Mark Ridenour: ACTA Board Member and Former Board Chairman, Miami University
Mark Ridenour graduated from Miami University in 1982 with a bachelor’s degree in finance. He began his career at National...
As cars zoom along Darnestown Road, drivers can glimpse the gently sloping pastures of historic Belward Farm, a wide swath of green in the middle of Montgomery County that has seen little change since the Civil War. Even as tract mansions, shopping centers, roads and office parks have sprouted nearby, Belward has endured, looking today much as it did in the 19th century. Not long ago, Belward Farm was home to an 80-head herd of black Angus cattle, two miniature horses and a donkey, whose owner, Elizabeth Beall Banks, was a feisty opponent of development.
Neighbors could look out their windows and see Banks tending her fences and watching over her farmhands.
Banks worried often about what would happen to the farm, originally purchased by her great-grandfather Ignatius Beall Ward in 1873. Her grandparents had reared eight children in the Victorian farmhouse, raising milk cows and cultivating corn and hay. Banks had lived on the farm since she was 12, having moved with her parents and brother and sister after a tornado destroyed their farm in Howard County.
Banks, who never married, returned to the farm after graduating from the teachers’ college at Towson, and inherited Belward in 1958. By then she was working as a teacher in Montgomery schools, for years in lower grades and eventually taking on the tough challenge of middle-schoolers, some with special needs.
She loved her job but loved her farm even more, family and friends said. When school was out, she’d pull on her overalls, head out on a tractor, a horse or, in her later years, her red and white pickup, and take care of whatever needed attention.
Belward Farm survived drought, encroaching suburbia and persistent attempts by the government and developers to acquire the land. Bit by bit, road widenings isolated the farm from its once-rural neighbors and chipped away at Banks’s holdings. What had been about 500 acres in the late 19th century was reduced to 138 acres. Still, Belward and Banks hung on.
Banks died at age 93 in 2005. And Belward may not survive much longer. Its fate is being decided this spring by Maryland’s highest court.
Johns Hopkins University and Montgomery County plan a $10 billion “science city” that could surround the farm with nearly 5 million square feet of commercial space. Banks’s heirs say this plan bears no resemblance to the small, bucolic research campus Banks thought she had been promised when she sold the land in 1989 at a cut rate to Hopkins. She had no intention of selling for any other reason to the university. Family members say Hopkins is acting more like the commercial developers Banks had rebuffed repeatedly. The family is mounting a legal challenge, so far without success.
Two lower courts have said Hopkins can move ahead with its plans. Now Banks’s heirs are making a last attempt to stop the project, to prove their claim that Hopkins is reneging on a deal.
The impact of the Belward Farm case could extend well beyond Hopkins and Montgomery. It is being closely watched by institutions that receive millions each year in charitable donations. Many receive donations with instructions attached, but would prefer to use the gifts for other purposes.
Banks’s heirs say her intentions were always clear: She did not want massive development, and she thought she had been promised a place of learning and research, not commerce. Hopkins says the university is keeping to the terms of the written deal, and any other representations that might have been made by university officials, or that the family thought were made, were never written into the sales contract and therefore don’t matter.
Now judges on Maryland’s Court of Appeals, 50 miles away in Annapolis, will have to decide: Is Hopkins playing by the rules? Was Elizabeth Banks betrayed?
Elizabeth Banks was something of a legend in her community.
She was, by many accounts, a sometimes cranky, sometimes quirky steward of the land. A stern taskmaster in the county public schools for 36 years, she was well loved by many of her students, who visited her often after she retired in 1967. When kids acted up, she wouldn’t bother with the principal’s office, but would march them to the pay phone and have them call their parents to report their misbehavior. Once a boy smugly told her she wouldn’t be able to reach his dad because he was a state trooper. Banks promptly had dispatchers track him down. The boy never misbehaved again.
Banks didn’t hide her opinions. During a major traffic mess in her neighborhood, she posted a 6-by-12-foot sign that helpfully provided phone numbers of county officials drivers could call to complain. “She wasn’t an easy person,” said former top aide to the County Council Merle Steiner, who got to know Banks in the 1980s and became a close friend as the county was eyeing Belward for development.
Another time, when members of the county planning board came onto her land, Banks ran them off with a shotgun.
“She had very strong feelings about many things,” recalled Steiner, who helped bring Banks and Hopkins together. “She did not want another housing development.”
Banks was a tree hugger. In the late 1990s, workers clearing property nearby that had once belonged to Banks started marking trees designated as shields for her land. She was immediately on the phone to Steiner, who drove the five miles from the council’s offices in Rockville to intervene. Steiner found a fearsome and furious Banks, standing in front of the trees, clinging to one.
Steiner was able to get the workers to back off. “I looked the guy square in the eye and said, ‘Why do these trees have to come down?’ ” Banks named one of her cows Merle in honor of Steiner. Many of the trees are still standing.
Banks flooded state and local officials with complaints when they began to appropriate parts of her land for new roads in anticipation of more development. Nevertheless, the roads proved to be the beginning of the end of her ownership of Belward. The county kept upping the ante, billing Banks for taxes related to the roadwork, even though she also was giving up acreage. At the time, her lawyer said this was just a way to pressure her to give up Belward. She went to court and lost.
She stood firm, an increasingly lonely voice: She said no to developers wanting to build more houses, no to the county government hoping to build an office park, no to businesses coveting her property in the heart of a boom.
Eventually, the tax bill for the roadwork grew to $1.5 million. Banks could not afford that and decided to sell. Hopkins already had a 36-acre campus, about a mile away, where Montgomery County was eagerly trying to lure life-science companies. But Hopkins and the county wanted more. University officials, with the help of Steiner and her boss, council member William Hanna (D), courted Banks for about two years.
They reached an agreement in 1989. She picked Hopkins because her family had received good medical treatment there and because Steiner and others had suggested that the university might some day cure cancer on Banks’s land. At every turn, said Banks’s nephew, Tim Newell, his aunt received assurances from everyone that Hopkins would protect her land. No one said the university planned to develop the property for business, Newell said.
The university paid Banks $5 million: a tenth of what she could have fetched on the commercial market. And that was fine with her. “She felt that she owed it to her family to really take care of the farm, that her parents had left this legacy and it was incumbent on her to protect this farm,” Steiner said. “She had a vision that this would be a low-key research campus.”
Hopkins built Banks a white ranch house behind the old farmhouse where she could live until she died.
Neighbors heard the news and were pleased. “When I first heard about it, I thought, ‘Oh, that is great, having a Hopkins campus there,” said Donna Baron, a neighbor. “I could not wait to see what they were doing.”
Before the deal was done, John Dearden, Hopkins’s director of the University Office of Sponsored Projects who was part of the team courting Banks, had written to colleagues: “Elizabeth resides on and runs the farm and has very strong opinions about the ultimate use of the property: she is adamantly opposed to residential and mostcommercial development. …
“Eventually, it was agreed that a wooded section of approximately 30 to 35 acres could be developed commercially by the University if the University would be willing to restrict the remainder … to ‘academic and related purposes.’ ” (A few years later, Hopkins donated the 30-acre parcel to Montgomery County, angering Banks, who had never wanted the county to get any part of Belward. It became the home for Human Genome Sciences.)
On the remaining 108 acres of Belward, the county approved in 1996 a development that would have low-rise buildings and 28 acres of open space spread among them. But no bulldozers came; nothing was built. Hopkins started rethinking its plans, according to the county planning agency.
Banks died in 2005. Three years later, Hopkins and the county unveiled their ambitious proposal for the “science city,” saying they wanted to triple the density from the 1.8 million square feet of commercial space the county had approved while Banks was still alive. There would be no bucolic campus; Belward instead would be swallowed up in development, surrounded by tall buildings.
Although Hopkins has yet to outline its plans in detail, in early renderings university officials described the potential for 23 buildings from three to 13 stories tall, with parking for 12,320 cars. Half of the buildings would be office space, 40 percent would be for life-science research, and 10 percent would be retail space, they said.
For politicians and planners, the concept had much appeal: The commercial office buildings were predicted to bring as many as 47,000 jobs, and Montgomery could capitalize on the National Institutes of Health, the Food and Drug Administration, the Department of Health and Human Services, and the National Institute of Standards and Technology already in the county. They said science city would rival Research Triangle Park in North Carolina or Palo Alto, Calif.
But neighbors and Banks’s heirs became worried. Baron, the resident who had been excited by the plan for a campus, launched a Web site called Scale-it-Back (scale-it-back.com) and enlisted more than 500 people to pressure the county.
Banks’s heirs felt sandbagged. Hopkins official David McDonough, now in charge of the project, had failed to clue them into the change, despite promises that they would be kept informed. An oversight, said Hopkins spokesman Dennis O’Shea.
About a year later, the county planning board began examining the Hopkins request for more density. “We were skeptical of what Hopkins was proposing, which initially was about 6 million square feet of development,” said Royce Hanson, chairman at the time.
Newell, a broker for plant nurseries in New Jersey, began commuting to attend hundreds of hours of meetings, public hearings and planning board sessions. More than 500 county residents came to two nights of hearings to protest and speak up for Belward, saying their neighborhoods would be wrecked and traffic unbearable. Newell kept pointing to documents and letters he said reflect Hopkins’s earlier commitments. No one in county government seemed to listen to him, he said.
In 2010, the county planning board cut Hopkins’s 6 million-square-foot request to 4.7 million, and upped the open space to 50 acres. The historic farmstead itself would be surrounded by 10 to 12 acres of open land, Hanson said. The County Council quickly approved the plan.
In 2011, the family filed suit.
Hopkins argued that the case is a basic contracts dispute, easily resolved.
The contract Banks agreed to says the Belward property could be used for “agricultural, academic, research and development, delivery of health and medical care services, or related purposes only,” which could “include but not be limited to development of a research campus.”
O’Shea said the university “heard loud and clear that open space was a priority. And it was clear to us that it made sense to build the tallest, densest stuff in the center of the property and scale down toward the edges of the property where it reaches toward the neighborhood.”
Buildings closest to the farmhouse would be no more than 60 feet tall, or about four stories, O’Shea said. And the farm would be visible from nearby roads “to the extent practicable,” he said.
He said the university regrets that the family is unhappy, but “the parties agreed to what they agreed to. … The deal is the deal.”
Montgomery County Executive Isiah Leggett (D) said through a spokesman that the issue is a “private matter” between the parties and that the county is not taking a position on the lawsuit.
Two lower courts have ruled that the language in the contract is unambiguous and gives Hopkins far more latitude to develop than Banks’s heirs claim.
But the family argues that Banks’s intentions must be calculated in. They want to introduce into court the many written records they believe will convince courts that Hopkins is not living up to the deal, such as the letters Hopkins’s Dearden wrote to colleagues acknowledging Banks’s demands.
Dearden, now an aerospace executive in California, said in a recent interview that Hopkins’s current plans do not appear to mesh with the deal he helped craft.
“Regarding Elizabeth and what she wanted, she was very clear in letting us know at the time what she wanted, and what she did not want. … She expected an academic campus, yes, and open space, yes,” he recalled.
Hopkins’s attorneys, James H. Hulme and Leah C. Montesano of the Washington firm Arent Fox, said documents that are not part of the contract are not relevant. According to briefs, the lawyers said that if the court agrees with Banks’s heirs, it would be giving “additional weight to the donor’s subjective intent, even where that intent is not set forth” in writing. That would repudiate “centuries of contract law,” Hopkins’s lawyers wrote in their brief to Maryland’s high court.
Anne Neal, president of the American Council of Trustees and Alumni, who keeps track of “donor intent” cases, said the Hopkins-Belward dispute is about much more than the law of contracts. It turns on whether courts should consider donors’ intentions as well as what was written down, she said.
“We are continuing to see cases where donor intent is ignored by institutions,” Neal said. “It is easy to try to repurpose these gifts and use them in other ways.” Then it becomes up to the donors to try to enforce the deals they thought they had — for some an impossibly expensive task. “Tim Newell is a man of modest means,” she said, adding that his willingness to persevere is uncommon except for the wealthiest donors.
Other universities have faced similar challenges. At Princeton, the Robertson family, heirs to the A&P grocery chain fortune, spent $40 million in legal fees to press their claims that Princeton was misusing a family gift by spending money on helping students pursue a broad range of careers instead of only government service. The case settled in 2008. Princeton paid the family’s legal costs as well as $50 million for the family to start its own foundation to encourage students to enter government service. Still, Princeton came out well, getting control of about $800 million in the settlement. (The original gift was $35 million, but it has grown substantially since the 1961 donation.)
Newell and his relatives aren’t asking Hopkins to pay them anything. “We are only asking them to live up to the promise they made,” Newell said.
“I am not a lawyer. I never read the contract,” said Steiner, the county official who helped bring Banks and Hopkins together. “But everybody, I mean everybody, understood the reasons she got the money she got was because it was going to be a research campus, and the value of the land was less than what she otherwise would get out of it.”
Carter Phillips of Sidley Austin in Washington, who joined Rockville lawyer David Brown to appeal on behalf of Banks’s heirs, said he signed on because of the case’s potential to affect charitable giving. If Banks’s heirs lose, he said, future donors will decide they need extensive help from lawyers, spending more on legal advice to ensure their donations cannot be misused. Thus, they will have less to donate, he said.
“If the rule in Maryland is going to be that you have to dot every i and cross every t, donors are going to say, ‘Is there another state where I can give my gift?’ ”
Hanson, the former planning board chairman, said Banks may have intended to get a campus on her land, but she simply was not sufficiently explicit. At least not in writing.
“Unfortunately, if that is what the family intended,” he said, “it is not what they wrote.”
In the next few weeks, as buds begin to emerge on the stand of trees Banks saved, the Maryland Court of Appeals will determine whether those differing viewpoints deserve to be sorted out. If the court agrees with Banks’s heirs that the case should be reconsidered, it most likely would be sent back to the county courthouse in Rockville for a trial. If not, Hopkins has a green light to move ahead.
Mark Ridenour graduated from Miami University in 1982 with a bachelor’s degree in finance. He began his career at National...
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