October 4, 2006 Baltimore Sun Article – Zoning Appeal Part of Plan

Zoning appeal part of a plan

Legal maneuvering in Elkridge case tied to Comp Lite legality

by a sun reporter

Originally published October 4, 2006

A two-pronged challenge launched against a decision by the Zoning Board involving a relatively small parcel of land in Elkridge appears to be part of a broader chess match regarding the legality of Comp Lite, the county’s rezoning procedure last year, and what happens should the courts invalidate that process.

What makes the legal maneuverings unusual is that they are coming from the winning side, in large part as a defense in case the courts rule Comp Lite illegal.

At stake in the Elkridge case could be the development of almost 28 acres at Routes 100 and 108, which has been the subject of a prolonged and heated debate.

Rezoning of the property has been approved and rejected in alternate decisions — essentially by the same county officials — and opponents continue to employ every available legal instrument to block the planned development.

Nancy Cavey, representative of the estate of her parents, Carroll and Ruth Braun, sought the rezoning to permit a mixture of residential and commercial development.

The commercial rezoning was approved and contained in Comp Lite, broad rezoning legislation affecting dozens of properties passed last year by the County Council.

But when those changes were thrown into limbo for months while the courts considered a voter referendum on Comp Lite, Cavey sought special, or “piecemeal,” rezoning of her property. That petition was opposed by numerous nearby residents and, after several lengthy hearings, rejected in May by the Zoning Board, which is made up of members of the County Council.

To approve piecemeal rezoning, the board had to find that the character of the neighborhood had changed substantially, making existing zoning no longer viable, or that the council erred in not rezoning the land in 2004 as originally sought, or both.

On May 11, the Zoning Board voted, 3-1, to deny the piecemeal rezoning, saying that neither standard had been met. But in its formal and written decision and order, the board did not specify the reasons for the rejection. Instead, the board dismissed the matter, said it no longer had jurisdiction and that the case was moot.

That dismissal and the lack of specificity are being challenged.

“To deny … a written decision setting forth the reasons for its verbal decision … is a grave injustice, a denial of due process and a denial of the basic rights afforded by the county’s charter and code,” writes attorney Katherine L. Taylor in a motion to the board to reconsider its decision and order.

Taylor, who represents opponents of the Cavey rezoning and Comp Lite legislation, also has filed an appeal of the board’s decision in Circuit Court contesting the legality of the written decision.

Taylor’s challenges are important because if the lawsuit against Comp Lite prevailed, Cavey again would be entitled to seek piecemeal rezoning of her property.

But if the board specifies why it rejected the petition, Cavey could not seek rezoning for two years, under the existing code.

William E. Erskine, an attorney with the firm Reese & Carney LLC who helped represent Cavey, said he considers Taylor’s latest legal maneuverings “astute.”

But he said he doubts they will succeed.

“She can want it, but she’s not legally entitled to it,” he said.

Taylor said that trying to block another rezoning petition by Cavey is part of her strategy.

But, she said, “a more important motivation is that we believe that the decision made by the Zoning Board is absolutely relevant to this piece of property, no matter whether Comp Lite sticks or not.”