is a summary sent to us of excerpts from the official court transcript
of the June 29 hearing. A lot to read we know Ė but very much
worth your time to read and consider. (If you would like a copy
of the entire transcript (60 some pages), you can send
an email and we can forward it.
Dear KIDL Member/Supporter :
I recently had a chance to review a 67 page transcript of the June 29th Circuit Court hearing of Robert Foley, et al, Plaintiff vs Queen Anneís County Commissioners, Defendant (case #10855). K Hovnanian, the developer of the proposed 1,350 unit Four Seasons project on Kent Island, has intervened in the case in support of the QAC Commissioners.
I thought I would submit a brief history of the case and also some excerpts from the hearing. Recent newspaper accounts that I read did not reflect this information. If anyone would like a copy of the entire transcript, let me know.
Brief History :
On August 21, 2001, former Commissioners McQueeney, OíDonnell and Davis attempted to amend the existing QAC Critical Area maps for the Four Seasons project via Ordinance Nos. 01-01 and 01-01A. The ordinances referenced "attached maps". There were no maps attached to the ordinance. The maps were subsequently prepared and signed by the Commissioners on December 4, 2001. When KIDL challenged the ordinances in 2001, one of the issues raised was nonexistent maps and late preparation of maps. The Court, without being informed by QAC of the incorrect and revised maps, ruled against KIDL at that time.
During 2004, citizens reviewing public records related to the Four Seasons project found a different set of Chesapeake Bay Critical Area maps that Commissioners McQueeney, OíDonnell and Davis signed and dated on October 8, 2002. These citizens determined, and QAC has now admitted, that those maps were substantially different from the December 4, 2001, maps and that there had been no public notice or public hearing for the changes made on these 2002 maps. A suit against QAC was then filed by Robert Foley and other citizens to challenge the validity of the original ordinances and the validity of the multiple revisions to the Chesapeake Bay Critical Area Maps.
QAC has admitted that neither the 2001 or 2002 maps were correct, and recently prepared a third set of maps with the help of a firm that had previously worked for the developer. Without consulting independent counsel, Commissioners Cassell, Cupani and Smith signed the last set of maps in open session on May 9, 2006. The portion of the audio tape covering the Commissioners' discussion of the maps during that open session is mysteriously unintelligible, reminiscent of the 18 minute gap in the Watergate tapes. QAC is now attempting to convince Judge Sause that these maps are correct and that they were properly adopted.
To date, it has not been established that even this last set of maps is correct or was legally adopted. Assertions by QAC Commissioners that the Court ordered them to sign the maps were contradicted by the Judge in the excerpts below.
Excerpts from the June 29th hearing :
Judge Sause to defendants, re the original ordinance and "attached" maps :
(page 6) :
Sause : "You forget, you forget, the original Ordinance or the original doctrine, the thing was based upon plats....It was based upon plats. NONEXISTENT PLATS. I mean, you know, how long can this go on?"
Sause : "...the Ordinance relied solely on the so called attached maps, which we all know were not attached."
Sause : "...letís get this straight right now. If the, if the County cannot prepare proper maps articulating what they did, then it terrifies me that they would proceed on what they think they did."
Sause : "The record shows that the County has not been able to interpret what that means. So for the County to use it when they, they admit that they canít interpret it, is unbelievable."
: "The Courtís contention was at the time, it was a carefully guarded secret
that there was a map that had been prepared in the same year as the Ordinance
was adopted and that everyone knew was wrong. That was carefully kept from
this Court....It was also carefully kept from the Court that there was
a second one that wasnít any good. Now, had the Court, or anybody with
any sense had known that, we would not have operated in the way we did....I
really didnít know all the facts. And, I didnít know that there, at that
time, had been two sets of plats....But, whether I would have given those
approvals at that time, I think if I had it to do again, I doubt that I
would do it."
Judge Sause to defendants, re the recent signing of the third set of maps by Commissioners Cassell, Cupani & Smith :
Defendants (quoting from May 9th QAC Commissioner minutes) : "Mr Smith : We need to have accurate maps for Queen Anneís County...We were told by the Courts to get the maps straight, and we should."
Sause : "I didnít instruct them to do anything"
Defendants : "They believed that you, that those..."
Sause : "Well, they were misinformed. And, I didnít instruct them to do one single thing."
Sause : "...it is absolutely a misuse of the word to say that I required them to do anything. I did not."
Sause : "I didnít require anything...I didnít. I required nothing...I just said that despite two egregious blunders that we would give them yet another bite of the apple."
Sause : "They were told that I ordered that, and I am offended by that because I didnít order it."
: "I required nothing. And frankly, Iím going to see if I can get to the
bottom of who told the County Commissioners that, and weíll see where we
go from there."
Judge Sause to defendants, re QAC granting of subsequent approvals without proper maps :
: "I am highly annoyed that, that knowing that they had bad maps that the
County had the effrontery to go ahead and grant approvals anyway...How
could they, when in the same month, or at least most of the months before,
when they said, we donít have any maps, how could they have done that?
As a citizen, that incenses me."
Judge Sause to defendants, re the QAC citizen plaintiffs :
Sause : "These people over here are interested citizens. The laws are made so interested citizens can go and look and see things. But you all donít, Iím speaking generally of the Defendants."
: "You see, also lost in the preceding discourse is the absolutely inexcusable
treatment that was given to the person who tried to go and find the maps.
I mean, really, it would not stretch credulity too much to think that that
was deliberately done to throw somebody off the track."
August 20, 2006
Four Seasons Time Line and Update
Note from KIDL Postmistress: Trying to stay informed myself, I attended the Judge Sause hearing in late June on the maps. The Bay Times and other papers carried Konradís article on his hearing so you may have read that Ė Konrad does a good job of writing his articles - BUT I was extremely surprised that a lot of what was said at that hearing was not included.
A couple statements Judge Sause made in the proceedings (and there were many more):
Judge Sause addressing Mr. Zink (KHOV attorney): Ö Knowing they had bad maps, the county had the effrontery to go ahead. They created other approvals when they knew. As a citizen, that incenses me. You and your client were part of it and you went ahead.
Four Seasons Time Line and Update
On November 8, without obligation to do so County Commissioners Smith, Cassell and Cupani vote to award sewer and water allocation to 400 units of the Four Seasons project. The developer had only requested allocation 162 units. This allows the project to be considered for final subdivision and site plan approvals. Koval and Ransom were opposed.
On November 29, in closed session, Smith, Cassell and Cupani remove Commissioner Ransom from the Planning Commission just before Four Seasons comes before the Planning Commission for a final vote. Commissioner Richard Smith is named as Ransom's replacement.
At the December 8th , Planning Commission meeting (Commissioner Smith's first meeting) Smith breaks the long-standing practice of not voting on items that come before BOTH the Board of County Commissioners and the Planning Commission (he had voted Nov. 8 on the sewer allocation, which set the project up for these approvals). He votes with the Planning Commission (only Mr. Frohn was opposed) to approve the Final Site Plan for 56 condominiums in 4 buildings to be built at Four Seasons, as well as voting for Final Subdivision Approval for 106 single family homes in Phase 1 of Four Seasons. These approvals were given in spite of objections by certain members of the public who pointed out current litigation that should put a hold on these procedures, discrepancies in the maps, improper procedures and other errors in the approval process. Mr. Drummond, Attorney for the Planning Commission, countered the objections with various arguments. White he acknowledged errors in the maps he said the errors did not affect the Growth Allocation (the mechanism necessary for the project to go forward in the Critical Area).
Judge Sause issues an injunction against Four Seasons stopping all work. Shortly after the injunction is issued Commissioner Ransom turns in several County employees who violate the injunction. Judge Sause sends the County Sheriff to the Planning department to serve his injunction to department personnel.
The Judgeís Order clearly outlines major flaws with the Four Seasons portion of the Countyís Official Critical Area Maps, but clearly does not require the County to take any action. The erroneous Critical Area maps approved by the previous county commissioners, Judge Sause wrote in his opinion, "reveal nothing short of inattention to and misapplication of law, a wink at the requirements of the local critical area plan and demonstrated unwillingness or inability to employ the technical skills necessary to provide proper maps."
Commissioner Ransom repetitively requests appointment of independent outside counsel who could advise Commissioners correctly that they have no legal obligation to push forward with Four Seasons project. His requests fall on deaf ears. Commissioner Koval said he felt the injunction meant K. Hovnanian should have to start the Growth Allocation process all over. The Majority of the Commissioners (Smith, Cassell, Cupani) hire a special planning consultant to help review the maps. URS is hired. Commissioners Koval and Ransom vote against the URS hiring.
It is discovered that URS has done work ON the Four Seasons project for a law firm representing Four Seasons. Thatís right, Cassell, Smith and Cupani hired a Four Seasons expert to fix the maps.
Over the strong objection of Commissioners Ransom and Koval the Smith-Cassell-Cupani cabal signed the maps, helping move the project forward. However, Commissioner Cupani ordered the camera turned off during the session. Ransom objected to the signing saying it was not required, he also said we should wait for the County lawyers to attend. None of the County lawyers were present during the signing. Koval & Ransom objected to the signing, pointing out obvious flaws with the maps.
Judge Sause questions if the County complied with the Open Meetings Act and his order when signing the maps. The County is unable to provide a proper transcript or tape (Cupani had ordered the cameras off). Cupani, without telling any of the other Commissioners, hires an expert from Milwaukee to fix the tapes.
When the source of funds to hire the expert is discussed Smith and Cassell vote to pay the bill. Cupani votes no and says he wants to display "leadership" on the Four Seasons matter by paying the bill personally out of his own pocket.
We wait for a ruling on the matter. In the mean time the injunction stands, and the citizens must continue to fight the system.
Commissioners Koval and Ransom have voted NO at every opportunity to stop the project; the other three have done everything possible to speed the matter along, all the while trying to avoid and conceal the truth: that the County has no legal obligation to try to get Judge Sauseís injunction lifted.
July 16, 2006
2007 Four Seasons News
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