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Zoning office's lawyer moves to dismiss case Board may vote tonight on Ellicott City dispute


All of Lee Walker Oxenham's hard work might come to nothing.

For the past several months, Oxenham has devoted much of her time to disputing a proposed 11-home development on 10 acres of land off Bonnie Branch Road near her Ellicott City home.

But late Tuesday night, after Oxenham finished being cross-examined before the Howard County Board of Appeals, Paul Johnson, attorney for the county planning and zoning office, moved to dismiss the case. He argued that Oxenham and other citizen activists had not proved that there was "substantial evidence of arbitrariness or capriciousness or error of law" by the county.

Two board members -- Robert G. Sharps and James Pfefferkorn -- voted to dismiss the case, said Robin Regner, staff member for the board of appeals. A third member, George C. Layman, declined to vote, Regner said, and chairman Jerry L. Rushing "was reluctant to make a decision" right away. The fifth member, Donald Messenger, had not heard all the testimony and could not vote, Regner said.

The board is expected to vote on whether to dismiss the case at a working session scheduled at 7: 30 p.m. today. If they vote not to dismiss the case, further testimony will be heard at a meeting Feb. 11.

In his argument to dismiss the case, Johnson said the Department of Planning and Zoning did nothing illegal in granting a waiver to Ron Wildman, the developer.

"There's been absolutely no testimony that this is unusual in any way or that the Department of Planning and Zoning did anything wrong," Johnson said.

"Basically, they [Oxenham and other citizens trying to stop the development] disagree with the policy of Howard County that allows waivers."

Oxenham and other citizens have disputed a waiver that would allow Wildman to build a road to seven of the 11 houses he wants to build on his lot.

But Thomas E. Dernoga, the lawyer for the citizens, argued that "these waivers are handed out like penny candy" and that this runs contrary to the public's best interests.

"Essentially, this property was bought for a song," he said. "Now, you're certainly entitled to make money in this country. My clients did not indicate that you couldn't. What they did have a problem with was somebody taking advantage of a loophole, creating a loophole and getting a windfall profit. That's a different story."

Johnson had a different view.

"That's really not the issue, whether he makes money or not," Johnson said. "Unlike in a communist system, you are allowed to make money in this system."

Johnson acknowledged that "ecologically, the best thing here is for this property not to be developed." But he said that's beside the point.

"The only issue here is whether the Department of Planning and Zoning was arbitrary and capricious," he said. "That's the only issue here."

Pub Date: 12/17/98

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