December 22, 2017

Casey Anderson, Chairman

Montgomery County Planning Board
M-NCPPC
8787 Georgia Ave.
Silver Spring, MD 20910

Re: Request for Retraction of Lease Approval or Cancellation of Lease Concerning

T-Mobile Telecommunications Facility Lease at Blair Local Park

Chairman Anderson and Members of the Planning Board:

Please immediately retract the Board's November 16, 2017 approval of the T-Mobile
telecommunications facility lease or cancel that lease at Blair Local Park. As explained below, we are
concerned that the Planning Board inappropriately authorized: a) the attachment of a wireless antenna
facility to the Commission's stadium light pole (telecommunications monopole), b)the installation of
related ground equipment, and c)the related easements across Blair Local Park, and that d)this would
lead to the misappropriation of Commission funds.

As you will recall, we urged the Board to postpone its hearing on this matter until all relevant
documents, which had been requested through our MPIA requests, had been produced. We also urged
you to send the TFCG application back to the Tower Committee for a review that would comply with
COMCOR02.58E.Ol.OS(b),as is required by the Commission's Administrative Procedures.1 We asserted
that the Commission needed to first receive and evaluate public input as part of the its decision process,
and then submit input concerning the application at the scheduled Tower Committee (TFCG) meeting
via the Commission's designee (Greg Russ), to be in compliance with this Regulation. The Board ignored
our requests.

On Friday (12/15/17), after an excessive delay and multiple follow-ups to your staff, your Senior Counsel
Megan Chung produced the requested Nextel/Sprint lease documents that concerned the original
telecommunications facility at Blair Local Park.2 These documents helped us trace other documents.
When read in conjunction with the original telecommunications facility lease, these documents reveal
what appear to be significant past and present contraventions, and signal upcoming repetition of
inappropriate actions by the Commission.

1
Link to COMCOR02.58E.01.05(b)
http://library.amlegal.com/nxt/gateway.dll?f=jumplink$jumplinkx=Advanced$jumplink vpc=first$jumplink xsl=q
ueryl in k.xslSium plink sel=titl e; path ;content-type; home-title; item-
bookma rk$j um plink d=maryland(comcor)Sjumplink q=ffield%20folio-destination-
name:%2702.58E.02%27J$jumplink md=target-id=JD 02.58E.02; also See Section 4.9:
http://www.montgomeryplanningboard.org/agenda/2014/documents/ltem3Attach1-Policy Telecom-22714.pdf
2
Nextel/Sprint Leaseand LeaseTermination Documents
 2

A restrictive covenant has been recorded for Blair Local Park in the Land Records of Montgomery
County, Maryland. 3 This covenant, signed December 1995, designates that this park land was acquired
with State Program Open Space (POS) funds, and the covenant requires that the parcel must be used
only for its intended Project Open Space (POS) purpose. Also pertinent to the Commission's actions, past
and present, the covenant requires that the property must not be leased without the authorizations of
three specified State officials/signatories. No modifications to this covenant have been recorded with
the Land Records of Montgomery County, Maryland.

We have reviewed the State POS Manual to try to understand what the State has required of the
Commission, regarding Blair Local Park.4 The guidance in this manual, combined with the Lease,the
information in the Land Records, information presented by Commission staff at the recent November
16, 2017 hearing, and other information have resulted in our concerns that a variety of past and present
regulatory violations have transpired. And, since Commission staff characterized the subject T-Mobile
telecommunications facility as similar to the previous (Nextel/) Sprint facility at the site, we are
concerned that the deployment would result in additional regulatory violations at Blair Local Park.

1. Unauthorized and incompatible conversions. Per POS Manual,

Natural Resources Article §5-906(e)(7} states, Land acquired or developed under a State
grant from POSmay not be converted without written
approval of the Secretary of the Department of Natural Resources and the Secretary of
the Department of Budget and Management, and the
Secretary of the Department of Planningfrom outdoor public recreation or open space
use to any other use. Any conversion in land use may be
approved only after the local governing body replaces the land with land of at least
equivalent area and of equal recreation or open space value; and (8)(1} For any
conversion of land acquired or developed under a State grant from Program Open Space
as provided in paragraph (7) of this subsection, the appraised monetary value of the land
proposed for acquisition shall be equal to or greater than the appraised monetary value
of the land to be converted, under the proposed new use of the converted land.
And,
When the conversion is finalized, the applicant will submit a
copy of the recorded deed to the Director of POSfor document
recordation.

a. The Nextel/Sprint Lease,our review of Land Records, and information provided at the
November 16, 2017 hearing demonstrate that in April 1999, the Commission authorized
the following conversions of Blair Local Park without written approvals from the
required State signatories or following other POS land conversion processes:
• The construction of a telecommunications facility monopole that has
significantly greater girth and height than the existing stadium light pole
that it would replace (but which the Leasedeceptively calls as a "stadium
light pole" instead of a telecommunications monopole);
• The attachment of a telecommunications antenna array atop the
monopole;

4
9
Restrictive Covenant for Blair Local Park
Project Open Space Manual: http://dnr.maryland.gov/land/Documents/POS/localposmanual 2006.pdf
 3

• The attachment of ground-mounted equipment within an 800 square foot

area, surrounded by a fence; and
• Unspecified easements for the construction and ongoing maintenance of
telecommunications facilities on the property.
b. The Leasetermination document shows that in May 2015, the original Nextel/Sprint
Leasewas terminated. According to information provided by Commission Senior
Counsel Megan Chung and other staff at the November 16, 2017 hearing, all equipment
that was owned by Nextel/Sprint, including the antenna attachments and ground
equipment, was removed at the conclusion of the lease. However, ownership of the
(mono)pole had been conveyed to the Commission. So the monopole (which has never
been a POS authorized use), has remained at the park, where stadium lights are
attached to it.
c. On November 16, 2017, the Planning Board approved the subject
T-Mobile Leaseto recommission the monopole and authorized:
• The attachment of a telecommunications antenna array atop the
monopole;
• The attachment of ground-mounted equipment within a 200 square foot
area, surrounded by a fence; and
• Unspecified easements for the construction and ongoing maintenance of
telecommunications facilities on the property.

2. Untimely initial conversion. Per the POS Manual,

No request for a conversion of use will be considered
for a period of 5 years from the date of approval for
POS funding, except in extraordinary circumstances.
As previously stated, we have identified no requests for conversion authorization for the original
Nextel/Sprint lease in 1999. Furthermore, we are aware of no extraordinary circumstances that
would have warranted these conversions within the first 5 years after the approval of POS
funding.

3. Misappropriation. mismanagement. and improper oversight Leaserevenues. Per the POS

Manual,
All revenues generated from such approved interim
[or compatible] uses or management should be
reinvested in the project.

a. However, Commission budgets and financial reports do not clearly separate out Blair
Local Park telecommunications facilities lease revenues. And the Commission's budget
and financial reports do not clearly designate these funds as restricted to Blair Local
Park: not for the current Blair Local Park use; not for investment in future Local Blair
Park use. The Commission describes its Property Management Activities as:
Lease administration and property management
services for a diverse portfolio of rental property
including buildings, residences, equestrian facilities, agriculture, telecommunications,
and recreation.
 b. We are therefore concerned that the Board's November 16, 2017 approval of the T-
Mobile telecommunications facility lease implicitly reauthorizes these revenue
(mis)appropriation practices at Blair Local Park.

The POS documents that we have reviewed suggest that in order to qualify for POS acquisition funding,
the Commission demonstrated that the parcel's characteristics qualified it as a "local park." Thus, it was
hypocritical for Commission staff, post-POS funding, to argue during the recent hearing that this parcel
did not deserve treatment and status of a "local park." We found it furthermore outrageous that the
Commission's legal counsel would advise contorting of the plain-language meaning of the Commission's
Administrative Procedures governing Telecommunications facilities. Section 7.6(f), it being at the
conclusion of the document, and stating that Local Parks "shall not be considered for
5
telecommunications facilities sites," is firm and clear in its requirement.

We are concerned that the Commission has ignored State POS Regulations, County COMCOR
Regulations, and its own Administrative Procedures. We have therefore alerted the appropriate review,
investigative, and enforcement agencies and authorities. So, in addition to providing them a copy of this
letter, we have shared our concerns and asked them for their intervention and assistance. We look
forward to your prompt attention.

1000 La Grande Rd. 11644 Parsippany Terr.

Silver Spring, MD 20903 North Potomac, MD 20878
240.331.9155 301.237.9825

CC Carl Morgan, Montgomery County Liaison Officer, Program Open Space

Diane Schwartz-Jones, Director, Department of Permitting Services
Edward L. Blansitt Ill, Montgomery County Inspector General
Michael Morgan, Office of the Montgomery County Inspector General
Mark J. Belton, Secretary of the Maryland Department of Natural Resources
David R. Brinkley, Secretary of Budget and Management
Wendi W. Peters, Secretary, Maryland Department of Planning
Laura E. Johnson, CPA, Director, Office of Legislative Audits FiscalCompliance Audit Division
Jennifer L. Wazenski, Office of the Attorney General, Department of Natural Resources
Montgomery County Executive Ike Leggett
Montgomery County Council