Citizens find hired counsel has appeal

Residents retaining private attorneys in Howard zoning cases

Greater expense

County's lawyers seen as less committed to community view

April 01, 2001|By Alec MacGillis | Alec MacGillis,SUN STAFF

For Howard County residents who win zoning cases against developers, victory can be expensive.

Consider the residents of the Dorsey neighborhood in Elkridge who last fall defeated a developer's proposal to build a warehouse next door. When the developer appealed the county Board of Appeals' ruling against him to Circuit Court, the residents could have saved themselves thousands of dollars by telling their lawyer he was no longer needed.

After all, the county will assign its own lawyer to defend the board's ruling in favor of the residents when it comes before the court in July - at no cost to the residents.

FOR THE RECORD - An article in Sunday's Howard County edition of The Sun about legal representation in zoning cases gave the incorrect outcome of a proposal for a retirement community at Cattail Creek in western Howard. Developer Donald R. Reuwer won approval from the Howard County Board of Appeals, but lost an appeal by residents to the Circuit Court of Appeals. Reuwer then appealed to the Court of Special Appeals, where the case is pending. The Sun regrets the error.

But, a half-dozen or so residents decided to retain their lawyer, Thomas E. Dernoga, saying they were more confident with him on their side than they would be with only the county's counsel.

"We'd all prefer not to have to do this. There are other places we'd rather spend our money," said Pat Johenning of Elm Avenue. "But the county lawyer isn't really working for us - he's working for the county. He's not as interested in what happens here as we are."

The Dorsey neighbors, who estimate their legal bill will end up costing at least $10,000, aren't alone. Increasingly, residents who defeat developers' proposals at the Board of Appeals are keeping their lawyers to fight the cases on appeal, though the county's lawyers are also on the case.

Land-use lawyers - from the county and private practice - agree residents have good reason to pay extra for double-team representation. The county's lawyers assigned to defend board rulings aren't so invested in the outcome of court appeals as are residents' private lawyers, they say.

"If the court rules the board is wrong, the board is not aggrieved, but Joe Citizen, the resident, may well feel aggrieved," said Barry Sanders, the county attorney defending the board's ruling in the warehouse case. "The board doesn't have [a vested] interest in the outcome."

Knowing the `intricacies'

In theory, lawyers agree, county representation should be sufficient, because court appeals of board rulings are supposed to be considered solely on the merits of the ruling, which is what the county's lawyer is assigned to defend. But residents worry that the county's lawyers won't make it clear enough what the consequences of a developer's proposal could be.

"Citizens know the neighborhood and the intricacies. The Board of Appeals attorney knows only what he heard at the hearings," Dernoga said. "What he's doing is to defend a couple-page written decision, and he may not be as in tune with the intricacies as the [residents' lawyer]."

In the Dorsey case, residents argue that developer Mark L. Levy's plan for a 155,000-square- foot warehouse would produce diesel fumes and truck noise a few feet from their homes. Levy applied for a variance to reduce the required 150-foot setback to 30 feet for his proposed parking lot and 130 feet for his proposed warehouse.

Environmental constraints and the configuration of Dorsey Run Road forced him to build closer to homes than permitted, Levy said. The Board of Appeals denied the request, saying that Levy could have avoided the problem by subdividing his property differently.

County attorneys don't lack motivation when they go to court to defend cases, lawyers say, because the reputation of the board's judgment is at stake when its rulings come up for review. "You like to be told that what you did was correct," Sanders said.

But, if residents decide to rely only on county lawyers, court rules dictate that they would not be able to re-enter the case as third parties if the developer wins on appeal. "If you put out a lot of money [at the board level], you would want to protect your investment," Dernoga said. "You don't have to, but it's wise to do."

`I don't trust the county'

For some residents, the decision to keep their lawyer on appeal is more than just tactical. Joseph Carta, who with other western county residents won a Board of Appeals vote against a proposed retirement community at the Cattail Creek Country Club, decided to keep his lawyer for the developer's appeal, because he suspected the county was against him.

"I don't trust the county. I really don't," Carta said. "Those lawyers are working for the county, so why should I trust them? I trust my own lawyer much better."

Residents in neighboring counties have less apparent need to keep paying for their lawyers. In Prince George's County, most zoning rulings are made by the County Council, which is elected and therefore more invested in appeals of its rulings.

Baltimore County employs a people's counsel who represents residents in zoning fights, from the initial board hearings through court appeals. Howard plans to hire a people's counsel but only to provide general advice to residents, not to be an advocate for them in court. So, double-teaming in appeals courts is expected to continue. "Hey, two attorneys is usually better than one," land-use lawyer Thomas Meachum said.

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