Wednesday, July 9, 2008

State cannot use property in ICC plan, judge says

Ruling: Previous owner has right to buy back land

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State officials were wrong to give the county a 118-acre parcel of land near Silver Spring to offset the environmental impacts of the Intercounty Connector, because the original owner had the option to repurchase it after an alternate alignment for the road was chosen, a judge has ruled.

The owner, Winchester Homes of Bethesda, won the lawsuit it filed in February 2007 after the State Highway Administration told the developer it could not buy back the land, which was no longer potentially in the right of way for the ICC.

The land was one of several properties the state gave the Maryland-National Capital Park and Planning Commission as part of a land swap in March. A Planning Board spokeswoman said the judge’s ruling does not change the county’s deal.

Montgomery County Circuit Court Judge S. Michael Pincus wrote in his May 5 ruling that the SHA was contractually obligated to offer Winchester Homes the chance to buy back the property, located at Peach Orchard and Spencerville roads in Colesville, because it was not needed for the road’s infrastructure, according to court documents filed in Rockville. The state appealed the ruling June 4.

The state condemned the property in 1997 to preserve potential right of way for the ICC, an 18-mile toll road under construction that will connect Interstate 270 in Gaithersburg with Interstate 95 in Laurel, according to the documents. Planning for the controversial road began more than 50 years ago, but its alignment was not finalized until 2006.

Under the contract, Winchester could opt to buy back the site, referred to as the Peach Orchard⁄Allnutt property, if it was not used for the roadway, the documents state. But when a southern alignment located more than two miles from the property was selected, the property was included in an environmental mitigation package that would replace county parkland razed for the road.

The SHA said it needed the land to offset the ICC’s environmental impact.

The lawsuit has not affected the state’s environmental mitigation plans, though SHA is not allowed on the property during the appeal process, according to Fran Counihan, media relations director for the ICC. She declined to comment on what would happen if the SHA lost its appeal, citing the pending litigation.

At the time the state condemned the property, it had been approved for 130 residential lots, and the land had been cleared, graded and partially developed, according to the suit. The majority of the site — 78 acres — was to be deeded from SHA to the county as parkland. A March 2007 Montgomery County Planning Board report estimated that reforestation of the site would take about three years.

In March, the board endorsed a land swap deal that gave the state 37 acres of parkland owned by M-NCPPC to use as right of way for the ICC in exchange for 782 acres owned by the state and located elsewhere in the county, including the Peach Tree property. The deal drew fire from environmental activists who said the replacement parkland was too far away from the affected watersheds to offset any damage.

‘‘In our view, it doesn’t change the state’s decision” to give the property to the county, Planning Board spokeswoman Valerie Berton said of the court ruling. ‘‘We still expect it to be mitigation land — it’s up the SHA to make it happen.”