A judge in Howard County Circuit Court upheld the county Zoning Board’s denial of a petition to develop a 230-unit apartment building, retail space and a parking garage in the Hickory Ridge Village Center in Columbia.
“I would find that the Zoning Board’s findings were not arbitrary or capricious and that they were supported by substantial evidence,” Judge Michele D. Jaklitsch said in her April 20 ruling.
The petition was submitted by New York-based Kimco Realty, which did not return requests for comment.
Thursday’s decision followed the company’s appeal of the Zoning Board’s 3-2 vote on Dec. 1, 2021, to reject the development, which sparked more than 70 hours of public hearings. During those hearings, many residents said the proposed development would increase traffic, overcrowd schools and urbanize the village center.
“We’re very pleased,” said G. Macy Nelson, a land use attorney who represented the Hickory Ridge Community Association in the case. “For the applicant to argue there was inadequate evidence, that argument was dead on arrival.”
Hickory Ridge, which includes the neighborhoods of Hawthorn, Clemens Crossing and Clary’s Forest, has more than 4,700 housing units and 13,000 residents, making it Columbia’s second-largest village.
Kimco’s proposal required amending Columbia’s Preliminary Development Plan in order to reconfigure Hickory Ridge’s core into a courtyard plaza surrounded by 35,216 square feet of new retail and commercial space as well as a four-story apartment and retail building with 393 parking spaces.
Under county law, all zoning amendments and approval of development plans fall under the authority of the Zoning Board, which is composed of all five County Council members. Amendment petitioners must demonstrate their plans comply with applicable zoning regulations.
Supporters of Kimco’s plan cited the group’s redevelopment of the Wilde Lake Village Center into a mixed-use neighborhood with 230 residential units and hoped for similar revitalization in Hickory Ridge. But a majority of the Zoning Board ultimately found that height, placement and square footage of the proposed residential spaces would “overwhelm” all other uses in the village center.
“The lack of any affordable housing component in this mixed-use proposal, coupled with an acknowledged reduction in public green space and accessibility, was fatal,” wrote District 1 council member Liz Walsh in her concurring opinion.
Council members Deb Jung and David Yungmann also votedto deny Kimco’s petition, while Opel Jones and Chair Christiana Rigby voted not to deny.
In Thursday’s appeal hearing, Kimco counsel Sang Oh’s two-pronged argument centered on Jung’s refusal to recuse herself from the Zoning Board decision and claimed that the board relied on subjective standards while deciding the case.
Jung had testified against the development as a then-candidate for the County Council at a January 2018 Planning Board hearing. She was sworn into her District 4 Council seat in December 2018.
“An administrative board member decided she was going to remain and sit in judgment on an application that she had provided public testimony on while running as a candidate,” Oh said during oral arguments. “The other side finds no problem with this.”
The petition first came before the Zoning Board — which considers zoning recommendations from the five-member Planning Board — in July 2019 and Kimco filed its motion for Jung’s recusal on Sept. 28, 2019.
“If there was merit to Mr. Oh’s claim, then I think the judge would have decided in his favor,” said Jung in a phone interview Thursday after the ruling.
As evidence of bias, Oh also pointed to a Maryland Public Information Act request filed by Kimco that obtained hundreds of electronic communications between Zoning Board members and parties in the case. Despite filing the request in February 2022, Kimco did not receive the first records from the county until Aug. 4, prompting the company’s counsel to request a suspension of the board’s July 18 Decision and Order for more time to review the files as they considered an appeal.
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“It was nothing nefarious,” said Jung, speaking to the delayed turnover of the records. “We had a technical issue with the syncing of files in our [Microsoft] SharePoint.”
In his arguments, Zoning Board attorney David Moore downplayed the nature of Jung’s email exchanges with petition opponents and said administrative judges are entrusted to set aside personal biases when making rulings.
“The petitioner’s version of events would suggest the Zoning Board should only consist of individuals naive to what is going on in their own jurisdiction, even though the Zoning Board itself is required to be constituted of elected officials,” Moore said. “The board members are called upon to judge the case based on the record evidence before them and that is what happened here.”
Nelson also questioned why Kimco waited more than 18 months after Jung’s testimony to file the motion for recusal and that even if Jung had recused herself, the resulting 2-2 vote would have still terminated Kimco’s proposal.
“No Maryland court ... has said that if one person shouldn’t have voted, you go back and redo the whole case all over again,” Nelson said. “None of this makes any difference to the ultimate outcome of the case.”
Nelson added that Kimco can still rework their application based on the Zoning Board’s recommendations or further appeal the case to the Appellate Court of Maryland, but noted the latter option would be an uphill battle.
“What strikes me about developers is they’re stubborn,” he said. “Sometimes if they were just less stubborn and listened to what other people were saying, they could get their project done. These guys are stubborn and they ought to go back and retool the plan.”