Will Calendar-Eating Litigation Sink Hogan Plan to Widen Beltway and I-270?

From the day in 2017 that Gov. Lawrence J. Hogan Jr. (R) announced plans to widen the Capital Beltway (I-495), local political leaders, planners and area residents have struggled to figure out where the state will find the land necessary to make good on the governor’s pledge to add four additional lanes.

The portion of the Beltway that winds through Montgomery County has always had a tortured design. It is so curvy, parts of it have been dubbed “the rollercoaster” by local traffic reporters.

And in both Montgomery and Prince George’s counties there are many neighborhoods where the wall that separates the Beltway from homes and businesses is already in close proximity to those structures. The same is true for parkland in the two counties.

While the state has backtracked from Hogan’s pre-election pledge that no homes or businesses will be taken to widen the Beltway and Interstate 270, his transportation secretary, Pete K. Rahn, has repeatedly said that the number of structures and the amount of parkland needed by the state is very small.

But if the state needs any land that the Maryland National Capital Park and Planning Commission controls, that gives the agency enormous leverage in the ongoing negotiations between the two sides.

At last week’s unusually tense public meeting between MNCPPC commissioners and top officials from the State Highway Administration, it was clear that state transportation officials have troves of information they have decided not to share with local planners as a matter of policy. As a result, leaders of the bi-county agency and their professional staff feel sidelined and disrespected.

As Maryland Matters reported on Monday, local planners — having been unable to obtain origin-and-destination data, stormwater management impacts, financial assumptions, toll rates and other data — are now openly contemplating filing a public information act request to get the files they’ve been seeking.

In response, Hogan’s communications director, Michael Ricci, signaled directly that the state feels no obligation to obtain concurrence from local planners.

In a statement, he said: “Maryland and Virginia’s leaders are moving forward in a bipartisan way to fix the entire Capital Beltway and do something about what is some of the worst traffic in the country. While we don’t need the [planning commission’s] backing for this regional project, we’re happy to keep talking with them and hearing their concerns, as we have numerous times.”

While both sides have said they intend to continue their dialogue and hope to reach common ground on Hogan’s plan, observers see the very real potential that the two sides will end up battling in court.

“We do not believe that they have any legal authority to take our land without our agreement. Period. Full stop,” said Montgomery County Planning Board Chairman Casey Anderson.

“This doesn’t require any sophisticated legal knowledge,” Anderson, an attorney, added. “The statute says they can take private property. It does not say they can take public land.”

Asked by a reporter if MDOT attorneys have given him advice on the scope of the state’s takings power, Rahn smiled broadly and responded, “No comment.”

If state transportation planners have devised a way to add four lanes to the Beltway without obtaining any locally-owned parkland, they have yet to indicate that publicly. More likely, people connected to the process say, the state will need at least some MNCPPC real estate.

That’s what makes the state’s strategy baffling to outside observers.

“I don’t know what the state is thinking. I really don’t,” said a veteran local land use attorney not directly involved in the process, granted anonymity to discuss the matter candidly.

“The state is being really stupid,” the lawyer added, “because they’re contemplating [invoking] imminent domain over public parkland which was federally funded. I don’t know know who’s advising them [but it appears] they’re willing to risk the project over this.”

In addition to the information local planners say they need to do their own, legally-required analysis of the state’s highway-widening plan, they also believe Rahn’s team has not done enough to create more transit opportunities, which they think can make better use of road capacity and ease environmental impacts.

Absent a breakthrough, few see local planners giving up any land to the state. That’s where the potential for litigation kicks in.

“It’ll be in court a minimum of two years” if the two sides end up in a legal battle, the outside attorney said.

Anderson, the vice chairman of the bi-county planning commission, said Hogan should accept Montgomery’s offer to convert the HOV lane on I-270 to an HOT lane and add two lanes to the Beltway instead of four.

“I’m not in the business of giving Gov. Hogan political advice,” Anderson said, “but It seems to me that it would be a huge victory for Larry Hogan if he got the county’s cooperation to move forward quickly on a modified version of his project that included significant new additions of road capacity but with relatively modest concessions on the need for a substantial transit component and removing the segment of the Beltway between the I-270 split and I-95. That would still look a whole lot like the project he originally proposed.”

He added, “I’ve told this to Pete Rahn and to [State Highway Administrator] Greg Slater repeatedly: Take ‘yes’ for an answer.”

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