By MEGHANN COTTER
K&M Properties' subdivision plan for Crow's Nest may have been declared dead on arrival, but the McLean developer's attorney hopes legal resuscitation will bring it back to life.
Clark Leming, who represents K&M, is questioning the time allowed for review of the plan and the method used by the Planning Commission last week to deny his client's proposal.
K&M's grievances, filed with the county and the Circuit Court, are the latest maneuvers in the battle for the future of the environmentally sensitive peninsula.
K&M, developing Crow's Nest as Stafford Lakes Limited Partnership, has proposed 688 homes on 3,230 acres between Potomac and Accokeek creeks.
The Stafford Planning Department had said in writing on two occasions that the plan met code requirements, and its staff recommended approval. But on the night the Planning Commission was scheduled to hear the issue, the agency delivered a new memo saying the plan was not up to code and the staff had changed its prior stance. County officials say that the deficiencies were revealed in a subsequent check of the developer's proposal.
"Sometimes that does happen," said County Attorney Joe Howard. "This is certainly not the only time that's happened, where staff has changed its recommendation when some additional facts have come to light."
But Leming argues the inconsistency is unfair to his client and out of sync with procedure.
Commissioners sought legal advice about the application in closed session during their Jan. 25 meeting. And before their vote, they read a prepared statement indicating their reasons for denying the plan.
They didn't give the applicant a chance to respond to the memo during the commission's meeting. Leming said applicants usually have a chance to comment.
"We were prepared to say what the problem was with every one of the things they had listed," Leming said. "We think everything raised is very, very technical in nature."
That's why he has fired off a swift appeal of the commission's decision.
"We aren't making any substantive revisions to the plan or proposing any," he said.
But there is some argument as to who should review that claim.
State law says the appeal goes to the Circuit Court. County code sends it to the Board of Supervisors.
Howard said the county hasn't yet decided where the appeal should go. But he stands behind the commission's decision on the Crow's Nest application.
"The plan has to meet the ordinance, and it did not meet the ordinance, and as a result of that it could not be approved," he said.
If supervisors are to hear the case, it is expected to come up at their meeting Tuesday.
By then, the Circuit Court will have heard Leming's first argument about the amount of time the Planning Commission had to review K&M's application. Arguments are scheduled to be heard Monday.
Legally, the county has 60 days to make a decision on a subdivision plan.
But the time limit on the Crow's Nest application was interrupted by litigation in December, after an Aquia couple asked the county Board of Zoning Appeals to review the proposal's compliance with the Chesapeake Bay Act.
The judge ruled that the zoning board had no authority in a subdivision matter. But when he sent K&M's application back to the regular review process, he said the time elapsed while the court was deciding the case would not count as part of the 60 days.
Leming said the court erred in that decision because the county didn't have the authority to forward the original complaint to the zoning board in the first place.
How the judge rules on that matter is important to the case because an application is automatically approved if the Planning Commission doesn't meet the allowed time limit.
Leming also plans to challenge the county on when that 60-day clock started.
He believes it began Oct. 18, when the last fees and substantive revisions were submitted to the county. That would mean the time originally expired Dec. 17. The time allowed while the case was in litigation would have stopped the clock Jan. 19.
But the Planning Department contends that a final version of the application was not received until Dec. 1, so the court's grace period gives it until March 5. Otherwise, time would have run out Jan. 29.
Leming says time is of the essence because several pending ordinance changes could require K&M to change its plan substantially.
One, scheduled for a public hearing before the Board of Supervisors on Tuesday, would require more detailed information about well and septic systems on preliminary subdivision plans.
As of Jan. 11, there were 24 other preliminary subdivision plans, some with as few as four lots, that would be impacted by approval of the ordinance.
Crow's Nest is the largest subdivision plan, in terms of acreage, that the county has reviewed.
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com