Battle over tower might hinge on panel's tie vote

Court may return the issue to board

March 28, 2007|by a sun reporter

The next round in the fight to block construction of the multimillion-dollar high-rise in downtown Columbia may hinge on the interpretation of a tie vote by a county regulatory panel.

While the issue might appear to be nothing more than a legal nuance, the outcome could decide whether the Board of Appeals is thrust back into the issue and thus forced to weigh the substantive questions at the heart of more than a yearlong battle to thwart The Plaza Residences of Columbia Town Center, a 23-story residential and retail complex that would be the tallest building in Howard County.

E. Alexander Adams, the attorney for the opponents, in two motions filed last week in Circuit Court, seeks to:

Deny a request by representatives of the developer, Florida-based WCI Communities Inc., for a summary judgment against the case brought by the opponents.

Dismiss the case because WCI has not exhausted the county's regulatory process.

The filings by Adams, which were expected, extend the legal wrangling that has engulfed the proposed $70 million tower since the Planning Board approved the project Jan. 18, 2006.

The county has issued all the necessary building permits, but construction of the 275-foot- tall tower has not begun. Officials of WCI have been reticent about their plans, noting the many legal challenges the project has encountered.

The Plaza Residences, as now planned, has become a pivotal element in the broader debate over the development of downtown Columbia. County Executive Ken Ulman is seeking a compromise settlement on the project, and Councilwoman Mary Kay Sigaty has introduced legislation to restrict the height of buildings downtown, although there is debate whether the county legally could retroactively impose a cap on the tower.

It is unknown whether there are any terms that might fashion a compromise, but in the absence of one, it seems almost certain that the fate of the luxury development will be decided by the courts.

The latest motions in Circuit Court are not intended to provoke a final answer on whether the tower can be built, unless either side abdicates, which seems improbable. But they should decide whether the issue returns to the Board of Appeals or remains with the court.

The uncertainty surrounding the case was caused by the Board of Appeals, which ruled Jan. 22 that three of the tower's opponents lacked legal standing to challenge the project. But working one member short, the panel then deadlocked, on a 2-2 vote, whether a fourth, Joel Broida, had legal standing.

To have legal standing, one must have participated in the Planning Board's case last year and also show that he or she is "specially aggrieved," meaning that the individual would be adversely affected by the tower more than the general public would.

Board Chairman Richard C. Sharps then announced the panel would deliberate and vote again at another meeting, and at a time when two new members would join the panel.

Both sides complained that the board was prohibited from conducting what one attorney for WCI described as a "revote."

The two sides interpreted the 2-2 vote differently. Adams declared the vote meant that Broida had, in effect, been granted legal standing and thus a broader challenge to the case could proceed.

Richard B. Talkin, one of two attorneys representing WCI, said the tie vote meant Broida had not been given legal standing and that the case was dead.

Attorneys for the developer filed a lawsuit in Circuit Court before the board could reconvene, seeking a declaratory judgment against the board and dismissal of the challenge to the tower, claiming the matter had been resolved.

In the face of the lawsuit, the Board of Appeals postponed further consideration of the tower until the court delivers a ruling.

In the motion to dismiss, Adams contends that the court lacks jurisdiction because WCI "has failed to exhaust its administrative remedies" through the prescribed county regulatory process.

"Maryland law and the exhaustion doctrine require that a court not grant review of an agency action unless the party (WCI) seeking judicial review has gone through, exhausted, the available agency process and procedures," the motion says.

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