Courting change in zoning hearings

Many residents find quasi-legal format confusing, slanted

November 11, 2001|By Alec MacGillis | Alec MacGillis,SUN STAFF

Michael Crable still recalls his first encounter with the twilight zone that is a Howard County land-use hearing.

Crable had dropped by a county Board of Appeals meeting to hear about a proposed retirement complex on Route 144 in Marriottsville. Instead, he found himself wondering if he was in court and wishing he had brought a lawyer.

After a consultant for the developer made his pitch, Crable, the only resident present, started to voice a concern about the project - only to be cut off in mid-sentence. This was the "cross-examination" phase of the hearing, the board chairman said, and Crable had to put his comment in the form of a question to the consultant.

FOR THE RECORD - An article Sunday in the Howard County edition of The Sun incorrectly described the genesis of a citizen advisory committee created to study the Howard County zoning process. The committee's official marching orders came from County Council Chairman Guy J. Guzzone, a North Laurel-Savage Democrat, but its formation came at the urging of Councilmen Allan H. Kittleman, a western Howard Republican, and Christopher J. Merdon, an Ellicott City Republican. The Sun regrets the error.

When Crable did ask a question, he was interrupted again, this time by the developer's lawyer who objected that the question was not related to the consultant's testimony. Eventually, Crable gave up - another resident flummoxed by the confusing, quasi-judicial nature of the zoning process.

"I didn't expect what happened," Crable said. "It seemed like a courtroom environment, almost like you had to be represented by an attorney to even bother to come up against the developer. ... It's very intimidating."

As if zoning laws aren't confusing enough, Howard residents say, the court-like format of the county's land-use hearings - where anyone wanting to address the board has to testify under oath and undergo cross-examination - is disorienting and slanted toward developers.

Zoning hearings elsewhere in the state adhere to a legalistic structure, to make sure reliable transcripts are produced for cases that are appealed to the courts. But other jurisdictions, including Baltimore and Anne Arundel counties, funnel many cases to informal sessions before hearing examiners and provide a public counsel to advocate for residents in the cases that go to the more formal boards.

Changes to the process

Howard is taking steps to make its land-use process easier to participate in. The county has hired a part-time "zoning counsel" to explain the hearing process to residents and to do cross-examinations of applicants on behalf of the Zoning Board, which consists of the five County Council members and handles rezoning requests.

It also plans to hire a hearing examiner who will make initial rulings on requests for conditional uses, which now go before the Board of Appeals. The hope is that the hearing examiner will be less intimidating than the full board, said County Councilman Guy J. Guzzone, a North Laurel-Savage Democrat.

"Citizens have claimed a disadvantage in this, and I can see how they feel that way," said Guzzone, who formed a committee to study ways to improve the process.

"The [hearing examiner approach] could still be a court-like setting, too, but it's supposed to be a little more casual," he said.

Residents hope the reforms work, but worry that the hearings will remain as bewildering as ever. The new zoning counsel, they note, will take part only in hearings at the Zoning Board - not the Board of Appeals - and won't be allowed to advocate directly on behalf of residents.

In the developer's favor

The problem, residents said, is that the hearings are like court in some ways but unlike it in others. For instance, developers "testify" instead of just making a pitch to the board, but the developers' lawyers can ask them as many leading questions as they want, which a court wouldn't allow.

And while developers' lawyers introduce expert witnesses and exhibits to buttress their case, they aren't required to notify the other side of the evidence beforehand, as they would in court.

"The rules are like `Alice in Wonderland,'" said Howard Weinstein, an Elkridge resident who last spring protested the rezoning of a parcel at Routes 100 and 103. "Half the time you think the rules are one way and then you find out, no, they're the other way."

At times the hearings resemble the game show Jeopardy!, with residents struggling to phrase their comments in the form of questions to developers and expert witnesses, while developers' lawyers bark out objections.

Outmatched residents

The legalisms were on display at a July Zoning Board hearing about a 4-acre parcel up for commercial rezoning on Route 99 in Marriottsville. Richard B. Talkin, the lawyer for developer Donald R. Reuwer, spent the first 20 minutes submitting a dozen exhibits, public documents that were readily available to board members.

Talkin asked Reuwer several questions about why the parcel qualified for commercial zoning and, when finished, asked Reuwer if there were any more questions he should ask him.

When it was time for cross-examination, resident John C. Butler nervously asked the board, "Am I allowed to make a statement, or just ask questions?" When one question strayed beyond Reuwer's testimony, the developer told Butler that was against the rules.

"What you're [supposed to be] posing at this point is not new questions but questions on my testimony," Reuwer said.

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