Attorney asks board to reconsider 2011 order on garage expansion; board to review written submissions

Counsel for Mr. and Mrs. Rice asked the St. Mary's County Board of Zoning Appeals to reconsider the board’s March 24, 2011 final order that reversed the planning director’s decision to issue building permit number 7-118 for an expansion to an existing garage.

Chris Longmore, attorney for the Rices, told the board the local rules permit reconsideration when good cause is shown and argued his clients met two of the three standards: a mistake of fact or law and other good cause. He said the board’s factual finding that a portion of a slab would remain within the setback had no credible factual underpinning in the transcript and rested largely on an opinion by Mr. Kuzmic; Longmore asked for a new hearing so the Rices could present evidence rebutting that opinion.

Longmore also said staff historically has not treated subterranean features, such as slabs, as encroachments and argued the planning director’s original permit determination was correct on a plain reading of the ordinance. He asked the board to grant reconsideration promptly if it chose to do so.

Opposing counsel, John B. Norris III, responded that the earlier hearings in 2007 and 2008 covered the factual issues, that principles of res judicata apply when an agency acts in a judicial capacity, and that the record already contains the arguments the Rices now raise. County Attorney George Sparling advised the board he would assist if members had legal questions while reviewing the submissions and commented that, from his review, there may be a mistake of law if the board’s decision treated a flat slab as an encroaching structure for setback purposes.

Because some board members had not yet received counsel’s written submissions, the chair paused the debate and directed staff to collect both sides’ letters. The board agreed to review the written filings before deciding whether to rehear the case; counsel asked that, if reconsideration is granted, the rehearing be scheduled at the earliest available meeting. The chair said staff would attempt to place the matter on the next available agenda after the board’s review of the submissions.

Board members discussed procedure: if the board later decides to rehear the matter, the rehearing would be a public hearing and would require property posting and notice as if it were an original hearing. The board did not make a final decision to rehear at this meeting and did not schedule a rehearing date at the session.

The board also asked staff to circulate the submitted letters to board members before the next meeting so members can review them in advance of any decision on reconsideration.