Mr. Klein sets out two "truths" in his letter. One is that the GPA is not enforceable. Obviously, that is not the case. I know Mr. Klein relies on the decision in what is called the Terrapin Run case, a case from western Maryland that dealt with the enforceability of general plan provisions. But Mr. Klein misconstrues the decision in that case, either out of lack of knowledge or for convenience. In that case, the court specifically held that "if the legislative body desires to create mandates of compliance [in a general plan] it has the power to do so."

In the GPA, our County Council specifically stated that the provisions of the GPA were not advisory in nature, but were mandates of the legislation. There is no requirement that any such provision be in a "zoning bill," as Mr. Klein continues to assert. All that is required is that the intention of the County Council be clear. In this case, that requirement is more than satisfied.

Mr. Klein does acknowledge that he may not be correct so that GPA provisions may be enforceable. In that case, Mr. Klein falls back to his second "truth." Here, he argues that only a "community developer" can be held to the mandates included in the GPA. Again, that is an incorrect interpretation of the GPA. In the GPA, it is clearly stated that in the event of any future fragmentation of ownership of GGP's holdings, the community enhancements must still be provided by the property owners, whoever they may be.

There may be differences of opinion about various aspects of the development in downtown; however, there should be no place in this discussion for creating so-called "truths" when those truths do not exist.

Michael W. Davis

Wilde Lake

user comments (23)

user mdcommish says...

Are we reading the same letter? Mr. Klein's letter never covers anything related to the Terrapin Run Development proposed by Columiba, MD builder PDC Corp. Unfortunately, that case would actually bolster his claim that the developer could come back and ask for an exemption to zoning as the Court of Appeals ruled that an exemption was properly granted. The original plan for Terrapin Run had roughly 300 some house in the first ten years and something around 900 encompassing 20 years. This exemption granted by the Allegheny County Commissioners (county council equivalent) raised the number allowed to 4,300. Sounds awfully familiar to GGP's 20 story buildings, then 16 to appease the citizens, then back to 20 again in a fly by night gig.

Posted 9:50 PM, 03.11.10 | Permalink

user wildelakemike says...

Understand, Commish, that the difference between what happened in Terrapin Run and what is proposed for Columbia has nothing to do with the elements of the plan itself. The difference is that in the Terrapin Run case, the General Plan in question did not contain directives so much as guidelines. The court held that guidelines are just those, guidelines. In CB58, it is very clear that the County Council employed language that mandates that certain conditions occur before development is allowed. This means that the CEPPAs and other conditions set out in the General Plan are, in fact, enforceable.

Posted 3:26 PM, 03.13.10 | Permalink

user independent says...

It's not at all clear what will actually be enforced because empirical indisputable evidence is that law is being selectively enforced in Howard County

Posted 3:55 PM, 03.13.10 | Permalink

user mdcommish says...

I agree that it's selectively enforceable, going off County Council precedent. However addressing your reference to Terrapin Run, the Court of Appeals ruled that exemptions could be granted at a later date. This would support the argument that one day GGP or a successor could come before the council and ask for a density increase beyond the scope of the current legislation. Why you referenced this case as legal precedent has many of us scratching our heads.

Posted 4:06 PM, 03.13.10 | Permalink

user commonsenseplease says...

Of course they can ask for a change someday. Anyone can do that with any law any time. Stating that it can be modfied by the Council is not at all the ame as saying it can't be enforced as-is. Just more twisting of facts.

Posted 5:04 PM, 03.13.10 | Permalink

user mdcommish says...

Why your side is using the Terrapin Run case as a lightning rod for some preceived "faulty interpretation" is quite confusing, considering that bolsters the case to be made that A this bill will be selectively enforced, and B the zoning can be changed or increased at any time.

Posted 7:08 PM, 03.13.10 | Permalink

user alanklein says...

To clarify, Mr. Davis is confusing two different provisions in the GPA. He is correct that it does say that the CEPPAs must be provided by whoever owns the land. However, it also says "General Growth Properties, its affiliates, any successor or assign, and/or any purchaser of equity interests or assets that continues to serve in the capacity of the community developer of Downtown Columbia, is hereinafter referred to as “GGP” even if unaffiliated with General Growth Properties, Inc." In addition to the CEPPAs, GGP is "required" to do several things in the GPA. According to the definition above, only an entity which is a "community developer" will be liable for fulfilling those obligations. And, let's assume that the GPA is found to be enforceable. Let's assume that we survive the almost inevitable litigation that would be needed to prove it so. Let's assume that the CEPPAs do indeed need to be provided by the Downtown land owners regardless of how many there are. Even with all those assumptions, if GGP sells to a number of people, the likelihood of getting quality, timely, and fully forthcoming cooperation and investment from a committee of developers and builders is in my opinion, quite small. This is not a slam on developers or builders. I would say the same thing about a committee of organization development consultants (my profession) in the same position.

Posted 7:21 PM, 03.13.10 | Permalink

user david14750 says...

This enforcability issue has become a movng target for opponents commish and Alan K. First they said that the a general plan wasn't enforcable. When that was proven wrong, they amended their criticism to say that, while it's enforcable, the Council will chose not to enforce it. That can be said of most of our laws. That's not lack of enforcability - it's an unsubstantiated opinion of a fringe group of people who have a paranoid distrust of the government. The GPA is enforcable, there is tremendous value for the developer to get to the second and third phases of development so there's no reason to expect them to not complete the CEPPAs that are required to get to those later phases. As for Alan K's post above, dozens of attorneys have reviewd the language and have found it to be adequate to enforce the Council's position.

Posted 9:01 PM, 03.13.10 | Permalink

user mdcommish says...

Unsubstantiated opinion? In the same retrospect of your statement that this project will generate $ for CA, and the county? Way to skew whats been discussed previously. I'm only trying to investigate why the author makes a claim of "faulty interpretation" predicating that basis on the Terrapin Run Development. It's cynnical the case from Western MD is being used when the developer had a court rule it was completely to receive an exemption to further increase zoning density. That only further supports the argument of selective enforcement, which you would know a great deal about when it comes to traffic laws.

Posted 10:53 PM, 03.13.10 | Permalink

user david14750 says...

I agree that Alan did not reference the Terrapin Run case in his letter. But Mike and Alan have spoken weekly if not more during this process and Mike knows that the Terrapin Run case has been the basis for Alan's argument to date. I can see how that wasn't known to people who haven't been involved in the discussions for the past several years. As for your fear of selective enforcement, just be honest with people. If you know the Council DOES have the ability to enfore the GPA, stop saying it's NOT enforcable. Your fear is that they'll choose not to enfore it and there are plenty of citizens who have that level of government distrust who would join your effort. Maybe TAG can be a little more honest with peole as well given that there are also quite a few of us who actually trust the government to stop handing out project approvals if the CEPPAs aren't being met.

Posted 9:40 AM, 03.14.10 | Permalink

user david14750 says...

Forgot to hit the CA and County $$$ issue. The projections and studies have been created, analyzed and vetted. Sure they could be wrong. But they are based on what has happened in other communities with similar projects so it's reasonable for us to believe they are an indication of what will happen here. If you are completely unwilling to do anything based on projections and the "opinion" of analysts and economists, how would you evaluate a stock investment or an investment in a single office building? If you don't buy the analyses, so be it, but using your posts to state why you disagree with those assumptions certaily add to the discussion.

Posted 9:44 AM, 03.14.10 | Permalink

user wildelakemike says...

I believe David identified the real issue behind the concern of enforceability of the GPA. The caselaw (Terrapin Run case) and the legislation (CB58 and CB59) are clear, notwithstanding the tortured interpretations to the conrtrary in these posts - the GPA for downtown Columbia is enforceable. What seems to be the real issue is a concern whether Howard County Government will choose to enforce the provisions of the GPA. Well, it seems to me that the proof is in the pudding, so to speak. Howard County was recently recognized as having the third highest household income in the entire country. Moreover, Howard County has been recognized as a great place to live, work and raise a family by any number of national media outlets. So, we must be doing something right. But, we can't rest on our past glories. We must continue to build for the future. That is what we, as a community, did in passing CB 58 and CB 59. And, based on past performance, there is no reason to believe that Howard County won't continue to require the revitalization of Columbia's downtown to be performed in a responsible manner, just as it has been doing for over 40 years now.

Posted 10:20 AM, 03.14.10 | Permalink

user says...

Howard county doesn't have the 3rd highest household income, it has one of the highest median incomes (a big difference)...basically due to the high cost of living associated with raising a family in Columbia. To following "analysts"...there's nothing wrong with that when using CURRENT data. Reports 2 yrs. ago didn't take into account 30% of mortgages in Howard County being under water by 2010, wiht the rate to steadily grow as household income continues to decrease. From a supply and demand argument, increasing supply with current market conditions makes no sense. Howard County is currently experiencing a 7.5% unemployment rate, and this will be exacerbated as governments continue to pare down their payrolls to balance the budget. The argument that the downtown is going to create this huge tax base is really a myth being floated on this board. Sales tax is created by the state and spread out accordingly from the general fund. Most of the jobs that will come with this development will only be minimum wage service sector positions. The costs of thsi project will be monumental, however. There will be one time costs to upgrade infrastructure, but more importantly will be the yearly increase required in county services, to include public safety, public works, and so forth. The plan, developed long before the current crises assumes demand will be strong for the units being proposed. Find me 20 something year olds without kids who will buy $400,000 efficiency with $10,000 in taxes, and fees (state and county assessments, CA assessment, condo fees). The answer, they wont. At that point these buildings will revert to sec. 8 vouchers and the downtown will be no defferent than Baltimore or an Owings Mills, blight every where. Thats why before we redevelop the downtown, we need to start with revitilization in the older village centers and fix what we already have. That and getting revenue sharing w/ the state, especially when it comes to traffic ticket revenue.

Posted 2:12 AM, 03.16.10 | Permalink

user independent says...

That make sense, and stands to reason, User. Facts, figures, empirical evidence is required rather than studies done by organizations who have a stake in skewing their presentation to one or the other side.

Posted 6:29 AM, 03.16.10 | Permalink

user columbiauser says...

So, now Forbes and Money Magazines, among others, have joined the conspiracy and are skewing data to help GGP! Now, that just doesn't make any sense, Independent. As for empirical evidence, just take a look at the Fiscal Impact report prepared for Howard County Government and the Economic Impact Statement that was prepared for the Howard County Economic Development Authority. Or is this date "skewed" as well?

Posted 8:57 AM, 03.16.10 | Permalink

user independent says...

These are the same magazines that rate Columbia highly in terms of desirable places to live, but use phrases like "no big box stores" indicating they have not really review the existing data.

Posted 11:01 AM, 03.16.10 | Permalink

user columbiauser says...

C'mon, Independent. You can do better than that! Yes, there is always a reason to disagree with any positive statement about Columbia. So, now tell us, is there some conspiracy to skew information or just bad reporting? Maybe something else? A curious mind wants to know.

Posted 6:39 PM, 03.16.10 | Permalink

user david14750 says...

User 2:12, you sound awful familiar! And your statements are wrong. "increasing [housing] supply with current market conditions"? The increase won't even start for a few more years and will be spread over 30 tears and several economic cycles. Most of the jobs will be minimum wage jobs? Are you referring to during construction or the dozens of coroporations that will occupy the office space? Are the jobs in Gateway or other concentrations of offices mostly minimum wage jobs? One-time costs to upgrade infrastructure? Such as? And there are plenty of young professionals, middle aged people without kids and empty nesters who will absord a mere 183 units each year in downtown. I love the claim that everything will revert to Seciton 8 (like it has all over Howard Co!).

Posted 7:06 PM, 03.16.10 | Permalink

user david14750 says...

Independent loves facts that suit him, even if there are no "facts" and no basis for anything User 2:12 claims as facts. And Columbia a great place to live? Columbia has not been listed as a great place to live independent of Ellicott City or Howard Co as a whole in decades. It will be again though!

Posted 7:08 PM, 03.16.10 | Permalink

user mdcommish says...

Columbiauser- yes Howard County makes the list of 10 greatest places to live, which factors more than income into the equation. That has nothing to do with calculating income level. Howard county does have the 3rd highest median income, but is 24th when calculating income on a per-capita basis.

Posted 1:15 AM, 03.17.10 | Permalink

user mdcommish says...

dave-I'm still waiting for you to back up the claim and identify for me which apartment buildings in the county don't accept sec. 8 housing? No basis for what I stated, most empty nesters are leaving the state due to the draconian tax and spend policy which reduces personal wealth. Who are these mystery "young" individuals you speak of with $80,000 cash to drop on a down payment for an efficiency? This isn't Ocean City... Things aren't improving, as you claim.

Posted 1:39 AM, 03.17.10 | Permalink

user columbiauser says...

I think Dave and mdcommish have made my point. Thanks! Whether 3rd in median income or 24th in per capita income, Howard County (not just Columbia) is still consistently recognized as being in the top 10, taking many factors into consideration. No conspiracy, Independent, no skewing. Just recognition.

Posted 7:30 AM, 03.17.10 | Permalink

user mdcommish says...

^This is due to the proximity of DC alone.

Posted 11:29 PM, 03.17.10 | Permalink