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.


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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

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

03-05-2011 FNP: Friends of Frederick County wrongly vilified by New Market-area resident

Cline Farm, New Market (Harry Richardson, artist)

This letter is in response to Mark Koehler’s Feb. 28 letter titled “Not Friends …” in which he takes to task Friends of Frederick County’s involvement in the politics of New Market. I, too, have a New Market mailing address, albeit not in the Town of New Market; however, I live very close to the town and have had the opportunity to attend their Town Council and planning and zoning meetings. I have followed very closely many discussions and decisions by the New Market elected officials as they pertain to the surrounding environment in which the residents of New Market live.I am a concerned citizen who is writing to factually rebut Koehler’s accusations against Friends of Frederick County. HB 1141 is a clearly defined law that outlines how municipalities are to address their Municipal Growth Element (MGE). After the town submitted their MGE, the Maryland Planning Department’s, as well as the State Highway Administration’s, response to the town’s submittal outlined in very clear terms how poorly this document was executed and provided very distinct recommendations for aligning the town’s MGE with HB 1141.

Town officials chose to ignore the majority of these recommendations. During their Nov. 17, 2010 meeting an individual who was providing guidance to the town officials stated that “if the Maryland Planning Department doesn’t write their response in bold then we don’t need to worry about it.” Perhaps it would have been more helpful to suggest that the Maryland Planning Department, as well as the State Highway Administration, were much more versed in the requirements of HB 1141 and as such their comments should be taken seriously.

Friends of Frederick County has not been “frequently meddling in New Market’s affairs” as stated by Koehler, but rather became involved once it became apparent New Market town officials chose to ignore the recommendations made by the Maryland Planning Department with regard to their MGE.

The fact of the matter is, had town officials worked with the State Planning Commission, as well as the State Highway Administration, to design their MGE to meet the requirements of HB 1141, the Town of New Market would not now find themselves in the position of being sued. I would also venture a guess that if town officials would be willing to reconsider the wording of their MGE so that it unequivocally met the requirements of HB 1141, no monies would be have to be spent defending a plan that appears to be fallible.

I would invite all concerned citizens to visit the Maryland Planning Department’s website to gain factual insight into this situation.

Vitriolic rhetoric accomplishes nothing. I believe if everyone comes to the table with an open mind we would understand that everyone is seeking quality of life. This is not about stopping development but rather about developing our community in a smart, well-thought-out way that does not force us to live in an extended Montgomery County. If we all try to work together I believe we can all achieve that which matters most to us.

Brenda Harlow lives near New Market.

Originally published March 05, 2011

02-17-2011 Gazette: Friends of Frederick County files complaint against New Market Group hopes lawsuit will urge mayor, council to remove future annexations from plan

The Friends of Frederick County and 13 landowners with New Market addresses have filed a complaint in Frederick County Circuit Court in protest of the town’s amended master plan, updated in November, which earmarks three large parcels for future annexation.

The Smith/Cline property is located northwest of the town limits, the Delaplaine property is north of the town, and the Ganley property is to the east. Informational fliers distributed by the Friends of Frederick County state that any annexation and development of the three properties would double the size of New Market and almost triple its population by adding 2,450 residents to the town. The current population of New Market is a little over 600 people.

While the Smith/Cline parcel would be zoned residential, both the Delaplaine and Ganley properties would be zoned for mixed commercial and industrial use.

The complaint, filed Tuesday morning, alleges that the amended master plan violates state law. In November, the New Market Town Council added a state-mandated “municipal growth element” section to its master plan. The complaint says the newly-added section violates state law because it does not address the updates to infrastructure or public services that would be needed to accommodate the growth.

At a meeting Tuesday where several of the complainants were present, Janice Wiles, executive director of Friends of Frederick County, said the organization is serving to bring together the people who felt their concerns weren’t being heard through the normal avenues, like town council meetings and planning and zoning meetings.

The organization, which was started more than five years ago to promote land conservation within the county, is launching an initiative called “New Market Tomorrow.” It will “involve taxpayers, business owners, landowners, and families in creating an opportunity to express their vision for the future,” according to documents distributed at the meeting.

Marion Griffin, a complainant in attendance, said her home backs up to one of the sites being considered for potential annexation. She’s worried about increased traffic, potential water runoff if a tree ridge on the land behind her house is taken down for development, and decreased property value.

Although she said she’s been to town meetings that addressed the annexation issue, Griffin noted that it’s hard for residents to keep themselves up to date on the schedule because the town’s website isn’t often updated.

Rick Fleshman, owner of Fleshman’s Antiques in downtown New Market, agreed.

Mayor Winslow Burhans III said he’s heard similar “excuses” before. “Town hall is not too hard to find and nor is the phone book too hard to pick up,” he said.

Although all the New Market residents in attendance at today’s meeting said they have attended public forums to discuss the annexation issue, Burhans said that none of the Friends of Frederick County board members have ever been present.

Burhans said he heard about the court complaint because the town hall e-mail address was copied onto a press release about today’s meeting.

The Friends of Frederick County are “more about show than substance,” Burhans said. Although he hopes the town will be able to annex the three parcels in the future, none of them are pending annexations, he said.

He called the master plan “a guide that has no force or effect in law.” The complaint “is a frivolous law suit by an angry group,” he added.

But his opinion is that the town needs to grow in order to be eligible for grants and other types of funding. Although New Market applied to be part of the Main Street Maryland program, which was created by the Maryland Department of Housing and Community Development in 1998 to “improve the economy, appearance and image of [participating towns'] traditional downtown business districts,” according to the website, it was denied because it didn’t meet the minimum population requirements, Burhans said.

Burhans would also like to see a bypass built as part of a development agreement to handle the town’s traffic. Neither the county nor the town has money for such a road in its budget, he said.

But Wiles, a Frederick resident, said the lawsuit and the “New Market Tomorrow” initiative is “not about saying ‘no’” to the annexations flat out. “It is about giving citizens an opportunity to control their own destiny, their property values, their taxes and the quality of life for their families and future generations,” she said.

Resident Virginia Arneson encapsulated the general feeling of the complainants who were present at the meeting with one statement. It’s not that growth shouldn’t happen, “it just needs to be better controlled,” Arneson said.

“Once we get served the papers we will meet in executive session with our attorney,” Burhans said, adding that he is unsure at this time if the issue will be discussed at the next town meeting, on March 9. “I guess it depends on what our attorney advises us to do,” he said.

Costs to county taxpayers for school needs in New Market growth plan: $10 million for school construction and $7 million/year for operations

Recently approved New Market Plan includes 3 Annexations that will double town size and triple its population

With the approval of the New Market Municipal Growth Element (MGE), the Town of New Market is now able to annex the Delaplaine, Ganley and Smith/Cline farms.  These annexations would more than double the size of the Town  from about 434 acres to about 880 acres.  The 925 residential units proposed for Smith/Cline alone will almost triple the population of the Town by adding approximately 2,451 people and increasing the number of residents from 1443 residents (at full build-out of existing subdivisions) to 3,894 residents.

The location of these farms are shown in purple cross-hatching on the Land Use map below. These proposed annexations are contiguous or very near to the Meadows, the Orchards, Brinkley Manor, Royal Oaks, Sponseller’s Addition, New Market West and New Market Farms.  They are also contiguous or very near to municipal recreational facilities, parks and open space; and an Audubon Bird Sanctuary (there may be a few alterations on the road location but FoFC doesn’t have the new map yet.  Even though the plan was approved last night citizens/residents still haven’t been able to actually SEE the plan that affects their home values, quality of life etc).

The Town proposes that Delaplaine and Ganley be developed for commercial and industrial purposes which, under the Town’s development regulations, include heavy manufacturing, heavy vehicle repair, truck stops, public heliports, recycling and storage, public works yard/garage, warehouses, fast food drive-thru restaurants, motels, commercial parking lots and gasoline stations.  The heavy traffic, air pollution, noise, dust, glare, smoke, toxic chemicals and visual impacts associated with these uses would severely impact the surrounding communities, recreational facilities, parks, open space and sanctuaries.

The 925 residential units proposed for Smith/Cline would generate about 9,000 additional car trips per day, greatly worsen traffic on Boyers Mill Road, lead to far more “cut-through” traffic in adjoining neighborhoods, and exacerbate traffic congestion and safety hazards on narrow, winding road segments and local intersections.

The Smith/Cline development would yield 583 pupils. As a result, Smith/Cline would  severely exacerbate school overcrowding and require the construction of at least one new public school whose cost would exceed by $10 Million the revenues generated by developer impact fees. According to the Frederick County Public School System, the cost of educating each public school student is about $12,000 per year.  These costs would amount to a total of $6,996,000 annually for the Smith/Cline development.  For these and other reasons, the Frederick County Board of County Commissions recently classified and zoned these properties for agriculture use only in its 2010 Comprehensive Plan and Zoning Map.

Read the review comments:

Maryland Department of Planning’s comments on New Market MGE and cover letter

Frederick County Division of Planning

Maryland Department of Transportation

New Market Citizen Comments on MGE

Friends of Frederick County Comments on MGE

To become involved or express your concern please contact:

Download Flyer Showing How New Market will Double in Size

Click here to download the one page flyer for distribution.

Contact Friends of Frederick County to find out more about the Municipal Growth Plan process: ref:  New Market MGE

County officials and New Market leaders to go to mediation over growth plan

Monday, September 20, 2010 – 7pm  – Winchester Hall

Mayor and Council of New Market  complied with their mandate under HB1141 to “meet and confer” with Board of County Commissioners over New Markets Municipal Growth Element (plan).  The result was a decision for the two groups to go to mediation to discuss the growth plan and concerns about impacts and lack of adequate infrastructure to accompany the development.

Image of Harry Richardson's rendering of farm to become houses (Smith-Cline annexation), New Market

Read FoFC’s flyer and map summarizing the growth plan here.

In a July 26, 2010 letter to the Maryland Department of Planning Friends of Frederick County evaluates the Town of New MarketMunicipal Growth Element’ proposal to annex the Delaplaine, Ganley and Smith/Cline farms  (Click here to see areas to be annexed -in purple cross-hatches on map.).  These annexations would more than double the size of the Town  from about 434 acres to about 880 acres.  The 925 residential units proposed for Smith/Cline alone will almost triple the population of the Town by adding approximately 2,451 people and increasing the number of residents from 1443 residents (at full build-out of existing subdivisions) to 3,894 residents.   Read the facts.

Frederick County Commissioners formally request  the New Market Municipal Growth Element to begin the process of review and “meet and confer” as mandated in HB1141.