Legal maneuvering over Turf Valley

Foes of expansion claim 80-minute gap in official records

October 20, 2006

Opponents of the planned expansion of Turf Valley dusted off a page from the Watergate scandal by alleging an 80-minute gap in the official record of months of hearings on the luxury development.

The 18 missing minutes on White House tapes helped doom President Richard M. Nixon, but the latest charge was dismissed as unproved and inconsequential in a failed effort to discredit and strike a key piece of evidence in the battle over Turf Valley.

In the first evening of hearings, devoted exclusively to legal maneuverings, the Board of Appeals unanimously rejected three motions, two by the opponents and one on behalf of the developer.

That wrangling did not clear the way for a debate on the substantive issues. Attorney Paul F. Kendal announced that he would file a motion challenging the board's jurisdiction in the case, which will have to be deliberated first when the hearing resumes next month.

That prospect mildly irritated the chairman of the board, Robert Sharps, who is eager to get to the heart of the case.

The board is hearing an appeal of the Planning Board's approval this year of the developer's fourth comprehensive sketch plan to expand Turf Valley to 808 acres by adding 119.7 acres. That would permit an additional 239 housing units to be built, for a total of 1,618 units. The plan also would permanently fix the location of nine golf holes and allow for the realignment of a major street in the development.

Kendal, a Turf Valley resident, and Frank Martin, who lives just outside the development, filed the appeal. They and others also filed a lawsuit in Circuit Court challenging the Planning Board's authority in the case.

That lawsuit was the basis for one motion Tuesday night, which claimed that the Board of Appeals should defer action because the case is in court.

Kendal argued that the board's rules state that it should hold in abeyance cases that are before the courts.

"If these issues are decided by the court, everything that we are doing here in this case is moot," he said.

The motion was opposed by counsel for the county and attorney Richard B. Talkin, who represents the developer, Mangione Family Enterprises.

Talkin said that a "huge body of law" in Maryland has ruled that administrative remedies should be exhausted before the courts weigh in, except in the most extraordinary cases.

The five-member Appeals Board quickly denied Kendal's motion, saying it has jurisdiction in the case and expects to meet its responsibility.

"Why did they appoint the five of us" if each time a lawsuit is filed the board refuses to consider appeals, said Sharps.

"Nothing I've heard tonight [says] we should not hear this case," said board member Maurice Simpkins.

Then the gap came into the picture.

Kendal argued that the official transcript of the Planning Board's hearings is missing 80 minutes of testimony. Specifically, he said, it omits questions raised about a traffic study conducted on behalf of the developer.

Martin said it also reduces to three paragraphs about three hours of cross-examination of the traffic expert.

"It's a one-hour, 20-minute gap," Kendal said. "The essential point is that the record is incomplete."

He said the traffic report, an essential component of the Planning Board's hearings, "is not credible; it should be stricken."

Talkin asked that the motion be denied, arguing that the courts have consistently ruled that the opponents carry the burden of proving specifically what is missing and its importance.

He also said the courts have ruled that they have an obligation to help reconstruct transcripts. The opponents of Turf Valley's expansion have not done that, Talkin said, because they would have to raise the credibility of the witness who testified on behalf of the traffic study.

That credibility, he said, "is determined by the Planning Board, not this board."

Sharps told Kendal, "You are inferring that the record was tampered." He said he found "no specifics on what is missing."

The board denied the motion on a 5-0 vote.

It also rejected a motion by Talkin to remove Martin as a party to the case because he had not signed the formal appeals petition, as is required by county regulations.

The board said it was clear that Martin had been deeply involved in the Planning Board's case and in the appeal.

The hearing will resume on Nov. 2.

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