Ten Mile Creek still in danger: Judge Finds in Favor of Planning Board and Developer
Updated 10-10-2022
August 1 2022: Montgomery County Circuit Court Judge upheld the Montgomery Planning Commission's approval of the Pulte development plan in Ten Mile Creek's two most sensitive sub-areas.
August 30 2022: Friends of Ten Mile Creek filed an appeal of the Circuit Court decision.
Fall at Ten Mile Creek
In a hearing held on Monday August 1, 2022, Montgomery County Circuit Court Judge Stephen Salant found that a development “substantially conformed”, to the Ten Mile Creek master plan recommendations that were intended to protect the creek. In doing so, he found in favor of the Planning Board and developer, and against the Friends of Ten Mile Creek (FoTMC).
FoTMC had petitioned to strike down the Planning Board's approval of Pulte’s plan for 326 houses in the Ten Mile Creek watershed in Clarksburg. FoTMC was represented by a legal team from Keller & Heckman LLP. The legal team argued that the master plan limits development in Ten Mile Creek’s two most sensitive subwatersheds (LSTM 110/King Spring and LSTM 111/Shiloh Branch) to 6% impervious surface, in order to protect the creek. The Montgomery County Zoning Ordinance requires “substantial conformance” to the recommendations of the master plan; however, the Planning Board approved a development plan that would increase impervious surface far above that limit.
In response, Pulte and the Planning Board argued that the Planning Board has discretion in applying master plan recommendations, and that the development plan’s conformance to a maximum of 6% impervious surface in the entire area of the Pulte property was enough to satisfy the “substantial conformance” standard.
Judge Salant decided in favor of Pulte and the Planning Board, adding that clean water was not the issue before the court. Sylvia Tognetti, President of FoTMC, commented that the that the judge sidestepped the entire purpose of the Ten Mile Creek Limited Amendment to the Clarksburg Master Plan, to protect clean water, and said the organization plans to file an appeal.
FoTMC board member John Parrish observed, “The master plan specifically recommends impervious-surface limits of 6% in these two subwatersheds. The overlay zone specifically states that it’s intended to implement the recommendations in the master plan. So how can the Planning Board approve Pulte’s development plan, which will increase imperviousness in these two subwatersheds way over the 6% limit?”
Boyds resident and FoTMC board member Anne Cinque noted that “Ten Mile Creek is the cleanest of three tributaries that feed Little Seneca Reservoir, the greater D.C. region’s only close-by emergency back-up drinking water supply. So in order to protect this unique drinking water supply, we’ve got to protect Ten Mile Creek – and that means we must protect its most sensitive tributaries.”
Friends of Ten Mile Creek Board members and volunteers expressed deep appreciation to their legal team at Keller & Heckman and look forward to vigorously pursuing the appeal.
Update: An appeal was filed on August 30 2022 in the Maryland Court of Special Appeals.