County Council Meeting Minutes
March 2, 2010
County Council of
Regular Meeting Minutes
March 2, 2010
The County Council of Dorchester County met in regular session on March 2, 2010 with the following members present: Present were Jay L. Newcomb, President; William V. Nichols; Ricky Travers; and Rick Price. Also present were E. Thomas Merryweather,
The Council adjourned from a Regular Session and convened in a closed Executive Session pursuant to the State Government Article pursuant to §10-508(A)(1) to discuss the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees, or officials over whom it has jurisdiction and pursuant to §10-508(A)(3) to consider the acquisition of real property for a public purpose and matters directly related thereto.
Voting in favor of the closed Executive Session were all Council members.
Councilman Newcomb noted that Councilwoman Elzey is not present due to illness. He recognized that former Commissioners Jack Colburn and Glenn Payne were present.
INVOCATION AND PLEDGE OF ALLEGIANCE
Councilman Price led the invocation and the pledge of allegiance.
CALL FOR ADDITIONS OR DELETIONS TO AGENDA
The Council approved the removal from the agenda a discussion regarding an administrative cell phone/electronic device policy resolution.
APPROVAL OF MINUTES-FEBRUARY 2, 2010, FEBRUARY 16, 2010
The Council approved the minutes for February 2, 2010.
The Council approved the minutes for February 16, 2010.
APPROVAL OF DISBURSEMENTS
The Council approved vouchers as presented with Councilman Travers abstaining for payments made to Simmons Center Market.
FINANICAL REPORT: CASH AND INVESTMENTS
Councilman Newcomb reported total cash and investments as $4,774,723.99.
EXECUTIVE SESSION SUMMARY
The County Council of Dorchester County convened in an Executive Session at 5:00 p.m. on March 2, 2010 in a closed session at Room 110, County Office Building, 501 Court Lane, Cambridge, Maryland, pursuant to the State Government Article §10-508(A)(1) to discuss the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees, or officials over whom it has jurisdiction and pursuant to §10-508(A)(3) to consider the acquisition of real property for a public purpose and matters directly related thereto.
Motion made, seconded and carried to conduct a closed session pursuant to the above. All members of the Council voted in the affirmative to conduct the closed session for the purposes stated above and to discuss the topics listed above.
Action taken at the closed session: 1) based on a request from the Circuit Court Judge, approved contracting with an individual to work as a social worker for the Dorchester County Family Access Center by a 4 to 0 vote; 2) confirmed the Sanitary Commission’s decision to place a probationary employee to permanent status in the Sanitary District Office by a 4 to 0 vote; 3) discussed an administrative resolution pertaining to a cell phone and electronic device policy – agreed to remove from open session by a 4 to 0 vote; 4) at the request of the Sheriff approved the transfer of an employee from the 911 Center to the Sheriff’s Office to fill a vacant Warrant Control Officer position by a 4 to 0 vote; 5) discussed a matter relating to personnel in the Highway Division of the Public Works Department–agreed to discuss in open session; 6) deferred the request of the Economic Development Director to fill a vacant administrative position due to an existing employee’s resignation by a 4 to 0 vote; 7) deferred a legal matter relating to the purchase of property that was not purchased at a tax sale held in 2009 by a 4 to 0 vote.
The above information is being provided to the public pursuant to and in compliance with Section 10-509(b) and (c) of the State Government Article.
PROCLAMATION-RED CROSS MONTH-MARCH 2010
The Council presented a proclamation declaring March 2010 Red Cross Month. Betsy Tuttle, Manager for the American Red Cross, accepted the proclamation.
Councilman Newcomb noted that Council had requested that legal counsel research records to determine the ownership of the parcel of land on Green Point Road that runs between the property owned by Daniel and Stephen Creighton and Kathleen H. Carmean, based on concerns expressed by Mr. Creighton regarding the public misuse of the property.
Mr. Merryweather noted that he engaged in an extensive land record research for over one year regarding the ownership of the land and that the research was independently reviewed by another attorney. He said that both he and the other attorney have determined that Green Point Beach, including the unpaved strip of land between the beach and the end of Green Point Road, has not been accepted into the County system. Mr. Merryweather explained that residents in the Green Point subdivision have been given the right to use the beach and road which is reflected in the deeds to their properties. He expressed his opinion that, based on this right, the roadway cannot be barricaded.
Mr. Merryweather explained that in order for a road to be considered a County roadway there must be an expressed or implied dedication by the property owner and acceptance by the County of the roadway. He explained that the most common way in which a property owner expresses or implies a dedication for a property is to record a plat in the Land Records for Dorchester County.
Mr. Merryweather advised that County staff have researched and cannot find a recorded right of way or any other documentation that the County has maintained that roadway. In response to a question from Mr. Merryweather, Mr. Weber confirmed that Highway Division staff cannot locate any records that County staff has maintained that roadway.
In response to a question from Daniel Creighton, a Green Point Road property owner, regarding actual ownership of the subject land, Mr. Merryweather said that the developer of the Green Point Road subdivision and/or his heirs or assigns owns the property. Mr. Creighton advised that Samuel Webster was the developer.
Dave Clifford, a Dorchester County resident, questioned if the property owners of Green Point Road are responsible for insuring the property. Mr. Merryweather noted that the property is owned by the heirs of Samuel Webster and that ownership is superimposed with the burden that everyone in the area has the right to use the road and beach. He said that as he originally suggested, he believes the residents on Green Point Road should form a community association to regulate the use of the property.
Ted Marshall, a Green Point Road property owner, provided the Council with the following: 1) petition from Green Point residents; 2) pictures of the roadway; 3) excerpts from the County Council August 26, 2008 and October 7, 2010 minutes; 4) plat of Green Point mapped by Lawrence Simmons dated 1929; 5) picture of Green Point Beach from 1940; 6) letters to Mr. Creighton and Ms. Carmean regarding use and barricade of property; 7) sworn statement of fact from Charles Marshall regarding historical facts relating to the use of the property; 8) plat of Green Point dated April 25, 1956 mapped by Lawrence F. Simmons, Registered Surveyor; 9) correspondence to and from Daniel Creighton by the Council; 10) letters from Ted Marshall and Leroy and Theresa Campbell regarding the deferral of the Green Point matter due to the employment of Mr. Creighton; 11) documents from a December 5, 2000 Board of Appeals request for variance applied for by Jeffrey and Lois Creighton; 12) a drawing of the 3600 Green Point Road property owned by the Creightons; 13) sections of tax maps showing the property; 14) approval and documentation for the placement of a pier on the Creighton property; 15) letter from Secretary Volunteer Fire Company; and 16) letter from the Commissioners of the Town of Secretary.
Mr. Marshall presented a notarized Sworn Statement of Fact signed by Charles H. Marshall in which he stated that in the 1950’s there was public water access to the Green Point Road Beach and that he and his parents customarily went swimming and boating from that property. He noted that it also referenced a lawsuit undertaken by Early Abey, for which he was a witness, where the Judge stated that the piece of land was public and the adjoining land owner at the time was told not to place her wood on the property.
He referenced the 1929 plat mapped by Lawrence Simmons, Surveyor, and noted that it shows two road systems, one from a loop from Route 14 to Route 16 and then directly down to the beach and the other parallel to the water. Mr. Marshall said that the 1929 plat refers to a public county road. Mr. Merryweather noted that the 1959 recorded plat mapped by Lawrence Simmons, Surveyor does not refer to the road in question as a public road.
Mr. Marshall referenced July 10, 2000 in which the County Council approved the request of Steve Dodd, Planning and Zoning Director to issue a letter of no objection to the proposed construction of a timber pier on the property owned by the Creightons, which property is adjacent to the County’s property on
Mr. Marshall referenced the December 5, 2000 request for a variance signed by Jefferson and Lois Creighton, attached to which is a plat showing the area in dispute, that notes the roadway to Green Point Road Beach was a private lane.
He said that it was his understanding that the beach and roadway has been accessible to the public since 1940. He noted that in 1950 there was no public boat ramp in the Town of Secretary, and that everyone in the area used the property to launch watercraft.
Mr. Marshall thanked Ms. Baynard, her staff and the Council.
Suzanne Shimek, a
Jack Colburn, a Dorchester County resident, expressed his opinion that the road to the waters edge is owned by the County. He said that he wants public access to the road and beach recorded in the Land Records of Dorchester County and to remain permanently open to the public.
Mr. Creighton explained that his family has owned the property since 1940 and that he built a new house on it in 2000. He said that since 2000 he has experienced problems that he attributes to the inappropriate use of the beach, including his house being burglarized, shrubs being destroyed and individuals urinating and leaving trash.
He said that the majority of individuals who use the roadway and beach are not disruptive. Mr. Creighton noted that he contacted Councilman Price in 2008 regarding his concerns and that in August 2008 he received correspondence noting that the roadway and beach were not owned by the County. He explained that when he placed the barricade across the road he sent letters to Green Point Road property owners and that he only received opposition from Ted Marshall.
Mr. Creighton expressed his belief that the road is not County owned but stated he did not have a concern with the residents of Green Point road using the beach area. He said that he uses the roadway as access to his house and wants a sign placed on the beach noting rules, including no use from sunset to sunrise. He said that he is willing to discuss installing the signage with residents in the area.
Stephanie Simmons, a Green Point road resident, said that she and other full time residents in the immediate area of the beach and roadway have been advised by Sheriff James Phillips that he cannot respond to phone calls regarding public nuisance on that property because no regulations are posted. Ms. Simmons noted that there has been a problem with trash being left at the beach. She advised that there has been late night use of the beach.
Tom Shimek, who lives in the Town of Secretary, said that he went to school picnics at the beach in the early 1940s. He expressed his opinion that the roadway and beach should not be closed to the public.
Connie Payne, a Dorchester County resident, said that she sympathizes with the Creightons because there were a number of disruptive incidents at the beach in the summer of 2008 and that she believes three individuals who rented a house in the area were the main culprits. She noted that they only rented the house for 13 weeks.
Glen Payne, a Dorchester County resident, said that he has been a Maryland State Trooper for over 30 years and responded to no complaints on the roadway or Green Point Road beach. He noted that he received a letter from the Sheriff that during the summers of 2008 and 2009 patrol checks by the Sheriff’s Office deputies were made on the roadway and beach and that he was only aware of one incident in which the intervention of Sheriff Deputies was required. He agreed with Ms. Payne, his wife, that the individuals who no longer live in the area were the main users of the Green Point Road beach when problems existed.
Susan Dukes, a
Beverly Madden, a Green Point Road resident, suggested that a sign can be installed that says no access to the beach or noise after 11 p.m.
Paul Abey said he has lived on Green Point road for 59 years and that he swam in the water there when he was a child. He said that Elvin Thomas, prior County’s Public Works Director, had the road paved by County staff down to the beach. He said that he lives within 300 yards of the property and that it should remain open to the public.
Mr. Creighton reiterated that he is not opposed to public access to the beach, particularly local residents, and that his main concern was having vehicular access to his property.
Leroy Campbell, a Green Point Road resident said he lives across from Bill Abey and expressed his opinion that Mr. Creighton can park in his yard instead of in the roadway.
Hollie Robbins, a Green Point Road property owner, said that he has lived there for 40 years and that he and his son cut the grass there and has never had to remove any trash in order to cut the grass. He noted that on occasion he has asked individuals who use the beach to take their trash with them.
Mr. Marshall expressed his opinion that the only way the road and Green Point Road beach will remain open to the public is to have it accepted as a County road and beach. He said that he also wants a sign with regulations posted in that area, which includes daily parking. Mr. Merryweather questioned if Mr. Marshall, Mr. Creighton and other area residents are willing to work together to either install signage or form an association. Mr. Marshall said that he does not believe they will be able to do so, particularly in light of the fact that many of the Green Point Road property owners are not local residents and they may be hard to reach.
In response to a question from Joy Dayton, a Dorchester County resident, Councilman Newcomb said the Sheriff’s Deputies or Department of Natural Resource Officers maintains control and order at boat ramps in the County. Ms. Dayton questioned why the Sheriff Deputies cannot do the same at the Green Point Road beach.
Mr. Clifford noted that legal counsel said that the property is not owned by the County. He said that based on that legal opinion he believes access to Green Point Road beach should be limited to the area residents and should not be accepted into the County system because then anyone in the State can use the beach.
Mr. Payne questioned if real property taxes are being paid on the property.
Councilman Price said that he has been contacted by individuals on Green Point Road regarding disorderly complaints about the use of the beach after dark. He said that he met with several residents and the Creightons about the matter. He noted that he spoke with Sheriff Phillips and that he advised him that they can patrol the area. He questioned if residents wanted the Council to accept the road into the County system.
Mr. Clifford expressed his opinion that the property should not be accepted by the Council on behalf of the County because it can then be placed on maps as a public beach which will open it up to everyone to use.
Mr. Simmons also expressed concern about the property being accessible by the public at large. Ms. Shimek said that at one time there was a hotel on Green Point Road, and the individuals who stayed at that facility used the beach.
Timothy Shea, a
In response to a question from Councilman Newcomb, Mr. Merryweather said since the roadway was present before subdivision regulations were passed in 1973, the road will not have to be brought up to County standards before the Council accepts the road.
Mr. Marshall said that based on the testimony given by the public, he believes the road and Green Point Road beach should be considered County owned property.
Steve Whitten, a land surveyor, said that he was not a resident of Green Point Road, and questioned if the Council can abandon the road in the future. Councilman Newcomb said that a public hearing will have to be held before the road can be abandoned.
Joe Moline, a Dorchester County resident, said that there has not been a lot of disruptive behavior at the beach since 2008. In response to a question from Mr. Moline, Mr. Merryweather explained that if the property is accepted by the County, the road and beach will be public and no one will be allowed to park on the traveled portion of the roadway.
In response to a question from Councilman Nichols, Mr. Weber said that he is not aware of any other beach that County staff maintain. In response from a direct question from Councilman Nichols, Mr. Creighton said that he does not want the Council to accept the property into the County system. Councilman Nichols expressed concern that Ms. Carmean was not present to express her opinion regarding the ownership of the property.
Mr. Merryweather advised Council that, in his legal opinion, Council should take no action until the residents of Green Point road submit a written request to have the referenced roadway and beach accepted into the County system. He further advised that the Council could then hold the public hearing as required by local law. He stated that any other action, in his opinion, would jeopardize any challenge to an action Council may choose to take.
Based upon testimony of Ted Marshall and other citizens living near the roadway the County agreed: 1) that there has been an implied or express dedication of the road as evidenced by various recorded plats presented at the meeting; and 2) that the County accepted the road by virtue of the County’s prior maintenance of the roadway as testified to by Suzanne Shimek and other residents in the Green Point Road area. As such the Council approved that the subject roadway has been dedicated and accepted by the County and agreed to accept responsibilities as such. Councilman Nichols opposed.
The Council adjourned to Legislative Session.
Mr. Merryweather advised that public hearings are being held on eight bills to amend local critical area laws. He said that the local amendments are based on a series of State critical area laws that were passed during the 2008 Maryland General Assembly Legislative Session which require all local jurisdictions in the State to amend their local critical area laws. Mr. Merryweather explained that bills amend the following Chapters of the County Code: Forestry, Zoning, Subdivision Regulations and Grading. He said they include a bill and after-the-fact provision that a person in violation of a critical area program cannot obtain a permit until the violation has been corrected and noted that the bills substantially increase penalties for violations for each chapter.
Mr. Merryweather noted that a committee comprised of Steve Dodd, Planning and Zoning Director, Chuck Weber, Public Works Director, Elizabeth Hill, Forestry Board Chair, and Mike Bonsteel, Critical Areas Planner, and himself, drafted the bills for consideration. He explained that State Critical Area Commission staff reviewed the bills before they were presented to Council for introduction at its February 2, 2010 meeting. He said that if approved, the bills will be submitted to the Critical Area Commission for its final approval.
Councilman Travers expressed his opinion that the fines are too restrictive, particularly in light of the fact that over 50% of
Councilman Price expressed his opinion that the fines are too excessive and may cause an undue hardship on residents.
BILL NO. 2010-1 - AN ACT OF THE COUNTY COUNCIL OF DORCHESTER COUNTY, MARYLAND PURSUANT TO THE AUTHORITY OF TITLE 8, SUBTITLE 18, SECTION 8-1808 OF THE ANNOTATED CODE OF MARYLAND TO ADD NEW SECTION 97-10.1 TO CHAPTER 97 OF THE DORCHESTER COUNTY CODE, ENTITLED "FORESTRY", TO PROVIDE THAT ANY PERSON INCLUDING A CONTRACTOR, PROPERTY OWNER OR ANY OTHER PERSON WHO COMMITTED, ASSISTED, AUTHORIZED OR PARTICIPATED IN A VIOLATION OF TITLE 8, SUBTITLE 18 OF THE ANNOTATED CODE OF MARYLAND ENTITLED "CHESAPEAKE AND ATLANTIC COASTAL BAYS CRITICAL AREA PROTECTION PROGRAM" OR A VIOLATION OF THIS CHAPTER RELATING TO LAND AND PROPERTY LOCATED IN THE CRITICAL AREA AND REGULATED BY THIS CHAPTER SHALL BE GUILTY OF A CIVIL INFRACTION UNDER CHAPTER 147 OF THE DORCHESTER COUNTY CODE, AND PROVIDING FOR A MAXIMUM CIVIL PENALTY OF $10,000.00 FOR SUCH VIOLATION; AND PROVIDING FOR CERTAIN FACTORS TO BE CONSIDERED IN MAKING A CIVIL PENALTY ASSESSMENT, AND PROVIDING THAT THE DIRECTOR OF THE DORCHESTER COUNTY DEPARTMENT OF PUBLIC WORKS IS AUTHORIZED TO ISSUE CITATIONS FOR SUCH VIOLATIONS AND TO DETERMINE THE AMOUNT OF THE CIVIL PENALTY TO BE ASSESSED, AND TO AUTHORIZE THE DIRECTOR OF THE DORCHESTER COUNTY DEPARTMENT OF PUBLIC WORKS TO ISSUE WITH THE CITATION FOR CIVIL INFRACTIONS AN ADMINISTRATIVE ABATEMENT ORDER REQUIRING THE OWNER, PROPERTY OWNER OR PERSON TO ABATE OR TO CORRECT THE CRITICAL AREA VIOLATION UNDER THIS CHAPTER OR TO CEASE WORK OR ACTIVITY BEING PERFORMED IN THE CRITICAL AREA UNDER THIS CHAPTER.
John Battista, a Dorchester County resident, explained that he and Joan Fitzpatrick own a tree farm and a wildlife refuge at end of
Mr. Battista advised Council that in September 2009 an individual purchased a property on Taylors Island and installed a septic system without the proper permits. He expressed his belief that approximately 200 feet of the wetlands on his property was destroyed because the only access the person has to his house is through his and the neighbor’s property. Mr. Battista explained that another individual on Taylors Island removed a building in a critical area zone and has filed for a variance to place another structure on that lot. He expressed his opinion that these individuals should be fined for destroying critical areas. He asked the Council to pass Bill Nos. 2010-01 and 2010-02 and for the enforcement of the critical area laws in the County. In response to a question from Mr. Battista, Mr. Merryweather noted that the fines that will be implemented if the bills are passed are not retroactively assessed.
In response to a question from Gail Dean, Editor of the Dorchester Star, Mr. Merryweather said that the civil penalty will be paid to Dorchester County and will be dedicated for use for critical area efforts within the County.
The role call on the enactment of Bill No. 2010-1 was as follows:
BILL NO. 2010-2 - AN ACT OF THE COUNTY COUNCIL OF DORCHESTER COUNTY, MARYLAND PURSUANT TO THE AUTHORITY OF TITLE 8, SUBTITLE 18, SECTION 8-1808 OF THE ANNOTATED CODE OF MARYLAND BY ADDING NEW SECTION 97-7(E) TO CHAPTER 97 OF THE DORCHESTER COUNTY CODE ENTITLED "FORESTRY", TO PROVIDE THAT NO PERMIT, APPROVAL, VARIANCE OR SPECIAL EXCEPTION FOR ANY PROPERTY LOCATED WITHIN THE CRITICAL AREA SHALL BE ISSUED UNLESS THE PERSON SEEKING THE PERMIT, APPROVAL, VARIANCE, OR SPECIAL EXCEPTION HAS FULLY PAID ALL ADMINISTRATIVE, CIVIL, AND CRIMINAL PENALTIES IMPOSED FOR VIOLATIONS FOR THE SUBJECT PROPERTY WITHIN THE CRITICAL AREA, AND HAS PREPARED A RESTORATION OR MITIGATION PLAN APPROVED BY THE COUNTY TO ABATE IMPACTS TO WATER QUALITY OR NATURAL RESOURCES AS A RESULT OF THE VIOLATION; AND HAS PERFORMED THE ABATEMENT MEASURES IN THE APPROVED PLAN IN ACCORDANCE WITH THE COUNTY'S CRITICAL AREA PROGRAM, UNDER THIS CHAPTER.
There was no public comment received.
The role call on the enactment of Bill No. 2010-2 was as follows:
BILL NO. 2010-3 - AN ACT OF THE COUNTY COUNCIL OF DORCHESTER COUNTY, MARYLAND PURSUANT TO THE AUTHORITY OF TITLE 8, SUBTITLE 18, SECTION 8-1808 OF THE ANNOTATED CODE OF MARYLAND TO ADD NEW SECTION 155-38Q TO CHAPTER 155 OF THE DORCHESTER COUNTY CODE ENTITLED "ZONING" TO PROVIDE THAT ANY PERSON INCLUDING A CONTRACTOR, PROPERTY OWNER OR ANY OTHER PERSON WHO COMMITTED, ASSISTED, AUTHORIZED OR PARTICIPATED IN A VIOLATION OF TITLE 8, SUBTITLE 18 OF THE ANNOTATED CODE OF MARYLAND ENTITLED "CHESAPEAKE AND ATLANTIC COASTAL BAYS CRITICAL AREA PROTECTION PROGRAM" OR A VIOLATION OF SECTION 155-38 OF THIS CHAPTER ENTITLED "CRITICAL AREA PROTECTION DISTRICT" SHALL BE GUILTY OF A CIVIL INFRACTION UNDER CHAPTER 147 OF THE DORCHESTER COUNTY CODE, AND PROVIDING FOR A MAXIMUM CIVIL PENALTY OF $10,000.00 FOR SUCH VIOLATION; AND PROVIDING FOR CERTAIN FACTORS TO BE CONSIDERED IN MAKING A CIVIL PENALTY ASSESSMENT, AND PROVIDING THAT THE DIRECTOR OF PLANNING IS AUTHORIZED TO ISSUE CITATIONS FOR SUCH VIOLATIONS AND TO DETERMINE THE AMOUNT OF THE CIVIL PENALTY TO BE ASSESSED, AND TO AUTHORIZE THE DIRECTOR OF PLANNING TO ISSUE WITH THE CITATION FOR CIVIL INFRACTIONS AN ADMINISTRATIVE ABATEMENT ORDER REQUIRING THE OWNER, PROPERTY OWNER OR PERSON TO ABATE OR TO CORRECT A VIOLATION OF SECTION 155-38 OF THIS CHAPTER, ENTITLED "CRITICAL AREA PROTECTION DISTRICT" OR TO CEASE WORK ON OR ACTIVITY BEING PERFORMED IN THE CRITICAL AREA PROTECTION DISTRICT.
There was no public comment received.
The role call on the enactment of Bill No. 2010-3 was as follows:
BILL NO. 2010-4 - AN ACT OF THE COUNTY COUNCIL OF DORCHESTER COUNTY, MARYLAND PURSUANT TO THE AUTHORITY OF TITLE 8, SUBTITLE 18, SECTION 8-1808 OF THE ANN