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| A suit seeking an injunction
against performance of the Developer’s Rights and Responsibilities Agreement
(DRRA) for Four Seasons was filed in QAC Circuit court on 10/8/02.
This COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF was filed by Plaintiffs QUEEN ANNE'S CONSERVATION ASSOCIATION, INC., RICHARD S. ALTMAN and ELEANOR ALTMAN, RICHARD J. PAQUIN and DEBRA MAE PAQUIN, VIRGINIA B. WEST, BERNARD W. JEDROWICZ and MARY JEDROWICZ, vs THE COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY and K. HOVANANIAN AT KENT ISLAND LLC, Defendents.
The suit requests the following actions be taken:
That the Court make the following Declarations:
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 was not the subject of review by the Queen Anne’s County Planning Commission; was not the subject of public hearing, and was executed in violation of Maryland Annotated Code, Article 66B, and is null and void;
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 violated the Moratorium imposed by Queen Anne’s County, by means of Resolution No. 02-31 and is null and void;
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 constitutes a denial of the right to equal Protection under the law, is unlawfully discriminatory under the Fourteenth Amendment to the Constitution of the United States and the Maryland Declaration of Rights, and is null and void;
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 is an unlawful denial of equal protection, confers special privilege and renders the Moratorium a Special Law, and is null and void; and
That the Court issue a permanent injunction against performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002.
The full text of the filing is below if anyone wants to read it. We'll try to post it on our website by the end of the month. KIDL
QUEEN ANNE’S CONSERVATION
* IN
THE CIRCUIT COURT
RICHARD S. ALTMAN and ELEANOR ALTMAN 2800 Bennett Point Road Queenstown, Maryland 21658
and
RICHARD J. PAQUIN and * FOR QUEEN ANNE’S DEBRA MAE PAQUIN 100 Tackle Circle Chester, MD 21619
and
VIRGINIA B. WEST 306 Skipper Lane Chester, MD 21619
and * COUNTY, MARYLAND
BERNARD W. JEDROWICZ and MARY JEDROWICZ 322 Castle Marina Road Chester, MD 21619
Plaintiffs
v.
THE COUNTY COMMISSIONERS OF QUEEN ANNE’S COUNTY, MARYLAND 107 North Liberty Street Centreville, MD 21617
and * CASE NO.
K. HOVANANIAN AT KENT ISLAND LLC A Maryland Limited Liability Company 1901 Research Boulevard, Suite 220 Rockville, MD 20850
Serve on: Donna M. McMillan, Res. Agent 1901 Research Boulevard, Suite 220 Rockville, MD 20850
and
K. HOVNANIAN COMPANIES OF MARYLAND, INC. A Maryland Corporation C/o Corporation Trust Incorporated 300 East Lombard Street Baltimore, MD 21202
Defendants *
COME NOW the Plaintiffs Queen Anne’s Conservation Association, Inc., a Maryland corporation, Richard S. Altman and Eleanor V. Altman, Richard J. Paquin and Debra Mae Paquin, Virginia B. West, Bernard W. Jedrowicz and Mary Jedrowicz, by their attorneys, C. Daniel Saunders and Thomas A. Deming; and sue the Defendants, The County Commissioners of Queen Anne’s County, Maryland; and K. Hovanian at Kent Island, LLC, a Maryland Limited Liability Company, K. Hovnanian Companies of Maryland, Inc. a Maryland corporation, Defendants, saying:
1. Plaintiff Queen Anne’s Conservation Association, Inc. is a Maryland corporation concerned with issues raised in this action. 2.Plaintiffs Altman are residents and taxpayers of Queenstown, Queen Anne’s County, Maryland. 3. Plaintiffs Paquin, West and Jedrowicz live within sight and sound of the Defendants Hovnanian’s proposed Four Seasons project on Kent Island, are residents and taxpayers of Chester, Queen Anne’s County, Maryland, and are served by the sewage treatment facility in their area, and pay the rates imposed therefor. 4. The Defendants County Commissioners of Queen Anne’s County, Maryland, are the governing body of Queen Anne’s County, Maryland. 5. Defendant K. Hovnanian at Kent Island, LLC, is a Maryland Limited Liability company, a Developer of real estate, and owner of approximately 487.15 acres of land, more or less, and contract purchaser of additional lands located in the Fourth Election District, Queen Anne’s County, Maryland, and proposes to build a development in the Fourth Election District of Queen Anne’s County, known as “K. Hovnanian’s Four Seasons at Kent Island”, to include housing, recreational and accessory uses for 1,350 dwellings and an assisted living facility. 6. Defendant K. Hovnanian Companies of Maryland, Inc., a Maryland corporation is guarantor of payments in the contract which is the subject matter of this dispute. 7. On or about September 17, 2002, Defendants K. Hovnanian at Kent Island, LLC and The County Commissioners of Queen Anne’s County, Maryland, entered into a Developer’s Rights and Responsibilities Agreement (hereafter the “Executed DRRA”). A copy of that Agreement is attached hereto as “Exhibit A” and made a part hereof. 8. “A principal purpose” of the DRRA was “to bind the Developer to long term off-site public improvements which it can make in consideration of and upon reliance that the County will not change the rules and regulations pertaining to the development of the Subject Properties from those in effect when this Agreement was executed”. (Exhibit A, paragraph 3) 9. Development Rights and Responsibilities Agreements (DRRA’s) are authorized in Annotated Code of Maryland, Article 66B §13.01. That statute requires that before a DRRA can be entered into, the public principal, (in Queen Anne’s County, the County Commissioners) shall conduct a public hearing. [Article 66B §13.01(d)]. The statute also provides that the County Commissioners may not enter into a DRRA unless the local planning commission determines whether the agreement is consistent with the Comprehensive Plan and development regulations for Queen Anne’s County [Article 66B §13.01(e, f)]. Nor can the County Commissioners amend a DRRA unless a public hearing is conducted and the Planning Commission has determined whether the proposed amendment is consistent with the Comprehensive Plan. [Article 66B §13.01(h)]. 10. On July 11, 2002, The Queen Anne’s County Planning Commission reviewed a proposed DRRA, conducted its hearing and approved the proposed DRRA as consistent with the Comprehensive Plan for Queen Anne’s County. A copy of the proposed DRRA is attached hereto as “Exhibit B” and made a part hereof. (Hereinafter, the “Proposed DRRA”) 11. On August 6, 2002, the County Commissioners for Queen Anne’s County held a public hearing concerning the Proposed DRRA (Exhibit B). 12. On September 17, 2002, a revised DRRA (Exhibit A, the Executed DRRA) was executed by H. Hovnanian at Kent Island, LLC and The County Commissioners. The Executed DRRA differed in a number of material respects from the Proposed DRRA which had been the subject of both the Planning Commission review and approval, and the County Commissioners’ public hearing. Exhibit A shows new material in yellow highlights; Exhibit B shows deleted material in blue highlights. 13. There is presently a moratorium in Queen Anne’s County prohibiting applications or approvals for subdivisions, site plans, growth allocation, Interim Adequate Public Facilities Studies or plans as of May 21, 2002 by virtue of Resolution No. 02-31, imposed by the Defendants County Commissioners of Queen Anne’s County. A copy of that Resolution is attached hereto as “Exhibit C” and made a part hereof. 14. The aforementioned moratorium was imposed in an effort to prevent rapid development which would “especially in the Fourth Election District” overwhelm existing roads, water and sewer facilities and schools pending implementation of the new Comprehensive Plan and the new Zoning and Subdivision Ordinance, new Zoning Map, Adequate Public Facilities Ordinance, Master Water and Sewer Plan, revised Roads Ordinance, and other transportation, growth allocation and other plans, all in final stages of development and review. 15. The Executed DRRA provides that notwithstanding the enactment of the new zoning regulations and plans cited above, Defendants Hovnanian alone will be able to develop the Four Seasons project under the standards in effect at the time of execution of the DRRA (Exhibit A, Article XII), thereby exempting Defendants Hovnanian from the effect of the moratorium and the effect of the new, stricter development standards to which all other projects will be held once the moratorium is lifted. 16. If Defendants are permitted to proceed with performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002, Plaintiffs and the public at large will suffer immediate, substantial and irreparable injury with the implementation of the unlawful preference for building permits. 17. The DRRA provides for a variety of expenditures of public funds by the County Commissioners, including expansion of the Kent Narrows/Stevensville/ Grasonville Sewage treatment facility. If the Defendants Commissioners expends these funds pursuant to an invalid DRRA, substantial and irreparable harm to the County and its taxpayers will occur. 18. The benefits to Plaintiffs and the public in obtaining injunctive relief are equal to or outweigh the potential harm to the Defendants if the Court grants injunctive relief as requested. 19. The public interest is best served by granting an injunction against performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002. COUNT ONE VIOLATION OF ENABLING LEGISLATION
20. The allegations of fact contained above are adopted and made a part hereof, and further, that an actual controversy and justiciable issue exists between the Plaintiffs and the Defendants, and litigation is imminent and inevitable. A declaratory judgment pursuant to Maryland Annotated Code, Courts and Judicial Proceedings Article §3-401, et seq. will terminate the uncertainty and controversy. 21. The executed DRRA signed on September 17, 2002, having been revised in material respects, is substantially different from the Proposed DRRA which was reviewed by the Planning Commission and which was the subject of the public hearings conducted by the Planning Commission and the County Commissioners. 22. The execution of the DRRA on September 17, 2002, violated the provisions of Article 66B §13.01(e,f) and the agreement is null and void. 23. Article XII ¶ 12.1(b) of the Executed DRRA also attempts to circumvent the intent of the State enabling legislation. It provides: If the County Commissioners have specifically determined that the imposition upon the Four Seasons development and compliance by the Four Seasons development with Development Laws enacted or adopted after the Effective Date of this Agreement is essential to ensure the health, safety or welfare of residents of all or part of Queen Anne’s County, the County may impose the change in laws, rules, regulations and policies and the effect thereof upon the Four Seasons development. The County agrees that the foregoing phrase “essential to ensure the public health, safety and welfare of residents” requires study, evaluation, conclusions and findings above and beyond the legal standards and legislative discretion normally used to enact and apply land use regulations.
By adding this language to the DRRA, the parties attempt to nullify and render meaningless the language of Article 66B§13.01(j)(2) which provides: An agreement may not prevent a local government from requiring a person to comply with the laws, rules, regulations, and policies enacted after the date of the agreement, if the local government determines that imposition and compliance with these laws and regulations is essential to ensure the public health, safety, or welfare of residents of all or part of the jurisdiction.
The insertion of the offending language into the Executed DRRA is a thinly veiled attempt to unlawfully hamstring future County Commissioners from exercising the prerogatives guaranteed to them by the State law. WHEREFORE, the Plaintiffs request
A. The Court make the following Declaration:
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 was not the subject of review by the Queen Anne’s County Planning Commission; was not the subject of public hearing, and was executed in violation of Maryland Annotated Code, Article 66B, and is null and void.
B. The Court order the County Commissioners to submit the Developer’s Rights and Responsibilities Agreement as revised to the Planning Commission for a new review and public hearing; and conduct their own public hearing on the agreement as revised prior to the execution of the agreement as required by law.
COUNT TWO VIOLATION OF COUNTY MORATORIUM
24. The allegations of fact contained above are adopted and made a part hereof, and further, the DRRA was executed after the County Commissioners had imposed a moratorium (Exhibit C), explicitly stating that new development, particularly in the Fourth District of Queen Anne’s County, had to be planned and controlled under new and more stringent standards that were being implemented by means of the new Comprehensive Plan, Zoning Ordinance, Zoning Map, Subdivision Ordinance, Water and Sewer Plan, Transportation Plan, Growth Allocation Plan, Adequate Public Facilities Ordinance, and other new ordinances and regulations. 25. Execution of the DRRA, which specifically exempts the Four Seasons project from any new standards, constitutes a blatant violation of the express terms of the Moratorium, as well as the spirit and intent of the moratorium. WHEREFORE, Plaintiffs request
A. The Court make the following Declaration:
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 violated the Moratorium imposed by Queen Anne’s County, by means of Resolution No. 02-31 and is null and void.
B. The Court issue a permanent injunction against performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002. COUNT THREE DENIAL OF EQUAL PROTECTION
26. The allegations of fact contained above are adopted and made a part hereof, and further, Execution of the DRRA, exempting the Four Seasons project from any new standards and from any substantive effect of the moratorium gives the Defendants Hovnanian a preference over all other individuals or developers now waiting for the moratorium to be lifted, as well as all those who will apply for review and permits in the future. Defendants Hovnanian have been granted a privilege and preference which is a denial to all others of equal protection of the law. 27. The DRRA provides at paragraph 12.3 that the Four Seasons project shall be entitled to as many as 200 building permits in any calendar year with no limit on the number of permits they may receive. The County has issued approximately 400 buildings permits each year, county-wide since 1990. The new regulations will likely impose a maximum limit on the number of building permits in the County, a limit that may be well below 400 permits per year. Indeed, future studies may demonstrate a need to limit new permits to 200 per year, particularly in the Fourth District of Queen Anne’s County. In such cases, the guarantee of 200 annual permits could entitle Defendants Hovnanian to 50% to 100% of the permits for the entire county. In all probability they would be entitled to all of the permits available in the Fourth District. 28. Moreover, the Executed DRRA, at Article VI ¶ 6.4(c), gives the Four Seasons project preferential treatment over all others wishing to build a home in Queen Anne’s County in the (now likely) event that the County is unable to complete upgrades to the sewage treatment plant. In such event, Four Seasons may obtain sewer and water allocations to the exclusion of all others.
WHEREFORE, Plaintiffs request A. The Court make the following Declaration:
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 constitutes a denial of the right to equal Protection under the law, is unlawfully discriminatory under the Fourteenth Amendment to the Constitution of the United States and the Maryland Declaration of Rights, and is null and void.
B. The Court issue a permanent injunction against performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002.
COUNT FOUR SPECIAL LAW
29. The allegations of fact contained above are adopted and made a part hereof, and further, the passage of the Moratorium, when combined with the execution of the DRRA, operates to render the Moratorium a Special Law which is prohibited by Article III §33 of the Maryland Constitution. WHEREFORE, Plaintiffs request: A. The Court make the following declaration:
The Developer’s Rights and Responsibilities Agreement executed on September 17, 2002 is an unlawful denial of equal protection, confers special privilege and renders the Moratorium a Special Law, and is null and void.
B. The Court issue a permanent injunction against performance of the Developer’s Rights and Responsibilities Agreement executed on September 17, 2002.
________________________ C. Daniel Saunders P.O. Box 158 Chestertown, MD 21620 (410) 778-4510
________________________ Thomas A. Deming 506 Sunwood Lane Annapolis, MD 21401 (410) 757-0100
Attorneys for Plaintiffs
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