Developer deals raise red flags

February 21, 2009|By HEATHER KEELS

BOONSBORO -- A sentence included in recent agreements between the town of Boonsboro and two local developers has county officials worried the town might be overstepping its authority and contradicting its own law.

The agreements, approved by the Boonsboro Town Council at its January and February meetings, concern prepayment for sewer taps for portions of the King Road Associates and TT&K developments planned for recently annexed land on the west side of town.

The agreements also include sections on public education, which state "considering the minimal potential impact" of those portions, "the Town has determined that no mitigation agreement is required" for the development of the first 102 lots on the King Road Associates property and for the first 56 lots on the TT&K property, the lots for which the developers are prepaying for sewer taps.

Mitigation agreements sometimes are used by developers to gain approval for plans that otherwise would be denied due to lack of capacity in schools, on roads or in other public facilities. Under such an agreement, the developer commits to easing the impact by contributing to school, road or other construction.


The statement about mitigation in the recent agreements prompted a memo to the town from Washington County Commissioner Kristin B. Aleshire, who questioned what authority the town has to waive the requirement for mitigation and suggested doing so might contradict the town's Adequate Public Facilities Ordinance.

Boonsboro attorney William C. Wantz said the statement does not waive the town's adequate public facilities requirements and only is intended to allow the developers to move ahead with the process of submitting plans.

No development plans have been approved for either property.

School capacity issue

Boonsboro's Adequate Public Facilities Ordinance requires that before the town approves plans for a new residential development, the schools that serve it must have adequate capacity for the students that would be added or the county must have plans to create adequate capacity for them.

Boonsboro Elementary School already is 158 students over its adequate capacity level, said Robert Spong, facilities planning manager for Washington County Public Schools. Boonsboro Middle School is 97 students under capacity and Boonsboro High School is 40 students under capacity.

Using the county's most recent formulas for estimating how many students each new household will generate, if King Road Associates built 102 single-family homes and TT&K built 56 single-family homes, together they would generate 62 elementary school students, 27 middle school students and 27 high school students.

Concerns about the agreements were raised Tuesday at a joint meeting between the Washington County Commissioners and the Washington County Board of Education, County Administrator Gregory B. Murray said. Officials decided to set up a meeting with the town and its attorney to find out the intent of the agreement and discuss any potential conflicts, Murray said. The meeting was scheduled for this week.

"We're concerned because those schools right now are pretty much over our local-rated capacity, and it would be problematic, obviously, if students came in," Washington County Board of Education President Wayne D. Ridenour said.

The school board also sent a letter to the town regarding the agreements, Ridenour said.

Wantz stressed mitigation is an option developers may choose to pursue in order to be able to build homes that would otherwise be prohibited. The provision in the agreement clarifies the developer is not obligated, at this point, to do so.

"I don't think any of the language in there creates any problems, and we're working together with the county and the board of education to see that it doesn't," he said.

Wantz said the town has directed both of the developers to enter into negotiations with the Board of Education on mitigation agreements.

"Boonsboro has a philosophy that there must be a desk in a school for every child who gets on a bus that goes to school," he said.

Scott D. Miller, an attorney representing TT&K, said the developer intends to "discuss and pursue in good faith" a mitigation plan.

Infrastructure concerns

The lots in question are part of larger developments planned for land annexed into the town in 2006. The King Road Associates property is 388 acres west of Main Street and south of Potomac Street and will be limited to 656 units. The TT&K property is 214 acres west of Main Street and north of Potomac Street and will be limited to 360 units.

To ensure infrastructure improvements can keep pace with the developments, King Road Associates is limited to 80 residential building permits per year, and TT&K is limited to 40.

The recent agreements amend the initial annexation agreements for those properties. They commit King Roads Associates to prepaying $1.1 million for 102 sewer taps and TT&K to prepaying about $600,000 for 56 sewer taps. That represents an $11,000 fee per sewer tap.

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