Leveling the board of appeals playing field

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.