BULLETIN: Kilby Wins Zoning Appeal on Tie-Breaker Vote
Former Cecil County Commissioner Phyllis Kilby won a zoning appeal before the Cecil County Board of Appeals Tuesday night (Sept. 23) on a 3-2 vote, ruling that her Rising Sun area ice cream, soup and sandwiches emporium isn’t really a restaurant and does not need a zoning special exception.
Leading the charge on Mrs. Kilby’s behalf was her long-time ally, Maria Mastrippolito, who noted she has been a member of the Board of Appeals for eight years. (She didn’t mention she was appointed to the Board as a Commissioner Kilby protégé.) Initially, Mastrippolito’s motion to declare that the Kilby establishment was not a restaurant died for lack of a second.
Then, Board chairman David Willis—after openly declaring his support for Kilby—re-opened the debate and ultimately managed to cajole one of the most cogent critics of the operation into seconding Mastrippolito’s motion and eventually voting for it. The Board was initially deadlocked, 2-2, on the motion but Willis voted as chairman to break the tie and grant Kilby her request. (The chairman does not vote on an initial motion but can vote to break a tie.)
The case involved “Kilby Cream,” which Mrs. Kilby bills as an ice cream parlor at 129 Strohmaier Lane on land owned by Kilbys, Inc., of which she is the long-term President. The case relates to an enterprise established, and subject to county government review and decisions, while Mrs. Kilby was still a County Commissioner.
Recently, county zoning administrator Cliff Houston ruled that the Kilbys were now actually operating a restaurant, instead of just an ice cream parlor selling farm-churned ice cream made from milk produced on the farm. A restaurant would require a special exception under zoning rules for the NAR (Northern Agricultural) farm protection area. . (All zoning issues relate to the actual property owner– in this case, Kilbys, Inc. Kilby Cream is a separate company that operates on the land. Phyllis Kilby is also an officer of Kilby Cream, according to state and federal records.)
During testimony Tuesday night, Mrs. Kilby freely admitted that she was serving a wide variety of soups, sandwiches, salads and wraps that are not produced on her farm.
Under terms of a zoning certificate issued by the county on 8/18/04, Kilby Cream was restricted to retail sales of food derived “51 percent” from agricultural products produced on the Kilby farm. (Phyllis Kilby signed the zoning certificate on 10/26/04.)
But Mrs. Kilby, and her attorney, Dwight Thomey (who was the County Attorney while Mrs. Kilby was a Commissioner) argued Tuesday that the Kilbys should not have to abide by that restriction because they were importing foods and ingredients from other farms in Cecil County and a Kent County-based farmers’ cooperative.
Mrs. Kilby and her daughter, Megan Coleman, acknowledged that they assembled sandwiches and wraps at their facility from ingredients trucked in from other locations. Among the menu items are tuna and shrimp salads and sandwiches, which they admitted are not produced from local ingredients.
The “assembly” issue troubled Board member Mike Kline, who said, “these are not pre-wrapped, like what you would find at WAWA… I worry about when you start assembly.” Kline also said he thought the whole issue should be turned over to the Planning Commission to review: “I think it’s more of a Planning Commission thing.”
But, when Chairman Willis forced the issue by re-instating Mastrippolito’s motion to grant the Kilbys’ request, Kline hung his head briefly and said, “We don’t have to be unanimous, do we?” Then Kline seconded the motion and, when the roll call was taken, surprised onlookers by voting with Mastrippolito for it.
Board members Mark Saunders and Michael Lincous voted against Kilby, setting up a 2-2 tie. Then Chairman Willis—who had declared during the discussion, “I wish everyplace was run like the Kilbys”—cast the tie-breaking vote.
[NOTE: The Cecil Times will publish a more complete, detailed report on Wednesday. We are posting this bulletin late Tuesday night so our readers will have a heads-up on this important issue. Of course, The Cecil Whig was NOT covering this meeting.]