The absence of a transcribed record of the city zoning board’s deliberations before approving the Hamilton Royal Farms project made it “impossible” to determine whether the board’s later “corrected” approval made a substantive change or merely corrected a clerical error.

That was the determination of Circuit Court Judge Charles Peters in his Oct. 3 ruling on an appeal by opponents of the project, who are challenging the conditional use approved by the Board of Municipal Zoning Appeals after an April 2 hearing.

Peters said he was remanding the case back to the board so it can “set out what legal standard was utilized in its decision and the exact terms of the resolution that was ultimately authorized and adopted by the board.”

The opponents’ attorney on Tuesday filed a motion asking Peters to clarify his ruling, issued following a Sept. 26 court hearing.

John C. Murphy, attorney for the Glenham-Belhar Association (and other neighborhood groups fighting the project), says in his motion that what Peters “appears” to be doing “is remanding for the purpose of the board putting on the record what was said at the April 2, 2013 deliberation session.”

Murphy asks Peters to clarify whether that is the case and, if so, to require the board to say whether any discussion took place that day “of the findings of fact and conclusions of law.”

If not, Murphy wrote, the board should be asked to state this. The conditions the Board was applying in making its decision should not be at issue, Murphy said, arguing that the subsequent legal filings by the city make them “crystal-clear.”

Condition that Intersection be Fixed was Removed

The legal jousting is the latest skirmish in the battle between residents and Royal Farms, which wants to put a convenience store and gas station at a site at the intersection of Harford Road and Glenmore Avenue on a parcel owned by the International Union of Operating Engineers, Local 37.

City attorneys are involved as well, since they’re defending the Zoning Board executive director’s decision to issue a “corrected copy”  of the board’s decision.

The residents contend the “corrected copy” substantively changed the decision the board made, which included a provision requiring the intersection to be improved and made safer in order for the project to go forward. (In the second resolution, the only requirement was that the city deed over land to allow the upgrade to potentially take place.)

The city and the developer maintain that the change reflects the board’s original intent and that the second resolution merely fixed a mistake.

Both sides acknowledged that the changes were made after an attorney for the developer made a phone call to the board, pointing out the “error.”