Public Hearings - Growth Allocation Public Hearing

PUBLIC HEARING
GROWTH ALLOCATION POLICY

April 6, 2010

A public hearing was held today at 9:45 a.m. in the County Commissioners’ Hearing Room, County Government Center, Chestertown, Maryland, on recommendation received from the Kent County Planning Commission to revise the Kent County Growth Allocation Policy to conform with changes in the Critical Area regulations governing the review and granting of growth allocation and to make certain stylistic and technical changes.

County Commissioners Roy Crow, Ronald Fithian, and William Pickrum, were in attendance as well as Susanne Hayman, County Administrator, Thomas Yeager, County Attorney, Gail Owings, Director of Planning, Amy Moredock, Environmental Planner, C. Daniel Saunders, Esq., approximately 10 interested persons, and three members of the media.

Commissioner Crow read the Notice of Public Hearing into the record.

Ms. Owings informed that the public hearing is in response to changes in the critical areas growth allocation regulations and emergency changes made at the end of the year. The Planning Commission has added criteria for adding new development, limited development areas, and new intensely developed areas. Those criteria are consistent with the Critical Area mission policy, which allows counties to develop their own policies and flexibility. Flexibility has been added to the policy in Article II, “Standards” Section 2.2.f, g, and h. Also revised was Article III, Section 1.10, which now reads that “if no substantial construction has taken place in accordance with the plans for which such growth allocation was granted, then the growth allocation shall expire after three years unless otherwise extended by the County Commissioners of Kent County.

Correspondence dated February 5 was received from Elizabeth Morris, Chairman, Planning Commission, informing that at its February 4 meeting, the Planning Commission reviewed and discussed revisions to the Growth Allocation Policy. The Planning Commission recognizes the revisions to the policy are necessary to reflect changes in the Critical Area regulations governing the review and granting of growth allocation and include such changes as noted below:

- Inserting a title
- Clearly stating that in order to receive a growth allocation, the project must meet all listed criteria
- Listing the criteria for locating new limited development areas and intensely developed areas; these include both the requirements of the Critical Area Commission, as well as local standards designed to provide some flexibility
- Changing the stage of Planning Commission review for eligibility for growth allocation consideration to both concept and preliminary action solely conceptual review. This change is necessary for consistency with the items required by the Critical Area Commission review.

The Planning Commission unanimously voted to recommend the Growth Allocation Policy, and found it to be consistent with the Comprehensive Plan and the Critical Area Program as proposed. The Planning Commission also found that Kent County has a public need to add additional flexibility to the Growth allocation policy.

Mr. Yeager noted that the proposed policy does not change the provision regarding appellant rights in the existing policy. It was originally discussed to revise this provision; however, Ms. Owings felt this may involve more scrutiny by the Critical Areas Commission (CAC) and slow down the approval of the other proposed revisions. Mr. Yeager feels that the appellant provision has to be addressed at some point. He recommended that it not remain as it is permanently. In response to question raised by Commissioner Crow, Ms. Owings informed that other jurisdictions may not address the appellant rights in their policy. Mr. Yeager stated that if no language for appeal is put in the policy, one interpretation would be that the only remedy would be a mandamus action or declaratory judgment action. For clarity, Mr. Yeager feels that the rights of the appellant should be spelled out, as well as when the appellant has those rights, in order to reduce the risk of multiple appeals. Ms. Owings stated that the Critical Area Commission Attorney and staff had concerns with the language as it was initially adopted, because they cannot hear a decision until it is final by the Commissioners. If the Commissioners language states that their decision is not final and appealable until reviewed by the CAC, the CAC would be unable to review the application based on their own laws. Ms. Owings stated that the appeals path does need to be clearly written in some way.

Mr. Saunders presented correspondence regarding concerns and recommendations on the draft Growth Allocation Policy, he reiterated that the county should continue efforts to clarify the appellant efforts of any parties following through a growth allocation decision. He provided written documentation outlining his suggestions for language that he feels would uphold with the CAC. The language proposed by Mr. Saunders eliminates the administrative appeal, and expressly provides that the appropriate method of judicial review of a growth allocation decision in Kent County is the same judicial review as that which is available from any other legislative decision. Mr. Saunders suggested changes are set forth in Article II, Section 2.4, and Article III, Section 1.8. as follows:

Article II, Section 2.4:…Accordingly, the Commissioners decision concerning growth allocation is a discretionary legislative act that is subject only to judicial review that is afforded to legislative acts in Maryland.

Article III, Section 1.8: Any aggrieved person with standing may within thirty (30) days after the decision, appeal to the Circuit Court of Maryland.

Commissioner Pickrum commented that an administrative appeal affords the officials the opportunity to hear what the citizens would like to do. Mr. Yeager informed that the administrative appeal being referred to would be done in front of the local Circuit Court judge rather than the Board of Commissioners.

Mr. Saunders also expressed concerns that the changes proposed to the adjacency requirements in order to reclassify property as Intense Development Area (IDA) could potentially impact the reclassification which was awarded to the Drayton Manor project. He stated that this would be particularly problematic if the Drayton Manor approval was remanded to the Commissioners for further proceedings or if they have to reconsider the project due to some minor changes in the proposal itself. Mr. Saunders stated that the usual approach to this type of situation would to supply grandfathering language. He provided draft language to grandfather projects which have already been approved for the Commissioners’ review. The draft language is found in Article II, Section 2.2.g.

Mr. Yeager stated that if the language is adopted as proposed by Mr. Saunders, the appellant would not have the right to petition for a judicial review, which would make the chances for an appeal to prevail far less than they would be for an administrative review.
John Vail, who was observing in the audience, questioned why the Commissioners would grandfather a project that would not be consistent with the current policies. Ms. Owings responded that this matter relates to “fundamental fairness.” She stated that if one has spent a large amount of money on a project under one set of rules, there should be a period of time in which the same rules should be applied to this project.

Mr. Yeager stated that because the Commissioners are revising the provision regarding appellant rights, another public hearing will not be necessary in his opinion. The discussion taking place during this hearing should be in conformance with the law.

Mr. Vail questioned why the grandfathering portion of this policy addressed Drayton Manor only. Mr. Yeager responded that the Drayton Manor project is the only project that was passed and is pending in the courts. If the Courts find that the Commissioners did something wrong, and the project must come back before the board for further testimony, the language as proposed would allow Drayton to be under the rules that were applied when the application was approved by the Commissioners. Future cases would have to comply with the amended policy.

Bob Kramer questioned whether the proposed language will affect the sequence of events in the growth allocation approval process. Ms. Owings informed that the sequence would remain the same, with the exception that the application will come for preliminary review before it is reviewed for growth allocation. The Commissioners will have the semi-final decision on the specific site plan element of the growth allocation. The Critical Area Commission would have the final decision.

A final draft of this proposed policy will be considered by the Commissioners’ at a later date.

This hearing was taped for reference and adjourned at 10:45 a.m.


Janice F. Fletcher
Executive Assistant
Approved:
Roy W. Crow, President