Board of Appeals upholds planning director on W.A. Fraser Farmstead Lot 3 subdivision

St. Mary's County Board of Appeals members voted 3–2 on Oct. 11, 2007, to uphold the Planning Director's approval of a minor subdivision that would divide Lot 3 of the W.A. Fraser Farmstead into additional five-acre lots.

The appeal, filed by Alexandra Way resident Mike Lammon, argued that a note recorded on the original subdivision plat (General Note 13) prohibited further subdivision of the farmstead lots until the private road serving the subdivision was upgraded and made public. Lammon told the board he and other neighbors had bought into what they understood to be an eight-lot, low-density development and that the plat note should be enforced as a recorded restriction.

The board heard testimony from several adjoining property owners, including Richard Surback and Cutler Fenwick, who described the private road as narrow with blind curves and said additional lots would increase traffic and safety risks. Property owner George Nussberger and his wife, Joan Nussberger, told the panel they had followed county staff guidance and had sought the subdivision approval after confirming with Planning and Zoning that the county's rules had changed since the original plat was recorded.

In its staff report Planning and Zoning explained that the original Fraser Farmstead plat was recorded in 1992 under prior subdivision regulations and that the county's current ordinance — adopted May 13, 2002 — changed how private roads and "farmstead" lots are counted. Land use staff told the board that under the current rules a private road may serve up to five lots under 15 acres and any number of farmstead lots (15 acres or larger). The department concluded the proposed subdivision of Lot 3 complied with current zoning and subdivision regulations and that the department could not deny the subdivision application solely based on the recorded plat note.

Lammon emphasized state and county legal provisions he said supported treating plat notes as having the force of law. He cited Maryland Code (Article 66B) language that restrictions on a plat "shall have the same force of law," and a St. Mary's County Subdivision Ordinance provision that recorded plats are not annulled by county ordinance, arguing the plat note should therefore govern.

Planning staff and a former planning employee present at the hearing said the note was placed on the plat to reflect the prior regulations (which limited private roads to no more than eight lots/dwellings) and to flag that the private road at the time was at its historical maximum. Staff told the board the note did not impose a perpetual bar on subdivision; instead it tied further subdivision to road upgrades. Staff also noted the applicants' subdivision application predates the county's Transfer of Development Rights (TDR) program and therefore is not subject to that new requirement.

After discussion the board member who made the motion to uphold the Planning Director's decision was Mr. Madensky; the motion was seconded by Mr. Callaway and carried by a 3–2 vote. The board instructed staff to prepare a written order reflecting the decision, to be signed within 60 days; a 30‑day appeal period to the Circuit Court follows the signing of that order.

Why it matters: The decision affirms the county's interpretation that a recorded plat note telling when further subdivision may occur does not automatically block subdivision under later-adopted zoning rules. Neighbors raised safety and neighborhood character concerns; staff emphasized continuity with how county regulations changed between the 1992 plat and the 2002 ordinance.

The board's order and any subsequent appeal will determine whether Lot 3 may be recorded and developed under the planning director's approval or whether additional conditions (including road upgrades or mitigation) will be required.

Details: The subject parcel is Lot 3 of the W.A. Fraser Farmstead (Tax Map 15, Block 19, Parcel 4), in the Rural Preservation District, Sixth Election District, about 800 feet north of the Friendship School Road intersection with Maryland 235. The farmstead is recorded as 15.839 acres. The original plat note (General Note 13) was recorded Dec. 28, 1992 (Plat Liber 37, Folio 52). The current county subdivision ordinance was adopted May 13, 2002.

The board's written order will be mailed to the parties once signed; parties have 30 days from the order date to seek review in the Circuit Court of St. Mary's County.