To date the controversy in Baltimore County over the land development project known as Towson Station proposed by Caves Valley Partners for 5.8 acres of county-owned property at the corner of York Road and Bosley Avenue in Towson has focused on whether putting a gas station and convenience store on the site is an appropriate use of the property. A deeper controversy lies in the way that Baltimore County handled the disposition of this property from the beginning, because that is the reason that the county is in such a nasty, messy situation.
Baltimore County never should have structured the disposition of the property in a way that gave the county a financial stake in the outcome of a regulatory process that is supposed to be conducted in an independent, objective manner. The county created a fundamental conflict of interest between its proprietary interests and its regulatory responsibilities that appears to place citizens who object to the proposed development at a serious disadvantage. Those citizens realize that, and they are not happy.
The relevant history.
The county solicited proposals from developers interested in purchasing the property, the site of a former fire station and public works facility. The proposals included the price offered to the county for the property and the nature of the proposed development of the property. Clearly, those two elements of a proposal were related to one another, because the nature of a development determines the revenue to be earned from it. Generally, higher the revenue-producing capacity of a property, the higher the price.
The county announced in 2013 that Caves Valley had submitted the successful proposal, offering $8.3 million for the property. The development proposal accompanying the offer included 10,000 square feet of retail and a 4,200-square-foot space that could be a restaurant or bank, and a Royal Farms gas station and convenience store, even though a gas station is not permitted by the zoning classification of the property.
The contract of sale between the county and Caves Valley, which was approved by the County Council that same year, is contingent on the county formally approving the development proposed by Caves Valley for the property through the process set forth in the county code. In other words, the county’s ability to realize the purchase price of $8.3 million was contingent on the county approving the construction of a gas station not permitted by the property’s zoning.
To compound the problem, the county excluded the public from the process that resulted in the award of the contract to Caves Valley, even though the process included proposals for the type of development on the property. Baltimore County, being Baltimore County, conducted the process that resulted in the solicitation and acceptance of proposals for the sale of several county-owned properties in 2013, including the proposed site of Towson Station, in secret. Mr. Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”
County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It was a questionable claim, at least as applied to the Towson property. It seems like the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived in the affected communities.
In summary, the county administration, without inviting community participation or seeking community buy-in, attempted to maximize its profit from the sale of the Towson property by accepting a bid for the property tied to a development proposal calling for a more intense use of the property than is permitted by the zoning of the property; specifically, a gas station. Consequently, residents and business owners in Towson who oppose the gas station understandably believe that they were sold out by the county in favor of the highest bidder.
Questions about the planned unit development (PUD) process.
The fly in the ointment with the Caves Valley proposal was the fact that a gas station is not a permitted use on the property under the zoning classification applicable to the property. In zoning parlance, a gas station is a more “intense” use of this property than allowed by its zoning. How to overcome that impediment?
Requiring Caves Valley to seek and obtain an administrative rezoning of the property to a classification permitting gas stations was not a practical solution to the problem, if only because there are strict standards applicable to administrative rezoning and this property would not meet them. There was only one practical way to solve the problem: A planned unit development (PUD). Property developed under a PUD may include a more intense use on the property than otherwise would be permitted by the applicable zoning classification of the property.
There are many legitimate PUDs that allow more intense uses than otherwise would be permitted under the zoning classifications of the properties on which the PUDs are located. In those PUDs developers are allowed more intense uses than permitted by the underlying zoning because the development provides some benefit to the community that the community would not receive if the property was developed under standard zoning rules.
For example, a developer may get to include a more intense use on a site in exchange for less dense development than otherwise would be permitted on the site, allowing the developer to create a significant buffer of undeveloped property around the more intense use. Both planners and the neighboring community might consider that a net benefit to the community, preferring a use like an office building buffered by distance and trees nearby, rather than a permitted use like another row of townhouses right across the street. There are many variations on the theme. A PUD is almost always expected to have higher design standards than “conventional” development.
The Baltimore County Code, in keeping with the county’s tradition of “zoning by courtesy,” requires a developer to send the application for approval of a site for a PUD to the County Council member in whose district the site is located. A community meeting must be held to explain the PUD to members of the affected communities so that they can provide their feedback to the County Council.
Before the PUD can move forward for further administrative review the County Council must pass a resolution finding that the proposed PUD “will achieve a development of substantially higher quality than a conventional development would achieve” and satisfies certain other criteria. The County Council approved the Towson Station PUD last December by Resolution No. 113-16 introduced by Councilman David Marks, in whose district the property is located.
The process of administrative review concludes with a final recommendation from the Department of Planning to an administrative law judge (ALJ) from the county’s Office of Administrative Hearings. The role of the Department of Planning, which also provides a preliminary review of the PUD to the County Council, is a highly influential one because it is the agency where the county’s planning and zoning expertise resides. The ALJ approves or disapproves the PUD based on whether it satisfies the requirements of county law and the decision of the ALJ is appealable to the county’s Board of Appeals.
An intriguing question, given the history of this project and the detailed, sequential process for approving a PUD, is whether the county administration got out in front of that regulatory process by committing itself to supporting a PUD before an application to approve the PUD had even been filed with the County Council by Caves Valley. If so, it is grist for the litigation mill because the integrity of the process was compromised. It is a matter that warrants investigation.
One of the many interesting “quirks” of Baltimore County law is found at §32-4-245(c)(5) of the County Code. A standard requirement for PUDs throughout the state is that they comply with the applicable master or sector plan used to guide development where the PUD is located. Baltimore County law adds a loophole – the PUD must comply with the recommendations of the master or sector plan or the recommendation of the Department of Planning. It is a loophole big enough to drive the proverbial truck through, and suggests that a PUD need not be consistent with the applicable plans if the Department of Planning says it doesn’t.
As I described above, the flexibility of a PUD is a useful tool that can result in a higher quality of land development in an area. A PUD also can serve as little more than a backdoor means for up-zoning a parcel, and that is particularly true when the benefits and amenities offered by the developer are not intrinsic to the site of the development.
Without going into the history of PUDs, suffice it to say that when first used, developers were expected to develop the site in a manner that incorporated the additional benefits and amenities into the site plan, such as the example given above. Another example would be for the approving authority to allow a denser development on one part of the property than permitted by the underlying zoning in exchange for some amenity on another part of the property, such as a recreational facility or open space.
As time went on, it became more common for the amenities and benefits offered by the developer as part of a PUD to be things that bore little if any direct relationship to the site of the development. Yet again, Baltimore County law is quite liberal, and allows the benefits on which a PUD is based to be capital improvements to a “nearby” county-owned or state-owned facility. You tell me what “nearby” means. At worst in such situations, developers are essentially purchasing an up-zoning by throwing in some off-site improvements and benefits, and the PUD process becomes antithetical to the plan of development for an area and does not result in higher-quality development on the site.
I am not saying that is the case with the Towson Station PUD approved by the County Council by Resolution 113-16. As critical as I may be of the process employed by the county in this case, I am not familiar enough with the site plan, the master and sector plans, or the nearby community itself to pass judgment on the merits of the development contemplated by the PUD. That is something for county planners and community members who are have pored over the master, sector and site plans, and who are familiar with the community in which the property is located, to debate.
I am saying, however, that there are red flags. The $50,000 worth of community benefits on which the Towson Station PUD is based include improving the West Towson Trail, planting trees in West Towson and installing solar-powered speed display signs on Stevenson Road, west of York Road, and on Stevenson Lane, east of York Road. Those amenities are not on or directly related to the subject property. Again, given the way in which the county has proceeded, it is easy to understand the concerns of the opponents of the PUD.
Can the residents and business owners of Towson be confident that the Towson Station PUD will be approved or disapproved on its merits? Or will they be suspicious that the county’s pecuniary interests will influence the decision-making process? I do not mean to impugn the integrity of the county’s professional planners and hearing officers, but the fact that questions like these are being raised is precisely the reason that the county should have avoided tying the sale price of the property to its approval of a PUD, and doing so while excluding the public from the process.
If you had any doubt that there is a relationship between the financial return to the county and the approval of the PUD, it should have been removed by the statement from County Executive Kevin Kamenetz on Friday. Finally yielding to public pressure, he announced that he had given Caves Valley 30 days to meet with community representatives and come up with a new plan for the project, preferably one that did not include a gas station. The announcement included an acknowledgement by Mr. Kamenetz that Caves Valley likely would seek to lower the sale price of $8.3 million if the gas station is dropped from the plan.
Why did the county choose to take such a brazen, ill-fated course of action? In my opinion, the county administration believed, based on past experience, that it would be able to railroad the deal through the County Council with what the Baltimore Sun editorial board referred to sarcastically as the council’s customary “efficiency” – very little discussion and perfunctory opposition, if any. The Kamenetz administration still might succeed, but the last-minute decision by Councilman David Marks to throw himself on the tracks by attempting to withdraw approval of the PUD has sent the project back to the drawing boards for now.
In my opinion, there is a pattern in the way that Baltimore County government operates, and it includes self-dealing among county officials, little concern with obvious conflicts of interest, an obsessive concern with secrecy, and an aversion to public participation in decision-making processes. I certainly saw evidence of those things in my inquiries into the now-notorious Executive Benefit Policy and the issue of severance pay for highly-compensated county employees. Unless ordinary citizens are willing to get more involved, as they now are doing with the Towson Station project, they should not expect their interests to be taken seriously by the powers-that-be in the Baltimore County government.
I want to emphasize that my criticism is not directed at Caves Valley Partners; as far as I can tell, they did what the county asked them to do. In my career, I saw developers and ordinary citizens harmed by poor governmental decisions in about equal measure.
I also feel compelled to address comments made on Friday by Council Chairman Tom Quirk, who was asked by Mr. Kamenetz to act as a “mediator” between Caves Valley and representatives of the Towson community. Mr. Quirk, channeling feelings previously expressly by Mr. Kamenetz’s chief of staff, blasted Mr. Marks for introducing a resolution to rescind approval of the Towson Station PUD. Mr. Quirk stated that “I’m coming in from the outside trying to clean up David Marks’ incompetent mess.”
Mr. Chairman, this mess is on you as much as it is on anyone else. Even if he did so only because he got political cold feet, Mr. Marks eventually stepped up to try to stop a process that was flawed from the outset from doing harm to the community that he represents. Better late than never, and Mr. Quirk remains in the never category.
From the time that the council approved the contract of sale in 2013 to its approval of the PUD last year, all members of the County Council knew or should have known that the process was improperly skewed against the opponents of the project. Mr. Quirk and his three Democratic colleagues on the council voted to table Resolution No. 68-17, which had been introduced by Mr. Marks to rescind approval of the PUD.
Mr. Marks and his two Republican colleagues voted against tabling the measure. This should not be a partisan political issue but the hard fact is that, at least for now, the “good government” elected officials in Towson do not sit on the Democratic side of the aisle.
I am sure that Mr. Kamenetz hopes that he can salvage something from his deal with Caves Valley, even if it means accepting less money for the property. The last thing that he wants is a failed deal on his hands with people looking too closely at the causes of the failure.
August 12, 2017