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now partially constructed and “it seems quite clear that the Project has vested interests and that the permit cannot be rescinded by MDE.”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.