Pulte $86M Complaint

IN MONTGOMERY COUNTY CIRCUIT COURT,MARYLAND
PULTE HOME CORPORATION AND SHILOH

I'ARM INVESTMENTS LLC
10600 Arro~~~head Drive
Suite 225
Fairfax, VA 22030
(703)934-9382
Case No.
Plaintiffs,
MONTGOMERY COUNTY, MARYLAND

101 Monroe St.
Rockville, MD 20850
Serve: County Attorney
MARYLAND-NATIONAL CAPITAL
PARK AND PLANNING COMMISSION
661 1 Kenilworth Ave.
Riverdale, MD 20737
Serve: General Counsel,
Defendants.
COMPLAINT
INTRODUCTION
This Complaint arises from Defendants' Montgomery Co~mty ("County") and the
Maryland-National Capital Pat-k and Planning Commission ("MNCPPC" or "Planning Board" or
"Commission") (collectively, "Defendants") ongoing illegal and unconstitutional acCions
preventing any reasonable economic use and development of approximately 5~ 1 acres of land
("subject property" or "project site") owned and under contract by Pulte Home Corporatiofl and
Shiloh Farm Investments LLC (collectively, "Pule" or "Plaintiffs") in Clarksburg, Maryland.
Pulte otivns approximately 404 acees and is under contract to purchase the remaining approximate
136 acres.
Until the spring and summer of 2014, the project site, which holds significant economic
potef~tial, was planned and zoned for residential development in the range of 954 to 1,007 units
under Defendants' 1994 Clarksburg MasCer Plan ("1994 MasCer Plan" or "Master Plan") and RE1/TDR-2 residential zone. The Master- Plan struck a careful balance between envirotunental
protection and the need for community building and ho~~sing in the County for the site, which is
located in the ~~ew town of Clarksburg, Maryland along tl~e I-270 corridor, west of Maiylai~d
Route 121/Clarksbug Road and north of West Old Baltimore Road.
Defendants, through a pattern of conduct spanning several years and continuing, lave
prevented Pulte from using and developing its property pursuant to proper, reasonable, and legal
applications, contrary to Pulte's reliance on the 1994 Master Plan, contrary ~o Pulte's compliance
with the subject propet-~y's RE-1/TDR-2 residential zoning, and contrary Co Pulte's compliance
with all Federal, State, and County developil~ental and envitronmental reg~~lations. Purporting to
protect the water quality of Ten Mile Creek in Clarksbutg, Defendants have singled out and
targeted the subject property with extraordinary land use exactions by 1) th~~~r~ing indefinitely
planned water end sewer service to the subject property, 2) downzoning it froth a residential to
an agricultural zone, 3) imposing an exteemely low and arbitrary impervious limit of 6 percent
for development on the property whe~1 similarly situated property developer's in Che same
watershed are subject to a 15 percent impervious limit, 4) imposing an extreiuely high and
arbitrary open space requirement of 80 percent on the property, 5) imposing through
implementation of Defendants' 2014 Clarksburg Master Plan Amendment("2014 Amendment")
additional confiscatory development restrictions beyond what is required for any other
application under Defendants' laws and regulations, and 6) requiring that Pulte dedicate
significant portions of its land to the Commission's Department of Parks or otherwise leave its
land untouched under any development application that Pulte may attempt.
Defendants adopted these extraordinary restrictions, aimed solely at Pl~lte, with no valid
scientific support and by ignoring expert testimony indicating thaC the 1994 Master Plan as well
as laws and regulations are more khan sufficiently protective of the Ten Mile Creek watershed.
Of Pulte's approximaCely 541 acres, it can now only develop up to 93 acres, a mere 17 percent of
its property. Defendants' actions are nod an exercise of judgment on proper land use planning
and zoning guided by legal standards. Pulte has suffered and is suffering substantial damages as
a result of Defendants' unconstitutional actions.
By refusing to allow Pulte any reasonable and econoi~lically viable use of its property,
Defendants have violated and are violating Pulte's State and Federal constituCional rights to
substantive due process, procedural due process, and equal protection of the law, and have
effected a taking of Pulte's property for public use without just compensation in violation of the
Maryland Constitution. Defendants have also depived Plaintiffs of their right to appropriate and
just remedies for their injury Co Plaintiffs' property in violation of the Maryland Constitution.
First, Defendants have acted arbitrarily, capriciously, or unreasonably by ignorinb relevant
evidence regarding the subject property submi~~ed to the record of the 2014 Amendment and
subsequent zoning actions, all itl order to thwart Pulte's pending and complete Water and Sewer
application and its lawfully planned development.
Second, Defendants have treated PulCe
differently from similarly situated private property owners in the same watershed that have been
subjecCed to far less restrictive development limits, environmental standards, and zoning
requirements. Third, as a result of Defendants' actions, Pulte's distinct investment-backed
expectations have been destroyed, and the County's refusal to act on Pulte's years-pending
Water and Sewer Category Change application has effected a c~'e facto moratorium on t11e use of
its property, rendering a taking of the land for public use without just compensation. Fourth, the
County has violated Pultes procedural due process rights by soliciting extensive new, carefully
choreographed, ifl-informed testimony from new governmental witnesses before the County
Council in Master Pla~~ "work sessions" after the close of the public hearing record on the Master
Plan Amendment, thereby providing Pulte no opportunity to testify in response. And fifth,
Defendants have deprived Pulte of its right to appropriate a1d just remedies for their injury to
Plaintiffs' property in violation of Article 19 of the Declaration of Rights of the Constitution of
Maryland.
Pulte seeks damages and just compensation in the amount of $86 million or an amount
~o be determined at trial, declaratory judgnent, mandamus, and injunctive relief as a result of
Defendants' illegal and unconstitutional actions.
Pulte, through its attorneys, further states:
FACTS COMMON TO ALL COUNTS

Parties and Jurisclic~ion
1.
Plaintiffs Pulte Home Corporation and Shiloh Firm lnvestmeuts LLC (together,
"Pulte") filed with the County on May 12, 2009, a Water and Sewer Service Area
Category Change Request application ("Water and Sewer Category Change
Request'') aid filed with MNCPPC on December 19, 2012 a Concept Pre-Preliminary
Plan
Application
("Pre-Preliminary
Application") (together, "Development
Applications") for the subject property. Pulte Hoi~~e Corporation purchased all of the
membership interests in Shiloh Farm Investments LLC in t11e amount of

approximately 402 acres, separately owns about 1.6 acres, and is under contract do
purchase from John R. King, Jr., Anita Kig Kowalski (foriTlerly known as Anita
King Heller), and Florence Sipes (together, "King family") ar1 adjoii~irlg approximate
136 acres ("Kig tract"), all of which make up tfle subject property in Clarksburg,
Maryland.
2.
Defendant Montgomery County, whose governing body is composed of the County

Council and County Executive, is empowered by the State of Maryland to approve
Master- Plans and enact zoning and other land use powers pursuant to the Land Use
Article and the Express Powers Act (Article 25A) of the Annotated Code of
Ma1yland. The County Council, when acting in its planning and zoning authority, sits
as the District Council for the Montgomery County portion of the MarylandWashington Regional Distict unde the Land Use Article.
3.
Defenda~lt MNCPPC, a bi-county agency that administers parks and planning in

Montgomer}~ atld Prince George's Counties in Maryland, is empowered to acquire
and manage lands for public parks, draft and adopt Master Plans, dt-aft zoning and
subdivision ordinances, adopt development regulations, act on land developil~ent
applications, and reconl~Ilend other land use policies to Montgomery County pursuant
to the Land Use Article of the AnnoCated Code of Mar}land.
4.
This Court has jurisdiction over this action, and venue lies in this Court under the
provisions of Sections 1-501, 3-40~, 3-8B-01, 6-102, and 6-201 of the Courts and
Judicial Proceedings Article of the Annotated Gode of Maryland and 28 United States
Code ~ 1331 and 1343(a). This Court has jurisdiction pursuant to Md. Code Ann.,
Cts. & Jud. Proc. 1-501 because none of the causes of action alleged herein have
been, by law jurisdiction, limited or conferred exclusively upo~l another
tribunal. Pursuant to Md. Code Ann., Cts. & Jud. Proc. ~ 3-403, it is within this
Court's jurisdiction to provide declaratory relief. Pursuant to Md. Code Ann., Cts. &
J~id. Proc. 3-8B-01, this Coult also has jurisdiction in a~1 action for
mandamus. Defendal~ts are subject to the personal jurisdiction of this Court purs~iant
to Md. Code Ann., Gts. & Jud. Proc. 6-102 because Defendants were served with
process in, are organized under the laws of, and maintain places of business in the
State of Maryland. Venue is proper in this County pursuant to Md. Code Ann., Cts.
& Jud. Proc. 6-201 because Defendants early on regular business in Montbon~ery
County. Venue is also proper in this County because Plaintiffs' causes of action
arose in Montgomery County.
Factual Summary
Subject Property
5.
The subject property consists of approximately 541 acres of undeveloped land in

Clarksburg, Maryland. Between March 2005 and January 2006, with development
options defined by the 1994 Master Plan and RE-I/TDR-2 zone, Pulte Home
Corporation purchased all of the membership interests in Shiloh Farm Investments
LLC in the amount of approximately 402 acres and separately owns about 1.6 acres
of the subject property. On November 1, 2004, Pulte Home Corporation entered into a
contract with the King family to purchase an adjoining approximate 136 acres.
r~
6.
The subject property is bordered fo the east by Maryland Route 121/Clarksburg Road,
to tl~e south by West Old Baltimore Road, to tl~e ~lorth by the County Bus Depot Site,
and to the west and northwest by woods. A site graphic is attached as an Exhibit.
1994 Clarksburg Master Plan and Rezonin
7.
The subject property was, until Defendants' approval and adoption of the 2014
Amendment in April and July of 2014, governed by the 1994 Maser Plan, which was
approved by the County Cotmcil, sitting as the District Council, and adopted by
MNCPPC in 1994.
8.
The Master Plan divided Clarksburg development into four sequential stages (Stage 1,
Stage 2, Stage 3, and SCage 4), and provided for properties in Stage 4, including tl~e
subject property, to be developed at specific residential densities based on the zoning
affixed to properties by the County i 1994.
9.
The Master Plan directed that the subject property be zoned for residential
development under the RE-1/TDR-2 classification, which the Col~nty so zoned i~1
1994. The Master Plan designated the subject property as a County Transfeeable
Development Rights ("TDR") receiving area (i.e., RE-1/TDR-2 zone), inducing Pulte
to adhere to the County's long-touted agricultural preservation program by
purchasing from County-designated sending areas the TDRs called for by the zone
applied to the subject property. The RE-UTDR-2 zoning designation of tl~e subject
property allows for development at one dwelling unit per acre but strongly
encourages two units per acre through the purchase of TDRs. Pulte in good faith
relied on this zoning designation and the County's TDR policies in purchasing and
contracting for the subject property and purchasing 323 TDRs from Montgoi~nery
County farmers, which TDRs were recorded between July 2004 and February 2006 in
the County land records. Under the Master Plan and RE-1/TDR-2 zoning, Pulte could
build between 954 and 1,007 detached homes and townllonles on the subject property,
the range being dependent oi~ the ~T~oderately priced housing units built pursuant to
the County's Moderately Priced Dwelling U~1it("MPDU")ordinance.
10.
The 1994 Master Plan made recommendations to enable Clarksburg to develop as a

town along the I-270 corridor and implemented measures to protect the water quality
of its environment. In particular, the Master Plan required ghat several triggers be met
before development of properties within Stage 4 could proceed:
Baseline Monitoring: Be~ir~ning in July 1994, the County Department of

Environmental Protection ("DEP") performed a three-year "[b]aseline
biological assessment of the aquatic ecosystem of the Little Seneca Creek and
Ten Mile Creek ~~~atersheds."
Community Building Defendant County issued 2,000 building permits in the

Newcut Road and Tov~~n Center areas (Stages 2 and 3) to provide a "critical
mass" of development east of Interstate 270.
Eastside Best M~na~ement Practices (BMPs~Monitored and Evaluated: DEP

released its ~ist Anual Report on the Water Quality Review Process
following the issuance of the 2,000 building permits in the Newcut Road and
Town Centef~ areas. Tl1e report evaluated the water quality best manageme~lt
practices (`BMPs")and other mitigation techniques associated with the Town
Genter/Newcut Road development and other similar developnents i~l

substantially similar watersheds where BMP's have been monitored.
(1994 Master Plan at 197-99).
1 1.
7'he Master Plan further directed that "[o]nce all of the above conditions have been
met, the County Council wi11 consider Wafer and Sewer' Plan amendments thaC would
permit t11e extension of public facilities to the Ten Mile Creek area."(1994 Master
Plan at l98).
12.
The triggers for allowing the development of Stage 4 properties iuider fhe Master
Plan were satisfied by 2009 aud, accordingly, Pu(te properly filed its Water and
Se~et Category Change Request application on May 12, 2009 wiCh DEP. Despite the
satisfaction of all pterequisites to Stage 4 development set forth i the l 994 Master
Plan, Defendants, to date, have refused to act on Pulte's long-standing application.
13.
The Master Plan defined the environme11ta1 factors the County must rely on when
considering water and sewer category cha~ge equests to extend public facilities in
the Ten Mile Creek area. Specifically, it directed that in undertaking an evaluation of
the impact of such requests ot~ ~~~ater quality, the County "shall draw upon the
standards established by federal, state, and County laws and regulations and
determine if the methods, facilities, and practices then being utilized by applicants as
parC of the water quality review process then in place are sufficient to proCect Ten
Mile Creek." (1994 Master Ilan at 199 (emphasis added)). Despite the mandates in
the Master Plan, the County has never analyzed and acted upon Pulte's detailed, siCe-
specific water quality measures for the subject property, which complied with al(
standards established by Federal, State, and County Iaws and regulations.
14.
Tl~e Master Plan also directed the County to consider all "voluntary measures taken
by property owners in the Stage 4 area to protect water quality" as a means of
determining which analysis fo apply. (1994 Master Plan at 199). The County has
never analyzed and acted upofl Pulte's proposed voluntary measures for iCs la~~fully
Manned development.
Pulte's Development Plan
I5.
I reliance on the Master Plan, on the County's agricultural preservation TDR

program, and pursuant to the residentiaUTDR zoning on the subject property, between
July 2004 and February 2006 Pulte paid $12,206,386 to purchase 323 TDRs from
Montgomery County farmers. Because TDRs legally restrict one landowner's use of
its land and provide a cor~esponding benefit to another, TDRs are treated as
easements and restrictive covenants. Pulte's TDRs were duly recorded in tl~e County
land records between July 2004 and February 2006.
16.
Between March 2005 and January 2006, Pulte paid $46,600,000 to purchase
approximately 404 acres of the subject property at~d $3,200,000 in a nonrefi~ndable
deposit to purchase the adjoining approximate 136 acres King tract, which option was
extended recently for $600,000.
17.
On May 12, 2009, pursuant to the Master Plan and after its Stage 4 Criggers had been
met, Pulte properly filed iCs eater and Sewer Category Change Request applicatio,
along with a $10,000 filing fee, with the County as the necessary first step to its byright development of the subject propet-fy. The County DEP acknowledged receipt of
Pulte's application and filing fee in June 2009. Applications are put before the County
Council for public hearing and action at least twice a year.
18.
By letter dated September 17, 2010, the County DEP returned to Pulte the $10,000
Water and Sewer Category Change Request fee but did not return the application.
DEP stated that Pulte's 2009 application would not be processed until early Spring
2011. The County, however, continued to take no action on Pulte's request
throughout 2011.
19.
By letter dated August 28, 2012, Pulte resubmitted its Water and Sewer Category
Change Request application, originally submitted in May 2009, using the County's
new updated application form together with the $10,000 filing fee. On the same date,
Pulte also submitted a comprehensive water quality plan and data ~o County DEP and
DPS that showed how Pulte planned to effectively develop the subject property in
conformance with the Master Plan and all environmental regulations.
20.
Meanwhile, on September 18, 2012, the County Council approved Subdivision

Regulation Amendment ("SRA") 12-01, pursuant to the Maryland Sustainable
Growth and Agricultural Preservation Act of 2012, placing the subject property in
development category Tier IL Tier II properties under the Stake Act are to receive
public sewer in order to serve planned development. Despite the County's enactment
of the regulation pertaining to the subject property, the County continued to refuse to
act on Pulte's properly filed Water and Sewer Category Change Request application.
21.
On December 18, 2012, Robert Harris, legal counsel for Pulte, wrote a letter to
Francoise Carrier, Chair of MNCPPC's Montgomery County Planning Board,
informing the Clair of Pulte's filing of a Pre-Application Concept P1a11 for
development of the subject property. The letter provided a narrative description of the
nature of Pulte's application pursuanC Yo its zoning and the terns of the Master Plan,
as well as provided exCerlsive information, plans, and calculations demonstrating ho~~~
Pulte's development plan met all applicable water quality and sediment control
requirements and protected Ten Mile Creek. Despite the exCensive information that
Pulte provided, Defendants never analyzed Pulte's detailed, site-specif7c measures to
develop the subject property and protect Ten Mile Creek pursuant to State and
County environmental laws.
22.
On December 19, 2012, pursuant to Sections 50-33 and 50-33A of the County
Subdivision Ordinance, Pulte's planning and engineering firm, Loiderman Soltesz
Associates, now known as Soltesz (hereinafter "LSA" or "Soltesz"), filed with
MNCPPC aPre-Application Concept Plan on behalf of Pule, seeking review of its
plan for the subject property. Sections 50-33 and 50-33A provide an informal preapplication process for property owners and other applicants to obtain review of
anticipated development plans by the Planning Board and its staff. The Ordinance
allows the submission of suc11 pre-applications ~t any time and with no prelequisite
concerZing "ripeness." Despite this, by letter dated January 17, 2013, Mark Pfefferle,
Chief of the Montgomery County Development Applications and Regulatory
Coordination Division ("DARC") at MNCPPC, "rejected" Pulte's application
asserting it ~~~~as "not ripe for review."
12
23.
On December 20, 2012, Fulte subn~i~ted a request to the County DepartrTlent of

Permitting Services ("DPS") for a meeting concerning Pulte's Pre-Application
Cocept Pla~~ and its Preliminary Watef Quality Plan related to developing the s~ibject
property. After receiving comments from DPS staff, Pulte reformatted iCs submission
and request on January 9, 2013. By e-mail of January 25, 2013, DPS informed Pulte
that it was ``too early to get into having pre-applications meetings on sites in the Stage
4 area" despite the tact that Defendants' Master Plan Stage 4 triggers for development
had been met approximately two years before.
24.
By letter dated January 28, 2013, Robert Harris, legal counsel for Pulte, resub~l~itted
Pulte's Pre-Application Concept Plan and filing fee to Fran~oise Carrier, the Chair of
the Planning Boafd. The letter requested that the Board consider Pultc's application
and "review it under the standards and procedures in Section 50-33 and Section 5033A" of tl~e County S~ibdivision Ordinance. The letter stated that:
'`Sections 50-33 and 50-33A pcovide an express, informal pre application

process for property owners and other applicants to obtain review of
anticipated development plans by Commission Staff, other agencies aild the
Planning Board. The provisions of These Sections allow the submission of
such pre applications at any time and with no prerequisite concerning
`ripeness."'
"Nothing in the Master Plan says that Pre Application Concept .Plans cannot
be filed and wilt not be considered once the staging triggers all have been
met, or even if they had not been met."
13
Pulte's "Pre Application Concept Plan contains extensive information with

respect to the [subject property], the proposed development plans, and water
quality protection measures contemplated for the project."
The "Commission Staff asked Pulte to submit this vefy type of information to
them so they could eval~iate water quality issues in their master plan ~~ork
~~hile, ironicall}~, rejecting t11is very application that contained that
information."
25.
On February 15, 2013, Robert Harris, legal counsel for Pulte, wrote a letter to Diane
Schwartz Jones, Director of DPS, again requesting aPre-Application meefing with
her staff and for DPS review of Pulte's submitted Preliminary Water Quality Plan for
the subject property. The letter pointed out, inter czlia, that:
The engineering firm LSA, now known as Soltesz, had "been working with
Pulte for a nul7~ber of years in terills of planning fof the future development of
[the subject] property, and more specifically, evaluating engineering feat~zres
of the property to ensure projection of Ten Mife Greek" and that LSA had
"first submitted tl~e request for such a tneefing on Decenber 20, 201?."
Even after LSA resubmitted the submission and request on January 9, 2013,
that "LSA was informed that DPS staff believed] it [was] 'too early to gef
into having pre-application ~eetings on sites in the Stage 4 area' ... [despite
the fact that] a pre application meeting ... [~~as] particularly appropriate .. .
given the County's review of water quality issues in connection wit11 [the
fiiture 2014 Amendment and that] the provisions of Chapter 19 of the
14
Mont~omely County Code and Chapter 19 of the Code of Montgomery

County Regulations specifically provide for tL1e review of a Preliminary
Water Quality Plan and any necessary pre-application meeting."
"The purpose of a Prelimi~~~ry Water Quality Plan is to enable early review of

issues that will be encountered in a more formal development review" and
ghat "[i]t would be particularly useful to Pu(te, [MNCPPC] end those
reviewing the [M]aster [P]lan to Have a review of the Pleliminary Water
Quality Plan by your depaifinenC."
No response to this letter was ever eceived.
26.
On April 3, 2013, Robert Harris, legal counsel for Pulte, wrote a letter to Carol Rubin,
Associate General Counsel of MNCPCC, "to c1a1ify certain aspects" of Pulte's
submitted Pte-Application Concept Plan. The letCer addressed, inte~~ alia, Pulte's
response to questions raised by Ms. Rubin concerning the "density requested" and
"the location of [Pulte's~ proposed development" on the subject property.
Specifically, the letter informed MNCPPC that:
Pulte would "work with Pack and Planning Staff and other agencies on any
issues related to development of [Che subject] property in oede to ensure that
its development meets all Community Planning [and] Environmeiztal land use
policies."
The Master Pla~z "recomme1ds private conservation areas along some of the
stream areas, extending beyond the desigated sensitive areas to be protected
15
by stream buffers as development occurs," and Pulte's submitted PreApplication Concept Plan "responds specifically to that recomtl~endaCion and
confor~T~s with the sensitive areas identified for protection" in the Master
Plan.
Pulte's development plan is i1 "conformity with regulatory equirements,"

including the County's forest conservation regulations and environmental
guidelines.
No response to this letter was ever received.
27.
On April 4, 2013, Gus Bauman, legal counsel for Pulte, ~~~rote a letter to RoberC Hoyt,
Director of DEP, and to Diane Schwartz Jotles of DFS, inquiring about both
DepartmenCs' processing of aPre-Application Concept Plan and its Water and Sewer
Category Change request. The letter noted that MNCPPC's Development Review
Committee (`'DRC") process for reviewing aPre-Application Concept Plan includes
required "review by afl pertinent public agencies and utilities," including DEP and
DPS, ai d that Pu(te was concerned about DEP and DPS' peculiar decision not to
comment on Che filed plan. The letter noted that "we assume this has something to do
with the pending Master Plan review, but no reason [was] given" to justify DEP and
DPS' decision. The letter pointed out Co County DEP and DPS, inte~~ alia, that:
Pulte is "entitled to a timely and fair review of its application under

applicable regulations and policies."
f[~
DPS and DEP should "reconsider [their] decision not to comment ...and .. .
pio~~ide fill and cc~~~plete comments with respect to the Watet Qualify Plan
and other' aspects of the Pre-Application Concept Plan to the DRC."
DEP and DPS should "resume ...processing [Pufte's Wate and Sewer
Category Change] request" because "the Council's decision to review the
approved and adopted Master Plan [did not pleclude] the continued
processing of the Water &Sewer Category Change application, nor ... [did]
anything in the regulations or policies applicable to such applications
[preclude] review."
28. On May 9, 2013, Pulte, exercising its right to a hearing under the County Subdivision
Ordinance, presented iCs Pre-Preliminary Concept Plan to the Planning Board showing
its proposal for development of the subject propeety in conformance with the Master
Plan, RE-1/TDR-2 zoning classification, and all federal, State, a1d Count}~
developmental and environmental regulations. The Planning Board refused to support
Pulte's submitted plan.
29. On February 28, 2014, Robert Harris, Pulte's legal counsel, wrote ~o Alan Soukup of
County DEP again requesting that the County act upon Pulte's "long-sanding" Water
and Sewer Category Change Request application, initially filed on May 12, 2009, at
the "earliest possible date." The letter informed the County thaC the "MasCer Plan
established various `triggers' before development in the Stage 4 area
.could
proceed" a~1d thaC "those triggers were met years ago which should have resulted in
17
[the] request being acted upon before now." No response to this letter was ever
received.
30. On April 1, 2014, the same day tl~e County Council approved the Master ,Plan
Amendment eviscerating Pulte's property rights, the Council instructed County staff
that any pending Water and Sewer applications in Clarksburg are to be reviewed and
heard not individually but all together at some indefinite time in the future. While
individual cate;ory change applications are typically heard by the Council twice
annually in the spring and fall the Council's instruction indefinitely suspends
Pulte's righE to a hearing on its years-pending Water and Sewer application and
thereby prevents and makes futile a Planning Board hearing on any development plan
Pulte might submit.
New Storu~water Management Requirements
31.
In 2007, the State of Maryland enacted significant changes to its Stormwater

Management Law by adding the requirement that developers use state-of-the-art
Environmental Site Design ("ESD") techniques in developing property. See
Stormwater Management Act of 2007, MD. CODE ANN., Envir. 4-201-215 (2007).
Under these new 1equirements, developers must use ESD, a collection of storl~~~~~atetmanagement techniques that slow and manage runoff and allow for slower f7ltering of
water during development and thereafter.
32.
In 2008, following Maryland's Stormwater Management AcC of 2007, Montgomery

County amended its regulations to require various ESD practices, measures, and
tiechniques of developers. See COMCOR 19.00.01 (2014).
33.
In May 2009, the revised Maryland Stormwater Design Manual was published,
implementing ESD planning strategies and practices to be used by developers. The
result of these reg~~latory changes was a shift in the stormwater management
paradigm to a more holistic and cotnprel~ensive approach that better conserves a
project site's natural features, minimizes the impact of development, and mirrors
natural hydrology.
34.
In May 2010, ESD regulations for the development of land took effect in
Montgomery County.
35.
In a report dated November 9, 2010, consultant Biohabitats, Inc., in collaboratio

with other groups, prepared a report for County DEP on "Implementing
Environmental Site Design in Montgomery County." This report states, inter czlia,
that:
"The ESD approach to development, redevelopment and retrofitting is

preferred because it conserves natural features and runoff patterns on a site
and reduces pollutants entering the storm drains, stormwater manabement
facilities, and local streams and other waterways."
"ESD is a comp~ehensive design strategy for maintaining predevelopinent

runoff characteristics and protecting natural resources."
"DEP will coordinate with tl~e lead agencies for each Montgomery County
Code chapter to promote and allow the use of ESD throughout the County."
Biohabitats, Inc, would later be hired by MNCPPC for the Master Plan Amendment
work and thereupon would reverse course and be dismissive of ESD as applied to the
subject property.
2014 Master Plan Amendment and Downzonin~; and Related Actions
36.
On October 9, 2012, the County Council, under pressule froth enviionn~ental interests
and fully aware of Pulte's filed Water and Sewer application, requested that the
Pla~~ning Board study the Ten Mile Creek watershed by re-opening the Clarksburg
Master Plan and preparing an amendment theteto. The matter of looking into the
environmental status of the watershed could have been studied without the extreme
measure of re-opening a County Master Plan relied upon by property owners and then
prejudging the result by also directi~lg an an~endn7ent be prepared. The Council's
decision to re-open the Master Plan further delayed any consideration by Defendants
of Pulte's May 2009 Water and Sewer Gate~oly Change Request.
37.
On November 19, 2012, Robert Harris, legal cou~Isel for Pulte, wrote a letter to Rose
Krasnow, then the Interim Planning Director of MNCPPC, objecting to the Planning
Boar'd's move to draft ail amendment to the Master Flan.
The letter informed
MNCPPC that:
MNCPPC had no basis to amend the Master Plan "based on a variety of

factors," including "Pulte's ability to address any environmental concerns
through its specific developfnent plans."
20
Pulte purchased the subject property "[i]n reliapce on the adopted Master
Plan
but also acquired fhe TDRs necessary for its developtnen~,
consistent with the Master Plan recommendations and zoning, at a

[combined] cost in excess of $60 million."
"The housing units platlned for [the subject property] form a critical
component of the overall housing stock planned for Clarksburg and the
County as a ~~hole, and a~-e important to support desired reCail and
employment services in the Town Center,"
"[S]ince the [subject] property was rezoned fot- housing development under
the RE-[1 ]/TDR(2) zone, water quality protection measures have advanced
considerably and regulatory requirements have beco~e substanCially more
stringent. As a result, water quality f~iodeling reflecting the planned
development of [the subject property] shows a reduction in total suspended
solids, phosphorus and nitrogen, compared to cur~ent conditions. The result
will be run-off characteristics better than `woods in good condition."'
38. On December 26, 2012, Stephen Collins, Pulte's Director of Entitlement, wroCe a letter
to Robert Hoyt, Director of County DEP, expressing his serious concerns surrounding
a proposed amendment to the Master Plan. The letter pointed out that:
Puke had "invested substantially" in the subject property '`based on the

zoning of the property and the Master Plan recommendations for water and
21
sewer service" and that it possessed "certain constitutional rights
including rights to due process of law, equal protection of the law, and not to
have its property taken for public use without just compensation."
The County's continued "failure to act" on Pulte's Water and Sewer Service
Category Change Request '`has effectively placed ...[the subject] property in
a developme~lt moratorium, which commenced when the County failed to
process the Category Change Request filed on May 12, 2009, in violation of
Pulte's property rights."
39.
On June 7, 2013, Robert Harris, Pulte's legal counsel, wrote another letter to Robert
Hoyt, Director of DEP, and Diane Schwartz Jones, Director of DPS, concerning the
effectiveness of ESD. The letter pointed out that:
"[A]s required by Maryland Stor~nwaCer Management Regulations and those

adopted by the County pursuant to state requirements, Pulte has proposed
ESD features in connection with development of[the subject property]."
"[A]fter extensive engineering work,[P~alte] submitted a detailed Preliminary

Water Quality Plan to both the Maryland-National Capital Park and Planni~lg
Commission and to the [County] Department of PermitCing Services for
review in connection with the Pre-Application Concept Plan. That Plan shows
how ESD measures would be incorporated into the project and how water
quality would be protected."
22
Despite the State mandate and the ongoing use of ESD in numerous projects
Throughout the County aild State to protect water quality, "members of[DEP
and DPS]... [still] questioned the effectiveness of ESD and even stated that
the County is not equipped to administer ESD regulations pursuant to state
regulations."
Pulte was "troubled that [County] government staff would question the value
of ESD, t11e ability to maintain ESD features and the County's ability to
administer the regulations [and that] none of these claims were made when
the [Maryland Storim~~ater Management] regulations were adopted. To the
contrary, environmental preservationists praised the new regulations as being
a highly effective way to control stormwater runoff."
40.
On June 17, 2013, Robert Harris, Pulte's legal counsel, wrote a letter to Francoise
Carrier, Chair of the County Planning Board, to inform the Boarcl that:
The Master P(an "recommended development patterns for the Ten Mile Creek
watershed which were designed to protect the water quality of Ten Mile
Creek. Those reco~~mendations were based on comprehensive environmental
and land use studies done over a petiod of years prior to the Master Plan
adoption."
"The stagi~lg ~~echanism[s] included in t11e Mister Plan (wet~e] intended fo

eval~~ate Che water quality protection measures at a later date to reconfirm
23
their ability to protect water quality" and that "[n]one of the studies
perfor~l~ed by [MNCPPC staff or consultants had] in any way demonstrated
that water pt-otection measures (lave declined since then or become less
effective."
The Planning Board's possible recommended downzoning and possible

reduction in development for the subject property, while allowiflg other
private properties in the same watershed to develop at much higher intensity,
would be disparate Yceatmenf because "[r]educing the development poCential
of~ the [subject] propert}t in order fo enable [other] properties [in the same
Ten Mile Creek watershed] to be rezoned for more intensive uses [would be]
`robbing Peter to pay Paul.'"
41.
On July 22, 2013, Robert Harris, Pulte's legal counsel, wrote another IeCtec to
Francoise Carrier, Chair of the Planning Board, again objecting to "the methodology
of some of [MNCPPC's consultants'] analyses, the assumptions ...made and the
conclusions ...reached" regarding the potential environmental impacts of Pulte's
development of the subject property and fhe Planning Board's recomtnendatiotls
regarding the 2014 Amendment. I-Iarris pointed out that:
The "Master Plan was already a careful balance between community building
interesCs, County housing policies, economic development objectives and
environmental protection goals," and the Planning Board "ignored" other
24
enviroilmen~al protection measures of tl~e Master Pla~l because of its "nearly

singular focus on water quality claims."
MNCPPC's consultants themselves "acknowledged that build-out [of

propereies pursuant to] Che ...Master Plan would result in an overall `good'
water quality for the Ten Mile Creek,[its status today]."
"Pulte's engineers and
scientists have provided
detailed
comments
challenging multiple assumptions and conclusions offered by Staff and its

consultants ...[and that] [t]he ultimate conclusion based on the comments . .
atld the studies and data being submitted ... is that there is no supportable
justification to change tl~e Master Play recommendations."
42.
On July 22, 2013, Marcus Quigley, an expert on water quality issues of nationally
renowned Geosyntec Consultatlts, wrote a letter to the Planning Board highlighting
key errors in MNCPPC's consultants' studies of the impact of the subjectproperty's
development on "I'en Mile Creek. Pulte 11ad engaged Geosyntec to provide a Chird
party evaluation of the potential environmental impacCs of Pulte's planned
development. Quigley pointed out the following regarding MNCPPC's consultants'
studies:
"Full compliance with ~i~ater quality and channel protection require~r~ents as

well as environmental protection and improvement of Ten Mile Creek over
existing conditions can be achieved using Environmental Site Design (ESD)
25
approaches; more detailed analysis is required to properly evaluate the wellestablished benefits of distributed ESD measures in a technically rigorous
manner."
"It appears that in fhe limited modeling efforts conducted to date by the
County's consultants, design related unit processes and intilhation rates are
noC adequately represented to evaluate site specific design related impacts.
Current results provided by the County's consultants likely over-estimate t11e
peak flows and volumes in Che proposed build-out."
Geosyntec concluded that "[t]he study by the County's consultants, a joint

venture of Biohabitats and Brown and Caldwell [and the Center for
Watershed Protection], is done at a planning level of detail [rather than a sitespecific inquiry], which requires many assumptions ~~ith respect ~o the
development of the various properties in the watershed."
43.
On July 24, 2013, William (K.C.) Reed of LSA wrote a lette to Chree of the five
Planr~in~ Board members (Casey Anderson, Norman Dreyfus, Amy Presley) ~vho
had raised some questions at the prior Planning Board work session on preparing an
amendment to the Master Plan. Pulte had e~lgaged LSA to plan atld engineer
development of the subject property as well as provide a third party evaluation of the
pote~tial environmental impacts of Pu(te's development. In its letter, LSA provided a
detailed explanation on "information ...that should be taken into consideration"
26
during the Planning Board's decisio~l 1~~aking process. In particular, the letter
infoitT~ed the Planning Board that:
"[T]he Staff's and their Consultant's conclusions and recommendations

relative to the Master Plan Amendment efforts ... [are] not substantiated by
the analysis and findings."
"In all [land use] scenarios, the [development] model predicts that the water
quality of t11e Ten Mile Creek stem would remain classified as `Good."'
The Planning Board has "not been shown information that justifies a
significant deviation from the ...Master Plan."
44.
On August 30, 2413, Kevin Kennedy and Timothy Dugan, legal counsel for Pulte,
wrote a letter to Adrian Gardner, Geieral Counsel for MNCPPC, and Isiah (Ike)
Leggett, Montgomery County Executive, reserving Pulte's rights and remedies
arising from the "ongoing mistreatment of Pulte" in connection wiCh the ongoing de
facto moratorium on the Water and Sewer Category Change Request and the
proposed downzonitlg of and severe impervious limits on the subject pt~operfy. T11e
letter put MNCPPC and the County on notice Chat their actions were violating Pulte's
legal rights. In pa1ticular, the letter informed DefendanCs, inter crlia, that:
"Pulte's rights to due process uder the State and Federal constitutions]
dictate Yhat Pulte not be arbitrarily or capriciously deprived of its
development rights."
27
"[T]he
environmental/engineering
[MNCPPC's consultants'].
analyses
relied
upon
to
support
recommendations regarding supposedly
necessary down-zoning and/or unreasonably low iiYlpervious caps are based

on faulty analysis, assumptions and arguments regardinb both the supposed
`existing conditions' of Ten Mile G~eek, as well as various untenable impact
projections that Pulte's by-right development under the 1994 Master Plan
(TDR density notwithstanding) will supposedly have on the greater Ten Mile
Creek."
"Pufte has shown ...that Pulte's as-planned stom Water quantity and quality
management proposals ...would actually reduce potentially harmful run-off
w11en compared to existing uses, and stay well within any naxilnum
allowable impacts to the overall watershed and Ten Mile Ct-eek water quality
under the 1994 Master Plan."
"Despite the fact that Pulte's proposed voluntary rneasur-es are required to
inform the applicable/presefibed analysis, those factots have not been
considered by [MNCPPC], despite beig specifically required by the 1994
Master Plan."
"In context, the indefiniCely delayed sewer and water category change request
smacks of an exaggerated and unsupported pretext for thwarting development
... At bottoil~, the County is bound by its o~~~n criteria and cannot bootstrap
its desire to retard or thwart development."
28
"The unlawful nature of the ongoing defacto moratorium on sewer and water
category changes for the Pulte Property is particularly toubling ...because it
has not been formally enacted and because its purpose is not to address a
pressing health or safety emergency, is of imprecise dtaration and involves
treating similarl}~ situated landowners unfairly and differently than others."
"The "ongoing mistreatment of Pulte seeks to inpose disproportional bu~dens

and cost upon the [subject property] ...clearly in excess of any putative
impact that Pulte's as-planned by-right devefopmept expressly contemplated
in tlZe 1994 Mastee Plan might cause to the Ten Mile Creek watershed."
"[B]ecause the proposed down-zoni~lg a~1d impervious caps would single out
and unfairly discriminate against the Pulte property, any such proposed
Master Plan amendment and/or follow on governmental actions against the
[subject property] would also constitute an unlawful `spot zoning."'
No response Co this letter was ever received.
45.
On August 30, 2013, Kevin Kennedy, legal counsel for Pulte, also wrote a letter to
MNCPPC's consultants Biohabitats, Inc. and Brown and Caldwell (two of the
organizations that made up the "Joint VenCure") regarding "vario~~s unCenable ethics
violations" committed by their organizations in preparing opinions and reports
(together, "Suspect
Opinions") to justify
the
proposed
downzoning
and
disproportionate impervious restrictions for the subject property. The letter notified
the Joint Venture that:
~9
The opinions they provided MNCPPC in regard to the subject property are
"factually and otherwise severely flawed and untenable as a matter of both
applicable law and sound engineering practices."
Pulfe's own consulting experts confirmed that the Suspect Opinions "were
noC properly undertaken and
.cannot support any of the findings a~1d
recommendations the Joint Venture" made to MNCPPC.
"Pulte cannot rule out that the Suspect Opinions ...were speciously designed
even perhaps to intentionally exaggerate and misapply t11e supposedly
supporting data to unfairly prejudice Pulte's by-right RE-l/TDR-2
development rights."
"[T]he Joint Venture's analyses do noC contain adequate detail to technically

support [their] various recommel~dations to [MNCPPC] Staff."
"Pure cannot rule out either gross negligeizce by the Joint Venture and/or a
potentially fraudulent/deceptive rendering of the Suspect Opinions. Because
this would justify an ethics grievance by Pulte against the Joint Venture and
its engineers responsible for the Suspect Opinions, all such ribhts aid
remedies are also reserved."
No written response to this letter was ever received.
46.
On September 10 and 12, 2013, the Planning Board held its public hearinb on its
Draft Master Plan Amendment, which recommended downzoning the subject
property from its residential zone to an agricultural zone, imposing on the subject
30
property a series of severe development and open space restrictions, and requiring of
Pulte dedication of numerous (buY not specifically identified) acres to MNCPPC
under any development that may be attempted by Pulte. Testifying for Pulte was
legal counsel Robert Harris, expert consultant Marcus Quigley of Geosyntec, legal
coutlsel Gus Bauman, and Pulte Mid-Atlantic Division Presidefl~ Lewis Birnbaum.
47.
During his testimony on September 10, legal counsel Robert Harris stated that "Pulte
has been pushed to the wall." Harris poi~lted out to the Planning Board that:
The Planning Board Draft Master Plan Amendment "does not respond to the
scope of woik approved by fhe County Council";
"[T]hree different environmental engineering firms engaged by Pulte
reviewed [MNCPPC's] consultants' work on the issues independently" and

all three expert organizations found the studies to be "seriously fla~~ed";
Pulte had previously submitted to the Board aPre-Application Concept Plan

for the subject property showing one way in which it "could be developed to
its full density under the existing zoning, while incorporating ESD measures,
forest conservatiotl requirements and stream buffer protections that would
allow Pulte to fully achieve the water quality protection goal," and MNCPPC
had rejected the plan; and
Pulte is "particularly botheled by the radically different way in which Staff

would treat the various properties that drain into Ten Mile Creek, all of which
are related to the overall quality of t11e streai~~," and "[t]o the extent new
31
developi~~ent ...will have any impact ... ,each property should be treated
equally."
48.
During his oral testimony on September 10, Marcus Quigley, national expert in water
resources engineering issues, critiqued the "assumptions used" and concluded there
was a "[1]ack of apparent veeification, calibration, or even basic comparison to
independent sources of hydrologic information" by MNCPPC's consultants. Quigley
informed the Planning Board that:
"[A]t a basic technical level, the modeling conducted by [MNCPPC's]

Consultants does not contain adequate detail to technically suppot staff's
recommendations."
"[C]citical components of the actual modeling are inconsistent with the

consultants' own statements about how the work was conducted and are
incorrect. The components that are incorrect have a major impact on the
results relied upon by staff."
"[T]he assumptions used in [MNCPPC's] consultants['] ~~odeling are

inconsistent with actual field conditions or incorrect ...[D]iscrepancies exist
in existing and proposed condition modeling assumptions for curve number
selections, cover couditios, choices of subwatershed delineations, soil
properties, infiltration rates into soils, overland flow-path lengths, and basic
routing."
32
"Tl~e existing conditions model results relied upon by staff are well outside of
independent predicted results and norns for the aea."
MNCPPC's cons~~ltants made "no apparent attempt to use existing flow data
to calibrate, verify, or otherwise compare the obtained results to the extensive
record from similar or even undisturbed watersheds."
"Geosyntec has also conducted its own detailed modeling and has found that
the Pulte ESD, Environmental Site Design, will reduce peak flow rates during
the one- and two-year design events below existing condition flow rates [and
tihat i]t is possible ~o achieve hydrologic sheam protection using accurate
existing condiCions peak flows, reasonable infiltra~iot~ rates, regulatorycompliant recharge volumes, and appropriate design assumptions."
49.
In addition to his verbal testimony, Marcus Quigley submitted to the Planning Board
a twelve page letter dated September 9, 2013 decaying the "broad assumptions" made
by MNCPPC's consultants with respect to develop~nenC of various properties in the
watershed. The letter describes in detail the "several apparent def7cie~lcies" in tl~e
modeling used by MNCPPC's consulta~lts and co~icludes that "Che modeli~~g
co~~ducted by the MNCPPC's consultants does not Cechnically supporC County staff's
recommendations."
50.
During his testimony o September 10, Gus Bauman, legal counsel for Pulte, stated
that the Planning Board Draft Plan Amendment was "a mistake of enorr~nous
proportions, something [he lead] not v~~itllessed in
.four decades" of practice.
Bauman pointed out that the Planning Board Draft Amendment:
33
"[B]y effectively wiping out Pulte's TDR's, which it paid millions for
because of the zoning affixed to its land, is an unprecedented attack on [the]
County's vaunted TDR progam and breaks faith with afl those relyii~~ on it."
[I]s "counter to
the
County's, and
Clarksburg's, housing
policy,
agriculturaUTDR policy, economic development policy, transit policy, and

town center/community building policy. And it demeans anyone trying to
adhere to the fatuously rigorous Stake and County environmental policies and
laws."
"[P]Iaully targets Pulte with an l~nprecedented downzonitlg from a residential

to an agricultural classification" and "piles on with a discriminatory
impervious limit coupled with a confiscatory instruction that some 85% of the
site be dedicated to parkland and open space."
"[L]ayers on even more stringent requirements as to Pulte's land use,

restrictions so vague and overbroad as to violate basic notions of due process
of law."
"[V]iolates the Constitution's Taking, Due Process, and Equal Protection

Clauses: it reduces Pulte's land to nothin;ness, it is arbiCrary, and it is
discriminatory. It also happens to violate fundamental fairness."
51.
During his testimony on Septetnbet~ 10, Lewis Birnbaum, President of Pulte's MidAtlantic Division, provided "compelling evidence and testimony [on] wl~y adopting
the proposed amendment to the ...Master Plan is irresponsible planning and would
34
result in a catastrophic economic impact to the long-term viability of Clarksburg."

Birnbaum pointed o~~~ to the Planilitlg Board that:
Pulte "started meeting with the local environmental activists 4 years ago to
prove that [Pulte's] modeling ~zsing the latest technology and laws including
environmental site design pactices would create a community that wo~~ld
represent t(1e most responsible envionmentally designed and managed
suburban community that Montbomery County has ever seen.''
Pulte had "proven this fact over and over again, only for it to be made clear
that the groups [it was] `working with' had misrepresented their willingness,
or their aptitude, to understand and realize what [Pulte could] accomplish"
and that such groups "worked behind the scenes to deny [Pulte] ..due
process and rights under the Master Plan and to compel ...local officials to
punt their responsibilities to another day and another department."
"[T]he Maste Plan, combined with current environlT~ental n~at~agement and

mitigatio~l laws, will produce aworld-class communiCy that Clarksburg and
Che County will consider a prized asset for many years to come."
52.
A~ tl~e same Planning Board Bearing, Pulte also submitted written testilT~ony dated
September 10, 2013, prepared by expert environmental and engineering consultants
LSA and Newfields, Inc., addressed to Francoise Carrier, chair of the Planning Board,
and tl~e member's of the Board. The convi~ents provide numerous detailed refere~lces
to field studies and scientific publications Chat demonstlate that MNCPPC's
consultants' study of the environmental issues surrounding development in the Ten
35
Mile Creek watershed were "technically flawed and inconsistent with current research
findings," and that MNCPPC's "planning level" study ignored the site-specific
circumstances and facts of the subject property.
53.
On October 4, 2013, Marcus Quigley and Charlene Harper of Geosyntec Consultants

wrote a detailed letter to the Planning Board "to respo~ld to foul specific points
presented by [MNCPPC] staff, consultants, and guests during" the Board's September
26, 2013 work session on the Draft Amer1d~11ent. Geosyntec outlined various key
inaccuracies made by MNCCPC staff and consultats relating to ESD and the
reasoning behi~zd setting cerCain impervious lim[ts for tl~e subject property.
In
particular, the letter noted, inter alia, that MNCPPC's consultants' analysis of the
environtl~ental issues "grossly underestimates peak flows and volumes" and that the
`'qualitative opinions stated by the consultants regarding effectiveness of ESD are
inconsistent with standards of practice."
54.
On October 25, 2013, the Planning ,Board transmitted its Diaft Master Pla~l
Amendment to the County Executive and County Council. MNCPPC's recornmendecl
regulatory restrictions and exactions for the subject property went far beyond its
adopCed Environmental Guidelines that are applied to all other properties being
developed within the County, imposing a 10 percent impervious li~l~it and a 65
percent open space requirement for any development on the subject property. The
Amendment also uniq~~ely targeted the subject property for a downzoning from its
residential classification (RE-1/TDR-2)to an agricultural classification (RNC).
36
55.
On November 27, 2013, all three consultants engaged by Pulte (Geosyntec,

New~elds, and LSA) submitted a comprehensive 16 page report to County Council
President Nancy Navarro and the members of the County Council detailing the
"errors, misrepresentations and faulty conclusions drawn by MNCPPC" in the
development of its DrafC Amendment. In particular, the report made the following
four points to demonstrate that there was "no justification" and "no technical basis"
for the Planning Board Anendmetlt:
`The application of the Impervious Cover Model (ICM) and establishing an

Impervious Cap is not a valid planning tool."
"The selection of a [recommended] limit on watershed impervious cover of 8%

[for the subject poperty] is arbitrary and unsupported by the data."
"MNCPPC's application of the Countywide Stream PIoteetion Strategy Score

Change Estii~~ate (CSCE) Model predicts that water- duality in the main stem of
Ten Mile Creek will remain `Good' even without accounting for Che superior
sformwater management systet~~s related to EnvironmenCal Site Design which are
required by State regulatios."
"The MNCPPC-developed Watershed Indicator Mode( was effectively abandoned

after it did not support apre-conceived goal to use the Master Pla~1 Amendment to
substantially and needlessly reduce development potential west of I-270."
Pointi~lg to the above fundamental flaws in the science used by MNCPPC to justify
its Draft Amendment, all tlu~ee expert consultants concluded "that the only
37
appropriate action to be taken by the Cotmty Council is to restore the development

t-ecommendations and zoning contained in tl~e current Master Plan and remove the
additional, and arbitrary restrictions that are proposed for the [subject property], and
only the subject property], without any rational justification."
56.
On December 3, 2013, the County Council held the first night of its public heariti~ on
the Pfanni~~g Boaf~d Draft Amendment. The written testi~7~ony, reports, data, and facts
presented previously by Pulte to tl~e Planning Board were also presented to the
County Council as part of its public hearing record.
57.
During the December 3, 2013 hearing, Lewis Birnbaum, President of the MidAtlantic Division of Pulte, who was given three minutes to testify, informed the
County that Pulte "vigorously opposes] the proposed downzoning and imposition of
extreme, unwarranted development restrictions in the Draft Master Plan
.that
targets" the subject property. Birnbaum pointed out that:
Pulte purchased the subject property based on a "good faith reliance on the . .
. Master Plan and the zoning [the County] government adopted allowing fof~
approximately 900 to 1,000 homes" on the approximately 541 acres.
Pulte "had confidence it1 the zoning and the Master Plan, which carefully
reflected a balance between environmental protection anti the need for
community building and ho~~sing in the county, as well as the desire to il~ake
Clarksbufg a viable corridor city .
resources."
38
.complete with all types of housing
"The triggers for allowing the development of Stage 4 of the Master Plan
were satisfied in 2009. Since that time, [Pulte has] lead [its] constitutional
rights violated repeatedly, culminating with the County's decision to re-open
the Master Plan."
"Pulte engaged three of the nation's foremost water quality experts to study
the issues" and all three expert consultanC groups "concluded that current,
state-of-the-arC
stormwater
management
equirements
including
Environmental Site Design measures, as well as specific site design features

proposed by Pulte will fully protect the water quality."
"[T]he Pat~k and Planning Staff and ids consultants undertook planning level
studies of water quality issues ... [a]nd they didn't factor in their model the
currenC ESD water quality management techniques required by State and
Coul~ty laws ...Given that the Park and Planning studies do trot demonstrate
adverse impact o Ten Mile Creek under the ctu~rent zoning and regulations,
[Pulte was] perplexed by the land use tecommendations of the Draft Plan."
"[T]he Draft Plan violates Pulte's constitutional property rights it is

arbitrary and unreasonable, it is discriininatoy, and it is a taking."
58. Also on December 3, 2013, Gus Bauman and Robert Harris, legal counsel for Pulte,
submitted a letter to County Council President Nancy Navarro and the members of
the Council "to inform the ...Council of significant legal issues concerning ...its
treatment of Pulte." The letter noted that "~i]n targeting [the subject property] with
such onerous and discriminatory actions" the Planning Board Draft Master Plan "as
39
applied to Pulte, violates the Due Process, Equal Protection, and Takings Clauses of
the Mayland and U.S. Constitutions." Counsel stated thaC "[t]l~ese concerns arise
from Pulte's distinct investment-backed expectations based on tl~e zoing the
County affixed to the property following adoption of the current Master Plan."
Specifically, the letter highlighted that the following actions violate Pulte's
constitutional and other property rights:
"The County's refusal for the past five years to process Pulte's lawfial sewer and
wafer categoy change request despite the `triggers' for Staae 4 of the
Clarksburg Master Plan having been met."
"The substantial and unwarranted clownzoni1g of [the subject property]
proposed by the Draft Master Plan."
"The imposition of a discriminatory [proposed] 10% cep on impervious cover
on" the subject property.
'`The imposition of additional, extraordinary development restrictions applicable
only to the" subject peoperty.
"The requirement for Pulte to dedicate or preserve an unprecedented majority
portion of its property as parkland."
"The substantial differece in tteatment in the Draft Plan between the [the
subject ~roperry], with
a [proposed] 10% impervious cap, and the
Miles/Coppola and Egan ptoperties, with a [proposed] 25%cap, even though all
are part of the same Teti Mile Creek drainage area (indeed, the other properties
lie in the Cfeek's headwaters)."
~[I7
59. On December 5, 2013, the County Council held the second night of its public
hearing on the Planning Board Draft Amendment. Durig the hearing, leadership of
County environnle~ltal interests openly threatened the Council that, unless the Council
acted as told by the interests, tl~e Council members would be specifically targeted for
political retribution at the June 2014 County Council Primary election. One example of
this testimony is that of Michael Gravitz, an environmental leader fiom Chevy Chase,
Maryland. Mr. Gravitz informed the Council:
"My other job [tonight] is to talk about the politics of the issue and tell you how I think
voters and challengers will see it next Spring in the piimaiy [election] season. Some of
you, Ms. Floreen and Mr. Elrich, know me as a straight shooter and plain talker fi-om the
Silver Spring redevelopment fight. Please use that as context for whit follows. I believe if
you don't preserve the Ten Mile Ceek watershed, the scenario goes like this. The
environmental con7n~unity will tell voters that you just approved not one, not two, bud
three huge development projects that will pollute the headwaters of their emergency
drii~kinb water supply, and that you decided to ignore all the warnings and evidence to
the contrary.... The 20 groups in our coalition (see attached page), including the Sierra
Club, Clean Water Action, and Audubon Naturalist Society are a very credible source of
information about water pollution and drinking water for the 30,000-40,000 households
that are members, and vey likely others. We'll have a simple statement to make, `You
OK'd huge projects that a~e going to pollute THEIR DRINKING WATER, endangering
their health and the operation of their water supply. Period. Who wins that discussion? I
can't tell you what to do. But I can tell you what our Coalition will do. We will remind
41
our members of the likely impact of your vote and make your decision on Ten Mile
Creek and LiCtle Seneca the lit~us test of environmental stewardship in this election
cycle."(emphases in original).
But contrary to the "evidence" refetred to by Mr. Gravitz (and other testifiers), the public
hearing record shows that the only evidence, the only facts, the only data concerning
purported "pollution" of the emergency drinking water supply is that there would be no
pollution of the water supply caused by the planned developments, including that of fhe
subject property, in the Ten Mile Creek watershed of Clarksburg.
60.
Also at the December 5, 2013 hearing, Marcus Quigley of Geosyntec, expert
consultant to Pulte, testified that:

Geosyntec had revie~ed all the facts and ~11e Planning Board studies
concerning the potential water quality and quantity impacts of Pulte's planned
development, and Geosyntec concluded that "the quali~a~ive opinions ghat
[Pulte's] build-out consistent with the 1994 Clarksburg Master Plan would
negatively impact Ten Mile Creek are wholly unsupported by the facts, are
inconsistent with current research on the effectiveness of [ESD], and not
repfesetltative of Che actual proposed design of the site."
Pulte's "detailed designs that have been developed for [the subject property]
follow professional standards of practice and are consistent with the
recommendations for development advocated by the most prominent
environmental non-profiC organizations in the country including the [N~tural]
Resources Defense Council, USEPA,the Md. Dep't. of the Environment, and
42
research conducted locally at the University of Maryland and across the

country.,,
61.
In addition, on December 19, 2013, Pulte submitted to the public hearing

record the following reports from expert environmental consultants:
A detailed report by Chuck Pace and George Frigon of Newfields dated
February 8, 2013 on the "Analysis of the Applicability of the Impervious
Cover Model (ICM) to Development Using Environmental Site Design
Practices." The report describes the development of ESD requirements as a
multi-year process led by the Maryland Department of tl~e E~Zvironment
("MDE"). The report concludes, "[a]s required by the Maryland Stor~mwater
Management Act of 2007,[Pulte's] proposed development concept for the .. .
[subject property] has applied [ESD] practices to the maximum extent
practical ... By specifically following MDE guidance, ESD practices have
been considered early irl the design process and all available tesources lave
been considered such that the Ten Mile Creek watershed ~~~ill be protected
from the impacts of land development activities."
A presentation by K.C. Reed of LSA dated April 17, 2013, titled "Pulte
Homes Response to MNCPPC Ten Mite Ceeck Limited Master Plan
Amendment." The presentation explains that the Planning Board's questions
concerning the effectiveness of Pulte's use of ESD techniques for its proposed
development were unfounded because ESD is "required by law to specifically
address the effects of development on Maryland waters." The report provides
detailed charts and data outlining the inconsistencies and flaws in the Planning
43
Board's consultants' study, concluding that the Planning Board staff

consultants' study of the environnental issues was seriously flawed.
A report dated June 6, 2013 from LSA that provided extensive data
demonstrating that Pulte's development plan implemented sound pater
management techniques for the subject property.
A letter dated September 8, 2013 fiotn Dr. William Hu~1t, nationally reno~~ned
Biological and Agricultural Engineering Professor at NorCh Carolina State
University, to Marcus Quigley ofGeosyntec, describing the effectiveness of
Low Impact Development/Environmental Site Design (LID/ESD) measures
and points out that "the reason LID/CSD can `beat' nature is due to the fact
that engineering controls can provide storage and minimize release of watemore so than existing conditions." The letter reiterates that "the guess work"
surrounding ESD has "been removed, allowing designers to effectively predict
how well groups of practices(LID/ESD)can perform in the long-term."
A eport fiom K.C. Reed of I.~SA dated Noveci~ber 27, 2013 and titled, "A
Comparison of IiT~pervious Area Limits between the Upper Paint Branch
Environmental Overlay Zone and the Proposed Action with the Ten Mile
Creek Area Limited Amendment to the Clarksb~~rg Master Plan." The report
compares the Tei1 Mile Creek watershed with another more sensitive County
watershed, the Paint Branch, and concludes that, "[g]iven the sensitivity of the
Paint Branch system, it's Use III classification, aging infrastructure, lack of
modern stormwater management facilities, and the fat ~1~ore stringent
44
regulatory requirements and process currently in place, it is inappropriate that

the overall impervious area proposed for ~11e Te Mile Creek watershed be
limited to 8%, as compared to 14.5% in Paint Branch, a whopping 45%
difference."
None of these reports and their data nor any of the other detailed submittals on behalf of
Pulte pertaining to the subject property were referred to, discussed, analyzed, or refuted
by the Council during any of its eight work sessions on the Draft Amendment.
62.
On December 20, 2013 at 5 PM,the County Council closed the public hearing record
on the Draft Clarksburg Master Plan Amendment.
63.
On Jauary l3, 17, 24, 27, 29, February 4, and 11, 2014, the County Council's
planning and environmental committees held joint committee ("Joint Committee")
work sessions on the Draft Amendment. Of the Council's nine members, five to
seven members attended those work sessions.
64.
On February 28, 2014, Robert Harris, Pufte's legal colulsel, wote to County Council
President Craig Rice and the other Council members objecting to how its Joint
Conmi~tee had conducted its seven work sessions in evaluating the Draft MasEer Plan
Amendment. Harris pointed out that:
"Through its public hearing testimony, and the extensive scientific and
engineering data and reports submitted on December 19, 2013, Pulte
docume~lted how the water quality of Ten Mile Creek ~v~ould be protected ~~rith
development of t11e [subject property] as recommended in the 1994 Clarksburg
Master Plan," and "[a]lthough the joint Co~ninittee held seven length}~ ~~~ork
45
sessions, at no time during any of those work sessions was a single piece of the
exEensive evidence presented by Pulte analyzed or even discussed."
"[A]fter closing the record on December 20, the joint Committee had proceeded
to invite extensive new testimony from ~ variety of additional individuals but
gave Pulte no opportunity to testify in t~esponse." As a result, the County Joint
Committee ``was left with nothing but utlsubstantiated, tulcl~allenged claims by
those additional witnesses, resulting in various erroneous conclusiotls."
The recommendation that was being advanced Co the full Council on behalf of
those Joint Committee members who voted to support it was "so radically
different from the recommendation of the ...County Planning Board, on which
public testimony was taken on December 3 and December 5, 2013, that it is, in
effect, a completely different Master Plan."
The Joint Committee had "rewritCen Che Planning Board Draft Plan and [had]
done so without a public bearing on tfle revised plan," and such "action exceeds
the Council's powers with respect to actions on a Planning BoaYd Draft,
contained in both Chapter 33A of the County Code and the Land Use Article of
the Maryland Annotated Code."
"[B]ecause the Joint Committee's actions ciid not allow more compleCe testimony
from property o~~vners, and in fact allowed none at all with respect to the Joint
Committee's proposed Master Plan, Che joint Committee, County Staff and Park
and Plan~~ing's consultants did not review or consider engineering and design
solutions that can enhance the performance of ESD measures and further protect
water quality even beyond Co~~nty, State, and Federal requirements."
46
65.
On March 4, 2014, the County Council, in its sole work session on the Draft
Amendment, approved by sCraw vote its Joint Committee recommendation regarding
use of the subject property. Far more restrictive than even the Planning Board Draft
Master Plan, the 2014 Anlend~~~enf directs, inter alia, that the subject propelty be
downzoned from ids residential RE-1/TDR-2 zone to the agricultural RNC zone, that
a 6 perce~lt impervious cap be imposed on the subject properCy while imposing a I S
percent cap on similarly situated private property owners in the same watershed, that
an 80 percent open space eequirement be i~llposed on the subject property, that
approval of an extraordinary conservation management plan be required in addition to
the standard prelin7inary and site plans for the subject property, and that other severe
development ~~estrictions and parkland dedication requirements applicable to no other
property in Montgomery County be imposed.
66.
On April 1, 2014, the County Council, sitting as the District Council, formally
approved by Resolution what it approved by strew vote on March 4.
67.
On April 18, 2014, Robert Harris, legal counsel for Pulte, submitted a letter to
Francoise Carrie, the Chair of Elie Planning Board, voicing Pulse's opposition to the
proposed adoption by MNCPPC of the 2014 Amendment. The letter urged MNCPPC
not to adopt the Amendment, noting that "the County Council's approval of a~
A~Z~endnent th~~ departs significantly from the Planning Board's recommendations . .
. is not based on defensible scie~~tific grounds o accepted planning principles and
unfairly deprives Pulte of valuable property rights in conflict pith applicable laws."
47
68.
On April ~24, wifh no discussion, the Plaf~ning Board (its members comprising onehalf of MNCPPC's tne~izbers) voted to recommend that the MNCPPC adopt the 2014
Amendment.
69.
On May 13, 2014, the County Council held a public hearing on a Zoning Text
Amendment ("ZTA") to create a Clarksburg West Environmental Overlay Zone in
the County's Zo~ling Ordi~lance, which overlay zone would ultimately be applied to
the subject property in additiotl to the RNC zone. In opposition to Che ZTA, Robert
Harris, legal couZsel for Pulte, submitted a letter, dated May 7, 2014, to Craig Rice,
President of the County Council, again informing the Council that:
"During the course of the Master Plan, Pulte made clear its belief that the
recommendations ultimately incorporated in the adopted Master Plan ace not
supported by the evidence of record and unfairly deprive Pulte of valuable
properly-rights."
"Pulte believes the Master Plan Amendment, and now this Zoning Text
Amendment, violate Constitutional tights regarding equal protection,
substantive due process, procedural die process, and the taking of property
without compensation."
"[W]ithout justification in the record, this Zoning Text Amendment treats the
Pulse property in a vastly different manner than other properties within the
Ten Mile Creek Area, other properties in the Clarksburg Special Protection
Area, and other properties along protected streams in the County."
70.
On May 19, 2014, Gus Bauman, legal counsel for Pulte, submitted a letter to
Francoise Carrier, Chair of MNCPPC, at~d Elizabeth Hewlett, Vice Chairman of
48
MNC~PC, once again expressing Pulte's strong opposition to MNCPPC's adoption

of the 2014 Master Plan Amendment. The letter stated:
"Without legitimate justification as borne out by the facCs, tl~e Master Plan
Amendment's directives treat Pulte's property in a vastly differenC manner
from other propet-ties within the same Ten Mile Creek area of Clarksburg."
"While the County's position is that these restrictions(among ot(~ers) will still
allow Pulfe to reasonably develop its land, there is nothing in the record to
supporC such an assertion,"
"The Montgomery Council, in approving a Master Plan Amendment
specifically targeting Pulte's land for onerous, disctiminatory treatment, went
significantly beyond what the Planning Board lead recommended."
"Pulte stands to lose tens of millions of dollars in its property investment
because it acted in good faith reliance on its current zoning and the current
Master Plan adopted by MNCPPC."
7I.
On May 21, 2014, MNGPPC adopted the 2014 Amendment.
72.
On July 15, 2014, the County Council adopted the Clarksburg West Environulental
Overlay lone Text Amendment as a part of the Zoning Ordinance. The Clarksburg
West Environmental Overlay Zone Text Amendment, to be imposed on the subject
property, enacted, inter alia, a radically low 6 percent impervious cap on
development while the Clarksburg East Environmental Overlay Zone Text
Amendment, in the same Ten Mile Creek watershed, enacted a 15 percent impervious
cap on properties to be developed. The severe resh~ictions in the Clarksburg West
Environmental Overlay Zone incl~~de:
49
"Except for County owned land or land tinder a conservation easement

granted to the benefit of the County and [other exempted] development,.. .
the total impervious surface area for development after August 4, 2014
must be a maximum of 6% of the total area under application for
development."
"All envitonmental buffer areas or natural resources recommended for
protection in the Te Mile Creek Area Limited Amendment to the
Clarksburg Master Plan and Hyattstown Special Study Area must be
regulated as environmentally sensitive areas, just as othet~ areas identified
environmentally sensitive in law, regulations, or in the Planning Board's
Guidelines for the Environmental Management of Development, as
amended."
"The miniiT~um area devoted to open space must be 80% of the total area
udder application for development."
73.
On July 17, 2014, MNCPPC's Montgomery County Planning Board amended its
Environmental Guidelines, which serve as development regulations, to include
extraordinary impervious limits, stream valley buffer zones, and forest buffer
requiements, specifically targeting development of the subject property. The
revisiotls provide, ir1CeY alia, that:
"[A] 6 percent imperviousness limit applies to all new development on
properties greater than 2 acres in size that are recommended for the
Clarksburg West Environmental Overlay Zone."
50
"[E]nvironmental buffers must be a ~~ninimutn 200 feet wide around

perennial and intermittent streams, and springs and seeps, and must he
expanded to include:
o
All erodible soils ...that begin within or abut the minimum buffers
All slopes 15 percent or greater that begin within or abut the

minimum buffers."
"A minimum 50 food buffer must be provided around all ephemeral

streams (not including roadside or otLier constructed ditches)."
"[T]he 80% open space required by the RNC zone trust encompass, at a
minimum, all envifonmental buffer areas ...and forest protection areas, as
described" in the Guidelines.
"Forest Conservation Plans, for properties in the Ten Mile Creek
Watershed should protect
[a]11 forest eequired by the Forest
Conservation Law and Regulations... [and o]n the Pulte/King properties,

all foeest that begins within or abuts environmental buffers."
74.
On July 22, 2014, the County Council held a hearing on its proposed Clarksbutg
Sectional Map Amendment (SMA). Robert Harris, legal counsel for Pulte, testified
that "the evidence of record does not support Che need for a major downzoning of the
Pulte properties from RE-llTDR-2 to the RNC Zone." Harris once again pointed out
that "not only is the County considering such a major down-zoning to this property,
but it is proposing to apply multiple, additional restrictions on development that will
preclude any reasonable development of the property ...[including:]
51
An unprecedented 6% cap on impervious cover via 7TA 14-03

A requirement for stream buffers wider than required Throughout d1e rest
of the County
A requirement for 80% of the site to be maintai~led as rural ope~1 space
Montgomery County Planning ~oad environmental 1egulations far more

restrictive than elsewhere in the County and applicable only in the Ten
Mile Creek area
Contemplated changes by Montgomery County Depattnent of Permitting
Services to tl~e stormwater management regulations and sediment and
erosion control regulations wl~icll will further restrict development."
Harris noted that "[a]s a result of these actions ...nearly 80% of the area within tl~e
Ten Mile Creek drainage basin either retains its existing zoning or is upzoned. Pulte, on
the other Hand, faces a huge downzoning and additional development restrictions far
more severe t11an other properties in the same drainage area."
75.
On July 31, 2014, because of a technical change made by the County Council,
MNCPPC re-adopted the 2014 Master Plan Amendment.
76.
On August 4, 2014, the Clarksburg West Environmental Overlay Zone Text

Amendment took effect as a part of the County Zoning Ordinance.
77.
On September 8, 2014, the County Council's Planning, Housing and Economic

Development ("PHED") Committee in a work session recommended to the Council
approval of a draft resolution creating the Ten Mile Creek Special Protection Area
("SPA") in Clarksburg. In an extraordinary break with common procedure, the PHED
Committee held the work session pt~io~ to the Council holding the public hearing on
52
tfle ve~y same matte, which is contrary to normal procedural practice of Che Council,
being to hold a public Gearing on a matCer, then to coilducf the applicable committee
work session in order to review the record made and to make a recommendation to
the full Council.
78.
On September 8, 2014, the PHED GotTlmittee in a work session also recommended

approval of the draft Clarksburg Sectional Map Amendment(SMA).
79.
On September 9, 2014, Robert ~-Barris, legal counsel for Pulte, submitted a fetter to
Craig Rice, President of the Montgomery County Council, to object to the Council's
imminent imposition of the SMA and SPA on the subject property. The letter noted
that throughout the 2014 A~l~endment process, Pulte had opposed provisions that
would result in a major downzoning of the subject property. Harris poinCed out that
"[a] substantial portion of [Pulte's] testimony, as documented through extensive
reports, testimony and submittal materials prepared by engineers and water protection
consultants engaged by Pulte, den~onsCrated that the underlying support for the down
zoning and eestrictions on developi~lent in the Ten Mile Creek are not factually
supported."
80.
On September 16, 2014, the Coutlty Council, sitting as the District Council, enacted
the SMA applicable to Clarksburg. The SMA pub into effect the zoning changes
directed by the 2014 Anendtnent. First, the SMA downzoned the subject property
from its residential classification (RE-1/TDR-2) to at1 agricultural classification
(RNC). Second, the SMA imposed the Clarksburg West Environmental Overlay Zone
on several private poperties: prinarily upon the subject property, as well as a fe~
small houses nearby effectively unaffected by the overlay zone. The subjecC property
53
is thus the only developable property impacted by the coil~bined downzonin~ al~d
imposition of the Clarksburg West Environmental Overlay Zone.
81.
The SMA Opinion adopted by the Council and attached to the September 16, 2014
Council's staff nemo justifying the downzoning of Che subject property a~1d
imposition of the extraordinary 6 percent impervious cap via the Clarksburg West
Environmental Overlay Zone, all dieected by the 2014 Master Pla~1 Amendment,
admits that fhe Council brought in federal, state, and local government ~itnesses to
give "testimony" to the Council at its Master Plan Amendment ~a~o~~k sessions despite
the fact thati the Council had closed the public hearing eecord on the Diaft
Anlendnlent back on December 20, 2013.
82.
Also on September 16, 201 ~, the County Council enacted the Ten Mile Creek Special
Protection Area. The SPA imposes additional requiremenCs on Pulte to prepare a
water quality plan addressing numerous performance goals for any development of
the subject property.
83.
The cul~lulative effect of the severe and interrelated planning, zoning, and regula~oty
restrictions noted above and adopted by Defendants by abusing their planning and
zoning powers effectively means that Pulte can develop i10 more Yhan 17 pefcent of
its property, apptoxitnately 93 of its appoximately 541 acres. Pulte has suffered a1d
is suffering substantial damages and iljury as a result of Defendants' unconstitutional
actions.
COUNTI
VIOLATION OF SUBSTANTIVE DUE PROCESS RIGHTS

GUARANTEED BY THE MARYLAND AND UNITED STATES CONSTITUTIONS
AND THE CIVIL RIGHTS ACT OF 1871 (42 U.S.C. 1983)
84.
Plaintiffs incorporate by reference paragraphs 1-83 as if fially set forth herein.
54
85.
The actions of Defendant County in refusing to act upon the pending and complete
Water and Sewer Category Chage Request since May 12, 2009, thereby preventing
Plaintiffs' use and development of tl~e subject property, despite Plaintiffs' compliance
with all State and County requirements and despite Plaintiffs' compliance with the
1994 Clarksburg Master Plan and RE-1/TDR-2 zone, were and are ma~lifestly
arbitrary, capricious, or unreasonable, bearing no substantial relationship to public
health, safety, or general welfare, and, as a result, have denied Plaintiffs any
meaningfiil due process of law, amounting to an unfair- abuse of power and a violation
of Plaintiffs' rights in substatltive due process of law.
86.
In piling restriction upon restriction - najor downzoning fiom a residenCial to

agricultural classification, imposing a radically low impervious cap of 6 percent,
imposing a radically high open space requirement of SO percent, imposing a parkland
dedication requirement, requiring approval of an extraordinary conservation
management plan in addition to the standard preliminary atld site plans prior to
development of the subject property, and imposing other stringent development
requirements concerning stream valley buffers, forestation, steep slopes, and
ephemeral streams, cu~zuilatively applicable to no other property in the Ten Mile
Creek watershed of Clarksburg Defendants abused their planning, zoning, and
development regulation powers to single out and target Plainfif'fs for "special
treatment," even though Che evidence of record shows that the water quality of Ten
Mile Creek is good today and ~vottld be good tomorrow (and very possibly improved)
were Pulte's development allowed to proceed as planned under the 1994 MasCer Plan
55
and existing environmental laws. Accordingly, Defendants' actions ar-e manifestly

atbi~eary, capricious, or unreasonable.
87.
Defendants' planning, zoning, and developnlenY regulation actions are manifesCly

abitrary, capricious, or unreasonable because they are not based on any demonstrated
environmental harm from Pulte's planned land use called for in the 1994 Master Plan
and because Defendants ignored the evidence of record put before Defendants by
Plaintiffs. Defendants' actions regarditlg Ten Mile Ceek ignore the Master Plan's
directive to "draw upon the standards established by Federal, State, and County laws
and regulations,"(1994 Master Plan at 199), and are therefore arbitrary, capricious, or'
unreasonable.
88.
Defendants' actions are arbitrary, capricious, or unreasonable because they fail to

consider i1ew, improved technologies and recent regulatory requirements. DefeZdants
have ignored Maryland's own requireil~ent that developers use ESD measures and
other state-of-the-att water quality protection measures for land development Chat
would be used on Plaintiffs' property as Plaintiffs explained in their submitCafs to
Defendants' hearing records on the Draft Master Plan Amendment, which submittals
were ignored.
89.
Defendants' actions as applied to Plaintiffs were not an exercise of judgment on

proper land use planning and zoning guided by legal standards and scientific facts.
90.
Defendants' actions, which were nod based on the public hearing record, to prevent
reasonable use and development of Che subject property were and are arbitrary,
capricious, or unreasonable.
56
91.
Defendants' actions Have further violated Plaintiffs' substantive due process rights by
illegally thwarting action on Plaintiffs' properly filed, long-pending Water and Sewer
Category Change Request and by iin~osing singular, severe development restrictions
and exactions, akin to spot zoning, known by Defendants to make fhe planned
development of the subject pf-operty economically infeasible, all in order to keep the
subject property from being used and developed.
92.
The actions of Defendants have deprived Plaintiffs of their right to substantive due
process of law in violation of the Fifth and Fourteenth Amendments of the Ulited
States Constitution as well as 42 U.S.C. 1983 a~~d Article 24 of the Declaration of
Rights of the ConsCitution of Maryland.
93.
At all tithes, Defendants and their officials have acted under color of State law.
94.
As a direct and proximate result of Defendants' actions, Plaintiffs have suffered

substantial damages in the amount of $86 il~illion or an amount to be determined at
trial. Damages continue to accrue.
COUNT II
VIOLATION OF EQUAL PROTECTION RIGHTS GUARANTEED BY
THE MARYLAND AND UNITED STATES CONSTITUTIONS
95.
Plaintiffs incorporate by reference paragraphs 1-94 as if fully set forth herein.
96.
Defendants, in applying a radically low 6 percent impervious cap on the subjecC

property while applyi~lg a 15 percent impervious cap on other similar private
properties to be developed in the same Ten Mile Creek watershed of Clarksburg,
have, through their planning, zoning, and development regulation powers,
intentionally and irrationally targeted and treated Plaintiffs and the subject property
57
differently fiom similarly situated properties, with no rational relationship to a

legitimate interest demonstrated, denying Plaintiffs equal protection of tl~e law.
97.
In piling restriction upon resteiction -major downzoning from a residential to

agricultural classification, ii~~posing a radically low impervious cap of 6 percent,
ii~~posing a radically high open space requirement of 80 percent, imposing a parkland
dedication requirement, and imposing other stringent development requirements
concerning stream valley buffers, forestation, steep slopes, and ephemeral streams,
cumulatively applicable to no other property in the Ten Mile Creek watershed of
Clarksburg Defendants have, through their planning, zoning, and develop~7~ent
regulation powers, intentionally and irratio~7ally targeted aild treated Plaintiffs and the
subject property differently from similarly situated properties, pith no rational
relationship to a legitimate interest demonstrated, denying Plaintiffs equal protection
of the law.
98.
Defendants, in requiring Plaintiffs to dedicate as public parkland to MNCPPC and

otherwise commit to non-use of large portions of the subject property, developmental
restrictions applicable to no other property in the same Ten Mile Creek watershed but
the subject property, have intentionally and irrationally treated Plaintiffs and tfle
subject property differently from similarly situated properties, with no rational
relationship to a legitinate inteest demonstrated, detlyin~ Plaintiffs equal protection
of Ehe law.
99.
Defendants, in imposing a radically high open space requirement of 80 percent on the

subject property,
applicable to no other property in the wine Ten Mile Creek
58
watershed but the subject property, have intentionally and irrationally treated
Plaintiffs and tl~e subject property differently from similarly situated properties, with
no rational relationship to a legitimate interest demonstrated, denying Plaintiffs equal
protection of the law.
100. Defendants, in requiring Plaintiffs to have approved an extraordinary conservation

management plan for areas on the subject property Chat are neithe dedicated to
MNCPPC for parkland nor placed in a rural open space easement prior to
development, whe no other developable property in the same Ten Mile Creek
watershed but the subject property was so targeted and treated by Defendants' 2014
Amendment, have intentionally and irrationally treated Plaintiffs and the subject
property differently from similarly situated properties, with no rational relationship to
a legitin7ate interest demonstrated, denying Plaintiffs equal protection of the law.
101. Defendants, in doumzoning Che subject property from a residential to an agricultural

zone, when no other developable property in the same Ten Mile Creek watershed but
the subject property was so targeted and treated by Defendants' 2014 Amendment
and subsequent rezoning action, have intentionally and it~rational(y treated Plaif~tiffs
and the subject property differenCly from siulilat-ly situated propefies, with no
rational relationship to a legitimate interest demonstrated, denying Plaintiffs equal
protection of the law.
102. The actions of Defendants have denied Plaintiffs' right to equal protection of the law
as guaranteed by the FourCeenth Amendment of the United States ConstituCion as well
f.S!]
as 42 U.S.C. ~ 1983 a~ld Article 24 of tl~e Declaration of Rights of the Constitution of

Mar}'land.
103. At all times, Defendants and their officials have acted under color of State la~.
104. As a direct aid proXimate result of Defendants' actions, Plaintiffs have suffered
substantial damage in the amount of $86 million or an amount to be determined at
COUNT III
TAKING FOR PUBLIC USE WITHOUT JUST COMPENSATION IN
VIOLATION OF THE MARYLAND CONSTITUTION; AND ALTERNATIVELY,
UNDER THE UNITED STATES CONSTITUTION
105. Plaintiffs incorporate by reference paragraphs 1-104 as if fully set therein.
106. Defendants' multi-years actions in delaying and preventing use and development of
the subjecC property pursuant to the 1994 Master Plan and RE-'1/TDR-2 zoning have
denied Plaintiffs economically betleficial use of t11e subject properry resulting in a
faking of private property for public use without just compensation in violation of
Article III, Section 40 of the Constitution of Maryland.
107. Defendants' indefinite refizsal to act upon Plaintiffs' properly filed Water and Sewer
Category Change RequesC application since May 12, 2009 has effected a de facto
moratorium on the economically beneficial use of the subject property, and also
makes futile the holding of any heariflg by Che Planning Board on any development
plan Pulte might subnit, all in violation of Article III, Section 40 of the Constitution
of Maryland,for which just co~~~pensation is due for Che taking.
60
108. Defendants' planning, zoning, and developn~eilt regulation actions have interfered
with Plaintiffs' distinct investment-backed expectations in the subject property
exhibited by ifs investment of $86 million in the subject property in good faith
reliance on Defendants' 1994 Master Plan, the RE-1/TDR-2 zone affixed to the
subject property by Defendants, and Defendants' TDR policies, resulting in a taking
of private property for public use without just compensation in violation of Article III,
Section 40 of the Constitution of Maryland.
109. Defendants' actions in imposing a wide range of severe development conditions a~d
exactions on the subject property, inchidinb, but not limited to, preventing watet~ and
sewer service, a downzoning, a1 80 percent open space requirement, a parkland
dedication requirement, a conservation management plan requirement, and a 6
percent impervious cap, theough the dictates of the 2014 Master Plan Amendment,
RNC zone, Clarksburg West Environmental Overlay Zone, Ten Mile Creek Special
Protection Area, and amended Environulenta( Guidelines, effect a taking of private
property for public use without just compensation.
110. At all tunes, Defendants and their officials have acted under color of State la~i~.
111. Pursuant to San Remo v. Safi F~~ancisco, 545 U.S. 323 (2005), should just
compensation under state law be denied Plaintiffs for a taking in this case, in the
alternative, Plaintiffs claim that denial of just compensation would violate the Fifth
Amendment of the U.S. Constitution and 42 U.S.C. 1983.
61
COUNTIV
VIOLATION OF PROCEDURAL DUE PROCESS RIGHTS GUARANTEED BY THE
MARYLAND AND UNITED STATES CONSTITUTIONS
112. Plaintiffs incorporate by reference paragraphs 1-111 as if fully set forth herein.
113. The County's actions were and are arbitrary, capricious, or unreasonable, violate
basic principles of fairness amotiitlting to a abuse of power, and deprive Pulfe of a
substantial interest in property because, having closed the public hearing record on
fhe Draft Master Plan Amendment on December 20, 2013, the County Council, in its
post-hearing "work sessions" that were ostensibly conducCed to review the public
hearing record, instead used them Co solicit extensive new testimo~ly fion1 a variety of
governmental witnesses whose grossly ill-informed assertions and speculations
directly and adversely affected the subject property. This extraordi~lary procedure
took place during seven lengthy Council Joint Con~miftee work sessions and the full
Council's sole work session. As a result of this effectively rigged process, the County
relied upon unsubstantiated, error-filled claims by those new witnesses wl~o ~veie
specifically solicited by tl~e County to testify at its work sessions, resulting in a 2014
Amendment and its subsequent, derivative zoning and regulatory actions premised
upon grossly erroneous conclusions as to the subject property.
114. The County's acCions were and are arbitrary, capricious, or unreasonable, in violation
of procedu~al due process, because the Council's PHED Co~l~mittee hook up and
approved the draft resolution (soon thereafter approved by the Council) creating the
Ten Mile Creek Special Protection Area ("SPA") prior to the Council holding the
public hearing on the very same SPA proposal. Phis e~traordinaiy maneuver turned
b2
Council procedural practice on its head, the normal procedure being for Council to
hold a public hearing on a subject, then the applicable committee holds a work
session in oder to review the record made and make a recommendation to the full
Council.
115. The County's actions were and are arbitrary, capricious, or ureasonable, in violation
of piocedural due process, because the 2014 Amendment is based o~1 a Council
approval regarding the subject property that is so demonstrably different from the
Planning Board Draft Master Plan, on which public testimony was taken by the
Council at its December 2013 hearing, that it is, in effecE, a meaningfi~l(y different
Master Plan,
ll6. The actios of Che County have deprived Plaintiffs of their right to procedural due
process in violation of the Fifth and Fourteenth Anlendinents of the United Stakes
ConsCitution and Article 2A of the Declaration of Rights of the Constitution of
Maryland.
117. At all tinges, the County and its officials have acted under color of State law.
l 18. As a direct and proximate result of tl~e County's actions, PIai~ltiffs have suffered
substantial daiTlages in the amount of $86 ~1~illion or are amount to be determined at
63
COUNT V
VIOLATION OF ARTICLE 19 OF THE MARYLAND
CONSTITUTION GUARANTEEING A RIGHT TO A REMEDY
FOR INJURY TO ONE'S PROPERTY
1 19. Plaintiffs incorporate by reference paragraphs 1-1 18 as if fully set forth herein.
120. The actions of Defenda~~ts in refiising to act upon the properly filed Water and Sewei
Category Change Request applicatio~l since May 12, 2009, Cl~ereby prevenfiiig
Plaintiffs' use and development of the subject property, despiCe Plaintiffs' co~pliance
with all State and County requirements and despite Plaintiffs' compliance with the
1994 Clarksburg Master Plan~and RE-1/TDR-2 zone, have injured Plaintiffs such that
they are entitled to appropriate remedy to redress their injury under Article 19 of the
Maryland Declaratio of Rights.
121. Defenda~lts' cumulative planning, zoning, and development regulation actions lave
injured Plaintiffs because Pulte can develop no more khan 93 of its approximately 541
acres such that it is entitled to appropriate remedy to redress its injury under Article
19 of the Maryland Declaration of Rights.
122. In singling out the subject property to pile restriction upon restriction on iCs use
preventing water and sewer service, major downzoning fi-oT~ a residential to
agricultural classification, imposing a radically low impervious cap of 6 percent,
imposing ~n onerous open space requirenent of 80 percent, imposing a confiscatory
parkland dedication requirement, requiring approval of an extraordinary conservation
~~aagement plan in addition to the standard preliminary and site plans prior to any
development of the subject property, and imposing other stringent development
requirements concerning sfrean~ valley buffers, forestation, steep slopes, and
ephemeral streams, cumulatively applicable to no other property in the Ten Mile
64
Creek watershed of Clarksburg Defendants have abused their planing, zoning, and
development t-egulatory powers to target Plaintiffs for "special treatment," even
though the evidence of record shows that the water quality of Ten Mile Creek is good
today and would be good tomorrow (and very possibly improved) were developtllent
by Pulte allowed to proceed as planned under the 1994 Master Plan and existing
environ~l~ental laws. Accordingly, Defendants' actions are arbitrary or unreasonable,
and injure atld continue to injure PlainCiffs.
123. Defendants' planning, zoning, and development regulation actions called for in the
2014 Amendment are unreasonable or illegal because they are not based on any
demonstrated environmental harm from Pulte's planned land use called for in the
1994 Master Plan and because Defendants ignored the evidence of record put before
Defendants by Plaintiffs. Defendants' actions regarding Ten Mile Creek ignore the
Master Plait's directive to "draw upon the sta~ldards established by Federal, State, and
County laws and regulations," (1994 Master Plan at 199), and unconstitutionally
injure Plaitltiffs' property.
124. Defencla1ts' actions have further violated Plaintiffs' right to redress for injury by
illegally thwaeting action on Plaintiffs' lawfully filed, years-pending Water and
Sewer Category Cflange Request application and by imposing singular, severe
development restrictions aild exactions, akin to spot zoning, known by Defendants to
make the planned development of the subject property economically infeasible, all in
order to keep Che subject property from being used and developed.
125. The actions of Defendants as manifested in their 2014 Amendment and its
subseq~~ent, deivative zoning and regulatory actions have depivccl Plaintiffs of their
65
right to a remedy Co redress injury done to their property by Defendants under Article
19 of the Declaration of Rights of the Constitution of Maryland.
126. As a direct and proximate result of Defendants' actions, done under color of law,
Plaintiffs have suffered substantial damages in the amount of $86 million or an
amounC to be determined at trial. Damages continue to accrue.
WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants.
Without limiting the generality of the foregoing:
A. Plaintiffs pray fos a declalatory judgment and decree that:
a. Defendants' use of flawed, incorrect information and speculation as Co

development of tl~e subject property while ignoring facts and data
provided by Plaintiffs and others was and is arbitrary, capricious, or
unreasonable;
b. Defendants' refusal to allow use and development of the subject property

despiCe Plaintiffs' co~~~pliance with the 1994 Master Pfan and residential
zoning classification was and is arbitrary, capricious, or nreasonable;
c. Defendants' refusal to allow use and development of the subject property

despite Plaintiffs' compliance with all Federal, State, and County laws and
regulations was and is arbitrary, capricious, or unreasonable;
66
d. Defendants' years-long indefinite delay in refusing to act on Plaintiffs'

pending Water and Sewer Category Change Request application is
arbitrary, capricious, or unreasonable;
e. Defendants' imposition of unnecessary, severe development conditions

and exactions on the subject property that render its development
economically i~lfeasible and do not substantially advance legitimate state
interests are arbitrary, capricious, or unreasonable;
f. Defendants' improper, nopublic hearing record actions to deny

economically viable use of the subject property was and is arbitrary,
capricious, or unreasonable;
g. Defendants have deprived Plaintiffs of their right to substantive due

process of law as guaranteed by the Fifth and FourCeenth Amendments of
the United States Constitution and Article 24 of the Declaratio of Rights
of the Constitution of Maryland;
h. Defendants' imposition of severe development restrictions and exactions

on the subject property unlike those imposed on the other developable
private properties in tl~e same watershed has Created Plaintiffs and the
subject property differe~tly From similarly situaCed properties with Flo
rational relationship to a legitimate interest demonstrated, denying
Plaintiffs' right to equal protectio of the laws as guaranteed by the
Fourtieenth Amend~l~ent of the United States Constitution and Article 24 of
the Declaratio~l of Rights of the Constitution of Maryland;
67
i.
Defendants' refusal to allow Plaintiffs economically beneficial use of the

subject property has effected a taking of Plaintiffs' property for public use
without just compensation in violation of Article III, Section 40 of the
Maryla~ld Constitution; and pursuant to San Remo v. San T~~ancisco, 545
U.S. 323 (2005), should just compensation under state law be denied
Plaintiffs for a taking in this case, in the alternative, PlainCiffs claim that
denial of just compensation would violate the Fifth Amendment of the
U.S. Constitution and 42 U.S.C. ~ 1983;
j. Defendants' interference with Plaintiffs' distinct investment-backed

expectations has effected a taking of Plaintiffs' property for public use
without just compensation ii1 violation of Article III, Section 40 of the
Maryland Constitution; and pursuant to San Remo v. San FrcrncTsco, 545
U.S. 323 (2005), should just compensation under state law be denied
Plaintiffs for a taking in this case, in the alternative, Plaintiffs claim that
denial of just compensation would violate the Fiftll Amendment of the
U.S. Constitution and 42 U.S.C. 1983;
k. Defendants' refusal to act upon Plaintiffs' years-long pending, properly

filed Water and Sewer Category Change Request application has rendered
a cuefacto moratorium on the use of the subject property and thus a taking
fo public use .without just compensation, and also slakes futile the
holding of a Planning Board Tearing on any development plan Plaintiffs
iT~ight submit, all in violation of Article III, Section 40 of the Constitution
of Maryland, for which just compensation is due; and pursuant to ,San
68
Remo v. Sun I'rcrf~cisco, 545 U.S. 323 (2005), should just compensation
under state la~i~ be denied Plaintiffs for a taking in this case, in the
alternative, Plaintiffs claittl that denial ofjust compe~lsation would violate
the Fifth Amendment of Che U.S. Constitution and 42 U.S.C. 1983;
1.
Defendant County's conduct in the running of its Master Plan Amendme~lt

work sessions by soliciting new (and deeply flawed) testi~~~ony from new,
governmental witnesses after the closing of tl~e public hearing record has
denied Plaintiffs' right to procedural due process as guaranteed by the
fifth and Fourteenth Amendments of the United States Constitution and
Article 24 of the Declaration of Rights of the Constitution of Maryland;
m. Defendants have deprived PlainCiffs of their iighC to appropriate and jusC

remedies for Defendants' injury to Plaintiffs' property in violation of
Article 19 of the Declaratiol~ of Rights of the Corlstifution of Maryland;
n. The ~er~T~s of tl~e ?014 Master Plan Amendment as applicable to the

subject property, including the subseq~~ent and derivative zoning actions,
Special
Protection
Area
eteation, and
Environmental
Guidelines
amendmenC, are null and void and of no effect.
B. Plaintiffs pray for an injunction restraining Defendants from applying tl~e 2014
Master Plan Amendment and its subsequent and derivative zoning actions,
Special Protection Area dictates, and Environmental Guidelines amendnlenC to the
subject property.
69
C. Plaintiffs pray for a writ of mandamus requiring Defendants to reinstate

application of the 1994 Master Plan and its associated zoning to the subject
property.
D. Plaintiffs pray that the Court award just compensation for Plaintiffs against
Defendants for the taking of the subject property for public use from the date of
taking to the date the judgment is satisfied.
E. Plaintiffs pray for damages in aceofdance with 42 U.S.C. ~ 1983.
F. Plaintiffs pray for damages in accordance with Articles 19 and 24 of the Maryland
Constitution.
G. Plaintiffs pray that costs be taxed against Defendants, that Plaintiffs recover their
reasonable costs and attorney fees pursuant to 42 U.S.C. ~ 1988, and for such
further or alCernative relief as this Court deems just aild proper.
70
Respectfully submitted,
.'~
Dated: November
, 2014
.~~ ~_" ` ,' 1 ~'~a`.~
f
.i ~ ~"G ~ ~~ ~ ,tl~`~ ~,
Gus Bauman
Fred Wagner (to be adn7itted pi~o l~nc vice)
Evynn Overton
Gayatri Patel
BEVERIDGE &DIAMOND,P.C.
1350 I Street, N.W., Suite 700
Washington, D.C. 20005-3311
Tel:(202) 789-6000
Fax:(202) 789-6190
Email: ~bauman~~bdlaw.cot~l
Ewa i~ iernbdlaw.coln
eoverton(cr~bdlaw.com
~atel~cLbdlaw.com
Coz~snselfor Plaintiffs
71
SubjectProperty
OpenSpaceRequirement
ImperviousAreaLimit
EnvironmentalConstraints
EnvironmentalSettingforHistoricBuilding
NeighborhoodPark
540.56acres
80%oftract(432.45acres)
6%maximum
399.7acres
5acres
10acres
TOTALBUILDABLEAREA
93.1acres

Pulte $86M Complaint

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Pulte $86M Complaint

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IN MONTGOMERY COUNTY CIRCUIT COURT,MARYLAND

PULTE HOME CORPORATION AND SHILOH

MONTGOMERY COUNTY, MARYLAND

Second, Defendants have treated PulCe

Pulte, through its attorneys, further states:

FACTS COMMON TO ALL COUNTS

Application") (together, "Development

membership interests in Shiloh Farm Investments LLC in t11e amount of

Defendant Montgomery County, whose governing body is composed of the County

Defenda~lt MNCPPC, a bi-county agency that administers parks and planning in

The subject property consists of approximately 541 acres of undeveloped land in

1994 Clarksburg Master Plan and Rezonin

The 1994 Master Plan made recommendations to enable Clarksburg to develop as a

Baseline Monitoring: Be~ir~ning in July 1994, the County Department of

Community Building Defendant County issued 2,000 building permits in the

Eastside Best M~na~ement Practices (BMPs~Monitored and Evaluated: DEP

Genter/Newcut Road development and other similar developnents i~l

(1994 Master Plan at 197-99).

Pulte's Development Plan

I reliance on the Master Plan, on the County's agricultural preservation TDR

Meanwhile, on September 18, 2012, the County Council approved Subdivision

On December 20, 2012, Fulte subn~i~ted a request to the County DepartrTlent of

'`Sections 50-33 and 50-33A pcovide an express, informal pre application

Pulte's "Pre Application Concept Plan contains extensive information with

Mont~omely County Code and Chapter 19 of the Code of Montgomery

"The purpose of a Prelimi~~~ry Water Quality Plan is to enable early review of

No response to this letter was ever eceived.

Pulte's development plan is i1 "conformity with regulatory equirements,"

No response to this letter was ever received.

Pulte is "entitled to a timely and fair review of its application under

No response to this letter was ever received.

New Storu~water Management Requirements

In 2007, the State of Maryland enacted significant changes to its Stormwater

In 2008, following Maryland's Stormwater Management AcC of 2007, Montgomery

In a report dated November 9, 2010, consultant Biohabitats, Inc., in collaboratio

"The ESD approach to development, redevelopment and retrofitting is

"ESD is a comp~ehensive design strategy for maintaining predevelopinent

2014 Master Plan Amendment and Downzonin~; and Related Actions

The letter informed

MNCPPC had no basis to amend the Master Plan "based on a variety of

but also acquired fhe TDRs necessary for its developtnen~,

consistent with the Master Plan recommendations and zoning, at a

No response to this letter was ever received.

Puke had "invested substantially" in the subject property '`based on the

sewer service" and that it possessed "certain constitutional rights

No response to this letter was ever received.

"[A]s required by Maryland Stor~nwaCer Management Regulations and those

"[A]fter extensive engineering work,[P~alte] submitted a detailed Preliminary

No response to this letter was ever received.

"The stagi~lg ~~echanism[s] included in t11e Mister Plan (wet~e] intended fo

The Planning Board's possible recommended downzoning and possible

No response to this letter was ever received.

enviroilmen~al protection measures of tl~e Master Pla~l because of its "nearly

MNCPPC's consultants themselves "acknowledged that build-out [of

"Pulte's engineers and

scientists have provided

challenging multiple assumptions and conclusions offered by Staff and its

No response to this letter was ever received.

"Full compliance with ~i~ater quality and channel protection require~r~ents as

Geosyntec concluded that "[t]he study by the County's consultants, a joint

No response to this letter was ever received.

"[T]he Staff's and their Consultant's conclusions and recommendations

recommendations regarding supposedly

necessary down-zoning and/or unreasonably low iiYlpervious caps are based