Good evening everybody, good evening board members.

Welcome to the October 28th, 2014 meeting of the Zoning Board of Appeals.

Tonight the business before the board.

We have a one uh housekeeping measure under board business and then only one item under old business continued from our last meeting, uh, which is case CBA 14-170A.

Uh so uh members of the board, uh, you have before you the minutes from the September 23rd, 2014 uh meeting of the zoning board of appeals, and I'll entertain a motion.

I move to approve the September 23rd minutes.

Have a motion from approval from Mr.

Butcher.

Do we have a second?

Second.

Second by Mr.

Patchon.

Do we have any further discussion of the motion?

No, seeing none.

Uh all those in favor signify by saying aye.

Aye.

Any opposed?

No.

Then the minutes from September 23rd are approved as written.

Uh item number two on our agenda is general public comments regarding zoning.

Uh, if there is anybody here tonight that would like to speak in general terms about zoning.

Seeing none, we will move on to old business.

And as I mentioned previously, under old business case ZBA 14-17A appeal for the Crum Land Mixed Use Master Plan.

We uh heard testimony regarding that case during the September meeting and uh had discussion and came to a preliminary finding.

Uh those findings were put together in a draft letter that uh if it's agreeable with the board, I will read into the record just so that we uh have it for discussion.

Uh and then we can um uh discuss uh the particulars of the letter and uh finalize uh whatever we need to do along those lines.

Findings conclusions, decision and order of the zoning board of appeals of the city of Frederick, Maryland for an appeal by LaRue Call uh et al.

from the decision of the planning commissions to approve the crumb land mixed use plan master plan, uh which case PC 13-279 MU submitted by Crum Farm Land Development LLC and Crumb Farm Commercial Development LLC.

Uh introduction.

This case comes before the zoning board of appeals on appeal from the planning commission's February 10, 2014 decision to approve the master plan for the property generally known as Crumland, consisting of several tracts of land in total plus or minus 538.41 acres located at the northmost northernmost boundary of the city and on the west side of Route 15 and the south of Sundays Lane.

The approved master plan, uh herein uh referred to as the master plan, permits the development of crumb land as a mixed-use development.

Applicable law.

The land management code of the City of Frederick, Section 315D governs the action of the zoning board of appeals in this appeal.

That section requires the ZBA to determine whether the action of the planning commission was arbitrary, capricious, discriminatory, or illegal, and whether the planning commission has properly applied the governing law to the facts.

Further requires the ZBA to consider the following four factors.

One, whether the planning commission recognized and applied the correct principles of law governing the case, including whether this code was properly interpreted, and two, if the decision was not in error, whether the decision was supported by substantial competent evidence, i.e.

by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The board shall resolve any conflicting evidence and where inconsistent inferences can be drawn from the same evidence, draw the inference that it believes is correct based upon the evidence presented in the record, and three, how the planning commission applied the law to the facts, and four, whether the zoning restriction is constitutional or validly applied.

Number one, on September 4, 2009, the city approved resolution 09-18, which annexed 285 acres of the crumb land property known as Crum 1.

On November 19, 2009, the city adopted the city's 2010 comprehensive plan.

Number three, on March 15, 2012, the city approved resolution 12 30 annexing 252 acres of the crumb land property known as Crum II.

Resolution 12 30 stated that the two crumb annexations would be consigned into the consolidated crumb holdings and developed accordingly to the phasing specified in resolution 12 30.

Resolution 12 30 also stated that the city found the crumb 2 annexation to be consistent with the 2010 comprehensive plan.

Number four, the acreage comprising the crumb two annexation was designated as tier three in the 2010 comprehensive plan.

Tier 3 is described in the 2010 comprehensive plan as follows third tier growth, future growth areas.

The third tier growth boundary represents the city's future outer growth boundary and identifies property proposed for annexations into the city after tiers one and two tier two have been substantially developed, generally in the 20 to 25 year timeframe.

Properties included within the tier three growth boundary lie outside of the service area currently delineated in the Potomac River water supply agreement and the city's ability to serve these properties with municipal services has not yet been evaluated.

However, these properties identified on the land use policy map to indicate to the Maryland State Department of Planning, Frederick County and surrounding municipalities that the s that the city intends to plan for the future development of these properties and thereby to preempt potentially inconsistent and or incompatible land use recommendations and or zoning approvals for these properties they may otherwise originate in other jurisdictions.

That's from the 2010 comprehensive plan pages 25 to 26 subsequently Folger Pratt development on behalf of the property owners submitted the master plan application for crumb land and that was case PC 13-279 MU.

Number six on February 10 2014 the Planning Commission unanimously approved the master plan.

Number seven, on March 11, 2014, appellants LaRue Kelbaugh and L, known as the appellants timely filed an application to appeal the Planning Commission's approval of the master plan.

Conclusions of law appellants in this case argue that the Planning Commission acted unlawfully in changing the tier classification and development limits of the comprehensive plan by approving the master plan rather than by amending the comprehensive plan.

Having heard oral argument and reviewed memoranda submitted by the parties to this case we conclude as follows number one appellants argue that the LMC is quote a binding date on the city to develop and grow in a manner that is consistent with the comprehensive plan.

They further claim that the development of crumb two is inconsistent with the 22 comprehensive plan.

These arguments are not pervasive.

We conclude that the comprehensive plan was not binding as to its tier classifications for crumb two because crumb two was not located within the city boundary at that time.

The city had no planning or zoning authority over that land.

Number two major decisions with respect to the timing of development of the crumb properties were properly made by the city as part of the process of annexing crumb 2.

The city expressly found that the crumb two annexation plan was consistent with the municipal growth element of the comprehensive plan.

The present appeal of the planning commission's decision to approve the master plan is not the appropriate venue for arguments that would have been more appropriately raised at such time as the city properly annexed crumb two in 2012.