- The Washington Times - Saturday, October 22, 2005

This summer’s discovery of hundreds of building-code violations at the Clarksburg Town Center shocked many Montgomery County residents — but not high-ranking county officials.

Council member Michael Knapp said that he, other council members and County Executive Douglas M. Duncan’s chief administrative officer had known about problems at Clarksburg since last fall, but little, if anything, was done to oversee construction at the 1,300-home site.

“This has been a very difficult issue to get the rest of the government’s attention on,” Mr. Knapp, a Democrat who represents Clarksburg, told The Washington Times. “I don’t think people thought it was as big a deal as it is.”

It has become a very big deal — prompting three separate investigations, intense scrutiny of the county Planning Board and its staff, the resignation of a longtime county planner and a temporary freeze on 199 building permits.

In addition, tens of millions of dollars worth of future development around the county has been thrown into question, while county officials consider sanctions against builders — some of their most generous political donors — in advance of an election year.

“This is highly embarrassing to Montgomery County to have an obvious [mistake] in our regulatory process. Highly embarrassing,” said Blair Lee, chief executive officer of the Lee Development Group.

On Tuesday, the Planning Board is scheduled to hear six hours of testimony from the residents’ group that uncovered the violations in Clarksburg, and six hours of rebuttal testimony from developer Newland Communities of San Diego on Nov. 3. The board will decide on sanctions some time after Nov. 18.

At issue is whether the Planning Board’s staff — the Department of Park and Planning — knowingly allowed builders and Newland Communities to violate county code and legally binding site plans in building more than 500 homes that are too tall and too close to the street in Clarksburg.

Developers have argued that county planners gave them permission to make significant changes to official plans without public notice or Planning Board approval.

Planning officials have said they were not aware of their responsibilities because the county code is confusing.

And the residents’ group, the Clarksburg Town Center Advisory Council (CTCAC), has charged that planners and builders worked together to create a development that adhered to the developers’ plans, not the county’s.

In the know

Whatever the outcome of the Planning Board’s hearings, county officials had known about construction problems in Clarksburg before this summer, Mr. Knapp said.

The County Council member said the CTCAC made him aware of those problems, as well as insufficient roads and fire-and-rescue resources in Clarksburg, a year ago.

“The issues were becoming pretty clear through the fall of last year,” Mr. Knapp said.

In late November, he met with Bruce Romer, Mr. Duncan’s chief administrative officer, to advocate for a Clarksburg “czar” — a high-ranking county official who would coordinate the development and report directly to the county executive, Mr. Knapp said.

“I went away from this meeting thinking this had been well-received,” he said. “But no action was forthcoming.”

He said he met again with Mr. Romer in January, and “no real efforts were forthcoming.”

“It was tough to get people’s attention from the executive office’s end,” Mr. Knapp said. “I still don’t know if there is any single person who is responsible for the implementation of county government activities in Clarksburg.”

Mr. Duncan, who announced Thursday that he will seek the Democratic nomination for governor next year, was unavailable for comment. In July, Mr. Duncan temporarily froze 199 building permits for further review by the Planning Board.

Mr. Romer said in an interview that Mr. Knapp was “absolutely wrong.”

“We were very responsive,” Mr. Romer said, adding that he directed Scott Reilly, one of Mr. Duncan’s four assistant chief administrative officers (CAO), to handle Clarksburg issues.

Mr. Romer said Mr. Knapp “agreed with that approach, and I am surprised that he is now saying otherwise.”

Mr. Knapp said he wanted “someone with direct responsibility to manage Clarksburg,” but that Mr. Reilly and Catherine Matthews, director of the county’s Upcounty Regional Services Center, have both seemed in charge at times.

“It’s a point of dispute. [Mr. Romer] said Scott’s been appointed with all those things, great,” Mr. Knapp said. “Scott is doing some coordination activities. It’s confusing because he is doing that with another person, and I don’t think anybody knows who is really running things.”

Mr. Knapp said Mr. Duncan’s office also included a midlevel managerial position, in the budget passed in May, that would have handled Clarksburg issues.

“If they’d already designated a position, I don’t see the need to send another position to us,” Mr. Knapp said.

Mr. Knapp and other council members, during this time, were referring CTCAC members, and their complaints, to the Planning Board.

‘Burden of proof’

Council member Nancy Floreen, at-large Democrat, said she had lunch with Amy Presley, CTCAC co-chairwoman, last October, and told her to go to Planning Board staff in Park and Planning.

Mr. Knapp said he also asked Planning Board Chairman Derick P. Berlage in December to meet with CTCAC members about their findings.

The Planning Board chairman sent him a message Dec. 23 stating there were no building violations in Clarksburg, he said.

“Initially, people didn’t even think there was an issue. Derick said there were no violations, but there was obviously something wrong,” Mr. Knapp said. “Even through the spring, to get Derick and the Park and Planning folks to pay attention was an ongoing saga.”

At the Planning Board’s first hearing on Clarksburg issues, in April, Mr. Berlage said the “burden of proof” was on the residents.

Mr. Berlage, who has chaired the Planning Board since 2002, did not return phone calls.

His spokeswoman, Nancy Lineman, said, “The chairman has said on numerous occasions that the response of the agency was unacceptable, and he is working diligently on various reform measures.”

Ms. Lineman said that the Planning Board and its staff “relied too heavily” on staffer Wynn Witthans, “who provided faulty information.”

Mr. Berlage “is reforming the division to ensure greater oversight of projects, peer review and greater transparency of records,” Ms. Lineman said.

Other County Council members had varying levels of knowledge about Clarksburg’s problems as far back as a year ago, but all were aware of the issues when the Planning Board held its first hearing on the matter in April, Mr. Knapp said.

At that hearing, the board announced that no violations had occurred in Clarksburg.

In June, the board announced that hundreds of violations actually had occurred and that one of its staffers, Ms. Witthans, had forged a site plan to hide the violations.

Ms. Witthans has since resigned, has declined to comment and has sought legal representation.

Her boss, Park and Planning Director Charles Loehr, has said he will retire at the end of this month.

The county inspector general, state special prosecutor and County Council staff are conducting separate investigations into the Clarksburg violations.

Future projects

The building violations have raised questions about the county’s ability to manage development beyond the town limits of Clarksburg, where 14,000 homes are planned.

Mr. Berlage told the council Tuesday that the county is at 80 percent capacity for new development and headed into a new era of redevelopment.

The council is scheduled next month to vote on an “urban village” being planned around the Shady Grove Metro station, offering more than 6,000 new housing units, and on redeveloping 20 acres near the White Flint Metro station.

Meanwhile, building violations have been reported at six other developments around the county, according to the Montgomery County Civic Federation, a consortium of homeowners associations.

And county planners say they have found problems with some of the 8,000 homes planned or under construction in other Clarksburg developments.

The largest is the 2,654-home Clarksburg Village, where problems with the distance of homes from the road, or setbacks, have been found, according to Rose Krasnow, director of development review for the Department of Park and Planning.

“Just like [Hurricane] Katrina revealed shortcomings in [the Federal Emergency Management Agency], Clarksburg has revealed serious problems in the planning and zoning process in Montgomery County,” said council member Howard Denis, Bethesda Republican.

Community unrest began in late July 2004, when Newland Communities representatives met with homeowners in Clarksburg Town Center.

Mrs. Presley, a self-employed business consultant, and Kim Shiley, a military nurse, met at that meeting. They were convinced that Newland had sold them a development that was not materializing. In place of a high-end retail establishment, they were going to get a strip mall.

They began to look at county plans for the Clarksburg Town Center and found that many homes appeared to have been built too tall. They pressed Ms. Witthans and other planning staffers for more plans and researched the law.

They found that plans to build a 500-foot, grass-covered pedestrian walkway linking the new town center with a 217-year old Methodist church, including a memorial to Clarksburg founder William Clarke, had been scuttled without any public input.

A wall of dirt cut the church off from the houses, and the memorial had been moved to the development’s fringe.

During several Planning Board and County Council hearings on building violations since the summer, planners and Newland have demonstrated little awareness of the county law during the deliberative process.

No government official or employee had read aloud the 198-word definition of major and minor amendments, in county code Chapter 59D, during more than 16 hours of Planning Board hearings, or during three oversight hearings before a council committee.

Douglas C. Delano, Newland’s representative since early September, said in a recent interview with The Times that he had not read the law and declined to take a copy of it.

Newland attorney Steven Kaufman, of the area’s largest land-use zoning firm, Linowes and Blocher LLP, said during an Oct. 6 Planning Board hearing that he had not been told what law CTCAC said had been broken.

But CTCAC attorney David W. Brown sent a letter Sept. 26 to Mr. Kaufman’s colleague, Todd Brown, citing the law. Mr. Kaufman did not answer questions about that letter.

Council members have been noncommittal about suggesting sanctions, saying they are waiting for a report from the Council’s Office of Legislative Oversight (OLO), which is due Nov. 8.

“I’d really rather wait until I have the OLO report before I say which law was violated and what we need to do in response,” said council member George Leventhal, at-large Democrat.

Mrs. Floreen said she did not think that developers have broken the law.

“Everything is subject to a certain amount of interpretation,” she said.

That attitude is the problem, Mrs. Presley said.

“The county has made this overcomplicated. They have fallen into the posturing of developers and builders. Citizens have figured this stuff out. Certainly, the agencies themselves can get their act together,” she said.

Her group spent hundreds of hours poring over county plans and documents to uncover and document the violations in their community.

“You can have all the laws you want. If people are going to interpret them however they want, and always in favor of developers, they won’t change anything,” she said.

Politics and planning

What’s more, recordkeeping at Park and Planning has been found to be sloppy.

On Oct. 14, Mrs. Floreen sent a “spy” to Park and Planning to observe document-security measures and found that anyone can access files for ongoing or pending construction projects, and remove any of the original planning documents, she told The Times.

Numerous documents that Newland says show it had approval to make changes to Clarksburg Town Center are missing or unaccounted for, Newland’s attorneys have said.

In the wake of Clarksburg’s problems, Mr. Berlage has come under fire from council members in public and behind the scenes.

Members of a preservation group told Mr. Berlage during an Oct. 3 private meeting that council member Steven Silverman, at-large Democrat, wants to make him the scapegoat for Clarksburg.

Mr. Knapp has said some council members are discussing whether to remove Mr. Berlage. Other members have denied this.

Mr. Silverman said Mr. Berlage’s performance will factor into the council’s decision to reappoint him or not in June.

Mr. Berlage said it was “absolutely not” true that he is being made a scapegoat.

But elected officials are under intense pressure to respond, because six of the nine council members receive most of their campaign contributions from development interests, according to the county government watchdog group Neighbors PAC.

Mr. Leventhal said Tuesday that builders’ “pushing the envelope … has spawned a political backlash, and now the elected officials in the county are going to respond to that political backlash.”

Mr. Duncan led the “End Gridlock” slate in 2002 that took in significant monies from development interests. The slate included Mr. Knapp, Mr. Silverman, Mr. Leventhal, Mrs. Floreen, and Michael L. Subin, at-large Democrat.

Mr. Silverman received around 70 percent of his $265,081 in 2002 campaign funds from development interests. In his run for county executive, he had received $585,663, or 71 percent of his campaign funds, as of the last filing in January.

Mr. Duncan received $775,845 from development interests in 2002, which was 56 percent of $1.4 million, according to Neighbors PAC.

Mr. Duncan has recommended that the Department of Permitting Services (DPS) should monitor and enforce building law on site-plan projects.

However, community activists say that DPS has been just as lax as Park and Planning in enforcing the laws they are responsible for.

“DPS views the zoning ordinance as a grant of authority for anything that could be contemplated within the wording of the zoning ordinance, rather than a limitation,” said Carol Green, a Bethesda homeowner and lawyer who led a two-year effort to limit building heights.

The county would be “handing over enforcement authority to an agency that allows the code to be interpreted in a way that is not consistent with its purpose and allows loopholes,” Mrs. Green said.

“You can make all the changes you want, but unless you change the climate, they will find new ways to get around the improved system,” Mrs. Presley said.

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