Carroll defends growth moratorium

Commissioners seeking to overturn injunctions

December 12, 2003|By Hanah Cho | Hanah Cho,SUN STAFF

The Carroll commissioners filed an appeal yesterday of the court ruling that dealt a significant blow to the county's growth freeze.

A document filed on the commissioners' behalf in county Circuit Court indicated that they are asking the Maryland Court of Special Appeals to hear their appeal to the Nov. 13 ruling that granted injunctions to two developers who asked that the county be ordered to process their subdivision plans.

County Attorney Kimberly Millender said it might be six to eight months before briefs are filed and oral arguments are heard by the Court of Special Appeals. In the meantime, the county also plans to file "stay" orders on the injunctions with the higher court pending the outcome of the appeal, Millender said.

The appeal is in response to Carroll Circuit Judge Michael M. Galloway's decision ordering the county to move forward on plans filed by Kohler Development Co. of Eldersburg and Forty West Builders Inc. of Ellicott City. The developers' subdivision plans, totaling about 150 homes, were affected by a one-year freeze implemented by the county in June.

In each case, the developer had received a certificate from the county saying its subdivision would not strain school, road or water capacities and could therefore move forward.

During the injunction hearings, lawyers for the developers argued that the certificates offered them the right to move forward and based on that assumption, their clients secured bank loans and paid development fees. The county, however, argued that the certificates established time lines for the projects but offered no guarantees that they would move forward and thus did not represent contracts.

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.

The injunction rulings do not open the door for new subdivision plans. The county's planning department is reviewing and processing only subdivision plans covered under the court rulings, said director Steven C. Horn.

After the rulings, the county commissioners promised legal fights to defend the freeze, which they adopted to give county planning officials time to revamp Carroll's growth laws.

Last week, Galloway rejected the county's requests to delay the effect of his injunction orders.

In arguing for the delay in the Kohler case, Cathy G. Borten and Stanley D. Abrams, Bethesda attorneys representing the commissioners in the case, wrote that "by requiring the commissioners to resume processing the plaintiff's development plans, essentially nullifying the deferral ordinance, the Court has stepped into the shoes of the legislature, effectively destroying the protections provided by the separation of powers doctrine, and severely hindering the ability of the county to govern itself and to effectively study its growth management law."

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.

Those plans could come before the subdivision advisory committee for development review this month - a preliminary step before the plans are presented to the county's planning commission, Horn said.

"We're balancing the need to process the plans in conjunction with the judge's orders, while also continuing to work diligently on revisions to the county's growth policies and ordinance," Horn said.

Meanwhile, at least three other developers have filed requests for similar injunctions against the county in Circuit Court.

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