Legality of plan changes debated

Tower amendment raises issue of retroactive law

May 09, 2007|By A Sun reporter

A pair of proposals for a downtown Columbia project spawned a debate about retroactive laws, among other issues.

The presumption against retroactive laws, Ohio Supreme Court Justice Paul E. Pfeifer observed, "embodies a legal doctrine centuries older than our Republic."

Even children, he wrote in 2002, "understand this concept - they know, as we all instinctively did, that it isn't fair to change the rules in the middle of a game."

That doctrine, though, is being challenged in Howard County by proposals aimed at the plan for a multimillion-dollar residential and retail tower in Columbia.

The proposals have created a debate on numerous levels, ranging from claims that they are so egregious they would render the county's rules and regulations unpredictable to damaging its business climate to diminishing economic growth to crippling efforts to provide housing to low- and moderate-income families.

One question, though, supersedes all: Would the revisions, if enacted and imposed retroactively, be legal?

There is, just as with the tower the proposals target, considerable debate on that point.

The amendments to the zoning regulations, introduced by County Councilwoman Mary Kay Sigaty, would restrict the height of the tower to 150 feet or even lower if a more rigid cap is enacted as part of a plan to develop downtown Columbia, as well as render any formal decision and order by the Planning Board as "pending" and not final if approval of a project were challenged through the county's regulatory process or the courts.

The Planning Board conducted hearings on the measures last month and is scheduled to resume later this month.

The board's verdicts on the proposals will only be advisory to the council, which will decide if they are enacted.

Approval of the amendments could provoke a "protracted legal dispute," warned Todd D. Brown, an attorney with Linowes and Blocher LLP, a firm retained by General Growth Properties Inc., the principal land owner of Columbia.

". . . We consider the likelihood of a court striking down the proposed amendments, if enacted, to be significant," Brown wrote to County Solicitor Margaret Ann Nolan.

The 10-page legal analysis also was submitted to the Planning Board.

The amendments are "intended to reach back in time and change the criteria for development," Brown states.

There is no debate. Sigaty has acknowledged that her proposals were motivated by the Planning Board's approval of The Plaza Residences at Columbia Town Center, a 275-foot-tall tower that would provide 160 luxury condominiums and ground-level retail shops.

The county has issued building permits to the developer, Florida-based WCI Communities Inc., although construction has not begun.

The project has generated opposition largely because of its height and allegations that the county violated zoning regulations by permitting residential units on the property.

County Executive Ken Ulman and Douglas M. Godine, vice president and general manager of Mid-Atlantic operations for GGP, have been spearheading efforts to settle the dispute by proposing that the high-rise be built elsewhere and its height reduced, from a planned 23 stories to perhaps around 18.

One of Sigaty's proposed amendments, if enacted, would probably prevent a settlement because WCI has consistently said the $70 million project would not be economically feasible at 150 feet.

Even while talks of compromise continue, county officials and the public are focused on Sigaty's proposals.

Sigaty testified before the Planning Board that her amendment change has been "fully vetted by the Office of Law and there's a very strong belief that it is sustainable in court."

Members of the Office of Law declined to be interviewed, but Kevin J. Enright, the county's director of public information, said only Paul T. Johnson, deputy county solicitor, has reviewed Sigaty's proposals.

The Office of Law, Enright said, will not issue a formal opinion on the legality of Sigaty's proposals until they are presented to the council.

That does not mean that the office will not concur with Johnson, but it has not yet done so, Enright said.

Katherine L. Taylor, an attorney who has represented numerous clients opposed to plans by developers, said it is not clear that the zoning amendments are legal.

"I do know that in many cases a law can be retroactive," she said. "But in Maryland a law cannot be retroactive to the extent that it would affect someone's vested rights. The question, then, is what does `vested' mean?

"It seems that what Sigaty's proposals are doing is trying to define what vested means."

Vested rights "refers to the government's permission to develop property that cannot be taken back by a subsequent governmental act" without injustice, Brian W. Ohm, a professor in the Department of Regional and Urban Planning at the University of Wisconsin, wrote in a Guide to Community Planning in Wisconsin.

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