Those who see Lakeside, that 2501-unit behemoth in Trappe, as an irrevocable turning point for our community, need to face this fact: on October 12th, five weeks from now, Talbot County will be on the Rubicon. No matter the baked-in public health or environmental problems that exist with the current plan, if Mr. Lesher’s Resolution 308 is defeated, the County will have nothing whatever to say about Lakeside again (that is, until years hence, when it’s 2/3 built out and needs an ok for the final third…by which time the damage is done.) More importantly, that defeat would also mark the end to any pretense that Talbot County’s oversight of development is carried out with integrity.
And the thing most likely to assure the defeat of Resolution 308 is that the Talbot County Council was just told—wrongly—that it has no earthly power, under any circumstances, to save us. This strongly worded advice came to Council members on August 24th in open session from the Acting County Attorney, virtually as dictum.
I think this problem can only be addressed credibly by lawyers in our community. Sometimes, you just have to step up.
Prior to the County Council’s Public Hearing on Lakeside set for October 12th, the Planning Commission (“PC”) may review new information not available to it in 2020, raising important questions regarding the impact of Lakeside on the public health, water quality, sensitive areas, and the environment of Talbot County. Suppose this happens (in spite of every effort by the County Council to stop it), and that because of this new information the PC rescinds its June 2020 finding that Lakeside was ready for “Immediate Priority” status. (That finding was a legal prerequisite to the Council’s adoption of Resolution 281 last August giving Lakeside the green light to proceed.) Further, assume that the PC recommends to the Council that it now rescind R281 by adopting Resolution 308 (“R308”) recently introduced by Pete Lesher. None of these things are absolutely certain to happen, but assume they do.
Importantly, R308 provides for rescission “without prejudice.” Its adoption does not mean that Lakeside is dead. Rather, the developer can reapply in the future, when issues revealed by the new information have been addressed and questions answered. If all is in order, Lakeside will have earned its “immediate priority” designation.
The 2017 “Boomer case” on rescission clearly establishes that under Maryland law, if rescission is based on new information, the PC has the right to rescind its finding of consistency, and the Council has a right to rescind Lakeside’s green light by adopting R308. Such rescission would have the effect of stopping Lakeside immediately–unless the developer can demonstrate that it had acted in good faith in reliance on the earlier adoption of R281, for example by actually starting construction on July 15th. The issues of “acting in good faith in reliance” would turn on facts yet to be evaluated. There are certain facts (e.g., filing of rescission petition on May 7th two months before the developer put a shovel in the ground) that call into question the good faith of subsequent actions.
Citizen engagement with these issues has been accelerating since May 7th. Today over 250 individuals (plus the Talbot Preservation Alliance) have requested the County put their names on the roster in support of the petition for rescission, and by October 12 more will certainly join in.
Turnout at the Oct. 12th meeting will be substantial. After hearing from its constituents, the Council will vote to adopt or to reject R308, either stopping Lakeside for now–until important questions are answered and issues addressed–or permitting Lakeside to proceed, with the first 120 homes connecting to the existing, antiquated Trappe sewage plant. If it rejects R308, the County Council will have chosen to give up forever any influence over what happens at Lakeside.
The Talbot County Council also sits as the County’s Board of Public Health, by the way.
The Acting County Attorney, at the Council’s meeting on August 24th, instructed Council members on the law pertaining to rescission. The Council members therefore believe (in fact, or perhaps for convenience) that they are governed by that advice and should/must follow the guidance of the County’s chief legal advisor. Therefore, if nothing is done to alter the situation, a majority of Council members will undoubtedly reject R308 on October 12, doing so behind the shield of “official legal advice” that says their hands are tied.
Lawyers, not laymen, can best assess the counsel and advice given (or omitted) by a County Attorney, and that person’s fulfillment of duties to all the varied parties and stakeholders who make up a County government and whose interests may not be identical.
As to that second point, unlike an attorney hired by an individual, any County Attorney’s responsibilities to his or her client are more complicated. The client is the corporate body—in this case, Talbot County, MD–and his or her duties run to the whole body politic: not just the County Council, but also the Planning Commission and similar government entities, whose concerns and interests are sometime different than the Council’s. Even as to the Council, any County Attorney’s duties are to all members, not an individual or subset of members. And since he or she is explaining advice in public, pronouncements are heeded by County citizens, and so have an important and direct impact on the understanding of those stakeholders too.
As to the legal advice given to the Talbot County Council on August 24th, any interested lawyers will want to view it themselves. But summarized in a few words:
Talbot County is powerless to act under any circumstances. Adopting Mr. Lesher’s Resolution 308 “would not have any effect.” (The County Attorney did not mention, for example, the possibility of requesting MDE to use its discretion similarly to rescind the “approval” given to Talbot’s earlier adoption of R281, in view of new and troubling information.)
Councilman Divilio, referencing that authoritative advice summed it up thus: “You just heard our County Attorney; there’s nothing to this, it is a waste of time….all is for naught.” And Ms. Price agreed, “We have no more power.”
The Boomer case and its implications were not discussed–nor that MDE’s approval of the County’s action last year (even if truly determinative) was discretionary, and that if presented with important new evidence, the Planning Commission’s rescission of its finding of consistency, and the Council’s action to rescind “without prejudice” Resolution 308, MDE might very well reverse its decision made last year as well. In fact, it might have a duty to do that.
A solution is needed in quick order, or irrespective of important issues that need addressing, in five weeks-time the irrevocable decision is all but made: this enormous but flawed billion-dollar project—the biggest ever conceived in Talbot County—will proceed uninterrupted, uncorrected, and with Talbot County having nothing to say about it. Worse, the integrity of our land review processes will be shown to be hollow.
Inherently, issues of legal advice given by any County Attorney can never be resolved by a layman; credentials alone are out of balance. Laymen’s opinions don’t really count. Even if I were to hire a lawyer myself, that wouldn’t do it—because “that’s just Watson’s lawyer saying what Watson wants.”
This problem, in my opinion, can only be solved by some of the distinguished lawyers in this County picking up the ball. Retired lawyer, working lawyer, from-here’s or recent arrivals—but people with credibility because they understand not just how the law should work, but also how lawyers are supposed to serve clients. You have the cred.
Others may do better, but I have one idea that I think is practical and would work but that I cannot implement. I’d like to share it with any lawyers around here who care about Talbot and are willing to get involved right now (not as a full-time job, even for 5 weeks!). Whether my idea or someone’s better plan, none is useful unless acted on promptly. If interested in speaking, I can be reached at email@example.com.
Folks, please forward this to the lawyers you know around here (especially those not practicing locally, as they may be conflicted whatever their personal views). And join in supporting this rescission effort yourself, by sending a brief email to that effect to firstname.lastname@example.org. Finally, put that Oct 12 public hearing on your calendar.
Dan Watson is the former chair of Bipartisan Coalition For New Council Leadership and has lived in Talbot County for the last twenty-five years.