Kittleman’s Kelo, Columbia Conundrum

The current Howard County Executive seems to be full supporter of the Long Reach Village Center Urban Renewal.  He made Welcome remarks at the first community meeting on April 30.  He has a video on the County’s Long Reach page.  He sent an email to Long Reach Stakeholders.  When he had another commitment during the June 11 Long Reach Community Meeting, he spoke via a recorded video. Yet, based upon his past public service the County Executive should know somewhere in his memory and in his soul that the Long Reach Village Center does not actually meet the constitutional definition for a “blighted area.”

The County Executive ran for his office based upon being a “Proven Independent Leader;” he needs to be independent and lead and address this unconstitutional plan, rather than just accepting the plan that he inherited from the prior administration.

In 2005, the United States Supreme Court ruled on the widely publicized case of Kelo v. City of New London.  The Court ruled that a government could take private property if it served the “public purpose” of promoting economic development.  The Senator from the 9th District in Howard County requested an advice letter from the Office of the Maryland Attorney General.  The Assistant Attorney General stated in his letter that the Maryland Courts had already been following the Supreme Court’s position in Kelo.  The letter stated “I believe Maryland cases have long reflected the views on eminent domain articulated by the majority in Kelo.  Ironically, if there is any impact from Kelo in Maryland, it might be a limiting one.”

However, even though the Kelo case really did not change the law in Maryland, the Senator, along with other members of his party, apparently had been awoken to this issue.  Thus, began a series of attempts to change the law and Constitution in Maryland regarding condemnation and urban renewal.

In 2006, the Senator cosponsored SB 173, the Property Protection Act of 2006.  The Act, citing the Supreme Court’s decision in Kelo, proposed several amendments to the Maryland Constitution which would have prohibited condemnation of private property for “urban renewal” or “community revitalization or redevelopment.”

A few weeks later, the Senator was the lone sponsor of SB 505 which proposed amendments to the Constitution to prohibit only in Howard County the use of eminent domain for among other reasons “urban renewal” or “community revitalization or redevelopment.”  More specifically, it proposed a new subparagraph to Article III, Section 61 which stated “In Howard County, private property may not be condemned to carry out an urban renewal project.”

The Senator told the County delegation that “Someone has a right to have a vacant property.”  In advocating for his position he said “I think property rights are so sacred they have to be in the constitution.”  He added that he was proposing the change only applicable to Howard County because he did not “see a [statewide] constitutional amendment coming out of the Senate.  I think individual jurisdictions in Maryland should have the right to make it more restrictive if they want to.”

The same day SB 505 was introduced, the Senator sponsored SB 704 which would have amended the definitions of “slum area” and “blighted area” in Article III, Section 61 of the State Constitution. Though the Senator’s purpose seemed to be to only limit urban renewal through condemnation, the changes would also apply to voluntary attempts at urban renewal such as in Long Reach. The proposal sought to change the definition of “blighted area” by raising the requirement of the number of buildings which no longer “justify fundamental repairs and adequate maintenance” from “a majority” to “ninety percent of the buildings.”

Had the Senator been successful in this proposal and had it been ratified by the voters in Maryland, even a casual observer would have realized that the current urban renewal in Long Reach does not meet the constitutional definition for a “blighted area.”  In fact, it would have precluded many attempts at urban renewal in Howard County and Maryland.

Also at this time, the Senator cosponsored SB 813 which would have legislated that any property taken by a government by eminent domain would have to be put to a public use within five years from the date the government acquired the property.  The bill would have given the former owner 3 months after the expiration of the five year period to petition a court to have the condemnation set aside.

Having been unsuccessful in the 2006 Legislative Session, in 2007 the Senator sponsored SB 294, The Property Protection Act of 2007.  As with the Property Protection Act of 2006, the bill proposed amendments to  the Maryland Constitution which would have prohibited condemnation of private property for “urban renewal” or “community revitalization or redevelopment.”

From working on all of these bills, this Senator must have a achieved a good understanding of the eminent domain, urban renewal, and the “blighted area” provisions in the Maryland Constitution.  This Senator must know what a “blighted area” looks like and that Long Reach is not legally and constitutionally “blighted” as defined in Article III, Section 61 of the Maryland Constitution. This Senator in his current job is responsible for making sure that the laws and constitution are followed and must address the unconstitutional Long Reach Urban Renewal Plan.

The name of this Senator who sponsored these bills and who represented the 9th District in Howard County was Allan H. Kittleman–the current Howard County Executive.

And now you have the rest of the story.

Good day.

Prior Blog: HoCo’s Long Reach Urban Renewal Plan is Unconstitutional

HoCo’s Long Reach Urban Renewal Project is Unconstitutional

Well, I thought if I was going to start a HoCo Blog, I should start out with an attention grabbing headline. So now that I have your attention, I hope that you will keep reading to see the legal points I am making.

In recent weeks I have discovered that the County’s Long Reach Urban Renewal Project is not only analytically and procedurally flawed, but that it has been legally and constitutionally defective since its inception. (In fact, the Howard County Urban Renewal Law has been constitutionally flawed for several decades–long before the Long Reach redevelopment; that is a discussion for a future time).

When people claim that something is unconstitutional especially regarding land development and urban renewal, they often are saying that it is a taking without just compensation, or that the government violated their due process rights. No, that is not the problem here with Howard County in Long Reach. The violation is of a more technical and limited nature: the urban renewal plan does not meet the legal or more specifically constitutional definition for a “blighted area.”

Until recently, I had not actually read the Urban Renewal Law. I had erroneously believed that Howard County could just declare any economically depressed area “blighted” and proceed with urban renewal. Unfortunately, not only has the public also been naively unaware of the rules for urban renewal but it seems that the County staff and Council do not understand it either. Urban renewal occupies a very unique corner of Maryland constitutional law.

The power for any county or municipality in Maryland to proceed with urban renewal is found in Article III, Section 61 of the Maryland Constitution . The local government, even a home rule Charter County like Howard, only has this power if the General Assembly specifically grants it by passing a public local law. In 1961, the General Assembly passed Chapter 877 which granted Howard County urban renewal authority.

In addition, I was unaware that the Constitution defines “slum area” and “blighted area.” Regretfully, it seems the County never read the definitions either. The Constitution states that a “blighted area shall mean an area in which a majority of buildings have declined in productivity by reason of obsolescence, depreciation or other causes to an extent they no longer justify fundamental repairs and adequate maintenance.” This definition was incorporated as part of Chapter 877 and is found in Section 13.1102 (c) of the Howard County Code.

When the Council passed resolution CR22-2014 initiating the Long Reach Urban Renewal, they did not even attempt to deal with the constitutional and legal definition for “blighted area.” The question is whether this was a simple mistake or willful ignorance on the part of the Ulman Administration and Council. It is one thing to be unaware of the definition in a rarely used part of the Constitution. It is quite another to ignore the County’s own Code which the resolution cited:

WHEREAS, Howard County’s Urban Renewal Law (Howard County Code,  § 13.1100  et. seq.) provides for County acquisition of private property for the purpose of urban renewal when an area of the County becomes blighted;

Rather than comply with the definition for “blighted area” in the Maryland Constitution, Chapter 877, and Section 13.1102 (c) the Council Resolution created an entirely new definition:

WHEREAS, the County Council finds that, over time, the Long Reach Village Center has become a blighted area, as demonstrated by these facts 1) a majority of the retail space is vacant; 2) many of the buildings are poorly maintained; 3) ongoing and increasing safety concerns have been expressed by community members, village center occupants and visitors;

Not one of those three justifications are found in the Constitution or the Code. Being vacant and poorly maintained is not enough; a building must be in such poor condition that repairs and maintenance are not justified.

Unfortunately, the County staff are in fact oblivious of the basic legal requirements. Mark Thompson, Director of the Howard County Economic Development Authority and the individual responsible for the Long Reach redevelopment was genuinely unaware of the definition for “blighted area.” When I asked in an email how many buildings “no longer justify fundamental repairs and adequate maintenance” he called me by phone to clarify what I was talking about. Admittedly, Thompson states that he is not a lawyer and relies on the Law Department for ensuring compliance with the law. It would appear that the Council, County Solicitor and the former County Executive, an attorney himself, failed the staff and the residents of Long Reach and of Howard County in adopting CR22-2014.

The Long Reach Urban Renewal Area is comprised of the following buildings : the former Safeway site, a retail building over which there are is office space connected by two bridges, a former bank building, Deli Town, Richburn Liquors, Stonehouse, Arts Center, Celebration Church, and the Exxon Gas Station with a separate car wash building. Determining how many buildings are in the urban renewal area is a bit complicated and there is probably no clear answer. Are Stonehouse and the Arts Center one building or two? Is the retail space one building connected by the second-story office space or is it three separate buildings? Yet, whether there are in fact ten buildings or thirteen buildings more or less is really immaterial to determining if a majority of the buildings meet the legal definition for a “blighted area.” Do six or seven of the buildings lack justification to repair or maintain and thus comprise a majority to meet the definition for a “blighted area”?

For how many buildings in the Long Reach Urban Renewal Area “no longer justify fundamental repairs and adequate maintenance?” One? Two? Five? Seven? Eight? The answer is none, zero, nada, goose eggs, nil, zilch, zip, diddly-squat. All of the buildings other than the former Safeway site and the bank are currently occupied in full or in part. The County’s Long Reach webpage states that the County has made improvements and repairs. Whether any buildings will be demolished has not yet been determined, and the decision will only occur after adoption of the urban renewal plan. Moreover the webpage states that “There will not be any planned demolition of other properties unless the particular owner in agreement.”

Furthermore, Mark Thompson confirmed in an email: “We have made a number of repairs to County property and will continue to do so as conditions warrant.” So all of the buildings still justify fundamental repairs and adequate maintenance. Thus, the purported urban renewal area does not meet the constitutional and legal definition of a “blighted area.”

And finally, note item 3 in the resolution. The Council did not find that there were actual safety issues, but rather that people expressed safety concerns. Really? Howard County is initiating an expensive urban renewal process because some people feel uncomfortable. The County now finds itself in the position of knocking down this red herring. The police and security personnel at the Center say that crime is not really any more prevalent at Long Reach than in other parts of Columbia. Yes, the police were called after the May 28 urban renewal meeting but not because of a crime, but because a woman in a wheelchair had been overlooked and locked inside Stonehouse.

As with the redevelopment of Long Reach, this is just beginning of the discussion of the legal flaws regarding urban renewal in Howard County.

To Be Continued . . .