There are two controversies brewing in Towson. One is at the headquarters of the Baltimore County Public Schools. The bigger one is up the road at the Old Courthouse.
Below is a copy of the complaint that I filed yesterday with the Maryland Department of Natural Resources alleging that Baltimore County violated State and County forest conservation laws when, on April 1, 2017, it precipitously cut down 30 trees on County property to prepare the site for a private development on the site known as Towson Station planned by Caves Valley Partners, the contract purchaser of the property.
The trees included six “specimen” trees that enjoy special protection under forest conservation law. Technical non-compliance with forest conservation law is, however, the least serious of the issues arising from this evolving scandal.
To summarize the controversy, County Administrative Officer Fred Homan ordered 30 trees cut down from the property while it remained order County ownership to thwart a condition placed by the County Council on the future development of the property by Caves Valley. The County Council had given preliminary approval to the development plan submitted by Caves Valley, but conditioned its approval on retention of the mature trees that rimmed the property and screened it from the street. It was a condition to which Caves Valley objected.
When Mr. Homan appeared before the County Council two days after the trees were cut down, he told the Council that the County administration technically was not bound by conditions placed by the Council on development by a prospective owner and developer of the property, because those conditions applied only after the property was sold to the developer. Mr. Homans also stated that he cut down the trees to accelerate the sale of the property because the County needed the money from the sale.
The County had no responsibility for site development under the contract of sale, which called for sale of the property “as is.” Moreover, Mr. Homans used money to remove the trees that was appropriated for maintenance of County parks and other properties, not for preparing sites for development.
About three and ½ months after the trees were cut down, Mr. Homan signed a five-year extension of the closing date of the contract of sale from December 31, 2018 to December 31, 2023. The extension was secreted from both the County Council and the public until it was discovered in a file by Baltimore Post reporter Ann Constantino through a Public Information Act request.
In April, Mr. Homan was in such a hurry to sell the property that he ordered the trees cut down in defiance of the wishes of the County Council by using money appropriated for another purpose, but in July he signed a five-year extension of the closing date? I can’t wait for Mr. Homan to try to explain the benefit to the County of agreeing to such a lengthy extension, especially considering that the extension provides no compensation to the County for the loss of the use of the revenue from the sale because of the delay.
All of the above occurred in the context of a history of large campaign contributions from Caves Valley Partners and affiliated persons and entities to Mr. Kamenetz described in a previous story by Ms. Constantino. It is little wonder that citizens are beginning to detect an unpleasant odor emerging from the Old Courthouse in Towson.
An interesting question is why this evolving scandal is not getting the same coverage from the local mainstream media as given to the alleged ethical lapses of the current interim superintendent and the former superintendent of the Baltimore County Public Schools. At least at this point, it seems to me that the much more serious concerns are not at school headquarters, but rather up the road at the Old Courthouse.
I have my thoughts on why the disparity in coverage, which I will share in future commentary. In the meantime, the formal complaint on the alleged violation of forest conservation laws:
November 14, 2017
Hon. Mark J. Belton, Secretary
Maryland Department of Natural Resources
Tawes State Office Building
580 Taylor Avenue
Annapolis, Maryland 21401-2397
RE: Complaint of violation of Maryland Forest Conservation Act by Baltimore County, Maryland
Dear Secretary Belton:
I am filing this complaint based on evidence that Baltimore County, Maryland violated State and Baltimore County forest conservation laws and regulations when it removed approximately 30 trees, including six specimen trees, on County-owned property consisting of approximately 5.8 acres located at 800 York Road in Towson, Maryland.
I request that the Department exercise its authority under §§ 5-1608 and 5-1612 of the Natural Resources Article of the State Code to investigate the complaint and, if appropriate, impose sanctions on the County. I also request, based on the evidence, that the Department perform a review under § 5-1603(e) to determine if Baltimore County’s administration of its local forest conservation program is deficient and requires remedial action initiated by the Department.
Summary of allegations.
On or about April 1, 2017, a County contractor, Excel Tree Expert Co., Inc., acting at the direction of the County, removed approximately 30 trees and stumps from County-owned property at 800 York Road in Towson, Maryland. The trees removed included six specimen trees. The purpose of the tree removal was to prepare the site for a development now known as Towson Station by an entity identified as CVP-TF, LLC (herein referred to as “Caves Valley Partners”).
At the time the trees were removed, Caves Valley was the contract purchaser of the property, and pursuing approval of a Forest Conservation Plan, which had not occurred. The County remained the owner. The County removed the trees without complying with its own or State forest conservation laws and regulations.
In 2013, the County and Caves Valley had entered into a contract of sale for the property, with the closing of the sale contingent upon approval by the County of a Planned Unit Development (PUD) that would allow a gas station to be built on the site; gas stations are not permitted uses under the zoning classification of the site.
In March 2016, Caves Valley, acting as contract purchaser, applied for approval of PUD No. 2016-00002.
On or about May 6, 2016, a consultant, Eco-Science Professionals, Inc., applied on behalf of Caves Valley for approval of a Forest Conservation Special Variance allowing removal of the six specimen trees that ultimately were removed by the County. The consultant claimed that retention of the six specimen trees was incompatible with the proposed design of the project. The application was withdrawn, apparently because of pressure from community groups that wanted the trees retained.
In December 2016, the PUD was given preliminary approval by the Baltimore County Council by the adoption of Council Resolution No. 113-16, as required by County law. As a condition of the Council’s approval, Resolution No. 113-16 required that the design of the PUD ensure “that existing mature trees that surround the site are protected.”
The requirement placed on development by Resolution No. 113-16 was legally separate from any condition that may ultimately have been placed on approval of the Forest Conservation Plan for the PUD by the County, although the Forest Conservation Plan certainly would have had to accommodate the requirement. The trees that were removed by the County on April 1, 2017 included the “existing mature trees that surround the site” that were subject to protection under Resolution No. 113-16.
On March 22, 2017, the County Department of Environmental Protection and Sustainability (DEPS), charged with the duty of administering the County’s forest conservation program, disapproved the Simplified Forest Stand Delineation submitted by the consultant for Caves Valley. Although agreeing with the consultant that there was “no existing forest onsite,” DEPS disagreed with the consultant’s assessment of the condition of two of the specimen trees that ultimately were removed, and directed that the Simplified FSD be revised accordingly.
On April 1, 2017, a Saturday, without notice to the Baltimore County Council or the public, the County contractor removed the trees from the site. No permits, plans, or other forms of approval of the work have been located.
1. The Contract of Sale between the County and Caves Valley calls for delivery of the property on the Closing Date in an “as is” condition. There was no duty imposed by the contract on the County to remove the trees. Although the closing of the sale is contingent on the approval by the County of a PUD approving the gas station, nothing in the contract can or does relieve the County from the duty to objectively review and approve the PUD in accordance with State and County law; that is not to say that the conflict between the County’s financial interests and its regulatory duties is not problematic.
2. Subject to enumerated exceptions, an agency of Baltimore County is required by Title 6 (Forest Conservation) of Article 33 of the County Code to submit a “project plan” for “a construction, tree cutting, clearing, grubbing, grading, or erosion and sediment control activity on an area of 40,000 square feet or greater that is not subject to the review and approval process specified in a construction, tree cutting, clearing, grubbing, grading, or erosion and sediment control activity on an area of 40,000 square feet or greater for a project that is not subject to the review and approval process specified in Article 32, Title 4, Subtitle 2 of the Code.” The review and approval process specified in Article 32, Title 4, Subtitle 2 of the Code applies to “development plans” for subdivisions, PUDs, and other development activities, such as the plans submitted by Caves Valley for its PUD.
3. None of the exceptions enumerated in Title 6 of the County Code appear to apply to the tree cutting activity that took place on April 1, 2017. Section 33-6-103(b)(22) of the County Code exempts County capital improvement projects that do “not result in the cumulative cutting, clearing, or grading of more than 40,000 square feet of forest.” There was no capital improvement project for this property, and the funds used to cut down the trees were appropriated from the County’s general fund to an item in the County’s budget intended to pay for routine maintenance of County parks and other property.
4. Even if the tree cutting was within the scope of some exception as a “County” project, any attempt by the County to assert that exception would be a pretense that must be rejected: The trees were not cut in furtherance of any County project, but to relieve the prospective developer from having to preserve the trees under an approved Forest Conservation Plan. The site development/tree removal was not part of a County project; it was part of Caves Valley’s project.
5. Section 33-6-105 of the County Code requires that a project plan submitted by a County agency be accompanied by a Forest Stand Delineation and a Forest Conservation Plan. The agency responsible for tree cutting activity, the Property Management Division of the County’s Office of Budget and Finance, submitted no project plan, Forest Stand Delineation, or Forest Conservation Plan for the tree cutting activity.
6. According to the Baltimore Post, County Attorney Michael Fields told reporter Ann Constantino that it was County Administrative Fred Homan who ordered the trees cut down. [http://thebaltimorepost.com/homan-spends-county-cash-developer-caves-valley] At a meeting of the County Council on April 3, 2017, Mr. Homan was asked why the trees were cut down in defiance of the conditions placed on the PUD by the Council resolution. His response:
“That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.”
Mr. Homan was making the point that it was Caves Valley that would be bound by the conditions of the PUD once Caves Valley owned the property, and that conditions placed on the Towson Station PUD did not bind the County while it owned the property. Mr. Homan went on to explain:
“And quite frankly, the County is currently moving to accelerate the settlement on the property so the County can receive the 8 million dollars that it’s currently had to forward finance through the sale of debt. That keeps the revenue as a receivable, which does not help. The County needs the cash from the sale of the property. So the County is trying to accelerate the close of the property. That’s what going on at this point in time.”
7. Mr. Homan’s statement that the trees were cut down to “accelerate” the sale of the property because the County needed the “cash” was cast into doubt 3 ½ months later. On July 26, 2017, without notice to the County Council or the public, he approved a five-year extension of the Closing Date for the sale from December 31, 2018 to December 31, 2018. So, in April he was accelerating the sale, but in July he was decelerating it?
8. The tree cutting on April 1, 2017 was performed by Excel Tree Expert Co., Inc. Excel was retained on a contract administered by the Property Management Division of the County’s Office of Budget and Finance as part of its Grounds Maintenance Program for County parks and other properties. Under the contract, the obligation to secure any necessary forest conservation program approvals remains with the County. As the contract administrator for the County, the Property Management Division was responsible for submitting a project plan for the tree cutting activity.
Baltimore County chose to enter into a contract of sale for surplus County property with terms and conditions placing the County’s pecuniary and regulatory interests in conflict. Because the sale is contingent on its approval of a PUD, the County gave itself a financial incentive to approve the PUD, which is supposed to be reviewed and approved in an objective, arm’s length manner that protects the rights of persons opposed to the PUD.
The only rational inference from the facts is that the County ordered the 30 trees, including six specimen trees, removed from the site to facilitate the design of the development proposed by the contract purchaser, Caves Valley. Eleven months before the trees were removed, Caves Valley applied for a Forest Conservation Special Variance to remove the six specimen trees as part of its PUD. Caves Valley withdrew the application, apparently because of public objection. What was not accomplished through the front door by Caves Valley, however, was accomplished through the back door when the County cut down the trees.
Having joined its interests with Caves Valley by the way it structured the contract of sale, the County in effect acted as an arm of the developer by removing the trees. Assuming the Forest Conservation Plan for the PUD is finally approved, it will have been shaped by the joint action of the County and Caves Valley, with the County removing trees on behalf of the developer that the developer did not wish to retain under a Forest Conservation Plan. That violates both the letter and the spirit of State and County forest conservation laws and regulations.
The removal of the trees served no other purpose for the County other than facilitating the development plan proposed by Caves Valley. Even if the tree cutting activity on April 1, 2017 is viewed as a standalone County project – which it clearly was not – the County violated its own law by failing to submit its own Forest Conservation Plan before removing the trees.
I believe that the removal of the trees on April 1, 2017 was a violation of State and County law that merits imposition of a penalty. In my opinion, the cynical way in which the violation took place also calls into question Baltimore County’s stewardship of its local forest conservation program.
Some of the documents referenced above are attached; others were inspected but not copied. The originals of course are available from Baltimore County.
David A. Plymyer