Growth freeze gets day in court

Developer claims county reneged on `contract'

Finksburg development at issue

Plan passed facilities test before ordinance enacted

Carroll County

October 02, 2003|By Childs Walker | Childs Walker,SUN STAFF

The Carroll commissioners' yearlong growth freeze met its first courtroom challenge yesterday when an Eldersburg developer asked a county judge to let work proceed on his proposed 21-lot subdivision in Finksburg.

Developer James Kohler is requesting an injunction against the 4-month-old freeze, which he says is unfair because the county gave him a certificate saying that if he met certain conditions he would be allowed to develop his project in 2005.

Circuit Judge Michael M. Galloway said he might take a few weeks to rule on the injunction request, adding that his decision could set a precedent for the 90 other projects affected by the freeze.

"I don't want to shoot from the hip on this one," he said. "Clearly, it's an important issue that affects not only this plaintiff but other plaintiffs and ... most of the people in this county."

Galloway said he was impressed with arguments on both sides. "I felt myself at various stages leaning one way and then leaning another," he said.

The freeze closed the door to new subdivisions on land covered by adequate-facilities laws designed to prevent growth from overwhelming county services.

It also has delayed development on about 1,700 lots that passed earlier stages in the county's subdivision review process.

Kohler filed his injunction request last month, becoming the second developer to pursue a legal challenge against the freeze, which the commissioners passed in June. Westminster developer JFJME Family LLC filed a similar suit in August but no hearings have been scheduled in that case.

More than 30 other developers have filed freeze-related administrative appeals to the county's Board of Zoning Appeals. The board has denied or dismissed 15 of those appeals and granted one on a technicality separate from the conditions set by the freeze.

Kohler received a certificate from the county last year saying that his project, called Clover Meadow, would not strain county infrastructure such as schools, roads, firehouses and water supplies.

Kohler told the court yesterday that he regarded that certificate as a contract guaranteeing him the right to begin building on the 58-acre parcel, at Deer Park Road and Route 91, in 2005.

He said he paid about $75,000 in engineering fees, interest and taxes on the assumption that the certificate was equivalent to a contract.

"It's an agreement with the county and everybody knows they are," Kohler said of the certificates.

Attorney Cathy Borter, arguing for the county, disagreed, saying the certificates make no promises that the county will grant final permission to develop by a certain date.

"There's been no evidence that this was a contract," Borter said. "There's been testimony that, well, the developer thinks it was and proceeded that way."

Borter also questioned Kohler's argument that the yearlong delay would cause him significant money woes, noting that the developer didn't apply for an exemption under the freeze's financial hardship clause.

"That remedy is available to him," she said.

Kohler's attorney, John Maguire, said his client did not apply because he probably would be unable to meet the county's tough conditions for an exemption.

"He's not going to go to the county and say he can't pay his medical bills," Maguire said. "But he still has hardship."

As evidence of the case's importance to the freeze dispute, several of Maguire's fellow land-use attorneys watched from the court gallery.

During testimony, county planning Director Steven C. Horn said he believed that if Kohler's injunction request proved successful, the decision probably would open similar doors for other developers.

That would make it difficult for the county's planning staff to finish revamping the county's growth laws by June, as the commissioners want, Horn said.

"The staff would be busy processing plans rather than fixing the policies that govern growth management in this county," he said.

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