Good News on Lakeside!
Thanks to Councilman Pete Lesher, our request to introduce legislation rescinding Resolution 281 is on tomorrow night’s County Council agenda. Starting the legislative process is critical and overdue. Thanks also to the two hundred twenty-eight (more, at this point!) citizens, and Talbot Preservation Alliance, who stepped up to formally support the petition effort.
As our rescission resolution pertains to land use, the matter should be referred promptly to both the Public Works Advisory Board (“PWAB”) and the Planning Commission for their recommendations; one would expect it will be on their respective agendas the first week of September. The County Council is also required to schedule a public hearing, which will occur after getting input from the PWAB and Planning Commission. This should happen in September.
Tempering this is the thought that, yet again, we may have “been had,” suckered somehow, so that our efforts are for naught. If so, it’s not clear by whom. And maybe it’s just my odd take on things. Read on.
Why is Rescinding 281 The Key?
Resolution 281 was adopted by the current County Council a year ago; it designated most of Lakeside (the northern two-thirds) as “Immediate Priority” for development. IT WAS THE GREEN LIGHT.
Uniquely, the act of rescinding Resolution 281 “without prejudice” is the only thing that will put Lakeside on hold—including suspending construction of Phase 1, the first 120 houses otherwise being connected to the Town’s inadequate existing sewer plant. Only rescission of Resolution 281 assures that the County can buy the time needed to get this right, and today that is the most important thing. Once all the questions are answered, the developer and Town can come back in and reapply, when the County really knows what’s going on.
Secondly, there are ongoing arguments before the Maryland Department of Environment (“MDE”) due to the remand of the spray irrigation ground water discharge permit for the new sewage plant to serve the 2,381 homes beyond Phase 1. Many parties are offering comments to MDE, and the issues are highly technical. At the same time, if the system is flawed in any way or if proper monitoring and oversight are not assured, the risk to public health, our water quality and the environment are huge. Talbot County is not really in a position to offer meaningful technical comments at this point—but the most powerful “comment” of all would come to MDE and the developer through rescission of Resolution 281: when you bring this back to us, make sure it is right. Since it’s our only bite at the apple, Talbot County gets a last look.
What Happens If Resolution 281 is Not Promptly Rescinded?
With the Immediate Priority designation still in hand, the developer (the Rocks family of Vienna VA) remains good to go, notwithstanding on-going discussion of the discharge permit at MDE. The developer is now and remains free of any control or influence of any sort from Talbot County. (Lakeside was long ago annexed into the Town of Trappe, and local “regulation,” such as it is, is imposed only by the Town. Another story.)
The only other thing the County or the Planning Commission or citizens can do is to offer technical comments on the new permit at that MDE hearing. That’s not unimportant, but MDE is also listening to the “Applicant” (the developer and Town of Trappe working together), and MDE will do whatever MDE wants to do. Talbot County will continue to have zero control or influence.
And How Might We Have Been Had?
Having watched this unfold very carefully, I personally believe that citizens’ hopes for achieving a safer Talbot County by rescinding Resolution 281 may yet be thwarted by three things that occurred over past months—more accurately, one unnecessary thing that did happen, and two necessary things that (so far) did not.
Being Had, Step 1: Delay.
You already know the first thing that happened: delay, delay, delay. Petition 21-01 was delivered in proper form on May 7th, more than three months ago. The Council has never permitted its proper introduction per its own Rules of Procedure, and is spending tax dollars even now fighting a lawsuit I had to bring, seeking a Court order to compel the Council to do as it is required. Had they properly heard the Petition on May 11th, think where we would be much further along with this effort.
No less egregious is this: Bypassing the Council, a letter was delivered on July 1st directly to the Planning Commission detailing concerns with the Lakeside project and the earlier approval process. The Acting County Attorney, on the Council’s behalf, immediately sent an email instructing Commissioners not to discuss any of it, even among themselves—what one commissioner referred to as “a gag order.” The Acting County Attorney, Mr. Thomas, was asked to attend the Planning Commission’s meeting four days later, to discuss the Council’s “instruction” among other things. But he was too busy, “in a meeting.” Even though the Commission offered to suspend its meeting until later that day or the next, Mr. Thomas was unable to meet with the Commission until July 16th, and the Commission did not really get started on its work until July 21st. The Planning Commission has taken these matters very seriously, and since then has moved as swiftly and decisively as possible given the circumstances.
Meanwhile, on July 15th—one day before Mr. Thomas for the first time was available to meet with the Planning Commission—the developer had bulldozers at the Lakeside site pushing dirt. No ribbon cutting.
Being Had, Step 2: No Independent Counsel
The Planning Commission, like everyone else, knows that a majority of County Council members, for whatever reason, very strongly support the Lakeside development. (The Planning Commission is central to this rescission discussion, as only they have the legal power to find Lakeside “consistent” with our Comprehensive Plan. If they discover new information causing them to rescind last year’s finding of consistency, then Resolution 281 would logically fall as well.)
Very soon after receiving the July 1st letter and the “gag order” on July 2nd, Commissioners began discussing the need for independent counsel, i.e., their own lawyer unconnected to the County Council. The very first act the Commissioners took after Mr. Thomas finally met with them on July 16th (after a 90-minute closed executive session) was to vote unanimously “to request the County Council to provide us a means to obtain our own independent—independent [emphasis in the original] –legal advice.”
The discussion about independent counsel for the Commission is a long saga. Bottom line: the Commission was not provided its own lawyer in spite of its formal request. Instead, the County Council assigned them Mr. Thomas’s associate, a gentleman who works in the same firm–and the gentleman who represents the County Council even today fighting us petitioners in Court.
Being Had, Step 3: “Boomer Under Wraps”
I cannot be certain of this, because before every Planning Commission and County Council meeting the parties go into closed “executive session” with counsel, and of course no one can know what is said there. But I say this based on an intimate if imperfect familiarity with the record of what’s gone on in past months in County government regarding Lakeside.
One hundred and six days after the filing of Petition 21-01 calling for the rescission of Resolution 281, there is no public evidence, no hint whatsoever, that the County Attorney has explained to the Council or Planning Commissioners the fundamental law of Maryland concerning rescission:
Subject to one important caveat, a County Council and/or Planning Commission has the absolute right to rescind a prior action if faced with new information it believes requires a reversal. That is the law as clearly established in a simple case, “Boomer vs. Waterman,” from 2017 upheld by Maryland’s highest Court, and it unfolded right next door in Queen Anne County.
Surely the County Attorney knows all about this case, for multiple reasons even beyond the fact that, with the unusual request for rescission presented back on May 7th, he would have had a responsibility to investigate the law in our State for the County and the Commission.
As recently as their most recent meeting a week ago today, Commissioners expressed strong feelings about troubling new information on Lakeside, and that it was different than they had understood when they first found for consistency, and they might well change their position on reconsideration. Yet, nothing was done…no mention was made of rescission, or of options, or Boomer, or the risk of imminent vesting. The Commission did not move to rescind last year’s action, or recommend that the Council rescind Resolution 281.
Perhaps, as I believe, the law established by Boomer and its implications had not been adequately explained to them. Most importantly, I suspect they had not been fully briefed that the one way the developer could escape the consequences of Talbot County rescinding Resolution 281 is the caveat: vesting.
Being Had, Step 4: Vesting.
The only exception to the power of a County Council, or Planning Commission, or other body, to rescind a prior action based on new and troubling information is if the affected party—say the developer, Mr. Rocks–has taken significant actions in good faith in reliance on the earlier decision.
Think about that.
Here is my supposition based on the history I know: The Talbot County Attorney, the Town of Trappe, the developer, and/or others supporting Lakeside (it is a close-knit group) knew very soon after May 7th that, not only had citizens awakened to problems at Lakeside, but that their effort to get a rescission of Resolution 281 was a serious threat. (As the Town of Trappe’s lawyer was on the losing side of Boomer, I imagine everyone in that camp would quickly have learned that the County Council and Planning Commission absolutely have the power to rescind, and that their only escape is vesting.) What to do? How about this:
- Do not let Petition 21-01 be presented. Ignore it, then fight it.
- If the issues ever come to the Planning Commission, issue a gag order and then delay them from beginning work as long as possible.
- Certainly do not provide the Planning Commission independent counsel, as any unconflicted, competent and knowledgeable lawyer would quickly discover Boomer, understand its implications (especially regarding vesting), and explain it all fully to his or her client, the Commission.
- Do not mention or explain Boomer to any “unfriendly” parties or the public, especially as to the significance of vesting. Let that sleeping dog lie.
- Meanwhile, do anything possible to create the appearance of “action in reliance” on the earlier decisions—like push dirt at the entryway.
I have no proof that this was anyone’s “plan,” but it all pretty much comports with what I have seen. The developer, Mr. Rocks, had equipment pushing dirt on the site on July 15th for the first time ever, thirteen days after the County’s “gag order” to Commissioners, one day before Mr. Thomas was able to find time on his calendar to meet with the Planning Commission, and two months and a week after Petition 21-01 was filed, putting all on notice that a rescission effort was underway.
But do not give up hope. The Boomer case is clear on this too: only actions taken in “good faith” are legitimate cause for an exception to a Council’s or Commission’s right to rescind. It seems doubtful to me, under the circumstances, that work done on and since July 15th would alone defeat the power Talbot County holds, should it be wise and bold enough to act, to rescind Resolution 281.
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.