Carroll zoning board affirms rejection of Eldersburg complex

Builder's lawsuit seeks to jail planning panel

October 31, 2004|By Mary Gail Hare | Mary Gail Hare,SUN STAFF

The Carroll County Board of Zoning Appeals has affirmed the planning commission's decision to deny a site plan for a 254-unit rental complex in Eldersburg by a vote of 4 to 1.

The vote Friday followed an hour of spirited debate on the townhouse subdivision that Carrolltowne Development Partnership has attempted to build on a 20-acre parcel near Kali Drive and Ridge Road for nine years.

The Carroll County Planning and Zoning Commission refused to approve the site plan in 1995 and again a year later, but the Circuit Court for Carroll County reversed those decisions and ordered the panel to approve the development.

The county commissioners did not appeal the judge's ruling, and the developer did not move forward with the project, instead pursuing the possibility of commercial uses for the parcel. When the county removed the business zoning from the land, the developer revived the residential plan and brought it to the planning commission in August - five years after the judge's decision.

"The judge ordered the planning commission to approve the site plan," said David Roush, the zoning board member who cast the dissenting vote. "They have never done that. We have to live with that now. The order from the judge was uncontested."

But Roberta Windham, zoning board member, argued that much has changed since the judge's 1999 ruling and she called the developer's delay incongruous.

"He had the apple in his grasp and didn't go ahead," Windham said.

The commission cited crowded schools and roads and an inadequate water supply when it denied the plan more than two months ago.

Benjamin Rosenberg, an attorney for the developer, filed a lawsuit Oct. 22, accusing the commission of "constructive civil contempt" and asked that commission members, who include County Commissioner Julia Walsh Gouge, be jailed for refusing to approve the site plan.

"The only legal remedy that exists when a party refuses to comply with a judge's order is to hold them in contempt," Rosenberg said. "Incarceration is not a tactic. It is a requirement of law. We are asking for enforcement of the judge's final order."

Rosenberg criticized the county commissioners for issuing a news release on the lawsuit while the zoning board was deliberating on the case.

"We are simply asking that the planning commission be held in contempt until it complies," he said. "The judge's original order is still final and binding."

Jacob Yingling, appeals board chairman, decried the developer's use of "intimidation tactics," which, he said, did not influence his decision.

"If you are going to lock up the planning commission, please include the chairman of this board," Yingling said. "No board should ever be intimidated. I resent it."

A judge must schedule a hearing to rule on the contempt suit. Rosenberg denounced the county's "delay tactics," adding that officials cannot cite 2004 criteria to deny the building plan. As far as water is concerned, he said, the county has given other builders what should have been his client's allocation.

Yingling called the development partnership "prudent businessmen" who should not have deliberately missed their opportunity.

Michele Johnson, a zoning board member, said the planning panel "cannot base its decision on nine-year-old information." Windham added that the judge could not have foreseen a five-year wait on his ruling.

"This developer got everything he asked from the judge, yet he did not proceed," she said. "The developer is asking too much, and too many things have changed. It is unfair and unjust to endanger the lives of citizens of Eldersburg by a developer waiting five years and then asking for a total green light. It is just wrong not to consider the changes."

Part of the delay was due to the county's attempt to rezone the parcel for commercial use, a proposal that ultimately failed and forced the developer to revive the residential plan.

"It is unjust to everyone," said Roush. "It is unjust to put this burden on the community and for the county to have jerked the developer around. This is action by government to take away a property owner's rights."

The partnership can appeal the decision to Circuit Court. Absent that appeal, the plan is denied.

"We are already in court with the planning commission, and we will go back to court to appeal this decision," Rosenberg said. "There is only one remedy. It is no longer a question of whether or not this project is a good idea. It is a question of upholding the law."

A few neighbors of the proposed site applauded the decision and the board's rationale.

"The discussion was wonderful," said Eldersburg resident Andrea Kowaleski. "They really presented the issues in a totally honest and objective way."

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