The members of Frederick’s Zoning Board of Appeals are considering whether to reverse the city Planning Commission’s decision to subdivide Citizens Care and Rehabilitation Center and Montevue Assisted Living Facility.
Subdividing the land allows the Board of County Commissioners to proceed with selling it and privatize the centers.
On Tuesday night, the board heard a May 7 appeal of the Planning Commission decision from Frederick law firm Powell Flynn, filed on behalf of Janie Denn and Kathleen Murphy, who live near the centers, and Charles Trunk III, former chairman of the Citizens and Montevue board of trustees.
But no decisions were made Tuesday; the board continued the item to another hearing.
About 40 residents attended the appeal hearing, often scoffing when the county and city attorneys spoke.
On behalf of the appellants, attorney Paul Flynn of Powell Flynn said Tuesday that when considering the subdivision request, the Planning Commission should have considered the potential sale of the land, and should have realized the impact the subdivision and sale would have on the community.
The county’s application was also incomplete at the time the commission approved it, making it defective when filed, Flynn said.
When approving the subdivision, the Planning Commission members stated that, because they were approving a subdivision request only, the potential sale and use of the land were not in their purview.
The Planning Commission made several errors regarding their analysis of the case, Zoning Board of Appeals chair Jim Racheff said.
Racheff said the commission never bothered to ask the intent of the subdivision, and it seems from their testimony that they did not feel they were allowed.
Because they did not think they could ask of the intent, “they just simply didn’t consider any of these elements” of whether there are mitigating factors on the impact of the land.
Racheff said that the Planning Commission erred when considering the code.
There should have been a lot more delving into the issue, said board member Gail Colby.
“I just feel they ignored their charge,” she said.
County commissioners voted to privatize the centers in June and entered into a contract with Aurora Health Management to operate the centers. A sale has not been finalized.
John Mathias, Frederick County’s attorney, and Scott Waxter, a City of Frederick attorney, argued that the Planning Commission was right to just consider the impact of the subdivision itself, not potential sale or potential use of the facilities in the future.
The Planning Commission was right to consider that, “It is a nursing home now. Tomorrow, after subdivision, it is going to be a nursing home,” Waxter said.
Residents believe that a private for-profit company operating the centers will not continue the mission of serving the county’s low-income population, which is what the land was intended for under the county’s original deed.
Flynn spent the night arguing that because Citizens and Montevue were public facilities, the commission members were able to consider the intent of the land use, but did not.
“They misunderstood,” Flynn said. “It was a misapplication under the law.”
The Planning Commission must follow the land management code when considering a subdivision request. The code states that when commission consider a subdivision, it consider “the expected impact on and use of public facilities by possible uses of said subdivision.”
The code defines public facilities to include sewar and water services, schools, police stations and firehouses.
Mathias and Waxter said that Citizens and Montevue should not be considered public facilities, but even if they were, the land use did not change.
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