Op-Ed: The Lakeside Development is Not ‘Smart Growth’ by J.T. Smith

For the past two years, Talbot County has been in renewed deliberations about a proposed 2500 home development on the east side of Route 50 in Trappe. Many of the particulars of the matter involve land-use planning, water and sewer priority categories and disputes about relative roles of town, county and state authorities. The following is an effort to describe the history and substance of the “Lakeside” debate in the simplest terms possible.

The debate over the Lakeside project (formerly “Trappe East”) began 20 years ago. Accordingly, many of the particulars are somewhat obscure to current Talbot residents and even to some of their elected representatives. Over the long history of this project there have been numerous changes in the makeup of the County Council and the membership of the County’s Planning Commission. Moreover, there remain inherent complexities to state and local laws regarding comprehensive land-use planning and associated approvals for water and sewer infrastructure.

Through great personal endeavor, Dan Watson, an experienced real estate professional, has shined a bright light on the curious and troubled history of planning and permitting for Lakeside. Dan’s efforts are distinct from litigation brought by the Chesapeake Bay Foundation and Shore Riverkeepers. This litigation relates principally to perceived technical defects in permits issued by the Maryland Department of Environment (“MDE”) for management of sewage and wastewater to be generated by Lakeside. The pending litigation has generated public interest and concern regarding Lakeside, but as a legal matter, it does not address Lakeside’s prospective effects on fundamental quality of life and adequacy of public services in Talbot County. A review of the decades long history of Lakeside reveals that the County is at the precipice of final approval of Lakeside– without full and fair evaluation or debate of these potential, fundamental consequences.

Chapter One

The story of Lakeside occupies two separate but interrelated chapters. Chapter One began decades ago in Talbot County’s long-term development planning. Planners identified the Town of Trappe as a potential location for population growth, consistent with principles of “Smart Growth” – a popular late 20 th century planning concept. Like many broad labels, “Smart Growth” can mean different things to different people. But, properly conceived, “Smart Growth” emphasizes sensible land use planning to encourage infill and restoration of existing towns and cities, and their expansion without random sprawl. It also means development that takes close account of the environment and natural resources, as well as possible impacts on educational facilities, public services and transportation. 

A development that may quintuple the population of Trappe and, in the near term, further stress its aging wastewater treatment system and the impaired surface waters to which it discharges is hardly plausible as “Smart Growth.” 

Nevertheless, under the banner of “Smart Growth,” in the early 2000’s the Town of Trappe annexed approximately 900 acres of farmland to the East of Route 50.  Thereupon, Trappe, in conjunction with a prospective developer, Rocks Engineering ( the“Developer”), relatively promptly applied to the County for a significant amendment to the County’s Comprehensive Water and Sewer Plan(‘CWSP”). This amendment was to enable a development of more than 2000 homes and some light commercial development on the newly annexed farm lands. It proposed construction of a large “spray irrigation” facility to manage household sewage and wastewater pursuant to an MDE groundwater discharge permit. It also contemplated routing wastes from the first 250 houses to be built to Trappe’s existing wastewater treatment facility (“WWTP”) requiring certain construction permits from MDE.

The County Council in December 2004 unanimously disapproved Trappe’s application. Though the Council issued a set of legal and technical findings in denying Trappe’s submission, those with memory of the event recount that the Council was deeply concerned by the prospect of development on such a scale in Trappe.  Under Maryland law, properly construed and applied, the County’s rejection of Trappe’s request for a comprehensive plan amendment should have barred MDE from issuing the groundwater discharge and construction permits necessary for the Lakeside development to proceed. Nevertheless, Trappe and the Developer didn’t take “No” for an answer. In a still somewhat opaque fashion, they persuaded the MDE to grant the necessary sewage and wastewater management permits within two years from Talbot County’s rejection. Public Information Act inquiries by Dan Watson about MDE’s actions have uncovered vigorous private action by Trappe’s counsel, intervention by State Senator Rich Colburn and a statement of concern about the process by an MDE employee. In 2006 MDE expressly countermanded the County Council’s rejection of Trappe’s application, stating that it was giving significant weight to the “desires and intentions” of Trappe. 

Notwithstanding MDE’s extraordinary action, economic forces intervened. The Developer had awaited permitting before finalizing acquisition of the annexed properties from the town. As this process was completed, the great recession of 2008 loomed, and the Lakeside project entered a protracted period of suspension. In 2009 at the request of the Talbot Preservation Alliance, MDE began an inquiry into the propriety of its permit proceedings. MDE dropped this inquiry once Trappe and the Developer in 2010 wrote MDE to withdraw the construction permits.

Chapter Two

For a decade the “Trappe East” or “Lakeside” drama faded from public consciousness. It re-emerged (somewhat quietly) in early 2019 when Trappe and the developer applied to MDE for renewed permitting. Late in 2019 Trappe and the Developer acting jointly (the “Applicant”) reinitiated proceedings before the County Council to amend the CWSP to embrace wastewater infrastructure to support a projected 2500 home and commercial development in the annexed property East of Route 50. In this process the Applicant represented that the project already enjoyed the requisite planning status at MDE in light of the 2006 permits, but did not explain that they had been issued despite the County’s rejection of Trappe’s application in 2004. 

Amendments to the County’s CWSP must be certified by the County’s Planning Commission as consistent with the County’s Comprehensive Development Plan and approved by the County Council.  If the Applicant and MDE had full confidence in the legal position that the 2006 action of MDE was sufficient, it seems very unlikely that they would have deemed this process necessary. (Possibly, the course pursued by the Applicant was urged by MDE in light of the genuine issues raised about its potentially improper action in the course of the 2006 permits.) In the event, Applicant’s counsel in Spring 2020 proceedings urged the Talbot Planning Commission to take account of MDE’s prior action as establishing necessary priorities for water and sewer development. 

In June 2020 the Planning Commission narrowly (3-2) certified consistency for the Applicants proposal, and in August the County Council approved (4-1) a resolution that would make the requisite plan changes to underpin the MDE permit. It deserves emphasis that the members of the Planning Commission and County Council had not been involved in the related and flawed  proceedings more than 15 years prior. They may well have been influenced, however, by the Applicant’s assertions that water and sewer planning for Lakeside was essentially “old news.” Additionally, the 2020 proceedings at the County level transpired during Covid restrictions on public meetings, which inhibited full and robust public debate about the implications of Lakeside planning approvals.

Four important developments have raised public awareness about Lakeside beginning in the spring of 2021.  First, as an outgrowth of litigation about the MDE’s Clean Water Act discharge permit for the Developer’s proposed very large spray irrigation system, MDE agreed to hold a second public hearing. Second, and even more significantly, Dan Watson petitioned the County Council to rescind its August 2020 approval of Lakeside. Though the Council opposed Watson’s petition, his ongoing efforts to raise community consciousness continue unabated.  Third, in July 2021 notwithstanding public ferment, the Developer began significant, visible site preparation work at Lakeside. Fourth, Watson and others have brought focus upon the Developer’s plan to route wastes from first phase of development (120-140 homes) to Trappe’s existing wastewater treatment plant (WWTP). This system is struggling with permit compliance handling wastewater from approximately 400 homes in Trappe. Moreover, investigation of the situation at the headwaters of La Trappe Creek that receive discharges from the Trappe system show severe contamination. 

These factors and the opening up of public life from pandemic restraint have energized public concern about Lakeside and the conduct of the County Council and MDE.  Concern about the inadequacy of the Trappe WWTP has led the Planning Commission in November of 2021 to withdraw is certification of consistency for the Applicant’s plans, which include initial tie in to this facility. It has led one councilmember to propose rescission of the Council’s August 2020 approval and another to propose modifying amendments to address the concern about the Trappe WWTP.  And, in light of these developments, MDE has asked the County and the Planning Commission to clarify the status of Applicant’s proposal before it moves to final action on its permit. The Council and the Planning Commission have separately responded to MDE with contradictory answers.

Doubtless, Talbot citizens may have difficulty following the complexities that surround this important public policy matter.  What is not confusing, however, is the fact that we remain precipitously close to final governmental approvals that will enable quintupling the size of the town of Trappe and potentially rapidly increase the population of Talbot County. Yet the planning and legal processes that have brought us to the edge of this precipice have not allowed a full public weighing of consequences for quality of life, traffic, public services and public facilities, including education and health care. 

Surely, the citizens of Talbot County and the Mid-Shore deserve better.

J.T. Smith II served in the CIA, the Department of Health Education and Welfare, the Department of Defense, the Department of Justice, the Department of Commerce and the Department of State before becoming a partner in the law firm of Covington & Burling. He retired to Easton in 2005.