then get all that stuff.

J

Done and whatever's accordingly to be done. Did mr lemmerman yourself and me have a discussion.

D

uh As to what that might entail in terms of time, energy and expense- yes, that's all I have. I have.

B

No questions. Okay. That concludes. That concludes uh our pres. Our our presentation, mine, as well.

D

I do I do have a closing argument, as do I I know everybody's anxious to stay here for longer, but.

D

All right presentation of testimony and evidence is now closed and some nations are in order.

E

uh The applicant is first then interested parties and protestants followed by the.

E

Applicants rebuttal to complete presentation of the case, all right so clark uh you go first, all.

D

Right, I'm going to start out. I don't know if it's a right foot or the wrong foot, but.

D

I believe this is outrageous to treat a citizen and taxpayer like this.

D

He's entitled to the off conveyance: that's a property right! You either.

D

Have it or you don't, he wants to exercise it. So he comes to his government and he asks him.

D

Where he applies to exercise his right, his own family, his own life, wants it to.

D

Be on his this piece of his property, okay, that should be respected and it is respected in our.

D

Legal system, the desire of a property owner the property owner, does not give up all their rights.

D

When they apply to the government to exercise one of those rights, we know that um now we're.

D

Foreign, how can the county in good conscience at the last minute after all, this work.

D

And yet we probably got some fault in there lemon said john lemon said he didn't see it.

D

Initially, I agree with him, though he's surveyors do not do full title, but you know when we found.

D

Out about it, we dealt with it, okay and it was reported in the uh in the title, shirt.

D

But to a for the county to allow somebody to go through all the way to this. To this point,.

D

Six months or you know whatever and say, uh uh oh can't have it now in and of itself.

D

Could be defensible under certain circumstances, but it's not defensible.

D

When the reason the clear reason for this denial, I don't care, I don't. I mean with all due respect.

D

You can't get in mr heinz head, as mr almond has pointed out, it's very clear from the documentary.

D

Evidence it's circumstantial and from the settlement discussions that the real reason.

D

This variance was turned down was because of the contracts, equipment, storage, yard,.

D

Which mr hein continually refers to as illegal a violation? Now, how would you like it if you.

D

Applied for something and mr heinz people came out to your property and they said.

D

uh Geez is your wife selling antiques, or are you selling antiques from that barn.

D

uh Oh, that's a I looked at the zone. It's a zoning violation. Your development plans are now on hold.

D

We're not waiting for the zoning administrator, that's just his job.

D

That's just what he does that's and that's a process. We're not going to wait for that.

D

Withdraw your we're, not we're not going to apply uh even hear. Your variance request is what he says.

D

Then, when I say to him chris, you can't do that. He goes okay denied.

D

Then, when I say to him, then he says: I'm denying it because you can relocate up there, which he.

D

Didn't say on the water resource easement, he didn't say on any of the other processes, but.

D

Now he's saying it, I don't care what he knew about it now, he's saying it it's and- and we say.

D

Chris, you can't do it, you can't relocate it and he says yes, you can, he goes back and and he any.

D

Any researches or he talks with people he comes back. He goes, I think, there's a way you can do it.

D

And we're just the department to give it to you, because we're going to call it a special purpose.

D

Plaid it's not allowed under the regulations. We have these policies and for you, mr [ __ ].

D

We're going to allow you to put it up there and you know why we're going to allow you.

D

To put it up there, because that makes my rationale for denying your variance work.

D

Because you can put it up there and that's what I need and you know why. I need that, because.

D

We all know that you can't put it up there. You don't want to, because you got all that contrast.

D

Equipment storage yard up there boys, we ain't that dumb around here, we know, what's going on.

D

And that's what's happened here and that's outrageous and that's.

D

Improper now to get to the meat of the variance determination, I think.

D

We've shown more than enough hardship, especially when you start balancing.

D

The uses I mean I hate to rely on common sense because I'm a lawyer but 0.08 you saw the forest.

D

Forest bank, and by the way in the ordinance forest banks, are required to be good forest. This forest.

D

Might be priority one, but I'll bet you. It wouldn't qualify for a sports bank, but I don't know that.

D

So you've got an incremental benefit that mr hein wants to attain.

D

Let's assume, for the sake of argument that he doesn't want to attain the contrast equipment.

D

Storage, you are getting getting cleaned up. He just wants to attain the benefit that would occur from.

D

Taking 0.08 acres and putting the driveway up through that every place for that's the benefit.

D

And he looks at the detriment if he did at all and says that the balance, the balance.

D

The balance is, you know, I'm not giving the variants, you know, there's no, there's nothing.

D

On the other side that outweighs my environmental benefit, I'm going to get that now. We've tried to.

D

Show testimony that there's environmental enhancement it it it's clear that if you.

D

Didn't have a three acre environmental variants and you're gonna get one now, that's a benefit.

D

You know prior it's clear. The other thing I'd like to say is that the premise that mr hein apparently.

D

Has adopted, which is that, if you can relocate, you can't get a variance now, that's a he basically.

D

Said that explicitly, that's not the analysis and you can imagine first of all, it's not legally the.

D

Analysis, secondly, you can imagine how that would never be the the standard based on my hypothetical.

D

I mean there's often this is a unique, unique piece of ground. It's a tough piece of ground, but there.

D

Are often other places you could put them and and then you get into the well, you could put it over.

D

There and then the guy goes yeah, but I've got to put a 600 foot driveway in. If I put it over there.

D

Oh yeah, okay, that's a disturbance. uh You got to get through storm water, but that cannot be the.

D

Criteria- and it is not the criteria for denying this variance- this variance was denied because.

D

They wanted mr heim wanted the cr, the contract equipment, storage yard to be cleaned up, and he.

D

And he and then the settlement discussions which are in in the emails once it just confirmed that.

D

What did he say? Hey I, I went back and said you can do. We've we've invented well we're going to use it.

D

We're going to be nice people we're going to give you a special purpose, plait and we're going to let.

D

You do that and and again we're going to, let you do that. I say because it makes my variance denial.

D

Work um and the real reason here is that contrast coming to storage yard, that's impermissible! We're.

D

Asking this board to de novo to decide not whether or not you agree with chris high.

D

To decide whether or not based on the evidence before you, you would grant this variance.

D

Because that's that's the position you're in you're, not in a position of seeing whether.

D

Chris hein is right or wrong. You're you've heard the evidence today uh this is and and it's your.

D

Job to describe decide whether or not based on the law and the language and the testimony you.

D

Would grant this variance? I thank you very much for your attention. I know it's been. I don't know.

D

What it's been, but I thank you for your attention uh and appreciate your attention to the matter.

B

Thank you, okay. um First of all board members, I just want to thank you for your time and.

B

Attention uh to this matter, I know it's, um you know it. It's been a long day, uh a lot.

B

Of uh testament has been heard, and I just really appreciate um you guys uh sticking through it so.

B

um As uh council said, uh you were here sitting de novo, which means you are making your decision.

B

Based off of all the evidence and testimony that was presented here today, not on the mindset of.

B

Chris hein, when we're done today, the record it doesn't matter if chris hein made this variance.

B

Decision it doesn't matter if christopher columbus made this variant decision, that is up to the board.

B

Now why are we here? We are here for an appeal of a farce conservation request.

B

An appeal that was filed by uh the property owners on august 22nd, uh 2022.

B

That um forest conservation variant request was based off a denial of a variance request from.

B

Rtf associates, which has been entered into evidence, as opposition exhibit two. I believe.

B

Applicants exhibit five um on may 18th, where they say pursuant to carroll county code, 150 33. We are.

B

Hereby requesting a variance from the technical requirements from carroll county procedure for.

B

Release of forest conservation easement um the priority one forest is not eligible for release.

B

Of easement and we are requesting release of 0.084 acres of existing forest conservation, easement.

B

um That is partially in priority one forest and.

B

And they go on to say that the location of their lot was not haphazardly chosen, that they even use.

B

The word ideally, the lot would be on the use of the existing driveway access located on the north.

B

Side of morgan run, making it a much more cost effective option. Now they further say that it.

B

Was deemed not possible to do the off conveyance on the northern side due to possible steep slopes.

B

Which, when you look at our exhibit three or two, you can tell that there are steep slopes.

B

um Or that the northern portion of the property is not encumbered with so many steep slopes that.

B

It's actually almost significantly flatter than the southern portion of the property. They also.

B

Mentioned existing improvements, there's the existing house and the alleged contractors.

B

um Equipment- storage yard- that's not in compliance that was put there by the applicants, the property.

B

Owners and their third reason why they couldn't put the off conveyance on the northern side of the.

B

Property was the associated well and septic area, and it was determined that using any usable ground.

B

On the north side of morgan run would not support a sewage disposal area, just potential septics.

B

System replacement for the existing house, you heard testimony and you saw um from a opposition.

B

Exhibit three that the type of soil that covers the northern side of the property, that b type of.

B

Soil is a type of soil that would allow for a septic system to be installed on the property.

B

So that request went to mr hein and on august 15 2022 mr hein um sent a letter to um mr lemerman.

B

Mr schaefer and the applicant denying the farce uh conservation uh variance request and in his denial.

B

He goes through the relevant uh portion of the.

B

Chapter 1 chapter 150 33, which is the variance portion of the chapter.

B

And that variance portion of the chapter says the county may grant a variance from.

B

Any technical requirements included in this subchapter if there are certain exceptional.

B

Circumstances that such strict adherence to the provisions of this subchapter could result.

B

In unnecessary hardship or environmental uh degradation, unnecessary hardship is a legal.

B

Term of art, the maryland appellate courts have case law, defining what unnecessary hardship is.

B

The applicant claims that their unnecessary hardship, which is the right to develop the.

B

Off conveyance on uh the northern or on the southern part of the property, because.

B

The northern part of the property is just unsuitable for all development, where we have.

B

um Provided evidence and testimony showing that an off conveyance, a residential lot can be.

B

um uh Built on the northern side, and in fact the uh the applicants had said.

B

It would be ideal, it would be more cost effective to put it on the northern side.

B

um That the applicant of search that, due to several factors, development of the off.

B

Conveyance on the north side of the property is not feasible and must occur on the southern side.

B

um We went through the data the uh the applicant stated that he is a contractor by trade who.

B

Performs percolation tests installed septic systems and it was determined that any usable.

B

Ground on the north side of morgan run would not support a sewage disposal system. Just a.

B

Potential septic replacement for the existing house again, a opposition exhibit three show.

B

That that's type 3 or type b, soil that covered a majority of the property if the type of soil.

B

That is conducive to allowing such um septic- uh I guess allowances or permissions on the property.

B

um Moving forward the there has been a lot of discussion about the site plan process and all.

B

The processes and the costs of the process and how much time it takes um when it was testified.

B

To that the forest conservation easement that they are seeking relief from was on the plat.

B

Prior to the applicant's um getting mr lemerman's services, and as it is recorded.

B

On the plat in maryland, that means it's on constructive notice, which is another legal.

B

Term, which basically means if it is recorded, it's on notice for the whole world. It's a legal.

B

Fiction that if it's recorded that everyone in the world knows about it, jim, it's not on a plot.

B

The forest conservation easement was recorded yeah, but it's not on a plot.

B

It was record the forest conservation easement was recorded and because it.

B

Was recorded, that legal fiction continues that it is a notice to everyone in the world.

B

Now, furthermore, there has been a lot of testimony about the just the td and the tedious expensive.

B

uh Process um that this is going to- and you know, council sort of new found indignation.

B

That developing in carroll county takes time and costs money that the hardship is the amount.

B

Of time this takes and the amount of money it costs when that is what the code provides for.

B

Did county staff did not do anything outside of what the code calls for? They followed the code to.

B

What it calls for? Yes, it takes time. Yes, it costs money, but that's the process that the county has.

B

And that is not a hardship that is not a hardship, a relevant hardship for a variance request.

B

I mean if you accept their argument, that following the county code and the.

B

Process takes time and costs money, then every developer, every land use attorney would say. Oh.

B

I mean look at this development. I've tried to do it's taken so much time so much money.

B

Environmental regulations, subdivision regulations, any regulations, they're.

B

Irrelevant because look how much this has cost look, how much time this has taken.

B

That would hollow out and basically make the code not mandatory, but advisory just.

B

Something yeah you can follow, but if it gets too expensive, don't worry, it doesn't apply to you.

B

There's no case law that was uh provided or no authority that.

B

Was provided that shows that hardship, that a variance hardship is something.

B

Let me rephrase that there was no authority from any court in maryland, providing that an.

B

Unreasonable hardship is following a county code is following the law of the land, the ordinance.

B

There's also been a lot of discussion about the minimal um acreage that would be disturbed for the.

B

um For the driveway 0.08 and while I sympathize with them, because that is small- that's still.

B

The law, it's still the law, they still need to um apply for a variance from that. It doesn't matter.

B

It could be a hundred acres, it could be 0.1 acres if they disturb that they need a variance from it.

B

So, just in conclusion, the county followed the steps and the law and the code that is provided.

B

For by the board of county commissioners, yes, it is expensive. Yes, it takes time to develop, but.

B

The applicants that is not a hardship under the variance hardship standard the applicants have.

B

Not met the parents, hardship because they are able and according to their variance request.

B

Would prefer to have the off conveyance on the northern portion of the property, rather than the.

B

Southern portion of the property, which has been so expensive so time consuming, um whereas they.

B

Said in their original uh variance request that um it would be more expensive uh to do it on the.

B

Put the off conveyance and the development on the southern portion, and that is um something.

B

That the property owners decided to do rightly for themselves, but again it's not a reason to grant.

B

um A variance under the code as it exists. Thank you briefly. I find it interesting.

D

The amount of emphasis that the county puts on mr lemmerman's letter.

D

This is not a court case where we've got a pleading and strict rules of pleading.

D

Let's assume mr lemon was was wrong on his statement that he he that.

D

That it couldn't it, it wouldn't be good to go or wouldn't work on the north side of the property.

D

For the reasons he stated what we do know and let's assume he's wrong. That's you can't just.

D

Say well, I'm denying the variance, because you said that and now I think it's not true. You've.

D

Got to look at the whole variance thing and see if the guy's entitled to a variance it'd be like.

D

If you, if we would have alleged, there's a a big rock somewhere, it turns out it's not.

D

True, but there's other evidence in the case that indicates a variance you get the variance, in fact,.

D

Mr lemmerman should have said in here: you can't put it up there, because it's an add-on, parcel.

D

He didn't think of that at that point in time, which was true until they invented the special.

D

Plaque, but is that mean you don't get a variance because you put that in and didn't think of it.

D

um No, it doesn't, um and this characterization of we said we'd prefer the location up there.

D

That is not what we said. You heard the testimony we prefer to put it.

D

Where we are, what we said is that would be cheaper in the as I just referred to.

D

The county didn't go outside to code. Mr hein didn't go outside the code.

D

You heard him up here today when he, when he, when he cited that he brought it up.

D

Himself, the compliance section of that code, where he says basically, I've made a finding.

D

That you got a zoning violation and therefore there's here's the code you're dead. He can't make.

D

That binding that's outside the code, that's not the way the system works and, if there's any doubt.

D

As to the real reason for this, the contrast comes towards yard. It's elucidated in the.

D

Settlement negotiations, what did mr hein do? After we said we couldn't put the off commands up there.

D

He said yes, you can therefore no deal. The one percent has come in. Okay, no deal, no variance.

D

Because the deal was you get a variance if you can't put that put that thing up there. Okay,.

D

He says no, you can't no deal, but what did he say, however, I'll give you a variance if you.

D

Clean up the contrast from the storage yard- that's what's really going on here and that's improper.

D

Okay, that reveals the true intentions here. It's not a matter of. Can you put it.

D

Up there it's a matter of you got the and circumstantially. I mean you're, not potted,.

D

Plants, I mean you're allowed to think and infer from from evidence put in front of you.

D

I would argue to you the the sequence of those letters combined with the settlement situation.

D

You can conclude, but I don't have to have an email from him uh saying: hey john we're going to turn.

D

This down, because it's you know we're going to try to clean. I I don't have that, but I've got enough.

D

And more than enough, in my experience, to show that that was the improper reason, this variance.

D

Request was denied and, furthermore, to show- uh or at least argue to you, that the mere fact you can.

D

Relocate is not a dq, assuming you can with that special purpose plan now in terms of the hardship.

D

Yeah, it's not a hardship to comply with the county code. I I I'm not saying that it's a hardship to.

D

Comply with the county code times two or three meaning go back and start over we've you're gone.

D

You've gone all the way through here, and you know if you're a layperson which shorty kuhn is.

D

You got to say to yourself: well why didn't somebody bring us up sooner.

D

You know february 22nd john, you know they knew it's been discussed. uh You were out there for.

D

Your water resource conservation, easement, you gave it to me in that decision. You said I don't think.

D

You can use the other piece of your property, then after he found out about the contracts, equipment.

D

Storage yard, all of a sudden, he discovered, I think you can use that piece of your property.

D

And turn down the variants, I think it's improper and I I don't think it's correct.

D

um And I think there is a hardship here and I emphasize I don't think this is a variance.

D

Variance is a term of art, but it's in the zoning codes. These are environmental, variances, they're.

D

Different animals they're a matter of weighing the balancing the interest, and I think the coach.

D

Supports that and the and the relative benefit here to the environment. That's what we're we're.

D

Here to create an environmentally decent earth, including carroll county, and these ordinances.

D

Are designed to do it, the question is: does this do it? Is this what we need to do to.

D

Tell a private property owner what we've all said: that's what we need to do to get a decent earth.

D

When you bounce and and again I want to emphasize if we do go somewhere else, we're going to have.

D

Environmental effects, we don't know what they're going to be, but they're going to be environmental.

D

Effects, tough piece of property my client owns it wants to. So we appreciate the we appreciate.

D

Your concern, your your attention. I have a quick rebuttal to that rebuttal. Well, it's not customary.

D

Because if you rebut I'm going to rebutt, are we just going to keep doing that until the cows come.

D

Out no, the rule is it ends here. Fine, I've got I'm here as the appellate. No okay, that's close.

B

F

We're gonna go into recess, discuss the matter.

G

First of all, um there's a lot of debate on this on this case.

G

It's a lot of information and misunderstandings and things that go on that from from you, the.

G

Owner perspective and from the county perspective, um all kinds of unknown things that are hanging.

G

On there that affect the outcome of something like this and it's a very difficult thing and.

G

We we delivered it, I mean, even though we might not have taken a lot of time, uh although this has.

G

Been a pretty long case uh it, it was difficult, it was difficult, so, um where I come from, is that.

G

The decision was made by the owner back in 2018 to start gathering data and information.

G

And surveying for the southern uh plot to get all the information you needed to build there.

G

And at that point, when you launched in you started spending that money you didn't have.

G

Any idea that there was a forest conservation area there, you didn't find that out until early.

G

2002-22 but then you'd spend all that money and then you go ahead and and at that point.

G

You had no reason to believe you were going to get turned down, so you asked for the request for.

G

um Yeah for the forest conservation um requests to be to be able to build there and at that point.

G

um You were rejected and well, I guess you found out in february march or something about that.

G

There was a conservation area and that and that by that time, you'd spent all that money uh and then.

G

You went ahead and you you should do a requests for the variants and then it went to the county.

G

And then the county comes back and says no uh at that point um I feel like, even though uh a lot.

G

Of information is cut out. That's been presented here, a lot more detail, information that was not.

G

Available when you went ahead and requested the variance so a lot of information still coming out.

G

um But still um the responsibility in my in, in my opinion, is on the owner, even though.

G

You may not have known that there was a very the conservation forest conservation area, uh you're.

G

Still responsible, I mean it's not responsible for the county to tell you that. That's something.

G

You're responsible, for I can see myself by the way getting in the same situation. You got into.

G

Because how would I know, how would you know if it's not on the plat, it wasn't on the plat? I don't.

G

Know who whose liability is for not having it on the plaque, but it wasn't there so, but ultimately.

G

You you made decisions, spend the money. This is where you wanted to go. I'm sure it's aesthetics.

G

It's a beautiful place to build a house and live, and you prefer that in the northern part.

G

Where all the clutter and infrastructure is, and so you went ahead and did it and.

G

The and then the county comes back and says well for three reasons. uh I can't grant you that.

G

Because of you can build in the northern part and there's complexities on that. What is the answer.

G

To building in the northern part and there's issues on that like the extra land but ultimately.

G

um I just felt like um the responsibility is on the burden for the owner to.

G

um That you made the money, it's not a hardship, it's a risk that you took.

G

um But you didn't know it at the time, but it's a risk that you took to spend.

G

That money to find out uh where you wanted to build a house. But then you got rejected.

G

And now you want to call that a hardship and to me it's a risk um to me. It's a it's.

G

A it's again, it's a shame because I can, as I said, I see myself doing the same thing and.

G

It is what it is, and the county regulations and the procedures that you have to follow is going.

G

To double your costs, yes, it's something you're going to have to that. I feel you're going to have.

G

To go through- and I don't know at this point who to blame, I think part of land ownership and things.

G

Is a mystery to a lot of people? There's a lot of information. You know in retrospect. Maybe you get.

G

A lawyer when you go through this process to start digging and searching and finding out and then the.

G

Conservation area would have been identified early in the process would have saved you money enough.

G

Time and everything else, but you didn't know uh so again, um that's my opinion but you're allowed.

D

To ask for a variance they'll have to ask that doesn't mean we have to that doesn't mean you're.

D

Going to get it, I'm well aware of that you're allowed to ask for a variance it's just because.

D

You have an ease. One on your property doesn't mean you're dead. Yes, for that's why this anyway,.

D

Right, that's why this is the system has a variance requirement to address these situations. I think.

H

Thank you sure, yeah. I agree with a lot of what kurt said. um I feel this is kind of uh well one.

I

It's been a really tough uh decision to make and I feel like it's an unfortunate set of circumstances.

I

um That has led us to this point um that more uh diligence due diligence, more communication would.

I

Have probably saved a lot of time and money, but I do feel like whatever hardship argument you make.

I

For a hardship is also been self-inflicted, um so I also worry about the precedent that this would set.

I

um Somebody buys a property um makes the claim later on, while I did not know that it.

I

Was conservation and then asked to be able to use it for a certain use? um Those are.

I

um Yeah, and also I also feel like there is, you- do- have an option to move forward. uh It might.

I

Not be the of the one you want and maybe there's a way to still work work things out, I'm not sure.

I

um So I don't think this absolutely shuts the door on you. Building on your property.

F

I agree with my colleagues and, in addition, I'd like to add that, um based on the evidence, I don't.

F

Believe chris hein acted in bad faith and I also don't believe that there would be a significantly.

F

Net improvement into the environment improvement to the environment, um even though you're you're.

F

Adding um easements there would be considerable uh disruption to the environment, bulldozing.

F

And, and building on that steep slope and and disturbing all that soil in that forested area.

F

um And in that, on that note, I'm open to taking a motion to deny the quest for variance.

F

All who agreed to a deny say I or I need a second. I need a second, yes, you need somebody to make.

F

Them I need a second yes, thank you that we reject the request for variance by the property property.

F

All in favor say aye aye, aye.

D

Thank you for your time.

E

Threaten decision which will be issued within 30 days unless otherwise extended by the board.

E

And then there's an appeal rate: that'd be another decision or that'll be in the decision. Yes,.