Appeals court finds for Arundel

Developers wanted county to refund fees

Unanimous decision

Policy of taking payments for waivers not addressed

Anne Arundel

October 11, 2002|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

In a victory for Anne Arundel County, the state's highest court dismissed yesterday a developers' lawsuit seeking millions of dollars in refunds of money and property they gave the government in exchange for exemptions allowing them to build homes in areas where schools and roads were overburdened.

The unanimous Court of Appeals ruling ends the prospect of the county being ordered to refund what developers claimed was more than $7 million the county collected over more than a decade in deals they said evaded county laws and nearly amounted to extortion.

It also leaves intact the county's practice of accepting payments in exchange for waivers that allow developers to build where public facilities are inadequate.

The court did not address the validity of the practice.

"Obviously, we are very pleased at prevailing," said Hamilton F. Tyler, assistant county attorney.

"This was a voluntary agreement they made. They sought the money back after the fact, after they built," he said.

Tyler had argued to the court that if the developers prevailed, they would have circumvented the county's adequate public facilities law.

In contrast, some developers feel the county tries to extract too much from them.

John R. Grieber Jr., the attorney for the developers, said he will ask the court to reconsider. After speaking with his clients, he said, he may ask the Supreme Court to hear the case or file a similar complaint in federal court in Baltimore.

The Court of Appeals did not get to issues raised by either Tyler or Grieber in Anne Arundel County Circuit Court - where the county won on preliminary motions - and at the Court of Special Appeals, which reached the same conclusion as the lower court, using different reasoning.

Instead, the state's highest judges on their own raised a defense Tyler alluded to but never made. They said because the developers voluntarily paid, they can't ask for a refund.

Then judges also said the developers should have appealed to Tax Court on the theory that the Tax Court might see the waiver deals as illegal taxes.

Greiber, however, said the court "should have found that it either was or was not a tax." He also said the case was decided in hearings before the developer could present evidence that the payments were not voluntary.

This assault on the county's practice of using waivers and fees with developers was one of series by Warren B. "Cookie" Halle, who controls several companies and who has previously sued the county.

Acreage for school

Halle asserted that when he wanted to build the large Seven Oaks community in the western area of the county, he had to agree in 1989 to pay $4.7 million and provide 16 acres for a school site.

He defaulted on payments, which became the subject of a settlement that the county claimed Halle was trying to unravel with a lawsuit filed two years ago.

In his suit two years ago, Halle claimed the county took money and land from him to improve public facilities, yet a generation of children has gone without the elementary school he thought he was helping to fund.

County plans call for the school to open in 2005.

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