On April 30, The Frederick News-Post reported about the County Council’s decision to revisit “one portion of the Monrovia Town Center case.” On June 9, the council will hold a public hearing that is supposed to be their response to Circuit Judge William R. Nicklas Jr.’s remand of the case. There is only one problem — the council is ignoring the judge’s remand order.

Nicklas remanded the case for the council to conduct additional proceedings, including taking testimony, to resolve the issues identified by the court. So what issues did the court identify? First and foremost, the court made two definitive findings — former Commissioner Paul Smith discussed the pending Monrovia Town Center case with the Frederick Area Committee on Transportation, and Smith failed to report those communications as required under the state’s ex parte communications laws applicable to Frederick County. This is highly suggestive of an ethics violation, one that carries potential criminal penalties. Is the council addressing these issues? No.

Nicklas also found that the letter from FACT incorporated Smith’s observations and that the letter was intended to influence the pending vote. Lastly, he found that it was highly suggestive that the Board of County Commissioners relied on the letter. He specifically called out former Commissioners President Blaine Young in his conclusions.

To summarize — a sitting commissioner used an outside organization to help influence the vote on a pending zoning application before him. This is an important issue in the judge’s remand order and it leads to questions. Were other commissioners involved? After all, the former commissioners rarely seemed to do anything this significant without Young’s awareness and approval. Was the developer or members of his team involved? One of the reported letter writers is closely linked to the developer. We know that he took great interest in FACT’s conflict of interest because it was being paid by the BoCC. I imagine he would take equal — if not greater — interest in the letter writer’s conflict of interest with the developer’s team. Is the council addressing any of these issues? No.

If not addressing these issues that were actually raised by Nicklas, what exactly is the council trying to do? Based on the motion put forth by Councilman Tony Chmelik, and then passed by the council, they are trying to read minds. They are trying to determine whether the FACT letter had a major impact on the commissioners’ approval of the case. How can they do that, you might wonder? How can they really know what the commissioners were thinking and how much (or how little) weight they put on the letter? The simple answer is — they can’t. In fact, nobody can. It’s objectively impossible to prove one way or another.

Oh, they’ll try. They’ll take affidavits from Smith, Young and former Commissioner David Gray. I’m sure Smith and Young will solemnly swear that the letter meant nothing to them, but what good will these self-serving affidavits really be? Plus, why not ask councilmen Billy Shreve and Kirby Delauter for affidavits? Based on the council’s approach, Shreve and Delauter should also render affidavits, then — and this is key — they should recuse themselves from voting on the matter. How can Shreve and Delauter vote as council members on an issue revolving around an opinion about their prior decision? This is an inherently biased and flawed approach.

Since the council will probably follow this approach despite my objections, let’s consider one last point. Let’s say you believe that the commissioners were going to approve the case and that the FACT letter didn’t matter. Ask yourself this question — why did they do it? Why go through all the trouble of having the FACT letter ginned up like this, including potentially putting Smith’s law license at risk, if they didn’t have a reason?

I believe there was a reason. I believe they were worried about the case record on Md. 75. Safety and congestion issues were never resolved during all 13 nights of hearings. Md. 75 remained a central weakness in the commissioners’ approval. I believe they wanted to strengthen the case record and provide a public justification for their approval and what better way than with a showy display of a letter from a group of supposedly “neutral” transportation experts?

That is how I think the FACT letter influenced the approval of the Monrovia Town Center case. By providing justification and rationalization for their decision, the letter had a clear and material impact on the approval. Considering this point, and the picture of covert influence painted very clearly by Nicklas, the County Council has a clear responsibility to do more to correct these injustices. The council should reopen the case for a full, open and untainted set of new hearings.

Steve McKay

is president of Residents Against Landsdale Expansion. He writes from Monrovia.

(16) comments

ClareS

I am sick of the overdeveloping of Frederick County. I see "For Sale" signs up everywhere so we don't need more homes. Many businesses properties are vacant meaning we don't need more stores either. We need to stop tearing up what's left of the country-side so developers (and politicians) can make money. Now, if those developers want to renovate already developed land, then that's fine with me.

FrederickVeteran

I believe the MTC will be built there simply isn't enough political will in Frederick County to stop it.

DickD

Steve, can you take this back into court or would you have to appeal?

stevemckay

If the Council isn't satisfying the Judge's order, then we will make that case to the Judge. Are you on our RALE email list? I may have an update tomorrow evening on this point.

hayduke2

I hope the residents of the area once again show up to voice their displeasure with MTC and its impact on services, schools, roads, and the burden it will place on all taxpayers in Frederick County to make up for the revenue shortfalls created by the last Board's mitigation fees. There are myriads of reasons why the Council should order a "redo". Let's hope they have the guts to do it.

I can predict the response from those who will be questioned---- " Oh, no. This had no bearing on our thought process." Come on man, you think Billy and Kirby will do anything but try to show how great they are. How can this not be just one more piece of evidence that the whole thing was rigged from day one?

stevemckay

I couldn't agree more. It's very important that the Council sees that people care about this issue and are willing to continue spending their time, effort, and money to fight it.

MAVRICKinc7

STEVE: I can only suggest you avoid using AFFADAVITS as a solution to gaining the truth of the matter, when it represents the very foundation of how LIES are again perpetuated and we are CAUSED to believe what's written on paper rather than having the ability to subpoena, CROSS EXAMINE, UNDER OATH, what these people have to SAY against a long list of HARD QUESTIONS that affadavits no longer supply and cause us to ASSUME the witness is telling the truth when he or she is not.

Isn't this the same way that the Frederick County citizen population was lead around by the nose for the past 4 1/2 years and having to rely on heresay, false witness, lying by ommission and only a pretense of ACTING in good faith?

While we play with WORDS like honorable, accountable and transparent, how can that be, when we are not at liberty to examine and investigate the corruption that has consumed the tangible and intangible EVIDENCE being hidden away in some box on a shelf collecting dust and relying on someone who speaks through the FNP with SCRIPTED TEXT that we have elected to office and ASSUME he/she are acting in the best interest of this community and not their own and prescribed course of a personal agenda and not that of the public interest.

You and your opposition group, need to stop relying on "County Governance", who are already buried in a corrupted PROCESS and legal quagmire, whose hands remain tied,behind their backs (when was the last time you heard that same soundbite) and DIRECT this matter to be REOPENED on its merits and no longer having to take someone's WORD as the truth, UNLESS provided under oath.

Instead of adhering to decades of family values and good'ole boys who've already been bought, why not strike out on your own, navigate the broken system and earn the RIGHT to find the truth instead of someone saying or telling you your cause is lost, but only because no one is looking, as they have for decades.

Instead of looking a the rocks, why not turn them over and see for yourself what has been growing on the dark side of a path you've been walking over for years, as with a thin sheet of ice that covers what's really going on behind closed doors and your own back yard, if you were to dig a little deeper than you or you GROUP have done so far.

stevemckay

Mav - I completely agree with you about the affidavits. That is not and never has been our solution. County Council - upon advice of their attorney - has chosen that path. While I generally respect and have been pleased with the Council thus far, on this matter, they are making a mistake. In fact, we told them that in very explicit terms on Friday in a letter from our attorney. More to follow on that point, so stay tuned ...

jerseygrl42

Its unfortunate that the big money developers are allowed to buy their way in and the fault lies with phonies like smitty who plays fast and loose with the law...matan sprinkles some fairy dust around and these people who are supposed to represent the citizens just roll over...Delauter and shreve should NOT be allowed to vote on this and this development should be thrown under the bus; it stinks and there is not infra-structure to support it ...I think Gardner stated a week ago or so that the pipeline was full ...as are I-270, RTs 75 and 80...and our schools , with more and more children taught in trailers

KarlBickel

[thumbup]

BlueDawn666

Krimm said she agrees with Proffitt that public-private partnerships are important in paying for highway improvements, though she believes other parts of the letter went beyond FACT’s mission.

Proffitt conceded that the letter overstepped where he wrote that FACT would “be remiss if we didn’t take this opportunity to point out that the county at large benefits from approval of the project.”

“I’ll acknowledge a mistake and acknowledge that we should have a cleaner method of doing this,” he said.
Up to this point, Krimm said, FACT hasn’t had a formal process for writing correspondence.

Frederick County Commissioners President Blaine Young said he had no involvement in the creation of the FACT letter. He said he thinks RALE’s request for an investigation is preposterous.

The Frederick Area Committee for Transportation sent a letter Wednesday indicating that the Town Center development would supply a significant amount of funding for road projects. The money could support improvements at Md. 75 and ease congestion at Md. 80 and Md. 75.

“While some residents may oppose development of the Monrovia Town Center which has been on land use plans for 40 years, FACT would be remiss if we didn’t take this opportunity to point out that the county at large benefits from approval of the project,” the letter stated.

The letter indicated that the committee does not normally weigh in on land-use issues unless they relate to transportation improvements.

Rand Weinberg, an attorney for the developer, said the letter was a significant piece of evidence that spoke to residents’ concerns about road safety.

“FACT cares strictly and solely about funding for transportation,” Weinberg said. “If you want to fix … the existing problems in this corridor, it’s got to happen by way of private sector contribution.”


The FACT letter was written for TWO REASONS I can tell, ONE to lie to the residents, TWO to Justify and Rationalize the BoCC vote in favor of the MTC.

I hate when people lie to me, I can spot a lie a mile away, me I don't get mad I get even.

http://envisionfrederickcounty.org/rale-subpoenas-paul-smith-two-others-unauthorized-fact-letter/

KarlBickel

[thumbup]

stevemckay

So much of what we know about this entire sordid story is from an FNP investigative piece. None of it is on the record! It's very important to once and for all get to the facts of who did what and when - and we need to do it in a legal record.

MAVRICKinc7

It's called a paper trail, and void of any heresay, sound bite messaging and all the platitudes we keep throwing at this wall, where nothing sticks except faded memories and a trust that we can be no longer whole-sale or sell except to the highest bidder.

BlueDawn666

So let me get this straight this F.A.C.T letter was written after 13 nights of hearings, they were worried about the case record on Md. 75 and needed something to say that everything would be okay with the traffic congestion. and wa la there was this "letter" that saved the day,

Paul Smith gave them something that would say everything was okay. He wrote this really cool letter that would justify and rationalize their decision to vote for the Monrovia Town Center..and they did.

Weren't there committee FACT members that had no idea about the letter?

The News-Post also reported the reaction of FACT President Carol Krimm, who said “I was really baffled by why [the letter] was given so much weight, and when it came to light that it was considered evidence, I was like, ‘Oh, no, no, that is not our role in this discussion.’ ”

At the MTC hearing Mr. Smith did not disclose his role in producing the letter. Mr. Smith also did not disclose that he reviewed at least one draft of the FACT letter before it was sent to the BOCC, and he did not disclose who wrote the letter: Michael Proffitt, secretary of FACT, and Michael Smariga, cofounder of the landscape design firm Harris, Smariga & Associates (HSA), whose son Chris Smariga works for HSA and was a witness on behalf of MTC during the BOCC hearings. At the close of the MTC hearing, Mr. Smith voted to approve each of the three actions (the rezoning, the DRRA, and the APFO LOU). The following day the News-Post reported that MTC attorney Rand Weinberg called the FACT letter “a significant piece of evidence” in the case.

http://envisionfrederickcounty.org/rale-subpoenas-paul-smith-two-others-unauthorized-fact-letter/

MAVRICKinc7

SO, take the LETTER, place it at the top of the EVIDENCE pile and work from there. Make sure you have, at all times, someone present who can legally transcribe what is said and legally bound, under penalty of perjury, to tell the truth.

While you will not be allowed to TESTIFY, under oath, because you have nothing to offer but HERESAY, why not assemble what you think you know, script and make it available to those entrusted to INVESTIGATE this matter rather than making phone calls and securing affadavits that are worth squat in the real world of APPROPIATE TESTIMONY. Every litte bit of what you think or believe you know, why not share that with Steve and his group and see how they can integrate these pieces into the larger puzzle they are currently working with and make it into something we can all understand, with corruption remamining the nature of man, and always will?

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