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Ordinance could halt Habitat

June 15, 2004|By SCOTT BUTKI

BOONSBORO

The Boonsboro Town Council on Monday unanimously approved an emergency ordinance prohibiting new homes from fronting alleys, but the town attorney refused to say if the action would stop construction of a Habitat for Humanity of Washington County duplex that faces an alley.

The vote followed a public hearing in which more than 20 people spoke on the ordinance, with many of their comments centering on the proposed Habitat duplex that would front onto an alley off St. Paul Street.

Roger Schlossberg, an attorney representing Habitat for Humanity, said work on the house will resume this morning. As long as the volunteers have done "substantial construction" by the time the ordinance takes effect in 10 days, he said he believes the organization will be on safe legal ground.

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Town Council members said they did not know if Schlossberg's opinion was correct. They referred questions to Town Attorney William Wantz, who refused to answer questions.

"That's an unknown. Too many variables," Boonsboro Councilman Richard Hawkins said.

"It could affect it and maybe it won't," Boonsboro Councilman Richard Gross said.

Boonsboro Mayor Charles "Skip" Kauffman Jr. was absent from the meeting. Assistant Mayor Howard Long, who presided over the meeting, said Kauffman was on a business trip.

Habitat 'punished'


After the meeting, Sherry Brown Cooper, Habitat for Humanity of Washington County's executive director, said Habitat for Humanity was being unfairly punished for what people consider a mistake made by the Boonsboro Planning Commission.

The town Planning Commission approved plans for the development on July 10, 2003, after the Boonsboro Board of Zoning Appeals rejected two earlier proposals, town officials and Cooper agreed.

But town residents who live near the property said they did not know the project had been approved until a few months ago. Opponents of the project said it should not have been approved because it faces an alley. They also said they should have been notified that the matter was going before the Planning Commission.

Karen Shifler of Boonsboro on Friday obtained a temporary restraining order barring Habitat for Humanity from building the duplex on property adjacent to her property, saying her rights of due process were violated. Washington County Circuit Judge Donald Beachley issued the restraining order.

On Monday afternoon, Washington County Circuit Judge W. Kennedy Boone III, filling in for a vacationing Beachley, approved Schlossberg's written motion to vacate the restraining order because it was "irregularly entered."

Among the irregularities, Schlossberg said in his written filing, was that Cooper was notified of a hearing requesting the restraining order only 14 minutes before it started.

Shifler's attorney, Kirk Downey, said he thinks the order was vacated because the two judges had differing opinions on the arguments he made. Downey said he made three attempts to notify Cooper earlier on Friday.

Most of the Boonsboro residents at the hearing spoke in favor of the ordinance while most of those from elsewhere in Washington County spoke against the ordinance. The two sides differed on whether it would be unsafe for the property to face an alley.

A few of the Boonsboro residents said they resented non-Boonsboro residents telling them what they should do in their town.

'Wrong-headed' statute


Schlossberg introduced members of the two families who would live in the duplex, one of whom already lives in Boonsboro.

"This is a wrong-headed statute being advanced for the wrong reasons," Schlossberg said. "As public officials you should not bend to the will of public opinion ... You need to shut this down since it's a bad idea."

Gross said the council needs to respond to town residents who say properties should not be built facing alleys.

Hawkins and several other speakers said they were not opposed to the work done by Habitat for Humanity but they object to the duplex facing an alleyway.

Councilman Kevin Chambers said the council needed to look at the ordinance as a planning issue rather than on what impact it would have on any projects.

Council members said the ordinance is needed both because it addresses a safety issue and because it makes the town's zoning ordinance consistent with rules against new subdivisions in the town facing alleys.

In a phone interview, Shelley Wasserman, an assistant attorney general with the Maryland Department of Planning, said state law does not govern retroactive application of ordinances.

She said Maryland is a "late vesting state," which means a developer needs to have "acted on" a permit - for example, dug the footers - to obtain certain rights.

Wasserman, who was not commenting on the Boonsboro situation, said a judge could decide that rights take effect at the time a project is approved.

Staff writer Andrew Schotz contributed to this story.

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