On January 22, 2019, Crystal Spring developers National Lutheran Communities and Services (NLCS) filed plans with the City of Annapolis for their senior community Providence Point. We were extremely disappointed to find that the new filing made no changes whatsoever to address our four major concerns. The project remains at a 35 acre footprint with 30 acres of forest to be cleared. The filings are actually worse than before as the developers inexplicably concocted a calculation under their Preliminary Forest Conservation Plan that shows they are not responsible for replanting any forest cleared! Please see our letter below to NLCS President and CEO Larry Bradshaw explaining our disappointment with the plans, which is also summed up with this cartoon by Eric Smith, which appeared in the Capital on January 20.
Dear Larry et al.,
I have had a chance to examine your January 22, 2019 filings for The Village at Providence Point. As I mentioned to you after my preliminary review, I am very disappointed. I really thought we were making progress in resolving our major objections to the project.
With the new filings, there seems to have been no changes made whatsoever to even attempt to meet our four major areas of concern. In fact, the plans are worse than we saw previously as the Preliminary Forest Conservation Plan (PFCP) inexplicably shows zero replanting required. We had repeatedly made all of you aware of these concerns both by emails, on the phone with Larry, and in the meetings with you all on July 24 and September 17, 2017 chaired by Planning and Zoning in their conference room. I also met with Alan Hyatt, your local attorney, and went over these concerns in detail. Furthermore, I again made you and your team aware of our concerns at the public meeting on January 3 in Annapolis. I was surprised then that the presentation you and Alan Hyatt made showed no movement towards resolving the four issues we had repeatedly detailed to you. After the meting, we again let you and Alan Hyatt, and P&Z know of our disappointment in written comments for the record.
Perhaps I was misguided in expecting that after more than eight years of gridlock and our more recent meetings and discussions, you would continue your meetings with P&Z and us to achieve the changes P&Z was insisting upon and address our four areas of concern. I and others on our team were shocked that with the filings of January 22, your formal plans failed to address any of the four issues we raised and the PFCP went backwards despite passage of the no net loss ordinance. Now we have no other choice but to vigorously oppose your plans and act accordingly.
The four key items we have repeatedly raised with you and City officials that were not addressed:
- Forest clearing be reduced from the 30 acres to be cleared and 100% of forest cleared be replanted on site;
- There be no increase in the rate, volume, or pollutant load of stormwater flowing from the site for the 20-year storm event;
- There be a comprehensive conservation easement agreed to whose terms would extinguish all development rights besides the 351 senior units and to protect all remaining forest while allowing for a new Wellness House and equestrian related structures; and
- That traffic improvements include commitments for the construction of a long-planned relief road connecting the development on the west with Skipper Lane providing direct access from the development to the CVS, Safeway, and related retail businesses.
As we continued to negotiate in good faith, all of us involved fully expected that our four items, which seemed reasonable, would be resolved in some fashion before the next subsequent formal filings for the development. on the relief road, a commitment by the City to build it would be enough. After all, with the exceptions of the relief road, there had been pledges by you to do 100% reforestation, improve stormwater flows, and execute a conservation easement as mentioned above.
When you and I last spoke, I inquired as why the plans were filed before the pending issues were resolved but I could not get an answer.
I will address further only one issue to show what we see as bad faith on your part: that of the PFCP with a computation that for 30 acres of forest cleared, zero must be replanted.
I was in shock that under the new PFCP, not only was the footprint not reduced to protect even one square foot more of forest protected from development, but that zero reforestation is required even with the new no net loss ordinance. Our land use attorney, Tom Deming wrote the attached memo concluding that 100% reforestation is required. He states he was “flabbergasted” by your new calculation. Surely, there has been an error on your part in the erroneous use of a “break even point” to reach a zero replanting requirement.
The PFCP worksheet dated January 22, 2019 is made acknowledging the passage of O-27-18, the new no net loss ordinance. The worksheet uses some convoluted methodology for a break even point to be zero unlike the two previous filings you made for the same property. Both of these PFCP flings for the senior development show a break even point of 90.5 acres (not zero) and show reforestation requirements of 16.45 acres for 39.5 acres to be cleared (not zero) in the July 25, 2017 PFCP filing and 15.05 acres to be reforested for 38.8 acres to be cleared under the PFCP of December 15, 2017. This was before the enactment of the no net loss ordinance eliminating the credits used to get down below 100% reforestation. With this removal of the credit, the break even point computation was also eliminated.
During all of our discussions with you and your team, no one ever mentioned that zero acreage would be required to be replanted, including at the January 3, 2019 public meeting when questions were asked about the 30 acres of forest to be cleared and where the 30 acres would be replanted.
Tom Deming’s detailed legal memo on this issue is attached concluding that the break even point in calculating replanting requirements has been eliminated and 100% replanting is required. Tom Deming has vast experience and knowledge on the Forest Conservation law from 20 years of experience as DNR’s Chief Legal Counsel as an Assistant Attorney General overseeing the legislation and the implementing regulations and Technical Manual.
I spoke with Alderman Rob Savidge, the sponsor of O-27-18, about this matter and he was also shocked. He advised me right away that his ordinance effectively eliminated use of the break even point in calculating replanting requirements. Alderman Savidge has a good deal of experience with FCPs as he worked in the City’s Department of Neighborhoods and Environmental Programs which had authority over FCP reviews. He reviewed FCPs as he is a trained Qualified Professional under the Forest Conservation Act through DNR and is capable of conducting forest delineations, writing forest conservation plans, and reviewing them. He knows well the nuances and legal requirements of the state and local Forest Conservation laws.
I also spoke about this issue with Jackie Guild, the City’s Director of the Office of Environmental Policy, Ms. Guild concurs with Tom Deming’s conclusion in his memo. She is an attorney with solid experience in land use law with knowledge of the intricacies of the Forest Conservation Act. She was formerly Director of the Chesapeake Legal Alliance, an NGO specializing inland use cases.
As the original developer of the forest conservation law and one who managed the bill to passage while a state senator, I also completely agree with Tom Deming’s memo and its conclusion as well as the conclusions of Alderman Savidge and Jackie Guild that 100% reforestation is required at Providence Point as the break even point is no longer to be used.
If this is not enough to convince you, I ask that you look at the attached memo from Jeff Horan. He was the DNR and Governor’s office point person on legislative efforts pertaining to the development and enactment of the Forest Conservation Act and working at DNR for 28 years oversaw/wrote the regulations and Tech Manual for the implementation of the state Forest Conservation Act. The Tech Manual is the source of the break even point. Jeff is truly about the best expert we, or anyone else, could find on dealing with the break even point that is at the center of the current dispute.
In his attached memo he concludes: “I have examined the materials, including the PFCP in question, the Work Sheet and the use of the Break Even Point calculation in the January 22, 2018 filing for The Village of Providence Point….I can state unequivocally, that I completely agree with Tom Deming’s memo of February 5, 2019 concluding that the requirement for use of the Break Even Point is now rendered non-existent with the elimination of the credit provided for under Natural Resources Article, Sec. 5-1606(d)(2)….Since the enactment of O-27-18 by the City Council, termed the No Net Loss ordinance, and its application to the January 22 PFCP, all forest acreage cleared must be replanted or a fee-in-lieu of paid for such replanting.”
If this is still not enough, Pete Gutwald concluded that O-27-18 would require 100% reforestation of all forest cleared at your development site. In the third attachment, Pete advised the Planning Commission of P&Z’s position on the then pending no net loss ordinance. You will see in the chart Pete presented how much more reforestation would be required for current projects for which a PFCP had been filed but not approved. Pete advised the Commission that should O-27-18 pass, it would require 100% reforestation for all acreage cleared at The Village at Providence Point which was then 39.5 acres. Pete wanted the ordinance amended to make it apply only to newly filed PFCPs.
The previously filed PFCP Pete referenced (July 2017) showed 16.45 acres required to be replanted if 39.5 acres were cleared under the then current law. A later PFCP (December 2017) showed 15.05 acres required to be planted. Your consultants filed these PFCPs and used a break even point of 90.5 acres even with the credits used that were eliminated by O-27-18. Now, a PFCP is filed showing a break even point of zero with no credits possible. P&Z has never questioned your previous PFCPs filings use of the break even point showing replanting requirements.
So how can anyone now claim the new PFCP filing is correct with zero replanting required when not only Pete’s September 8, 2018 memo clearly denoted that 100% reforestation was required should O-27-18 pass, but all the “experts” mentioned above also firmly believe the same?
As we have discussed several times, even if you met our four concerns, it was going to be a hard sell to our leadership council to drop opposition to this development and even harder to sell it to the public. I outlined a plan to you for how we could drop our opposition to the development if our four concerns were met. Then, you all heard how hostile the public was to your proposal at the January 3 public meeting. An indicia of the public attitude regarding your development is the January 20 cartoon in The Capital newspaper below.
Without our four issues being resolved, we will never reach an amicable resolution and we now have no other choice but to continue our opposition to the project.