Rezoning process flawed, Gray says Marathon hearings must be controlled

December 29, 1992|By Erik Nelson | Erik Nelson,Staff Writer

After staying awake until 4 a.m. presiding over closing arguments in the 10-day Wal-Mart rezoning hearing last spring, county Zoning Board Chairman C. Vernon Gray vowed, "We're not going to have any more marathons."

Seven months later, 16 days and nights of hearings for the proposed Waverly Woods II development near Marriottsville have proven that to be wishful thinking.

Looking back at the two longest hearings during his 10 years on the County Council, Mr. Gray and others say the process is flawed and needs to be more strictly controlled or taken out of council members' hands.

"I would like to have a case concluded within a month or a month and a half after the initial hearing. Once you attach the Zoning Board hearing on top of the Planning Board hearing, sometimes the case can take up to a year," Mr. Gray said last week.

After 10 public hearings, council members, sitting as the Zoning Board, voted unanimously last May against the rezoning needed for Wal-Mart's two warehouse-sized stores near U.S. 40 and 29 in Ellicott City.

Opponents of the 682-acre Waverly Woods II residential, commercial and golfing village said they hoped to get the same amount of time before the Zoning Board.

Using some of the same techniques employed by two experienced zoning lawyers in the Wal-Mart case, Waverly opponents -- none of whom were zoning lawyers -- stretched the hearings out over 16 days since March.

First, they conducted hours of cross-examination for each of the developer's witnesses. Often, more than five opponents took turns at the microphone, trying to pick apart everything from the basic assumptions underlying the project's planning to minute details of research methodology.

Then, dozens of citizens testified -- with no time limits -- punctuated by home-grown "experts" on traffic, commercial real estate and schools, continued attempts to discredit the project and warn County Council members that granting the rezoning could hurt them politically.

In the past, testimony was whether a change in the character of the neighborhood or a mistake in zoning had occurred, the only )) two legal reasons a rezoning request can be granted. But in 1988, the county began hearing "site plan" rezoning petitions, which allowed the Zoning Board to first consider whether a rezoning is legally warranted, and then whether a plan was appropriate.

Approved together, the rezoning and the site plan amount to a custom-designed zoning category.

Other site-plan hearings have been conducted in one to three nights, but those cases were distinguished by the willingness of both sides to work out most of their differences.

"It appears to me that we really need to place a time limit on both the petitioner and opponents," said Mr. Gray, adding that limits should also be placed upon cross-examination.

Ironically, such procedural rule changes would require public hearings and a Zoning Board vote, and setting time limits may not be easy, or even legal, according to lawyers who have represented the citizens, developers and the board.

One, Deputy Solicitor Paul T. Johnson, believes that because individual, or "piecemeal," rezoning cases, are a quasi-judicial proceeding, no time limits may be placed on testimony or cross-examination.

What could be limited, he said, is the type of testimony allowed.

During both Wal-Mart and Waverly hearings, Mr. Gray repeatedly silenced lawyers who objected to "irrelevant" testimony. Citizens should be allowed the opportunity to speak their minds, he said, so council members would hear their testimony and decide its relevance in their deliberations.

F. Todd Taylor Jr., senior assistant county solicitor, said he believes the board could alter its rules of procedure to allow time limits, but not arbitrary or fixed limits. That is, the board would have to allow for the fact that some cases require more time to argue than others.

Leonard Goldstein, one of two attorneys representing the Waverly property's owners, said part of the problem in that case was the oppostition's lack of objective legal representation.

While two of the Waverly opponents were lawyers, both were representing their own strongly held views and did not have experience in county zoning cases.

"If every citizen exercised their right to represent themselves in the criminal system, the whole system would come to a halt," Mr. Goldstein said, adding that some form of publicly provided legal representation for zoning cases might help the problem.

But even the hearing for Wal-Mart, in which opponents had the representation Mr. Goldstein favors, lasted 10 nights, with many not concluding until the wee hours of the next morning.

"Wal-Mart could have been cut down a bit on relevancy," admitted Thomas M. Meachum, the attorney who represented opponents. "The problem is, you have the right to introduce relevant evidence," Mr. Meachum said.

After that, the other side has the right to cross-examine, a process he said often requires more time than direct testimony.

"The best way to limit it is for the board to monitor testimony for relevancy," Mr. Meachum added. "They don't have to wait for objections."

Keeping a tighter rein on the process ought to be tried before the board attempts to set time limits, he said.

A more radical -- and thus less likely -- solution would be for the County Council to divest some of its zoning responsibilities.

Mr. Gray said he plans to ask Zoning Board Administrator Robin Regner to do a study of other counties' rezoning procedures to see what alternatives are available to Howard.

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