Rezoning reversal pursued

June 30, 1995|By James M. Coram and Howard Libit | James M. Coram and Howard Libit,Sun Staff Writers

Howard County development is expected to continue uninterrupted despite a slow-growth activist's 11th-hour attempt to overturn the 1990 General Plan and the county's most recent comprehensive rezonings.

Susan B. Gray of Highland on Monday asked the Maryland Court of Appeals -- the state's highest -- to review two lower court rulings that already have rejected her challenge. She filed the appeal on the last day she could do so.

The Court of Appeals is expected to decide within six weeks whether to review Ms. Gray's case. If, as county officials and developers predict, it declines to hear her appeal, the lower courts' decisions will remain intact.

"What it has done is waste a whole lot of taxpayers' money to defend against it," Steve K. Breeden, vice president of Security Development Corp., one of the county's major developers, said of Ms. Gray's challenges.

The activist is asking the court to reject the way the county government approved the General Plan, the county's guide to land use, and the 1992 and 1993 comprehensive rezonings, which carried out the General Plan by establishing zoning categories for the county. Her initial lawsuit was filed in 1993.

Her current appeal is viewed as more of a nuisance than a threat by developers because of the lower court rulings against her.

A May 5, 1994, ruling by the Howard County Circuit Court found that the county's 1990 General Plan and the 1992 and 1993 comprehensive rezonings were valid. The Maryland Court of Special Appeals upheld that decision June 9.

Deputy County Solicitor Paul Johnson said he expected the Court of Appeals to uphold the lower courts' rulings but that if the court decides to review the case, the decisions could be reversed. In any case, the county intends to file a response to the appeal.

Builders and developers are so confident that Ms. Gray will be rebuffed that construction already has begun at many sites where the zoning was changed as a result of the comprehensive rezonings.

Security Development, for example, has begun construction of the Cortina development in Highland, which was rezoned under the actions being challenged by Ms. Gray.

Alton J. Scavo, a Rouse Co. vice president and general manager for Columbia development, said the company "takes our lead from the county, and the county says that the plans are legal and in operation."

Rouse has one development that it was permitted to build after the comprehensive rezonings, a set of apartments and townhouses along Snowden River Parkway.

County Planning Director Joseph W. Rutter Jr. acknowledged that "it's always a gamble" when a case is still before the courts.

"But once you get past the Court of Special Appeals, the comfort level increases dramatically," he said.

The county planning office will not alter its routine of processing site plans for developments that were permitted to be built by the recent comprehensive rezonings, Mr. Rutter said.

Even if Maryland's highest court agrees with Ms. Gray, the County Council will act immediately to rectify the situation, Mr. Rutter said.

Ms. Gray concedes that her appeal is a long shot, given that the Court of Appeals agrees to hear fewer than one in five appeals.

"It's a very high hurdle to begin with," said Ms. Gray, who lost her campaign to become county executive last fall. "And then we would have to persuade the court to agree with our legal arguments."

One of the companies potentially affected by Ms. Gray's appeal is Wal-Mart, the nation's largest retailer.

The company won rezoning for 22 acres at the northeast corner of U.S. 29 and U.S. 40 in Ellicott City in the 1993 comprehensive rezoning. It plans to open a Wal-Mart store there late this year or early next year.

A Wal-Mart spokesman said last week that an appeal from Ms. Gray would not alter the company's plans. Efforts to reach a company spokesman yesterday were unsuccessful.

The thrust of Ms. Gray's argument is that the County Council should have departed from more than two decades of zoning practice and enacted the 1990 General Plan and the 1992 and 1993 comprehensive rezonings by legislative bill, which would have permitted challenges through voter referendums.

Instead, the 1990 General Plan was passed by a resolution of the council. The comprehensive rezonings were accomplished by an administrative procedure known as a "decision and order" signed by the council sitting as the Zoning Board.

In 1994, county voters approved a charter amendment -- dubbed "Question B" -- that ensures that future actions of that kind would have to be approved as legislative bills, which is what Ms. Gray wants.

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