- The Washington Times - Monday, October 3, 2005

Montgomery County planning officials yesterday told a County Council panel that site plans for construction do not hold ultimate legal authority.

Builders must comply with an opinion written by the Planning Board when the board approves site plans, Park and Planning Director Charles E. Loehr told the council’s Committee on Planning, Housing and Economic Development.

If the site plans are more restrictive than the opinion, then those restrictions are binding, Mr. Loehr said. But he posited final legal authority in the board opinion.

“The council just sat there and listened to Charlie Loehr rewrite the law,” said Amy Presley, co-chairwoman of a residents group that uncovered hundreds of building violations at the Clarksburg Town Center this summer.

The group — the Clarksburg Town Center Advisory Committee — said planning officials are contradicting county law and setting the stage to argue that building requirements in Clarksburg were not clear.

The Planning Board will examine a host of suspected violations in Clarksburg beginning Thursday.

At stake is the development of a formerly rural area in northern Montgomery County, where 14,000 houses are planned.

Citing Chapter 59D of the Montgomery County Code, Mrs. Presley said site-plan drawings, not the board opinions, are the final legal standards. The law says building permits can be issued only if they are checked for details that are included in drawings, not in written opinions, she said.

Planning officials are “setting it up so that the generalized statements in their opinion are all that matters. The developers can come in and change whatever they want,” she said.

In addition, Mrs. Presley said, site-plan drawings are always more restrictive than board opinions because they contain a multitude of specific standards.

Those standards include building height, distance from the street and between buildings, location of affordable-housing units, and the placement of amenities such as pools, parks, playgrounds and landscaping.

Residents have accused Clarksburg builders of violating hundreds of these standards.

After a two-hour hearing yesterday, Mrs. Presley told County Council member Steven Silverman that the law clearly places final legal authority in site plans.

“It’s really not that confusing,” she told Mr. Silverman, an at-large Democrat who is planning to run for county executive next year.

“I agree,” he said.

Mr. Silverman told Mrs. Presley that it is his opinion that the law rests with the drawings, not the board opinion. Council staffers are drafting legislation to make this distinction clear, he said.

Mr. Silverman asked planning officials yesterday whether site plans are legally binding.

“That is a legal question that would come up in an adjudicatory situation,” Planning Board Chairman Derick P. Berlage said. “I am not going to sit here and answer that question.”

When Mr. Silverman said that Planning Board members and Park and Planning staffers had stated that site plans were legally binding, Mr. Loehr said planning officials had been misquoted.

Mrs. Presley challenged Mr. Loehr after the hearing, but he said they were arguing over “semantics.”

During a July 7 Planning Board hearing, board member Meredith K. Wellington expressed outrage over a discussion about whether site plans are legally binding. She said the board’s long-standing practice has been to treat site plans, not opinions, as legally binding documents.

“I’m sitting here listening to the undoing of years and years of how the commission has done business, and I’m appalled at what I’m hearing,” she said.

“Those are the inviolate documents, not the site plan opinion,” she said of the drawings. “We cannot start undoing our support of those documents and go to a more amorphous process.”

The Clarksburg Town Center is a 1,300-home community that has been plagued with development issues since the Clarksburg Town Center Advisory Committee began researching problems 14 months ago.

In July, the Planning Board found that more than 500 homes were built too high or too close to the street, and that staffer Wynn Witthans had falsified a site plan to cover up the violations.

Ms. Witthans has resigned, and Mr. Loehr has said he will resign at the end of the month.

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