Please ensure Javascript is enabled for purposes of website accessibility
Judge Clayton Greene Jr. (File photo)

Developers must await BPW before heading to court

Hovnanian must exhaust administrative process, court says

Developers cannot seek court orders compelling the Board of Public Works to vote on their proposals without a showing of immediate and irreparably harmful consequences or undue delay, Maryland’s top court has unanimously ruled.

In its decision, the Court of Appeals turned aside K. Hovnanian Homes’ bid for a BPW vote to approve the company’s plan to build more than 1,300 homes near the environmentally sensitive Chester River in Kent Island.

The Court of Appeals said its ruling against the developer is in keeping with the long-held legal principle that businesses and individuals must exhaust the administrative process before seeking recourse in the courts.

Hovnanian’s proposal still awaits a final decision by the board, which consists of the Maryland governor, comptroller and treasurer, the high court added in its decision Wednesday.

“Hovnanian has neither argued nor demonstrated that it is entitled to [judicial] review based on a statute or that it has suffered immediate irreparable harm,” Judge Clayton Greene Jr. wrote for the court. “Thus, Hovnanian is required to await a final administrative decision by the board before filing suit to challenge the review procedure applied in this case.”

The court added that the record before BPW provided no evidence that the board was “deliberately dragging its feet” by not voting on the developer’s proposal.

Hovnanian’s attorneys, John H. Zink III and Joseph A. Stevens, did not return telephone messages seeking comment Thursday on the court’s decision.

Zink is of counsel at Snee, Mahoney, Lutche & Helmlinger P.A. in Bel Air. Stevens is a name partner with Stevens Palmer LLC in Centreville.

The board is represented in court by the Maryland attorney general’s office.

David Nitkin, spokesman for the office, declined to comment on the high court’s decision, noting the underlying matter remains pending before BPW.

562-acre project

Hovnanian’s proposed Four Seasons at Kent Island development consists of 1,350 homes and assisted-living, community and recreational facilities on 562 acres between Chester and Stevensville. The developer has obtained all but one of the necessary permits and approvals from state and local agencies: a license for the dredging or filling of state-owned wetlands.

The board had rejected Hovnanian’s license application, and thus the development proposal, in 2007. BPW cited concerns that the development — in an environmentally sensitive “critical area” near Chesapeake Bay — would harm the bay.

But the Court of Appeals ruled in 2012 that the board exceeded its authority in that decision and sent the issue back to the three-member panel with instructions that it base its decision solely on whether the project would damage wetlands in the area to be developed.

In July 2013, the board indefinitely delayed a vote on the permit to enable Queen Anne’s County officials to seek guarantees from Hovnanian that environment effects from the project’s construction will be reduced.

On Jan. 13, 2014, Hovnanian filed for an order by the Queen Anne’s County Circuit Court that BPW vote on the developer’s application. The circuit court held a hearing in July and issued an order that the board vote on Hovnanian’s application no later than Oct. 6, 2014.

BPW replied by seeking review by the Court of Appeals, which stayed the order pending its consideration of the board’s appeal.

The case is Board of Public Works v. K. Hovnanian’s Four Seasons at Kent Island LLC, No. 57, September Term 2014.