Rezoning case in Carroll set for next level

Rash brothers want to develop part of farm

Circuit judge rejected change

Court of Special Appeals will review `entire case'

September 22, 2002|By Mary Gail Hare | Mary Gail Hare,SUN STAFF

The landmark Rash property zoning case that sparked years of fighting between two Carroll County commissioners and state officials bent on stemming residential sprawl is set to move to another level of judicial review.

An attorney for the Rash brothers, owners of a Woodbine farm that they hope to develop as a golf course community, said last week that he would go to the Maryland Court of Special Appeals to press his case for the zoning that the project requires.

Attorney Charles D. Hollman was responding to a Sept. 9 ruling by Carroll Circuit Judge Luke K. Burns Jr., who rejected the three brothers' argument. The Rashes said the zoning change should be approved partly because the project is contained in the county's comprehensive master plan; Burns' decision left lawyers for the Carroll government unsure about how much legal weight the plan carries.

"We are pleased to have the decision from Burns so that we can move on to the appellate court," Hollman said. "The court will review the entire case, including the initial rezoning as well as the effect of the master plan."

The Rash property zoning case has been a source of dispute for more than three years. In 1999, the county commissioners voted 2-1 to allow the Rash family to rezone 145 acres of their 400-acre farm for a 50-home golf course community.

Commissioners Donald I. Dell and Robin Bartlett Frazier voted for the change over the objections of Commissioner Julia Walsh Gouge. The decision drew the ire of Gov. Parris N. Glendening, who contended that the commissioners were promoting sprawl.

The governor said Carroll's requests for state funding of school and water projects would receive a cool reception because of the commissioners' resistance to his Smart Growth initiatives, which are designed to preserve farmland and direct housing to existing communities.

The Rash farm, in a predominantly rural area west of Route 97, is several miles from Eldersburg, the county's most populous community.

"This project became the whipping boy for Smart Growth," Hollman said.

Several South Carroll residents appealed the approval of the rezoning three years ago. Early last year - a month after the commissioners enacted a master plan that included the rezoning for the Rash property - Burns overturned the original rezoning decision, saying the landowners had not met the legal test showing that the neighborhood had changed or that the original zoning was in error.

The Rash brothers asked the judge to reconsider his decision, saying the zoning should be allowed because it would follow the master plan.

But Burns rejected that argument, writing in his opinion that the master plan "does not constitute a comprehensive rezoning plan." He said his original decision overturning the zoning change would stand.

The county's legal staff is reviewing the decision and weighing its potential effects on what was Carroll's first complete revision of the master plan in more than 30 years, said Timothy C. Burke, assistant county attorney.

"The key to the decision is that the judge is saying the master plan and the zoning changes do not constitute a comprehensive master plan," Burke said. "Under the law, [the judge's decision] trumps the county's previous action."

But Burke said uncertainty comes from the notion that such government actions are not to be dismissed lightly.

"Under the law, the adoption of a master plan and a comprehensive rezoning are legislative acts given extremely high deference," he said.

Dell sympathizes

Dell said he disagreed with the court's view on the legal significance of the master plan.

"I don't know what grounds the judge is using to say this is not a comprehensive plan," Dell said. "This sets the Rashes back again really bad."

Dell said he recalls the two attempts the Rash brothers made to put the farm into the state's agricultural preservation program more than 20 years ago.

"They never got a decent offer," Dell said. "If not for that history, I might not have gone along with the rezoning request. I felt justified at saying there was a mistake in the original zoning for the property. I feel sorry for those fellows. They have been shafted again and again."

Dell said he would like the Rashes to reconsider preservation, but he doubts that they will. Hollman called the option "highly unlikely."

Until the issue is resolved, the Rashes cannot pursue their plans. Agricultural zoning would allow them to build one home for every 20 acres of the farm.

"The goal is to try to do something with the property that is beneficial to everybody involved," Hollman said. "It is hard to comprehend that a golf course and 50 upscale homes would not be beneficial to the community. This has been a grueling and expensive process for the Rashes, and they may have to look at other options that are less desirable to everybody."

Critics praise decision

State Secretary of Planning Roy W. Kienitz said the judge made the right decision.

"This was a piecemeal rezoning that the court found invalid," he said. "The commissioners assumed it was valid and incorporated it into the master plan. That does not make it legal."

South Carroll residents used the case to marshal opposition to what they considered the pro-development stance of Dell and Frazier, who were defeated in their re-election bids.

Community leaders applauded Burns' decision.

"It affirms what we have known all along, that there is no end run around protocol," said Ross Dangel, chairman of the Freedom Area Citizens Council, an unofficial liaison between county government and South Carroll communities.

"This rezoning was really the first event that triggered us as to what was going on in this county, especially where development is concerned. ... Although it was a technical, complex issue, it became a catalyst for us and it was an issue that galvanized the public further," he said.

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