The first lease to the Fort Howard, Md., Department of Veterans Affairs property, for the development of a proposed veterans community - John D. Infantino's bogus Bayside at Fort Howard - on valuable Chesapeake Bay waterfront was terminated after Infantino did not do anything to make the project happen, but file a development plan. He purported that he needed to develop the property into 1,300 residential units, for it to be economically viable, but the land was zoned for 550 and many Ft. Howard area residents wanted it lowered to a more reasonable 350. Infantino did not try to have Baltimore County rezone the property for 1,300 homes. He submitted plans for 1,300 living units and "170,000 square feet of amenities and services", anyway.
What is copied below comes from court records when Infantino sued the United States (every American citizen) as a 'smoke screen' to cover his scams:
"FHSHA (Ft. Howard Senior Housing Associates) was required under the Lease to comply with County requirements or seek a modification of the requirements. Here, the government argues, it is undisputed that FHSHA never submitted a formal permit application to Baltimore County requesting approval for 1,300 units or otherwise asking the County to modify the zoning restrictions that limited to 550 the number of units that could be built at the Fort Howard site.
FHSHA next argues that its failure to construct the CBOC (Community Based Outpatient Clinic) xshould be excused because the parties were mutually mistaken regarding two facts underlying their Lease. First, FHSHA argues that the parties were mutually mistaken in their belief that the County would approve FHSHA's construction of 1,300 housing units at Fort Howard under the Lease. Second, FHSHA argues that the parties were mutually mistaken in their understanding that "Baltimore County [would] not have authority to issue permits but [would] be given [only] a courtesy review of site plans." Compl. ¶ 67.
The government argues that FHSHA was obligated to comply with Baltimore County density requirements and thus bore the risk of the County not approving the construction of 1,300 units at the Fort Howard site. In such circumstances, the government argues, FHSHA cannot rely on reformation of the Lease as a basis for finding that its failure to construct the CBOC was excused.
The court agrees with the government. As discussed above, although the Development Plan provided that FHSHA intended to build 1,300 units, the Lease expressly provided that the Lease, not the Development Plan, controlled and stated that the VA did not represent or warrant that the Fort Howard site would be suitable for any particular purpose. Def.'s App'x 54, Article 24.H. Thus, the Development Plan's statement that the proposed site was in keeping with Baltimore County's intent for the area is not relevant. Because, as discussed above, the Lease required FHSHA to comply with state and local requirements associated with the development and construction of the project, FHSHA was required to obtain county approval to build the full 1,300 units, and thus assumed the risk that it would not be able to obtain such approval when it signed the Lease. Accordingly, there was no mutual mistake. In such circumstances, the court finds that FHSHA cannot establish that it is legally entitled to reformation of the Lease.
As discussed above, the court agrees that the Lease required FHSHA to obtain Baltimore County's approval for the development of the property. If FHSHA knew that it would have to construct 1,300 units rather than 550 units to make the Lease viable, FHSHA was required at a minimum to try to get permission from the County to build more than 550 units. The undisputed facts show, however, that FHSHA never sought a variance from Baltimore County. To the contrary, FHSHA decided not to seek a variance, but instead sought only an exemption from local land use rules. See supra n. 15. A request for an exemption is not the same as seeking to comply with local land use requirements through the variance process or otherwise.
Because FHSHA bore the risk under the Lease for complying with Baltimore County's density requirements and failed to even attempt to comply with Baltimore County's zoning code, it cannot show that its failure to construct the CBOC should be excused because it could not finance the project. FHSHA simply failed to fulfill its obligations under the Lease. As such, the court finds that FHSHA's impossibility defense fails as a matter of law.16"
"5. The Development Plan
As described in Article 10.A.1 of the Lease, "Lessee has commenced and completed the Development Plan which sets forth Lessee's overall plans, including but not limited to planned Permitted Uses for the Parcels, for developing the Property into the Project pursuant to this Lease. . . ." Id. at 23, Article 10.A.1.3 The Development Plan includes, amongst other items, the obligation to construct 1,300 units—including 353 active senior units; 481 independent living units; 165 assisted living units; and 106 skilled nursing units—and 170,000 square feet of amenities and services. Id. at 98, 103.4 Pursuant to Article 4.A.3 of the Lease, FHSHA was required to develop the Property in accordance with the Development Plan. Id. at 10."
Court report copied from:
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