8/24/13 FNP: New Market reconsiders annexation plans


New Market reconsiders








Read entire article here.

Is poorly planned growth what you wanted from your county leaders?

The Frederick County Commissioners have approved or are discussing approval of over 7000 new dwellings, in many cases without appropriate plans for schools, roads, emergency services and other key infrastructure. We believe that our public officials should follow existing laws; in a growing number of cases that is not happening.

FoFC is using the option of last resort to protect your quality of life: litigation. As recently quoted in the Frederick News Post “We turned to the courts after finding that citizen concerns were ridiculed and dismissed …These lawsuits will determine whether the county follows state law, whether growth proceeds at a reasoned pace that does not increase taxes, traffic, school overcrowding and water and air pollution.”over 7000 new dwellings proposed or approved






















FoFC is currently challenging:

* Crum and Thatcher (Frederick City north)

* New Market Municipal Growth Element in Maryland Court of Special Appeals(read letter from FoFC)

* Frederick City Comprehensive Plan in Frederick County Circuit Court

* Landsdale (Monrovia) at the Board of Appeals

* Landsdale Storm Water Management Administrative Waiver at the Board of Appeals, March 28, 2013 7pm

Landsdale in Frederick County Circuit Court

* Jefferson Technology Park at the Board of Appeals

* Frederick County’s 2012 Comprehensive Rezoning in the Frederick County Circuit Court


If school overcrowding is your concern, it is with good reason. Read this published letter from one Monrovia citizen who gives us the facts.


1/18/13 FNP editorial on New Market process: Skirting open meetings

Skirting open meetings

Originally published January 18, 2013

By ed

We’re glad New Market’s attorney, William Wantz, put the brakes Wednesday night on two massive annexations, but not because we support or oppose them — that’s a matter for the town to decide.What concerns us are some of the maneuvers by town leaders that make it look like they’re trying to skirt the Open Meetings Act, a state law dedicated to ensuring we all have full and thorough access to government officials when they make decisions, most of which involve spending our tax money.

At issue in this case are two parcels of land — the 262-acre Smith-Cline and 134-acre Delaplaine properties — that, added to New Market’s boundaries, would double the town’s size and could add nearly 1,000 new houses.

New Market’s leaders know annexation proposals are controversial. In a 2007 referendum, in a vote of 148-105, residents shot down plans to annex the Smith and Cline farms after the public objected. The process dragged out over months and was extremely controversial; tempers flared on both sides. That was a tough, open and necessary debate, one that seems to be missing in this latest push to expand the town’s limits.

Take two examples where New Market’s leadership walked a fine line about notifying its residents and other interested parties.

On Jan. 10, the day of the planning commission hearing, the annexation discussion was added to the agenda at 10 a.m. The hearing was at 7 p.m. — and the planning commissioners voted to support the annexations that night. If you were interested in attending and making your opinion known, pro or con, but worked out of the county or had some other commitment, you were probably out of luck.

A planned vote on the annexations, listed innocuously enough as a “discussion,” was added to Thursday’s Town Council agenda only the day before the 7 p.m. meeting. That’s where Wantz, who is apparently listening to residents worried about the annexation, told council members, “We want to do this right, and we want to do this in a way that doesn’t cause harm.”

These meetings were not advertised even remotely adequately. In the case of the vote, the lack of notification was particularly egregious. Another public hearing has been scheduled for next month.

Scheduling the discussion suddenly on the day of the hearing or day before by adding it to the agenda at the last minute is government’s cowardly end run around the law to mute opposition in sometimes controversial decisions. Sadly, under the Open Meetings Act, it’s not illegal. But it’s certainly not within the spirit of the law. We’re not sure if an intentional suppression of opinion was what happened in the case of the annexations, or whether it was an overly hasty attempt to move this issue ahead. Either way, we’d urge Mayor Winslow F. Burhans III and the Town Council to consider the importance of allowing enough time for the public to be present at and speak at the next hearing.

Taken alone, the lack of notification could be considered just an oversight. But there are a couple of more points of concern.

Burhans says he has been meeting with anyone who wants to learn more. They have been one-on-one meetings in private homes. They were set up using his private business email, which he includes on nearly all of his town correspondence, and not the email he has through the town.

Why private email? Presumably because government emails are public information and subject to public information requests. Using a private email to communicate is the 21st-century equivalent to meeting in a smoky back room behind closed doors. Meeting one-on-one is similarly questionable.

Finally, in an explanation of the late notice to one of our reporters, Burhans indicated that letters from him and other council members were sufficient notice — except they didn’t contain a time, date or address for the meetings. This is hardly the “reasonable advance notice” required by the law. In fact, the Open Meetings Act manual published by the Maryland attorney general (and available on his website) clearly states: “Unless some unusual circumstance makes it impracticable to do so, the public body should give a written notice that includes the date, time, and place of its meeting.”

We hope these aren’t intentional strategies to subvert proper public comment and avoid the kind of divisive — but necessary — public debate that took months to resolve in 2007 and led to that special election referendum. But that’s how it appears, and in politics, even small-town politics, appearance is everything.

Hearings on this have not allowed for a full and thorough debate. We doubt a majority of residents’ voices have been adequately heard. That needs to happen before a decision as monumental as doubling the town’s size is voted on by the council.


FCPS says no school construction planned to handle Smith/Cline annexation kids

New Market has proposed annexing the Smith/Cline property for 925 new residences, which at full buildout would yield approximately 248 elementary  116 middle school and 181 high school students.

In a (1/7/13) letter from FCPS Facilities Director, Ray Barnes (page 1 and  page 2), FCPS Facilities Director “FCPS staff has

Deer Crossing Elementary School, New Market - currently at 103% capacity

Deer Crossing Elementary School, New Market – currently at 103% capacity

reviewed the Board of County Commissioners FY 2013-2018 Capital Improvements Program and would note there is no school construction projects at any level currently scheduled for funding in this area of the county…”

1/7/13 New Market on fast track to double size of town

Monday, January 7th at 7pm, New Market held a public hearing,Rural Monrovia

over 50 people turned out to learn more about the annexation plans.  The mayor and council made no presentation for the crowd, and told people to submit their questions in writing.  Read about the hearing in the Frederick Newspost:   Dozens turn out for New Market annex debate


FoFC presented Mayor Burhans and the Town Council with a letter  detailing the legal issues with the annexation proposals, and made the following points in testimony:

pg1  Public Hearing testimony 1_7_13





















pg 2 testimony 1_7_13



































New Market annexation proposals would nearly double size of town

Originally published October 11, 2012

By Danielle E. Gaines 

NEW MARKET — Town leaders introduced two annexation proposals Wednesday night that could expand the town by more than 397 acres.The owners of a 134-acre plot northeast of town want to annex into the town’s new economic development flex zoning designation. The zoning classification, which became law Oct. 3, allows newly annexed areas to be used for a wider variety of uses than the county currently allows. Development on the land, which is known as the Delaplaine property, could include commercial, office, technology, retail, service and other businesses, according to the law. Additionally, the owners of a 262-acre plot northwest of town want to annex into a medium-density residential zone.

Together, the two plots of land would almost double the size of New Market and allow the creation of a northern route across town by extending Mussetter Road to Md. 75, Mayor Winslow F. Burhans III said.

Burhans said the annexations will increase economic development, ease traffic congestion and add enough residents to build a new elementary school. He said he’s been going door to door to speak with residents about the annexation and answer any questions they might have.

“I’ve met with as many residents as I could possibly get to in the last month,” Burhans said after Wednesday’s meeting.

For several months, the mayor has argued that New Market needs to create a more diverse economy, particularly on county land adjacent to the town. He cites businesses such as the Food Lion and CVS on Md. 144, which are in the county, when arguing that development just outside the town is stifling New Market’s economy.

“We’re a town that’s rapidly becoming a small town surrounded by a larger county town,” he said. “That’s a threat because we don’t get any economic benefit from that.”

The annexation agreements were signed by the landowners this week, and the introduction of the resolutions was added to the council agenda less than five hours before the meeting. No one who attended the meeting spoke against the introduction of the resolutions.

Town attorney William Wantz said the annexation agreements cannot be finalized until a public hearing is held. The council did not decide on a date for the public hearing Wednesday.

The council did debate whether to have more workshops about the proposed development, and Burhans said he opposed too many meetings about the issue.

The 262-acre plot under consideration, which is known as the Smith Cline property, was set to be annexed into the town in 2007, but that annexation was voted down by town residents in a referendum led by Friends of Frederick County.

Burhans said the town had several workshops before that proposal and the meetings devolved into a “circuslike” atmosphere.

In 2011, Friends of Frederick County, a smart-growth advocacy group, sued the town over its expansion plans. In late September, Wantz asked a Frederick County Circuit Court judge to dismiss the lawsuit. A written decision is expected in the coming weeks, Burhans said.

Expert affidavits on New Market growth plans illustrate likely tax increases, congested roads, overcrowded schools and harm to environmentally sensitive areas

In 2011, Friends of Frederick County, the Audubon Society of Central Maryland and 13 residents filed a complaint in the Frederick County Circuit Court against the Town of New Market asserting that the Town’s Master Plan, the Municipal Growth Element, failed to satisfy the requirements of the State law.  (Friends of Frederick County et al. v. Town of New Market, Case No. 10-C-11-000410).  Friends of Frederick County, and other plaintiffs, filed the lawsuit out of concern that the deficiencies in the Town’s land planning process and in the Master Plan would authorize substantial growth which would give rise to innumerous adverse consequences to the Town and to its residents, including: congested roads; overcrowded schools; overstressed emergency services; degradation of environmentally sensitive areas; and higher taxes.  The higher taxes would be necessary to pay for the infrastructure and services necessary to accommodate the growth and otherwise mitigate its adverse impacts.

On March 28, 2012, three experts in land planning filed affidavits in the lawsuit on behalf of Friends of Frederick County and other plaintiffs fully supporting their concerns that the Plan failed to meet State law requirements and would result in adverse consequences.

1.  The Affidavit M Siegel, principal of Public and Environmental Finance Associates, concludes, for example:

  • In determining the amount of land needed for future growth, the Town failed to “consider its population growth and capacity analysis as required by statute,” resulting in authorizing “substantially more land” for annexation “than would otherwise be required.” P.2.
  • The Town has not considered the statutory requirement of “affordability, financing mechanisms, and the cost of public services and infrastructure, including the requirement for a ‘well maintained’ transportation system.” P. 2-3.
  • The Master Plan requires a by-pass road that would connect Boyers Mill Road with Route 75 to the North of the current Town limits.  This bypass road will cost millions of dollars.  The cost is so substantial that it is unlikely the full cost can be paid solely by the houses proposed for the Smith/Cline development.  Thus, all of the taxpayers of the Town could be burdened with taxes to fund costs associated with the bypass.  P. 3, ¶¶12-14; p.4, ¶¶15-18.
  • The amount of revenue generated by the housing units authorized by development on the Smith/Cline property, such as by property and income taxes, will not be sufficient to pay the costs of needed additional public services as well as capital costs.  The Plan fails to consider sufficient financing mechanisms or sources to pay for this deficiency in revenue. P. 4-5.

Friends of Frederick County and other plaintiffs have brought the pending lawsuit, in part, out of concern that the deficiency in revenue generated by new development compared to the costs of servicing that development will be paid for by higher taxes on Town residents.

2.  The Affidavit J Mehra, Transportation/Traffic Engineer concludes, for example:

  • The Town “has not considered the effects of its Plan on all affected roads.” P.2.
  • The impact of the thousands of car trips that will be generated by proposed development permitted on the Delaplaine property was not considered.  This will result, for example, in failing levels of service on Route 75.  P.2-3, ¶11, p.4, part v.i.
  • A proper road capacity analysis of Boyers Mill Road demonstrates that the road with the increased trips generated by new development called for in the Master Plan would operate during peak hours in a “failing road condition.” P.3-4, ¶¶13-20.

The Plan “does not contain estimates for the cost of constructing the proposed bypass or for any road improvements that will become necessary as a result of the proposed growth.” P.4, ¶22.


3.  The Affidavit Joseph Davis, land planning consultant, concludes, for example:

  • “In order to determine whether sufficient public schools could be provided to accommodate new growth [as required by State law], a planner would need to evaluate both capital costs and future operating costs associated with the schools that would provide service to the new growth area.  New Market’s Plan has not considered operating costs and the Plan reflects insufficient and incorrect capital cost data.” P.3, ¶b.ii.
  • “New Market’s plan does not include consideration of public services and infrastructure that will be necessary for public safety in the proposed municipal growth area.” P.4, ¶C.ii.  These services include emergency medical response, fire, and police. P.4-6.

State law requires that the Plan consider protection of environmentally sensitive areas that could be impacted” by development. Yet, “New Market has not considered how sensitive areas will be impacted” as “[i]ts Municipal Growth Element contains no consideration of the Fred Archibald Audubon Sanctuary when discussing sensitive areas.”  Similarly, the Plan contains no consideration of Hazelnut Run, which lies in a 100-year flood plain and runs through the Delaplaine property. P.10, ¶b.iv.

These affidavits were filed as exhibits with Friends of Frederick County’s response to New Market’s motion for summary judgment. The affidavits are attached.  Without a valid Municipal Growth Element, New Market cannot annex land into the Town nor rezone any land within its jurisdiction.




For more information please contact:

Janice Wiles, Executive Director, Friends of Frederick County  240-626-5209

Norman Knopf, Esq., Attorney, Knopf & Brown – 301-545-6100



New Market’s supplement to their growth plan and FoFC’s response

April 2011 New Market’s mayor and town council released a New Market Supplement to their Municipal Growth Element and Comprehensive Plan along with an analysis of traffic.  In July 2011   Friends of Frederick County submitted comments on the supplement to Mayor Burhans, as did the Maryland Department of Planning.  In October 2010 Dr Reid Ewing, formerly with the National Center for Smart Growth, provided FoFC with an independent traffic analysis of the planned municipal growth.


Send us your thoughts and comments.

03-18-2011 Mayor Burhans reacts to citizens’ lawsuit in New Market

New Market mayor not threatened by lawsuit, says plan has town’s best interests in mind

New Market plan doesn't detail how FCPS will handle an additional 450 children.

Originally published March 18, 2011

By Patti S. Borda

Photo by Sam Yu

New Market Mayor Winslow Burhans III talks Wednesday about one of the areas he would like to annex to be part of New Market. The area is east of Md. 75 and includes the McDonald’s and Food Lion.

New Market Mayor Winslow Burhans III is not threatened by a Friends of Frederick County lawsuit that accuses the town of failing to plan properly for growth, traffic and school capacity.

“We took the issues straight on,” he said in an e-mail. “We spent a lot of time with cost calculations, yields and financing, and growth staging mechanisms.”

Burhans said the town plans to make the most of its geographic fate along major metropolitan roads such as Md. 144 and I-70.

“It’s automatically going to have growth pressures,” he said.

When the first brick was laid in the Baltimore National Pike from the Port of Baltimore to head westward to Ohio, running through downtown New Market, “that meant change was coming,” Burhans said. “You have to be able to embrace the fact that change is coming.”

Janice Wiles, Friends of Frederick executive director, said in a telephone interview the New Market plan contains comments from state and county officials that indicate the plan is inadequate.

Wiles, who ran unsuccessfully for a seat on the county board last year, said the lawsuit is not politically motivated, and is based on deficiencies in the town’s plan.

“We are concerned about development when the community can’t afford it,” Wiles said. “We have to come up with a new way to grow.”

Burhans defends his plan as one with the town’s best interests in mind, but said it is “just a plan.” Details are worked out as studies are completed, he said.

“When you are seventh generation to a town, it is pretty clear that no one, not even FoFC, should underestimate the care one has about all aspects of the town, because whatever the town does wrong becomes a reflection of me,” he said.

Burhans’ vision includes a grid of roads to serve traffic in and around town and new employment bases to give residents a place to work without having to drive so far.

“We want people to be able to live here, work here,” Burhans said. “We want to create a community, a traditional neighborhood.”

He stresses that the town took worst-case scenarios to build its plan.

“We didn’t want to be accused of painting a favorable growth scenario,” he wrote. “We didn’t hide behind anything.”

Part of Burhans’ plan will depend on annexing land, some of which could yield 925 houses.

The residential component would cost more in infrastructure than it would bring in revenue, Wiles said, and “the jobs that they’re proposing do nothing to resurrect downtown.”

Burhans said the town has traffic problems already because previous Boards of County Commissioners blocked all corridors. Roads north of Md. 144 and south of Gas House Pike funnel east-west traffic through New Market, and the town would like to do something about it, Burhans said.

“The previous board made it a thoroughfare for commuters,” he said. “I think this board will talk roads. They are unlike any other Board of County Commissioners” in their willingness to work with municipalities, he said.

Commissioners President Blaine Young said the board will have a meeting with Burhans to discuss his concerns and the county’s disapproval of the town plan.

“We will address it,” Young said by telephone.

In place of the official town planning, Friends of Frederick implemented a community-driven process called the New Market Tomorrow initiative, which will culminate in a comprehensive vision for the town of New Market.

“We have the best interest of the greater Frederick community at heart,” Wiles said.

Updates about the initiative will be available at www.friendsoffrederickcounty.org.

More than a dozen landowners and the Audubon Society of Central Maryland Inc. joined Friends as plaintiffs in the lawsuit. A proposed bypass and development on the Delaplaine and Smith/Cline properties would harm the adjacent Fred J. Archibald Audubon Sanctuary, according to a Friends statement.

03/13/2011 FNP letter to the editor: Friends or not Friends — an easy call for taxpayers

Evidently in his Feb. 28 letter to The Frederick News-Post Mark Koehler was following the wisdom of Harry Truman, who once said, “If you can’t convince them, confuse them.”

The issue in New Market is not the activities of Friends of Frederick County, but the town’s sprawling growth plan that will, in some form or another, ultimately impact every resident of Frederick County through crowded schools, traffic gridlock and higher taxes to subsidize the services and infrastructure needed to support growth.

Everyone can agree that economic vitality is needed, and now. But with over 5,300 vacant houses sitting on the market in Frederick County, annexing farmland to build even more is a road to nowhere.

Friends of Frederick County is a coalition of concerned citizens, farmers and business people who have brought a refreshing mandate of accountability to locally elected officials which is simply this: Follow the law. The sprawling, costly, unhealthy, environmentally and socially destructive growth planned for New Market is not only contradictory to the town’s own stated objectives but also out of compliance with state law.

Town leaders did not analyze and plan, as required by law, for the costs of services and infrastructure, such as roads, schools, emergency services, water and sewer service, and the impact of growth on environmentally sensitive areas. The law requires this assessment for a good reason: because taxpayers are often left footing the bill for future costs of residential and commercial sprawl. Unfunded mandates are routinely foisted on the public by many developers in Frederick County, where for years citizens have unwittingly paid higher taxes to cover the cost of more schools, more roads, sewer and water services, and more pollution.

Compliance with the law is something we should demand of all elected officials, along with a healthy dose of fiscal common sense. New Market’s plan throws that all overboard and reaches far beyond their own growth projections of 468 houses by the year 2030. The Smith Cline annexation alone plans for 925 homes. With 5,300 vacant homes in the county, you have to wonder why.

The “if you build it they will come” mentality of the past is simply not viable in the wreckage of vacant subdivisions dotting the countryside. But reality has not yet reached the leaders of New Market who cling to the notion that bulldozing and building creates jobs, even if no one happens to be buying. The New Market plan is not about progress or smart growth, it is a desperate attempt by developers and special interests to go back to the bubble economy days when real estate speculators could turn a profit selling futures in massive, budget-busting subdivisions — the public interest be damned.

Moving the county economy beyond its dependence on real estate speculation is why Friends of Frederick County came into existence more than seven years ago. That is why Friends is supporting a citizens initiative to prepare a plan for New Market that will meet New Market’s stated objective for “orderly, compact, phased and compatible growth as an alternative to suburban sprawl, automobile-dependent development that has consumed hundreds of thousands of acres of valuable land across our county” (see p. 5 New Market Municipal Growth Element addendum June 9, 2010).

The consequences of land-use decisions almost always fall on the shoulders of citizens. It is reasonable for them to have a voice in these affairs. That’s not demagoguery, or “meddling,” as Mr. Koehler puts it, it’s democracy.

Janice Wiles is the executive director of Friends of Frederick County; Amy Farber is a member of the board of directors of FoFC

Originally published March 13, 2011