Guest commentary by David A. Plymyer
In a decision that is as stunning as it is disappointing, the Maryland Department of Natural Resources (DNR) concluded that Baltimore County did not violate state or county forest conservation laws when the County removed approximately 30 mature trees, including six “specimen” trees, from county-owned property at 800 York Road in Towson on April 1, 2017. The removal of the trees by the Kamenetz administration defied the intent of the Baltimore County Council expressed in Resolution No. 113-16 that the trees be preserved. The removal of the trees became known as “Treegate.”
In a letter to me dated June 19th, DNR Secretary Mark Belton explained that his agency accepted the explanation by the County that removal of the trees was justified as part of a “capital improvement project” of the County. That is unmitigated nonsense.
The trees were cleared for the express purpose of preparing the site for development by CVP by circumventing both Resolution No. 113-16 and the requirement under forest conservation law that any development of land adhere to strict rules before wooded areas are disturbed and specimen trees are cut down. Specimen trees are trees with diameters of at least 30 inches measured at 4 ½ feet above the ground.
The DNR began its investigation after I sent a complaint to the agency on November 14, 2017. All the information described below was in the complaint or provided by supplement when it became available.
There were no County capital improvements planned for the property, which at the time was under a contract of sale to Caves Valley Partners LLC (CVP) for purposes of a development known as Towson Station. The County did not intend to make its own improvements to the property; it intended to sell the property, and the contract purchaser wanted the trees gone.
Secretary Belton did not give me the Baltimore County budgetary name or number for the capital project from which the money came to cut down the trees. That is because there was no capital project. The funds to remove the trees came from general operating funds; specifically, the funds used to pay the tree-cutting contractor were appropriated for use by the Property Management Division of the Baltimore County Office of Budget and Finance in its Grounds Maintenance Program.
The purpose of Grounds Maintenance Program is “to provide grounds maintenance for all County facilities to the citizens of Baltimore County so that they can participate in leisure activities in recreation facilities in a safe and clean environment.” The services provided by the program are listed in the County budget as “including grass maintenance, ball diamond grooming, turf management, and general landscaping.” Removing thirty trees to prepare a site for private development is not “general landscaping” and it is not “maintenance.”
In an appearance before the County Council several days after the trees were cut down, County Administrative Officer Fred Homan admitted that he ordered the trees removed to “accelerate the settlement on the property.” He offered his opinion that Resolution No. 113-16 applied only to the contract purchaser, not to the County itself.
Let’s be clear: The trees were not cut down as part of a capital improvement project. Even if the exemption did apply that allows the County to remove trees as part of a capital improvement project, however, County law requires the County to file a “project plan” justifying any “tree cutting” for a project that is on an area of land 40,000 square feet or greater that is not otherwise subject to normal development review and forest conservation act compliance.
The Towson Station site is about 200,000 square feet. Don’t bother looking for a “project plan” justifying the tree removal. There is none.
The retention of the trees described in Resolution No. 113-16 was a sticking point with CVP. As a contract purchaser, CVP was permitted to proceed through the development review process before taking title to the property. CVP’s own consultant acknowledged that the development plan proposed by CVP was subject to forest conservation laws.
In May 2016, the consulted applied on behalf of CVP for a Forest Conservation Special Variance under those laws to allow removal of the six specimen trees. The consultant claimed that retention of the six specimen trees was incompatible with CVP’s project design.
The application for the variance was withdrawn because of the pressure from community groups who wanted the trees retained. That pressure resulted in Resolution No. 113-16. The removal of the trees made the variance moot.
If DNR was looking for a smoking gun, one was provided by Ann Costantino in a story published in the Baltimore Post. She found an email exchange that took place in January 2017 between Donna Morrison, an assistant to Mr. Homan, and Robert Hoffman, the lawyer for CVP. The reference to “Mudd” is to Christopher Mudd, an attorney who worked with Mr. Hoffman.
Ms. Morrison: “You were going to send Fred the site plan with the trees that needed to be removed. Donna.”
Mr. Hoffman: “Hi Donna. Yep and got your phone message. Mudd is on it!”
The 30 trees, including the six specimen trees, were removed by the County because CVP wanted them removed to prepare the site for development. If Mr. Mudd did what Mr. Hoffman told Mr. Homan’s assistant he was going to do, then a representative of CVP instructed Mr. Homan exactly which trees to cut down.
“Treegate” had nothing to do with a County capital improvement project. It had everything to do with making the property more palatable to the contract purchaser who intended to develop the property, even though the County was under no contractual duty to do so. Shame on DNR for suggesting otherwise.
– David A. Plymyer
David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is email@example.com, and his website is at https://davidplymyer.com/.
[Published as guest commentary by The Baltimore Post on June 20, 2018 but not posted to my blog until October 25, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]