Monday, July 24, 2017

Westbard lawsuit adds MoCo Housing Opportunities Commission as defendant

Plaintiffs suing Montgomery County over the validity and impacts of the Westbard sector plan have amended their complaint to add the County Housing Opportunities Commission as a defendant. The amended complaint alleges that both defendants conspired behind the scenes to ensure that property-specific heights and densities would be provided for in the plan (contract zoning, which is illegal), environmental standards related to the Willett Branch stream buffers would be modified, and that an African-American cemetery on the Westwood Tower site would remain concealed from the public. Both defendants and developer Regency Centers/Equity One stand to benefit from a transaction they are party to, the Westwood Tower property and its redevelopment.

These 3 "benefits," only applicable to the Westwood Tower site, were given to HOC in exchange for HOC providing a specific number of affordable housing units above the amount required by County law. They also would ensure that the mutually-beneficial Westwood Tower deal would be achieved. Importantly, the negotiations on this deal were conducted outside of the public process.

The amended complaint gives a detailed history of the dealings on Equity One's planned redevelopment and the Westwood Tower issue, beginning with County Councilmember Roger Berliner (D - District 1) being contacted by Equity One's zoning attorney in February 2012, regarding getting the then-postponed Westbard sector plan rewrite back on track. In September 2012, the County Department of Housing and Community Affairs secretly approved a "Certificate of Compliance" and an "Agreement Not to Convert," both necessary to facilitate the purchase of Westwood Tower by Equity One. 

The public announcement of Equity One's purchase of the tower and several other Westbard properties did not come until October 2012. For that transaction to occur, Montgomery County, Equity One and the HOC had to have negotiated behind the scenes prior to the sale, the suit notes. Mysteriously, the same day the plan to purchase the properties was announced, the Montgomery County Planning Board declared the Westbard sector plan was being reopened for amendment.

As part of its purchase of the so-called "Westwood Complex" from then-owner Capital Properties (who bought it from the Tauber family), Equity One paid $25 million for Westwood Tower in June 2013. Currently, the HOC is poised to buy Westwood Tower from Equity One for only $20 million, $5 million less than Equity One paid for it four years ago.

The amended complaint also provides new details regarding the cemetery cover-up. Planning staff ruled internal communications regarding the cemetery as "Confidential" in September 2015. As I previously reported, planning staff agreed to remain silent on the existence of the cemetery during a September 17, 2015 Planning Board tour of "Westbard."

Pointing to notes taken by Park & Planning staff during conversations with the son of the architect of Westwood Tower, the lawsuit refers to his account of remains being encountered when the cemetery was desecrated during construction of the building during the late 1960s. Dr. Lazlo Tauber, the original developer of Westwood Tower, is implicated in those recollections as having told the architect to leave bodies there and pave over them.

Another new detail about the cemetery is that the architect had to "fix the drainage at that corner of the building because they were worried that if water didn't drain, it would cause erosion, and bodies would come up." While evidence has pointed to some remains being pushed into a pit downward from the rear of the building, and a few being taken by the architect to Howard Chapel Cemetery for secret unmarked reburial, the recollections of his son in the notes clearly underline that most bodies remain on the site. Dr. Tauber "thought that leaving them there, paving over them was probably the best thing to do - leave in place."

This not only further suggests remains are still on the site, but is the first evidence that Tauber was part of the cover-up of the cemetery desecration. Another piece of evidence not referred to in the lawsuit, is the fact that the architect knew the remains were of African-Americans, as evident by his selection of Howard Chapel for reburial. How did he know that, unless someone such as Tauber informed him that there was an African-American cemetery on the site. We still don't know if it was Tauber, or someone else prior, who bulldozed or removed the gravestones in the 1950s.

With all of this in mind, the lawsuit alleges, the defendants and Equity One conspired to keep the cemetery information from the public, to prevent greater public opposition. Documents related to the construction of Westwood Tower, which the lawsuit alleges were in the possession of Equity One, conveniently got shredded in 2015.

HOC did not publicly announce its plan to build a parking garage and apartment building on top of the cemetery behind Westwood Tower until long after the County Council passed the Westbard sector plan in May 2016. But in a February 11, 2016 email to the County Council, HOC stated that "Equity One, who currently owns the [Westwood Tower] property, approached HOC almost two years ago to collaborate on development plans." The lawsuit adds that the email also referred to a "joint development agreement" between HOC and Equity One.

On April 22, 2017, Equity One stated in a letter that it would facilitate the HOC project through "significant financial contributions." The suit alleges these contributions will include "real property and construction costs in the millions of dollars." It notes that, since all parties claim no documents regarding their terms of agreement exist, the Westbard sector plan is then the only codification of the terms of agreement.

The Willett Branch stream buffers were dealt with in similar fashion, the lawsuit alleges, citing a February 2016 HOC letter that declared "the 'key obstacle' to the redevelopment of the [Westwood Tower] HOC property 'is the presence of [a] Stream Valley Buffer.'" It was made clear that only by weakening the rules regarding the width of the buffer would the HOC redevelopment be possible.

Terms of the contract zoning agreement for providing more MPDUs on the Westwood Tower HOC site resulted in a financial benefit for Equity One, the lawsuit states, as they could build more market rate units. A Council staff member advised the Council in an email not to publicly discuss that financial benefit for Equity One, saying, "I am hoping it does not come up."

By engaging in these type of agreements in illegal contract zoning, and ratifying them in the Westbard sector plan document, the lawsuit concludes, the sector plan is thereby "the de facto illegal contract in furtherance of an illegal zoning scheme," and must be rendered void.

A hearing has been scheduled for August 16, at which the judge's ruling will determine whether the case goes forward to trial or not.


SaveWestbard said...

Thank you, Robert Dyer, for your comprehensive report.

Anonymous said...

Holy cow.
THIS ( what happened with this Westbard development) is supposed to pass as honest and open local governance ???
THANK G*D For Term Limits to at least get rid of Berliner and Leggett.
I hope the other bad actors who had their fingerprints on this situation get what they deserve.
(jail time ??)

Robert Dyer said...

12:04: #LockThemUp

Anonymous said...

Jaw-dropping. How can HOC and EO/Regency claim that there are no documents memorializing their development agreement when there is a clear reference to a "joint development agreement"? I'd like to see that joint development agreement; cough it up, HOC.

Anonymous said...

Why Dyer deleted my comment supporting their effort with fighting for their neighborhood is puzzling. No insult, no snark, no NIMBYing. Just a tl;dr then offering my support.

Anonymous said...

@7:25 I don't know about your prior comment, but please do take the time to read the article. It may be a long article, but it is highly informative. If you've commented twice already, then you must be interested in the issue; so why not read the entire article? Thank you for supporting the residents in their fight. The county, the developer, HOC ... they are all aligned against residents in pursuit of profits. HOC's status as the purveyor of affordable housing does not exempt them from common decency with respect to building on the African-American cemetery and in the Willett stream buffer.

Anonymous said...

I agree with 4:01 AM. How can there be both a "joint development agreement" and "no documents"? Either HOC and EO/Regency are fundamentally incompetent (which I doubt) or a written agreement exists.

I recall that Council work sessions on the Westbard sector plan discussed the development of affordable housing by EO and HOC, a process that was presented as being well underway. Are we to believe that HOC and EO proceeded in the absence of any written agreement?

On the cemetery: it is shocking that the Planning Department would not reveal the probable existence of the cemetery to the public during the sector planning process. The Planning Department should be representing the public interest, no withholding material public information.

As for the contacts between Roger Berliner and the developer before the revival of the Westbard sector plan: Mr. Berliner and planning officials told us that the sector planning process was not re-opened to assist the. developer. Right.

Anonymous said...

Kudos to those uncovering all this information. It is a sobering look at how this County really works.

And now we're supposed to believe that the planning system is fair and that Councilmember Berliner would make a good Cunty Executive?

Anonymous said...

But for Mr. Dyer's report ... citizens would be in the dark about the liars and hypocrites populating the council, its staff, and the planning department.

Roger Berliner has been busy ignoring Westbard and its fall-out; he's probably embarrassed that his overall bad conduct and developer-pandering has been exposed.

Keep shining the light on this, Mr. Dyer!

Brigitta Mullican said...

Can one County Council member make commitments without the rest of the Council's vote? If Roger Berliner is being criticized for his involvement, shouldn't the rest of the Council Members be criticized as well? This complicated development is not easy to follow. Guess that is why there is a lawsuit.