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Fox wants limits on county's ability to condemn land

To build a road in Clarksville connecting Great Star Drive to Auto Drive, as the county is proposing, a few local businesses would have to sell some of their land.

But if the businesses are not willing sell, the county could use its power of eminent domain, the legal process under which a local government can condemn property for public use.

Concerned about that prospect, County Councilman Greg Fox plans to introduce an amendment to the county charter regulating the county's ability to use that power. The Fulton Republican said he will introduce his amendment at the council's meeting Tuesday, Sept. 6, the first following its August recess.

"Concerns over eminent domain are something that I have talked about throughout both of my campaigns," Fox said. "It's always been something that's been there on my mind.

"Now, seeing what's going on with the county executive and the whole Clarksville Gateway project, I have several concerns of the egregious things that have been occurring surrounding that project."

County Executive Ken Ulman said he would never use eminent domain for private economic development, but would consider it as a last resort when land is needed for traffic safety improvements. However, he noted he is committed to working with property owners in Clarksville to develop mutually acceptable solutions.

Fox's concerns started in July when the county terminated its agreement with GreenStone Ventures to develop the former Gateway School property, a 7.8-acre parcel located off Route 108, into a mixed-use center.

GreenStone was not interested in closing on a deal without access to the property from Great Star Drive, a county road. But Kendall Hardware, directly to the left of the Gateway site, owns the driveway that would serve as a natural extension to Great Star Drive on the north side of Route 108.

Steve Kendall, the store's owner, said he was willing to sell the county an easement so it could extend the public road for access to the Gateway site. But Ulman said there was a huge discrepancy between what Kendall believed the easement was worth and what the county believed it was worth.

By terminating the agreement with GreenStone, Fox said he worries the administration is setting up a scenario that would make it easier to argue Kendall's land, and that of other area businesses, is needed for public use and therefore should be condemned.

Ulman: Limits already exist

Fox's proposed charter amendment, which if passed by the council would still have to be approved by voters through a ballot question in the 2012 election, says "the power of eminent domain may only be used to acquire property for public purpose or public use; and may not be used for purpose of economic gain."

Land acquired under eminent domain, the amendment adds, "is not considered to be for a public purpose or public use if the property is transferred to a private entity for the primary benefit of the private entity."

Fox said the amendment "may not occur in time to necessarily help the situation, (but) it can help highlight the situation."

But Ulman said regulations on condemnation already exist. When he served on the council, Ulman said he introduced a resolution, adopted unanimously, to prohibit the county from using eminent domain for private, economic development gains.

"That continues to be my view," he said.

Ulman added: "I know other people want to read in ulterior motives, and that's their right."

Council Chairman Calvin Ball, meanwhile, said any proposed amendments to the county charter should be discussed with the Charter Review Commission, which has been meeting for the past several months.

"I would question the timing and motivation of any charter-related legislation that hasn't been discussed with that group," the Columbia Democrat said. "The most transparent and thoughtful way to address charter amendments at this time is to discuss it with this group."

As for the merits of Fox's proposal, Ball added: "I am unaware of any current or future problems that this amendment addresses."

Fox: 'Whole thing is disturbing'

Fox's concerns about eminent domain were heightened when he found out the county was proposing a capital project that would create the access to the Gateway site that GreenStone had wanted.

The Ulman administration presented a proposal to the county Planning Board Aug. 4 for a $4.3 million road project to "study, acquire necessary rights-of-way, and construct a new road to connect Auto Drive, Great Star Drive and Maryland Route 108," according to a county budget document provided at the meeting. The justification for the project was that it "will improve access and circulation in this location" and "provide an access easement to the Gateway School site."

Ulman said "the county has been talking about a bypass, about better road connections for decades," but the Gateway redevelopment "created a sense of urgency" to make the improvements.

The administration originally proposed $1 million for the project in Fiscal Year 2012, which began July 1, including $400,000 for an engineering study and $600,000 for land acquisition.

But at the suggestion of the county Planning Board, the administration altered the request and asked only for $600,000 for a more detailed engineering study.

"We took the comments seriously as we always do," Ulman said.

The request now is to transfer the money from a project to extend Dorsey Run Road — which Ulman said has been put on hold while CSX Corp. evaluates the possibility of locating its intermodal facility near there — and add it to a project created for road improvements at various intersections.

"It made sense to be a part of that project," Ulman said. "That project was used to do improvements to the intersection at Great Star Drive and Route 108."

But Fox said he believes the administration is no longer proposing a new capital project because that requires at least four council votes for approval, as opposed to the three needed to transfer money to an existing project.

The current proposal does not include an estimate for the total cost of the project. But whatever the county ends up spending, Fox said, would be a lot of money just to provide access to the Gateway site.

"Prior to the Planning Board (recommendation), the county executive was prepared to spend $4.3 million in addition to the money already spent in order to sell a $5 million property," Fox said. "The whole thing is disturbing, very disturbing."

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