Tower appeal facing delay

Issue centers on opponents' legal standing in case

December 08, 2006|By a sun reporter

When the dust settled, there had been extensive skirmishing, a few heated exchanges, an admonition for civility and the questioning of a single witness, but no answer to everyone's question: Can the appeal proceed against the proposed 23-story residential and retail skyscraper in downtown Columbia?

For that, people will have to wait for two weeks, perhaps longer.

The strategies for both sides are clear. The developer wants the Board of Appeals to declare that the opponents lack legal standing to contest the multimillion-dollar project and end the hearings abruptly. The opponents are hoping to clear that hurdle in order to finally get to the merits of their case and win a decision that the zoning for the tower is illegal and thus cannot be constructed.

The developer, Florida-based WCI Communities Inc., intends to build The Plaza Residences at Columbia Town Center, a 275-foot-tall tower that would include 160 luxury condominiums and ground-level retail shops.

The Planning Board approved the site development plan for the project in January.

That decision is being challenged by four county residents: Jo Ann Stolley and Joel Broida, both of whom live directly across the street from where the tower would be built, and Stephen Meskin and Lloyd Knowles.

Their attorney, E. Alexander Adams, alleges in the appeal that:

The Planning Board illegally permitted residential uses on the site of the proposed tower because the property was zoned for commercial uses.

County regulations "constitute an unlawful delegation" of authority by allowing the Planning Board to determine the height of buildings in downtown Columbia. Either the Zoning Board or County Council, Adams contends, must make such decisions.

The number of residential units approved for development vastly exceeded that permitted in downtown Columbia.

County officials and representatives of WCI have consistently said that the tower complies with all regulations and that there is no legal basis on which to reverse approval of the tower.

The company's attorneys, Richard B. Talkin and S. Scott Morrison of the Washington-based firm Katten Muchin Rosenman LLP, have blocked a review of those issues by challenging the legal standing of the opponents.

The first appeal filed by Adams was dismissed by Hearing Examiner Thomas P. Carbo, who ruled in June that the opponents lacked legal standing.

It is that decision that the Board of Appeals must first consider. Only if the board rules that one or more of the opponents have standing can the hearing proceed.

In the board's first evening of hearings on the case Tuesday, little happened to advance either side's case because more than an hour was consumed with skirmishing over how the hearing would be conducted and which side faced the "burden of proof" in deciding whether to overturn Carbo's ruling.

The developer's attorneys called only Broida - as "an adverse witness" - before the hearing was postponed until later this month.

The questioning of Broida prompted a flurry of objections and strained words between Adams and Morrison.

Board Chairman Robert Sharps finally admonished both, saying, "We're going to exercise common courtesy in this hearing."

To have legal standing to challenge the tower, Talkin said, the law requires that one must have been a party to the Planning Board's case and be "specially aggrieved" by the board's decision.

Although Meskin and Knowles participated in the Planning Board's case, their standing is problematic because neither resides "within sight and sound" of the proposed development.

Stolley and Broida would seem to have presumptive standing because they live directly across the street from where the tower would be built.

Stolley, though, was not a party to the Planning Board's hearings, and Morrison has tried to show that Broida was aware that a tower could be built next to his condominium complex and cannot claim to be "specially aggrieved."

The hearing was delayed until Dec. 18, at which time Talkin and Adams will call further witnesses. It is unclear whether the hearing will be concluded then.

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