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Attorneys dismiss wording in the debate over APFO

March 23, 2006|by DANIEL J. SERNOVITZ

The Washington County Attorney's office has dismissed wording that county and Hagerstown city officials each said marked their ability to trust each other.

City Planning Director Kathleen A. Maher told the Hagerstown City Council on Tuesday that County Attorney Richard Douglas believed the wording was "contract wording," and that it was not appropriate to include it in governmental legislation.

City Attorney William P. Nairn said he agrees with the argument, and he suggested alternate wording that he felt captured the same sentiment but would have more legal standing.

The county has asked municipalities to adopt Adequate Public Facilities Ordinances similar to one it adopted in 1990. The ordinance contains restrictions intended to help ensure schools, roads and other public services and facilities are adequate to handle development.

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Municipalities must adopt the legislation to be eligible for county excise tax revenues, but city officials were worried about relinquishing the city's ability to approve development projects, specifically involving the redevelopment of existing properties.

Nairn's wording would require the county to give the city a written statement for rejecting specific projects, including "findings of fact based on substantial evidence."

"If we wanted to dispute their withholding of approval, we would at least have a basis" to do so, Nairn said. "It may be a way of backing them into approving something if they were going to disapprove it for an arbitrary or capricious reason."

During an informal meeting in late February, Commissioner James F. Kercheval met with City Councilmen Kristin B. Aleshire and Lewis C. Metzner to address their shared concerns. The three developed the concept for an APFO they felt the county and city could embrace.

As part of a draft ordinance, the city has the right to allow some development projects that would not otherwise be allowed and the county, which has oversight over those exceptions, will not "unreasonably" withhold approval of those projects.

Aleshire said he was afraid Nairn's alternative casts the city and county in an adversarial role, which was the opposite of the "unreasonably" provision. He said he hoped through that wording to allow the city and county to negotiate and talk freely.

"I don't want this type of language to put us in a position for someone to take us to court," he said.

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