CHESTERTOWN — This month’s meeting of the Kent County Board of Zoning Appeals will be at least a two-parter after the hearing that began Monday night, July 19 was adjourned after one side of testimony in a dispute between the Chestertown American Legion post and neighbors concerned about the community organization purchasing the building.
It was a standing room only crowd in the Kent County Commissioners hearing room at the R. Clayton Mitchell Jr. Government Center in Chestertown, with many attendees wearing stickers in support of Minary’s Dream Alliance, the planned purchaser of the Legion property. The audience spilled out of the room and into the hallway.
With arguments and testimony going until around 10 p.m., the meeting was adjourned and set to continue at 7 p.m. Tuesday, July 27 at the county’s government center, 400 High St., Chestertown.
Founded by community organizers Doncella Wilson and Paul Tue, Minary’s Dream Alliance celebrated its one-year anniversary this summer at the home of American Legion Frank M. Jarman Post 36 on American Legion Drive, just outside Chestertown.
The organization, whose activities include youth programs and the Feed the Elderly initiative, is in the process of purchasing the Legion property, which has been on the market for a couple of years.
The issue before the Board of Zoning Appeals is whether or not the Legion organization has maintained the property’s nonconforming use status.
Attorney Dan Saunders is representing the complainants in the matter, nearby resident Tom Voshell and the Chesmar Community Association. Stephen Z. Meehan is the Legion’s attorney. Attorney Mitch Mowell appeared on behalf of Minary’s Dream Alliance and also argued at times for the Legion.
“In 1962, when the first county zoning ordinance was adopted, there was no provision for a place such as the American Legion,” Mowell said. “It is our position that if you need to put a tag on what the American Legion is, it’s a private club. And if you’re going to put that tag on the American Legion, it’s the same tag that is applied to the activities of Minary’s Dream Alliance. And it’s a continuous nonconforming use. It should be allowed to continue.”
Saunders said developers look for nonconforming use properties, typically near residential areas, because “they tend to be more of a bargain.”
“The other reason why developers target nonconforming properties you will see tonight and that is that nonconforming uses can be described in nebulous terms,” he said. “It has the effect of creating a legal loophole big enough for a developer to drive a bulldozer through.”
At the beginning of the hearing the three members of the Board of Zoning Appeals went into closed session with their attorney Christopher Drummond for legal advice regarding some of the concepts at play in the case.
Upon returning to open session, the board then heard an initial motion by Meehan to dismiss the case because it was not ripe for appeal.
Meehan argued that Kent County Director of Planning, Housing and Zoning William Mackey had failed to provide proper public notice of his previous administrative decision that the Legion had maintained its nonconforming use status via a series of letters to nearby homeowners.
That correspondence stemmed from complaints made by nearby resident Karen Kemp-Docksteader.
“Since the occupants moved into the Legion property this summer, the traffic volume has steadily grown and I have been told it will increase. This is not the historic use of this property, nor the intent of the original exemption permitting a club/private civic organization hosting meetings and community events on a very limited basis,” she wrote in one of her letters to the county.
In a letter, Mackey wrote that that the use of the property had not lapsed and any purchaser would be able to continue services similar to what was offered there.
“It’s my understanding that the typical use of this property includes aspects like education for families, community services and youth services including camping. Services provided include a variety of offerings for veterans, as well as disaster relief assistance,” Mackey wrote.
At the hearing, Meehan argued that Mackey’s letters did not provide the proper public notice that he had made the administrative decision maintaining the property’s nonconforming use.
Townsend said granting Meehan’s motion to dismiss would only delay proceedings.
“We would be right back a month from now or two months from now to address the same issue,” Townsend said.
Drummond said the public notice for the board hearing cured the lack of public notice for Mackey’s administrative decision. Drummond said the board had the authority to hear the case de novo — from the new or from the top.
Meehan’s motion was dismissed.
As the hearing moved into opening arguments, Townsend advised the attorneys that the focus would be on past uses of the Legion property, not future plans.
Providing the opening arguments for the Legion, Mowell said that from the 1960s to 2020, the Legion operated with meetings, dinners and dances and the building was rented out for functions — without any question from the county or neighbors. He said that in 2020, a new tenant came in, Minary’s Dream Alliance, and continued the same activities.
“And now it’s an issue. And now it’s before this board and it’s a shame,” he said.
Mowell said the other side will argue that the only activities allowed at the Legion property would be what was held in 1962. He said that argument is false because they are not “frozen in time” and there is an allowed intensification of use.
Saunders said the Legion became nonconforming in 1962 when the zoning ordinance was first put on the books.
“Those uses and those uses alone were the nonconforming uses,” Saunders said. “So this notion that what happened in 2017 or what happened last year is completely different from what was going on when this property was nonconforming is a red herring.”
Saunders said that if it is a private club, a developer could try to make it a men’s club, then a Playboy Club. He asked what if a developer came in and because it had a bar, a bandstand and slot machines, they decided to make the property a casino.
“So that’s the approach that developers take when they are trying to establish a nonconforming (status) and then meld it into a completely different thing than it ever was. And that’s what you’re looking at,” Saunders said.
Before the meeting was adjourned due to the lateness of the hour, board members heard from those called on behalf of the Legion and Minary’s Dream Alliance. Saunders will call those to testify on the complainants’ behalf at the followup meeting July 27.
Meehan called John Diller III, a member of the Legion Post since 1964.
Diller testified about activities at the Legion in the early 1960s, when he was considering joining. He spoke about dinners and fundraisers, youth sports, blood drives and the Boys and Girls State programs. He said political parties used the Legion, albeit for separate functions.
Saunders objected at times regarding any testimony or documents being entered about activities after 1962.
Townsend said it seemed to him that a nonprofit in existence for more than 60 years has the right and ability to evolve. He said it would be inappropriate if the Legion could not evolve from the activities it pursued in 1962.
“Mr. Saunders, on May 22, 1962 I was 5 years old. It was my fifth birthday. Can I sit up here?” asked Board of Zoning Appeals member John Massey. “So do I have to stop at 5 years old?”
Dave Hill, an alternate member of the board who noted that he was born in 1968, said communities change and the organizations change to serve them better. He said the Legion has been able to develop with the community.
“Understand, when I give you a principle of law, I didn’t write it. I didn’t make it up. I just recite it to you, the law of nonconforming use,” Saunders said. “You can’t just take advantage of the nonconforming use law and ignore the restrictions the nonconforming use law imposes.”
Meehan also called Ralph Morgan, the current finance officer for the Legion post. Morgan provided documentation showing how the Legion’s activities have continued through to the present, while maintaining liquor licenses, submitting alcohol use sales tax reports and continuing sprinkler system inspections.
Saunders objected to some of the evidence presented, saying it only demonstrates the Legion maintained the property so it would sell. He said Morgan’s testimony only proves there has been activity on the property, while having nothing to do with extending the nonconforming use status.
Morgan testified about how last year’s COVID-19 lockdown put a halt to some Legion activities as required by the governor’s orders. He said the Legion leased out the property for use by the Feed the Elderly initiative organizers, which had previously operated out of the Kent County Community Center in Worton.
As Minary’s Dream Alliance formed and then took over the initiative, the organization continued to lease the space from the Legion — using it for additional activities including sponsoring a Thanksgiving turkey giveaway — and plans took shape for it to purchase the property.
Townsend asked Morgan about the purpose of the Legion, with Morgan responding by talking about service to veterans, their families and the community. Townsend asked if that was the purpose in 1962, to which Morgan said, “yes.”
Saunders asked Morgan where the proceeds of the sale of the Legion property will go, to which Meehan objected, questioning the relevance.
“If it’s a secret, never mind,” Saunders said as arguments over his question continued.
Morgan said Post 36 intends to continue and has agreed to a leaseback arrangement with Minary’s Dream Alliance for about 10% of the space at the Legion building. He said the Legion will continue to hold meetings and serve members. He said the money from the sale stays with the Post as long as it exists.
Tue testified about the activities of Minary’s Dream Alliance, saying he is not a developer. He spoke about how the organization works with families and youths on the Mid-Shore.
He said it has received a grant to open an adolescent clubhouse program — the first of this model on the Shore. He said they also are offering a deterrent program to keep children from experimenting with drugs.
He said they have held meetings for the youth football program here, offered space for the GLOW (Girls Learning Our Worth) program and just completed a youth internship program in conjunction with Washington College to study the history of music in Kent County.
“We’ve done a myriad of activities out there around young people and with young people,” Tue said. “We just want to continue to be a resource for the community. That space, that building is a beautiful space, a beautiful building and we want to continue to allow our community access it.”
Mowell objected to some of Saunders cross examination of Tue because he said it dealt with future uses. He said any future uses would be brought before the county as required.
Saunders referenced materials provided in evidence regarding Minary’s Dream Alliance activities. Saunders was met with shouts of opposition from some in the audience when he said it was “a really nice way to describe mental health services being administered to heroin addicts.”
Tue disputed Saunders characterization, saying they spoke with Chesmar Community Association members and outlined their plans.
“I’m not qualified nor am I interested in running a rehab facility. Period. They know that and we told them that,” Tue said. “It’s never going to be a rehab facility.”
In discussing whether to continue the meeting or to adjourn until another date, Saunders said he has a couple of witnesses he plans to call. He said there may be others who wish to testify as well.
Drummond said it would be disjointed for Saunders to start with his witnesses, but but only get halfway through.
Drummond said anyone who signed in July 19 will be able to speak at the next meeting, but there will not be a new signup sheet July 27.
The Chestertown Mayor and Council were meeting at the same time as the county board.
Speaking at the Chestertown meeting, Mayor David Foster said he sent a personal note of support to Mackey, and that he was a member of the Legion for “a short time.” Foster said he was reluctant to send a letter of support on behalf of the town without speaking to the council.
“I think it would be good if we could send something on behalf of the town, it may arrive too late, but just to show that we are supportive of that program,” he said.
Councilman Ellsworth Tolliver made a motion that the mayor and council supports Minary’s Dream Alliance and hopes it secures a positive outcome in the zoning decision. With Councilman Tom Herz seconding the motion, it passed unanimously.
“Obviously it’s outside of our town limits but many of the beneficiaries will be young people from our town. I think we really have a stake in the success of the program,” Foster said.
For more information on the Kent County Board of Zoning Appeals, including the meeting packet for July 19, go to www.kentcounty.com/committees/zoningapp.