After the Historic District Commission approved Washington College’s request to tear down the Armory, now rescinded, I filed a request under the Maryland Freedom of Information Act with the Town. I have now received documents from the Town and reviewed them.
I was particularly interested in the restrictive covenant on the Armory’s use for “college and/or university uses.” To remind the reader, this restrictive covenant was disclosed not by the Town or by Washington College but by concerned citizens doing their homework.
The Town documents reveal two important facts related to the College’s use of the Armory.
The restrictive covenant was not a surprise to the Town or the College. Town manager Bill Ingersoll, Town Zoning Administrator Kees de Mooy, and Washington College’s John Seidel have known about the restrictive covenant since it was created in 2012. Ingersoll called the covenant “this little hurtle” when he emailed de Mooy about it in early 2021.
Ingersoll sent the deed to Mayor David Foster in early 2022. Foster replied, “That looks pretty serious to me but maybe the lawyers for the college can still find a way around this.” Foster then sent the deed to Richard Grieves of Washington College, telling Ingersoll “Hopefully, he (Grieves) has already seen it and taken it into account but if he hasn’t….” (Ellipse in original)
Later de Mooy discussed the restrictive covenant with Seidel and Grieves in an August 2022 meeting.
So, the covenant was important enough for Ingersoll to raise to Foster, Foster to Grieves, and de Mooy to Seidel and Grieves, but no one told the Historic District Commission, the Town Council, or the public. Why?
Ingersoll also raised the second important fact. In the same 2022 email exchange with Foster, Ingersoll noted that the College had changed its plans for the Armory after the College received the property. Foster did not ask Ingersoll how the College’s plans had changed—not then and not ever as far as the Town documents show. But the documents do show how the College changed its plans, most notably from its 2013 Memorandum of Understanding (MOU) with the Historic District Commission.
Are the deed and the MOU important? Yes. Are they relevant to the decision about the demolition of the Armory? Yes.
The language of the restrictive covenant limits what the College can do with the Armory. It can must be used “solely” for “college and/or university uses.” The College is proposing to tear down the Armory and lease the land to a developer who will build and operate a luxury boutique hotel. Is that a permitted use under the covenant?
The answer is a legal question that can only be answered with a legal opinion. The Historic District Commission cannot make a rational decision about the Armory without knowing if what the College is asking for is legal.
At the November 7 Town Council meeting, Foster was quizzed about any legal opinion. He repeatedly stated he had been “told” that lawyers had approved the College’s plans, but he did not identify the lawyers, for whom they worked, or even who told him. Washington College’s Richard Grieves was in the audience. He spoke at length but offered no legal opinion obtained by the College.
No legal opinion has ever been provided to the public, the Historic District Commission, or the Town Council.
When pressed by one Council member, Foster said he would ask the Town attorney for an opinion. Hopefully, the Town’s legal opinion—and one from the College too–will be provided before the Historic District Commission takes up the Armory issue at its December 7 meeting.
But the inquiry does not end with the covenant.
When the Town transferred the Armory to the College in 2013, it asked for– and got–a specific set of promises in a Memorandum of Understanding (MOU). The MOU contains the College’s plan Ingersoll pointed out to Foster in January 2022.
The MOU is a legally binding document too. Like the deed, it has not made available to the public, the Historic District Commission, or the Town Council.
The MOU set out the conditions under which the Town was willing to transfer the Armory to the College and the College was willing to accept the transfer. If the Town’s Historic District Commission would approve the College’s plan to tear down two rear additions to the Armory, to add six or more windows in the rear wall of the Armory, and to construct a deck or substantial addition in the future at the rear of the building, then the College would take the Armory. That was the agreement. It is plain to see that what the College now proposes to do is radically different than this agreement.
Significantly, the MOU also stated that neither the College or the HDC could terminate, rescind, or otherwise cancel the MOU for 15 years. Yet, here we are just 10 years later with the College seeking to change the deal.
Is it legal for the College to try to change the deal now? That’s another question for the Town lawyer and for the College’s lawyer.
What is truly puzzling is how the College and its developer Hersha Hospitality Trust would proceed with their plans without legal opinions about the deed and the MOU. It defies belief that either would. So where are these legal opinions? Why hasn’t the College offered them? If they are supportive of the College’s plans, then why not make them public?