On November 10, Washington College filed its new application to demolish the Armory–this one 118 pages long. But nowhere in those 118 pages is a legal opinion from any lawyer blessing the College’s proposal to lease the property to a developer to build and manage a luxury boutique hotel. This is “the elephant in the room” which the College side-stepped in its first application and side-steps again this time.
The restrictive covenant in the deed plainly limits the use of the property to “college and/or university uses.” Do these “uses” include leasing the property to a private developer to build and manage a for profit luxury hotel on the site? Is this money-making use permitted? No one knows at this point.
The HDC cannot authorize an illegal use; it needs to know whether the proposed use is legal. If not, the application must be denied. If so, the HDC could still decline to find sufficient evidence that the Armory’s issues cannot be remediated, a conclusion not yet proven.
There are other legal issues which also must be addressed before the HDC
can make a decision. These are:
- Can the HDC demand to see the maintenance records for the Armory for the past 10 years? If the College failed to keep the sump pumps and dehumidifiers running, then the mold was inevitable. As one environmental expert told me, no sump pumps and no dehumidifiers turn the Armory into a greenhouse.
- Can the HDC demand that the College obtain three remediation estimates based on the Sussex Environmental report? There has not been any evidence offered as to the cost of remediation, just the cost of tearing down the Armory.
- Can the HDC demand to see the College financial records to prove that it cannot afford to remediate?
- If the HDC finds the College guilty of “demolition by neglect” because the College has failed to maintain the Armory during its decade of ownership, what recourses are available to the HDC? Can the HDC enforce the 2011 promise of then College President Mitchell Reiss to spend $3 million to restore the Armory and to assume liability for any environmental issues on the Armory property? Can the HDC deny the College’s application to demolish the Armory? Can the HDC demand the College clean up the Armory and do what it promised in the 2013 Memorandum of Understanding?
- Can the HDC enforce the provisions of Town Ordinance 93-13(A) and (B), which mandate that in a case of demolition by neglect, “the Commission shall attempt with the owner of the structure to formulate an economically feasible plan for the preservation of the site or structure.” Can the HDC pause this process so “The Commission shall have 90 days … to negotiate with the owner and other parties to find a means of preserving the site or structure.” Both of these provisions are mandatory, but may never have been enforced before now.
These are serious legal questions which must be addressed before the HDC can act. And the HDC must have its own, independent legal counsel. The duty of the HDC is to preserve historic buildings; the interest of those who favor tearing them down is not the same as that of the HDC.
The College wants to tear down the Armory and the Town Council has already approved doing so. Therefore, the HDC cannot rely on the College lawyer or the Town lawyer.
Under Maryland law, the HDC has the right to hire its own experts, including a lawyer to answer its legal questions, and have the applicant—that’s Washington College—pay for them.
An alternative is for the HDC to request a legal opinion from Maryland’s Attorney General. This is free but might take longer.
The HDC should immediately hire its own lawyer and hire its own environmental expert.
The HDC needs its own environmental expert to sort out the inconsistencies in the two environmental reports paid for by the College (one obtained only after the HDC rescinded its approval). The HDC—and the public it serves—deserve an unbiased assessment. And it is patently unfair to the HDC and the public for the applicant to use expert reports to support its application when there is no expert on the side of the HDC and the public to review and analyze those reports.
To repeat, The HDC should immediately hire its own lawyer and hire its own environmental expert. And send the bills to Washington College.