The developer of the Monrovia Town Center is suing Frederick County government, including the county executive, the County Council and the Planning Commission.
Paul D. Rose Jr. — the attorney representing developer 75-80 Properties LLC — filed a lawsuit in Frederick County Circuit Court on Friday, seeking more than $500,000 from the county, as well as an injunction and a declaratory judgment. The suit claims the county’s actions have prevented the developer from building and selling lots at the Town Center, a prospective 1,250-house development.
Rose, reached by phone, declined to comment.
The saga of the Town Center goes back years. The former Board of County Commissioners approved the rezoning and development plan for the Town Center in April 2014. A local advocacy group, Residents Against Landsdale Expansion (RALE), challenged this, arguing that a letter entered into the record close to the vote tainted the process.
The letter from the Frederick Area Committee for Transportation (FACT) offered support for the project, but RALE claimed then-Commissioner Paul Smith influenced what was written in the letter, then voted on the Town Center.
In March 2015, Circuit Court Judge William R. Nicklas Jr. directed that the council hold further proceedings to determine the letter’s influence on the commissioners’ vote. The council decided in September to restart the entire case, starting with the Planning Commission, to establish a clean record.
The lawsuit states that the council “has ignored” the court order to determine the letter’s influence on the vote and that remanding the case to the Planning Commission extends “well beyond” the direction of the court.
“There is simply no basis, and more importantly, no legal right, for requiring the developer to present its case again to the Planning Commission and then to the County Council,” the lawsuit states. “Three of the former five members of the BOCC who voted to approve the Monrovia Town Center project have testified or sworn by affidavit that the FACT letter had no bearing on their affirmative votes. That is a majority of the BOCC, and the remand proceedings should have stopped there.”
The developer wants a judge to make a declaratory judgment that the purpose of the March 10 court order was for the council to investigate the letter, and that based on the testimony of the former commissioners, the letter did not influence the vote. It also wants the court to declare that the council has “taken a patently unreasonable amount of time” in addressing the court order.
According to the lawsuit, the council’s move to return the case to the Planning Commission constitutes a “temporary taking of the property” without compensation — known as inverse condemnation. The developer is requesting $500,000, as well as attorney fees and other costs.
Frederick County Attorney John Mathias said the court order provided the council members wide latitude, and he does not believe the point regarding inverse condemnation is valid.
Both County Executive Jan Gardner and Council President Bud Otis said they had not viewed the lawsuit and could not comment.
The developer also is seeking an injunction against the County Council and Planning Commission from proceeding in any actions related to the March 2015 court order, and that the case be taken back to Circuit Court. It also wants an injunction preventing county government from taking further action on a new traffic study of the area, which the county has nearly completed.
A traffic study was also completed before the commissioners took their vote. The lawsuit states that the new traffic study will be based on a broader scope than the original one.
The lawsuit states that the county has delayed in signing off on three documents — including final site plan — that are pieces in the developer’s process. A fourth document, a plat, has also not been recorded at the Frederick County Courthouse.
The developer and its representatives have continually contacted the county since early September, requesting that the relevant county representatives sign the documents, and that the plat be sent to the courthouse for recordation. The lawsuit refers to these as “mere ministerial acts” that were not completed.
The developer states that under its agreement with the county, known as a Development Rights and Responsibilities Agreement, or DRRA, the county is obligated to approve these pieces in a timely manner. It wants the expiration date of the DRRA and other deadlines extended by the number of months that the county has delayed approving the documents.
Mathias said this part of the lawsuit is easily remedied.
Also named in the lawsuit is RALE; its president, Steve McKay; and 22 Monrovia residents who were included in the petition for judicial review that was filed in circuit court in June 2014, challenging the approval of the Town Center.
In an interview, McKay said that naming all of the Monrovia property owners is a blatant attempt at bullying and intimidation.
He said the points made in the lawsuit won’t hold up in court. “I don’t think they have a prayer,” he said.