Carroll panel shrugs off zoning ruling

Judge didn't consider officials' recent action on Rash farm

January 31, 2001|By Mary Gail Hare | Mary Gail Hare,SUN STAFF

A Carroll Circuit judge has tossed out Carroll County's contentious rezoning of farmland in Woodbine, but the decision might be too late to affect the change in land use that Gov. Parris N. Glendening decried as promoting sprawl.

Carroll's newly enacted master plan, which rezoned the 145 acres known as the Rash farm for single-family homes, could make the decision moot, said Charles Hollman, attorney for the three Rash brothers who hope to create a 50-unit golf course community on their land.

Carroll commissioners approved the rezoning of a portion of the 400-acre Rash farm 18 months ago and last month enacted a countywide master plan and comprehensive rezoning, documents that Circuit Judge Luke K. Burns Jr. did not consider in deciding the rezoning.

Burns' decision relates to a prior procedure - the rezoning - and "not the action the commissioners took on Dec. 20 when they officially accepted new zoning maps," Hollman said.

The residential designation on the Rashes' farm paved the way for the golf course community they hope to build on the property west of Route 97.

"The judge's decision indicates the commissioners were incorrect when they granted residential zoning," Hollman said. "But, he did not have the newly adopted master plan and zoning maps with specific changes before him. For that reason, our opinion is the decision has no bearing on the commissioners zoning."

Had Burns' decision been issued in a more timely manner, the Rash property would have reverted to agricultural zoning, Carroll officials said.

"The commissioners had to move forward with the master plan and rezoning," said Steven Horn, county director of planning.

All previous rezonings were included in the new zoning maps, which the commissioners unanimously adopted.

"You can't go back now," said Commissioner Donald I. Dell. "Any change or mistake has to be proven from Dec. 20 forward. All three of us signed the master plan and approved the zoning map. I feel the judge's opinion is not strong."

Commissioner Robin Bartlett Frazier added, "My take is that the judge's ruling is inconsequential. We passed the rezoning piecemeal in 1999 and enacted it comprehensively in December. Those are the two ways to rezone."

Burns found that the Rash brothers had not established a mistake in the original zoning or a change in their neighborhood - the two standards for rezoning the Rash brothers had requested.

"The immediate surroundings of the Rash property are open and agricultural land," Burns wrote. "The only way the commissioners were able to find a substantial change is by expanding the neighborhood to include changes that have occurred miles away."

Commissioner Julia Walsh Gouge, who cast the dissenting vote on the rezoning, said "I am happy to hear there is a reversal, but unhappy to hear we can't change the maps at this point."

But, Gouge said she has several unanswered questions and has asked Laurell Taylor, the county attorney, to review Burns' decision. Taylor was not available for comment yesterday.

"The judge said there was no mistake in the original zoning or change in the neighborhood, just as I felt when voting against the rezoning," Gouge said. "This property should be looked at for farm preservation. I am just sorry the judge's decision was not announced sooner. We have adopted the map."

Larry Duket, state director of local planning assistance and neighborhood development, said Dell and Hollman make an interesting argument that may also end in the courts. "There could be counter-arguments for making a map consistent with piecemeal zoning you have taken months before," he said. "This is a rare situation, and I doubt there is any precedent."

Dell and Frazier approved the Rash rezoning despite the strong objections of state planners and the governor.

State officials believed the farmland in South Carroll, the county's most populous area, should be preserved and that the proposed development was outside existing communities, where the governor is trying to direct new construction in his Smart Growth program. Freedom Area Citizens Council, which serves as a liaison between South Carroll residents and county government, appealed the decision in November 1999, setting up the court case. Nimrod Davis, council vice chairman, called Burns' decision "one for the good guys" and belittled the commissioners' rationale.

"If the judge's decision is moot, then the new master plan will have to be moot, too," said Davis. "How many times have Frazier and Dell said that the master plan is just a guideline for them to follow? It is not cast in stone. It does not supersede the courts."

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