The plan to remake central Columbia is both enforceable and safe despite developer General Growth Properties' bankruptcy woes, the Howard County Council heard during its first work session on two proposed bills Monday evening.
Council members appeared reassured after the two-hour discussion, though Alan Klein, leader of a citizens group that has criticized the plan, remained skeptical.
"We can be confident we have in front of us the plan and zoning that is enforceable. We can start working on the details," council Chairwoman Mary Kay Sigaty said as the session ended. Amendments will be drafted to make sure, she said. "My goal is for it to be enforceable," she said after the meeting.
Other members also seemed satisfied.
"It allows me to go forward with more peace of mind, and look at details," said Ellicott City Democrat Courtney Watson. The discussion involved Deputy County Solicitor Paul Johnson; Jay Shulman, a private attorney hired as a consultant; William Erskine, a development lawyer who has studied recent court decisions on land use; Gabrielle Koeppel, a GGP official; and county planning director Marsha McLaughlin.
The council has plans for four more work sessions, starting Monday and continuing Dec. 2, Dec. 7 (after the regular 7:30 p.m. council legislative session) and Dec. 8, according to Sigaty, a west Columbia Democrat. All the meetings except Dec. 7 will begin at 4:30 p.m. at school board headquarters.
How to enforce aspects of the 30-year plan contained in a proposed General Plan amendment and how to make sure GGP's bankruptcy doesn't result in the loss of expensive amenities that are the heart of the huge plan were two major fears the council heard in three days of public hearings earlier in November. The second bill is a Zoning Regulation Amendment, which contains the legal basis for the zoning changes needed to allow the plan to happen.
The overall plan calls for up to 5,500 new residences, 4.3 million square feet of new commercial offices, 1.25 million square feet of retail space, hotels and a renovated Merriweather Post Pavilion. But also included are cultural buildings, large public plazas and walkways, a new transit stop and potentially a new interchange on U.S. 29.
But the lawyers said the two bills could be linked by language that would ensure that if the amenities aren't built, then the entire project would stop, even if GGP is forced to sell pieces of its holdings to other builders.
"What could we look at in our legislation to help protect the county and its citizens?" Fulton Republican Greg Fox asked.
"You want to know that regardless of who owns property, they're going to fulfill the obligations," Shulman replied.
"Do you have any concerns that if we pass this legislation, it could be undone in bankruptcy?" asked Councilman Calvin Ball, an east Columbia Democrat.
"On the whole, no; it's very unlikely," Shulman replied, adding that he knows of no situation in which land use laws were negated by a bankruptcy.
Councilwoman Jen Terrasa, a King's Contrivance Democrat, said the development would merely stop if the amenities were abandoned, not go forward without them.
"The risk to the county, the harm that would happen, is nothing would happen," she said. "It protects us from folks going forward without providing the amenities."
Sigaty also was reassured.
"The fact that GGP is in bankruptcy doesn't really affect what we're doing here," she said.
Johnson said the key to enforcing what is in the General Plan, which is considered a guide to development but not actual zoning law, is to link the two documents by language that refers to specific zoning provisions.
"I don't see any problem with enforceability at all," he said.
In addition, once zoning is approved, individual pieces of the plan must still go before the county planning board for further scrutiny.
"You don't get your Final Development Plan approved unless you show it's consistent with a whole slew of things," Johnson said. The key to making sure the General Plan is legally enforceable is not to duplicate the zoning language in the General Plan or vice versa, but to use language to link the two.
"You can't just make your General Plan your zoning. Put zoning matters in the zoning documents and planning matters in the General Plan amendment," he said, but refers to specific sections of the zoning in the planning language.
Erskine was asked to explain the implications of a legal case called Terrapin Run, in which the Court of Appeals ruled that approval of an Allegany County development was not necessarily subject to the county's General Plan. Erskine said the case was different because that zoning and the General Plan were not specifically linked. "You have absolutely the right through your zoning regulations to make the General Plan applicable," Erskine said.
Ball asked one more time as the session wound down: "Do any of you think that the Terrapin Run case means our zoning would not be enforceable?" All the lawyers said "no."
Still, Klein, a spokesman for the citizens group Coalition for Columbia's Downtown, watched from the back of the room but remained unconvinced. He wants General Plan language inserted into the zoning.
"I have not heard anything that says 'Why not be sure?' " Klein said. "Look who is advising them. Erskine is a development attorney."