City's appeal board reconsidering Citizens, Montevue subdivision

The sale of the Citizens Care and Rehabilitation Center and Montevue Assisted Living Facility land is still pending. 

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.

Follow Jen Bondeson on Twitter: @Jen_Bondeson.

(12) comments

elymus43

The voters of Frederick County should be because, 2014 is coming. Let's HOPE the voters are smarter when they vote for a County Executive next year.

ALincoln

There must be some Democrats on the Appeals Board that's all I can guess.

Why are so many surprised that after a century of providing care for the elderly poor, that an All Republican BoCC would want to "privatize" the institution and cut up the land for their developer friends?

jerseygrl42

once again mathias speaks up on behalf of the special interest boys rather than the citizens who pay his tab...what a disgrace

MCEDDE21

It was, first of all, very disappointing to see both County Attorney Mathias and City Attorney Waxter arguing this case on behalf of a private firm and against the best interests of the community which puts the bread on their tables. At the same time, their arguments were as flawed, perhaps, as their characters.

To wit: The Board of County Commissioners requested the rezoning of the Montevue Campus “for a reason”, as everyone knows; namely, its quest to sell the homes. The 1828 deed, as everyone knows, legally requires the entire 90 acre property be held for the exclusive use of the poor.

Over time, the County has relocated many of its operations to the site, reducing that portion of the original trust which upholds the terms of the deed, to a tiny, 7.5 acre parcel containing Citizens and Montevue. County officials have consistently argued that they have adhered to the deed’s restrictions, despite the additional and conflicting uses, to which the land has been put. How so? Because they built and continue to maintain the County’s homes!

Suddenly, after 185 years, the BoCC decided that it wanted to subdivide our charitable trust and, last night, both of “our” attorneys, tried to argue that the subdivision will change “absolutely nothing”... On the contrary: The land and facilities will be taken from public ownership and control and given over to a private interest.

With respect to any kind of property—be it a home, a car, or a TV set--there can be no greater change than that. Quite frankly, it is beyond comprehension that two, educated, professional people could even come up with such an absurdity, let alone think that anyone would buy it. (As one audience member asked, “What planet are they on?”)

Lastly, as ZBA Chair Racheff pointed out: The subdivision will create two lots. Lot 1, containing Montevue, might (all by itself) conform to the terms of the deed. But, Lot 2, the remaining 82 acres of the original Montevue Trust, will not. What then, Mr. Waxter? What then, Mr. Mathias?

alovelyplace

At 5:00 Commissioner Young was on his show talking about his campaign refunds, complaining about how hard it is to be in public service making the 'tough' decisions. At 6:45 pm... as citizens, attorneys and zoning appeal board members were gathering at Winchester Hall to re-review the Commissioners request to subdivide the Montevue Home property for its sale, the 'People's Veto', Commissioner Young was fine dining in the window of The Tasting Room, buttering his bread.

Comment deleted.
alovelyplace

Pass by the big windows of the Tasting Room between the parking deck and City Hall much? yes. Don't sit in the window if you don't want to be seen by everyone making the commissioner necessitated trek.

FromTheBleachers

"... buttering his bread".

Interesting. Why didn't you use your cell phone to get a pic so we all could see who's bread he was buttering?

president8444

Zoning , Worthless to tax payers,just pay more.

kjswartz

Really?
You Authentically believe that?

Upton Golfer

Mrs. Big word.

kjswartz

Frederick City Zoning should have denied any petition for zoning changes based upon the deed's requirement to benefit Frederick's poor. Wait until after the sale, when the land use is unencumbered.

To do otherwise places an absolute value on these properties, which makes them marketable by this BoCC and future commissioners.

cellmark

So much information has been ignored here. The reason the Blue Ribbon board decided to move ahead with rebuilding these places was with the property left over the City wanted to move all Citizen Services into that area.
As it is now the services for ALL citizens is so scattered and so difficult to access that many of the very persons who need it are not bothering .

President fo fo fo ho ho ho. Your comments are so old frederick and so naive, and simply so stupid that it is actualy alot of fun to read what you write

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