Monrovia Town Center developers defy county: Refuse to cooperate in new hearings

Unfortunately, it’s been a busy few months for us at RALE. This really should have been a quiet time, as we waited for the council-ordered hearing and review process to begin.

But we wanted to make sure that things weren’t happening behind the scenes so I made a call. On October 22, I spoke to Jim Gugel in the Community Development Division. To my great surprise, he told me that the county’s legal staff determined that since the council didn’t specifically vacate the prior zoning approvals when they voted on September 1 to restart the process, that the prior approvals still stand. They further determined that the developer could keep moving forward through staff-level permitting at “their own risk.”

We have seen the evidence. They submitted their final site plans for both the residential and commercial portions of the development on September 3. They have also pushed forward on two separate plat recordations, and a water & sewer project.

We decided to voice our concerns to the Council and on November 9, we wrote this letter (there are two files to download):

We told the Council that the developer was defying their order to restart and was instead pressing ahead in the process based on the repudiated BoCC approvals. We gave them all the information about the various actions occurring since their September 1 vote. We also argued that the developer had no reason to cooperate with the Council as long as he was able to keep moving forward. In fact, he had every reason to stay completely away from the new hearings. We didn’t know how right we would prove to be!

Later that month, County staff (Steve Horn) wrote a letter to the developer telling them to submit their new application by the end of November, and to have a community meeting before that time. Alternatively, the County would move forward with their last application from February 2014.

Two days later, the developer’s lawyer responded. I was amazed! Who do these people think they are!? The letter dripped with condescension, a sense of entitlement, and a complete lack of respect for the Council. They basically thumbed their nose at the Council and said they wouldn’t participate. They wouldn’t submit a new application and they wouldn’t provide any new information. If either the Planning Commission asks them any questions, they’ll answer by referring to the old hearing record. They proved us right! Here is the complete letter from Paul Rose. Trust me, this is a must read!

After we saw that letter, we knew we had to go public with all of this. We drafted a press release and sat down with the new FNP reporter and laid it all out for her. You can find a links (with excerpts) to her story and a follow-up piece by WFMD.

Here is the full text of our press release. (Below the text of the press release, a number of the related letters and exhibits are listed and can be downloaded.)


RALE
November 30, 2015
FOR IMMEDIATE RELEASE

Contact:

RALE: Steve McKay, RALEMonrovia@gmail.com, 301-788-7423
Matt Seubert, RALEMonrovia@gmail.com, 301-874-2822
Michele Rosenfeld, Esq., rosenfeldlaw@mail.com, 301-204-0913

MONROVIA TOWN CENTER DEVELOPERS DEFY COUNTY COUNCIL BY REFUSING TO COOPERATE IN NEW HEARINGS

HIGHLIGHTS

• MTC’s lawyer sends letter to Council stating:

• MTC “will not submit a new application and will not consent to any procedure with respect to further proceedings before the Planning Commission;” and

• MTC “has absolutely no intention of presenting its case again . . . to the Planning Commission or providing any additional information to County staff.”
 MTC has filed record plat and site plan applications, preempting Council’s call for new hearings.

On 1 September 2015 the County Council, responding to a Circuit Court Order, directed that the MTC developers return to the Planning Commission for rezoning proceedings to “begin again.” On 18 November 2015 Mr. Paul Rose, attorney for the developer of the proposed Monrovia Town Center development (MTC) wrote a letter to the Council stating that his client “will not submit a new application and will not consent to any procedure with respect to further proceedings before the Planning Commission.” [Attachment 1.] Mr. Rose was writing in response to a November 16 County letter confirming the review process mandated by the Council. [Attachment 2.] RALE’s president, Steve McKay, observed that “the developer no longer controls the County’s development approval process and so has lashed out at both the County Council and County Executive Jan Gardner” in its November 18 letter.

On September 1 the County ordered that the Planning Commission conduct new proceedings, to create a record free of any taint, and on September 1 had every reason to think that the developer would cooperate. It is now clear it will not do so. RALE has confirmed that following the September 1 hearing, the developer has processed post-zoning documents. RALE relayed its concerns in a November 9 letter to the Council which cited four separate applications, including final approval requests on the site plans for both the residential and commercial portions of the proposed development. [Attachment 3.] “Rather than restart the process to ensure a full and fair hearing and clean record, as directed by the Council, the developer instead seeks to validate the BOCC’s prior approval,” said McKay. “The Court and the Council have both independently concluded that the prior proceedings were tainted. But the developer seeks to implement the BOCC’s action and by November 9 it was clear to RALE that the developer had no intention of complying with the Council’s decision.”

The Circuit Court sent the matter back to the Council after RALE subpoenaed testimony by former Commissioner Paul Smith to establish the circumstances surrounding the letter from the Frederick Area Committee on Transportation (FACT), including how it came to be and how it was used at the last moment in the BoCC hearings on MTC. The County asked that the matter be remanded to the Council, and while Judge Nicklas concluded “that the testimony of Commissioner Smith is appropriate” granted the Council’s request for a remand.

The Council made the right decision on 1 September, a decision that mirrored comments made by Judge Nicklas regarding the tainted record. Hundreds of local residents have fought for nearly two years for a fair and transparent process on MTC. When the Council voted to restart the process, RALE expected that the parties would proceed in good faith to establish a fair process. The developer’s actions and correspondence confirm that it has no such intention. RALE calls upon the County to take affirmative action to ensure that its decision of September 1 is implemented fully.

RALE
Residents Against Landsdale Expansion
P.O. Box 181, Monrovia, MD 21770

http://www.ralemonrovia.com/
RALEMonrovia@gmail.com
Facebook – RALE.Monrovia
Twitter – @RALEMonrovia


RELATED DOCUMENTS

PRESS RELEASE above (295kb PDF file)

[Attachment 1.] November 18, 2015 letter from Mr. Paul Rose, attorney for the developer, to the planning staff and county council (2MB PDF file)

[Attachment 2.] November 16, 2015 letter from the county confirming the review process mandated by the Council (426kb PDF file)

[Attachment 3.] November 9, 2015 letter from RALE to the county council “which cited four separate applications, including final approval requests on the site plans for both the residential and commercial (89kb PDF file)

EXHIBITS 1 through 8 as referred to and described in the November 9, 2015 letter from RALE to the county council, immediately above (as a single 5MB PDF file)

MTCsiteplanmap


So what’s next?

Frankly, I’ve been disappointed in the lack of reaction from the county council so far. They have to realize that as things currently stand, they can’t have the new clean record that their September 1 vote called for. The developer isn’t going to cooperate. As long as the developer can move forward in the permitting process, they have no reason to cooperate. That’s why we think the Council has two options:

1) Make a motion to vacate the prior zoning approval, or

2) Send it back to the Circuit Court. Tell Judge Nicklas that they could not resolve the issues in the remand order and that the developer will not cooperate with their effort to restart the process.

Either way, we need to ensure that the prior zoning approvals are null and void. That’s the only way to ensure a fair process! I encourage you to write to the Council and tell them just that.

Please write to Councilmembers@frederickcountymd.gov.


Frederick News Post
Monrovia Town Center presses forward in planning process
Tuesday, December 1, 2015
by Danielle Gaines

EXCERPT: The Monrovia Town Center development continues to move through the county’s approval process, despite a County Council vote in September to remand the entire decision to the Planning Commission to start over.

Lawyers for the 1,250-house development planned for a 395-acre plot of land at Maryland routes 75 and 80 have continued to press for approvals related to the project despite the council’s vote.

Residents Against Landsdale Expansion, or RALE, says that the developer, 75&80 Properties LLC, has made four “post-zoning” applications to the planning department since the County Council voted 4-3 on Sept. 1 to rehear the case from its beginning.

“Folks walked away from that thinking everything has stopped, that a new process is starting,” said RALE’s president, Steve McKay, who said he was surprised to learn that the developer was moving forward under the old planning documents while the county has yet to schedule fresh hearings on the Monrovia Town Center.

However, an attorney for the developer wrote to county officials that he believes that the original approvals by the old Board of County Commissioners remain valid and called the new processes illegal.

Paul D. Rose Jr., in a Nov. 18 letter to Frederick County Planning and Permitting Division Director Steven Horn, wrote that his client “will not submit a new application and will not consent to any procedure with respect to further proceedings before the Planning Commission.”

County Attorney John Mathias said county staff members continue to process the approvals because neither the Frederick County Circuit Court judge who remanded the case to the council nor the council itself has rescinded the former approvals.

The developer, which receives vested rights for the land development only after a final permit is issued, can move forward at its own risk, according to state law.

Among the documents moving through the approval process are site plan applications, which were resubmitted to staff after Sept. 1. The county’s permitting website shows that staff comments relating to the document have also been entered since the council’s decision.

RALE is concerned that some development work can’t be undone in the future and asked county leaders on Monday to direct staff to stop moving forward with approvals.

“If they get to keep moving forward with these staff decisions, if they get to proceed at risk, then why do they even bother showing up?” McKay asked.

The back-and-forth is the latest in the long-running battle over the development.

WFMD
Monrovia Town Center Moving Forward, Despite Council Vote In September
Tuesday, December 1st 2015
by Kevin McManus

EXCERPT: A vote in September by the Frederick County Council apparently isn’t stopping the Monrovia Town Center. The developer is moving forward with the project despite the Council’s decision to remand the case back to the Planning Commission, and start the process all over again.

The Frederick News-Post reports that the attorneys for the developer believe the original decision by the last Board of County Commissioners approving the Monrovia Town Center was valid, and the Council’s decision was illegal.

“It bothers me greatly. It concerns me a great deal,” says Steve McKay, President of Residents Against Landsdale Expansion, a citizens group which fought against the project, which calls for 1,250 new homes on a 395-acre parcel near Routes 75 and 80.

McKay says he and RALE members, along with other opponents, felt that the Council’s vote in September meant the end of the project for now. He said that was the impression he got from Mike Chomel, Senior Assistant County Attorney, that the Council’s vote would rescind the previous approval by the Commissioners. “Mr. Chomel stated very clearly that he understood the intent of the Council was to vacate the prior zoning and restart the hearing process,” McKay says. “And frankly, when you’re listening to this process and these proceedings, and this is what you’re hearing repeatedly, you naturally walk away assuming that that’s what they did.”


RALE – Residents Against Landsdale Expansion on the web.

RALE – Residents Against Landsdale Expansion on Facebook.

@RALEMonrovia on Twitter.

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