Developer threatens lawsuit

Other developments have been permitted, lawyers for Nes say

Owens policy called unfair

Marley Neck proposal was denied because of crowded schools

February 17, 2000|By Scott Calvert | Scott Calvert,SUN STAFF

Stymied for seven years, the developer of a proposed 1,372-house subdivision in Anne Arundel County is threatening to sue the county unless the project is allowed to go forward in the Solley area of Marley Neck.

County approval seems unlikely, because the denial was based on a lack of space in area schools, and County Executive Janet S. Owens has refused to grant exceptions to developers if classrooms cannot handle the influx of students a new community would bring.

"The Owens administration made a pledge not to issue any waivers for schools, and Ms. Owens has stuck to it," said county spokesman John Morris.

A prominent Washington law firm representing Jane Nes, developer of the proposed Tanyard Springs, claims that previous administrations allowed housing developments in the same area. The lawyers also maintain that schools have sufficient seats.

"We are left with little choice but to pursue legal action," wrote attorney Steven R. Johnson of Verner, Liipfert, Bernhard, McPherson and Hand.

Johnson called the county's actions "arbitrary, unreasonable and unlawful." Asked in an interview whether Nes would sue the county, Johnson said only that she is not "foreclosing the possibility of going to court."

Johnson said the letter was prompted by revelations last week that the county allowed an 18-unit development on Riva Road in Annapolis to proceed, despite an opinion from the county's lawyer that its approval violated a county ordinance.

"It just exemplified what's wrong with the county's enforcement and application of the county's adequacy of facilities law," Johnson said of the waiver granted to Koch Homes for its Windswept development.

In an effort to control growth, the county can reject projects that would put an excessive burden on roads, sewer lines and schools. In some cases, the county can waive those requirements.

Windswept got permission even though a section of busy Riva Road is considered failing. The basis for the waiver -- that the cost of improving Riva Road would be "excessive" for a relatively small development like Windswept -- is prohibited by county ordinance, a county lawyer later wrote.

Although Owens knew of the lawyer's opinion before construction began, she did not try to block Windswept. Because of that decision, along with "countless incidents of granting school capacity to other developments," Johnson wrote to County Council members that he has no confidence in the administration to act legally.

Another source of frustration for Johnson is that the county has not answered a 16-page letter he sent Owens two months ago chronicling the proposal's history since Nes and the county began negotiations in 1993.

The project would affect enrollment at Solley Elementary, George Fox Middle and Northeast High schools.

In June 1998, Nes requested a waiver for school capacity for a scaled-back proposal of 550 homes. But Steven R. Cover, who headed the Department of Planning and Code Enforcement at the time, denied the request because of school capacity concerns.

In fall 1998, Owens defeated Republican County Executive John G. Gary, whom she had criticized for granting too many waivers for development.

"One thing that is not arbitrary is the fact that school overcrowding is a serious problem up in Solley," Owens spokesman Andrew Carpenter said yesterday.

"That overcrowding affects the entire feder system, elementary schools, middle schools and the high school."

Carpenter said he did not know why Johnson's letter had gone unanswered, but said Owens and other county officials have met several times with Nes.

"And at each meeting, the question Ms. Nes has failed to answer is, `How are you going to resolve the school overcrowding and road capacity problems?' " Carpenter said.

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