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Rockville apartments given red light

Opponents of a 109-unit apartment complex planned near Rockville Town Center scored a win this week when an appellate court said the city improperly approved a use permit for the building.

The Court of Special Appeals said the Rockville planning commission did not follow its own ordinance in analyzing the project’s impact on the local school system.

James L. Parsons Jr., an attorney with Lynott, Lynott & Parsons PA, who represented neighbors of the development, said he was pleased with Monday’s decision, which reversed a ruling by the Montgomery County Circuit Court.

“We felt very vindicated by the decision because we had said all along that they had erroneously read the ordinance,” Parsons said.

Rockville City Hall offices were closed Tuesday for Election Day, and a phone call to City Attorney Debra Y. Daniel went unanswered. William Kominers, a Bethesda-based lawyer who also represented the city on appeal, did not return a call for comment.

In 1993, MHP Town Center Inc. purchased a vacant motel near Rockville Town Center in the City of Rockville and renovated the property, turning it into a 60-unit affordable housing building named Beall’s Grant I. Twelve years later, it purchased the adjacent vacant parcel to build additional affordable housing units.

On Oct. 20, 2006, the group filed a use permit application to build Beall’s Grant II, a four-and-a-half story building with 109 apartments over a common garage.

The proposed building was located in the Richard Montgomery High School cluster, which includes Julius West Middle School and Beall Elementary School.

The city’s Adequate Public Facilities Standards, adopted to implement the eponymous ordinance, require an assessment of school capacity and school demand at both the project approval and use permit approval stages of development.

For Beall’s Grant II, the city allowed the developer to use student capacity calculations made by the Montgomery County Public Schools for 2009-2010 and add the anticipated number of students the development would bring in. The school system’s numbers did not include any potential new students from other projects.

Based on that calculation, MHP’s counsel wrote to the city’s chief of planning on Jan. 23, 2008, advising that there was sufficient capacity at the elementary school to meet the city’s Adequate Public Facilities Ordinance.

That August, the planning commission accepted MHP’s assertion and concluded that the school-capacity ordinance was satisfied.

The neighbors said that although the school capacity figures were correct, the city did not include information about school demand, which is determined by changes in demographics and school district boundaries, and is also required by the city’s ordinance.

The appellant also argued that the project’s developers failed to include projections for the 2008-2009 school year, which would have pushed demand at Beall Elementary above the permissible level of 110 percent of capacity.

Reserved vs. used

The City of Rockville said the neighbors’ case hangs on a word: “reserved.” The city said the appellants misconstrued the meaning of the word as used in the city’s public facilities standards.

According to the city, potential students added by a project need not be taken into account until the building permit stage. When the project is about to be constructed, it said, “capacity is moved from the reserved to the used category.”

Doing otherwise would be like a hotel taking a reservation in January for a room on Labor Day weekend and holding the space open until then, the city said.

But the neighbors’ attorney disagreed Tuesday.

“It’s kind of like reserving a seat on a plane,” Parsons said. “If you don’t hold the capacity open from the time of capacity approval, by the time the project is completed, you will have overbooked the project capacity.”

The Court of Special Appeals said the planning commission mixed the concepts of “reserved” student capacity with “used” student capacity defined in the public facilities standards. Also, the planning commission only considered one school year, not two, as required, and it failed to include student demand.

The court said the city did not follow “the express language” of its own ordinance and standards.

“Although the City of Rockville may very well be correct that it makes little or no common sense to follow the plain language of the APFS and perform the required analysis … we did not write the City’s ordinance,” retired Judge Raymond G. Thieme Jr. wrote for the unanimous appellate court.

The planning commission’s decision also could not stand, according to the court, because it did not make any factual findings at its public hearing or in its written decision regarding school demand.

WHAT THE COURT HELD

Case:

John Anselmo, et al v. Mayor and City Council of Rockville, et al, No. 1006, Sept. Term 2009. Reported. Opinion by

Barrington D. Henry v. Gateway Inc., et al, No. 537, Sept. Term 2008. Reported. Opinion by Thieme, J., retired, spec. assigned. Filed Nov. 1, 2010

Issue:

(1) Did the planning commission err by approving a developer’s application based on an erroneous construction of the City of Rockville’s Adequate Public Facilities Ordinance and its implementing Adequate Public Facilities Standards, and fail to make the findings required by city code?

Holding:

Yes;

Counsel:

James L Parsons Jr. for appellant; Debra Y. Daniel and William Kominers for appellee

RecordFax#10-1101-01 (17 pages)