As supporters and opponents of the Lakeside development in Trappe await a new state hearing on the project’s wastewater discharge permit, Talbot County is being asked to revoke its approval of changes to the county sewer plan related to the project.
Petition 21-01 would rescind Resolution 281, which primarily amended the county water and sewer plan to:
• reclassify and remap certain areas of the Lakeside property from W-2 to W-1 and from S-2 to S-1. W-1 is immediate priority status for water; S-1 is immediate priority status for sewer and
• add the Trappe East water and sewer systems to the list of capital improvement projects.
The petition notes that the discharge permit for the wastewater treatment plant that will serve Lakeside has been sent back to the state environment department for additional public comment and a public hearing.
The proposed resolution included with the petition would not allow the county to consider any changes to its water and sewer plan related to the Lakeside project until after the state issues a final discharge permit, the final permit’s terms and conditions have been reviewed by the county planning commission and public works advisory board, and ShoreRivers’ case regarding the permit has been “fully resolved.”
ShoreRivers Inc. had sought judicial review of the final discharge permit issued by the Maryland Department of the Environment for the Lakeside project. The environmental group asked the court to send the permit back to MDE for additional public comment and hearing. (The Chesapeake Bay Foundation had filed a separate case also seeking judicial review of the permit.)
In seeking a remand to MDE, ShoreRivers said the final permit issued by the state differed substantially from the draft permit that had been the subject of public comment and a public hearing. The group also said the nutrient management plan for the project also had not been available for review and comment.
Lawyers for the property owner and the town had agreed with the request to send the issue back to MDE and Talbot’s circuit court judge entered an order April 27 remanding the permit to MDE for “… a public comment period of not less than 30 days and a public hearing to hear comments on, and any objections to, the nutrient management plan and the final terms and conditions of the (p)ermit….”
An MDE spokesman said Friday that the department has not yet finalized the opening date for the public comment period and has not scheduled the public hearing.
The petition notes the arguments in the ShoreRivers case, suggesting that the council’s approval of Resolution 281 relied on recommendations from the county planning commission and the public works advisory board that were based on a review of the draft permit.
A lawyer for Lakeside’s owner, Trappe East Holdings Business Trust, said it “strongly disagrees” with the premise of Petition 21-01.
“The County Public Works Advisory Board, Planning Commission and County Council reviewed complete information regarding the pending resolution and further considered the resolution after the County Council introduced Amendment No. 1,” attorney Ryan Showalter said in a statement. “One of the principal reasons the applicants initiated the Resolution 281 amendment was to update the provisions of the County Comprehensive Water and Sewerage Plan to provide for current, state-of-the-art ENR wastewater treatment technology, rather than the BNR specification that has been in the County Plan since 2002.
“Contrary to TEHBT’s intention, the draft MDE discharge permit was written for BNR-level treatment, not the ENR treatment the developer intends to utilize,” he said. “If there was any inconsistency between MDE’s discharge permit actions and Resolution 281, it was the draft discharge permit, not the final permit, that was inconsistent.”
“The wastewater plans for Lakeside remain entirely consistent with Resolution 281, as adopted,” Showalter said.
The Talbot County Council discussed the petition during its May 11 meeting, with Vice President Pete Lesher seeking clarification on the process. Lesher was the only council member to vote against Resolution 281, which was approved 4-1 on Aug. 20, 2020.
Acting County Attorney Patrick Thomas said the council’s rules of procedure, Section VI, B, say that “once a petition has been presented to the secretary, it shall be certified, presented to the Council and numbered, and the secretary shall maintain a file on the petition.
“Pursuant to section nine of the rules, the secretary shall read the petition by name and title, as she has. And then at that point, the Council may, but is not required, to consider the petition and take any appropriate action,” he said.
Thomas said the petition was asking the council “to adopt a resolution rescinding Resolution Number 281 without prejudice. And under the Council’s rules of procedures, in order to initiate legislation, a member of the council would need to direct the county attorney to prepare” the legislation.
Councilman Corey Pack expressed concern about rescinding Resolution 281, suggesting that doing so could open the entire Lakeside property to immediate development.
“I think we worked very diligently with both the Trappe Planning Commission and the developer to come to a consensus on how the parcel will be built out. And 281 did that,” he said. “It split it up so that one-half will be developed in S-1 and the back half in S-2.
“Removing 281 and opening up that entire parcel up to S-1 development zoning is something that I dread,” Pack said. “I do not think that is advantageous to do that.”
During the process of reviewing Resolution 281 in 2020, the planning commission was told by County Engineer Ray Clarke that the Maryland Department of the Environment considered the entire Lakeside parcel suitable for S-1 designation. The parcel was given the W-2, S-2 designation in 2002, meaning it was suitable for development in three to five years.
Clarke also said during the 2020 review that while MDE put water and sewer plans in the county’s hands, the state agency has final approval. Even if the county had rejected Resolution 281, the town of Trappe could have gone directly to MDE and asked for its approval of the W-1, S-1 designations.
Thomas, in response to a question from Lesher, said a council member could tell him to prepare a resolution based on the petition or the council could gather additional information first.
Councilwoman Laura Price said additional information was needed.
“I think it makes sense for us to gather our own information and make sure that everything is fact based,” she said. “And I think we also understand that this is remanded back to MDE to look at this permit again. So I think it would make sense to wait and see what happens with that and meanwhile gather our own information and we’ll go from there.”
In public comments, Dan Watson, who initiated the petition, said it had been signed by more than 60 people, along with the Talbot Preservation Alliance, as of mid-afternoon May 11.
Watson said he had asked to present the petition to the council, in addition to the secretary’s reading of the short title, but that request was ignored.
While the petition involves the Lakeside project, Watson said “I’m not here to try to stop it, but to see things go right. This petition is about protecting the integrity of Talbot County and its review processes.
“So the purpose is to introduce the resolution so that, in Ms. Price’s words, we can get the information and look into it,” he said. “It isn’t the case that one gets information and looks into it and analyzes it and talks with the planning commission and hears from the public and the public works advisory board in order to determine whether or not to introduce a resolution. It is a resolution is introduced and sets in motion that process.”
In a subsequent letter, Watson said the county council had mishandled the petition by not allowing him to present it.
The council’s rules of procedure (at Section XIII, C) say “When petitions are made to the Council, the persons or parties presenting same shall have the opportunity to state their case by presenting witnesses, exhibits, and other evidence.”
“I am sure the Council will not argue that accepting an unannounced, time-limited phone call from me an hour later, during the public comment period of the meeting, fulfills that requirement,” Watson said in his May 21 letter.
He also suggested that “proper submission of a Petition in and of itself initiates a regular legislative action, and does not require the more familiar step of a Council Member introducing the proposal ….”
But the council’s rules of procedure do not seem to suggest that. Even if the rules did, the state constitution does not allow citizens to initiate legislation.
Section 216 of the Talbot County Charter would have allowed voters to put proposed legislation on the ballot via direct initiative, but the state’s highest court ruled that section unconstitutional in a 1988 case. The Maryland Court of Appeals has repeatedly ruled that voters may not initiate local legislation, including legislation disguised as charter amendments.