Legality of using tax money for enforcement is unclear Such expenditure is permitted only for public purpose

May 10, 1992|By Peter Hermann | Peter Hermann,Staff writer

The Crofton Civic Association may be walking a thin legal line by using tax money to pay for enforcing covenant violations.

Court rulings and opinions from the Attorney General's office say that public money -- even from a special taxing district -- can be used only to serve a public purpose.

Since covenants are considered private contracts, using tax money to enforce them might violate that standard.

No court cases have dealt directly with Crofton's right to use tax revenue for such purposes. But without that power, covenant enforcement in Crofton would be virtually impossible.

The civic association's $2,000 budget, earned through fund-raisers and other activities, doesn't come close to the tax district's $550,000.

More than $6,000 in tax revenue has been spent on covenant-related matters since August. About half was spent on court-related activity dealing with violations. The other half was used to pay a lawyer to assign covenant enforcement authority from two new communities to the civic association.

Crofton's attorney, Frederick Sussman, declined to comment on the issue. The County Attorney's office also refused comment, saying that it is improper to give legal opinions to people other than its clients.

Roger Redden, a Baltimore attorney who represented Columbia

when it began as a private association 20 years ago, said he doesn't know "of any case that would provide clear guidance on the issue."

He said it may be up to the county code that established Crofton's Community Benefit District in 1969. The code lists all tax districts in the county. Some, such as Epping Forest, can spend tax money only to augment county police protection.

The code establishing Crofton is far broader. It says tax money can be used for "such other services [as the board] may have approved in its annual budget request as adopted by the County Council and the expenses necessary to administer these services."

But that apparently does not give Crofton blanket spending approval, even if it has the blessing from the County Council.

An unpublished opinion issued in 1976 by the state Attorney General's office dealing with tax districts stressed that it is "essential that the improvement financed by special assessment the district be of a public nature," regardless of whether it has been approved by the council.

Assistant Attorney General Dick Israel and other attorneys interviewed agreed there could be certain cases where enforcing covenants fits the definition of "public purpose."

"You would have to look at the covenant and see what it means to the community as a whole," he said.

Gene Drury, secretary of the civic association and head of the Covenant Review Committee, said he believes the public wants covenants enforced at all costs. He said he has never heard of questions relating to the legality of using tax money to enforce the covenant rules. "That is a very interesting question," he said.

Ed Dosek, president of the Crofton Civic Association, has no doubt that enforcing covenant provisions serves a broad public purpose.

He likened it to spending money to increase police patrols at the Crofton Country Club to deter vandals. That may be using public funds to protect a private business, but ridding the area of vandals benefits all Crofton residents.

Similarly, forcing one resident to take down a basketball hoop will stop others from erecting hoops, he said.

But does forcing one couple to remove a basketball hoop in one community serve a public purpose when residents who live in other sections of Crofton are allowed to put the goals up?

"That's the kind of question that makes people go to lawyers," Redden said.

Victor Tervala, of the Institute for Governmental Service, a research and consulting group based at the University of Maryland at College Park, said courts ruled against restrictive covenants in the 1960s to erase discrimination. "That was considered to be for the public good."

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