Level­ing the board of appeals play­ing field

Maryland Independent - - Community Forum -

If you want to ap­peal a Pre­lim­i­nary Sub­di­vi­sion Plan (PSP) ap­proval by the Charles County Plan­ning Com­mis­sion, it seems easy enough — just pay al­most $1,300 in non-re­fund­able fees, fill out the forms, get an at­tor­ney and wait to get on the Board of Appeals (BOA) agenda. Too bad it isn’t that sim­ple.

The op­pos­ing at­tor­ney will likely start out with a mo­tion to dis­miss your case be­cause the BOA is the “wrong” place for Charles County cit­i­zens to ap­peal Charles County de­ci­sions. While this may sound lu­di­crous, the fact is that the zon­ing or­di­nance is so con­vo­luted and con­flict­ing that no one knows for sure if the BOA has ju­ris­dic­tion to hear your ap­peal. Sud­denly your case may hinge on nit-pick­ing le­gal ar­gu­ments made by at­tor­neys ar­gu­ing points of law — not the mer­its of your case.

If the BOA rules that they have ju­ris­dic­tion, you still have to show that you are en­ti­tled to ap­peal. In gen­eral, the best way to qual­ify as a party to a de­ci­sion is to show that you par­tic­i­pated in the de­ci­sion to start with. For ex­am­ple, if you tes­ti­fied at a PSP hear­ing you will prob­a­bly pass the party test for that PSP. How­ever, there are no pub­lic hear­ings for PSPs so you prob­a­bly can’t play in the BOA sand­box. Gen­er­ally speak­ing, if you don’t tes­tify, you can’t be a party and, if there aren’t any pub­lic hear­ings, you can’t tes­tify.

The Charles County Board of Com­mis­sion­ers can just tell staff to draft changes to the rules to fix the prob­lems. Sim­ple or­di­nance state­ments that PSP appeals are to be heard by the BOA would take care of the ju­ris­dic­tional prob­lem. Other state­ments that PSPs re­quire a pub­lic hear­ing would give you an op­por­tu­nity to be­come a party. Un­for­tu­nately, some who don’t re­ally un­der­stand the is­sues or who want to pre­clude appeals by the pub­lic may pro­pose in­ef­fec­tive band aids like adding an early con­cept plan hear­ing to the PSP process. While this might help in­form the pub­lic, merely adding another ad­min­is­tra­tive process won’t cor­rect flaws with the ones we al­ready have. Con­cept plans don’t end with a de­ci­sion so there would be noth­ing to ap­peal and you still wouldn’t be a party to the PSP de­ci­sion you re­ally wanted to ap­peal.

Ken Hast­ings, Me­chan­icsville The writer is a board mem­ber with the Ma­son Springs Con­ser­vancy.

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