Jeffrey Thompson said the main point made by the legal advisors is that a state general law - in this case the state's critical area law - is not subject to a local referendum. 

KIDL members collected more than 4,400 signatures of registered Queen Anne's County voters on a petition which challenged an ordinance approved Aug. 21 by the county commissioners. Ordinance No. 01-01 amended the county's critical area maps by approving 372.5 acres of growth allocation for Four Seasons, a planned residential development of about 1,350 homes that would be built in the Chester and Stevensville areas, north of U.S. Route 50. The development planned by K. Hovnanian Companies of Maryland would be an age restricted community in which a principal resident of each home would have to be 55 or older. No one 17 or younger could live there. 

Growth allocation is a mechanism which allows more intensive development in the critical area - the area within 1,000 feet of the tidal waters of the Chesapeake Bay. 

The ordinance approved the growth allocation subject to many conditions, including a developer rights and responsibilities agreement being reached between Hovnanian and the commissioners. The growth allocation would change the designation of 293 acres from resource conservation area to intense development area and 79.5 acres from limited development area to IDA. 

"I'm pretty much astounded at this point. ... I'm very upset about what's going on," said Chester resident Rick Moser, KIDL president.

KIDL members put "hundreds of hours of work" in gathering petition signatures, said Moser. The citizens group will confer with two lawyers before deciding its next move. 

Mark Stemen, Metro D.C. North Area president for K. Hovnanian Companies, issued a statement which said the company was pleased with the election board's ruling.

Hovnanian felt the referendum petition was contrary to the law "because it would be improper to submit the state critical area law to a local referendum."

The statement said the company has worked closely with county officials, civic groups, neighboring communities and the Chesapeake Bay Critical Area Commission for more than four years in the planning review process for Four Season, an active adult community. 

"As we have demonstrated from the beginning, we will work closely with local officials and the community, and follow the rules," said Stemen. "It's time to stop the delaying tactics and move forward with the Four Seasons community under the current process and laws." 

Williams, the chief election official for Queen Anne's County, issued a "declaration of deficiency" under Article 33, Election Code, section 6-206 (c) of the Annotated Code of Maryland.

Based on a review of the law and the advice of county attorney Thompson and Maryland Assistant Attorney General Zarnoch, Williams found the KIDL petition deficient for three reasons.

1. A county ordinance amending the local critical area maps adopted under the Queen Anne's County Critical Area Program (Title 14 of the Code of Public Local Laws of Queen Anne's County) is not a "public local law" subject to referendum under Section 10(h)(2) of Article 25B of the Annotated Code of Maryland.

2. Article 25B, Section 10 authorizes local referendum for acts "enacted under this subtitle," i.e. acts adopted pursuant to a county's home rule powers. Article 25B, Section 10 does not authorize a petition for referendum of a critical area map amendment adopted as part of the local critical area program authorized by section 8-1808 of the Natural Resources Article of the Annotated Code of Maryland.

3. The failure to have included the amended critical area maps as part of each signature page of the referendum petition or to have had each signature page prominently state that a copy of the maps were immediately available from the circulator of the petition violates the applicable election code and COMAR provisions cited above.

Moser said he didn't understand why a legal notice was published in the newspaper if the ordinance was not subject to a referendum. A legal notice printed in the Aug. 31 edition of The Record-Observer said county ordinance No. 01-01 would take effect 46 days after its passage "unless a referendum petition complying with application of Maryland Law is filed within forty (40) days after August 21, 2001." 

KIDL members gathered signatures over five weekends in September and October. The goal was to delay enactment of the ordinance so the growth allocation request for Four Seasons could be put on the ballot as a referendum for Queen Anne's County voters to decide in the November 2002 election. 

KIDL submitted 2,127 signatures to the election board Sept. 28 and another 2,282 Oct. 23 for a total of 4,409 signatures. The total number of registered voters in Queen Anne's County is roughly 21,800. At least 10 percent of the county's registered voters had to sign the petition by Sept. 30 to delay enactment of the ordinance. But if a petition with 5 percent of the total was submitted by the 40-day deadline, then a 40-day extension is granted to allow the petitioners more time to meet the 10 percent requirement. The signatures have to be validated by the election board staff.

But Jeffrey Thompson said the election code in Maryland's annotated code spells out other things a county election official has to check regarding a petition for referendum.

The election code says the chief election official can determine a petition is deficient for reasons relating to the form and subject of the petition and can also make a determination of deficiency "based on the advice of the legal authority."

Jeffrey Thompson said the election code specifies that on issues relating to referendum petitions the legal authority is not the election board attorney, but the county attorney.

In this case, the KIDL petition was challenging a county ordinance and it presented an apparent conflict of interest to have county attorney Patrick Thompson give advice. Because of that, Jeffrey Thompson and the Queen Anne's County Commissioner - through Del. Wheeler Baker, D-36th-Queen Anne's - sought advise from the Maryland Attorney General's Office. They were told the county attorney was still obligated to provide advice.

In an Oct. 15 letter to Williams, Patrick Thompson gave advice on two legal questions. He also sent Williams a copy of an Oct. 10 letter that Zarnoch wrote to Del. Baker which gave advice on a third legal question. Zarnoch is also counsel to the Maryland General Assembly. 

Jeffrey Thompson said Joseph Stevens, attorney for Hovnanian, sent two letters (Sept. 28 and Oct. 2) to the election board objecting to the referendum petition. The first letter objected on the grounds that ordinance no. 01-01 was not a proper subject to bring to referendum. The second letter said copies of the critical area maps were not attached to the petitions when people signed them. 

©The Star Democrat 2001 

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