Kimco Realty Corporation ("Kimco") proposed redevelopment of the Hickory Ridge Village Center is not dead yet.
On December 1, 2021, the Howard County Zoning Board (made up of the 5 members of the Howard County Council) voted to deny Kimco's proposal to redevelop the Hickory Ridge Village Center with new retail buildings, a public green, and a 230-unit apartment building with ground floor retail. A Decision and Order officially denying the petition was issued on July 18, 2022.
But now, during an August 3 meeting (agenda | meeting recording), the Zoning Board agreed to suspend deadlines and grant more time for Kimco to decide to either petition the Zoning Board to reconsider their decision or appeal the Zoning Board's decision to Howard County Circuit Court. Further, the Zoning Board set a date of Wednesday, September 28, 2022 to hold a hearing if Kimco petitions for reconsideration. Kimco has not actually petitioned for reconsideration (yet), but the Zoning Board has set aside this date and established certain timeline parameters seemingly in anticipation of receiving a reconsideration petition from Kimco.
This latest twist comes after it was revealed that more than 150 days have passed since Kimco submitted a public information request under the Maryland Public Information Act ("MPIA") for documentation of communication between parties in the case, and that such documentation has not yet been provided. During the August 3 Zoning Board meeting, Boardmembers Liz Walsh, David Yungmann, and Christiana Rigby all alluded to the Zoning Board being responsible for failing to respond to the MPIA request in a timely manner and indicated that such documentation should be provided shortly. Kimco has asserted in a motion to the Zoning Board that such documentation is needed to inform their decision-making regarding whether to file an appeal and/or seek reconsideration of the Decision and Order, and asked the Zoning Board for a stay of the deadlines for appeal and also asked that the Zoning Board retain jurisdiction until the documents are provided and Kimco has a reasonable amount of time to review.
After considering this motion and discussing the policies and procedures regarding reconsideration, the Zoning Board voted to approve the following motion during their August 3 meeting:
Schedule a hearing for reconsideration for the evening of Wed 9/28 pending submission of a motion for reconsideration by petitioner (Kimco) . Three weeks before such date petitioner will set forth in writing its basis for this Board to reconsider the case and two weeks there after (a week before the hearing), any party wishing to be heard on the matter shall file a brief, written statement setting forth why. The Board will also stay all applicable deadlines.*
*This is a paraphrase of the motion from listening to the meeting. The exact wording may differ.
Opel Jones, Christiana Rigby, and David Yungmann voted to approve this motion. Liz Walsh voted to deny. District 4 Councilwoman Deb Jung was not present during this Zoning Board meeting. No explanation was provided for her absence.
A reconsideration hearing has a narrow focus. Section 2.405 of Zoning Board Rules of Procedure states that a D&O may be revised only if the party petitioning for reconsideration establishes fraud, substantial mistake, inadvertence or irregularity. So, Kimco will need to establish one of those criteria is met as part of any potential petition for reconsideration.
Zoning Board rules further prohibit the Zoning Board from taking action on any case during the ~5-month time period between a primary election and when a new Zoning Board is sworn after a general election. Council's Principal Attorney David Moore explained that the current zoning board could affirm a previous decision during this period, since that would not qualify as an action, but if the zoning board wishes to change its position, a new D&O couldn't be issued until after the new Council is sworn in in December 2022. The D&O issued on July 17, 2022 (the day before the primary election) was released on the very last day before the moratorium began.
My questions at this point include:
What, if anything, is in the MPIA documents that Kimco requested?
Will any of these documents provide justification for reconsidering or overturning the D&O?
What action, if any, will Kimco take upon receiving and reviewing this documentation?
Why did the Zoning Board even discuss reconsideration during this meeting and reserve a date for a reconsideration hearing if a reconsideration petition is still only a hypothetical at this point?
Why did it take so long for the Zoning Board to issue the D&O and respond to this MPIA documentation request?
Why was Deb Jung absent from the meeting?
Note: The author of this blog post, Jeremy Dommu, is a boardmember of the Hickory Ridge Community Association, which is a party to this case. While I have written this blog post as a purely factual article, any views or opinions, stated or implied, are my own and do not represent the views of the Hickory Ridge Community Association.