Judge rejects way to slow home growth Determination of school crowding is flawed, he says

Builder can finish project

Carroll ruling supports arguments of several developers

September 19, 1997|By James M. Coram | James M. Coram,SUN STAFF

Carroll County's method of slowing residential growth -- rejecting subdivisions near crowded schools -- might be invalid, a circuit judge has ruled.

Judge Raymond E. Beck Sr. said the county Planning Commission has not gone far enough with the 16-month-old policy to determine whether development should be postponed.

Beck issued his ruling in response to an appeal from Willow Pond Development of Pikesville, whose request to finish a 101-lot subdivision in Westminster was rejected by the Planning Commission in December and in June.

While his ruling deals with one subdivision -- Eden Farms -- it appears to support arguments many developers have made before the seven-member planning panel.

In most instances, the Planning Commission has turned down proposed subdivisions if the schools that would serve them would be a certain percentage above capacity. Space added by portable classrooms has not been taken into consideration.

The building industry says the criteria are too rigid to allow developers to mitigate the effects of growth by building in stages or waiting until construction of a new school has begun before adding lots to their subdivisions.

Beck agreed. "Only a genuine lack of adequacy of facilities can strip the property owner of the valuable right to proceed forward in due course," he said in the 35-page decision released yesterday.

Beck has raised some "vital issues," said County Commissioner W. Benjamin Brown. "I'd like to emphasize that property owners do have legal rights and that it's not unusual in this country for rulings such as this to occur," he said.

The Planning Commission's determination of a lack of adequate facilities -- in this case, school crowding -- was flawed, Beck said, because members adopted criteria that "fail to factor in conditions which are clearly relevant to rational decision-making on the adequacy of school facilities."

When making his case before the Planning Commission in December, Eden Farms' attorney John T. Maguire II argued that the nearby school crowding existed on paper only. If students were put in a district that would take them to a school closer than Westminster Elementary, there would be no overcrowding, Maguire said.

Beck agreed. "When school facilities are adequate and available, but the Board of Education does not redistrict as a matter of pure convenience or political expedience there is no real lack of adequate facilities," the judge said.

The Planning Commission's criteria to determine school crowding were not in effect when Eden Farms' developer received preliminary approval for the final 25 lots in the 101-unit subdivision in February 1995.

The developer had no warning that final subdivision plans would be rejected, Maguire had told the Planning Commission.

The developer received a grading permit, put up a $377,000 bond and paid $350,000 in impact fees, Maguire told the Planning Commission in December.

He had asked the commission to allow his client to develop the remaining lots on condition that they not be sold until construction of nearby Cranberry Station Elementary School.

Beck said, "The attempt by the Planning Commission to adopt its own super-standard for schools at the Petitioner's expense constitutes a regulatory taking [of private property] without just compensation."

Beck also criticized the commission for failing to consider portable classrooms as part of school capacity, because developer impact fees are used to purchase the portable units. The judge ordered that the developer be allowed to complete Eden Farms without any limitation on building permits and that the Planning Commission pay court costs.

Planning Commission Vice Chairwoman Robin M. Frazier was philosophical.

School adequacy is "a question we've been trying to sort out for a couple of years," she said. "The government, the planning people and the Board of Education all need to get on the same page."

Brown, who with County Commissioner Richard T. Yates appointed all Planning Commission members except Frazier, said he won't know what the Eden Farms decision means until it's thoroughly evaluated.

Yates said he, too, wanted to study the decision further, but agrees that redistricting might help relieve school crowding.

"It makes no sense to have one school bursting at the seams right next to another that's under capacity," he said.

Eden Farms attorney Maguire said it would be "wrong" to say the case signals open season for developers whose plans have been frustrated the past year and half.

"Our hope," Maguire said, "is that the Planning Commission would use this as a guide for analyzing each case more completely."

Pub Date: 9/19/97

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