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The Tentacle


April 17, 2015

RALE President Responds to Delauter Column

Guest Columnist

Steve McKay

Now Kirby, there you go again. In your column on TheTentacle.com posted on April 10, 2015, you make quite a few misleading statements about Residents Against Landsdale Expansion (RALE) and our appeal of the Monrovia Town Center (MTC) approval. So much so, that I feel compelled to set the record straight.

Let’s start with your assertion that “MTC meets all the guidelines of county code.” That’s a rather self-serving assertion when you consider all the ways that your former Board of County Commissioners weakened and undermined several pertinent codes. You virtually gutted the Adequate Public Facilities Ordinance (APFO), paving the way for your “pay to play” development approach.

Rather than ensuring adequate financing for roads and schools, your revised APFO green-lighted developments with reduced requirements and oversight, and then under-financed the infrastructure needed to support them.

The illegal piecemeal zoning action that you called a Comprehensive Plan “revision” had nothing to do with planning, and everything to do with looking after the profit margins of developers. But you didn’t even get that right, did you?

Your Board of County Commissioners never quite got around to actually fixing the plan document itself. You zoned before you planned, which was exactly the opposite of what you were supposed to do, and then you never got around to finishing the plan.

So, here we sit with a Comprehensive Plan document riddled with internal inconsistencies, and Monrovia Town Center lies right in the heart of those inconsistencies.

Next, Mr. Delauter states that RALE has “demonized” former Commissioner Paul Smith about the Frederick Area Committee on Transportation (FACT) letter and how he used it to sway the commissioners to approve MTC. In fact, RALE didn’t have to say any of that because Circuit Court Judge William R. Nicklas said it for us.

Let me remind Mr. Delauter about the judge’s findings because I find it curious that he never once mentions the judge in his column. In his order remanding the MTC case to the county, Judge Nicklas documented the following findings (emphasis added):

1) That Commissioner Smith attended the April 14, 2014, FACT Committee meeting; and

2) That Commissioner Smith commented on MTC’s pending application, as reflected in the April 14, 2014, FACT Committee Meeting Minutes; and

3) That MD Code, General Provisions 5-859(b) states: “A member of the governing body who communicates ex-parte with an individual concerning a pending application during the pendency of the application shall file with the Chief Administrative Officer a separate disclosure for each communication with the later of 7 days after the communication was made or received,” and there requires disclosure of such communications;”

4) That pursuant to the Public Ethics 2014 Annual Report to the Frederick County Ethics Commission, where the [Board of County Commissioners] discloses ex-parte communications, Commissioner Smith’s comments were not disclosed;

5) That the FACT committee incorporated the information from Commissioner Smith into its April 23, 2014, letter to the Board of County Commissioners;

6) That the FACT letter was presented to the Commissioners with the intent to influence the pending vote;

7) That the FACT letter was read into the record at the end of testimony by Commissioners’ President, Blaine Young, which is highly suggestive that the commissioners relied upon it.

 

Let’s parse a few things out of the judge’s findings and compare those to Mr. Delauter’s assertions.

First, RALE isn’t demonizing Paul Smith. We have simply referenced the reporting in The Frederick News-Post in their June 3, 2014, story about Mr. Smith’s role in producing the FACT letter, a role that Mr. Smith acknowledged in the article.

The problem for Mr. Smith, and the one identified by Judge Nicklas, is that he didn’t report those FACT conversations about MTC. That’s required under the Ethics Ordinance. Funny how Mr. Delauter didn’t remember about the Ethics Ordinance – perhaps he should read up on it. After all, he might learn a thing or two.

Mr. Delauter also claims that RALE alleged that Mr. Smith tried to sway the Board of County Commissioners with the FACT letter. Again, it was in fact Judge Nicklas who makes these conclusions when, in Finding #6, he stated that the letter was intended to “influence the pending vote.”

Also, in Finding #7, Judge Nicklas described that Blaine Young reading the letter into the record was “highly suggestive that the BoCC relied upon it.”

In his opinion, the judge also wrote that “the letter’s presentation was intended to have great influence upon the ensuing vote by the commissioners.”

I could also reference Mr. Delauter’s good friend (and occasional personal attorney) Rand Weinberg. Mr. Weinberg put great emphasis on the letter. In fact, Judge Nicklas wrote that the letter “was relied upon strenuously by counsel for 75-80 Properties” – which was Mr. Weinberg. In their April 25, 2014, article about the MTC approval, the News-Post even quoted Mr. Weinberg as stating that the FACT “letter was a significant piece of evidence.”

I guess it was easier for Mr. Delauter to attack RALE on this issue. After all, a sitting Circuit Court judge, who issued a series of damning findings about Paul Smith, is a harder target for Mr. Delauter. Plus, I suppose RALE was also a much easier target to criticize than his friend Rand Weinberg, who had played up the significance of the letter so much during and after the hearings.

One last observation about Mr. Delauter’s column was the curious phrasing that he used when he said that the FACT letter “was brought up by former Commissioner Paul Smith.”

The letter was presented at the hearing by Blaine Young, not Paul Smith. During the hearing, Paul Smith made no mention of the letter or his role in creating it. Could this suggest that Mr. Delauter had prior knowledge of the letter – perhaps some earlier occasion when Paul Smith might have “brought it up?”

This all begs the question – when did Mr. Delauter and the other commissioners know about Paul’s role in creating the FACT letter? When you think about it, when did any of the former commissioners do anything without Blaine’s knowledge and approval?

So, did Mr. Delauter, Mr. Shreve and Mr. Young also have a role in the creation of the FACT letter? That’s a question that hasn’t been asked, but demands an answer.

 



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