Project tangled in legal mess Debate rages over Oakmont Green NORTH -- Manchester * Hampstead * Lineboro

May 26, 1993|By Katherine Richards | Katherine Richards,Staff Writer

When new Hampstead Town Council members take the oath of office, they swear to uphold the Constitution of the United States of America.

But opponents of the Oakmont Green Retail Center, under construction on Route 30, said an ordinance enacted by the Town Council in January violates the U.S. and Maryland Constitutions.

Legal warfare has erupted.

"It's like a chess game," Clark R. Shaffer, attorney for the center's opponents, said yesterday. "There are many, many possible actions that both sides could take."

Mr. Shaffer said he had asked for the town's mayor and council to be subpoenaed to attend a hearing on the challenge at the Hampstead Board of Zoning Appeals' meeting at 7 p.m. Tuesday.

Plans for the Oakmont Green Retail Center include a 42,716-square-foot grocery and 13,800 square feet of additional retail space, on the east side of Route 30 across from Brodbeck Road.

After a Dec. 7 decision by the zoning appeals board that the project could not go forward, both sides appealed the matter to Carroll Circuit Court.

The board delayed approving the center because its proposed storm water management pond was within a conservation zone and did not meet conservation zone requirements.

The developers said the board's decision was wrong. Opponents said the decision didn't go far enough.

Center opponents include H.M. Mall Associates, owner of North Carroll Plaza. North Carroll Plaza is across the street from Oakmont Green, and stands to lose an anchor grocery to the new shopping center.

However, the playing field was altered in January, when the Hampstead Town Council overhauled the town zoning code by passing Ordinance 230. The ordinance defined storm water management ponds as a "utility" use that can be allowed in conservation zones.

The new law also removed requirements for the town to consider traffic and the need for a shopping center when approving commercial developments.

Town officials have said they consider traffic, anyway, as part of the planning process.

Gary Bauer, chairman of the Hampstead Board of Zoning Appeals, said last week that Ordinance 230 brought Hampstead's zoning code in line with the more up-to-date code used by Carroll County.

The Oakmont Green developers re-introduced the shopping center site plan under the new law. It was approved.

A building permit was issued Feb. 25, and construction began soon afterward.

The complaint filed in Carroll County Circuit Court challenging the constitutionality of Hampstead Ordinance 230 is one of four cases filed to date in the long-running zoning dispute.

Filed April 29, the complaint said Ordinance 230, which changed Hampstead's zoning law, violates the due process clause of the Fifth and 14th Amendments to the U.S. Constitution and Article 24 of the Declaration of Rights of the Constitution of Maryland.

"By adopting Ordinance No. 230, Hampstead evidenced its disdain for the public health, safety, and welfare and its willingness to put the interests of a particular commercial project above the general health, safety and welfare," the complaint said. "Ordinance No. 230 was adopted for the sole and exclusive purpose of expediting and facilitating a private commercial project."

Richard C. Murray, Hampstead's town attorney, responded to the complaint with a request for its dismissal.

His memorandum in support of the dismissal motion said the opponents of Oakmont Green had no legal standing in the case because North Carroll Plaza isn't within the boundaries of Hampstead and the plaintiffs had not shown that they would be hurt financially by the Oakmont Green project.

He also said the plaintiffs' complaint is without merit.

Ordinance 230 is related to the general welfare of the town, Mr. Murray argued, because it can be seen as "an attempt to encourage business development of property within the town."

On April 19, the Carroll County Circuit Court handed both the earlier appeals back to the Hampstead Board of Zoning Appeals for action under Ordinance 230.

If the ordinance is found to be unconstitutional, Mr. Shaffer said, "then we go back" to those initial appeals filed by both sides in the dispute.

Yet another legal argument arising from the Oakmont Green saga is over whether construction of the shopping center can continue in the face of the appeal of the site plan as approved under Ordinance 230.

Mr. Shaffer asked for the town to halt construction.

However, in a letter to Mr. Riley, Mr. Murray said that, because the site plan and the building permit issued were valid, the town does not have the authority to stop construction.

The developer is proceeding at his own risk because the site plan and permit could be found to be invalid, he said.

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