Board delays decision on Plaza

Deadlocked vote confuses standing of final appeal

January 24, 2007|by a sun reporter

The fight against construction of a 23-story luxury complex in downtown Columbia comes down to one person -- maybe.

In a remarkable turn, confusion has replaced clarity and that is not likely to change soon.

After quickly rejecting the legal standing of three opponents, the Board of Appeals deadlocked on the fourth, and final, challenger: Joel Broida, who resides less than 200 feet from the site where the 275- foot tower would stand.

That standoff produced chaos and delay and prompted both sides to question the propriety and legality of the board's actions.

Representatives of both sides were visibly irritated by the proceedings Monday night, but they restrained from publicly voicing criticism to the news media in advance of the board resuming its deliberations next month.

The developer, WCI Communities Inc., has been issued all county building permits. But construction has not begun.

It is unclear whether the delay is the result of the continuing litigation against the project, or market conditions, which have recently dampened the high-end housing market. The company has declined to discuss its plans.

The development, The Plaza Residences at Columbia Town Center, will include 160 condominium and penthouse units. Starting prices will range from $606,000 to $2.1 million.

County residents Jo Ann Stolley, Stephen Meskin, Lloyd Knowles and Broida initiated the challenge to the development when they appealed to the hearing examiner, who began hearings in May, and ruled against the opponents in June.

Richard B. Talkin, an attorney representing the developer, however, filed a motion to dismiss the case, alleging that none of the appellants meets the legal standard to contest approval of the multimillion-dollar development.

The law requires that one must have been a party to the Planning Board's case last year and be "specially aggrieved," or harmed differently than the general public, by the development.

It appeared that the developer would be handed a resounding victory as the board ruled that three of the opponents lacked legal standing.

The board, however, needs only to declare that one of them has legal standing for the case to proceed. And it appeared that hurdle was going to be cleared as the board members comments showed they were leaning 3-1 in Broida's favor.

Richard Sharps, the board chairman who represented the pivotal vote, declared that Broida had standing because of his claim that the tower could adversely affect the value of his nearby condominium.

Sharps said that attorneys for WCI had failed to prove that construction of the complex would not result in a diminution of Broida's property value.

Then things began to fall apart.

The chairman appeared to become confused on whether Broida was required to prove he would be negatively affected, and what was meant by the general public.

Barry Sanders, of the county's Office of Law and counsel to the board, said Broida faced that burden only if the board concluded that testimony on behalf of the developer had proven there would no adverse economic impact.

Broida "has presumptive standing and ... [WCI's attorneys] haven't shown that he doesn't," said board member Albert J. Hayes.

But Sharps was "stuck," as he put it, and the board, acting one member short, deadlocked on a 2-2 vote on whether Broida had standing.

Sharps announced after a 32-minute session behind closed doors that given the standoff the board "has decided to adjourn and reconvene with a full complement" of board members Feb. 12.

What that means is that there will be two new board members, neither of whom participated in the proceedings because they had not even been nominated when the hearings began. The County Council is not expected to confirm those nominations until Feb. 5.

It also means that James Pfefferkorn, a solid vote against the challengers of the tower, will have been replaced on the board.

Attorneys for both sides said the board cannot simply ignore its 2-2 vote on Broida's legal standing, although for sharply different reasons, and they said the board's rules prohibit the new members from deliberating and voting on the case because they had not participated in the hearings.

"I don't think they can sit on this case," said Talkin.

E. Alexander Adams, an attorney representing the opponents, concurred, but he also said that it would be "patently unfair" to the new board members, as well as to his clients, to expect them to reach decisions simply by listening to tape recordings of the proceedings on such a complex case.

"We don't look to prolong," Sharps said. "... This is just about as torturous to us as it is to you."

There was sharp disagreement over what the board's 2-2 stalemate meant, even if the board now appears to be disregarding its vote.

Adams said the vote meant that Broida has legal standing and the case may proceed because a majority did not rule otherwise.

"I have standing unless they challenge it," he said after the meeting. "They challenged it, so they've got to get an affirmative decision. They didn't get it. Their motion should have been dismissed and they should have gone on to the merits with the new members."

S. Scott Morrison of the Washington-based firm Katten Muchin Rosenman LLP and another attorney for WCI, viewed the issue quite differently.

"We believe that the board's vote requires the case to be dismissed," he said after the meeting. "This is in accordance with the board's rules and applicable law."

Talkin cautioned the board that it was stepping into choppy legal waters by ignoring its 2-2 vote, and twice asked that Adams and he be permitted to file briefs on the issue and the "legal ramifications."

Sharps declined to grant the request.

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