Let’s just say that if my pet peeves were pet dogs I’d have to buy a kennel. One of them is what I consider to be the inadequate news coverage of Baltimore County by the mainstream media. In the case of the Baltimore Sun, my criticism has nothing to do with the quality of the Sun reporters covering the county; it has to do with the quantity. There are just too few reporters assigned to cover the county, especially the county government.
People like Ann Constantino of the Baltimore Post and Kris Henry of the Towson Flyer (and Pam Wood of the Sun) do yeoman work, but they could use some help. The following are examples of relatively recent stories that I believe would have benefited from more in-depth coverage. ____________________________________________________________________________________________
The Chabad-Lubavitch House: How Baltimore County, paraphrasing its own Board of Appeals, “left the neighbors stranded” by failing to protect the residents of Aigburth Manor in Towson from the consequences of an unlawfully-obtained building permit issued by the county.
The saga of the structure built on property owned by Friends of Lubavitch, Inc. to house what is now known as Chabad of Towson and Goucher, a facility serving the Jewish communities at Towson University and Goucher College, is a contentious one. In pertinent part, that history began on 2016 with the application for a building permit by Friends of Lubavitch to construct what was described as a residential addition to an existing single-family home in the residentially-zoned community of Aigburth Manor. The Baltimore County Department of Permits, Approvals and Inspections issued the permit, and the addition was built.
Long story short, the Baltimore County Board of Appeals, in a decision issued on September 5, 2017, held that the structure represented to the county as a proposed addition to the house intended to accommodate the expanding family of Rabbi Menachem Rivkin, who is associated with the Friends of Lubavitch, was from its inception intended to be a “community center” serving the mission of the Friends of Lubavitch, a use not permitted in the neighborhood. The Board of Appeals noted that the residential addition ended up being “a 9,000 square foot institutional-looking structure in a residential neighborhood of 3,000 square foot homes,” and the Board described in exquisite detail how the building is designed and outfitted to serve as a community center, not a residence.
The Board of Appeals found that Friends of Lubavitch “acted in bad faith in obtaining the building permit and constructing the addition,” referring to the permit as a “dishonestly procured permit.” The Board concluded that “Friends of Lubavitch is and has been using the property at 14 Aigburth Road as a community center without having obtained the necessary approvals or complying with the necessary regulations.”
It is worth reading the decision by the Board of Appeals to gain a full appreciation of the fact that the conclusion by the Board of Appeals that the issuance of the building permit had been based on the misrepresentation of facts by Friends of Lubavitch was based on an overwhelming amount of carefully-considered evidence. A link to the decision appears below. In its analysis, the Board commented:
“Sadly, Lubavitch has achieved its goals by manipulating both the administrative system as well as everyone’s natural inclination to defer to religious organizations. In the end, Lubavitch has left [the Board of Appeals] with very few options, but leaving the neighbors stranded cannot be one of them.” [Emphasis added.]
But after the Board of Appeals issued its decision, “leaving the neighbors stranded” is exactly what the Kamenetz administration decided to do. The neighbor who has been leading the fight against the community center recently told a reporter for the Sun that, after the ruling by the Board of Appeals, it was the county’s responsibility to tear down the building. The county did not concur:
“We disagree with [the neighbor’s] interpretation that the County must require the addition to be removed,” county spokeswoman Ellen Kobler wrote in an email, according to the Sun. “The Board’s issue was the use, not the size of the building.”
Ms. Kobler’s explanation ignored the finding by the Board that the building permit was obtained by a bad faith misrepresentation of the purpose of the structure. As described in detail by the Board, the permit never would have been issued if the true purpose of the “addition” had been disclosed to the Department of Permits, Approvals and Inspections. And Ms. Kobler’s interpretation of the county’s responsibility under the law for removal of the building was wrong. The following is from the Baltimore County Building Code:
PART 112.6 REVOCATION OF PERMITS. THE BUILDING OFFICIAL MAY REVOKE A PERMIT OR APPROVAL ISSUED UNDER THE PROVISIONS OF THIS CODE IN THE CASE OF ANY FALSE STATEMENT OR MISREPRESENTATION OF FACT IN THE APPLICATION OR ON THE PLANS ON WHICH THE PERMIT OR APPROVAL WAS BASED. IF ANY PERMIT IS ISSUED IN VIOLATION OF THE PROVISIONS OF THIS CODE OR OTHER LAWS, RESOLUTIONS AND REGULATIONS OF BALTIMORE COUNTY, OR LAWS OF THE STATE OF MARYLAND, OR WITHOUT PROPER AUTHORITY, IT MAY BE VOIDED AS IF IT HAD NEVER BEEN ISSUED.
The provision applies whether there has been construction done under the permit or not. Revocation of a permit obtained by a bad faith misrepresentation of fact is the first step in the legal process for having construction done under the permit demolished.
Once a year for ten years I went to Madison, Wisconsin to help teach a week-long course put on by the University of Wisconsin College of Engineering for building code officials. As a lawyer, my focus was on enforcement of building codes. A virtually immutable principle in building code enforcement is that a jurisdiction must seek the removal of construction done under a permit obtained by fraud if only because failure to do so is an invitation to people to lie on applications.
In its decision, the Board suggested that the Department of Permits, Approvals and Inspections suspected that it had been misled when it approved the building permit but believed itself “powerless” to do anything other than issue the permit. Assuming that excuse is correct, the Department of Permits, Approvals and Inspections was no longer powerless after the Board issued its decision finding that the permit had been obtained by a bad faith misrepresentation of the purpose of the structure.
Why hasn’t Arnold Jablon, the Director of the Department of Permits, Approvals and Inspections, revoked the building permit and initiated legal action to have the structure removed? Why hasn’t County Executive Kevin Kamenetz said anything at all about the situation?
In Baltimore County, the answer to such questions typically has to do with the political connections of the principals. There is an important story to be told about why Baltimore County is trying to weasel out of enforcing its own building code in the case of the Chabad-Lubavitch House, but to date no one is telling it.
The contract of sale for the Towson Station site: How Baltimore County whipsawed its own citizens.
Back in the summer of last year, the deal between Baltimore County and Caves Valley Partners for the sale of county land in Towson to Caves Valley Partners was in trouble. The development proposed by Caves Valley, initially known as Towson Gateway and later as Towson Station, was under fire, primarily because it called for the construction of a gas station and a convenience store (not permitted by the underlying zoning) on this northern “gateway” to downtown Towson. The removal of a treed buffer on the property by the county administration, in defiance of a resolution by the county council, further intensified community anger.
By July, there was a problem for Caves Valley: The contract of sale was expiring on December 31, 2018. Because of the opposition to the proposed development, approval of the Planned Unit Development (PUD), upon which the sale was contingent, had dragged on so long that Caves Valley was at risk of losing the property because the approval process could not be completed by the deadline. Once the contract of sale expired, the county was free to start over and seek a more acceptable proposal from another developer – something many in the community would have viewed favorably. What the public did not know was that the Kamenetz administration had a plan to solve Caves Valley’s problem.
On July 26, 2017, without prior notice or explanation to the public, County Administrative Officer Fred Homan signed an amendment to the contract of sale with Caves Valley that extended the closing date for the sale of the property from December 31, 2018 to December 31, 2023. The gratuitous, lengthy extension took all the pressure off Caves Valley to reach a compromise on its proposed development and transferred that pressure to the community groups negotiating with Caves Valley.
Not only were the community groups facing five more years of battling over the PUD, they now had to contend with the possibility that the developer could just sit on the vacant property and seek an up-zoning of the property during the quadrennial review of the county’s zoning maps in 2020. Two weeks after the extension was signed, County Executive Kevin Kamenetz told the developer and groups opposing the developer to work out their differences.
In summary, the extension of the contract of sale protected the interests of Caves Valley not only by avoiding the expiration of its contractual rights to buy the property, but also by putting all the pressure to compromise on the community groups. Two things stand out about the amendment extending the expiration date. First, the extension was a very long one. Second, there was no consideration to the county for the loss of use of the money from the sale, let alone for any increase in property value.
Both things make sense once you realize that the reason for the extension was to apply pressure to the community groups trying to negotiate with Caves Valley. A shorter, more reasonable extension would not have been as effective in placing the pressure on the community groups. As to the absence of consideration to the county for the extension, it is my opinion that there was no concern about protecting the county against financial harm because neither the county nor Caves Valley thought that the extension to 2023 would be necessary.
Sure enough, Caves Valley and the community groups reached a “compromise” last week. And, it included a provision requiring the closing to take place on or before June 30, 2018, over five years before the extended deadline. After closing Caves Valley will seek formal approval of the revised development plan; if the revised plan is not approved, Caves Valley could revive its PUD and seek approval of the gas station and convenience store.
The new proposal, which includes a reduced purchase price, is a very good deal for Caves Valley. I believe that it is fair to say that the county’s whipsaw of the community groups had the desired effect.
As I’ve said before, I don’t blame Caves Valley for negotiating the best possible deal for itself. It is up to the county to protect the interests of citizens, rather than to try to maneuver them into the toughest position possible.
It was Ann Constantino writing for the Baltimore Post who broke the story about the extension of the contract of sale, and it was reported by the Sun. There has been no attempt, however, to dig a little deeper into the story told above about how Baltimore County agreed to a contract extension with Caves Valley that, in my opinion, accomplished nothing more than put the county’s own citizens behind the negotiating eight ball with a private developer. Why would the county do such a thing?
The proposal to expand the duties of the Baltimore County Auditor: A smokescreen with absolutely no substantive value.
The next two stories are not earth-shattering ones, I admit. But it bugs me when things that come out of politician’s mouths are taken at face value, and shouldn’t be.
Baltimore County Executive Kevin Kamenetz has found himself under fire for not supporting an independent audit of the purchasing and contracting practices of Baltimore County Public Schools (BCPS) in the awake of the convictions of former school superintendent Dallas Dance and another former BCBS official, Robert Barrett.
Mr. Kamenetz has supported the resistance of the Baltimore County Board of Education (BOE) to demands for an independent audit not controlled by the Board. Mr. Kamenetz did not support HB 428, the purpose of which was described by the General Assembly’s Department of Legislative Services as follows:
“Requiring the Office of Legislative Audits to conduct a special comprehensive audit of the procurement practices and contracts of the Baltimore County public school system to determine whether certain acts occurred during the time period from January 1, 2012, to June 30, 2018, both inclusive; and requiring the audit to focus on certain procurement practices, certain contracts, interactions between certain persons and vendors, and compliance with certain ethics standards and requirements.”
In other words, just what the doctor ordered to put the Dance/Barrett/White controversy behind the BCPS. Unfortunately, the bill died in committee, with a vote generally along party lines. The Democrats on the House Appropriations Committee apparently agreed with Mr. Kamenetz that no independent audit was needed.
To try to regain some credibility on the issue, Mr. Kamenetz floated a proposal to expand the duties of the county auditor to give the auditor that authority to “review school board contracts,” whatever that means. There is of course considerable irony in his proposal, given the county’s reluctance to have the county auditor perform her primary duty: Auditing the county government. See “No County Circles the Wagons Like Baltimore County,” The Baltimore Sun, March 5, 2018.
In addition to the irony of Mr. Kamenetz’s proposal, there is also this: It lacks substance and is no more than political grandstanding. The county auditor already has the power under state law to perform a financial audit of BCPS and, with the concurrence of the BOE, to perform a performance audit of BCPS functions such as contracting and procurement. If you are looking for a discussion of the relevant provisions of state law, I refer you to 92 Op. Att’y Gen. 137, 141-143 (2007) and 91 Op. Att’y Gen. 145, 146 (2006).
So, it is not clear what Mr. Kamenetz believes the county auditor should be able to do in the future that she doesn’t already have the power to do now. It is worth noting that the county could not compel the BCPS to allow the county auditor to audit or review its contracts for compliance with procurement law without a change to state law, if that is what Mr. Kamenetz intends.
And, if the county auditor, Lauren Smelkinson, is looking for work reviewing contracts, I’d suggest she start by reviewing the county’s questionable agreement with the developers of Towson Row. See “Will Towson Row Funding Come Back to Haunt Baltimore County,” The Daily Record, January 18, 2018. Maybe Ms. Smelkinson should get some practice on the county’s own contracts before she takes on review of BCPS contracts.
The College Promise scholarship program: A case of getting the cart before the horse.
On the same day (March 19th) that he floated the idea of expanding the duties of the county auditor, Mr. Kamenetz announced his plan to establish Baltimore County’s version of a “College Promise” program. According to Forbes, there are about 200 existing programs in 40 states providing for some form of tuition and fee waiver for community college students.
Under the proposal by Mr. Kamenetz, the county would make up the difference between the tuition bill and what a student gets from grants and financial aid – a so-called “last dollar” scholarship program. To be eligible, students must have graduated from high school within the previous two years with a grade point average of 2.5 or better and have a household income of no more than $69,000.
The students must also be “college ready” and maintain a full-time enrollment of at least twelve credits. It appears that this will exclude students who need remedial coursework before they can begin taking college courses for credit. According to the Community College of Baltimore County (CCBC) statistics, 59% of its students needed to take remedial math classes in 2017.
The proposal requires budgetary approval by the county council. First of all, however, it requires a separate ordinance establishing the scholarship program and setting forth the eligibility requirements for participation. Those are policy matters for the county council to decide, and they must be set forth in a separate ordinance because of the prohibition against “legislating in the budget.”
It is of course decisions on the various eligibility requirements that will dictate how much funding must be included in the budget; first things first, as it were. The Kamenetz administration frequently treats the county council as an afterthought (and the council frequently acts like a useless appendage), but the important policy decisions about the scholarship program are for the county council, not the county executive, to make.
I am not saying that the College Promise is a bad idea. In fact, I think it is a good idea. But work remains to be done. No draft ordinance has yet been circulated for comments, and there will be comments.
As College Promise programs go, this is one is somewhat limited, and the restrictions on eligibility raise questions about who will benefit from this program, and who will not. Why exclude part-time students who need to work to support themselves, or students who graduated from high school more than two years ago? Questions like that merit public discussion.
The College Promise program appeared on the CCBC website the day Mr. Kamenetz made his announcement and described the program as if it was already up and running. Although the website was corrected within a day after I pointed out to the Director of Media Relations for CCBC that the program had yet to receive council approval, it made me wonder if things were being done a bit hastily – or if the county council was, as usual, being ignored or its approval being taken for granted.
To get the scholarship program up and running for the fall semester of 2018, the ordinance establishing the program should have been presented to the council for their consideration well before the end of last year. A last-minute scramble to pass a bill of this importance is a poor way to proceed.
For one thing, Mr. Kamenetz must submit the proposed county budget for FY 2019 to the county council no later than April 18th. There is no way to have the ordinance establishing Baltimore County’s College Promise program enacted by that date. I suppose that getting the cart before the horse is not the worst thing that has happened in Baltimore County recently.
March 29, 2018