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Changes to Mixed Use Zoning Are Still Possible

The Town Council has the power--will they use it?

CAMO has gained important information about the concept of “vesting.” We learned that vesting occurs when property owner has followed existing applicable law in obtaining development right/permit, and has made changes on the property manifesting commencement of work such that public is on notice.

Maryland’s “late vesting” standard as expressed in a line of cases including the 1993 decision in Prince George’s County v. Sunrise Development, in which the Court of Appeals held that “a developer’s rights in the development of a property vest only upon a level of visible commencement of lawful construction,” the construction of actual dwelling foundations on the property.

At this point, there is not even an approved pre-concept plan, let alone a “commencement of lawful construction” by developer for the Beck Property. By this definition, the owner is not vested in this development.

We believe the Town has the legal right to make changes in the zoning of the property, or make changes to the MXD zoning ordinance while there is not a vested party. The entire process of creating MXD zoning was flawed from the beginning, and now is the time to rectify the situation with an actively engaged community.

We learned that developers often try to get around the legal vesting standard by getting municipalities to approve a DRRA (Developer’s Right’s and Responsibilities Agreement) which bypasses the late-vesting requirement. These backroom deals subvert the public comment process and leave community members out of the process, because a DRRA is a developer-driven contract designed purely to “protect the developer from changes in law.”

It appears to us that the Town was contemplating a DRRA with the Kaz Brothers in 2020 and 2021 as evidenced in legal comment during the revision process of Ordinance 2020-01 to develop the MXD zoning.

CAMO advises the Town to avoid proceeding with any such DRRA with the Pleasants Company that would restrict the Town’s ability to control the scope of development.

We believe the well-funded attorneys for the Beck development will intimidate the Town with threats of legal action, and argue that vesting does not apply and the Town can make no changes. CAMO requests an objective legal review of the concept of vesting as it applies to the Town’s rights to re-examine the current zoning and to seek a more complete community-driven process for moving forward.

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