After Procedural Turmoil, Cafritz Hearing is Recessed

The District Council hearing on the proposed rezoning of the Cafritz property went into recess Wednesday afternoon after more than five hours of proceedings. Below is a recap.

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5:06 p.m.: Recess

The Cafritz hearing is now in recess until 10 a.m. Friday, at which time—according to Chair Andrea Harrison—the District Council will attempt to recess quickly to later date (TBD).

4:53 p.m.: 'The threat of Whole Foods'

After extended debate about balancing the board's legal commitment to meet on Friday (as advertised) and the desire of residents to prepare for an evidentiary hearing, Chair Andrea Harrison brings some clarity to the matter. She says the board will meet this Friday, April 13 and attempt to recess quickly to a later, yet-to-be-determined date.

Reed rises to note that the developer is under significant time pressure from Whole Foods and asks that the next hearing be set earlier than mid-May, as initially suggested.

"The threat of Whole Foods doesn't move this body," Harrison replies. "We have to do what we feel is right for the county and not a specific user."

4:36 p.m.: Cross-examiniation sticking point

Several residents express dismay at the evidentiary nature of the public hearing, arguing that they had intended to offer less formal comments without being placed under oath.

Del. Justin Ross (D-22) suggests that the council consider a "gentleman's agreement" to let average citizens testify without being sworn in. Brown advises that while individual attorneys can waive their right to cross-examine, the council cannot exempt residents from the general rules of an evidentiary hearing.

Cafritz attorney Chip Reed says he will waive his right to cross-examine non-lawyers who testify. Attorney David Podolsky makes the same commitment.

4:01 p.m.: Mark your calendars, maybe

We're back. Chair Andrea Harrison says the council will recess the hearing to its carryover date—this Friday, April 13 at 10 a.m.—and may or may not be able to finish on that day.

College Park resident Leo Shapiro asks if people who came to the hearing expecting to testify can be reimbursed (answer: no). Attorney Susan Gray asks if there is any way to schedule a follow-up hearing with more warning time, given that many people are unable to come Friday. Others rise with similar concerns.

"I don't know how many working parents you want to encourage to come to these hearings, but the timing of this and the scheduling of these hearings have made it very difficult," says University Park resident Susan Dorn.

3:38 p.m.: A recess in the offing?

Chair Andrea Harrison says that a continuation of the hearing to Friday is very likely at this point, given the amount of testimony and cross-examination yet to be heard. 

Brown asks whether Harrison wants to consider recessing the hearing until Friday immediately given the earlier confusion of participants as to the exact rules of the process.

"I don't believe either side is prepared to do what is necessary in this evidentiary hearing today," says Brown.

Harrison asks Lareuse how much more material she has to go over. Her answer—about 30 minutes—elicits groans from some members of the audience. Harrison immediately calls a 10-minute recess.

3:30 p.m. More procedural confusion

Brown objects when George Johnson, associate counsel for the Park and Planning Department, rises to clarify a remark made by Susan Lareuse on the grounds that she has been given special latitude not afforded to other witnesses to deliver an orientation on the project. Brown adds that he and other attorneys will continue to raise similar objections, as this is a hearing subject to cross-examination and other evidentiary rules.

3:01 p.m.: People's counsel objects

People's zoning counsel Stan Brown objects to Lareuse's inclusion of a marketing study in her presentation. He adds that he will oppose the inclusion of any document in the record submitted by someone who was not present for cross-examination at either the Planning Board hearing or the District Council hearing.

2:48 p.m.: Planning Board record adopted

After the council officially adopts the Planning Board's record, County planner Susan Lareuse launches into a lengthy PowerPoint overview of the Cafritz plan similar to the one she gave at January's hearing.

2:25 p.m.: Hearing resumes

And we're back. Before county planner Susan Lareuse delivers a presentation on the Cafritz application, people's counsel Stan Brown asks if the entire audience is willing to be sworn in en masse for purposes of testifying. One person objects, meaning witnesses will have to be sworn in one by one.

1:20 p.m.: The motion fails

The motion to remand the case fails 3-6. Harrison takes the hearing into recess for lunch.

1:16 p.m.: Motion to remand

Council chair Andrea Harrison motions to remand the project to the Planning Board in light of the procedural issues raised during Wednesday's hearing.

"It is only fair to this body that we have something before us so we can review the case as it is and can hear from the constituents as they desire," Harrison says.

1:05 p.m.: County Attorney responds

County Attorney M. Andree Green rebuts several of the concerns raised by people's counsel Stan Brown.

She notes that the 105-day window was originally introduced as a protection for the applicant and says the the council "would in no way, shape, or form be prejudiced" by looking past the deadline violation in this case.

Green also says that she doesn't believe remanding the case would be appropriate, "because there hasn't been a final decision by a body at this point. … There's only been an advisory opinion."

12:55 p.m.: 'Not an express, fatal error'

George Johnson, associate counsel for the Park and Planning Department, argues that exceeding the 105-day timeline was "not an express, fatal error" on the part of the Planning Board.

12:44 p.m.: No Keystone Cops

District 2 Councilman Will Campos says that in eight years on the council, he has never seen such a thorough debate over whether proper procedure was followed.

"I don't feel comfortable remanding just on the issues that were put forward this morning," Campos says, adding that he doesn't believe the Cafritz team and proponents of the project would have made such a significant procedural error.

"I can't believe that they keystone-copped this," Campos says.

12:40 p.m.: Olson weighs in

District 3 Councilman Eric Olson says he would be concerned about the council moving forward knowingly with a record that includes invalid material.

12:27 p.m.: Proceed, remand, or dismiss

People's zoning counsel Stan Brown says he believes the District Council can either move forward with a potentially tainted record, remand the case to the Planning Board to clarify procedural and jurisdictional issues, or entertain a motion to dismiss it entirely.

"The [105-day] clock begins to run again from the moment you send it back to the Planning Board," Brown says.

12:14 p.m.: Feb. 2 hearing not valid?

Anything that occurred at the Planning Board hearing on Feb. 2—including the board's 4-0 vote—is outside of the official record, says Brown, as the board failed to take action within the required 105-day window after it continued its hearing from January.

"If no decision or resolution was adopted within 105 days, there is no resolution," Brown says.

Brown also says the Planning Board's belief that it was not permitted to deny the application outright is "problematic" and unsupported by the law.

"The planning board proceeded to process this application on a mistake of law," he says.

11:57 a.m.: Planning Board procedural error

People's zoning counsel Stan Brown says he believes it was inappropriate for the Planning Board to limit the content of its second hearing date (Feb. 2) only to . However, he says such a procedural error—as well as any previous failure to allow cross-examination—can be corrected during the District Council's hearing. 

11:53 a.m.: 'Carefully avoided'

College Park Leo Shapiro charges that the Cafritz attorneys have "carefully avoided" earlier comments from University Park resident Susan Dorn stating that a M-UTC extension must meet the same criteria as the original zone. Shapiro says that the Cafritz property does not.

11:30 a.m.: Chip Reed responds

Cafritz attorney Chip Reed argues that College Park attorney Robert Manzi's letter "flagrantly" misstates the law. "It's just torturing the statute and transposing language ... it's a matter of statutory disembowelment," Reed says.

11:23 a.m.: Piecemeal map amendment process

Speaking on behalf of several residents who oppose the project, attorney Susan Gray says the Cafritz application cannot be considered because it represents a new M-UTC zone—something that cannot be created through the piecemeal map amendment process.

11:15 a.m.: 'Quasi-judicial matter'

College Park counsel Robert Manzi raises several objections about the rezoning approval process, including the claim that the Cafritz proposal is a "quasi-judicial" matter and should include cross-examination.

10:55 a.m.: Jurisdictional issues

After an invocation, the District Council's hearing gets under way. Chair Andrea Harrison turns the floor over to people's zoning counsel Stan Brown. Brown reports that he has received a letters from College Park attorney Robert Manzi and other lawyers raising procedural and jurisdictional issues arbout the hearing process. Brown says the council is within its rights to rule on these issues before reviewing the merits of the case and states that each attorney of record will have five minutes to state his/her opinion on the matter.