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By MEGHANN COTTER
Stafford County residents Linda and Jack Fellers aren't exactly standing in front of the bulldozers that K&M Properties wants to bring onto Crow's Nest.
But if the earth movers have to come, the Aquia couple wants to take steps to ensure the work won't impact their home, which overlooks the peninsula on the Accokeek Creek side.
They are worried that certain parts of the county code are not being enforced. They've asked the county Board of Zoning Appeals to evaluate the validity of some items in the McClean developer's proposal.
K&M Properties wants to build 688 homes on 3,230 acres of the pristine peninsula. And Stafford officials have forwarded the company's preliminary subdivision plan to the Planning Commission, saying the application meets all code requirements.
But David Bailey, the Fellerses' Beaverdam attorney, said his clients believe the company's plan violates several provisions of the Chesapeake Bay Act.
The appeal claims that documents related to those rules are missing or incomplete, and that some lots are too close to streams and wetlands.
Bailey said the matter belongs before the Board of Zoning Appeals, rather than the Planning Commission, because the Fellerses are questioning an administrative decision regarding the zoning ordinance.
The Planning Commission would have reviewed K&M's plan last Monday night. But state law says all proceedings about the development must halt until the Board of Zoning Appeals hears the appeal. The hearing is scheduled for Feb. 28.
That's a frustrating blow for K&M, said Clark Leming, the firm's Stafford attorney.
This is the second appeal the company has faced in the past year while trying to get county approval to develop Crow's Nest.
The first, filed by Stafford resident Patricia Kurpiel in the spring, questioned the completeness of the preliminary subdivision plan.
But Code Administrator Dan Schardein ruled that it was not an appropriate matter to send to the Board of Zoning Appeals, which upheld his decision when Kurpiel later appealed it, as well. That claim is now waiting to be heard in Circuit Court.
County policy has since changed, and Schardein said he must now forward all appeals to the Board of Zoning Appeals.
Both appeals have significantly delayed K&M's progress on this increasingly expensive project, Leming said.
K&M is asking the Circuit Court to overrule the Fellerses' appeal. That hearing is scheduled for Jan. 3. If the court rules in its favor, the developer's plan could immediately return to the Planning Commission.
Leming says the Fellerses' claim is premature because the Planning Commission has not made a decision, and the authority to decide subdivision plans belongs to it, not the Board of Zoning Appeals.
He also said the developer is not required to meet all of the Chesapeake Bay Act rules in its preliminary subdivision plan.
"It requires a much greater level for engineering," Leming said. "Preliminary subdivision plans don't do all of the engineering upfront."
More detailed plans would be submitted later for review by county officials, he said. Any lots that may be too close to streams and wetlands would be eliminated in that process.
Planning Director Jeff Harvey addressed several concerns about K&M's preliminary subdivision plan in a memo to Stafford's planning commissioners early this week.
He said his office still believes K&M has met all county ordinance requirements except an inconsequential one.
Regardless, County Attorney Joe Howard said there is no reason to rush K&M's plan through or override the Board of Zoning Appeals process.
"It's a complex issue, and it is going to be up to the court to sort through it," Howard said
Controversy has swirled around the attempted development of Crow's Nest.
Preservationists want to turn the property, which is home to some rare plant and animal species, into a nature preserve. And several groups, including federal, state and local agencies, have been trying to buy the tract or work out a land swap with the developer.
But Leming says his client is moving forward with its project because the company wants to cash in on its long-term investment, and no one has made a better offer.
Securing approval for the subdivision application, he said, will be an essential part of deciding the future of the property.
"Delaying the preliminary subdivision plan does not bring the county or any other entity out there any closer to saving Crow's Nest," he said. "All it does is delay things."
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com
