Five Year Critical Area Legal Case Continues
Gene Milgram
Not all environmental cases in the Critical Area involving zoning
changes and variances by the County Council and the Board of Appeals
make the newspapers. For more than 5 years a case dealing with
Open Space (OS) to Residential (R1) zoning with no public input, and
then large variances by the County, has been working its way through
the system. It is now before the Maryland Court of Special
Appeals, with a brief filed by my lawyers on February 29, 2008.
Zoned “Open Space” in 1988 as part of the 1986 General Development Plan
process that added over 8,000 acres of natural features to land zoned
OS in the County, this vacant piece of forested land on very steep
slopes (as steep as 50%) is designated as Resource Conservation Area
(RCA), the most restrictive of the 3 designations of land in the
Critical Area, and is above the tidal headwaters of Mill Creek in the
Severn River watershed. This area was labeled one of the “Gems of
the Severn” in Colby Rucker’s 1980s book. The 1.12 acre lot
fronts on St. Margaret’s Road, an official “historic and scenic road”
in the Broadneck area, and contains an old cemetery.
In early
2002 a “midnight” zoning change was done, by-passing both the Planning
Advisory Board and the Broadneck Small Area Plan process, in which the
Planning Office literally moved a line an inch on one of over fifty
zoning maps that were adopted by reference by the County Council, after
a person from a mortgage company asked for the change and the Planning
Office said it had already done it. The actual bill before the
Council did not mention this lot; and there was confusion over what the
address was too: from 1711 St. Margaret’s Road, a lot with a house on
it, to 1724, the vacant OS land.
No mention was made to the
Council that the land was environmentally sensitive, that it was near a
stream in the Critical Area, etc. No sign needed to be put on the
property under the rules governing the “comprehensive re-zoning
process,” the Critical Area Commission was not notified, nor did anyone
from the environmental community catch what quickly happened late that
night (as shown on the videotape of the Council meeting).
The benefit went to a NW Baltimore County mortgage company owned by
Stewart Sachs, which in early 1998 gave a 16%, 5 year balloon mortgage
to a couple that needed money, at a time when the market interest rate
was 8%. They had been given the land by their aunt in 1996, but
needed the money for hospital bills after the husband had a stroke and
the wife had no credit rating. Foreclosure started almost
immediately thereafter. With the R1 zoning change the company had
34 square feet of buildable land under the Critical Area
law. Therefore, it requested several variances.
I got
involved when I saw the “variance hearing” sign. Because the lot
was platted a year before the Critical Area law was passed, the
Planning Office felt it was grandfathered and had to be given both the
R1 zone change and variances. From the 34 square feet, the Board
of Appeals ultimately granted a home/garage totaling 4,003 square feet
as the “minimum necessary” for relief, despite my submission of floor
plans for smaller homes. Also, my requests for various mitigation
measures (e.g. pervious pavers, advanced treatment septic system) were
ignored.
Notable events during the two hearings before the Administrative
Hearing Officer and half a dozen hearings before the Board of Appeals
included:
- My discovery that the zoning maps at the Planning
Office showed the
land as OS during the first variance hearing, so the Planning Office
said they had neglected to change the maps after the Council vote and
substituted a new one, with no date shown on the new map.
- My discovery of the mortgage company’s failure to
properly execute
the foreclosure or to get a deed (nor, by the way, to pay property
taxes). This led the Board of Appeals after three hearings to
agree with me that the company did not have the required financial
interest in the property to apply for variances,and the Board
“dismissed” the case. (The County’s planner said she was
“shocked” at these revelations, that they assumed applicants told the
truth.)
- The re-submission of the identical application by a
different legal
entity, Stewart Sachs Real Estate company, and the County’s decision to
waive the County Code’s requirement for an 18-month delay if someone
wants to re-submit an application. The County ruled that the word
“dismiss” does not mean “deny” and that even though I had been the one
to bring out the facts to show that Sach’s company had
misrepresentations in its original variance application, I did not get
the benefit of any time delay. My legal brief is challenging this
interpretation of County Code.
- The discovery that some members of the Board of
Appeals did not know
what a watershed was, as a debate ensued over whether the Severn River
Association should have standing to be allowed to testify in my support.
When this case started, I offered to buy the land from Mr. Sachs for
$30,000 - 40,000 and place a conservation easement on it. That
was turned down, but I still hope to see the land saved. As it
was zoned open space a decade before Mr. Sach’s company had any
financial interest in it by giving a mortgage, I do not think it is a
“taking” to enforce the original zoning. All buyers should
practice “due diligence” when investing in land.
I would
hope that the County, which passed a Greenways Master Plan in 2002,
would see that this property meets the criteria of a natural features
property under “emergency duress,” and would both defend the OS zoning,
which it did not do, and use its power to acquire it with Open Space
money. This was not a case of a family trying to preserve a
family homestead. It’s pure land speculation in the Critical Area
and the developer is getting a windfall from the current County legal
and policy posture.
There are reasons it is called “critical
area,” reasons which are completely different from why the County is
using Open Space money to buy farm land in the South County.
Money needs to be spent to protect tidal stream marshy headwaters in
the northern half of the county before the development occurs, not just
fix stormwater runoff damage after development, although that, too, is
needed.
The zoning was changed 20 years ago in this case to
prevent the damage. Let’s uphold the original planning intention
to protect sensitive land by restoring the OS zoning. I believe
the the County’s lawyers are wrong to argue that one cannot discuss the
zoning change process when discussing the variance issues and that
Councilwoman Cathy Vitale is wrong when she defends the Council’s late
night action, at which she was the only council member to participate
in the discussion with the mortgage company and the Planning Office.
This case is one more example of how the Comprehensive Plan (e.g. the
General Development Plan and Small Area Plans) is interpreted as only
“advisory.” Sad but true, adverse environmental changes can occur
with the stroke of a pen, as there is no legal requirement that when
the Planning Office moves a line on a zoning map it publicly show at
the same time what the old line was. In the final analysis, only
the zoning map really counts, not even the wording of the bill under
which it was passed.
|
|
