Tower decision delayed again

Board of Appeals to await court ruling on Columbia project

February 14, 2007|By [by a sun reporter]

Delay. That best sums up the time since a luxury, 23-story residential and retail complex in downtown Columbia was approved.

The succeeding 13 months have been filled with appeals, hearings, testimony, exhibits and more appeals.

Now, just as it was preparing to decide whether a challenge to the tower could proceed, the Board of Appeals chose to -- postpone.

Confronted with a two-pronged attack that, if successful, could render further board action on the tower useless and perhaps illegal, the panel concluded Monday night that delaying until a court ruling was the most prudent strategy.

It was a reluctant decision. Even board member James D. Walsh, who proposed the approach, was not enthusiastic. "I don't like it," he said, as he cast his vote.

Board Chairman Richard C. Sharps was defiant, casting the lone dissent as he warned that the board was "setting a precedent for the court to decide for this board."

The court is being asked to decide whether the board may continue the hearings or whether its 2-2 vote last month was final and, if so, what that vote means.

The board's decision Monday was praised by representatives of the developer, WCI Communities Inc., and decried by attorney E. Alexander Adams, whose clients are contesting the approval of the tower.

Adams blamed the board less for the new delay and accused the developer's attorneys of needlessly impeding the hearings.

"Who's delaying the process now?" he asked rhetorically after the hearing. "The attorneys on the other side are, although they will tell you otherwise. They are scared of getting to the merits of the case."

S. Scott Morrison, one of WCI's attorneys, said, "The board had no choice but to stay the matter" until the Circuit Court weighs in on the dispute.

The 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. Adams filed the appeal on behalf of four county residents: Stephen Meskin, Lloyd Knowles, Jo Ann Stolley and Joel Broida.

But WCI's attorneys asked the board to dismiss the case, alleging that none of the four residents has legal standing to bring the challenge. To have standing, one must have participated in the Planning Board's case and also show that he or she is "specially aggrieved," meaning that he or she would be adversely affected more than the general public would.

The board, working one member short, disqualified three of the appellants Jan. 22 but deadlocked 2-2 on Broida.

Sharps announced the board would deliberate and vote again Monday, but with two new members.

Both sides complained that the board was prohibited from conducting a "revote."

Richard B. Talkin, an attorney representing WCI, and Morrison filed a lawsuit last week seeking a declaratory judgment against the board and to dismiss the challenge to the tower, claiming that the matter had been decided.

On Monday, they filed for a judicial review. Talkin said the filings would be consolidated.

The Board of Appeals, after conferring with its counsel behind closed doors Monday, finally decided to halt its deliberations until the court rules.

Adams says the deadlock granted Broida legal standing and "now the case goes to the merits."

Morrison, with the Washington firm of Katten Muchen Rosenman LLP, said the board's action was a victory for WCI and thus the case must be dismissed.

The court has been asked to consider the filings on an expedited basis, but Adams said it would probably be at least three to four months before the court rules.

The fight over legal standing is paramount to Adams, who 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.

Adams' appeal claims 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.

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

The developer, he said, "never wants a hearing on the merits, because they have to defend their actions."

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.

Morrison said he believes the court will side with WCI and, in effect, instruct the Board of Appeals that "the proceedings are over."

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