Spouses' stand stalls suit over stream

Lawyers say wives must join husbands in case before trial

January 15, 2000|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

It is a high-stakes lawsuit in Baltimore County Circuit Court that involves 54 defendants and the fate of the last natural brook trout stream in the Greenspring Valley.

But it might be thrown out of court because the wives won't cooperate with their husbands.

Harold H. Burns Jr. and Scott Fine of Lutherville filed suit in June accusing Scottish Development Co. and the 30 homeowners in Westwicke of cutting down too many trees and clearing too much land, causing storm water runoff that pollutes Dipping Pond Run. That violates legal agreements reached in 1995 when Baltimore County zoning officials approved the development near their homes, Burns and Fine say.

But a judge might dismiss the suit because Margaret Burns and Susan Fine have refused to join their husbands as plaintiffs.

In court papers, both women say they agree that the development of Westwicke has damaged their land. They say they support the suit, but "do not, however, wish to be further involved."

In a hearing before Judge Thomas J. Bollinger this week, a squad of eight lawyers hired by the defendants argued that the suit requires Margaret Burns and Susan Fine to join as plaintiffs because they own the property with their husbands.

"Courts have said clearly that they have to act with one mind," Laura Maroldy, a lawyer for the Westwicke Homeowners Association, told Bollinger.

If a spouse shares a mutual property interest as "Tenants by the Entirety" and files a suit based on property rights, the same rules apply as if they were mortgaging or selling their land, the defendants say.

"The law's very clear. If they can't reach an agreement in their households, they cannot seek a remedy in court," Herbert R. O'Conor III, a lawyer for one homeowner, told Bollinger.

Howard J. Schulman, the lawyer for Burns and Fine, said their wives' participation is not necessary for the suit to go to trial.

"This entire issue is a tempest in a teapot," Schulman told Bollinger.

Harold Burns, a Baltimore lawyer, said that his wife, who was a plaintiff in a previous environmental suit, doesn't want to be a plaintiff again. "Legally, we're seeking enforcement of a contract that this developer agreed to years ago," Burns said.

Scott Fine said that neither he nor his wife would comment on the case.

O'Conor and the lawyers for the defendants declined to comment on the case after this week's hearing. But Schulman and Burns insisted that the case go to trial because of the critical environmental issues involved.

Construction of the houses has dumped sediment into one of the last pristine waterways in the Greenspring Valley and eroded its banks, they said.

"What we have here is the last natural brook trout stream in the Jones Falls watershed, and it's being destroyed, and no one seems to care," Burns said. "They think they can terrorize us with what the suit is going to cost by throwing up all these obstacles. But they're mistaken."

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