An effort by the Emmitsburg board of commissioners to overturn a veto by the mayor ended in defeat Monday, despite contrary advice from the town's attorney.

At Emmitsburg's regular town meeting, Mayor Jim Hoover announced his veto of a decision made by the board during an emergency meeting held Friday. The town's board of commissioners held the emergency meeting to consider challenging a decision by the town's Board of Appeals made Sept. 9.

The appeals board decided at that meeting to release three zoning certificates to Apple Tree Homes that would allow construction there, despite an ordinance restricting development in the town.

Apple Tree Homes attorney Randall Whittenberger, of Miles and Stockbridge in Frederick, filed an appeal that alleged the decision to deny the permits was "erroneous, arbitrary and capricious."

The planning staff had denied the permit applications by Apple Tree on June 3, according to a statement to the town commissioners. The decision was made based on an ordinance creating a temporary moratorium on issuing zoning certificates that required sewer connections.

After numerous sewer overflows in town during 2003 that led to fines and construction restrictions imposed by the Maryland Department of the Environment, Emmitsburg town commissioners established a moratorium until a permanent plan could be devised. It restricted sewer connections until the town's sewer system was repaired.

At Friday's emergency meeting, Commission President Bill O'Neil proposed that the town ask its attorney, John Clapp, to request a stay by the Frederick County Circuit Court because the appeals board did not did not give any explanation for overturning the planning staff's decision to adhere to the moratorium.

O'Neil and Commissioner Art Elder voted for the action and Commissioner Dianne Walbrecker voted against it. Joyce Rosensteel did not attend the meeting.

At Monday's regularly scheduled town meeting, attorney Clapp recommended going to the circuit court because the appeals board's decision, he said, might not stand up to judicial scrutiny if the decision was challenged in court.

Despite the attorney's recommendation, Hoover said he believed taking the matter to court was not in the best interests of the town. In a letter to the town's board, he wrote that the town should request an explanation from the appeals board and only pursue help from the court if an explanation was not provided.

After hearing the attorney's advice, O'Neil moved to overturn the veto and Elder voted with him, but Walbrecker voted against the move and Rosensteel abstained. Three votes were required to overturn the veto.

Walbrecker said she could not support an effort to refer the decision to the court despite the attorney's recommendation.

She said the appeals board took hours of testimony at its first hearing and did not believe their decision should be questioned.