Riverside Townhomes Denied
Appeals Board Votes 4-0 Against Project
Unanimously, and after two meetings of discussion, the Board of Appeals (BOA) voted 4-0 to deny Riverside Townhomes a 42-unit development proposed just north of the Route 4/235 intersection. The original appeals hearing, held February 13th, was continued after it ran long with multiple questions from the Board. Concerns raised by board members centered on traffic safety and impacts on the neighboring properties. Those topics carried through to the next meeting, held on March 27th.
February 13th Meeting
Sang Oh, attorney for owner LAHACO Investments LLC, described Riverside Townhomes as a “middle of the road project,” at the Feb 13th meeting. The maximum density allowed in the mixed-use medium density (MXM) zoning is 25 units per acre, or 119 units, Oh explained to underscore his point. He noted the zoning was “legislatively passed by the county” commissioners five years ago. Adequate public facilities (APF) requirements for school capacity, water/sewer, and traffic were met. Traffic, in particular, was met with a fee-in-lieu payment of $3,500 towards a signal at the FDR Blvd and 235 intersection nearby.
BOA member Rita Weaver questioned the arrangement, quoting a comment from the State Highway Administration (SHA) who wrote “since [the signal] is still just at the planning/request stage, this is probably not correct to use for the fee calculation…[and] I do not see how a signal at FDR will improve operations at MD 235 and MD 4.” Traffic consultant Mike Lenhart countered that SHA ultimately did approve the plan. With a signalized FDR intersection, Lenhart explained, drivers could turn north on 235 here rather than the Route 4 intersection. The traffic report showed 2,669 cars passing by the project site during one peak hour.
March 27th Meeting
Traffic safety was the main theme of the continued meeting on March 27th during. Board members zeroed in on the date of the traffic study–late 2023. Several points were raised about the Trump Administration’s return to work order, which has significantly impacted traffic since then. But Lenhart said the traffic rates were based on pre-COVID numbers, which were higher. The study found there would be a max of 1 vehicle entering or exiting the site during one traffic light cycle at the 235/4 intersection. BOA Chair George Hayden asked about an entrance at the rear of the property. Joe Kajedski, the project’s engineer, said they explored the option but the owner of the road right-of-way at the rear of the property doesn’t want to sell.
Members were worried about the bus stop at the entrance of the neighborhood on the shoulder of 235. Weaver reflected on a recent training attended by BOA and Planning Commission members where they learned the State and County may rate an intersection at different levels of service (LOS). For example, Route 235/4 is a “D” LOS according to the State, and an “E” according to the County. A “D” LOS is still acceptable, but not an “F.” The State might be reluctant to rate the intersection as an “F” because then it would be forced to address the problem. Since the County cannot alone afford the improvements, an “E” LOS was created at the local level to circumvent a failing grade. All this points to, potentially, a more dangerous area than studies and reports show.
Oh appreciated the questions and “anecdotal evidence from the board,” but stressed this was a matter of law. In approving the Comprehensive Zoning Ordinance (CZO), the Commissioners legislatively decided the zoning was appropriate. The defined requirements are met and the project has complied with the zoning.
Public Comment
At this point, the Board turned to public testimony. The only speaker in person was the owner of neighboring business Three Notch Dental who confirmed he met with the developers and came to an agreement regarding his issues. Eight people submitted written comments, with five of those opposing the project. Attorney Chris Longmore, on behalf of his client, submitted a letter of support asking the BOA to approve the development. His client, PJ Land Development, has a neighboring project–Tidal Wave Car Wash–scheduled for a BOA hearing on April 10th.
The Board took time to review a few written comments received last minute, as well as notes from the meeting with Three Notch Dental. When asked by Chair Hayden if he’d like to address any of the written comments Oh responded “although there may be individuals who may prefer there to be less zoning on the property, that’s not what the county did.”
“So that comment, you think, answers all the statements that were sent in?” pressed Hayden. “I do,” Oh said. Steve Scott, attorney for the BOA, clarified that the Board reviews all written comments and weighs them appropriately when deliberating. This is a common practice.
After the close of public testimony, Rita Weaver was still concerned about the bus stop. Though there has been a bus stop there in the past, she said, the school system has to pick up kids wherever they are. The intersection is failing, and traffic has increased from return to office mandates–this was a sentiment shared among the board members. Ronald Payne Sr. said he couldn’t find this project met the “health, safety, and welfare of the general public.” That phrase is included in the CZO and has been raised in past hearings, but it’s tricky. “Health, safety, and welfare” is not a requirement in and of itself; rather, if a project meets all other necessary requirements it is determined that it meets the health, safety, and welfare of the community. Simply, a project cannot be denied on that requirement alone according to relevant case law.
Chair George Hayden said he believes Riverside Townhomes has followed the law, but the health, safety, and welfare of the community falls short. The traffic study “does what it needs to do to make this thing work” but the day-to-day experience is different. “It’s unfortunate for the applicant that we can’t get past that piece of it,” Hayden summarized. Then, Weaver made the motion to deny the project resulting in the 4-0 decision.
Objection
Objecting, attorney Oh disputed the Board’s receipt of written testimony without requiring the writer to be present for cross examination. If that were the case, they would have to admit the project is being developed where the zoning allows, he said. Oh requested reconsideration of the vote, noting it was “obvious” the board didn’t agree with the zoning of the property but their role is not to rewrite the law. To say “we company with the CZO but that you, based on your beliefs, find that inadequate, is an irreversible error,” Oh declared. He continued, “it is insufficient to say ‘I think school bus pick ups might be a problem’.”
Hayden informed Oh that his client has the ability to appeal the decision to deny Riverside Townhomes in the St. Mary’s County Circuit Court. Then the meeting adjourned.
