Legacy Open Space (LOS) Chronology 2007-2010

The following is a chronology of Mayor’s Updates or Announcements about the LOS (“Upper Field”).

2007 Background about the LOS Field Condemnation Status and Update

The Town commenced a condemnation effort of the LOS property after several alarming events led the Town to conclude that future use of the LOS field as passive parkland could not be adequately protected by MNCPPC:

First, County Council members attempted to prevent Planning Board approval of terms protecting the LOS in the Preliminary Plan for development of the Casey property in December 2004.
Subsequently, County Council hearings on revision of the Shady Grove Master Plan in early 2005 seriously considered altering the use of the LOS to that of a school site.

The Town concluded that we needed legal standing to independently protect the LOS. Acquiring ownership of the LOS property using the Town’s condemnation power presented the means to acquire such authority, an appraised valuation of $180,000 made this course of action practical, and a Special Town Meeting in the summer of 2005 approved pursuing this goal.

When Toll Brothers refused to discuss the Town’s purchase offer, we initiated proceedings in County Circuit Court in the fall of 2005 to conclude the condemnation by determining the fair market value of the property.

Because one of the conditions of the Preliminary Plan was conveyance of the LOS field to MNCPPC to be used as passive parkland, MNCPPC was allowed to participate in the suit as a third party defendant. Contrary to our expectation that our common interest in protecting the LOS would facilitate cooperation with MNCPPC, an extended period of discussion ensued during which we sought to reconcile MNCPPC’s insistence of having sole legal interest in the property with the Town’s determination to acquire the legal right to protect the passive parkland use into the future.

When compromise failed, the court case resumed. In February, the Court heard arguments on motions for summary judgment filed by the parties. In April 2007, Toll Brothers conditionally conveyed the LOS field to MNCPPC subject to approval of their Phase I Site Plan. In July 2007, Judge Marielsa Bernard ruled in favor of the Town’s motion for partial summary judgment, stating that Washington Grove did have the right to condemn the property, and ruled against alternative motions of the Toll Brothers and MNCPPC. Read Judge Bernard’s September 2007 decision in favor of the Town (PDF).

Subsequent arguments to reconsider these rulings were rejected by the Court in October 2007. The standing of MNCPPC as a defendant was denied. Together, these rulings placed the Town in a very strong position.

The Town then requested the Judge to move the case forward and to schedule a trial date. MNCPPC has the option of pursuing an appeal of the rulings, which would take the case to a state Appeals Court, where a ruling in favor or against MNCPPC could ultimately set precedent on the extent of their authority versus that of a municipality. While an appeal could delay resolution of the condemnation case for 18-24 months, costs to argue the Town’s case would be low. If the condemnation trial proceeds, legal costs will likely be modest. We have also been advised that prospects of the LOS field being valued above $180,000 have significantly diminished, and the value may be even lower, due to Toll Brothers conditional conveyance of the LOS to MNCPPC in April, which demonstrated they accepted the passive parkland land use of the LOS. This has been further supported by Toll Brothers pursuit of the Phase I Site Plan to ultimate approval in September 2007, which requires the conveyance of the LOS as passive parkland prior to the recordation of new lots.

November 2008 Update

Recent actions in the Town LOS condemnation suit have been interesting. As the October 15 deadline approached for submitting briefs in the Circuit Court appeal by Maryland National Capital Park and Planning (M-NCPPC) contending that the Town has no right to condemn the LOS field, and that they should be party to our suit against Toll Brothers, M-NCPPC tried to file additional information that was not part of their original appeal brief. The Town submitted a letter to the Court in disagreement to allowing submission of the additional information. The Court ruled to defer (not accepting or rejecting) the information.

We don’t necessarily think this is in the Town’s favor or disfavor. It is better than if the Court had agreed to allow them to enter the information, which also would have meant our attorneys would have had to submit additional briefs of rebuttal on issues that have not been part of the lawsuit to this point. The other critical information is that oral arguments on the M-NCPPC appeal will be heard before the Circuit Court of Maryland on December 9, 2008, in Annapolis. For speculative purposes only, the following are the main potential Court decisions that could result from the December arguments. It is important to remember that, after the December hearing, the Court can take up to a year or more before issuing a decision, although we are hopeful this will be within 6 months.

The court rules that M-NCPPC is correct that the Town has no right to condemn the property. The case is over and we have no right to appeal, except to the U.S. Supreme Court, but we really have no grounds for a Federal intervention.

The court rules that the Circuit Court was wrong in their ruling on M-NCPPC’s “motion to intervene” as a third party to the Toll-WG condemnation or that the doctrine of lis pendis does not apply to this case. This would mean we go back to the Circuit Court to begin the process of condemnation with Toll and M-NCPCC being defendants. This would be the “unwieldy” solution because although we have a right to condemn, both the defendants would share in any outcome. That means that if we win the condemnation, the money would be split in some way between Toll and M-NCPPC (this is one scenario but many others could be conceivable). This should not increase our costs, although my thinking is that M-NCPPC could play the “break the bank” with us to good effect (my opinion only).

The court rules in our favor and kicks M-NCPPC out of the condemnation lawsuit. We then go back with Toll only to the Circuit Court, set a trial date, and go to trial for the express purpose of setting the monetary terms of the condemnation (this is where we were in May/June of this year). We would take depositions, go to trial sometime in the next 6-12 months, and get the bill for condemnation.

Council Transfers Money for LOS Suit: At the October 13, 2008 Town Council meeting, the Council culminated a month-long discussion by transferring money within the FY 2009 Town budget to offset an expected shortfall in budgeting funds for the LOS condemnation suit. The transfer was needed because last spring our attorneys did not anticipate that M-NCPPC would appeal the Court decision that they were not an “interested party” in the lawsuit (the third ruling by a court to do so). The total transferred is $40,000, which should be more than enough until FY 2010, which begins on July 1, 2009. Funding for FY 2010 will be voted on at the May 2009 Town Meeting and will depend on subsequent decisions and appeals (see previous article).

The following fund transfers were approved by the Council:

$5,000 from the Professional Land Planning budget item, which zeros this item. This will not be needed in the current year.
$5,000 from the Property Acquisition Set-Aside budget item, which zeros this item. This will not be needed in the current year.
$25,000 from the McCathran Hall Improvements budget item, which leaves $2,000 in this item. The $25,000 was for improvements to the electrical system in the Hall; after estimates from consultants, it has been determined that the expected upgrades may not be applicable, but certainly cannot be completed during this Fiscal Year.
$2,000 from the Mulch Alley Debris Removal budget item, which zeros this item. Removal is not critical this year.
$3,000 from the Reforestation budget item, which leaves $3,000 in this item. Adequate funds for this can be taken from other forestry-related budget items.
If you have comments on the funds transfer, please contact Mayor Darrell Anderson at 301-963-8555.
Piedmont Park: The Montgomery County Council voted to approve use of Advanced Land Acquisition Revolving Funds to purchase a 10-acre parcel in Piedmont Crossing as a local park. This clears the way to proceed to settlement before November 28th with the Toll Brothers and acquire the property. Next step to developing the local park will be facility planning, and we should monitor M-NCPPC Parks Department’s proposed CIP to get Piedmont Park on the list. Funds from the State’s ICC parkland contributions will be used for the acquisition. John Compton notes Phase II of the Piedmont Crossing development plan will not happen. Instead the County will plan two ball fields. We will have to participate early to insure the tree line is replanted more densely, and to further discuss the bike path planned to enter the Grove at the end of Brown Street, but could come through the LOS field (via the new park).

January 2009 Update

The appeal hearing before the Maryland Court of Appeals in December is complete and now we must wait for a decision. The only issue before the Court was whether Maryland National Capital Park and Planning (M-NCPPC) should have been included in our condemnation of the Toll property, although M-NCPPC tried to inject their contention that the Town has no right to condemn the LOS field. A best guess as to the amount of time it will take for the Court to make a decision is 6?18 months. As in any Court proceeding, there are those who think our lawyers did a good job and those who think our lawyers did a bad job. The next step is to wait to see what the Court will do. As listed in the November Town bulletin, our lawyers believe there are three main possible outcomes. They are:

The court rules in our favor and kicks M-NCPPC out of the condemnation lawsuit. We then go back with Toll only to the Circuit Court, set a trial date, and go to trial for the express purpose of setting the monetary terms of the condemnation (this is where we were in May/June of this year). We would take depositions, go to trial sometime in the next 6-12 months, and get the bill for condemnation.
The court rules that M-NCPPC is correct that the Town has no right to condemn the property. The case is over and we have no right to appeal, except to the U.S. Supreme Court, but we really have no grounds for a Federal intervention.
The court rules that the Circuit Court was wrong in their ruling on M-NCPPC’s “motion to intervene” as a third party to the Toll-WG condemnation or that the doctrine of lis pendis (a legal term applied to real estate transactions when a property that has a pending legal action cannot be sold or transferred until the legal action is determined) does not apply to this case. This would mean we go back to the Circuit Court to begin the process of condemnation with Toll and M-NCPCC being defendants. This would be the “unwieldy” solution because although we have a right to condemn, both the defendants would share in any outcome. That means that if we win the condemnation, the money would be split in some way between Toll and M-NCPPC (this is one scenario but many others could be conceivable). This should not increase our costs, although my thinking is that M-NCPPC could play “break the bank” with us to good effect (my opinion only).

There are other potential outcomes that would be favorable to the Town or unfavorable to the Town; Courts can do what they want, although it is important to remember that the Town’s position has been upheld in two lower court rulings and by the Maryland Court of Special Appeals, the highest Court in Maryland, similar to the Federal Supreme Court. These positive decisions have been the driving force for the Town in continuing to pursue the LOS condemnation. It also is critically important to note that the Maryland Municipal League, which represents all 157 municipalities in Maryland, has filed a friend-of-the-court brief with the Court in support of Washington Grove’s case. This was done after review of the Town’s legal brief and history to the Town Council and me, this was confirmation that our legal strategy was/is solid in this case, although this still does not guarantee success.

The case has taken almost five years to arbitrate, and has impacted Town funds. Special Town Meetings have been held in the past to affirm our intent to initiate the lawsuit and to approve continuation at key points. This has not been without an impact on Town funds. We are approaching (or may have passed) the $300,000 mark in legal fees, with eventual unknown costs to purchase the field should we be successful. It is likely that the Town Council will have to approve additional funds transfers at the next Council meeting (January 12) to have enough money in our legal fund to cover the cost of the December appeal hearing.

There are those who think the effort has been worthwhile for the long-term protection of our border; there are those who think it has been a monumental waste of money. As always, the Town will hold a Special Town Meeting to determine whether we actually purchase the field if we are successful, or how to proceed if we are unsuccessful. There has been extensive planning with our legal staff to assist us in either course. We need Town residents to stay engaged so when decisions must be made, everyone makes their decision in an informed manner.

April 2009 Update: Court of Appeals Rules on LOS

On March 12, the Maryland Circuit Court of Appeals handed down a narrow ruling on Maryland National Capital Park and Planning Commission’s (MNCPPC) appeal to become part of the Town’s condemnation lawsuit against Toll Brothers on the LOS field (the LOS field is the open meadow that runs along Ridge Road from Brown Street to Center Street). MNCPPC had asked the court to rule on four technical issues:

does the Town have the right to condemn the property by eminent domain,
does the lawsuit keep Toll Brothers from dedicating the property to MNCPPC during the lawsuit (lis pendens),
can MNCPPC become a party to the lawsuit, and
is the Town’s reason of “public necessity” for condemnation legal.

The Court ruled only on (3) to allow MNCPPC to become a party to the lawsuit, although the Court did not determine that they had a specific interest. This is somewhat confusing, but it means that on the major point (1), the Town’s right to condemn, the Court put that off until a possible appeal later in the case. What this means to the Town is that we now proceed to a jury trial with Toll Brothers to determine the value of the LOS field so we can outright buy it from Toll Brothers and protect it from future development. MNCPPC can be part of the trial, but cannot raise any other issue until the trial is complete and the value determined. It is highly likely that MNCPPC will challenge the Town on the right of condemnation after this trial.

In traditional Washington Grove style, a Special Town Meeting will be called in April to give residents an opportunity to let the Town Council know what they think the Town should do. This meeting is imperative for those who support or oppose continuing the lawsuit to have an opportunity to express themselves. You will receive a notice two weeks ahead of the scheduled meeting. The Mayor and Town Council would like to see a large turnout and lively discussion of these issues. For those who do not have a background on these issues, a short historical presentation will precede the discussion. No vote will be taken at this meeting.

April 2009: LOS Special Town Meeting Held

On April 30, 2009, the Mayor called a Special Town Meeting to determine the sense of the Town on future actions regarding the lawsuit for condemnation of the LOS field, currently owned by Toll Brothers. After a presentation by Mayor Anderson on the history of the lawsuit and possible paths to resolution, and spirited discussions and commentary by participants on both sides of the issue, the Town voted 78-21 to continue the lawsuit. The vote was taken to provide the Town Council and Mayor a sense-of-the-Town, but it did not come without a caution for Town input in the future at critical junctures in the ongoing litigation, especially if major costs to the Town may be incurred. The Town Meeting format put in place by our Founders is truly one of the most unique characteristics of Washington Grove; it is hard to imagine a more democratic exercise.

October 2009 Update: Trial Date Set for December 2010

On September 15, Judge Bernard set a trial date for the LOS condemnation suit for December 2010. This was not what we had hoped, because we expected the trial to be this winter. On another front, Toll Brothers is/has submitting/submitted a plat plan to the Planning Board for Phase I of the development-this is the phase abutting Ridge Road. Distressingly, along with the plat submission, Toll is giving the fee to M-NCPPC, which means they are transferring ownership to M-NCPPC. If you remember from the history of the LOS, and from the statements made by M-NCPPC in our lawsuit, at the time of plat approval, Toll was supposed to give an EASEMENT to M-NCPPC in dedication for the LOS field. An easement would mean Toll would keep the underlying fee and ownership of the field. However, documents we have seen from the plat submission indicate that Toll will be transferring the fee to M-NCPPC, which means M-NCPPC will OWN the field outright. This raises and answers a few questions.

For those who thought the “Deed of Dedication” Toll gave to M-NCPPC in 2007 giving them the easement was real, we now know that that deed wasn’t worth the paper it was written on, as characterized by our lawyer.
It is clear that M-NCPPC will now try to claim that our lawsuit should end because they “own” the field.
By taking the ownership of the field, rather than the easement, the LOS may no longer apply, which should confirm what the Town has known all along about M-NCPPC’s future plans for the field (i.e., not an open meadow).

These legal twists and turns do not derail the lawsuit at this time, but the Town is opposing the plat plan through an administrative process. We don’t know where this goes from here, but I will keep you up-to-date as things unwind.

November 2009 Update: Toll is Transferring Ownership

Toll Brothers has filed the plats for Phase 1 of their development adjacent to lower Ridge Road. As part of the filing of the plats, Toll is transferring ownership of the LOS field to Park and Planning, as well as a quitclaim deed, which will mean Toll no longer has an interest in the LOS. Because this will not occur until November 5, much is still in the air and not enough is known about what the deed will say regarding protection of the LOS field. Regular updates will be given at the next Town Council meetings (November 9 and 23).

November 2009 Update: Town residents spoke in front of the Planning Board

On November 5th, Town residents spoke in front of the Planning Board hearing on the approval of the plats for Piedmont Crossing (Toll Brothers development). The approval of the plats included the LOS field, which was to be dedicated to Park and Planning for the LOS program. Because the plats were submitted with Toll Brothers giving the field to Park and Planning (ownership), the Town objected. After 45 minutes of testimony, Royce Hanson accepted a motion to remove the text on the LOS plat referring to Toll Brothers giving ownership to Park and Planning, and reverting back to the dedication. This is very important to the Town in its attempt to keep the LOS field in the LOS program and allow the condemnation lawsuit to move forward.No sooner had we averted this ploy to gain ownership of the LOS field, Park and Planning began the process to have Toll give them a quitclaim deed to the LOS-again giving them ownership. The Town filed an injunction request to stop the transfer of the fee and title to Park and Planning. We were successful in gaining a temporary injunction but must appear in Circuit Court on December 3rd to pursue a permanent injunction. Further updates will be provided at the December 7th Town Council meeting.

January 2010 Special Town Meeting: Town Votes to Transfer Funds for the LOS Litigation

On January 28, 2010, a Special Town Meeting was held to discuss transferring funds for the current Fiscal Year (FY) to cover potential shortfalls in funds approved at the May 2009 Town Meeting. The meeting was called by Mayor Anderson to keep a commitment to residents made at the May meeting that additional funds that exceed $40,500 would not be spent without approval at a Special Town Meeting. After a short presentation by Mayor Anderson giving an update on the litigation since the May meeting, Town residents Ann Briggs, Chris Kirtz, David Stopak, Kathie Evans, and Shelley Winkler gave 5-minute presentations either for or against continuing the litigation. More than an hour discussion followed to hear from residents and to answer questions raised during the presentations. After final discussions, the Town voted to transfer general funds (a surrogate for continuing the litigation) in the amount of $15,000 to cover the expected shortfall until the beginning of the 2011 FY on July 1, 2010. The Town Council, with resident input, will be developing the inclusion of legal expenses for FY 2011 to be presented at the regular Town Meeting in May.

In the February Bulletin, an article about the January 28, 2010, Special Town Meeting failed to record the second motion passed by the Town. In a 49-17 vote, the attendees passed a motion made by Kathie Evans asking the Mayor and Town Council to obtain from our lawyers estimates as to the legal costs which might be incurred in the event of termination of the condemnation trial and/or losing an appeal, and to report that at the May Town Meeting. This will be discussed in Executive Session by the Mayor, Town Council, and our lawyer, and a speculative range of amounts will be presented at the May Town Meeting. There also was a motion by George Paine which thanked the Mayor, Town Council, and the many volunteers who continue to work so hard on this issue. The motion passed unanimously.