County Moves To Appeal Ruling On An Asbestos Fill

November 18, 1990|By Alan J. Craver | Alan J. Craver,Staff writer

A lawyer representing the County Council has taken preliminary steps to appeal a Circuit Court judge's ruling allowing an asbestos and rubble fill near Havre de Grace -- a move some council members said was a surprise.

James R. Eyler, a Baltimore attorney representing the County Council in the case, said he filed a notice of appeal with the state Court of Special Appeals. He did so without the council's authorization. The notice of appeal was filed Nov. 9, the last day which the appeal notice could be filed.

"I decided, without instructions from anyone, to file a notice of appeal," Eyler said. "I noted it as a protective measure."

Several council members expressed surprise that the notice was filed, particularly since the council sent Eyler a letter on Oct. 17 informing him of its vote against appealing the court ruling.

"To me, (the filing) should not have happened," said Councilwoman Joanne S. Parrott, R-District B, who had supported an appeal. "The council made its decision."

Lester H. Feinberg, the council's attorney, said he was unaware that Eyler was filing the notice of appeal.

"I really don't know why it was filed," Feinberg said. "Nobody knows anything. I was just as flabbergasted as anybody."

Meanwhile, councilman J. Robert Hooper, D-District D, and G. Edward Fielder, D-District E, sent Eyler a letter last week,saying they will complain to the state Attorney Grievance Commission unless he provides them with more information on why he decided to file the notice.

The council deadlock in a 3-3 vote Oct. 16 on a motion to appeal the court ruling. The tie vote on the seven-member council, which occurred because one member abstained, killed the appeal motion.

The council was voting whether to appeal a decision by county Circuit Judge Cypert O. Whitfill.

Whitfill ruled Oct. 10 that the council acted beyond its authority when the council decided to take Maryland Reclamation Associates Inc.'s proposed rubble fill in Gravel Hill out of the county's Solid Waste Management Plan.

The council had earlier approved the Churchville company's project for inclusion in the plan.

Before the council voted on whether to appeal, Eyler and his associate, Kara M. Miller, advised them to pursue the appeal. The attorneys said the council had a 50 to 70 percent chance of winning an appeal.

Eyler said he filed the appeal notice to allow the new council, which convenes with five newly elected members Dec. 4, to reconsider the vote against the appeal.

The appeal's opponents on the council -- Fielder, John D. Schafer, D-District C, and Frederick J. Hatem, D-District F -- are leaving office.

Hooper, who abstained in the vote, also is leaving office.

If the new council decides against pursuing the appeal, the notice filed in the Court of Special Appeals would be dismissed, Eyler said.

Eyler said he is not charging the council for filing the appeal.

The county charter does not specify whether the council's attorneys can act without authorization from its members.

The charter does say the attorneys can act on all matters "he/she may deem advisable and necessary relating to and supporting the council's actions, functions, powers and duties."

Regardless of whether the council pursues the appeal, the Maryland Reclamation case has landed before the Court of Special Appeals.

A group of seven residents who live next to the site proposed for the rubble fill have already filed a court notice they will appeal the Whitfill decision.

The controversy over the rubble fill began last November, when the council included the project in the solid-waste plan. However, on May 7, the council reversed its decision. Maryland Reclamation filed suit on May 11, asking the court to nullify the council's decision.

Maryland Reclamation, of Churchville, wants to develop the rubble fill on a 55-acre tract off Gravel Hill Road near Havre de Grace.

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