The Montgomery County Planning Board, whose staff is at the center of a dispute over alleged building violations in Clarksburg, may be ill suited to fairly investigate the case, some current and former county officials say.
The five-member board, which sets land-use policy, must decide whether Clarksburg Town Center developer Newland Communities violated legally binding commitments outlining how the development would be built.
At a hearing Thursday, the board found that San Diego-based Newland failed to build promised recreational amenities on time. It deferred a decision on whether moderately priced homes required by the county were properly located. In July, the board ruled that hundreds of homes in the community were built too high or too close to the street.
This month, the board will hear more evidence, unearthed by a group of sleuthing residents, of what they say are improprieties by the developer.
The board could fine Newland and four other builders as much as $1 million -- the largest penalty it's ever imposed -- on height and setback issues alone.
But the panel's review of the case has been hampered by missing documents, as well as the potential conflict it faces in evaluating the role of its staff. And notably absent from the proceedings is perhaps the most important witness, Wynn Witthans, a former county planner who played a key role in decisions about changes in plans in the construction of the northern Montgomery town.
Witthans resigned in June after the planning board found that she had altered official plans to match the height of homes that had been built. Other staff members also signed documents approving developer changes.
Some county leaders wonder whether the panel can get to the truth. Unlike a court, the board has no power to subpoena witnesses or hear sworn testimony.
"I am having trouble with a procedure . . . where citizens are not under oath, where hearsay is admissible and ultimately significant fines can be imposed," said County Council member Steven A. Silverman (D-At Large), who chairs a committee with oversight over planning and zoning.
Newland attorneys say county planning staff knew what was happening in Clarksburg. Witthans and other planning officials, they say, exercised authority the board gave them in 1999 to change official plans.
But it's not clear whether those changes will ever be documented. Newland and county planning staff say some documents are missing. On Thursday, a Newland engineer told the planning board he had submitted "hundreds of plans" to Witthans since the project began in 1998. Planning staff said they could not verify that claim, and residents challenging Newland are skeptical the plans ever existed.
Montgomery's planning process has long been a great source of pride for county officials.
But Thursday's hearing, which examined claims of delayed construction of recreational amenities and affordable homes, underscored growing concerns about the board's ability to effectively manage the case.
"Are the rules fair?" asked council member Nancy Floreen (D-At Large), a member of a committee with oversight of planning and zoning. "Is there enough predictability in the process? I don't know anymore, and I think we as a county need to confront that up front."
Council member Michael Knapp (D-Upcounty) said, "It seems to me things are being made up as we go along."
At times the proceedings descended into bitter argument. Residents and the developer traded unsubstantiated charges, complained of being blindsided by new evidence and accused each other of producing misleading photographs.
Board Chairman Derick Berlage scolded the audience on several occasions for grumbling and laughing during Newland's presentation. Later, as frustrated Newland attorneys looked on, Clarksburg resident Kim Shiley spent five minutes mocking a letter to the community written by a Newland vice president, who sat in the audience.
Then, while a Newland engineer testified, Amy Presley, a leader of the Clarksburg Town Center Advisory Community, shouted from the audience that she wanted to cross-examine him. Board members appeared surprised by the request but quickly granted it.
In an interview, Berlage defended the hearings, saying they have been "extraordinarily impartial" and centered on "the facts."
"We are handling it very professionally," said Berlage, who is seeking reappointment by the County Council next year to a second four-year term. Parties in the dispute, he added, have the right to appeal the outcome to the courts.
Board member Meredith K. Wellington, however, said she wants the panel to "conduct these hearings in a different, more searching way."
Gus Bauman, who served as board chairman from 1998 to 2003, said the panel is in "uncharted waters" and should bring in a mediator.
Others are urging a go-slow approach to any changes.
"Don't change the system because one case is so traumatic," said Perry Berman, a former senior county planning official.