County allows building of houses

Attorney questions waiver granted to Koch Homes

February 10, 2000|By Scott Calvert | Scott Calvert,SUN STAFF

Anne Arundel County is allowing an 18-house subdivision to be built even though the county's lawyer concluded before construction began that the project had been approved illegally.

County Executive Janet S. Owens knew of the lawyer's opinion last May, two months before Koch Homes received the first building permits for Windswept in Annapolis.

She directed two subordinates to review whether the developer still should be excused from paying for certain road repairs on traffic-choked Riva Road.

The approval was not revoked, and yesterday construction workers were laying bricks for a chimney at one of the partially built houses that will make up the subdivision. The houses will cost $400,000.

John Morris, a spokesman for Owens, said the project was allowed to proceed because of a "long-standing practice" of approving waiver requests, and because house lots might have been purchased by the time the county attorney wrote his opinion in May.

But Morris said that if the Windswept request had happened today, "I think the decision might have been very different."

The initial decision was made in December 1998 by Steven R. Cover, then the director of Planning and Code Enforcement. One issue was whether to require Koch Homes to rebuild a half-mile stretch of Riva Road south of Windswept that Cover labeled "unacceptable."

Developers can be required to pay for road and other improvements when they are deemed necessary to support new development.

Cover excused Koch Homes from the road work, arguing that the cost would be "in excess of the capability of a development of this size." In other words, it would cost too much for a relatively small development.

In granting the waiver, Cover noted that the part of Riva Road that needed the most improvements was to the south of the subdivision, and Windswept residents would mostly travel to the north, where the road was better.

In March, Koch Homes received approval to subdivide the property into 18 one-third acre lots.

In May, County Councilwoman Barbara Samorajczyk, an Annapolis Democrat who had been contacted by residents concerned about Windswept, asked the county law office whether Cover's decision had been proper.

Deputy County Attorney David A. Plymyer concluded that it was not. County ordinance, he wrote in a return memo to Samorajczyk, specifically forbids the granting of waivers for "financial considerations."

"The director simply may not arrogate to himself or herself the authority to base waivers on this type of financial consideration," Plymyer wrote in the May 12 memo.

Plymyer added that the "irony" of such decisions is that development would be allowed, and improvements not required, "in locations which have the gravest traffic problems," because repair costs are greater.

A day later, Samorajczyk forwarded Plymyer's memo to Owens and to other council members. She asked that the county look into revoking the waiver "considering the severity of the public safety issues" raised at an earlier public hearing.

In a response May 25, Owens said she had directed two county officials to investigate: Richard Wilcox, interim planning director at the time, and Tom Andrews, Owens' chief land-use and environmental policy adviser.

No attempt to rescind the waiver was made, and in July Koch Homes received the first building permit for Windswept. Today, 13 of the planned 18 houses are under construction, and some are close to occupancy. Building permits have been approved for all but two.

Morris, the county spokesman, said Andrews and Wilcox were told by the law department that the county should apply Plymyer's opinion to future waiver requests.

Morris said at the time Cover granted the waiver, he was following a long-standing practice of granting waivers and that by May the project had moved beyond the early stages.

"For all we knew, the lots could have been sold off to 16 or 18 different people," he said.

Gary Koch, president of Koch Homes, said his company did not receive special treatment. He noted that his company paid to add acceleration and deceleration lanes along Riva Road near the entrance to Windswept.

Cover, who declined to comment yesterday, resigned as director in February 1999. He left after Owens demanded that she be allowed to review all subdivision applications before they received Cover's approval, to prevent the possibility of any favors to developers.

Owens adopted the policy after revelations that a planning administrator was recommending waivers of county growth-control laws for a firm owned by his father-in-law.

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