The developer of Clarksburg Town Center said yesterday that the company has located documents showing that Montgomery County Planning Board Chairman Derick P. Berlage and planning staff approved at least some changes the firm sought for the project.
In a board hearing scheduled for today, Newland Communities will also present evidence that planners consulted with Duncan administration officials before changes were made.
A memo dated July 17, 2000, and sent to 13 government officials, shows that county project leader Wynn Witthans outlined proposed changes for the planned community of 1,300 homes in northern Montgomery County. The San Diego company is seeking to rebut assertions that the firm and four builders ignored legally binding plans for the development.
"There were numerous staff people involved from the very beginning. Clearly, people from all county agencies were involved," said Douglas C. Delano, a Newland vice president.
Newland's disclosure is the latest turn in a case that has triggered a broad debate over Montgomery's ability to oversee rapid growth and enforce its planning and zoning regulations. A group of Clarksburg residents has alleged for more than a year that Newland and the four builders ignored official plans and built what they wanted. On July 7, the board confirmed some of their allegations, finding that hundreds of houses were too tall and too close to neighbors and roads.
Witthans resigned in June after acknowledging that she had made changes to site plans so that they conformed to other documents related to the project. Witthans also said she had made the changes earlier in the planning process, but she then revised that statement and said she had made them recently.
The July 2000 memo shows that Witthans solicited comment from Park and Planning Department colleagues, the Maryland State Highway Administration and staff members at the Montgomery Department of Public Works and the Department of Permitting Services. Public Works and Permitting Services are agencies that report to County Executive Douglas M. Duncan (D).
David Weaver, a Duncan spokesman, said even if administration officials received Witthans's memo, they are not authorized to approve, amend or enforce site plans.
"The problem in Clarksburg is that the planning and zoning review system at Park and Planning is broken," Weaver said. "Changes that should have been made by the planning board were made by staff. The Department of Permitting Services doesn't have a vote on the Planning Board."
The memoranda and other documents forming the basis of Newland's presentation today were compiled by attorneys from a variety of sources, including the county's Historic Preservation Commission, and the files of an architectural firm and an engineering firm that worked on the project. Many of the documents also may be at the planning department but do not appear in public files. Agency officials acknowledge that recordkeeping has been lax.
Delano said Newland attorneys will use the documents to show that many county officials knew of the revisions and approved them in more than 165 meetings from 2000 to 2004. He said Berlage's signature, which appears on several plat documents, was affixed after changes were made to original plans, demonstrating that Berlage was aware of some changes and approved them.
The Clarksburg Town Center Advisory Committee, the residents group that unearthed evidence that the community was not being built according to plans, told the Planning Board at a hearing last week that 383 plats -- legal documents that show lot lines and property boundaries -- were signed by Berlage before the official site plans were approved and therefore are invalid.
The case has raised several legal issues and led to squabbling among branches of the county government.
Because the board faces the prospect of reviewing the actions of its own staff, and perhaps itself and its chairman, attorneys for the developer and builders plan to argue that the process is tainted.
"It would seem to me very difficult for the Planning Board to be impartial to do that, particularly given the obvious political climate they are in," Delano said.
At least two companies that built homes in Clarksburg, NV Homes and Craftstar, have said they will ask the board today to compel Witthans to testify or to dismiss the case.
In a letter to the board this week, attorneys for the firms said Witthans's recollection of events is crucial because she "is the most knowledgeable, responsible . . . official." She knew what was approved, attorneys said, "before those facts were either ignored or tortured into the current claims of alleged violations." Attorneys Kevin P. Kennedy and Timothy Dugan said they will go to court if necessary to make the board compel Witthans to testify. Witthans did not return a call seeking comment.
Nancy C. Lineman, spokeswoman for the planning agency, said the agency does not believe that it has the power to subpoena witnesses. She also dismissed suggestions that the board's process is unfair.
"The board will hear all of the evidence that is presented by both parties in the case and make an independent ruling to the best of their collective judgments."
On Tuesday, Duncan announced that the fire department had found at least 15 violations, including streets that are too narrow.
Delano produced a 2001 letter yesterday to Witthans that showed fire officials had approved plans, although they expressed misgivings.
Fire and rescue spokesman Pete Piringer said yesterday that "the letter is irrelevant to us because we have determined there are fire code violations and we are determined to fix them."