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Agreement to settle lawsuit raises some tough questions

February 16, 2006

Under Maryland law, elected officials can legally close meetings held to discuss pending litigation, so citizens couldn't watch the Washington County Commissioners' debate over how to settle a developer's $7.5 million lawsuit against the county.

But now that the settlement has been approved, citizens ought to ask how the county government got itself in this position and what steps have been taken to prevent it from happening again.

The developers of Westfields LLC plan to build a 773-unit development on 443 acres off Md. 65 in an area south of Saint James Village.

In April of 2004, the Washington County Planning Commission voted unanimously to OK the first two sections of Westfields, which included 112 lots.

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At the time, all seemed rosy as Jim MacGillivray, vice president of Ausherman Development, Westfields' developer, said his firm would pay $823,760 to the Fountain Rock Elementary School district to ease overcrowding.

That fee would be paid, MacGillivray said, even though the firm was also negotiating to provide a site for a school inside the development.

But in September of last year it was revealed that construction of additional homes on the site would be held up until school capacity issues were resolved.

In October, the developers of Westfields filed suit, claiming, among other things, that the delays in the project had cost the company a $2 million increase in building fees and an increase in construction costs of $600,000 to $1 million.

On Tuesday, the commissioners approved an agreement to settle that suit. It allows the developer to proceed with construction in stages, provided the developer pays a "significant portion" of the county's excise tax to help fund school construction.

Staged construction of such a large development is a good idea, but the agreement also requires the county to have the new school built and ready to open by September 2008.

A couple of things about this agreement raise questions. What is a "significant" portion of the fee? Has the amount due been lowered to induce the developer to settle? What happens if the new school isn't open on time?

And, most important, does this settlement mean that the county can no longer refuse to allow construction based on a lack of school capacity?

If the answer to that last question is yes, then the county school system might have to lease office space to house students until new schools are finished.

How much that would cost is unclear now, but it would certainly be more costly than delaying development until new school space is built.

If a change in the law is needed to tie residential development to school capacity, the state legislature is in session now.

However, if this suit and settlement it necessitated were caused by an error on the part of planners and/or elected officials, citizens need to know that as soon as possible.

Just because the law allows elected officials to discuss pending litigation in closed session doesn't mean they shouldn't have to tell taxpayers what happened and who or what deserves the blame.

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