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Developer files $7.5 million suit against county

October 06, 2005|by TARA REILLY

HAGERSTOWN

tarar@herald-mail.com

The developer of the halted Westfields housing development on Sharpsburg Pike sued Washington County on Wednesday for $7.5 million and other damages, saying the county has acted in an "arbitrary, capricious, unjustified and discriminatory" manner by delaying the project.

Westfields Development LLC of Frederick, Md., filed the suit in Washington County Circuit Court against the County Commissioners, the county's Planning and Permits and Inspections departments, and the Division of Public Works.

In addition to $7.5 million in damages, Westfields is seeking from the county ongoing damages of $4,600 for every day issues go unresolved.

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The developer plans to build 773 single-family and semi-detached housing units on 443 acres south of Saint James Village.

Last month, county officials said they put the development on hold months ago because there is no room in area schools to handle enrollment increases.

Commissioners President Gregory I. Snook repeated the claims Wednesday.

"The delay is making sure we have the capacity in the schools, because right now the School Board is telling us that they don't have available seats," Snook said.

The suit states the county demanded Westfields dedicate land for an elementary school in the development, which Westfields agreed to by setting aside 13 acres.

County Planning Director Michael Thompson said last month that transferring the land wouldn't necessarily mean home construction would resume immediately afterward.

He said school capacity issues likely wouldn't be alleviated until after the school is built, which could take a year or longer.

Westfields is in the Funkstown and Emma K. Doub elementary, E. Russell Hicks Middle and South Hagerstown High schools attendance areas.

All of those schools were at more than 100 percent capacity last school year, and enrollments were projected to climb this school year, according to a June 28 letter concerning another proposed development in the area.

The letter was to Thompson from Dennis Unger, the school system's engineering technician.

The suit states that Westfields tried for months to obtain a "reasonable and mutually acceptable" Adequate Public Facilities Ordinance (APFO) agreement with the county to deal with the school issue, but the attempts were "in vain."

The APFO regulates building in the county to ensure that schools, roads and other infrastructure are adequate to handle growth.

"Over the last several years, the County has purposely thwarted and seriously delayed this vital residential project from being developed ... They will have to answer to the children and their families who are desperately waiting for the Westfields Elementary School to come on line," Marvin Ausherman of Westfields said in a written statement.

The county has issued building permits for approximately 112 homes - the first two phases of the Westfields development - but has stopped the project's developers from building the remaining homes until the school issue is worked out. The project's next phase calls for 184 units.

The suit claims the county has increased building fees several times, refused to issue permits and approvals, acted more favorably toward other developers and failed to "act in good faith" with Westfields.

"This is a sad day for Washington County and all its citizens; we take this course of legal action only as a last resort," Ausherman said in the statement.

Westfields expects to pay more than $15 million in building fees to the county over the nine-year building of the development, more than $12 million of which would go toward school construction, according to the suit.

Damages the delayed project has caused Westfields include a $2 million increase in building fees the developer must pay for the project's third section and more increases for the units beyond that phase, and an estimated increase of $600,000 to $1 million in construction costs because of inflation and annual cost increases.

"These County officials must be held accountable, and forced to act in a fair, timely and reasonable manner the way they have with other similar residential projects," Ausherman said in the statement.

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