Ruling receives mixed reviews

Builders see injunctions against growth freeze as a victory for their plans

Judge says reviews must resume

Commissioners promise to appeal court's orders

November 16, 2003|By Childs Walker | Childs Walker,SUN STAFF

Some describe last week's Circuit Court rulings granting injunctions against Carroll's growth freeze as a major victory for developers, while others see the decisions as a more modest setback to the commissioners' efforts to slow growth.

On one hand, Judge Michael M. Galloway's opinions - which order the county to resume reviewing three subdivision plans - could be a boon for the many developers who had money tied up in projects that weren't moving forward because of the one-year freeze. There are about 90 such projects totaling more than 1,000 lots.

"It was a very significant decision," said Westminster land-use attorney David Bowersox, who added that he filed five similar injunction requests in Circuit Court on Friday. "It confirms that the analyses my colleagues and I agreed on are fair and legitimate. I think [the judge] was right on."

On the other hand, the decisions fall short of overturning the freeze, because they only apply directly to a few subdivisions and do not open the door for new development plans to start rolling in. The decisions also did not come until almost halfway through the freeze's duration, and county officials say the legal defeats will not halt their efforts to revamp the county's growth laws.

"This decision is really discouraging, but we have faith we can win and we will begin that fight this evening," Commissioner Perry L. Jones Jr. told a crowd of 75 South Carroll residents Thursday night.

The commissioners have promised legal appeals to both injunctions, which would be heard by the Court of Special Appeals in Annapolis. County Attorney Kimberly Millender said she filed requests in Circuit Court on Friday asking Galloway to "stay" or delay the effect of his injunction orders pending the appeals.

There is also an aspect of uncertainty to the aftermath of the decisions, as land-use attorneys say they will ask the county to see the injunctions as a precedent for all similar cases, while county officials say they have not decided how to treat cases not specifically covered by Galloway's opinion.

In each case Galloway considered, 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.

"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.

Though they were still sorting through the decisions Friday, developers and land-use attorneys said Galloway's opinion confirmed what they had believed all along about the freeze.

"We're certainly pleased that the judge saw as we did that the certificate was a contract," said Stephen H. Costello, one of the developers who won an injunction. "It was a situation where the county said if you follow these rules by certain deadlines, you get recorded."

Dick Hull, president of Carroll Land Services Inc., a Westminster development company that works with many of the builders affected by the freeze, said the "result was inevitable once we got into the legal process."

"What the commissioners did, breaking those contracts, was clearly illegal," he said.

The commissioners implemented the freeze in June. They said planning officials needed a year without the pressures of continuing growth to work on revising laws that many say have failed to keep development from racing ahead of county services.

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 measure provoked an immediate outcry from developers, who said the commissioners were effectively breaking contracts by refusing to review projects that had met adequate facilities standards. Some smaller developers said the freeze exposed them to financial ruin because they had secured bank loans on the assumption they were clear to move forward with their projects.

Galloway's decisions probably mean the most to those builders, who believe they might now have legal leverage to force the county to let them proceed.

Lost money

"That's money they never make up," said Hull, who has long served as a leading spokesman for the county's development community.

Much of the testimony in the injunction cases focused on the financial hardships created by the freeze. Developers said they took large bank loans and paid hundreds of thousands of dollars in fees on the assumption that adequate facilities certificates gave them the right to move forward.

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