An excursion through the curious by-ways and cul-de-sacs
LIFE IN THE PINES
BZA offers flawed findings on YMCA
By TOM STAUSS/Publisher 1/28/2006
Five months after the Worcester County Board of Zoning Appeals voted to reject the proposed site of the planned north county YMCA on Gum Point Road just south of Ocean Pines, the BZA finally has issued an opinion that tries, but fails, to justify its decision.
David Gaskill, attorney for the BZA, actually wrote the opinion within a few weeks of the meeting when the vote was taken, but the BZA took its sweet time in ratifying it. County Zoning Administrator Kelley Henry said recently that some board members had problems with some of the text and that it was difficult to get five members at one meeting, because of vacations and other absences, to affix their signatures to it.
This dog-ate-my-homework excuse doesn’t pass the laugh test, but as County Commissioner Bud Church explained recently, this is Worcester County, where government works on its own timetable.
In this case, perhaps the intent was to nudge YMCA officials to find somewhere else to locate the Y, as far away from Ocean Pines as possible.
The clock on any appeal of the decision to Worcester County Circuit Court begins with the formal adoption of the findings of fact, which occurred at the BZA’s January meeting.
Tom Cetola, Worcester County Commissioner and acting chairman of the Seaside YMCA steering committee, says a decision on whether to appeal rests with the board of the Salisbury-based Mid-Delmarva Family YMCA, owners of the 28-acre Gum Point Road parcel.
Based on a recent conversation with Henry Vinyard, chairman of the Salisbury-based board, Cetola said there might be resistance to the spending of additional Salisbury money on the Gum Point Road location.
“I just found out that $70,000 has been spent already on the site, not the $40,000 that everybody thought,” Cetola said. “I’ve been told that the Salisbury board wants to do things differently, although what that means precisely I’m not sure.”
It probably means that if northern Worcester County residents want a YMCA, either in the vicinity of Ocean Pines or on other possible sites, they will have to step up to fund the next steps necessary to make it happen. Supporters of the Ocean Pines location may have to finance the appeal to circuit court if they oppose the BZA’s ex-post-facto justification for the decision made last August.
Perhaps some local attorney will surface willing to do the appeal pro bono. YMCA attorney Mark Cropper probably can’t do it, since he has been hired as counsel by the owner of a competing site behind the Harley-Davidson dealership near Stephen Decatur High School. He would have to choose who his client is, and usually a client who pays is the preferred choice.
If the Salisbury YMCA is reluctant to finance an appeal related to property it already owns, that same reluctance will probably apply to other possible sites that might be considered. Scaling regulatory and permitting hurdles in this county is not for the faint of heart. Nor is it inexpensive, even when an attorney is willing to donate his services free of charge. All those hired guns – traffic experts, land planners and the like – usually don’t donate their time.
The logical conclusion from this is, absent some financial commitment from northern Worcester County residents to finance the next steps, there may never be a north county YMCA, at least not anytime in the foreseeable future. The Whack-A-Mole approach to finding a site that everyone can agree upon does not inspire confidence that this process will end well.
It’s time for northern Worcester County to step up to the plate. And, the fact is, there is only one site, the Gum Point Road parcel, substantially along in the process, having won numerous approvals at the state and county levels before the BZA entered the fray.
As parties to an agreement with the Mid Family YMCA and Steen Associates, former owners of the Gum Point Road, the Ocean Pines Association could help to finance an appeal. Though some OPA directors might be content to see the Y go elsewhere, especially since title of the 28 acres would be transferred to the OPA if that happens, there should be at least four solid votes to help finance an appeal if there’s a reasonable chance of success.
Is there? Cetola says he’s read the BZA opinion and finds there are flaws. Indeed, the decision rejecting a special exception to build a non-commercial recreational building in an A-1 zone bases its rejection almost entirely on the incorrect notion that Gum Point Road will be the sole method of ingress/egress to the site, and that the only access to Gum Point Road is Route 589, a “traffic congested, major thoroughfare.” Both statements are wrong.
The findings omit the inconvenient fact that another access to the YMCA site would be from within Ocean Pines, via an extension of King Richard Road in Section 10. The opinion cites the OPA/Steen agreement when it mentions that “a straight collector road would not be constructed giving access from South Ocean Pines through Mr. Steen’s subdivision to Gum Point Road.”
According to the agreement, the extension of King Richard Road is to be circuitous and wouldn’t terminate at Gum Point Road. But it would connect Ocean Pines to the YMCA location, providing access to it without any burden on Gum Point Road or Route 589. Why did the BZA “forget” this key fact?
Moreover, the only access to Gum Point Road is not Route 589. Another access is Adkins Road Spur, directly across from Gum Point Road, sharing the intersection. Granted, it is a narrow country road, similar to those that provide access to agriculture land throughout the county. But it is a road access, despite the findings’ incorrect statement to the contrary.
A potential third, limited access road to the site is now a dirt road leading off Route 589.
The findings by omission misrepresent the status of a traffic light at the Gum Point Road location. The opinion correctly states there is no traffic light at the intersection at present, but completely ignores the fact that there is an agreement in place with the State Highway Administration to locate a traffic light there, to be jointly funded by the county and Steen Associates, if and when a YMCA is built.
The opinion’s conclusion that Gum Point Road is “an extremely dangerous intersection” is arguably true, but the findings completely ignore the improvement in safety that a traffic light would produce.
The opinion characterizes Gum Point Road as a narrow, dead-end residential road with no sidewalks, and that residents use the road for exercise. The findings mention that no plan to address the issue of widening Gum Point Road or pedestrian safety was presented by the applicants.
With all due respect to the BZA, this was not a site plan application, in which those issues might reasonably be addressed in some detail. If the county staff and planning commission would insist at the time of site review, approval of a site plan could be made conditional on acceptable safety and widening plans.
The opinion says that, in the view of the BZA, the “Board finds, as a matter of fact, that the YMCA most certainly would have less impact at another A-1 location than it would on this residential dead-end road.” This finding contradicted the testimony of Steve Soule, a land planner for the YMCA, who said that the YMCA “could” have less impact at another location within the A-1 zone.
Both statements are defensible. In practice, it will always be possible to make a case that some sites are better or worse than the site proposed. This “factual finding” by the BZA seems readily subject to challenge, though, and to present it as a finding of fact as opposed to mere opinion seems unwarranted.
A real howler of a conclusion by the BZA is that “the proposed use and structure will be detrimental to the use and peaceful enjoyment of surrounding properties,” again citing the supposed impact on Gum Point Road, as though Gum Point Road residents are the only people worthy of consideration in the BZA’s analysis.
Utterly ignored is the impact on other properties, including those in Ocean Pines, whose property owners ratified the presence of a YMCA in their midst several years ago. Informed opinion suggests that the presence of a YMCA in a residential neighborhood will be great for property values, especially if buffers and protections are in place reducing or eliminating extraneous noise and night lighting.
Even more offensive is a conclusion by the BZA that the proposed YMCA “would adversely affect the health and safety of residents, workers or visitors to the area,” again citing traffic concerns while again willfully ignoring the impact of a traffic light on making a dangerous intersection less dangerous.
The traffic light will be installed only if a Y is located there. So the BZA’s opinion fails to take into account the possible improvement in safety at the Gum Point Road intersection that a YMCA would catalyze.
Moreover, the BZA ignores the positive impact on the health of local residents from an Atlantic General Hospital wellness center that would be built as an accessory use in the Y complex.
Buried in the opinion is some case law, including a notable opinion by Dale Cathell, a state Court of Appeals judge who has lived in Ocean Pines for decades, regarding the criteria by which courts should decide whether to uphold or reject an application for a special exception.
This comes from a 1995 decision, when Cathell was a member of the Court of Special Appeals:
“The question … therefore, is not whether a (non-commercial recreation facility) has adverse effects. It inherently has them. The question is also not whether the (facility) at issue here will have adverse effects at (the) proposed location. Certainly, it will, and those adverse effects are contemplated by the statute. The proper question is whether those adverse effects are above and beyond, greater here than they would generally be elsewhere within the areas of the County where they may be established, i.e, the other A-1 Agricultural zones.”
The BZA apparently believes it has met this burden, but it hasn’t even come close. Its opinion and findings rely heavily on its mischaracterization of Gum Point Road as the sole ingress into the Y property and fail to take account the benefits to the neighborhood of installing a traffic light at the Gum Point Road/Route 589/Adkins Road Spur intersection.
As for the “proper question” posed by Cathell, nothing in the BZA opinion convincingly posits that the adverse effects on Gum Point Road, substantially mitigated in any event by a traffic light, would be greater than it would on any other similarly-sized and populated county road.
A 1981 Court of Appeals case also cited by the BZA opinion says that a special exception should not be granted “if at the particular location proposed (it would) have an adverse effect above and beyond that ordinarily associated with such uses.”
Here, also, the BZA comes up woefully short in its findings. Indeed, hours and hours of testimony at the August hearing produced ample evidence that the presence of a YMCA and AGH wellness center will have mostly positive effects on the community of Ocean Pines and others in northern Worcester County.
Any adverse effects, including impacts on traffic, would be ordinary and typical but well worth the price of having a YMCA in our midst.