By MEGHANN COTTER
An ongoing duel between activists who want to save Crow's Nest and the landowner that wants to develop it put the Stafford Planning Commission in the line of fire last night.
Letters from both sides urged the panel to decide immediately on K&M Properties' subdivision plan for the environmentally sensitive peninsula, rather than refer it to a committee.
But a last-minute memo from the Planning Department, which noted 10 deficiencies in the plan, gave the seven-member board reason enough to pull the trigger on a unanimous denial.
Commissioner Ken Mitchell, whose Aquia District is home to the peninsula, made the motion to reject the plan, listing the reasons the department had mentioned.
But Stafford lawyer Clark Leming, who represents the McLean firm developing Crow's Nest as Stafford Lakes Limited Partnership, said he thought the department's actions were contradictory.
The Planning Department had said on two previous occasions that the plan, which proposes 688 homes on 3,230 acres of the parcel, met county code requirements. And Leming said the agency had given him the same opinion at 10 a.m. yesterday.
"Obviously, someone has persuaded staff they should think differently," he said. "Our standpoint is that's not a valid approach to reviewing a subdivision plan."
Planning Director Jeff Harvey said his office discovered problems in a subsequent check of the proposal. The deficiencies listed in his memo include improper lot sizes, lack of information on maps and inaccurate dimensions in the subdivision's design.
Harvey declined to comment on why the department's staff did not identify those issues earlier.
The Planning Commission is the final authority on subdivision plans, which the Board of Supervisors does not review.
Before last night's vote, Leming said K&M would have no choice but to appeal the issue to the county Circuit Court if the commission rejected the plan.
The subdivision plan is the largest in acreage the county has ever reviewed. Most applications of such complexity are studied by a committee before the Planning Commission votes.
The commission's opportunity to review the Crow's Nest plan came after a nearly two-month squabble in court. It originally was scheduled to hear the issue Dec. 7.
But a full agenda delayed the matter to a Dec. 19 meeting. Before the commission could review it that night, Aquia residents Linda and Jack Fellers' appeal to the county zoning board stopped all discussion.
The couple believed K&M's plan did not comply with Chesapeake Bay rules in the county's zoning and subdivision ordinances.
In response, K&M asked the county Circuit Court to overrule the claim. A judge decided in the firm's favor Jan. 10, saying the zoning board had no jurisdiction in a subdivision matter.
That ruling immediately returned the plan to the Planning Commission. The judge said the time elapsed while the plan was being litigated would not count as part of the 60-day time limit on the county's review.
The commissioners made their decision last night amid a spat between the county and the developer about when that 60-day clock started.
Harvey said his office received the plan's final amended version on Dec. 1, giving the Planning Commission until March 5 to make a decision.
But Leming said the 60 days began Oct. 18, when the last fees and substantive revisions were submitted to the county. He said the minor, procedural and administrative changes made after that submission should not affect the timing. On his clock, time ran out Jan. 19.
That was one of the arguments Leming made in his letter to the Planning Commission last night. He said K&M would take the matter to court if the commission did not make a decision in 10 days.
The county code says an application is automatically approved if the Planning Commission doesn't meet the time limit. The court must order approval, if that's the case.
But another letter to the Planning Commission last night, from the Fellers' Beaverdam attorney, David Bailey, countered Leming's argument.
Bailey warned commissioners that referring the plan to committee might allow the court to decide for them. He encouraged the Planning Commission to deny the application, instead.
"The applicant's plan represents a 'hurry up' application that even though nearly a year in the process simply does not comport with Zoning Ordinance requirements, nor the Subdivision Ordinance requirement of compliance with the Zoning Ordinance," he wrote. "This seems to be a plan rapidly assembled at the last minute to avoid the consequences of a possible new drainfield ordinance, or to meet some financial deal that the applicant had in the works."
In the next few months., several ordinance changes are scheduled to come before the Board of Supervisors that could require K&M to change its plan substantially.
Approval of the plan would exempt the firm from any new ordinance changes.
County supervisors have said that they are looking at several options for buying the tract or trading it for a less environmentally sensitive one.
Leming said his client is at least aware, as a second party, of these discussions. But the time and attention that K&M devoted to win approval of its subdivision plan has made any talk of a deal difficult.
"I would say other actions we are having to engage in regarding the subdivision plan are somewhat of a distraction," Leming said. "We've been subjected to what ultimately have been frivolous delays."
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com