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Court of Appeals To Hear Suit Filed by Terrapin Run Opponents
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by Dale Sams | 2007

Approval of massive development challenged in Allegany County

The  Maryland Court of Appeals has agreed to hear the lawsuit filed by opponents of Terrapin Run, a large-scale development project proposed for Allegany County by PDC, Inc., of Columbia, Maryland.

Terrapin Run is a proposed 4,300-unit housing development and commercial center that would be located on a 935-acre tract of forest land in the rural Town Hill area of eastern Allegany County. It would be adjacent to Green Ridge State Forest and the Billmeyer Wildlife Management Area along a stretch of Scenic Route 40, approximately 25 miles east of Cumberland and 45 miles west of Hagerstown. The nearest elementary school is 15 miles to the west in Flintstone, and the nearest middle and high schools are in Cumberland, approximately 30 miles away.  Water supplies are limited in the area. To compensate, the developer has proposed to take surface water from Fifteen Mile Creek, a Tier II stream*, to supplement the limited ground water that is available. He has also proposed to build a waste treatment plant at some undetermined point in the future, from which approximately one million gallons of effluent would be discharged daily into a small, often-dry stream called Terrapin Run, which flows into Fifteen Mile Creek and ultimately into the Potomac River.

If built as proposed, Terrapin Run would become the second largest city in Allegany County, more populous than Frostburg in half the area, with some 11,000 to 12,000 residents. Traffic on the narrow and winding Scenic National Road would increase from approximately 500 to over 31,000 vehicle trips per day.

Terrapin Run received approval of its application for a Special Exception under the Allegany County zoning ordinance in 2005 on a split decision by the Allegany County Board of Zoning Appeals. The Zoning Board based its decision on the finding that there would be no site-specific adverse impact caused by such a development and that the development was “in harmony” with the county’s Comprehensive Plan. Opponents, believing that the Zoning Board had failed to adhere to the Comprehensive Plan when it granted the special exception, filed suit in Circuit Court, arguing that the proposed development had to “conform” to the Comprehensive Plan as required by the Code of Maryland Regulations (COMAR).

When the Circuit Court decided that the Zoning Board had used the incorrect test in its deliberations and instructed that the case was to be reconsidered under a more stringent standard of “consistent with” the Comprehensive Plan, opponents filed an appeal to the Maryland Court of Special Appeals, continuing to argue that the correct standard would require the development to “conform” to the Comprehensive Plan.

In its 2007 opinion, the Court of Special Appeals stated that the Comprehensive Plan is merely advisory in nature, that strict compliance is not required, and that terms such as “in harmony with,” “consistent with,” and “conformity” are essentially interchangeable. It reaffirmed the original findings of the Allegany County Board of Zoning Appeals.

Opponents then filed their petition for a writ of certiorari with the Court of Appeals. The Maryland Department of Planning, believing that the decision of the Court of Special Appeals undermines citizen-based planning in Maryland and threatens the tenets of Maryland’s Smart Growth visions, also filed a petition to enter the case. The Chesapeake Bay Foundation also requested to enter the case.

The Court of Appeals granted the opponents’ petition on August 22, and also granted the petitions of the Maryland Department of Planning and the Chesapeake Bay Foundation to participate in the case. Argument in the case is scheduled for December.     

*Per the Maryland Department of Environment, a Tier II Stream is a high-quality stream whose water conditions are better than necessary to support fishing and swimming.

The Maryland Chapter considers this a precedent setting case and has contributed financially to the costs of the lawsuit.


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