Legal opinion may complicate rezoning cases

County attorneys say covenants shouldn't be considered

Anne Arundel

April 03, 2002|By Lynn Anderson | Lynn Anderson,SUN STAFF

The Anne Arundel County Council might have to change the way it reviews requests for zoning changes because of a legal opinion instructing members not to include development covenants between landowners and neighbors in their deliberations.

The opinion, in a memorandum from the county law office, was received by the council Monday afternoon, hours before members met and voted on a comprehensive zoning map for the Broadneck area.

Despite the opinion, the council rezoned a Broadneck property used as a parking lot for school buses from residential to industrial after listening to public testimony that focused on development covenants that John Lonergan, owner of Chesapeake Charter Inc., worked out with the Whispering Winds neighborhood.

"I want to be a good neighbor," said Lonergan, whose business has operated under a variance for the past two decades at 424 Broadneck Road. "We are just trying to make the zoning right."

But yesterday, several council members said they fear Lonergan's zone change, and possibly others in the Broadneck region, could be challenged in court as a result of the legal opinion.

"I don't think it's an error that we need to repeat," said Councilwoman Pamela G. Beidle, a Linthicum Democrat. "At least whatever discussion happens now we are aware of the covenant issue. ... I won't consider the covenants from now on."

The opinion, written by Deputy County Attorney David A. Plymyer, states that "such private agreements may not play a direct role in governmental decisions that result in ... comprehensive rezoning. ... A fundamental line is crossed if the Council links ... rezoning [to] the existence of private covenants."

The opinion likely will not prevent county residents from discussing covenants at council meetings, said County Attorney Linda M. Schuett. But, she added, council members must consider the full range of uses permitted under a zoning classification, not those established by a set of restrictive covenants entered into by private parties.

"They can know about the covenants, but they need to base their decision on other factors," Schuett said.

County officials differ on whether the Lonergan decision relied too heavily on the consideration of covenants.

Republican Councilwoman Cathleen M. Vitale of Severna Park, whose district includes the Broadneck area, said Monday night that the zoning change should be approved because the Broadneck Small Area Plan, a long-range planning document approved by a committee of residents, recommended it.

"I don't believe their decision was based on covenants alone," said Richard Josephson, a county planning administrator who attended the council meeting.

Councilwoman Barbara D. Samorajczyk, an Annapolis Democrat, requested the opinion last week after a hearing at which Edgewater residents testified that they would back a proposed zone change at Lee Airport on Route 2 only if the owners agreed to certain development limits.

"It's pretty plain to me," she said yesterday, referring to Plymyer's opinion. "But I guess it's not to other council members."

Samorajczyk was the only council member to vote against the Broadneck area zoning map. "I didn't want to vote against the plan, but we have an obligation to follow the process such that we don't subject our decision to legal challenge," she said.

Several other County Council members said Monday that while they disagreed with the zoning change for the Lonergan property, they didn't want to disappoint residents who had worked for years on the Broadneck plan. Had the vote been delayed, the enabling legislation for the comprehensive zoning map would have expired.

The proposed zone change for Lee Airport will be taken up again when the council meets April 15. But Samorajczyk said she won't consider covenants on the property when it's time to vote.

Said Samorajczyk: "I think it's clear that we can't consider the covenants in our decision."

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