Tower appeal heads to vote

Board is to decide on a resident's legal standing to bring challenge

February 11, 2007|BY A SUN REPORTER

The Board of Appeals is scheduled tomorrow to decide a pivotal question in the challenge against the proposed 23-story luxury residential and retail complex in downtown Columbia, but an even more important question has been raised: Will any vote it takes be legal?

In a move widely anticipated, attorneys for the developer, WCI Communities Inc., have asked the Circuit Court for a declaratory judgment against the board and to dismiss the challenge to the tower, claiming that the matter had been decided and that the appeals board's expected vote tomorrow would be in violation of county law.

In addition, the board would breach the county's rules simply by meeting, said S. Scott Morrison, one of the attorneys representing WCI.

"There's a provision in Howard County's rules that if you file a lawsuit, the board is prohibited from proceeding with the hearing," said Morrison, a partner with the Washington firm of Katten Muchen Rosenman LLP. "If they follow their rules, they should not hold the hearing at all."

The appeals board, nevertheless, is scheduled to meet at the government complex in Ellicott City.

The lawsuit was filed against the board and the county. The Office of Law declined to comment.

The appeals board is considering a challenge to the Planning Board's approval last year of the site development plan for The Plaza Residences at Columbia Town Center, a 275-foot-tall tower overlooking Lake Kittamaqundi. Plans for the project include ground-level retail shops and 160 condominiums on 22 stories. Prices would begin in the $600,000s and top $2 million for penthouses. Building permits have been issued for the project.

The appeal was filed by attorney E. Alexander Adams on behalf of four county residents: Stephen Meskin, Lloyd Knowles, Jo Ann Stolley and Joel Broida.

WCI's attorneys asked the board to dismiss the case, alleging that none of the four residents have legal standing to bring the challenge.

To have legal standing, the appellants must have participated in the Planning Board's case and also show that they are "specially aggrieved," meaning that they would be adversely affected more than the general public would.

What had been a routine hearing Jan. 22 took on aspects of a soap opera

After disqualifying three appellants, the board, working one-member short, deadlocked 2-2 on whether Broida has legal standing.

Richard C. Sharps, the appeals board chairman, essentially ignored the vote and announced that the panel would reconvene Feb. 12.

That prompted protests from both sides. Adams declared that the 2-2 vote meant that Broida had standing and thus the case could continue. Morrison and attorney Richard B. Talkin, who also is representing WCI, argued that the vote meant the board had denied legal standing to all four and thus the case had to be dismissed.

Complicating the case is that a second member of the board has left and two new members will join the board tomorrow.

In the lawsuit, Morrison and Talkin contend that "it would be inappropriate" and a violation of county code for the new members to "render a decision on the case" because they did not participate in the hearings.

The lawsuit also challenges the right of the board to "re-deliberate and re-vote."

"Because a majority of the board did not vote that Broida had standing to pursue the appeal, his appeal must be dismissed as well," the lawsuit says.

It cites county code: "Failure to achieve the necessary affirmative votes shall result in the dismissal of the case."

The fight over legal standing is more than a procedural issue. Adams needs the board to find that at least one of his clients has the right to challenge the tower before a broader review of the development can be achieved.

At the heart of Adams' appeal is his contention that 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, he says, must make such decisions.

Adams also claims that the number of residential units approved for development vastly exceeded that permitted in downtown Columbia.

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

In an appeal last year, the county's hearing examiner dismissed the case, ruling that none of Adams' clients met the standard of legal standing.

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