This letter is to address public misunderstandings that would have resulted from your statements during your interview with The Talbot Spy on January 26, 2023 and at the Council meeting two days before.
You explained your late decision not to introduce the “Reset Lakeside” resolution for a vote by the Council by saying that “it is now my understanding there would be no impact” based on “considerable time” spent with the County Attorney, “The Talbot Integrity Project (TIP”), other outside interested parties” and your contact with the Maryland Department of Environment (“MDE”). You said that because MDE had issued its final permit for the Project, the waste water infrastructure was now partially constructed and “it seems quite clear that the Project has vested interests and that the permit cannot be rescinded by MDE.” (I understand the significance you now attribute to MDE’s issuance of its final permit was not discussed with TIP before your statements.) You also said that because the Planning Commission’s finding of inconsistency occurred after the Council enacted Resolution 281 (approving Lakeside) and after MDE had approved this Resolution, the Council’s rescission of 281 would be ineffectual.
The basic question of the Council’s authority to rescind Resolution 281 has been disputed by the County Attorney from the beginning. Now we have in addition to that—your assertions that adopting the Reset Resolution would have no impact.
Gallagher 92821 Letter
In September 2021 Gallagher Evelius & Jones wrote a formal legal opinion (see attached) citing a Maryland Court of Appeals decision confirming the Council’s authority to rescind 281 before the rights of third parties had vested. I believe you are familiar with this. I requested the opinion together with John DeQ Briggs, Esq. and J.T. Smith, Esq. because we doubted the County Attorney’s advice at the time that rescission by the Council was unavailable.
Gallagher’s letter stated: “The Council’s power to rescind Resolution 281 is unconditional.” (emphasis added) And as to vesting, it said “the potential existence of vested rights is a determination that must be made by a court, not the Council.” (emphasis added) Vesting depends on a showing of “clean hands” and “good faith reliance” on prior government approvals. As you know, questions have been raised about whether the Lakeside developer could meet this burden of proof were it necessary.
“Unconditional” means absolute, i.e., not dependent on the timing of Planning Commission decisions or MDE’s ability to rescind permits. Vesting exclusively by court proceedings means vesting not determined in the opinion of a politician or bureaucrat.
Pete, I asked Gallagher whether their opinion about the Council’s authority remained valid after considering your statements. They simply quoted from their letter and said it did:
“Under the Maryland Code, counties—not MDE—control new development in their jurisdictions. Here, the Code delegated to the County Council decisions to amend the Water and Sewer Plan to accommodate development. This is exactly the process the Council followed in considering the request to change the Plan to accommodate Lakeside. MDE’s role with respect to a county’s proposed amendment to its water and sewer plan is limited to considering the county’s proposal and approving, disapproving, or modifying it based on specified criteria. Maryland Code, Environment § 9-507(b). Thus, if a county exercises its broad common law authority to rescind an amendment based on changed circumstances or other local factors, the Code’s requirement that MDE approve or deny the amendment does not and will not stand in the way of the county’s control over development. To require otherwise would entail forcing counties to move forward with development they no longer want or believe they can safely handle while protecting their environment and citizens.”
Therefore, I believe the public should assume that adopting the Reset Resolution would have required the developer and County to negotiate mutually agreeable changes to Resolution 281 before the Lakeside development could legally proceed. If that failed, the developer would have had no alternative but to establish in court good faith reliance on the Planning Commission’s and Council’s prior approvals.
You acknowledged the Reset Lakeside resolution did not have majority support on the Council. It was obviously a dead letter. But the legal reasons you advanced for failing to introduce the Reset Resolution and claiming there “would be no impact,” are contrary to the Gallagher opinion and I believe are in error based on that. Regrettably, your misunderstanding has given every Council member a new basis to avoid personal accountability for failing to reset Lakeside.
W. Bruce (“Mike”) McConnel, Esq.
Easton
Paul Rybon says
Never heard it sad better. Council caving to developers sets a bad precedent for the future.
Rich Wagner says
Mike McConnel’s arguments are persuasive and — though I’m not an attorney— in my view, determinative.
Rich Wagner
Rebecca Ellison says
THANK YOU … good timing, perfect response, thank you for bringing this expert opinion before us again. I had entirely forgotten about it until now … the Council ignores this at their peril.
The fact is though, that, after 20 years of this nonsense, it’s hard for any normal person to keep their head around all of the details and keep things straight in their head … the truth and the non-truths. Remembering and making sense of it all is a worsening problem for us all as this thing snowballs. But apparently it’s lots worse for new Council members. Why? They don’t have to forge new ground, they only have to use common sense. STOP LAKESIDE.
Bob Wenneson says
This legal opinion from the highly regarded Gallagher law firm of Baltimore appears to be carefully and deeply researched. Unfortunately, a contrary opinion is being provided to Mr. Lesher by the current County Attorney, which puts Mr. Lesher in an undesirable position. The same County Attorney provided the legal basis for the outgoing County Council’s controversial last-minute replacement of a Planning Commission member just two months ago. That decision and action is now in litigation. As is the County Council’s decision to award the Rauch engineering firm a contract that is felt to violate the Talbot County’s Ethics Ordinance (case # C-20-CV–22-101). And as is the MDE’s role and interaction with the County in the Lakeside fiasco (case # C-20-CV-22-062).
Will this ‘Reset’ matter end up going down the same path? Presumably not, if for no other reason than the majority (if not all) of the council members have become thoroughly entrenched in their positions. Regardless of their commitments of September 28 at The Avalon’s pre-election candidates forum which was videotaped and is on public record. Perhaps the council members should examine why their actions and advice of counsel is leading to so much litigation. I do note that the prior County attorney stepped down from serving Talbot County a mere two years ago. And promptly took a position with the law firm that is representing the Lakeside developer. Has the council given due consideration to whether its actions, and the advice of the County Attorney, is providing an appropriate balance between business/land development and the citizens’ desires to have growth that is controlled and well considered?
Jay Corvan says
There are many reasons why the county attorney would say This. The county has been getting bad advice ( in my opinion) for many years. The former county attorney went to Work for the same lakeside developer if that tells you anything about where his advice was coming from. The county should be seeking multiple opinions from counsel. Including the one below.
Cost for legal services is always a consideration. Paying an attorney to defend your governments position is expensive! And developers know this! An attorney on retainer would likely be warning council of these costs putting council in a position of incurring costs against budget numbers.
But please remember we have voted for people such as Mr Lesher precisely because he took a stand on lakeside which he is now reversing . Doing the right thing is the Cost of doing business in government.
If county were smart in the future , they’d adopt the
policy as the town of Oxford has , that requests big escrow money up front in an applicants account to pay for these litigation costs. Otherwise the county is held hostage.
I love this line: @ I requested the opinion together with John DeQ Briggs, Esq. and J.T. Smith, Esq. because we doubted the County Attorney’s advice at the time that rescission by the Council was unavailable.”
Carol Voyles says
Rescinding Resolution 281 would return the comprehensive plan to its previous status, but the opinion offered in support of this action also states, “Maryland’s highest court, the Court of Appeals, recognizes that,’As a general rule, the governing body of a local government has the right to reconsider its rights and ordinances, and… rescind [an action] that has been previously adopted before the rights of third parties have been vested.'”
Resolution 281 was passed over 3 years ago. and it complicates matters that third parties are vested now. We might also recall who proposed Resolution 308 to rescind Resolution 281 two years ago.
Bob Wenneson says
Ms Voyles – You have stated as if a fact that “third parties are vested now”. That is quite debatable as the Gallagher research which is included above reflects. Quoting from the above research: “Vesting depends on a showing of “clean hands” and “good faith reliance” on prior government approvals. As you know, questions have been raised about whether the Lakeside developer could meet this burden of proof were it necessary.” Attorney McConnel also states above: “vesting (is) not determined in the opinion of a politician or bureaucrat.”
The clean-hands-showing might particularly be problematic since the Nick Rocks/Showalter/Rauch team has known from Day 1 that their right to proceed forward with work at the site was being simultaneously contested in several forums. In full recognition of that, they chose to proceed at their own risk. And Mr. Lesher has already provided an Affidavit to the effect of the developer acknowledging this. That’s why it is particularly ironic that Mr. Lesher has stated as if fact, as you have above, that “third parties are vested now”.
Dan Watson says
Carol–
Vesting, to be applicable, requires actual reliance, good faith and clean hands. Those hallmark attributes are not determined by any Council person–or by the County Attorney–in advance based on general impressions. They are properly determined by a court based on actual facts determined thorough proper process. Ample evidence suggests that in re Lakeside and R281, the superficial “vesting” argument does not stand scrutiny. To “get it,” one needs to know the facts…all of them.
DW
Carol Voyles says
The developer would certainly claim good faith vesting in the council’s decision (the ultimate governing authority in these matters) granting Lakeside permission to proceed 3 years ago (Resolution 281); but I must also admit I’m unaware of any legal findings impacting their “good faith” status to date – only cases scheduled and the worthy objections of concerned citizens, myself included.
And thank you, Dan, for all of your efforts.
Rebecca Ellison says
Re: the author’s statement that “The developer would certainly claim good faith vesting in the council’s decision (the ultimate governing authority in these matters) granting Lakeside permission to proceed 3 years ago (Resolution 281)” ….
… I don’t think we can ever know what the developer would ‘certainly do’ or not do (or try to do) etc..
And, in any case, the County Council is not the ‘ultimate governing authority in these matters’ at least in part because the County Council’s Resolution 281 in and of itself is/was far from being the sole document or action which ‘granted Lakeside permission to proceed’. (For ex. the DNR was involved in forestry permitting.)
[Further, the Council’s action on Res. 281 is still not ‘settled’ since the Council’s decision is presently under challenge in Circuit Court by concerned citizens. The dispute there is whether or not the Planning Commission has the right to consider new evidence and use it to overturn their own earlier decision as to whether Res. 281 is compliant with the County Comprehensive Plan.]
Lakeside is a huge new MUNICIPALITY with major Talbot County impacts, most of which have not been named, considered, documented or quantitated, either officially or informally. Many entities have yet to be involved: fire departments, schools, emergency services, local and state police, transportation administrations, health departments etc.
Clearly, Lakeside is neither ‘vested
nor ‘approved’.
Margot McConnel says
Please remind me who proposed Resolution 308 to rescind Resolution 281???
Carol Voyles says
Pete Lesher proposed rescinding Resolution 281.
Reed Fawell 3 says
Somehow I missed this September 2021 Gallagher Evelius & Jones legal opinion. It’s a significant document in this controversy. Has it ever been responded to publicly or privately? Or has it simply been ignored?
Mike McConnel says
I remember Dan introducing me to the sitting Council, I believe handing out copies of the opinion and me offering to answer questions. There were none and I never received any comment or inquiry from the Council or its staff. I think they must have stuffed the letter down a rat hole where, of course, it remains out of sight, out of mind.
Mike
Reed Fawell 3 says
Thank you Mike. Your answer seems to me quite telling, given later events, including the last Council meeting, where the substance of the Gallagher opinion was at the VERY LAST MINUTE in practical affect rejected 16 months after Gallagher law firm wrote it, without any public discussion point by point with its merit or substance. Nor indeed without any attribution or even mention of the Gallagher opinion letter at all, much less with a “Office of the Law” opinion in writing at all, or even the appearance of the “public service” lawyer who wrote it. Yes, stuffed in a rat hole, indeed. All accompanied by the Council President’s admonition at the hearing’s end against opponents future “rallying” in public to express their opposition to the Lakeside. It seems that rat hole now has expanded into the size of Steven Hawking’s Black Hole.