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2007
Four Seasons
News...
After The Vote
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Note from KIDL: There have been lots of articles since the State’s decision to deny Four Seasons permit last Wednesday (May 23, 2007).  Made front-page news in just about every paper you can think of.  Below is an Editorial from Sunday’s Capital and an article from Sunday’s Baltimore Sun.  BUT - the one point that seems to keep being overlooked here – the citizens of Kent Island were the original “victims” - first mislead about the scale of this development in 1997, (click for more info) then ignored and further victimized by lame-duck commissioners signing agreements (O'Donnell, McQueeney, and Davis signed the DRRA just One Week after all three lost in the Primary Election)– and it’s taken all these years for the concept of common sense to emerge from a decision-making body.

If you have not written to thank the Governor and Comptroller – please do it now. 

Please Call Or Send Email Of Thanks To:
Governor Martin O'Malley 
410-974-3901 
governor@gov.state.md.us
Comptroller Peter Franchot 
410-260-7801 
pfranchot@comp.state.md.us 

Our say (Capital Editorial):

Kent Island win provides model for local activists

To launch opposition to a development planned for your neighborhood, you need three things: time, passion, and sympathy from someone in public office.

All three ingredients came together for a group of highly motivated activists who waged a seven-year fight against a 1,350-unit development that would have consumed about 370 areas of Critical Area on Kent Island. 

As of now, the activists' persistence seems to have paid off. When all seemed lost, the state Board of Public Works - specifically, two of its three members, Gov. Martin O'Malley and Comptroller Peter Franchot - dealt Four Seasons' developer a setback by rejecting a wetlands permit.

The developer could still win in court, on appeal. But the citizen involvement shows what can be accomplished by people determined to defend the environment. Mr. Franchot said the opponents' passion and depth of knowledge spurred him to vote against the wetlands permit.

After the original project nearly tripled in size, island residents - including housewives, small businessmen and building contractors - formed the Kent Island Defense League. They initially got little support from their county commissioners, who approved Four Seasons - and, in the next election, got drummed out of office for it.

But even with the arrival of new and more sympathetic elected officials, the activists were unable to undo the previous commissioners' decisions. And the new commissioners - with Mike Koval and Gene Ransom wisely voting against - signed a legal agreement with the developer requiring them to remain publicly silent about the project.

That silence, ironically, surely contributed to the project's defeat. The Board of Public Works was perturbed about being denied the input of the local governing body. But it was the diehard activists who stepped in and eventually convinced Mr. O'Malley and Mr. Franchot. So the state listened when local elected officials did not.

There are lessons from this:

Never give up on a cause you believe is right. Help can come from unexpected sources. It wasn't the commissioners, or local legislators like Del. Dick Sossi and state Sen. E.J. Pipkin, who stopped the project. It was elected officials who don't even live on Kent Island, but saw the potential environmental damage from such a large project.

It's foolish for elected officials to sign gag orders. This is an abdication of their responsibility to speak for the people they were elected to represent. How can they do that job when they have to remain silent at the most crucial time?

There were too many activists involved in this seven-year battle to mention them without the risk of omitting someone. But collectively they should be acknowledged for plugging away and making a huge investment of time, despite long odds against their success. Even if the state's decision to deny the wetlands permit is overturned, the example they set means that their efforts were not in vain.

Published June 20, 2007, The Capital, Annapolis, Md.
Copyright © 2007 The Capital, Annapolis, Md.


Maryland Board of Public Works rejects
Four Seasons wetlands permit
O’Malley, Franchot vote no, Kopp says yes
By JACK SHAUM
Staff Writer
Published in The Bay Times May 30, 2007

ANNAPOLIS — The State Board of Public Works voted 2-1 May 23 to reject an application for a wetlands permit sought by K. Hovnanian, developer of the proposed Four Seasons age-restricted community on Kent Island.

Gov. Martin O’Malley and Comptroller Peter Franchot both voted “no” while Treasurer Nancy Kopp cast the lone “yes” vote. When the vote was announced, opponents of the project in the back of the room broke into applause.

As of Tuesday, Hovnanian and its attorneys were reviewing the situation and no decision had yet been made on the next course of action.

The board first deliberated the issue on May 9, but deferred a vote because of concerns over the 1,350-home project and a perceived “gag order” on local officials. It then visited the site the afternoon of May 18.

“I’m mindful that the mission of the state is to preserve those wetlands that preserve that estuary (the Chesapeake Bay) and prevent them from being destroyed or spoiled,” O’Malley said, noting that 92 percent of the Four Seasons development would be in a critical area.

The governor cited several reasons for voting against the application.

“Given the size of this development, (1,350) units densely crammed into a critical area of the Bay, given the lack of assurance that this will not, as common sense would tell us, do further damage to the wetlands and the critical areas of the Bay, to say nothing of the public safety concerns which I will leave to the Queen Anne’s County people to figure out how they justify putting (1,350) senior units on an island that gets cut off in a hurricane one storm, I will be voting no on the application for the permit,” O’Malley said.

In explaining his “no” vote, Franchot said he has “very strong concerns about whether this is in the best interests of the state from an environmental perspective.”

“We have lots of dense development,” he said. “Should we have more?”

Franchot also expressed regret the Queen Anne’s County Commissioners did not testify. That followed concerns over a perceived “gag order” growing out of an agreement between the county and Hovnanian in which the commissioners agreed “they shall not directly or indirectly oppose or interfere with any approvals” for the project.

Hovnanian attorneys testified there is no gag order. An attorney general’s opinion said the agreement did not include state-level proceedings and did not prevent any individual commissioner from speaking, according to Franchot’s office. The president of the commissioners said earlier this week they were acting on the advice of counsel.

Kopp, in voting for the permit application, noted the project meets a variety of criteria.

“It’s been approved by the critical areas commission, been approved by the local government, it’s in the growth plan, it’s in the density plan,” she said. “It has conformed to significant agreements with the government. It has cut back by about one-third the size of the development. It’s within two growth areas — Chester and Stevensville.”

She said it has very little negative impact on the wetlands at the site north of Route 50 on Kent Island. But she indicated that it might also be time to consider changing the state regulations governing such issues.

“Were I king of the hill I wouldn’t choose to put the development in this place,” Kopp said.

"I'm not happy in my heart about it either," Kopp said, "but it is important to apply the law and regulations in the consistent way to all people."

Shari Wilson, secretary of the Department of the Environment, also said that while the project meets the requirements now in place “from a regulatory perspective,” it might be time to re-visit the requirements.  "Is it the best we can do?  No," she said in response to a question from the comptroller.  But then she said that because the project meets all the criteria currently in place, the permit should be issued.

Franchot said the "Bay is dying and it's being poisoned and apparently the regulations are permitting it."

John Chew, director of Queen Anne's County Department of Emergency Services, in response to questions from O'Malley about hurricane evacuations, said there is a comprehensive evacuation plan in place for the Delmarva Peninsula.  He said it includes Kent Island, and any evacuations would occur well ahead of any storm.

"We are prepared.  We are in place and ready to move should we have to evacuate," he said.

Both proponents and opponents of the project jammed the hearing room for the four-hour marathon session of the Board of Public Works. 

Queen Anne's County businessman Jim Luff, who was among those testifying on behalf of the project, said the developers have done everything "to meet every level of review, restriction, ordinance," and that Four Seasons is "the right development in the right spot for the right reasons," and will benefit the county.

Chester Riverkeeper Tony Prochaska was one of those testifying against the development.  He said it would "absolutely" have a negative impact on nearby creeks, because of the amount of impervious surface planned for Four Seasons.

"This project directly opposes all the efforts to clean up the Chesapeake Bay, it opposes the efforts of the Chester River Association to protect the Chester River and its tributaries, and it's not in the best interest of the public," Prochaska said.

At one point, the meeting was adjourned for an hour because of noise from the Navy Blue Angels, performing as part of Naval Academy graduation week.

“Maybe that’s the Kent Island air defense,” quipped the governor, a comment that brought a round of laughter in the room.

The board’s vote came after it heard testimony from a number of proponents and opponents. Afterward, some of them spoke about the vote.

“This is as happy as we’ve been in a number of years,” said attorney Daniel Saunders, who has been working with project opponents on a number of legal proceedings. “It’s just a real victory for these guys. They worked hard for five, six, seven years.”

Former County Commissioner Mike Koval, an opponent, said he was “pleasantly surprised,” adding that “they claim to be an environmental board.”

Linda Friday, executive director of the Queen Anne’s County Chamber of Commerce and a proponent, called the vote “unfortunate for Queen Anne’s County and the business community.”

Doug Shreve, executive director of Business Queen Anne’s and a proponent, said he was “disappointed” because of its effect on the local economy. But he said the denial doesn’t mean the entire project is dead.

“They can re-design and go around that but it’s a decision K. Hovnanian will have to make,” Shreve said. 

That decision has yet to be made, according to John Zink, attorney for Hovnanian.

"We're probably going to appeal, but a series of meetings is being held to decide," Zink said Tuesday.  If there is to be an appeal, it would probably be filed in Queen Anne's County Circuit Court, he said.

When asked what other options are open to the company beyond an appeal, Zink said he didn't want to speculate at this point.

(KIDL disputes that this project "meets a variety of criteria".  The DRRA was signed in 2002 AFTER the election by lame-duck Commissioners - why not BEFORE the election if it was such a good deal?  The settlement agreement on the DRRA lawsuit by the next board (2003) was vehemently objected to by 2 Commissioners - Koval and Ransom, who refused to sign it.  The project is still in the courts.  The Critical Area maps were wrong.  And we all know by now how the property was put in the growth area in the first place - with the presentation of 400 homes and a golf course back in 1997, a far cry from the plan that was presented in 1999/2000 for 1500 houses, condos, apartments, a commercial center and assisted living center - oh yes, and no golf course.  Even the fashion in which the property received Critical Area approval is subject to suspicion.  The following letter to the editor from Jim Campbell of QA Conservation says it well.) Read Campbell's Letter Regarding This Article

KIDL Web Guy Adds: This was included in the original sketch plan approval, which was later changed.  From Resolution/ Bill  01-013    April 2001.

 WHEREAS, on April 26, 2000 the Planning Commission for Queen Anne's County (the "Planning Commission") approved a sketch plan depicting the development scheme for the Subject Property*, consisting of a planned unit development of 1,006 active adult, age restricted dwellings, 300 apartment units***, 150 condominiums***,  approximately 95,000 square feet of commercial space and an  assisted living facility** collectively known as Four Seasons on Kent Island  (hereinafter referred to as the "Four Seasons"). 

 KIDL Web Guy notes: *Subject Property is Four Seasons    /   **88 Bed Assisted  Living Facility   ***The 300 apartments and 150 condos were originally NOT age restricted. 

 KIDL Web Guy asks regarding number 2 below:  what is status of "a complimentary health  care related use must be agreed to prior to the execution of the Development Rights and Responsibilities Agreement. "   If this issue was not taken care  of, is DRRA invalid?  Should it have ever have been signed? 

" 2.  Make all reasonable efforts to retain the 80-bed assisted living facility  within the  proposed project, or an equivalent assisted living facility or  comparable use be provided off site.  Should this condition be unachievable, a  complimentary health care related use must be agreed to prior to the execution  of the Development Rights and Responsibilities
Agreement. "  end quote

Note the words MUST and PRIOR.   COMPLIMENTARY is an interesting word too.
Where is the "off site" location of the "agreed to prior" (to signing the DRRA) complimentary health care facility?  Street address please.  Thanks, KIDL Web Guy


Four Seasons ruling points to flaws in state regulations 
Editorial, The Capital 

If ever a single proposed residential development - and the fight over whether to build it - were worthy of a book, that development would be Four Seasons on Kent Island. Seven years ago, K. Hovnanian Cos. secured the approval of the Queen Anne's County commissioners to build 1,350 age-restricted homes on property that is mostly in the Critical Area adjoining the bay and its tributaries. The developer even got the approval of the state Department of the Environment, which thought the project would actually improve water quality.

What Hovnanian couldn't get was the support of the vast majority of area residents. And despite being outmaneuvered by the developer's army of attorneys, they didn't give up.

They voted out of office the long-time commissioners who approved the project. They replaced them with commissioners sympathetic to their cause - but unable to reverse the binding last-minute actions of their predecessors.

All appeared lost - until the project came before the state Board of Public Works for a routine wetlands permit. Two of the board's three members - Gov. Martin O'Malley and Comptroller Peter Franchot - finally saw what residents had seen all along: This project is too big for Kent Island and too much of an environmental threat to the Chesapeake Bay. They voted against the permit - giving Kent Island residents a huge victory.

Not only does this appear to spare Kent Island from a massive development that seemed inevitable, but it signals to other developers that the state is finally getting serious about environmental preservation.

How could a seemingly obvious threat to the environment get the approval of state agencies? Because the developer had satisfied the legal requirements and persuaded regulators that its management of the site would be an improvement. This may give Hovnanian grounds for an appeal in court, but it also shows that the laws are faulty. If Mr. O'Malley and Mr. Franchot see this, they should initiate change.

The developer has a right to be angry. It was strung along for seven years and did everything the law - and the state - asked.  (note from KIDL Postmistress:  ARGHHH!  what about the citizens being deceived and marginalized by our elected officials for many more than 7 years????)  But we hope that anger does not take the form of a lawsuit. Hovnanian's investment may make it hard to back out of the project, but surely there is a compromise that would allow for less development.

Queen Anne's residents understand that the land cannot stay as it is forever, but their vision - well documented in a growth plan for Kent Island - is of reasonable development that protects the bay and does not overburden local roads and utilities.

Given this setback, we recommend that the developer free the commissioners from the gag order they agreed to as part of a legal settlement, drop the current agreement with the county, and reopen discussions.

Published May 27, 2007, The Capital, Annapolis, Md. 
Copyright © 2007 The Capital, Annapolis, Md. 


http://www.baltimoresun.com/news/local/bal-md.kent27may27,0,2682329.story 
From the Baltimore Sun 
Permit denial stirs anger 
Some want to protect bay; Kent Island rejection devastates others 
By Timothy B. Wheeler, Sun reporter, May 27, 2007

The state Board of Public Works' unusual decision last week to deny a crucial permit to a large, long-planned waterfront community on Kent Island has developers crying foul and warning that more sprawl could result.

Environmentalists, meanwhile, say the state board's last-minute derailment of the Four Seasons project in Queen Anne's County highlights the need for more stringent controls on development to protect the Chesapeake Bay.

It remained unclear last week what would become of the eight-year-old plan to build 1,350 homes for "active adults" on former farmland near the eastern end of the Bay Bridge. The vast majority of the 562-acre tract lies within a state-regulated "critical area" bordering the bay and its tributaries.

Lawyers and a spokesman for K. Hovnanian, the New Jersey-based developer proposing the Four Seasons, have not returned calls since the 2-1 vote by the state board Wednesday denying the project a permit to disturb a small patch of tidal wetlands and water. The two board members denying the permit were Gov. Martin O'Malley and Comptroller Peter Franchot, with Treasurer Nancy Kopp dissenting.

The president of the Queen Anne's County Board of Commissioners predicted that the project would not go forward. The permit that was denied is needed in part for outfall drains to funnel storm water from the site into nearby creeks. Storm water management measures are legally required for any development.

"It's likely they'd have to go back to the drawing board and start over," said Eric S. Wargotz, president of the county board.

John E. Kortecamp, executive vice president of the Home Builders Association of Maryland, called the state board's vote against the development "devastating" to business' trust in government. He noted that the state secretaries of planning and environment had both told the board the development complies with existing laws.

"When a business, I don't care what the business is, spends years investing and preparing for a project, complies with all the laws and regulations, and [the project] gets tossed out, it's mind-boggling," Kortecamp said.

Chris Rachuba, president of the Baltimore-area homebuilders group, said the project's denial represents a challenge to the state's decade-old Smart Growth law, which aims to encourage development in and around existing communities. The project was in an area designated for growth by the county, and it would have been served by public water and sewer.

With planners projecting that the Eastern Shore's population could grow by 150,000 people in the next 20 or 30 years, Rachuba said, "we need to have a place to put them." He contended that a relatively dense development such as Four Seasons would cause less harm to the bay than spreading all those new residents out on 3- and 4-acre rural lots with wells and septic systems.

The governor attempted to reassure developers that the rules for getting real estate projects approved haven't been thrown out.

O'Malley said there are many suitable places to build across the state that do not pose the environmental risks the Four Seasons development did.

"There are many pieces of land suitable to build 1,350 homes other than on an island of the Eastern Shore," the governor said, adding: "Common sense should have told [the developers] seven years ago what they were told two days ago."

Environmentalists, while hailing what one called a "landmark" decision in favor of protecting the bay, vowed to hold the governor to his remarks Wednesday about tightening the state's environmental and growth-management laws.

"If this proposal taught us one thing, it's that our laws are not strong enough to protect the bay and the environment," said Kim Coble, Maryland executive director of the Chesapeake Bay Foundation. She blamed a "piecemeal" review of the project by local and state governments for letting the Four Seasons project get as far as it did.

Of particular concern, she said, is the state's 23-year-old Critical Area law, which is supposed to limit development within 1,000 feet of the bay and its tributaries.

Under the law, counties are allowed to designate some of their undeveloped shoreline for growth, and Queen Anne's officials did that for the Four Seasons project. The local decision was approved several years ago by the state Critical Area Commission.

"Just because you can build in a Critical Area doesn't mean you should," Coble said.

Four Seasons is the second large-scale development proposed for the Eastern Shore to be derailed by a state agency after winning local approval. The Critical Area Commission blocked a 2,700-home golf resort last fall near Blackwater National Wildlife Refuge in Dorchester County, and the state later bought most of the land to preserve it.

Such large projects "are really illuminating the gaps, the inadequacy of our current regulatory scheme," said Dru Schmidt-Perkins, executive director of 1000 Friends of Maryland, which advocates compact development.

Schmidt-Perkins, who helped organize a series of growth-planning forums across the state last year, expressed sympathy for developers, but said the public is sending a message that "growth doesn't have to go just anywhere."

David Bliden, executive director of the Maryland Association of Counties, warned against any move to strip local officials of their traditional control over land use.

"You want the decision-making not only by the people most accountable," he said, "but also by the people who are most familiar, literally, with the landscape."

However, Jay Falstad, spokesman for the Queen Anne's Conservation Association, said only the state's intervention blocked the Four Seasons project. County voters ousted elected officials who had approved the development five years ago, but the new commissioners found their hands tied by an agreement signed by their predecessors with the developer.

"If we want to have a clean, healthy bay, then obviously we're going to have to enact some reforms on where this building is going to go," Falstad said. He urged lawmakers to revive "green fund" legislation that died this year, which would have levied fees on new development in an effort to curb polluted runoff.

Meanwhile, the local political landscape has shifted underneath the Four Seasons project. And if the developer does go back to the drawing board, county officials have already taken steps to pare back the number of homes that can be built there by two-thirds. The county commissioners recently approved a new plan for the area that calls for allowing no more than 400 homes on the land.

tim.wheeler@baltsun.com 
Sun reporter Phillip McGowan contributed to this article. 
Copyright © 2007, The Baltimore Sun 

RESPONSE TO THE PRECEEDING ARTICLE:
To the Editor: 

The developers’ PR machine is already at work trying to upset the business community over the Board of Public Works decision against Four Seasons.  The story line is that Hovnanian spent years complying with all the laws and regulations and then unexpectedly had the rug pulled out from under them at the very end of the process.  The decision is “devastating to business’s trust in government”, says a developer spokesman in the Sunday Baltimore Sun. 

This nonsense is probably not even believed by the people who are putting it out.  I offer three points, out of the many that could be made. 

First of all, Hovnanian calculatedly assumed the risk that they could stuff a huge development in the Critical Area down the throat of Kent Island residents.  Hovnanian signed the DRRA for Four Seasons with lame-duck County Commissioners who had been voted out of office for supporting the project, and thereafter they repeatedly used litigation and threats to bully their way forward against fervent opposition from citizens.  Those who live by the sword know that at any moment they may die the same way. 

Second, Hovnanian had not complied with all the laws and regulations and was not near the end of the development process.  At the time the Board of Public Works acted, serious legal objections to regulatory approval of the first phase of the project were still to be presented to the County Board of Zoning Appeals. Litigation challenging the legal authorization for intense development in the Critical Area was still ongoing in Maryland appellate courts.  Not having yet been approved to build a single unit, Hovnanian was in reality closer to the beginning of the development process than to its end. 

Third, the possibility that a particular project may not be built is part of the business model of a national developer.  Developers like Hovnanian can make hundreds of millions in profits on a single large project like Four Seasons.  Such out-sized economic returns on the projects that do get built pay for the projects that don’t get built – the same way that profits on approved block-buster medications pay big pharmaceutical firms for all their drugs that don’t make it through the pipeline, or the profits from gushers pay oil companies for all the dry holes.  Four Seasons is just one project among many in the Hovnanian portfolio, and other businesses should remember that before getting all weepy about losing their “trust in government”. 

For the rest of us, our trust in government was renewed by what happened in Annapolis last Wednesday – elected leaders who couldn’t be overwhelmed and intimidated took an unbiased look at Four Seasons and came to the right, common sense conclusion about it. 

Jim Campbell, Queen Anne’s Conservation Association 


Permit rejected for KI project :
Future of Four Seasons development unclear 
By LIAM FARRELL Staff Writer, The Capital, May 24, 2007 

The fate of a controversial development on Kent Island - and the severity of state environmental development regulations - now hang in the balance after the Board of Public Works denied a permit to build within wetlands. In a 2-1 vote yesterday, Gov. Martin O'Malley and Comptroller Peter Franchot voted against allowing K. Hovnanian Cos. to build a pile-supported bridge, a stormwater management system with 18 discharges into tidal waters, water and sewer lines and a community pier as part of the Four Seasons development.

Treasurer Nancy Kopp voted to support the permit.

The 1,350-unit project has a tumultuous history of lawsuits, objections over environmental impact and a 2003 settlement agreement that has prevented Queen Anne's County Commissioners from voicing their opinions about the state permit.

Ultimately, the likelihood that a development consuming more than 370 acres in the Chesapeake Bay's critical area would damage the bay led Mr. O'Malley to vote down Four Seasons.

Despite all of the other development standards the project had met, Mr. O'Malley said, the board must decide whether it's in the best interests of the state.

"This is not a canine hurdle exercise. This is part of a legal process," he said. "The mission of the state is to preserve those wetlands."

Now the developer faces the task of regrouping and re-evaluating building and planning options. Under state law, the board's decision can be appealed to the Circuit Court for Queen Anne's County within the next 30 days.

Officials representing Four Seasons have previously said a denial could necessitate going back through the review process, but declined to speculate on the repercussions during breaks in yesterday's hearing.

Three K. Hovnanian attorneys - Nancy Slepicka, John Zink and Joseph Stevens - didn't respond to messages seeking comment before press time.

Steve Cohoon, acting director of the Queen Anne's County Department of Planning and Zoning, was also unavailable for comment.

The commissioners will meet with their attorney over the next two or three weeks and see what agreements with K. Hovnanian are still valid in light of the denial, said Eric Wargotz, the commissioners' president.

It doesn't seem likely that much construction can take place without the state permit, he said.

"They really can't (build). The stormwater part is critical to the entire project," Dr. Wargotz said. "It could (stop the project)."

Overall, the state's decision will be received well on Kent Island, he said.

"I think a majority of the community will be pleased by this decision," Dr. Wargotz said.

Kent Island resident Ron Elasik echoed that feeling after the vote.

"I felt like crying," he said. "Finally, right now we have a state government which is really listening to the people."

Still absent

Besides the environmental concerns, Mr. Franchot also objected to the project's process - specifically, the settlement agreement that kept the county commissioners away from the second floor of the State House.

"I really see it as a velvet glove over an iron hand," he said. "It's a sad day in Maryland, and I hope when all is said and done we never see this type of action again."

Under the settlement, commissioners had to "acknowledge and agree that they shall not directly or indirectly oppose or interfere with any approvals for the development of Four Seasons in accordance with (a development rules and regulations agreement)."

On Monday, the Office of the Maryland Attorney General said the order applies only to local, not state, approvals, and that it doesn't prevent individual commissioners from speaking.

The advisory included a caveat, however, that the decision was nonbinding and could still result in legal action. Patrick Thompson, the attorney for Queen Anne's County, saw that as a reason to maintain silence.

"Given the uncertainty … the safest course of action for the county is for them not to testify or take any official position with regard to the wetlands permit," a May 22 letter from Mr. Thompson to Mr. Franchot says.

The absence of the commissioners was regrettable, Dr. Wargotz said.

"It is extremely unfortunate that we were unable to express our views," he said.

The uncertainty was not shared by John B. Howard Jr., the deputy attorney general and one of the authors of the advisory letter.

"The answer is very clear that this agreement does not bind the county … from expressing its views on state (permits)," Mr. Howard told the board. "I think it's a red herring, I really do."

During the hearing, however, Mr. Zink justified the agreement as the only way K. Hovnanian could guarantee that rules for the project weren't arbitrarily opposed or changed.

"How do we control the risk a commissioner will step outside the four corners of this peace treaty? The county agreed, without a gun to their head … they would accept the risk," he said. "I believe they are trying to fairly, and with integrity, uphold their responsibilities."

Any breach of the agreement resulting in the delay of the project would cost the county $100,000 to $250,000 a month, and an "incalculable" amount of money if the violation resulted in the development being scrapped, Mr. Zink said.

Despite the current settlement, Mr. Franchot said lawyers should think twice about subjecting representatives to those restrictions.

"It's resulted in such a public relations stigma," he said. "I hope in the future … we don't see this type of action on elected officials."

Needed reforms

All three members of the board agreed that current state regulations for environmental development are inadequate.

Shari T. Wilson, secretary of the environment, and Richard Hall, secretary of planning, said the site of the development and its environmental impact were undesirable over the long-term.

However, despite those reservations, Four Seasons had met the letter of the law with critical area regulations and local planning guidelines, they said.

"We know we have to do something different," Ms. Wilson said. "At every (regulatory) level … we do have to tighten it up if we are going to meet our Chesapeake Bay restoration goals."

Keeping regulations that allow harmful growth around the bay is not correct policy, Mr. O'Malley said.

"If they are predictably detrimental, it would seem we should not approve them," he said.

But the board can't hold Four Seasons hostage to an ideal, Mrs. Kopp said, and the project must be subject to the rules in place now.

"(The rules are applied) consistently and equally so we have a system of law and not just ad hoc judgment," she said. 

Published May 24, 2007, The Capital, Annapolis, Md. 
Copyright © 2007 The Capital, Annapolis, Md. 


Maryland Board of Public Works rejects
Four Seasons wetlands permit
O’Malley, Franchot vote no, Kopp says yes
By JACK SHAUM
Staff Writer, The Star Democrat
May 24, 2007

ANNAPOLIS — The Maryland Board of Public Works voted 2-1 Wednesday to reject an application for a wetlands permit sought by K. Hovnanian, developer of the proposed Four Seasons age-restricted community on Kent Island.

Gov. Martin O’Malley and Comptroller Peter Franchot both voted “no” while Treasurer Nancy Kopp cast the lone “yes” vote. When the vote was announced, opponents of the project in the back of the room broke into applause.

The board first deliberated the issue on May 9, but deferred a vote because of concerns over the 1,350-home project and a perceived “gag order” on local officials. It then visited the site the afternoon of May 18.

“I’m mindful that the mission of the state is to preserve those wetlands that preserve that estuary (the Chesapeake Bay) and prevent them from being destroyed or spoiled,” O’Malley said, noting that 92 percent of the Four Seasons development would be in a critical area.

The governor cited several reasons for voting against the application. 
“Given the size of this development, (1,350) units densely crammed into a critical area of the Bay, given the lack of assurance that this will not, as common sense would tell us, do further damage to the wetlands and the critical areas of the Bay, to say nothing of the public safety concerns which I will leave to the Queen Anne’s County people to figure out how they justify putting (1,350) senior units on an island that gets cut off in a hurricane one storm, I will be voting no on the application for the permit,” O’Malley said.

In explaining his “no” vote, Franchot said he has “very strong concerns about whether this is in the best interests of the state from an environmental perspective.”

“We have lots of dense development,” he said. “Should we have more?” 
Franchot also expressed regret the Queen Anne’s County Commissioners did not testify. That followed concerns over a perceived “gag order” growing out of an agreement between the county and Hovnanian in which the commissioners agreed “they shall not directly or indirectly oppose or interfere with any approvals” for the project.

Hovnanian attorneys testified there is no gag order. An attorney general’s opinion said the agreement did not include state-level proceedings and did not prevent any individual commissioner from speaking, according to Franchot’s office. The president of the commissioners said earlier this week they were acting on the advice of counsel.

Kopp, in voting for the permit application, noted the project meets a variety of criteria. 
“It’s been approved by the critical areas commission, been approved by the local government, it’s in the growth plan, it’s in the density plan,” she said. “It has conformed to significant agreements with the government. It has cut back by about one-third the size of the development. It’s within two growth areas — Chester and Stevensville.”

She said it has very little negative impact on the wetlands at the site north of Route 50 on Kent Island. But she indicated that it might also be time to consider changing the state regulations governing such issues.

“Were I king of the hill I wouldn’t choose to put the development in this place,” Kopp said. 
Shari Wilson, secretary of the Department of the Environment, also said that while the project meets the requirements now in place “from a regulatory perspective,” it might be time to re-visit the requirements.

Both proponents and opponents of the project jammed the hearing room for the four-hour marathon session of the Board of Public Works. At one point, the meeting was adjourned for an hour because of noise from the Navy Blue Angels, performing as part of Naval Academy graduation week.

“Maybe that’s the Kent Island air defense,” quipped the governor, a comment that brought a round of laughter in the room.

The board’s vote came after it heard testimony from a number of proponents and opponents. Afterward, some of them spoke about the vote.

“This is as happy as we’ve been in a number of years,” said attorney Daniel Saunders, who has been working with project opponents on a number of legal proceedings. “It’s just a real victory for these guys. They worked hard for five, six, seven years.”

Former County Commissioner Mike Koval, an opponent, said he was “pleasantly surprised,” adding that “they claim to be an environmental board.”

Linda Friday, executive director of the Queen Anne’s County Chamber of Commerce and a proponent, called the vote “unfortunate for Queen Anne’s County and the business community.”

Doug Shreve, executive director of Business Queen Anne’s and a proponent, said he was “disappointed” because of its effect on the local economy. But he said the denial doesn’t mean the entire project is dead.

“They can re-design and go around that but it’s a decision K. Hovnanian will have to make,” Shreve said. 
Attorneys for Hovnanian and company officials could not be reached after the meeting. 


http://www.baltimoresun.com/news/local/bay_environment/bal-te.md.kent24may24,0,26784.story?coll=bal-home-headlines
From the Baltimore Sun 
Kent Island project is denied key permit 
State board decision shows new sway of environmentalists 
By Timothy B. Wheeler, Sun reporter, May 24, 2007

Amid warnings that Maryland's development laws and regulations are not strong enough to protect the Chesapeake Bay, the state Board of Public Works denied yesterday a key wetlands permit for a proposed 1,350-home waterfront community on Kent Island.

In the most substantial evidence yet of the growing influence of environmentalists in Annapolis, the board voted 2-1 to deny the developer permission to disturb a small patch of wetlands for the proposed 562-acre Four Seasons project.

"This is really important," said Cindy Schwartz, executive director of the Maryland League of Conservation Voters, "and I think it sends an incredible signal to the Marylanders out there who want to clean up the bay."

Gov. Martin O'Malley, one of the three board members, said the New Jersey-based development firm, K. Hovnanian, had failed to prove that granting the wetland permit would not harm the bay, even though the developer had pledged to replace the lost marshy area.

O'Malley said the project was the largest single bayfront development proposed since the state began regulating waterfront construction in 1984, and he questioned the "common sense" of "cramming this many units" so close to the troubled estuary and on a low-lying island vulnerable to flooding in a hurricane.

Joining the governor in opposing the permit was Comptroller Peter Franchot, who also lambasted what he called a "gag order" imposed by the developer on local officials. Queen Anne's County's commissioners declined to attend yesterday's hearing, pointing to a 2003 settlement of a lawsuit between the developer and a previous board of county commissioners, which holds the county liable if officials do anything to undermine the project.

Treasurer Nancy K. Kopp cast the sole vote in favor of the permit for the development. Kopp said that while she favored tightening environmental and growth management laws, she believed the developer had met all laws and rules now on the books.

The unusual vote by a state board to block a large development proposal illustrates how environmentally oriented the state government has become since O'Malley and Franchot, two Democrats, took office and joined the board in January.

Schwartz said the vote validates the backing environmentalists had given Franchot and O'Malley against Comptroller William Donald Schaefer and Gov. Robert L. Ehrlich Jr. in last fall's elections. She said she's seen a "sea change" in Annapolis "from the governor on down, to want to work with environmentalists." O'Malley backed "clean cars" legislation that passed this year, as well as a "green fund" that did not.

The tenor of the four-hour hearing suggested that the environmental push might increase in the coming year, as state officials and activists alike voiced concern about the adequacy of growth-management and environmental laws, particularly the 1984 law limiting development within 1,000 feet of the bay and its tributaries. More than three-fourths of the Four Seasons tract lies in state-regulated "critical area."

"We have to do something different regarding land use," said state Environment Secretary Shari T. Wilson. "It's a major factor impacting the bay."

K. Hovnanian was seeking a state wetland permit to build a bridge over a tributary of the Chester River and a 500-foot pier for docking residents' boats at the "active adult" community. Lawyers for the firm could not be reached for comment after the vote, but one, Joseph A. Stevens, said earlier yesterday that denial of the permit would have "substantial impacts" on the project because plans called for the bridge to provide the only road access to part of the site.

The developer previously had signed a development agreement with Queen Anne's officials pledging to provide up to $40 million worth of needed public improvements, including a wastewater treatment plant and support for fire and ambulance service.

But the project became a lightning rod for public discontent over the pace and scale of growth on the Eastern Shore. Queen Anne's voters ousted incumbent commissioners who supported the development, prompting officials at one point to back out of their agreement with the developer - only to be sued.

Local business leaders and a few residents attended yesterday's hearing to show their support for the development. "I love the Eastern Shore," said Jim Love, who described himself as a lifelong resident of the peninsula.

The rural character of the region has been changing since the Bay Bridge was finished in the early 1950s, he said, a fact he lamented. "But I know change is constant, [and] we have to adapt and work with it."

Environmental and civic groups urged the board to deny the permit, noting that the development poses threats to the bay from polluted storm water washing off the roofs and pavement, and from the sewage that the added residents would generate.

The state environment and planning secretaries said the development complied with local and state laws and regulations, though each expressed discomfort with having so many homes and so much pavement so close to the bay.

"It may not be the best place to put dense growth," said Richard E. Hall, state planning secretary. But he pointed out that the state's Smart Growth policy calls for concentrating development to spare farmland and forests from being bulldozed for sprawling suburbia. The land on which the community would be built was designated for growth by Queen Anne's County officials, Hall noted, and it received "growth allocation" from the state's Critical Area Commission, which regulates bay-front development.

"The bay is dying," responded Franchot. "It's being poisoned. Apparently the regulations are permitting it."

"It seems to me there is not enough teeth for central planning in your shop," O'Malley told Hall, especially when it comes to the Critical Area law.

Environmental officials noted that the legislature recently passed new storm-water management legislation intended to cut down on pollution being washed off developed land into streams by rainfall. The law, to take effect this year, should reduce harm to the bay from development, officials said, though they acknowledged that would not be enough.

"We need to do much more in that direction, throughout the state, much more aggressively," said Robert Summers, deputy environment secretary.

Lawyers for the developer argued yesterday that the Four Seasons project had met every legal requirement set by the county and the state and deserved the permit. They offered to make their project a test site for the new storm-water runoff controls.

Previewing the argument that might be used in yet another lawsuit over this case, an attorney for the developer also suggested that the state board was legally required to make its decision only on what would happen to the several hundred square feet of wetlands that would be affected.

Kopp sided with the developer, saying that while she also would rather not see such a large-scale residential project along the bay, "it is also very important that laws and regulations of the state be applied consistently and fairly to all persons, so we have a system of laws" and not ad hoc decision-making.

O'Malley and Franchot rejected the argument.

"I am certainly sympathetic to the fact ... they have jumped through every hoop," the governor said, "but this is not a canine hurdle exercise."
tim.wheeler@baltsun.com 
Copyright © 2007, The Baltimore Sun


http://www.washingtonpost.com/wp-dyn/content/article/2007/05/23/AR2007052301345_pf.html 

Md. Panel Blocks Project Near Bay
Kent Island Homes Needed Last Permit

By Lisa Rein
Washington Post Staff Writer
Thursday, May 24, 2007; Page A01 

The Maryland Board of Public Works yesterday rejected a wetlands permit for a development of 1,350 homes on an island just east of the Chesapeake Bay Bridge, a project Gov. Martin O'Malley said would be so damaging to the bay it would not be in the state's best interest.

Explaining his vote after eight hours of testimony from opponents and the developer of Four Seasons at Kent Island, O'Malley (D) noted that K. Hovnanian had followed the rules and acquired every other necessary permit from local and state government.

Gov. Martin O'Malley speaks to reporters after touring the proposed Four Seasons site. He voted against it, saying he feared it would damage the bay. (By Melina Mara -- The Washington Post) 
"They have jumped through every hoop," said the governor, who serves on the public works board. "But this is not a canine hurdle exercise. Given the lack of assurance that this will not do further damage to wetlands in critical areas . . . I'm voting no."

The 2 to 1 vote -- with Comptroller Peter Franchot (D) joining O'Malley and Treasurer Nancy K. Kopp (D) voting yes -- was hailed by environmental advocates as a sign of the new governor's commitment to environmentally friendly land-use policies as cleanup of the Chesapeake Bay has become a litmus test for Maryland politicians.

The vote was a defeat for the Washington region's second-largest residential builder, whose proposal for an active-adult community has roiled politics in Queen Anne's County for eight years. An otherwise routine permit request exploded into two days of testimony from environmental experts, activists and lawyers, as the board confronted the effect that stormwater runoff from the project would have on the already polluted bay. The site is bordered by water on three sides and is the largest stretch of environmentally sensitive land in Maryland.

"My goodness. The bay is dying," Franchot said.

It was unclear yesterday whether Hovnanian would abandon the project, scale it back without building on the wetlands portion of the 562-acre property or seek to overturn the board's decision with a legal challenge.

O'Malley, Franchot and Kopp expressed frustration with the state's longstanding policy of allowing local governments to set aside protected land for development, and in the case of Four Seasons, designate it a "smart growth" area to be densely built.

"Were I king of the hill, I wouldn't choose to put the development in this place, either," Kopp said in explaining her vote. She urged "reforms of our laws" that allow builders to develop Maryland's shoreline. But she said it would be unfair to change the rules to penalize one developer who had followed them.

Hovnanian had sought permission to build a pile-supported bridge, a small marina, a clubhouse and utility lines on less than an acre of wetlands. The permit was the final hurdle before construction and critical to the project. Several attorneys for the developer left the State House hearing yesterday without commenting. Franchot said he believes the project is dead without a wetlands permit.

Mark Stemen, president of Hovnanian's active-adult division, said last week that the company would weigh its options if the wetlands permit were denied.

Hovnanian officials said their community of condominium towers and single-family homes would generate tax revenue and jobs for Queen Anne's. And they said runoff from the project would add less pollution to the bay than runoff from the farm now on the property. Local Chamber of Commerce officials testified in favor.

"While you may want to see some of the state laws and land-use regulations change, to start ad hoc changing that at the end of this process would be a mistake," Joe Stevens, an attorney for Hovnanian, told the board yesterday.

But opposition from Kent Island activists proved overwhelming. The controversy has consumed local politics with lawsuits and countersuits, bloggers and new community groups, a gag order on county commissioners and recrimination from voters -- who in two elections routed a majority of commissioners who supported the project.

"I have heard [from the developer] that only a few people in Queen Anne's County are opposed to Four Seasons and most don't care," said Raymond Simmons of the opposition group Citizens Alliance to Save Our County. But "nobody who signed a pledge ever made it through the primary."

Much of the opposition focused on an agreement commissioners signed with Hovnanian in 2003 not to say anything negative against Four Seasons in public. The settlement came out of a lawsuit the developer filed against the county for stalling the project.

Franchot called the agreement a gag order. In an opinion issued this week, the attorney general's office said it is legal for a local government to agree to restrict its criticism. But the opinion said the restriction should not apply to business before the state -- and should not preclude a commissioner from speaking out as an individual.



Kent Island Permit Rejected
By Lisa Rein
Washington Post Staff Writer

The Maryland Board of Public Works this afternoon rejected a state wetlands permit for a development of 1,350 homes on the Eastern Shore, a project Gov. Martin O'Malley said would be so damaging to the Chesapeake Bay it would not be in the state's best interest.

Explaining his vote after eight hours of testimony from opponents and the developer of Four Seasons at Kent Island, O'Malley (D) noted that developer K. Hovnanian had followed the rules and acquired every necessary permit from local and state government.

"They have jumped through every hoop," said the governor, who serves on the public works board. "But this is not a canine hurdle exercise."

Also, the Attorney General's office weighed in on a controversial agreement by Queen Anne's County officials not to speak ill of the residential project the developer wants to build on Kent Island.

The county commissioners agreed not to speak publicly against Four Seasons at Kent Island in a court settlement with Hovnanian several years ago. The Board of Public Works--which consists of Gov. Martin O'Malley, Comptroller Peter Franchot and Treasurer Nancy Kopp-- has raised questions about the agreement as it decides on the wetlands permit.

No county officials have testified on the proposal for 1,350 homes on environmentally sensitive land surrounded on three sides by water. Franchot and opponents of the project have called the agreement a gag order.

In an opinion sent yesterday to the Board of Public Works, Deputy Attorney General John B. Howard Jr. wrote that it's legal for a local government to agree to withhold opposition to a project. But he said that a gag order does not apply to a proceeding involving a state wetlands license.

"If construed to apply to statements of individual commissioners with respect to a State wetlands license application, it would be equivalent to [a gag order]," Howard wrote. Such a provision would be of doubtful legality."

Lisa Rein


May 23, 2007 4:34 pm US/Eastern
WJZ 13 We Site

Kent Island Development Rejected
ANNAPOLIS, Md. Maryland's development rules need a dramatic overhaul.

That's according to top state officials who rejected plans Wednesday for a mammoth Kent Island development that met current rules for development on ecologically sensitive land. 

The Board of Public Works voted two-to-one to reject a wetlands permit that was needed to build a Four Seasons development on a waterfront parcel on the eastern side of Kent Island. 

The decision brings an apparent halt to a project under intense debate for eight years. If approved, it would have been the largest ever built in a so-called "critical area," or ecologically sensitive land. 

Lawyers for the developer did not talk to reporters after the decision. But the board's decision does not necessarily mean no homes can be built on the parcel north of Route 50. A spokesman for the developer said last week that K. Hovnanian would try again on the project if denied the wetlands permit. 

Board members -- including Governor Martin O'Malley -- said that regulations need to (be) updated to prevent similar situations of big developments coming to critical areas lands. 

(© 2007 The Associated Press. All Rights Reserved. 



FROM WBAL TV 

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Development Along Waterfront Rejected

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Kent Island Development Rejected
WBAL TV 
POSTED: 4:59 pm EDT May 23, 2007
UPDATED: 7:11 am EDT May 24, 2007

ANNAPOLIS, Md. -- Maryland's development rules need a dramatic overhaul, top state officials said Wednesday in rejecting plans for a mammoth Kent Island development.

The Board of Public Works voted 2-to-1 to reject a wetlands permit that was needed to build a 1,350-home Four Seasons development on a waterfront parcel near Chester on Kent Island.

The decision brings an apparent halt to a project under intense debate for eight years. If approved, it would have been the largest ever built in a so-called "critical area," or ecologically sensitive land.

"It's a project of monumental environmental proportions," said Comptroller Peter Franchot, who voted against the permit. The developer, K. Hovnanian, needed state approval to build sewer lines and a bridge over Cox Creek.

Before rejecting the permit, though, board members spent four hours combing through state development rules. The builder met all requirements for winning the wetlands permits, but Franchot and Gov. Martin O'Malley argued that it was proof the requirements need to change.

"Isn't there a point at which our understanding and common sense should not be derailed by outmoded practices" on approving permits, O'Malley asked.

Even state Treasurer Nancy Kopp, who ultimately voted for the permits, said the long debate over the Kent Island project showed a need for new development rules.

"Were I king of the hill," Kopp said, "I wouldn't choose to put this development in this place."

The Four Seasons neighborhood, which would've consisted of 930 single homes, 420 condominiums and a dock, has proven one of the thorniest matters in the last decade for officials in Queen Anne's County.

The county is subject to intense development pressure from people seeking waterfront vistas and cheaper homes than available in Baltimore or Washington, and growth questions are a divisive matter in Queen Anne's.

Last week, the board visited the proposed Four Seasons site and was met by sign-waving protesters on both sides.

On Wednesday, dozens squeezed into a conference room in the State House for a final hearing. Though the meeting was briefly interrupted by whooshing jets booming outside -- as the Blue Angels put on their annual air show to honor commissioning at the U.S. Naval Academy -- residents on both sides waited hours to hear the decision.

"This project directly opposes all the efforts to improve the Chesapeake Bay," said Tony Prochaska, head of the Chester River Association.

Lawyers for the developer did not talk to reporters after the permit denial, but the BPW decision does not necessarily mean homes cannot be built on the parcel north of Route 50. A spokesman for the developer, Patrick McNeally, said last week that K. Hovnanian would try again on the project if denied the wetlands permit.

State officials who reviewed the Four Seasons project said they had reservations about it, even as they conceded it met requirements for approval.

Shari Wilson, the state environment secretary, said her agency recommended approving the Four Seasons' wetlands permits, even though scientists feared the development could harm the Chesapeake Bay.

While the project met state requirements, Wilson said, "we have to do something different with regard to land use" in order to restore the bay.

A lawyer for the developer, Joseph Stevens, testified that the developer jumped through all the hoops required to begin construction.

"We believe in good faith that we have complied with and gone above and beyond the measures in place now," Stevens said.

Kopp sided with the developer and called on state regulators to review development procedures in the wake of the Four Seasons case.

"The whole system needs to be changed," she said.
Copyright 2007 by wbaltv.com. WBAL email



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