So far this year, Baltimore County Councilman David Marks (R, 5th) is delivering a master class on how to bend or break the rules intended to ensure that a Maryland county regulates land use and development in a fair and predictable manner and as free as possible from raw politics and the opportunity for outright corruption.

In fairness to Marks, he has had plenty of help from his colleagues on the county council, who have willingly participated in turning zoning and development approval into a political free-for-all governed by little more than the whims and fancies of the council member in whose district the property or project at issue is located.

Marks began in February with Bill 16-25, initially drafted to help a prominent Kingsville businessman extricate himself from a zoning violation and continue a commercial plumbing business on land zoned for rural and residential uses. He amended the bill to also allow a software development business on land with the same zoning without disclosing that the amendment was requested by Kenneth Holt, former secretary of the Maryland Department of Housing and Community Development and political ally of Marks.

It appears that the bill will have to survive a court challenge by neighbors that the bill was an unconstitutional “special law” that was “actually intended to benefit or burden a particular member or members of a class instead of an entire class.” If it ends up in court, my money is on the neighbors.

And if it does end up in court, the neighbors will be there alone. The position of People’s Counsel was added by the voters to the county charter in 1974 to protect the integrity of the zoning process and the product of that process, the county’s zoning maps.

The timing was no coincidence. 1974 was the year that former county executive Dale Anderson went to prison for extortion, conspiracy and tax crimes, the culmination of a period of Baltimore County history that taught residents that simply trusting elected officials to do the right thing was naive, and guardrails were necessary.

Unfortunately, the current People’s Counsel and her predecessor decided that the office lacks jurisdiction to challenge special laws enacted by the council under the guise of being “text amendments,” even if they result in unlawful modifications to the use of land as provided in the zoning maps.

I disagree with the decision and believe that it is just another example of a guardrail, an ostensible check on the abuse of power, becoming nothing more than an illusion in Baltimore County.

Resolution 50-25

Marks’ latest maneuver, Resolution 50-25, was a stunning example of how far he is willing to go to empower himself to make all zoning and other land use decisions within his district, first by arrogating to the council authority that it lacks under state and county law and then by exercising that authority himself through “councilmanic courtesy.”

Resolution 50-25 was based on Bill 54-25. As initially drafted, Bill 54-25 blatantly violated Section 602(e) of the County Charter, which confers on the county Board of Appeals the exclusive power to correct mistakes allegedly made by the council during the Comprehensive Zoning Map Process (CZMP), by trying to confer the authority on the council.

Marks amended Bill 54-25 after my op-ed in The Brew pointed out the violation. The amendments to the bill made some changes that supposedly fixed the problem (they didn’t) but also created a 50-day window before those changes took effect during which the council could correct alleged mistakes during the CZMP in the unlawful manner initially proposed by the bill. The council passed the bill as amended on September 15.

Did Marks and the rest of the council really believe that allowing the charter to be violated for only a short period of time made everything okay? Bill 54-25 basically purported to suspend the application of Section 602(e) of the charter for 50 days, which of course the council cannot do.

Marks took advantage of the bogus 50-day suspension of the law to introduce Resolution 50-10 to change the zoning classification assigned to three parcels of land in his district. He claimed that in each case the classification that resulted from the CZMP “was inadvertent or the result of the council member’s mistake or error of intent, or an error in the notification process to the property owner” as provided in Bill 54-25.

In other words, Marks may have simply changed his mind. If so, there’s nothing on the public record of Resolution 50-10 describing why he was persuaded to do so, and by whom. Just like there was nothing on the public record describing why he was persuaded to add the “Holt Amendment” to Bill 16-25, and by whom.

Resolution 50-10 was passed by unanimous vote on October 20. No council member asked a single question, just like with Bill 16-25.

Reform Rejected

As an aside, I have no doubt that the quadrennial CZMP is replete with mistakes of one sort or the other. It resembles a loosely organized zoning flea market more than an orderly process to conform the uses of land to a thoughtfully considered master plan that balances the many interests that must be balanced to allow the county as a whole to thrive.

The solution to the chaos is not giving the council even more unbridled discretion, it is reducing the frequency of the CZMP to correspond with the 10-year reviews of the county’s “comprehensive” (master) plan. It is a reform recommended not only by good government groups, but also by the county’s planning director.

The reform has been rejected by council members addicted to the power and more frequent opportunities for influence peddling offered by the current system.

Another Special Law

Next up for Marks is Bill 72-25, scheduled for a vote on November 3. Bill 72-25 is another special law crafted to affect one property and achieve one purpose: Stop the opening of a 24-hour Denny’s restaurant at The Shops at Perry Hall, a shopping center that’s already home to a 24-hour Wawa, a Valvoline and an Autobell Car Wash.

The bill would require the restaurant to be closed from 10 p.m. to 5 a.m. According to a representative of the owner of the shopping center, the owner had difficulty attracting another restaurant to the center’s restaurant pad. The site is already under lease to Denny’s, and the restriction would breach the terms of the lease.

The message to business owners: don’t rely on the law. Your success will depend on gaining favor with your local councilperson.

Restaurants are permitted at the center under current law without regard to their hours of operation.

The message that pulling the rug out from under the owner of the shopping center delivers to other persons considering investing in the county is clear:

If your investment involves zoning or development approval, don’t rely on the law. Your success will depend on gaining favor with your local councilperson.

Supporting Cast

Marks is on a roll this year but, once again, fairness to him dictates that I mention that he is hardly the only aficionado of special laws among council members.

Last month, Councilman Pat Young (D, 1st) introduced Bill 67-25 to rescue developer Steve Whalen from a zoning violation involving the outside storage of construction equipment.

That bill drew attention not only because Whalen has been a major campaign donor for Young, but also because Whalen was given probation before judgment in 2013 for using straw parties to funnel campaign contributions to Young’s predecessor, Tom Quirk.

The campaign contributions occurred during the time Whalen was in the process of obtaining Quirk’s support for a planned unit development in his district.

Bill 67-25 was passed at last Monday’s council meeting by unanimous vote and without discussion by the council – and despite testimony that Young ignored concerns from neighbors about traffic and noise.

A Mockery of Transparency

A commenter to a Brew article observed that Baltimore County government is a “train wreck.” If by that he meant that there is a consistent disregard for the procedural and other legal guardrails intended to make sure that it operates in an open, transparent and accountable manner, he is right.

The almost complete control that council members exercise over zoning decisions and development approval in their districts is unparalleled in the state. It has eroded the separation of legislative and executive powers in county government and rendered the county Department of Planning, and planning in general, almost irrelevant. It is gradually destroying the economic vitality of the county, including the ability to provide affordable housing for county residents.

Because the preoccupation with politically driven, ad-hoc decisionmaking and disdain for legal guardrails extends to both branches of county government, the county executive is as unlikely to try to rein in council members as they are to try to rein in her.

In 1974, county residents were faced with a county government riddled with good old-fashioned criminal corruption. Now, they are faced with a county government dominated by what a former New Jersey legislator dubbed “soft corruption.”

It occurs “when people who hold public office figure out how to game the system in ways that enrich them and their cronies without breaking the law” and includes actions motivated by a desire to accrue political power rather than to faithfully administer the law.

A culture of soft corruption can do just as much harm, if not more, than corruption of a criminal nature.

The culture of soft corruption has long existed in Baltimore County, and it’s getting worse, not better. That won’t change until voters insist that it changes.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.