Focus On Talbot: Lakeside and the Big Con by Dan Watson

On May 10th I wrote my first piece in the Spy concerning Lakeside, entitled “Uphold the Integrity of County Government.”  The first words were these:

“We’ve been played.”  

So little did I know.  After seven months, and more effort than I ever imagined, the pieces of this jigsaw puzzle are largely in place.   Last Wednesday, I delivered to the Maryland Department of Environment (“MDE”)—a party largely responsible for this debacle—a letter laying out the epic twenty-year story of falsehood and misrepresentation that corrupted the approval process at Lakeside.   I respectfully requested that MDE issue a stop-work order at Lakeside and revoke its approval of Resolution 281—the action taken by four members of our County Council that is putting a 2501-unit subdivision (and a half million square feet of retail) on a cornfield along Route 50.  Other authorities have been contacted also, since MDE seems complicit in the chicanery that got us here.

Fifteen years ago—in 2006—MDE illegally issued two construction permits for sewer work at Lakeside; the year before, a sewage discharge permit.  The permits were invalid because the property had never been classified “immediate priority” (called “S-1”) by the then County Council, a legal prerequisite.  In fact, by a 5-0 vote the County Council in 2004 had rejected Lakeside cold-turkey, issued a 21-page “Finding of Fact” decrying the project, and then fought the Applicant in court.  Our County Council did that.  

MDE issued the permits anyway.  When Talbot Preservation Alliance found out about it in 2009 thorough a “public information act request,” it demanded MDE initiate an investigation, a request joined in by the County itself.  An investigation purportedly began, but the Applicant was able to kill it.

Flash forward ten years, and the same bad project is introduced again to a new, less informed County Council, one that “knows” Lakeside has been on the drawing boards for two decades, had MDE permits long ago, and obviously must have been sitting there as “immediate priority” since Hector was a pup.  Seems perfunctory, only fair to give it the greenlight, right?  

Wrong.  Two “falsehoods”–outright lies or innocent mistakes, how can anyone know which?—framed the entire presentation and review of Lakeside in 2020, unbeknownst to the public, the County Planning Commission, and presumably the County Council too.  Falsehood one: almost two decades ago some earlier County Council had already approved the project for development “in three to five years.” Falsehood two: fifteen years ago, MDE had issued valid permits for Lakeside.  Neither premise is true.  Together, these falsehoods undermined the integrity of the Lakeside approval process completely, and de facto denied citizens their right to speak up, to voice meaningful objection.  No wonder so many are upset.  The passage of time does not turn a bad idea into a good one.  

Mr. Alspach of TPA was right when he told MDE in 2009:  “As a result of Trappe’s procurement of construction permits for a sewer project that is not consistent with the Talbot County CWSP, the entire process for comprehensive water and sewer planning in Talbot County has been rendered meaningless.”

(My letter to MDE, where the term “falsehood” is explained, and all the details are laid out, is available below.  It’s a hard slog.)

OK, I know what you’re saying:   “But the jig’s already up!” you say.  “The entrance is paved!  Lots are graded and some storm ponds are in.  You are dreaming!  It’ll never be stopped, never even slowed down at this point.”

Well, maybe.  I do know the developer’s team wants to pretend this is all “just noise,” the predictable kabuki that always goes with development, where a few neighbors object and make a fuss.

But that is not what’s going on this time—this is a County-wide movement of people upset that we’re being had, and with MDE of all people helping the perpetrators of the biggest, most inappropriate assault on the vision of in our Comprehensive Plan ever to occur in Talbot County—not an exaggeration.  This battle must be fought and won for the very reason that gave title to that first Lakeside article:  to Uphold the Integrity of County Government.

I was asked by a Washington Post reporter last week what I thought would actually happen down in Trappe if the County Council rescinds Resolution 281, or if MDE actually revokes its improper approval of that measure, given the unbelievable amount of construction that’s gone on since July 15th.  The answer is obvious.  

First, the lawyers will get very, very busy.  MDE is represented by the AG’s office, of course, which has resources at its command.  As to the County, it will have to hire a law firm (and fortunately the costs would be covered by the County’s legal insurance policy, a co-op arrangement all Counties participate in for just these kinds of extraordinary things).  The developer, Rocks Engineering, already has very competent counsel, and they’d all be very busy arguing—soon before a judge—whether or not government, in protection of us citizens and the County Comprehensive plan, can really require a developer to play by the rules.  

In the field, nothing much would happen.  The work would stop, and the Town (who “regulates” construction down there) might require the site to be made orderly—or not.  The property would sit, certainly looking no worse than the two decades it featured an unsightly, weather-worn sign.

“But,” you say, “what about Rocks, the developer?  All that money!  Seems so unfair…and the bank might foreclose.”  To that I say, “Give me a break.”   And more:

• Rocks knew when starting construction on July 15th that a serious rescission effort was underway.  Rescission had been on the table since May 7th and they went ahead anyway.
• There is strong evidence (set out in the last Exhibit to my MDE letter) that supporters of Lakeside took steps to delay and resist consideration of rescission, extending time so Rocks could build out as much as possible and as fast as possible—which Rocks chose to do knowingly, in the face of the risks of rescission.
• Rocks knew when starting construction that it was doing so without a wastewater discharge permit– Judge Kehoe had remanded it back to MDE for reconsideration—and that well-founded objections to that permit were being raised.
• Rocks knew when starting construction that challenges had been raised to the idea of connecting anything to the existing Trappe sewer plant that is so inadequate.
• Rocks knew in late November, when installing a sewer connection from Lakeside to the existing Trappe sewer system, that on November 3rd the Talbot County Planning Commission had found exactly such a connection inconsistent with our Comp Plan, at least until it meets “enhanced nutrient removal” standards, should that ever happen.
• If anyone did, Rocks knew the whole history of Lakeside when starting construction: the inside picture of the original request rejected in 2004; the story of those 2005-06 permits; the investigation that in 2009 had been requested, started, and then dropped; conditions today at the existing sewer plant; how the new request for County approval was being framed in its presentation; how important “vesting” would be to keep Lakeside alive.
• Rocks knew when starting construction that the one trump card to play that might defeat rescission was vesting, that is, getting work done in the field before anything was rescinded.  But that defense requires “clean hands,” and that the work had been done in “good faith,” questions of fact that only a judge can determine after proper inquiry.

In almost every development deal (I was in the business for forty years), this is the way it works: the mortgage lender—the folks with the money—requires that before construction begins, all of the permits (and anything else needed to complete the project) are in hand.  Check, check, check.  Only when all the permits and such are in place do things really begin—and especially with no discharge permit, construction at Lakeside normally would not have begun.  Too much risk.

But Lakeside is not that normal deal.  When I had the land records checked last month, there was no mortgage on the property at all.  No prudent banker checking the boxes.  So apparently all of the work is funded by equity, someone’s aptly named “risk capital.”  (A recent transaction conveying title  to a large part of the property makes financial backing unclear.)   

Most investors are very careful.  And in my life experience, equity or not, a million or two dollars does not get expended unless someone, on good authority, “knows” there’s really no risk to speak of, that permits are coming.  I suspect that is the case here—remand of MDE permits, calls for rescission, actual findings by the Planning Commission that an element of the plan is “inconsistent” notwithstanding.  So, we’ll just have to see.

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. 

My letter to the MD Department of the Environment:

 

 

 

Lee Currey, Director
Water and Science Administration
Maryland Department of the Environment
1800 Washington Blvd.
Baltimore, MD  21230

RE:  Revocation of Approval of Talbot County Resolution 281

Dear Director Curry:

My name is Dan Watson, and I live in Talbot County.  Believing the adoption of Resolution 281 As Amended (“R281”) was flawed by problems of process and substance, I have been endeavoring since last spring to have the Talbot County Council rescind Resolution 281 without prejudice so that matter can be properly reviewed and issues resolved before the project it authorizes is reconsidered.  As you know, R281 amended Talbot County’s Comprehensive Water and Sewer Plan (“CWSP”) to accommodate the Lakeside project in Trappe, MD.

In recent months I have spent quite a lot of time and effort digging into those documents and materials available to me (including many obtained through PIA requests), and recently the pieces of the puzzle have fallen into place.  I believe you will find the picture disturbing, as I do.

I write to you as an individual to respectfully request that the Maryland Department of Environment (“MDE”) exercise its independent authority to revoke its November 4, 2020 approval of R281; that on the Secretary’s authority it issue a stop-work order; that it undertake a proper investigation of the matters detailed below to uncover additional information if needed; and that the Department formally disapprove R281.

In Section 2 of this letter, I briefly describe three reasons why MDE must disapprove R281; each standing alone is sufficient reason for that action.  But those issues, important as they are, pale in comparison to the most fundamental of problems detailed in Section 1 and which demands immediate action and a thorough, independent investigation:  R281 was not just tainted. R281 was built on a foundation of falsehood and misrepresentation, and over many years, MDE itself  actively helped advance this project against the active opposition of Talbot County by issuing invalid permits.  The Department’s complicity continues to this day.

Only a proper, wholly independent, investigation can determine if many curious and unexplained aspects of the approval process for this billion-dollar project are the hallmarks of corruption, petty or large in scale–or if they simply represent an unfortunate but benign confluence of misunderstandings, innocent mistakes, and poor communication. I believe the evidence below proves some allegations I assert (e.g., that Lakeside was never categorized “S-2”).   But as to other conclusions (e.g., the extent to which false premises misdirected final decisions) while the evidence I have been able to gather is strong, it may be short of proof.  There are limits to what an individual can ascertain, and I believe only MDE and other appropriate, independent, governmental agencies can really get to the bottom of the matter.

But whether falsehoods were innocent or purposeful, the adoption of R281 was unalterably infected.  

SECTION 1:  ADOPTION OF R281 WAS ROOTED IN FALSEHOOD, AND MDE IS LARGELY CULPABLE.

The premise of the allegations I express here is that Maryland—likewise, Talbot County–is ruled by laws and regulations that are properly applied, and that steps taken in the application of those laws and regulations must themselves be properly documented and communicated to the affected parties. Maryland is not governed by the rule of email, private note, the wink-and-nod, the undisclosed ruling kept in a bottom drawer devoid of public understanding or timely judicial review.

Here are two “facts” that virtually everyone believed true in 2020 (and today) but that were actually untrue—”falsehoods”– that MDE had a hand in, that were widely espoused, and that the record  shows were a primary reason R281 came to be adopted.  The falsehoods were:

• That in the past, prior to 2010, the Lakeside project had been determined to be consistent with the Talbot County Comprehensive Plan; and
• That ever since 2002 the Lakeside property had had a sewer service classification of “S-2” (programed for development in “three to five” years).

Because of the misleading implications of permits invalidly issued as described below, MDE’s failure to address their invalidity when called out, and its continued complicity by not correcting known falsehoods in the processing of R281, MDE seems largely responsible for these falsehoods and their malign impact on Talbot County and its citizens, although it was Applicant who introduced and repeatedly expressed the falsehoods as R281 was being considered and adopted.

1. MDE’s Central Role In The Adoption of R281 Based on Falsehoods.

The single most important step in the adoption of R281, the approval of Lakeside, and the undermining of Talbot County’s Comprehensive Plan, perhaps occurred on December 9, 2003 when Mr. Ray Anderson checked a box on an MDE form: “Based upon our review, it has been determined that this permit _X_ is; ____ is not; consistent.”

Whether inadvertently or purposefully, that behind-the-scenes action seems to have led to a misunderstanding ever after that MDE somehow had validly determined that the Lakeside project itself was consistent with the Talbot County Comprehensive Plan.  It was not.

It seems that as a consequence of that checked box, in 2005 MDE issued Lakeside a discharge permit, and in 2006 MDE issued two permits for construction of water and/or sewer infrastructure, which could only have been done legally if the County’s Comprehensive Water and Sewer Plan (“CWSP”) had been amended to include the related project.  Such an amendment is permissible only if the County Planning Commission has determined the subject project to be consistent with the County’s Comprehensive Plan.

As MDE did issue those permits, MDE may have gotten confused and improperly relied on Mr. Anderson’s very narrow, indeed, questionable, finding of December 9, 2003.   A less benign possibility is that in the application process for those construction permits The Town of Trappe or someone else actually misrepresented to MDE that the CWSP had been amended so that the project was eligible (meaning the property had an immediate priority sewer service classification, or “S-1”) and that the Planning Commission had found the project consistent with the County’s Comprehensive Plan.  Neither was true, and those would have been false representations.

What is puzzling in the extreme, and calls into question either an innocent misunderstanding of Mr. Anderson’s checkmark or a gullible acceptance of someone’s misrepresentations, is that between the date of Mr. Anderson’s check mark and the date the first permit was issued, the Talbot County Council vehemently rejected Lakeside, refusing to grant it an immediate priority (“S-1”) classification. Surely this widely publicized decision was known to MDE–yet MDE issued the discharge permit and the two construction permits in defiance of the County’s action.  (If it was meant to be defiant, and to force the County to accept Lakeside, MDE should not have acted covertly, but directed the Talbot County Council to amend its CWSP accordingly.  Such an above-board approach would have alerted Talbot County and its citizens,  enabling them to respond or pursue judicial review.) 

In either event, the construction permits could not have been validly issued.  But they were issued, and the false implications of that action (that Lakeside must have been classified S-1 and found consistent with Comp Plan) became firmly established in the minds of people in Talbot County.  The record shows those falsehoods became the corrupted basis for review and adoption of R281 in 2020.

1. Lakeside Had Never Been Classified Lakeside “S-2;” It Was Always Unprogrammed.

Under Maryland law, Talbot County Itself, acting through the County Council, is primarily responsible for land use decisions.  With narrow exception, only the County Council can designate a property’s sewer service classification by adopting or amending its Comprehensive Water and Sewer Plan (“CWSP”).  As explained in the detailed analysis in Exhibit 7, the “Sewer Service Area” map (Figure 23) in the CWSP adopted on October 22, 2002 shows that all land on the east side of Route 50 that was not then in the Town of Trappe remained unprogrammed as it had always been, including all of the property (Lakeside and other) that was annexed in 2003.  

(Mr. Michael Pullen, the former Talbot County Attorney who served for approximately 20 years– including in the period when the CWSP was adopted and R123 was considered, but who  retired in 2016 before R123 was introduced–has reviewed this analysis and concurs.  See Exhibit 7C.)

Until adoption of R281 on August 11, 2020, the Talbot County Council had only once amended the CWSP for any property in the Trappe area, and that matter had no relationship to Lakeside.  Therefore, contrary to numerous representations as R281 was being considered and adopted (including in the title and text of the resolution itself), Lakeside had never been given any priority classification and was “unprogrammed.”

MDE contributed directly to the establishment of these falsehoods by having issued discharge and construction permits in 2005 and 2006, which could only be done legally and validly if the project to be served was already “S-1,” immediate priority, and had been found by the Talbot County Planning Commission to be consistent with its own Comprehensive Plan.

1. The Talbot County Planning Commission Never Determined That Amending The CWSP For Lakeside Was Consistent with The County’s Comprehensive Plan.

Prior to 2020, an amendment to the County’s CWSP to accommodate the Lakeside project had only been considered by the Talbot County Council once (Resolution 123, “R123”),  and on December 21, 2004 it was vehemently and unanimously rejected. The Council adopted a 21-page Findings of Fact in connection with its action.

Maryland law requires that before a County Council can approve a CWSP amendment, the Planning Commission must find that such amendment is consistent with the County’s Comprehensive Plan.  As to Lakeside, in 2004 the Talbot County Council was so fundamentally opposed to authorizing a project of two thousand or more homes, five or six times a small town’s population, and creating so many obvious conflicts with our Comprehensive Plan (e.g., protecting its rural character and quality of life), that the Council did not even send R281 to the Planning Commission for review.

It is possible the general public did not understand that the Planning Commission had not been involved because, for example, this headline had been printed in the Star Democrat on January 6, 2003: “Planners Support Annexation By Trappe.”   As things played out,  it would be easy for someone uninitiated in the intricacies of land use planning to misunderstand what that meant or forget exactly what it said.  But the article is actually very clear—that the step of annexing 924 acres of land into the Town was consistent with the Comp Plan, but that is all that the Planning Commission considered.

In fact, the attorney for the Town was quoted as saying, “no development proposals have been presented to the town yet” although “the town expects to receive a proposal for a residential development of 200 to 250 homes to be built over four or five years…”  (The annexation at that point was uncertain and had not yet gone to referendum.)  Perhaps when Lakeside came before five Council Members two years later and they unanimously turned it down cold, someone might have imagined that was done in spite of an earlier finding of consistency by the Planning Commission.  But that was not so.

While laymen could have been unclear, it stretches credulity to believe that experienced professionals with skin in the game—engineers and attorneys who live in the world of land use approval processes—were confused about whether Talbot County had or had not found the Lakeside project consistent with its Comprehensive Plan.

Yet in 2020, when R281 was introduced, the record clearly shows that invalid permits MDE had issued in 2005 and 2006 were front and center in the story.  How could that not have created a deep but false impression that Lakeside not only had immediate priority status but also that earlier it had been certified consistent with the Talbot County Comp Plan?   Consequently, only the narrow issue related to the environmental impact of Lakeside’s proposed new wastewater system was thought to be legitimate topic for review.

Consequently, I, the 412 other citizens who signed on in support of Petition 21-01, and other citizens of Talbot County, have all been denied any real opportunity to hear a presentation from the developer and the Town, and to stand up and provide information and express views about Lakeside to the Planning Commission and to the County Council on the broad array of truly fundamental issues covered by our Comprehensive Plan.  And what are those issues?

• Lakeside’s impact on our rural character, fundamental to the Comp Plan…
• Lakeside’s impact on the quality of life in Talbot County, also fundamental to the Comp Plan…
• Permitting a single developer to sextuple the size of a small town with just a one-time authorization from the County and loss of any control forever after…
• Enabling a single developer of such a dominant project to operate ever after with only the regulation of a small town it will (already has?) come to dominate–including, for example, important power over zoning and land use…
• Failing to encourage Trappe to grow on the west side of Route 50, where in 2002 the CWSP “Long-Range Plan” also designated other property “S-2” (sizable parcels that would accommodate growth in reasonable scale and increments) and in fact, identified three large tracts as “S-1,” immediate priority.
• Traffic impacts in general…
• The foolishness in particular of authorizing a town of 7,000 essentially to straddle the County’s (the Delmarva’s!) main highway, when the state is planning to spend billions to move traffic faster across the Bay Bridge…
• School capacity and the expense to build….
• Adequacy of Emergency Medical, Public Safety, and other County services…
• Risks of creating a new retail hub—which, with a town controlling rezoning and in thrall to a big developer, could easily happen….
• Lakeside’s impact on tourism…
• Lakeside’s impact on adjacent communities…
• Lakeside’s perverse impact on County tax revenues versus increases in expense—that is, in light of Talbot County’s real property tax revenue cap… 
• Lakeside’s impact on the environment….

The record shows that only the last issue, as it relates to wastewater, was reviewed in any real depth by the Planning Commission and County Council in 2020.  Was that not due in very large part to the falsehoods authenticated by invalid MDE permits, and the central role that played in the framing of R281?   The record shows that other factors were, at most, nominal topics for the Planning Commission’s review.

Fortunately, there is a clear record (transcripts, videos, contemporary documents from many sources) showing exactly how Lakeside was presented and reviewed throughout the nine months following introduction of Applicant’s request for an amendment to the CWSP, aka R281, on December 17, 2019.   Suffice it to say that telling of the false story began immediately:

• First, the title was read, which included this falsehood: “TO RECLASSIFY AND REMAP [parcels called out] FROM “S-2”…(AREAS WHERE IMPROVEMENTS…ARE PROGRAMMED FOR PROGRESS WITHIN THREE TO FIVE YEARS) TO “S-1”….” (Note that the falsehood in that title was read at the beginning of every Council discussion of R281, and listeners (including County staff) got the message every time:  Eighteen years ago, Talbot County said this was supposed to happen in three years, five at most.)
• In a matter of minutes, Mr. Pack, the Council President, asked Rocks’ attorney, “I know the application, the permit that was issued by MDE back in ’04, ’05 has now since expired.  So is MDE treating this as a new application, or are they treating this as an extension of the old application, old permit I should say?”  Perhaps unintentional, but the meaning carried to every listener (including County staff): Lakeside had permits fifteen years ago and was ready to go.  That could only have been done if, way back then, there was a finding of consistency and if it was classified immediate priority.  R281 just puts the project back to where it had been long ago. All false.

The record shows that R281 was framed in this exact manner from that night until August 11, 2020 when it was adopted, tainted throughout by falsehoods for which MDE shares responsibly.  

The charges that Lakeside’s 2005-06 permits had been illegally issued; the County’s 2009 call for an investigation by the MDE Secretary; a shocking article by the Public Integrity Center—all these were surely known to Rocks’ attorney, the Town’s attorney, the co-applicants, and many people at MDE.  Predictably, they spoke not a word about it on the public record, and no reports of private conversations have surfaced.  (The only person still engaged on behalf of the County who was also involved in that era was the County Engineer, and in the face of obviously strong political backing to make Lakeside happen, he did not bring it up either, at least on the record.)

Prior to 2020, the Talbot County Planning Commission never evaluated any of the issues bulleted above, and never received public comment from any Talbot citizen on issues of the most fundamental importance to our community.  Is it any wonder so many citizens of Talbot County are angry today?  Very many see Lakeside as crazy, a travesty for Talbot County.  Yet, but for some rather technical wastewater permit issues, it was presented in 2020 as a fait accompli.  In a vague sort of way, folks have a sense that they never really had an opportunity to have their say—because they didn’t.

MDE was largely responsible for the de facto elimination of the County’s proper review of consistency. By issuing invalid permits, MDE authenticated, perhaps unintentionally, the deep but false impression that Lakeside was classified S-1, that all the important procedural steps and all of the substantive review for consistency, had been completed many years ago.

1. MDE FAILED TO CORRECT MISIMPRESSIONS WHEN CALLED OUT, AND CONTINUES TO ACTIVELY MISLEAD THE COMMUNITY ABOUT THE INVALID PERMITS.

Twice in the past MDE was called out with regard to improprieties in the issuance of Lakeside permits. Twice in the past MDE was formally asked to investigate the validity of the Lakeside permits.

The first occasion was in February 2004, when an attorney, Mr. Phillip Hoon, wrote MDE and Talbot County on behalf of some local citizens, stating, “We believe that certain incomplete information provided MDE has caused MDE to make an erroneous determination that [Lakeside has] been properly included in the Talbot County 2002 CWSP.”  This was very shortly after Mr. Anderson had checked the consistency box described above.  There is no evidence of any response from MDE.

Five years later three citizens, the Talbot Preservation Alliance, and the Talbot County Council itself requested the Secretary of MDE to open an investigation.  Mr. Alspach, an attorney, wrote Secretary Wilson on July 15, 2009 about the MDE construction permits his clients had “belatedly learned about”—and where it took a PIA request to get the  information.  With evidence attached, Mr. Alspach questioned the validity of the permits saying, “These documents demonstrate that MDE was induced to issue these permits on the basis of inaccurate and misleading information submitted by representatives of the Town of Trappe.” Concluding, Mr. Alspach made a statement that remains true today: “As a result of Trappe’s procurement of construction permits for a sewer project that is not consistent with the Talbot County CWSP, the entire process for comprehensive water and sewer planning in Talbot County has been rendered meaningless.”

As a result of Mr. Alspach’s letter and the request from the Talbot County Council, MDE began, purportedly, an investigation into the validity of the Lakeside permits and the improprieties which corrupted their issuance—but it was never completed.  The Applicant was able to get the investigation dropped through a most interesting maneuver.  On February 3, 2010 the Town of Trappe wrote  to Secretary Wilson and to the Talbot County Council  suddenly announcing it was abandoning its plans for a new wastewater treatment plant for Lakeside, and “formally surrendered” its construction permits.

On February 16, 2010, the MDE Planning Director, on behalf of Secretary Wilson, wrote Mr. Alspach: “At your request and the request of the Talbot County Council. MDE began a review of whether the construction permit for the new Trappe East Wastewater Treatment Plant had been validly issued.”  She advised that this “development makes it unnecessary for MDE to take any action with respect to this permit.”  Conveniently for the Applicant and supporters of Lakeside, a formal challenge to the validity of the Lakeside permits, and an investigation into improprieties, was thwarted.  And nothing in the record indicates that the episode garnered any public attention, so the implications of the issuance of permits in 2006 stood strong in public perception as reflected in Mr. Pack’s comment thirteen years later.

Applicant and staff made no mention of the 2009 challenges to the legality of the earlier Lakeside permits and the aborted investigation when R281 was presented in 2020.  The Applicant and others emphasized repeatedly that such permits were in place long ago, and everyone proceeded on the basis that R281 was practically a formality, focusing only on narrow issues related to the most recent plans for the wastewater facility.

MDE continues today to ignore the missteps that made the original permits invalid and the improprieties that it surely knows tainted the R281 approval process and misled Talbot County citizens, the Planning Commission, and the County Council by holding out that the groundwater discharge permit currently under consideration is merely a renewal of the long expired—and invalid–2005 permit.  Implicitly, the same characterization would pertain to Lakeside’s construction permits.

1. MDE’S POWERS OVER COUNTY CWSPs DOES NOT EXTEND TO FORCING COUNTY TO APPROVE LAKESIDE:

MDE does have considerable power with respect to County Comprehensive Water and Sewer Plans.  No amendment to a CWSP is effective until approved by MDE, and it has the power to approve, disapprove, or even modify an amendment.  In fact, MDE has the power to mandate changes in a County’s CWSP in some circumstances.  From all of this, one might infer that any position taken by MDE on matters of CWSPS is limitless and unassailable and that it may “interpret” regulations as it wishes and issue permits as it sees fit.  But that surely overstates the case.

In the 1992 case Holmes v. MRA there is a lengthy discussion of the principal of “preemption” dealing with which level of government expressly or implicitly “occupies” a particular field when state and local actions come into conflict. In Holmes, the Court determined that the state “occupies” the field of solid waste management, at least as to asbestos.  But, as Ms. Dorsey, Assistant Secretary of MDE, said at a recent hearing, when it comes to land use decisions and determining the consistency of a CWSP amendment with a County Comprehensive Plan, that authority lies with the County, in particular the County Planning Commission, and the process involves public hearings and judicial review.

Powerful as it is, MDE did not have the legal power to issue permits for a project based on the falsehoods that the property in question had been designated “S-2” and that the project had been found consistent with the CWSP by the Talbot County Planning Commission.

1. BECAUSE CONSIDERATION OF R281 WAS TAINTED WITH FALSEHOODS, INCLUDING THOSE FOR WHICH IT WAS RESPONSIBLE, MDE MUST DISAPPROVE R281.

The citizens of Talbot County are the aggrieved parties here.  MDE must promptly revoke its November 4, 2020 approval of R281, issue a stop work order of some type, investigate the matter, and if facts are as they appear, disapprove R281.  For many, the evidence enclosed with the letter would alone be sufficient for the Department to reach such a conclusion to disapprove.

SECTION 2:  THREE OTHER REASONS MDE’S APPROVAL OF R281 MUST BE REVOKED.

1. THE PLANNING COMMISSION HAS FOUND A CENTRAL ELEMENT OF R281 INCONSISTENT.

On November 3, 2021, the Talbot County Planning Commission found that one of the most central components of R281—authorization to connect Lakeside to the existing Trappe wastewater treatment plant— is inconsistent with the Talbot County Comprehensive Plan.   The record shows the Commission reviewed and considered extensive new information about pollution and very serious problems with that plant that affect the health, safety and welfare of Talbot County, and made its determination on that basis.  As consistency with a County’s Comprehensive Plan is a legal prerequisite to adoption of an amendment to a Comprehensive Water and Sewer Plan, MDE is required to reverse its approval of R281 at this time.

While the significant environmental problems associated with R281 are not detailed here but only outlined briefly in Exhibit 20, they are very serious.  These include existing problems (recent permit violations, permitted excessive nutrient discharges; high levels of bacterial pollution in La Trappe Creek, a receiving stream)  and threats to Miles Creek that could evolve over years to cause enormous environmental harm.  Many of MDE’s responsibilities in this area are delegated by EPA under the Clean Water Act, so this is likely a matter EPA Region 3  will want to assess. 

1. R281 RECLASSIFIED AND REMAPPED THE WRONG PROPERTY.

R281 remapped and reclassified numerous parcels shown on the CWSP’s new “Sewer

Service Area” map  (Figure 23) that are not the parcels identified to be remapped and reclassified in the title and text of R281 (the “Parcels Called Out”).  Very many properties in the Trappe vicinity were remapped and reclassified that are not owned by the developer (co-applicant), are not zoned Planned Neighborhood District, and are not part of Lakeside, and some of which are not within the Town limits.

And the acreage cited in R281 does not come close to corresponding even to the acreage of the Parcels Called Out (off by forty acres), much less the lands actually remapped and reclassified.

This is not a minor clerical or administrative error; it significantly changed the property interests of many other individuals (some for the better, some for the worse) throughout the Trappe area.  Among the effects, those changes reduced the threat of competition to the developer from possible development of other parcels–including downgrading tracts that on the Long-Range Planning map (Figure 24) in the County’s 2002 CWSP were designated with a higher priority than the Lakeside property!

More importantly, these mapping problems reveal that the Applicant, and perhaps MDE, either misunderstand  the significance of the Sewer Service Area map and the Long-Range Planning Sewer Service Area map that are embedded in Talbot County’s CWSP, or understand well but sometimes misused them.

Refer to Exhibit 21 for complete documentation of this issue.

1. CWSP PROHIBITS SEWER EXTENSION UNTIL THE CURRENT SYSTEM IS SAFE AND ADEQUATE.

The CWSP, as originally written and as it exists today even after adoption of R281, states that “Prior to extending sewer service into the growth areas, the Town of Trappe would assure…the safety and adequacy of its public sewer supply system is maintained for all its users.” Clearly, this statement requires that the existing Trappe sewer system—currently with an antiquated and often failing treatment plant and a collection system rife with inflow and infiltration problems—must be made “safe and adequate” for existing Trappe citizens before investments are made to expand the system to serve prospective new residents.  A perfectly logical provision the County adopted and readopted to provide for the health, safety and welfare of citizens, and that was ignored or overlooked in MDE’s approval process.  Revocation of R281 is required due to that oversight.

SECTION 3:  CONCLUSION:

1. UNCERTAINTY AS TO ROOT CAUSE OF “FALSEHOODS” REQUIRES INVESTIGATION:

The primary reason R281 must be revoked is rooted in “falsehoods.”  The evidence attached clearly shows MDE was involved.   Those falsehoods infected the integrity of Talbot’s land use review process as the County considered R281.

How, and by whom, were such fundamental misunderstandings first introduced in the consideration of the issuance of permits and approval of Lakeside by MDE and then Talbot County?  I have no idea, and make no allegations. Whether these falsehoods arose from innocent mistakes, or confusion, or misrepresentations, or erroneous inferences arising inadvertently–or by design–from omissions or half-truths, or in some other manner and for some other purpose, can be found out only through a proper independent investigation—not by a local citizen working from home.

But once these untruths were established as “fact,” it is easy to trace how they continued to be propagated, innocently and unknowingly by many people, with a straight line running directly to the adoption of R281.

Self-evidently, falsehood, whether innocent or purposeful, has no place in any regulatory matter, even the least significant.  But Lakeside is not just another project, a subdivision like hundreds of others.  It is a billion-dollar deal in a rural cornfield that will transform Talbot County without the citizens being able to legitimately participate as required by law.  A rigorous, independent investigation is required. 

1. SUMMARY:

Lakeside would be a transformative project for the small rural county of Talbot.  It literally would change our future forever.  The County—not MDE, and not a tiny municipality that itself is only the size of a subdivision in most places and inevitably will be in thrall to the developer—holds the exclusive right and responsibility under Maryland law to make fundamental land use decisions for itself by taking actions it determines are consistent with our Comprehensive Plan.  

That did not occur at Lakeside at least in part because MDE de facto pre-empted and usurped the County’s right to determine consistency with its own Comp Plan.  

The evidence suggests falsehoods corrupted the entire review of R281—and MDE itself was largely responsible for or facilitated those falsehoods.  False premises colored R281, and undermined the ability of the Talbot County Council and the Planning Commission to consider the proposition honestly and untainted.  And the citizens of Talbot County—the aggrieved parties–were denied their right to participate in an honest process.

Every citizen and property owner in Talbot County, when doing something with his or her own property, must play by the rules.  If the owner of a little cottage wishes to hook up to sewer, he or she must get the property classified “S-1,” and the Planning Commission must review the question in its entirety and hear comments or objections from the public before determining whether that action is or is not consistent with our Comprehensive Plan.  Only if consistent, can the County Council decide whether to approve the requested change, by adopting an amendment to the CWSP.  If regular citizens need to play by the rules, why not Rocks Engineering and the Town of Trappe, in undertaking a billion-dollar project, the biggest, most transformative ever seen in Talbot County?  

I urge that MDE revoke its earlier approval of R281, issue a stop work order for Lakeside, investigate thoroughly, and if facts prove out, disapprove R281.  

Sincerely,

Dan Watson

NOTE:  The Exhibits to this letter are over 50 digital files totaling ~150MB and so are too large to transmit electronically.  All can be viewed and downloaded from the following site: 

https://www.dropbox.com/sh/eoiruyrprqummeb/AABot94T3u4L95oZaNLLWVJua?dl=0