Judge remands Providence Point case, accuses Annapolis Planning Commission of botching its written decision

Capital Gazette: January 11, 2023

By: Rebecca Ritzel, Capital Gazette reporter

A long-planned Annapolis retirement community hit yet another roadblock Wednesday when a judge ruled the city Planning Commission’s decision to grant a variance for the project was so poorly written, the case must return to the commission for another review.

Anne Arundel County Circuit Judge Mark Crooks chose to deliver his opinion orally from the bench Wednesday, and also allowed virtual attendance. In a colorful, 45-minute opinion, he lambasted the city’s Planning Commission and its attorneys for failing to issue a competently written decision.

“I am not saying it has to be ‘War and Peace’ here, but it has to be something,” Crooks said.

Instead of elucidating its reasoning on the matter at hand — why National Lutheran Communities & Services was granted a variance to state and local forest conservation regulations to partially clear 27 wooded acres off Forest Drive — the Planning Commission copied National Lutheran’s application and submitted that writing as its own decision on the matter.

“It looks like someone had a very adept skill with the cut-and-paste function,” Crooks said.

For more than a decade, National Lutheran has been seeking to build a 350-bed continuing care retirement community on Crystal Springs Farm Road. The Forest Conservation variance was crucial to allow for the removal of around 60 old-growth trees in what the state has deemed a “critical” forest. But because four of the five most crucial pages in the Planning Commission’s decision were lifted from the application, Crooks said there was no evidence that the Planning Commission executed “independent reasoning” when it ruled in February 2022 that construction should be allowed to proceed. And because he did not know the basis of the commission’s decision, other than agreeing with the developer, he could not issue a ruling on whether or not it ruled correctly.

“The million-dollar question for this court is why did this commission do that?” Crooks said. “You have to point to the component parts of salient evidence.”

Examples of evidence could include testimony members found compelling during multiple Planning Commission hearings held to discuss the project, and comparable Forest Conservation variances that have been granted elsewhere in the city or in the surrounding counties, Crooks said.

Conservationists lauded the judge’s decision. Laura Townsend, a Forest Drive resident and vice president of the Crab Creek Conservancy, said the decision goes beyond accusing the commission and its legal counsel of being lazy. “This is potentially a huge shift,” Townsend said. By calling out the commission for “wholesale lifting” of text from an application, the judge’s decision, “puts the city on notice that they can’t just rubber stamp developers.”

Forrest Mays, president of the Crab Creek Conservancy, was also thrilled and praised the Annapolis community for supporting the cause. Although the conservancy was formed to specifically oppose the Lutheran retirement community, called The Village at Providence Point, Mays has been fighting to get the former Crystal Springs Farm property preserved as a park since 2005, when it was annexed by the city. In late October, more than 200 people attended a “Music for the Forest” festival to raise money for the conservancy’s legal expenses.

“We had a good argument and a good attorney,” Mays said.

From the bench, Crooks praised both Crab Creek attorney G. Macy Nelson and Alan Hyatt, a well-known Annapolis real estate attorney, for their work. But ultimately, Hyatt’s arguments at a December hearing appealing the Planning Commission’s decision were irrelevant, because the commission’s decision was so poorly rendered, he said.

“I really feel a disservice has been given to both sides, because this has been going on for years,” Crooks said.

Mitchelle Stephenson, a spokesperson for the city, said the decision was jointly written by the Planning Commission members who voted to grant the variance (two other members abstained) and an outside attorney, not the city’s Office of Law.

“The judge’s remand gives the Planning Commission an opportunity to produce a decision that will be upheld. The City looks forward to the opportunity to clarify that decision for all parties involved,” Stephenson said.

Alex Pline, the current chair, said the commission “stands by its decision.” He added, however, that the document was written “with the advice and consent of the city’s Office of Law.”

“It went through all of those channels,” Pline said. “You can’t put one name on it.”

The name on the document, however, is Christopher L. Beard, an attorney chosen by the Office of Law to represent the Planning Commission. The commission is now working with a different contracted law firm. “We don’t have any say in that,” Pline said.

Cyndi Walters, the president of National Lutheran Communities and Services, indicated that the organization would opt for another trip to the Planning Commission rather than appeal Crooks’ decision to remand the case.

“Although we are disappointed that this ruling means a delay, we respect the court’s decision,” Walters said. “We remain fervently committed to the Annapolis community and to our vision for The Village at Providence Point, which has been hailed by civic and environmental leaders as a model for environmentally sustainable development. We look forward to working with the Planning Commission as this process unfolds and expect the commission to issue a favorable opinion in the next several months.”