Guest Post: The Culture of Soft Corruption in Baltimore County
Editor’s Note: The following is a guest post from David Plymyer, Esq. You can read more of his work at https://davidplymyer.com/
The culture of soft corruption in Baltimore County.
In my opinion, the ill-considered course of conduct by the administration of Baltimore County Executive Kevin Kamenetz regarding the proposed development known as “Towson Station” located on property currently owned by the county is a prime example of the culture of soft corruption that pervades the Baltimore County government. In its haste to conclude the sale to the prospective developer, the Kamenetz administration trampled the due process rights of citizens opposed to the proposed development and then thumbed its nose at a condition placed on the proposed development by the County Council. And that may just be the beginning.
The proposed site of Towson Station is a 5.8-acre parcel of land at the intersection of York Road and Bosley Avenue that has been under a contract of sale with Caves Valley Partners since 2013. The County’s first errant step was to create an inherent conflict of interest between its proprietary interests and it regulatory duties by giving itself a financial stake in the outcome of the application by Caves Valley for approval by the County of a form of development known as a planned unit development (PUD).
I described the flawed way in which the County structured the transaction in a prior post. [“The Towson Station fiasco – a process flawed from the start,” August 12, 2017.] This post is an updated version of the previous one, as information slowly continues to come out.
When the County put the property up for sale it solicited proposals that included the purchase prices offered and the types of development proposed by the prospective buyers. Caves Valley offered the most money, $8.3 million, which was $2.2 million more than the next-highest offer.
The hitch was that the development proposed by Caves Valley included a Royal Farms gas station and convenience store. The zoning classification applicable to the property does not permit the property to be used for a gas station. Instead of rejecting the proposal out of hand, the County decided to strike a deal: It signed a contract of sale for the property contingent on Caves Valley gaining approval of a PUD. The County Council approved the contract in December 2013. Property that is developed under a PUD may include a use that is otherwise prohibited by the zoning classification of the property.
The process that resulted in the contract between the County and Caves Valley took place in secret. County Executive Kevin Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”
County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It seems that the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived or owned businesses in Towson. The deal with Caves Valley was controversial from the start because of widespread opposition to placing a gas station on the property, often described as part of the “gateway” to Towson.
An important feature of a PUD is that, because it is used to allow a parcel of land to be developed in a different way than permitted by the zoning classification and general zoning regulations applicable to the parcel, it triggers due process rights in nearby property owners who object to the “non-standard” development of the parcel. Consequently, the County is obliged to evaluate an application for a PUD in a fair and impartial manner that respects the rights of opponents. That obligation went by the boards as soon as the deal with Caves Valley was struck.
The property goes to settlement – and the County only gets its $8.3 million – if the PUD allowing the gas station is approved by the County. Does that sound like a formula for a fair and impartial evaluation of the PUD by the County? Of course not. Opponents of the project were at a disadvantage from the beginning because the County gave itself an economic incentive to approve the PUD.
Things went downhill from there. In December 2016, the County Council adopted Resolution No. 113-16 giving preliminary approval to the Towson Station PUD. Under intense pressure from citizens the County Council added conditions to the PUD, including the requirement that “existing mature trees that surround the site are protected.”
It appears that requirement may not have pleased Caves Valley. On April 1, 2017, without prior notice even to Councilman David Marks, who represents the district where the property is located and sponsored Resolution No. 113-16, a contractor for the County cut down 30 trees. Gone were seven “specimen” trees – trees having a diameter of 30 inches or more, and gone were the trees on the perimeter of the property ostensibly protected by Resolution No. 113-16.
On April 3, 2017, County Administrative Officer Fred Homan appeared before the County Council to explain the administration’s actions. Councilman Marks pointed out to Mr. Homan that Resolution No. 113-16 conditioned the approval of the PUD on the preservation of the perimeter trees.
Mr. Homan responded: “That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.” That was Mr. Homan’s way of pointing out that, technically, conditions placed on the PUD applied only to the developer, not to the County; the developer itself couldn’t cut down the trees to facilitate its development but the County could do so for the developer. In others, Councilman Marks, “gotcha.”
If there was any doubt about the reason that the County administration removed the trees Mr. Homan eliminated it by further explaining:
“And quite frankly, the County is currently moving to accelerate the settlement on the property so the County can receive the 8 million dollars that it’s currently had to forward finance through the sale of debt. That keeps the revenue as a receivable, which does not help. The County needs the cash from the sale of the property. So, the County is trying to accelerate the close of the property. That’s what’s going on at this point in time.” [Emphasis added.]
The implication of his statement was that the requirement to preserve the perimeter trees was an impediment to closing the sale of the property to Caves Valley, and the County administration removed the impediment. Maybe Mr. Homan thought that the administration was being clever by exploiting what he believed to be a technicality; if so, I’m not so sure that he will think that it was such a good idea by the time that this is over.
First, the removal of the trees may ultimately doom approval of the PUD, which must survive both administrative appeal and judicial review. A gas station is a much more “intensive” use of the property than permitted by the underlying zoning, generating considerably more traffic and noise and a less appealing visual impact.
The County Council conditioned approval of the PUD with its gas station on the retention of the mature trees that would have partially screened the gas station from surrounding properties and from the vehicular and pedestrian traffic that passes by the property. Regardless of whether the County acted at the behest of the developer in removing the trees or acted solely on its own volition, the screening and treed buffer upon which approval of a gas station on the property was conditioned is now gone. How can the PUD survive a serious legal challenge under that circumstance?
Second, the sheer brazenness and arrogance of the removal of the 30 trees, and the explanation given for it by Mr. Homan, will continue to resonate. It symbolizes the attitude of the Kamenetz administration toward its citizens, and even toward members of the County Council when they step out of line. It tends to reinforce the belief that Mr. Kamenetz’s infamous comment “it’s my job to talk, your job to listen right now” was more than an ill-tempered response to a heckler; it reflects a style of governance.
Could it possibly get any worse? Maybe. We will find out the answer to that question once we have a chance to review the “project plan” and Forest Conservation Plan submitted to and approved by the County’s Department of Environmental Protection and Sustainability (DEPS) before the trees were removed were removed from the property – if those documents exist.
I have tried without success to have officials with DEPS, and the attorney who advises them, to confirm the existence of an approved project plan that I could review. The project plan necessarily includes a Forest Conservation Plan, among other documents. It is a question that would take a DEPS employee with access to the department’s database less than two minutes to answer. They spent more time jerking me around than it would have taken to confirm existence of the records. In his email to me, an Assistant County Attorney informed me that “we produce documents, not confirm information.” As you can tell, there is not always a citizen-friendly approach to the way that the County does business.
A point relevant to the county’s removal of the trees is that there are detailed provisions of State and County law that limit the rights of persons who seek to develop, improve or clear property to remove existing trees on the property. As it happens, my last paying job as a lawyer was to review compliance by the City of Annapolis with the Maryland Forest Conservation Act.
I spent hours reviewing various documents required by the Forest Conservation Act: Forest Stand Delineations, Preliminary and Final Forest Conservation Plans, etc. In my opinion, it would have been a challenge for Caves Valley to gain approval to remove all 30 of the trees taken down by the County, especially the specimen trees, under a properly reviewed Forest Conservation Plan. The approved Forest Conservation Plan for a PUD is a component of the administrative decision approving a PUD and can be contested as part of an appeal of that decision.
The County administration may consider itself “exempt” from the conditions placed on the PUD by the County Council, but it is not exempt from the provisions of the Forest Conservation Act when clearing trees from its own property. Under the County’s Forest Conservation Regulations, the County was required to submit a “Project Plan” before removing the trees on April 1st because the tree cutting took place on an area of 40,000 square feet or greater.
To gain approval for cutting down the trees the County had to go through the same steps as a private developer, including submitting a Forest Stand Delineation and a Forest Conservation Plan. Both documents must be prepared by a qualified professional and adhere to the detailed guidance of the County’s Forest Conservation Technical Manual, which tracks the requirements set forth in the State Forest Conservation Manual.
In general, a Forest Conservation Plan must be crafted to “protect existed forested areas and specimen trees to the fullest extent possible before, during and after construction.” I believe that the Forest Conservation approved by DEPS will tell us quite a bit about the nature of the County’s actions in removing the trees. What justification could the County give for cutting down 30 trees, including seven specimen trees, other than facilitating the sale of the property by preparing it for development by Caves Valley? I predict that the legal house of cards will collapse when the contents of the Project Plan and Forest Conservation Plan are made public, for reasons I describe later.
All of this took place in the context of what State Senator Jim Brochin and others refer to as the “pay-to-play” environment of Baltimore County. A recent story by Ann Constantino of The Baltimore Post is well worth reading. She describes how Caves Valley and other developers virtually drown elected officials in Baltimore County, including members of the County Council, in campaign contributions.
According to Ms. Constantino, data found in the government database on Caves Valley, its partners and affiliates, and Royal Farms, shows contributions to the County Executive, a slate formed by the County Executive called “A Better Baltimore County Slate,” and all seven members of the County Council, from 2010 to 2017. The contributions, including personal contributions from executives of Caves Valley and Royal Farms, exceeded $100,000 during that period. Little wonder the citizens who oppose the Towson Station project are so cynical.
Speaking of members of the County Council, it is not as if they have covered themselves in glory regarding the Towson Station project. The County Council approved the contract of sale in 2013 and unanimously adopting Resolution No. 113-16 giving preliminary approval to the PUD despite the questionable structure of the transaction.
When Mr. Homan appeared before the County Council two days after the trees were cut down, only Councilman Marks challenged Mr. Homan, albeit weakly – Councilman Marks admonished Mr. Homan only for the fact that Mr. Homan had not called him before the trees were cut down. A County administrative official tells you that, even though the County Council unanimously decided that the trees must stay, he or his boss decided that the trees must go and therefore had them cut down, and the best that you can manage is a complaint about not getting a heads up?
Of course, the other members of the County Council didn’t do any better, sitting by like timid mice. It was a revealing, pathetic turn of events.
In July, Councilman Marks introduced Resolution No. 68-17 which, if adopted, would have rescinded preliminary approval of the PUD. The resolution was tabled on a 4-3 vote that followed party lines, with all four Democrats voting in favor of tabling the resolution indefinitely.
After the resolution was tabled, Mr. Kamenetz gave citizen groups and the developer 30 days to try to come up with a new proposal for the site that did not include a gas station. He acknowledged that dropping the gas station from the project likely would require renegotiating the sales price.
There is no doubt in my mind that Mr. Kamenetz will not allow the Towson Station PUD to proceed with a gas station as part of the development, regardless of what it costs the County financially. He wants this situation to go away, and I am sure that he wishes it never happened.
Even by Baltimore County standards, the way that he and his administration handled this project was particularly imperious and offensive. It caused citizens of the County to take a hard look at the way the County does business, and what they saw was not very flattering to Mr. Kamenetz. The longer this controversy continues, and the more scrutiny that the actions by the administration receive, the worse it gets for Mr. Kamenetz.
Mr. Kamenetz wants to close on the sale of property before any more political damage is done and in hopes that, once a compromise is reached and the property is sold, citizens and other public officials will lose interest in digging any further into what his administration did. There is a distinct M.O. to how the County operates, which I learned when inquiring into “severance pay” controversy.
The County’s first tactic is to stonewall as long as possible, doing its best to keep the public and media from getting relevant information. If that fails, the administration acts quickly to try to resolve the controversy. With both tactics, the overall strategy is the same: Rely on the media and public to have a short attention span and lose interest in a matter once it appears “resolved.”
With the severance pay issue, the County Executive pulled the plug on the controversial “Executive Benefit Policy” two months after I made the policy public in an op-ed published by the Baltimore Sun. Since then, his allies on the County Council have balked at initiating an audit into the administration of the policy, even though an apparent irregularity in that administration may have cost the County tens of thousands of dollars. They guessed correctly, at least to his point, that the media would lose interest in the policy and move on to the next story.
Mr. Kamenetz is pushing a “compromise” that eliminates the gas station from Towson Station. Once that is achieved he will press ahead for final approval of the PUD by the County to end the immediate controversy. He hopes that, true to form, the media and public will lose interest in the issue of whether his administration violated the Forest Conservation Act in removing the trees from the property and, if so, why.
When I refer to a culture of “soft corruption,” I am not referring to conduct that is criminal in nature. I am referring to patterns of behavior that, although legal, work against the public interest. In his recent book, former New Jersey state legislator and reform advocate William Schluter states that soft corruption occurs when “individuals manipulate government functions for reasons of greed, personal advancement, or political advantage.” According to Mr. Schluter, soft corruption is “part of a political culture in which certain people behave as if the system exists to facilitate their personal gain, not to do the greatest good for the community.” [Soft Corruption: How Unethical Conduct Undermines Good Government and What to Do About It, p. 4.]
I will repeat what I said in my earlier post on this subject: I have found no evidence that Caves Valley did anything wrong. For example, it would have violated no laws for Caves Valley to express its displeasure to the Kamenetz administration upon the condition added to Resolution No. 113-16 requiring preservation of the perimeter trees. If that occurred, the responsibility fell upon Mr. Kamenetz and Mr. Homan to inform Caves Valley that it was the duty of executive branch of County government to carry out the policy established by the County Council, not to thwart it by whatever means necessary.
Although I am not accusing anyone in the County of criminal misconduct, that could change. To begin with, the action by the administration in removing the trees protected by the condition imposed on the development of the property by the County Council places whoever ordered the removal on thin legal ice. In my opinion, it was unscrupulous for an official in the executive branch of County government to undermine the intent of Resolution No. 113-16 by ordering the removal of the trees. Whoever ordered the trees removed figuratively spit in the face of the County Council and, so far, has gotten away with it.
As I described above, there should be an approved Forest Conservation Plan in the files of DEPS authorizing the removal of the 30 trees. If there is not, then we are in the territory where an investigation of possible misconduct in office (malfeasance) comes into play. It was one thing to defy the legislated will of the County Council; it would kick it up another notch if the defiance was done in a way that also blatantly violated the County’s forest conservation ordinances and regulations.
If there is a Forest Conservation Plan, but if it was done so incompetently that it is obvious that the preparer had no intention of complying with State and County law requiring, for example, the preservation of specimen trees, then misconduct in office (misfeasance) remains in play. And if there is a Forest Conservation Plan, the most interesting question is on what “project” is it based?
Forest Conservation Plans cannot be done in a vacuum, and are based on the proposed design and site plan for a specific project. Because there is no proposed County construction project involved, it appears that the Forest Conservation Plan must be based on the site plan for the development proposed by Caves Valley.
And if it is based on the PUD proposed by Caves Valley, who prepared and paid for the Forest Conservation Plan? If the Forest Conservation Plan used by the County was based on Caves Valley’s proposed site plan for Towson Station – and especially if the plan was provided or paid for by Caves Valley – the County has created a relationship in which a hearing officer or court could conclude that the County was acting on behalf of Caves Valley when it removed the trees. In any case, it would create an uncomfortably messy situation when it came time for Caves Valley and County lawyers to persuade a hearing officer or judge that the PUD did not violate the conditions imposed by Resolution No. 113-16.
Don’t get me wrong; I am not saying that parties should not reach a compromise on the Towson Station that reasonably satisfies the interests of the citizens, Caves Valley and the County. They should. The trees are gone, and the parties now need to make the best of an unfortunate situation. I am confident that will occur.
Regardless of whether the County achieves a reasonable compromise on the Towson Station project, however, there must be an investigation into the circumstances attendant to the removal of the perimeter trees. Were the actions by the administration merely sneaky and contemptuous of the County Council and the citizens opposed to Towson Station, or was there more to it than that? It is time for the proper agencies to pay attention to what goes on in Baltimore County.