Letter to Editor: Lakeside’s final victory, Maryland law Be damned

We’ve been had yet again.  

In May, after months of conflict and standoff, it seemed the Planning Commission had assured its right—explicitly–to someday review the Lakeside project for consistency with the County Comprehensive Plan as required by Maryland law (Environment Article 9-506) properly, free of the taint of misrepresentation.  Lakeside had already gotten underway dishonestly in 2021 based on falsehoods and misrepresentations, so it was a difficult compromise that the Planning Commission had reached with the County Council, one that assured that the Commission would indeed evaluate Lakeside, but only later, when MDE considers permitting an enlargement of the new wastewater plant, nominally when the 400th home is built.

But even that compromise agreement is now out the window.  Due to the Talbot County Council’s total inaction over the summer, the Lakeside developer has permanently escaped even that distant constraint.  Again, citizens’ interests have been betrayed, and Maryland law has been evaded.  And the Council did absolutely nothing to protect the County from the developer’s maneuvers.

It is a long and complicated story, and few will be inclined to read the detailed background presented below.  Indeed, some Council Members are surely counting on Lakeside exhaustion, on the impenetrable complexity of it all, on the distraction of a Presidential race, to insulate them from ever being held to account, now or in the future.  

Well, the details are not essential to understanding the central point:  since January of 2023, various actions and omissions by three members of this Council—Callahan, Haythe and Stepp—have assured that the Planning Commission never has been, and apparently never will be, in a position to honestly evaluate Lakeside for its consistency with our Comprehensive Plan as required by law.  That is a test it would fail.

Set forth below is the story of how the County’s last potential restraint on Lakeside was gutted.  

Dan Watson
The Talbot Integrity Project

 

MDE’S MANDATE:

 Last year, after much public uproar and a lawsuit by the Talbot Integrity Project (“TIP”), the Maryland Department of Environment (“MDE”) belatedly recognized that Talbot County had made serious errors in approving the Trappe Area Sewer Service Map that permitted the development of Lakeside.  MDE finally acknowledged—as did the Town of Trappe and Talbot County—that contrary to representations made by the applicant to the Planning Commission and everyone else, prior to 2020 the Lakeside land was always “unprogrammed” and had never been slated for development by the County in any way.  Indeed, MDE’s sewer permits granted in 2006–and put forth as conclusive evidence of County approval long ago–had been improperly issued.

As a consequence, in April 2023 MDE directed the County to issue a new Sewer Service Map to correct errors; like any sewer map, a corrected map could not be adopted by the County Council unless the Planning Commission first certified it as “consistent with the County Comprehensive Plan.”  That has always been the key—the Planning Commission’s certification of “consistency.”

After two attempts to sidestep the Planning Commission altogether were thwarted, on September 12, 2023, Council Members Keasha Haythe and David Stepp introduced Resolution 348 (“R348”) proposing, as respects the Lakeside property, re-adoption of the exact Sewer Service Map that was put forth by the developer and adopted by the Council in 2020 based on false pretenses.  (The only sewer classifications changed were for properties unrelated to Lakeside.) 

Many citizens—and TIP of course—strenuously objected to R348 because the Planning Commission still had NEVER been permitted to give Lakeside an honest review for consistency with the Comp Plan untainted by falsehoods.  In fact, Lakeside fails that evaluation in many, many obvious ways.  At the same time, everyone (TIP included) recognized that, corrupted process or not, Lakeside was underway with over 100 homes built (still, a far cry from the 2501 proposed.)  The Commission faced a genuine conundrum.

THE COMPROMISE:

Seeking some workaround, in November Ms. Mielke and Mr. Lesher introduced “Amendment 1 to Resolution 338” providing that whenever MDE considers permitting an expansion of the new wastewater plant serving Lakeside (understood to mean after 400 homes), at that future point the Talbot County Planning Commission would then have to review Lakeside to determine whether or not the project is consistent with the County Comp Plan.  (The original R338 had not been acted on since its introduction ten months earlier because, absent the language added by Amendment 1 regarding a finding on consistency, it was really toothless.)  The Lakeside developer and Town of Trappe were adamantly opposed to R338 and especially to Amendment 1 requiring a new finding of consistency.

The Planning Commission, with the support of the Public Works Advisory Board (“PWAB”) quickly found Amendment 1 to R338 to be consistent with the Comp Plan; at long last, it would allow for a review of Lakeside–the first one ever–even though not until long in the future.  At least it was something, however long delayed.  If Amendment 1 was adopted, so the reasoning went, then approving the developer’s map per R348 arguably could be reasonable, since at the 400th home there would finally be a review for consistency…that is, before all 2501 homes and a big shopping center went forward.

The developer and Town of Trappe of course hated the idea, and so the Lakeside supporters on the County Council delayed action on Amendment 1, clearly hoping that the developer’s map (R348) could be adopted first, in which case those three (Callahan, Haythe and Stepp) could reject Amendment 1 to R338 with impunity.

When it became clear that the County Council did not intend to move on Amendment 1 to R338, the Planning Commission simply had to act.  The PWAB, after several meetings, had unanimously found R348 unacceptable.  The Planning Commission, too, held its hearing and on April 2, 2024, it certified that the Sewer Service Map embedded in R348—as to Lakeside, the exact map put forth by the developer and adopted under false pretenses by the Council in 2020—was NOT CONSISTENT with the Talbot County Comp Plan.

There you have it folks:  Lakeside found inconsistent with the Comp Plan–meaning the County Council could NOT adopt the Lakeside map.  The project was stopped dead in its tracks—for a moment.

In reaction to that stark reality, the County Council at its very next meeting reluctantly brought up the oft-deferred Amendment 1 to R338 for a vote, and approved the thing.  In turn, at its next meeting on May 1st, the Planning Commission moved to reconsider its vote on Lakeside’s consistency with the Comp Plan.  It reversed its earlier finding, certifying that the developer’s map was consistent with the Comp Plan.  

In other words, to avert the tense drama of Planning Commissioners stopping Lakeside in its tracks in direct challenge to the three-member majority on the Council backing Lakeside, the Planning Commission accepted the workaround provided by Amendment 1.  The Commission would be empowered to review consistency later (envisioned to be when the 400th home was built).  Acceptance of the Mielke/Lesher compromise meant crisis averted.

At its very next meeting Ms. Haythe moved adoption of R348, and with votes from Callahan and Stepp the developer’s original plan first approved in 2020 on a foundation of falsehood and misrepresentation was again adopted.  (Lesher and Mielke voted nay.)

THE COMPROMISE NULLIFIED

It is here that the latest betrayal begins.  

All of these Resolutions represent amendments to the County’s Comprehensive Water and Sewer Plan, and under Maryland law such changes are not final until approved by MDE.  The sordid saga of Lakeside over two-plus decades reveals MDE consistently favoring the Lakeside project, the illegal permits of 2006 being only the most dramatic example.  Now, here in 2024, apparently influenced by lobbying from the developer’s advisors and by our County Council’s total inaction, MDE again gutted protections afforded Talbot citizens under Maryland law. Here is what happened:

Ten days after the County Council adopted Amendment 1 to R338, lawyers for the developer and Town of Trappe sent to the Secretary of MDE a 7-page letter making argument after argument as to why MDE should disapprove that Resolution, including the Amendment 1 workaround.  (A copy went to Talbot County Attorney Patrick Thomas.)

For three months the Talbot County Council and County Attorney did absolutely nothing—ZERO—to defend its legislation, to counter the arguments asserted by Lakeside lawyers, to explain to MDE the importance of the compromise embedded in Amendment 1 to R338, or to lobby for approval of R338.  Its deafening silence in the face of the well-connected developer’s lobbying was outrageous, another betrayal of the citizens of Talbot County and more directly, a betrayal of the PWAB and the Planning Commission that had agreed to rescind its finding that Lakeside is INCONSISTENT with our Comp Plan only because of the compromise provided by Amendment 1 to R338.

In a Spy letter on June 17th, TIP called on the County to speak up, while warning that the Council, where Callahan, Stepp and Haythe have always supported Lakeside, might refuse to act.  And silence is what we got.  Pete Lesher tried to raise the issue at one meeting, but action was deferred and the issue was never again mentioned over six meetings.  On June 24th TIP sent MDE a 4-page letter (plus exhibits) in an effort to counter bogus arguments by the Lakeside lawyers.  The Talbot Preservation Alliance also submitted comments.  But the County Council and County Attorney, whose standing with MDE would be significant, did nothing.

To the lasting benefit of the Lakeside developer, on August 7th MDE gutted R338 by removing the Amendment 1 language from R338, while at the same time approving R348 and the developer’s map for Lakeside.  MDE did not disapprove R338 entirely, a dramatic action that would have been seen as very controversial.  Instead, MDE artfully “modified” R338 (which is in its power under the law), making just a few changes including deletion of the one sentence that was added by the Council under Amendment 1.  

(Arguably the Planning Commission could have then rescinded its certification of the Lakeside map on the legitimate basis that MDE’s deletion of the agreed-upon precondition–that the Commission was expressly empowered at least to review it for consistency later—was unquestionably a surprise.  But the Commission had no stomach for such draconic action at this late point.)

MDE’s gutting of R338 by deleting the Amendment 1 language ended any pretense that the approval of Lakeside will comport with Maryland law.  And so it ends.  Not with a bang, or even with a whimper…but in utter silence.  

Disgraceful.