- The Washington Times - Thursday, September 22, 2005

The Montgomery County Planning Board gave its staff authority to make major changes to site plans for the Clarksburg Town Center without notifying the board or the public.

A paragraph in a March 1998 opinion by the Planning Board authorized its staff to make significant construction changes at Clarksburg that usually are not allowed under the county code, said attorneys for Clarksburg’s developer and a board spokeswoman.

Those changes include the removal of amenities such as an amphitheater, ponds and a walkway that would have linked a historic church to the town center, and alterations in the layout of streets and blocks and the grading and elevation of properties and roads.

Residents have accused the developer, Newland Communities of San Diego, of violating legally binding site plans and county planners of helping builders evade detection.

“We request that the board conclude this matter and find that no violations exist,” Newland attorney Todd Brown said in a Sept. 7 letter to Planning Board Chairman Derick P. Berlage.

Planning Board spokeswoman Nancy Lineman agreed with Mr. Brown, saying staffers were given authority to make any changes that did not alter “fundamental findings” of the board.

“The board said, ‘This is the condition upon [which] staff can make changes,’” Ms. Lineman said.

Both the attorney and the spokeswoman cited “Condition 38,” which they said gave the staff its broad authority.

Condition 38 states: “The applicant may propose compatible changes to the units proposed, as market conditions may change, provided the fundamental findings of the Planning Board remain intact and in order to meet the Project Plan and Site Plan findings.

“Consideration shall be given to building type and location, open space, recreation and pedestrian and vehicular circulation, adequacy of parking etc. for staff review and approval.”

A co-chairwoman of the Clarksburg Town Center Advisory Committee, the residents group that uncovered hundreds of building height and setback violations in the 1,300-home development, disputed Mr. Brown’s interpretation of Condition 38.

“This guy is blowing smoke, like he always does,” Amy Presley said, adding that the Newland attorney’s “entire case is resting on Condition 38.”

Mrs. Presley noted that the types of changes listed in Condition 38 are not allowed without Planning Board approval under the county code.

The code calls such actions “major amendments” that must be “taken by the Planning Board to amend or revise a previously approved plan, whether such amendment is limited or comprehensive in scope.”

A “minor amendment,” which can be approved by staff in writing, is any change “deemed to be administrative in nature and concern only matters that are not in conflict with the Board’s prior action,” according to the code.

For example, original plans for Clarksburg did not include the walkway, but it was added to the site plan and approved by the Planning Board in 1998.

“If the only way you can get it in there is by going before the board, the only way you can get it out is by going before the board,” Mrs. Presley said.

The walkway was removed by staff and builders without public notice or board review in 2003. There is no written record of the change.

Mr. Brown, a member of Bethesda-based Linowes and Blocher, one of Montgomery County’s largest and most powerful zoning law firms, said the change was vetted by a development review committee that included public safety, utility and planning officials.

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