Over the pleas of his colleagues, Talbot County Council Vice President Pete Lesher introduced a resolution Tuesday night to rescind Resolution 281, in which the county supported the request of Trappe and a developer to amend the county’s comprehensive water and sewer plan for the Trappe East project.
The other four members of the Talbot County Council cited legal advice that the resolution, if approved, would accomplish nothing.
“My goal in this process is to give the issue a fresh public hearing for the benefit of both proponents and the skeptics,” Lesher said. “Resolution 281 came to the council at a time of a series of higher profile issues. And we’ve heard from a growing number of constituents who are concerned that their issues with this were not heard.
“And among those concerns is a provision of Resolution 281 that will allow the first 120 homes to be connected to Trappe’s existing secondary wastewater treatment plant, an outdated plant that discharges nutrients into an impaired waterway,” he said. “Trappe does eventually plan to upgrade this plant to modern ENR discharge standards, but that upgrade is still years away.”
County Attorney Patrick Thomas said the council’s approval of Resolution 281 essentially was the preliminary approval to change the water and sewer plan.
“(U)nder state law, once the council approves these comprehensive water and sewer plan amendments, they then have to go to MDE for final approval,” Thomas said. “MDE can then can deny it, they can approve it, they can amend it in part, they have … the final authority on that.”
After the council approved Resolution 281, the proposed amendment was sent to MDE, which approved it in November 2020.
“And then those amendments became part of the comprehensive water and sewer plan,” Thomas said. “So at this point, there’s nothing … for the council to rescind. (Y)ou gave your preliminary approval, it went on to MDE, they issued the final approval.”
The only way to undo Resolution 281 would be for the council to approve another amendment to the comprehensive water and sewer plan to revert it to its pre-281 status and for MDE to then approve that amendment, he said.
Councilman Frank Divilio said he had concerns about the Trappe East project, but rescinding Resolution 281 would be “a waste of time.”
Councilman Corey Pack agreed.
“I think that the county attorney has already laid out, succinctly, that 281 has already been incorporated to the comprehensive water and sewer plan and I don’t know how many times he can say that,” Pack said. “There is nothing here to rescind. This is a bridge to nowhere…. (I)t doesn’t accomplish anything.
“There is a way by which if you wanted to remove the changes of 281 from the comprehensive water and sewer plan, you would need to amend the comprehensive water and sewer plan,” he said. “This just doesn’t do it. Mr. Lesher, I’m sorry, it’s really putting the council in a bad position to put something on the agenda for a public hearing, which you very well know is not going to accomplish anything.”
Pack also noted that Resolution 281 contained some beneficial compromises between the county, town, and developer.
“There are those things built into 281 that were good. Going from a 2-foot freeboard to a three foot freeboard was a good thing. Going from 60 days of holding time to 75 days of holding time was a good thing,” he said. “So not everything in 281 to my point of view was bad.
Council President Chuck Callahan and Councilwoman Laura Price agreed that rescinding Resolution 281 would have no effect.
“I think there are some valid concerns and questions that need to be answered,” Price said. “But like my other colleagues, this is not the vehicle to do that.”
Price said the council would be able to make a more informed decision “on whether or not we … need to amend the comprehensive water and sewer plan” to address Resolution 281 after the Maryland Department of the Environment’s public hearing on the discharge permit for the Trappe East wastewater treatment plant.
That hearing had been set as a virtual hearing in early September but has been changed to an in-person hearing in late October at the Talbot County Community Center.
Asked what would happen if the council approved Lesher’s resolution, Thomas, the county attorney, said, “I don’t think it would have any effect. It’s not amending the comprehensive (water and sewer) plan.”
After additional discussion, a majority of the county council voted to schedule a public hearing for the rescission resolution at 6:30 p.m. Oct. 12.
jeff haynes says
the developer with such deep pockets should be able to pay for town of trappe sewer upgrade
Dan Watson says
Methinks the Council doth protest too much.
That the new Acting Council Attorney proclaims something, an idea unsupported and naked as a jay bird, does not make it true. Asked by Mr. Divilio what would happen if 281 is rescinded, the Council’s lawyer proclaimed “It would not have any effect.” Wonder of wonders, that is exactly what the four on the Council who so strongly support the developer want to hear. Backed by that pronunciamiento from the COUNTY ATTORNEY(!!!), the four proceeded to jump on Mr. Lesher and try to beat him up. Pete held his ground and a hearing on rescission is set for October 12th.
If you’re not 76 and haven’t spent five decades in the muddy trenches of the business world — more specifically, the real estate development world — you might not know that when a lawyer says something that alone does not make it true. Even so for an Acting County Attorney recently hired on a short-term contract. What? He’s going to tell his client, the Council, something it doesn’t want to hear?
The “Comments” section of the Spy is not the forum to detail a legal analysis, so instead just consider this:
Why would the four council members so adamantly supporting the Lakeside developer fall all over themselves pounding on Mr. Lesher not to introduce his resolution, if in reality nothing is going to change if it passes or not? And why were they so emphatic, ad nauseum, that what everyone has to do instead of asking for rescission of 281 is to go to the MDE hearing and give them comments and questions and complaints about the Lakeside sewer system?
Well maybe it’s because rescinding 281, in fact, would be very meaningful, putting Lakeside on hold until the Planning Commission’s questions are all properly answered and we all know what MDE’s final discharge permit says. Then can the developer can come back to the County for a new approval. Kvetching to MDE at its hearing, on the other hand, might feel good, but the developer still has the County’s green light, so it’s still full speed ahead. However long it takes MDE to straighten out a permit, the developer can still charge ahead since he plans to hook up the first 120 houses to the existing antiquated Trappe plant, not the new one.
The strategy we witnessed unfold on Tuesday night was exactly as predicted in Mondays “Focus On Talbot” article.
DELAY—Council members were not subtle about it. The word was used five times as they forced Mr. Lesher’s hearing from September 14th to October 12th–after they failed to beat him into submission. Delay means rescission won’t matter if the developer meanwhile can get vested. See below.
INDEPENDENT COUNSEL—Acting County Attorney Thomas, not well known but suddenly the most influential man in Talbot County, alone “proclaimed the law.” And for four council members, that was that. Mr. Thomas did not reference a single authority, case, or statute to back his conclusion–that if the County rescinded 281 it would nevertheless be impossible, in any circumstances, for MDE to in turn rescind its approval, even at the County’s request with a showing that the Planning Commission had encountered new information necessitating the change! “We have no power!” said Ms. Price, describing Mr. Thomas’s convenient take on Talbot County. Pathetic.
BOOMER—Mr. Thomas spoke not a word about the laws governing rescission in Maryland? Nada. The definitive 2017 case upheld by our highest court (Boomer v. Waterman) clearly establishes that a County Commission, a Planning Commission, and other bodies do have the right to rescind an action if it finds new information that in its judgement requires rescission—that is, unless a party has taken good faith action in reliance on the earlier rescission…i.e., “vesting.” The County Attorney knows all about it, but was silent.
VESTING—Rescission is moot if, in good faith, someone has acted in reliance on an earlier decision. That’s fair and logical. But Mr. Thomas sat silent even as four members were pushing for (and achieved!) yet another month-long delay of a hearing on Mr. Lesher’s resolution. Meanwhile, on July 15th, during a different Council-caused delay, the developer began pushing dirt at the entryway of this little Billion Dollar project. How much earth can be moved by October 12th, we wonder? The longer the delay, the more likely the developer can escape rescission based on “vesting”—if, but only if, he can convince a court it was all done in “good faith.” It may come down to that.
DW
Howard Snyder says
Dear Dan: Susan & I tried to listen in on Tuesday evening but had a bad connection. So, thanks to you and the SD coverage we now know what happened.
Question re:vesting! How can the developer claim good faith actions while his 4 supporters on the Council are running interference for him and delaying the process until he has a strong footprint in the development? That is not good faith by the developer but bad faith by CC & developer.
DIRCK BARTLETT says
I watched the County Council meeting and I really think the legal advice they are getting is questionable. If I was fed bad information, upon which I made a decision, and I later found out that the information was incomplete or misleading, I would be furious and I would want a full investigation.
The existing plant is without question substandard. They just denied the hook up of the Howell Point lots (11 lots) in Trappe. One has to wonder how this happened while at the same time the Town of Trappe grants the approval to hook up 120 houses to the substandard plant.
If the developer needs to unload waste from the first 120 homes, they should be forced to pump and haul to an ENR Plant that can treat the waste properly rather than pump it into a plant that discharges poor quality effluent directly into the impaired Choptank River. As a Board of Health, the 4 members of the County Council are dis-regarding their duty to protect the health and safety of the public. This is simply wrong and needs to be corrected. They should be telling the attorney what to do and he should be working on how to get to the bottom of what occurred, not allowing him to say that it is simply too late to change anything.
Robert Flower says
Great for Mr Lesher! And shame on the other members of the council which make you wonder what their interest is? 2500 homes in Trappe is plain crazy. Wilmington is moving south Annapolis is moving east now will Talbot county meet them in the middle?
Jay Corvan Architect says
The recent direction the four of the five Talbot County councilmen have taken in support of the developer is tilting toward overt corruption, at minimum ethical misconduct. Distortion of truth , misrepresentation by council legal representation, should send off red alerts. Can you wonder why county legal representation is on a short term contract and how many acting attorneys has the council burned through to get the stilted decision they seek?
If anyone wanted to find where the majority opinion to support this colossal development came from , follow the money trail. It’s right there in front of us and it’s not unlike a john Grisham novel. Developers via their lawyers are very good a spinning lies and misrepresentations. People who follow these spinners can see a con job right away where those who aren’t used to looking can’t. A developers job is like a magic sliight of hand, look the wrong way and watch your future disappear, if you don’t challenge their purposely wrongful and misleading conclusions they will gain the upper hand. The synicism it takes to pull a “carnival barker” act off is really quite astounding.
And we wonder why American government is held in such bad regard. Queen Anne’s county suffered the same fate by a developer not too long ago where the council was found by the electorate to have acted in bad faith approving development after development against the public interest, were voted out of office , then as a last act of revenge approved another colossal development as their last act before being dethroned. This Talbot episode is likely to have the same ending.
In the future we must learn from our mistakes, The county council should never be given the authority to act without regard to their independent commissioners professional advise. With a development this large, approval should never be granted without being in a voters referendum ticket. A decision this large and daunting for our future cannot be left to an easily corruptible process.
The only person with real accountability and integrity in the recent proceedings is Mr Peter Lesher whose courage and brilliance should be applauded. He should retain his job. The others , in my opinion , have lost that right to represent demonstrating bad faith and obstruction of due process.
Charles Barranco says
Mr Corvan,
Your analysis is, On Point. There is nothing more to be said. You have squarely addressed all the issues and probable corruption.
The Star Democrat has a duty to publish your insightful article.
Thank You
Charles Barranco