Park plan put on hold

Suit, postponement of trial over Smith parcel spur concern

Series of legal skirmishes

July 23, 1999|By Del Quentin Wilber and Erika Niedowski | Del Quentin Wilber and Erika Niedowski,SUN STAFF

Though Elizabeth C. "Nancy" Smith died in February 1997, she's getting her wish to preserve 300 acres of land in the heart of Columbia -- for another five months, at least.

The long-anticipated recreational development of Smith's Blandair farm off Route 175 has been thrown into question by a lawsuit and a postponement of the trial has pushed its resolution back to December.

That worries residents who were eager to see a park, replete with baseball diamonds, soccer fields and nature trails.

"I am starting to have serious concerns on [whether] the county will be able to acquire this property," said Sarah Uphouse, a member of the Blandair Planning Committee, which was created by the Howard County Department of Recreation and Parks to help design the proposed park.

Last August, the county purchased the land from Smith's heirs. Parks officials have put their plans on hold pending the outcome of a lawsuit filed by the Elizabeth C. Smith Foundation, which was formed by friends of Smith after her death.

Though legal experts and county officials say the foundation has little chance of winning the lawsuit in Howard County Circuit Court, some residents are worried.

Henry F. Dagenais, a member of the Blandair Planning Committee, said he was concerned about the park's future even though the county has purchased the land.

"If it gets put off another year, funding may disappear," Dagenais said. "We always run that risk when anything is delayed, when they look at funding again."

By December's trial date, the court fight will have pushed back planning of the park for a year, officials said.

"The planning committee is raring to go," said Gary J. Arthur, director of the Department of Recreation and Parks. "Whatever decision is made, it will be appealed. So, it will probably take a little longer."

The delay springs from a series of legal skirmishes in a lawsuit brought by the foundation chairman, Byron C. Hall, a physics professor.

The foundation contends that Smith intended to leave her farm in a trust that would preserve the property. Smith died before she could sign a will and trust documents, the suit alleges.

Without a will, the foundation's lawyer is arguing that Smith essentially created a contract by promising to protect the land.

But legal experts say that reasoning is shaky because contracts in Maryland for the sale of land need to be in writing and signed. Also, promises usually end after death.

"It will be a difficult thing to prove," said Laurence M. Katz, dean emeritus and a professor who teaches contract law at the University of Baltimore School of Law.

The foundation's lawyer, Douglas G. Worrall, disagrees. He says Maryland law has a loophole that allows people to partially perform their contracts, which makes them legal, even after death.

Smith's actions during the last 20 years of her life show that she wanted the farm to be preserved and that meets the law's criteria, Worrall said. Recently obtained documents and other papers support that contention, he said.

"Unfortunately, I don't have a silver bullet. I have a lot of lead bullets," said Worrall, referring to the documents and Smith's actions. "If they add up to a silver bullet, I win."

The delay until December stems from a decision last month by Circuit Judge James B. Dudley to recuse himself from the case. County lawyers had objected to him hearing the case because he once represented Smith as an attorney. Circuit Judge Raymond J. Kane took over, rescheduling the trial from July 27 to Dec. 7.

Hall said yesterday that the delay would help to preserve the farm, known as Blandair, off Route 175. He also said that his foundation has received an unsigned will and trust that support its contention that Smith intended to preserve the farm.

In April, Dudley ordered a former attorney for Smith to produce documents and answer questions posed by the foundation's lawyer. That attorney, Debra G. Schubert, turned over copies of a draft will and trust that Smith had intended to sign before she died, Hall said.

The unsigned trust established the foundation and described in "some detail the allowed uses of the property," Hall said. "Those uses had to be consistent with the continued use of the farm for agricultural purposes."

The unsigned will also transferred the property to the trust, said Hall, one of the trustees.

Hall said the documents proved what he had been saying for months -- that Smith intended that the farm be preserved.

"I was glad to see them," Hall said. "But I already knew pretty much what was in them. This is one more piece of evidence that what we were saying is true."

Hall is also changing the foundation's name to Blandair Foundation because Smith requested that name in her draft will, Hall said.

A countersuit filed by Smith's heirs, which claims Smith neither created nor authorized the creation of a foundation in her name, has been rescheduled from August to January.

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