A day care at the Oak Tree Landing community won a legal battle last week.
Little Proteges Early Learning Center, which has been operating at a clubhouse in the Prince Frederick community at 631 Burr Oak Court sometime after a certificate of occupancy was issued in Aug. 22, 2017, was required to obtain a special exception permit because it has more than 20 clients.
Carlton M. Green, a Prince George’s attorney who served as legal counsel to the Calvert County Board of Appeals for 13 years until he retired last August, said Tuesday that the developer of Oak Tree Landing was issued a certificate of occupancy for the clubhouse by mistake. He noted that a special exception permit was required because it was also being used as a daycare.
Relying on Green’s advice, the Calvert County Board of Appeals referred the case to the planning commission last May for review of two conditions related to final plat and site plan approval that the board required as part of the special exception permit process.
Oak Tree Landing Homeowners Association then filed a petition in circuit court contesting the planning commission referral. The association’s attorney, Denise Bowman, wrote that Green seemingly took issue with the word “exclusive” in a private lease agreement (between the homeowners’ association and Little Proteges) and said the planning commission must review the matter. She said Green ignored substantial evidence that it was a dual case, representing both the homeowners association and Little Proteges.
The board of appeals’ factual findings were based on private documents that state law prohibits a board of appeals from considering, she said. Those private documents included homeowners association bylaws, declaration of covenants, conditions and restrictions, and a private lease agreement between the association and Little Proteges.
The association took the legal position that Green “far exceeded the scope of his duties in advising the board of the law.” In addition, “the board not only continued to move the goal post ... but it also appears to have moved the goal post back and forth as it attempted to impose conditions outside its scope of authority.”
The association won a ruling from visiting Judge Michele Jaklitsch of Anne Arundel County on Jan. 8. The ruling told the board of appeals to remove the two conditions, which it did Feb. 6. According to the order, legal counsel for the defendant (board of appeals) was not present and took no position on the matter.
Green said that it is standard practice for the board of appeals to not argue such court petitions when there is no opposition from other parties.
In its petition, the association cited testimony from homeowners association President John Vasko that was given at an April 4, 2019 board of appeals meeting when he said that having Little Proteges use the clubhouse reduces homeowners association fees for Oak Tree Landing residents. The petition noted that letters of approval were signed by 92 of 149 homeowners. In addition, no one spoke in opposition to the permit at the board of appeals’ May 2, 2019 meeting.
The developer of the Oak Tree Landing community filed for a special exception permit on Oct. 19, 2018 — the petition states — and turned the property over to the homeowners association on Nov. 30, 2018. The association refiled the application on Jan. 25, 2019.
According to the petition, the association’s case was not heard at the board of appeals’ December 2018 meeting because of concerns regarding the final plat, and the board referred the case to the planning commission.
Green said that the plat didn’t include day care use, and added that the planning commission has jurisdiction to review plat amendments per county ordinance. “It was an open issue whether the change in use was an amendment to the plat,” he said.
Although day cares are regulated by the state, Green said no detailed site plan had been issued.
“It was not to give anybody a hard time, but just to make sure the regulations of the zoning ordinance were met,” he said.
In the petition, Bowman cited a Nov. 21, 2018 legal memorandum from John Mattingly of the Calvert County Attorney’s Office that said there was “no legal authority by which the matter could properly be considered by the planning commission.” Mattingly, who advises the planning commission, did not return a phone call for this story.
Little Proteges — whose main location is at 71 Armory Road — offers before and after school care for children at the Oak Tree Landing clubhouse from 6:30 to 9 a.m. and 4 to 6:30 p.m. Monday through Friday.