It’s been three weeks since a FOT column appeared, as I have not had my focus on Talbot at all. A trip below the Antarctic circle to see the terrain and critters down there was most excellent, and quite the diversion.
Meanwhile, the Lakeside affair moves towards resolution, albeit in slow motion.
On December 13th the Council received proof that its 2020 approval of Lakeside was based on false pretenses; the central “facts” presented by the developer were inescapably untrue. Do you share my optimism that, in the face of these revelations, the County Council will “Do the Right Thing” and rescind without prejudice its adoption of R281? (“Without prejudice” enables the developer, Rocks, to come back and present the project to us again, but next time untainted by misleading falsehoods and omissions.)
Here’s why I am optimistic: all five Council members clearly did not know when they adopted R281 that the two pillars on which the approval was granted were false. If any Council member already knew that Lakeside was not “immediate priority” but had always been “unprogrammed,” or that the MDE permits from 2005-06 were actually invalid, then that person would have been complicit and acting in bad faith—and surely that is unthinkable. Plus, there is an extensive record—transcripts and videos—showing just how the Council (and Planning Commission, and public) was misled. Excerpts from that record were presented on December 13th.
As I’ve said, there is no dishonor in having been the party lied to, and having the courage to acknowledge that new information demands a change of position. Rescission is necessary, for any other action is to countenance and endorse falsehood and misrepresentation in the administration of Talbot County government. Given that Lakeside is the biggest and most disruptive project ever proposed in Talbot County, any pretense of integrity in our land use review process would be out the window.
(Rescission is also required for other reasons that, while important, simply pale in comparison to the moral challenge described above. For one thing, in early November the Planning Commission, based on new information about La Trappe Creek and the existing Trappe sewer plant, reconsidered its earlier finding and determined that connecting Phase 1 of Lakeside to that plant, as permitted by R281, is not consistent with our Comp Plan. As consistency is a legal requirement for adoption of a Comprehensive Water and Sewer Plan amendment, that surely requires R281 be reversed—but somehow the Commission’s action continues to be ignored. Also, it turns out the R281 remapped and reclassified sewer service priority for many, many properties not described in the title or text of the legislation!)
So where is the fly in the ointment? Back in July, near the outset of this effort, the County Attorney told the Council (and all of the rest of us) that the Talbot County Council is powerless to act, that there’s not a thing that the Council can do about it even if it has now learned that it adopted R281 based on Applicant’s false pretenses. Does that sound right to you?
No, me neither.
The so-called opinion was just a bald statement, dicta, not in writing and with no citations or explanation of case law. If those conclusory statements were later backed up in some fashion in writing, we haven’t seen it—and I think we are entitled to it, so we can judge how solid it seems. Because all of us—and the County Council—have also seen the written opinion (complete with citations and the legal reasoning set forth) by Gallagher, Evelius and Jones,
a major Baltimore law firm, asserting that “unquestionably” the Council has unrestricted power to rescind a former action, particularly when based on new information of this sort. (That opinion was obtained for us courtesy of Messrs. Smith, Briggs and McConnel, all local former attorneys troubled by what they had heard from the County Attorney.)
I believe the Council will do the right thing and vote to approve Resolution 308. The reasons are so compelling that that conclusory opinion voiced back in July surely cannot dissuade the Council from right action, especially in the context of the Gallagher treatise. The Council must act, and if there is any question thereafter, the Applicant, the County, MDE and, if necessary, the Circuit Court can sort it out then.
Resolution 308 is on the Council’s January 25th agenda—a week from tomorrow night at 6 pm. That legislation will rescind–without prejudice–the action last year that gave Lakeside the greenlight to proceed (R281). This is scheduled as a “virtual Council meeting,” but as all the information is at long last in hand, I believe we can look forward to the Talbot County Council getting to the right result.
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.