Judge grants injunctions on growth freeze

County ordered to resume review of 3 projects' plans

Commissioners vow to appeal

Cases don't apply directly to any other subdivisions

Carroll County

November 14, 2003|By Childs Walker | Childs Walker,SUN STAFF

A Carroll County Circuit Court judge struck a significant blow against the county's growth freeze yesterday by granting injunctions to stop the measure from applying to three planned subdivisions totaling about 150 homes.

Judge Michael M. Galloway ordered the county to resume reviewing the subdivision plans, which have not been allowed to move forward since the county implemented its one-year freeze in June.

In each case, the developer had received a certificate from the county saying its subdivision would not strain school, road and water capacities and could thus move forward. Galloway wrote that those certificates could be considered contracts and that any developer who had such a document might reasonably say the county broke its promises by implementing the freeze.

There are about 90 such projects - totaling more than 1,000 lots - affected by the freeze.

"By granting the injunction, the County Department of Planning will have to process Plaintiff's subdivision plan (and potentially all those subdivision plans that have received a ... certificate)," Galloway wrote in two virtually identical opinions.

Attorneys for developers Kohler Development Co. of Eldersburg and Forty West Builders Inc. of Ellicott City said they were thrilled with the decisions. "I think the decision shows that the county clearly did not have an air-tight legal basis for adopting the deferral," said Clark Shaffer, who served as co-counsel for Forty West and represents about 15 other clients considering similar legal challenges.

But the county commissioners said they will defend the freeze by appealing the injunction rulings.

"We have to," said Commissioner Perry L. Jones Jr. "We knew there were going to be repercussions when we passed this. We can't back out now."

Commissioner Dean L. Minnich said the county's efforts to slow growth won't be hampered by Galloway's decision, though he said the commissioners were disappointed by the verdict.

"Regardless of which way this judge goes, we're going to do what we have to do to create a growth plan for the county," he said. "Our position is going to be to defend our position."

The county's appeal would be heard by the Court of Special Appeals in Annapolis, said County Attorney Kimberly Millender. She said she did not know when the county might file its replies to Galloway's decisions.

Galloway's rulings do not represent his final word in either case and do not apply directly to any other subdivisions. Injunctions are preliminary rulings designed to prevent plaintiffs from suffering damages while they wait for full hearings on their cases.

Galloway is expected to hear further arguments on each case before rendering final decisions, but given that the freeze lasts only six more months, his injunction rulings in effect give the developers what they want - the right to push ahead with their plans.

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.

The commissioners, who were elected on promises to slow growth, said they adopted the freeze to give county planning officials time to revamp Carroll's growth laws. County officials say they've made progress reviewing those laws and will begin offering possible revisions for public scrutiny early next year.

Galloway's decision does not reopen the door for new subdivision plans.

In a key aspect of his decision, Galloway wrote that the certificates granted for projects meeting adequate-facilities standards act as contracts and that developers were likely to succeed in their arguments that the county broke those contracts by imposing the freeze.

The county argued during the injunction hearings that the certificates established time lines for the projects but offered no guarantees that they would move forward and thus did not represent contracts.

But land-use attorneys made the issue the centerpiece of their arguments, saying their clients secured bank loans and paid development fees on the assumption that the certificates offered them the right to move forward.

Those attorneys said they will probably use the ruling to argue that the county should immediately resume reviewing plans for all of their clients.

"You would certainly expect the county to honor or adhere to the decision of the court on this issue," Shaffer said.

Other attorneys said the decisions would logically apply to similar developments. "I don't see how the county can justify treating one project any different than another," said Westminster attorney John Maguire, who represented Kohler at its injunction hearing.

Galloway has been mulling over the injunction rulings for almost six weeks. He said at the hearing on Kohler's injunction request that he would take his time.

"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."

Kohler and Forty West were the first developers to secure court hearings, but a handful of others have filed court challenges, and more than 30 filed freeze-related administrative appeals to the county's Board of Zoning Appeals. The board denied or dismissed all but one of the appeals it heard, granting the one on a technicality separate from the conditions set by the freeze.

Kohler's project would put 21 new houses on a 58-acre parcel in Finksburg beginning in 2005. Forty West's two projects would add about 130 new houses outside of Mount Airy, also beginning in 2005.

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