RALE letter: Three reasons the application for the Monrovia Town Center was invalid

EXCERPT: Do these three issues actually represent professional incompetence, or do they represent a willful disregard for the requirements under the Zoning Ordinance? I don’t really know. What I do know, however, is that the original PUD application for MTC never should have been accepted. I have heard time and again that the developer “did everything he was supposed to do.” We are told this lie to appeal to our sense of fairness in allowing MTC to go forward. However, these three issues show beyond a doubt that the developer didn’t do what he was supposed to do. The County also didn’t do what they were supposed to do. Instead, these two parties drove a bad development through a bad process. As the new County Council, each of you has not only the opportunity, but the obligation to correct these problems. You also have the obligation to do the right thing for Frederick County. I hope you do just that, and deny this application.


16 August 2015

Frederick County Council
12 East Church St.
Frederick, MD 21701

Dear Council Members

As you continue your review of the Monrovia Town Center case record, I want to take this opportunity to highlight a few issues that you will find in that record. Specifically, the original application for the Monrovia Town Center Planned Unit Development (MTC PUD) was invalid and should have been denied based on the following deficiencies:

  • 1) Failure to hold the required neighborhood meeting,
  • 2) The zoning map amendment included non-contiguous properties, and
  • 3) The zoning map amendment included parcels that did not have the required water and sewer classification of “Planned Service.”

Each of these points were argued by RALE and by others in the community, and in each case, both the County and the developer’s team argued vehemently against us. There are many other instances in the record of bad procedure, bad policy and plain bad behavior. These three instances, however, provide a clear record that not only did the developer NOT follow all the procedures and requirements – as we so often hear – but both the developer and County pushed through a development application that was in clear violation of the Zoning Ordinance. In so doing, they wasted a tremendous amount of time and resources, created a hugely divisive issue that is now your responsibility, and ultimately approved an application that should have never even been accepted. I don’t expect you to simply take my word on it – I’ll explain each violation in detail below.

Failure to Hold the Required Neighborhood Meeting

Under Frederick County’s Zoning Ordinance, a PUD is an example of a Planned Development District and the requirements for approving a PUD can be found in Section 1-19-10.500. In Section 1-19-500.4 (B), the following requirement is stated:

(B) Neighborhood meeting. Prior to submitting a Phase I application the applicant shall hold a neighborhood meeting.  The meeting will provide an opportunity to identify impacts that the project may have on the neighborhood surrounding the proposed project.

The word “shall” in this language specifically means that the neighborhood meeting is a requirement. Further, it is a pre-requisite for the PUD application. This begs the question – did the developer hold the required neighborhood meeting prior to submitting his application?

During four nights of hearings before the Planning Commission in October and November 2013, we heard time and time again from owners of adjoining properties, along with many others in the community, all of whom said the same thing – they were never asked to attend a neighborhood meeting with the developer. In fact, nobody had even heard of such a meeting taking place. For their part, the developer’s team had nothing to say about the neighborhood meeting – not whether they had held one, nor even recognizing it as a requirement.

Then in January 2014, during the hearings before the Board of County Commissioners (BoCC) on the PUD application, the developer’s team apparently had an epiphany. Not only did they report about a neighborhood meeting, but they claimed that 30-40 people attended. They were asked if they could document that attendance. No – there is no attendance list. They were asked if there was anyone in attendance at the hearing that also attended the purported meeting. They didn’t know. As they spun their yarn up on stage in the Urbana High School auditorium, incredulous laughs and groans spread through the audience. People know when they’re being lied to. But that wasn’t the half of it. Under cross examination, the developer’s team was pressed about the date of the meeting and did they know that the weather was windy and chilly on the night it supposedly took place. Most importantly, they were pressed to identify exactly where on the property the meeting took place. They identified a shed alongside the race track as the building.

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That was their sworn testimony. They testified that 30-40 unidentified people attended a meeting in a shed. To say that their story lacked credibility would be a gross understatement.

In summary, the ordinance requires that the developer hold a neighborhood meeting prior to submitting their PUD application. There was nothing in the application record to substantiate that this requirement was met, yet the County accepted the application anyway. During four nights of hearings at the Planning Commission, the developer’s team said nothing about a neighborhood meeting. Then in January before the BoCC, they spun a yarn that no one believes. They didn’t produce one person that attended this supposed meeting, let alone the claimed 30 or 40 attendees. In my opinion, there is absolutely no reason for the Council to believe that they met this requirement under the ordinance.

Zoning Map Amendment Included Non-Contiguous Properties

Section 1-19-3.110.2 of the Zoning Ordinance, provides a clear and unambiguous requirement for a zoning map amendment application. This same requirement also applies to a PUD application. It states that:

Each individual zoning map amendment or floating zone reclassification application must cover a contiguous area.

According to Webster’s Dictionary, “contiguous” means “being in contact, touching along a boundary or at a point.”

The original MTC PUD application did NOT cover a contiguous area. Rather, it was bisected into three distinct and non-contiguous parcels that were separated by a transportation right-of-way (MD 75) and by a utility right-of-way. The MTC PUD application should have never been accepted by the County and, specifically, by the Zoning Administrator. But here again, the developer team and the County ignored a clear and unambiguous requirement in the ordinance and moved forward with the application.

RALE argued this point strenuously during the Planning Commission and BoCC hearings. We presented over two thousand petition signatures specifically citing this violation of the ordinance. Again and again, both the County and the developer team ignored our arguments and denounced them as false.

We asked the Zoning Administrator to interpret the meaning of the term “contiguous” in the ordinance and how it could be applied in this case. He refused to answer our question. We appealed his lack of response to the Board of Zoning Appeals and the County argued that he didn’t have to answer the question. The Board of Appeals agreed, and the merits of the argument were never heard. The issue was covered up.

After the BoCC hearings in January resulted in a few changes to the PUD application, the application came back to the Planning Commission in March. At that time, one of the non-contiguous parcels in the PUD – the proposed high school site east of the utility right-of-way – was no longer included in the PUD. No explanation was given for the change. Not only was there no explanation, but any attempt to ask about the change in both the Planning Commission and subsequent BoCC hearings were sternly rebuffed. Questions were called “irrelevant” by the County attorney, and ignored by County Staff and the developer team, alike.

RALE argued the contiguity issue as early as Spring 2013 when we started our petition drive. We were ridiculed by Blaine Young. We argued the issue at the first Planning Commission and BoCC hearings, and we were denounced by both the County and the developer team. The PUD application should have never been accepted. When the application came back without the high school, this was clearly a tacit acceptance of our argument – not that anyone dared admit it. Of course, the PUD still covers non-contiguous parcels because it is still bisected by MD 75. So much time, effort and energy wasted on a faulty application that still violates the ordinance.

Zoning Map Amendment Included Parcels Without the Required Water & Sewer Classification of “Planned Service”

Section 1-19-10.500.4(C)(1) describes the required level of water and sewer classification that parcels submitted for a Phase 1 PUD application shall meet. Specifically, it states:

Prior to Phase1 application the tract of land receiving the proposed Planned Development District shall be classified as Planned Service or higher on the Frederick County Water and Sewerage Plan.

The “Planned Service” designation is a Comprehensive Plan designation, and all properties in the PUD were required to have this classification prior to the PUD application. Once again, the PUD included parcels that violated a requirement in the ordinance and, once again, both the County and the developer team pressed the application forward and ignored this clear and unambiguous requirement.

Specifically, two parcels in the MTC PUD application were classified “No Planned Service” when the PUD application was made. These are shown in Figure 1 as the northern and middle dragstrip parcels. These parcels were ineligible for inclusion in the PUD when the application was accepted, they were still ineligible through all of the hearings before the Planning Commission and BoCC, and they remain ineligible to this day. Despite this fact, however, these parcels are fully incorporated into the Phase 2 PUD plan. As shown in Figure 2, utilities and roadways cross the parcels, they represent green space, and they are used for storm water management. The fact that these parcels are still wholly incorporated into the PUD is one glaring problem; however, it is even more troublesome how the County and developer ignored the problem in their efforts to push through MTC.

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MTCphase2siteplan500w

During the modifications to the 2010 Comprehensive Plan which the BoCC undertook in 2011/12, land owners requested zoning changes to their land. Neither the owner nor the developer requested a zoning change for these two dragstrip parcels. The BoCC’s Comprehensive Plan modifications also included modifications to the County’s Water and Sewer maps. Again, the status of these parcels went unchanged during this time period. These two parcels remain as “No Planned Service.” Considering this issue, why was the MTC PUD application accepted? Did the land owner and developer really not know the status of their own land? Did County Staff simply not verify the eligibility of the proposed land in the PUD? Or was the issue simply covered up like so many other problems with MTC?

The answer lies in the behavior of County staff prior to the January 8th Planning Commission hearing on the Fall 2013 Water & Sewerage Cycle of Amendments. Leading up to this hearing, RALE recognized that the County’s official water & sewer maps clearly showed that the two parcels were ineligible for inclusion in the PUD. However, the day before this hearing, new maps were suddenly posted on the County website showing that the parcels had a water and sewer classification of Planned Service. Similarly, the Staff Report to the Planning Commission also indicated that all of the MTC parcels – including the two dragstrip parcels – had the correct classification. How could the status have changed so quickly?

The answer is that County Staff unilaterally, and illegally, altered the maps. County Staff presented the water & sewer cases including these parcels and during that presentation they indicated no issues or concerns with the proposed water & sewer classification changes. Staff recommended approval of the request to change the classification of each of the MTC cases from PS to W4/S4, despite the fact that the two parcels were actually only NPS. The cases were even presented in a way to conceal the faulty parcels, with each combined with other parcels in the PUD for the application. The developer’s attorney Mr. Rand Weinberg also indicated no issues or concerns with the proposed cases, and stated his support for Staff’s approval recommendation. He went so far as to issue a grand soliloquy to the Commissioners, assuring them that the application was correct because of all the money and effort that went into the planning. Of course, he was wrong about the application.

During the public comment period, RALE’s attorney Ms. Rosenfeld testified that one of the parcels – Tax Map 88, Parcel 53 (the Northern Dragstrip Parcel) – did not have the required Planned Service status, and illustrated this point using map graphics from the County website dated August 13 and January 14. Following this discussion and the remainder of the public comment period, the Commission questioned Staff about the issue. Mr. Jim Gugel, Planning Director, acknowledged that he had discovered a “mapping error” and made an administrative change to the map. He further acknowledged that the change was premature, would be rescinded, and the property still carried a designation of No Planned Service.

footnote

In that statement, Mr. Gugel acknowledged that they discovered what they felt was an error in the map. They unilaterally changed the map, despite not having any legal basis or the required approval from the Maryland Department of Environment (MDE). They then submitted the erroneous map to the Planning Commission for review without any acknowledgement of the issue or of the change made only the day prior to the hearing. They recommended approval of the amendments without qualification. If not for RALE identifying the issue, the parcel’s classification change would no doubt have gone forward and may, ultimately, have been approved by the BoCC and then MDE – all based on an illegal, unilateral change made by Staff.

Was it a simple mapping error? Possibly, but it may also be a reflection of the fact that the land owners never requested a zoning change for those parcels. They were ignored during the 2011/12 planning process. So it shouldn’t be surprising that they were also ignored during the Comprehensive Plan water & sewerage plan updates. It may or may not have been an error that the parcels were never granted the PS status in 2012. However, there were two far more egregious errors – (1) the failure to identify the issue when the MTC application was originally vetted by Staff, and (2) when Staff tried to cover up the error on the eve of the Planning Commission hearing. For these last two errors, there really are no excuses.

Summary

These were not casual mistakes. These were clear and unambiguous violations of the requirements in the zoning ordinance. It was the job of County staff and, in particular, the Zoning Administrator, to identify these failings and to deny the application. That didn’t happen either because the deficiencies were not identified or were simply ignored. Staff wasn’t alone in these errors. The applicant hired planners and an experienced legal team. Their job was to ensure the application was properly made. On these three issues, they failed miserably.

Do these three issues actually represent professional incompetence, or do they represent a willful disregard for the requirements under the Zoning Ordinance? I don’t really know. What I do know, however, is that the original PUD application for MTC never should have been accepted. I have heard time and again that the developer “did everything he was supposed to do.” We are told this lie to appeal to our sense of fairness in allowing MTC to go forward. However, these three issues show beyond a doubt that the developer didn’t do what he was supposed to do. The County also didn’t do what they were supposed to do. Instead, these two parties drove a bad development through a bad process. As the new County Council, each of you has not only the opportunity, but the obligation to correct these problems. You also have the obligation to do the right thing for Frederick County. I hope you do just that, and deny this application.

Regards,

Steven McKay
President, RALE


Here are the email addresses for the Council members:

frederickcountycouncil2015_500w

Bud Otis: BOtis@FrederickCountyMD.gov
MC Keegan-Ayer: MCKeegan-Ayer@FrederickCountyMD.gov
Tony Chmelik: TChmelik@FrederickCountyMD.gov
Jessica Fitzwater: JFitzwater@FrederickCountyMD.gov
Jerry Donald: JDonald@FrederickCountyMD.gov
Billy Shreve: Billy@FrederickCountyMD.gov
Kirby Delauter: KDelauter@FrederickCountyMD.gov

You may want to copy County Executive Jan Gardner in your correspondence:

Jan Gardner: JGardner@FrederickCountyMD.gov


RALE – Residents Against Landsdale Expansion on the web.

RALE – Residents Against Landsdale Expansion on Facebook.

@RALEMonrovia on Twitter.