A group of Carroll landowners and homebuilders will begin a head-on assault against the county's growth freeze this week with a series of appeals designed to force an appointed panel to reverse the county commissioners' efforts to slow development.
The county Board of Zoning Appeals is scheduled to hear the first three cases today and 12 more by the end of the week. The administrative appeals are the first steps in landowners' legal battles against the one-year freeze, which closed the door to new subdivisions on land covered by adequate facilities laws designed to prevent growth from overwhelming county services. The freeze, which began June 10, has delayed development on about 1,700 lots that passed earlier stages in the county's subdivision review process.
One developer, JFJME Family LLC, has sued the commissioners in an effort to overturn the freeze, although no hearing dates have been set.
It's unclear whether the appeals board has the authority or inclination to overturn a policy decision such as the growth freeze, and this week's hearings might only serve as preliminary steps toward more court challenges against the commissioners.
"They probably think this is the process they have to go through to get to the courts," said appeals board member Jacob Yingling, who said the five panel members have not discussed how they will handle the cases.
Yingling said he could imagine the Board of Zoning Appeals intervening if a landowner could demonstrate that county staff members have not carried out the commissioners' policy correctly or that the policy itself is ambiguous. "But for the most part, we do not set policy, and we cannot rule something unconstitutional," he said. "Only the court can do that."
Although the appeals hinge on the same issue, the appeals board has to hear them individually, said county attorney Kimberly Millender. The panel generally deliberates and makes decisions directly after its hearings.
Today's cases include two from developer Forty West Builders Inc. that would add 131 lots around Mount Airy.
Forty West founder Steve Costello has argued that the freeze puts into jeopardy a $6.8 million loan the company received to help it buy the land for the subdivisions. Because of the freeze, the bank could ask Forty West to pay back the loan immediately, a hardship that would devastate the small family company, Costello told the county commissioners when he asked them for an exemption to the law last week.
Like many others affected by the measure, he had received certificates from the county saying his projects would not strain county fire, school, water and road services. Costello said he obtained his loans on the assumption that the certificates guaranteed his right to proceed.
The commissioners say they are following through on campaign promises to stop growth from overwhelming county services.
Developers say the commissioners are breaking promises by halting work on projects that had received the certificates.
The conflict has dominated county politics this year. But such issues rarely reach the Board of Zoning Appeals because the panel is designed to review administrative - not policy - decisions.
The cases scheduled for this week are appeals to letters that planning director Steve Horn sent to developers in June, informing them of the commissioners' decision to impose the freeze. Those letters are administrative actions and qualify as appeals to go before the board, land-use attorneys say.
But the appeals board probably would not be able to rule in favor of the landowners without overturning the commissioners' legislative action, a move that would fall outside the panel's jurisdiction, Millender said.
"That's usually something that would happen in Circuit Court," the county attorney said.
Several attorneys said they filed appeals to the Board of Zoning Appeals as a way of laying groundwork for challenges in Circuit Court.
Westminster land-use attorney Clark Shaffer, who filed more than a dozen appeals to the board, has said he would not take the cases to a judge before exhausting every option for administrative appeal. Fellow Westminster attorney David Bowersox has said the same thing.
Some developers have requested exemptions for senior housing and assisted-living facilities. The commissioners have granted one exemption - for a $40 million, 100-unit expansion at Fairhaven Retirement Community in Sykesville.