Annapolis conservation group repeats appeal of Providence Point retirement community decision

Capital Gazette:: June 21, 2023

By: Rebecca Ritzel, Capital Gazette reporter

A seven-year quest to build a nearly 400-unit continuing care retirement community in Annapolis is headed back to Anne Arundel County Circuit Court.

Frederick-based National Lutheran Communities & Services proposed building The Village of Providence Point in 2017 and has been mired in revisions and legal battles ever since. (Plans for a larger conceptual project date back even further.) The latest chapter in the saga is a request for judicial review, filed in late May, by members of a nonprofit conservation group.

The Crab Creek Conservancy is challenging the Annapolis Planning Commission’s latest effort to green light the project. At issue is whether the commission erred by granting a variance to state and local forest conservation regulations that would allow the removal of 64 “significant” trees on the 175-acre property at the intersection of Forest Drive and Crystal Spring Farm Road. Approximately 35 acres of the site would be cleared, if the court upholds the variance and construction goes forward.

A site plan for The Village at Providence Point submitted to the Annapolis Planning and Zoning Department in 2020, reflecting the full scope of the project. National Lutheran Communities & Services plans to develop the site in phases, if courts uphold the latest Annapolis Planning Commission decision.

The Planning Commission issued its first decision to grant National Lutheran the variance on March 31, 2022. The Crab Creek Conservancy and other residents filed their petition for judicial review a month later. In January, Anne Arundel County Circuit Judge Mark W. Crooks remanded the matter to the commission for further review on grounds that the panel, its attorney and city lawyers botched their paperwork.

In a lively opinion issued orally from the bench, Crooks lambasted the Planning Commission’s written decision granting the variance. Chief among his concerns: the commission and its attorneys verbatim copied text from National Lutheran’s application instead of documenting their own independent reasoning for approving the variance.

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

The Planning Commission’s new 16-page opinion, written with help from a fresh set of outside attorneys, summarizes the commission’s public hearings on Providence Point and details how testimony from experts, including a landscape architect and water-use engineer not affiliated with the developer, influenced the members’ decision to approve the variance.

“The Commission finds the testimony of independent professionals … to be particularly persuasive,” the opinion states.

City spokesperson Mitchelle Stephenson said in a statement that the city’s Office of Law anticipated the Planning Commission’s new opinion might also be subject to judicial review.

“In their previous ruling, the court asked the Planning Commission to be more explicit in their decision. Commissioners took that charge seriously and resubmitted the decision,” Stephenson said. “The Office of Law defends the city in appeals and does not think there is a sufficient legal basis for overturning the Commission decision in this case.”

Forrest Mays, spokesperson for Crab Creek, said he was disappointed that the commission didn’t hold additional public hearings once the case was remanded. He also criticized the city for accruing additional legal costs during the appeals process.

“When they decided to approve this again, they decided to spend more taxpayer dollars,” Mays said. “We are paying for their decision.”

The city supports its boards and commissions made up of volunteers, Stephenson said. “As part of that obligation of support, we provide City resources, including legal support. When there is an appeal, the City is compelled to spend money on a legal defense.”

G. Macy Nelson, a Towson-based land-use and environmental affairs attorney who represented Crab Creek, said he was surprised that the city hired new co-counsel who do not specialize in municipal and land-use issues. Jeffrey Larocca focuses on labor and employment law while Jessica Clajch has experience in medical malpractice and various areas of commercial litigation, according to the website for Eckert, Seaman, Cherin & Mellott, a national law firm with offices in Washington, D.C.

Stephenson pointed out that it is standard practice for the city to hire outside counsel to advise commissions and boards and praised the Eckert, Seaman, Cherin & Mellott team for having “a distinguished reputation” and experience in administrative law, land use, and zoning.

Nelson also said the supplemental opinion still has “significant legal shortcomings.” Among the issues he plans to challenge: Only Planning Commission chair Alex Pline signed the order, which is unusual, and the commission did not elaborate on comparable decisions as Crooks requested. Instead, the supplemental opinion briefly mentions two developments, Parkside Preserve and Bay Village Retirement Community that “have received variances to remove significant trees.”

The next round of oral arguments on the matter should take place in December at the earliest, Nelson said. He has requested transcripts of any additional discussions the Planning Commission had about Providence Point.

Since Crooks’ ruling, the Planning Commission has overhauled its process for issuing written decisions, with most of the work done by outside counsel, then reviewed by the commission. Some members have publicly complained about delays in getting the material back from outside counsel. (Developers cannot apply for building permits until written opinions have been issued.)

The Crab Creek Conservancy continues to meet regularly, Mays said, and is planning to reprise its “Music for the Forest” fundraising festival at the Eva Cassidy Lot later this summer.

National Lutheran Communities, meanwhile, has opened a sales center in Parole and is actively marketing the continuing care community. They expect it to open in mid-2025, according to the Providence Point website, and are taking reservations for cottages and independent living apartments.

Cyndi Walters, CEO of National Lutheran, issued a statement saying that the nonprofit was not surprised by Crab Creek’s recent filing. She pointed out that the city and the developer are separate participants in the case, each with their own legal counsel. National Lutheran is represented by prominent Annapolis attorney Alan Hyatt.

“We remain committed to our vision for The Village at Providence Point and look forward to the city achieving the speediest possible resolution to this petition,” Walters said.

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